IMAGE EVALUATION TEST TARGET (MT-3) 4 J 7. 1.0 I.I 150 1^ 1^ 1^ Muk. 1^ M 1.8 1.25 1.4 1.6 .« 6" ► V] . o / '^ ;>^ ? / M Photographic Sciences Corporation £^ \ :\ \ ^rien, Esq., Barrister-at-law, a gentleman who is already favourably known to the Profession as one of the Editors of " The Upper Canada Law Journal," and " The Local Courts Gazette," and Editor of an ably annotated Edition of the Division Courts Act. The Index, which is very full, will, it is hoped, be found all that is necessary to the ready use of the work. Much labour has been bestowed upon it, and, so far as the Editor can judge, it has been carefully compiled. Imperfections in the work, either on the part of the Editor or of his assistant, are not to be attributed to wilful neglect ; but as no such work can be made perfect, the Editor must ask forbearance. Much labour has been expet ded on it, and it is hoped thnt it will not only lighten the labour of membei's of the Legal Profession, but have the effect of expounding and making known the Municipal and Assessment law to the many, not members of the Profession, whose duty it is to give effect to the law, and work under it. II: liilll X PREFACE. The Fii'st Edition of the work received a generous support, as well from the Legal Profession as the great body of the Municipal Councillors and officers of Upper Canada. It is hoped that this Edition, to which the Editor has devoted much thought, will be equally well received. The delays which have occurred in its issue were unavoidable, and to some extent rendered necessary by reason of the Editor's great anxiety to make his work simple in its language and reliable^ in its exposition of the law. The work is intended not merely for lawyers, but for men unacquainted with the niceties of law. Most of the notes are therefore •written in a popular style, and as free as possible from legal phraseology. Englefield Toronto, 26th Marchi 1867. PREFACE TO THE FIRST EDITION. In the Prospectus issued for this work it was said tliat the Municipal Laws of Upper Canada are in importance second to none of the laws of the Province, and that every Municipal Corporation is a small Parlia- ment, possessed of extensive but yet limited powers. It was then pointed out, that to ascertain in every case the existence or non-existence of a power — the nature of it — its precise limit and the mode in which it should be exercised is the object of all who are in any manner concerned in the administration of Municipal affairs. When it is considered, that in the first instance these matters are to be detei'miued by Municipal Councils, seldom containing Members vereed in the laws, often acting without the aid of Professional advice, the importance of a guide becomes, as said in the Prospectus, manifest. That guide it has been the aim of the Editor in the following pages to produce. He now proposes as briefly as possible to state upon what principles and in what manner he has performed his task. The Legislature having, by the Consolidated Act of the present year, classified many Municipal enactments and repealed many of those that were eflete or thereby rendered useless, the Editor, with the assistance of legal friends of greater experience than himself, in the first place applied himself to the work of expounding the Consolidated Act by the light of adjudged cases. This he did patiently and assiduously, noting latent difficulties and explaining as far as possible all difficulties of eveiy kind that occurred to him. The result is a body of notes more elaborate than he contemplated when he began his labours. All decisions reported in time for his pen have been carefully epitomized and introduced into the notes so written. Having in this manner continued his labours until the completion of the Consolidated Act, he next turned his attention to other Acts of a if zii PREFACE. like kind, promiscuously scattered througli the twenty-two volumes con- taining the Provincial Statutes. Beginning at the first Act, he selected in chronological order such acts as from their nature a person would expect to find in a Municipal Manual, until he reached the last Act of the kind now in force. The result is a large collection of Acts and parts of Acts, added to the end of the Consolidated Municipal Act. One great difficulty which the Editor experienced from first to last, was, to i)ublish all Acts at all of use to Municipalities, and yet to keep his book in a single volume of moderate dimensions. To accomplish this, Acts have been abbreviated by the omission of mere formal matter. Acts of a private nature and so of little public utility have been in some places abridged by the statement of substance only, and in others nothing has been given except the title or heading, when expressive of the object. Other Acts, such as those regulating the inspection of Beef, Pork, Ashes, and the incorporation of Road and other Companies, have, because of their great length, and, coinparatively speaking, little general utility, been entirely excluded. So have the Common School and Grammar School Acts. The I'eason of the exclusion of the latter is, that they are con- tained in " The Edvication Manual," a small work within the reach of all, and it is presiimed in the possession of all engaged in the execution of those statutes. The arrangement adopted has been the chronological, in preference to the analytical ; the reason being that by such an arrangement the growth of the law is o^jened to public view, while for convenience of refei'ence the addition of a very full Analytical Index imparts to the work all the benefits of analysis. Thus, under Toronto, Kingston, Hamilton, &c., in the Index will be found references to Acts applying specially to these Cities, though published in difierent parts of the volume. To make the chronological aiTangement still more efiective, the Editor has, as a rule, in the margin of each statute wherever it is altered or afiected by a subsequent statute, made a refeience to the subsequent statute. The object of this is, to guard against reading any one provision as the only or whole law on the subject, wherever there are others which ought to be read in connection with it. For the convenience of the Legal Profession as well as for the iuforma- tion of all concerned, the Rules of Court governing contested Municipal PREFACE. • • • Elections have been added in the Appendix and noted in the General Index like other parts of the work. In the Appendix will also bo found a form of By-law to contract a debt by borrowing money. The utility not to say necessity of such forms is well known. In the preparation of this Edition of the Municipal Manual, the Editor had neither the time nor the mateiials to enable him to give a complete set of Municipal Forms. He, however, did what he could towards supplying the void by pi'eparing a form of a By-law of more general tise than that of any other form of By-law. His reasons for so doing were two-fold. First, to furnish a model whereby other By-laws may be drawn ; and secondly, to furnish a form for that By-law, which of all others must essentially be correct both in form and in substance. Great responsibility rests upon those who undertake to prepare By- laws, on the legality or illegality of which large monyed transactions are made to depend. Some form must be observed ; and yet a close adher- ence to technical nicety may in certain cases work positive injustice. Were it possible to secure for money By-laws the stamp of legality, so as to remove all suspicion of informality, irregularity, or illegality, the effect would be eminently beneficial. It would beget a spirit of confidence, alike of advantage to the seller and to the buyer of Municipal Deben- tures. Less room would be left for speculation or trade in the fears of men or contingencies of law, and more stability be imparted to the nego- tion of Canadian Municipal Securities ; one " consequence of which — ai^d not the least — would be, that the market value of all such securities would be proportionably increased. The only mode likely to attain so desirable an end that at present occurs to the Editor, would be to require all By-laws of this kind to be approved by some public functionary, and, when appx'oved, to be imimpeachable on the ground of informality or want of technical accuracy. Such is the principle applied to By-laws passed to raise money on the credit of the Consolidated Revenue Fund. It is enacted that " no informality or irregularity in any such By-law, or in the proceedings relative thereto, anterior to the passing thereof, shall in any manner affect the validity thereof, after the Governor- General in Council shall have approved of such By-law ; but the Order in Council approving such By-law should be held to cover any such infor- mality or irregularity, and the By-law shall be valid to all intents and purposes." (16 Vict. cap. 123, sec. 5.) f XIV PREFACE. It is easy to perceive how efficacious would be this seal of approval, if applied to all money By-laws. The object of it is to secure the confidence- of the public. That object is as much needed in the cjme of any ordinary money By-law, as one to raise money on the credit of the Consolidated Municipal Loan Fund ; and if beneficial in the one case, the Editor can- not help suggesting that the benefits ought, by some appropriate machin- ery, to be extended to all similar cases. Indeed tlie Legislatui-e have, in other instances, partially affirmed the princii)le. It is by the Consoli- dated Municijial Act enacted, that " in case a By-law by which a rate is imposed has been specially promulgated in the manner specified, no application to quash the By-law shall be entertained after six calendar months have elapsed since its promulgation," (sec. 195,) and that "in case no a[)i)lication to quash any By-law so specially promulgated is made within the time limited for that purpose, the By-law, or so much thereof as is not the subject of any such application, or not quashed upon such application, so far as the same ordains, prescribes or directs any- thing within the proper competence of the Council to ordain, prescribe, or direct, shall, notwithstanding any want of substance or form, either in the By-law itself or in the time or manner of passing the same be a valid By-law." (Sec. 200.) Witli these observations, the present Edition of the Municipal Manual is submitted to the ]niblic. Of the public, the Editor has only one request to make. It is, that imperfections are notto be attri bnted to neglect, but to circumstances — s\ich as want of time and want of space — over which he, however well disposed, had no control. Queen Street "West, 2Jnd December, 1S5S. TABLE OF CONTENTS. (( (C « Page. Table of Cases xvii Calendar , Ixii An Act respecting Municipal Institutions 1 the Assessment of Property 599 the Sale of Fermented or Spirituous Liquoi-s 784 " to amend the License Act and for other purposes 864 " respecting the establishmenL ol" Municipal Institutions in the Districts of Algoma, Muskoka, Parry Sound, Nipis- sing, and Thunder Bay 869 An Act respecting the Registration of Municipal and certain other Debentures 880 An Act respecting Public Meetings 886 " to exempt Firemen fi'om certain local services 894 '* respecting the Support of Destitute Insane Persons 897 *' to regulate Travelling on Public Highways and Bridges ... 898 " exempting certaia Vehicles, Horses and other cattle from Tolls and Turnpike Eoads :... 901 An Act respecting Double Tracks and Snow Roads 905 " to authorize and regulate the use of Traction Engines on Highways 905 An Act to encourage the Planting of Trees along Highways 909 to prevent the spreading of Canada Thistles 911 to prevent the Profanation of The Lord's Day 914 respecting the Public Health 919 An Act respecting Vaccination and Inoculation 928 " to regulate the means of Egress from Public Buildings 936 to require the Owners of Threshing and other Machines to guard against Accidents 938 (( « (( (( Xvi ' TABLE OP CONTENTS. An Act to impose a Tax on Dogs and for the protection of Sheep. . 940 *• respecting Pounds 946 « « the Investigation of Accidents by Fire 952 « « Abandoned Oil Wells 955 «« « Line Fences 957 « " Ditching Watercourses 964 " for the Protection of Insectivorous and other Birds bene- ficial to Agriculture 971 An Act to Encourage the destroying of Wolves 973 " to amend the Line Fences Act 975 ** respecting Bridges in Villages 975 " to amend the Revised Statutes respecting Ditching Water- couracs 976 An Act to amend the Assessment Act 977 " to amend the Law for the Protection of Game and Fur- bearing Animals , 978 An Act to amend the Revised Statutes for the Protection of Insec- tivorous and other Birds beneficial to Agriculture 982 Rules of Court for the Trial of Contested Elections and Tariff of Fees 983 '! TABLE OF CASES. Adams v. Carlialo, 487. — V. Great Western E. W. Co., 639. — V. Lancashire and Yorkshire R. W. Co., 488. — V. Mayor, 214. — V. Michael, 425, ~ V. Railroad Co., 373 Adair v. City of Kingston, 485. Adderly v. Storm, 643. Adeline Nott's Case, 350. Adey V. Hill, 86, 670, 071. Adley v. Rueves, 363. Adshead v. Grant, 701. Aerated Bread Co. v. Gregg, 370. Agard V. Candish, 778. Ahrons v. McGiligate — The Grand Trunk R. W. Co. Garnishees, 639, Aiken v. Western Railway Co., 218. Albany Street, In re, 372. Aldrich v. Howard, 427, 454. — V, Pelham, 484. Aldridge v, Cato, 678, Aldwell and Toronto, Ex parte, 267, 5G2. Alexander v. Baltimore, 372. — V. Milton, 626. — V. Newman, 649. Alger V. Lowell, 482, 487. Allan V, Fisher, G05, 696, 722, 723. — V, Hamilton, 739. — V, Overseers of the Poor, Liverpool, 627. Alleghany County v. VanCampen, 186 Allen, In re, 248, 773. — V. Hancock, 487. — V. Jay, 358. ~ V. Sharpe, 652, 653, 667, 677, 678. — V. Smith, 57. — V, Sparkhall, 408. — V. Taunton, 431. — V. Tunbridge, 327. Allison V. Chichester, 486. Alston V. Grant, 448. Althorf V. Wolfe, 490. Alvord V. Ashley, 493. American Print Works v. Lawrence, 387. Amey v. Alleghany, 266, 267. Amory v. Fellows, 310, Anderson, John, Tn re, 841. Andover and Medford Turnpike Corpora- tion v, Gould, 517. Andrew v. White, 786, 805. Andrews v. Insurance Co., 213. — V. State, 418. — V. United States, 203, Angell V. Vestry of Paddington, 611. Anglin v. Kingston, 301, 759. — V. Minis, 629, 697, 699, 700. Annis and Mariposa, In re, 507. Anon, 62, 96, 293, 295. Anthony v. Brecon Market Co., 426, 427. V. Inhabitants, 299. Applebee v, Percy, 405. Applegarth et al. v. Graham 54, 628. Applegate v. Earnest, 606. Argenti v. San Francisco, 561. Arkell and St. Thomas, In re, 383, 396, 397, 788, 799, 813. Arkwright v. Cantrell, 123. Arnisworth v. Southeastern R. W. Co., 489, 490. Arnold v. Blaker et al., 477. — v. Holbrook, 425, 477, 478, — V, Poole, 204, Arnott V. Bradley, 313, 330, Arnoult v. New Orleans, 33. Arran v, Amabel, 31. Arundel v. MeCulloch, 499. Ash v, Lynn, 795, — V, People, 413, 416, 217, 392. Ashbrook v. Commonwealth, 405. Ashton V, Ellsworth, 14. Ashworth, In re, 642, — V. Heyworth, 417. f XVIU TABLE OF CASES. Askow V. Mftnning, 129. Aakin v. liondon District Council, 303, 323, 738, 730. Asphodel and Hargant et al.. In ro, 124, 125. Asprell V. JuBtices of Lancaster, 662. Atchosoji V. Bii teller, 571. AthlonoCase, 10<5. Atkins V. Kilby, 339. Atkinson v. Newcastle and Gateshead Water Works, 432. — V. Sellers, 800. Atlanta v. White, 413. Att.-Gen. v. Alexander, 639. — V. Aspinall, 188. — V. Boulton, 473. — V. Bowman, 311. — V. Bra.lford, 612. — V. Cambridge, 415. — V. C:impl>eir, 454. — V. Daken, 610. — V. Donaldson, 450. — V. Earl Powis, 6. — V. Kerr, 11. — V. (Joderich. .354, 47.3, 012. — V. Hackney Local Board, 361. — V. Harris, 505. — V. Leceister, 11. — V. LichHeld, 304. — V. Mayor of Leeds, 573. — V. Mayor of Norwich, 188. — V. Molaon, 473. — V. Mutual Tonbine'Westminster Chambers Association, 66, 626. — V. Nepean Road Co., 475. — V. Newcastle, 11. — V. Parker, 63. — V. Plank Road Co., 607. — V. Radloff, 311. — V. Siddam, 311. — V. Sillem, 6691 — V. Sulley, 639, 641. — V. Sullivan, 311. — V. Tongue, 409. — V. Toronto, 509, 612, 613. — V. Utica Insurance Co., 174. — V. Wigan, 150, 264. — V. Woodhouse, 409. — ex rel. Nepean v. Bytown and Nepean Road Company, 520. Auckland v. Westminster Local Board, 454. Auditor v. Ballard, 464. Augusta'and Leeds and Orcnville, In re, 512. AuU V. Lexington, 406. Aurora v. Reed, 446. — V. We^, 302, 671. Austin V. Armstrong, 738, 748. — V. Guardians of Bethnal Green, 10* — V. Murray, .393 — V. Simcoe, 610, 734, 746, 763, 755. — V. St. Mary Lambeth, 447. Averritt v. Murrell, ,392. Ayer v. Norwich, 484. Bab V. Clerk, .364. Babbitt v. Savoy, 204. Babcock v. Bedford, 239. Baby v. Baby, 8, 186. Bacon v. Ajhton, 238. — V. Boston, 429, 441, 482. Bachelder v. Heagan, 392. Baddeley v. Gingell, 5(i0. Badgley v. Bonder, 473, 508. Bagg's Case, 205. Baguelly v. Borthwith, 294. Bailey v. Fairfield, 490. — V. Philadelphia, Wilmington, and Baltimore R. W. Co., 609. Bain v. Spratley, 210. Baird and Almonte, In re, 60, 173, 237, 358, 794. — V. Bank of Washington, 171. Baker v. Clark, 493. — V. Paris, 240, 241, 814. — V. Portland, 211, 488. — et al. and Saltfleet, In re, 510. — V. Savage, 482. — V. Utica, 203, 561. — V. Vestry of Marylebone, 516. — V. Windham, 204. Ball V. Ray, 425. I Baltimore v. Bouldin, 373, 565. — V. Kschbach, 561. — V. Gill, 251. — V. Railroad Co., 606. — V. The State, 368. — V. White, 379. Bamford v. Turnley, 425, 427. Banbury, Corporation of, 72. Bancroft v. Dumas, 369. — v. Lynnfield, 204. Bangs v. Snow, 210. Bank v. Chester, 603. — V. Chillicothe, 251. Bank v. Mayor, 603. M TABLE OF CASES. XIX Bank v. Potwny, 72. — V. llailroad Co., 302. — V. Rome, 571. — V. Supervisors, 204. — of CheiiTingo v. Brown, 42. — of Michigan v. Niles, 36, 171, 354. — of Montreal v. Fox, 448. — — V. Taylor, 275. — of Toronto v. Fanning, 605, 625, 02(5, 723, 747. — of Upper Canada v. Owen, 34. Banks, The, v. Pontiaux, 171. Banncrnian and Yarmouth, In re, 468. Barber and Ottawa, Ko, 254, 261, 278. — V. Rollinson, 330. — V. Roxbury, 480. — V. Waite, 59. Barclay and l)arlin{;ton. In re, 11, 242, 243, 248, 31)6, 798, 800, 810, 814. — V. Bard well Barker v. — V. — V. Barlow v. Howell's Lea8ee,^509. V. Jamaica, 497. Commouwealth,^397, 440. Loomia, 251. Pittsburg, 204. Norman, 4.34. Barnard v. Poor, 392. Barnes v. Atcheson, 571. Barnes v. Ward, 518. Barnett v. Newark, 223. Barnstaple Case, 155. Banaclough v. Johnson, 478. Barrett, In re, 836. Barrie v. Gillies, 519. Barry v. Lowell, 444. — V. Merchants' Exchange, 251 . Barter v. Commonwealth, 302, 364. Bartimore v. Cemetery Co., 607, 608. Bartlett v. Amherstburgh, 10. Barton v. Bricknell, 310. — V. Dundas, 698. — V. New Orleans, 203, 406. — V. Piggott, 652. — V. Syracuse, 444, 486. Bass V. Columbus, 572. Bassett v. Godschall, 793. Bate V. Ottawa, 571, 672. Bateman. Re, 678. — V. Hamilton, 449, 486. — V. Marriott, 438. Batho V. Salter, 203. Batty V. Duxbury, 484. Bauman v. Vestry of St. Pancraa, 436, 441. Baxter, In re, v. Hesson, 791. — V, Kerr, 172, 251. Bay ley v. Jameson ot al., 473. Baynes v. Brewster, 329. Beard V. Brooklyn, 5. Hodenhani v. Rickets, (i78. Hotlniin Case, 154, I.m. Bogart V. Belleville, 2.39, 243, 245, 240, 380. — V. Indianapolis, .38.5, 393, .394. Boley V. McLean, 401. Bolt V. Ackroyd, 309, 310. Boltc V. New Orleans, :i09. Bond V. Kenosha, 0O7, (i09. — V. Newark, .5(iL — V. Overseers of the Parish of St. (Jeor^'e's Hanover Sipiare, 0.3. Bongard v. McWhirtcr, 078. Boom v. Utica, 299, 129. Boon V. Howard, (iO, Booth v. (iirdwood, 7.37, 7.38. — V. State, 454. — V. Soutiierland, 101, 102. Boothroyd, Re, 313. Borough V. Shortz, 444. Borrowinan v. Mitcliell, 472, 474. Bosley v. Davies, .399, 819. Boston V. Lecraw, 379. — V. Richardson, ,39.5, 451. — V. Schaffer, 383, 384. — V. Shaw, 444. — Seaman's Friend Society v. Mayor, &c., of Boston, 008, (ill. — Turnpike Co. v. Pomfret, 180. Bosworth V. Budgen, 210. — V. Hearne, 215. Bott V. Ackroyd, 309. Boughey v. Rowbotham, 795. Bouldin V. Baltimore, 501. Boulton V. Peterljorough, 223, 224, 239. — V. Ruttan, 7.39, 741. — - V. York and Peel, 740, 755. Bowditch V. Wakefield Local Board of Health, 612, 625. Bowman v. Boston, 482. — V. Troy and Boston R. W. Co.» 389. Boyd V. Kennedy, 302. Boyden v. Brookline, 203. ii TABLE OF OASES. XXI Boycr v. State, 403. Hoylo ct ftl. V. DurnliiH, 481, 482, 48.'^. Brudburn v. Oreat WcHturn II. W. Co., 4i)l. — V. Morris, 473. Bradford C'ftHo, LV). Brmlford v. Stovona, 308. Briidloy v. Brown et al., 488. — V. lloldsworth, (i03. — V. London and North- Western 11. W. (,'()., 28!). Brady v. Insurance Co., 454. — V. .Jones, 249. — V. Lowell, 48(5. Branifitt v, Bromner, 028. Brandt v. Craddoek, 3.10. Brant and Waterloo, In re, 298, .lOl, 502, 503. Brantford v. Crand lliver Navigation Co., 9. Brantigani v. White, 839. Hranwell v. Penneek, 778. Brasli V. Taggart, 78, 7()8. I'.recon v. lylwards, 417, 420 . I'.reoden v. Capp, 078. lircnan, In re, 129. Br'iwer Brick Co. , v. Brewer, 358. Brewster V. Harwich, 17. — V. Newark, 5(55. Brick Presbyterian Church, In re, 394. Bridge V. Cage, 403. — V. Grand Junction, R. W. Co. , 488. Bridgeport v. Housatonuc 11. W. Co., 571. Bridges v. (irittin, ()03. — V. North London R. W. Co., 488, 489. Briilgewater Case, 153. Bridglaud v. Slmfter, 420. Brieswick v. Mayor, &c., of Brunswick, 304. Brigden v. Heighes, 813. Brigga v. Light Boat, 421. — V. Wliipple, 204. Bright V. Supervisors, 203. — and Toronto, In re, 809, 810, 813. Briglitman v. Kirner, 009. Brinkmeyer v. Evansville, 432. Briscoe, In re, .370. Bristol Poor, Governors of, v. Wait, 053. Bristow v. Cornwall, 287. British Cast 1 late Manufacturers, Gover- nors of, V. Mereciith, 373. Broadway Baptist Church v. McAtee, Oil. Brock V. Stimson, 331. Brock V. Toronto and Nipiising R. W. Co., 174, 219, 224, 2JM), filO. — District V. Bowen, 11, 702. Brockvillo Case, 02, 03, (i4, (55. — Election, In re, 157, 158, 332. Broder v. Saillard, 425. Brodie and Itownianvillo, In ro, 212, 240, 244, .39«i, .399, 788, 798, 802, 800, 81.3, 814, 819. Brogdiu v. Bank of Upner Cana In re, ,30, 298. Hoyt V. Commissioners of Taxes, 607, 608 Hubbard v. Concord, 482, 483, 484, 486. Hudson V. Geary, 383. Hudson Company v. State, 176. Huffman v. .San Joaquin. 497. Hughes V. Chatham, Parish of, 626. — V, Parker, 174. — et al. v.'Towers, 699. — V. Trew, 427.'' Hugill v. Merritield, 839. Hull v. Richmond, 480. Hullman v.'Honcomp, 174. Humble v. Mitchell, 603. Humphreysjv, Armstrong County, 489. Hunemau v. Fire District, 431. Hunt V. Ambruster, 434. , — V. Hibbs, 182, 763. — V. Pownall, 488. 1 f XXXIV TABLE OF CASES. II! Hunt V. Utica, 373, 5(51. Hunter v. Hoard of Supervisors, 643. — V. King, 4t)l. Huntley v. LuHonmlie, 311. Huron V. London, i). — and l^ruce v. Macdonald ot ol., 336. .342. Huron, Justices of the District of, v. Huron District Council, 336, 342, 3r)4. Hurrell v. Ellis, .326. — V. Wink, ().')2. Hurst V. Hiirst, ()32. — V. WinHeld, 487. Hutchings v. Scott, 6.^)2. Hutchins v. Boston, 483. Hutchinson v. Ixjwndes, 312, 313. — V. Pr.itt, 180, 181. Hutchison v. Collier, 748. Hutson V. New York, 485. Hutton V. Windsor, 481, 489. Hythe, In re the Mayor of, 676, lanson and Reach, In re, 243. Iniler v. Springfield, 516. Imperial Land Co. of Marseilles, In re, 302. Inchbald v. Rohinson, 428. Indiana Mutual Fire Ins. Co. v. Connor, 174. Indianapolis v. Croas, 507. — V. Huffer, 516. — V. Mansur, 504. ' — Bloomington & Western R. i W. Co. V. Hartley, 478. — and Cincinnati R. W. Co. v. Kereheval, 368. IngersoU v. Chadwick, 12.3, 187. Ingle V. Bell, 329. Innea v. East Indian Co., 206. Insurance Co. v. Sortwell, 326. Intendant v. Chandler, 210, 369. Iowa V. Foster, 204. Irwin V. Bradford, 476, 484, 487, 492, 493, 504, 5/4. Irwin V. Mariposa, 188, 204. Isaacs et al. v. Royal Ins. Co., 127. Isley V. Stubbs, 402. Islington Market Bill, In re, 417. Jack V. Ontario, Simcoe, and Huron R. W. Co., 404. Jackson v. Hyde, 485. — V. Jacob, 250. — V. People, 398. Jacksonville v. Holland, .368. — V. McConnel, 608. ' Jacobs V, Bancor, 489. James v. London and South Western R. W. Co., 678. James v. .San Francisco, 489. — V. Tutney, 215. Jameson and the Corporation of the County of Lanark, Re, 499. Janvrin v. Exeter, 4(i3. Jarvis v. Brooke, 729, 746. — V. Cayley, 702, 729, 733, 746. . — V. Kingston, 615. Jay Cook v. (iiU et al., 678. Jenkins and Elgin, In re, 234. — V. Hutchinson, 13. Jenks V. Chicago, 560, 565. — V. Wilbraham, 487. Jenning's Case, 123. — Ex parte, 499. — V. Hankeys, 311. — V. Major, 249. — V. Tislmry, 493. Jersey v. Quaife, 203. — V. State, 509. Jewett V. New Haven, 432. Johns et al. v. Beck, 537. Johnson, Ex parte, 778. — V. Common Council, 561. — and Gloucester, In re, 294, 376. — V. Haverhill, 481. — V. Hudson, 409. — V. Hudson River Railway Co., 490. — V. Irasburgh, 491. — and Lambton, In re, 120, 225, 628, 629. V. Lexington, 603. — V. Lord, 626. ' ■ — V. Lowell, 483. — V. Oregon City, 603. — V. Philidelphia, 266. 326. — V. St;.rk Co., 302. — V. Warburgh, 491. — V. Whitefield, 484. Johnstone v. Boyle, 478. — V. Charleston, 485. — V. Reesor et al., 508, 509, 610, 522. Jonas V. Cincinnatti, 265. Jones, Re, 330. — V. Bird, 445. — V. Boston, 481. — V. Carmarthen, 203, 303. lil TABLE OF CASES. XXXV Jones V. Cowdeti ot al., 741, 743, 748. — V. JohnHon, 204. — V. Mayor, &c., 571. — V. Mersey Docks, (510. — V. Now Haven, 444. — V. People, 368. — V. Honhird, 18. — V. Staiis.teftil, She'Tord ami Chamb- ley H. W. Co., 374. — V. ^Valthara. 48;,'. — V. Wliittakcr, 799. Jordan v. Wyatt, 3«2. Judd V. Kc.-«l, 762, Judge of Pcrtli and Robinson, In re, 247. Judson V. Bridgeport, J)73. Jupp et al. V. (iriiysoii, 204. Justices of the District of Huron v. Huron District Council, 336, .342, 354. Justices of York and Peel, In re, 070. Kane v. Baltimore, 372. Kavanaugh v. .Sanders, 186. Kearney v. Covington, 561. — V. London, Brighton, &c., R.W. Co., 484. Keating v. Simcoe, .336. Keckely v. Commissioners of Roads, 413. Keedy v. Howe, 839. Keen v. Stuckely, 073. Keith V. Easton, 482, 484. Keith V. Lynch, et al., 164. Keithburg v. Frick, 571. Keller v. Hicks. .302. Kellogg V. Northampton, 482. Kelly, In re v. Macarow, 129, 130. — V. Macklem, 725, 726. — V. Toronto, 415, 410, 244. Kelner v. Baxter, 13. Kelsey v. Glover, 481. — v. King, ,395. — V. Wright, 72. Kemp v. Parkun, 708, 748. Kendall v. King, 305. Kennedy v. Board of Health, 424. — V. Phelps, 425. — V. Sandwich, 210. — V. Sowden, 403. Kerr v. Preston, 454. — V. Seaver, 388. — V. Trego, 174. Ketchum, et al. v. Buffalo, et al., 171, 251, 41.3, 415. Keyes v. Westford, 210. Kiddor v. Peoria, .373. Kidderminster, Slayor of v. Hardwick, 10. Kimball v. Kenosha, 609. King V. Burrell, 7r)3. — V. Madison, 60.3. — V. St. Mary's, Nottingham, 309. Kinghorn and Kingston, 239, 240, 241, 419. Kingsbury v. Dedham, 484. Kings' Lynn Case, Tlie, 164, 167. Kinfoss V. Stauffor, 354. Kiiinear and Haldimand, In re, 6, 498. Kirby v. Boylston Market Association, 438, 482. Kirby v. Lewis, 218. — V. Owners of the Scindia, 074. Kirk v. Nowill, .309. Kirkman v. Handy, 427. Kitchen v. Shaw, 778. Knaggs v. Ledyard, 732, 73.3, 730, 737, 7.38. Kneeland v. Milwaukee, 609. Knowlton v. Supervisors, 607. Knox County v. Aspinwall, 302. Krach v. Heelman, 842. Kraus v. Arnold, 249. Kreiss v. Sligman, 845. Kyle v. Malin, 1.3, 210, 373, 561. Kynaston v. Shrewsbury, 107. Lacour v. New York, 444. Lade v. Shepherd, 474. Lafayette v. Cox, 210, 571. — V. Fowler, 504. — V. Male Orplian Asylum, 608. Lafferty v. State, 329. — V. Stock, .373, 511. — and Wentworth and Halton, In re, 243, 510. Lake and I'rince Edward, In re, 307. Lake View v. Letz, 385, 424. Lakin v. Ames, 17. Lamb v. Shays, 317. Lambton v. Pousett, 401: Lancaster Canal Co.; In re, 603. — v. Greaves, 778. — v. Walsh, 463. Landolt v. Norwich, 483. Lane v. Sewell, 203. Langdon v. Castleton, 203. I^angton v. Hughes, 845. Lansing v. Smith, 499. Latta v. Wallbridge, 294. Laughtenborough v. ^vIcLean, 620, 732. 'i XXXVl TABLE OF CASES. Launceston Election. In re, Drinkwater V. Dakin, 00. Laurence v. Jenkins, 389. Laurenceburg v. West, 392. Laurie v. Ratliburn, 5. Laverone v. Mangianti, 387. Lawrence and Thurlow, In re, 473. — V. Hedger, 330. Law Society of U. C. v. Toronto, 657. Lawton v. Commissioners, 079. — V. Erwin, 186. Layton v. New Orleans, 33. Lazarus v. Toronto, 437. Leader v. Yell, 792. Learned v. Burlington, 266. Leatherdale v. Sweepstone, 249. Leavenworth v. Miller, 570. — V. Norton, 266. , — V. Eankin, 561. Leazure V. Hillegas, 171. LeBarron v. East Boston Ferry Co., 218. LeClaire v. Davenport, 413, 410. LeCouteulxv. Buffalo, 210. Letldingham and Bentwick, In re, 243, 245. Lee Ex parte, 652. — V. Cooke, 699. — V. Flemingsburg, 462. — V. Howes, 702. — V. Riley, 405. — V. Wallis, 363. Leech v. Waugh, 493. Lees V. Carleton, 343. Le Fluvre v. Lankester, 59. Leith V. Harbour and Dock, Commiss- sioners of, v. Inspectors of Poor, 653, 680. — V. Willis, 786. LeNeve v. Mile End Old Town, 441, 473. Leonard v. Black, 185. — v. Canton, 210. Leprohon v. Ottawa, 615, 618. Lester v. Pittsford, 484. — V. Torrens, 397. Lethbridge v. Winter, 478. Lewis v. Arnold, 625. — v. Carr, 57- — V. Evans, 662. — V. Gray, 055. . — V. Litchfield, 497. — V. Nicholson, 13. — V. Oliver, 122. — V- Rochester, 150. — V. Toronto, 9, 212, 514. Lexington v. Headley, 561. Ley, In re, v. Clark, 21. — V. Wright, 732 738. License Cases, 309, 387. Lichfield Case, 154, 157. Lincobi v. Niagara, 682. — v. 8mith, 308, 369. — V. Thompson et al., 185. — InreSheriflfof, 461. — Welland and Haldimand v. Thompson, 43. — V. Worce.ster, 410. Lindsay v. Luckott, 121. Linning v. Charleston, 217, 603, 615. Lion, The, 6. Lippincott v. Smyth, 374, 376. Liquidators, &c., v. Coleman et al., 320. Lister v. Lobley, 624. Litchfield v. Vernon, 501. Little V. Ince et al., 460. — v. Penrith, 54. — v. Wallaceburgh, 355. Livandais v. Municipality, 455. Liverpool Gas Light Co. v. Overseers of Evestow, 678. Livingstone, In re, 316, 397. — V. Pappin, 406. Llado V. Morgan, 250. Llandafi, &c.. Market Co. v. Lynden, 417. Lloyd v. New York, 444. Loader, Ex parte, 4.33. Lobdell V. New Bedford, 497. Lock V. Sellwood, 309. Lockwood V. Mechanics' National Bank, 168. Lockwood V. St. Louis, 608. Logan V. Earl Courtown, 6. Logansport v. Dunn, 455. — V. Lcgg. 108, 326. — V. Wright, 415. Loker v. Brookline, 483. — v. Damon, 482. London v. Cox, 678. — V. Great Western R. W. Co., 609, 632, 635, 646, 653, 654, 655, 659, 704. — V. Stratton, 610. — V. Vanacre, 202. — V. Wood, 364. — Board of Police of, v. Talbot, 415. • - Chatham and Dover R. W. Co. v. Board of Works of Wands- worth, 6. — and North AVestern R.W. Co. v. Buckmaster, 627. TABLE OP CASES. xxxvu London and North Western R. W. Co. v. Richards, 421. — School Board for, v. Vestry of St. Mary's, Islington, 560, 625. — and South Western R. W. Co., Re, 575. Londonderry Case, 154, 157. Longford Case, 159, 163. Longmore v. Great Western R. W. Co., 380. Lonsdale v. Littledale, 293. Look V. Dean, 331. Lord Bruce's Case, 356. Loucks, In re, v. Russell, 22. Louisville v. Commonwealth, 171, 317, 6l3. — V. Henning, 603. — V. Higdon, 72. — V. Hyatt, 501. — V. Nevin, .'185. V. Rolling Mill Co. , 516. — &c. , R. W. Co. V. Ballard, 389. Lovell V. St. Paul, 561. Levering v. Dawson, 150, 161, 447. Low V. Dodd, 434. — V. Evans, 334. — V. Pp+tingell, 180. Lowell V. Boston, 13. — V. Boston and Lowell R. W. Co., 491. — V. Short, 491. — V. Simpson, 441, — V. Spaulding, 441, 482. Lowry v. Plitt et al., 394, 4.30. Lucas and McGlashan, In re, 311. — V, New York, 490. — V. Pitney, 251. — V. San Francisco, 561. Ludlow, Corporation of v. Tyler, 11. Lumbard v. Aldrich, 220. Lumsden v. Cross, 607. Lund V, Tyngsboro', 484, 487. Luther v. Worcester, 483. Lynden v. Standbridge, 351, 4.34. Lynne Regis, Mayor, &c., of, 11. Macclesfield v. Chapman, 412, 413. — V. Pedley, 41.3, 417. Macdonald v. Redwing, 436. — V. Rowe, 746. MacNaughton v. Wigg, 632. Macpherson and Beeman, In re, 205, 705. Machell v. Nevinson, 174. Mackintosh v. Blythe, 295. Mackley v. Cooks, ex rel., 59. Macy V. Indianapolis, 516, 517. Maddox V. Graham, .302. Madison v. Kelso, 204, 205. — V. Whitney, 603, 607. Magee v. State, 42. Maher v. Chicago, 564. Main v. McCarty, 329. Major V. Park Lane Co., 447. Maleverer v. Spink, 387. Mailing v, Chalkin, 185. MallocTi V. Anderson, 476. Mallough and Ashfield, In re, 173. Malloy V. Supervisors of Cortland Co., 203. Malone v. Faulkner, 558. Manchester v. Hartford, 482, 486. Manderschid v. Dubuque, 487, 493. Mangan v. Atterton, 488. Manley v. St. Helen's Canal and Railway Co., 499. Manning v. Farquharson, 678. — V. Maiming, 63. Manson v. Hope, 409. Mara v. Ontario, 756. Marant v. Chamberlin, 478. Marble v. Worcester, 487. ' Marchantv. Lee Conservancy Board, 206. Marcy v. Taylor, 493. Marietta v. Fearing, 214. Markham v. Mayor, 516. Markle v. Akron, 14, 214. Markles v. Wright, 174. ^Marlborough's, Duke of, Estates, 377. Marquis of Salisbury and Ecclesiastical Commissioners, 376. Marr v. Vienna, 63, 272, 642. Marriott v. Stanley, 487. Marsden v. Goode, 249. Marsh v. Fulton, 571. Marshall v. Fox, 819. — V. Pitman, 652, 653. — v. Smith, 371, 442. Martin, Ex parte, 778. — V, Bank, 171. — V. Brooklyn, 445. — V. Kergan, 296. Maryland ex rel. Baltimore v, Kirkley \3. — exrel.'McLellan Graves, 214. Mason v. Ellsworth, 486, 490. — V. Keeling, 387. — V. Morgan, 405. Massinberd v. Montagiie, 740, 746. Master, &c., of Gunmakers, &c., v. Fell, 216. f! It I XXXVlll TABLE OF CASES, Masters, In re, 313. « Mather v. Brown, 40, 120. Matheson v. Kelly, 250. Mathews v. Biddulph, 329, 330. Matts V. Hawkins, 434. Maull V. Wilson, 392. May V. Burdett, 405. — q. t. V. Dettrick, 768. — V. Princeton, 487. Mayhew v. Lock, 313. — V. Suttle et al., 55. Mayor, In re, 609. — V. Avenue Railroad Co., 326. — V. Hartridge, 383, 603. — V. Horn, 186. Mayor v. Long, 372. — V. Marriott, 483. — V, Morgan, 14, G51. — V. Omburg, 403. — V. Sheffield, 436, 493. — • V. Thome, 454. — V. Yuille, 210. — of Dorchester v. Enson, 417. — of Essendon v. Blackwood, 610. — of Ljndon v. Cox, 678. — of London v. Stratton, 610. — of Montreal v. Drummond, 374, 509 — of New York, In re, 608. of New York v. Cashman, 608. — of Scarborough v. Rural Sanitary Authority of Scarborough, 425. Mays V. Cincinnati, 384. Maxmilian v. Mayor, 205. McAdie v. Corby, 733, 746. McAllister v. Clark, 397. McAnany v. Tickell, 631. McAvoy and Sarnia, In re, 234. McBride v. Gardham, 697, 705. — and York, Re, 495, 501. McCall V. Manufacturing Co., 72. McCarrall v. Watkins et al., 625, 659, 668, 704. MeCpiuse v. Orphan Asylum Society, 171, 354. McCarthy v. Chicago, 441. — V. Metropolitan Board of Works, 373, 557. — V. Oshawa, 482. McClary v. Lowell, 491. McClung V. St. Paul, 203. McCollum V. Davis, 708. McCombs V. Akron, 516. McCorinack v. Oakle;,% 255, 685. — V. Patchin, 564. McCracken v. San Francisco, 168, 266, 1 ■ HcMah 326. ■ Qo^ McCulloch, Re, 62. I McMasJ — and the Judgo of Leeds and ■ McMicl Grenville, In re, 646, 647, B 525 657. I McMicl< McCurdy v. Swift, 843. ■ McMilla McCutcheon and Toronto, In re, 448, H Mc-'Iillt 450, 563. 1 McMull McDermott v. Board of Police, 211. ■ McPher McDonald v. McDonell, ct al., 741, 748. H McQuaij — v. Redwing, 436. ■ McSped' — V. Robillard, 731. ■ McWhir McDonell et al. v. McDonald, 723, 727, ■ 737. ■ McWilli McDougall and Lobo, In re, 360. ■ — v. McMillan, 727, 739, 748. | ■ Meachai — V. Paterson, 443. H Meaci'er McEtheron v. Menzies, 700. ■ Mean? v McEwan v. Taylor, 218. H Hears 'r McFarland v. Railroad Co., 451. H Medcalf McGill and Peterborough, In re, 24C ►. H Meek v McGinity v. New York, 485. ^B 445 McGonigle v. Alleghany, 567. ^B Meeker McGregor v. Calcutt, 473. ^B Meibus McGuinn V. Peri, 561. f ^B Mellen ' McGuire v. Smock, 561. ■ Hellish McHardy v. Ellice et al., 493, 5C2. ^B Hemphi — V. Perth, 492. ^B McHole V. Davis, 417. ^B Mclntyre v. Bosanquet, 507. ^B Mercer — and Elderslee, In re, 253, ^B — v. Great Western R. W. 737. McKay v. Bamberger et al., 761. Co., ■ ^M Merrian — V. Brown, 57. ^B HerriU McKee v. Huron District Court, 17. ^B — V. McKee, 403. ^B Merryfi McKenziev. Campbell, 386, 387,388, 403. ^B Mersey — V. Kingston, 249. McKillopp V. Smith, 524. I McKinnon and Caledonia, 242, 243. ^B McLaughlan v. Pyper, 729, 736. H — Carry, 483. ^B McLean v. Brantford. 10. ^B — and Cornwall, In re, 172, 177. ^B Metalli 202, 204. ^B bui — v. Farrall, 705. ^B Metcal! — v. Great Western R.W. Co. 375. ^B — and St. Catharines, In re, 241, ^B 242, 421. ^B Meux \ McLellan, q. t. v. Brown, 769. ^B Meyer — v. McClellan, 670. ^B Meyers McLeod V. Kincardine, In re, 364, 379, ^B 380. ^B Miami TABLE OF CASES. XXXIX McMahon v. Irish North Western R. W. Co., 639. ]^IcMasterv. Newmarket, 264. McMichael and Townsenel, In re, 511. 525. McMicken v. Cincinnati, 373. McMillan v. McDonald, 741, 748. McMillen v. Bayley, 572. McMuUen ex rel. and Caradoc, 244, 524. McPherson and Beeman, In re, 190. McQuaig V. Unity Fire Ins. Co., 632. MeSpedon v. New York, 50 1. Mc^Vhirte^ v. Bongard, 678. - V. Corbett, 38. McWilliam v. McAdauis, 600. Meach-im v. R. W. Co.,l."74. M-jac.i'er v. County, 652. Mean? v. Henderahott, 463. Mears r. Wilmington, 445, Medcalf v. Widdifield, 162. Meek v. Whitechapel Board of Works, 445. Meeker v. Van Rennselaer, 369. Meibus v. Dodge, 387. Mellen v. Western R. W. Co., 445. Melliah v. Brantford, 252, 265, 272, 299. Memphis v. Lasser, 445. — Mayor, &c., of, v. Winfield, 216. Mercer County v. Hacket, 302. — V. Hewston et al., 171. — V. Railroad Co., .372, 451. — V. Woodgate. 477. Merriam v. Moody, 210. MerriU v. Hampden, 481. — V. Plainfield, 204. Merryfield v. Worster, 361. Mersey Docks Co. v. Liverpool, 632. — V. Cameron, 610, 653. — and Harbour Board v. Over- seers of Birkenhead, 633. — Oiid Harbour Co. v. Pen- hallow, 485. Metallic Compression Casting Co. v. Fitch- burg R. W. Co., 432. Metcalfe v. Hetherington, 380. — q. t. V. Reeve et al., 764. — V. St. Louis, 14, 406. Meux V. Humphries, 845. Meyer v. Muscatine, 302. Meyers v. Perigal, 603. — and Wonnacott, In re, 670. Miami v. Waino County, 302. Michel v. Police Jury, 564. Michie v. Reynolds, 772. — and Toronto, In re, 243, 252, 540, 542, 544, 559, 560, 563, 564, 565, 632. Middlesex and London, In re, 346. Middleton v. Alleghany Co., 251. Midland Counties R, W. Co. v. Oswin, 377. Midland R. W. Co. v. Ambergate, Not- tingham and Boston Eastern Junction R. W. Co., 6. V. Oswin, 376. Milbum V. Milburn, 249. Mile End, Vestry . of, v. Guardians of of Whitechapel Union, 560. Miles v. Chamberlain. 309, 370, 403. — and Richmond, In re, 223, 240, 511. Milford v. Ho:brook, 437, 491. — Co. V. Brush, 12. Milhan v. Sharp, 395. Mill\. Hawker, 13. Millen v. Fawen, 387. Miller v. Burch, 398. — V. Martin, 392. — V. North Fredericksburg, 402, 842. — v. Savannah Fire Co. 432. — V. Supervisors, 122. Mills V. Brooklyn, 444, 445. — V. Brown, 814. — V. Gleeson, 168, 251. — V. McKay, 732, 747. — V. Thornton, 607. Milne v. Davidson, 14. — v. Mayor, 19. Milnes v. Bale, 153. Milton-next-Sittingborne Commissioners V. Favorsham, 574, 575. Milward v. Coffin, 652, 653, 654. — V. Thatcher, 123. Milwaukee v. Davis, 485, 488. — V. Milv/aukee, 30. Minet v. Leman, 6. Mingaye v. Corbett. 702, 733. Minor v. London & North- Western R. "W. Co. 639. Minot V. Inhabitants of West Roxbury, 268. Minturn v. Larue, 218, 210. Mississippi Society of Arts v. Musgrove. 399. Mitcham, Ex parte, 326. Mitchell V. Foster, 85. — V. Hender, 639. — V. King, 249. — v. Kirkland, 372. r xl TABLE OF CASES. Mitchell V. Mavor of Rome, 515, — V. Rockland, 329, 331, 406. Mitten v. Faudyre, 387. Mobile V. Yuille, 217, 362, 370, 371, 333, 403. Mochler v. Shafborough, 484. Moger, In re, v. Escott, 66. Molett V. Kccnan, 373. Monck Case, 105, 106, 107. -- Election, In re, 120. Monmouth v. Gardiner, 491. Monongahela Bridge Co. v. Kirk, 499. Monroe et al. v. Grey, 731, 733. Montague v. Richardson, 619. Montgomery v. Graham, 52. — and Raleigh, In re, 221, 244, 540, 541, 542, 543, 544, 545, 5G0, 5G3, 600. Montreal, Mayor of, v. Drummond, 373, 374, 509. Montville v Haugliton, 186. Moor V. Newfield, 220. Moore v. Abbot, 488. Moore v. Esquesing, 473, 506, 509. — V. Grand Trunk Railway Co., 126. — V. Hynes, 448, 708. — V. Jarron, 466. — V. State, 399. Morano v. Mayor, 424. Morden v. Porter, 311. Morell V. Wihnott, 126. Morey v. Newfane, 480. Morgan v. Dubuque, 501. — V. Mather, 293. — V. Parry, 182, 628. — V. Quesnel, 727. — V. Sabowin, 727. Moris Canal Co. v. Fisher, ,302. Morley v. Great Western R. W. Co., 490. — V. Greenhaigh, 386. Morphy v. Manning, 386. Morrell and Toronto, In re, 222, 244, 569. Morrill v. State, 409. Morris v. Burdett, 1.30, 203. — V. Chicago, 37.3. — V. People, 204. — V. Rome, 383. Morrison v. McDonald, 179. Morse V. Hodsdon etal, 186. — V. Ranno, 493. — V. Richmond, 484. Moses V. Railroad Co., 451. Mosey v. Troy, 483, 486. Mosley v. Walker, 413, 417. Mott V. Reynolds, 180. — V. Schoolbred, 439. Mottashed and Prince Edward, In re, 219, 241, 245, .367, 851. Mount Carmel v. Wabash, 369. Mount Forest, School Trustees of, In re, 332. Mountjoy v. Regina, 472. , Mouse's Case, 387. Muir V. Keay, 393. Mullen V. St. John, 438, 484 MuUins V. Collins, 820. Municipality v. Bank, 608. — V. Cutting, 413, 424. — V. Dubois, 380. — V. Johnston, 615. — V. Pease, 518. — V. Railroad Co., 608. Munn V. Pittsburgh, 445. Munro v. Grey, 725. — V. Rudd, 747. Munson v. Colling wood, 185. — V. Derby, 482. Muntz V. Sturge, 130. Murphy v. City Council, 379. — V. Gloucester, 482, 484. — q. t. V. Harvey, 669. Murray v. Dawson, 558. — V. Lardner, 302. — V. McNair, 699. Muscatine v. Hv^rshey, 518. — V. Railroad Co., 607. — V. Steck. 