Declaration on Acceptance of Office.

35. A person elected to a corporate office shall not, until he has made and subscribed before two members of the council, or the town clerk, a declaration as in the Eighth Schedule, act in the office except in administering that declaration.

For definition of "corporate office" see sec. 7.

When the declaration prescribed by this section has been made and subscribed, the office becomes full de facto. R. v. Mayor of Winchester, 7 A. & E. 215; 6 L. J., Q. B. 213.

When the question of the qualification of a member was raised by quo warranto, it was necessary that it should clearly appear that the office was full de facto; but an election cannot now be questioned by a quo warranto when it may be questioned by a petition under sec. 87.

Where a person has been de facto elected to a corporate office, and has accepted and acted in the office, the election is not impeachable by mandamus. R. v. Mayor, &c. of Chester, 25 L. J., Q. B. 61; R. v. Mayor, &c. of Welshpool, 35 L. T., N.S. 598.

As to authority of members of the council to receive declaration, see sec. 239. Non-acceptance of office by a person elected creates a casual vacancy, see sec. 40 (3).

See also notes on sec. 34.

As to qualification by estate, see sec. II, 2 (c), and notes thereon.

Fine on Resignation, &c.

36.—(1.) A person elected to a corporate office may at any time, by writing signed by him and delivered to the town clerk, resign the office, on payment of the fine provided for non-acceptance thereof.

(2.) In any such case the council shall forthwith declare the office to be vacant, and signify the same by notice in writing, signed by three members of the council, and countersigned by the town clerk, and fixed on the town hall, and the office shall thereupon become vacant.

(3.) No person enabled by law to make an affirmation instead of taking an oath shall be liable to any fine for nonacceptance of office by reason of his refusal on conscientious grounds to take any oath or make any declaration required by this Act or to take on himself the duties of the office.

For definition of corporate office see sec. 7.

As to the fine for non-acceptance of office, see sec. 34.

See sec. 232, with reference to notices to be "fixed on the town hall." As to the resignation of a person after he has become disqualified under sec. 39, see Hardwick v. Brown, referred to in the notes on that section.

From R. v. Blizard, L. R., 2 Q. B. 55, it would appear that if a person elected and admitted to an office discovers that for want of qualification, or for other sufficient reason, he is not entitled to hold the office, and resigns it, this

resignation is sufficient, without other proceedings, to make way for a new election. See also R. v. May, 20 L. J., Q. B. 268.

No oath is now required to be taken by any person as a condition of accepting any office in a municipal corporation (31 & 32 Vict., c. 72, s. 12). As to affirmations in lieu of oath by Quakers, Moravians, and Separatists, see 3 & 4 Wm. 4, c. 49; 3 & 4 Wm. 4, c. 82; and 1 & 2 Vict., c. 77.

Re-eligibility of Office Holders.

37. A person ceasing to hold a corporate office shall, unless disqualified to hold the office, be re-eligible.

The offices referred to are those of mayor, alderman, councillor, elective auditor, and revising assessor. (Sec. 7.)

Mayor and Aldermen to continue Members of Council.

38. The mayor and aldermen shall, during their respective offices, continue to be members of the council, notwithstanding anything in this Act as to councillors going out of office at the end of three years.

For provision as to councillors going out of office at the end of three years, see sec. 13.

Avoidance of Office by Bankruptcy or Absence.

39.—(1.) If the mayor, or an alderman or councillor— (a.) Is declared bankrupt, or compounds by deed with his creditors, or makes an arrangement or composition with his creditors, under the Bankruptcy Act, 1869, by deed or otherwise; or

(b.) Is (except in case of illness) continuously absent from the borough, being mayor, for more than two months, or, being alderman or councillor, for more than six months:

he shall thereupon immediately become disqualified and shall cease to hold the office.

(2.) In any such event the council shall forthwith declare the office to be vacant, and signify the same by notice signed by three members of the council, and countersigned by the town clerk, and fixed on the town hall, and the office shall thereupon become vacant.

(3.) Where a person becomes so disqualified by being declared bankrupt, or compounding, or making an arrangement or composition, as aforesaid, the disqualification, as

regards subsequent elections, shall, in case of bankruptcy, cease on his obtaining his order of discharge, and shall, in case of a compounding or composition as aforesaid, cease on payment of his debts in full, and shall, in case of an arrangement as aforesaid, cease on his obtaining his certificate of discharge.

(4.) Where a person becomes so disqualified by absence, he shall be liable to the same fine as for non-acceptance of office, recoverable summarily, but the disqualification shall, as regards subsequent elections, cease on his return.

It will be observed that auditors and assessors are not specified in the section. In the memorandum which prefaced the Bill when brought in, it was stated that this clause as regards bankruptcy, composition, and arrangement was framed with reference to Hardwick v. Brown, L. R., 8 C. P. 406; 28 L. T., N.S. 502. In that case it appeared that B., whilst a councillor of the borough, filed a petition for the liquidation of his affairs by arrangement or composition under secs. 25 & 26 of the Bankruptcy Act, 1869. Resolutions were passed under sec. 126 for a composition of 35. 6d. in the pound. The confirming resolution was registered on the 23rd of September, 1872. In November, 1872, B. placed his resignation of his office in the hands of the town clerk, and two days afterwards, by advertisement, announced his resignation and offered himself for re-election. At the annual meeting on the 9th of November, the town council did not declare the office of B. void, but accepted his resignation. An election was held, and B. having a majority of votes, was declared elected. It was held that although the statutory avoidance of the office only arose upon the declaration thereof by the council, and due publication of the notice, B. was not capable of resigning his office after the composition with his creditors, and the election which proceeded upon the assumption that there had been a resignation of the office and an acceptance of such resignation by the council, was a void election. Further, as B. had not paid the amount of the composition, and his debts had not been paid in full he was not qualified to be re-elected.

