WORKING OF THE MUNICIPAL ACT.

OBSERVATIONS AND SUGGESTIONS, LEGAL AND EXPLANATORY, RELA- TIVE TO THE PROCEEDINGS OF TIIE COUNCILLORS AND ALDERMEN FIRST ELECTED.

[From the legal knowledge of the writer, and the attention he has bestowed upon the subject, we have reason to believe that great reli- ance may be placed on these Observations arid Suggestions. We re- commend them to all the new Municipalities, at this particular time.]

Upon examination of the Municipal Corporation Act (5 and 6 William IV: c. 76.) with a view to the carrying into effect three parts of it which relate to the first elections, and the formation of the Council, and the proceedings in- cident thereto, it will be found that very few specific directions are given: the due election of the Councillors is indeed provided for by section 48, and this is certainly the most important proceeding of the whole ; but this having been done, their is no definite or speedy legal cheek, nor any obvious or satisfactory rule for the guidance of the parties in any of the subsequent steps. In this state of things, the following suggestions and observations may possibly be of service ;- but I beg distinctly to be understood as nut meaning to imply that other courses may not be as proper, and even more expedient, under the various circumstances of different cities and towns. In all cases the regular legal adviser of the borough is the authority to whom all ought to defer, unless the steps he takes or recommends should be manifestly injurious or illegal.

The 26th day of December is appointed for the election of the Councillors; the sections of the Municipal Act which relate to these elections are, as to Boroughs divided into Wards, 43-46; as to undivided boroughs, 29-36.

Publication of the Names of Persons elected to the office of Councillors.

By section 35 the Mayor is *directed to publish a list of the names of per. sons elected, not later than two o'clock on the day next but one after the elec- tion ; that will be, in this year, on Monday the 28th December.

The Act specifies no form or mode of pul•lication ; it is left entirely to the discretion of the Mayor ; and doubtless, sticking up a list in any place to which the public have access, would be sufficient in law, or even placing the list in the hands of the Town-Clerk for the purpose of being shown to the patties in- terested.

It must, lion-ever, he observed, that this publication of the names of the new Councillors is a very important transaction. First, by section 38 it is enacted, that after the declaration of the first election of Councillors, the Mayor, Alder- men, and Common Councilmen, and all other persons composing the governing body as hitherto constituted, shall go out of office, and their whole powers and duties shall cease ; this publication operates therefore as notice of the entire cessstion of the powers, duties, and responsibilities of every member of the old Corporations from the hour of publication. By section 51, every person duly qualified shall accept the office to whichhe shall have been elected ; and shall subscribe the declaration (contained in section 50) within five days after notice of his election, or else shall he subject to certain penalties : it is therefore of importance that notice should be given as early as possible to each Councillor elected. Another point is, that (by section 31) one-third of the Councillors go out of office in each year ; and these are to be, in the year 1836, those who had the

fewest votes at the first election ; and in the year 1837, those wlio had the next fewest votes : it will therefore be desirable that the number of rotes should be published together with the names. I should therefore suggest, that the Mayor should cause to be placarded on the door of the Town- hall, or in some other conspicuous situation, a list of the names, with the number of votes given for each Councillor opposite his name. The Act does not expressly declare, but it is sufficiently evident from its pro- visions, that, in boroughs divided into wards, the Councillors who are to go nut of office at the expiration of the first year, are not to be the third who hail the fewest number of votes in the entire borough ; but that one-third of the Councillors of each Ward—viz, those who had the fewest votes in that Ward —are to go out of office : the names should therefore be arranged according to the Wards by which they are elected. The governing body of the old Corporations will be thus extinct, but there is as yet no successor : the Act, whether by design or by accident- three net sr

?tablas left the borough without head or guide ; the new body has to struggle into existence as it best may ; on the 31st day of December the Aldermen are to be elected, but until the 1st day of January 1836 the Councillors neither in- dividually nor collectively have the slightest power whateve, except simply to elect the Aldermen ; they have not even the power to a point the hour of sleeting for that purpose. Doubtless in this and all similar cases under the statute, where any parties act upon reasonable grounds and with pure intentions, if their proceedings should subsequently turn out to be erroneous or irevalid, or be called in question, the Courts of Justice would give them every facility for rectifying mistakes, and discourage every attempt to take advantage of them.

