The Queen, at the prosecution of Samuel Wauchob, v John Reynolds

• Jurisdiction: Ireland
• Judgment Date: 25 April 1850
• Date: 25 April 1850
• Court: Queen's Bench Division (Ireland)

Queen's Bench

THE QUEEN, At the Prosecution of SAMUEL WAUCHOB,

and

JOHN REYNOLDS.

Regina v. Pippen and Ricketts 7 A. & E. 966.

Regina v. Pembroke 8 D. P. C. 302.

Regina v. Leeds 11 A. & E. 512.

Rex v. BankesUNK 1 Wm. Bl. 445, 452.

Regina v. Phippen 7 A. & E. 966; S. C. 3 N. & P. 151.

Rex v. Winchester 7 A. & E. 215; S. C. 2 N. & P. 274.

Regina v. Derby 7 A. & E. 419.

Regina v. Leeds Ibid, 963.

Regna v. Corporation of Pemborke 8 D. P. C. 802.

Rex v. Mayor of Cambridge 4 Bur. 2008.

Case of the Borough of Bassing 2 Stra. 1003.

Rex v. NewshamENR Say. 211.

The Queen v. The Overseers of the Poort of Oldham Union 10 Q. B. 700.

Conway v. Baxter 7 Ir. Law Rep. 16

Regina v. Cowen Al. Reg. Cas. 166; S. C. 1 J. & Sy. 223.

Rex v. Bridgewater Doug. 279.

Tapping on Mandamus, p. 166; Wilcox on Corporations, p. 361; Rex v. Smith 2 M. & Sel. 583.

Rex v. St. Katherine's Dock CompanyENR 4 B. & Ad. 360.

Rex v. HerefordENR 2 Salk. 701.

Rex v. Abingdon Ibid, 431.

Regina v. Stamford 6 Q. B. 443.

Rex v. Justices of LeicesterENR 4 B. & C. 891.

Rex v. Coporation of Eye 9 A. & E. 670.

Greathead v. Bromley.ENR 7 T. R. 455.

The King v. Clendenning 1 H. & B. 36.

Evatt and other v. Kelly 1 J. & S. 28.

Rex v. The Mayor of Norwich 1 Stra. 55.

3 & 4 Vic . c. 108, s. 83; 6 & 7 Vic. c. 93, s, 5; Com. Dig. tit Mandamus, C; 2 Gude's Crown Practice, p. 512; The King v. WixENR 2 B. & Ad. 197.

The Queen Ledgard 1 A. & E. N. S. 616.

Regina v. TwittyENR 2 Salk. 433.

The King v. Bishop of Oxford.ENR 7 East, 345.

