Assessment to defray costs of new sewers, C. 121, S. 22. period other houses should be built and use the ditch or drain, they may be included in a subsequent rate, but the original assessment will not be bad for omitting to assess in respect of 18 & 19 Vict. houses which do not and never may exist. Again, the rate or assessment will not be bad because the local authority may, when they made the assessment, also have resolved that the persons chargeable to the rate might compound by making at once a payment equal to the amount of four annual payments. Then the houses assessed must be within the jurisdiction of the local authority, for the statute gives no power to assess property in another parish, even though the particular works executed by a local authority under this provision improve property which is situated in such other parish; and prima facie, any authority conferred on a Board acting within local limits is only to be exercised within those limits. The following are the facts of the case in which it was so held. The drainage of two houses in the parish of St. Pancras was carried by a covered drain into an open ditch in the parish of Hornsey. This ditch, being a nuisance, was made into a covered sewer by the local authority of Hornsey, under the Nuisances Removal Act, 1855; and they, under section 22 of that Act, assessed, amongst others, two houses in St. Pancras parish as using the drain or structure so made. It was also considered doubtful whether the two houses used the structure within the meaning of section 22, as they derived no benefit from the covering of the ditch, which was no nuisance to them when open. (1) The following further illustrates the section.-Where a parish was divided into four districts, for the purpose of drainage under the 18 & 19 Vict. c. 121, S. 22, in the year 1855, sewers were made for draining one of the districts, and a house in such district was assessed in respect of the expenses of making the sewers. The person so assessed compounded and paid the sum at which he was charged. In [the year 1856 another of the districts was drained, and the result of the works made in the two districts was to increase a nuisance which before existed in another of the districts undrained. Accordingly, in 1859 it became necessary to make new sewers in that district, and it was resolved by the local authority that the drainage of the four districts should be considered as one system. The works were made, and the house for which the assessment had been compounded for and paid was again assessed in respect of the expenses of making the new works. Upon a rule to the justices to show cause why they should not issue their warrant to levy by distress and sale the rate made on such house, it was held that the local authority had power to charge the person assessed, as his house might be said to use the sewer into which its refuse flowed, within the meaning of the Act; (1) Reg. v. Warner, 6 E. & B. 395; 27 L. J. M. C. 144; 4 Jur. (N. S.) to defray costs of new sewers. and per Cockburn, C.J., the policy of the legislature is, that Assessment the drainage of the large district should be considered as one aggregate drainage for the good of the whole community of the district. (1) 18 & 19 Vict. The section enables the local authority to impose the assess- c. 121, s. 22. ment on "the house, building, or premises," but does not indicate whether the owner or the occupier is the person liable to pay the assessment. In the Hornsey case above mentioned the occupier was also the owner of the house, so that the question did not arise in that case; but as the assessment is made liable to the incidents of a highway rate, in respect of its levy and collection, and as that rate is chargeable only upon the occupier of the premises, it would seem that the occupier is the proper person to be assessed. In the Hornsey case an objection was taken that the assessment was not allowed by the justices and published in the same manner as a highway rate; but as, notwithstanding that objection, the rule was made absolute to the justices to levy the rate, it appears to be settled that such allowance and publication are not necessary to give validity to the assessment. As regards the enforcement of a highway rate, see the 5 & 6 Will. IV. c. 50, s. 34, and 12 & 13 Vict. c. 14; also the 13 & 14 Vict. c. 99, as to the assessment of the owners of tenements, the yearly rateable value whereof does not exceed six pounds, in lieu of the occupiers of such tenements; and as regards the right of appeal against the amount of the assessment, see the 5 & 6 Will. IV. c. 50, s. 105, under which the appeal lies to the justices at the next or general quarter sessions, provided notice in writing, and a statement of the grounds of appeal, have been given by the person aggrieved to the surveyor of the highways (in this