Deckgra.qons.

The first thing to be done by the newly-elected Councillors, is to qualify themselves for performing the duties of thew office, by complying with section 50; by which they are required, firstly, to make and subscribe the declaration therein set forth-2(as the Act is in everybody's hands, I will not transcribe it here, but will call it the New Declaration) ;—secondly, make and subscribe a declaration according to the inovisions of the 9th Geo. IV. e. 17; this, which I will call the Old Declaration, is as follows- 1 A. B. do solemnly and sincerely in the presence of God, profess, testify, and des clore. upon the true faith of a Christian, that l will never exercise any power, autho. rity, or influence. which I may possess by virtue of the office of , to injure or weaken the Protestant Church as it is by law established in England, or to disturb the said Church. or the Bishops and Clergy of the said Church, in the possession of any rights or privileges to which such Church, or the said Bishops and Clergy, are or may be by law entitled."

It must be observed, that the Statute merely requires the New Declaration to he made and subscribed before any two or more Aldermen or Councillors, and prescribes no further ceremony, nor any entry to be made or record kept of the fulfilment of this provision : the Old Declaration, on the other hand, is required to be made (9th Geo. IV. c. 17, § 3) "in the presence of such per- son or persons, who, by the charters or usages of the said cities, &c. ought to administer the oath for due execution of the said offices or places respectively ; and, in default of such, in the presence of two justices," &c. ; and also either to be "entered in a book, roll, or other record, to be kept for that purpose, cr to be filed amongst the records of the city, corporation," Ste. It certainly will be expedient that the New Declaration should be entered and preserved together with the Old. It would be much more convenient that both should he made before the same persons ; but as the 9th Geo. IV. c. 17, § :3, only mentions "charters and usages," and not statutes, I think it would be unsafe to make the Old Declaration before any other than the persons in whose presence it has hitherto usually been made. The provisions that it shall be unlawful for any person to act in any muni- cipal office without making these declarations respectively, are similar in each of the above-mentioned Acts.

One peculiarity respecting the Old Declaration remains to be noticed, viz. that it is sufficient if it bt!ii lade within one calend ir month 11:fore to arty municipal office: therefore if any person is admitted auy n..w toe within one calendar month after he has made this declaration in respect of his former office, he need not repeat it: the wording of the New Declaration shows, on the contrary, that it must be repeated as often as the party making it is elected to a new office.

Under all these ciremnstances, I think it highly expedient that the Mayor upon his quitting office, or the Town-Clerk, should send a circular to each of the newly-elected Councillors informing him of his election ; and calling his attention to sections 50 and 51 of the .Municipal Act : notifying also the time and place where books will be opened for entering his subscription to the two Declarations ; and informing him who is the proper officer before whom the old declaration ought to be made ; and suggesting also a time and piece for the meeting of the Councillors on the 31st of December, for the purpose of electing the Aldermen. By section 46, if any person be chosen Councillor in more than one Ward, he shall within three days after notice choose for which lie will serve. This provision should be noticed in the circular to any person who may be elected in more than one ward.

In the same circular might be conveyed the intimation which the Mayor was directed (by the Government circular of the let of October) to give to the new Council,—" that any recommendation which they may think fit to make, of persons qualified to be intrusted by his Majesty with the commission of the peace, will have its due weight with the advisers of the Crown." If any other suggestion occur to the legal adviser of the borough, I think it ehould be communicated ; and I have no doubt the Councillors will gladly avail 'themselves of any information thus conveyed.

Election of Aldermen.

