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Per Pollock, C.B., with regard to bye-laws ultra vires: "Persons empowered to make bye-laws have no right to invest themselves with powers which the law will not sanction. The way in which Boards are inclined to use their powers makes it very desirable that they should have as little power as possible" and per Bramwell, B.: "It is about the same as a policeman who thinks he is not entitled to a staff unless he breaks somebody's head with it." 7 L. T. (N. s.) 334.

One of the cases, of which there are several, showing that a bye-law, whether by charter or statute, cannot be made in forfeiture of a right unless the form given is expressly conferred by statute is Kirk v. Nevil, 1 T. R. 118.

A more modern case, showing that powers given to make bye-laws, though in general terms, are limited to objects contemplated by the statute, is Calder Navigation Company v. Pilling, 14 M. & W. 76, and that was a case in which a general power to make bye-laws for the good management of a navigation was held not to authorize a bye-law that the navigation should not be used on a Sunday.

A person having been previously convicted under a bye-law for having built a party-law not of the thickness prescribed by the bye-law, was some time afterwards again summoned and convicted in respect of the same wall, and adjudged to pay a penalty of 58. a day for seven days as for a continuing offence. But the Court of Queen's Bench held that the conviction could not be supported. The words "continuing offence," in sect. 115 of 11 & 12 Vict. c. 63, the Court said, must be read to mean an offence which was from its nature susceptible of continuance-such as improper drainage, &c.—and could not apply to the case of a party-wall when once finished. The fact that by sect. 34 of 21 & 22 Vict. c. 98, the Local Board are empowered to pull down walls improperly built was a sufficient answer to any argument that unless a continuing penalty were enforced the intention of the Acts could be defeated. If the offence complained of were within the bye-law, it would be more proper to hold the bye-law unreasonable than to allow a penalty to be enforced which might continue for the length of a man's life. Marshall v. Smith, 28 L. T. (N. S.) 538: 37 J. P. 471; 42 L. J. M. C. 108; L. R. 8 C. P. 416.

Effect of bye-laws.-A bye-law has the same force within its limits, and with respect to the persons upon whom it lawfully operates, as an Act of Parliament has upon the subjects at large. Hopkins v. Swansea, 4 M. & W. 640, per Lord Abinger, C.B. The validity of a bye-law may be tested and tried in an action brought to recover the penalty; or if the mode of enforcing the penalty be by distress, by an action of trespass. Moir v. Munday, Sayer, 181, 185.

Bye-laws with respect to markets, &c.-A local Act prohibited the sale of goods on the public highway of a town under a penalty, but provided that no person should be liable to such penalty for selling goods in such parts of the town as had been theretofore used for that purpose at the time of the usual markets. A Local Board of Health having been established for the town by 16 & 17 Vict. c. 24, which repealed portions of the local Act, but left the provisions of that Act unrepealed as regards the above matters, and incorporated them therewith, and also the powers of regulating the market given by the Markets and Fairs Clauses Act, 1847. The Local Board, acting under these provisions, made a bye-law that no meat should be sold in a particular part of the market held in the town; and on a case stated for the opinion of the Court of Common Pleas, under 20 & 21 Vict. c. 43, it was held that the bye-law was valid and a reasonable regulation of the market, and that for a breach of it a penalty might be enforced, notwithstanding the provision of exemption incorporated from the local Act. Savage v. Brook, 33 L. J. M. C. 42; 15 C. B. (N. s.) 261; 10 Jur. (N. s.) 587; 9 L. T. (N.S.) 334.

Where a bye-law of a market imposed a penalty on all persons who left carts in the market-place for a longer time than was necessary for loading or unloading, and an innkeeper, by direction of a carter who put up at his inn, left the cart in the market-place for an hour, carts having for many years been so left while the owners attended market, it was held that the

A.D. 1875.

A.D. 1875.

Power to impose

innkeeper was liable to be convicted if he put the cart in the market-place. De Caux v. Powley, 28 J. P. 806.

A bye-law for regulating a market must not be so restrictive as to prevent without leave a frequenter of it from resorting to it. Wortley v. Nottingham, 21 L. T. (N.s.) 582; 33 J. P. 806.

183. Any local authority may, by any byelaws made by them under this Act, impose on offenders against the same breach of bye- such reasonable penalties as they think fit, not exceeding

penalties on

laws.
P.H., s. 115.

Confirmation of byelaws.

P.H., s. 115.

the sum of five pounds for each offence, and in the case of a continuing offence a further penalty not exceeding forty shillings for each day after written notice of the offence from the local authority; but all such byelaws imposing any penalty shall be so framed as to allow of the recovery of any sum less than the full amount of the penalty.

Nothing in the provisions of any Act incorporated herewith shall authorize the imposition or recovery under any byelaws made in pursuance of such provisions of any greater penalty than the penalties in this section specified.

