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tainly necessary in such cases that the copy examinations should be transmitted, to enable the parish officers to judge of the propriety of appealing, and the words of the 62nd section of the 8 & 9 Vict. c. 126, are certainly large enough to include the sending of the depositions. It is also open to contention, that inasmuch as the parish officers of Holy Trinity had no knowledge of the order until some time after Christmas, 1845, and it is conceived that service of the order on the clerk of the board of guardians is not such a constructive service upon the parish officers as will affect them, but that there must be actual service upon them, or they must have notice of the order in some other way; they were not in this case, even if no copy of the examinations need have been sent, under the obligation of appealing at the January sessions.
Cur. adv. vult.
June 12. His Lordship thought that an appeal against an order of maintenance under the 8 & 9 Vict. c. 126, was in effect an appeal against the settlement, and was intended to be subject to all the incidents of appeals against orders of removal, under sec. 79 of the Poor Law Act, so far as they were applicable; that one which was applicable was the transmission of copies of the examinations; and that as in this case no copies were sent in time to have enabled the appellants to appeal at the January sessions, they were justified in passing them over.
Rule absolute. T. W. S.
COURT OF QUEEN'S BENCH.
Trinity Term.-Saturday, May 29, 1847. THE QUEEN v. THE OVERSEERS OF THE POOR OF
SEVERAL PARISAES AND TOWNSHIPS OF THE OLDHAM Union. Stat. 4 8 5 Wm. 4, c. 76, ss. 40, 46, 105, and 109-Election of guardians-Appointment of
returning officer-Order of commissioners. The Poor Law Commissioners made an order directing the overseers of the poor of the several parishes
of a union to assemble for the purpose of appointing a returning officer to act at the election of guardians for such union. That order not having been removed into this court by certiorari, the Court, after argument upon demurrer, issued a peremptory mandamus to enforce it, upon the ground that the order related to a matter within the jurisdiction of the commissioners, and (Coleridge, J., dubitante) that its validity could only be questioned upon removal into this court by certiorari. ANDAMUS.-The writ, after stating the formation of the Oldham
Union, &c., set out an order of the Poor Law Commissioners, dated the 15th of November, 1845, and directed to the guardians of the said union, to the church wardens and overseers of the poor of the townships comprised therein, and to the clerks to the justices of the petty sessions, held for the division or divisions in which the said union is situate, whereby, after reciting that by reason of default of election, no elective guardians existed in the said union, and that it was necessary that such guardians should be forth with elected, the commissioners ordered (amongst other things) that the overseers of the poor of the several townships comprised in the said union should, on the 2nd of December then next, meet and appoint some fit and competent person, being a barrister-at-law, or solicitor, or attorney, to be the returning officer at such election, and that the overseers of the said several townships, and every officer having the custody of the rate-books thereof, should attend the said returning officer, &c. The writ then stated that the said overseers had neglected to make such appointment, and commanded them to meet and appoint a returning officer, as directed in the said order.
The return of the overseers (so far as is material to the present case) stated that the commissioners did not make the order, as suggested in the writ, under the Act of Parliament; and that it was not made for carrying the Act into execution. Plea thereto, setting out the orders referred to in the writ. Demurrer to the plea, raising objections to the order, and joinder in demurrer. The material point marked for argument by the defendants was, that the Poor Law Commissioners had no power to make the order set out in the plea, or to direct the appointment of a returning officer as in the order and writ mentioned, and had no power to direct the overseers of the townships of the union to make such appointment. In addition to the points raised as to the validity of the order, the prosecutors had given notice that they should contend that the validity of the order could not be questioned collaterally in a proceeding to enforce it, but only upon removal into this court by certiorari.
Cobbett, in support of the demurrer.— This order of the Poor Law Commissioners is bad. They have no authority to issue such an order to the overseers. [LORD DENMAN, Č. J.-But must not their order be obeyed, until it has been removed by certiorari and declared invalid by this Court ? (Stat. 4 & 5 Wm. 4, c. 76, s. 105.)] Not if it is made without jurisdiction. [Tomlinson, contrà. —The object of the legislature was to prevent the occurrence of any interval during which the poor could not be relieved ; and hence the provision that all orders are to be obeyed until quashed by this Court upon certiorari. (Reg. v. St. Luke's, Middlesex, Lumley, p. 11.)] No doubt orders must be obeyed until quashed; but this Court may quash any order properly brought before it, whether by certiorari or otherwise. [PATTESON, J.-I recollect a case where the commissioners had made an order
upon overseers to collect certain statistical information, which of course was bad, as it had nothing to do with the administration of the poor-law; but that order was brought up by certiorari. Lord DENMAN, C. J.-I am clearly of opinion that the Poor Law Commissioners have full power to do any act that relates to the carrying of the Poor Law Amendment Act into effect for the purpose of affording relief to the poor. They have assumed to exercise that power in this instance; and, if so, that which they have done can only be questioned in a direct manner on the removal into this court of one of their orders by certiorari. An order of the Poor Law Commissioners, while it remains unquestioned by certiorari in this court, is, in some cases, equivalent to an act of the legislature, and unless removed here and quashed, it must be obeyed. It may be different if on the face of the order itself it should appear to have been made in a matter over which the Poor Law Commissioners have no jurisdiction, and if Mr. Cobbett means to contend that such is the case in the present instance, the Court will hear him on that point.]