179, 669. Musgrave v. Nevinson, 167. — V. Catholic Church of St. Louis, 214, 385, 393. Myers v. Brown, 746. — V. Meinrath, 491. Myrich v. I-aCrosse, 373, 565. Mytton V. Duck, 474, 477. Nash V. Dickenson, 318, 737. — V. Glover, 508, 524. — and McCracke:i, Re, 216, 425, 427. Nashville v. Althorp, 607. — v. Thomas, 603. Nason v. Boston, 483. Neave v. Weather, 449. Nebraska v. Campbell, 482. Neeley and Owen Sound, In re, 799. Neilly and Owen Sound, In re, 383. Neilson v. Jarvis, 275. Nelson v. Milford, 204 TABLE OF CASES. Xli Xelson and Nasaagaweya Road Co. v. Bates, 34. Nesbitt V. Greenwich Board of Works, 560. Xeas V. Saltfleet, 21. Netherton v. Ward, 449. Nevill V. Kelly, 463. — V. Ross, 212. New Albany v. Meeken, G07, 608. — V, Sweeny, 561. — and Salein R. W. Co. v. Tilton, 368. New Haven, City of v. Sargent, 478, 558. New London v. Brainard, 210. — V. Montville, 17. New Orleans v. Costello, 364. — V. Stafford, 415. -^ V. St. Louis Church, 214, 385, 393. — V. Turpin, 383. New York v. Lord, 387, 436. — Mayor of. In re, 608. — Mayor of v. Cashman, 608. — V. Nichols, 421. — V. Ordreniin, 362, 363. — V. Pentz, 436. — Railway Co. , In re v. Marvin, 679. — V. Sheffield, 485. — V. Slack, 393. Newberry v. Stephens, 698, 705. Newbury v. Francis, 62. Newport v. Saunders, 423. Newton v. Cubitt, 218. — v. Mobberly, 649, 672. Niagara Falls Suspension Bridge Co. v. Gardner, 601, 607, 632, 638, 652, 677. — High School Board and Niagara, In re, 5. Nichol and Almonte, In re, 526. — and Ahiwick, In re, 251, 252, 253, 508. — V. Mayor, &c., 210. — V. Nashville, 571. Nicholls et al. v. C'lmming. 635, 646, 657, 660. 666. — V. Great Western Railway R, W. Co., 488. Nichols V. Boston, 179. — V. Bridgeport, 373. Nioliolaon v. Fields, 57. Nickle V. Douglass, 182, 608, 609, 616, 620, 647, 655, 669, 678. Nicoll V. New York and Erie E, W. Co., 171. Nightingale, In re, 413, 416, 418. Nixon V. Nanney, 834. Nolin V. Major, 427. Norfleet v. Cromwell, 540. Norfolk (North) Case, 159, 160. Norris, Ex parte, 285. — V. Androscoggin Railway Co., 389. — V. Mayor, &c., 33. — V. Staps, 213. North Dumfries, In re v. Waterloo, 17. — Gwillimbury v. Moore, 251, 253. — Hempstead v. Hempstead, 22, 30. — Norfolk Case, 159, 160. — Victoria Election Case, 94, 105, 106, 107. — Yarmouth v. Shillings, 17, 30. Northallerton Case, The, 157, 160. Northampton v. Ward, 423. Northcote v. Pulsford, 90. Northern Liberties v. St. John's Church, 608. Northumberlimd and Durh%m and Co- bourg. In re, 295, 296. Norton v. Salisbury, 84. Norwich Case, 163. — Election Petition, 153, 157. — Gas Co. v. Norwich City Gas Co., .S95. 396. — v. Hubbard, 566. — V. Sv,ann, 423. Nottawasaga v. Boys, 756. Nottingham Case, 113. Nowell V. Tripp, 697. — et al. V. Worcester, 305. Noyes v. Morristown, 487. — V. Ward, 429. Oakland v. Whipple, 608. Gates V. Bromil, 294. ' O'Brien v. Trenton, 473, 476. O'Connell v. Lewiston, 491. O'Connor v. Clements et al., 762. — v. Otonabee and Douro, 480, 495, 526. — V. Pittsburg, 516. O'Donnell y. Bailey, 603, 616. O'Flaherty v. McDowell, 6. Ogg V. Lansing, City of, 430. Ohio V. Cincinnati Gas Co. , 396. — and Mississippi R. W. Co. v. McClel- land, 368. Oldham Case, 54. i! xlii TABLE OF CASES. Oldknow V. Wainwright, 169. O'Lincla v. Lothrop, 439, 4-41. Oliver v. Worcester, 432. Olney v. Harvey, 310. O'Meara v. Foley, 771. O'Neil and Oxford, 790. — and York and Peel, 262. O'Neill V. Lowell, 483. — V. Police Jury, 218. Ontario v. Paxton et al., 35. — Salt Co. V. Merchant's Salt Co., 10, 240, 420. O'Reilly q. t. v. Allen, 1G2. Orford v. Bailey, 171, 283, 354, 365. Original Hartepool Collieries Co. v. Gibb, 440. Orm's Case, 53. Orr V. Baker, COS. Orsey v. Mcnnteney, 303. Osborn v. Hart, 372. Osgood V. Green, 405. Ottawa V. Macey, 565. — V. Railroad Co., 565, 566. — V. Spenser, 607. — V. Trustees, 609. — District Council v. Low, 9. Ovendon v. Raymond, 819. Overton v. Hunter, 812. Oviatt V. Bell, 409. — V. Pond, 369. Owen V. Stainoe, 121. Packard v. New Bedford, 484, PaflFord and Lincoln, In re, 170, 224, 244. Page V. Fazakerly, 370, 421. Paige V. Frankford, 204, — V. St. Louis, ()09. Pain V. Spratley, 609. — V. Heinburg, 171. Painter v. Liverpool Oil Gas Co., 446. Pallister v. Gravesend, 265, 305. Palmer v. Andover, 482, 488. — V. Forbes, 606. — V. Hicks, 18. — V. New York, 203. — V. Poultney, 426. — V. Stump, 561. Palmyra v. Morton, 373, 565, 566. Park Commissioners v. Willia^is, 455. Parker V. Green, 311, 819. Latner, 491. Lowell, 444, 445. Pittsburg and Howe Island, 510, 511. Parks V. Davis, 763. V. V. V. Pamaby v. Lancashire Canal Co., 380. Peopl e V Parsons v. Bethnal Green, 445. V — V. Petingell, 387. — V Paterson v. Bowes, 321. — V — V. Society, 609. — V — v. Todd, 729. — V. Patten V. Rhymer, 819. — V Patterson V. Colebrook, 491. — V. — V. East Briu^'e, in Belfast, 499. — V. — and Gray, 244. — V. — V. Hope, 21, 240. — V. — V. Patterson, 430. — V. — V. Society, &c., 19. — V. — V. Todd, 702. — . V. — Gas Light Co. v. Brady, 396. — V. Patton V. Springfield, 444. — V. Payne v. Brecon, 265, 305. — V. — V. Goodyear, 718, 739, 745. — V. Peache v. Colman, 800. — V. Peacock v. Regina, 662. — V. Pearson v. County of York, 491. — V. Peck v. Batavia, 482. — V. — V. Munroe, 709, 731. — V. — and Peterborough, Re, 237. — V. — v. Waterloo and Seaforth Local — V. Board of Health, 447. — V. Pedley v. Davis et al., 652, 653, 667. — V. . Pedrick v. Bailey, 179, 429. — V. ' — V. Bakley et al., 179, 429. — V. ■ Peers v. Oxford, 185, 188. — V. '. Pekin v. Brereton, 478. , — V.5 — V. Smelzel, .368. Pella V. Scholte, 455. — V. i Pemisylvania District Election, 71. — V, S — R. W. Co. V. MeCloskey, — V. S 490. — V. S Penryn Case, 157. — V. 5 Pentland v. Heatli, 670. — V. 1 Pentz V. ^tna Ins. Co., 436. — V. 1 People V. Albany, 380. — V. 1 — V. Auditors of Mayne, 203. — v.^ — v. Bank, 210. — v.^ — V. Batcheler, 174. — ex — V. Beaubien, 493. — V. Bedell, 177, 356. — ex I — V. Bowen, 395, 396. C — V. Brenhan, 71. — ex 1 — V. Brpnnan, 251. — V. Brighton, 373. — ex I — V. Broadway Wharf Co., 380. — ex ] — V. Brooklyn, 444. — ex 1 — V. Carpenter, 18, 174. — ex 1 — V. Collins, 42. Peoria V. C — V, Commissioners of Highways,. — Bri( 480. i TABLE OF CASES. xliii People V. Cook, 174. — V. Coon, 571. — V. Cooper, 497. — V. Cornell, 181. — V. Cunningham, 391, 439. — V. Draper, 368. — V. Fairbury, 71, 72. — V. Famham, 19. — V. Gallagher, 369. — V. Gardner, 643. — V. Hawley, 308. — V. Hibernia Bank, 603. — V. Holmea, 186. — V. Jones, 493. — V. Kerr, 451. — V. Lawrence, 204. — V. Lowber, 415. — V. McCreery, 608, 609. — V. Martin, 176. — V. Mayor, &c., 608, 679. — V. Mitchell, 571, 572. — V. Morell, 39. — V. Morris, 234, 369. — V. Mott, 181. — V. Nilea, 607. — V. Police Justice, 669. — V. Porter, 122. — V. Railroad Co., 210, 451. — V. Rector, &c., 326. — V. Rankle, 12, 72. — V. Saratoga and Rensselaer R. W. Co., 497. — V. Sergeant, 383, 398. — V. Slaughter, 652. — V. Smith, 372. V. Solomon, 613. — V. Supervisors, 203. — V. Utica Insurance Co., 174. — V. Walker, 181. — V. Wetherell, 121. — V. Whiteside, 169. — V. Winnehammer, 436. — ex rel. Cunningham et al. v. Roper, 275. — ex reL Detroit and Howell R. W. Co. V. Salem, 570. — ex rel. Hanrahan v. Metropolitan Police Board, 123. — ex rel. Loew v. Batchelor, 176. — ex re!. Shumway v. Bennet, 14. — ex rel. Whiting v. Carrique, 123. — ex rel. Wood v. Draper et al., 174. Peoria v. Calhoun, 215. — Bridge Association v. Loomie, 487. Peplow V. Richardson, 800. Perdue v. Chinguacousy, 9, 361, 446, 616, — V. Ellis, 14, 369. Perkins v. Concord R. W. Co., 484. Peroman v. Steggall, 294. Perrin v. Railway Co., 455. Perry v. Ottawa, 10. — V. Powell, 709. — V. Whitby, 242, 271. Perth, Board of Education and Corpora- tion of the Town of Perth, In re, 411. Perth, Judge of, and Robinson, In re, 247, 657, 679. Pesterfield v. Vickers, 3' J. Peterborough v. Burn ham, 56. — V. Smith, 402. Peters V. Board of Police of London, 416. — V. Iron Morriston Railway Co., 368. — V. President and Board of Police of London, 362. Petersburg v. Metzker, 210. Peterson v. New York, 415. Petherbridge v. Ash, 670, 671. Petherick v. Sargent, 812. Peto V. West Hain, 603. Pettamberdas v. Thackoorseydass, 420. Pettigrew v. Evansville, 446, 485. Petty et al. v. Tooker, 62. Phifer v. Cox, 474. Philadelphia v. Field, 499. — V. Flanigen, 265. — V. Given, 204. — V. Railroad Co., 451. Philips V. Bury, 766. Phillips' Case, 66. Phillips V. Allen, 371, 404. — V. Eyre, 7. — V. Merritt, 126. — V. Winalow, 606. Phillpot V. St. George's Hospital, 6. Pickering v. James, 84. Pickhar.l v. Smith, 484. Piemental v. San Francisco, 168, 326. Pierce v. Bartram, 215, 413, 416. Carpenter, 18. Proprietors of Swan Point Ceme tery, 430. Richardson, 180. Pierpont v. Brewer, 603. Pigeon V. Bruce et al., 139. Pike V. Middleton, 204. Pilcher v. Staflford, 584. Pilie V. New Orleans, 204. f 4: V, V, V. xliv TABLE OF CASES. f Pim V. Ontario, 10, 336. Pimlico, &c. , Tramway Co. v. Greenwich, 627. Piper V. Chappel, 362, 764. Pirie and Dundas, In re, 276. Pitsburc V. Oner, 380. Placevifie, City of v. Wilcox, 13. Flank Road Co. v. Rineman, 475. — V. Thomas, 475. Piatt and Toronto, In re, 243, 244, 567. Plaxton et al. v. Smith, 34. Player v. Jenkins, 413. Flumstead Board of Works v. British Land Co., 563. — V. Ingoldby et al., 699. Plunkett's Creek v. Crawford, 17. Poe, In re, 678. Pole V. Pole, 377. Pond V. Negiis et al., 214. Ponton V. BuUen, 446. Pool V. Boston, 204, 463. — V. Election Petition, In re, 119. — V. Huskinson, 478. Pope V. Backhouse, 59. — V. Whallej', 417. Poplar Board of Works v. Knight, 448. Poppen V. Holmes, 404. Port V. Ru°'>ell, 320. Port Hope, In re Trustees of, 332. Port Rowan High School, Trustees of, In re, 411.' Port Rowan High School, In re, v. AVal- singham, 332. Port Whitby, &,c.. Road Co. v. Whitby, 475. Portland v. Bangor, 350. — V. O'Neill. 392. Portman v. O'Keden, 311. Postmaster General v. Rice, 186. Potts V. Dunnville, 265. Pound V. Plumstead Board of Works, 562, 563. Pousett and Lambton, In re, 348. Pow V. Becker, 334. Powell v.* Madison, 608. Powers V. Wood County, 3S. Pratt V. Hillman, 434. — V. State, 18. Pray v. Northern Liberties, 608. Prell V. McDonald, 8. Prendergast v. Peru, 368. Presbyterian Church (Brick), In re, 394. — (First) Church, Fort Wayne, 609, 611. 1 Pre ibyterian Church V. New York, 211, 393. President v. Indianapolis, 317. — V. Myers, 12. — V. O'Malley, 180. Preston v. Bacon, 203. — V. Great Yarmouth, 302. — and Manvers, In re, 174, 219. Price V. Baker, 121. — V. Railroad, 326. — V. Seely, 329. — V. Thompson, 455. Prince v. Lewis, 417. — and Toronto, In re, 203, 331, 333. Prindle v. Fletcher, 485. Pringle v. McDonald, 20.?, 303. — and Stormont, Dundas and Glen- garry, 323. Proctor V. Lewiston, 478. — V. Manwaring, 59. Pronguey v. Gurney, 699. Proudfoot V. Ausfn, 748. — V. Bush, 739. Prouse V. Glenny et al., 473. Providence v. Clai)p, 481, 483. — Bank v. Billings, 616. Pry or v. Pry or, 478. Push V. Duke of Leeds, 126, 127. Pulaski V. Lincoln, 299. Purdy V. Farley et al., 478, 522, 523, 524. Purkiss V. Huxtable, 829. Putnam v. Payne, 387. Pym V. Great Northern R. W. Co., 490. Quin V. Moore, 490. — V. O'Keefe, 6. — and the Treasurer of Dundas, In re, 707. Quincy v. Jones, 515. Raab v. Maryland, 18. Race V. Ward, 414. Rackham v. Bluck, 311. Radcliflf's Executors v. Brooklyn, 516. Radnor, Earl of, v. Reeve, 666. Railroad Co. v. Adams, 451. — V. Alexandria, 605, 608. — V. Applegate, 451, — V. Baltiviore, 451. — V. Buffpjo, 451. — V. Clute, 605. — V. Connelly, '567, 605. — V. Evansville, 251, 571. — v. Lafayette, 606. — V. Leavenworth, 451. TABLE OF CASES. xlv Railroad Co. v. Morgan County, G05, 607. — V, New York, 451. — V. O'Daily, 451. — V. Otoe Co., 302. — V. Spearman, 33, 605, 607. — V. State, 606. — V. Wright, 605. Raines v. Credit Harbour Co. , 355. Raleigh v. Sorrell, 416, 421. Ramsay v. Nornabeil, 449. — et al. V. Western District, 10, 180. Ramsden, llu, 323. Randall v. Eastern R. W. Co., 482, 567. — V. Elwell, 606. Randell v. Trimeii, 13. Randolph v. Braintree, 17. Rankin v. Great Western R. W. Co., 374. Rapho and West Hempfield Townships v. Moore, 485. Rastrick v. Great Western R. W. Co., 488. Rathbun v. Acker, 373, 565. Rawdon v. Ward et al., 189. Rawell V. Lowell, 482. Rawlins v. Ellis, 323. Ray V. Manchester, 484. — V. Petrolia, 481, 482. Raymond v. Lowell, 429, 482, 484. Raynes v. Crowder, 733, 746. Read v. Edwards, .^87, 405. — V. Perrett, 440. Redgate v. Haynes, 819. Reeil V. Belfast, 490. — V. Northfield, 484, 486, 489. Reeve V. Wood, 311, Reeves v. Toronto, 9, 445. — v. Wood Co., 007. Regent's Canal Co. v. St. Pancras, 602. — of the University v. Williams, 123, 168. Regina v. Abney Park Cemetry Co., 611. — v. Ackroyd, 832. — v. Ashton,124, 819. — V. Backhouse, 84. — V. Bailiffs of Ipswich, 12 — V. Bambor, 486. — v. Barnwell, 159. — V. Barton, 310. — V. Beardsall, 115. — v. Bedminster Union, 657. — V. Belmont, 216, 788, 814, 838. — v. Bennett, 428. — V. Birmingham, 42 Retina v. Birmingham WaterWorks Co., 602. — V. Bisnop of Huron, 472. — V. Black, 818, 835, 836. — V. Blackawton, 672. — V. Blagge, ()50. — V. BLikeley, 310 312, 397. — V. Blizard, 122, 148. — V. Board of (iuardians, &c., 480; — V. Board of Police of Niagara, 806. — V. Boardman, 116, 311, 818, 821. V. Bolton, 676. — V. Boulton, 476. — V. Boycott, 63. — v. Boyle, 307. — V. Bradford, 83. — v. Bradford Library and Literary Society, (il4. — v. Bradley, 90. — V. Breeu, 814. — V. Bridgewiitcr, 150. — V. Brittle, 165. — V. Brown and Street, 475, 498. — v. Carlile, 397. — V. Casswell, 423. — V. Cavunagh, 817, 833, 834. — V. Chapman, '330, 334. — v. Charlesworth, 395, 451. — V. Cheshire Lhies, Committee, 446. — V. Chorley, 426. — V. Clark, 309. — v. Cleworth, 351. _ v. Coaks, 201. — v. Cocklnirn, 793. _ v. Combe, 43.3. — v. Cooper, 42i5. _ v. Cornwall, 121, 656, 665, 671. — V. Corporation of Township of Mc- Gillivray, 498, 499. — V. CotUe, 574, 575. — V. Court of Revision, Cornwall, 663, 672. — V. Cousins, 120. — V. Cowan, 86. _ . Cowaid, 90, 626. — v. Crawley, 423. — V. Cridlivud, 313. — V. Crofts, 830. — V. Criinden, 400. — V. Cuniborlege, 303, 324. — V. Currie, 5. — V. Davenport, 218. — V. Davis, 440,_473. — V. Dayman, 676. — V. Deane, 793. r ;dvi TABLE OF CASES. Regin a V. DeiKliton, GO, 626. V. Denham, 787, 812. Regina v. — — V. — V. Derby, f»71, 672. — V. — V. Derbyshire, 497. — V. — V. Dodsworth, 82. — V. V. Doiialtlson, 477. V. V. East London Water Works, — V. 602. — V. — V. East Mark, 476. — V. — V. Ellis, 82. — V. — V. Ely, 310. 79.3. — V. — V. Exeter, ()3. — V. — V. Farrell, 400. — V. — V, Faulkner, 787, 817. — V. — - V. Firniien, S28. — V. V. Fislier, 575. V. — V. Fitzgerald, 477, 482. — V, Francis, 57, 60. — V. — V. Franklin, 58. V. — V. French, 818. — V. — V. Gamble, 674. V. — V. Garland, 831. V. Gas Co., 451. — V. — V. Glamorganshire Canal Co., 310, — V. 476, 053. — V. — V. Glosaop, 31.3. — V. — V. Gloucester, 123. — V. — V. Gloucest(!rshire, 497. — V. Godmanchester, 449. — V. — . V. Gordon. 476. — V. (Jore, 202. V. — V. Great Western R. W. Co., 472, V. 473, 474, 523. — V. — V. Greene, 202. V. V. Greenhow, 486. V. . — V. Gregory, 020. — V. — V. Guardians of Biggleswade V. Union, 657. _ y. V. Guardians of St. Ives Union, 63. V. V. Haggard, 817. V. — V. Haldimand, 498. V. V. Hall, 473. V. .^ V. Hammond, 020. _ V. — V. Harrald, 61, 97. V. V. Hawkins, 312. — . V. — V. Haynes, 426. ,— V. V. Henson, 429. V. — V, Hereord, 679. __ V. V. Hertford College, 129. .^_ V. — V. Highway Board of Draton in Hales, 521. V. __„ V. — V. Hiorns, 19.3. V. — V. Hoggard, 832. ^__ V. V. Holmes, 400. _^ V. — V. Horley, 480. — V. Hornsea, 483 Hulme, 164. 165. Humphrey, 199. Hungorford, 201. Hunt, 472. Hyde, 313. InKallet al., 182, 647, 763. Inhabitants of Honisen, 486. Inhabitants of lioadsmere, 480. Inhabitants of New Sarum, 42. Jackson, 426. Jatvis, 423. Jay, 441. Johnson, 216, 313, 314, 434. Jones, 834. Justices of Buckinghamshire, 671. Justices of Cheshire, 662, 828. Justices of Dcnljighshire, 671. Justices of Essex, 672. Justices of Huntingdonshire, 670. Justices of Kent, 671. Justices of Kings, 851. Justices of Lincolnshire, 670. Justices of Middlesex, 662. Justices of Newcastle-upon- Tyne, 672. Justices of North Riding of Yorkshire, 662, 672. Justicesof Oxfordshire, 671, 672 Justices of Queens, 818. Justices of Salop, 670. Justices of Surrey, 670. Kennett, 370. Kensington, 791. Kewetal., 489. King, 839. Kinglake et al., 105. Kitchner, 480. Knappe, 813. Lake, 835, 836. Lancashire, 336. Lane, 122, 123. Lawrence, 821, 836. , Ledgard, 111. Leeds, 111, 150. , Lennox, 809, 826. Leominster, 602. , Levecque, 349, 398. , Levi, 076. , Lichfield, 150, .305. . Light, 330. , Lincomb, 426. , Lister, 431. TABLE OF CASES. xlvii Rcgina v. Local Ciovernment Board, 33, Rcgina v. Ponsford, 434. M\. — V. Poole, (»52. __ V. I^mdon and North Wostorn R. V. Powell, 209, 510. W. Co., ()32. — V. Pralec, 833. V. lionytoii (Jaa (Jo., 395. V. Ijords of tlio Treasury, 662. V. Preece, 201, 202. __ — V. Prest, 203. V. Louth, 475, 494, 4U(). — V. Preston, 208, (i20. ... V. MoCann, (ilO. V. Prettie, 810, 851, 852. V. McConnell, 833. — V. Price, 165. V. McGregor, 40L V. Prince, 207. — V. McMillan etal., 818. — V. Purdy, 473. V. Mabey, 821. V. Rallies, 795. V. Mallow Union, 6. — V. Rankin, 512. — V. May, 201. — V. Recorder of King's Lynn, 834. — V, Mayi)ury, 426. — V. Recorder of Liverpool, 671. — V. Mayor of Birmingham, 685. — V. Rector of St. Mary's, Lambeth, — V. Mayor of Exoter, C()0. — V. Registrar of Joint Stock Com- — V. Mayor of liarwick, 653, 672. panies, 12. V. Mayor of Lichtield, 653. V. Rice etal, 31)5, 398. — V. Mayor of Liverpool, 615. — V. Rii»p<>ii, 121. — V. Mayor of Newbury, 653. — V. Rol)ins()n, 387. — V. Mayor of Norwich, 652. — V- Rochester, 343, 665, 066. — V. Mayor of Oldham, 608. — V. Roddy, 116, 164, 311, 813, 840. — V. Mayor of Sandwich, 653. V. Ross, .315. — V. Mayor of Sheffield, 188. — V. Rowley, 121. — V. Merionethshire, 310. V. Roxlnirgh, 3.30. — V. Meyers, 469. — V. Rubidge, 473. — V. Middlesex, 682. — V. Ryan, 180. — V. Midland R. W. Co., 603. V. Rynier, .")7, 387. — V. Monck et al. , 685. — V. Salfor.l, 791. — V. Morris, 408. V. Sandwich, 206. — V. Morton, 123. — V. Saunders, 400. — V. Mosier, 306. V. Scott, 480. — V. Mothersell, 181. V. Severn, 787, 788, 811. — V. Munro, 365, 398. __ V. Sheard, 672. — V. Mutters, 428. V. Shiles, .508, 514. — V. Neath, 351, 602, 603. — V. Shropshire, 85. — V. Newbold, 493. V. Shatter, 199. — V. New Windsor, 42, 685. V. Smith, 123, 185, 343, 398, 795. — V. Oldham, 56. V. Snider et al., 116, 764, 767. — V. Orchard, 400. V. Southward and ilarshall, 603. — V. Osier, 211, 243, 315,447. — V. Sijalding, 82. — V. Owens, 72. — V. Sparrow, 4.34. — V. Oxford and Whitney Turnpike — V. Speuce, 473, 476. Road, 498. — V. Spratley, 626. — V. Paget, 426. — V. Stafford, 806. — V. Paramore. 12. — V. Stamford. 204. — V, Paris, 475. V. Stevenson, 423. — V. Paton, 791, 816. — V. St. George, Southwark, 653. — V. Perth, 291, 495, 514. — V. St. George's Union, 66, 608. — V. Peto, 602. — V. St. Luke's, 373, 516. — V. Petrie, 476. — V. St. Martin's-in-the-Fields, 129. — V. Phillips, 508, 514, 523. V. St. Martin's, Leicester, 653. — V. Plenty, 90, 120. — V. St. Mary Abbott's, 611. — V. Plunkett, 472, 473, 474, 509. — V. St. Paul, Covent Garden, 240. xlviii TABLE OF CASES. Begina v. Stoko HIIhr, (utG, — V. StDiiiioll, H.T2. — V. Striicli;in, HIT, 820, 833, 8-iO. — V. SiiiiiiiiurH, 831. — V. Sutton et nl., 817, 835. — V. 'I lunwortli, l.')0. — V. Taylor, 787, 788, 810, 811, 827, 8r>l. — V. Towkt!Nl)iiry, .I!). — V. Tliiilliiuui, 400. — V. 'riii>iin).s(»ii, H'2, — V. 'i'liwiiitfs, ].')7. ' — V. Titlu^ ('oraiiiiMHifmcrs, 44.3. — V. Todley ftuL, 3.30. — V. Tott, 847. — V. Towor JIiiiuletHCoiniuiasioners, 44!>. — V. Train, .3!).'), 4r)l. — V. Tuukur, 3i)i>. — V. Tugwull, U7. — V. TwiHH, ()7S. — V. Uiiitiil Kingdom TolcgraphCo., 48'-'. — V. Vino. 71>'2. — V. Walker, li'M — V. Wanl, 8!), 1-JO, 1.32. — V. ^Var\viuk, laO. — V. Watson, 40O. — V. AVcl)'.., 400. — V. \\\llin-ton, 40.'., 498. — V. Wi'Mt ]h'rhy, (HO. — V. West MiiUleijex Water Co., (102. — V. AVestliaugliton, (571. — V. We.stinorcland, 310, 071. — V. Whadden, Ovcrsoora of, G2G. — V. White, 80. 814. — V. Whiteley, 813. — V. William.^ 817, 82(5, 839. — V. Willis, 831. — V. Wood, .370, 434, 437. — V. Worcester, 124. — V. Wyatt, 312. — V. York, 13, (JO. — V. Yorkville, 8, 47'., 470, 477, 480, 4!)3, 408. — ex rel. Acbeson v. al, 140, 580. — ex rel. Adamson v. 71. — ex rel. Allemainge Donoghue et Boyd, 53, 59, V. Zoeger, 73, 75,211. ex rel. Andrews v. Collins, 111. ex rel. Armor v. ('oste, 59. ex rel. Arnold v. Wilkinson, 50. Regina ex rol — ox rel. _ ox rel. — ox rel. __ ex rel. — ox rel. — ex rel. — ex rel. — ox rel. — ox rel. — ox rel. — ox rel. — ex rol. ox rel. — ex rel. ex rel. — ex rel. — ex rel. — ex rel. — ex rel. ex rel. — ex rel — ex rel. — ex rel. — ex rel, — ex rel. — ex rel. — ex rel. — ex rel. — ox rel. — ex rel. — ex rel. — ex rel. — e» rel. — ex rel. — ex rel. — ex rel. — ex rel. — ex rel. — ex rel. — ex rel. — ex rel. — ex rel. '.rnott ct nl. v. Marchant, 5(J, 1.39, 151. Beaty v. O'Donaghuo et al, 127, 129. Bender v. Preston, 86. Bluisdell V. HocheHtor, 62, 1.32, 202, .'■.77. Blakely v. ( !anavan, 53. Hland v. Figg, 58. IMasdell V. iToehefitor, B2, Hole V. Me Lean, 54, 198. Boye.s V. Detlor, 50. Hiielitlo V. O'lieilly, 144. Hugg V. ]5ell, 130. Hugg v. Smith, 59. Bulger V. Smith etal, 112, 140. Campbell v. O'Malley, 1.3.3. Carroll V. IJoekwith otal., 52, M, 70, 131, i;{2. f 'hand)ors v. Allison, 54, 02. Charles v. I-ewis et al, 150. Clarke v. MeMuUen, 59. Clint V. Upham, 130. Coleman v. O'Hare, 58, 129. Corbett v. Jull, 77, 83, 80, 130. Coupland v. Webster, 140, 149, l.'.O. Coyne v. Chisliolm, 87, 130. Crozier v. Taylor, 57, 150. Davis V. Carruthera, 58, 59. Davis V. Wilson et al. , 87, 94, 112, 113, LW. Dexter v. Gowan, 53, 59. Dillon V. McNeil, 82, 150. Doran v. Haggart, 47. Dundas v. Niles, 94. i^vans v. Starratt, 108. Featherstone v. McMonies, 149. Flanagan v. McMahon, 57. Flater v. VanVelsor, 54. Fleming v. Smith, 52, 577. Fluett V. Gauthier, 58. Fluett V. Saniandie, 53, 54. Ford v.Cottingham, 54, 62. Ford V. McRae, 58, 59, 180. Forsyth v. Dolsen, 202. Forward v. Bartels, 61, 63. 66. Forward v. Detlor. 59. 137. Freeman v. Jones, 149. — ex r — ex r — ex r — ex '• — ex V — ex ft — ex n — ex n — ex rt — ex ri — ex rt — ex re — ex re TAIILK OF CASES. xlix HcuiiiJi e.r rcl. Oatnhlo v. Burnsitlo et al. «47. — ex rcl. (JiuiUinor v. I'erry, 82. — «jx rcl. (lilil) V. Wliitd, r>'J, r>t). — ex ivl. (!ilil)()ii V. iMuLvllnn, 144. — ex rul. (iil))>!i v. Hrniiigliuu ut al. 87, 113. 15(). (!{, 60. — ex rel. Mackley v. l'»)akH, L tl, — ex rel. Metcalf v. .Snmrt, !>l, 69, 131. — ex rel. Mitchell V. Adani.s, 1.10. — ex rel. Mitciiell v. Rankin ut al., 140, 580. — ex rel. Moore v. Miller, 57. — ex rel. Xorthwood v. Askin, 54. — ox rel. O'Reilly V. Charlto. , 133. — ex rcl. I'adwell v. .Stewart et al.OO. — ex rel. Patterson v. Clarke, 58, 00. — ox rel. Ratters* )n V. Vance, 131. — ex rel. I'hiilnick v. Smart, 54. — ex rel. I'iddington v. Riddel', 58, 59. ex rel. ex rel. Rollard v. Prosser, 112. Pomeroy v. Watson, 130, 13.3, 1.30, 150. — ex rel. Preaton v, Preston, 73, 75. — ex rel. Preaton v. Touchburn, 92, 102, 120. — ex rel. Ranton v. Counter, 60. — ex rol. Regis v. (.'usac, 130. — ex rel. Riclnnond v. Togar*, 50. — ex rel. Ritson v. Perry oc al., 94. — ex rcl. Rollo v. Beard", 58, 59, 150. — ex rel. Rose v. Beach, 169. — ex rel. Rosebush v. Parker, 130, 131. — ex rel. Ross v. Raatill, 60, 133. — ex rel. Shaw v. Mackenzie, 53, 70, 130. — ex rel. Smith v. Brouse, 87. — ex rel. Stock v. Davis, 54, 60, 62^ 644. — ex rel. Swan v. Rowat, 149. — ex rel. Taylor v. Csesor, 63. — ex rel. Telfer v. Allen, 56, 131. ex rel. Thompson v. Medcalf, 154, 168. •^ ex rel. Tilt v. Cheyne, 53. — ex rel. Tinning v. Edgar, 59. — ex rel. Totten v. Bonn, 78. — ex rel. Walker v. Hall, 140, l.'W^. — ex rel. Walker v. Mitchell, 87, 94, 120, 150, 579. — ex rel. White, v. Roach, 129, 130, 131. — ex rel. Woodward v. Ostrom et al.,22. Reid V. Conner, 213, ^ — V. Hamilton, 514, 515. — V. McWhinnie, 832. if TABLE OF CASES. Reilly v. Philadelphia, 561, 564. Rex V. Doncastcr, 167, 356. Reiman v. Shepard, 607. — V. Duke of Richmond, 63, 195. Ilenwick v. New York Central E,.W. Co., — v. Eastrington, 480. 488. — v. Ecclesfield, 480. Reock v., Newark, 561. — v. Essex, 188. Eespublica v. Duquet, 454. — V. Eye, 66. — V. Sparhawk, 387. — V. Eyles, 66. Eevi'11 aii'1 Oxford, In re, i>80 685. — V. Fave?'sham, 167. Rex V. Allen et al. , 472, 473. — v. Ferguson, 832. — V. Amerj, 19. — V. Feversham, 356. — V. Andover, 205. — V. Flintshire, 264. — V. Archdeacon of Chester, 86. — v. Ford, 428. — V. Arnold, 650. — v. Fox well, 63. — V. Ashwell, 42, 214, 263. — v. Coodcheap. 264. — • V. Atkins, 426. — V. Greet, 168.' — V. Babb, 181,651. -- V , Grimes, 167. — V. Bailey, 66. — V. Grosvenor, 201. — V. Barber Surgeons, 213. — V. Hall, 6. — V. Barker, 335. — V. Hannet al., 793. — V. Barlow, 443. — V. Harris, 176. — V. Barnard, 177, 356. — V. Harrison, 211, 215. — V. Barrett, 313. — V. Hawkins, .59. — V. Bellinger, 168. — V. Haworth, 264. — V. Benn, 446. — V. Headley, 168. — V. Bird, 42, 214. - V. Hill, 167. — V. Blackman, 311. — V. Home District, 383. — V. Blaney, 310. — V. Hughes, 122. — V. Bond, 123. — V. Hulcott, 652, 778. — V. Bower, 168, 201, 202. — V. Huntingdonshire, 124. — V. Bridgeman, 181. — V. Incledon, 426. — V. Bridgewater, 641. - — V. Ireland, 771. — V. Brouehto 1, 479. 480. — V. Buckle, 409. — V. Jeffreys, 673. — V. Johnson, 311,426. — V. Bunstead, 62, 358. — V. Jones, 439. — V. Burder, 201. — V. Justices of (xloucestershire, 39. — V. Burnett, 391, 429. — V. Justices of Kent, 247, 656. — V. Cambridge, 446, 447. — V. Justices oi Norfolk, 670. — V. Carlysle, 174, 440. — V. Justices of Suffolk, 673. — V. Carrell, 66. — V. Justices of West Yorkshire 669. — V. Chitty, 56, 62, 356. — V. Langhorn, 167, 426. — V. Cobbold, 31 1. — V. Larwood, 199. — V. Commissioners, 679. — V. Leake, 478, 480, 493. — V. Commissioners of Appeal in Ex- — V. Leeds, 121. cise, 673, 674. ! — V. Leyland, 201. — V. Commissioners of Sewers for the — V. Lindsay, 497. Tower Hamlets, 188. — V. Lisle, 72. — V. Cotterill, 413, 418. — V. Little, 409. — V. Coventry, 2U5. — V. Liverpool, 167, 174, 480. — V. Croke, 11. — V. Lloyd, 424, 427, 477. — V. Cross, 425, 439, 440. — V. Lucas, 181, 650. — V. Cumber lege, 181. — V. Lyme Regis, (Fane': Case) 356. — V. Davey, 424. — V. Lyon, 493. — V. Devon, 497. — V. McKnight, 409. — V. Devonshire, 168. — V. Manchester and Saltford Water — V. Dimpsey, 313. Works Co., 361. TABLE OF CASES. u Rex V. Marchioness of Downshire, 473. Rex V. Shelley, 181. . — V. Marquis of Buckingham, 497. — V. Shelly, 650. — V. Master, &c., of the Surgeons in — V. Shipley, 310. V. Smith, 314, 409, 431. London Co., 215. — — V. May et al., 167, 168. V. Sparrow, 665. — V. Mayor, &c,, 205. — V. Spencer, 62, 213, 356. — V. Mayor of Britlgewatcr, 652. — V. St. Benedict, 478. — V. Merchant Tailors' Co., 364. — V. Stead, 426. — V. Mevers, 323. V. Stone, 310. — V. Middlesex, 793. V. Storr, 426. — V. Miller, 168, 213. — V. Swyer, 199. — V. Mitchell, 63, 195. — V. Symonds, 313. — V. Monday, 168. — V. Tate, 199. — V. Moore, 428. — V. Taylor, 356, 430. — V. Morley, 679. — V. Theodorick, 167. — V. Mosley, 351. — V. Thompson, 313. — V. NeiU, 424. — V. Tidderley, 122, 123. — V. Neville, 425. — V. Tilly, 310. — V. Newcastle, 181, 336. V. Tizzard, 123. — V. Newcastle-upon-Tyne, 650. V. Tower; 650. — V. Newdigate, 426. — V. Trafford, 426, 497. — V. Norris, 12. V. Trapshaw, 66. — V, North Curry, 63, 195. — V. Tregenny, 72. — V. Northampton, 470, 497. — V. Trelawney, 123. — V. Norwich, 182. — V. Tucker, 657. — V. Oxford, 121. V. Turner, 409. — V. Oxfordsliire, 480, 497. _i_ V. Vantandillo, 391, 429. — V. Oxon, 205. V. Vaughan, 152 — V. Palmer, 600. — V. Waddington, 420. — V. Parry, 59. V. Ward, 440, 508. — V. Passmore, 19, 72. V. Watt;,, 425, 427. — V. Patteson, 123. V. Waved et al., 264. — V. Payne, 122. V. Welbank, 652. — V. Penderrjm, 480. — V. Wells, 766. — V. Piercy, 310. V. West Riding of York, 497. V. West Yorkshire, 476, 497, 499. — V. Pitt et al., 152. — V. Poole, 72. — V. Weymouth, 356. — V. Priest, 314. V. Wheatman, 835. — V. Purnell, 181. V. White etal., 424, 427. — V. Rawlinson, 327. — V. Whitney, 497 — V. Richards, 426. V. Whitwell, 201. — V. Richardson, 356. V. Williams, 174, 430, 793. — V. Rippon, 122, 123. V. Winchester, 199. — V. Robotham, 310. V. Woodrow, 201. — V. Russell, 426, 439, 440. V. Wyatt, 314. — V. Sadler, 426. V. Yorkshire, 426. — V. Sallop, 497. Reynolds v. Baldwin, 174. — V. Sanderson, 523. — V. Comnussioners; 171. — y. Sankey, 204. — V. Gearv, 368, 369. — V. Sargent, 195. — V. Shreveport, 266, 517. — V. Sarmon, 440. — V. Toronto, 415. ~ V. Scale, 313. Rhodes v. Cincinnati, 516. — V. Selway, 409. . V. Dunbar, 427. ^ — V. Sergent, 63. Rice V. Foster, 42. — V. Share, 764. — V. Keokuk, 207. r; lii VABLE OF CA3ES. IM fi: ;^,i Rice V. Moiitpelier, 481. Richard v. Bent, 708. Richards v. Enlield, 482. Richardson v. Jackson, 250. — and Police Commissioners of Toronto, In re, 24.5, 800. — V. Eoyalton and Woodstock Turnpike Co., 499. Richland v. Lawrence, 14. Richmond v. Daniel, GOO. — In re, v. Leeds and Lands- down, 8, 388. Ricket V. Metropolitan Board of Works, 557. — V. Metropolitan R. W. Co., .37.S. Ricordo v. Maidenhead Board of Health, 678. Riddle v. Lock and Canals cf Merrimac River, 480. Ridley v. Lamb, 439. Ridout et al. v. Ketchum, 732. — V. Orr, 120. Riggs V, Johnson Co. , 317. Riley v. Rochester, 22.. Rindge v. Baker, 434. Rindand v. Toronto, 438, 481, 483, 484, Risdale, In re, v. Brush, 694. Risley v. St. Louis, 373, 565, 566. Ritchie v. Smith, 844. Road in Augusta, 214. Roberta v. Chicago, 616, 517. — V. Humbly, 678. — V. Kerr, 478. — V. Ogle, 214, 369, 424. — V, Williams, 626. Robt •' -lou V. Wellington, 755, 777. Robin Street, In re, 176. Robins v. Jones, *78. — V. Railroad Co., 374. Robinson, Ex parte, 8.S. • — V, Gros Court, 216. — V. Shields, 703. — V. St. Louis, 432. — V. Stratford, 467. Rochester v. Pettinger, 416. — White Lead Co. v. Rochester, 444. » Rockford, Rock Island, and St. Louis R. W. Co. V. Sage, 203. ' Roderick v. Aston Local Board, 449. Roe V. Hammond, 318. Rogers, Ex parte, 174. — V. Burlington, 251. — V. Jones, 181, 214. — V. MacNamara, 326. RoUeston v. Cope, 53. Roman Catholio Church v. Baltimore, 211. Rome V. Cabot, 406. — Railroad Co. v. Rome, 606. Rook V. Mayor of Liverpool, 631. Rose and Stormont, In re, 496, 500, '534, Eosebaugh v. Saffin, 371, 403. Rosevelt v. Brov/n, G43. Roseweli v. Prior, 426. Ross et al. v. Farewell et al., 40. — V. Fedden, 391. — v. Johnson, 126. — v. Strathy, 707. ' — V. York and Peel, 13, 212, 396, 397,- 810, 813, 814. Rossin V. Walker, 47 6. Rounds V. MansHeld, 404. — V. Mumford, 516. — V. Stetson, 404, — V. Siratford, 484. Rourke v. Mosey, 404. Rowe V. Leeds and Grenville, 491. — V. Rochester, 9, 361, 440, 516, 533, — V. Sinclair, 472. Rowell V. Lowell, 482. Rowley v. London and North-Western R. W. Co., 489, 490. Rowling V. Wood, 294. Royse v. Birley, ')8. Ruckmaboye v. ^uUoobhoy, 5. Rudolphe v. New Orleans, 516. Ruggles V. Nantucket, 436. Ruppert V. Baltimore, 561. Ruskin v. St. Joseph, 446. Russell V. New York, 436. — V. New York Central R. W. Co., 493. — V. Shenton, 447. Rust V. Low, 389. Ryan v. New YorkCentn ! Ii. W. Co., 391. Ryckman v. Voltenburg, 709, 734. Safford V. Drew, 490. Salem v. Fislier and McGirr, 387. — v. Railroad Co., 369, 424. Salisbury, Marquis of, and Ecclesiastical Commissioners of, 376. Saltford Case, 154. Saltonstall v. Banker, 424. Salvin v. North Branchepeth Canal Co.. 425. Sams and Toronto, In re, 11, 85, 240, 525. Sandwich, School Trustees of, and Sand- wich, In re, 220, 241. Sanford v. Augusta, 490. TAbLE OF CASES. liii Santo et al. v. State of Iowa, 42, 3C8. Sargant v. Toronto, 704. Sargeant v. Allen, 404. Sarnia v. Great Western Railroad Co., 474, 475, 477. Savage v. Bangor, 483. Savannah v. Charlton, 302. — V. CuUens, 415. — V. Hartrklge, 216, (503, 615, 616. Sawers, In re v. Stevenson, 132. Sawyer v. Vestry of Paddington, 450. Sawyers, In re v. Stevenson, 56. Scaclding v. Lorant, 176. Scammon v. Chicago, 50(5. Scammond v. 'Scammond, 180. Scar])orough, Mayor, &c., of, v. Rural Sanitary Authorities of Scarborough, 425. Scarlett and Xew York, In re, 243, 245, 511. Seaming v. Cryers, 363. Sceally v. McCallum, 290, Scekins v. Goodale, 090. Schaefer et ux v. Lundy, 732. SchaflFer v. Cadwallader, 317. School Board of London v. Vestry of St. Mary, Islington, 560. — District v. Atherton, 72, 180. — Trustees v. Calt, 333. — of Mount Forest, In re, 332. — In re, v. Port Hope, .384. — of Sandwich v. Sandwich, 241, 384. — of Toronto, In re the Board of, 332, 384. Schools, In re, v. Toro.-to, 332. — Chief Superintendent of, v. Far- rail, 705. — Chief Superintendent of, in re, v. Sylvester, 678. Schuylkill Navigation Co. v. McDonough, 390. Schwinge '-. Do\ 'pU, 473j^ Scott V. Burgess and Bathurst School Trustees, 2G5. V. Dickson, 126. V, Frith, 428. V. Hale, 392. and Harvey, in re, 240, 241, 402. V. Legg, 434. V. Manchester, 432. V. Peterborough, 265, 402. V. Union School Sections of Bur- gess and Bathurst, 317. Scovill V. Cleveland, 567. Scragg V. City of London, 600, 652, 655, 668. Scroggie v. Cuelph, 445, 449. Scuclcfer v. Trenton, &c., Falls Co., 372. Scale V. Mitchell, 651. Seaman's Hospital v. Liverpool, 313, 378. Sears v. Dennis, 487. — V. Dillingham, 310.. Seeker and Paxtor, In re, 718, 720. ' Secord v. Great Western R. W. Co., 490. — r.nd Lincoln, In re, 243, 244, 255, 271. Secretary of War v. Toronto, 610, 707. Seiple V. Elizabeth, 186. Sells and St. Thomaa, In re, 251, 253, 254. Sellwood V. Mount, 309. Selma and Gulf R. W. Co., Ex parte, 570. Serrot v. Omalia, 486. Sessions v. Newport, 481. Seybert v. Pittsburg, 251. Seybill, v. National Currencv Bank, 302. Shafer et al. v. Mumma, itO, 350, 397, 399, 651, 652. Shaffaer v. St. Louis, 372. Shallcross v. JoflFersonville, 218. Sharp, Petition of, 561. — V. Powell. 438. — V. Spier, 608. Sharpe v. Dawes, 84. Sharpless v. Philadelphia, 570. Shattuck V. Woods, 203. Shaw V. Kennedy, 403. — V. Shaw, (50, 92, 600, 610, 653, 654, 655. — V. Thonipson, 120. Shea et al. v. Leeds, 845. — v. Lowell, 483. Sheehan v. Good Samaritan Hospital, 609. Sheffield v. Board of Works, 450. — Water Works Co.v.Benn?tt,631. Sheldou v. Law, 399. Sheley and Windsor, In re, 245, 806, Shelton v. Mobile, 408, 416, 418. Shephard v. Brand, 295. Shepherd v. Midland R. W. Co., 438. Shepherdon v. Colfrain, 482. Sheppard v. Bradford, 010. Sheriff of Lincoln, h\ re, 461. Sherman v. Kortright, 484. Sherwood v. Coleman, 303. — V. Hamilton, 482, 485, 487. Shiel V. Sutherland, 4.54. Shields v. Great Northern R. W. Co., 639. ■1 f liv TABLE OF CASES. North Staffonl- Shillito V. Thompson, 423. Shipley V. Fifty Associates, 437, 438 Short V. Parmer 557. Shrader, Ex jjarte, 405. Shrewsbury, Earl of, v, shire, 377. Sikea v. Hatlield, 203. Sill V. Coming, 214. Silverthorne v. Campbell, G05. Simcoe v. Norfolk, 083. Simey v. Marshall, 53. Simmons v. Camden, 510. — V. (iardiner, 505, 500. Simms v. Denison, 399. Si. nons V. Patchett, 13. Siii'psou V. Lincoln, 224, — V. Ready, 00. — V. South StaflFordshire Water Works Co., 372. — V. Yeend, 157. Sims V. Estate Company, 434. Singleton v. Eastern Counties II. W. Co., 488. Sisters of Charity of Ottawa, In re Appeal of, 012. Sixth Avenue 11. W. Co. v. Kerr, 451. Skingley v. Surridge, 309. Skinner v. Usher, 320. Slater and Wells, In re,'304, 707, 779. — V. Wood, 179. Slavin and Orillia, In re, 107, 810, 840. Slee V. Bloom, 72. Sligo Case, 153, 154. Slipper V. Tottenham and Hampstead R. W. Co., 370. Small ex rel. Walker v. Biggar, 109 Smalley v. Blackburn R. W Co., 375. Smith V. Agawam Canal Co. , 390. — V. Baniham, 700. — V. Bell, 0. — V. Blakey, 741, 745. — V. CoUingwood, 185. — V. Commonwealth, 203, 204. — V. County, 204 — and Euphemia, In re, 507. — V. Fletcher, 391- — V. Gates, 404. — V. Godfrey, 845. — V. Huntington, 402. — V. Law, 170. — V. Lowell, 489. — V. Maddison, 13, 398. — V. Metropolitan Gas Co., 395. — V. Milwaukee, 485, 501. — V. Moore, 403. Smith V. Morse, 251. — V. Newbern, 415. — and Oakland, In re, 200. — V. Prescott and Russell, 355. — V. Riorden, 403. — V. Rooney, 245. — V. Seghill, Overseers of, 020. — V. Shaw, 028, 099, 700, 710. — V. Sibson, 337. — V. Simpson, 430. — V. Slate, 493. — V. Smith, 204, 488. — V. Toronto, 248. — V. "Washington, 440. — V. Wedderburne, 238. — V. AVendell, 482, 484. — V. Wintle, 139. Smyth V. Darley, 107, 174. Sniythe, Ex parte, 078. Snell V. Belleville, 1, 212, 217, 240, 244, 312, 313, 410, 419, 421, 423. Snider v. Frontcnao, 723. Snow V. Adams, 484. — V. Ilousatonic R. W. Co., 489. Snyder v. Rockport, 378, 517. — V. Shibley, 005, 724. Soady v. Wilson, 449. Soule V. Grand Trunk R. W. Co., 484. — V. New York Pwiilroad, 490. South Grenville Case, 04, 104. — Grey Election, 153, 158, IGO. — Western R. W. Co. v. Southern and Atlantic Telegraph Com- pany, 372. — Yarmouth Railroad Co. v. Great Northern Railroad Co. 305. Southampton Case, 157. Southworth v. I'almyra and Jackson R. W. Co. et al., 168. Soutter V. Madison, 317. Sower v. Philadelphia, 375. Spafford v. Hubble, 404. — V. Sherwood, 741. Spalding v. Preston, 844. Sparhawk v. Salem, 482. Sparling v. Parker, 003. Spaulding v. Lowell, 210, 415. Speak v. Powell, 608. Speer v. Commonwealth, 409. Springer v. Bowdonham, 484, 4SG. Springfield v. LeClaire, 486. Spry v. McKenzie, 096. Squire v. Mooney. 629, 094, 699. — v. Oliver, 448. — q. t. V. Wilson, 767, 769. Stadler v. Stafford C — V — V. — V — Ml Stainton Work: Staley Brie Stamford v Stamper, I Standley v. Staniland v Stanton v. Starin v. G< Starr v. Tri State V. All — V. An — V. Atl — V. Bel — V. Boc — V. Bos — V. Bru — V. Can — V. Cat — V. Ch^ - V. Cine — V. Citj — V. Citj — V. Clar — V. Clar — V. Cle\ — V. Com — V. Con — V. Cow — V. De ( — V. Eliz; — V. Ferg — V. Free — V. Fres — V. GJln — V. Gorl — V. Han — V. Harl — V. Haul — V. Hay, — V. Here — V. Hew — V. Hill, — V. Hud! — V. Hug, — V. Hull -- V. Jacol TABLE OF CASES. Iv Stadler v. Detroit, 205, 356. Stafford Case, 113 159. — V. Hamston, 449. — V. Ingeraol, 389. — V Providence, 373. — Marquis of v. Coyney, 478. Stainton v. M* tropolitan Board of Works, 44(5. Staley Bridge Case, 154, 157, 159. Stamford V. Pawlett, 413. Stamper, In re, v. Sunderland, 66. Standley v. Perry, 8, 474. — Vespra and Sunnidale, In re, 243, 245. Staniland V. Hopkins, 123. Stanton v. Springfield, 483, 486. Starin v. Genoa, 571. Starr v. Trustees, 679, State V. Allen, 123. — V. Anacker, 124. — V. Atherton, 493. — V. Beloit, 317. — V. Book, 399. — V. Boscawen, 497. — V. Bruder, 213. — V. Canterbury, 18, 497. — V. Catlin, 493. — V. Charleston, 603. — V. Cincinnati Gas Co., 395. — V. City Clerk, 214. — V. City Council, 604. — V. Clark, 14, 369, 383. — V. Clarke, 397. — V. Cleveland, 362. — V. Compton, 497. — V. Cornville, 482. — V. Cowan, 350, 399. — V. De Casino va, 63. — V. Elizabeth, 561, 565, 56G. — V. Ferguson, 122, 369. — V. Freeman, 383, 398. — V. Frest, 63. — V. Gilmanton, 18. — V. Gorham, 497. — V. Hand, 661. — V. Hartshorn, 39. — V. Hauss, 123. — V. Hay, 398. — V. Herod, 217, 451. — V. Hewett, 490. — V. Hill, 493. — V. Hudson, 565. — V. Hug, 317. — V. Hull, 398. -- V. Jacobs, 39. V. V. V. v. v. V. V. V. V. V. V. V. V. V. V. V. V. V. state V. Jersey City, 356, 424, 444, 451, 465, 466, 5iJ3. Johnston, 651. Lieber, 413. McDowell, 398. Maddison, 251. Madison, 302. Mansfield, 171. Maynard, 652. V. Mayor, 210. V. Merrill, 394. Milwaukee, 317. Mobile, 412. Newark, 219, 565, 009, 611. Nudd, 493. Orange, 561. Perth and Amboy, 565. Portage, 607. Prescott, 369. Rankin, 424. Roberts, 392. Robinson, 368. — V. Sator, 493. — V. Town Council, 608. — V, Wentworth, 839. — V. Wheeler, 368. — V. Williams, 180. — V. Wilmiagton, 179. — V. Wilson, 317. — V. Young, 651. — ex rel. Circuit Attorney v. County Court of Saline County, 266. — ex rel. Dean v. Madison, 171. — ex rel. Gritlith v. Ouwokee Town- ship, 13. — ox rel. Newell v. Purdy, 154. — ex rel. Rockford v. Maynard, 179. — Bank v. Brackenridge, 36, 3.54. — Bank v. Madison, 603, 616. — Bank v. Orleans Navigation Co. ,210. St. Catharines v. Gardner, 475. St. Charles, City of, v. Nolle, 326. St. George's Church v. Grey et al., 361, 494, 501, 517. — Vestry v. Sparrow, 441. St. Helens Chemical Co. v. Corporation of St. Helens, 424. St. John V. McFarlane, 453. — V. New York, 412, 413, 439. St. Joseph V. Railroad Co., 608. St. Louis V. Alexander, 571. — V. Allen, 33. — V. Bentz, 350, 399. — V. Boffinger, 211, 406. — V. Clemens, 561, 567. r Ivi TABLE OF CASES. :l St. Louis V. Ferry Co., 607, ()08. — V. Grove, 326. — V. Jackson, 413, 416. — V. McCoy, 406. — V. St. John, .372. — V. Weber, 413, 416. — V. Wiggins Ferry Co., 607, 608. — Hospital V. Williams, 12. — Pnblic Schoc'.s v. St. Louis, 609. St Lukes V. Lewis, 447. St. Mary's Newington v. Jacobs, 477. St. Pancras, Vestry of, v. Battersbury, 556. St. Paul V. Coulter, 14, 215, 413, 416. — V. Laidler, 416. St. Sepulchre's, Ex parte, 6. St. Thomas's Hospital, Governors of, v. Charing Cross R. W. Co., 376. St. Vincent v. Grier, 171. Steadman v. Wasley, 557. Stein v. Burden, 406. Stephenson v. Higginson, 6. Stetson v. Kempton, 210. Stevens v. BuflFiilo and New York City R. W. Co. et al., 606. — v. Chicago, 220. — V. Emson, 817. Stewart v. Board of Police, 373. — v. Commonwealth, 454. — V. State, 72. — v. Supervisors of Polk County, 570. — V. Taggart, 709, 710, 711, 713, 718, 723, 733, 738, 747. — v. Woodstock and Hui'on Road Co., 482. Stewart's Estate, In re, 378. Stickney v. Maidstone, 487 . Stile V. Wallis et al. , 313. Stiles V. Hitchcook, 697. Stilk V. Myrick, 463. Stinson v. Gardiner, 482. Stocking V. State, 121. Stoddard v. Gilman, 214. — V. Wil])orforce, in re, 468. Stokes V. New York, im, 416, 421. — V. State of Georgia, 707. Stone V. Brooks, 477. — V. Hubbardston, 483. — V. Mayor, &c., 4.S6. — V. New York, 4.')6. Stoneburgh v. Brighton, 10. Stonehouse v. Elliott, 330. — v. ]oard of Healtli, 482. Tuttlo V. Holyoke, 487. — V. State, 454. Tyleo V. Waterloo, 254, 255, 686. Udall V. Trustees of Brooklyn, IS. Underhill v. Longridge, 778. Underwood v. Carney, 441. — V. Green, 369, 424. Union Railroad Co. v. Cambridge, 43C. United States v. Brown, 203. — V. Farnuif.', 218. — V. Keokuk, 317. — V. Wright, 122. Univer=3ity v. Waldeii, 204. — of London v. Yarrjw, 386. UpdegrafT v. Crans, 174. Updyke V. Campbell, .398. Upton \'. Railroad Co., 374. Vanacker's Case, 201. Vanderbilt v. Adama, 431, 450, 454. Vandeveer v. Mattocks, 3.34. Vandyke v. Cincinnati, 424, 485. Van Hoffman v. Quincy, 317. Van Orsdall v. Hazard, 123. Van Pelt v. City of Davenport, 445. Van Sickles v. Burlington, 432. Van Wickle v. Railroad Co. , 373. Vars V. Grand Trunk R.W. Co. 440, 484. Vason V. Augusta, 356. Vassault v. Austin, 651. Vaughan Ex parte, 677. Veazie v. Mayo, 368. — V. Penobscot R, W. Co., 491. Vernon Society v. Kills, 72. Verrill v. Minot, 490. Verrior v. Sandwich, 123. V'jspra V. Cook, 477, 491. Vestry of Bermondsey v. Johraon, 442. Vestry of St. Giles and Camberwell v. Weller, 450. Vickers v. Shunia, 573. Vienna v. Marr, 695. Vincent v. Nantucket, 204. 