PROVISIONAL ORDERS AND POWERS OF SECRETARY OF

STATE.

for incorpc

LXXVII. The one hundred and forty-first section (h) of Petition the Public Health Act, 1848, shall be repealed, and in lieu ration with thereof be it enacted as follows:

or separation from district, or for

Whenever it appears desirable to the local board of any repeal, &c., district,

Or to the majority of the owners and (i) ratepayers in any parish, township, hamlet, or place maintaining its own roads or its own poor, adjoining any district,

Or to the majority of owners and ratepayers in any part of a district,

Such majorities to be ascertained in the way herein provided for voting with respect to the adoption of this Act (k), That any portion of such parish, township, hamlet, or

place shall be incorporated with the district, or that such part of the district should be separated therefrom, Or whenever it appears to the local board of any district desirable,

That provision should be made for the future execution of any local Acts in force within such district, having relation to the purposes of this Act (1), and not conferring

(h) See ante.

(i) The owners and ratepayers are joined here in this requisition; an important question arises in these words which does not appear to have been brought before the courts of law, whether the majority is to be made out of the aggregate of the two bodies, or whether there must be a majority of each body. The owners and ratepayers must be such as can vote at the election of the members, but they are to be counted according to the scale of voting for the adoption of the Act.

As there are now scarcely any places which maintain their own poor since the Union chargeability Act 28 & 29 Vict. c. 79, the description of the places must be referred to places which formerly maintained their own poor. (k) See sect. 13, of this Act, ante.

(7) These are very wide and general words, and embrace almost all matters in any respect relating to the local management of towns. They are explained, however, by the language of 11 & 12 Vict. c. 63, s. 10,

of local Acts.

Power of secretary of state on receipt of petition;

to issue order, and obtain consent

of district.

powers or privileges upon corporations, companies, undertakers, or individuals, for their own pecuniary benefit;

Or that any such Acts, or any exemptions from rating derived therefrom (b), or any provisional order or orders in council applying the Public Health Act, 1848, or Act confirming such provisional orders, should be wholly or partially repealed or altered,

(1.) They may present a petition to one of Her Majesty's principal secretaries of state, praying for such incorporation, separation, provision, repeal, and alteration as aforesaid, or for any of such things, and such petition shall be supported by such evidence as the said secretary (c) requires :

(2.) Upon the receipt of any such petition inquiry may

be (d) directed in the district in respect of the several matters mentioned in the petition, after (e) giving fourteen days' notice of the time, place, and subject of the inquiry:

(3.) It shall be lawful for any of Her Majesty's principal

secretaries of state to issue a provisional order in relation to the several things, mentioned in the petition, and either in accordance with the prayer thereof, or with such modifications as may be requisite (ƒ);

And when the order provides for the incorporation of

ante. On reference to section 20 of this Act, ante, the special purport of this enactment will be seen.

(b) See sect. 54 of this Act, ante.

(c) See sect. 75 of this Act, ante, and the notes thereon.

(d) It is not compulsory upon the secretary to direct a local inquiry. (e) It is not stated who is to give the notice, but the person holding the inquiry should do so.

(f) Or, as it is presumed, to refuse the prayer of the petition. The courts of law have no authority over this order: accordingly the court of Queen's Bench refused to grant a certiorari to bring orders made by the secretary into their court to be quashed. Frewen v. Local Board of Hastings, 12 L. T. (N. s.) 346; 34 L. J. Q. B. 159; Smith v. Local Board of Todmorden, 1 B. & S. 412. As to the proof of this order, see note on the 11 & 12 Vict. c. 63, s. 5, ante.

a portion of any such parish, township, hamlet, or place within the district, or the separation of any part from the district, an inspector shall proceed to the district for the purpose of obtaining the consent to such order of the place of which it is proposed that a portion should be incorporated, or of the part to be separated, and, also, if such order provide for any such incorporation, the consent of the petitioning district: (4.) The consent of the petitioning district to such order Consents shall be testified by a resolution of the local board of such district, and the consent of any place or part by a resolution passed by a majority of the ratepayers (g) resident in any such place or part assembled at a meeting convened for the purpose;

And the inspector shall, for the purpose of obtaining such consents, have power to convene meetings of the local board of any district, or meeting of the ratepayers (g) of any place or part, with fourteen days' notice of the time, place, and subject of such meetings, and to do all such matters and things as may be expedient for that purpose:

how testified.

to meetings

(5.) In the case of a meeting of the ratepayers (h) of any Provision as place or part, the ratepayers present shall elect a of part or chairman;

And a declaration by the chairman that the opinion of the meeting is in favour or against any resolution, as the case may be, shall, in the absence of proof to the contrary, be sufficient evidence that the resolution is passed (i):

The inspector shall have power to attend any such meeting (k);

(g) Note, that the owners are here omitted, and it is only those ratepayers who are resident in the place who are to give their consent. As to who are ratepayers, see the note on sect. 12 of this Act, ante. (h) See note on No. (4).

