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the other matters therein contained, shall be of the same force as if they were enacted as part of this section (3)

(3.) The Education Department may, at any time after the date at which they are authorized under this Act to cause a school board to be formed, send a requisition to the mayor or other officer or officers who have power to take proceedings for holding the election requiring him or them to take such proceedings, and the mayor or other officer or officers shall comply with such requisition; and in case of default some person appointed by the Education Department may take such proceedings and shall have for that purpose the same powers as the person in default. (4)

(1) With regard to the election of a school board in the metropolis,

see sec. 37.

(2) In the case of the large majority of school boards, the number of members is five. There are some, however, with seven members, others with either nine or eleven, and a few with either thirteen or fifteen. Fifteen is the largest number, except in the case of the School Board for London. The general rule of the Education Department is that where the population is under five thousand the number of members shall be five; between five and ten thousand, seven; between ten and forty thousand, nine; between forty and seventy thousand, eleven; between seventy and a hundred thousand, thirteen; and in all larger districts, except London, fifteen.

The Education Department consider that an increase in the number of members of a school board can only be made at the triennial election, and have therefore declined to approve of a proposed increase when a triennial election has not been pending.

To meet the case of a reduction in the number of members, Rule 18 of the Second Schedule prescribes the mode by which it is to be determined what members shell retire.

(3) The provisions in the schedule referred to are in some particulars modified by sec. 6 of the 36 & 37 Vict., c. 86, and sec. 44 of the 39 & 40 Vict., c. 79, post, and the Schedules to those Acts.

(4) As to the powers of the Education Department to appoint or direct the appointment of officers for the purpose of the election of a school board, see 36 & 37 Vict., c. 86, Second Schedule, post.

Non-election, &c., of School Board.

32. If from any cause in any school district the school board either are not elected at the time fixed for the first election, or at any time cease to be in existence, or to be of sufficient number to form a quorum, by reason of nonelection, resignation, or otherwise, or neglect or refusal to

act, the Education Department may proceed in the same manner as if there were a school board acting in such district, and that board were a board in default.

See also Rule 16 in the Second Schedule as to the powers of the Education Department where the number of members of a school board is by any means reduced to less than the number required to form a quorum.

As to the proceedings which may be taken by the Education Department when the school board are in default, see secs. 63-66. Schedule 2, however, contains provisions by which the difficulty occasioned by the non-election of members may be met without the Education Department having recourse to those proceedings. If no members are elected at the time fixed for the first election, the Education Department may appoint another day for the election. If there is a failure to elect members at the time prescribed for the triennial election, the retiring members, or so many as are willing to serve, are to be deemed to be reelected, but if all the members refuse to serve, another day may be fixed for an election. If an insufficient number of members are elected, or if, in the case of no members being elected, some of the retiring members are and some are not willing to serve, the school board, so far as it is constituted, may elect a person to fill each vacancy.

If a casual vacancy occurs by death, resignation, disqualification, or otherwise, the vacancy may be filled up by the remaining members of the board, if a quorum (39 & 40 Vict., c. 79, sec. 44, and Schedule 3, post).

If the number of members is reduced to less than the number required for a quorum, the Education Department may direct an election to fill up the vacancies.

See note to sec. 66 as to cases in which the powers conferred by this section have been exercised by the Education Department.

Determination of Disputes as to the Election of School Boards.

33. In case any question arises as to the right of any person to act as a member of a school board under this Act, the Education Department may, if they think fit, inquire into the circumstances of the case, and make such order as they deem just for determining the question; and such order shall be final, unless removed by writ of certiorari during the term next after the making of such order.

This section is repealed by the Municipal Elections (Corrupt and Illegal Practices) Act, 1884 (47 & 48 Vict., c. 70), s. 38. See Appendix, p. 410. By sec. 36 of that Act the provisions of sec. 87 of the Municipal Corporations Act, 1882 (45 & 46 Vict., c. 50), are made applicable to school board elections. Under those provisions the election of a member of a school board may be questioned by an election petition on the ground (a) that the election was wholly avoided by general bribery, treat

ing, undue influence, or personation; or (b) that the election was avoided by corrupt practices or other offences committed at the election; or (c) that the person whose election is questioned was at the time of the election disqualified; or (d) that he was not duly elected by a majority of votes. The election of a member of a school board cannot be questioned on any of these grounds except by an election petition.

The 36 & 37 Vict., c. 86, by sec. 9, post, provides that the election of a member of a school board shall not be questioned except within six months after the declaration of the election. When an election is questioned on any of the grounds specified in sec. 87 of the Municipal Corporations Act, 1882, the provision referred to will not apply, and the petition must be presented within the time prescribed by sec. 25 of the Municipal Elections (Corrupt and Illegal Practices) Act. Rule 7 in Schedule 2, first part, post, provides that no election shall be questioned on the ground of the title of the returning officer or any person presiding at the poll, or any officer connected with the election. If an election is to be questioned on any ground other than those specified in sec. 87 of the Municipal Corporations Act, 1882, it is presumed that it would be by an information in the nature of a quo warranto.

It will be observed that the section which is repealed, although headed "determination of disputes as to the election of school boards," referred to "any question as to the right of any person to act as a member of a school board under this Act." It therefore extended to questions as to whether members had by reason of disqualification occurring after election lost their right to act as members of the board. These cases are not met by the enactments as to election petitions in the Municipal Corporations Act, 1882. As regards such cases the procedure by an information in the nature of a quo warranto would seem to apply. It is in the discretion of the Court whether they will grant a rule for a quo warranto (R. v. Trevennen, 2 B. & A. 479; R. v. Parry, 6 A. & E. 810; 2 N. & P. 414), and when an application for a quo warranto is contemplated, there should be no undue delay in applying to the Court.

