« EelmineJätka »
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. The 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 941. 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 941. 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 dedi. cated 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, 8c. 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 Magis. trate 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 first mentioned act, such works are “to be ex. ecuted in accordance with the plans and sections," which are thus constituted an inseparable part of the notice. Parkinson v. The Mayor, 8c. 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,
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.
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. În 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 includ. ing 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 ac. cidental 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. (p.s.) M.C. 97.
[IN THE COURT OF QUEEN'S BENCH.]
1869. KENT, appellant, v. ASTLEY, Nov. 13.) respondent.
Factory—Slate Quarry—30 %. 31 Vict. c. 103. 8. 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 8. 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 sum. monses 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 the sheds with other boys, to the number certain factory within the said parishes of upwards of 50, adapting slates for sale, and county, the same being a factory on the 23rd of July, 1868. The shed was within the true intent and meaning of within the precincts of the quarry, between the Factory Acts, in such factory as which and the mountain there is no aforesaid, in, on and within the precincts boundary; and one of the places in which of which said factory 50 and more per- slabs are made is nearly a mile from the sons were employed in a certain manufac- quarry, with fields, in different occupaturing process, namely, in altering, repair- tions but belonging to the proprietor of ing, ornamenting, finishing and otherwise the quarry, intervening. There is no adapting slates and flags for sale, did defined entrance to the quarry, which unlawfully employ, keep and allow to is entered by the work-people and others remain in the said factory, a young person by a great many different ways. [The requiring a surgical certificate of age, case also referred to the 30 & 31 Vict. c. named Richard Griffiths Davies, without 103. s. 3, so much of which as is material the certificate of age required by the said to the question is hereafter set out in the acts, whereby the said respondent had argument.) forfeited for the said offence a penalty of Upon the hearing of the summonses, the not less than 21. nor more than 51.
Justices decided to dismiss them, considerThe second complaint against the re- ing that there was no possibility of keeping spondent was for unlawfully employing a clock to be visible and capable of being and keeping, and allowing to remain in heard by all persons employed in the the said factory, the above mentioned quarry, which one of the Factory Acts Richard Griffiths Davies, without having appears to contemplate ; that the requireduly registered his name and the date of ment of another of the said acts, that the his first employment, in the form and ac- inside walls of a factory shall be limecording to the directions given in Schedule washed, would be difficult and absurd in B. to the Act 7 Vict. c. 15, whereby the the case of a quarry; and that the definisaid respondent had forfeited for the said tion of a factory as a place wherein maoffence a penalty of not less than 21, nor chinery was used in manufacturing hemp, more than 51.
flax and such like materials, is not apThe said alleged factory is a slate plicable to a quarry, to which, in fact, quarry in a large open space extending scarcely any of the clauses were appliover about 400 acres (in which there are cable. also covered sheds or huts where the The question for the consideration of splitters work), where hundreds of men the Court, was whether the quarry and and very young boys are employed in premises above described were within the getting large blocks of slate, which blocks operation of the Factory Acts? If the or raw material are drawn, when got, Court should be of opinion in the affirmato other parts of the same quarry and tive, the case was to be remitted to the split with hammers and chisels, used as Justices. wedges, into laminæ or slates. These la- Sir J. D. Coleridge (Solicitor General) minæ or slates are then edged square with (Archibald with him) for the appellant. an iron knife, by hand, into separate slates By the 30 & 31 Vict. c. 103 (Factory Acts or articles, and divided into quantities for Extension Acts), s. 3. sub-section 7, “any sale. They are sent away in thousands premises, whether adjoining or separate, from the quarry to the market. These in the same occupation, situate in the same slates are also sold by retail, either sepa city, town, parish or place, and constiturately or in quantity, by the buyers of ting one trade establishment, in, on or withthem. In the quarry tombstones, gate in the precincts of which 50 or more perposts, chimney-pieces, tanks and slabs of sons are employed in any manufacturing every size, are also made out of these process," are included under the term blocks of slate, and ornamented according w factory," and by the same section to order. The boy in question was found “manufacturing process ” is defined to by the sub-inspector working in one of mean “any manual labour exercised by way of trade or for purposes of gain, in bleaching and dyeing and other works, or incidental to the making any article which have been successively brought or part of an article, or in or incidental to within the Factory Acts, or otherwise the altering, repairing, ornamenting, finish. regulated by special acts of parliament ing or otherwise adapting any article for passed from time to time. Further, the sale;" which definitions are applicable to justices have given erroneous reasons for a slate quarry and the works therein car. their decision. Under the 7 & 8 Vict. c. 15. ried on, such as are described in the case. s. 26, the hours of work of children and The justices were therefore wrong in their young persons in factories are to be reguview of the question. Palmer's Ship- lated " by a public clock or by some other building and Iron Company v. Chaytor (1), clock open to the public view," but it is where the whole of the several branches not required that the clock should be placed of the business of the manufactory com- in the factory; and indeed it is desirable municated with each other, and were within that the clock should be out of the conone common boundary, may be relied on by trol of the occupier. Then as to the limethe other side; but the true meaning is that washing of factory walls under the 3 & 4 any place in the same occupation used for Will. 4. c. 103. s. 26, and the 7 & 8 Vict. trade purposes, and on which the statut- c. 15. s. 18, it is provided by clause 9 of able number of persons is employed, is a the schedule to the 30 & 31 Vict.c. 103, that factory, although the manufacturing and these sections shall not be in force as reother processes necessary to the purposes spects any factory. of the business may be carried on separ. Milward (Hance with him) for the ately, and at a distance from each other. respondent.-It is clear that the quarry in
[HANNEN, J.-Some of the old bank question, being a mere aperture on the side ruptcy cases seem to throw light upon the of a mountain, and separated therefrom by question what constitutes a manufacturing no defined fence or boundary, and to which process exercised by way of trade. In it is impossible to adapt the requirements Sutton v. Weeley (2) a freeholder using a of the various Factory Acts, such as the portion of his own soil in the manufacture hanging up of an abstract of the act, and of bricks was held not to be a trader within the notice required by the 7 & 8 Vict. c. 15. the bankrupt laws.]
