Municipal Boroughs and Ultra Vires
| Date | 01 June 1949 |
| Published date | 01 June 1949 |
| DOI | http://doi.org/10.1111/j.1467-9299.1949.tb02672.x |
| Author | Bryan Keith‐Lucas |
Municipal Boroughs
and
Ultra
Vires
By BRYAN KEITH-LUCAS
The development
of
the modern
English system of Local Government
has been profoundly influenced by the
Judge-made law of Ultra Vires. Few
Acts of Parliament have affected the
nature of its institutions
so
deeply, and
certainly none has exercised
so
powerful
a
restraint on enterprise and develop-
ment. This doctrine is, however, entirely
the product of judicial decision and only
in the last century has it been applied to
local authorities. In the last twenty
years its importance in the case of
boroughs has been much affected by
legislation and judicial decision, the
effect of which it is proposed to consider.
The Boroughs
of
England (with the
exception of Metropolitan Boroughs)
are the creations of the Royal Prero-
gative expressed through Charters. They
owe their existence and incorporation to
these charters (in some cases the
existence
of
the charter is assumed
because of the ancient existence of the
corporation) not to Acts of Parliament.
At common law such a corporation, in
the words of Blackstone,
“
may sue or be
sued, implead or be impleaded, grant or
receive by its corporate name and do
all other acts as natural persons may.”
This is the Common Law position,
but it has been to some extent modified
by statutes-particularly the Municipal
Corporation Act,
1882,
consolidating
previous statutes, which regulated how
the Borough Fund might be spent.
The position after the passing of that
Act was therefore as stated by Lux-
moore,
J.,
in A.G.
v.
Leeds Corporation
(1929)
2
Ch.
295-“
The Corporation
was incorporated by royal charter in
the year 1627 in the reign of King
Charles
I.
The fact that it is incor-
porated by royal charter is of importance,
because a corporation
so
constituted
stands on
a
different footing from
a
statutory corporation, the difference
being that the latter species of corpora-
tion can only do such acts as are
authorised directly or indirectly by the
statute creating it
;
whereas the former
can, speaking generally,
do
anything
that an ordinary individual can do. If,
however, the corporation by charter be,
as the corporation is in the present case,
a municipal corporation, then it is
subject to the restriction imposed by the
Municipal Corporations Act,
1882,
and
can be restrained from applying its
funds to purposes not authorised by that
Act.”l
Section 140
of
the Act
of
1882
provided that the borough fund should
be used to meet certain specified
liabilities, and that no other payment
should be made out of
it
except under
the authority of an Act of Parliament
or by order of the Council, or the
authority of
a
Court. But in Tyne-
mouth Corpn.
v.
A.G.
(1899)
A C
293
the House of Lords rejected the argument
that
this
meant that
all
payments by
order of the Council must be held good
(unless and until they are disallowed by
the Queen’s Bench Division).
This
argument, in Lord MacNaghten’s words,
“
seems to be contrary to the spirit
and
intention of the Act and would tend to
place the Borough Fund very much at
the mercy
of
an unscrupulous majority
in the Borough Council.” Thus the
obvious reading was rejected in favour
of
an interpretation which made the
authority of an Act of Parliament an
essential condition for authorised expen-
diture from the Borough Fund. There
is, however, no reason to believe that
Parliament ever intended by this legis-
lation to alter radically the established
Common Law powers
of
the ancient
corporations in this way. Meanwhile
the doctrine of ultra vires, in its true
sense, as applied to statutory
corporations, had been developed in
cases concerning the new railway and
canal companies, and was automatically
applied to the new statutory local
authorities-County Councils, Urban and
Rural District Councils, Parish Councils
and Metropolitan Borough Councils.
Thus the statutory corporations and
the chartered corporations appeared to
be in much the same position; the
former strictly limited by the doctrine of
ultra vires, the latter by sec.
140
of the
Act
of
1882 which made the specific
87
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