Powers of sect. 114 of c. 65., for appoint ment of re new powers and byelaws authorized by this Act are brought into operation; And no such repeal shall affect any decree or order of the High Court of Chancery, or (a) of any other court of justice, that has been obtained previously to the passing of this Act. X. The powers of the one hundred and fourteenth 11 & 12 Vict. section of "The Public Health Act, 1848" (b), for the appointment of a receiver, may be exercised in the event of a failure to elect a (c) local board, or of the lapse of a local board from death, resignation, disqualification, or otherwise, of the persons elected to serve on such local board; ceiver, may be exercised in event of failure to elect a local board. And in case of such failure or lapse any receiver appointed under that section may make (d) as well (a) The word judgment should have been inserted. But quare whether the execution on the decree, order, or judgment may not be affected in some cases where it has not been completed before the passing of the Act, unless the first part of this clause can be rendered applicable to such execution. (b) See ante, p. 169. This clause is framed to remedy the mischief arising out of the case where, after heavy expenses had been incurred by the local board of health, and money borrowed upon the rates, the board failed for want of due election. As the board did not exist, no rates could be assessed to discharge the unliquidated claims, nor to pay the interest on the loans. The creditors might have sued and recovered judgments, but could only have taken in execution what personal goods were possessed by the defunct board, assuming that such goods were liable to seizure, which is by no means certain. (c) The appointment is required by 11 & 12 Vict. c.63, s. 114, to be made by two justices after hearing the parties. But the appointment in the text must be made ex parte, if one of the parties referred to in the former Act be the local board of health, since in the very case provided for there will be no such party. (d) There will arise some questions as to the form and other incidents connected with the making of the rate, because the as collect and receive rates as directed in that section, or such rates as are required to satisfy all liabilities of the local board, and may receive and recover all arrears due to the said local board, and apply the same to meet such liabilities; And any such receiver shall have the same powers with respect to other creditors (e) of the local board as he has by the said section with regard to mortgagees. proceeding failure to board. XI. In the case of any failure to elect a local Course of board, or of any lapse of a local board as aforesaid, in event of it shall be lawful for the owners and ratepayers of elect a local the district, by resolution, as herein-after provided (f), for the adoption of this Act, to proceed to election of a new local board in the manner (g) provided by this Act, with the same qualification of members from property or rating as the lapsed local board, and the result of such election shall be signified to one of Her Majesty's principal secretaries of state by the person conducting it (h), in the same requisitions of 11 & 12 Vict. c. 98, regarding the district rate, appear to be only capable of being discharged by the local board itself. (e) The apportionment among the creditors who expect to be paid at once, and among the mortgagees who only expect to receive their interest until the time when the repayment of the principal is due, will require much care and attention on the part of the receiver. (f) See next section. (g) It must be carefully observed that the manner of election is according to the new Act, though neither a new district, nor a new local board, will be created. The lapse is treated as a suspension, and the statute authorizes a revival of the board. (h) It is by no means clear who this person is to be. Under 11 & 12 Vict. c. 63, s. 21, ante, p. 64, the chairman of a board in existence is to be the returning officer at the annual Act to be adopted by manner as is herein-after directed with regard to the adoption of this Act; And all the rights and liabilities of the former local board shall attach to the new local board as if there had been no lapse before the election thereof, and from the date of such election all powers of any receiver to make (i) rates under the preceding section shall determine. AS TO ADOPTION OF ACT AND CONSTITUTION OF XII. This Act may be adopted, resolution of (1.) In corporate boroughs (k) to which the Public council, im provement commis sioners, or owners and ratepayers. Health Act, 1848, has not been applied, by a resolution of the council assembled at a meeting held for the purpose (1): Provided always, that this Act shall not be adopted in corporate boroughs until after the election of councillors on the first day of November one thousand eight hundred and fifty-eight: