Magistrate.' Provost Dick, who signs the deliverance as the chairman at the meeting, was examined as a witness, and he discloses the causes of the somewhat inexplicable conduct of the Commissioners in their whole proceedings as follows: The refusal of the petition in June 1876, by the deliverance which was signed by me, was not in consequence of Stanley Street and Park Street being then in a state of disrepair, and unfit to be taken over, but the majority of the Commissioners did not want to take over the streets in any case, so as to impose a burden to keep them up on the ratepayers. The majority of the Commissioners in June 1876 was composed of persons who were not proprietors liable to assessment.' It has been the misfortune of this burgh that the dominant party among the Commissioners are of the class referred to by Provost Dick, who wished to escape a just taxation by a public rate, for keeping up streets that ought to have been made public, leaving the burden (if so it could be managed) upon persons, the owners of property, who had already discharged their statutory obligations of paying for the paving and causewaying.

The question then arises, what construction is to be put upon the 154th section of the statute, which is in the following terms: If any private street shall at any time be made, paved, or causewayed or flagged, and put in good order and condition, to the satisfaction of the Commissioners, then, and on application of any one or more of the owners of premises fronting or abutting upon such street, it shall be lawful for the Commissioners to declare the same to be a street as defined in this Act, and for ever afterwards vested in the Commissioners, and shall, with the exception of the footway, be repaired and repairable by the Commissioners under the authority and powers of this Act.' "That the streets in question were put in good order to the satisfaction of the Commissioners is a fact proved in this case. They took over these streets from the contractor as being sufficiently paved and causewayed. He maintained them for six months after his contract was taken off his hands, and tells us that after I had completed the work, one man kept regularly on, with the occasional assistance of a labourer, would have been sufficient to have kept the streets in good condition;' but the majority of the Commissioners, who represented those who had to pay rates, and not owners, left the streets to themselves, and Mr. Geo. Lindsay, one of the Commissioners and bank agent, described the result thus: After Rankin went away, and ceased to take charge, no repairs were effected upon the streets by any one. They fell into a state of disrepair and ruts. No one was looking after the streets in the way of repairing them after Rankin went away in 1873, excepting in the way of cleaning them,' and the result is, as admitted by both parties at the close of the proof, 'that the streets at the time the order was made by the Commissioners in 1878 were in a state of disrepair, and required to be repaired.'

"The question now is whether the owners of the properties, who paid for the paving and causewaying under the statutory notice of 1872, and who, after the dispute with Rankin was settled and the assessment allocated, required the Commissioners to take over the streets as public streets, can be again served with a statutory notice to pave and causeway them once more in terms of the notice which is made the subject of the present appeal. The Sheriff is of opinion that they cannot, and he has therefore (acting under the jurisdiction conferred upon him by the 396th section) quashed the order of the Commissioners. The point turns upon this --whether the words 'it shall be lawful,' in the 154th section of the statute, confers a discretion upon the Commissioners to do as they please as to taking over the streets, or whether it imposes an obligation which they must comply with. The latter is the construction which the Sheriff puts upon the statute. The general purpose of the statute is to equip this burgh with all those requisites without which it would not deserve the name of burgh; and surely the most prominent thing that one would desiderate in a burgh is public streets. But it has been determined, with reference to this very burgh, that so long as the streets remain private, the owners of the property fronting them

are entitled to put up barricades, and prevent all ingress and egress by carts and carriages, except to or from themselves (Kinning Park Commissioners v. Thomson, 22nd February 1877, 4 Rettie, 528). Therefore, when it is said in the 154th section that it shall be lawful for the Commissioners to take over private streets which they have compelled the owners of houses to pave and causeway to their satisfaction, this must mean that the obligation of the owners has been discharged, that the obligation of the general ratepayers then begins, and that the streets must be taken over when a demand to that effect is made under the statute, and thereafter maintained as public streets, at the expense of the ratepayers, without any right on the part of the Commissioners to insist upon the owners once more doing what they had already done, viz. paving and causewaying a second time-rendered necessary by the negligence or the reluctance to tax themselves of the general ratepayers.

