E. T. 1846. Queen's Bench. 1845. June 6. Nov. 20. 1846. April 20. Where to a mandamus di THE QUEEN at the Prosecution of บ. THE GUARDIANS OF THE POOR OF THE TUAM UNION. MANDAMUS directed to the Poor-law Guardians of the Tuam rected to Poor- Union. The writ recited the orders of the Poor-law Commissioners directing the formation of the Union, and that such Union was duly declared, and a rate accordingly struck. It further recited, that by an order of the Commissioners, dated the 1st of November 1842, the Guardians of the Union were directed within one month from law Guardians commanding them to appoint collectors of poor-rate, and to issue to the persons the Guardians tered into se collectors had dians had their warrants the date thereof to appoint one or more fit and proper person or so appointed, persons to be collector or collectors of the poor-rate of the several made a return, electoral divisions; that in pursuance of that order collectors were stating that they had apappointed for only two of the electoral divisions, and that the pointed collec- Guardians had resolved that no warrant should be issued for the tors, all of whom, save collection of the rate until collectors were appointed for all the one, had en- electoral divisions. That several persons were willing to undertake curities as re- the office of collector, for the other electoral divisions, but that the quired by the Guardians would not obey the order of the Commissioners, and that Poor-law Act; that one of the the rate remained thereby uncollected. The mandatory part of the not duly perwrit directed the Guardians to obey the order of the Poor-law fected his se- Commissioners of 1st of November 1842, and appoint one or more curities, and that the Guar- fit and proper person or persons to be collector or collectors of the poor-rate of the several electoral districts of said Union to which no collector had been appointed, and to issue their warrant or warrants to the collectors to enable them to act in the collection of the rate. To this mandamus the Guardians made a return, certifying that there were five electoral divisions in the Union of Tuam, to wit, &c., and that previous to the service of the writ of mandamus they did appoint collectors of the poor-rate for three of these electoral Held, that the divisions, to wit, &c.; that two of the persons appointed had been sufficient, and approved of, and had given security to the satisfaction of the Pooroffered no reasonable excuse law Commissioners for Ireland; that since the service of the writ of for the Guar mandamus they did in obedience thereto duly appoint collectors for dians not doing their duty. the two other electoral divisions, and the persons so appointed collectors had duly entered into security for the due performance of their respective offices, to the satisfaction of the Commissioners, and passed a resoution not to issue their warrants until all the collectors had been duly appointed, and had perfected their securities. return was in had been duly approved of by the said Commissioners. And that the collector who had been appointed for the other electoral district of the Union, and been approved of as such collector by the Commissioners, had proposed as his sureties for the due execution of his office, two persons who were duly approved of by the Commissioners as such sureties; that a bond was executed by him and one of his sureties as security to the Commissioners; but the bond had not been executed by the other of the sureties so approved of by the Commissioners, although the Poor-law Guardians had reason to suppose that the bond would have been executed by the said surety, at a meeting of the Guardians, held on the 7th day of April; that the said surety not having attended that meeting to execute his bond, the meeting was adjourned, at the request of one of the Assistant Poor-law Commissioners, until a later day, for the purpose of securing his attendance, and that on that day he did not attend at such adjourned meeting, nor did he execute his bond, or give security to the satisfaction of the Commissioners. That since the last meeting they had not had sufficient time to enable them to appoint another collector for poor-rate. That at another meeting of the Guardians, it was resolved that no warrant should be issued for the collectors of the rate in any electoral division in the Union until collectors were appointed for all the electoral districts of the Union, and in consequence thereof the Guardians of the Poor of the Union were unable to issue their warrants to the four collectors already appointed and approved of by the Poor-law Commissioners, and who had entered into the securities to the satisfaction of the Commissioners. This return having been set down for argument— E. Pennefather, with whom was Napier, for the Poor-law Commissioners. This return is defective and insufficient; first, because it appears that the collectors had been appointed for four of the electoral divisions of the Union and had been approved of by the Poor-law Commissioners, and yet it assigns no valid reason for not issuing warrants to such collectors. Secondly, it is evasive and argumentative and contains a negative pregnant, as it certifies that at a meeting of the Guardians it was resolved that no warrants should be issued for the collectors of the rate in any electoral division in the Union until collectors were appointed for all electoral districts of the Union, and in consequence thereof the Guardians were unable to issue their warrants to the collectors already appointed and approved of by the Poor-law Com E. T. 1846. THE QUEEN v. THE GUAR- THE POOR TUAM UNION. E. T. 1846. missioners, and it is only by suggestions and argument to be inferred V. THE GUAR- TUAM UNION. Thirdly, two separate causes of justification of the refusal to appoint a collector by the Guardians are relied on, namely, that the surety did not execute his bond, and then that there was not sufficient time to appoint a collector; which causes being distinct from each other renders the return in this respect double. Fourthly, the writ of mandamus is directed to the Guardians, and the return has not been signed by them, nor is any corporate seal attached thereto. But now, assuming the return insufficient, it will be contended that a mandamus will not lie in such a case as the present; the Guardians are estopped from making that objection after having made a return. CRAMPTON, J.