210 Vintner's Co. v Passey, 177. 201, 356. Vrooman v. Shi ert, 120. TABLE OF CASES. li IX Waile V. Brantford, 8, — V. Dowling, 29(). — V. Kiclimond, 33. _ V. Thompson et al., 632. Wadleigh v. Oilman, 431, 454. Wadsworth and Putney Gas Light and Coko Co. V. Wright et aL, lU'J. Wain Wright, Re, 778. Waite V. Northern Eastern R. W. Co., 488. Wakefield Local Board of Health v. Lee, 5G0. Waldo V. Wallace, 179, 652. Waldon V. Rcnseslaer and Saratoga R. W. Co., 368. \Valdraven v. Memphis, 204. \\'a.\kiiT, In re, 376. — V. Cincinnati, 570. — V. Jackson, 218. — V. Milne, 603. Wallace v. New York, 4*>9. _ V. San Jose, 210, 266, 267. Waller v. Manchester, 415. Wallingford Case, 55. Walsh V. Southworth et al., 337. Walton et al. v. Jarvis, 699. — V. Monaghan, 245. Waiiklyn v. Woolett, GTO. Wanstead v. Hiii, 427. Ward V. BroV/n, 405. — V. Dean, 293. — V. Lee, 445. AVardell v. Chish -Im, 402. Warden v. Tye, 397. Wards V. Hobbs, 424. War:; v. Cundierlege, 603. Warinel v. London, 215. Warlow V. Harrison, 13. Warne v. Coulter, 626, 628, 713. Warner v. Mower et al., 176. — V. People, 204. Warren v. Desteppes, 295. — V. Lyons, 509. — V. Slades, 126. Warrer v. Love, 238. ■^\ artman v. Philadelphia, 412, 413, 418. Washington v. Mayor, 565. — V. Nasville, 450. — Avenue, 607. AVaterdown v. Cady, 317. Waterford Case, 154, 163. Waterloo v. Dobson, 600. — Bridge Co. v. Cull, 190. Waters v. Leech, 216, 362, 393. Watertown v. Mayo, 427. Watson v. Pears, 127. Watt v. (Uenister, 800. Waupun V. Moi.ra, 453. Weaver v. Price, 653. Webb V. Hern Bay, 302. — V. Manchester and Leeds R. W. Co., 372. — V. Port Bruce Harbour Company, 380. — In re, v. Yarmouth, 242. Webber v. Adams, 418. Weber v. Lee Co., 317. — V. Rchihard, 633. Webley v. Wooley, 431. Webster v. As'itou-under-Lyne, Orme's Case, 53, 676. — and West Flamboro', In re, 3 '2. — County V. Taylor, 299. Weegan v. McDiarmid, 723. Weeks v. Milwaukee, 607, 609. — v. Shirley, 490. Weir V. Bush, 72. Weisenberg v. Appleton, 485, 490. Welch V. Nash, 508, 514. — V. Stowell, 398, 424. Welker v. Potter, 373. Welland v. Bufl'alo and Lake Huron R. W. Co. , 374. Welles V. Battelle, 180. W^ellington v. Waterloo, 17. — V. Wilmot, 17, 31. — V. Wilson, 8, 475, 477, 480, 494. Wells V. Burnham, 561. — V. Howell, 389. — V. Kingston-upon-HuU, Mayor, &c., of, 10. — V. London, Tilbury, and Southern R. W. Co., 372. Wendell v. Brooklyn, 203. Wensboro' v. Smart, 416. Wentworth v. Hamilton, 10, 265, .345, 346. Wescott and Peterborough, re, 498. West V. Blake, 372. Westbrook Manufacturing Co. v. Grant, 126. Westbury Case, 153, 159. Western Canada Oil Lands and Water Works Co. V. Enniskillen, 638. Western College of M^^dicine v. Cleve- land, 432, 436. West Gwillimbury v. Hamilton & North Western R.W. Co., 321. f n TABLE OP CASES. »l!i West Owillimbnry v. r.imcue, IMto, Wcstiniuinstur ( Jaao, 153, 164, 157. Weston V. Arnold, 434. — V. SynicuHe, ?' '.. — (iramniar Scliool, In re, 496. — Grammar School, and Trr.ateea of, and (Jountios of York and I'eel, In re, 411. West River Bridge Co. v. Dix, 372. — Toronto (Jaae, 158, 1()0. — Toronto Election, In re, 12G. — Toronto, Election Petition, In re, 119. Wexford Election, 87. Wharf Case, 380. Wheeler V. Cincinnati, 432. — V. Gray, 432. — V. KriilroadCo. 005. — V. Worcester, 445. Whinney v. .Schmidt, (178. Whitby V. Flint, 186. — V. Harrison, 11, 186,705, 762. — V. Liscombe, 171. ^^^l^tchurch v. Fulham Board of Works, 560. White V. Bay ley, 55. — V. Bond, 487. — V. Buss, 844. — V. Charleston, 436. — V. Chindley Local Board, 487. — V. Collingwood, 269. — V. Kent, 329, 413. — V. Maynard, 626. — V. Polk County, 203. — V. Tallman, 177, 356, 363, 403, 404. — V. Vermont and Massachusettfj R. W. Co., 302. — V. Winnisnomet Co, 218. Whiteside v. liellchamber, 520. Whithorn v. Thomas, 195. Whiting V. Sheboygan and Fond du lac R. W. Co., 570. Wliittaker v. West Boylston, 489. AVhittier v. Varney. 180. Whyte V. Mayor, &c., 565. Wigan Case, 153. Wigtown Case, 102, lOG, 107. Wild V. Deig, 372. Wilde V. Bowen, 116. Wildes V. Russell, 766, 670. Wiles V. Cooper, 835. Wilkey v. Pekin, 608. Wilkie V. Clinton, 264, 266, 274, 280. Wilkinson v. Albany, 406. Willord V. Killingworth, 210. — V. Newbury, 484. — \ Newbury[iort, 210. "William and Anthony Streets, 374. AVilliams v. Augusta, 431. — V. Burgess, 12(3. — V. Carwardine, 40.3. — V. Clinton, 482, 488. — V. Detroit, 566. V. Lee, 120. — V. Morland, 414. — V. Port Hope, 388. — V. School District, 609. — V. Taylor, 729. Willis V. Legris, 403, 404. Willocks et al. Ex parte, 108. Willougliby V. Harridge, 218. Willson V. Blackbird Creek Marsh Co. 372. Wilson et al. v. Cameron, 303. — V. Charlestown, 4S9. — and County of Elgin, 251, 253. — V. Oaybiel et al., 833. — V. Croves, 517, 518. — V. Halifax, 482, 518. — V. Hamilton, 218, 482, 518. — V. Huron and Bruce, 740, 755. — V. Jefferson, 497. — V. Xing, 294. — V. xvliddlesex, 248, 518. — V. New York, 444, 445, 516. — and Port Hope, 288. — V. Stewart, 819. — V. Weller, 652. Wilton V. Falmouth, 63. Wiltshire v. Baker, 417. — V. Willett, 417. Winch V. Conservators of the Thames, 380. AVinckler v. Great Western R. W. Co., 488. Windham v. Portland, 17, 30. Windsor Case, 154, 157, 159. "Wingate v. Enniskillen Oil Relinlng Co., 10. Winn V. Lowell, 484, 489. Winship v. Enfield, 481, 484, 488, 491. Winsor v. Regina, 311. Winter v. Keown et al, 522, 636. Wiswall V. Hall, 380. AVitham v. Osbum, 372. Wither! ',y v. Regent's Canal Co., 488. Withom V. Thomas, 63. Wodmore v. Dear, 601. Woelpper v. Philadelphia, 423. TABLE or CASES. Ixi Wood, In ro, 121. — V. Brooklyn, 214. — V. Campbell, 773. — V. Meats, 4.30, 441. — V. Soiiil, ,1(12, 7(54. — V. Veal, 473. Woodruff V, I'otorljorough, 571. — V. Reed, 264. — V. Wontwortli and Hamilton, 501, 502. Woodward v. Haraons, 101, 106, 107, 120. Woodyer v. Hadden, 478. Wddlet V. Davis, 670. Wooley V. Attorncy-Ciereral of Victoria, r)37. — V. Groton, 402. — V. Idle, 216. Woolf V. Beard, 488. — V. Chalker, 387. Worcester v, Eaton, 171. — V. Mayor, &c., of Worcester, 613. Worley v. Glover, 139. Wortley v. Nottingham'Local Board, 418. Wray v. Ellis, 313. * — V. Toke, .309, 310, 314. Wreford v. People, 424. Wrigb*^ V. Boston, 444. Bruister, 413. Chicago, 560. Frant, .508, 514. Grey, 265. Pearson, 386. — V. — V Wright and Cornwall, In re, 202. — and Stockport, 66. Writt V. Sharnian, 807. Wyckoff V. Queen's County, 218. Wycott and Ernestown, In re, 244. Wyncoop v. Society, 267. Wynne v. Konaldson, 6(52. Wyoming v. Bell, 354, 613. Xicpiea v. Bujae, 455. Yale V. Hampden and Berkshire Turn- pike Co., 485. Yarmouth v. Groom, 42.3. Yarwood, In re, 272, 637. Yates v. Milwaukee, 369, 383, 413, 421, 424. — V. Palmer, 678. — V. White, 491. Yeatmau v. CrandcU, 607. Yokham v. Hall, 747. York V. Davis, 389. — V. Forscht, 4(52. — and Peel, In re Justices of, 670. York Buildings Co. v. MacKenzie, 320. Young V. Edwards, 442. — V. Gye, 295. — V. New Haven, 484. — V. Walter, 294. Zambaco v. Cassavettie, 285. Zanesville v. Kiclvirds, 607. Zylstra v. Charleston, 652. r M Day. Ml On Liist caj Last ( Dii kill Sepan 44, Yearh 272' 10— Last d Clei turp 15 — Last d cipa! the i Mui 30— Name this 31 — Last d thro seve: Audito (Sec CALENDAR. JANUARY. Day. 1 — Yenr for purposes of Assossniout, to connnftuce in districts of Algoma, ;Mu.skoka, Puny Sound, Ni[)iasing and Thunder Bay. (Rev. Stat. Ont., Clip. 175, sec. 27) p. 874. Last day on wliicli Quail and Woodcock may bo killed. (41 Vict, cap 18, sec. 2.) p. 978. Last day on which waterfowl which are known as Mallard, Grey Duck, Black Duck, Wood or Summer Duck, and Teal may be killed. (41 Vict. cai). 18, sec. 2.) p. 978. Separation of Junior and Senior Counties to take eflbct on. (Sec, 44, Municipal Act.) p. 38. Yearly taxes to be computed from. (Sec. 347, Municipal Act.) p. 272. 10 — Last day for return to be transmitted to Provincial Treasurer by Clerk of Municipality, or of any Corporate Body issuing Deben- tures. (Sec. 3 of The Debentures Registrations Act.) p. 881. 15 — Last day for Treasurer of Municipalities indebted under the Muni- cipal Loan Fund Acts to make returns to Provincial Treasurer of the amount of taxable property, debts and liabilities. (Sec. 363, Municipal Act.) p. 285. 30 — Name and address of non-residents to be sent to Clerk on or befoi'e this day. (Sec. 3, Assessment Act.) p. 604. 31 — Last day for all Councils to make return to Provincial Treasurer through Provincial Secretary of account of the debts of the several Corporations. (Sec. 3G4, Municipal Act.) p. 285. Auditora to discharge the duty imposed upon them by this day. (Sec- 263, Municipal Act.) p. 197. i} r Ixiv CALENDAR. Day. 31- -County Treasurers to prepare and suLmit to County Councils at their first meeting in January a report, certified by the Auditors, of the state of the non-resident Land Fund. (Sec. 182, Assessment Act.) p. 760. Members of Councils of Municipalities in Algoma, Muskoka, Parry Sound, Nipissing, and Thv\nder Bay, (except those returned by acclamation) to be elected on first Monday in January. (Rev. Stat., Ont., caj). 175, sea 43.) p. 877. Election of Trustees held in Police Villages on first I\Ionday in January, if not returned by acclamation. (Sec. 575, Municipal Act.) p. 578, Members of Councils (except County Councils) to be elected on the firet Monday in January. (Sec. 85, Municipal Act.) p. 71. First election for Councils, where Corporations are newly erected or extende(>, to be held on first Monday in January. (Sec. 86, Municij)al Act.) p. 72. JMembers of Municipal Councils, except County Councils, hold their • first meeting at eleven o'clock a.m, on the third Monday in Janufiry, or on some day thereafter. (Sec. 215, Municipal Act.) p. 167. Members of County Councils to hold their first meeting on the fourth Tuesday in January, at two o'clock in the afternoon, or some hour thereafter. (Sec. 215, Municipal Act ) p. 167. FEBRUARY. Day. 1. — Last day for Railway Companies, to transmit to Clerk of Munici- palities statements of Railway Property. (Sec. 26, Assessment Act.) p. 634. Last day for Clerk to make iip and deliver to Assessor list of parties requiring names to be entered on the Roll, and the lands owned by them. (Sec. 3, Assessment Act.) p. 605. Last day for County Treasurer to fui'nish to Clerks of Local Muni- cipalities list of land in arrears for Taxes for three years. (Sec. 118, Assessment Act.) p. 708. East day on which Wild Turkeys, Grouse, Pheasants, Prairie Fowl,, or Partidge may be killed. (41 Vict. cap. 18, sec. 2.) p. 978. CALENDAR. bcv Day. 16 — Last day for Assessors to begin to make their Bolls. (Sec. 42, Assessment Act.) p. 674. 28 Last day for Council of any Municipality to pass By-laws imposing larger duty up to $200 for Tavern or Shop Licenses, but not more without consent of electors. (Sec. 32, Liquor License Act.) p. 806. Last day for Councils of Cities, Towns, Villages and Townships to pass By-laws limiting number of Tavern Licenses to be issued for ensuing year. (Sec. 17, Liquor License Act.) p. 797. Laet day for City or Town Council to prescribe further require- ments for Taverns in addition to those prescribed by the Act. (Sec. 21, Liquor License Act,) p. 800. Last day for City or Town Council to pass By-laws limiting number of shop licenses to be issued for ensuing year. (Sec. 24, Liquor License Act.) p. 801. The Commissioner of Crown Lands is required in the month of February to transmit to County Treasurers lists of lands granted or agreed to be sold by the Crown or leased, or in respect of which a license of occupation issued during the preceding year. (Sec. 106, Assessment Act) p. 708. During this month, majority of Reeves and Deputy Reeves of United Counties to petition Lieutenant-Governor for separation of Counties. (Sec. 35, Municipal Act.) p. 34. MARCH. Day. 1 — Clerk of every Township, Village and Town, within one week after the first day of March in each year, to make a return of certain particulars to Clerk of County in which Municipality situate. (Sec. 241, Municipal Act.) p. 182. L««t day on which Hares or Rabbits may be killed. (41 Vict cap. 18, sec. 2.) p. 978. 31 — Laat day for Clerk of every County to make yearly return to Provincial Secretary, required by sec. 241. (Sec. 242, Municipal Act.) p. 184. Last day for Clerk of City or Town to make return required by Section 241, Municipal Act, to Provincial Secretary. (Sec. 243, Municipal Act.) p. 184. i if'" kvi CALENDAR. til APRIL. Day. 1 — Last day for petition for Tavern Licenses to be presented. (Sec. 9 of sub-sec. 2, Liquor License Act.) p. 792. Last day for petitions for Shop Licenses to be presented. (Sec. 23, Liquor License Act.) p. SOL 8 — Last day for Local Treasurers to furnish County Treasurer with the statement of arrears of taxes and school rates of non-resident lands afterwards occupied. (Sec. 113, sub-sec. 2, Assessment Act.) p. 714. 30 — Last day for completion of Roll by Assessor. (Sec. 42, Assessment Act.) p. 647. Liquor Licenses expire. (Sec. 7, sub sec. 1, Liquor License Act.) p. 790. Last day for License Commissioners to pass resolutions defining requisites for granting Shop and Tavern Licenses ; for limiting number of licenses, etc. ; for declaring houses exempt from having accommodation ; for making regulations, etc. (Sec. 4, Liquor License Act.) p. 7S8. MAY. Day. 1 — Last day for Assessora to deliver their Rolls completed to Clerks of Municipalities. (Sec. 43, Assessment Act) p. 649. Last day for Non-residents to complain by petition to proper Municipal Council of Assessment. (Sec. 67, Assessment Act.) p. 679. County Treasurers to complete and balance their books, charging lands with arrears of Taxes. (Sec. 120, Assessment Act.) p. 719. First day on which Liquor Licenses may be issued. (Sea 7, sub- sec. 2, Liquor License Act.) p. 790. Liquor Licenses to be dated. (Sec. 7, Liquor License Act) p. 790. Last day on which Snipe may be killed. (41 Yict. cap. 18, sec. 2.) p. 978. Last day on which all Duck (with the exception of Mallard, Grey Duck, Black Duck, Wood or Summer Duck, and Teal) and Wild Bwan or Geese may be killed. (41 Vict. cap. 18, dec. 2.) p. 978. CALENDAR. Ixvii Day. 1 — Last day on which Beave.-, Muskrat, Mink, Sable, Martin, Racoon, Otter or Fisher may be rilled. (41 Vict. cap. 18, sec. 7.) p. 979. 15 — Last day for issuing Tavern and Shop Licenses. (Sec. 7, sub-sec. 2, Liquor License Act.) p. 790. 31 — Last day for issuing Wholesale Licenses. (Sec. 7, sub-sec. 2. p. 790. JUNE. Day. 30 — Balance of License Fund, after deducting expenses of License Inspector and of office of License Commissioners and expense of enforcing law, to be paid one-third to Provincial Treasurer and two-thirds to Treasurer of Municipality. (Sec. 34, sub-sec. 2, Liquor License Act.) p. 808. JULY. Day. 1 — Last day for revision of Assessment Rolls, by Court of Revision. (Sec. 56, sub-sec. 19, Assessment Act.) p. 665. Befoi'e or after 1st July, Court of Revision in certain cases, ay remit or reduce Taxes. (Sec. 58, Assessment Act.) p. 668, Last day for revision of Rolls by County Council with a view to equalization. (Sec. 68, Assessment Act.) p. 680. Last day for County Treasurers to return to Local Clerks an account of arrears due in respect of non-resident lands which have become occupied. (Sec. Ill, sub-sec. 2, Assessment Act.) p. 712. 6 — Last day for service of notice of appeal from Court of Revision to County Judge. (Sec. 59, sub-sec. 2, Assessment Act.) p. 670. 14 — Last day for revision of Assessment Roll in Township of Shuniah, (Sec. 56, sub-sec. 19, Assessment Act.) p. 665. 15 — Before this date iu any year. Councils of Cities and Towns may pass resolutions affii-ming necessity of new division into wards. (Sec. 20, Municipal Act.) p. 23. 31 — Last day for County Council to pass By-law lengthening time between nomination and polling in remote Townships. (Sec. 109^ Municipal Act.) p. 85. '4' * Ixviii Day. OALENDAB. AUGUST. 1 — First day on which "Woodcock may be killed. (41 Vict. cap. 18, sec. 2.) p. 978. 1 — Last day for decision by County Judge in complaints of Municipali- ties complaining of equalization. (Sec. 68, sub-sec. 2, Assessment Act.) p. 683. Last day for County Court Judge to defer judgment on appeals from the Court of Revision. (Sec. 59, snb-sec. 7, Assessment Act) p. 673. 10 — In Township of Shuniah, last day for service of notice of appeal from Court of Revision to County Judge. (Sec. 59, sub-sec. 2, Municipal Act.) p. 671. 14 — Last day for Overseer of Highways to return as defaulter to Clerk of Municipality non-resident who has not performed Statute Labour. (Sec. 87, Assessment Act.) p. 692. Last day for County Clerk to certify amounts to Clerks of Local Mu^icipalties required for County purposes. (Sec. 74, Assessment Act.) p. 686. 15 — First day on which Snipe may be killed. (41 Vict. cap. 18, sec. 2.) p. 978. SEPTEMBER. Day. 1 — Last day for Jury purposes for Assessors to return their rolls. (Sec. 194, Assessment Act.) p. 768, First day on which waterfowl which are known as Mallard, Grey Duck, Black Duck, Wood or Summer Duck, and Teal may be killed. (41 Vict. cap. 18, sec. S.) p. 978. First day on which all Duck, with the exception of the above, and Wild Swan or Geese may be killed. (41 Vict. cap. 18, sec. 2.) p. 978. .. First day on which Hares or Rabbits may be killed. (41 Vict. cap. 18, sec. 2.) p. 978. CALENDAR. bux Day. -In Township of Shuniah, last day for County Court Judge to defer judgment in appeals from Court of Kevision. (Sec. 59, sub-sec. 7, Assessment Act.) p. 673. First day on which Deer, Elk, Moose, Reindeer or Cariboo may be killed. (41 Vict. cap. 18, sec. 2.) p. 978. OCTOBER. Day. 1 — Last day for returning Assessment Roll to City or Town Clerk in Cities and Towns where assessment taken between 1st July and 30th September. (Sec. 44, Assessment Act,) p. 650. Last day for delivery by Clerks of Mux ' 'nality to Collectors the CoUectora' Rolls, unless some other duj be prescribed by By-law of the Local Municipality. (Sec. 89, Assessment Act.) p. 695. First day on which Wild Turkeys, Grouse, Pheasants, Prairie Fowl, Quail or Partridge may be killed. (41 Vict. cap. 18, sec. 2.) p. 878. 30 — Last day for passing By-laws for holding first election in Junior Township after separation. (Sec. 88, Municipal Act.) p. 73. NOVEMBER. Day. 1 — Last day for transmission by Local Clerks to County Treasurer of rolls of lands of non-residents whose names not in Assessment Rolls. (Sec. 90, Assessment Act.) p. 695. First day on which Beaver, Muskrat, Mink, Sable, Martin, Raccoon, Otter or Fisher may be killed. (41 Vict. cap. 18, sec. 7.) p. 979. 9 — Last day for Collectors to demand Taxes of lands omitted from the Roll, found due under Sec. 121, Assessment Act. (Sec. 121, Assessment Act.) p. 720. 15 — Day for closing Court of Revision in Cities and Towns separate from County, when assessment taken between 1st July and 30th September. (Sec. 44, Assessment Act.) p. 650. , li ^ ir r Day. DECEMBER. 1— Clerk of every City, Town, Incorpomted Village and Township on or before 1st Dect^mber, in each year to transmit to Treasurer of Ontario a true re2. XI. When Mayor may aU out posso cuinitctus, 8. ■io',\. M II II Pakt VII. — Powers of Municipal Councils. 2'itlc 1. Poir-r/i (iencrnl/i/. Division I. Comities. Townshiiis, Cities, Towns, and Vilages, hh. 454-4. ^U, II. Counties Cities, Towns, Villages, s, 400. Ill Townsliijis, Cities, Towns, Villages, ss 4ij1-4(j4. IV. Countie.s, Cities, Sep. Towns, 8. 405. V Cities, Towns, and Villages, s. 4GG. VT Cities, Towns, 8s. 4G7-471. VII Towns, and Villages, s. 472. VIII. Coimties ss. 473- '4«2. IX Townships ss. 483- 485. II II .«H, iind Election of, hs. 5G4-r)84. ♦♦ III. Duties of Polico TniHtees, h«. 585-595. CoNFIUMIXa AND SAVIN(i CLAUSES, 88. 590-597. i HEIl Mnjesty, l)y and witli tho advico and consent of the Legislative Assembly of the Province of Ontario, euttcts iw follows : — PRELnilNAUY. 1. This Act may he cited as " The Municipal Act" (b) Short titio. 2. Unless otherwise declared or indicated by tho context, Tntcrprota- wlierever any of the followins* words occur in this Act, they ^ortli. shall have tho meanings hereinafter exin-essed, (r) namely : — (1.) " Municipality," shall mean any locality th(! inhabitants " Munld- of which are incoqioratcd, or are continued, or become P'"^J'' ' so under this Act ; {li) This Act is a rc-eimctnicnt of .nO Vict. c. 48, with subso- (juent amoiulinenta. References are yiuerally niado at tlic end of eaeh section t*) the part of tlv orif,'iii!il Act or Acts of wliieh tho section ia a copy or conaoliilation. The lan^^uage of the original Act is, as nearly as possible, in all cases retained. This is important ; for many clauses of the former Acts have been before tlie Coui-ts, and received a judicial interpretation. Where certain words in an Act of Parliament have received a judicial interpretation in ono of the .Superior Cou) ,3, and the Legislature has repeated the words without alteration in a subseipient statute, the Tjcgislature must be taken to have used them according to tlic meaning which a Court of compe- tent jurisdiction has given to them. Per Sir W. M. .Tames, L. J., in Ej: parte CnmphcU in re Cathairt, L. R. f> Ch. Ap. 70<} ; see also liiickma- lioije V. Lullouhho;i, 8 Moore P. 0. 4. The mivrginal note to the section of a statute, in the copy i)rinted by the Queen s I'rinter, forms no part of the statute itself, and is not binding as an explanation or construc- tion of the statute. f^!(tt/tIoK v. Gnrn, Green v. Chtijdim, L. R. 3 C. P. 511. But ajjparei 'y the headings of the different portions of tlie statute may be rete. od to in ordei" to determine the sense of any doubtful expression in a s-tction ranged under any particular heading. See The Directorn, tic, of the Jfammer-wiith and Citij lia'dway Co. and Brand et fw., L. R. 4 1.. L. 171 ; Jn re Kinnear and Haldbnand, 30 U. C. Q. B. .398, The Queen v. Carrie, .31 U. C. Q. B. 582; Laurie V. liathhurn, 38 U. C. Q. B. 255 ; In re Niagara Hiijh Seliuol Board and the Corporation of Niayara, 39 U. C. Q. B. 362. (r) An interpretation clause in an Act of Parliament should be understood to define the meaning of the word thereby interpreted in i r e THE MUNICIPAL MANUAL. fa 9 " Loosl Ma- nioipality." (2.) ** Local Municipality," shall mean a City, Town, Town- ship, or Incorporated Village ; cases as to which there is nothing else in tlic Act opposed to or inconsistent with that interpretation. 'JVic Mhlhnitl JlaUicaji Com- Jinny v. The Ainhertjnle. Nvttiii>jhuni and Bodon and Ea.shrn Junction lia'dwaii Cowjxaiy, 10 Hare 3'>9. T)ie nicaiiing of iinrtieular words in an Act, in the aliscnce of express definition, is to lie found, not so much in a strict etymological propriety of language, nor even in jjopular use, as in tlie subject or occasion on wliicli tiiey arc used, and the object that is intended to be attained. I'er Abbott, C J., in The Khuj v. JluU, 1 B. & C. 13(j ; approved in The Lion, L. R. 2 P. Cj. 525. The intention of the Legislature must ])c ascertained from tlie words of the Act, and not from any general inferences to be drawn from the nature of the objects dealt Avith by the Act. Fordi/rr V. Br'/iji:i, 1 H. L. Cas. 1 ; see also Loi/nn v. L'arl Cvurldtrii, 13 TJcav. 22. If the words are of themselves precise and iinandiiguous, then no more can Ije necessary tiian to expound tliosc words iu their natural and ordinary sense. \ti- ships or United To\vnships, as t} sue and be sued, to contract and be contracted with in their corporate name, to have a common seal, and to alter and change the same at their pleasure ; to have perpetual succession, and power to acquire and hold personal property or movables for the purposes for wliich the Corporation is constituted, and to alienate the same at pleasure, and also vest in any majority of the members of the Corporation the power to bind the others by their acts, and exempt the individual members of the Corporation from personal liability for its ilebts or obligations or acts, provided they do not contravene the Provisions of the Act incorporating them. 31 Vict, c. 1,8. 7, sub. 28. To consider these powers more in detail. The fi'At in order is, ' ' to sue and be sued. " A ^lunicipal Corpora- tion, like an individual, under the limitations involved m itb consti- tution and organiziition, may have recourse to the Courts of the coun- try to enforce rights and redi-ess wrongs. Oltawa DiMrict C'oundl v. Loip ft al. 6 0. S. o4(). So one Municipal Corporation may sue another. Huron v. Lomlov, 4 U. C. Q. B. .30*2. So a Municipal Corporation may be sued for a breach of contract, and in certain cases for wrongful acts not arising out of contract. Thus a Municipal Cor- poration may be sued for negligence in the construction of a sewer, malfeasance in illegdlly obstructing a drain or water course, so as to injure the owner or owners of land adjoining, or for wrongfully di- verting a stream of water ou plaintiiFs land. FnrrfU v. Loudon, 12 U. C. Q. B. 343 ; Reeve>^ v. Toronto, 21 U. C. Q. B. 157 ; Pn-dua V. Cfihi'iiutroit'o/, 25 U. C. Q. B. (31 ; Howe v. liovh'xtvr, 29 U. C. Q. B. 51>0 ; Sfont'huti.^H v. Ennid-iilen, 32 U. C. Q. B. ry&2. Darhy v. Croinliind, ,S8 U. C. Q. B. .338. To support an action against a ^Municipal Corporation of the nature suggested, althougli it is not necessarj- to slio-w any authority under seiu to the person or jwrsons, who, under the supposed instructions of the Corporation, actually did tlie wrongful act, soniething must be shown to connect th<^ Corpora- tion as a body with the doing of the act. Farrcll v. London, 12 U. C. Q. B. .343, JjeivU v. Toronto, ,^9 U. C. Q. B. ,343. If the Cor- poration bail a right to do that which they are charged as having \\Tongfully done, it seems they may plead in general terms tliat they did tlie act complained of as they lawfully might for reasons .assigned. lirovn V. Sarnia, 11 U. C. Q. B. 87. The Court of Chancery m.ay under particular circumstances on the application of a Municipal Corporation appoint a receiver of the tolls of an incorporated com- pany for whom the Municipal Corporation has made udvances, Branfford v. Grand Ji'wer Xavljation Co. 8 Grant. 246. The second power is, to ' ' contract and be conti acted with. " It is a princi])le applicable to all Corporations, that they must contract under seal. To this principle there are some exceptions. One of some moment has been created with regard to Municipal Corpora- tions. It is that such a Corporation is liable to be sued m an action of debt on simple contract for the price of goods furnished, or labour ', 14 U. C. Q. B. 4.13; Pitii v. Ontario, o'U. C. (.'. P. 302; Pn-n/ V. Ottoirii, 23 U. C. Q. B. 3{)l ; Brown v. li,llmU<', 30 U. C. Q. B." 373 ; Wt-utwortk v. Hamilton, 34 U. C. Q. B. .')h.'); liroini ct ah v. Lin(/Mi/, 3"! U. C. Q. B. .TOO. The exception, however, does not extend to executory contracts, such as works, kc, to l>f done, but is confined to woik in fact done and accepted. Jfrfjcon v. Jirdnt/onl, 1(5 U. C. (l B. .147 ; Win' v. 77/*' Entiixkilkn nil Urjiuiwi Co., 14 U. C. 0. 1*. 370; Mil I/O r, <0c., of Kii/i/r) minuter v. IlnrduHck, L. II. 9 Kx. 13; AuMiii V. (iwrdiiuix of liithiKil Uricn, L. 11. C. V. 91 ; and in this I'articular tlic rule is the aiinie both at Law and in Equity, Umick v. Whitliij, 14 (iraiit, (171. An individual dealing with a Coqioration through its Council or the members of tlie governing body, is bound to notice the objects and limits of tlieir jiowers and the manner in which those powers are to be exercised, and it is of much consc- (picnce that it .sluiuld Be borne in mind that their acts, when beyond the scojK of their authority or done in a manner unauthorized, are in general nugatory ami not binding on the Corporation, linin- mil/ it III. V, WiMfni DiMrict, 4 U. C. Q. B. 374. Where work was done under a contract not made with the Corpor.ition or any of its known ollicers, but merely with persons assuming to act as a duly appointed committee, it was held that no action would lie against the Corporation. Stont'hitnjh v. Brhjfiton, 5 U. C. L. J. 38. Vo action can be sustained for a breach of duty against the head of a Corporation in not applying tlie seal to make a contract between a Corporation and an individual, founded on a refusal which (if there had been a i)rev'ious valid contract) would have constituted a breach of it ; in other words, there cannot lie a remedy against the head of a Corporation, eciuivalent to a remedy on the contract against the (.'orporatioii, had the contract been duly made so as to create a valid and binding agieement, lair v. Moore, 3 U. C. C. P. 484. Mimicipal Corporations, when authorized to trade, and trading, appear to have the same rights and to 1)e under the like obligations as Corporations created for the purposes of trade. WtUs v. The Mayor, .If., of KiniiMon-upon-J^uU, L. R. 10 C. P. 402. The powers f)f a Municipal Corporation to have a co'umon seal, to acfpire and hold personal property or movables, and alienate the same at pleasure, are too well known and too thoroughly under- " stood to need comment in this jjlace, A Corporation as well as an individual may adopt any seal. It need not declare that the seal is tlieir common seal. See Ontario Salt, Co, v. The Mfrthant/ Salt Co., 18 CJrant 551. Proof of the sigiisturcs of the attesting o'Vi. crs, if the proper officers of the Corpo':ation, is prima facie evidence that the seal was properly affixecf. Per Kinsey, C. J., in Den v. Vreclandt, 2 Halst. (N. J.) 352. The right of a Corjioration ss. 4,6.] NAMES OP CORPORATION'S. 11 4. The bead and membera of tbe Council, and the officfti's, by-laws, contracts, property, assets and liabilities of every Municipal Cori)onition, when this Act takes effect, shall be deemed the head and members of the Council, and the ollicei"s, by-laws, contracts, property, aswets and liiibilities of such Curp(n-ation, as continued under and su1)ject to the pi'ovisions of this Act (e) 30 V. c. 48, s, ',). 5. The name of every body corporatt; (not being a provi- sional corporation) continued, or erected under this Act, shiill l)e " The ( 'orporath>)i of the (Ur^ndij, Citij, Town, Villaje, Township, or United Cottnties, or United Toicnxhips (as the case may be) of " (naming the same.) (/") 30 V. c. 48, s. 4. 6. TliP inliabitants of every junior Comity, upon a Provi- TIowli, offl- cerg, by-lawB, contracts, Ac, oon- tlnuod. Names of municlpnl corporatibiis. sional C\nuu-il Ijeing or having been appointed for the Names of Provisional corporations. to ;ic(iuirf, liolil and alienate real estate, ger.erally depends upon the sjifciiil provisions of the statute or eliarter. The power, wlien not otluTwise provideil, of a majority to bind the otliers by their acts, and also tlio exemption of iinlividiuvl nienib 'rs of the Corporation from peraor.al responsil)ility, will engage attor.tion lierciifter. Nee furtlier, note k to sec 81. (*•) See Corponithm of LmUmn v. TiiJ^'V, 7 C. & V. 5.37 ; Doc Gonnior.s of BriMvl 7fo.-'plf,i/ v. XiDl'oii, 11 'SI. & W. 913, 928; Altiirnti/-0()ifral v. Kerr, 2 Be.av. ;"'U, 42'.); Attonifii-O'turral v. Xi ircfOi/li; 5 Beav. .314, 315; At'nrhi'ji-Oenirat v. LcccUkr, 9 Beav. 54(). See farther, notes to preeednig section. (/) The proper corporate name of a Municipal Corporation ouglit to l)e useil on all occasions and in all places. But it lias bsen decided that a By-law of a Municipal Council is valid if it ajipcar on tlie face of it to have been enacted by a Municipal body having authority to make the By-law under the Municipal laws. Flevi'lhiti v. ]Vih.tli r, (I O. S. TiSG ; In re IJawk'ins v. fltiroii, Pirtli, (tin? Bruce, 2 U. C. C. P. 72 ; Fidlirr v. Vainj/nni, 10 U. C. Q. B. 492 ; /// re liarvlay and DarliuijtDU, 11 U. C. Q. B. 470; Briip/iij (iiulGdii'ino'jur, 2(5 C. P. 290 ; see also Owyiinr v. lievs, 2 U. C. P. K.'282. .Slight vai iancea in tlie use of corporate names, where substantially correct, liave been held inimaterial even in matters of contract. JJrock DUtrict v. Buvxn, 7 U. 0. Q. B. 471 ; Th>'. Tnnt ami Frankf,jr/ v. HarrUon, 18 U. C. il B. G03 ; Brni^t'. V. Croinar, 22 U. C. Q. B. 321. See also Mmjor ami HvnjrMes of L tin HI' Uvii'm,\Q Rep. 120, 122; Mai/or of' ('arli.-"J ; ai)prove(l in St. Louis JlonfiUal v, Wilti(i„i.s, I<» Mo. fc v. Jiuukle, 9 Jolins 147. A Municipal Corporation has no power to change its name. As the Corporation is tlic creature of the Legislature, it nuist retain tho name given to it by the Legislature until the Legislature otherwise provide. See T/ir Qitcen v. The Iie(ji»trar of Joint Stock CnwiKtnit'.^, 10 0- P- 83!) ; Kpmojxil CharitahU' Society v. Episcopal Chnrcli, 1 I'ick. .S72 ; see further, The Kiinj v. Norrin, 1 L«l. Raym. 3.37 ; The Quern v liainff>* of Ipswich, 2 Ltl. Raym. 1232, 1238, 1239. ((/) See note d to s. 3. (h) See note /to s. 5. (j) See note d to sec. 3. (k) The Council is not the Corporation, but the legislative and executive body of the Corporation. It tiuctaates from year to year, while the corporate body is, as it were, immortal. See Harrimn v. WdliauiH, 3 B. & C. 162 ; The Queen v. Paramore, 10 A. & E. 286 ; B.8.] NEW CORPORATIONS. 13 Division I. — Villaoes. When a Village may be incorporated. See. 9. HestricttcHS as to area of Towns and Vilhufes. Sec. 10. Arrangements with respect to assets and debts of l\nvnships. hec. 11. Case of Village partly in two Coinitles jrrovided for. Sec. 12. Arrangement as to debts ivheu Village transferred from one County to another. Sec \Z. Additions to area. Sec. 14. Jieductions of area. Sec. 1.5. T/ic Queen v. York; 2 Q. B. 850. Its pdwcrs are limitcil. It hiva no other powers than such as arc expressly granted, or such as are necessary to carry into effect the [lowers exitressly granted. Per Jewctt, J., in Hodiies v. Buffalo, 2 Deiiio, 112. .See also 1h re Uosn and York, 14 U. C. C. P. 171. VUij of PlaceeUle v. Wlleuj', 2 Withrow, 63. See further Lotvelt v. Cifi/ of Boxtoii, \'^ Am. .'iJ) ; The State ex r' -"t- ing their constituents to unnecessary and oppressive taxatioii. IVr IVdtt, •!., in I/alxtead v. Maijor of' Sein York, .'I Comst. 4;{'i . H'.e further, llood v. Lynn, 1 Allen (Mass.), lO.'i ; (.f'rrri/ v. Slonehain, Jh. ,'U9 ; Cornell v. Guilford, 1 I>')nio, olO; Claliin v. llopklnton, 4 dray, 502 ; Ta^h v. Adanus, 10 Cash. 2r>2. I'he action of Muni- cipal ('orporations is to bo held strictly within the limits pre- scribed by the statute. See note / to sec. 14, .and notes to sec. 277. Within these limits they are to be favoured by thy courts. See Smith v. Mtuldinon, 7 lud. 8(5 ; Kyle v. Afalin, 8 Ind. 34, 37. Parties dealing with the agents or officers of a Municipal Corporation must at their peril take notice of the limits of the jxtwi^rs. Mtiryhtml ex rel Baltimore v. Kirkley et al., 29 .Md. 85 ; S. C. 2 \V'ithrow^ 4()(J. It is sometimes supposed that memliers of a Municipal Council exceed- ing their corporate powers may be held personally liable for their acts. 8ee Thoinan v. WiUon et al., 20 U. C. Q. U. 331. IJut assuming a want of power on the part of the Council, it does not follcw that the members of t)ie Council are personally liable on the cotitniet. L'a^t yitsouri V. Horsemnn, 9 I. C. C. 1'. 189. Tlic fact ot an agent entering into a contract without .luthoiity d'les not, //'/• m-. render bim liable on the cjntraet. Jinkiim v. Jiutrliinxon, 13 Q. B. 744 ; Lewid V. Nkhulxon, 18 Q. B 3Q2; (Jiirr v Jach.ion, 7 Ex. ;^'S2 ; Mil' y. Hawker, L. K. 9 Kx. SW; S, €. h. iL 10 Ex. 92. But an a;.eni assuming to have an authorrey w4«47 ; Warlov^ v. JJarri.-ned as among the inhabitants of such Town or Village; and the land occupied by sti'e(!ts or p\d)lic setitions for the incorporation {;f tlie Village ai-e jtrewnted, th(! Councils do not agree to which County the Village shall be annexed, the Wardens of the Countii's shall memorialize the Lieutenant-Governor in Council, s(!tt:ng forth the grounds of ditf'erence between the Councils ; and thereupon the Lieutenant-Governor shall, by proclamation, annex the Village to one of such Counties, (r) 3G V. c. 48, s. 10. 2. In case the Wardens do not, within one month next after the exi>lration of the six montlis, memorialize the Lieutenant-Governor as aforesaid, then one hunilred of the freeholders and householders on the census list may ptitition the Lieutenant-Governor to settle the matter, and theveupoix the Lieutenant-Governor shall, by j)roclamation, annex the incorporated Village to one of the said Counties, (a) 36 V. c. 48, s. 11. 13- In case any locality is, under the twelfth section of this Act, detached from one County and annexed to another, (7) See s. 27 and notes. (r) The annexation is, in the first instance, left to the County Councils jointly. If they ilo not pass the necessary By-law within six months from the time the petition for tho incorporation is pre- sented, the Wardens are to notify the Lieutenant-Governor in Council thereof, and he is then to cause the annexation l)y proclamation. As to the exercise of delegated legislative powers, see note I to sec. 9. (h) This is a necessary provision, in the nature of a delegated legislative power. (See note t to sec. 9). The previous section i>ro- vides against neglect or failure to agree on tlie jiart of the Counties. In either event, it is made the duty of the Wardens to memorialize the Lieutenant-Governor in Council. But as the Wardens ni.iy neglect to do as required of them, power is, in that event, given ')y this section to one hundred of the freeholders and househohlors on the census list to petition the Lieutenant-Governor "to settle the matter. " 8. 13.] TRANSFERRINO LOCALITY OP VILLAGES. ir t 5 the Council of tho County to which *' ' mlity in annexed on« county ixnd the Council of the Village shall afti^, with the Council totnoUwr. of the County from which such locality is detached, as to the amount (if any) of tho County liaMlitics which should bo Itorne l>y the locality so detached, and tho times of payment thereof, (a). 2. If tho Councils do not agree within three months of the separation in resjtect of the said matter, the same shall 1)0 (li>tennin(!d by arltitmtion under this Act; (b) and the jiiiiouat (if any) so afjn'ed or determined shall become a debt of the County to which tli« locnlity is att^iched, and such locality shall, until the said aniotuit lias been paid by the pro- ceeds of such rat« of Waferloo, 8 U. C. C. V. SfiS ; Connlyof WeU Hiiiltoiiv. Township of Wihnof, 17 V. V. Q. K 82; WiiK/hum v. J'ort- haul, 4 Mass. 384; Ifdmpxhire v. Frutikliu, 1(1 Mass. 15, Sir, PluukrU' a i'vi'ik V. Crawford, 27 Teun. St. 107 ; -V« »" London v, MontviUf, 1 Hoot (Conn.) 184; North Yarmouth v. Sl:illiii ^^ '<(' i 6^ m THE MUNICIPAL MANUAL. [S. U. :i ■! ' . ' ■ .il . ;>.! \i Addition to villages by Lieutenant- Governor. to the Municipality which is liable for the debt * n account of which the rates were imposed, (d) 4. Where the said Councils do not agi'ee as aforesaid, the Lieutenant-Governor in Council may, before proclamation has been made, and upon the [)etition of a majftrity of tlio resident froeliolders and householders of the said Village, and with the assent of at least two of the Coiuicils of the Town.sliips in which the said Village is situate, aimul the incorporation of the said Village and restore the same to its former position as an unincorporated Village, and the same shall thereupon be reinstated to its former position to the same extent as if no proceedings for incorporatior^ had oxev liecn taken, (e). 37 V. c. IG, s. 1. 