(i) Or negatived. See sect. 13, No. (4), ante, where the language is

more accurate.

(k) There is no prohibition upon the inspector's taking part in the

place.

Secretary of

state to

obtain confirmation of

order.

Extension of borrowing powers in certain

cases.

(6.) Whenever such consents as aforesaid have been given in the cases in which they are herein before required, the said secretary of state shall, as soon as conveniently may be, take all necessary steps for (d) the confirmation of such order by Act of parliament;

But previously to such confirmation it shall not be of any validity whatever, and every Act of parliament confirming such order shall be deemed a public general Act (e);

In case any petition shall be presented to either house of parliament against any provisional order framed in pursuance of this Act, in the progress through parliament of the bill confirming the same, the bill, so far as it relates to the order so petitioned against, may be referred to a select committee, and the petitioner shall be allowed to appear and oppose as in the case of private bills (ƒ).

LXXVIII. Where a local board, or any board of improvement commissioners (g) exercising the borrowing powers of the Public Health Act, 1848, or this Act, or of any local Act, has contributed to, purchased, or executed works or sewerage and water supply, or proposes to contribute to, purchase, or execute such works, and where the cost of such works

Proceedings before the committee.

discussion, but unless he be a ratepayer, which will not probably be the case, he will not be allowed to vote on the question.

(d) All that seems to be necessary for obtaining the confirmation is the causing the bill to be drawn and presented to the House of Commons. As it is a public bill no particular course is required, unless a petition be presented against it, in which case it is referred to a Select Committee.

(e) By a recent arrangement such Acts are printed with the Private and Local Acts in the Edition of the Statutes.

(f) Quære, whether the local board can appear in support of the bill, or whether the government must support it before the committee? It is right to notice that the 33 & 34' Vict. c. 1, gives power to the select committees of either House of Parliament to whom bills confirming provisional orders are referred to award costs under 28 Vict. c. 28, and to examine witnesses on oath as under 22 Vict. c. 78.

(g) Reference appears to be made to sect. 15 of this Act, ante.

exceeds or is estimated to exceed one year's assessable value (c) of the premises assessable within the district in respect of which such money may be borrowed, it shall be lawful for such board to present a petition to one of Her Majesty's principal secretaries of state praying for powers to borrow or reborrow for such works, on mortgage of the rates leviable by them under the Public Health Act, 1848, and this Act, and (d) any local Act, an amount not exceeding two years' assessable value (e) of the premises assessable within the district in respect of which such sum of money may be borrowed or reborrowed, such amount to be repaid within such period not exceeding fifty years as such board, with the sanction of one of Her Majesty's principal secretaries of state, shall in each case determine;

And it shall be lawful for any of Her Majsty's principal secretaries of state to direct inquiry on such petition, and to issue a provisional order thereupon, and to take steps for the confirmation of any such provisional order by Act of parliament in the manner sanctioned in the preceding section (ƒ).

Secretary

LXXIX. It shall be lawful for the Secretary of State to Setter

(c) This is an extension of the powers conferred by sect. 57 of this Act, ante. See note thereon. In regard to re-borrowing see 11 & 12 Vict. c. 63, s. 110.

(d) This word should be or.

(e) There is some ambiguity here. Does the clause mean twice the amount of the assessable value for the year, or the addition of the assessable value as computed for each of the two years preceding the loan? Oftentimes the result will be the same upon either hypothesis, but sometimes there may be a considerable difference in the result.

(f) The power of petitioning and appearing and opposing is not expressly given herein, but the general words contained in the last clause extend that provision to this clause.

Extension of

It is here necessary to notice that by the 24 & 25 Vict. c. 61, s. 19, it powers is enacted that the powers granted by the seventy-eighth section of "The given by 6. 78 of Local Government Act, 1858," may be exercised in any case where any 21 & 22 Vict. local board or board of improvement commissioners exercising the bor- c. 98, to cases rowing powers of "The Public Health Act, 1848," or "The Local Go- in which vernment Act, 1858," or of any local Act, has contributed to, purchased, Boards incur or executed any permanent works, or proposes to contribute to, purchase, expenses for

Q

Local

permanent works.