-They may show that the Court had no jurisdiction to grant the writ. It will then be said that another remedy was open to the Commissioners under the 1 & 2 Vic. c. 56, s. 26, whereby they are empowered to dissolve the Board of Guardians and appoint paid Guardians; but this is not a case coming under that section, which only applies to a case of general default of the Guardians in not acting: The Queen v. The Guardians of the Poor of the Limerick Union (b). Here they have held meetings, and business has been transacted, and there is an admission on the return by the Guardians that they are now acting. As to the remedy by indictment, the Commissioners might have had recourse to that; but it would not be so efficient as a mandamus, and if it be not so effectual a proceeding the complainant may prefer the latter. But it may be objected that the writ of mandamus commands two things to be done; however, this is the common course of proceeding: Rex v. Mayor of Abingdon (c); Grady & Sc. Prac. 503; it would create unnecessary expense if a separate mandamus were to issue in every case. If the orders of the Commissioners be illegal, they may be removed into this Court by certiorari (sec. 114); but the Guardians do not dispute the legality of this order, and are therefore bound to obey it. The duties which the Guardians have been called on to perform are prescribed by the 73d section of 1 & 2 Vic. c. 56; and the principal ground of refusal to perform those duties is, that the Board of Guardians had passed a resolution not to issue any warrants until all the collectors had been appointed. (a) 6 Mod. 309. (b) 7 Ir. Law Rep. 402. (c) 1 Ld. Raym. 559. Queen's Bench. That resolution was not binding on the succeeding Board of Guar- E. T. 1846. dians; and besides it was illegal, for the appointment and authority are one and the same act, and if not allowed to act when appointed it would be an evasion of the Act. Upon a return to a mandamus, the Court cannot entertain the question of the sufficiency of the grounds upon which a public body have done the act complained of, if the return state such grounds as having guided the Corporation in the exercise of a discretion claimed, which does not legally exist: Rex v. Trinity College (a). Skelton, contra. Assuming the return insufficient, the Guardians have a clear right to object to the mandamus, notwithstanding that a return has been made thereto Regina v. The Mayor and Burgesses of Poole (b), there objections were allowed to the validity of a mandamus after a return had been made, which had been summarily quashed upon motion, as inapplicable and absurd. The Court have a discretion in refusing a mandamus: The King v. The Mayor of Bristol (c); The King v. Griffiths (d); The King v. The Bank of England (e); The Queen v. Hopkins (f). In that case Denman, C. J., observes:"The issuing of this writ is not a mere matter of dis"cretion, but a clear case must be made out for the extraordinary "interposition of the Court, and this ought to appear on the face of "the writ itself." The writ ought to have stated that the Commissioners had no other remedy of enforcing their order; if they had another remedy a mandamus will not be granted: 5 Bac. Ab. 268, 7th ed.: Rex v. Bishop of Chester (g); Rex v. Mayor of Colchester (h); Rex v. Bristowe (i); Rex v. Murray (k). These cases establish the position that it lies upon the prosecutor to show that he had no other remedy: Rex v. Nottingham Water Works Company (1).—[PERRIN, J. If you show any other way of levying the rate than under a collector's warrant, that case would apply.— CRAMPTON, J. The order of the Commissioners requires a certain thing to be done, and the complaint is, that the Guardians will not obey that order; now is there any other remedy to compel them to obey that order?]—The writ is not to supersede legal remedies, but (a) 3 Law Rec. N. S. 150. (c) 1 D. & Ry. 389. (e) 2 B. & Al. 620. (g) 1 Term Rep. 396. (i) 6 Term Rep. 168. (1) 6 Ad. & El. 369. (b) 1 G. & Dav. 730. (f) 4 P. & Dav. 550. THE QUEEN v. THE GUAR- THE POOR TUAM UNION. THE QUEEN E. T. 1846. only to supply the defects of them; and the absence of another Queen's Bench. remedy is an essential ingredient in granting a mandamus, and therefore a material allegation in the writ: Rex v. Margate Pier Company (a). Here they have a clear remedy under the 26th section; if the Guardians do not do their duty the Commissioners can dissolve the Board. v. THE GUAR DIANS OF THE POOR OF THE TUAM UNION. The return is quite sufficient. It is signed by one of the Guardians in the name of all. A Corporation may do an act upon record without their common seal: The Mayor of Thetford's case (b). The certainty required in a return is a certainty to a certain intent in general; that is, what upon a fair and reasonable construction may be called certain, without recurring to possible facts which do not appear: Rex v. Corporation of Dublin (c). Napier, in reply, was not called on. PENNNEFATHER, C. J. We think a peremptory mandamus should issue; no answer has been given why it should not; it would be but trifling to allow persons to accept public offices, if when called on to exercise them they will not perform their necessary duties. The Board of Guardians have offered no reasonable excuse; they have, in fact, done nothing; they were called on to do certain acts to put the law in force, and they have neither done those acts nor offered a valid excuse for not doing them. Let the return to this mandamus be quashed with costs, and let a peremptory mandamus issue; the costs to be paid by the Guardians individually, and not to be charged on the 1845. Nov. 3, 20. An affidavit to ground a motion for an at UPON motion of E. Pennefather, on the production of the above order, and the certificate of the taxation of the costs thereby tachment must awarded, and on affidavit of a demand of the said costs from Charles be entitled the same as the rule. Quare-Should an affidavit to ground an attachment for non payment of costs directed by the order of the Court, state that a copy of the order awarding the costs had been personally served on the party liable thereto ? Quære also-If the costs be demanded by power of attorney, should the affidavit state the due execution of such power of attorney, and personal service of it? |