Cobbett.— I cannot contend that a returning officer, though not expressly named, is not contemplated in the provisions of the Poor Law Amendment Act; but clearly that Act gives no authority to order the overseers of different parishes to assemble for the appointment of such an officer. The 15th section only gives the commissioners a general power to make rules and orders for carrying the Act into effect ; the 40th section provides for the election of guardians, and requires the votes to be collected and returned as the commissioners shall direct ; but it does not speak of a returning officer, and the overseers of the different parishes, therefore, cannot, under that section, be required to perform this function; the Act gives the commissioners no such authority over them. This order attempts to make them union officers, instead of parish officers. The 46th section authorizes the commissioners to direct the overseers of any parish or parishes to appoint “paid officers;" but a returning officer is not included in that term (sec. 109), and the words otherwise carrying the provisions of this Act into execution” are not sufficient to give the power claimed. (a)
Tomlinson, contrà, was not called upon.
Lord DENMAN, C. J.-It does not appear to me that there is any question as to this being a matter connected with the general execution of the Act; then, this order is the mode which the commissioners have thought proper for carrying their object into effect; if that mode should be considered by this Court incorrect, when properly brought before us, the order would be set aside; but “ unless and until the same shall be declared illegal by this Court,” it continues in full force.
Patteson, J.—Taking the 40th and 46th sections together, the construction is very clear. The 40th section shews that the commissioners must have authority to require that a returning officer should be appointed ; and the words of the 46th section are sufficiently general to include an officer of that sort. They will apply to a returning officer as well as to a chaplain, which they have been held to include. (Reg. v. Braintree Union, 1 Q. B. 130.)
COLERIDGE, J.-I agree in the decision of the Court upon this case, but I entertain considerable doubt as to the preliminary point. I have no doubt as to the intention of the legislature, but considerable doubt whether the words carry that intention into effect. The words ought to be quite clear, in order to take away the common-law right of the subject to question the validity of an order which is enforced against him.
ERLE, J.-I think that this decision is correct upon the limited view that the Poor Law Commissioners have a general power to make rules and regulations for carrying the Act into effect, and upon the terms of sec. 40, to regulate the election of guardians. It seems to me clearly to follow that they must have authority to appoint a returning officer. If, then, they may direct the overseers of a particular parish to appoint a returning officer at the election of guardians for that parish, I cannot understand how it would be more out of their jurisdiction to order the overseers of several parishes to assemble for the purpose of appointing a returning officer at the election of all the guardians of the union. certiorari, what I understand is, that no informality can be taken advantage of, unless the order be brought into this court by certiorari, and that has not been done here.
Judgment for prosecutors ; and peremptory mandamus awarded. A. B.
(a) Sec. 109 (the interpretation clause) provides union in carrying this Act, or the laws for the relief tbat the word “officer" shall be construed to ex- of the poor, into execution, and whether performing tend to any clergyman, schoolmaster, &c., or any one or more of the above-mentioned functions. other person who shall be employed in any parish or
COURT OF QUEEN'S BENCH.
June 10, 1847. THE QUEEN v. THE JUSTICES OF THE WEST RIDING OF YORKSHIRE. Order for maintenance of lunatic pauper under 9 Geo. 4, c. 40-Appeal, within what time--Return
to mandamus-Certainty. The 79th section of 4 & 5 Wm. 4, c. 76, with respect to appeals against orders of remoral, is not
applicable to orders for the maintenance of lunatic paupers in asylums, made by two justices under sec. 38 of 9 Geo. 4, c. 40; and therefore, where such an order was made on the 8th of March, and served on the 13th, and no appeal was entered at the next sessions held on the 7th of April, although the practice of the Sessions required only ten days' notice of appeal, this Court held that the time for appealing had gone by, and that the July Sessions were right in refusing to receive the appeal. The 54th section, and not the 60th, of 9 Geo. 4, c. 40, is the clause regulating appeals against orders
for the maintenance of lunatic paupers under sec. 38 of that Act. A writ of mandamus stated the entry of an appeal at sessions, held by adjournment on 1st of July,
against an order of two justices, adjudging the settlement of M. V. to be in parish L., and ordering the overseers of that parish to pay to the treasurer of a lunatic asylum a certain sum weekly, “ from the time of the said M. V. being first placed in such asylum by virtue of a warrant or order” of the said two justices, and of the same date. It then stated a refusal to hear that appeal. The return stated that the order of the said two justices mentioned in the writ was made on the day (March 8) of the date ; that the sessions mentioned in the writ as held on the 1st July, were so held by adjournment from June 30; that the said order was served on March 13; and that an appeal against the same might have been, and was not, entered at the next sessions in April. Held, that it appeared with sufficient certainty upon the face of the return that the order therein
referred to was the one which was the subject of the appeal, and not the order also mentioned in the writ for placing M. V. in the asyluni. ANDAMUS. — “ Victoria, by the grace of God, &c., Queen, &c., to the
