(2) In the case of the large majority of school boards, the number of members is five. There are some, however, with seven members, others with either nine or eleven, and a few with either thirteen or fifteen. Fifteen is the largest number, except in the case of the School Board for London. The general rule of the Education Department is that where the population is under five thousand the number of members shall be five; under ten thousand, seven; under forty thousand, nine; under seventy thousand, eleven; under a hundred thousand, thirteen; and in all larger districts fifteen, except London, which has fifty members.

The Education Department consider that an increase in the number of members of a school board can only be made at the triennial election, and have therefore declined to approve of a proposed increase when a triennial election has not been pending.

To meet the case of a reduction in the number of members, Rule 18 of the Second Schedule prescribes the mode by which it is to be determined what members shall retire.

(3) The provisions in the schedule referred to are in some particulars modified by sec. 6 of the 36 & 37 Vict., c. 86, and sec. 44 of the 39 & 40 Vict., c. 79, post, and the Schedules to those Acts.

(4) As to the powers of the Education Department to appoint or direct the appointment of officers for the purpose of the election of a school board, see 36 & 37 Vict., c. 86, Second Schedule, post.

Non-election, &c., of School Board.

32. If from any cause in any school district the school board either are not elected at the time fixed for the first election, or at any time cease to be in existence, or to be of sufficient number to form a quorum, by reason of non-election, resignation, or otherwise, or neglect or refuse to act, the Education Department may proceed in the same manner as if there were a school board acting in such district, and that board were a board in default.

As to the proceedings which may be taken by the Education Department when the school board are in default, see secs. 63-66. Schedule 2, however, contains provisions by which the difficulty occasioned by the non-election of members may be met without the Education Department having recourse to those proceedings. If no members are elected at the time fixed for the first election, the Education Department may appoint another day for the election. If there is a failure to elect members at the time prescribed for the triennial election, the retiring members, or so many as are willing to serve, are to be deemed to be re-elected, but if all the members refuse to serve, another day may be fixed for an election. If an insufficient number of members are elected, or, if, in the case of no members being elected, some of the retiring members are and some are not willing to serve, the school board, so far as it is constituted, may elect a person to fill each vacancy.

If a casual vacancy occurs by death, resignation, disqualification, or other

I

wise, the vacancy may be filled up by the remaining members of the board, if a quorum (39 & 40 Vict., c. 79, sec. 44, and Schedule 3, post).

If the number of members is reduced to less than the number required for a quorum, the Education Department may direct an election to fill up the vacancies.

See note 4 to sec. 63 as to cases in which the powers conferred by this section have been exercised by the Education Department.

Determination of Disputes as to the Election of School Boards.

33. In case any question arises as to the right of any person to act as a member of a school board under this Act, the Education Department may, if they think fit, inquire into the circumstances of the case, and make such order as they deem just for determining the question; and such order shall be final, unless removed by writ of certiorari during the term next after the making of such order.

No election can be questioned on the ground of the title of the returning officer, or any person presiding at the poll, or any officer connected with the election (Schedule 2, first part, No. 7).

It is understood that the Education Department have not as yet in any case exercised the powers conferred upon them by this section of determining the validity of the election of a member of a school board. Mr. Forster stated in the House of Commons that the Department did not consider that they had the machinery necessary for satisfactorily trying election disputes, and that any person considering that he had a right to complain of an election, might raise the question of the right of a person to act as a member by filing an information in the nature of a quo warranto. The Education Department would, however, exercise the power given them in cases in which, with the consent of all parties, it might be desirable to do so in order to prevent a resort to another tribunal.

The section, although headed "determination of disputes as to the election of school boards," refers to any question "as to the right of any person to act as a member of a school board under this Act." It therefore extends to questions as to whether members have by reason of disqualification lost their right to act as members of the board.

The 36 & 37 Vict., c. 86, by sec. 9, post, provides that the election of a member of a school board shall not be questioned except within six months after the declaration of the election.

Disqualification of Member of Board.