14. In case the Council of an incorporated Village petitions the Lieutenant-Governor to add to the Ijoundaiics thereof, (/') the Lieutenant-Governor may, subject to the provisions of section ten of this Act, by proclamation add to the Village any part of the localities adjacent, which, from the proximity of the streets or buildings therein, or the })robable future {(l) This is the machinery provided by the Legislature for the purpose of carrying out the purpose of the section, v.hich is the payment to tlie County from which tlic locality is detached, the amount of liability agreed upon or ascertained under the section. (e) The w'ithdrawal is made conditional on the payment or the proportion of liability for which the locality is liable to the Coimty from which detached. Therefore the non-payment of that amount may, ixnder the section, be followed by the restoration of all things as they were before the incor])oration of the new Village and annexation of it to a County other than that in which originally situate. The exercise of such powers is, as explained in note I to s. y, the excercise of legislative power. if) Municipal Councils are local governing bodies. The localities over which their jurisdiction extends ought to be certain and well defined. They may pass l)y-laws for ascertaining and establishing the l)oundary lines of the Municipality according to huv, in case the same has not been done, and for the erection and preservation of duralde monuments. Sub-s. 35 of sec. 4G1. See CntfuKf v. Stone, 7 Vt. 471 ; Oray v. Sheldon, 8 Vt. 402 ; Pierce v. Carpenter, 10 Vt. 480; see also Hamilton v. McXeW, 1.3 Gratt. (Va.) 389; Baah v. Mnn/lantl, 7 Md. 483 ; Green v. CIte,J:, 5 Ind. 105 ; Elmendorf v. New York, 25 Wend. 693 ; People v. Carpenter, 24 N. Y. 86. As to river boundaries, See Palmer v. IHrk<, 6 .Tohns. Cas. 133 ; State v. Canterlnmj, 8 Fost. (N. H.) 195; State v. Gibnanton, 14 N. H. 467; Cold Sprlwj.'* V. Tolland, 9 Gush. 492 ; Pratt v. State, 5 Conn. 388 ; Hayden v. xYoycs, Ih. 391 ; Re Fiirmnn Street, 17 Wend. G49 ; Udall V. TniHtees of Brooklyn, 19 Johns. Cas. 175; Jonex v. Soulard, 24 How. 41. [s. 14. jcount of 'saitl, tlie utioii lias ) resident with the isliips in iration of position liereupon ent afj if iken. (e). petitions eveof, (/) /isious of Village proximity jle future re for the ich is the [ached, the etion. nt or the [he (bounty ,t amount all things lage and originally note I to localities and well kablishing case the h'ation of Iv. Stoni>, W, 10 Vt. JRaah v. sudor/ V. 86. As ; s'^tate v. H. 467 ; Inn. 388 ; UdaU \lanl, 24 s. 15.] REDUCING AREA OP VILLAGES. 19 exif^enciea of the Village, it may seem desii-able to add there- to ; (g) and in case the territory so added belonged to another Coiintv, it shall thenceforward, for all purposes, cease to belong' to such other County, and shall belong to the same County as the rest of the Village. 36 V. c. 48, s. 12 ; 40 V. c. 7, Sched. A (168). • - 15. The County Council of any County or Union of deducing Counties upon the application by petition of the Cor- viUages. poration of any incorporated Village, whose oiitstanding obligations and debts do not exceed double the net amount of the yearly rate then last levied and collected therein, may, ill their discretion, by by-law in that behalf reduce the area of such Village by excluding from it lands used wholly for fai-ming purposes, {h) 2. Such by-law shall define, by metes and bounds, the new New limit limits intended for such incorporated Village, (i) defined 3. No incorporated Village shall by any such change of And popuia- ibovmdaries be reduced in population beloAV the number of duced°below seven hundred and fifty souls, (j) 750, 4. That the municipal privileges and rights of such Village ^'°'" P^?''^'; shall not thereby be diminished, or otherwise interfered with village as respects the remaining area thereof. (^•) 36 V. c. 48, s. 13. "■^'^'''sed. (g) The power to add to boundaries is one that should exist some- where. It is, properly sneaking, a legislative power. See note I to sec. 9. But by this section, subject to the provisions of sec. 10 of this Act, it is vested in the Lieutenant-Governor in Council. (A) This is the opposite of the power of extension. It, like the power of extension, is, properly speaking, a legislative power. See note I to sec. 9. But while the latter is vested in the Lieutenant- Governor in Council, the power of contraction is by this section subject to certain checks, after mentioned, vested in the County County Council. (i) See note f to sec. 14. (j) This is the number made necessary for the incorporation of a Village. See sec. 9. [h) There cannot exist in the same locality two municipal bodies exercising similar powers. Each Municipal Council, no matter what its area, is independent, or ought to be independent, of every other similar Municipal Council. See The King v. Passmore, 3 T. R. 243 ; The King v. Amery, 2 Bio. P. C. 336 ; Patterson v. Society, etc., 4 Zabriskie, (N. J.) 385; Milm v. Mayor, 13 La. 69; Hamilton v. McNeil, 13 Gratt. (Va.) 389 ; People v.' Farnham, 36 III 662. ^J' 20 M^A !■■ i Ml v Census of towns and Tillages. Town con- taining over 15,000 inhabitants may be erected into a city ; and village con- taining over 2.000 into a tovn. Conditions. Ist,- Notice to be given. THE MUNICIPAL MANUAL. [SS. 16, 17. Division II. — Towns and Cities. Tow7is and Cities, how forviedy and limits. Sees. 16-18. Restrictions as to area of Towns. Sec. 10. Wards^ and additions to area. Sees. 19-21. Towns, how wit/ulrawn from and re-united to jurisdiction of of County. Sees. 22, 23. 16. A census of any Town or incorporated Village, may at any time be taken under tlie authority of a by-law of the Council thereof, {l) 36 V. c. 48, s. U. 17. In case it appears by the census retiu'ii taken vmder any such by-law, or under any statute, (in) that a Town contains over fifteen thousand inhabitants, the Town may be erected into a City ; and in case it appears by the return that an in- corporated Village contains over two thousand inhabitants, the Village may be erected into a Town ; [n) but the change shall be made by means of and subject to the following pro- ceedings and conditions : — 1. The Council of the Town or Village shall, for three months after the censiis return, insert a notice in some news- paper published in the Town or Village, or, if no newspaper is published therein, then the Council shall, for three mouths, ])Ost up a notice in four of the most public places in the Town or Village, and insoi-t the same in a newspaper published in the County Town of the County in which the ToAvn or Village is situate, or if there is no such newspaper, then in the news- paper published nearest to the said Town or Village, setting forth in the notice the intention of the Council to apply for the erection of the Town into a City, or of the Village into {I) This and the following sections are designed to facilitate the formation of Villages, into Towns and Towns into Cities, whenever the population is sufficiently increased to admit of the changes. See sec 17. The census authorized und. r this section may be taken "at anytnne." In this respect it ditlors from a census taken vmder a statute, which is usually required to be taken at fixed ijeriods. If the necessary population be sliown ])y a census taken under a statute, the necessary action as to formation may also be had. See sec 17. (m) See Dom. Act 33 Vict. cap. 21, as amended by 34 Vict. cap. 18, in respect to the Dominion Census. (n) The population for a Village is 750 for a Town 2,000 for a City 15,000 8. 17.] ERECTING TOWNS INTO CITIES. 21 a Town, and statmg the limits intended to be included therein; (o) 2. The Council of the Town or Village shall cause the census returns to be certified to the Lieutenant-Governor in Council, under the signature of the head of the Corpora- tion, and under the corporate seal, and shall also cause the publication aforesaid to be proved to the Lieutenant-Governor in Council ; then, in the case of a Village, the Lieutenant- Governor may, by proclamation, erect the Village into a Town by a name to be given thereto in the proclamation ; (j)) 3. In case the application is for the erection of a To^vn into a City, the Town shall also pay to the County of which it forms pai-t, (q) such portion, if any, of the debts of the Coimty as may be just, or the Council of the Town shall agi'ee with the Council of the County as to the araoimt to be so paid, and the periods of payment with interest from the time (o) Two things are here to be observed ; first, the contents of the notice ; second, the mode of publication. The notice should not only set forth the intention of the Council to apply for the erection of the Village into a Town, or of the ToM'n into a City, biit state the limits intended to be included therein. The notice should, for three months after the census return, be inserted in some newspaper pub- lished in the Village or Town. If no such newspaper, the notice should be posted up for the three months in four of the most public places in the Village or Town, and inserted in a newspaper published in the Coimty Town, or, if no such newspaper as last mentioned, then in the newspaper published nearest to the Village or Town. See, as to the notice necessary in the case of the alteration of School boundaries, Neas v. Saltjket, 13 U. C. Q. B. 408 ; In re Lev v. Clark, 13 U. C. Q. B. 435 ; In re Taylor v. West Williams, 30 U. C. Q. B. 346 ; Patterson v. Hope, 30 U. 0. Q. B. 484 ; see further section 286 of this Act, and notes thereto. ip) Two things are here made necessary ; first, that the census returns should be certified to the Lieutenant-Governor in Council ; second, that proof of the publication of the notice referred to in the last note should be adduced to the Lieutenant-Governor in Council. The certificate as to the census must be not only under the seal of the Corporation, but under the signature of the head of the Corporation. No provision is made as to the mode of proof of notice, whether by certificate or affidavit ; this is left entirely to the discretion of the Lieutenant-Governor in Council. In the case of the erection of a Town into a City, there must be also proved the settlement of debts between the Town and the County of which it forms a part. See next sub-section. As to the exercise of delegated legislative powers, see note I to sec. 9. {q) A City, for Municipal purposes, becomes a Ooimty in itself. Hence the necessity for the adjustment of a County debt before a separation takes place. 2ncl. Census returns to be certifleU and publication of notice proved. Village may be made a town by pro- clamation. Srd. Exlst- infc liebts to lie adjusted In case of a town to be made a city. if 22 THE MUNICIPAL MANUAL. [SS. 18, 19. m'm'-- Limits of such new town or dty. Wards. I '1 I! 'i: of the erection of the new City, or in case of disagreement the same shall be determined by arbitration under this Act ; Town may (r) and upon the Council proving to the Lieutenant-Governor oTty' by* pro- ^^ Council the payment, agi-eement, or arbitration, then the ciamation. Lieutenant-Governor may, by proclamation, erect the Town into a City, by a name to be given thereto in the proclama- tion, (s) 36 V. c. 48, s. 15. 18. The Lieutenant-Governor may include in the new Town or City such portions of any Township or Townships adjacent thereto, and withiia the limits mentioned in the aforesaid jiotice, (t) as, from the proximity of streets or build- ings, or the probable future exigencies of the new Town or City, the Lieutenant-Governor may consider desu'able to a tach thereto. (?/,) 36 V. c. 48, s. 16. 19. The Lieutenant-Governor may divide (v) the new Town or City into Wards, with appropriate names and bounda- ries, (x) but no Town shall have less than three "Wards, and no Ward in any such Town or City less than five hundred inhabitants (y). 36 V. c. 48, s. 17. (r) See sec. 367 and following sections. (s) Each Municipality should have a name to distinguish it from all other Municipalities. The power is here conferred, not only to create a new Municipality, but to give it a name. The name can only be changed by the Legislature. No Municipal Corporation has power to change its name. See note/ to sec. 4. (<) See note o to sec. 17. («) Municipalities being localities must have boundaries to sepa- rate them from other similar localities, see note/ to sec. 14, and with- out express legislative authority. Municipal Councils have no power to acquire lauds beyond their local limits. North Hempniead v. Ilempslead, 2 Wend. 131 ; Denton v. Jackson, 2 Johns. Ch. 336 ; Biky v. Rochester, 9 N. Y. 64 ; Chambers v. St. Louis, 29 Mo. 643 ; Oirard v. New Orleans, 2 La. An. 897 ; Concord v. Boscawen, 17 N. H. 465 ; see further s. 277 and notes thereto. Township Councils were formerly authorized to divide Townships into Wards. See Reg'ma ex ret. Woodward v. Ostrom et al., 2 C. L. Chamb. 47 ; In re Loucks v. Russell, 7 U. C. C. P. 388. (v) See note I to sec. 9. (x) See note/ to sec. 14. (y) This section has no reference to an Incorporated Village. The population of such a village may be no more than 750. See sec. 9, whereas the minimum population made necessary for a Ward under this section is 500. A Town requires to have 2000 inhabitants. See note n to sec. 17. But here it is declared that no Town shall have less than three Wards, and no Ward have a less population than 500 inhabitants. gS. 20, 21.] EXTENSION OF CITIES OR TOWNS. 23 20. In case two-tbirds of the membei's of the Council of a New diTiiion City or Town do, in Council, (a) before the lifteenth day of citietand" July in any yoav, (/>) })a.ss a i-esohition affirming the expe- ^^wns. diency of a new division into Wards being made of the City or Town, or of a part of the same, (c) either -within the existing limits or with the addition of any pai-t of the locali- ties adjacent, which, from the proximity of streets or buildings therein, or tlie probable future exigencies of the City or Town, it may «eem desiraljle to add thereto respectively, or the desirability of any addition being made to the limits of the City or Town, the Lieutenant-Governor may, (d) by proclamation, divide the City or Town or such part thereof into Wards, as may seem expedient, and may add to the City or Town any part of the adjacent Tov/nship or Town- ships which the Lieutenant-Governor in Council, on the city "or town. f^Tounds aforesaid, considers it desirable to attach thereto, (e) 36 V. c. 48, s. 18. 21. In case any tract of land so attached to the Town or where land City belonged to another Coiinty, the same shall thence- J^^^jjg *° forward for all purposes cease to belong to such other County, belonged to power lead V. 336; Ho. 543 ; 17 N. Councils 1. See 47; In The e BBC. 9, under ts. See all have ;han500 (a) This, it is apprehended, means a majority of two-thirds of the whole number of Councillors, and not merely two-thirds of a less number present at the meeting, though the number present be suffi- cient to form a quorum for ordinary business. {h) It ought to be observed that the time is here expressly limited. If the act authorized, be done after the time limited, it would, it is apprehended, looking at the subject matter of the section, be a nullity. (c) A Municipal Council ordinarily does public acts through the instrumentality of a By-law. No By-law is, however, here neces- sary. A formal resolution is all that is required. Oiie difference between a By-law and a resolution is, that the former must bear the corporate seal, and tlie latter need not do so. See sec. 281 and notes thereto. {(l) A change in one or more Wards of a City or Town, without disturbing the remaining Wards, is contemplated. (c) This' admits of tracts of adjacent ToAvnships being added to Cities or Towns and annexed to specific AVards. It would seem to be in the discretion of the Lieutenant-Governor to fix or define the Wards, or make any necessary alterations therein, but it is probable that th» wishes of the Town or City Council would be complied with by him. It may therefore be important that the resolution should explicitly state the changes or additions deemed expedient by the Council. No published or other notice of the intended application is required. 24 THE MUNICIPAL MANUAL. [8. 22. another oonnty. Town m5T iM with- drawn from JurlBdictlon of county by by-law on certain con- dltioni. Amount to be paid by town to county for ezpenroa of sdministra-] tion of justice to be lettled by agreement or arbitral tlon. Matters to be con- sidered in settling the same. and bhall belong to the same County as the rest of the Town or City. (/) 36 V. c. 48, s. 19. 22. The Council of any Town may pass a by-law to with- draw the Town from tlio jurisdiction of the Council of the Coirnty within which the Town is situated, upon obtaining the assent of the electors of the Town to the by-law in manner provided by this Act, subject to the following provisions and conditions : (g) 1. After the final passing of the by-law, the amount which the Town is to pay to the County for the expenses of the administration of justice, the use of the Gaol, and the erection and repairs of the Registry Oflice, and for })roviding books for the same, and for services for Avhich the County is liable, as required by and under the provisions of any Act resj)ecting the registration of instruments relating to lands, as well as for the then existing debt of the County, (7t) if not mutually agi-eed upon, shall be ascertained by arbitx'ation imder this Act ; (i) and the agreement or award shall distin- guish the amount to be annually paid for the said expenses, and for the then debt of the County, and the number of years the payments for the debt are to be continued ; 2. In adjustiiig their award, the arbitrators shall, among other things, take into consideration the amount previously paid by the Town, or which the Town is then liable to (/) Towns and Cities, for some purposes, continue parts of the County in which situate. See sec. 22. And this provides for the annexation, for all purposes, of tracts detached under the operation of the foregoing section. {(f) The exercise of the powers of the Council is made subject to the assent of the electors, and, even with the assent of the electors, is further subject to the provisions and conditions in this section also contained. {h) The amount to be paid by the Town to the County is made up of the foUowings items : — 1. Expenses of Administration of Justice. 2. Use of the Gaol. 3. Erection and repairs of Registry OfiBce. 4. Books for the same, and for services for which the County is liable, as required by any Act respecting the registration of instru- ments relating to lands. 5. The then existing debt of the County. (») See 8. 367 et seq. s. 22] WITHDRAWAL OP TOWN PROM COUNTY. » pay for the construction of roads or bridges by the County, without the limits of the Town ; and also what the County has paid, or is liable to pay, for the construction of roads or bridges within the Town ; and they shall also ascer- ttiin and allow to the Town the value of its interest in all County property, except roads and briilges within the Town ; (;) 3. When the agreement or award has been made, a copy of the same, and of the by-law, duly verified by affidavit, shall be transmitted to the Lieutenant-Governor, who shall thereupon issue his proclamation, withdrawing the Town from the jurisdiction of the Council of the County ; (k) 4. After the proclamation has been issued, the offices of Eeevo and Deputy Reeve or Deputy Reeves of the Town shall cease ; and no by-law of the Council of the County thereafter made shall have any force in the Town, except so far as relates to the care of the Court House and Gaol, and other County property in the Town ; and the Town shall not thereafter be liable to the County for, or be obliged to pay to the County, or into the County treasuiy any money for County debts or other purposes, except such sums as may be agreed upon or awarded as aforesaid ; (I) 5. After the lapse of five years from the time of the agreement or award, or such shorter time as may be stated in the agreement or award, a new agreement or a new award may be made, to ascertain the amount to be paid by the Town to the County for the expenses of the administration of ij) The rule laid down is a fair one. Where the Town has con- tributed towards building roads or bridges outside of its limits, credit is to be given ; but when the roads, &c., are within the limits, it is to be debited with a fair proportion of the outlay. In addition, the Town is to receive credit for the value of its interests in all County property, except roads and biidges within the Town. (k) There is no time limited in any year within which the applica- tion to the Lieutenant-Governor is to be made. (I) The efTecta of withdrawal are here explained. 1 . The offices of Reeve and Deputy-Reeve, necessary only as re- prcaentatives of the Town in the County Council, are to cease. 2. No By-law of the County (except so far as relates to the care of the Court House and Gaol, and other County property in the Town) is to have any force in the Town. 3. The Town is not to be liable to the County for, or be obliged to pay into the County Treasury, any moneys (except as agreed upon or awarded) for County debts or other purposes. 4 Copy o( agreement or award to bo lent to the Lieut. Governor. {Proclama- tion. Effect of Buch pro- olamation. Now agree- ment or award after five jeara. l\ 38 THE MUNICIPAL MANUAL. [s. 23. justice, tlio use of the Gaol, erection and rejmiiH of the Re<,astiy OiKce or offices, the providing of books for the same, and for services for which the County is liabh;, as reiiuired by and \inder the provisions of any Act respecting the registration of ijistruments rehiting to hxnds ; (in) Prop«'fy 6. After the Avithdrawal of a Town from the County, all drawal. jiropei-ty theretofore owned ])y the County, except roads and Ijridges withm the Town, shall remain the i)roperty of the Coimty. (n) 36 V. c. 48, s. 20. 23. The Council of any Town which has withdrawn from a County, or union of Counties, (o) may, after the expiration of five years from such withdrawal, pass a by-law (to be assented to by the electora in manner ])rovided for by this Act in rcs])ect of by-laws for creating debts) to re-unite with such County or Union of Counties. (;>) Proviso. that 2. The Said By-law shall have no eflFect unless ratified and by-law shall confirmed by the Council of the County or Union of Counties effect until from which the said Town had previously withdrawn, within councu of *^^^ months after the passing of the said By-law, (7) and un- county, 4c. less the terms and conditions which the Town shall pay, per- "TowB may aftor flvo years from withdrawal pasit by-law for i-e-unioD with county. («i) Most of the services mentioned are County Services, in which the To^\^l, though withdrawn from the County, must be continuously interested. But the nature and vahie of the services rnay from year to year vary ; hence provision is made for a settlement every five years, ludess a shorter time be stated in the agreement or award last made. (n) All re.1l property of the County, with the exceptions named in this sul)-section continue the property of the County notwithstanding the withdrawal. The only exceptions are " roads and bridges" within the Town. (0) See sec. 22. {p) In some cases it has been found that the withdrawal of a Town from the jurisdiction of the County in which situate, was not to the pecuniary advantage of the Town. But until this provision there could not be a re-union without an Act of Parliament. See note I to sec. 9. (q) It is in the power of a Town to withdraw from a County with- out the assent of the County. But after withdrawal there can be no restoration of the union m the absence of mutual assent. That assent is to be signified by the naaaing of By-laws by each of the municipal bodies interested. The By-law of the County, to be operative, must be passed within six months after the passing of the By-law of the Town. The initial proceeding is to be had by the Town. 8, 24.1 ATTACIIINO NEW TOWNSHIPS TO COUNTIES. 27 form, or be sultject to, have been previously ngreed iipou or settled in manner following, (r) that is to say : — ^ Before the said by-law is confirmed by the Council A»"i b«ft>ro of the County, the Councils of the Town and County shall Boa, the doteniiine by agreement the amounts of tlio del)ts of the X°j"^'J«'of Town and County respectively which shall be paid or borne town and by tlio County after tlie re-union, or what amount shall be 5c.s7.orUToly payiible by a special rate to be imposed upon the ratej)ayers ^'>'»ii b« of the Town, over and above uU other County rates, and all other matters relating to property, assets, or advantages consequent ui)on such re-tinion, and as aliocting the County or Town resi)ec lively, and such other terms or conditions as appear just shall be settled by such agreement ; and in default of such agrcniient being come to within three months uftei' tlio passing of the By-law by the Council of the Town, the said matters shall be settled by arbitration, as provided by this Act. (») 36 V. c. 48, s. 21. ■|i! DI^^SI0N III. — Townships. Townships, hoio attached to other Municipalities . Sec. 24. Wlien junior Tcivnship may become a sejmrate Corporation. Sees. 25-26. Arrain/enmit of joint assets and debts. Sec. 27. Xeio Tvionships, union of. Sees. 28-29. Henioritjj of Toioriships. Sees. 30-31. 24. In case a Township is laid out by the Cro^vn in territory forming no part of an incorporated Coimty, the Lieutenant-Governor may, by proclamation, annex the Town- ship, or two or more of such Townships lying adjacent to one another, to any adjacent Lncorijorated County, and erect the same into an incorporated union of Townships with some other Township of such County, (a) 36 V. c. 48, s. 22. (r) The withdrawal could only take place after certain financial arrangements, made to the satisfaction of both parties, or, if unable to agree, by arbitration. See sec. 22. The re-union is also made to depend upon a settlement of the financial matters specified. («) See sec. 367 and following sections. (a) The ordinary Municipal Divisions are Counties, Townships, Towns, and Villages. Of these the County is the major municipality, New town- Blii))s beyond limits of incorporated county may be attached to a county by proclamft- tion. r 28 THE MUNICIPAL MANUAL. [ss. 25, 26. llT' IS I', Junior townihip oonUlntnif lOOftoo- holden, Ac, may bo aoparatod from uiiioo. In what CBAoi junior townHhip eontaliilnir 60 frtiehold- on, Ac, but less than 100, niny bo Beparatud from union, 26- WliPn a junior Township of an incorporated Union of Townsliips has one hundred resident freeholders and houH<erty, or of both. The disposition of the real property is pro- vided for in the preceding subsections. Its situs determines its o'waiership. But as regards assets other than real jjroperty its disposition is necessarily made to dejjtaid on the agreement of the Townships, unless clothed with a trust of some kind. See North Yaiinouth v. Skellini/s, 45 Maine 1.3.S ; Harrison v. Briyeton, 16 Mass. 16 ; Milwaukee v. Milwaukee, 12 Wis. 93. (?) As may he just. This has reference to more than a mere equali- zation of tlie assessment between the different Municipalities. In re Howick and Wroxeter, 12 U. C. L. J. N. S. 64. So long as tlie Townships remain iinited, they constitute one Municipality, as much as the various Wards of a City constitute one Municipality ; but when United Townships seiuarate, there are matters which require adjustment, according to what is right aiid fair, between the parties. It is in the division and disposal of the property and m the provisions which the liabilities of the Union may require, thtit on the dissolution one may have to pay to the other such s m of money as may be just. This amount is, in the first instance, if possible, to be determined by mutual agreement. On the separation of three Townships into two Municipalities, the two Corporations executed an instrument whereby one agreed to pay to the other a certain sum as soon as certain non-resident rates theretofore imposed should become available. It was subsequently discovered that these rates had been illegally imposed, and that the supposed fund would never be available. Its supposed existence had been an element in determining the amount to be paid. It was held that the Corpora- ss. 28, 29.] UNION OF NEW TOWNSHIPS. 31 matters in dispute shall be settled by ai-bitration under this Act;0') 6. The amount so agi-eed upon or settled shall boar interest from the day on which the Union was dissolved ; and shall be provided for by the Council of the indebted Township lilce otlier debts; (k) 3G V. c. 48, s. 25. 28. In case a Township is laid out by the Crown in an incorporated County or Union of Counties, or in case there is any Township therein not incorporated and not belonging to au incorporated Union of TowTiships ; the Council of the County '^r United Counties shall, by by-law, unite such Tomiships! for municipal purposes, to some adjacent incor- porated Township or Union of Townships in the same County or Union of Counties. (/) 36 Y. c. 48, s. 27. 29. In case of there being at any time in an incorpoi-ated County or Union of Counties two or more adjacent Town- ,slii[iH not incorpoi-ated, and not belonging to an incorporated Union of Townships ; and in case such adjacent Townships have together not less than one hundred resident fi'eeliolders and boiiseholders Avithin the same, the Coimcil of the County or Union of Counties may, by by-law, form such Townships Amount Hj?re€d to be pnid shall bear iutercat. Now town- 8lllp8, to., within the limits of incorporate)] counties, to be united to adjacent townships, and how. Township nut incorpo- rated or uuitcd may he formed into unions. I .■ tion to wliicli the money was made payable was not entitled to have the agreement reformed so as to make the money payable by the otlier absolutely. Arrati v. Amabel, 17 Grant 1G3, reversing S. C. 15 Grant 701. ij) So far as the Act directs a distribution of property, the Act must be followed. The Corporations cannot of themselves make an arrangcraent contrary to the Act of Parliament, but in matters where the Act is silent as to the particular division of property or adjust- ment of assets, it is in the power of the Corporation, by amicable arrangenient or through the medium of an arbitration, to adjust tlie same. Seo Welliivjton v. Wilmot, 17 U. C. Q. B. 71. {Jc) Li the absence of an agreement to the contrary, the rate of in- terest-would be six per cent, per annum. See sec. 8 of 0. S. C. c. o8. I'his is besides the rate of interest to be paid when a balance is found due by one County to another after a separation. See sec. 42. (0 There are in some Counties tracts of land not surveyed or laid out in Townships, and this sec ;ion requires the County Council of any such County to unite new Townships when laid out with some adjacent Township or Towii^hips, in order that the inhabitants may at ouce enjoy ^Municipal rights and be subject to Municipal liabilities. See note u to s. 18. This provision is made in lieu of an Act of Parliament, which would be otherwise necessary in such a case. See note I to 8. 9. V 't THE MUNICIPAL MANUAL. [ss. 30-32. Benlority of suoh tnwn- shipi, how regulated. !i r ": into an independent Union of Townships. (w») 36 V. c. 48, B. 28. 30. Eveiy proclamation or by-law forming a Union of Townships shall designate the order of seniority of the Townships so united ; and the Townships of the Union shall be classed in the by-law according to the relative number of freeholdei-s and householders on the last revised assessment roll ; or if there be no such revised assessment roll for any of such Townships, then the order of senioi'ity shall bo de- termined by the proclamation or by-law, as the Lieutenant- Governor or County Council may think fit. (o) 36 V. c. 48, 8. 29 ; 40 V. c. 8, s. 47. Townships 31. In case the United Townships are in different Counties couilucs!"* ^^^ by-law shall cease to be in force whenever the Union of the Counties is dissolved, (^j) 36 V. c, 48, s. 30. New coun- ties how ■hi Division IV. — Of Counties. Counties, how formed. Sec. 32. Senloritif of. Sec, 33. Laws applicable — Venue in Judicial Proceedings. Sec. 34. 32. The Lieutenant-Governor may, by proclamation, form into a new Couuty any new To^vnships not within the limits (/«) Under this section Unions may be formed of two or more new To^^^lships, instead of annexing them to old Townships. This can only be done when the joint population of resident freeholders and householders is not less in number than one hundred. The power is a delegated legislative power. See note I to s. 9. (o) The order of seniority of United Townships, when there are re- vised assessment rolls, is to be declared in the proclamation or by-law, as the case may be, and the seniority is to be governed by population, so that tlie more populous Township is to be the Senior Towiiship ; but, if there be no revised assessment roll, then the order of seniority is to be determined by the Lieutenant-Governor by proclamation, or by the County Council by by-law. (p) No case can arise under this section, unless the TTnion has been made by the Council of United Counties of Townships in different Counties of the Union. When such has been done, and the Counties afterwards become separated, provision is made for the separation of the United Townships. The fact that the by-law ia in such an event to "cease to be in force," as near as may be restores the Townships to the situation in which they were before the By-law passed. SS. 33, 34.] LAWS APPLICABLE TO UNION OF COUNTIES. 33 of an incorporated Co\inty, and may include in the new County formed by one or more unincorporated Townships or other adjacent tion, and unorganized territory (defining the limits thereof) not being "^^®^ °' withm an incorporated County, (y) and may annex the new County to any adjacent incorporated County ; (r) or in case there is no adjacent incorporatcJ County, or in case the Lieutenant-Governor in Council considers the new County, or any number of such new Counties lying adjacent to one another, and not belonging to any incorporated Union, so situated that the inhabitants cannot conveniently be united with the inhabitants of an adjoining incorporated County for municipal purposes, the Lieutenant-Governor may, by the proclamation, ei-ect the new County, or new adjacent Counties, into an independent County or Union of Counties for tlie said purposes, and the proclamation shall name the new County or Counties, (s) 36 V. c. 48, s. 31. 33. In every Union of Counties, the County in which the Seniority of County Court Hoiise and Gaol are situate shall be the Senior ties, how County, and the other County or Counties of the iinion shall ""egulated. be tlie Junior County or Counties thereof, (t) 36 V. c. 48, s. 32. 34. During the union of Counties, all laws applicable to Laws appll- Counties (except as to representation in Parliament or the un^jon'of Legislative Assembly and registration of titles) shall apply to counties. 1 s {q) The provisions of this section were originally taken from sec. 35 of Con. Stat. U. 0. cap, 54. They facilitate the formation of Counties and Unions of Connties in ncwly-organizecl tracts of land, without the necessity of legislative intervention. See note I to s. 9. {)') In the event of annexation, it is presumed that the inhabitants of the part annexed would become subject to the liabilities, if any, of the County to which annexed. See Powers v. Wood Countii, 8 Ohio St. 285; Layton v, Ne^o Orleans, 12 La. An. 515; Ariwult v. New Orleans, II La. An. 54 ; Oorham v, Springfield, 21 Maine 58 ; St. Louis V. Allen, 13 Mo. 400; Railroad Co. v. Spearman, 12 Iowa 112; Wade V, Richmond, IS Gratt. (Va.) 683; Korris v. Mayor, tl-c, 1 Swan (Tenn.) 164; Elston v. Craivfordsvilk, 20 Ind. 272; Girard v. Philadelphia, 7 Wall. I; Blanchard v. Bissell, 11 Ohio St. 96; Tlie Queen v. IVie Local Government Board, L. R. 8 Q. B. 227. [>) See note/ to sec. 5. {t) There is not only seniority among United Townships, but seniority among United Counties. While, among the former, seniority is to be determined by population, see sec. 30, among the latter, it is to be determined by the situation of the County Co ^ Gaol. County Court House and rh 34 Venue. THE MUNICIPAL MANUAL. [S. 35. the Union as if the same formed but one County ; (u) and in any civil judicial proceedings the venue shall be so laid, (r) 36 V. c. 48, s. 33. Separation of united counties. Division V. — Of Pbovisional County Coepoeations. Provisional Corporations, formed by separation of junior County. Sec. 35. Provisional officers. Sees. 30, 37. Pro2>erty may he acquired for Gaol and Court House. Sec. 38. Powers of Provisional Council not to interfere with United Cor])oration. Sec. 39. Arrangement of joint assets and debts. Sees. 40-42. Officials, when appointed. Sec. 43. Separation, when com'plete. Sees. 44, 45. Judicial 2»'oceedinerty, assets and liabilities of the Provisional Coi-poration, shiil! be the head and members of the Council, and the officers, by-laws, contracts, [)roperty, assets and liabilities of tlie new Corporation, (r) 36 V. c. 48, s. 44. 46- The dissolution of a Union of Coiinties shall not prevent the Sherilf of any Senior County from jn-ocecding upon and com})leting the execution or service within the Junior County of any writ of mesne or final process in his as tluat Act operated, Clifton was in the County of Gloucester. Jfeld, that after the passing of the Municipal Corporations Act, 5 & 6 Will. IV. c. 76, sees. 7, 8, the Gloucester Justices had no longer the power to make an order diverting a footway in Clifton. The King v. Tlie Juxficea of Gloucestnrshire, 4 A. & E. G80. See further The People V. Morell, 21 Wend. 5f)3 ; The State v. Hartshorn, 17 Ohio 135 ; The fitatii V. Jacobs, lb. 143. («) See note (j to sec. 27. (o) See note h to sec. 27. ip) See note j to sec. 27. ('/) A chose in action formerly v/as not assignable so as to give a right to the assignee to sue in a Court of Law. But the rule was ilitfereut in Courts of Equity. The right of the assignee to sue in his own name is now the same both at law and in equity. 35 Vict, c. 12, Ont. (;•) The Reeves and Deputy Reeves of a Junior County may, under sec. 35, and subject to the jjrovisions of that section, be constituted a Provisional Council, with power, under sec. 37, to appoint Pro- visional officers, iind, under and subject to the provisions of section 44, such Junior County may, by proclamation, be separated from the Union. Hence it is enacted by the section here annotated, that the head and members of the Provisional Council of the Junior County, and the officers, &c., shall be the head, &c., and the officers, &c., of the new Corporation. See note d to sec. 37. Officers and property, &c., con- tinued. Execution and service of process in liands of alieriffat time of separation. ^H 40 THE MUNICIPAL MANUAL. [s8. 47, 4a 'I ' Obango of venuo in ac- tiouH, Ac, after Beparatlon. L.ll: 1 ■ if no special order made, pro- ceedings to be curried on in senior county. Proviso n^ to criminal pro- ceedings. hands at the time of such separation, or of any renewal thereof, or of any subsequent or supplementary writ in the same cause ; or in the case of executions against lands, from executing all necessary deeds and cnnveynnccs relating to the same, and the acts of all such Shei'iH's in that behalf shall be and be held and construed to be legal and \n\\d in the same manner and to the same extent as if no separation had taken ])hvce, but no further, (a) 36 V. c. 48, s. 45. 47. If upon a dissolution of a Union of Countios, there is pending an action, or other civil proceeding in which the venue is laid in a County of the union, the Court in which the action or proce(!(ling is j)ending, or any Judge who 1ms authority to make orders therein, may, by consent of pai-tics, or on heai'ing the parties upon affidavit, order the venue to be changed to the new County, and all records and papers to be transmitted to the projjer officers of .such County, (t) 3G V. c. 48, s. 46. 48. In case no such change is directed, all such actions and other civil proceedings shall be carried on and ti ied in the S(;nior County ; (a) but nothing in this Act containo(l shall be construed to affect the provisions of sections fffty- two, fifty-three and fffty-ffve of the Act of the Parliament of the Province of Canada ]iassed in the session held i:i the twenty-ninth and thirtietli years of the reign of Her prescmt Majesty, and c]ia})tered iifty-one, so far as the same relate to criminal proceedings, (b) 36 V. c. 48, s. 47. (k) This section is' intended in prevent difficulties such as presented themselves for the decision of the Common Pleas in lio-m et al. v. Farewell et al, 5 U. 0. 0. P. 101. (<) The disolution should not affect pending proceedings. But where it is for the convenience of the parties that tlie venue should be changed to the new County, a discretionary power to order the change is here vested in the Court or a Judge. The change may be by consent or without consent, on a proper case shewn by affidavit. See Harrison's C. L. P. Act, sec. 85, and notes thereto. (a) The Senior County is that in which tlie Court House and Gaol, &c., are situate. Sec. 33. The object of this section is to fix the County in which pending proceedings are to be continued, when no order has been made under the preceding section for changing the venue to the Junior County after its separation. (6) These old sections, so far as they relate to Criminal Procedure, are here preserved. The reason is, that Criminal Procedure, xinder the B. N. A. Act, sec. 91, sub-sec. 27, can only be repealed by the Dominion Legislature. , it as "form Place of trial after diaiolu- tion of unloni, to be aa orUerod by tho court or a Judge, If no special order is made. 8S. 40, 50.] FORMATION OF NEW CORPORATIONS. 