CHAPTER VII.

Of Proceedings by Mandamus.

Chap. 7.

The proceedings by mandamus to compel the mayor to Proceedings by mandamus. insert a name on the burgess roll are regulated by the Municipal Corporations Act, 1882 (sects. 47 and 225). It remains, therefore, to consider proceedings by mandamus in other cases.

It is an incident to all corporations that they are liable to be visited; that is, that any irregularities which may arise in them from time to time may be inquired into and arrested by some competent authority.

In ecclesiastical corporations, for example, the ordinary is, by the canon law, the visitor. In eleemosynary lay corporations the founder, his heirs or assigns, are, at common law, the visitors. But in civil lay corporations, including municipal corporations, as their existence is derivable from the Crown, the power of visitation is vested therein. (See 3 Bl. Com. 480.)

This power of visitation in the Crown, in regard to municipal corporations, was exercised by the Court of Queen's Bench, and will henceforward be so by the Queen's Bench Division of the High Court of Justice, according to the rules of the common law (see Philips v. Bury, Ld. Raym. 8, by HOLT, C. J.; Bac. Abr. tit. Corporations (F.)); and it is chiefly exercised by means of the writ of mandamus, or of an information in the nature of a quo warranto.

A mandamus is a high prerogative writ, and is, in form, a command issuing in the Queen's name, directed to any person, or corporation, or inferior court of judicature, within the Crown's dominions, requiring them to do some particular thing therein specified, which appertains to

Chap. 7. their office and duty, and which the Court has previously Proceedings determined, or at least supposes, to be consonant to right by mandamus. and justice. (3 Bl. Com. 110.)

In its application, it may be considered as generally confined to cases where relief is required in respect of the infringement of some public right or duty, and where no effectual relief can be obtained in the ordinary course of an action at law. (Ib. And see the cases there cited.)

It would exceed the limits of this work to attempt to mention in detail all the cases in which it has been decided that a mandamus may be issued to a corporation. It may be sufficient to mention a few leading examples.

A mandamus will lie to compel a corporation to proceed to the election of corporate officers (see 45 & 46 Vict. c. 50, s. 70; R. v. London (Mayor), 1 T. R. 146; R. v. Leyland, 3 M. & S. 184; R. v. Norwich, 1 B. & Ad. 310); or the admission of a freeman (Bagg's case, 11 Rep. 94; Bac. Abr. tit. Mandamus (C. 1.) & (D.); or to restore any officer, such as recorder (Style, 452; Vent. 143, 153; 4 Burr. 1999), town-clerk (Noy, 78; Style, 457), or clerk of the peace (4 Mod. 31; Show. 282; 12 Mod. 13), or any member of the corporation who has been turned out, or disfranchised, or suspended. (Bac. Abr. ut supra; and (C. 3)).

It will lie also, by statute (45 & 46 Vict. c. 50, s. 47), as has been before stated, to insert the name of a person in the burgess list, whose claim has been rejected, or whose name has been expunged from the list. A party who applies for a mandamus under this statute must come prepared to prove his title in all respects; and the court will inquire into the goodness of the whole title and not merely into the points raised before the mayor on the revision. (R. v. Lichfield (Mayor, &c.), 2 Q. B. 693; 2 G. & D. 10.) It will not be sufficient for him to show that his name was improperly expunged by the mayor on a point as to which he had no jurisdiction. (R. v. Harwich (Mayor, &c.), 8 A. & E. 919; 1 P. & D. 134.)

Where the overseers of one of the parishes in a borough had omitted to make out a burgess list (under 5 & 6

INTRODUCTION.

Will. 4, c. 76, s. 15), so that there was no list before Chap. 7. the mayor at the revision court in which the name of a Proceedings claimant for that parish could be inserted; it was held by mandamus. that as the party had made a claim which had been rejected, the court had power to order his name to be inserted on the burgess roll. (R. v. Lichfield (Mayor, &c.), 1 Q. B. 453; 1 G. & D. 28.)

So where a burgess list was defective, but the mayor had treated it as valid by expunging a name therefrom, the party whose name was expunged was held to be entitled to a mandamus, and that the defectiveness of the list was no answer thereto. (R. v. Dover (Mayor, &c.), 11 Q. B. 260.) And so is a person who has been omitted from the burgess list because of his refusal to pay an illegal rate. (R. v. New Windsor (Mayor, &c.), 7 Q. B. 908.)

If the mayor does not show cause against the rule for a mandamus, the person on whose objection the name was expunged may do so. (R. v. Exeter (Mayor, &c.), L. R. 4 Q. B. 110, 114.)

