The be done by the respondent, except that they did not flag certain gardens included in the said notice and plan, and mentioned in the 9th paragraph of this case. said local board also executed works of sewering, levelling, paving, flagging and channelling other parts of the said street. 4. An apportionment of the expenses incurred by the said local board, in doing such work as was done by the said local board in the said street, was duly made, as required by the 11 & 12 Vict. c. 63. 8. 69, and notice thereof, so far as related to the said premises of the respondent, was duly given to him. 5. The amount of the said expenses apportioned in respect of the said premises of the respondent for the work so done, as apportioned by the surveyor, amounted to 94l. 11s. 7d.; and such sum was duly demanded of the respondent, on the 2nd day of June, 1868, and he refused to pay the same. 6. The respondent was duly summoned before the stipendiary Magistrate, to shew cause why an order should not be made upon him for the payment of the sum of 947. 11s. 7d. so as aforesaid demanded of him. 7. The complaint was heard and determined at a Petty Sessions, on the 12th day of January, 1869, the said parties then being present by attorney and counsel, and upon such hearing the said summons was dismissed. 8. The appellant being dissatisfied with such determination, applied for a case under 20 & 21 Vict. c. 43. 9. The facts hereinbefore mentioned were proved, and it was also proved that the said premises of which the respondent was the owner, fronted, adjoined and abutted upon the said Victoria Street to the extent of 201 feet 3 inches, co-extensive with such street. It was also proved, that a portion of such premises, namely, 154 feet 6 inches in length, and 2 yards and 21 inches in breadth, composed small gardens enclosed in front of the houses there situate, of which the respondent was the owner. It was also proved, that no part of the said gardens had ever been dedicated to or used by the public. The notice so given, to sewer, level, pave, flag and channel, referred to a plan deposited in the office of the said local board, and included the land forming the said street, and also other land forming the said gardens. The length of the said street, as shewn in such plan, was 638 feet and 6 inches, and the width thereof 36 feet, including nevertheless in such 36 feet and 6 inches, the said gardens, so far as the same were so co-extensive with the said street as aforesaid. The stipendiary Magistrate held the notice to sewer, pave, &c., to be informal and invalid, because it required the respondent to do that which the local board had no authority to require him to do, inasmuch as it required him to sewer, &c. the land forming the said gardens in front of the respective houses. 10. The opinion of the Court is requested upon the following question:Was the said notice of the 7th August, 1867, a bad notice, and altogether invalid on the ground above mentioned, or a good and valid notice so far as it related to the said works so actually executed by the said board? 11. If the Court shall be of opinion that the notice of the 7th August, 1867, was bad and altogether invalid, for the reason above stated, then the determination of the stipendiary Magistrate is to stand; otherwise the case is to be remitted back, with the opinion of the Court thereon, for the further hearing of the case. W. R. Cole for the appellant.-The notice is in pursuance of the Public Health Act 1848 (11 & 12 Vict. c. 63), s. 69, and is good pro tanto, notwithstanding s. 16 of the 24 & 25 Vict. c. 61, under which, previous to giving such notice, plans and sections of the required works are to be deposited in the office of the local board for the inspection of persons interested, and a reference to which is to be held sufficient without the annexation of a copy of such plans, &c. to the notice itself. [LUSH, J.-The words of the notice are, "So much of the said street; " that does not include the strips of garden. Notwithstanding the error in the plan, the respondent must have been perfectly aware of what was really required of him.] He referred to Caley v. The Local Board for Kingston-upon-Hull (1); Regina v. The (1) 5 B. & S. 815; s.c. 34 Law J. Rep. (N.s.) M.C.7. Newport Local Board (2); The Mayor, &c. of Manchester v. Chapman (3). Further, the objection, if valid, is cured by s. 137 of the 11 & 12 Vict. c. 63, and s. 63 of the 21 & 22 Vict. c. 98. Quain (Baylis with him), for the respondent. The decision of the Magistrate was right. By s. 16 of the 24 & 25 Vict. c. 61, the board, before giving notice under s. 69 of the Public Health Act 1848, are required to cause plans and sections of the required works to be made upon a certain scale, and by the form of notice given in schedule A to the firstmentioned act, such works are "to be executed in accordance with the plans and sections," which are thus constituted an inseparable part of the notice. Parkinson v. The Mayor, &c. of Blackburn (4), where a notice requiring an owner to execute works in excess of jurisdiction, was held bad, is decisive of the present question. COCKBURN, C.J. - There is no doubt that the notice, so far as it related to what might legally be required, is perfectly good, and is not vitiated by that portion of it which is ultra vires. In arriving at this conclusion, we impose no hardship upon the respondent, who must have known precisely what the local board in the exercise of their duty required of him, notwithstanding their mistake in including in their plan a portion of ground which was private property, and could not therefore be made the subject of the order. LUSH, J.