keepers of our peace and our justices assigned to hear and determine divers felonies, trespasses, and other misdemeanors committed within the West Riding of the county of York, and to every of them, greeting. Whereas we have been given to understand and be informed in our court, before us, that at the general quarter sessions of the peace holden by adjournment at Bradford, in and for the said West Riding of the said county of York, on the 1st day of July, in the year of our Lord 1845, an appeal theretofore entered by and on behalf of the church wardens and overseers of the poor of the parish of Liverpool, in the county of Lancaster, against an order under the hands and seals of Joseph Armitage and John Sutcliffe, Esquires, two of the said keepers of our peace and justices, and bearing date the 8th day of March, A.D. 1845 (whereby the last legal settlement of Mary Vincent (the wife of Pilcher Vincent) an insane pauper, was adjudged to be in the said parish of Liverpool ; and the overseers of the poor of the said parish of Liverpool were ordered to pay from time to time to the treasurer, for the time being, of the lunatic asylum in and for the said riding, weekly and every week from the time of the said Mary Vincent being first placed in the said lunatic asylum by virtue of a warrant or order in that behalf under the hands and seals of the said Joseph Armitage and John Sutcliffe, Esquires, so being such keepers of the peace and justices as aforesaid, and bearing date the said 8th day of March, A.D. 1845, so long as the said Mary Vincent should continue in the said lunatic asylum by virtue of the last-mentioned warrant or order in that behalf, the sum of 5s. 6d. for the maintenance, care, medicine, and clothing of the said Mary Vincent so long as the sum of 5s. 6d. should continue to be the weekly sum fixed upon in that behalf by the visitors of the said lunatic asylum, and such other weekly sum, after the said sum of 5s. 6d. should cease to be the
weekly sum fixed upon in that behalf by the visitors of the said lunatic asylum, as should be from time to time fixed upon in that behalf by the visitors of the said lunatic asylum under the provisions of the statute in that case made and provided, or otherwise, according to law), came on to be heard before you, and that you, the said keepers of our peace and justices by and before whom such sessions were then holden, were then and there required on the part and behalf of the said churchwardens and overseers of the poor of the said parish of Liverpool to hear and determine the merits of the said appeal, but that you, the said last-mentioned keepers of our peace and justices, not regarding your duty in that behalf, did then and there absolutely neglect and refuse to hear and determine the said appeal, and that you did then and there dismiss the same without hearing and determining the merits thereof, and that you have not nor have any you
time since heard or determined the same, in contempt of us, and to the great damage and grievance of the inhabitants of the said parish of Liverpool, whereupon they have humbly besought us that a fit and speedy remedy may be provided in this respect. Now we, being willing that due and speedy justice should be done in this behalf, as it is reasonable, do command you, the said keepers of our peace and justices in and for the said West Riding of our said county of York, and every of you, firmly enjoining you that you do without delay enter, or cause to be entered, continuances upon the said appeal from session to session to the next ensuing general quarter sessions of our peace to be holden in and for the said West Riding of our said county of York; and that at such next general quarter sessions of the peace you do proceed to hear and determine the merits of the said appeal, or that you shew cause to the contrary thereof,” &c.
Return.—“We, the said keepers of the peace and justices, do most humbly certify and return to our said Lady the Queen, that the order under the hands and seals of Joseph Armitage and John Sutcliffe, Esquires, two of us, the said keepers of the peace and justices as aforesaid, in and for the West Riding aforesaid, which order is mentioned and referred to in the said writ, was made by them, the said Joseph Armitage and John Sutcliffe, on the 8th day of March, A.D. 1845, the day of the date of the same order. And we further most humbly certify and return to our said Lady the Queen that the general quarter sessions of the peace named in the said writ, and holden by adjournment at Bradford, in and for the said West Riding of the county of York, on the 1st day of July, A.D. 1845, were so and then holden under and by adjournment from the holding of the same quarter sessions at Skipton, in and for the same West Riding, on the 30th day of the month of June, A.D. 1845, which last-mentioned day was the day of commencement of the same last-mentioned quarter sessions. And we further most humbly certify and return to our said Lady the Queen, that the said order, made and bearing date the 8th day of March, A.D. 1845, was served on and delivered to the church wardens and overseers of the poor of the parish of Liverpool, in the said writ mentioned, on the 13th day of the same month of March, A.D. 1845, and that the said churchwardens and overseers of the
poor of the parish of Liverpool, on the 13th day of March, A.D. 1845, had notice of the said order so made and dated on, &c., and then became and were entitled to appeal against the same to and at the next quarter sessions of the peace to be holden in and for the said West Riding of the county of York. And we further most humbly certify to our said Lady the Queen, that such next general quarter sessions of the peace were holden at Pontefract, in and for the said West Riding of the county of York, on the 7th day of April, A.D. 1845, and that no appeal against the said order was entered at such last-mentioned quarter sessions, nor any motion made to enter any such appeal. And we further most