Local

boards to provide offices for

and cause a

seal to be

made.

be appointed to be chairman for the period during which the person so dying, resigning, or becoming incapable would have been entitled to continue in office, and no longer;

And the chairman at any meeting shall have a second or casting vote in case of an equality of votes ;

But nothing herein contained with respect to the appointment of chairman shall apply to any district to be called the "Oxford or Cambridge district," and in such districts the Oxford or Cambridge commissioners respectively shall appoint a chairman as heretofore.

XXXV. And be it enacted, that the local board of health shall from time to time provide and maintain such offices as transacting may be necessary for transacting their business and that of business, their officers and servants under this Act, and (a) (in case of a non-corporate district) shall cause to be made a seal for the use of such board in the execution of this Act; And documents or copies of documents purporting to proceed from the said local board, and to be signed by any five or more members thereof, and to be sealed or stamped with such seal, or (in the case of a corporate district) to be sealed with the common seal (b), shall be received as primá facie evidence in all courts and places whatsoever.

Non-corpo

rate districts

(a) The 29 & 30 Vict. c. 90, s. 46, has made all Local Boards corpoincorporated. rate. It enacts that Local Boards, if not already incorporated, shall be bodies corporate, designated by such names as they may usually bear or adopt, with power to sue, and be sued in such names, and to hold lands for the purposes of the several acts conferring powers on such bodies in their character of Local Board.

The clause does not give them a common seal, but the clause in the text does so.

The term Non-Corporate District, has however, a peculiar meaning in this Act as appears by the definition of those words in the second section, ante; and though the board are now incorporated, they still remain the Board of a Non-Corporate District.

(b) See further sect. 149, post, and 21 & 22 Vict. c. 98, s. 61, post. In the case of a corporate district it is presumed that the seal will suffice, though there is some ambiguity in the clause, and it will be better that such documents or copies should also be signed by five members of the Board, at the same time it must be observed that the provision in sect. 149 leads to an inference that such signature is not absolutely necessary. As to proof of documents under seal, see stat. 8 & 9 Vict. c. 113, ss. 1,4.

may be

XXXVI. And be it enacted, that the local board of health Committees may from time to time appoint out of their own number so appointed. many persons as they may think fit, for any purposes which in the opinion of the said local board would be better regulated and managed by means of a committee:

Provided always, that the acts of every such committee shall be submitted to the said local board for their approval (c).

local board

XXXVII. And be it enacted, that the local board of Powers to health shall from time to time appoint (d) fit and proper (e) to appoint persons to be surveyor, inspector of nuisances, clerk, and surveyor, treasurer for the purposes of this Act, and shall appoint or employ such collectors and other officers and servants as may be necessary and proper for the efficient execution of

inspector of nuisances,

clerk

treasurer,&c.

(c) In many cases the approval takes the shape of confirmation or Acts of comratification, as the committees are often called upon to act before the mittees. approval of the Local Board can be obtained. The clause itself refers to the management by the committee, which would be inoperative if the committee could not act until the approval of the board had been obtained. See the note on sect. 149, post, as to the mode in which the Board may give their approval.

(d) The appointment of the above-mentioned officer appears to be Mode of appointment of complete by election, and no document in writing is required. See Smart officers. v. Guardians of West Ham Union, 10 Exc. 867; 11 Exc. 867; Q. v. Greene, 17 Q. B. 793. Roberts, appt., Drewitt, resp., 18 C. B. (N. s.) 48; and in Smith v. Hirst, 23 L. T. 665, it was held that it need not be under the hands and seal of the board or of five members thereof. It will be seen in sect. 40, that, as regards the officer of health, the case is different. According to sect. 151, post, every appointment by the Local Board is free from stamp duty.

Proof of the appointment of the officer where express proof is required may be supplied by the production of the Minutes of the Board containing an entry of the appointment.

The Local Board will do well to consult the Minute of Instructions published by the late General Board of Health with reference to the powers and duties of the officers of the Local Board.

(e) The statute does not require any particular qualification for Qualification these officers, but generally it is found most appropriate to select an attorney for the clerk, and an engineer or professional surveyor for the surveyor. The legality of the appointment of the superior officers may perhaps be tried in a quo warranto information. Q. v. Guardians of St. Martin-in-the-Fields, 17 Q. B. 149. See however, Darley v. The Queen, 12 Cl. & F. 520, as to whether these offices are of sufficient dignity to be the subject of such an information.

In Smith v. Hirst, ubi supra, it was held that the title of persons acting as such officers cannot be questioned by third persons

Same person may be sur veyor and inspector of nuisances,

but not clerk and trea

surer.

Recovery of salaries.

this Act, and shall make byelaws (d) for regulating the duties and conduct of the several officers and servants so appointed or employed;—

And the said local board may pay (e), out of the general district rates to be levied under this Act, to such officers and servants, such reasonable salaries, wages, or allowances as the said local board may think proper;

And every such officer and servant shall be removable by the said local board at their pleasure, [subject nevertheless, in the case of the removal of the surveyor, to the approval of the general board of health (f):]

Provided always, that the same person may be both surveyor and inspector of nuisances;

But neither the person holding the office of treasurer, nor his partner, nor any person in the service or employ of them or either of them, shall hold, be eligible to (g), or shall in any manner assist or officiate in the office of clerk;

And neither the person holding the office of clerk, nor his partner, nor any person in the service or employ of them

(d) See sect. 115, post, for the provisions relating to byelaws.