-The effect of the notice and plan, taken in conjunction, was simply to call upon the respondent to flag, channel, &c. so much of the street as lay in front of his property. It is quite impossible that he could have been misled by the accidental insertion in the plan of a piece of garden which was his own private property. HANNEN, J.-I am of the same opinion. The notice, and so much of the plan as refers to the strip of garden in front of the respondent's houses, may be considered as notice to flag, &c. area A, and also area B, the first being within and (2) 32 Law J. Rep. (N.s.) M.C. 97. the second beyond the jurisdiction of the local board; and the respondent has no right to refuse to do what is properly required with respect to area A, because he is improperly required to do something with respect to area B. Parkinson v. The Mayor of Blackburn (4) is distinguishable from this case, inasmuch as there the board required the owner "to repair, form, and pave a portion of the street, which was entirely beyond the powers conferred upon them by the act. In this case, so much of the notice as is valid, is readily and easily separable from that which is bad. HAYES, J. concurred. Judgment for the appellant. Attorneys-Dangerfield & Frazer, agents for G. S. Hall, Cambridge, for appellant; Bower & Cotton, agents for Edward Aston, Manchester, for respondent. } [IN THE COURT OF QUEEN'S BENCH.] 1869. KENT, appellant, v. ASTLEY, Nov. 13. respondent. Factory-Slate Quarry-30 & 31 Vict. c. 103. s. 3 (7)-" Premises.' A slate quarry occupying with its accessories a large tract of land, uninclosed and approachable by no definite road or entrance, and furnished with covered sheds to which the rough blocks of material when raised are conveyed and there converted by a manufacturing process into slates, flags and other saleable articles, is not within the meaning of the term "premises" in the 30 & 31 Vict. c. 103, (Factory Acts Extension Act, 1867), s. 3. sub-section 7. CASE stated by Justices of the Peace for the county of Carnarvon, under the 20 & 21 Vict. c. 43; of which the following is a sufficient summary : At a petty sessions holden at the county hall at Carnarvon, in the said county, on the 26th of September, 1868, two summonses issued by Samuel Saville Kent, Sub-inspector of Factories (the appellant), against John N. F. Astley, of the parishes of Llanberis and Llanddeiniolen, in the said county, slate and flag quarry proprietor (the respondent), were heard before the Justices. The first complaint against the respon dent was that he being the occupier of a certain factory within the said parishes and county, the same being a factory within the true intent and meaning of the Factory Acts, in such factory as aforesaid, in, on and within the precincts of which said factory 50 and more persons were employed in a certain manufacturing process, namely, in altering, repairing, ornamenting, finishing and otherwise adapting slates and flags for sale, did unlawfully employ, keep and allow to remain in the said factory, a young person requiring a surgical certificate of age, named Richard Griffiths Davies, without the certificate of age required by the said acts, whereby the said respondent had forfeited for the said offence a penalty of not less than 21. nor more than 51. The second complaint against the respondent was for unlawfully employing and keeping, and allowing to remain in the said factory, the above mentioned Richard Griffiths Davies, without having duly registered his name and the date of his first employment, in the form and according to the directions given in Schedule B. to the Act 7 Vict. c. 15, whereby the said respondent had forfeited for the said offence a penalty of not less than 21. nor more than 51. The said alleged factory is a slate quarry in a large open space extending over about 400 acres (in which there are also covered sheds or huts where the splitters work), where hundreds of men and very young boys are employed in getting large blocks of slate, which blocks or raw material are drawn, when got, to other parts of the same quarry and split with hammers and chisels, used as wedges, into lamina or slates. These laminæ or slates are then edged square with an iron knife, by hand, into separate slates or articles, and divided into quantities for sale. They are sent away in thousands from the quarry to the market. These slates are also sold by retail, either separately or in quantity, by the buyers of them. In the quarry tombstones, gateposts, chimney-pieces, tanks and slabs of every size, are also made out of these blocks of slate, and ornamented according to order. The boy in question was found by the sub-inspector working in one of the sheds with other boys, to the number of upwards of 50, adapting slates for sale, on the 23rd of July, 1868. The shed was within the precincts of the quarry, between