COMMON LAW REPORTS. 157 on the other points of the case. The order therefore is, that the H. T. 1851. ueen's Bench name of the respondent be erased by the Town-clerk from the burgess Q WALTON OB roll. Conditional order absolute. v. REYNOLDS. E. T. 1850. April 25. A peremptory IN Easter Term 1850, Brewster applied for a peremptory mandamus, order for a directed to the Council of the borough of Dublin, to proceed within willmandamnoust be ten days to elect a Lord Mayor. granted with- out notice to The name of Reynolds having been struck off the list of bur- the opposite party; nor in a gesses, the office of Lord Mayor, to which he had been elected, is case where the now vacant. A question may be raised as to the jurisdiction of liciarho isecutor has by for a long period. this Court to make this order, as it may be contended that in such a case a quo warranto is the proper course to be adopted; but the proceeding which has been already pursued was similar to a proÂÂceeding by quo warranto, and the Court having adjudicated that Reynolds' name ought not to be on the burgess roll, and as no perÂÂson can be Lord Mayor except he be on the burgess roll, his election to that office therefore was a mere nullity. This is not the case of a subsequent disqualification. In this case a quo warranto would be nugatory ; for it would be merely to adjudicate upon what has been already adjudicated upon : Regina v. Pippen and RickÂÂetts (a), and there being no appeal from the decision of this Court, as its former decision could not be questioned in any collateral proÂÂceedings, we are precisely in the same position therefore as if we had obtained a quo warranto : Regina v. Pembroke (b); Regina v. Leeds (c). 'a) 7 A. & E. 966. (b) 8 D. P. C. 302. (c) 11 A. & E. 512. E. T. 1851. Queen's Bench WAUCHOB V. REYNOLDS. 168 COMMON LAW REPORTS. Per Curiam. We cannot grant a peremptory mandamus in this case, no notice having been served on the opposite party ; and as the prosecutor has lain by for so long a period, we will only give a conditional order for a mandamus. It is ordered by the Court that a writ of mandamus do issue, directed to the Town-council of the borough of Dublin, commanding them to proceed to the election of a Lord Mayor of the borough of Dublin, pursuant to the statutes in that case made and provided, unless cause, &c. May 3, 4, 27. A having been elected a Town-counÂÂcillor and Lord Mayor of the borough of D, his name was, after he had been so electÂÂed, erased by order of this Court from the burgess list of the boÂÂrough of D 'as not being enÂÂtitled to reÂÂmain on the roll. Held, a mandamus was the proÂÂper mode of proceeding to try the right of A to the office of Lord Mayor, and that the Court would not adopt the circuitous course of proceeding by quo warranto, the office being void.-[PEnÂÂSUN, J., dissentiente.] Semble, the proceeding given by the 3 & 4 Vic. c. 108, by appeal. to have a party's name erased from the burgess roll as being disentitled to be thereon, is subÂÂstituted for a quo warranto, and an order of the Court, erasing a party's name from the burgess roll, has a retrospective effect, aud renders the office void ab initio. (a) 1 Wm. 444, 462. (b) 7 A. & E. 966; S. C. 3 N. & P. 151. (c) 7 A. & E. 215 ; S. C. 2 N. & P. 274. (d) 7 A. & E. 419. (e) Ibid, 963. (f) 8 D. P. C. 802. (y) 11 A. & E. 512. COMMON LAW REPORTS. 159 Cambridge (a) ; Case of the Borough of Bassing (b) ; Rex v. H. T. 1851. Queen's Bench Newsham (c); The Queen v. The Overseers of the Poor of Oldham QUEEN Union (d); Conway v. Baxter (e); Regina v. Cowen (f); Rex v. Bridgewater (g); Tapping on Mandamus, p. 166; Wilcox on Cor- REYNOLDS. porations, p. 361; Rex v. Smith (h); Rex v. St. Katherine's Dock Company (i); Rex v. Hereford (k); Rex v. Abingdon (1); Regina v. Stamford (m); Rex v. Justices of Leicester (n); Rex v. CorporaÂÂtion of Eye (o); Greathead v. Bromley (p). Cur. ad. volt. MooRE, J. This case comes before the Court on cause shown against a conÂÂditional order for a mandamus, directed to the Town-council of the borough of Dublin, commanding them to proceed to elect a Lord Mayor. The question which the Court has to decide is, whether this order should be made absolute, and whether the mandamus should issue ? It appears that for several years, prior to the year 1849, ReyÂÂnolds' name had been on the burgess roll. In that year his name appeared upon the list out of which the burgess roll was to be framed ; but an objection was taken at the revision of the list to his name appearing on the roll ; and that objection was overruled, and he was then declared to be duly qualified to remain on the roll. On the 25th of November last an order was obtained from this Court, calling on Reynolds to show cause why his name should not be erased from the burgess roll ; that was an order in the nature of an appeal from the Court of Revision, and upon that order the cause shown by Reynolds was disallowed, and his name was, pursuant to that order, erased from the burgess roll, and it is undisputed that (a) 4 Bur. 2008. (b) 2 Stra. 1003. (c) Say. 211. (d) 10 Q. B. 700. (e) 7 Ir. Law Rep. 16. (f) Al. Reg. Cas. 166 ; S. C. 1 J. & Sy. 228. (g) Doug. 279. (h) 2 M. & Sel. 583. (i) 4 B. & Ad. 360. (k) 2 Salk. 701. (/) Did, 431. (m) 6 Q. B. 433. (n) 4 B. & C. 891. (o) 9 A. & B. 670. (p) 7 T. R. 455. May 27. 160 COMMON LAW REPORTS. H. T. 1851. from the date of that order (29th of January) up to the present Queen's Bench time his name has not been on the roll. During the proceedings THE QUEEN to which I have adverted two elections have taken place-one an v. REYNOLDS. election of Town-council and Aldermen, and the other an election of Lord Mayor. The Town-council and Aldermen are only eligible out of those who are on the burgess roll, and it is equally clear that the Lord Mayor is only eligible out of those holding the office of Town-councillor or Alderman. On the first election (25th November last) Reynolds was elected a Town-councillor for Merrion Ward, and on the 1st of December following, being the day appointed for holding the election of Lord Mayor, he was duly elected to that office, he being then a Town-Councillor. He having been so elected, entered on the discharge of the duties of the office of Lord Mayor, having made the declaration, and otherwise complied with the requirements of the Act of ParliaÂÂment, and he has continued in discharge of the duties since. The Court of Queen's Bench having decided on the 29th of January that his name should be struck of the burgess roll, a conditional order for a mandamus was granted. It has been argued that the office was void, and that this order had a retrospective operation ; that in order to be a Councillor, a man must be on the burgess roll, and in order to be Lord Mayor, he should be a member of the Town-council, and that when the basis of all these offices was taken away, the result was, that the superÂÂstructure fell to the ground. It was therefore contended that as the legal effect and operation of the order of the 29th of January was to remove the name of Reynolds from the burgess roll, and as it never should have been on it, his election as Town Councillor and Lord Mayor fell to the ground. It was further contended on the part of the prosecution, that even if the Court was not disposed to give the order of the 29th of January a retrospective operation, the moment the order was pronounced Reynolds according to the true construcÂÂtion of the Act ceased to be a Town Councillor, and ceasing to be a Councillor he ceased to be Lord Mayor. On the part of Reynolds it was contended that the order of the 29th of January did not create an actual vacancy of the office; but at most made it voidable, COMMON LAW REPORTS. 161 and that.the proper way to try the question was an information of H. T. 1851. Queen's Bench quo warrant° and not by mandamus. THE QUEEN The question for the consideration of the Court then is, whether the true course of proceeding, according to the state of the facts, was REYNOLDS. by information of quo warranto, or by writ of mandamus ? A great number of cases have been cited, and I consider the principal of them to be, that whenever the office was full de facto, almost the universal course of proceeding to try the right to the office was by quo warranto, and not by mandamus. But I have also come to the conclusion, that though, generally speaking, a quo warranto is the proper...