See also R. v. Mayor, &c. of Leeds, 7 A. & E. 963, 2 Jur., 545, where an election of a councillor in the place of one who had become disqualified by bankruptcy was held to be void, as the council had not previously declared the office void, and signified the same by notice.

The requirements of the section must therefore be strictly complied with in order to render the office vacant before an election for filling a vacancy is proceeded with.

In Aslatt v. Corporation of Southampton, L. R., 16 C. D. 143; 50 L. J., (Ch.) 31; 43 L. T., N.S. 464, it appeared that A., an alderman, submitted to his creditors a proposition to pay 7s. 6d. in the pound on his debts, and this composition was accepted by a considerable number by circular and letter. He did not, however, execute any composition deed or take any composition proceedings whatever under the Bankruptcy Act, 1869, but he executed a bill of sale duly registered of his stock in trade and book debts to a stranger as security for the amount which he advanced for the payment of the composition. The mayor having called a meeting for the purpose of declaring A.'s office, as an alderman, void, "he having become disqualified to hold the same by reason of his having compounded and arranged with his creditors," an injunction was granted by the Master of the Rolls restraining the town council from proceeding under their notice, on the ground that A. had not compounded with his creditors by deed, and had not made any arrangement or composition with his creditors under the Bankruptcy Act, 1869.

With regard to notices to be fixed on the town hall, see sec. 232.

As to fine for non-acceptance of office, see sec. 34.

See also R. v Mayor, &c. of Welshpool, in note to sec. 56.

The qualification of a member of the council, when the disqualification is alleged to have arisen after the election may be questioned on quo warranto, as the question is not one which can be raised by an election petition under sec. 87.

Filling of Casual Vacancies.

40.-(1.) On a casual vacancy in a corporate office, an election shall be held by the same persons and in the same manner as an election to fill an ordinary vacancy; and the person elected shall hold the office until the time when the person in whose place he is elected would regularly have gone out of office, and he shall then go out of office.

(2.) In case of more than one casual vacancy in the office of councillor being filled at the same election, the councillor elected by the smallest number of votes shall be deemed to be elected in the place of him who would regularly have first gone out of office, and the councillor elected by the next smallest number of votes shall be deemed to be elected in the place of him who would regularly have next gone out of office, and so with respect to the others; and if there has not been a contested election, or if any doubt arises, the order of rotation shall be determined by the council.

(3.) Non-acceptance of office by a person elected creates a casual vacancy.

For definition of corporate office, see sec. 7.

As to election of mayor, on ordinary vacancy, see secs. 15 and 61, of alderman, secs. 14 and 60, of councillor, secs. 13, and 50-59, of elective auditors, secs. 25 and 62, of revising assessors, secs. 29 and 62.

It will be observed from sec. 66 that on a casual vacancy the election is to be held within fourteen days after notice in writing of the vacancy has been given to the mayor or town clerk by two burgesses. Where the office vacant is that of mayor, the notice of the meeting for the election is to be signed by the town clerk, and in other cases the day of election is to be fixed by the mayor.

Penalty on unqualified person acting in office.

41.-(1.) If any person acts in a corporate office without having made the declaration by this Act required, or without being qualified at the time of making the declaration, or after ceasing to be qualified, or after becoming disqualified, he shall for each offence be liable to a fine not exceeding fifty pounds, recoverable by action.1

(2.) A person being in fact enrolled in the burgess roll shall not be liable to a fine for acting in a corporate office

on the ground only that he was not entitled to be enrolled therein.2

1 For definition of ". corporate office," see sec. 7.

As to the declaration by this Act required, see sec. 35.

An action to recover a fine from a person for acting in a corporate office without having made the requisite declaration, or without being qualified, or after ceasing to be qualified, or after becoming disqualified, may not be brought except by a burgess of the borough, and will not lie, unless the plaintiff has, within fourteen days after the cause of action arose, served a notice in writing personally on the person liable to the fine of his intention to bring the action, nor unless the action is commenced within three months after the cause of action arose. See sec. 224.

The 6 & 7 Wm. 4, c. 104, s. 7, provided that no person enrolled in the burgess roll for the time being of any borough, &c., and who should act as mayor, alderman, &c., should be liable to a penalty for so acting, on the ground that "he was not entitled to be on the burgess list of such borough." It will be observed that the burgess roll and not the burgess list is now referred to, and the difficulty which arose as to the construction of the previous enactment is avoided.

2

If a burgess roll is not made in due time, the burgess roll in force before the time appointed for the revision is to continue in force until the new burgess roll is made. (Sec. 72 (2)).

Validity of acts done notwithstanding disqualification, &c.

42.-(1.) The acts and proceedings of a person in possession of a corporate office, and acting therein, shall, notwithstanding his disqualification or want of qualification, be as valid and effectual as if he had been qualified.

(2.) An election of a person to a corporate office shall not be liable to be questioned by reason of a defect in the title, or want of title, of the person before whom the election was had, if that person was then in actual possession of, or acting in, the office giving the right to preside at the election.

(3.) A burgess roll shall not be liable to be questioned by reason of a defect in the title, or want of title, of the mayor or any revising authority by whom it is revised, if he was then in actual possession and exercise of the office of mayor or revising authority.

See also the provision in sec 102 that where a candidate who has been elected to a corporate office is, by a certificate of an election court or a decision of the High Court declared not to have been duly elected, acts done by him in execution of the office before the time when the certificate or decision is certified to the town clerk, shall not be invalidated by reason of that declaration.

Duties of Town Clerk, Deputy, and Treasurer, during

vacancy or incapacity.

43. If there is no town clerk, and no deputy town clerk or there is no treasurer, or the town clerk, deputy town