Disqualifications for being Councillor.

12. (1.) A person shall be disqualified for being elected and for being a councillor, if and while he

(a.) Is an elective auditor or a revising assessor, or holds any office or place of profit, other than that of

mayor or sheriff, in the gift or disposal of the council;1 or

(b.) Is in holy orders, or the regular minister of a dissenting congregation;2 or

(c) Has directly or indirectly, by himself or his partner, any share or interest in any contract or employment with, by, or on behalf of the council:3

(2.) But a person shall not be so disqualified, or be deemed to have any share or interest in such a contract or employment, by reason only of his having any share or interest in

(a.) Any lease, sale, or purchase of land, or any agreement for the same; or

(b.) Any agreement for the loan of money, or any security for the payment of money only; or (c.) Any newspaper in which any advertisement relating to the affairs of the borough or council is inserted;

or

(d.) Any company which contracts with the council for lighting or supplying with water or insuring against fire any part of the borough ; or

(e.) Any railway company, or any company incorporated by Act of Parliament or Royal charter, or under the Companies Act, 1862.

1 As to elective auditors, and revising assessors, see secs. 25, 29 and 62. A person is not eligible as an elective auditor, or revising assessor unless he is qualified to be a councillor, and is not a member of the council. The council are to appoint a fit person, "not a member of the council" as town clerk, (sec. 17 (1). Sec. 18 (1), has a similar provision with reference to the treasurer; and secs. 171 & 172, with reference to the offices of coroner and deputy coroner. A person whilst a member of the council cannot therefore be placed in the office of elective auditor, revising assessor, town clerk, treasurer, coroner, or deputy coroner. With regard to the office of clerk to the borough justices, sec. 159 (2) provides that the borough justices shall not appoint or continue as their clerk an alderman or councillor of the borough.

2 As to the relinquishment of "holy orders,” sec. 33 & 34 Vict., c. 91, and Schedule 9, Part II. to this Act.

With regard to the term "regular minister," see R. v. Oldham, L. R., 4 Q. B. 290. A. was asked in September, 1867, to become the minister of a congregation at P., and had refused. He subsequently preached every Sunday, from the 25th March to 24th June, 1878, and had agreed to do so for the rest of the year. Held that he was not the regular minister of a dissenting congregation.

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Blackburn, J. If a salary had been shown to have been received, or if there had been anything in the nature of a contract, that would have gone to show that he was the regular minister. Mellor, J. It appears to me that the legislature had an object in view in using the word "regular," and that disqualification was not intended to apply to a person occasionally preaching, but to a person who is appointed to be the minister of a particular congregation, and not merely asked temporarily to hold the office.

3 The provision in 5 & 6 Wm. 4, c. 76 s. 28, as to disqualification by interest in contracts or employment, was as follows:-" Nor shall any person be qualified to be elected or to be a councillor of any such borough, or an alderman of any such borough during such time as he shall have, directly or indirectly, by himself or his partner, any share or interest in any contract or employment with, by, or on behalf of such council."

In Lewis v. Carr, L. R., 1 Ex. D. 484; 46 L. J., Ex. D. 314; 36 L. T., N. S. 44; C., who was a tallow-chandler, in the year 1874, whilst holding the office of alderman of the borough, had sold goods on several occasions to the corporation on orders drawn up by the waterworks committee of the council and approved by the council, and sent by them to C.'s place of business. Payment was made at intervals by orders signed by three members of the council, and countersigned by the town clerk. In May, 1875, C. acted on five several occasions as alderman, and it was sought to recover from him five penalties of £50 each for so acting. At the time C. so acted, all the goods that had been supplied by him to the council had been paid for, and there were no outstanding transactions between them. It was held that the disqualification of C. was temporary only, and limited to the time during which his interest in these contracts continued. He was not charged with acting during the continuance of the contract, and he had not incurred any penalty by acting afterwards. Amphlett, B. If a person is interested in a contract at the time of the election he is not qualified to be elected as councillor or alderman; and if a person after election becomes interested in a contract, he is not qualified to be a councillor or alderman during such time as he shall be so interested in the contract. He is not, during that time, qualified de jure to act or be a councillor or alderman, and therefore might be removed by a quo warranto.

The cases of R. v. Francis, Fletcher v. Hudson, Woolley v. Kay, and Nicholson v. Fields, bear on the question as to what is to be regarded as a contract. In R. v. Francis, 18 Q. B. 526; 21 L. J., Q. B. 304; 16 Jur., 1046, it appeared that F., at the request of the mayor and town clerk, in 1843, undertook to collect, arrange, and bind the books, &c., of the corporation. The remuneration was not fixed, but in 1849 F., while still engaged in the undertaking, agreed to complete it for £150 as the amount of his actual disbursements and expenses. The offer was accepted by the town council, and a minute was made of a resolution by them to that effect, but the corporate seal was not affixed to the resolution or any minute of it, and no contract under the corporate seal was entered into between the corporation and F. In July, 1849, he received £50 on account, and in November, 1849, he was re-elected a councillor of the borough. He received no payment after that in July, 1849, and had not proceeded with his undertaking after his election. It was held, however, that there was a contract, and that F. was disqualified.