"That the words 'it may be lawful,' with reference to such a statute as this, may mean 'must,' or 'shall,' is borne out by many authorities. Similar words in the General Turnpike Act were thus interpreted by the Lord Justice-Clerk (Inglis) in Walkinshaw v. Orr, 28th January 1860, 22 D. 631. By the 61st section it is enacted that the trustees of all turnpike roads shall have power, and they are hereby authorized to widen and extend all such roads, so that the same shall be in all places 20 feet in width of clear passable road.' 'Such words as these,' said the Lord Justice-Clerk, are capable of two constructions according to the subject-matter and the context. They may mean either that the parties invested with the power may exercise it or not, according to their discretion, when the circumstances occur in which it may be exercised, or that in those circumstances they are bound to exercise it. Now, I hold it to be a general canon in the construction of statutes that where powers are conferred in a statute for the public benefit, they must be exercised, and the enactment is imperative. This is a case in which the power is given clearly for the public benefit, and therefore prima facie it appears to me an imperative enactment.' The doctrine is thus stated by Sir P. B. Maxwell in his treatise on 'The Interpretation of Statutes :''When a statute confers an authority to do a judicial, or indeed any other act which the public interest or even individual right may demand, it is imperative on those so authorized to exercise the authority when the case arises, and its exercise is duly applied for by a party interested, and having a right to make the application' (per Cur. in M'Dougal v. Paterson, 2 L. M. and P. 687, 11 C. B. 755). 'In giving one person authority to do the act, this statute impliedly gives to others the right of requiring that the act shall be done, the power being given for the benefit, not of him who is vested with it, but of those for whom it is to be exercised '(per Cur. in The Supervisors v. U. S., 4 Wallace, 446). The Legislature in such cases imposes a positive and absolute duty, and not merely gives a discretionary power, and it must be exercised upon proof of the particular facts out of which the power arises (per Cur. in M'Dougal v. Paterson, ubi supra). When, therefore, the language in which the authority is conferred is only directory, permissive, or enabling for instance, when it is enacted that the person authorized may' or 'is empowered' or 'shall,' if he deems it advisable' (The Supervisors v. Ū. S., ubi supra), or that it shall be lawful' for him to do the act, it has been so often decided as to have become an axiom that such expressions have a compulsory force (per Cur. in R. v. Tithe Commissioners, 14 Q. B., 474), unless there be special grounds for a different construction. This doctrine has been exemplified in a number of cases. Thus, where an Act empowered a vestry to make a paving rate, and provided that when it appeared to the vestry that the rate was not incurred for the equal benefit of the whole parish, it might exempt the parts not benefited, was held to impose on them the duty, and not merely to confer the power of apportioning the burden (Howell v. London Dock Coy., 8 E. and B. 212, 27 L. J. M. C. 177).

"The County Courts Act (13 and 14 Vict. c. 61, sec. 13) provides that, where an action is of the description therein referred to, the judge'may' direct that the plaintiff recover his costs. It was held that this conferred a power upon the

Court to grant costs, which was imperative in cases falling within the section (Crake v. Powell, 21 L. J., Q. B. 183).

"In a case in the Courts of New York, stated in 'Smith's Commentaries on Statute and Constitutional Law' (p. 729), it was held that the Act, to reduce several laws relating particularly to the city of New York into one Act, in which it was provided that 'it shall and may be lawful for the mayor, aldermen, etc., to cause certain acts to be done relative to sewers and drains,' etc., was a statute of public concern, and related to the public welfare; and that the words 'shall and may,' although permissive merely in their terms, must be regarded as peremptory on the Corporation-that when the public interest called for the execution of the power thus conferred the Corporation were not at liberty arbitrarily to withhold it. The exercise of the power became a duty which the Corporation were bound to fulfil. Nelson, Ch.-J., after citing several cases in support of this principle, says, 'The inference deducible from the various cases on this subject seems to be, that where a public body or officer has been clothed by a statute with power to do an act which concerns the public interest or the rights of third persons, the execution of the power may be insisted upon as a duty, though the phraseology of the statute be permissible merely, and not peremptory.'

