SMYTH v. DARLEY. 1849. July 16, 17, 19, 27. WILLIAM SMYTH, Plaintiff in error. HENRY FARRAN DARLEY, Defendant in error. Corporation"Magistrate." Election. Summons. *789 Where certain acts of a corporation are to be performed at a special meeting of the members of that corporation, all the persons entitled to be present thereat must be summoned, if they are within a reasonable summoning distance. The omission to summon any one so entitled renders the acts done at such meeting, in his absence, invalid. A finding in a special verdict that a person entitled to be present at a special meeting of a corporate body was not summoned, and that he was at the time within summoning distance, throws on the party supporting the validity of the acts done at such meeting the onus of showing a sufficient cause for his not being summoned. The election of treasurer for the county of the city of Dublin was vested by the 49 Geo. III. c. 20, in the "Board of Magistrates of the county of the said city," and was directed to take place at the Sessions Court of the city, by vote of the magistrates there present. Held, that the Recorder of Dublin was a member of that board, and ought to have been summoned to a meeting of the magistrates summoned for that election, and that the omission to summon him rendered the election which took place in his absence invalid. IN this case an action of assumpsit had been brought in the Court of Queen's Bench in Dublin, by Smyth against Darley, to recover the money received by the latter while he held the office of treasurer of the county of the city of Dublin. Smyth alleged that Darley never was lawfully elected to the office; but that he, Smyth, was on the 21st of February, 1839, thereunto lawfully elected under the 49 Geo. III. c. 20,1 and that * Dar- * 790 1 By the third section of which it is enacted that "whenever the treasurership of the city of Dublin shall be vacant by the death, resignation, removal or dismis sion of the present or any future treasurer, the Lord Mayor of the said city for the time being shall, within twenty-one days after such vacancy, convene the Board of Magistrates of the county of the said city of Dublin, to meet at the Sessions House in the said city, between the hours of twelve in the forenoon and two in the afternoon, and then and there, by the majority of votes of such magistrates as shall be present, shall proceed to elect a fit and sufficient person to be treasurer of the said city of Dublin; and at such meeting the said Lord Mayor, or in his ley's possession of the office was a usurpation. Most of the facts out of which the contention between these parties arose were set forth in the report of the case of Darley v. The Queen. For the purpose of the discussion on the present writ of error, it is not necessary to repeat them; but the following facts, found in the special verdict settled in this case, are material. On the 31st of January, 1831, Darley obtained a rule for a mandamus to the Lord Mayor to summon a meeting of the magistrates in order to declare him (Darley) to have been duly elected on a previous day to the office of treasurer. That rule was not made absolute till the 12th June, 1839. In the mean time, namely, on the 21st February, 1839, the Lord Mayor, acting, as it was said, on the advice of counsel, treated the previous election as altogether void, and convened a meeting of the city magistrates to proceed to an election of treasurer, under the provisions of the 49 Geo. III. c. 20, as if the office was actually vacant. Before the year 1838, the Police Justices of the Dublin district had voted at the election of treasurer; but in that year a *791 statute had been passed (1 Vict. * c. 25) entitled, "An Act to make more efficient provisions relating to the Police in the district of Dublin metropolis," by which the jurisdiction of the Police Justices, known as Divisional or District Justices there, had been altered and limited, so that their jurisdiction no longer embraced the whole of the county of the city of Dublin, but was confined to a portion thereof. By this alteration it was deemed that their right to vote at the election of the treasurer was lost, and they were consequently not summoned to attend the meeting. No summons to attend the meeting of the 21st February, 1839, was issued to either of the sheriffs, or to the recorder of the Court, though all were within summoning distance. The sheriffs, however, attended, and tendered their votes, which were rejected. The recorder did not attend. Only fifteen aldermen out of the twenty-four were present. Darley caused a protest to be entered against this meeting for illegality in several respects, but took no further part in the proceedings. Smyth was consequently the only person who appeared as a candidate, and out of fifteen alder absence, the senior magistrate present, shall preside as chairman, and shall take the votes of the other magistrates, and shall not himself give his vote except in the case of equality of voices." 1 12 Clark & Finnelly, 520. men who did attend, the other nine, though summoned, being absent, he received the votes of fourteen. The mayor thereupon declared Smyth duly elected, and he and his two sureties immediately afterwards entered into recognizances as directed by the Act, 49 Geo. III. c. 20, and he was at once admitted by the mayor to exercise the office. On the 22d June, 1839, Darley, in obedience to the peremptory mandamus, issued in pursuance of the judgment delivered on the 12th of that month, was admitted to the possession of the office, Smyth being present, and formally protesting against his admission. On the 16th of November, 1839, one Robert Kinahan obtained leave to file a quo warranto against him, on *which judgment was given for the Crown.1 Darley * 792 brought that judgment by writ of error to this House, on the question whether such an office was by law the subject of a quo warranto, and the judgment of the Court below on that question was affirmed; 2 the result of which was that Darley was then completely ousted. As soon as that judgment of affirmance had been pronounced, this action was commenced to recover the amount of the fees and salary received by Darley between the 22d of June, 1839, and the ouster