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v. Orerseers of
1862. St. Saviour, convened for the special purpose of deterThe Queen mining whether a burial ground should be provided for
that parish pursuant to the statutes in that behalf,
was holden, to wit, on the 25th January, A.D. 1859, a St. SWITHIN.
meeting of the vestry of the original parish of Walcot St. Swithin, duly convened for the special purpose of determining whether a burial ground should be provided, under the statutes in such case made and provided, for the original parish of Walcot St. Swithin, and of which meeting due notice had been given, was holden in and for the original parish ; and that at that meeting it was resolved by the vestry of the original parish of Walcot St. Swithin that a burial ground should be provided under the said statutes for the original parish; and the vestry did then and there at the said meeting, after passing the said resolution, appoint nine persons, being ratepayers of the original parish of Walcot St. Swithin, to be the Burial Board of the original parish; and that the Burial Board so appointed continued to be the Burial Board of the original parish thenceforth until and at the time of the holding of the meeting of the vestry of the parish of St. Saviour herein before mentioned, and had so continued from thence hitherto: that before the holding of the meeting of the vestry of the parish of St. Saviour, convened for the special purpose of determining whether a burial ground should be provided for the said parish, pursuant to the statutes in that behalf, a committee of the said vestry had been duly appointed to consider the expediency and best means of providing a burial ground for the parish of St. Saviour ; and that at the meeting so convened and holden the written report of the committee was read to the vestry, and that in and by the said report the committee reported
that they were unanimously of opinion in recommending a separate burial ground for the parish of St. Saviour as almost absolutely necessary, and further strongly recommended the formation of a Burial Board for the said parish; and that, after the report had been so read, it was at the said meeting unanimously resolved by the vestry that the report be adopted, and that a Burial Board for the said parish be at once formed; and that, save as aforesaid, it was not resolved by the vestry at the said meeting that a burial ground should be provided under the statutes in that behalf for the parish of St. Saviour.
Demurrer, and joinder therein.
Petersdorff Serjt., in support of. the demurrer. - First, The vestry of St. Saviour, which has been since 1840 a separate and distinct parish for all ecclesiastical purposes, legally appointed a Burial Board under stat. 20 & 21 Vict. c. 81. s. 5. By that section the Burial Board so appointed has all the powers which they might have had under the preceding Acts and that Act, if such parish had had a separate burial ground before the passing of stat. 18 & 19 Vict. c. 128.; and by sect. 13 of this latter Act, when a District not separately maintaining its own poor, but forming part of a parish maintaining its own poor, shall have a Burial Board, it shall be lawful for such Burial Board “ to issue their certificate to the overseers of such parish," " for payment of the sums required for the expenses of such Burial Board.” By the proviso in sect. 5 of stat. 20 & 21 Vict. c. 81., “ all the powers of any other vestry or meeting and Burial Board, if any, shall then cease and determine, so far as relates to such parish ;" which shews that it was intended that an ecclesiastical parish or district should have the power to appoint a Burial Board although there
1862. The QUEEN
should be one for the whole parish. [Cockburn C. J. If the construction contended for by the prosecutors is correct, St. Saviour would be for ever exempt from contributing to an expense which had been incurred by its own consent before it had been formed into a separate ecclesiastical parish or district.] The proviso in sect. 5 is not to be construed as extinguishing any powers, either of the vestry or the Burial Board, with respect to expenses incurred antecedently to St. Saviour exercising its right to separate itself from the old parish with regard to burials. In this case the original parish had not incurred any expences in respect of a burial ground.
Secondly. The resolution for the adoption of the report of the committee of the vestry of St. Saviour was in effect the passing of a resolution that a burial ground should be provided for that parish ; divesting it of the words as to the recommendation of the committee, it was a formal resolution, and no person present at the meeting could have misunderstood it. [He referred to stat. 20 & 21 Vict. c. 81. s. 27.]
Montague Smith (with him Kingdon). -First. The subparish of St. Saviour, having constructively concurred in the appointment of a Burial Board for the whole parish, cannot afterwards appoint a separate · Burial Board. All the previous statutes relating to burials are to be construed with stat. 20 & 21 Vict. c. 81. According to the decision in the preceding case(a), it was competent for the vestry of the original parish to appoint a Burial Board for the whole parish, and upon such appointment the sub-parish became unable to exercise the powers given to them by stat. 20 & 21 Vict. c. 81. s. 5.: otherwise there would be two Burial Boards with the power of taxation
(a) See p. 555.
in the same district. The proviso in sect. 5, that upon 1862. the appointment of a Burial Board for an ecclesiastical The
all The QUEEN parish or district the powers not only of the vestry but
Overseers of of the Burial Board of the original parish shall cease,
St, Swithin. is unintelligible if construed to operate prospectively; it may perhaps have been intended to apply only to the Burial Boards of private burial grounds. [Cockburn C. J. This is an instance of inartificial legislation; the proviso would more properly be an independent enactment. Blackburn J. In Viner, appt., The Churchwardens of Tonbridge, respts. (a), the Court held that as, under stat. 18 & 19 Vict. c. 128. s. 12., an ecclesiastical parish which has a separate burial ground may appoint a Burial Board for itself, the rest of the parish might, by implication, appoint a separate Burial Board under the same section. Mellor J. By sect 12 of stat. 18 & 19 Vict. c. 128., a parish or district for which a burial ground has been provided may appoint a Burial Board, and yet in that case, construing the proviso to stat 20 & 21 Vict. c. 81. s. 5. literally, if a smaller district within it subsequently appoints a Burial Board, the powers of the existing Burial Board are to cease.]
Secondly. It does not appear that a valid resolution that a burial ground should be provided for the parish of St. Saviour was passed by the vestry of that parish. [He referred to stat. 15 & 16 Vict. c. 85. s. 10.] [Blackburn J. At most that is only a defect which seems to be cured by stat. 20 & 21 Vict. c. 81. s. 27.; but I have some doubt whether it is a defect. Crompton J. The return is rather evasive as to this; the report of the committee recommended a separate burial ground and the formation of a Burial Board ; after that a resolution by the vestry, that the report be adopted and that a
(a) 2 E. & E. 9.
Burial Board for the parish should be formed, is quite
Petersdorff Serjt. was not called upon to reply.
COCKBURN C. J. This is a case of great doubt, and I do not without great hesitation form an opinion upon it.
The question is whether a parish for ecclesiastical purposes, carved out of a common-law parish, is entitled, under stat. 20 & 21 Vict. c. 81. s. 5., to appoint a Burial Board for itself, in order to the obtaining of a separate burial ground, there being already a Burial Board established for the entire parish, of which it is a component part. Section 5, in terms, gives power to such a part of a parish to appoint its own Burial Board and establish its own burial ground; and provides that, on its taking the necessary steps for that purpose, all the powers of the general vestry of the entire parish, and of the Burial Board already constituted, shall at once cease and determine so far as relates to it.
If that section stood alone, nothing could be clearer. But a difficulty arises in giving a construction to that section according to its plain meaning, consistently with the enactments in other statutes which are to be read with it. The great difficulty is that, under powers given by the previous Acts, the vestry of the entire parish are entitled to appoint a Burial Board and establish a burial ground for the entire parish, and such Burial Board is empowered to borrow money for the purposes of the burial ground, and to charge the rates of the entire parish with the payment of principal and interest. They are to apportion the charge over the component parts, if each part maintains its own poor and has its own poor rate; but, if not, as in the