"The Commissioners of Kinning Park say that they are now willing to take over the streets if these be once more put into good repair. They are no more bound to do so at present than they were in 1876; and why they have yielded now and refused in 1876 they have not explained. They have a plain public duty laid upon them which concerns the public very materially, in respect that unless they make the streets public, with the consequent liability following upon such an act, they will remain barricaded and useless to the burgh. In the exercise of that public duty private parties also whose houses front the streets have a most material interest, and such interest gives them a title to insist that the duties shall be discharged. If the Commissioners refuse to perform it they will find that they can be compelled to do so, and no better or more apt statement of the power of the Court in this respect need be cited than that of Lord Cowan in Beckett v. Campbell (22nd Jan. 1864, 2 Macph. 486), a case, however (the opposite of the present one), in which the Court, construing a statute, held that the words employed were not mandatory and imperative, but left a discretion in the Road Trustees.

"The Sheriff, therefore, is of opinion that the Commissioners of Kinning Park ought to have taken over Park Street as a public street in September 1875, and ought to have taken over Park Street and Stanley Street in April 1876, when they were asked to do so. The delay in making the application for this purpose has been satisfactorily accounted for by the dispute with Rankin, and by the non-imposition and allocation of the assessment till that dispute was ended. P. F."

Notes of English, American, and Colonial Cases.

MARINE INSURANCE.—Total loss—Salvage and costs—Refitting—Insurable interest.-By agreement between the plaintiff and W., the plaintiff undertook at his own expense and risk to transport the Cleopatra obelisk from Alexandria to London, and there to erect it uninjured. In the event of success W. was to pay the plaintiff £10,000, but in the event of failure, the plaintiff was to incur no liability to W. It was calculated that the £10,000 would no more than cover the expenses. The obelisk was delivered to the plaintiff by the Khedive of Egypt for the purpose of conveying it to London; the plaintiff expended money and labour in preparing for the transport, and built a vessel called the Cleopatra, which was little more than an iron case, in which the obelisk was stowed, and in which it would float, and agreed with the owners of the steamship Olga to tow

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the Cleopatra, with the obelisk on board, from Alexandria to London for £900. After payment of this sum the plaintiff had expended in all £4000 on the transport, etc. The plaintiff next effected two policies of insurance, against total loss only, with the defendants respectively, the first of which, with the defendant Whitworth, was for £1000, upon the goods and merchandise in the good ship Cleopatra, iron vessel, containing the Cleopatra obelisk. The goods and merchandises, etc., for so much as concerns the assured by agreement between the assured and assurers in this policy, are and shall be valued at £4000." The second policy with the Sea Insurance Company was for £2000, "upon any kind of goods and merchandises, and also upon the body, etc., of and in the good ship Cleopatra, iron vessel, containing the Cleopatra obelisk. The said ship, etc., goods and merchandises, etc., for so much as concerns the assured by agreement between the assured and the company in this policy, are and shall be, vessel and obelisk, valued at £4000.” The suing and labouring clause in both policies was as follows: "And in case of any loss or misfortune it shall be lawful for the assured, their factors, servants, and assigns, to sue, labour and travel for, in and about the defence, safeguard and recovery of the said goods and merchandise, or part thereof, without prejudice to this insurance, to the charges whereof the assurers will contribute each one according to the rate and quantity of his sum herein assured." The Cleopatra and the obelisk left Alexandria in tow of the Olga; a severe storm was encountered in the Bay of Biscay, when the Olga was compelled to cast off the Cleopatra and take her crew on board. The following day the Cleopatra was lost sight of, and after vainly endeavouring to find her, the Olga came on to England without her. Subsequently the steamer Fitzmaurice fell in with the Cleopatra and succeeded in towing her into Ferrol, a neighbouring port. The Court of Admiralty awarded £2000 salvage to the Fitzmaurice; the plaintiff had to pay-first, the salvage; second, the costs; third, certain expenses in refitting the Cleopatra at Ferrol, and towing her thence to London. The plaintiff now sought to recover from the defendants the several amounts under these heads of expense:-Held, that both policies were on the ship and obelisk, and that the plaintiff had an insurable interest in each to the extent of £4000, which was sufficiently described in the respective policies. That the defendants were liable to the plaintiff for the £2000 paid as salvage; for, though the policies were against the risk of total loss only, the Cleopatra was only saved from total loss by the services of the salvors, and the defendants, therefore, having had the benefit of their services, were bound to indemnify the plaintiff against his liability in respect of them, and that each of the defendants were bound to contribute in proportion to the amount subscribed by them. That the defendants were not liable to the plaintiff for the costs of the Admiralty proceedings, or the expenses of refitting the Cleopatra at Ferrol and towage from thence to England, such costs and expenses being too remote to be covered by the policies.-Dixon v. Whitworth. The Same v. The Sea Insurance Company, 48 L. J. Rep. C. P. 538.

