G. Act
1899

to be taxed according to the course of the said court, and except that Section 38.
the notice of the intended application, which shall contain a state-
ment of the matter complained of, shall be given to such auditors or
their successors who shall return to such writ return a copy under
the hands of a majority of them of the entry or entries in such book
of account to which such notice shall refer, and shall appear before
the said court, and defend the allowance, disallowance, or surcharge
so impeached in the said court, and shall be reimbursed all such costs.
and charges as they may incur in such defence out of the funds of
the vestry or district board respectively interested in the decision of
the question, unless the said court make any order to the contrary;
and on the removal of such allowance, disallowance, or surcharge the
said court shall decide the particular matter of complaint set forth in
such statement and no other; and if it appear to such court that the
decision of the said auditors was erroneous, they shall, by rule of
the court, order such sum of money as may have been improperly
allowed, disallowed, or surcharged to be paid to the party entitled
thereto by the party who ought to repay or discharge the same, and
they may also, if they see fit, by rule of the court, order the costs of
the person prosecuting such certiorari to be paid by the vestry or
district board to which such accounts relate, as to such court may
seem fit, which rules of court respectively shall be enforced in like
manner as other rules of the said court are enforceable.(d)

39. If any person be returned to serve in any vestry for more than Provision in one ward, he shall on or before the next meeting of the vestry after case of a such election signify in writing to the clerk of such vestry his decision vestryman as to the ward which he may desire to represent on such return; being and if before or at such meeting he shall refuse or neglect so to do, the vestry shall determine the ward which he shall represent; and the vacancy occasioned by such determination or decision shall be filled up by an election to be held for that purpose within one month from the date of such determination or decision, such election to be conducted in the like manner as the annual elections of vestrymen.

40. The thirty-fifth section of the recited Act of the eighteenth and nineteenth Victoria is hereby repealed; and in lieu thereof be it enacted, That the vestry constituted by the said Act in every parish mentioned in the second column of Schedule (B.) to the same Act shall, on the first Wednesday in the month of June in the year 1863,

(d) The effect of this provision is to repeal that part of the 195th section of 18 & 19 Vict. c. 120, which enacts that the allowance of the auditors shall be final and conclusive. See that section, p. 123, and notes, ante, which does not contain any provision for recovering surcharges. The certificate of the auditor as to the accuracy of a surcharge can only be disputed on appeal to the Court of Queen's Bench under the statute, and the justices can only issue their warrant when it is sufficiently proved that it is their duty to issue it in accordance with the information; R. v. Fordham, L. R. 8 Q. B. 501; 42 L. J. M. C. 153; 22 W. R. 85; 37 J. P. 420. For decisions on the auditing of poor rates, see Reg. v. Greene, 21 L. J. M. C. 137; Reg. v. Great Western Railway Company, 13 Q. B. 327; Reg. v. Read, 13 Q. B. 524; R. v. Winsford, 13 Q. B. 873. As to finality of certificate of auditor, see R. v. Linford, 7 E. & B. 950; R. v. Finnis, 28 L. J. M. C. 201; 23 J. P. 340. It was decided in Barton v. Pigott, L. R. 10 Q. B. 86; 44 L. J. M. C. 5; 23 W. R. 233; 39 J. P. 454, that an order of justices allowing items made illegal under section 46 of the General Highway Act, 5 & 6 Will. 4, c. 50, was bad under section 44.

returned for
more than
one ward.

Section 40.

by expiration
of term of
office

As to division

into wards
when parish
contains two
thousand
houses.(b)

L.G. Act 1899

and in every subsequent year, elect so many persons(a) qualified by rating and occupation, as required by the same Act and the recited Act of the nineteenth and twentieth Victoria to be elected vestrymen of such parish, to be members of the board for the district in which such parish is comprised, as may be necessary for supplying the vacancies among the members of such board elected for such parish occasioned by expiration of the term of office of the members going out of office at the time of such election.

41. When at any time, upon any account taken of the population by the authority of parliament, any of the parishes within the metropolis not now divided into wards for the purpose of electing vestrymen shall be found to contain more than two thousand rated householders, it shall be lawful for the Metropolitan Board of Works, upon the application in writing of the vestry, or of not less than five hundred rated householders of the parish, to divide such parish into wards, and to determine and set out the number, extent, limits, and boundary lines of such wards, but so nevertheless that no ward shall contain less than five hundred rated householders, and that the whole number of wards shall not exceed eight; and the metropolitan board shall apportion among the several wards the number of vestrymen to be elected for such parish, and shall, in assigning the number of vestrymen to each ward, have regard, as far as in their judgment is practicable, as well to the number of persons rated to the relief of the poor in each ward as to the aggregate amount of the sums at which all such persons are rated; and the number of vestrymen assigned to each ward shall be a number divisible by three, and a copy of the particulars of such division and apportionment shall be forthwith transmitted to one of Her Majesty's principal secretaries of state for his approval, and also to the vestry clerk of the parish to which such division and apportionment relate; and the said particulars shall, within seven days after such transmission, be published by the said board in the London Gazette; and at the expiration of not less than two calendar months the said secretary of state shall, if he approve of the same, publish the said particulars again with his approval affixed thereto in the London Gazette; but if the said secretary of state disapprove of the proposed division into wards or apportionment of vestrymen, then he shall, subject, however, to all the above limitations, make such other division or apportionment as in his judgment shall be more conducive to a fair representation in the vestry of the interests of the ratepayers of the said parish, and sball publish the particulars of such fairer division and apportionment in the London Gazette, and the parish shall, after such publication by him in the London Gazette, be deemed to be divided into such wards so determined and set out.