instance it is presumed to the local authority) within fourteen days after the rate shall have been made. With reference to the repealed provision in sect. 7 of the 18 & 19 Vict. c. 121, empowering justices to make orders for the payment of expenses incurred by the local authority in execution of the Act, it has been held that it was not to be resorted to until the means given by the 22nd section for defraying expenses for structural works have been exhausted. (2) This decision is equally applicable to the substituted provision in the 23 & 24 Vict. c. 77, s. 4; and the funds there referred to must therefore not be resorted to in order to defray the cost of structural works under the 18 & 19 Vict. c. 121, S. 22. It may be here added that by the Sanitary Act, 1866, s. 45, Penalty for if any person wilfully damages any works, or property of any damaging nuisance authority, he shall be liable to a penalty not exceeding £5. (1) Reg. v. Bodkin, 30 L. J. M. C. 38; 6 Jur. (N. s.) 1370. (2) Reg. v. Gosse, 30 L. J. M. C. 41; 6 Jur. (N. S.) 1369. works. 29 & 30 Vict. c. 90, s. 45. As to construction of sewers, wells, pumps, etc., for certain parishes, etc., with less than 2000 inha bitants. II & 12 Vict. c. 63, s. 50. 10. CONSTRUCTION OF SEWERS, ETC., AND PROVISION OF WELLS AND PUMPS BY CHURCHWARDENS AND OVERSEERS IN POPULOUS PARISHES. It will readily be perceived that there is very great difficulty attendant upon the adoption of proceedings under the 22nd section of the 18 & 19 Vict. c. 121; especially when the local authority for the district is a Board of Guardians. When such was the case the Poor Law Board recommended the guardians not to undertake any proceedings with a view to the execution of structural works requiring a large outlay of money; but rather that the Local Government Act, 1858, should be adopted in the particular district. It will be seen that the Local Boards under that Act, and the Public Health Act, 1848 (as well as sewer authorities), have ample powers to deal with matters arising within their district which the present statute was intended to deal with in other districts. On this point see Reg. v. Epsom, ante, p. 536. In a district in which a Board of Guardians is the local authority under the Nuisances Removal Acts, and there is no proper system of sewerage, the most practicable course will be for the vestry of the particular parish to proceed under the Sewage Utilization Act, 1865, as amended by the Sanitary Acts, 1866 and 1868, as to which see post, p. 536. Another alternative is the adoption by the inhabitants in vestry of the provision in the Public Health Act, 1848, with regard to the construction of sewers, wells, pumps, etc., in certain parishes, which it will be observed is entirely excep tional to the ordinary inachinery of that Act, as it is to be put in force by the inhabitants in vestry, and not by any authority constituted under the Act. local If it appear to a majority of not less than three-fifths of the rated inhabitants of any parish or place containing less than two thousand inhabitants on the then last census in which the Public Health Act shall not have been applied by Order in Council or provisional order, assembled at a public meeting to be called in the manner which will be hereafter adverted to, that it would contribute to the health and convenience of the inhabitants That any pond, pool, open ditch, sewer, drain, or place containing or used for the collection of any drainage, filth, water, matter, or thing of an offensive nature, or likely to be prejudicial to health, should be drained, cleansed, covered, or filled up; Or that a sewer should be made or improved; A well dug, or a pump provided, for the public use of the inhabitants; The churchwardens and overseers shall procure a plan and estimate of the rest of executing such works, or any of them, and shall lay the same before another public meeting of the New sewers, inhabitants, to be called in the same manner. wells, etc. c. 63, s. 50. And if they shall be approved and sanctioned by a majority 11 & 12 Vict. of the rated inhabitants assembled at the last-mentioned meeting, the churchwardens and overseers shall cause the works in respect of which the estimate shall have been made and sanctioned to be executed, and shall pay the cost thereof out of the poor rates. Notice of every such meeting shall be given by the churchwardens and overseers as is by the Act directed to be given by superintending inspectors, before proceeding upon inquiries previously to the application of the Act (see ante, p. 8), and every such notice shall contain a statement of the work proposed or intended to be submitted for consideration and approval. With reference to section 50 of the 11 & 12 Vict. c. 63, the Poor Law Board said that it is not free from ambiguity, but they were disposed to consider that it will be sufficient