184. Byelaws made by a local authority under this Act, shall not take effect unless and until they have been P.H. 1874, s. submitted to and confirmed by the Local Government Board, which Board is hereby empowered to allow or disallow the same as it may think proper; nor shall any such byelaws be confirmed

48.

P.H. 1874, s. 46.

Byelaws to be printed, &c. P.H., s. 115.

P.H. 1874, s. 48.

Unless notice of intention to apply for confirmation of
the same has been given in one or more of the local
newspapers circulated within the district to which
such byelaws relate, one month at least before the
making of such application; and
Unless for one month at least before any such application
a copy of the proposed byelaws has been kept at the
office of the local authority, and has been open during
office hours thereat to the inspection of the ratepayers
of the district to which such byelaws relate, without
fee or reward.

The clerk of the local authority shall, on the application of any such ratepayer, furnish him with a copy of such proposed byelaws or any part thereof, on payment of sixpence for every hundred words contained in such copy.

A byelaw required to be confirmed by the Local Government Board shall not require confirmation allowance or approval by any other authority.

185. All byelaws made by a local authority under this Act, or for purposes the same as or similar to those of this Act under any local Act, shall be printed and hung up in the office of such authority; and a copy thereof shall be delivered to any ratepayer of the district to which such

byelaws relate, on his application for the same; a copy of any byelaws made by a rural authority shall also be transmitted to the overseers of every parish to which such byelaws relate, to be deposited with the public documents of the parish, and to be open to the inspection of any ratepayer of the parish at all reasonable hours.

A.D. 1875.

186. A copy of any byelaws made under this Act by a Evidence of local authority (not being the council of a borough), signed byelaws. and certified by the clerk of such authority to be a true copy and to have been duly confirmed, shall be evidence until the contrary is proved in all legal proceedings of the due making confirmation and existence of such byelaws without further or other proof.

See the Introduction, ante, pp. lx, lxxix.'

Proof of bye-laws of municipal corporations. 36 & 37 Vict. c. 33, s. 2.— The production of a written or printed copy of any bye-laws made by the council of a borough, either under the Municipal Corporations Act of the 5 & 6 Wm. IV. c. 76 or under any present or future general or local Act of Parliament, authenticated by the common scal of the borough, shall be evidence, until the contrary is proved, of the due making and existence of such bye-laws, and, if so stated in such copy, of the same bye-laws having been approved and confirmed by the authority whose approval or confirmation is or shall be required to the making or enforcing of such byelaws in all legal proceedings, without further proof of the making of such bye-laws, or of such approval or confirmation, or of the said common seal.

Local Govern

187. Byelaws made by the council of any borough under Byelaws made the provisions of section ninety of the Act of the sixth under s. 90 of 5 & 6 W. 4, year of King William the Fourth, chapter seventy-six, for c. 76, to be the prevention and suppression of certain nuisances, shall submitted to not be required to be sent to a Secretary of State, nor shall they be subject to the disallowance in that section P.H. 1874, s. mentioned; but all the provisions of this Act relating to 46. byelaws shall apply to the byelaws so made as if they were made under this Act.

The bye-laws which a Town Council may make under 5 & 6 W. IV., c. 76, sec. 9, are "for the good rule and government of the borough, and for the prevention and suppression of all such nuisances as are not already punishable in a summary manner by virtue of any act in force throughout such borough."

ment Board.

188. The provisions of this Act relating to byelaws As to regushall not apply to any regulations which a local authority lations of local is by this Act authorized to make; nevertheless, any authority. local authority may cause any regulations made by them under this Act to be published in such manner as they see fit.

As to this section, see sec. 189, post.

A.D. 1875.

Appointment

urban autho

rity.

P.H., s. 37.
P.H. 1872, s.

10.

OFFICERS AND CONDUCT OF BUSINESS OF LOCAL

AUTHORITIES.

Officers of Local Authorities.

189. Every urban authority shall from time to time of officers of appoint fit and proper persons to be medical officer of health, surveyor, inspector of nuisances, clerk, and treasurer: Provided that if any such authority is empowered by any other Act in force within their district to appoint any such officer, this enactment shall be deemed to be satisfied by the employment under this Act of the officer so appointed, with such additional remuneration as they think fit, and no second appointment shall be made under this Act. Every urban authority shall also appoint or employ such assistants collectors and other officers and servants as may be necessary and proper for the efficient execution of this Act, and may make regulations with respect to the duties and conduct of the officers and servants so appointed or employed.

Subject, in the case of officers any portion of whose salary is paid out of moneys voted by Parliament, to the powers of the Local Government Board under this Act, the urban authority may pay to the officers and servants so appointed or employed such reasonable salaries wages or allowances as the urban authority may think proper; and, subject as aforesaid, every such officer and servant appointed under this Act shall be removable by the urban authority at their pleasure.