(a) The 35th section requires the persons elected to supply vacancies to be "vestrymen" of the parish. This enables other than vestrymen to be elected, provided they be qualified by rating and occupation, as required by section 6 of 18 & 19 Vict. 120.

(b) The 3rd section of 18 & 19 Vict. c. 120, ante, limited the division into wards to be made under that Act to parishes containing more than two thousand rated householders at the time of the passing of that Act. This enactment provides for the division of a parish into wards where the population has increased since the passing of that Act so as to exceed that limit. The duties entrusted to the metropolitan board by this provision are similar to those imposed upon the persons appointed by the secretary of state under section 4 of the 18 & 19 Vict. c. 120, ante.

shall be

42. No representation shall be made under the two hundred and Section 42. forty-ninth section of the firstly-recited Act, unless and until the Metropolitan Board of Works shall have given to the churchwardens No parish and surveyors of highways of the parish to which such representation annexed withrelates two months' notice in writing(c) under their common seal of out previous their intention to make such representation and of the provisions notice. which it is intended to propose in such representation; and the said churchwardens and surveyors of highways shall, immediately after receiving such notice as aforesaid, summon a vestry meeting of the parish, and submit such notice to the consideration of the said meeting; and such representation of the said metropolitan board shall be accompanied by a copy of all resolutions or statements that may have been made to the said board in writing by the said churchwardens and surveyors of highways, or either of them, by direction of such vestry meeting.

Annual report of officer of health.

43. The officer or officers of health for each parish or district shall make an annual report(d) to the vestry or district board of the sanitary condition of the parish or district, and upon the other matters set forth in the one hundred and thirty-second section of the firstly, PH (L)Act recited Act, and it shall not be necessary to append to the annual report of the vestry or district board, to be made in the month of June in each year, a copy of any other report of such officer or officers than such annual report.

any

land or

44. It shall be lawful for the owners or occupiers of premises in any parish, district, or part within the limits of the metropolis as defined by the firstly-recited Act, with the consent and subject to the regulations and conditions hereinafter mentioned, to construct sewers at their own expense for the purpose of draining such land or premises; and it shall be lawful for any vestry or district board in whom the sewers in any parish, district, or part are vested, if they shall deem it just and proper so to do, to contribute out of the rates under their control applicable to the execution of

(c) The two months' notice to the churchwardens and surveyors directed by this section is in addition to the one month's notice required by the 249th section of 18 & 19 Vict. c. 120, to be published in the London Gazette.

(d) The 198th section of 18 & 19 Vict. c. 120, directs that vestries and district boards shall append to the annual report of their proceedings, which they are required to send to the Metropolitan Board of Works, a copy of every report which may have been made to them by their medical officers in the course of the past year.

(e) See Fulham District Board of Works v. Godwin, cited section 53, post. Under 18 & 19 Vict. c. 120, a vestry or district board had no power to call on a party to construct a sewer for the drainage of streets or house property. See Clarke v. Vestry of Paddington, 5 Jur. (N.s.) 138. The absence of any positive provision in the Metropolis Local Management Act, 1855, for compelling the construction of sewers by private parties where land has been newly let for building operations, induced some persons to believe that vestries and district boards were compellable by a mandamus to construct sewers in private streets and roads, and proceedings have in some instances been taken to compel them to do so. See Reg. v. Vestry of St. Luke, Chelsea, 31 L. J. Q. B. 50; ex parte Cramp and ex parte Parsons, 22 J. P. 68. The power here given to vestries and district boards to contribute to the cost out of the public rates, where the work may benefit a larger district, is a useful one.

1891

Owners and

occupiers of land may

execute works of drainage at

their own expense.(e)

Section 44. works of sewerage to the cost of any sewers constructed for the purpose aforesaid.

45. Any vestry or district board intending to construct any sewer shall, before commencing any works for that purpose, submit to the Metropolitan Board of Works a plan of the street or place in which it is proposed to construct such sewer, drawn to such a convenient scale or scales as the said metropolitan board shall direct, and there shall be shown on such plan the position, course, and dimensions of the proposed sewer, with a section or sections thereof, and such other particulars in relation thereto as the said metropolitan board shall deem necessary and require, and no such sewer or works shall be proceeded with without the approval in writing or contrary to the direction of the said board.