'When the Councillors have made and subscribed these declarations they have perfected their title to the office; and are qualified to proceed on the 31st of December to the election of Aldermen, in pursuance of section 25. This section does not give any rules for holding or conducting such election, nor does it make the presence of any particular number of Councillors requisite to the validity of it. This is certainly a great oversight ; for if aportion of the Councillors should choose to meet in one place, and another portion in another, and each portion should proceed to the election of the Aldermen, the greatest -confusion, and probably expensive litigation, would ensue: it is however to be presumed, that there w ill be no reluctance on the part of the Councillors to avail themselves of the suggestions contained in the circular as to the time and place of meeting.

We will then suppose them to have met at the time and place indicated; their sole duty on this day is to elect the Aldermen; and any other act, pro- ceeding, or inquiry of what nature soever, would be illegal : the sole business of the day is comprise(' in the latter portion of section 23.

The first proceeding at the meeting, (after choosing a Chairman,) should be to fir upon the mode of election. This may be either by show of hands, by means of a voting-paper, or by ballot, or any other way the Councillors present may determine: whatever plan is adopted, need not be held as a precedent for subsequent elections. The stated number of Aldermen having been elected, the next proceeding will be to appoint the half who are to go out of office in the year 1008. 'Ibis may done in the same mode as was adopted for their election: if a voting paper has been used, the perilous having the fewest number of votes may at once be so appointed. As it is the Councillors who are directed to appoint which of the Aldermen are first to go out of office, it may be a question whether any Councillor who shall have been just elected Alderman can have any voice in this matter: I should think he ought not. It will be convenient that the Town-Clerk should be in attendance, (although neither he, nor any other servant of the Corporation, can be compelled to attend,) lie shoufd enter the proceedings sad the naince of the parties elected in a proper book; and send a circular to the new Aldermen notifi log • Neither is there any provision in the Act for enforcing their meeting and pro- credinng io such election, or accepting the office of Couneillor at all, if all unite to decline thellne for non.aemitauee of office not being payable until tixed by a bye. law, which ertaaoi be made except by the Commit; the Cotineillor have it tint, in their Imm.er to frustmte al the iiiteutions of the Legi.latute. with imp inity. This is a curious tact, bat ow certainly sot likely to be acted upon ; WheUCP probably the omission.

their election and the eer:od for Wei they are e steed, and requesting then) to qualify themselves immediately, by making the two declarant) is, fie act Mg at the first quarterly meeting, which is to be huldeq at noon on the fol- lowing day.

It has been observed that Councillors who have already made the two declara- tions, if they shall be elected Aldermen must make and subscribe a second time the New Declaration as Aldermen, but need not repeat the Old Declara- tion. Where this or any former Act uses the word ADMISSION to any office, I should consider that election under the new Act must be held to include in its meaning such admission ; no further ceremony being necessary to complete the title of the person elected ; but he must be deemed admitted by the fact of his having been elected.

Election of the Mayor.

On Friday the 1st day of January, at noon, the first quarterly meeting is to be holden ; and the first act to be done at this meeting is to be the election of the Mayor, (who by section 9 must be chosen from the Aldermen or Council- bra). This Act completes the Council, arid instantly confers upon that body all the powers, privileges, duties, and responsibilities which they enjoy, or are liable to, both under all charters, grants, deeds, and nurepealed statutes, as sue. resents of the old body, and also under the lecent Act. The Mayor, if present, should immediately subscribe the New Declaration as Mayor, and take the chair ; if absent, his election should be immediately noti- fied to him and his presence requested; and the meeting may be adjourned for an hour or two, to give time for his arrival. The meeting, however, are not legally bound to wait for the Mayor ; having elected him, they are a Council, even if he refuse to serve the office ; and they may proceed forthwith to the other duties of the day : for which purpose, if the Mayor be absent, they must first elect an Alderman, or if all the Aldermen be absent any Councillor, to be their Chairman. The Chairman has the impor- tant privilege of a casting-vote.

Requieites to the Legality of the Acts and Proceedings of the Council.

By section 69 it is enacted," that all acts whatsoever authorized or required by virtue of this Act to be done by the Council of any borough. and all ques- tions of adjournment or others which may come before such Council, may be done and decided by the majority of the members of the Council who shall be present at any meeting held in pursuance of this Act, the whole number present at such meeting not being less than one-third part of the number of the whole Council."