34. No member of a school board, and no manager appointed by them, shall hold or accept any place of profit the appointment to which is vested in the school board or in

any managers appointed by them, nor shall in any way share or be concerned in the profits of any bargain or contract with or any work done under the authority of such school board or managers appointed by them: Provided that this section shall not apply to

(1.) Any sale of land or loan of money to a school board;

or,

(2.) Any bargain or contract made with or work done by a company in which such member holds shares; (3.) The insertion of any advertisement relating to the affairs of any such school board in any newspaper in which such member has a share or interest, if he does not vote with respect to such sale, loan, bargain, contract, work, or insertion.

Any person who acts in contravention of this section shall be liable, on summary conviction, to a penalty not exceeding 507., and the said place of profit and his office as member or manager shall be vacant.

The only case which has come before the Courts as to the construction of this section is that of Tanfield (App.) v. Reynolds (Resp.), 39 J. P. 293.

From the case which was stated for the opinion of the Court of Queen's Bench, it appeared that, at a petty sessions held at Dudley, an information was preferred by Thomas Reynolds against Doylah Tanfield, charging for that he, the said Doylah Tanfield, on the 23rd March, 1874, then being a member of the school board for the borough, unlawfully did share and was then concerned in the profits of a contract with the board for certain work done under the authority of the board-to wit, printing. Upon the hearing of the information it was proved on the part of the respondent, that for three years up to the month of January, 1874, the appellant (who was a printer in partnership with Orchard) was a member of the school board, and was a candidate for re-election at the triennial election of the board in that month, and was duly re-elected a member of the new board. Previous to the election, the appellant received from the mayor (who was the returning officer of the election) some of the orders for printing the necessary documents and forms required for the election, but none of the items in the appellant's accounts were ordered by the school board, nor did the school board exercise any control or authority over the returning officer with respect to the orders he gave, or in any way interfere with the giving of the orders. After the election the whole of the tradesmen's accounts were sent to the mayor, and were examined by the town clerk (including that of the appellant and Orchard his partner, amounting to 117. 88.), and they were afterwards forwarded to the school board, and were examined by the finance committee of the board, of which the appellant was a member, and were subsequently paid by cheques of the board on their treasurer out of the school fund. It was admitted by the appellant that he was in partnership with Orchard, and received a share of the profits on the account. The justices, at the hearing, convicted the defendant, and sentenced him to pay a fine of 57., and costs 17. 148. 6d., and in default to be imprisoned for one month. The question of law for the opinion of the Court

of Queen's Bench was whether there was any evidence upon which the justices could find that the appellant had shared in the profits of a contract with or any work done under the authority of the school board, and the Court held that the evidence was quite sufficient to justify the conviction; and judgment was accordingly given for the respondent.

It

In connection with this case the question was raised in the Queen's Bench Division in April 1877 (Reg. v. Dudley School Board) whether Mr. Tanfield under the circumstances stated had been guilty of corrupt practices under sec. 91 of this Act and sec. 8 of the 36 & 37 Vict., c. 86, post, so as to disqualify him for being a member of the school board for a term of six years. appeared that Mr. Tanfield having been again elected a member of the school board, the board passed a resolution declaring that in consequence of the conviction above referred to he was not qualified to act. A rule was then obtained on his behalf, calling upon the school board and the chairman of the board to show cause why a mandamus should not issue, commanding them to allow him to exercise the office of a member of the board. The Lord Chief Justice, when cause was shown against the rule, said that there was no connection between this section and the section imposing a disqualification for corrupt practices. It was clearly a case where zeal as to purity of election had outrun discretion. The Court made the rule absolute, suggesting that if the board paid Mr. Tanfield's costs, and allowed him to take his seat at the board, no proceedings should be taken on the mandamus.