41 [Sections 52, 53 ani 55 o/* 29-30 V. c. 51, are as fullovja: — 52. If up«" the dissolution of a Union of Counties, there is pending an ftction, information, indictment or other judicial proceotUni,' in which the venue is laid in a County of tho Union, tiie Court in which the actiiin, information or indictment is pending, or any Judge wlio hiw iiuthority to make orders tlierein, may, by consent of parties, or on hearing the parties upon alHdavit, order tlio venue to be ciianged to tlic lu'W County, and all records ami jiajicrs to be traiisiiiitted to the priip'T olHcers of such County ; and in the case of any such imlictnient found at any Court ot Oyer and Terminer and (Jeneral (Jaol Dehvery, any Judge of either of tlie Superior Courts of Conunoii Law may make tho order. 53. In case no such change bo directed, all such actions, informa- tions, indictmcnta and other judicial proceedings shall bo cariied on and tried in tlic Senior County. PEKSONS IK PltlSON. 53. Any person charged with an indictalilo offence, who, at tho i„j)e(able time of the disuniting of a Junior from a Senior County, i.s imprisoned ofToncoH how on the charge in the Caol of the Senior County, or is under bail or to lio dls- recognizance to appear for trial at any Court in the Senior County, po**)*! <>''• anil against whom no indictment has been found before tiie disunion takes place, shall l)e indicteJ«>ct *'?•,'*' *"" to tilt! (li'l>ts and lialiiliticH to which HUch locality was pro- vioii.slv lialilc, in like uianntT as if the Hain(> had li('(>n con- tractc(lor incurn'd by tho new Municipality ; (k) ami, after tho Hcpiuiition of a C'ounty or Township from a Union, each Coiiiitv or Township which formed the Union shall remain suliit'ct to tho (hfhts and liahilities of tho Union, as if tho Hiiiue liiiil hoen contracted or incurred by tho .•e.-pcictivo ('(itintit's or Townships of tla* Union after tho dissolution thereof. (/) 30 V. c. 48, s. 53. 53. After an addition lia.s boon made to a Villa<<(>, Town Debtolnca or City, tlio Villa>,'0, Town or City shall pay to tho Township tension*©/ or County from which tlu? additional tract has been taken, such ii"»"« iiiirt (if iuiy) of tho de!>ts of tho Township or County as may bo just; ('») and incase tho Councils do not, within thi-eo months after the ilrst meeting' of tho Council of tho Mmucipallty to which tho addition has been made, agrco as to tho sum to bo ten- (i) This strengthens tho proviaiona contaiuod in the previous scctii'ii for tlio protectiitn of croditorH. At one time .Tunior Tohti- shiim iiiiil .Junior (Jouuties only, after Hoparation, were still niatlo lialile to existing debts. 'J'ho present section extends tiie liaUility to a iiuwly erected Incorporated Village, i. r., renders it still liable for (lcl)ts (if the I'ownship at tho time of the incorporation of tho Village. A Village made a Town of course remains subject to its (lel)ts, being in effect the same Municipality advanced to a Town. So if a Town bo erecterl into a City. Tho effect of this section is that a Village newly incorporated remains liable to pre-exisiing Towushi]) debts, and Towns and Cities respectively remain liable for tiie dcl)ts contracted Ijy them wliilo they were Incorporated Villages or Towns. The same principle is also, by this geotion, made applicable to Townships separating from a Union. See .♦urtber note a to see 13. (/) The United Covinties of York and Peel, notwithstanding sepa- ration, were held to be jointly liable to the Registrar of Peel for services rendered by him under sees. 26 and 3.S of the Hegistry Act. CawjMl V. York and Peel, 26 U. C. Q. B. 635 ; S. C, 27 U. C. Q. B. 1-"S. In such case the action cannot properly bo brought against one of the Counties without joining the other. Eklns v. Bruce, .30 U. C. Q. B. 48. A suit properly brought against three United (,'ouuties was held to be properly continued against the three, notwithstanding a dissolution of the union. Linmln, Welland and IlaUUviand v. Thowpmn e.t al., 8 U. C. Q. B. 615. (m) The effect of sec. 51 is to exempt tracts of land annexed, from the debts of tho Municipality to rt'hich they formerly belonged. The effect of this section read in connection with it is to render the Muni- cipahty to which the annexation is made liable to compensate the former Municipality a reasonable propoi'tiou of the pre-existing debtd. See note a to sec. 13. •ir 44 THE MUNICIPAL MANUAL. [ss. 54, 55. 1^1 paid, or as to the time of payment thereof, the matter shall be settled by arbiti-ation under this Act (oi) 36. V'c. 48, s. 54. Debentures g^^ After the formation of a new Coi-poration by the dis- debts, and to Solution of a Union of Counties or Townships, the Council wid'^iew* '^^'^ ^^ *^^ Senior or remaining County or Township shall issxie municipali- its debentures or other obligations for any part of any debt *"■ contracted by the Union for which debentures or other obli- gations might have been, but had not been, issued before the dissolution ; and the debentures or other obligations shall recite or state the liability of the Junior County or Township therofor under this Act ; and the Junior County or Township shall be liable therefor as if the same had been issued by the Union Ijefore the dissolution, (o) 36 V. c. 48, s. 55. Assessments for year pro- ceding disso- lution. Special rates for debts con- tinued and t o be paid over by trea- surer of junior county. 55. All assessments i'nposed by the Council of the then Corporation for the year next '^)efore the year in which the new Corporation is formed by separation therefrom, shall belong to the then Corporation, and shall be collected and paid over accordingly, and after the separation all special rates for the payment of debts thei'etofore imposed upon the locality by any by-law of the former Corporation shall continue to be levied by the new Corporation ; and the Treasurer of the new Covj)oration shall pay over the amount as received to the Treasurer of the Senior or remaining Municipality, and the latter shall npply the money so received in the same manner as the money raised iinder the same by-law in the Senior or remaining Municipality. (^;) 3G V. c. 48, s. 56. (n) Seo sec. 367 et seq. (o) In the reading of this section there are three points to be noted : 1. That after the dissolution, the Council of the remaining County or Township shall issue its debentures or other obligations ; but, to be effectual under this section, only " for any part of any debt contracted by the Union " ; 2. That such debentures, &c., shall recite or state the liability of the Junior County or Township therefor, under this Act ; and 3. That the Junior County or Township shall be liable thereon as if the same had been issued by the Junior County or Township. See note I to sec. 52. (p) The right to rates for the year next preceding the separation is here determined. The special rates mentioned are to be levied in each respective Municipality, after separation, and be collected by each respective collector, as if the By-law imposing the rates had been made after the separation by each County or Township separately. Such is the effect of the By-law of the Union having force in each Municipality severally after the dissolution of the Union. The duties of the I'reasurers req^uire careful attention. or rc-mani SS. 56, 58.] EFFECT OF SEPARATION ON OFFICIALS. 40 66. Ill case the amount so paid over as in the last pre- ceding section provided, or to any creditor of the Senior or remaining Municipality, in resiiect of a liability of the former Corporation, exceeds the sum which, by the agi-ee- nient or award between the Councils, the new Corporation ought to pay, the excess may be recovered against the Senior or roniaining Municipality as for money paid or as for money had and received, as the case may be. (q) 36 V. c, 48, s. 57. 57. In case any Village is incorporated, or any Village or Town is erected into a Town or City, or any Townshij) or Coiuity becomes separated, the Council and the members thereof having authority in the locality or Municipality im- mediately previous, shall, until the Council for the Corpora- tion is organized, continue to have the same powers as before ; (r) and all other '^^Hcers and servants of the locality or Municipality shall, until dismissed, or until successors are aDpointed, continue in their respective offices, with the same powers, duties and liabilities as before, (s) 36 V. c. 48, s. 58. 58. The separation of a Junior County or Township from a Union of Counties or Townships shall not in any case or in any manner whatever affect the office, duty, power or respon- sibility of any public officer of the Union who contiimes a public officer of the Senior County or Township or remaining Counties or Townships after such separation, or the sureties of any such officer or their liability, further than by limiting such office, duty, power, responsibility, suretyship and liability to the Senior County or Township, or remaining Counties or Townships, (t) 36 V. c. 48, s.'59. iq) The liability of the Junior County or To>\'nship respectively, notwithstanding separation, is explained in the note to sec. .'>4. The right of the Senior County or Township to rates imposed before the separation is also explained in the note to sec. 55. The section under consideration proviaes for the reimbursement to the Junior Municipality of any sum which the Junior may have paid, exceeding the proportion which it, according to the adjustment with the Senior, was bound to contribute. (?•) It is necessary that there should not be any period of time without a proper governing body. When the new Council is organ- ized, it supersedes the previous Council ; but, until such organization, the Council and the members thereof having authority immediately previous to the change, shall have continued authority. (s) See note d to s. 37. (0 The necessity for such a provision as this will be manifest upon reading Thompson et al. v. McLean et al., 17 U. C. Q. B. 495. In that If the gum paid over ex- ceeeds the just amount, the excess may he recovered. Fom» of action. Former council and officers to exercise jurisdiction over new municipali- ties, etc., until new councils are organized. Effect of separation upon public officers and their sure- ties. in 1 -«*■ ■ il 46 THE MUNICIPAL MANUAL. [SS. 59, 60. Further as to officers, and Their sure- ties. ii 59. All ciuch public officers shall, after the separation, be the officers of the Senior County or Township, or remaining Counties or Townships, as if they had originally been respectively appointed public officers for such Senior County or Townshi}) or for such remaining Counties or Townships only, (u) 36 V. c. 48, s. 60. 60. All sureties for such public officers shall be, and re- main liable, as if they had become the sureties for such public officers in respect only of such Senior County or To\vnship, or of such remaining Counties or Townships, and all securi- ties which have been given shall, after the separation, be read and construed as if they had been given only for the Senior or remaining County or Counties, or Township or Townships; but nothing herein contained shall affect the right of new sureties not^ Securities being required to be given by any Sheriff or by any Clerk or Bailiff, or other public officer, under any statute, or otherwise howsoever, (v) 36 V. c. 48, s. 61. B^ected. PART II. MUNICIPAL COUNCILS, HOW COMPOSED. Title I. — The Members. Title II. — Qualification, Disqualification, and Exemptions. TITLE I.— THE MEMBEES. Div. I. — In Counties. Div. II. — In Cities. Div. III.— In Towns. Div. IV. — In Villages. Div. V. — In Townships. Div. VI. — In Provisional Corporations. case it was held, Burns, J., disfenticnte, that without such a provision the sureties of a Sheriff were relieved from liability by reason of the change in the office. (u\ This is a consequence of the preceding section. The declara- tion is not only that the public officers of the Union shall, after the separation, be the oflicers of the Senior County or Township or remaining Counties or Townships, but be so "as if they had origi- nally been respectively appointed public officers for such Senior County or Township or for such remaining Counties or Townships only." (r) This section only relates to existing securities, and so is not SS. 61, 62.] MEMBERS OP COUNTY COUNCILS. 47 DI^^3I0N I. — In Counties. Councils. Sec. 61. Certificate of Qualification. Sees. 62-64. 61. The Council (a) of every County shall consist of the Counties. Reeves and Deputy Reeves of the To^vnships and Villages ■within the County, and of any Towns within the County, which have not withdrawn from the jurisdiction of the Council of the Countv, and one of the Reeves or Deputy Eeeves shall be the Warden, (b) 36 V. c. 48, s. 62. 62. No Reeve or Deputy Reeve shall take his seat in the County County Council until he has filed with the Clerk of the County Councils. Council a certificate of the Township, Tillage or Town Clerk, under his hand, and the seal of the Municipal Coi-poration, (c) that such Ree\e or Deputy Reeve was duly elected, and has made and subscribed the declarations of oflice and qiialifictition as such Reeve or Deputy Reeve ; nor in case of aDe})uty Reeve, certificates until he has also filed with the Clerk of the County an ^^^°n„^|,°° affirmation or declaration of the Clerk or other person having of freelioid- tbe legal custody of the last revised assessment -oils for the householders ir to be read as affecting the right to require new sureties when new sureties may in any case be properly demanded. See note t to sec. 58. (ff) The Council is not the Coiporation, but only the governing body, and in some cases the legislative body of the Corporation. See note k to sec. 8, note I to sec. 9. (b) Towns, Villages, and Townships, are entitled to a certain number of Eeeve« and Deputy Reeves, in proportion to their popu- lation. See sees. 66, 68. The Reeves and Deputy Reeves are the representatives of the local Municipalities in the County Council. The Council of the County is composed of them. They are autho- rized and required to elect one of their number to be the Warden or head of the County Council. The offices of Reeve and Mayor of a Town have been held to be incompatible. Reijina ex rel. Doran v. Hivjgart, 1 U. C. L. J. N. S. 74. (c) The Clerk may reject the certificate if not in the form required. The section is positive that no Reeve, &c., shall take his seat, &c., until he has filed, &c. The certificate made necessary is the evidence of the right of the person presenting it to a seat in the County Council. The County Clerk is in the first instance made the judge of its legal sufficiency. But no Clerk sliould, according to his o^vn caprice or preference of any kind, decide in favour of and allow certain persons with defectivo certificates to take their seats, and disallow other certificates quite as good. In such a case the Clerk, if made a party to a contested election proceedings, would be, in all probability, made to pay costs. But it does not fellow that a Reeve or Deputy Reeve, whose certificate is defective, if once admitted by ■ij' 84 THE MUNICIPAL MANUAL. [S8. 63, 64. ill! iHf' :•' i: H ■! ^e filed by Municipality which he represents, that there appear (d) upon Deputy siich rolls the names of at least five hundred freeholders and Beeves. householders in the Municipality, possessing the same pro- perty qualifications as voters, for the first Deputy Reeve elected for such Municipality, and that no alteration reducing the limits of the Municipality, and the number of persons pos- sessing the same property qualification as voters, below five hundred for each additional Deputy Reeve, has taken place since the said rolls were last revised. 36 V. c. 48, s. 63, Form of cer- g3. The certificate firstly above-mentioned may be in the tiflcate oBto p ii . I, /■."' election, &c. following form : — (e) I, A. B., of . , Clerk of the Corporation of the Township (Town or Village, a.<» the cam may he) of , in the County of , do hereby, under my hand and the seal of the said Corporation, certify that C. D., oi , Esquire, was duly eiected Reeve (or Deputy Reeve, as the case may be) of the said Township (Town or Village, as the case may be), and the Clerk to sit and vote, has not the right to do so when in truth qualified. Nor does it follow that a certificate in all respects regular entitles the Reeve or Deputy Reeve to sit and vote in the Council if aot really qualified. The certificate is only evidence that what is contained in it was done. If it has not been done, or the Reeve or Deputy Reeve had not been duly elected, the mere certificate would not give the party holding it the right to sit and vote in the Council. That right comes from his being the Reeve or Deputy Reeve, and having made the required declarations. If the certificate Wv 3 the essence of his qualification, and not merely the evidence of it, then it might be held that tne acts done by the Reeve or Deputy Reeve who did not possess it, or only possessed a defective one, were void. But the certificate merely being evidence of his qualification, if it turn out that he is really qualified, it cannot be held that his acts as a mendjer of the County Council are void. Nor can they be in any way impugned on account of the imperfect certificate. The statute does not declare that the votes of any Reeve or Deputy Reeve taking his seat without the certificate shall be void, nor say that the pro- ceedings supported and carried by such votes shall not be binding. The section in this respect may be properly considered directory, and so construed. See The Queen ex rel. McManus v. Ferguson, 2 U. C. L. J. N. S. 19. {d) See note i to sec. 66. (e) It is to be hoped that, as the Legislature has seen fit to give a form of certificate, that the form will be closely followed. In the earlier Acts no form was given. The consequence was, a variety of forms in use that were often incorrect. See the forms held bad in The Queen ex rel, McManus v. Ferguson, 2 U. C. L. J. N. S. 19. Mr. Harrison, in the notes to the second edition of this work, prepared and published a form. The Legislature, in this Act, has adopted the form 80 prepared. 64, 65.] MEMBERS OF CITY COUNCILS. 49 has made and subscribed the declarations of office and qualification as such Reeve (or Deputy Reeve, as the case may be). Given under my hand and the seal of the said Corporation of , at , in the said Township (Town or Villace, as the case may be), this day of A. D. 18 ( Seal of the 1 } Municipal > [ Corporation. ) A. B., Township (Town oi' Village) Cleric. 36 V. c. 48, s. 64. 64. The certificate secondly iil)ove-mentioned may be in fifl^te'^os'to the followinf' form. (/) number of '^ ^ ' freeholders I, A. B.,of , Gentleman, Clerk of the Township, (Town hofdersT' or Village, Ufi the case may be) of , in the County of , do hereby declare and affirm as follows : (1.) That I am the person having the legal custody of the last revised assessment roll for the said Township (Town o?" Village) as the case may be). (2.) That there appear upon the said roll the names of at least hundred {Jive hundred /or each Deputy Reeve) freeholders and householders in the said Township (Town or Village, as tlie case may be), possessing the same property qualification as voters. (3. ) That no alteration reducing the limits of the said Municipality, and the number of persons possessing the same property qualification as voters l^elow hundred {Jive hundred for each Deputy Reeve), has taken place since the said roll was last revised. A. B. 36 V. c. 48 s. 65. Ill Division II. — Ix Cities. Councils. — Sec. 65. 65. The Council of every City {g) shall consist of the Cities. Mayor, who shall be the head thereof, and three Aldermen for e^'ery Ward, to be elected in accordance with the pro- \Tsions of this Act. (/t) 36 V. c. 48, s. 66. (/) See note e to s. 63. (;/) The Council is not the Corporation, but simply the governing body, and in some cases the legislative body of the Corporation. See note k to sec. 8, note I to sec. 9. (h) At one time the Council of a City was composed of two Aldermen and two Councilmen ; the latter needing less property quaUfication than the former, but having equal power of voting from each Ward. The office of Councilman in Cities no longer exists. •ir 1 ■ 00 Towns. ';. 1 ■ 1 ; ■ 1 : ■ ; ' :■■ r 'i 1 ' ; i ■ i . V': Incor- porated Tillages. THE MUNICIPAL MANUAL. [SS. 66, 67. Divislox III. — In Towns. Councils. — Sec. 66. 66. The Council of every Town shall consist of the Mayor who shall be the head thereof, and of three Councillors for every Ward where there are loss than five Wards, and of two Councillors for each Ward where thex-e are five or more Wards ; and if the ToAvn has not withdrawn from the juris- diction of the Council of the County in which it lies, then a Reeve shall be added, and if the Town had the names of five hundred freeholders and householders on the last revised as- sessment roll, possessing the same property qualification as votei-s (notwithstanding that such persons may not be entitled to be voters), then a Deputy Reeve shall be added, (i) and for every additional five hundred names of pei"sons possessing the same property qualification as voters on such roll, there shall be elected an additional Deputy Reeve. 36 V. c. 48, s. 67. Division IV. — In Incorporated Villages. Councils. — Sec. 67. 67. The Coimcil of every incorporated Village (j) shall con- sist of one Reeve, who shall be the head thereof, and four Coun- cillors, and if the Village had the names of five hundred free- holders and householders on the last revised assessment roll, possessing the same property qualification as voters (notwith- standing that such persons may not be entitled to vote), then of a Reeve, Deputy Reeve and three Councillors, and for every additional five hundred names of persons possessing the same property qualification as votei-s on such roll {k) (notwith- standing that such persons may not be entitled to be votei*s). The Town of Sandwich, incorporated under 20 Vict. c. 94, was held entitled to elect only three Councillors in addition to a Mayor and Reeve, to be elected by the people. Jierjina ex rel. Arnold v. Wilkimon, 5 U. C. P. R. 20. (i) It is apprehended that if the names were fraudulently inserted on the Roll, for the purpose of enabling the particular MunicipaUty to obtain a Deputy Reeve, the roll would not be conclusive. See Ihe Qmen ex rel. Hart v. Lindsay, 18 U. C. Q. B. 51. ( j) See note g to sec. 65. [k) See note > to sec. 66. S8. 68, 69.] MEMBERS OP PROVISIONAL CORPORATIONS. (I) there shall be elected an additional Deputy Reeve instead of a Councillor. 36 V. c. 48, s. 69 ; 39 V. c. 7, s. 18. 51 :u.|:^^ Division V.— In Townships. Councils. — Sec. 68. 68. The Council of every Township (hi) shall consist of a Townihlpe. Reeve, who shall be the head thereof, and four Councillora, one Councillor being elected for each Ward where the Town- ship is divided into Wards, and the Reeve to be elected by a general vote ; but if the Township had the names of five lumdred freeholders and householders on the last revised as- sessment roll, possessii ^ the same property qualification as votei's (n) (notwithstanding that such persons may not be en- titled to vote), (o) then the Council shall consist of a Reeve, Deputy Reeve, and three Councillors, and for every addition- al five hundred names of persons possessing the same pro- l)erty qualification as voters on sucb I'oU (notwithstanding that such pei-sons may not be entitled to be votei's), there shall be elected an additional Deputy Reeve instead of a Councillor. 36 V. c. 48, s. 69; 39 V. c. 7, s. 18. Division VI. — In Provisional Corporations. Councils. — Sec. 69. 69. The Reeves and Deputy Reeves of the Municipalities provisional \vithin a Junior County for which a Provisional Council is **"^^^'*'^ established, shall ex officio be the mei ibers of the Provisional Coimcil. (p) 36 V. c. 48, s.;70. if TITLE II. -QUALIFICATION, DISQUALIFICATION, AND EXEMPTIONS. Div. I.— Qualification. Div, II. — Disqualification. Div. III. — Exemptions. [l] The words in brackets are new, and are designed to remove a difficulty pointed out by Mr. Harrison in the third Edition of this work. (m) See note g to sec. 65. (n) See note i to sec. 66. (o) See note I to sec. 67. (jj) See sec. 35 et seq. as to Provisional Councils. 52 THE MUNICIPAL MANUAL. [s. 70. I' . '.', Qualification of of&cers, Ac. DiV, I.— QUALIFICAIION. In each MimicipalUi/. 6'ec. 70, Nature of Estate to he jiossnased. Sec, 71. Where no Assessment Roll. Sec. 72. Where onlt/ one (jualljied pei'soii. Sec. 73. 70- Tlie persons qualified to be elected Mayors, Aldermen, Reeves, De|)uty Reeves, and Councillors of any Municipality shall 1)0 such pen-sons as reside within the Mxinicipality, or with- in two miles thereof, (a) and are natural-born or naturalized subjects of Her Majesty, (b) and males of the full age of twenty- one years, (c) and are not disqiialified under this Act, (d) and (rt) Before this enactment it was held that a person rated on the Assessment Roll of a City, but at the time of an election resident in an adjoining Township of the County in which the City was terri- torially situate, thougli almost in the boundary between the two Municipalities, was not (pialiHed to be elected a mem1)er of the Council of tlie City. 7'lie Quwii <-x rel Blmddl v, Rorhitnt.pv, 7 U. C. L. J., 101 ; The Queen ex rel. Flemiaij v. Smith, 7 U. C. L. J. 6(J. But this section extends the privileges beyond residents of the particular Municipality to residents witliin two miles of which the Municipality is situate. (h) It is to be presumed that resident and assessed inhabitants of this Province are British subjects till something is shown to the con- trary, from wliioli it can lie determined that they are aliens. Th Queen ex rel. Carroll v. Beckunth et at, 1 U. C. P. R. 284. It is not sutlicient for a relator to swear that certain voters are aliens, without giving particular facts to show that they arc aliens, and how aliens, as by having been born in a certain place named, out of the allegiance of the British Crown. lb. A person boni in New York in 1830, the son of a British subject, who had emigrated from Ireland a short time previously, and a year or two after his birth came to Upper Canada, n-nd ever since resided here, held to be a British subject within the meaning of the Act. The Queen ex rel. Mc Vean v. Graham, 7 U. C. L. J. 125. But a person born in the United States before the Revolution, who continued to reside there afterwards, was held to be an alien. Doe d. Patterson v. Dains, 5 O. S. 494. The son of a British subject who was married to an alien rc-iding out of British possessions at the time of his birth, was held to be an alien Doe Rohinmn v. Clarice, 1 U. C. Q. B. 37. But the son of an alien once naturalized continues a. British subject notwithstanding the re- sidence of his father beyond British allegiance. Doe d. Hay v. Hiint, 11 U. C. Q. B. 367. See further, Montriomery v. Graham, 31 U. C. Q. B. 57. Where the voter was boni in the United States, both his parents being British-bom subjects, his father and grand- father being U. E. Loyalists, and the voter residing nearly all his life in Canac.a, Held entitled to vote. The Stormovt Vase 7 U. C. L. J. N. S. 213. Indians being British subjects may be either electors of candidates for Municipal oflBce, Keg'ina ex rel. Qibb v. White, 5 U. C. P. R. 315. (c) See note b to sec. 76. (d) See sec. 74. g. 70.] QUALIFICATIOX OF MEMBERS OF COUNCILS. 53 have at the time of the election, in their own right, (e) or in right of their wives, as projjvietors or tenants, (/) a legal or equitable freehold or leasehold, or partly freehold and partly leasehold, or pai-tly legal and pai-tly equitable, (g) rated in their own names on the last revised assessment roll of the Munici- pality (h) to at least the value following : — (( ) B. and A. were partners, occupying premises as co-tenants miller a yearly tenancy on the terms of an expired lease. Before tiie nomination day they dissolved jjartnership, B. leaving the business and premises and leaving A. in possession. A. shortly after- v.anls went nito partnership with .S. The new firm then took a fresii lease of 'the premises from tlie landlord : Jfcld, that B. was not at tlie time of the election the co-tenant of A., so aa to entitle him to heconie a candidate for alderman. T/ie Queen ex rcl, Atldnmon V. Boyd, 4 U. C. P. 11. 204. See section 205 as to declaration of office. (/■) A person having the mere possession of a parcel of land vested in the Crown, deternnnable 1,'y the Crown at any moment, was held not to have such an interest in the land, either as proprietor or tenant, as to enable him to qualify under this section. 1/ie (Jaccii ex re.l. Lach/oi'd v. Frizell, 9 U. C. L. .J. N. S. 27. There can be no quali- tication on jiersonal property. The Queen ex re.l, Fluett v. Seina/idie, .5 U. C. P. 11. 19. Nor can the .assessment on realty be supplemented ))y tlie assessment on personalty. I/>. A landlord is sulKeiently possessed where his tenant is assessed. The Queen ex rel. H/uiiv v. Mackenzie, 2 0. L. Chamb. R. S(). So a landlord may put together pro- perties, some occupied by his tenant and some by himself, to make up tlib assessed value required by the statute. The Queen ex rel Dexter v. Goivan, 1 U. C. P. K. 104. (f/) Tlie qualification may be of an estate legal or equitable. The estate, whether legal or equitable, need not be free from all encum- l)rances. If encumbered, and after deducting the gross amount of the encumbrances from the assessed value of the jiremises, there be still left a sufficient value in respect of which to qualify, the (jualifi- cation, notwithstanding the encumbrances, is sufficient. 'The Queen txrel. Blakeleij v. Canamn, 1 U. C. L. J. N. S. 188. Where defen- dant, in November, 1858 conveyed the real estate, which formed the suljject matter of his qualiKcation, to his father for a consideration of £300, for which he took his father's notes payable at distant dates, and in February, 18G0, purchased tlie property back, returning to hia father all the notes, though the father did not re-convey the property to the son till the 3rd October, 18G0 ; yet the son was held to have had at the time of the assessment an e([Hitable estate within the meaning of the Act. The Queen ex rel. Tilt v. Cheyne, 7 U. C. L. J. 99 ; See further Rolleston v. Cope, L. 11. G C. P. 292 ; Simey v. Mar- shall, L. R. 8 C. P. 2G9; HeeJls v. Blain, 18 C. B. N. S. 90; Webster T. Oi'erseers of Anhton-under-Li/ne, Ornie's Case, L. R. 8 C. P. 281 ; Hadjield's Case, lb. 30G. (/t) Both the property qualification and the rating are necessary to give a qualification for office under the section. The Queen ex rel. I ir ^4 THE MUNICIPAL MANUAL. [8. 70. In Incor- porated vil- lage*. In toima ; la eiUcs ; (1) III incoi-porated Villages — FreolioM to six hundred dollars, or leasehold to twelve hundred diillars ; (2) In Town — Freehold to eight hundred dollars, or lease- hold to sixteen hundred dollars ; (3) In Cities — Freehold to one thousand five hundred dol- lars or leasehold to three thousand dollars ; Mctcnffe V. Smnrt, 10 U. C. Q. B. 89. "When land is assessed against botli the owner and occnpant, or owner and tenant, the assessor slmll plaee both names within Ijraekets on tlio roll, and slmll write opposite the name of the owner the letter " F.." and ojjposito the name of tlio occupant or tenant the letter "II." or " T ;" and both nnmea cliall be numbered on tlie roll." 11. S. (). c. ISO s. 18. TJie omis- sion to nund)er tliem, however does not invalidate tlie assessment. See The Qiu'i')i ex rel. Luchfurd v. Frizell, 9 U. (J. L. J. N. S. 27. Tlie rating sliould bo l)y name on the lloll. T/ie Queen ex rel. Milralf v. Smart, 2C L. Chanib. 11. 11-1; but see The Queen ex rel. LdiKjhtoii V. Bnhii, 11). 130. ^Vhere on the Assessment Itoll, under the general heading, "Names of taxable parties," were entered the names of "Ker, William and Henry," for two separate parcels of land, and in the Ijroper columns were the letters " K." and " H.," and in the colunui leaded "Owners and address," was entered o])nositc to the parcels of land, "Wm. Ker & Bros. ;" Helil, that " Wdliam Ker & Henry Ker," and not " William Ker & Brothers," were the persons in whoso names the proi)crtie8 were rated, and that they were sutticiently rated. T'lie Queen ex rel. McOreijor v. Ker, 7 U. C. L. J. 67 ; See, liowevcr, Applei/nrth et al. v. O'rahcuii, 7 U. C. C. P. 171, and Little v. Oi'emeer/i r^ Penrith, L. R. 8 C. P. 259. Judges are in general disposed to go ae. far as the facts will allow for the purpose of reconciling the mode of rating with the facts, if the perscm elected has really a legal quali- fication. Tlie Queen ex rel. Xorthwood v. AHlcin, 7 IX. C. L. J. 1.30. The Queen ex rel. Ford v. Cotlhujhmn, 1 U. C. L. J. N. S. 214 ; The. Queen ex rel. ChamU'.rn v. Jlmm, lb., 2-14; The Oldham Case, 1 O'M. & H. 153 ; See further note (> to soc. lii. Where a person elected as alderman of a city made a declaration of othce, inadvertently quali- fying upon property in respect of which he was not entitled to qualify, but was qualified in respect of other jiroperty, his election was sustained. The Queen ex rel. Hartrey v. Dickei/, 1 U. C. L. J. N. S. 190. Property owned by a candidate, but not mentioned on the Assessment lloll, rannot be made available. The Queen ex rel. Carroll v. Beckwlth et al. , 1 U. C. P. 11. 278. An idministrator, though rated in his own name for real estate belonging to the deceased, is not entitled to qualify upon auch real estate. The. Queen ex rel. Stock v. Davis, 3 U. C. L. J. 128. But the roll, as to property qualification, is in general binding and conclusive. The Queen ex rel. Fluett v. Semnndie, 5 U. 0. P. R. 19. In the case of electors there is an express declaration to that effect. See sec. 76. The amount of property rated on the Roll is at all events so far conclusive, that encumbrances cannot be taken into consideration to reduce it. The Queen ex rel. Flater v. Van Velsor, 5 U. 0. P. R. 319 ; The Queen ex rel. PhUhrick \. fjinart, 76., 323. See further, Tlie Queen ex rel. Bole \, McLean, 6 U. 0. P. R. 249. 88. 71-73.] QUALIFICATION OP MEMBERS OP COUNCILS. 55 (4) In Townships — Freeliold to four hundred doUai-s, or IcftHehold to eight hundred doHars ; And 80 in the same proportions in all Municipnlities, in case the proi)erty is partly freehold and })artly leasehold, (t) 36 V. c. 48 8, 71. 71. The term *' Leasphold " in the foregoing section shall not include a term less than a tenancy for a year, (j ) or from year to year ; and the qualification of all pei-sons, where a qiiaHfication is rc([uired under this Act, may bo of an estate either legal or eqiiitable, or may bo composed partly of each, (/c) 36 v. c. 48, s. 72. 72. In case of a new Township erected by proclamation, for wliich there has been no assessment roll, every jicrsou who, at the time of the first election, has such an intiu'est iu real property, and to such an amount as hereijibefore men- tioned, shall be deemed to be possessed of a sufficient property qualification. (/) 36 V. c. 48, s. 73. 73. In case in a Municifiality there are not at least two persons qualified to be elected for (>ach seat in the Council, no qualification beyond the qualification of an elector shall be necessary in the persons to be elected, (m) 36 V. c. 48, S.74. In town- •hips ; r'roporty of of diffuront kindi. " Uagohold" (It'llDeil. Nature of QBtatu. In nowtonm. ship not Lav- iii)t asMt'as- muQt roll, If only one person bo qualified. (j) See foregoing note. ( /) A person having the mere possession of a Cro^vn lot, detenni- nable at any moment, though rightly assessed under the Assessment Act, has no such estate in the land as will qualify him for otfico. The Queen ex rel. Lachford v, Frizell, 9 U. C. L. J. N. 8. 27 ; see fur- ther, May/mv v. Siittk et al., 4 E. & B. 347, 357 ; White v. Baylei/ et al, 10 0. B. N. S. 227. (k) The latter part of this section is a repetition of a portion of sec. 70 ; see note rj to that section. ( I) Both the possession of property and the rating of it are in gen- eral necessary to give a qualihcation for office under this Act. See sec. 70. But in the case of the first election in a new Township, there can be no rating of property, as there is no Assessment Roll for such new Township. In such case the property qualification, without the rating, is all that is made necessary. If more were necessary, there could be no qualification at all. As to tlie property qualification, see sec. 70 and notes thereto. [m) In what manner is this section to be construed ? Is it only to come into operation when the number is below two persons qualified to be elected for each seat as applied simply to qualification in respect to property, or after deducting all those who are disqualified to be electing from other causes ? It is apprehended the expression, "quail- •tj- 56 THE MUNICIPAL MANUAU [8. 74. fl. 74.] DISQU f.', [Ii . < Division II.— DisguAMficvTiON. Fersoiia disqualified. Sec. 74. PerwnB dii- 74. No Judgo of any Court of civil jurisdiction, no Claoler Itom Clog or K(HJ|)er of a Houhc of Correction, no Shuril!', Deputy counoiuor., yhoriff, SherilfH Bailiff, High Bailiir or Cliic-f CoiiKtablo of any City or Town, AaHcssor, Collector, Treasurer, or Clerk of any Municipality, no BailiU' of any Division Court, no County Crown Attonuiy, no Registrar, no Deputy Clerk of the Crown, no Clerk of the County Court, no Clerk of the P(!ac(f, (//,) no Innk(!ep(!r or Haloonkeeper, or Shopkeeper-, licensed to sell spirituous liquors hy r(!tail, (o) and no ju'rson having by himself or his }>artuer an interest in any coiitraet fled to he elected," must bo conHtrucd in the larger boiisc, that is, for the benefit and ail vantage of the whole body of elcetors ; for if it nhould hapjjen, from some cause or other, tliat all tlioK<* v,h.» iiii>,'iit be elected as respects property yet were dis<[UaU(ied as respects interest or otherwise, tlie Municipality couhl have no Council if the inhabi- tants cculd not resort to the general body of electors for C'ouncillors. Per Burns, J., in The (Jiwi'ii r.r Vfl. JJi'iiifcr v. Preston, 7 U. C L. J. 100. Jt has l)cen hehl, for the i)urposcs of tliis section, that the roll is not conchisive as to tlie "persons qualified to be elected." The Queen ex rel. TeJ/e,- v. Allen, 1 U. C. P. R. 214. (n) Ollicera not named would, it is j)re8umed, bo qualified. All persons having the necessary (pi.ilifications are made cligil)le under section 70. 'I he exceptions av pei'sons by this section expresssly «leclared to bo dis(iuahtied. A h)cal sui)erintendent of schools M'as held not to be dis, iu; cca '.'• nl. Vrttucr v. Uirdi, L. 11. 8 Ex (/)) The object ( of the Kngli.sli Mu is clearly to pi'eve 'if its momht'rs in vent a mendier of for the public, froi ••r in any contract imght to exercise h. r)2(j. The evil general, they will within the mischiel fairly he brought ' ;»re that "no pcrs in any contract wi fied,"&c. ; and th shall 1)0 qualified, himself or his jtarti plojinient with, by ( deserves to bo notic V. (Jury, ].. ]{. 1 Ex. here annonated is a executed a niortgaj ])ayment of money, Uamaoii, 1 U. C. 1 should be a contrr Francis, 18 Q. B. 51 tendered for some \) and, his tender hav; work, for wliich he '. ecute a written cont the M.ayor of the cit he M-as notwithstand Moore v. Milkr, 11 I I ill a 74.] DI8QU\l,IFICAT!0N OF MEMBEKH OP COUNCILS. with or on beliulf of tlio Corporation, (p) hIiiiII 1«» (imilifietl to bo a niemljer of tho Council of any Municipal Corpora- tion : 57 2. ButnofMtrson slmll bo held to bo (lis(ju!ilifi('»l from ])oing ProfUo: oloctc'l a niembor of the (Jouncil of any Municipal Corpora- hoUlt-rt in companlM Loci/, .'I B. k A. 283 ; /'rOM.v v. IMmiulxon, .1 E. & B. M4 ; Tlohhr y. Soiilhi/, 8 C. B. N. S. '2r>i; Allm v. Switli, 12 C. B. N. S. (I.SH ; Thrcj'dllw Jtanrlc/.; \j. I;, 7 Q. B. VII. Tho (liHiiuivlilicivtiun under tliia bt'ction in not, lidwuvxr, ruHtrictcd to innkt'citiTH. It t'xtciiil« to all B.-vloonkcepeiH iviiil Hhopkot'juTH who art! liuciiMcd to sell H[tirituou8 li(|ii()r8 ))y retail. See /{ii/lhd v. /{i/mrr, 13 Cox, (?. (J. 'MH. A man may he an iii'ikeeper luidei' this section, tlioiigh uiCiiout a licenno, 'J'/ie Qiiidi cc nl. F/diKii/dii V. McMii/ioii, 7 I'. ('. L. .). l.'».'>, and tliougli ho tiiko out the license in tlie name r)f anotiier, MvKoij v. linnvit, .'