if threefifths of the rated inhabitants who are present at a meeting duly summoned under that section give their consent to the proceedings therein contemplated. The Act requires that there should be a majority of the inhabitants assembled at a meeting duly called, and that such majority should not be less than three-fifths. It appeared to the Board that the majority intended is the majority of the meeting, and not the majority of all the rated inhabitants in the parish. The meeting having been duly called, those who are absent must be presumed to acquiesce in the proceedings of those who attend. If the consent of the inhabitants be duly obtained, no order of the Local Government Board is required to enable the overseers to execute any works provided for by the enactment. (1) pumps All wells, fountains, and pumps provided under sect. 50 of Wells, founthe Public Health Act, 1848, or otherwise, for the use of the tains, and inhabitants of any place, and not being the property of or vested in vested in any person or corporation other than officers of such local place, shall be vested in the local authority under the 23 & 24 authority. Vict. c. 77, for such place, who shall from time to time cause 23 & 24 Vict. to be kept in good repair and condition and free from pollution C. 77, s. 7. all wells, fountains, and pumps vested in them under the Act. They may also keep in good repair and condition and free Ib. from pollution other wells, fountains, and pumps dedicated to or open to the use of the inhabitants of such place. It will be observed that the first part of the above provision is compulsory, and that the latter is permissive only, and does not vest the property in the wells or fountains in the local authority. Moreover the Act does not enable the local authority to erect pumps where they are not already in existence. But now, by the Sanitary Act, 1866, s. 13, all such wells, (1) 8 C. C. 103. c. c. 90, s. 13. 29 & 30 Vict. fountains, and pumps, and powers in relation thereto vested in the nuisance authority, shall vest in the sewer authority, where that authority supplies water to its district. Penalty for fouling water. 23 & 24 Vict. c. 77, s. 8. 18 & 19 Vict. C. 121, s. 2. The offence. Penalties. Ib. s. 24. Daily penalty during continuance of offence. Ib. s. 25. If any person do any act whatsoever whereby any fountain or pump is wilfully or maliciously damaged, or the water of any well, fountain, or pump is polluted or fouled, he shall, upon summary conviction of such offence before two justices (or a stipendiary magistrate), forfeit a sum not exceeding £5 for such offence, and a further sum not exceeding 20s. for every day during which such offence is continued after written notice from the local authority in relation thereto; but nothing herein contained shall extend to any offence provided against by sect. 23 of the Nuisances Removal Act, which forms the subject of the following section. § 11. FOULING WATER WITH GAS WASHINGS. Persons or companies engaged in the manufacture of gas who shall at any time cause or suffer to be brought or to flow into any stream, reservoir, aqueduct, pond, or place for water, or into any drain communicating therewith, any washing or other substance produced in making or supplying gas, or shall wilfully do any act connected with the making or supplying of gas whereby the water in any such stream, reservoir, aqueduct, pond, or place for water shall be fouled, shall forfeit for every such offence the sum of £200; and it would appear from Hipkins v. Birmingham and Staffordshire Gaslight Company (1) that an involuntary or unknown proceeding would be within the prohibition of the statute. The penalty may be recovered, with full costs of suit, in any of the superior Courts, by the person into whose water such washing or other substance shall be conveyed or shall flow, or whose water shall be fouled by any such act as above mentioned; or if there be no such person, or in default of proceedings by such person, after notice to him from the local authority of their intention to proceed for such penalty, by the local autho rity; but such penalty shall not be recoverable unless it be sued for during the continuance of the offence, or within six months after it shall have ceased. In addition to the penalty of £200 (whether it shall have been recovered or not) the person or company offending are liable to forfeit the sum of £20, to be recovered in like manner. for each day during which the offence shall continue, or during which the act by which the water is fouled shall continue, after the expiration of twenty-four hours from the time when notice of the offence shall have been given by the local authority, or by the person whose water shall be fouled thereby; which latter penalty is to be paid to the persons from whom the (1) 5 H. & N. 74; 6 Jur. (N. S.) 173. |