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1862.

The QUEEN

V.

Overseers of

The facts in the present case appear to us clearly to make out such community and connection as is defined in the beginning of the 11th section; and the latter part COLESHILL. of the section enables the vestry or meeting in the nature of a vestry for the whole district to appoint a Burial Board, and gives the whole powers of the preceding enactments for providing a burial ground for the common use of such parishes or places so united as if such parishes or places had been a parish separately maintaining its own poor. In other words, it brings the whole district into the class or category of places as defined by the 15 & 16 Vict. c. 85., and by that statute having the power to appoint a Burial Board for the one district by the vote of the one vestry or meeting in the nature of a vestry. Here there was an actual vestry for ecclesiastical purposes, so that there is no occasion to resort to the provision made for the cases in which a meeting in the nature of a vestry is to have the power.

The Burial Board in question appearing to have been regularly constituted by the vote of the vestry for the whole district, we think that it was well constituted under the provisions of the 18 & 19 Vict. c. 128. s. 11.

It should be remembered that the object and effect of these provisions is to make the whole district one body, acting by one vestry for the purpose of establishing a Burial Board, not to create two distinct bodies having power by virtue of the 15 & 16 Vict. c. 85. s. 23. to concur in providing one Burial Board in such manner as they shall mutually agree, and to agree as to the proportions in which each parish shall be chargeable. This distinction is important with respect to the question secondly raised before us as to the mode of taxation.

It was pressed upon us principally that the 11th section of the 18 & 19 Vict. c. 128. must be read with reference to the 23d section of the 15 & 16 Vict. c. 85.; and therefore that the Board ought to have fixed one definite proportion in the contract for the amount to which each of the two places was to be chargeable in future, and which was never to be changed.

We do not concur in this view of the enactment.

The provisions in the 23d section of the 15 & 16 Vict. c. 85. are applicable when the two parishes or places maintaining their own poor, acting by their two vestries, are to consider whether they will have a joint Burial Board or not; and they are therefore properly directed to consider in what manner not inconsistent with the Act the burial ground shall be provided, and in what proportions they shall each be chargeable, a most important element in their consideration of the question whether they shall unite or not. They are each to appoint a Burial Board, who are to act together as a joint Burial Board, and to be incorporated by the name of "The Burial Board for the parishes of "whilst the ordinary Burial Board is to be incorporated by the name of "The Burial Board for the parish of

"

It seems to us that the effect of the 11th section of the 18 & 19 Vict. c. 128. is to bring the case within the class of cases by which a parish, as defined by the 15 & 16 Vict. c. 85., is to form a district by itself; and not within the class referred to in the 23d section of that Act, where two or more parishes are to agree. The powers are to be exercised by one body, and not by two bodies agreeing before the constitution of the Board on what terms and in what proportions they shall unite. The 11th section of the later Act expressly says that the inhabitants are

1862.

The QUEEN

V.

Overseers of
COLESHILL.

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to act by the one vestry or meeting in the nature of a vestry, and are to be in the same situation as if the district constituted one parish separately maintaining its own poor; in effect that they are to fall within the class of cases in which a parish, i.e., by the definition, every place maintaining its own poor, is to be a body to constitute by one vestry one Burial Board, and not within the class contemplated in the 23d section of the 15 & 16 Vict. c. 85., by which the two parishes are kept distinct, and elect two separate Boards, who are to act jointly.

Under the 23d section of the 15 & 16 Vict. c. 85., the proportion was clearly to remain the same as between the parishes, but that does not appear to have been contemplated by the 11th section of the later Act, which gives directions as to the apportioning the expenses with reference to the rateable value of the property.

There is not to be one proportion fixed for ever according to the agreement of the parties, but the expenses are to be borne by the several parishes or places, and shall be apportioned among them by the Board in proportion to the value of the property in such several parishes or places as are rated to the relief of the poor. This, we think, may well be construed to mean that the proportion shall be according to the rateable value from time to time when it may become necessary to raise the rates, and this seems to us a more natural construction than to hold that the rateable value at the establishment of the Board is to be binding for ever. The proportion is to depend on the value as rated to the relief of the poor, and it can hardly mean that for all future time the rates for the year of the establishing the Board are to be referred to. It certainly seems a much more reasonable provision that the burden should

follow the rateable value from time to time as the words seem to import. It appears to be more just that the places should contribute as the population varies and the rateable value falls and rises; and this is in effect the same provision as is made for the common case of one parish by the earlier clauses of the Act.

The Act saying that the Burial Board, as we think from time to time, are to apportion the expenses to be borne by the two places in proportion to the value of the property in each as rated to the relief of the poor, the mode adopted seems to us to be right, as the Board has so apportioned the necessary sum, and then the machinery of the earlier Act as to giving the certificate and requiring the overseers to pay the money seems to apply.

It was said indeed by Mr. Lush that there were to be two modes of taxation, and that the sums to meet the expenses of providing or buying a burial ground and of paying the mortgage monies, though falling upon the rates, were to be raised in a different manner from the ordinary expenses of maintaining, &c. the burial ground. We see however no distinct machinery given for this purpose, and we do not see why all the expenses, whether to meet the necessary expenditure for maintaining the burial ground, or for the purpose of meeting the interest on money borrowed, should not be raised by one tax, a much more convenient course than if two distinct taxations were to be necessary every year, the one for ordinary and the other for extraordinary expenditure, where both are alike to be paid out of the rates.

Another objection was made by Mr. Lush, that the mortgage deed was defective in charging the sum borrowed upon the future rates of the one part of the parish

1862.

The QUEEN

V.

Overseers of
COLESHILL.

1862.

V.

Overseers of

and also upon the future rates of the other part of the

The QUEEN parish. If the view we have taken be correct, that the expenses are to be defrayed from the rates of the two COLESHILL. places in proportion to the rateable property in each from time to time, this would seem correct; as it must be construed to mean, and its legal effect would be, to charge it on the rates of the parishes in the proportion to be ascertained from time to time according to the rateable value of the property in each.

Upon the whole, therefore, we are disposed to think that the constitution of the Board and the mode of taxation adopted in this case, carry out in the way that seems most feasible the object of the provisions of the Act; but we cannot help observing that it is impossible to come to anything like a decision which is perfectly satisfactory to our own minds, amidst such confusion as exists in the provisions of the different Burial Acts which have been referred to in the course of the argument.

For the reasons we have given our judgment is for the Crown.

Judgment for the Crown.

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