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first meeting or election and properly constituting the SECT, 80. parish or district council, board of guardians, local board, or vestry, or auditors, and may, if it appears to them necessary, direct the holding of a meeting or election, and fix the dates for any such meeting or election, but a parish shall, notwithstanding any such failure to constitute the parish council, be deemed to be a parish having a parish council within the meaning of this Act. Any such order may modify the provisions of this Act, and the enactments applied by or rules framed under this Act so far as may appear to the county council necessary or expedient for carrying the order into effect.
This sub-section appears to give unlimited powers to the county council. Attention should be directed to the concluding words, enabling the county councils to modify the provisions of this Act, the applied enactments, and the rules framed under this Act.
(2.) The Local Government Board shall make regula- Sub-sect. (2). tions for expediting and simplifying the procedure under section fifty-seven of the Local Government Act, 1888, in all cases in the year one thousand eight hundred and ninety-four, for the purpose of bringing this Act into immediate operation, and such regulations may dispense with the final approval of an order by the county council in cases where the prescribed notice of the proposed order has been given before it is made by the county council.
See section 57 of the Act of 1888 and the Order of the 22nd March, 1894, which are set out ante, pp. 158-163.
81. (1.) Where the powers and duties of any authority SECT. 81. other than justices are transferred by this Act to any Existing parish or district council, the officers of that authority officers. shall become the officers of that council, and for the purposes of this section the body appointing a surveyor of highways shall be deemed to be a highway authority and any paid surveyor to be an officer of that body.
EXISTING OFFICERS.-As an illustration of this sub-section, the officers of highway boards will become officers of the rural district council when the latter become the highway authority under section 25 ;
SECT. 81. but, of course, their duties will be limited to those connected with the work of the council as the highway authority. Similarly, the officers of an authority acting in the execution of the adoptive Acts will become the officers of the parish council in cases where that body becomes the executive authority.
In a highway parish the body appointing a surveyor are the inhabitants in vestry, or meeting in the nature of a vestry (5 & 6 Will. 4, c. 50, ss. 6, 18).
(2.) Where there is in a rural parish an existing vestry clerk appointed under the Vestries Act, 1850, he shall become the clerk of the parish council, and if there is also an assistant overseer in the parish, then, notwithstanding the foregoing provisions of this Act, that assistant overseer shall not, while such vestry clerk holds office, be the clerk of the parish council.
VESTRY CLERK.-See the notes to section 17, ante, p. 110.
(3.) Any existing assistant overseer in a parish for which a parish council is elected shall, unless appointed by a board of guardians, become an officer of the parish council.
An assistant overseer is only appointed by a board of guardians under 7 & 8 Vict. c. 101, s. 62. See the note to section 5, sub-section (1), ante, p. 25. Such appointments will no longer be made, having regard to section 6, infra.
(4.) Every such officer, vestry clerk, and assistant overseer, as above in this section mentioned shall hold his office by the same tenure and upon the same terms and conditions as heretofore, and while performing the same duties shall receive not less salary or remuneration than heretofore.
Compare the corresponding provision in the Local Government Act, 1888, s. 120, set out in the note to sub-section (7), infra.
(5.) Where a parish or rural sanitary district is divided by this Act, any officer for the parish or district so divided shall hold his office as such officer for each parish or district formed by the division, and his salary shall be borne by the respective parishes or districts in proportion to their rateable value at
the commencement of the local financial year next after SECT. 81. the passing of this Act.
Thus an assistant overseer for a divided parish will be assistant over
seer for each new parish formed by the division, and his salary will be
paid by the new parish in proportion to their rateable value.
(6.) So much of any enactment as authorises the Sub-sect. (6). appointment of assistant overseers by a board of guardians
shall be repealed as from the appointed day.
This, in effect, repeals the provisions of 7 & 8 Vict. c. 101, s. 61, relating to the appointment of assistant overseers by guardians. the express repeal in Schedule II., post.
(7.) Section one hundred and twenty of the Local Sub-sect. (7). Government Act, 1888, which relates to compensation to 51 & 52 Vict. existing officers, shall apply in the case of existing officers affected by this Act, whether officers above in this section mentioned or not, as if references in that section to the county council were references to the parish council, or the district council, or board of guardians or other authority whose officer the person affected is when the claim for compensation arises as the case may require. Provided that all expenses incurred by a district council in pursuance of this section shall be paid as general expenses of the council, and any expenses incurred by a board of guardians in pursuance of this section shall be paid out of their common fund, and any expenses incurred by any other authority in pursuance of this section shall be paid out of the fund applicable to payment of the salary of the offices affected.
