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of the mayor, capital burgesses, and assistants. He is, in point of fact, the legal mouth-piece of the corporation. It has been the practice of the mayor, and common council, to appoint one of (h) themselves to this important office ; a practice most inconsistent and irregular. The offices of capital burgess, and recorder, are most clearly incompatible : the court of king's bench has held them so to be. The learned and able mnen, to whose opinions I have before adverted, confirm this. The one observes, “there ought to be twenty-four capital burgesses and assistants, besides the mayor and the recorder.” The other, “I think the office of recorder incompatible with the office of capital burgess ; and there is no doubt the charter meant, there should be separate persons to fill these offices." On this (i) subject I must once more refer to the hospital act, in which we have the view of the legislature most distinctly. It appoints, as before observed,
(h) The present recorder is Mr. Govett, a surgeon, apothecary, &c. This gentleman also acts as a capital burgess.
(0) Whether one office in a corporation be incompatible with another, depends in a great measure on the constitution of the corporation. If the King, by his charter, says, there should be a mayor, twenty jurats, and a town clerk, the corporation by their own act, could not reduce the number by consolidating two of these offices. Buller, Just. 2 Term Rep. 88 See also Milward and Thatcher.)
the officers of the corporation, twenty-six in number, viz. the mayor, the recorder, twelve capital burgesses, and twelve assistants, and the saine number of inhabitants, (including the portreeve) of the town and parish, to be guardians of the poor. See also the Tiverton Fire Act. Clarendon, in the Senator, says, there are twentysix corporate officers, including of course the recorder. I shall proceed to consider the appointment of the clerk of the peace, and town clerk, before I speak of the consequence of a person attempting to hold offices in our corporation which are incompatible.
The appointment of the clerk of the peace, and town clerk, and his holding his office during the pleasure of the mayor, and the common council, are similar to that of the recorder. He is also not described, as the mayor, capital burgesses, and assistants are, as being of necessity of the town and parish. He is to be a discreet and fit nian. He is to have such fees as are usual, and to be allowed a deputy. The very circumstance of his being elected, and liable to be discharged, or removed from his office, by the mayor and common council, of which common council he, at
" If a
Tiverton, attempts to form a part, (k) must be, I should think, sufficiently convincing, that the offices of capital burgess, or assistant, and that of town clerk, are incompatible. Indeed it will be only necessary to refer to the case of Rex v. Pateman, 2. T. P. 177, at once to decide, that a capital burgess, or assistant, of Tiverton, accepting the appointment of recorder, or town clerk, accepts an office which is incompatible with these other offices. I find in my note book, the following observation as connected with the case of Rex v. Pateman, 2. T. P. 177. corporator is appointed to another corporate office, the duties of which are inconsistent with the one he now holds, it is thereby vacated. (1) The offices of alderman, and town clerk, are not necessarily inconsistent; they are so, where the latter is anywise subject to the controul of the former.” In the case of Tiverton, he is so much under the controul of the common council, of which he now attempts to form a part, that he not only receives his appointment froin, but is subject to be removed by, that body. Observe here, the difference : a corporate office does not
(k) Mr. John Wood, an attorney, is the present town clerk, and clerk of the peace. This gentleman is, or rather acts as, a capital burgess.
(1). Vide Judge Holroyd's observations in Green 1. Davis.
become ipso facto vacant, by non-residence of the corporator, till a sentence of amotion has been pronounced ; but a corporator, holding the office of capital burgess, or assistant, accepting either the office of recorder, or town clerk, actually vacates the former; and it is the duty of the mayor and common council, to proceed forthwith to an election to fill
such vacancy. I find also a note in Blackstone, as follows : “ If two offices are incompatible, by the acceptance of the latter, the former is relinquished, and becomes vacant, even if it be a superior office.” (2 T. R. 81,) Vide Blackstone, vol. 2. p. 36.
This clause of the charter merely directs, that the mayor shall administer reasonable oaths to the capital burgesses, and assistants, recorder, clerk of the peace, and town clerk, “well and faithfully to execute their offices respectively;" and that the mayor shall have a second, or casting vote, in case of an equality of votes at any election of the aforesaid officers, or of any other officer of the town and parish, and in case of the death of the mayor, then the justice. Notwithstanding the words of the charter, I am disposed to think, the mayor has not this second vote in elections of members of parliament, and that it is confined to elections into the corporate offices. In confirmation of this opinion, I might adduce an instance of a double return for Tiverton, in the year 1710, occasioned by an equality of votes. This opinion, I am aware, will be thought by many at variance with the charter. I would therefore ask, allowing the mayor this second vote, in the case of an equality of votes, in the exercise of the elective franchise, how could it be managed, when the mayor being a peer of the realm, or one engaged in the collection of the taxes, cannot take a part in the election of members of parliament? With respect to the former, it is declared by a resolution of the house of commons, to be a high infringement of the commons of Great Britain, for any lord of parliament to concern hinself in the election of members of parliament, (Simeon); and as to the latter, he is deprived of this privilege of voting, and strongly forbidden to practise any interference in any elections of members to serve in parliament, by. 22 Geo. iii. c. 41.
In a case of an equality of votes at the late election of common council men, the alderinan not being a housekeeper within the ward (Bassishaw,) was deemed not qualified to give a casting vote; and he therefore declared the first three candidates on the list duly elected, and that with respect to the last two, no election had taken place.