which and the mountain there is no boundary; and one of the places in which slabs are made is nearly a mile from the quarry, with fields, in different occupations but belonging to the proprietor of the quarry, intervening. There is no defined entrance to the quarry, which is entered by the work-people and others by a great many different ways. [The case also referred to the 30 & 31 Vict. c. 103. s. 3, so much of which as is material to the question is hereafter set out in the argument.] Upon the hearing of the summonses, the Justices decided to dismiss them, considering that there was no possibility of keeping a clock to be visible and capable of being heard by all persons employed in the quarry, which one of the Factory Acts appears to contemplate; that the requirement of another of the said acts, that the inside walls of a factory shall be limewashed, would be difficult and absurd in the case of a quarry; and that the definition of a factory as a place wherein machinery was used in manufacturing hemp, flax and such like materials, is not applicable to a quarry, to which, in fact, scarcely any of the clauses were appli cable. The question for the consideration of the Court, was whether the quarry and premises above described were within the operation of the Factory Acts? If the Court should be of opinion in the affirmative, the case was to be remitted to the Justices. Sir J. D. Coleridge (Solicitor General) (Archibald with him) for the appellant.By the 30 & 31 Vict. c. 103 (Factory Acts Extension Acts), s. 3. sub-section 7, "any premises, whether adjoining or separate, in the same occupation, situate in the same city, town, parish or place, and constituting one trade establishment, in, on or within the precincts of which 50 or more persons are employed in any manufacturing process," are included under the term "factory," and by the same section manufacturing process is defined to mean "any manual labour exercised by way of trade or for purposes of gain, in or incidental to the making any article or part of an article, or in or incidental to the altering, repairing, ornamenting, finishing or otherwise adapting any article for sale;" which definitions are applicable to a slate quarry and the works therein carried on, such as are described in the case. The justices were therefore wrong in their view of the question. Palmer's Shipbuilding and Iron Company v. Chaytor (1), where the whole of the several branches of the business of the manufactory communicated with each other, and were within one common boundary, may be relied on by the other side; but the true meaning is that any place in the same occupation used for trade purposes, and on which the statutable number of persons is employed, is a factory, although the manufacturing and other processes necessary to the purposes of the business may be carried on separately, and at a distance from each other. In [HANNEN, J.-Some of the old bankruptcy cases seem to throw light upon the question what constitutes a manufacturing process exercised by way of trade. Sutton v. Weeley (2) a freeholder using a portion of his own soil in the manufacture of bricks was held not to be a trader within the bankrupt laws.] Here the words are not merely "by way of trade," but also "for purposes of gain.' [COCKBURN, C.J.-Suppose the owner of land to use it for the cultivation of hemp, which he afterwards manufactures into rope, may he not carry on his manufacturing operations in such manner as to bring himself within the operation of the Factory Acts?] There is no practical difference between such a case and that of a man who purchases raw material out of which he produces a manufactured article by manual labour. The process in question is as much a manufacturing process, and the place in which different within the meaning of the statute as the processes and places enumerated in section 5, and thereby excepted from the operation of the act (which but for such exception would be within it), such as (1) 38 Law J. Rep. (N.s.) M.C. 63; s. c. Law Rep. 4 Q.B. 209. (2) 7 East 442. bleaching and dyeing and other works, which have been successively brought within the Factory Acts, or otherwise regulated by special acts of parliament passed from time to time. Further, the justices have given erroneous reasons for their decision. Under the 7 & 8 Vict. c. 15. s. 26, the hours of work of children and young persons in factories are to be regulated "by a public clock or by some other clock open to the public view," but it is not required that the clock should be placed in the factory; and indeed it is desirable that the clock should be out of the control of the occupier. Then as to the limewashing of factory walls under the 3 & 4 Will. 4. c. 103. s. 26, and the 7 & 8 Vict. c. 15. s. 18, it is provided by clause 9 of the schedule to the 30 & 31 Vict. c. 103, that these sections shall not be in force as respects any factory. Milward (Hance with him) for the respondent. It is clear that the quarry in question, being a mere aperture on the side of a mountain, and separated therefrom by no defined fence or boundary, and to which it is impossible to adapt the requirements of the various Factory Acts, such as the hanging up of an abstract of the act, and the notice required by the 7 & 8 Vict. c. 15. s. 28; the providing of a clock for regulating the hours of labour, &c., cannot come within the meaning of the term "premises" in section 3. sub-section 7 of the 30 & 31 Vict. c. 103. The case is widely different from that of Palmer's Shipbuilding and Iron Company v. Chaytor (1), where the different places in which the several branches of the business were carried on communicated with each other, and were within one common boundary. [COCKBURN, C.J.