46. Three clear days' notice in writing shall be given to the Metropolitan Board of Works by any vestry or district board previously to the connection of any sewer or drain with a main sewer; and the necessary junction or communication for that purpose shall be made by such vestry or district board to the satisfaction of the said metropolitan board.

47. Every person other than a vestry or district board intending to make or branch a sewer, either into a sewer vested in the Metropolitan Board of Works, or into a sewer vested in any vestry or district board, shall in the first instance lay the plan and section thereof before, and apply for the sanction of, the vestry or district board of the parish, district, or part in which such last-mentioned sewers shall be situate; and no sewer shall be begun to be made by such person until the sanction in writing of such vestry or district board shall have been obtained.

48. Before any vestry or district board shall sanction the construction of any such sewer they shall submit the plan and section thereof to the Metropolitan Board of Works for their approval, in the same manner as if such sewer were proposed to be constructed by such vestry or district board; and no vestry or district board shall sanction the construction of any such sewer without the approval in writing of the said metropolitan board first had and obtained.

49. All persons intending to make or branch any drain into a sewer vested in the Metropolitan Board of Works shall, seven clear days

(a) The clauses from 45 to 51 inclusive embody regulations for the construction of sewers, and ensure the submission of proper plans and particulars before the work can be sanctioned. They also effect a division of labour between the metropolitan and local boards, by which all applications from private parties first come before the latter, and they then communicate with the metropolitan board. These regulations are intended to render that provision of the 69th section of 18 & 19 Vict. c. 120, effectual, by which the making of new sewers is prohibited without the previous approval of the metropolitan board. There is an early precedent for regulations of this nature in 47 Geo. 3, c. 7, an Act relating to the Westminster commission, by which, previous to the construction of any new sewer intended to communicate with the sewers of the commissioners, notice to those commissioners was necessary, and such sewer was required to be made according to their direction.

before commencing any works for that purpose, make written application to the vestry or board of the parish, district, or part in which such sewer shall be situate, accompanied by a plan showing such particulars as may be required by any bye-law or resolution of the said metropolitan board; and no such work shall be commenced until the sanction in writing of the said vestry or district board shall have been given.

Section 49.

drains can be branched into main sewers.

as to abandonment, alteration, &c., of designs for

sewers previously ap

50. When it shall be desired to abandon either wholly or in part, Regulations or to extend, contract, or alter any design for a sewer previously submitted to and approved by the Metropolitan Board of Works, notice in writing of such desire shall be given by the vestry or district board by whom such approval shall have been obtained to the said metropolitan board, accompanied by plans and sections showing the nature of the abandonment, extension, contraction, or alteration desired; and no such abandonment, extension, contraction, or alteration shall proved. be made without the previous approval in writing of the said metropolitan board; and no person other than a vestry or district board shall abandon wholly or in part, or extend, contract, or alter in construction, any sewer approved or sanctioned by the Metropolitan Board of Works, without the previous sanction in writing of the vestry or district board in whose parish or district the works were intended to be executed, to be applied for and given in the same manner as herein before directed with respect to new sewers.

51. In case any sewer sanctioned and approved by the Metropo- In case litan Board of Works as herein before provided shall not be constructed sewer be not or executed within twelve calendar months from the date of such constructed sanction or approval, the works for the construction of such sewer shall not be executed without a fresh permission by the metropolitan board, and their written sanction that the necessary works for the construction of such sewer may proceed, to be applied for and obtained in manner hereinbefore provided with respect to the original permission for the construction of such sewer.

52. Where any sewer shall, after the passing of this Act, be constructed by any vestry or district board in or for the drainage of any new street, (d) or of any house or houses erected since the 1st day of January, 1856, the expense of constructing such sewer and the works appertaining thereto, including the cost of gullies, side entrances, lengths of sewer at the intersection of streets, and other incidental charges and expenses shall be borne and defrayed by the owners(e)

(b) There was a bye-law of the Westminster commission which contained a similar provision.

(c) See as to charging a portion of the expenses of arching sewers on occupiers of adjoining lands in the repealed statute relating to the Surrey and Kent sewers commission, 10 & 11 Vict. c. 217; analogous provisions in the repealed statute relating to the Westminster commission, 10 & 11 Vict. c. 70; and the powers of the commissioners under the Metropolitan Sewers Act, 11 & 12 Vict. c. 112, for compelling sewers constructed to be continued, and as to special rates, contributions, &c.

(d) See definition of the expression "new street," section 112.

(e) See definition of word "owner" in section 250 of 18 & 19 Vict. c. 120, ante, with which this Act is to be read as one Act; section 110, post; and decisions cited in Metropolis Management Act, 1865, section 105, ante, and section 77 of this Act as to who are owners within the enactments relating to paring new streets.

within 12 months, fresh application to be made.(b)

Expense of constructing sewers in new streets and

streets laid out since 1st Jan., 1856.(c)