election of the members. But in the case provided for in the text there will be no chairman, and there is no specific provision for the appointment of a returning officer. (i) The right of the receiver to collect them is not taken away, but that will be of course unnecessary if the new board proceed to pay the debt and interest. (k) See the definition in sect. 2, ante, p. 225. (It is a question whether the council can act spontaneously or whether an application from the ratepayers referred to in the next section is not a necessary requisite to precede the action of the council. The minute of information circulated by the secretary of state, does not point out that it is requisite. Yet it is difficult to read sect. 13, and not come to the conclusion that such requisition is a precedent condition. Otherwise it is not easy to explain the purport of that section. The effect of the two clauses appears to be that the ratepayers are to require the mayor or chairman, as the case may be, to (2.) In other places under the jurisdiction of a board of improvement commissioners (1), where all or part of the commissioners are elected by ratepayers, or by owners and ratepayers, by a resolution of such improvement commissioners assembled at a meeting held for the purpose (m): (3.) In all other places having a known (n) or defined boundary, by a resolution of the owners (0) and ratepayers (o): summon the council or board, and such council or board may then adopt the Act. (1) There is no legal definition of the term improvement commissioners. In some cases local Acts have been obtained in general terms for the improvement of towns, but oftentimes commissioners are appointed under local Acts for paving, lighting, watching, and in other respects providing for the management of the locality without any such title as above. In the Common Lodging House Act, 14 & 15 Vict. c. 28, s. 2, and in the Nuisances Removal Act, 1855, 18 & 19 Vict. c. 126, s. 2, there is a definition of an Improvement Act," but it is too extensive for this statute. (m) See note (g) on 11 & 12 Vict. c. 63, s. 34, ante, p. 79. (n) This is a very vague term. It is not clear by whom the boundary is to be known. Doubtless general reputation must be referred to, and this is oftentimes a matter of considerable uncertainty. The boundaries of parishes indeed are for the most part well known, and so are those of townships and chapelries, especially where they maintain their own poor separately. There are many places where the boundaries have been defined by statute. Occasionally, also, districts have been settled by orders in council and similar authority under the general statutes applicable to new ecclesiastical parishes. In these cases the text can be safely applied. (0) See in 11 & 12 Vict. c. 63, s. 2, the definition of owner, and in sect. 20 that of ratepayer, and it is to be presumed that these definitions will apply to the text. But the restrictions upon the voting of owners imposed by the latter section, requiring the statement of the property to be sent a certain time beforehand, cannot apply. As it will be a serious question whether the local board will be legally constituted if this requisition be invalid, and as the qualification of persons act As to sum moning meetings But no such resolution passed by any council or board of improvement commissioners shall be valid unless a month's previous notice of the meeting, and of the purpose thereof, has been given in manner in which notices of meetings of such council (e) or board of commissioners are usually given, nor unless two-thirds of the members present at the meeting concur in the resolution of such adoption (ƒ); and it shall be lawful for the chairman of any such meeting, with the consent of a majority of the members present, to adjourn the same from day to day. XIII. (1.) Meetings for the purpose of the preceding sections shall be summoned on the requisiof preceding tion in writing of any twenty ratepayers (g) or section. owners (g); for purpose In corporate boroughs, by the mayor; In other places, under the jurisdiction of such improvement commissioners as aforesaid, by the chairman of the said commissioners; ing as owners may prove not to be good, it will be found most prudent to obtain the signatures of the prescribed number of ratepayers whose qualification can be easily established. Again, it is not clear whether the requisitionists must be all ratepayers or all owners, or whether they may be partly of one class and partly of another, but it is certain that they may be all of one class. (e) See 5 & 6 Will. 4, c. 76, s. 69, which requires one-third part of the council to be present. (f) Note, that there must be two-thirds of the members present to concur. It will not suffice that there should be two-thirds of those voting on the question. See In re Eynsham, 12 Q. B. 398; Q. v. Overseers of Christ Church, 7 E. & B. 409; 26 L. J., R. M. C. 68. (g) See note (o), p. 233. |