The Queen (The Commissioners of The Town of Boyle and Thomas Wynne) v Michael Cunningham

• Jurisdiction: Ireland
• Judgment Date: 01 July 1885
• Date: 01 July 1885
• Court: Court of Appeal (Ireland)

Appeal.

Before NAISH, C., FITZ GIBBON and BARRY, L. JJ.

THE QUEEN (THE COMMISSIONERS OF THE TOWN OF BOYLE AND THOMAS WYNNE)

and

MICHAEL CUNNINGHAM

The Queen v. Churchwardens of All-Swints, WiganELR 1 App. Cas. 611; at p. 620.

Practice — Mandamus — Question involving right to office.

'Vol. XVIII.] Q. B., C. P., & EX. DIVISIONS. .373 THE QUEEN (THE COMMISSIONERS OF THE TOWN OF BOYLE AND THOMAS WYNNE) v. MICHAEL CUNNINGHAM (1). Practice-Mandamus-Question involving right to office. Town Commissioners, appointed under the Towns Improvement Aot, 1854, and W., who, as the relators alleged, had been duly appointed Town Clerk, obtained a conditional order for a mandamus, directed to C., ordering him to deliver to the Commissioners or W. the books, &c., of the Commissioners, then in his custody, on the ground that, prior to W.'s appointment, C., who had theretofore been the Town Clerk, had been duly dismissed by the Commissioners. T. filed an affidavit as cause against the conditional order, alleging that he had not been legally dismissed. Material allegations in this affidavit were contro - verted by affidavits filed on behalf of the relators : Held, that having regard to the serious questions of feet and law thil, raised, the writ should issue, to enable such questions to be tried on its return. A. writ of mandamus may properly be issued for the purpose of testing the right to an office. Appeal. 1885. June 18, 19. July 1. APPEAL by the Boyle Town Commissioners and Thomas Wynne from an order of the Queen's Bench Division of the 23rd February, 1885, discharging a conditional order for a mandamus directed to Michael Cunningham, commanding him to deliver to the Commissioners, or Thomas Wynne as their clerk, all the public books, records, and documents of the Commissioners in his custody. See the case reported: 16 L. R. I. 206, where the facts are stated. Carton, Q. C., and Healy, for the appellants. Matheson, for the respondent. (1) Before /lArsa, C., Frrz GIBBON and BARRY, L. 13. 474 LAW REPORTS (IRELAND). [L. R. I._ Appeal. 1885 NAISH, C. :- Tax QUEEN This is an appeal from an order of the Queen's Bench Division of the 23rd February, 1885, discharging a conditional order for a Elk. mandamus directed to the respondent Michael Cunningham, corn uly 1. manding him to deliver to the Commissioners, or Thomas Wynne as their clerk, all the public books and records and other docuÂments of the Commissioners. Cunningham made an affidavit by way of cause against the conÂditional order, in which he stated that he was still Clerk of the-Commissioners, and had never been legally dismissed; and he based his claim to the office on two grounds-one, that at the meeting at which it was alleged he had been dismissed there was not preÂsent a quorum of properly elected Commissioners ; the other, that no proper notice of the business to be transacted at that meeting was given, and consequently that the proceedings at it were invalid. As regards the contention that there was not a quorum of members present at the meeting in question, the argument for Mr. Cunningham is based on this, that a Major Robertson had, in September, 1884, ceased to be one of the Commissioners by reason of his not having attended a meeting of the body for six months ; that at the meeting on the first Monday in October, 1884, Cunningham called the attention of the ComÂmissioners to the fact of Major Robertson having ceased to be a Commissioner, and to the power given to them by the 19th section of the Commissioners' Clauses Act, 1847, to co-opt a new member in his place, provided they did so within a month, but that they then declined to co-opt a new member ; that he then advised them to submit the names of four candidates for election at the annual election instead of three, and that they also declined to do this ; that on Monday, 3rd November, the ordinary meeting of the Commissioners was held, and five members attended and assumed to co-opt Patrick Regan to fill the vacancy caused by Major Robertson's disqualification, though warned by Cunningham that they then had no power to co-opt, and that this Regan was one of the persons present, and assuming to act as a Commissioner...