In the case of Nicholson v. Fields, 7 H. & N. 810, 31 L. J., N. s., Exch. 233, where proceedings for a penalty were instituted against a commissioner, under the 10 & 11 Vict., c. 16, s. 15, for having been "concerned or participated in a contract" with the commissioners, the evidence consisted of a bill addressed to the commissioners for several separate quantities of lime supplied at different times during four months, and receipted by the defendant, and this evidence was held to be sufficient. It was, however, admitted in that case, and by some of the Judges in Wooley v. Kay, 1 H. & N. 307, that the casual purchase of a single article at a shop and paying for it over the counter, would not be such a transaction as would come within the meaning of the Act. See also Lewis v. Carr, 34 L. T., N. s., Exch. 390.

With regard to the extent of the interest in the profits of a bargain or contract which would disqualify a member and render him liable to a penalty, the case of Le Feuvre v. Lancaster, 3 E. & B. 530, may be referred to. The Local Board of Health of Southampton, being the town council, contracted with a person to supply iron railings, and an alderman of the borough sold him some iron to complete the contract. The sale was made openly and bonâ fide, and it was held that the defendant had not any" share or interest in any contract or employment" so as to render him liable to a penalty under the Municipal Corporations Act, 5 & 6 Wm. IV., c. 76, sec. 28. In a case, however, where a turnpike Act contained a clause prohibiting any trustee from having any share or interest in, or being in any manner, directly or indirectly, concerned in any contract or bargain, and from letting out for hire any waggon, horse, &c., for the use of the road, and a trustee of the road let his horse and cart for a certain sum to a contractor for works on the road to be used in the performance of the works, the defendant was held to be liable to the penalty (Towsey v. White, 5 B. & C. 125). The cases of West v. Andrews, 5 B. & Ald. 328; Pope v. Backhouse, 8 Taunt. 239; Barber v. Waite, 1 A. & E. 514, and Davies v. Harvey, 43 L. J., M. C., 121, 30 L. T., N. s., 629, under the statutes relating to guardians of the poor, may also be referred to.

In the last-mentioned case, which came before the Court of Queen's Bench in May 1874, a guardian was convicted of having furnished or caused to be furnished for his own profit on his own account goods and materials ordered to be given in parochial relief, under the following circumstances: The guardian carried on business as a cabinet-maker, in partnership with his son, and the relieving-officer purchased at their shop an iron bedstead to be delivered to a pauper. The order was given to the son, and the price was paid to him. He made out the account in his own name, and gave the receipt in the same manner. The guardian was not present when the bedstead was ordered, nor when it was paid for, nor when it was delivered, and there was no evidence to show that he knew that the order had been given. The Court of Queen's Bench confirmed the conviction, Mr. Justice Blackburn observing, "The section forbids the supply of goods by any person filling an office concerned in the administration of the laws for the relief of the poor. The mischief provided against is equal whether the goods are supplied by the defendant himself or his partner or servant. No doubt there must be knowledge in the person actually selling or supplying the goods, but that knowledge must be taken to be that of the defendant. I do not think to make an officer responsible under this section it is necessary to show personal knowledge on his part of an offence committed by his partner."

As to the office of treasurer, when no remuneration is assigned to the officer, see note on sec. 35.

See also clauses 12 and 14 of the Second Schedule, first part, of this Act, and sec. 8 of the 36 & 37 Vict., c. 86, post, as to other disqualifications.

As to proceedings for recovery of penalties, see sec. 92, and 36 & 37 Vict., c. 86, secs. 23, 24, post.

Appointment of Officers.

35. A school board may appoint a clerk and a treasurer and other necessary officers, including the teachers required for any school provided by such board, to hold office during the pleasure of the board, and may assign them such salaries or remuneration (if any) as they think fit, and may from time to time remove any of such officers; but no such appointment shall be made, except at the first meeting of such board, unless notice in writing has been sent to every member of the board. (1)

Two or more school boards may arrange for the appointment of the same person to be an officer to both or all such boards. (2)

Such officers shall perform such duties as may be assigned to them by the board or boards who appoint them. (3)

(1) The appointment of an officer may be made by a minute of the board, signed by the chairman and countersigned by the clerk, if any. An appointment so made is as valid as if it were made under the seal of the board (Schedule 3, No. 7). The Inland Revenue Commissioners held that under the Stamp Act, 1870, appointments by school boards were liable to stamp