upon the judgment of this House in 1845. Smyth obtained a verdict; the facts were turned, as before stated, into a special verdict, on which Smyth obtained judgment in the Court of Queen's Bench in Ireland. Darley brought a writ of error in the Court of Exchequer Chamber there, and, by a majority of seven to four Judges, a reversal of that judgment was pronounced.3 Smyth then brought the present writ of error. There were several points raised for argument on the special verdict, but in the course of the discussion, the Lords intimated a wish that the arguments should be confined to the single point of the right of the recorder to be present at the election of treasurer. Mr. Napier and Mr. Fleming, for the plaintiff in error: The question in this case chiefly depends on the construction to be put on the words to be found in the third section of the 49 Geo. III. c. 20, which, providing for an election upon a vacancy 10 Irish Law Rep. 376. 13 Irish Law Rep. 334. 12 Clark & Finnelly, 520. of the office of treasurer of the city, declares that the Lord Mayor shall, within twenty-one days of such vacancy, "convene *793 the board of magistrates of the county of the said city of Dublin"; and "by the majority of the votes of such magistrates shall proceed to elect." What is the meaning of "the Board of Magistrates of the city of Dublin"? Is the recorder of Dublin a member of that board? It has never before been deemed necessary to summon him. In practice, therefore, his right has not been admitted, nor even claimed. The first important Act to be referred to is that of the 13 & 14 Geo. III. c. 18 (Ir.), which, referring to, and repealing the 33 Geo. II. c. 13 (Ir.), provides for the regulation of the election of the treasurer of a county, by declaring that he is to be elected by "the Justices." The county of the city. of Dublin is expressly included in this Act, and the form of the oath to be administered to a voter, at any such election, gives him the description, "a Justice." Now every magistrate is of necessity a Justice of the Peace, though every Justice is not necessarily a magistrate. Where the powers of a Justice are exercised as original and independent powers, the person so exercising them is a magistrate, and if he belonged to the corporation of Dublin, would be entitled to form one of its "Board of Magistrates." The aldermen of Dublin are in this situation. But where the powers of a Justice are not original, but are dependent on, or subordinate to, some other office, as in the case of the Recorder, he is not a magistrate within the meaning of the words of the Act. It is not the high rank of the officer that would give him the right to vote at the "Board of Magistrates" of the county of the city of Dublin; for there is no doubt that the Judges of the Court of Queen's Bench in Dublin are, in virtue of their high office, capable of acting as Justices in the city; but their authority in that respect being dependent on, or subordinate to, that of their office 794 of Justice of the Queen's Bench, they would have no right to sit at the" Board of Magistrates" of the city. Such a right must be inherent in the office itself, and not dependent on any thing else. Bagg's Case 1 shows the existence of this distinction; for there the writ was to restore to office James Bagg, who is described in the writ as "one of the twelve chief burgesses, or magistrates of the borough aforesaid"; that is, he was a magistrate of the borough, in virtue of being one of its twelve chief bur * * 1 11 Rep. fol. 93 b (p. 174, ed. Thomas & Fraser); 1 Roll. Rep. 224, S. C. gesses. The office itself was magisterial. The Act of Parliament here likewise affords its own interpretation; for the second section. recites that, persons elected aldermen may be persons in trade, and may not be qualified to act as Justices, but it authorises them so to act, and it expressly calls them "magistrates of the said city." The recorder is not mentioned as one of the number, and the constant intention to exclude all but aldermen is shown by the non-intromittant clause contained in the charter of the city, by which no Justices appointed by the Crown are allowed to interfere in its affairs. The 33 Geo. II. c. 16 (Ir.), known by the name of Lucas's Act, and entitled, "An Act to regulate the Corporation of the City of Dublin, and for extending the powers of the Magistrates thereof," was passed for the purpose of remodelling the corporation, and it divides the corporation into two classes of municipal officers, of which one consists of the Lord Mayor and the twentyfour aldermen, while the sheriffs, peers, and freemen form another class; and it is remarkable that in no one of the Acts are the mayor, recorder and aldermen grouped into one class.1 *The liberties of the city are more extensive than the 795 county of the city itself. The aldermen have by that Act jurisdiction over the whole; the recorder is only a Justice within the city, and not for the liberties thereof; for his name is omitted from the 18th section, which describes who shall be the Justices of the Peace for the city liberties. From the time of that Act to the present, the recorder has never in fact been summoned as a magistrate. The phrase "Board of Magistrates" must mean a known body of men, having equal and identical powers; the recorder is the adviser of that body; he is therefore not one of the board; he is not in the extent of his jurisdiction their equal. If others besides the aldermen were admitted to vote, then the Judges, and not only the Judges, but the Queen's counsel (for they are, by virtue of their office, Justices in Dublin), and all the constabulary or divisional Justices would, on principle, have the same right. * [LORD BROUGHAM suggested that Queen's Counsel were not magistrates by virtue of being created Queen's Counsel, but that 1 But see 1 Geo. III. c. 10 (Ir.), passed "to prevent the excessive price of coals in Dublin," the 6th section of which provides that "the Lord Mayor, recorder and board of aldermen of the said city, or the majority of them, shall make such rules," as to the usages and conduct of the measures of coals, "as the Lord Mayor, recorder and board of aldermen, or the majority of them, shall think proper." |