Disqualification of Member of Board.

34. No member of a school board, and no manager appointed by them, shall hold or accept any place of profit the appointment to which is vested in the school board or in any managers appointed by them, nor shall in any way share or be concerned in the profits of any bargain or contract with or any work done under the authority of such school board or managers appointed by them: Provided that this section shall not apply to

(1.) Any sale of land or loan of money to a school board; or,

(2.) Any bargain or contract made with or work done by a company in which such member holds. shares;

(3.) The insertion of any advertisement relating to the affairs of any such school board in any news

paper in which such member has a share or

interest, if he does not vote with respect to such sale, loan, bargain, contract, work, or insertion.

Any person who acts in contravention of this section shall be liable, on summary conviction, to a penalty not exceeding 50%, and the said place of profit and his office as member or manager shall be vacant.

The only case which has come before the Courts as to the construction of this section is that of Tanfield (App.) v. Reynolds (Resp.), 39 J. P. 293. From the case which was stated for the opinion of the Court of Queen's Bench, it appeared that, at a petty sessions held at Dudley, an information was preferred by Thomas Reynolds against Doylah Tanfield, charging for that he, the said Doylah Tanfield, on the 23rd March, 1874, then being a member of the school board for the borough, unlawfully did share and was then concerned in the profits of a contract with the board for certain work done under the authority of the board-to wit, printing. Upon the hearing of the information it was proved on the part of the respondent, that for three years up to the month of January, 1874, the appellant (who was a printer in partnership with Orchard) was a member of the school board, and was a candidate for re-election at the triennial election of the board in that month, and was duly re-elected a member of the new board. Previous to the election, the appellant received from the mayor (who was the returning officer of the election) some of the orders for printing the necessary documents and forms required for the election, but none of the items in the appellant's accounts were ordered by the school board, nor did the school board exercise any control or authority over the returning officer with respect to the orders he gave, or in any way interfere with the giving of the orders. After the election the whole of the tradesmen's accounts were sent to the mayor, and were examined by the town clerk (including that of the appellant and Orchard his partner, amounting to 11. 85.), and they were afterwards forwarded to the school board, and were examined by the finance committee of the board, of which the appellant was a member, and were subsequently paid by cheques of the board on their treasurer out of the school fund. It was admitted by the appellant that he was in partnership with Orchard, and received a share of the profits on the account. The justices, at the hearing, convicted the defendant, and sentenced him to pay a fine of 5., and costs 17. 145. 6d., and in default to be imprisoned for one month. The question of law for the opinion of the Court of Queen's Bench was whether there was any evidence upon which the justices could find that the appellant had shared in the profits of a contract with or any work done under the authority of the school board, and the Court held that the evidence was quite sufficient to justify the conviction; and judgment was accordingly given for the respondent.

In connection with this case the question was raised in the Queen's Bench Division in April, 1877 (Reg. v. Dudley School Board), whether Mr. Tanfield under the circumstances stated had been guilty of corrupt practices under sec. 91 of this Act and sec. 8 of the 36 & 37 Vict., c. 86, post, so as to disqualify him for being a member of the school board for a term of six years. It appeared that Mr. Tanfield having been again elected a

member of the school board, the board passed a resolution declaring that in consequence of the conviction above referred to he was not qualified to act. A rule was then obtained on his behalf, calling upon the school board and the chairman of the board to show cause why a mandamus should not issue, commanding them to allow him to exercise the office of a member of the board. The Lord Chief Justice, when cause was shown against the rule, said that there was no connection between this section and the section imposing a disqualification for corrupt practices. It was clearly a case where zeal as to purity of election had outrun discretion. The Court made the rule absolute, suggesting that if the board paid Mr. Tanfield's costs, and allowed him to take his seat at the board, no proceedings should be taken on the mandamus.

In a case in which the Local Government Board were called upon to decide an appeal against the allowance by the auditor of a sum charged in the accounts of a school board as paid for four certificates of birth furnished to the school board by the superintendent registrar who was a member of the school board, it was contended that as, at the time of supplying the certificates, and at the date of payment, the superintendent registrar was a member of the school board, the payment was by operation of this section illegal. The board stated that they were of opinion that the section did not cover fees such as those paid in this case, but rather had reference to the profits of work voluntarily undertaken. It appeared to them that in such a case as that in question, there was no bargain or contract, and that the superintendent registrar could not refuse to give the certificates, which were obtained upon payment of fixed fees. The board accordingly held that the district auditor was right in allowing the charge.

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 150l. 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 by operation of the 5 & 6 Wm. 4. c. 76, sec. 28, which provided that a person should not be qualified to be elected or to be a councillor of a borough during such time as he should have directly or indirectly any share or interest in any contract or employment with, by, or on behalf of the council.

In Fletcher v. Hudson, L. R., 7 Q. B. D. 611; 51 L. J., Q. B. D. 48; 46 L. T., N.S., 125; 30 W. R., 349, an hotel keeper received in March, 1879, 9l. 195. 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 board. He did the work, not by any arrangement expressed or implied with the local board, but at the request of the surveyor, because

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