PART I.

CHAPTER I.

FORMATION OF DISTRICTS.

§ 1. DISTRICTS UNDER THE PUBLIC HEALTH ACT, 1848.

THE manner in which districts under Local Boards of Health were constituted under the Public Health Act, 1848, will be treated of in the first place; and then the mode of adoption of the Local Government Act, 1858 (as amended by the 24 & 25 Vict. c. 61, and 26 Vict c. 17, and subsequent Acts), will be explained.

11 & 12 Vict.

c. 63, s. 8.

If information should be required as to the places in which either of the Acts have been adopted, reference may be made to a return to the House of Commons (No. 80, 1867), showing the names of such places, their population and rateable value, and the Local Acts applicable to each place; and also to Knight and Co's. "Union and Parish Officers Almanac and Guide." After the passing of the Public Health Act, 1848, upon the Preliminary petition of not less than one-tenth of the inhabitants rated to inquiry the relief of the poor of any city, town, borough, parish, or place having a known or defined boundary, not being less than thirty in the whole, or where it appeared or could be ascertained from the last return of the Registrar General that the number of deaths annually, during the period in respect whereof the return was made, had on an average exceeded the proportion of twenty three to a thousand of the population, the General Board of Health were empowered to direct a superintending inspector to visit such city or other place, and to make public inquiry, and to examine witnesses, as to the sewerage, drainage, and supply of water, the state of the burial-grounds, the number and sanitary condition of the inhabitants, and as to any local Acts of Parliament in force for paving, lighting, cleansing, watching, regulating, supplying with water, or improving the city or place, or having relation to the purposes of the Act, also as to the natural drainage areas, and the existing municipal, parochial, or other local boundaries, and the boundaries which might be most advantageously adopted for the purposes of the Act, and as to any

Inspector's notice of inquiry, and report.

12 Vict.

c. 63, s. 9.

How when error in

district.

other matters in respect whereof the Board desired to be informed, for the purpose of enabling them to judge of the propriety of reporting to her Majesty, or making a provisional order.

Before proceeding upon the inquiry, the inspector was required to give fourteen days' public notice of a time and place at which he would be prepared to hear all persons desirous of being heard before him upon the subject of the inquiry: after the completion of the inquiry he was required to make a report in writing to the General Board of Health, and if upon his report it appeared to the General Board that the boundaries which might be most advantageously adopted for the purposes of the Act were not the same as those of the city, town, borough, parish, or place with respect to which inquiry was made, they were to cause a further inquiry and report to be made to them. The Board were then to cause copies of the reports so obtained to be published, and copies of them to be deposited with the town-clerk, and with the clerk to any commissioners or trustees of the place affected by them, and with the clerk to the justices as well as with the clerk to the Board of Guardians of the union or parish the whole or part of which might be affected by them, or if they related to places not within any corporate borough, the Board were to cause copies of them to be deposited with the churchwardens or overseers of the poor; the copies of the reports so published or deposited were to be accompanied by a notice stating that within a certain time, not being less than one month, written statements might be forwarded to the Board with respect to any matter contained in or omitted from the reports, or any amendment proposed to be made in them; which statements were to be dealt with in like manner as the reports, and both statements and reports were to be open to public inspection.

With regard to the application of the Public Health Act, 1848, it has been held that it was legally put in force by an description of Order in Council, within a parish consisting of a township and certain hamlets, upon the petition of the inhabitants of the parish, though the superintending inspector appointed to inquire as to the parish made his report headed as to the "town," and recommended that the Act should be applied to the "township," the public notice which he gave before entering upon the inquiry having reference to the "parish." (1) The notice in the case of Barber v. Jessop was objected to as being insufficient in form and substance, and it was contended that there was no sufficient inquiry; but the Court held that the giving of the notice was not a condition precedent, but refused to say whether the holding of an inquiry was such condition: it was observed by Pollock, C.B., and Bramwell, B., that there really was an inquiry extending over the whole area covered by the

(1) Barber v. Jessop, 1 H. & N. 578.

order. There was in fact in that case a substantial though not an exact compliance with the Act as to the preliminary

proceedings.