Minutes of the proceedings shall be entered in a book, which must be signed by the Mayor or Chairman.

Business of the First Quarterly Meeting.

The business appointed by the recent Act and Orders in Council, for this (ley, is the appointment of certain Corporate Officers; the election of certain Trustees; arid the appointment of the days and hours on which the three sub- sequent iplarterly meetings shall be held.

Fi:ss, avp.int moat of Officers. In each of the c;riter mut towns named in eeereel 61, le:ne mantles of themselves., one Sheriff must be appointed. As

this officer has important duties to perform, it is absolutely necessary that he should be appointed on the day fixed.

The appointment of Town-Clerk is directed also to be made on this day, by the order in Council of the 30th of September the appointment however may, I should think, be deferred to an adjourned meeting, if the Council think it desirable.

A Treasurer should be appointed as soon as possible, but no time is fixed by the Act: his office is annual; his duties are strictly fixed by the Act. The appoMtatent of all other officers is completely in the discretion of the Council, as WC:i as regards the nature of their services, as their remuneration, security for fidelity, and the duration of their tenure. The persons who at present fill these officts :ere continued by the Act until the Couucil shall remove them ; section 63.

&coldly, by section '74, all members or nominees of any body corporate, or of any partieuler number, class, or description thereof, who, at the tune of the passing of the Act, were trustees of any Act of Parliament or other trust (not being a charitable trust) for an indefinite time, or for life, or for so long as they shou:d be members, or of a particular class or description of such body corpo- rate,—such ',ermine shall continue to be such trustees until the let day of Januaey le33, and no longer. A similar provision follows as to members or officers of a corporate body having specific duties to perform. By section 73, the Council are directed to fill up the vacancies so caused on that day. The necessity of immediately filling them up on the very day must depend upon the nature of the trust : if the parties ceasing to be Trustees were sole tu ustees, their places certainly ought to be supplied on the same day : in all cases it will be important that their places should be supplied as soon as practicable. The Officers of the Corporation should if possible be prepared to give to the Council all necessary information on these subjects.

Thirdly, the Council shall fix the days and hours at which the three subse- quent quarterly meetings shall be held ; the last of such meetings being fixed for sonic day previous to the 1st of' November 1836.

Adjournment of the Meeting.

If any of the business fixed for this day is unavoidably left undone, the meet- ing should be adjourned from time to time until it is completed; and it must be particularly Observed, that the question of adjournment (like all other ques- tions) must be decided by a majority of the members present, the whole num- ber present not being less than one-third of the number of the whole council. If any business is left undone from want of sufficient information respecting it, an active commiLee should be appointed, with sufficient powers, to investi- the subject and report on it to the adjourned meeting.

1Vatch Committee.

No specific day is named in the Act for the appointment of the Watch Com- mittee; section 76 simply directs the Council to appoint it "immediately after their first election," which of course means as soon as they, in the exercise of' a sound discretion, judge it expedient to do so; and as the Watch Committee are required, by the same section, to appoint Day and Night Constables within three weeks after their formation, which appointment of Constables must be followed by a notice (section 84) specifying the day on which they shall begin to act, on which day the provisions of certain Acts of Parliament relating to rates, watch- ing, and Constables will cease, it appears to me desirable, that in large towns a committee should be appointed to report on the present state of the constables and police, and other matters connected therewith, as a preliminary to the appointmeet of the Watch Committee. I believe I have now gone through most of the business that requires imme- diate attention : very many important matters will come before the Council soon after its formation, but still the Council will have a few weeks to consider of them, and time to appoint committees to report on them, (amongst these, the most important perhaps is the change in Criminal and Civil jurisdiction). The Councilmen will find, that in proportion as the honour conferred on them by their fellow-townsmen is great, so the duties of good government will be ardtmes.

In conclusion, I beg to say that I am perfectly aware that this is a very crude noticeou the *object; but if it affords any assistance to any pcnon, whose attention may not have been called in sultic:eat time to examine :I e provisions of the Act in questions, my object is fully attained.