In Fletcher v. Hudson, L. R., 7 Q. B. D. 611; 51 L. J., Q. B. D. 48; 46, L. T., N.S. 125; an hotel keeper received in March, 1879, £9 19s. 6d. from the local board, of which he was a member, to reimburse him for work done by him in 1877 and 1878 for the surveyor of the the board. He did the work, not by any arrangement expressed or implied with the local board, but at the request of the surveyor, because the surveyor was unable to get the work done by anyone else in the time, and delay would have occasioned great expense. It was stated that he made no profit out of the transaction. The last item in the account, which was paid in March, 1879, was dated 16th March, 1878. By the Public Health Act, 1875, 38 & 39 Vict., c. 55, any member of a local board who "in any manner is concerned in any

bargain or contract entered into by such board," shall cease to be such member, It was held that there was ample evidence of a contract with the local board in 1878 for the work which was then done and of the defendant being concerned in the contract.

In Nicholson v. Field, 7 H. & N. 810; 31 L. J., Ex. 233, F. was a commissioner under a local Act, which provided that a person who after his appointment as a commissioner, should be concerned or participate in any manner in any contract, should thenceforth cease to be a commissioner. It was proved by the minute book of the commissioners, and the production of bills signed by F., that in August, 1859, F. was paid by the commissioners £5 135. Id. for timber supplied by him to the commissioners in 1858 and 1859. In November, 1859, he received a further sum of £2 Is., and in May He also sent to the commissioners an invoice for 4s., 1860, £2 19s. 1od. for lime supplied on 30th March, 16th May, 17th July, and 17th August, 1860. The course of business was for the surveyor of the commissioners to order the materials, and the production of the invoice with the defendant's signature at the bottom was warrant for payment. It was held that F., by being concerned in a contract had become disqualified, and that the invoice for the 45. for the lime was evidence from which the jury might find that the defendant was concerned or participated in a contract within the meaning of the Act. Pollock C. B.: This case differs from Woolley v. Kay, 1 H. & N. 307; 25 L. J., Ex. 351, where some members of the court expressed an opinion that a mere casual buying and selling, as, for instance, going into a shop, and buying an article, and paying for it over the counter, would not be a contract or bargain for furnishing, supplying, or selling an article, so as to render the party liable to a penalty if he continued to act as a commissioner. Here there were several invoices, one of them showing a dealing which extended over four months. The amount is trifling, but that is immaterial, for it was intended that every description of dealing by the commissioners should be put an end to so far as legislation could do it, and that the party to a contract should be rendered incapable of exercising the office of commissioner-in other words of dealing with himself. Martin, B.: A case was put of the commissioners buying some trifling article at a shop kept by one commissioner, and paying for it over the It seems to me that this is not a contract within the statute, but I am by no means prepared to say that if articles were to be supplied from time to The buying a pennyworth of time on credit, there would not be a contract. nails may not be a contract, but that is different from supplying lime on credit. Here there was evidence of a continuous dealing and supplying on credit of an article which the commissioners must buy.

counter.

As to the nature of the interest in a contract which disqualifies, see Le Feuvre v. Lankester, 3 E. & B. 530; 23 L. J., Q. B. 254; 18 Jur., 894. In that case it appeared that the town council, as the local board of health, ordered certain works to be done, in the course of which it was necessary to erect some lamps The superintendent of the works and a considerable quantity of iron railing. ordered this iron work at a foundry belonging to an alderman of the borough and his partner (Messrs. Lankester), and they supplied it. The greater part of the work was let to contractors who were to supply the iron work, and it was the contractors who paid Messrs. Lankester for this part of the iron. A few small articles were for extra work not included in the contract, and for these the town council or local board of health paid Messrs. Lankester direct. It did not appear that, at the time the goods were supplied, Messrs. Lankester were aware that any part consisted of extras. It was held that this was not an interest in a contract which disqualified. Coleridge, J. In the present case, all that is asserted is that the defendant, in the course of his trade, sold certain iron work There is no attempt to show which was used in carrying out the contract. fraud or any previous concert between the defendant and the contractor by which the defendant was to have the benefit of the contractor's custom. This gives the defendant no share or interest in the contract, the existence of which neither affects the price of his goods nor the manner in which he is to be paid for them.

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In a case, however, where a Turnpike Act contained a clause prohibiting any trustee from having any share or interest in or being in any manner directly or indirectly concerned in any contract or bargain for making or repairing or in any way relating to the road for which he acts, and from letting out any waggon, horse, &c., for the use of the road, and a trustee of the road let his horse and cart for a certain sum to a contractor for works on the road, to be used in the performance of the works, the defendant was held liable to the penalty. Towsey v. White, 5 B. & C. 125.