If afterwards it appeared to the General Board of Health to Application of be expedient that the Act, or any part of it, should be applied the Act by to the particular city, town, borough, parish, or place, with order of Her Majesty in respect to which the inquiry was made, they were to report to Council. Her Majesty accordingly; and at any time thereafter, Her 11 & 12 Vict. Majesty, by and with the advice of her Privy Council, was c. 63, s. 10. empowered to order that the Act, or any part of it, should be applied to and be put in full force and operation within the

Parliament.

city, etc. If after the inquiry it appeared to the General By provisional Board to be expedient that the Act, or any part of it, should order sancbe put in force within boundaries not being the same as those tioned by of the city, town, borough, parish, or place from which the Ib. petition proceeded, or within boundaries where no petition had been presented from the inhabitants, or within any city, town, borough, parish, or place in which any local Act is in force, they were to make a provisional order under their hands and seal of office, with such provisions, regulations, conditions, and restrictions with respect to the application and execution of the Act, or any part of it, and with respect to any local Act, and the repeal, alteration, extension, or future execution of it, as they might think necessary, of which provisional order due publicity was required to be given. In case it should be enacted by any Act of Parliament that the whole or part of any provisional order or orders of the General Board of Health should be confirmed and be absolute, the provisional order or orders so confirmed were to be as binding and of the like force and effect as if they had been expressly enacted by Parliament, and the Act confirming them was to be deemed a public general Act. The provisional order was not to have any force or effect, nor was the Act, or any part of it, to be applied, except for the purposes of inquiry, report, or provisional order, without the previous authority of Parliament. Further, no provisional order, or any altered or amended order, was to be made with respect to the local Act of any waterworks company without Exceptions. the consent of the company, and except for the purposes of Ib. main sewerage, no corporate borough or any part of it could be included in any district not exclusively consisting of the whole or part of one borough, without the previous consent of the council under the common seal of the borough; neither could parts beyond the boundaries of a corporate borough be included in any district comprising the whole or part of any such borough, unless upon the petition of a majority of the owners of property, and ratepayers who would be qualified to vote in the election of members of a Local Board of Health for the parts proposed to be included.

Under 11 & 12 Vict. c. 63, s. 10, a provisional order was made by the General Board of Health, which transferred the

gates.

Powers of powers vested in commissioners under a local Act to the town Local Board council of the borough, acting as the Local Board of Health as to turnpike for the borough, constituted a district under the Act; and directed, amongst other things, that every part of the Public Health Act, 1848, except sect. 50 and part of sect. 88, should be applied to the borough; and that certain sections of the local Act should be repealed, and certain clauses of the Towns Police Clauses Act, 1847, and of the Towns Improvement Clauses Act, 1847, should be incorporated with so much of the local Act as remained unrepealed, and the Public Health Act as applied to the borough. The Local Board, acting under the Public Health Act, having caused certain turnpike-gates to be removed, the trustees refusing to allow the carts of the Local Board to pass without payment of toll, it was held, on an action of trespass, that prohibiting the receipt of tolls by the turnpike trustees within the limits of the corporate district, could not be considered as a regulation or a restriction necessary for the purposes of applying the Public Health Act to the district; and therefore that the provisional order incorporating the 50th sect. of the Towns Improvement Act, 1847, under which the defendant acted, was not authorized under the powers given to the General Board of Health by the 10th sect. of the Public Health Act, 1848; and that the Local Board was not justified in causing the gates to be removed; and judg ment therefore went for the plaintiff. (1)

Publication

of Orders in Council, etc.

11 & 12 Vict. c. 63, s. 142.