> U. C. L. J. !U ; hut if a man, heing an innkeper, in good faith transfers Ilia lieeiiM'.', l;e ccaacc to he dia(iualilied under the Act. The Queen I'X rtl.C'rnzicr v. Tdi/lur, G U. C L. J. (JO; Hee further 7>'aoM v. Uirc/i, L. R. 8 Ex. 135. (/)) Tiie ohject of this part of tlic section, like that of section 28 of the Knglisli Munieioal ('or])oration Act.') & (} Will. IV. cap. 70, is clearly to pi'event all de;diiigH on tiie part of the Council with any (if its nieniliiirs in tlioir jirivatt; cajjacity, or, in other words, to pre- vent a menilier of tlie Council, wlio stands in the situation of a trustee for the public, from taking any share or heuetit out of the trust fund, or in any contract in the maknig of which he, as one of the Council, ought to exercise a superintendence. Tfte Qutcii v. Frduch, 18 Q. B. r>"2G. The evil contem])lated l)i;ing evident, and tho words used general, they will he construed to extend to all cases which come within the mischief intended to be guarded against, and wliich can fairly be brought within tho Mords. The words of our enactment arc that "no person having by himself or his partner an interest in any contract with or on behalf of th.e Cori)oration shall be quali- tied," &c. ; and the words of tlie English Act are that "no person shall be qualified, &c., who shall have, directly or indirectly, by liimsclf or his jiartner, any share or interest in any contract or cm- plojiniott witii, by or on behalf f)f such Coinicil," kc. The diR'erenco deserves to bo noticed. See Nicholmn v. Fichh 7 H. & N. 810. Lfimn v. 6'<»/T, L. R. 1 Ex. Div. 484. Under an old Act, of whicii tiic section liere annonatcd is a ro-enaetment, it was held that a person who had executed a mortgage to the Corporation, containing covenants for jiayment of money, was disqualified. The Queen e.c rel Liitz v. Wil- limnmii, 1 U. C. P. R. 94. It is not necessary that the contract should be a contract binding on the Coriwration. T/ie Queen v. Francis, 18 Q. B. 52(5. Where defendant, before the election, had tendered for some painting and glazing required for the city hosjutal, and, his tender having been accepted, he had done a portion of the work, for wliich he had not been paid, but afterwards refuscil to ex- ecute a written contract prepared by the City Solicitor, and informed the Mayor of the city that he did not intend to go on with the work, he was notwithstanding held to be disqualified. The Queen ex rel Moore v. Miller, 11 U. C. Q. B. 465. So where the person elected 8 M I'm 58 THE MUNICIPAL MANUAL. [S. 74. I ' having deal- tion by reason of his being a shareholder in any incorporated porations"*' Company having dealings or contracts with tlie Couucil of had teiulcrcd for the supply of wood and coal to the Corporation. The Queen ex rel. Eollo v. Beard, 1 U. C. L. J. N. S. 126. The trustees of a common school in the town of Sandwich being about to erect a schoolhouse, one Gauthier offered to supply a certain quantity of brick to them for the purpose. They told him that if the Town Council would agi'ee to pay him for the bricks, they would take them. He then said he would take payment for them by letting the amount go against his taxes in each year, with interest at eight per cent, on the whole amount ur.], laid. This proposition was accepted, and the bricks were furnished. Gauthier was held disqualified to l)e a mem- ber of the Council. The Queen ex re/. Fleutty. Gauthier, 5 U. C. P. K. 24. So where a member of the Council, being a baker supplied bread to fulfil a gaol contract held by another person in his own njime, but which was looked upon as really the contract of the former, he was held to be disqualified. The Queen ex rel. Plddin'jton v. lliddell, 4 U. C. V. W. 80. Wliether the contract is in the name of the party him- self or another, is immaterial. See Colliiin v. Swindle, G Grant, 282 ; C it II of Toronto v. Bokch, 4 Grant, 489; S. C. (5 Grant, 1. A person who had entered into a contract with the C()r]joration of the City of Dublin, was held discju.ilified, even though he had, before the election (but witliout the privity of the Corporation), assigned his contract to a third person. The Queen v. Franklin, 6 Ir. C. L. "R. 239. Where a Municipal Council })y ))y-law granted to defendant, ui)on certain conditions, a right to build a dam and bridge across a river, in consideration of wliich he promised to keep it in repair at his own exijense for forty years, he was held to be disqualified. The. Queen ex rel. Paiter"on v. Clarhe, 5 U. C. P. R. .S37. So where it w^as shown that the candidate elected was a surety for the treasurer of the town, and acting as solicitor for the town. Tlie Queen ex. rel. Coleman v. O'llare, 2 U. C. P. II. 18. So a surety in a',y sense to the Corporation. The Queen ex rel. McLean v. Watson, 1 U. C. L. J. N. S. 71. But a surety was held not disquahfied under tlie foHowing facts : The treasurer of a township was ap- pointed l)y annual by-laws, which were silent as to time in 1859, 18G0 and 18G1. In 1801 the defendant became his surety, by bond, which bond did not state the duraticmof liability. In 18(5.3 the same treasurer was Jilso appointed by a similar by-law. In 1864 the by-law limited his liability to the year 1864. From that year to 1869, no time was specified. In 18()9 he was api)ointed for one year. His accounts were audited, and found correct. Held, that defendant, his surety, was not disqualified. The Queen ex rel. Ford v. McRae, 5 U. C. P. II. 309. At one time it M'as held that where work was done under a contract, and nothing remained but payment, that the con- tractor was disqualified. The Queen ex rel. Daris v. Carruthers, 1 U. C. P. R. 114; The Queen ex rel. IMlo v. Beard, 1 U. C. L. J. N. S. 126. But recent English authority is against that position. See /?o,v.si? v. Birleij, L. R. 4 0. P. 296. If, however, at the time of the election, there be a dispute in good faith between the candidate and the Municipality, arising out of a matter of contract, the candidate is disqualified. The Queen ex rel. Bland v. Fiqq, 6 U. C. L. J. 44 ; The Queen ex rel. McM alien v. De Lisle. 8 U. C. L. J. 291. A S. 74.] DISQUALIFICATION OF MEMBERS OF COUNCILS. such Municipal Corporation, or by having a lease of twenty- different nile prevails where all transactions have been bona fide closeil. The Queen ex rel. Armor v. Co>ite, lb. 290. It is not enough to disqualify a person to show that he is the agent of the person who is really the contractor. Thus, an agent of an insurance company, paid by salary or commission, who, both before and since the election, had, on behalf of his company, effected insurances on several public buildings, the property of tho C6rporation, and who at the time of the election had rented two tenements of his own to the Board of School Trustees for Common School purposes, was held not to be dii»/i".iiiilied. The Queen ex rel. Bui/ij v. Smith, 1 U. 0. L. J. N. S. 129. The words "interest in any contract, are not to be construed as including all possible advantage or gain flowing from a contract which somebody else, not being a partner, has with the Corporation. See The Queen ex rel. Armm- v. C'oste, 8 U. C. L. J. 290 ; 7'he Qneni ex rel. Piddinrjton v. Riddell 4 U. C. P. R. 80. It is doubtful if they can be held to include sub-contracts. See Le Feuvre v. Lankester, 3 E. & B. 543 ; see also Proctor v. ^famcarini/, 3 B. & A. 145 ; Henderson v. Sherborne, 2 :M. & W, 237 ; Barber v. Waife, 1 A. & E. 514. Had the words been "have any share or interest in, or be in any manner, directly or indirectlj', concerned in any contract ox* bargain," a wider interpretation would have to be given to the sec- tion. See Towseij v. White, 5 B. & C. 125 ; Poj)e v. Backhouse, 8 Taunt. 239; Foster v. The Oxford, .Oc, Pailu-ay Co., 13 C. B. 200; see also Con. Stat. Cp'' cap. GG, sec. 46. There is no disqualification where the person is acquitted m equity from the contract, and a sealed instrument is all that is necessary to discharge it : The Queen, evrel. Bill v. Belts, 4 U. C. P. Pv. 113. The disqualification does not merely relate to the time of acceptance of office, but to the time of the election. Jb. The Queen ex rel. Jiollo v. Beard, 1 U. C. L. J , N. S. 126. To refer the qualification to the time when the person elected might actually take his seat at the Council board would be wholly at variance with the spirit of the Act, and fatal to this very wholesome provision of the Act as to disqualification. Per Hagarty, J., lb. 128. The objection to the qualification should be taken at the nomination. The Queen ex rel. Tinning v. Edyar, 4 U. C. P. R. 36; The Queen ex rel. Adamsom v. Boyd, lb. 204 ; The Queen ex rel. Ford v. Mcliae, 5 U. C. P. R. .309. Where after notice of disqualification, voters perversely throw away their votes, the candidate of the minority is entitled to tlie seat. The Ktnn y. Hawkins, 10 East. 211. The King v. Parry, 14 East. 548. But the notice should in such case be made to appear clear and satis- factory. The Queen ex rel. Clarke v. McMullen, 9 U. C. Q. B. 467 ; The Queen ex rel. Metcalfe v. Smart, 10 U. C. Q. B. 89 ; The Queen ex rel. Forward v. Detlor, 4 U. C. P. R. 197 ; The Queen ex rel, Adamson v. Boyd, lb. 204 ; Ex rel. Mackley v. Coaks, 3 E. & B. 24S. The notice must be such as to bring home knowledge to the voters, apparently, not only of the fact constitviting disqualification, but the law that such fact does disqualify. The Queen v. Teiokesbury, 18 L. T. N. S. 851 ; S. C. L. R. 3 Q. B. 629 ; see also, The Queen ex rel. Dexter v. Gowan, 1 U. 0. P. R. 104 ; The Queen ex rel. Davis v. Curruthers, lb. 114; The Queen ex rel. Ford v. McRae, 5 U. C. P. R. 309 ; In re Essex Election, 9 U. 0. L. J. 247 ; Trench v. Nolan, L. 59> ^^•f$-' 60 THE MUNICIPAL MANUAL. [S. 75. tmd leiaees one years or upwards, of any property from the Corporation, {(j) tnmooT- * but no such leaseholder shall vote in the Council on any poration. question affecting any lease from the Corporation, and no such shareholder on any question affecting the Company, (r) 36 V. c. 48, s. 75. iizemptiona. Division III. — Exemptions. OfficlaU and Persons exempted. Sec. 75. 75. All persons over sixty years of 9ge, all Members and officers of the Legislative Assembly of Ont^ario, and of the Senate or House of Commons of Canada, all pei-sons in the civil service of the Cro^vii, all Judges not disqualifiea by the last preceding section, all Coroners, all persons in Priests' orders. Clergymen and Ministers of the Gospel of every de- nomination, all members of the Law Society of Ontario, whether Barristers or Students, all Attorneys and Solicitors in actual practice, all officers of Courts of Justice, all members of the medical profession, whether Physicians or Surgeons, all Professors, Masters, Teiicheis iind other members of any University, College, or School in Ontario, and all officers and servants thereof, all Millers and all Fireman belonging to an aathorized Fire Company — ai-e exempt from being elected or appointed members of a Municipal Council, or to any other municipal office, (s) 36 V. c. 48, s. 76. See also as to Firemen Rev. Stat. c. 178, ss. 2-4. R. 6 Ir. C. L. 464 ; In re Lainiceston Election — Drinhwater <. Dakln, L. 11. 9 C. P. 626 ; In re TipjJerari/ Election Petition, L. K. 9 Ir. C. L. 217. See further, Sublett v, Bedioell, 12 Am. 338, note . (7) The law was formerly different on both points. See Regina ex rd. Ranton v. Counter, 1 U. C. L. J. 68 ; The Queen ex rel. Pcuhvell v. Steimrt et al., 2 U. C. P. R. 18 ; The Queen ex rel. Stock v. Davift, 3 U. C. L. J. 128 ; The Queen v. York, 2 Q. B. 847 ; Simpson v. Ready, \2 M. & W. 736 ; The Queen v. Francis, 21 L. J. Q. B. 304 ; The Queen ex rel. Mack v. Manning, 4 U. 0. P. E. 73 ; The Queen ex rel. Patterson v, Clarke, .'5 tj. C. P. E. 337. The lessor of the Corporation so long as the reversion is not assigned is still disqualified. Iie(jina ex rel. Ross v, Rastill, 2 U. -C. L. J. N. S. 160. (r) Where four out of five of the members of a Village Council were shareholders in an incorporated trading company in the village, and notwithstanding their interest these members :'^oted for the sub- mission of a by-law to the electors for a bonus to the company, and after the vote of the electors passed the by-law, the by-law was set aside. In re Laird and the village of Almonte, 41 Q. B. 415. («) The last section contains the disqualifications, and this the s. 76] Freehold, llout Amount of rat Persons in de/( Voter must he ? Where oio Asses Case of new Te\ Joint or scvp-ral 82, 8j. Householder, de 76. Subject the right of voti following person one years, (h) am zation, (c) being exemptions. The < tion as regards an not hold oflSce, bu bound to accept ofl other a privilege, out some legal groi office to which he I elected refusing to punished. See sec, {«) Women are r franchise. See Tht (h) Full age inn pleted on the day Anon, 1 Salk. 44 ; fore one is born on the morning of the lived twenty-one y Upon a question of ; clergyman who man the memory of indi The Queen ex rel. Fo {c) See note h to si S.76] QUALIFICATION OP ELECTORS. PART III. OF MUNICIPAL ELECTIONS. 61 Title I. — Electors. Title II. — Elections. TITLE I.— ELECTORS. DtVISIOX 1. — QUALIFICATIOX. Freehold, Household, Income, or Farmers^ Son. Sec. 76. Amount of rating requisite. Sec. 77. Persons in defmdt for non-pa ijinent of taxes. Sec. 78. Voter must he 'iMiiied on list of pJictors. Sec. 7d. Whore no Assessment Roll. Sec. 80. Case of new TerHtory added. Sec. 81. Joint or several rating on same propertij provided for. Sees. 82, 8 J. Householder, definition oj. Sec. 84. 76. Subject to tlie provisions of the next eight sections Qualiflcntion the right of voting at municipal elections shall belong to the °* electors, following persons, T)eing males (a) of the full age of twenty- one years, (b) and subjects of Her Majesty by birth or naturali- zation, (c) being rated to the amount hereinafter provided on exemptions. The difference between a clisqual iication and an exemp- tion as regards an individual, is this, that a person disqualified can- not hold office, but a person exempt, even though qualified is not bound to accept office. The one is an incapacity or disabihty ; the other a privilege. It is an offence at common law for a person, with- out some legal ground of objection, to refuse to take upon himself an office to which he has been duly elected. So a qualified person duly elected refusing to accept office, may be summarily convicted and punished. See sec. 272. • («) Women are not here, as in England, entitled to the Ivlunicipal franchise. See The Queen v. Harrald, L. R. 7 Q. B. 361. (6) Full age in male or female is twenty-one years, and is com- pleted on the day preceding the anniversary of a person's birth. Anon, 1 Salk. 44 ; Toder v. Sansani, 1 Brown P. 0. 468. If there- fore one is born on 1st January, he is of age to do any legal act on the morning of the last day of December, though he may not have lived twenty-one years by nearly 48 hours. Tomlin "Infant," I. Upon a question of age of a voter, the written memorandum of the clergyman who married bis parents was held better evidence than the memory of individuals, unaccompanied by such memorandum. The Queen ex rel. Foi-ward v. Bartds, 7 U. C. C. P. 533. (c) See note h to sec. 70. ^•:M.'^ J ^2 THE MUNICIPAL MANUAL, [S. 76. the revised assessment roll upon which the voters' list used at the election is based, of the Municipality, (d) for real pro- pei-ty held in their own I'ight (e) or in the right of their wives, or for income, {/) and having received no reward and having no expectation of reward for voting : (g) Firstly. All persons, whether resident or not, who ax'e at IM: ■; (d) The franchise is not to be lost to any one who is really entitled to vote, if his right can be sustained in a reasonable view of the require- ments of the Act, The Queen ex rel. Cha'.nbers v, Allison, 1 U. 0.|L. J. N. S. 244. See also per Richards C. J. in Re McCuUoch 35 U. 0. Q. B. 452. The inclination of the Courts is in every way to favour the franchise. 27^it r ■$. «l THE MUNICIPAL MANUAL. [S. 7(1 House- holders and tenants. Secondly. All residents of the Municipality, who have re- The South Orcnville. C(ue, which was as fruitful as either of tlic other two, we have no published report whatever. The general rule is, that a person living witli his father, having no interest of any kind in the liouse or land, is not entitled to be assessed either as owner, tenant or occupant. The. Queen ex rel. Mc Veon v. Graham, 7 U. C L. J. 125. But when it is proved that an agreement exists (verbal or otherwise), that the son should have one-third or one-half the crops as his own, and sucii agreement is ItoiKt Jitle acted on, the son is entitled to be on the roll. The Brockville C'nue, 7 U. C. L. J. N. S. 221. 8o where it is proved that for sometime past the owner has given up the whole management of the farm to his son, re- taining his right to be supported from the product of tlie place, the son dealing with the crops as his own, and disposing of them to his own itse. Jh. A clearly esta])lishcd course of dealing or conduct for years as to management and disposition of crops and acts done by the son in the m.anagement of the farm, held sullicient to establish an interest in the crops in the son, tliougii the evidence of any original agreement or bargain ])c not clear. Jli. If the evidence would warrant the jury finding the crops (say in tlic year iireoeding the last assessment), to be the iH'operty of the voter, the son is riglitly placed on the roll, Jh. Occupancy to the use and Ijenefit of the occupant is sutHcient. Ih. In a milling business, where the agreement between the father and the son was, that if the son would take charge of tlie mil! and manage the busi- ness, he should have a share of the profits, and tlie son in fact solely managed the business, keeping possession of the mill, and applying a portion of the proceeds to his own use, it was hold that the sou had such an interest in the business, and, while the business lasted, such an interest in the land as entitled him to be on the roll. The >Stormonl Case, 7 U. C. L. J. N. S. 213. So, where the voter had been originally before 18G5 or 18()() put upon the Assessment Roll merely to give him a vote, but by a subsequent arrangement with his father, made in 18G5 or 18G(), he was to support the father, and apply the rest of the pro- ceeds to his own support, it was held that if he had been put on origi- nally merely for the purpose of giving a vote, and that was the vote questioned, it would have been bad, but being continued several years after he really became the occupant for his own benefit, he was entitled to be on the I'oll, though, originally the assessment began in his name merely to qualify him. lb. Where the voter was the equitable owner, the deed being taken in the father's name, but the son fur- nishing the money, the father in occupation with the assent of his son, and the proceeds not divided, it was held, that being the equi- table owner, notwithstanding the deed to the father, he had the right to be on the roll. lb. So where a verbal agreement was made between the voter and his father in January, 1870, and on this agree- ment the voter from that time had exercised control, and took the proceeds to his own use, although the deed was not executed until September following. lb. But the rule ia diflferent where father and son live together on the father's farm, and the father is in fact the principal, to whom money is paid, and who distributes it, and the son has no agreement binding on the father to compel him to give the son a share of the proceeds of the farm, or to cultivate a share of the land, and the son merely receives what the father's sense of jus- g. 76.] QUALIFICATION OF ELECTORS. sided therein for one month next before the election, and 65 i ■ ftice diftates. lb. Or where a certain occupancy M-as proved' on the part of the son distinct from that of the father, but no agreement to entitle the son to a share of the profits, and the son merely worked with the rest of the family for their common benefit. Jb. Ho where the Toter and his aon leased certain propei-ty, and the lease waa drawn in the son's name alone, and when the crops were reaped the son claimed they belonged to him solely, the voter owning other pro- perty, but being assessed for this only and voting on it. 76. Where the voter was the tenant of certain property belonging to his father- in-law, and before the expiration of his tenancy, the father-in-law, with the consent of the voter (the latter being a witness to the lease), leased the property to another, the voter's lease not expiring until November, and the new lease being made on the 28th March, 1870, held, that after the surrender by the lease to which he was a sub- scribing witness, he ceased to be a tenant on the 28th March, 1870, and that to entitle him to vote, he must have the qualification at the time of the final revibioii of the Assessment Boll, though not neces- sarily at the time he voted, so long as he was still a resident of the electoral division. lb. Where the voter had only received a deed of tlie property on which he voted on the 16th August, 1870, but previous to that date had been assessed for and paid taxes on the place, but not owning it ; held, that not possessing the qualification at the time he was assessed, or at the final revision of the Roll, he was not entitled to vote. lb. Where the father had made a will in his son's favour, and told the son if he would work the place and support the family, he would give it to him, and the entire manage- ment remained in the son's hands from that time, the property bemg assessed in both names, the profits to be applied to pay the debts due oif the place, it was held that, as the understanding was that the son worked the place for the support of the family, and beyond that for the benefit of the estate, which he expected to possess under his father's wiU, he did not hold immediately to his own use and benefit, and was not entitled to vote. lb. Where the owner died intestate, and the estate descended to several children, only the interest of the actual occupants is generally to be considered. The Brockville Case, 7 U. C. L. J. N. S. 221. Unless the occupant be shewn to be receiving the rents and profits, and on account of a party interested, though not in actual possession, a mere liability to account is not to be considered. lb. The widow of an intestate owner continuing to live on the property with her children, who own the estate, and work and manage it, should not, till her dower be assigned, be assessed, nor should any interest of hers be deducted from the whole assessed value, she not having the management of the estate. lb. Wliere on the trial of an election petition, the objec- tion taker was, that the voter was not at the time of the final revi- sion of the Assessment Roll the bona Jlde owner, occupant or tenant of the property in respect of which he voted, and the evidence shewed a joint occupancy on the part of the voter and his father on laiid rated at $240, it was held that the notice given did not point to the objection that if the parties were joint occupants, they were insuffi- ciently rated. The Stoitnont Case, 7 U. C. L. J. N. S. 213. '11 ■ Income voten. ,: :: 1 if !r iW '':■ !' ■.•* Ir. ')■-■ 1.. np- Hi ^ Parmen' THE MUNICIPAL MANUAL. [8. 76. who are, or whose wives p:«, at the date of the election, householders or tenants in the Municipality ; (t) Thirdly. All residents of the Municipality (j) at the date of the election, who have continuously resided thereift since the completion of the last revised assessment roll therefor, and who are in receipt of an income from some trade, office, calling or profession, of not less than four hundred doUara 36 V. c. 48, s. 77 ; 37 V. c. 3, s. 1. Fourthly. All residents of the Municipality at the date of the election who are farmers' sons, and have resided in the Municipality on the farm of theii* father or mother for twelve months next prior to the return by the Assessors of the as- sessment roll on which the votere' list iised at the election is based, (k) 40 V. c. 9, s. 3. (i) The occupant of any separate portion of a hous j having a dis- tinct communication with a road or street by an outer door, is a householder (sec. 84) ; and it seems to be now settled in England, where a house is let out in separate portions to different tenants, and the owner or landlord does not reside on the premises, though there is b'lt one outer door common to all the tenants, that each distinct portion so let is the house of such occupier. See The K'uuj v. Trap- shaw, 1 Leach. 427 ; The Kimj v. Carrell, lb. 237 ; The King v. Bailey, 1 Moody C. C. 23; and Littledale, J., in The Kinj v. Eye, 9 A. & E. 680 ; see also Wright and Stockport. 7 M. & G. 95 ; Toms V. Endell, 5 C. B. 23 ; Boon v. Hotcard, L. R. 9 C. P. 277 ; The Queen ex rel. Forward v. Bartels, 7 U. C. (3. P. 533 ; In re Cook ■ami Hnmber, 11 C. B. N. S. 33 ; In re Thompson and Ward, L. E. 6 C. P. 327 ; In re Stamper v. 21ie Overseers of Sunderland, L. H. 3 C. P. 388 ; In re Toicnshend and Overseers of St. Mary-le-bone, L. R. 7 O. P. 143 ; In re Ford v. Boon, lb. 150 ; In re Moger v. Escott, lb. 158 ; In re Bendle v. Wats^i, lb. 163. A person is not the less a householder because he lets a portion of his house to lodgers. Phillip's Case, Alcock's Registration Cases, 20; Duigcnan's Case, lb. 114 ; The Q%ieen v. Deighton, 5 Q. B. 896. No lodger, though occu- pying the principal part of the house, is ever rated. The owner, however small the part may be which is reserved to himself, is in such case deemed the occupier of the whole. The King v. Eyles, Cald. 414. A person occupying apartments in a jail held not to be a householder. In re Charles v. Lewis, et at., 2 C L. Chamb. R. 171. See further, The Queen v. St. George's Union, L. R. 7 Q. B. 90; Attorney Gene'ialv. The Mutual Tontine Westminster Chambers As- sociation, L. R, 1 Ex. Div. 469. ?. .- , (_;■) See note a to this section. (ifc) This franchise was first created by the Legislature in 1877, by 40 Vict. cap. 9. It is necessary to the enjoyment of the franchise. 1. That the person lie a fanners' son. 2. That he have resided in the Municipality on the farm of his a farmer's son to a 76.] farmers' sons. 6T 2. If there ai'e more sons than one so resident, and if the ^hen mon farm is noi rated and assessed at an amount sufficient, if so naidant. equally divided between them, to give a qualification to vote to the father and all the sons, where the father is living, or to the sons alSne where the father is dead and the mother is a widow, then the right to vote under this Act shall belong to and be the right only of the father and such of the eldest or elder of said sons to whom the amount at which the farm is rated and assessed will, when equally divided between them, give the qualification to vote. (I) 40 V. c. 9, s. 2. 3. If the amount at which the farm is so rated and assess" ed is insufficient, if equally divided between the father, if living, and one son, to give to each a qualification to vote, then the father shall be the only person entitled to vote in respect of such farm, (m) 40 V. c. 9, s. 2. 4. Occasional or temporary absence from the farm for a Temporary time or times not exceeding in the whole four months of the ' ""' t>velve hereinbefore mentioned, shall not operate to disentitle a farmer's son to vote, (n) 40 V. c. 9, s. 3. father or mother for twelve months, next prior to the return of the assessment roll. If either of these conditions be wanting there is no vote. (I) The value of the farm is made the foundation of the right of one or more persons to vote in respect of the farm. The father may have more than one son. The father may be dead and one or more sons survive him. Provision is made for these cases as follows : 1. If the farm be rated and assessed at an amount sufficient to give the father and his only son or all his sons if equally divided be- tween them a vote, then each is entitled to vote. 2. If the father be dead and the farm be of sufficient rated and as- sessed value to give a vote to all the sons if equally divided between them, then all entitled to vote. 3. Otherwise the right to vote shall be the rijht only of the father if living, and such of the elder sons as will rej resent the assessed and rated value of the farm when equally divided between them. (m) This follows from what precedes it. The foundation of tho right being the rated and apsessf.d value of the farm, if that value be not sufficient, il' divided between the father and a son, to give a vote to each, the father alone being the owner of the land is entitled to the vote. (n) A man cannot be a resident in two places at one time, see note h to this section. But a man may have his residence in one place and THE MUNICIPAL MANUAL. [S8. 77, 78. L'i' ' Intfrpnta- UUon. 6. In this and the foxii* next preceding clauses : ' " Farm " shall moan land actually occupied by the owner thereof and not less in quantity than twenty acres j "Sou" or "Sons" or "Fanners' Son " «)r "Farmers* • SoTis " shall moan any male jieraon or pei"sons not otherwise qualified to vote, and being the son or sons of an owner and actual occupant of a farm ; " Father " shall include stepfather ; " Election " shall mean an election for a member to a Municipal Council ; " To vote " shall mean to vote at an election ; and " Owner " shall mean proprietor in his '^wn right or in the right of his wife of an estate for life or any gi'eater estate either legal or equitable, except where the owner is a widow and in sucli latter case the tvord " owner " shall mean pro- prietor in her own right of any such estate, (o) 40 V. c. 9. 8. 1. Amount of 77. Jn order to entitle any person to vote as aforesaid in ■ary. "^ respect of real property, sucli property whether freehold or household or partly each, (p) must be rated at an actual value of not less than the following ; (q) In Townships — One hundi*ed dollai-s. In Incorporated Villages — Two hundred dollai-s. In Towns — Three hundred dollai-s. In Cities — Four hundred doUai-s. 36 V. c. 48, s. 78. FeriMna in default for non-pay ment of 78. No peifjon who has been returned by the Treasurer or Collector under section one himdred and fifteen as in default taxes not to ^°^ non-payment of his taxes on or before the fourteenth day Tote. of December next preceding any election, shall be entitled to vote in respect of income in any Municipality or in respect of real property in Municipalities which have passed by-laws be temporarily absent at another, where the absence being au occa- sional or temporary one is real and not for more than four months of the twelve required as a residence under sub. s. 4. Such oocasioual or temporary absence is not to deprive the farmers' son of his vote. (o) As to the meaning and effect of an interpretation olause such as this, see note c to s. 2, of this Act. ip) See note g to s. 70. (2) Formerly, for Municipal purposes, real property was rated at 8& 79-81.] ELECTORS IN NEW MUNICIPALITIES. under seotious four hundred and sixty-one, Rub-section two. (r) 36 V. c. 48, s. 77 ; See 38 V. c. 28, s. 8; and 39 V. c 6,8.9. . ' " .'^ 79. Except in the case of a new Municipality, for which ^•"*"' ""•* there is no assessment roll, no peraon shall be entitled to voto Toter'riut. at any election, unless he is one of the persons named or ])ur- potting to be named in the pro|)er list of voters ; and no question of qualification shall be raised at any election, ex- jjo queHtion cept to ascertain whether the person tendering his vote is the of quaiiiic*. same jjcrson as is intended to be designated in the said list r»ig«d!* of voters, (s) 3G V. c. 48, s. 77 ] 40 V. c. 12, s. 20 ; See 37 V. c. 3, s. 1. 80- At the first election of a new Municipality for which there is no separate assessment roll, every resident male in- habitant, though not previously assessed, shall be entitled to vote if he possesses the other qualifications above mentioned, and has at the time of the election sufficient property to have entitled him to vote if he had been rated for such property. (t) See 30 V. c. 48, s. 79. 81. Where any territoiy is added for municipal purposes to any City, Town or Village, or where a Town with addi- tional territory is erected into a City, or a Village vith additional territory is erected into a Town, or in case a new annual value in Cities, Towns, and Incorporated Villages, and at actual value in Townships. Since 1806 the distinction has been abolished. Actual value is now tbo rule in all local Municipalities for all purposes. See Fronienac v. Kingston^ 30 U. C. Q. B. 584 ; S, C. 32 if. C. Q. B. 348. (r) The object of such a provision as the present is, in the case of intending voters, to enforce payment of taxes in the year in which they accrue, and under any circumstances before the election of the ensuing year. In the 29-30 Vict. cap. 51, sec. 75, the provision was absolute, making it essential to the qualification of a voter that he should have paid on or before the sixteenth day of December next preceding the election, all Municipal taxes due by him. That portion of the section was dropped when the section war. amended and re-enacted by Stat. Out. 31 Vict. cap. 30, s. 9. It was i- . 36 Vict, cap. 48, 8. 77, restored in a modified form. It is still dependent on the passing of a by-law by the Council of the Municipality. See a. 461, Bub-8. 2. (s) See note (2 to s. 76. (0 In the case of a newly erected Township there can be no Assessment Boll for such Township, qnalificatiou in fact, without rating on any Roll, is, thertifore, all that is required in such a case. See see. 76 and notes thereto, as to the qualification of electors. In newly erected iimnlcl- liiilities not havin^r any asoesment roll. The cnee of new teiritory lulded to city, town or TUIagA, or a new city, il ■il r- 70 THE MUNICIPAL MANUAL. [88. 82-84. town or vil- lage, treotad with aildad territory, ftnd no Toteri' llftf tneludlng ■urh new territory. Yillagois formed, and an oleotion takes pin" before voters' lists including the names of persons entitled to vote in such territory are made out for such new or enlarged City, Town or Village, or before such lists are certified by the County Judge, then all persons who would have been qualified as electors in such territory if the same had remained separate from the City, Town or T illage, or if such Town or Y illage had not been erected into a City or Town, or if such Village had not been formed, :> expiration of the year until they are superseded by the election of other persons in their places. " Per Perkins, J., in Tuley y. State, 1 Ind. Cart. 50), 502 ; See further, The King v. Tretjenni/, 6 Ven. Abr. 296 ; Corporatic 'i of Banbury, 10 Mod. 346; The Kinr/ v. Pasmore, 3 T. R. 199; Foot V. Prowse, Str. 625; The King v.' Poole, Gas. Temp. Hardw. 23; Louisville v. Higdon, 2 Met. (Ky.) 526 ; King v. Lisle., Andrews 1()3 ; McCali V. Manufacturing Company, 6 Conn. 428 ; Kelaey v. Wright, 1 Root. 83; Wfir v. Bush, 4 Litt. (Ky.) 429; People v. Runk'le, 9 Johns. 147 ; Vernon Society v. Hills, 6 Cow. 23 ; iSlee v. Bloom, 5 Johns. C]i. 366 ; Bank v. Pettvau, 3 Humph. (Tenn.) 522 ; Steioart v. Stcde, 4 Ind. 396 ; Bei-.k v. Hanscom, 9 Fost. (N. H.) 213 ; Cocke v. Hahey, \6 Pet. 71 ; Chandler v. Bradish, 23 Vt. 416 ; S'',hool District V. Atherton, 12 Met. 105 ; Doxo v. Bullock, 13 Gray 136 ; Peorle v. Fairbury, 51 111. 149 ; See further. The Queen v. Owens, '> E. & E. 86 ; Frost v. Clmter, 5 E. & B. 531. (fO See sec. 81 as to voters Ksts. ' , . (e) The whole three mouths must expire. The day of the issue of the proclamation or passing of the By-law as well as the day of the 88. S7-89.] 87. The Cc cipahty (inclu a Town newly by by-law, (/) ensujjig Muni li' Id at the pia ivl;mici|)ality c 36 V. c. 48, s. 8t^. Wlien ii one hundred rei last revised ass( by a by-law to ber, in the same annual election a Eeturuiug Oil vMe for the due 36 V. c. 48, s. 8 89. In case oj the existing divif same had been d election, must be Blunt v. Ilcdop, 8 -,//^ The appointi ^n^ Queen ex ret. A in) One Robert ( hne between AVard the farm included ii Jo, 3. The Towns Township Conncillo Gillie's :>^i/,/e/,tha 01 his property iu V to have taken place wa^svoid. TheQuei (A) The time for ■ cannot be done aftej J« construed as dire I his would appear t( uito play in any yeai («■) The Ly-Iaw ou, 1. Fix a place for 2. Appoint a Retu 3. And otherwise -according to law. 10 I H SB. 87-89.] PLACES FOR HOLDING ELECTI017S. 73 87. The Council of eveiy City, Town and Village Muni- Place to be cipality (including a Village newly erected into a Town, and fa'^of'mu^' a Town newly erected iuto a City,) shall from time to time, cipaiitiei. bv ii)j-law, (f) appoint the place or places for holding the next ensuing Municipal election, otherwise the election shall be 1i' Id at the place or places at which the last election for the Municipality or Wards or polling subdivisions was held, {g) 36 V. c. 48, 8. 87. 8t- When in any year a Junior Township of a Union has First eiec- one hundred resident freeholders and householders on the then junior town- last revised assesement roll, the Council of the County shall, g^'^'L^t^J by a by-law to be passed before the thirty-first Oay of Octo- ber, in the same year, (/t) fix the place for holding the first annual election of Councillors in the Township, and appoint a Returning Officer for holding the same, and otherwise pro- vi'le for the due holding of the election according to law. (i) 36 V. c. 48, s. 88. 89. In case of the separation of a Union of Townships, Kxismig the existing division into Wai'ds, if any, shall cease, as if the ^ons ?n' same had been duly al»olished by by-law, and the elections of "/','**'J *°''"" Iff . See election, must be excluded from the computation of time. Blunt V. Jh6lop, 8 A. & E. 677. (/) The appointment of the place by resolution would be a nullity. . The Queen ex ret. AUemainy v. Zoeyer, 1 U. C. P. R. 219. {ij) One Robert Gillis had a farm through wIiieH ran the division line between Wards Nos. 2 and 3. His house stood on that part of the farm included in Ward No. 2, but his barn on ^^he part in Ward No, 3. The Township Council passed a by-law tliat the election of Township Conncillors, for •' Ward No. 3," should be held at "Robert Gillis's : Held, that the by-law must be read as meaning some part of his property in Ward No. 3, and that as the election was shown to have taken place in the house without the Umits of the Ward, it was void. The Queen ex rel Preston v. Preston, 2 C. L Chamb. R. 178. (A) The time for doing the act authorized being limited, the act cannot be done after the day named, unless the language used is to he construed as directory only. Davison et al v. QUI, 1 East. 64. This would appear to be a continuing provision, liable to be brought into play in any year by By-law passed before Slst October. (i) The l>y-Iaw ought to — 1. Fix a place for holding the first annual election ; 2. Appoint a Returning 0£Scer for holding the same ; i . • 3. And otherwise provide for the due holding of the election .according to law. 10 V|«. r 74 THE MUNICIPAL MANUAL. [SS. 90, 91. and Incor- porated vil- lages to be by general Tote. e«ue on dis- Councillors shall be by general vote, until the Township or imion?" °' Townships are divided into polling subdivisions or Wards- under the provisions of this Act (^*) 36 V. c. 48, & 89. BiecUon of 90- The election in Townships and incorporated Villages of taTtownshipB I^oeves, Deputy-Reeves and Councillors, shall be by general vote, except in the case of Deputy-Reeves and Councillors in Townships divided into Wards, and shall be held at the place or places where the last meeting of the Council was held, or in such other place or places as may be from time to time fixed by by-law. {k) 36 V. c. 48, s. 90. Upon peti- 91. In case a majority of the qualified electors of a Town- TOundfmay ship on tlie last revised assessment roll petition the Council df ii'^t^' °^ ^^*^ Township to divide the Township into Wards, or to ships Into abolished or alter any then existing division into Wards, wards, &c. ^j^g Council shall, within one month thereafter, pass a by-law to give effect to such petition ; (I) and if such petition is for division into Wards, shall divide such Township into Wards, having regard to the numbers of electors in each Ward, being as nearly equal as may be, and the number of Wards for municipal purposes shall be four in all cases ; (m) and where the ij) See sec. 91, see also note to aec. 133. {k) In the first place, it will be observed that leeves and Deputy Reeves, as well as Councillors, are to be elected by the people, and in the second place, that the election is to be by general vote. Be- fore 186G, Councillors only were elected by the people, and the Councillors then elected the Reeve and Deputy Reeve. Before 1860 also, where there v.as an existing division of a Township or incorpor- ated Village into Wards, the (flection was had for a particular Councilor in each Ward, and nc'i by general vote. The intention of having Reeves and Deputy H -jeves elected by the people, is to prevent men by combining in small bodies, in elfect, to elect them- selves to these offices. The intention of having a general vote is to destroy the sectional strife about the expenditure of money, which often arises where each Councillor looks upon himself as a represen- tative of a particular ward and not of the whole Township. This section is in effect a re-enactment of the Act of 1866 (29-30 Vict, cap. 51, 8. 92.) {I) This provides for direct legislation by the electors themselves- in the matter to which the section has reference. It is not in the discretion of the Council to pass or refuse to pass a By-law dividing, a Township into Wards, or abolishing that division, provided a major- ity of the qualified electors petition that a particular course be aaopted. In the event of such a petition being presented, it is mad& the duty of the Council not merely to pass the required By-law, but to do so '• within one month " after the presentation of the petition. (m) The power is limited. There must be in all cases at least four Wards. The number of electors in each Ward should be as neurly Division II.