not acting in pursuance of their authority when they made the rate in question, and therefore the plea is no answer to the action.

1825.

The EARL of in of FALMOUTH

Judgment for the plaintiff.

(a) Littledale, J. was absent.

RICHARDSON.H

JONES v. WILLIAMS.

vided, that

TRESPASS for an assault and false imprisonment. A charter proPlea, not guilty, and issue thereon. At the trial before there should Park, J. at the Salop Summer Assizes, 1824, the case be two alderwas this:

act for one

year, by themselves, or their deputies; that on their death for removal,

other alder

men in the borough of D. The plaintiff, having withdrawn from her service with who should one Hughes, in Denbigh, before the expiration of the year for which she had agreed to serve, was convicted of that offence under the 4 G. 4. c. 34. s. 3. by the defendant, who acted as the deputy of one John Copner Williams, an alderman of the borough of Denbigh, and by him com- men should be elected, who mitted for one month to the house of correction at should act for Ruthin, within t the borough of Denbigh. The plaintiff the rest of the year, by themhaving proved this case, it was objected it was objected on the part of the selves, or their defendant that the plaintiff had not given the notice of deputies; that action required by the 24 G. 2. c. 44. s. 1., and the ques- of the aldertion arose whether the defendant was a justice of the dermen might the men, new alpeace for the borough of Denbigh, and as such entitled be elected in to notice. The charter of the borough being produced, and, that the was found to contain a grant that the aldermen, bailiffs, the time being und to con should be jus

in the absence

their room;

tices of the peace for the borough:-Held, that the deputy of an alderman, was not a justice of the peace for the borough.

Semble, that since the 27 H. 8. c. 24. s. 2., the king cannot delegate the power of making a justice of the peace.

1825.

JONES

and capital burgesses of the borough, for the time being, or the major part of them, of which one of the aldermen and one of the bailiffs should be two, being assembled WILLIAMS, from time to time, might and should have power and authority yearly, on &c. to elect two, out of the number of the burgesses of the borough, who should be aldermen of the said borough for one whole year, then next ensuing; that they, after they were so elected and nominated aldermen of the borough, should take the oaths before the steward or his deputy; or, if there were no steward at the time of such election and nomination, then before their immediate predecessors, and in the presence of ten capital burgesses of the said borough, for the time being, to execute their office well and faithfully; that they should have power and authority to execute by themselves, or in their absence by their deputies, the offices of aldermen of the said borough, for one whole year, then next ensuing, and until some other should in due form be elected and sworn into the offices of aldermen; that if it should happen that either of the aldermen of the borough for the time being should die, or be displaced from his office, that then and so often it should be lawful for the surviving aldermen, and the bailiffs and capital burgesses of the borough for the time being, or the major part of them, to elect or place in another of the number of the burgesses of the said borough, for alderman of the said borough; and that he, being so elected and placed in, might and should have and exercise the said office for the remainder of the said year, and until one or more were duly chosen and sworn to the said office, (the corporal oaths to be so first taken in form aforesaid,) by himself or themselves, or his or their deputies, in his or their absence. Proviso, that the aldermen, bailiffs, and burgesses, of the said borough, or the major part of them, from time to time, and at all times thereafter, should and

A

might have power and authority to elect and nominate, and that they should and might elect, the welfare of the said borough requiring it, and when it should be necessary and requisite, out of the number of the capital burgesses of the borough aforesaid, one or two other alderman or aldermen, in the absence of the other alderman or aldermen and bailiffs, or one or more of them, any thing to the contrary in any wise notwithstanding; and that he, or they, after they were so elected and nominated, as aforesaid, to be alderman or aldermen of the borough aforesaid, should take, as aforesaid, their corporal oaths, in due form, that they would execute their offices well and faithfully, so long as he or they should continue in the same. The charter then contained a clause constituting the aldermen of the borough, for the time being, while they remained in office, keepers and justices of the peace in the said borough, liberties and precincts of the same, &c.; and a non-intromittant clause: and it then concluded by naming the first aldermen, &c. In reply to this document, it was urged on the part of the plaintiff, first, that the crown could not delegate to a subject the power of creating a justice of the peace; and, second, that even if it could, still the words of this charter did not amount to any such delegation; the charter merely empowered the aldermen to execute by themselves, or their deputies, that particular office of alderman of the borough, and though it certainly did superadd the office of justice to that of alderman, still the former was and must remain a separate and distinct office, and the alderman could not appoint a deputy justice, although he might appoint a deputy alderman. The learned judge, however, thought that as one part of the charter empowered the aldermen to appoint deputies, and another part constituted the aldermen justices of the peace, both those parts must be read with reference to

1825.

JONES

v.

WILLIAMS.

1825.

JONES

v.

WILLIAMS.

each other, and construed as giving to the aldermen power to appoint deputies to do all that they themselves had power to do under the charter; therefore that the defendant being a deputy alderman, was also a deputy justice, and as such entitled to notice of action. His lordship therefore directed a nonsuit.

Godson, in Michaelmas Term last, obtained a rule to shew cause why the nonsuit should not be set aside, and a new trial had. He made two points; first, that the crown could not by charter, or otherwise, delegate to any subject the power of making a justice of the peace, or any judicial officer; and, consequently, that no justice of the peace, or other judicial officer, had power to appoint a deputy; and second, that even if the crown could delegate such a power, the words of this charter were insufficient to express such a purpose. First, such a delegation would be equally unconstitutional, whether as respects the rights of the subject, or the prerogative of the crown. The king is the fountain of justice, and in his hands the power of creating magistrates and other judicial officers is safely and becomingly placed; but it would be neither safe nor proper that justices themselves, who might be swayed by various improper motives, should have a similar power. On this point he cited Com. Dig. Officer, D. 2., Id. Justices, A. 1., 27 H. 8c. 24. ss. 2. 6., and Rex v. the Mayor of Gravesend(a). Second, even if the king could empower a justice to appoint a deputy, he clearly could not do so, except by the most clear, express, and unequivocal words, and there are none such in this charter. Without express words to that effect, it by no means follows that an alderman is also necessarily a justice of the peace; Rex v. Langley; (b)

(a) 4 D. & R. 117.

(b) 2 Ld. Rd. 1029.9

and in all such appointments it has always been held necessary that express words should be used, 4 Inst. 88. These deputy justices are quite superfluous in the borough, because the proviso in the charter authorises the election of new aldermen in the absence of those annually elected under the charter; the borough therefore would sustain no inconvenience, and the Court will, if possible, repress a practice so dangerous and unconstitutional.

W. E. Taunton and Campbell now shewed cause. The alderman, under whom the defendant acted, had by the charter authority to appoint a deputy generally, which must mean a deputy to discharge all the functions which the principal himself had previously discharged. The charter constitutes two of the burgesses aldermen and justices of the peace for the borough, and no more; and it contains a non-intromittant clause. Then, if the argument on the other side is to prevail, whenever those two aldermen are absent from the borough, great inconvenience will arise from the utter defect of justice, for there will be no individual within the borough qualified to act as a justice of the peace. It must be admitted that without express authority for the purpose, no judicial officer can appoint a deputy; but here there is such express authority. The charter declares that the aldermen shall have power and authority to execute by themselves, or, in their absence by their deputies, the offices of aldermen of the borough. What are their deputies to do? They are to act quà aldermen, and to exercise in their persons all the duties and powers which would otherwise be exercised by the aldermen themselves. Had that clause of the charter which constitutes the aldermen justices of the peace for the borough preceded that which empowers the aldermen to appoint deputies, there would have been no room for argument on the point, for

1825.

JONES

v.

WILLIAMS.