In another case a provisional order was made by the General Board of Health which repealed part of a local Act, and applied certain parts of the Public Health Act, 1848, to the whole of the area of the borough (of Tynemouth). It applied sect. 88 of that Act, except that part of it which provides that "the occupier of any land used only as a railway or canal shall be assessed at one-fourth of the annual value." A railway company having been accordingly assessed in respect of their railway passing through the district to the full annual value, appealed against the rate, and, on a case stated, the Court of Queen's Bench held that the part of the provisional order which applied sect 88, but excepted the latter part of it, was not authorized by sect. 10 of the Act, but was void. They accordingly ordered the rate to be amended by reducing the assessment on the railway proper to one-fourth its annual value. (2)

All Orders in Council take effect and are to be in full force and operation within the district to which they apply from and after the day specified in them for that purpose; and a copy of such order is to be published in the London Gazette every and laid before Parliament; and whenever any provisional order of the General Board of Health was submitted to Parlia

(1) Clayton v. Fenwick, 6 E. & B. 114; 25 L. J. Q. B. 226; 2 Jur. (N.S.) 635.

(2) North Eastern Railway Company Apps., Tynemouth Resp., 37 L. J. M. C. 183; L. R. 3 Q. B. 723; 9 B. & S. 616,

Parliament.

ment for confirmation, that Board was required to present to Reports to be both Houses of Parliament a copy of all reports of any super- laid before intending inspector with respect to the parts to which the provisional order related, and of all memorials forwarded to them c. 63, s. 142. with respect to such reports.

11 & 12 Vict.

c. 94, S. 9.

Printed copies of all provisional orders of the General Board Printed copies of Health were to be delivered to the doorkeepers of both of Provisional Houses of Parliament for the use of the Members before the Orders. first reading of any Bill for their confirmation; and copies of 12 & 13 Vict. all such orders were also to be furnished by that Board to all 13 & 14 Vict. persons applying for them between the hours of eleven and c. 90, s. 4. five, at their office, or by letter, on payment of the cost of writing or furnishing such copies.

For the purpose of defraying the costs incurred by the Costs of PreGeneral Board of Health in putting the Act in force, it was liminary provided: That the costs, charges, and expenses, especially inquiry. 11 & 12 Vict. incurred by or under the direction of that Board, or of any c. 63, s. 11. superintending inspector in relation to any inquiry, were, to such extent and amount as the Treasury might think proper to direct, to become a charge upon the general district rates levied in the district, and to be repaid to the Treasury by annual instalments not exceeding five, together with the interest at the rate of five per cent.

The 141st section of the 11 & 12 Vict. c. 63 (repealed by 21 & 22 Vict. c. 98, s. 77), provided for the amendment of Orders in Council and Provisional Orders, and for the extension of the Districts formed under the 11 & 12 Vict. c. 63. The repealing Act, however, made special provision for effecting the same objects, as to which see post, page 67.

Districts which adjoin each other may unite together upon Union of such terms and subject to such conditions as the respective adjoining

districts.

Local Boards may, with the sanction of the Local Govern- 21 & 22 Vict.

ment Board, determine.

c. 98, s. 27.

This provision of the Act is extremely difficult to construe, 34 & 35 Vict. as it is expressed without much precision. The sanction of the c. 70. Secretary of State to the union of the districts might be expressed by letter under his own hand or under the hand of one of the under Secretaries. (1) As to the evidence thereof, see 31 and 32 Vict. c. 37.

ment Act,

§ 2. DISTRICTS UNDER THE LOCAL GOVERNMENT ACT, 1858. The Local Government Act, 1858, may be adopted- Adoption of (1.) In corporate boroughs to which the Public Health Act, Local Govern1848, has not been applied :-by resolution of the council. 1858. (2.) In other places under the jurisdiction of a Board of 21 & 22 Vict. Improvement Commissioners, where all or part of the commis- c. 98, s. 12. sioners are elected by ratepayers, or by owners and ratepayers : -by a resolution of such Improvement Commissioners.

(1) Arnold v. Gravesend, 25 L. J. Ch. 776.