— Ri SB. 92-94.] RETURNING OFFICERS. n»: Township is divided into Wards, and is entitled to one or Election of more Deputy Reeves, the Councillora shall, at their first r^"^' ie,, meeting, elect from among themselves such Deputy Reeve or '«> ""e** «■»«. Reeves, (n) 36 V. c. 48, s. 91. 92. Every election shall be held in the Municipality to Election, which the same relates, (o) 36 V. c. 48, s. 92. ^,1^^^ ^ ^ 93. No election of Township Councilloi-s ohall be held Not to be within any City, Town or incorporated Village, (;;) nor shall any toierM, etc. election for a Municipality, or any Ward thereof, be held in a tavern or in a house of public entertainment licensed to sell spirituous or fennented liquore. (q) 36 V. c. 48. s. 93. Division II. -Returning OpncERa and Deputy Returning Officehs. Appointment when election by polling subdivisions. Sec. 94. When not, Who ex officio. Sec. 95. Absence, provision for. Sec. 96. Authority of. Sees. 97, 98, Special Constables. Sec. 98. 94. The Council of every Municipality in which the elec- Bylaw for tion is to be made by Wards or polling subdivisions, shall, »" eieoUon,. from time to time, by by-law appoint : (r) as possible equal, be regarded. Population rather than geographical situation h to {») The rule is diflferent where one Townsthip is not divided into Wards. In such case the Reeves and Deputy Reeves, as well as Councillors, are elected by the people. See sec. 90. (o) It is only proper that the election for each Municipality should,' for the convenience of voters, be held within the limits of that Muni- cipality. Cities, Towns and Incorporated Villages are quite distinct from and independent of the Townships in which situate. It is therefore provided l»y the uext section that no election of Township Councillors shall be held within any City, Town or Incorporated Village. See note g to sec. 87. (p) See th i last note. (q) There may be a taveni where' spirituous liquors are sold, which is not licensed to sell spirituous liquors. Contravention of the statute would, it is believed mvalidate the election. See 2Vte Queen ex rel. Alkmaing V. Zoeger, I U. C. P. R. 219; The Queen ex rel. Pretton V. Preston, 2 0. L. Chamb. R. 178. 41 (r) An appointment by resolution not sufficient. Allemaing v. Zoeger, 1 U. C. P. R. 219. The Queen ex rel. TB£ MUNICIPAL MAITUAL. m p-t 5|M fe [ss. 95, 96. (a) The places for holding the nominatioos for each Ward ; (6) The Returning Officera who shall respectively hold the nominations for each Ward ; (c) The places at which the polls will be opened in the Municipality in case a poll is required ; (d) The Deputy Returning Officers who shall preside at the respective polling places. 36 V. c. 48, s. 94 ; 37 V. c. 16, s. 4. 2. The Clerk of the Municipality shall be the Returning Officer for the whole Municipality, and in the case of a poll being required, the Deputy Returning Officera shall make to him the returns for their respective Wards or polling sub- divisions. See 40 V. c. 12. s. 13. Returning 95. In the cjise of a Municipality in which the election is elections' not ^^^ *^ ^® ^J Wards or polling subdivisions, the Clerk shall by wards or be the Returning Officer to hold the nomination of candi- Swisions" dates at all elections after the fii-st, (s) and shall also perform all the duties hereinafter assigned to, Deputy Returaing Officers. 36 V. c. 48, s. 95 : See 40 V. c. 12, s, 13. The absence 96. In case, at the time appointed for holding a nomina- inifofflcerOT ^^^^ *"' P^^^> *^® pei'son appointed to be Returning Officer or deputy re- Deputy Returning Officer has died, or does not attend to hold cer"provided the nomination or poll within an hou?* after the time appointed, *>'• or in case no Returning Officer or Deputy Returning [Officei*,] has been appointed, the electors present at the place for holding the nomination or poll may choose from amongst themselves a Returning Officer or Deputy Returning Officer, (t) and such Returning Officer or Deputy Returning Officer shall have all the powere, and shall forthwith proceed to hold the Domination or poll, and perform all the other duties of {a) Where the election is to be by Wards ov polling subdivisions, the Councils appoint Returning Officers to hold the nominations and the Deputy Returning Officers to preside at the polling places (sec. 94) ; but where there are no Wards or Electoral Divisions, it is here provided that the Clerk shall be the Returning Officer to hold the nomination, and shall also perform all the duties assigned to Deputy Returning Officers. [t) The cases in which the electors may, under this section, appoint a Returning Officer, or Deputy Returning Officer, are : 1 . Where the RetumingOfficer or Deputy Returning Officer has died. 2. Does not attend within an hour after the time appointed. 3. Or where no Returning Officer or Deputy Returning Officer has been appointed. ; . , , . 88. 79, 98.J a Retui'niDg < y. c. 48, s. 96. 97. Every Officer shall, d of electors upoi for the City o held; and he, « in the Municip may cause to b( by fine or impi over to keep th( person, who ass coming to, or r voting ; (v) and persons present turning Officer, of the Peace. £ 98. Ever^Kel or Justice of the of special constat aoid of order at a: hy-law ; and anj quired to be sw Officer or Deput refuses to be swo («) A Returning It IS the duty of a i contending parties j himself; to a^proa justice ; to be readj the state of his proc enquiry ; to mislead to deceive ; and he c the letter of the law rel. Corbett v. Jull, > (v) In general, th< «pon his own view. by himself, or withii of others, it is suggei proceed as any other circumstances. An assault upon a voter nutted at a distance 18 to empower the R the heanng and detej point of authority he 88. 79, 98.] SPECIAL CONSTABLE& 77 a EetuiTUDg Officer or Deputy lietuming Officer, (u) 36 M: c. 48, 8, 96. . 97. Every Returning Officer and Deputy Returning Retumine^ Officer shall, during the days of the election, or of the voting Deputy*Be- of electors upon a by %w, act as a conservator of the peace ^"!?5P®* for the City or County in which the election or voting is comervatora held ; and he, or any Justice of the Peace having jurisdiction their"^*^ in the Municipality in which the election or voting is held, powers, may cause to be arrested, and may summarily try and punish by fine or imprisonment, or both, or may imprison or bind over to keep the peace, or for trial, any riotcus or disoi'derly person, who assaults, beats, molests or threatens any voter coming to, or remaining at, or going from the election or voting ; (v) and, when thereto required, all constables and persons present at the election or voting, shall assist the Re- turning Officer, or Deputy Returning Officer, or Justice of of the Peace. 36 V. c. 48, s. 97. 98. Every Returning Officer, or Deputy Returning Officer, Special con- or Justice oi the Peace may appoint and swear m any number be sworn in- of special constables to assist in the preservation of the peace and of order at an election or at the voting of electors upon a by-law ', and any person liable to serve as constable, and re- quired to be sworn in as a special constable by a Returning Officer or Deputy Returning Officer, or Justice, shall, if he refuses to be sworn in or to serve, be liable to a penalty of (m) a Returning OflScer, so appointed, should not be a partizan. It ia the duty of a Beturning Officer to stand indifferent between the contending parties ; to have no interests to serve for either, or for himself ; to approach his duty with the simple desire to do strict justice ; to be ready and willing to give reasonable information as to the state of his proceedings ; to conceal nothing ; to evade no proper enquiry ; to mislead no one by silence, or exhibit anything calculated to deceive ; and he ought not to make a pretence of strictly following the letter of the law, to defeat it. Per Wilson, J., in The Queen ex rel. Corbett v. Jull, 5 U. C. P. R. 48. (v) In general, the Returning Officer will act under this section upon his own view. But when, instead of acting on facts observed by himself, or within his own knowledge, he acts on the information of others, it is suggested he should take a regular information, and proceed as any other Magistrate would be required to do under like circumstances. An example would be, when the complaint is an assault upon a voter coming to or returning from the election, com- mitted at a distance from the poll. The main object of the section is to empower the Returning Officer to act promptly on the spot in the heanng and determining of offences occurring at the poll ; out in point of authority he is not so restricted. 3 m THE MUNICIPAL MANUAL. [s. 99. twenty dollars, to be recovered to the use of any one who will sue therefor, (w) 36 V. c. 48, s. 98. Division III.— Oaths. .^ In case qf/reeholders. Sec. 99. In case of h'juseholder or tenant; Sec. ICO. In case of a person voting on income. Sec. 101. In case of a person voting as a farmer* s son. Sec. Administering, Sec. 103. 99. 102. Oaths, etc., »»• The only oaths or affirmations to be required of any that may be person claiming to vote in respect of a freehold, shall be as put to person J, ,, x S. ii «• i. / \ •fliahning to tollows, or to the like enect : — {x) vote as a freeholder. You swear {or solemnly afiirm) that you are the person named, or purporting to be named, in the list (or supplementary list) of voters now shown to you (a) (showing the lint to the voter) ; Thst you are a freeholder in your own right, (6) (or right of your wife, as the case may require) ; That you are a natural- born (or naturalized) subject of Her Majesty, (c) and of the full age of twenty-one years ; (d) (In the case of Municipalities not divided into Wards.) That you have not voted before at this election, either at this or any other polling place. (In the case of Municipalities divided into wards.) That you have not voted before at this election either at this or any other polling 5 lace in this Ward, and ((/" the elector is tendering his vote for layor, Reeve or Deputy Reeve) that you have not voted before or (w) The penalty may, it is apprehended, though not so expressed, be sued for in any Court of competent jurisdiction, for instance, in a Division Court. See Brash q. t. v. Taggart, 16 U. 0. C. P. 416. (x) It was at one time held that the swearing falsely at an election of Alderman, for the City of Toronto by a person that he is the persoi" described in the list of voters entitled to vote, was not perjury, Thomas v. Piatt, 1 U. C, Q. B.. 217. (a) A Returning Officer who receives illegal votes, not on his hst, may be made to pay costs. The Queen ex rel, Johnson v. Murney, 5 U. C. L. J. 87, see further Regina ex rel. Jhtten v. Benn, 4 IT. C. L. J. 162. Where a voter has parted with the property in re- spect to which he votes, though on the hst, he has no legal right to to vote. 2'Ae Queen ex rel. Lutz v, Hopkins, 7 U. C. L. J. 152. If a Returning Officer, upon discovering an error in the entry of a vote, has the power to make the necessary correction, he must make it promptly, and only in a case where the mistake in making the entry IS beyond doubt, lb. (b) See note A to s. 76. (c) See note 6 to sec. 70. ... (d) See note b to sec. 76. ■a. 100.] OATH OF HOUSEHOLDERS OR TENANTS. 79 elsewhere in this Municipality at this election for Mayor, (Reeve or Deputy Reeve as the case may be) ; That you have not dirtsoi/ly or indirectly received any reward or gift, nor do^ou expect to receive any, for the vote which you tender at this election ; That vou have not received anything, nor has anything been promised to you, directly or indirectly, either to induce you to vote at this election, or for loss of time, travelling expentiea, hire of team, or any other service connected with this election ; And that you have not directly or indirectly paid or promised any -thing to any person either to induce him to vote or refrain from vot'ng at this election : So help you God. {In '/w ease of a new Muncipality in which there has not been any in new Muni- assess nent roll, then instead of re/erring to the list of voters, the person "ipnUty offering to vote may be required to state in the oath the property in respect ^^IJLf|?t ^ which he claims to vote.) loU, 36 V. c. 48, s. 99 ; 40 V. c. 8, s. 50. 100. The oath of affirmation to be required of any person o»th of claiming to vote as householder or tenant, (e) shall be as fol- or tMulate!" lows, or to the like effect : — You swear (or solemnly affirm) that you are the person named or purporting to be named on the list (or supplementary list) of voters now shown to you (showing the list to the voter) ; (f) That on the day of 18 (the day cer- tified by the Clerk of the Municipality as the date of the return, or of the final revision and correction, of the assessment roll upon which tlie voters' list used at the election is based) you were actually, truly, and in good faith, possessed to your own use and benefit, as tenant or ^occupant, of the real estate m respect of which your name is entered on the said list ; (g) That you are (or your wife is) a householder or tenant within this Municipality ; That you have been resident within this Municipality for one month next before this election ; (gg) That you are a natural-bom (or naturalized subject) of Her Majesty (h) and of the full age of twenty-one years ; (i) (in the case of Municipalities not divided into Wards.) That you have not votea before at this election, either at this or any other polling place ; (In the case of Municipalities divided into Wai'ds. ) That you have not voted before at this election, either at this or any other polling place in this Ward, and (if the elector is tendering his vote for Mayor, JReeve or Deputy Reeve) that you have not voted before or elsewhere (e) See note t to s. 76. (/) See note a to s. 99. (g) See note i to s. 76. {gg) See note h to s. 76. (h) See note 6 to s. 70. " ^0 See note b to 8. 76. ^ imi 'fi 80 THE MUNIOIPAL MANUAL. [S. 101. in this municipality at this elecvion for Mayor, (Reeve or Deputy Reeve an the case may be) ; That you have not, directly or iudirectly, received any reward or gift, nor do you expect to receive any, for the vote which you tender at this flection ; That you have not received anything nor has anything been promiaeil to you directly or indirectly eitner to induce you to vote at this election, or for loss of time, travelling expenses, hire of team, or any other service connected with this election ; And that you have not directly or indirectly paid or promised any- thing to any person either to induce him to vote or refrain from vot- ing at this election : So help you God. In new \ln the case of a new MuniclpalUi/ in which there ha-'i not been any Municipality aanessinent roll, then instead of s or» the list {or supplemental . ;t) of voters now shown to you {showinij the list to voter) • (j) That on the day 18 {the day certified by the Clerk of the Municipality as the date of tJie final revision and correction of the assessment roll upon which the voters' list used at the election is based), you were, aad thenceforward have been continu- ously, and still are, o resident of this Township (City, Town or Vil- lage, as the case may be) ; (k) That at the said date, and for twelve months previously, you were in receipt of an income froui your trade (office, calling or profession, as the case may be) of a sum of not less than four hundred dollars ; That you are a subject of Her Majesty by birth {or naturaliz*ition, as the case may be ;) yl) and are of the full age of twenty- ond years ; (».'.} {In the case of Municipalities not divided into Wards.) That you have not voted before at this election, either at this or any other polling place ; {In the case 0/ Municipalities divided into Wards.) That you have not voted before at this election, either at this or any other polling place in this Ward, ana (if the elector is tenderiug his vote for Mayor, Jteeve or Deputy Reeve) that you have, not voted before or elsewhere in this Municipality at this election of Mayor (r^eeve or Depuly Reeve, as tite case may be) ; That you have not leceived anything, nor has anything been promised you, either directly or indirectly, either to inauce you to (J ) See note a to s. Jd. {k) See note h to s. 76. {I) See noti 6 to s. 70. ,. : <* (m) See note b to s. 70. 5 . , - '. 102.] OATH OF Farmers' son. M vote at this election, or for loss of time, travelling expenses, hire of team, or any other service connected with this election ; And that you have not, directly or indirectly, paid or promised anything to any person, either to induce him to vote or refrain from voting at this election : So help you God. 37 V. c. 3, s. 4 ; 39 V. c. 5, s. 7 ; 40 V. c. 12, s. 16. 102. The oath or affirmation to be required from apormofoath farmer s son claiming to be entitled to vote (^i) shall be as "' '"mer's follows : — You swear {or solemnhj affirm) that you are the person named (or purporting to be named by the name of ,) in tlie lis*- (or supplcnientary Hat) of voters now shown to you {showing the i iat to voter) ; (o) That on the day of 18 '/he day certifies by the Cleric of the Municipality, an the date of the return, or of thtjinal revision and correction, oj the assessment roll upon which the voters' list used at the election is based, as the case requires.) A. B. {naminij him or her), was actually, truly, and in good faith possessed to his {or her) own use and benefit as owner, as you verily believe, of the real estate in respect of which your n*ii:e is so as aforesaid en- tered on said list of voters ; That you are a son of the said A. B. ; That you resided on the said property for twelve months next before the said day, not I'riving been absent during that period, except temporarily, ar.'i not more than four months in all ; That you are still a resident of this Municipality, and entitled to vote at this election ; That yoa are a sul)ject of Her Majesty by birth {or naturalization as the case may he) ; and are of the full age of twenty-one years ; {In the case of Manicipalities not divided into Wards.) That you have not voted befcre at this election, either at this or any other polling placp ; {In the case of Municipalities divided into Wards.) lliat you have not voted before at this election, either at this or any other polling place in this Ward, and (*/ the elector is tendering his vote for Mayor, Reeve or Deputy Reeoe) that, you have not voted before or elsewhere in this LIunicipality at this election for Mayor, (Reeve or Deputy Reeve as the case may be) ; That you have not received anything, nor has anything been promiaed you directly or indirectly either to induce you to vote a1 this election, or for loss of time, travelling expenses, hire of team, or any other service connected with this election ; And that you have not directly or indirectly paid or promised anything to any person either to induce him to vote or refrain from voth g at this election : So help you God. 40 V. c. 9,8.9. («) See sec. 77. (o) See note a to sec. 99, 11 4 J '! 82 When and how oatliH are to bo sdmlnis- tvred. t'*J' IM 'V ' THE MTINICIPATi MANUAL. [sfi. 103, 104. 103. Such oaths or atlivmationH shall l»o adniiniatored by tho Koturning '^>fftcer or Deputy Retarniiig Ofiicer as the case uiay be, at the recjuest of any candidate or hiw author- ized agent, and no iuquiriHS shall be made of any voter, except with respect to tho facts specified in such oatlis or affiimations. (p) 36 V. c. 48, a. 101. Division IV. — Proceei)1n«s Prkliminaky to the Poll. Nomination Meetings. Sees. 104, lOfi, 107. rresldlng Officer. .Seen. 105, 107, 110. Proiilslon/or Christmas Day. Sec. 108. Interval between Novilnatlon and Election in case of remote Town,*^o furtlier, note b to Ketiirninff olKcur ou, mnnl,er ot candidates to (to so 13 an irregiUa, ashowofjian-. Eu smg tho opinion of thr view, either hoiJinij candidate., or by divi ^ poll was cion^aided Sections, 160. ('•) The sessions of < he assembly appoiuto the place of meeting ofi cars, but the Poll held at the house of on («) If, through soniP ^mistake the l;r: JeM that an election by The Queen y. Bradford: («.) The Council shoul all apprehended or exne, present may choose f submitted the ChaLt„< nomination to ifj. fT^ meantime of thfcS"^ substitute. ThepSd r 105.] NOMINATION MEETINGS. 83 aiitl for Mayor, Roeve mid Deputy Reeves in Towns, (q) at nomtntdon tlio hall of tho Municipality, (r) on the last Monday in the we'r',^*' ' iiionth of I>ecoinl)or, annually, at ten of tlie clock in the fore- Jj^"„*^,^ noon, («) and the Deputy Reeves shall be desij^nated as first, second, third, iVc, according to the number to be elected. 3G V. c. 48, s. 102. 105. The Clerk of tho Municipality shall be the Return- The oUrk to ing Oilicer to ))resido at such meeting, or in case of his '"** *" absence, the Council shall appoint a person to preside in his pliicf! ; and if tho Clerk or the person so appointed do(!a not attend, the electors present shall choose a chairman or person Chalrmtu. to officiate from among themselves, and such Clerk or chair- man shall have all tho powers of a Returning Officer, (t) 3G V. c. 48, s. 103. [q) A nomination is n rcsohition submitted to the electors that the party named is a candidate for their sufi'rage for an office named. Per Wilson, J. in The Queen ex rel Corhett v. JuU, 5 U. (J. P. 11. 47. Suo further, note h to sec. 112. A popular impression exists that the Retaining OlHcur ought, when there are more than tho necessary number of candidates, to take a show of hands, and that the omission to do so is an irregularity. The modern practice is no doubt to take a sliow of,han^^. But formerly there were several modes of expres- sing the opinion of the electors, which constituted an election by the view, either hoivling up of the hands, calling out the names of the candidates, or by dividing into separate bodies. When, however, a poll was cion^aided, tiaese forms were unnecessary, Clark on Elections, IGO. ()•) The sessions of the County of St. John had persuaut to act of the assembly appointed a certain school-house in the parish of L. as, the place of meeting for the nomination of candidates for parish officers, but the Poll Clerk gave a notice for the meeting to be held at the house of one C, in the same settlement and not more than seventeen rods distant from the school-house. The parishioners met at the place named in tho notice, organized the meeting, and then adjourned to meet at the school-house where the election afterwar*^- took place. The election was held to be void. Ex parte Robinson, o Pugs. N. B. 389. (s) If, through Bome blunder, the majority of the electors were to mistake the day of election, and abstain from voting, it might be held that an election by the minority would not be a valid election. The Queen v. Bradford, 2 L. M. & P. 35. (<) The Council should provide for the absence of the Clerk, if at all apprehended or expected. Should they fail to do bo, the electors present may choose a Chairipan. Should the electors do so, it ia submitted the Chairman so chosen would have a right to conduct the nomination to its tennination, notwithstanding the presence in the meantime of the Clerk, or a person appointed by the Council as his substitute. The proceedings at the meeting, if not presided over by ■ 'f J' l' > 84 Nomination mMtlngi In olUei, towni, tie. In town- ■hipi dlTlded litto warUH. THE MUNIOIPAIi MANUAL. [SS. 106, 107. 106- A meeting of the electors (u) shall take place for the nomination of candidateH for the ofKces of Aldermen in Cities, Councillor in Towns, and of Beeves, Deputy Keeves and Councillors in Townships not divided into Wards, and incorporated Villages at noon, on the last Monday in De- cember annually, at such place therein, and in Cities and Towns, at such i»laces in each Ward thereof, as may from time to time be fixed by by-law, and the Deputy Reeves shall bo designated as first, second, third or fourth, according to the number to be elected. 37 V. c. 16, s. 3. 107' In Town8hi])8 divided into Wards, the nomination of candidates for the office of Reeve (v) shall be held at ten of the clock in the forenoon (w) on the last Monday in December, at such place in the Township as may from time to time be fixed by by-law, (x) and the Township Clerk shall preside ; (y) the nomination of candidates for the office of Councillor, to be elected for each Ward, shall take place at noon, at such place in the Townshij) or in each Ward as may be fixed by by-law. (z) 37 V. c. IG.s. 3. the officer or person assigned, would in all probability bo held abso- lutely void. " It cannot bo a mere matter of procedure or form, that there sliould he no person presiding at the meeting in whom is vested the authority for conducting the election and for maintaining peace and order, to whom the Legislature has entrusted the counting of votes and certifying the result. In the absence of any such person, I do not see how a poll can be taken, or the result legally ascertained. " Per Draper, C. J., In re Hartley/ and Emit!/, 25 U. C. Q. B. 15. "The Legislature says, and I must take it, for very good reasons, that the election is to be conducted by a particular officer, and then another person goes and conducts it. Even if I had a discretion, I should not exorcise it in supporting such a practice. It is very mucli the same as if a cause was referred to a barrister, and he were to go away for his own pleasure and leave it to his clerk, and then it was said that the award was good because it was made just as well as if it had been made by the barrister. Or if a cause was to be heard by a Judge, and he left it to one of the masters, he might conduct it just as well as the Judge, but that would not do." Per Crompton, J., in The Queen v. Backhouse et ai, 12 L. T. N. S, 679 ; see further Pickeriny v. James, L. R. 8 C. P. 489. (i() A meeting of the electors means a coming together of the electors. The attendance of one person only could not be a meeting. See Sharp v. Daives, L. R 2 Q. B. Div. 26. (v) See note q to s. 104. (to) See note a to s. 104. > (x) See note r to s. 104. (y) See note t to s. 105. (z) Formerly persons to fill the office of Beeve and Councillors were fla 108-1 ll.J 108. When 1 Christmas Day, of Mayor and Deputy Reeve shall take place places and in tli 8. 20. 109. Every C fore the first day , the nomination oi Councillora in To' sliall be upon th< the other provis sliall apply to the 2. Forthwith, I Clerk shall tran.<= Townships to whi 110. Tho Retui in the ninety-four case may be shall i nomination of can( presiding officer, tl V-c. 48,8. 105,;;, . 111. The Clerk IS to jireside at tho shall give at least s "V^-c. 48, a. wd,j)a nominated at the sam was some confusion a offices, the design of i •Reeve shall be at 10 o Councillors at noon is M See note i to se (rt) This means six B. 181. Where a stat or so many days at leai done and that of the *Aro;w/H>e, 8A&E. 1 of " ten days at least " at least ten periods of i delivery and the day ^»ry, 4 C. BL 37. It ; B8. 108-111.] NOTICE OP NOMINATION MEETINGS. 108- When the hist Monday in December happens to be J' nomin*. ChriHtmas Day, the nonunntion of cundidHtes for the ofKces f»iia on of Mayor and Aldermen in Cities, and of Mayor, Reeve, pl^?*^""" Deputy Reeve and Councillors in other Municipalities, shall take place on the preceding Friday, at the times and places and in the manner prescribed by law. 39 V. c. 7, 8. 20. 109. Every County Council may, by by-law, made on or be- fore the first day of July in any year provide that the day fur the nomination of candidatew for Reeve, Deputy Rccvch, and Councillor in Townships situate in remote parts of the County shall be upon the last Monday but one in December, hut all the other provisions of law relating to municipal elections slinll aj)ply to the elections in such Townshijjs. County oouB- ell may by by-law, iungtbcn time b«twMB nomination and polling In ifimote townahlpf. 2. Foi-thwith, after the passing of such by-law, the County Copy of by- Clerk shall transmit a coi)y thereof to the Clerks of the ienttotOTrn- Townships to which the same relates. 40 V. c. 8, s. 48. "hipi nffttoted. 110. The Returning Officer appointed for each Ward, as PreMding in the ninety-fourth section mentioned or the Clerk as the "ffl*-*""- case may be shall respectively preside at the meeting for the nomination of candidates, and in case of the absence of such presiding officer, the meeting may 'ihoose a chuirman. (zz) 36 V. c. 48, s. 105,;;ar<. 111. The Clerk or other Returning Officer whose duty it Notice of is to preside at the meeting for the nomination of candidates ^^11^!°" shall give at least siv ':l!iv8' notice (a) of such meeting. 36 give v. c. 48, a. LVd, 2)(trt. nominated at the same time and place. The result was that there waa some confusion as to the different persons to fill the different offices, the design of this section by providing that nominations for ■Reeve shall be at 10 o'clock in the forenoon, and the nomination for Councillors at noon is to avoid such confusion. (zz) See note t to sec. 105. {n) This means six full days. In re S ms v. Toronto, 9 U. C Q. B. 181. Where a statute says a thing shall be done so many days, or so many days at least, before a given event, the day of the thing done and that of the event must both be excluded. The Queen v. Shro}v>hire, 8 A & E. 173 ; Mitchell v. Foster, 9 Dowl. 527. A notice of " ten days at least " for a hearing, means that there shall elapse at least ten periods of twenty-four hours each between the day of it delivery and the day of hearing. Per Maule J., in Norton v. Salis- bury, 4 C. & 37. It means ten clear, full and complete days, and 'IJ 86 . THE MUNICIPAL MANUAL. [S. 112. t| Nomination 112. At the said meetings, the person or peraons to fill inga Kdtoat ®^°^ office, shall be proposed and seconded seriatim ; (b) and thereto. if no Other candidate but one for any particular office is pro- posed, the Clerk or other Returning Officer or chairman shall, after the lapse of one hour from the time fixed for holding the meeting, declare such candidate duly elected for such office, (c) But if two or more candidates are proposed for any particular office, and if a poll is required by them respect- ively, or by any elector, the Clerk or other Returning Officei o)^ chainnan shall adjourn the proceedings for filling such office until the first Monday in January next thereafter, when a poll or polls shall be opened in each Ward or polling sub- division, at such place or places respectively as may be fixed by the by-law of the said Councils for the election, at nine of the clock in the morning, and shall continue open until five of the clock in the afternoon, and no longer, (d) 36 V. c. 48, s. 106. not nine clays and fractions of other two days. Per Wilde, C. J., in Adey v. Hill, lb. 40. See further ZfoMJca v. Peirce, L. K. 1 C. P. Div. o70. (6) It would seem that where more persons are proposed and seconded than necessary, and, after polling commenced, all except the necessary number retire, the Returning Officer could not close the poll unless under the circumstances mentioned in this section. See The Queen ex rel. Home v. Clarke, 6 U. C. L. J. 114. The election is commenced when the Returning Officer receives the nomination of candidates. Tfie Queen v. Cowan, 24 U. C. Q. £. 606. ( c) By allowing an hour to elapse between the nomination and the proceeding to close the election in case of no further nominations, the Legislature means to protect the electors against haste and sur- prise. Per Wilson, J., in The Queen ex rd. Corbett v. Jull, 5 U. C. P. R. 48. Unless an opportunity be given to the eleetors present to express their assent or dissent, there cannot be said to be an election by acclamation. Ih. (d) Where a poll is demanded the election commences with it as being the legular mode of popular election, the shew of hands being only a rude and imperfect declaration of the sentiments of the electors. In the nature of things the demand of a poll never is, nor can reasonably be expected to be made until the necessity for Buch demand arises, that is until one of the contending partiec is dig- satisfied with the decision of the chairman upon the show of hands. Per Tindall, C. J. in Campbell v. Maund, 5 A. & E. 881. The poll- ing is a continuation of the proceedings initiated by the nomination. See The King v. Archdeacon of Chester, 1 A. & E. 342. Where a poll is granted a poll must be had even although all the candidates except one after the nomination and before the polling decline the .wi s. 113,] RESIGNATION OF CANDIDATES. 87 t 113> At the nomination meeting, (e) any person proposed Any penwn for one or moi'e offices may resign, or elect for which office he may "^pi, is to remain nominated ; and in default, he shall be taken as ^y •» de- nominated for the office in I'espect of which he was first pro- t*kea u posed and seconded ; (f) the Clerk or other Returning Officer nominated, or chairman shall, on the day following that of the nomina- tion, post uj) in the office of the Clerk of the Municipality pe^a'pro- the names of the persons proposed for the respective offices, posed. (g) 36 Y. 48, s. 108. coutest. Wexford Election, L. R. 3 Ir, C. L. 612 ; The Queen v. Cooper, L. R. 5 Q. B. 457. At a Township election after the nomina- tion of several candidates the Returning Officer adjourned to another room to receive votes, but none were tendered. He then closed the poll. Held, the election was void. The Queen ex rel. Smith v. Brouae, 1 U. C. P. R. 180. It is necessary that during the hours for polling the electors should have free access to the polling places. The fact that a large number of duly qualified electors could not cast their votes, is a sufficient reason for setting aside an election, if the result would have been affected by the unpolled votes. Per Ricliards C J., in The Queen ex rel. Davis el al. v, Wil807i et al., 3 U. C. Ij. J. 165 ; See further, The Queen ex rel. Kirk v. Aa^elstine, 1 U. C. L. J. 49 ; The Queen ex rel. Oibha v. Branighan et al., 3 U. 0. L. J. 127, Anon. 8 U. 0. L. J. 76. (e) See note q to s. 104 (/) It may be that the same person is qualified to fill incompatible ofiices, such as Reeve, Deputy Reeve, and Councillor, and has been nominated for more than one of these offices. A person so nominat- ed must elect for which office he is to remain nominated. If he fail to do so, he is to be considered as nominated only for the office for which he was first proposed and seconded. This provision is abso- lutely necessary to avoid entanglement. A candidate proposed for only one office may also resign, with the consent of his proposer and seconder and of the electors present. The Queen ex rel. Coyne v. Chisholin, 5 IT. C. P. R. 328. ((7) Duties are cast as well ou the Chairman of the meeting as on the Clerk of the Municipality, the performance of which is necessary to to the proper conduct of the election. It is essential that each Re- turning Officer qhould have a list of the candidates ; but where there was an omission '^f the name of one of the candidates, and the ques- tion to be decided was not the mere abstract ground of the omission of 'the name, but only what effect it had upon the final result of the election ; and it did not appear that the result would have been dif- ferent if the name'omitted had been properly entered on the list, the election was upheld. The Queen ex rel. iValker v. Mitchell, 4 U. C.nP. R. 218. A voter who permitM one candidate to retire with- out expressing objection of any kind, and after his retirement nominates another candidate for the office, will not bo allowed afterwards ^to insist upon having the name of his first nominee entered on the poll books. The Queen ex rel. Coyne v. Chisholin, 6. U.'C. P. R. 328. . li J 88 YotMtobe 1>y baUot THE MUNICIPAL MANUAL. [s& 114, 115. 114. In case of a poll at an election of persons to serve in Municipal Councils, the votes shall be given by ballot, (h) 38 V. c. 28, 8. 1. Liat of de- faulters in payment of taxes. Preparation of Defaulters Lists. 115. On or before the day of nomination of candidates, if the Collector's roll has been returned to the Treasurer of the Municipality, the Treasurer shall prepai'e and verify on oath, or if the Collector's roll has not been so returned, the Col- lector shall prepare and verify on oath, a con-ect alphabetical list of — (a) All persons who, being on the votere' list (that is to say the first and second parts thereof) b^^ reason of their in- come only, have not paid their municipal taxes on such income on or befoi'e the fourteenth day of December preceding the election; and (6) In Municipalities which ha%'e passed by-laws under stib-section two of section four hundred and sixty-one of this Act, all pei-soDS on the votei-s' list (that is to say the fii-st and second parts thereof), who have been assessed for real property, but have not paid their municipal taxes on such property on or before the foui-teenth day of December pre- ceding the election. 40 V. c. 1 2, s. 6. List to be 2. Where a municipality is divided into polling sub-divi- madefor sions, such a list of defaultei-s shall be made for each pollins each iwlling v T • • ^ a ir i o T division. sub-division. 40 V. c. 12, s. 7. Certified 3. Tlid person preparing the said defaulters' lists, shall fur- «>P'«« ^''e nish to all persons applying for the same, certified copies thereof, and of the aflBdavit verifying the same, in the same manner and for the same compensation as copies of the votei*s' list are to be furnished. 40 V. c. 12, s. 8. (h) The ballot was iirst applied to Municipal Elections in 1874, by the Act 38 V^ict, cap. 28, Out. There have as yet not been many decisions under it. The great characteristic of vote by ballot is secrecy, its design is to secure the largest possible freedom of elec- tion. It is impossible to destroy all the influences which may be said to effect the freedom of the voter but it is the desire of the Legislature to reduce these induences to the smallest possible com- pass. s. 116.] BALLOT BOXES. Ballot Boxes. 89 116. Wherever a poll is required, the Clerk of the Mnni- Ballot boxei cipality (m) shall procure or cause to be procured as many **|,^l/"'' boxes (hereinafter called ballot boxes) as there are Wards or polling sub-divisions within the Municipality. 2. Tlie ballot boxes shall be made of son' 3 durable mate- How made, rial, shall be provided with a lock and key, and shall be so constructed that the ballot paper can be introduced therein, and cannot be withdrawn therefrom unless the box be un- locked. 3. When it becomes necessary for the purposes of an elec- Delivery of tion to use the ballot boxes, it shall be the duty of the Clerk Ret^niiiig of the Municipality, two days at least before the polling day. Officers, to deliver one of the ballot boxes to every Deputy-Relux'ning Officer appointed for the purposes of the election. 4. The ballot boxes, when returnee^ to the Clerk after the Deiivenr to election, shall be preserved bv him for use at elections for the ri^tu^ eiec- Municipality ; and it shall be the duty of the Clerk to have t'ons. ready for use, at all times, as many ballot boxes as there are ^ Wards or polling sub-divisions in the Municipality. *• 5. If the Clerk fails to furnish ballot boxes in the manner Penalty on herein provided, he shall incur a penalty of one hundred dol- furnSi**' lars in respect of every ballot box which he has failed to ^^es. fm-nish in the manner prescribed. 6. It shall be the duty of the Deputy-Returning Officer in Deputy ro- every Ward or polling sub-division not supplied with a ballot OT™may""' box within the time prescribed, forthwith to procure one to P°'''"« be made, and he may issue his order upon the Treasurer of the Municipality in which sxich Ward or pt.lling sub-division is situate for the cost of the ballot box. and the Treasurer fj (m) The Clerk upon whom the dnties are cast by this section can- not be himself a candidate for ofTi ^e. He cannot properly act aa Clerk and be a candidate, see The Queen v. White, L. R. 2 Q. B. 557. See further The Qiieen v. Ward, L. R. 8 Q. B. 210. The duties by this section cast upon the Clerk are essential to the success of voting by ballot. Ballot Doxes are the machinery made necessary for the purpose. So important do the Legislature deem the perform- ance of the duties by the Clerk that a penalty of $100 is recoverable in respect of every ballot box which the Clerk fails to furnish. See sub-sec. 5 of this section. 12 90 THE MUNICIPAL MANUAL. [SS. 117, 118. shall pay to the Deputy-Returning Officer the amount of the order. («) 38 V. c. 28, s. 2. Ballot Papers. i ■1 ■ ■■' /I Contenti and form of ballot papers. of ballot Ballot 137. Where apoll is required, the Clerk of the Municipality pri^twi.