In West v. Andrews, 5 B. & Al. 328, the proceedings were taken under sec. 6 of the 55 Geo. 3, which rendered liable to a penalty any person in whose hands the managment, control, or direction of the poor was placed who either in his own name, or in the name of any other person, provided, furnished or supplied for his own profit any goods, materials, or provisions for the support and maintenance of the poor of the parish for which he retained his appointment, or was concerned directly or indirectly in supplying the same, or in any contract or contracts relating thereto, and a guardian having sold five live sheep to the person who had the contract for the supply of meat, &c., for the poor, it was held that the case fell both within the words and spirit of the Act. See also Pope v. Backhouse, 8 Taunt., 239; Baker v. Waite, 1 A. & E. 514, and Davies v. Harvey, 43 L. J., M. C. 121; 30 L. T., N.S. 629, as to penalties on guardians supplying goods and materials, and Tanfield v. Reynol is 39 J. P. 293, as to disqualification of member of school board by being concerned in a contract or bargain with the school board.

As to other disqualifications, see sec. 79 as to disqualification for corrupt practices in a municipal election.

With regard to disqualifications from "corrupt practices" at parliamentary elections, see Parliamentary Elections Act, 1868 (31 & 32 Vict., c. 125, ss. 43, 45 and 47.) Where by the report upon an election petition it is found that bribery has been committed by or with the knowledge and consent of any candidate at a parliamentary election, such candidate is incapable, during the seven years next after the date of his being found guilty, of holding any municipal office. A person, other than a candidate, found guilty of bribery in any proceeding in which after notice of the charge he has had an opportunity of being heard is during the seven years, next after the time of his being so found guilty, incapable of holding any "municipal office." If the witnesses or any of them on whose testimony a person has become disqualified are on the prosecution of such person convicted of perjury in respect of their testimony, the court may order that the disqualification shall cease.

Any person who at the election of any member of a school board, or any officer appointed for the purpose of that election, is guilty of corrupt practices (corrupt practices including all bribery, treating and undue influence which under any Act relating to a parliamentary election renders such election void), is, on conviction of the offence, disqualified for the term of six years after such election from holding any municipal office. (33 & 34 Vict., c. 75, s. 91; 36 & 37 Vict., c. 86, s 8).

By the 33 & 34 Vict., c. 23, s. 2, it is provided that if any person holding any office in any corporation, is convicted of treason or felony for which he shall be sentenced to death or penal servitude, or any term of imprisonment with hard labour, or exceeding twelve months, his office shall forthwith become vacant, unless he receives a free pardon within two months after conviction, or before the filling up of the office if given at a later period.

The recorder of a borough is not eligible as a councillor during the tenure of his office, see sec. 163 (6).

For penalty on person acting as councillor after becoming disqualified, see sec. 41. As to avoidance of office by bankruptcy or absence. see sec. 39; and as to validity of acts done notwithstanding disqualification, secs. 42 and also sec. 102, which refers to the case of a candidate, who has been elected to a corporate office, being declared by an election court or the high court not to have been duly elected.

When a councillor is alleged to have become disqualified under this section, and the office is de facto full, the title to the office is to be determined by quo warranto before there can be an election to fill the vacancy. (See R. v. Phippen and Ricketts, 7 A. & E. 966, and R. v. Ricketts, 7 L. J., Q. B. 71, in note (1) to sec. II).

A member of the council is not, however, to vote or take part in the discussion of any matter before the council or a committee in which he has, directly or indirectly, by himself or by his partner, any pecuniary interest. See sec. 22 (3).

5 In Le Feuvre v. Lankester, 3 E. & B. 530; 23 L. J., Q. B. 254; 18 Jur., 894, L. contracted to construct some waterworks or commissioners for supplying the town of S. with water. The contract not having been fully carried out he gave it up by deed to the commissioners, they agreeing to pay him a certain balance if they abandoned the works, or completed them and obtained a specified quantity of water. The deed contained releases on each side, and covenants by L. not to molest the commissioners, that he had not injured the title, and for further assurance. The town council, as the local board, were afterwards constituted the commissioners. The works remained incomplete, but not abandoned, while L. was alderman, and also while he was mayor. It was held that this contract came within the exceptions as a "security for the payment of money only."

Term of Office and Rotation of Councillors.

13. (1.) The term of office of a councillor shall be three years.

(2.) On the ordinary day of election of councillors in every year one-third of the whole number of councillors for the borough or for the ward, as the case may be, shall go out of office, and their places shall be filled by election.

(3.) The third to go out shall be the councillors who have been longest in office without re-election.

The mayor and aldermen during their respective offices continue to be members of the council, notwithstanding the provision in this section as to councillors going out of office at the end of three years. (Sec. 38).

As to "the ordinary day of election of councillors," see sec. 52.

In the case of a new borough the years, days and times for the retirement of the first councillors may be fixed by the charter. (Sec. 212).

A councillor going out of office is re-eligible unless disqualified to hold the office. (Sec. 37).

As to the tenure of office by a person elected to fill a casual vacancy, see sec. 40.

For provisions as to the proceedings in the election of councillors, see secs. 50-59; and as to the obligation of a person elected councillor to accept office and make and subscribe declaration or pay fine, see sec. 34.

Number, Term of Office, and Rotation of Aldermen.

14. (1.) The aldermen shall be fit persons elected by the council.

(2.) The number of aldermen shall be one-third of the number of councillors.