s. 28; the providing of a clock for regulaHere the words are not merely “by way ting the hours of labour, &c., cannot come of trade," but also "for purposes of gain." within the meaning of the term “pre
[COCKBURN, C.J.-Suppose the owner of mises” in section 3. sub-section 7 of the 30 land to use it for the cultivation of hemp, & 31 Vict. c. 103. The case is widely difwhich he afterwards manufactures into ferent from that of Palmer's Shipbuilding rope, may he not carry on his manufactur- and Iron Company v. Chaytor (1), where ing operations in such manner as to bring the different places in which the several himself within the operation of the Factory branches of the business were carried on Acts?]
communicated with each other, and were There is no practical difference between within one common boundary. such a case and that of a man who pur- [COCKBURN, C.J.-The section under conchases raw material out of which he pro- sideration brings within its operation "any duces a manufactured article by manual premises, whether adjoining or separate, in labour. The process in question is as much the same occupation.”] a manufacturing process, and the place in It is also required that the premises which it is carried on is as much a factory should be situate" in the same city, town, within the meaning of the statute as the parish or place," whereas it appears by different processes and places enumerated the summonses in the present case that in section 5, and thereby excepted from the the quarry and its accessories extend into operation of the act (which but for such two different parishes. exception would be within it), such as The Solicitor General in reply.
(1) 38 Law J. Rep. (N.s.) M.C. 63; s.c. Law Rep. 4 Q.B. 209.
COCKBURN, C.J.-I am of opinion that (2) 7 East 442.
the Justices were right in their decision,
although I do not adopt the reasons by powers. I think, therefore, we should be which they were guided. The process in going beyond our province if we put question being one in which manual such a construction on the word “.
prelabour was employed for converting the mises," as that contended for on behalf of rough material taken from the quarry into the appellant. slates for building, was no doubt a manu MELLOR, J.-I am of the same opinion, facturing process ; and I agree that if the although I must confess to some fluctuaproprietor of land sees fit to use it for tions of mind during the argument. The other than ordinary agricultural purposes, course of the legislature appears to have and to convert its produce into some been to extend the operation of the Factory manufactured article, as in the case I put Acts first to one trade and then to another, in the course of the argument of the as occasion seemed to require; and I owner of land growing hemp and also think we may derive much assistance carrying on the business of a rope-maker, from the consideration that the attention he would be, quoad such conversion of the of the legislature has not yet been specially raw material, a manufacturer, and there and in terms directed to slate and stone fore liable to be convicted for offences quarries, although long recognised as within the scope of the Factory Acts. valuable and important description of But my judgment in the present case is property. We find that bleaching and founded upon this consideration : that dyeing works, and other manufacturing the process of converting slate in the processes, have been successively dealt rough into the manufactured article, was with, in each case by a separate act of carried on in the quarry itself or places parliament, and the fact that quarries accessory thereto ; and I cannot entertain have escaped notice may fairly lead us to the idea that it was the intention of the the conclusion that the legislature has not, legislature to bring a quarry within the up to the present time, determined to meaning of the term “premises,” as used deal with them. I think, therefore, in section 3 of the statute in question ; and though not without doubt, that we should further, I do not think that the fact of the be attaching too wide a meaning to the process being carried on in covered sheds word“ premises ” in the statute under attached to this particular quarry, which consideration, by construing it as includ. with its other accessories, extends over an ing a slate quarry. If it were necessary area of 400 acres, makes any difference in to determine the other point, I should this respect. The legislature has, doubt have no hesitation in saying that the proless, from time to time extended the
opera cess in question was a manufacturing one. tion of the Factory Acts, which was at HANNEN, J.-I am of the same opinion. first confined to buildings in which per It seems difficult to arrive at the conclusons of both sexes were employed, to pro sion that an open quarry, situate on a cesses not originally within their contem mountain's side, and occupying with its plation ; but it has not yet included a accessories several hundred acres, was mere open air process, such as the one ever intended by the legislature to be dealt under consideration, and we should be out with under the general term “premises ;” stripping the law in declaring those Acts and I agree with what has fallen from my applicable to this particular kind of work, brother Mellor, that the fact that other which, although carried on in the pre processes have from time to time been cincts, might just as well be performed in successively dealt with and brought under the quarry
itself. Nor do we discern in the operation of the Factory Acts, goes a the case before us, the existence of any of long way to show that the omission of those evils which it was the special object this particular source of employment was of the legislature to guard against, such intentional and deliberate. as the unseemly mingling of the sexes, the
Judgment for the respondent. crowding together of a number of persons within an inconveniently narrow
Attorneys - Solicitor to the Treasury, for appelspace, or the employment of young chil. lant; J. Fluker, agent for Dewes & Burgess, dren in works disproportioned to their Nuneaton, for respondent.