The rule should follow the words of the Act: "to insert the name of A. B. upon the burgess roll." (R. v. Exeter (Mayor, &c.), L. R. 4 Q. B. 110, 114.)

In the case of a particular office, if it be already full by the possession of an officer de facto, a mandamus will not be granted to proceed to a new election until the person in possession has been ousted upon proceedings in quo warranto. (R. v. Bankes, 3 Burr. 1454; R. v. Cambridge, 4 Burr. 2011; R. v. Radford, 1 East, 80; R. v. Truro, 3 B. & A. 592. See also R. v. Derby (Councillors), 7 A. & E. 419; R. v. Hiorns, Id. 960. And see the next chapter.)

Thus, where a councillor had, during his term of office, been left off the burgess list by the overseers for alleged non-payment of rates, but continued to exercise the office, the court determined that they would not, on affidavit of these facts, issue a mandamus to the mayor to proceed to a new election, as the vacancy must be first ascertained by a judgment on a quo warranto information. (R. v. Phippen, 7 A. & E. 966; see also R. v. Winchester (Mayor, &c.), 7 A. & E. 215.)

Chap. 7. Where an election has in fact been held, although by an Proceedings erroneous construction of the Municipal Corporation Act, by mandamus. for one councillor only instead of two, the candidate who was second on the poll cannot have a mandamus to admit him to the office; his remedy is either by mandamus to hold a new election for a second councillor, or (if the office have been filled in the meantime) by a quo warranto. (R. v. Royle, H. T. 1855. Rawlinson's Corporation Acts, 6th Ed. p. 42, (n.) 3.)

But where the name of a councillor has been omitted from the burgess list, another councillor may be elected to supply his place (the proceedings being bond fide) though the former had not resigned nor been ousted on a quo warranto; so held on an application by him for a mandamus to restore him to his office. (R. v. Oxford (Mayor, &c.), 6 A. & E. 349.)

A mandamus will also lie to compel a corporation to fix their seal to a public document, to hold a court (3 Bl. Com. 110), or a meeting at which public business is to be transacted, such as the granting of corporate leases (Andr. 184; Barnard, 82;) or to a corporate officer, for the production, inspection, or delivery (see R. v. Greene, 6 A. & E. 549; R. v. Hopkins, 1 Q. B. 161) of public books and papers (Comb. 102; 2 Stra. 948; 2 Barnard, 235; 1 Bl. Rep. 50. See R. v. Greene; R. v. Hopkins, ut supra); the delivery of the corporate insignia (Exp. Downton (Mayor); Q. B. 14 J. P. 319), and in like cases.

As to a mandamus to the council to pay instalments on a bond given to secure compensation to an officer whose place was abolished by the Municipal Corporation Act (under sect. 67), see R. v. Poole (Mayor, &c.), 1 Q. B. 616; 1 G. & D. 728. See also R. v. Kendal, 1 Q. B. 386.

The time within which the application must be made is generally regulated by the practice of the court.

CHAPTER VIII.

Of Proceedings by Quo Warranto.

Chap. 8

A writ of quo warranto is in the nature of a writ of Proceedings by quo war. right for the Crown, against any one who claims or usurps ranto. any office, franchise, or liberty, to inquire by what warrant, or authority, he supports his claim, in order to determine the right. (3 Bl. Com. 262.)

The writ being a prerogative writ, and the proceedings thereon being attended with considerable delay, in order to render the remedy more speedy and available in the decision of corporation disputes between party and party, without any intervention of the prerogative, it was enacted by the 9 Anne, c. 20, that an information, in the nature of a quo warranto, might be brought with leave of the court, at the relation of any person desiring to prosecute the same, who is then styled the relator, against any person usurping, intruding into, or unlawfully holding any franchise or office in any borough corporate; and the statute provided for the speedy determination of the information, and directed that if the defendant be convicted, judgment of ouster, as well as fine, might be given against him, and that the relator should pay or receive costs according to the event of the suit. (See 3 Bl. Com. 264.)

In the case of a mayor, alderman, councillor, elective auditor, or revising assessor, the application must be made within twelve months after the election, or the disqualification, of the person against whom the application is made. (45 & 46 Vict. c. 50, s. 225.) But even though the application be made within the limited period, the court will not grant it as a matter of right, if it appears there has been an unreasonable delay in making the application. Thus, where a person was enrolled a burgess in November, and an application for a quo warranto was made on the last day

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