COMPENSATION TO EXISTING OFFICERS.-An officer means a person holding any place, situation, or employment; "existing" means existing at the appointed day. See Local Government Act, 1888, s. 100, and ante, section 75, sub-section (1).
Section 120 of the Local Government Act, 1888, which is here applied, provides as follows :—
"(1.) Every existing officer declared by this Act to be entitled to com
pensation and every other existing officer whether before men-
council to whom the powers of the authority whose officer he was are transferred under this Act, regard being had to the conditions on which his appointment was made, to the nature of his office or employment, to the duration of his service, to any additional emoluments which he acquires by virtue of this Act or of anything done in pursuance of or in consequence of this Act, and to the emoluments which he might have acquired if he had not refused to accept any office offered by any council or other body acting under this Act, and to all the other cir cumstances of the case, and the compensation shall not exceed the amount which, under the Acts and rules relating to Her Majesty's Civil Service, is paid to a person on abolition of office.
"(2.) Every person who is entitled to compensation as above-mentioned shall deliver to the county council a claim under his hand setting forth the whole amount received and expended by him or his predecessors in office in every year during the period of five years next before the passing of this Act on account of the emoluments for which he claims compensation distinguishing the offices in respect of which the same have been received and accompanied by a statutory declaration under the Statutory Declaration Act, 1833, that the same is a true statement according to the best of his knowledge, infor mation, and belief.
“(3.) Such statement shall be submitted to the county council, who shall forthwith take the same into consideration, and assess the
just amount of compensation (if any) and shall forthwith inform the claimant of their decision.
“(4.) If a claimant is aggrieved by the refusal of the county council to grant any compensation or by the amount of compensation assessed or if not less than one-third of the members of such council subscribe a protest against the amount of the compensation as being excessive the claimant or any subscriber to such protest (as the case may be) may within three months after the decision of the council appeal to the Treasury, who shall consider the case and determine whether any compensation, and if so what amount ought to be granted to the claimant and such determination shall be final.
“(5.) Any claimant under this section, if so required by any member of the county council, shall attend at a meeting of the council and answer upon oath which any justice present may administer all questions asked by any member of the council touching the matters set forth in his claim, and shall further produce all books, papers, and documents in his possession or under his control relating to such claim.
"(6.) The sum payable as compensation to any person in pursuance of this section shall commence to be payable at the date fixed by the council on granting the compensation, or, in case of appeal, by
the Treasury, and shall be a specialty debt due to him from the SECT. 81. county council and may be enforced accordingly in like manner as if the council had entered into a bond to pay the same. "(7.) If a person receiving compensation in pursuance of this section is appointed to any office under the same or any other county council or by virtue of this Act or anything done in pursuance of or in consequence of this Act receives any increase of emoluments of the office held by him he shall not while receiving the emoluments of that office receive any greater amount of his compensation, if any, than, with the emoluments of the said office, is equal to the emoluments for which compensation was granted to him and if the emoluments of the office he holds are equal to or greater than the emoluments for which compensation was granted his compensation shall be suspended while he holds such office.
"(8.) All expenses incurred by a county council in pursuance of this section shall be paid out of the county fund as a payment for general county purposes."
It will be observed that, under the section above set out, in fixing the amount of compensation regard must be had to the following considerations :—
1. The direct pecuniary loss which the officer suffers.
2. The conditions of his appointment, e.g., whether it is for life or for a fixed term, or at pleasure. On this subject reference may be made to R. v. Norwich (Mayor &c., of), 8 A. & E. 633, as showing that, although an office may be held during pleasure, the authority assessing compensation is not bound to consider only the legal tenure, but may, under certain circumstances, award compensation as for an office held for life.
3. The nature of his office, i.e., whether it is an important or subordinate one.
4. The duration of his service.
5. Any additional emoluments which he acquires under the Act which alters his position by the abolition of his office or diminution of his salary.
6. Any emoluments which he might have acquired if he had not refused to accept a new office.
7. All the other circumstances of the case.
The Civil Service scale is regulated by the Superannuation Acts, 1859 (22 Vict. c. 26) and 1884 (47 & 48 Vict. c. 57). The compensation allowance is not to exceed two-thirds of the salary and emoluments of the office; subject to this ten-sixtieths of the salary and emoluments may be allowed to a person who has served ten years or upwards and an addition of one-sixtieth may be made for every year over ten up to forty years.
It should be noticed also that a claimant for compensation must deliver his claim to the particular body to whom the powers of the authority whose officer he was are transferred, and his claim must state