Officer of health. 21 & 22 Vict. c. 90, s. 36. 22 Vict. c. 21. 23 & 24 Vict. c. 7. 23 & 24 Vict. c. 66. 21 & 22 Vict. c. 90, s. 34.-No person can hold any appointment as a medical officer of health unless he be registered under the Medical Acts; and the words "legally qualified medical practitioner " are to be construed to mean a person registered under that Act. This officer is removable by the local authority, and is to perform such duties as he may lawfully be directed to perform; the same person may be officer of health for two or more districts, and his salary is to be paid out of the general district rates.

Generally, as to the appointment and duties of medical officers of health and inspectors of nuisances in urban districts, see the Orders of the Local Government Board in the Appendix.

It is necessary that some responsible individual should be appointed treasurer. The Act is not satisfied by the appointment of a banking company as treasurer.

A police officer cannot hold the office of Inspector of Nuisances. Circular of Home Office; 2nd Dec. 1873.

The appointment of an officer need not be by an instrument under seal. Smart v. West Ham, 24 L. J. Exch. 201; Reg. v. Greene, 17 Q. B. 793; but it should be entered in the minutes of the meeting of the local authority at which it is made, so that, if necessary, the fact of the appointment having been made may be capable of proof. The salary of the inspector

may be either annual or weekly, and may be paid at such periods as may be stipulated at the time of the appointment, and if it be not paid the officer may recover it in an action for debt. Hall v. Taylor, infra.

By the Act 33 & 34 Vict. c. 23, s. 2, a conviction for treason or felony will vacate any public office the person convicted may hold.

The appointment does not create a contract on the part of the Local Board to pay the salary to the officer, and therefore an indebitatus action will not lie against them for the salary if payment of it be withheld. A mandamus or an action on the case is the proper remedy. Bogg v. Pearse, 10 C. B. 534; 20 L. J. C. P. 99. As to the power of a Local Board to award extra remuneration to one of their officers, their surveyor, whom they may have employed professionally to superintend the construction of works not properly falling within his ordinary duties as surveyor, see Reg. v. Gloucester, 33 L. T. 145.

With regard to the employment of an attorney by a Local Board, it has been held that it was within the scope of the authority of certain Commissioners invested with rating powers and powers to appoint officers, to employ an attorney; and that the attorney to employed might recover in an action against the clerk of the Commissioners in a succeeding yearthe Commissioners being empowered to sue and be sued by their clerk. Hall v. Taylor, 1 E. B. & E. 107; 22 Jur. 877; 27 L. J. Q. B. 311.

Actions for statutory payments. With regard to the remedy against a Local Board of Health for not making a statutory payment, it may be here stated that in a case where the powers and duties of certain trustees appointed under a Local Act were by a provisional order of the General Board of Health (confirmed by the 13 & 14 Vict. c. 108) vested in the Local Board of Health for the district, one of those duties being to pay the salary of the organist of the parish church out of a certain fund, an action was brought on the case by the organist against the Local Board for a breach of duty in not paying his salary, alleging that they had sufficient funds for the purpose (which was proved at the trial), and it was held that the Board and the organist stood in the relation of trustee and cestui que trust; and that in the absence of a specific appropriation of a part of the fund to the plaintiff, no action at law lay; the remedy being in equity. Edwards v. Lowndes, 1 E. & B. 81; 22 L. J. Q. B. 104; 17 Jur. 412. So where a committee who were elected annually from among the justices of the county, who were authorized by 8 & 9 Vict. c. 126, s. 17, to make certain contracts, and by sect. 16 might be sued in the name of their clerk, it was held that an action was maintainable against the committee for the time being in the name of their clerk upon a contract entered into by a former committee within the scope of their authority; but, semble, that the plaintiff's remedy to enforce their judgment would be by bill in equity or mandamus. Kendall v. King, 25 L. J. C. P. 132. In Hall v. Taylor, supra, Lord Campbell, C.J., said that the power to make contracts within the scope of the statute and the incidents to suits for the breach of such contracts, are fully considered in Kendall v. King, and the law upon this subject is there clearly laid down.

Where, however, Commissioners under a Local Paving Act having granted an annuity on the credit of the rates, in pursuance of the powers given to them by their Act, neglected to pay the annuity when they had sufficient rates in their hands, it was held that case was the proper form of action. Cane v. Chapman, 1 N. & P. 104.

Proceedings for recovery of salary, &c.-A claim to a writ of mandamus under the 68th section of the Common Law Procedure Act, 1854, could not be sustained if there were any other equally effectual remedy. In an action by executors against the clerk to Improvement Commissioners under a local Act, claiming a writ of mandamus under that section, the declaration stated that the Commissioners were indebted to the testator for the "agreed salary" payable by them to him for services rendered by him as clerk to the Commissioners; and also for other work by him " as the attorney of and otherwise for " the Commissioners in and about the business of the Commissioners. The declaration then alleged "that the said debts became and were a charge on any moneys which might be in

A.D. 1875.

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