In regard to the recovery of their salaries by officers of the local board, it has been generally considered that the only remedy was a writ of mandamus directed to the board, or an action on the case against the treasurer or other officer, alleging that he had the funds to pay the salary, but had neglected or refused to pay the same. It had been held that no action would lie agaiust the board directly for the salary, (see Bogg v. Pearse, 10 C. B. 534; Addison v. The Mayor of Preston, 12 C. B. 108; Smart v. West Ham Union, 24 L. J. R. Exc. 201,) though a contract under seal might have made a difference; but the late case of Hall v. Taylor, 22 Jur. 877; 27 L. J. R., Q. B. 311, shows that where a local board is empowered to pay the salary out of the rates leviable by them, an action of debt for the amount may be maintained by the officer against the board. At the same time the judgment can seldom be enforced otherwise than by mandamus. See sect. 138, post. (f) No such approval is now required. See 21 & 22 Vict. c. 98, s. 8, post.

(g) The object of this prohibition, which is common in local Acts, appears to be to prevent the clerk who represents the board from holding their money, and thus to create a check upon the two officers. The clerk cannot deal with the money of the board because he does not hold it, and the treasurer must hold it until the clerk, under the direction of the board, gives him the authority to pay it away.

or either of them, shall hold, be eligible to, or shall in any manner assist or officiate in the office of treasurer;

And whosoever offends in any of the cases enumerated in this proviso shall forfeit and pay the sum of one hundred pounds, which may be recovered by any person, with full costs of suit, by action of debt (h).

upon

interested in

XXXVIII. And be it enacted, that no officer or servant Penalty appointed or employed by or under the local board of health officers, &c. shall in anywise be concerned or interested in any bargain or contracts or contract (i) made with such board for the purposes of this Act;

And if any such officer or servant be so concerned or interested, or shall under colour of his office or employment, exact, take, or accept any fee or reward whatsoever, other than his proper salary, wages, and allowances (j), he shall be incapable of afterwards holding or continuing in any office or employment under this Act, and shall forfeit and pay the sum of fifty pounds, which may be recovered by any person, with full costs of suit, by action of debt (k).

(h) See sect. 133, post, as to the recovery of these penalties.

(i) See sect. 19, ante, as to the meaning of this word. Sect. 25 of 21 & 22 Vict. c. 98, which applies to the disqualifications of members engaged in certain contracts, does not refer to this clause.

taking fees improperly.

for official

(j) It is probable that this provision was intended to apply to other Gratnities persons than the local board, and to be levelled at the practice of de- and demands manding fees from persons seeking aid from the board, or exposed to fees. proceedings by them. But the language is sufficiently general to prevent the officer receiving gratuities for extra services rendered to the board. The case of Ex parte Mellish, 8 L. T. (N. s.) 47, shows that gratuities to officers paid out of the rates are not lawful, and may be disallowed at the audit. It is to be observed that the statute applies to demands made under colour of the office, and therefore not to claims where the officer acts and makes a demand for services which he renders independently of his office. Thus the clerk may charge professionally for contracts prepared for contractors if they think proper to employ him. Perhaps also the surveyor may not be prevented from acting professionally for persons within the district, but such conduct may lead to a mischievous result.

(k) See sect. 133, post, as to the recovery of penalties.

Officers, &c. intrusted

with money

to give secu

acount.

XXXIX. And be it enacted, that before any such officer

or servant enters upon any office or employment under this rity, and to Act by reason whereof he will or may be intrusted with the custody or control of money, the local board of health by whom he is appointed shall require and take from him sufficient security (1) for the faithful execution of such office or employment, and for duly accounting for all monies which may be intrusted to him by reason thereof;

Securities of the officers.

Stamp duty.

And every such officer or servant employed in the collection of rates under the authority of this Act shall (m), within seven days after he shall have received any monies on account of such rates, pay over the same to the treasurer, and shall, as and when the said local board may direct, deliver a list, signed by him, containing the names of all persons who have neglected or refused to pay any such rate, and the sums repectively due from (n) them;

(1) The local board must determine for themselves what security they will deem sufficient. Generally the security given by collectors is a bond with two sureties. There are now several guarantee societies who will undertake to guarantee the fidelity of these officers; but there are usually many conditions imposed in their policies, the neglect of which invalidates the security, and the omission is seldom discovered until the security is attempted to be enforced. Moreover, they are generally determinable upon notice by the company; so that the security may fail at the time when the necessity for it becomes most urgent. The statute 30 & 31 Vict. c. 108, which provides for companies to guarantee public officers does not, as it seems, apply to these officers.

Sect. 151, post, exempts the bond or security given on behalf of the officer from stamp duty.

In regard to the terms of the condition, it should be made to be operative, notwithstanding the change of tenure of the office or alteration of the salary in amount or mode of payment, the change of district, or the imposition of new duties upon the officer by subsequent legislation, as these contingencies if not provided against, may destroy the liability of the sureties. But the omission of the local board to carry out the regulations which follow will not, it is presumed, release the sureties.

(m) This is a very precise direction, but one not very easy to be carried out universally. The local board should, however, pay great atention to it. More confidence can be felt as to the due collection from a strict observance of this provision than from any amount or kind of security. (n) The local board should require an account of the collection and deposit of the rates to be laid before them at short intervals.