RAILWAY COMPANY.-Passenger travelling without having paid his fare-Tourist ticket-Intent to avoid payment of fare.-The respondent was charged under 8 Vict. c. 20, s. 103, with travelling in a third-class carriage of the Great Western Railway without having previously paid his fare and with intent to avoid payment thereof. The respondent was found at Neath on the 18th of November 1878, in a third-class carriage on his way to New Milford, and produced to a ticket examiner at Neath the forward half of a tourist ticket, dated the 28th of September 1878, and available for two months. The ticket in question, which was not transferable, had been issued from Ludlow to New Milford to A., from whom the respondent had purchased the forward half for a sum considerably less than he would have had to have paid for an ordinary single third-class ticket. There was evidence to show that the respondent intended to defraud the railway company:-Held, that there had been a violation of the conditions under which the ticket was issued, and that the respondent was liable under the circumstances to be convicted under 8 & 9 Vict. c. 20, s. 103, for travelling without having paid his fare.-Langdon v. Howells, 48 L. J. Rep. M. C. 133,

THE

JOURNAL OF JURISPRUDENCE.

THE LAND QUESTION, IN ITS SOCIAL AND POLITICAL ASPECTS.

Professor LORIMER'S Introductory Lecture to the Class of Public Law in the University of Edinburgh, November 1879.

THOUGH bearing the title of Professor of Public Law as well as of the Law of Nature and Nations, it has been in the latter capacity, without any exception I believe, that in former years I have addressed my class at the opening of the session. Two reasons have induced me to adopt this course. The first is, that there is another professor, and a very efficient professor, into whose hands the jus publicum, in its municipal sense and in its technical aspects, naturally falls-I mean the Professor of Constitutional Law and History. The second is, that public municipal law lies somewhat dangerously near to the region of party politics, a region which I have always studiously avoided. On the present occasion the two subjects, in this latter respect, have changed places. We are approaching a general election, the issues of which will mainly turn on the foreign policy of the Government. The question will be raised, whether the recent policy of this country, in supporting the dominion of a Mohametan power over the Christian races in Eastern Europe and Western Asia, is to be persevered in or abandoned. Alongside of this exciting and agitating topic, on which few men can at present speak with temper and patience, there has sprung up another question of the gravest national concern which all intelligent and well-intentioned persons, in this country, are still happily able to approach with calm and dispassionate consideration. I limit this assertion to our own country and to the present time, because in the sister kingdom of Ireland the land question has long been that which rouses more furious passions than any other, and it everywhere touches so many traditions and prejudices, and affects the fortunes of so many individuals and classes of individuals, that, unless it can be successfully dealt with now, it is doubtful whether we ourselves will long be able to contemplate it with soberness. To myself personally, VOL. XXIII. NO. CCLXXV.-NOVEMBER 1879.

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