-The section under consideration brings within its operation "any premises, whether adjoining or separate, in the same occupation."] It is also required that the premises should be situate "in the same city, town, parish or place," whereas it appears by the summonses in the present case that the quarry and its accessories extend into two different parishes. The Solicitor General in reply. COCKBURN, C.J.-I am of opinion that the Justices were right in their decision, the reasons by The process in which manual although I do not adopt which they were guided. question being one in labour was employed for converting the rough material taken from the quarry into slates for building, was no doubt a manufacturing process; and I agree that if the proprietor of land sees fit to use it for other than ordinary agricultural purposes, and to convert its produce into some manufactured article, as in the case I put in the course of the argument of the owner of land growing hemp and also carrying on the business of a rope-maker, he would be, quoad such conversion of the raw material, a manufacturer, and therefore liable to be convicted for offences within the scope of the Factory Acts. But my judgment in the present case is founded upon this consideration: that the process of converting slate in the rough into the manufactured article, was carried on in the quarry itself or places accessory thereto; and I cannot entertain the idea that it was the intention of the legislature to bring a quarry within the meaning of the term " 'premises," as used in section 3 of the statute in question; and further, I do not think that the fact of the process being carried on in covered sheds attached to this particular quarry, which, with its other accessories, extends over an area of 400 acres, makes any difference in this respect. The legislature has, doubtless, from time to time extended the operation of the Factory Acts, which was at first confined to buildings in which persons of both sexes were employed, to processes not originally within their contemplation; but it has not yet included a mere open air process, such as the one under consideration, and we should be outstripping the law in declaring those Acts applicable to this particular kind of work, which, although carried on in the precincts, might just as well be performed in the quarry itself. Nor do we discern in the case before us, the existence of any of those evils which it was the special object of the legislature to guard against, such as the unseemly mingling of the sexes, the crowding together of a number of persons within an inconveniently narrow space, or the employment of young children in works disproportioned to their powers. I think, therefore, we should be going beyond our province if we put such a construction on the word "premises," as that contended for on behalf of the appellant. MELLOR, J.-I am of the same opinion, although I must confess to some fluctuations of mind during the argument. The course of the legislature appears to have been to extend the operation of the Factory Acts first to one trade and then to another, as occasion seemed to require; and I think we may derive much assistance from the consideration that the attention of the legislature has not yet been specially and in terms directed to slate and stone quarries, although long recognised as a valuable and important description of property. We find that bleaching and dyeing works, and other manufacturing processes, have been successively dealt with, in each case by a separate act of parliament, and the fact that quarries have escaped notice may fairly lead us to the conclusion that the legislature has not, up to the present time, determined to deal with them. I think, therefore, though not without doubt, that we should be attaching too wide a meaning to the word " 'premises" in the statute under consideration, by construing it as including a slate quarry. If it were necessary to determine the other point, I should have no hesitation in saying that the process in question was a manufacturing one. HANNEN, J.-I am of the same opinion. It seems difficult to arrive at the conclusion that an open quarry, situate on a mountain's side, and occupying with its accessories several hundred acres, was ever intended by the legislature to be dealt with under the general term "premises; and I agree with what has fallen from my brother Mellor, that the fact that other processes have from time to time been successively dealt with and brought under the operation of the Factory Acts, goes a long way to show that the omission of this particular source of employment was intentional and deliberate. Judgment for the respondent. Attorneys Solicitor to the Treasury, for appellant; J. Fluker, agent for Dewes & Burgess, Nuneaton, for respondent. |