*^ shall forthwith cause to be printed, at the expense of the Municipality, such a number of ballot papers as will be suffi- cient for the purposes of the election, (o) < 2. Every ballot paper shall contain the names of the duly nominated candidates, arranged alphabetically in the order of their surnames ; or if there are two or more candidates with the same surname, then in the order of their other names. (p) 38 Y. c. 28, s. 3. Different MtB 118. The names of the candidates f5r Mayor in Cities, and for Mayor, Reeve and Deputy-Reeve in Towns, shall not {n) The amount of the order is as it were a debt due by the Cor- poration. The Deputy Returning Officer not supplied with a ballot box within the time prescribed, is authorized to bind the Corporation in the contraction of the debt. It is made the imperative duty of the Treas'"er to pay the debt. (o) It is not enough for the setting aside of an election held under this Act that there should appear to be a mere irregularity in the mode of proceedure. See sec. 168. ip) The ballot papers must contain the names of the duly quali- fied candidates. It is not said expressly that they must contain the Christian as well as the surnames. The provision on the subject is that if there be two or more candidates with the same surname, then there must be their other names. From this it might without more be inferred that the Christian names are not necessary except where two or more of the candidates have the same surname. But the forms of ballots given in the Schedule contain both Christian and surnames of candidates, see s. 119. Whether the inaccuracies in these particulars would be a ground for setting aside an election apart from the result is a question. See The Queen v. Coward 16 Q. B. 819 ; The Queen v. Bradley, 3 E. & E. 634 ; The Queen v. Plenty, L. R. 4 Q. B. 346 ; Mather v. Broivn, L. R. 1 C. P. Div. 596 See further s. 168. A candidate was twice nominated one nomina- tion being good and the other bad. His name appeared in the ballot papers twice in respect of such nomination. Seventy-one voters made their marks to his name under one nomination and three hun- dred and one to the other. All the voters so voting intended to vote for the candidate and if both classes of voters could be added together be had a majority and was entitled to be returned. Held he was entitled to be returned Northcote v. Puls/ord L. R. 10 C. P., 476. The names of the candidates must be arranged alphabetically in the order of their surnames, see Mather v. Brown, L. R. 1 C. P. Div. 596. ■I. ss. 119, 120.] BALLOT PAPERS. 91 be included Id the same ballot paper with the names of the papen to be candidates for Aldei-men and Councillors respectively ; (q) p^p"**- but 2. In Cities one kind or set of ballot papers shall be pre- in cities, pared for all the Wards or polling sub-divisions, containing the names of the candidates for Mayor, and another kind or set shall be prepared for each "Ward or polling sub-division containing the names of the candidates for Aldermen in the Ward ; and 3. In Towns one kind or set of ballot papei-s shall be pre- in towni pared for all the "Wards or polling sub-divisions, containing the names of the candidates for Mayor and Reeve and I '' uty Reeve, and another kind or set shall be pi-epared Lt each Ward or polling sub-division, containing the names of the candidates for Councillors in the Ward ; and 4. In Townships divided into "Wards, one kind or set of TfTPA'^,''!^ bftUot papers shall be prepared for all the "Wards, containing wards, the names of the candidates for Keeve, and another kind or set shall be prepared for each "Ward, containing the names of the candidates for Councillors in the Ward. 39 V. c. 5, s. 1. 119. The ballot papers shall be in the form of Schedule Form of A. to this Act. (r) 39 V. c. 5, s. 2. JjjJ"^. Polling Places. 120. In case of Municii)alities which are divided into cierk to fur- Wards or polling sub-divisioiis, the Clei'k of the Municipality ^^^ deputy shall, before the opening of the poll, deliver or cause to be offlcera*with delivered to every Deputy-lletuming Officer the ballot papers p*"^ ^^ which have been prepared for use in the "Ward or polling sub-division for which such Deputy-Returning Officer has been appointed to act, and shall also furnish to the Deputy- Returning Officer or see that he is furnished with the neces- sary materials for voters to mark the ballot papers ; and such materials shall be kept at the polling place by the Deputy- Returning Officer for the convenient use of voters, (s) 38 V. c. 28, s. 5. , ((/) Seenote to 8. 117. (r) See note 2) to s. 117. (s) These duties are ministerial. The neglect of them except bo far as the neglect has the effect of making an election impossible would not nullify the election. See a. 168 and notes thereto. J ■%, 92 THE MUNICIPAL MANUAL. [SS. 121-124. mpart- ments wherein ▼otera may mark votM. 121. Every polling place shall be fximished with a com- partment in which the voters can mark their votes screened from observation ; and it shall be the duty of the Clei'k of the Municipality and Deputy-Returning OiScers respectively, to see that a proper compartment for that purpose is provided at each polling place, (t) 38 V. c. 28, s. 4. Clerk to fur- nish deputy returning officer with tiirectionf) for voter's guidano. Deputy re- turning officers to placard the directions. Directions to Voters. 122. Incase ofMunicipalities divided into Wards or polling sub-divisions, the Clerk of the Municipality shall, before the opening of the poll, deliver or cause to be delivered to every Deputy Returning Officer such a number of printed direc- tions, for the guidance of votera in voting, as he may deem sufficient, and shall so deliver or cause to be so delivered at least ten copies of such printed directions ; such directions shall be printed in conspicuous charactere, and may be accor- duig to the form in Schedule B. to this Act. (w) 38 V. c. 28, s. 6. 12»?. Evei'y Deputy-Returning Officer shall before the opening of the poll, or immediately after he has received such printed d rections from the Clerk of the Municipality, if he did not receive the same before the opening of the poll, cause such printed directions to be placarded outside the polling place for which he is appointed to act, and also in every com- partment of the polling place, and shall see that they remain so placarded until the close of the polling, (v) 38 V. c. 28, s. 7. Voters' and Defaulters' Lists. ^'W'L. . . 124. Subject to the provisions of the three next sections, be used at an the proper list of voters to be used at an election shall be election. ^j^^ g^j^^. j^„^ second parts of the last list of voters certified by the Judge and delivered or transmitted to the Clerk of the Peace undar " The Voters' Lists Act." 40 V. c. 12, s. 20. Rer. Htot. CO. (<) There can be no efficient system of voting by ballot without secrecy. Hence provision is to be made to enable voters to "mark their votes screened from observation." Disregard of this duty when the neglect is not total but partial is not per se a ground for setting aside an election. The Queen ex rel. Preston v. Touchbtirn, 6 U. C. P. R. 344 ; See further, s. 168 and notes. (t() See note 8 to a. 120. (v) See note t to s. 120. 127. In any Munic assessment roll, but for cipality has been filed y by the County Judge Clerk of the Municipa prepare and deliver tc every or any Ward or of Schedule C to this ss. 125-127.] VOTERS LIST. 9^ 125. For the fii-st election of a new Municipality for For flrit wliich there is no separate assessment roll, the Clerk of the i^l^ Municipality shall provide each Deputy Returning OflBcer munioi- with a poll book, prepared according to the form of Schedule ''*'"^' C. to this Act instead of a voter's list, and either the Deputy Returning Officer or his sworn Poll Clerk shall therein enter, in the projier column, the names of each person offering to vote, and at the request of any candidate or voter, shall note the property on which the person claims to vote opposite his name. 'See 36 V. c. 48, s. 79 ; 38 V. c. 28, s. 8 ; and 39 V. c. 5, s. 9. 126. Where any territory is added for municipal purposes, Votert lista to any City, Town, or Village, or whore a Town with ad- unSJ^tlon ditional territory is ejected into a City, or a Village with ad- si- ditional territory is erected into a Town, or where a new Village is forraed, and an election takes place before voters' lists includinf; the names of the persons entitled to vote in such territory are made out, or before such lists Are certified by the County Judge — in all such cases, the fJlei'k of the new or enlarged City, Town, or Village, shall extract th t names of the several pei-sons who would be entitled to votti in the territory composing or added to (as the case may be; the City, Town, or Village if such teri'itory had remained separate from the City, Town, or Village, from the last filed or certified voters' list of the Municipality or Municipalities to which such territory formerly belonged, containing the names of the pei^sons entitled Uf vote in respect of such ten-i- tory, and shall place such names in lists or supplementary lists (as the case may be). 2. Such lists or supplementary lists shall shall be made in the form of Schedule C to this Act, and shall be signed by the Clerk, end delivered by him to the proper Deputy Re- turning Oflicers for the purpose of enabling the persons named in such lists to vote at the election. 38 V. c. 3, ss. 16, 17 ; See 35 V. c. 48. s. 79. 127. In any Municipality for which there is a sepai-ate Liat of assessment roll, but for which no voters' lists for the Muni- voters, cipality has been filed with the Clerk of the Peace or certified by the County Judge under " The Voters' Lists Act,^' the Rev. Stat Clerk of the Municipality shall, before the poll it opened, "• '• prepare and deliver to the Deputy Returning Officer for every or any Ward or polling sub-division, a list in the form of Schedule C to this Act, containing the names, arranged s 94 THE MUNICIPAL MANUAL. [S. 127. SS. 128-131.] CERl ^ alphabetically, of all male persons appearing by the then la.st revised assessment roll to be entitled to vote in that Ward or pollinjif sub-division, (w) and shall attest the said list by his solemn declaration in wiiting unrler his hand ; (x) 2. In case of (a.) Income votei-s, and (b.) Perso! assesr for real proi^erty, if tho Municipality has MUHbjd ^ -ytuv, uaJo. sub-seution twc of section four hundred and Si::ty-on' .f this Act, Pensont in arrearH for WcSed the Clerk shall from Ust. Liide ^T .m such list such jiersons as may be returned to him by thu j. easurer as being in default for {iv) The purpose of furnishing the list is not to enable the Return- ing Oflioer himself to judge of the suliiciency or insufficiency of votes taRen, but that all persons interested in the election may have a check at hand at the time of polling the votes. The Queen ex rel. Diindas V. Niles, 1 A L. Chamb. R. 198 ; see also section 76. Persons whose names are on the original roll, though omitted by accident from th« list, may, it seems, claim a right tc» vote : but not persons whose names are on the list, though not on the original roll. The Qucpii ex rel. Helliwell v. Stephenson, 1 C. L. Chamb. R. 270 ; See further, North Victoria Election, 11 U. C. L. J. N. S. 163. The list furnished to the Returning Officer ought to be alphabetical, and if not so the Returning Officer should himself make it alpha- betical. The Queen ex rel. Davis et al. v. Wilson et al., 3 U. C. L. J. 165, ;jfr Richards, J. Where the Returning Officer was not furnished with the list and notwithstanding proceeded with the election, lield, that it was an irregularity which subjected the election to be avoided if the objection were taken by one qualified to urge it, although it might not ipso facto render the election void. In re Charles v. Lewis et al., 2 C.L. Chamb. R. 171. The acquiescence of the candidates in the election being proceeded with under these circumstances, though it might preclude them from disputing the validity of the election on that ground, could not affect the right of a voter who was no party to such arrangement. lb. In sucn a case, however, it would seem to be necessary to shew tl, at the absence or inaccuracy of the list prejudiced the election, or that some candidate or voter refused on that ground to proceed, and relied upon the objection. The Queen ex rel. liitsonv. Perry et al, 1 U. C. P. K 237; The Queen ex rel. Walker v. Mitchell, 4 U. C. P. R. 218. WTiere the Returning Offi- cer used the original roll instead of the list, having first announced that he concluded to do so, and no one objected, the election w^ supporteii. The Queen ex rel. Hall v. Orey et al. 16 U. C. Q. B. 257. (x) It would also seem that it ia no objection to the list that it was not verified as the statute requires, unless some objection be taken before or during the election. 2Tie Queen ex rel. Ritaon v. Perry et di 1 U. C. P. R. 237. 8S. 128-131.] CERTIFICATES AS TO AS8E98MENV ROLL. -95' not havi.flf paid their municipal taxes respectively on oi* be- fore th< ' •urteenth dsy oi" December precedinj^ the election; and evt'' li8t of vo^ei-s so ' ropared shall be the proper voters list t" be used at the election, (y) 38 V. o. 2 . , s. 8 ; 39 V. 0. 5, s. f- (1) & s. 9. 128- .ii the case of Municipalitios which are divided into Delivery of Wards or polling sub-r^ivisv is, the Clerk of the Municipality ^'5j|^.°/|gt shall, before tho poii is opened, lelivo/ to the Deputy Re- and default- turning Officer for each Ward or polling sub-division, a copy, jepifty ^. accoi'ding to the form of Schedule C to this Act, certified to <"rnii»g be correct, of the jn-oper list of votei-s for the Ward or polling sab-division under the one in drod and twenty-fourth and following s'^ctions ; and also a ^ ^py of the proper defaulters' hst for the polling sub-division, certified by the Treasurer or Collector pursuant to section one hundred and fifteen of this Act. 40 V. c. 12, s. 9. See 39 V. c. 5, s. 5 (2). 129. The copies of the voters' lists in the last section Copies may mentioned, laay bo prepared by the Clerk of the Muuicipality, from''c^r'j[* or may be procured fi'om the Clerk of the Peace, if filed of peace, under ■' I'/te Voters Lists Act" and in the latter ca.se the Clerk of the Peace shall be entitled to receive the sura of six cents for every ten voters whose names are on the list. iOV. c. 12, s. 10. 130. The defaultei's' lists furnished and verified by the Defaulters* Treasurer or Collector as aforesaid, shall be the evidence on denw forded which the Deputy Returning Officers shall act in ascertaining nuty return- the payment or non-payment of taxes by persons claiming to to'paymen" vote in respect of income, or in respect of real property, in o' taxes, the cases mentioned in section one hundred and fifteen of this Act. 40 V. c. 12, s. 11. Certificates as to Assessment Roll. 131. The Clerk of the Municipality shall before the cierk to give opening of the poll, deliver or cause to be delivered to every j^'J^*^^' Deputy Returning Officer a certificate (which may be in the turn and form of Schedule D to this Act), of (1) the day when ths ofassMsmen" assessment roll upon which the voters' list to be used at the ""• election is based, was returned by the Assessor, and also (2) of the day when the said assessment roll was finally revised and corrected. . I • 'fr (y) i?ee s. 115. mi J ivtl I V '■ h hi ' 96 ■ THE MUNICIPAL MANUAL. [SS. 132, 133. Fm. 2. Tho Clerk shall also give such certificate upon payment of the sum of twenty-five cents, to any person a]i})lying for the same, under a penalty of two hundred dollars in case of neglect or refusal. 3. Such certificate, when delivered to the Deputy Re- turning Officer, shall be the evidence upon which he shall act in inserting in the oath to bo administered to voters the date of the return or final revision and correction of the as- sessment roll as the case may be. To be eTi- 4. An assessment roll shall be understood to be finally re- dlteatth"''' vised and corrected when it has been so revised and corrected by the Court of Revision for the Municipality, or by the Judge of the County Court in case of an appeal, as provided by " IVie Assessment Act," or when the time during which such appeal may be made has elapsed, and not before. 40 V. c. 12 s. 12. poll Rev. State, 180. Municipali- ties not divided into wards or poll ing subdiri- tions, clerk to perform duties of de- puty return' ing officers. 132. In case of Municipalities which are rot divided into Wards or polling sub-divisions, the Clerk shall perform the duties which in other cases are performed by Deputy Return- ing Officers, and shall provide himself with the necessary ballot pai)ei"s, and also with the materials for marking ballot l)apers, printed directions before mentioned, copies of the voters' list and defaulters' list, and certificate of the dates of the return and final revision of the assessment roll, similar to those required to be furnished to Deputy Returning Officei-s ; and the Clerk shall perform the like duties with respect to the whole Municipality as are imposed upon a Deputy Returning Officer in respect of a Ward or polling sub-division. («) 38 V. c. 28, s. 9 ; 40 V. c. 12, s. 14 (2). sa 134-137.] depi TT/tere Electors to vote. wheneiec- 133. In Towns and Cities, every elector may vote in each **'teiii'towns ^^^^^ ^^ which he has been rated for the necessary pi'operty and cities, qualification, but in case of Mayor of Cities, Mayor, Reeve or Deputy Reeve of Towns, the elector is limited to one vote. («) 36 V. c. 48, s. 80. (z) See 8. 117 et seq. and notes thereto. (a) Before the Act of 1866, it was held that a voter entitled to vote in the ward in which he resided, could not vote in any other w/>.rd. Anon 8 U. C. L. J. 76. That Act enabled every elector in a Town or Village to vote in each ward in which he had been rated for the 1. Payment of $50 to b€ S3. 134-137.] DEPUTY RETURNING OFFICERS VOTiNQ. •t 134. In Towijships and Incorporated Villages divided ^•"•'••' into Wards or poUing sub-divisions, no elector shall vote in Tote in more than one Ward or polling sub-division for the same JSJ'^rtuSgti. cahdidate. (6) 36 V. c. 48, s. 81. 135. Every elector who is entitled to a vote in more than Whewpwr- one Ward or polling sub-division shall vote for Mayor, in ^'JJ JJ^ *° Cities, and for Mayor, Reeve and Dep\ity Reeve in Towns, mayor, reev» and for Reeve in Townships divided into Wards, at the rLye!*" ' j)olling place of the Ward or polling sub-division in which he is resident, if qualified to vote thei'ein ; or otherwise where he first votes, ancl there only, (c) 39 V. c. 5, s. 3. 136. Any person who votes for Mayor, Reeve, or inPentUyfor Towns or Townships for Deputy Reeve, after having already for m»yor,°* voted for IMayor, Reeve or Deputy Reeve at some other "^ve or de- polling place at that election, shall incur a penalty of fifty ^ dollars, to be recoveied, with full costs of suit, by any person who will sue for the same by action of debt in the Division Court having jurisdiction where the offence was committed; and any person against whom judgment is rendered shall be ineligible either as a candidate or elector at the next annual elections, (d) 39 V. c. 5, s. 4. 137- The Clerk of the Municipality, on the request of Deputy any elector entitled to vote at one of the polling pliic«!S, who offlMw »nd has been appointed Deputy Returning Officer or Poll Clerk, aK«nt8 majr or who has been named as an agent of a candidate to attend 'ng piwo necessary property qualification. This section is a re-enactment of it. The meaning is, that a voter is no longer restricted to one vote, but, if quKlified, in several wards, may vote in each of such wards, except lu the case of the election of Mayor of Cities, Reeves or Deputy Reeves of Towns, who are elected by tlie entire vote of the Municipality. In England, voters have still to select the Ward in which they intend to vote, and are restricted to that Ward. See The QH,?en v. Turrivell, L. R. 3 Q. B. 704. (6) This is a restriction on the right of a voter to vote in each Ward in which ho is rated. See note a to s. 133. (c) There is only one vote in for each of the officers named (sec. 123) that vote must be given in the Ward in which the voter resides if qualified to vote therein, otherwise where he first votes and there only. {d) The penalty for violation of the provisions of this section are two fold : 1. Payment of $50 to be recovered by suit. 2. The incapacity to be either a candidate or elector at the next annual election. 13 98 wh«ra th«y •nam- plojwL THE MUNICIPAL MANUAL. [& 137. Who to administer Mth. at any polling place other than the one where he i8 entitled to vote, Hhall give to such elector a oei'tidcate that ho is en- titled to vote at the i)olling place where ho is to bo stationed during the polling day ; and such cei*tificate shall also state the |)ro[)erty or other qualification in renpect of which ho is entitled to vote. 2. On the production of such certificate, such Dei)utv Re- turning Officer, Poll Clerk or ageiit shall have the right to vote at the ])olling place where he is stjitioned during the polling day, instead of at the polling station where he would otherwise have been entitled to vote ; and the Deputy Re- turning Officer shall attach the certificate to the voters' list ; but no such cei'tificate shall entitle any such elector to vote at stich {Killing place unless he has been actually engtiged as such Deputy lleturning Officer, Poll Clerk or agent diu-ing the day of polling ; nor to vote for Alderraen in Cities, or Councillors in Municipalities divided into Wards, except in the Ward where he would otherwise be entitled so to vote. («) 3. In case of a Deputy Returning Officer voting at the polling station where he has been appointed, the Poll Clerk appointed to act at such polling place, or in the absence of the Poll Clerk any elector authorized to be present, may ad- minii'tei' to such Deputy Returning Officer the oath required by la>N" vO be taken by voters. {/) 39 V. c. 5, s. 10. Division V.— The Poll. Ballot box to he exJdbited. Sec. 138. JIow votes to be recnved. Sees. 139, 140. How ballot 2>o-per to be marked. Sec. 141. ( e) The obligation of a voter is to vote in the Ward in which he resides, s. 135. This section creates an exception in favour of a voter "appointed Deputy Returning Officer or Poll Clerk or who has been named as the agent of a candidate to attend at any poll- ing place other than the one where he is entitled to vote." And this is made subject to the procurement and production of such a certifi- cate as in the section prescribed. (/) The duty under ordinary circumstances is cast on the Deputy Returning Officer to administer the oath to a voter when the ad- ministration of the oath is necessary. But where the Deputy Re- turning Officer is himself a voter, and if required to take the oath, provision is made for the administration of the oath to him by the Poll Clerk, or in his absence by any elector. «& 138, 139. J f'^fidution frmn I liitllot papers not Prucecdinys in ca liallot pajter hum jy/io viaij be presi Countimj the vote jf'/io laai/ be prem Certificates of ntai Packets to be madt —Jteturns, etc. Clerk to cast up v A lid may vote in c Provision in case « JMclaration by Oh Oaths of office to b 138. The Deputj before the comnienct to such pei-sons as ai they may see that it J)ox and place his sea Its being opened wit then place the box i papei-s, and shall keeij -'8, s. 10. ^ 139. Where any i presents himself for tJ turning Officer shall p 1- He shall ascertu entered, or purports t. (.'/) Thf duties of the E are as follows :— polhng place ; 2. To lock the box and - 3. To place the box in h 4. To keep it locked am All these are made necei « known as "Stuffing the (A) The duties of the D most clearly set forth. T secutive order. See sec. 1^ \ ' 88. 138, 139.] KEC'EIVINU VOTES. Kcdusion /r I Exclusion from ballot- ing compart- ment. Voter not" to take his paper from polliDg place. I' • < THE MUNICIPAL MANUAL. [SS. 142, 143. shall, without unfolding the same, or in any way disclosing the names of the candidates, or the marks made by such elector, verify his own initials, and at once deposit the same in the ballot box in the presence of all peraons entitled to be present and then present in the polling place ; and the voter shall forthwith leave the polling place, (k) 38 V. c. 28, 8. 12. 142. While any voter is in any balloting compartment for the purpose of making his (aic.) ballot liajior, no other person shall be allowed to enter the compartment, or to be in any position fi'om which he can observe the mode in which the voter marks his ballot paper. (^ 38 V. c. 28, s. 13. 143. No pei*son who has received a ballot paper from the Deputy Returning Officer shall take the same out of the polling place ; and any person having so received a ballot paper, who leaves the polling place without firet delivering the same to the Deputy Returning Officer in the manner prescribed, shall thereby forfeit his right to vote ; and the Deputy Returning Officer shall make an entry in the votera' list, in the column for remarks, to the eflfect that such pei-son and at the same time perfectly neutral in its character, so as to be ? Tactically incapable of betraying its authorship by its appearance, •c." Lord Neaves in The Wijtown Case, 2 O'M. & H. 215, 220 (k) The duties of the Deputy Setuming Officer, under this section, are — 1. To give to the voter the ballot paper ; 2. To verify his own initials on the redelivery of the paper "by the voter ; 3. To deposit the same in the ballot box in the presence of all per- sons entitled to bo present and then present. The Deputy Returning Officer must verify his initials without delay, and without showing the front to any one, or so displaying tho ballot paper, as to make known to any person the names of the candidates for or ag.".inst whom the voter has marked his vote. The effect of non-compliance or imperfect compliance with tliese directions either on the part of the voter or of the Returning Officer will be hereafter considered. See s. 147 and notes. (I) It is essential to secrecy for the purposes of this Act t'lere shall be solitude. A compartment is provided for the purpose of eniilding the voter in solitude to mark his ballot papei. JNot only arc all per- sons prohibited from entering the compartment while occupied by the voter but are prohibited from being in any position from %vhicli they can observe the mode of marking the ballot paper by the \-oter. But a partial disreuard of the provisions of this section docs not neccesctrily avoid the election linyina ex ret. Predon v. Touchlnini, 6 U. C. P. R. .'^44. See further s. 168 and notes. s. 144.] INCAPACITY TO MARK BALLOT PAPERS. 105 received a ballot paper, but took the same out of the polling place, or returned the same, decliniug to vote, as the case may be ; and iu the latter case the Deputy Returning Officer shall immediately write the word '"■Declined" uj)on such ballot paper, and shall preserve the same ; and in case the Clerk of the Municipality is not himself performing the duties of Deputy Returning Officer, the Deputy Returning Officer shall return said ballot paper to the Clerk of the Munici- pality, as hereinafter directed, {pi) 38 V. c. 28,8. 14. 144. Tn case of an application by any ])ersou claiming to Proceedings be entitled to vote, who is incapacitated by blindness or iS(^Mity to other physical cause from marking his ballot paper, or in case ™»« p»per. of any pei'son claiming to be entitled to vote who makes a dclaration that he is unable to read, the proceediugs (n) shall be as follows : — 1. The Deputy Returning Officer shall, in the pi'esencc of « the agents of the candidates, cause the vote of such person to be marked on a ballot paper in manner directod by such person, and shall place the ballot paper in the ballot box. 2. The Deputy Returning Officer shall state or cause to be stated in the voters' list, by an entry opjwsite the name of such person in the proper column of the said voters' list, that the vote of such pei'son is marked in pursuance of this section, and the rea.son why it is so marked. 3. The declaration of inability to read, or of incapacity to mark a ballot paper, may be in the form of Schedule E to this Act, and shall be made by the person claiming to be entitled to vote, at the time of the polling, before the Deputy Returning Officer, who shall attest the same as nearly as (m) The marking of the ballot paper wo>il;l not be of any avail as regards the result of the election unless the paper so marked is de- positeil in the ballot box for the purpose of being counted. The delivery of the ballot paper by the voter under s. 141 to the Return- ing Otticer for the purpose of being deposited in the box is not only a duty on the part of the voter but one which he must perform on pain of forfeiting his vote. (h) The ballot is in the firat instance designed for persons having sufficient ctlucation to bo able to read, sufficient sight to be able to see, and sufficient physical capacity to be able to mark ihe ballot paper. Where those conditions all exist there is not much difliculty ui preserving all the secrecy deemed necessary to the free exercise of tliu ballot. But where these conditions do not exist, still the elector is to have the right to vote. That riglit, however, can only be exer- cised iu the mode presorib^d by this section. 'me of the m' -chiefs which it was the design of the Legis- 8. 147.] Officer, he obstructi of tlie provisions of 147. Immediatia polling place, the ] presence of the Poll dates or of their ag ballot box, and proc 1. He shall exam paper which lias not Deputy Returning O than the elector is er except the initials or on the back, is writt< leturo when enacting a ManoH, L. R. JOC. P. ; ('/) If the Deputy Ret remove a jjurson who ha the trespass. Cliuuntaa (r) Tliere can be no ii l)e present when the liall l>eputy Returning Office ('*) The ballots not to 1. Those not having Deputy Returning Office 2. Those on which mo to give. 3. Those on which ar Deputy Returnin; Qffic which the voter can be i (t) It is the duty of tl where the proper entries been matle in the voters' eer's name, or initials up. the pn.rposo of identifyiiu lots. When the Deputy tifying the ballots, as the liavingon their back the n cer. But where the Dep his duty in omitting to w ballot papers, it would no some imputation of fraud the name or initials of t Caw, 12 U. C. L. J. N. d («) When more votes ai tor is entitled to give, it are the proper votes. So t See Xorth Victoria Case, ] 14 8. 147.] REJECTED BALLOTS. 105 Officer, 1)6 obstructing the polling or wilfully violating any of the provisions of this Act {q) 38 V. c. 28, s. 17. 147. Immediatiately after the close of the poll in every counting the polling place, the Deputy Returning Officer shall, in the '"*"• presence of the Poll Clerk (if any) and of such of the candi- dates or of their agents as may then be present, open the ballot box, and proceed to count the votes (r) as follows :• — 1. He shall examine the ballot papers, (s) and any ballot jmected paper which has not on its back the name or initials of the Deputy Returning Officer, (/) or on which more votes are given than the elector is entitled to give, (?/,) or on which anything, except the initials or name of the Deputy Returning Officer on the back, is written or marked, by which the voter can be leturo M'hen enacting vote by ballot, to remove. See Clementson v. Ma>ton, L. 11. IOC. P. 209. (7) If the Deputy Returning Jiiicer, without justiticatinn, forcibly remove a person who lias a riglit to be present, he may 1h! sued for the trespass. Cliuuiititon v. Mason, L. R. 10 C. P. 209. ()•) There can bo no (jiiestion as to the right of the candidates to 1)0 present wlien the 1)allot3 are lieing examined and counted by the Deputy Returning Officer, See note p to s. 14(5 and s. 1G5. {h) Tlio ballots not to be counted are the following : — 1. Those not having on their back the name or initials of the Deputy Returning Officer. 2. Those on which more votes are given than the elector is entitled to give. 3. Those on which anything except the initials or name of the Deputy Returning Officer on the back is written or marked by which the voter can be identified. {t) It is the duty of the Deputy Returning Officer under a. 139 where the proper entries respecting the person claiming to vote have been maile in the voters' list to sign his, the Deputy Returning Offi- cer's name, or initials upon the back of the ballot paper. This is for the purpose of identifying it and preventing the use of fraudulent bal- lots. When the Deputy Returning Olficer lias done his duty in iden- tifying the ballots, as the statute directs, he must reject l)allot8 not havingon their back the name or initials of the Deputy Returning Offi- cer. But where the Deputy Returning Officer has himself neglected his duty in omitting to write his name or initials on the back of the ballot papers, it would not be right on a scrutiny in the absence of some imputation of fraud, to reject all ba Jots not having on the back the name or initials of the Deputy Retarniug Officer. The Monck Case, 12U.C. L.J. N. S. 113. (h) When more votes are by the ballot paper ^veu than the elec- tor is entitled to give, it cannot be decided which, if any of them, iire the proper votes. So that in such case the ballot paper is rejected. See North Victoria Case, 11 U. C. L. J. N. «. 163. 14 n 106 THE MUNICIPAL MANUAL. [8. 147. identified, shall be void, and shall not be counted ; (v) and any ballot Tiaper on which votes are given for a greater number of candidates for any offi( e than the voter is entitled to vote (v) It is not declared that all ballots having on them anything except the name or initials of the Deputy Returning Officer shall be rejected, but all such as have marks by which the voter can be Ulenti- fied. These words have, in similar acts to the present caused much difficulty and some judicial contlict. In the Athlom Cai^e, 2 O'M. AH. 186, it was held that ballots having the cross on the rhjht hand side of the name of the candidate, but in the same compartment with his name, ought not to he rejected. This was also lield in the Moiick Caw. In the Wiijlmtm Cose, 2 0' M. & H. 216, and the Moml Cnne, 12 U. C. L. J. N. S. 1 13, it was held that ballots having the cross on the left hand side of the name of the candidate, should be rejected, but the contrary was intimate( in the North Victoria Election Crme, 11 U. C. L. J. N. S. 1()3, anddccidr-d in Woodward v. Sarmnn, L. R. 10 C. 1'. 733. In tlie Wi ]Vi;,fown Vn. e, 2 O'M. & H. 215, and tlio Monck Casp, 12 U. C. L. J. Is'. S. 113, it was iield th.it a pajier ha.Jng nn it two or three crosses ofiposite the nivme of the candi.lates ought to be rejected, but the coiitniry was held in Woodwai'd v. t'iarsotm, L. R. 10 C. P. 733. In the ]i'i . itli feet to it so as to make it look like the letter X ought not to be rejected. In the North Victoria Ek.fl.n Case, 11 U. C. L. J. N. R. 163. It was held that ballots having a perfect cross and some additional mark ought to be rejected but the contrary was held in the Monck Case, 12 U. C. L. J. N. S. 113, and in Woodward v. Sarsons, L, R. 10 C. P. 733. In the North Victoria Election Case, 11 U. C. L. J. N. S. 163, and in Wooihrard v. Sarsons, L. R 10 C P. 733, it was held that ballots not having any cross but the name of the candidate or &ome letters or initials put in the place of the cross ought to be rejected. In the Wii)htown Case, 2 O'M. & H. 215, the North V-ctoria Election Case, 11 U."C. L. J. N. S. 163 and in the Monck Case, 12 U. C. L. J. N. S. 1 13, it was held that crosses made with ink instead of with black load pencil ought not to be rejected. In Woodward v. Sarsons, L. R. 10 C. P. 733, it was held that a ballot paper liaving a pencil line through the namo of the candidate and a cross opposite to the nam«i of the other jn the right hand side ought not to oe rejected* «. 147.] ENDORSING BALLOT PAPERS. 107 for. shall bo void as regai'ds till the candidates for such office, but shall be good as regards the votes for any other offices in respect to which the voter has not voted for more candidates than he is entitled to vote for. 38 V. c. 28, a. 18, (1) ; 40 V. c. 7, Sched. A. (169.) L The Deputy Returning Officer shall take a note of any objection made by any candidate, his agent, or any elector authorized to be present, to any ballot 2)aper found in the ballot box, and shall decide any question ari lug out of the objection, (w) 39 V. c. 5, s. 11. 3. Each objection shall be numbered, and a corresponding number j)laced on the back of the ballot pai)er, and initialed by the Deputy Returning Ollicer. {x) 39 V. c. 5, s. 11 (2.) 4. The Deputy Returning Officer shall endovso, " JiejectecV on any ballot paper which he rejects as invalid, and sliall en- doi-ae " Rejection objected to" if any objection is made to his decision. 38 V. c. 28, s. 18 (2.) Deputy re- turning offl* cer to note objections taken to bal- lot papen at the counting the same. And number both. Endorsing ballot papers. It is very desirable that the Legislature should ii' possible set at rest the questions about which there is so much con diet of opinion. While some deviations from the strict letter of the Statute are looked upon as so triHing as to be immaterial, othois are deemed so serious as to be fatal, it is as said by Lord Neaws in the Wintova Canf, 2 O'M. & H. 220, " the old puzzle as to hotv muiiy grains of corn make a heap, or at what stage a little thing grows into a big one." It is true that the declaration of nullity does not ictjuire that there should be absolute nroof of a design or intention on the part of the voter to be identitieu but it would be manifestly wk iig to reject the ballot where ^'rom the mark made no such intention ciiii be reasonably inferred. Woodward v. Samonii, L. II. 10 C. P. IXi. The latter case was not decided till after the Xo, I'l y^ictoria Elec- tion Cat", but although decided before the Monch I'l ct ion 6Vmc, was not cited on the argumejit or referred to by the learned Judge who decided the case. • It is the decision of the full Court of Common Plo;v3 in England, and is the most authoritative if nr)t the most recent ea.se as to the sufficiency or insufficiency of ballot papers. It is therefore recom- mended that where in conflict with the other decisions mentioned it be followed until doubted or overruled by some (Jourt having ha«.l its attention particularly directed to it. {w) The decision of the Returning Officer is not in express language made final. The decisions which have been had would appear to indi- cate that the decision of the Returning Officer is subject to review. [x) The directions contained in this and the next sub-section are for the purpose of enabling the Court or a Judge afterwards on a scrutiny to identify the ballots and decide on the propriety of their rejection or otherwise. »<; 3 i»i I *ii 108 SUtament. To bo signed. Agents en- Titleil to bo {lieseot. Deputy re- tuniini; offl- cer to glvo cortifluato of state of poll. Deputy re- turning offl- cers' duties after votes are counted. THE MUNICIPAL MANUAL. [SS. 148-160, 5. The Deputy Retuniin{? Officer shall then count up the votes given for each candidate upon the ballot papers not rejected, and make up a written statement, in words as well as in figures, of the number of votes given for each cinidi- date, and of the number of ballot jMipera rejected and not counted by him, which shall be made under the several heads — (a) Name or number of Wai'd or polling sub-division and of the Municipality and the date of election ; (6) Number of votes for each candidate ; (c) Kejected ballot pa})ers. 38 V. c. 28, s. 18 (3) ; 39 V. c. 5, s. 14. 6. Upon the toinpletio'' of such written statement, it .s^'.all bo forthwith aignod by the Deputy Returning Officoi', the Poll Clerk, if any, and sucli of the candidates or their agents as may be pr'i.sent, and desire to sign such statement. 38 V. 0.28,8.18(4.) 148- No more than two Hgentn for any candidate shall 1)0 entitled to be present at the same time at the counting of the votes. (//) 38 V. c. 28, s. 18 (f).) 149 Every Deputy Returning Officer, upon being re- quested so to erson to v/hom the same had ])een so delivered, and shall take a proper re- ceij)t therefor ; lie shall also forthwith return the ballot box to the Clerk of the Municipality. 4. The packets shall be accompaniod by a statement made by the Deputy Returning Officer, showing the number of ballot jiapers entrusted to him, and accounting for them under tlie heads of (1) Counted; (2) Rejected; (3) Un- used ; (4) Spoiled ; (5) Ballot Papers given to voters who afterwards retiu'ned the same, declining to vote ; and (6) Ballot Papers taken from the polling place; (/) which statement shall give the number of papers under each head, and is in this Act referred to as the " Ballot Paper Account." to*"T?t* " ^" ^^ ^^^^ Dejmty Returning Officer and one or more of arise, how to the candidates or of the agents of the candidates pi'esent at bo settled, ^j^^ examination and counting of the ballot papers are unable statement to be made by deputy re- turnioK otflccrs on return of ballot papers, ke. Deputy Returning Officer, the packages of ballot papers shall {(l) The declaration made necessary as a security for the gootl faith of the Deputy Returning Officer, must not only be matle by him, but subscribed by him under oath. (e) The person chosen ought not, if possible, to be a partizan of either of the candidates. Tliere is no prohibition of the kind in the section. But good sense will suggest it to any Deputy lleturniiig Officer acting \inder the section. (/) The object of this account is to enable the Clerk of the Muni- cipality who cave out the ballot papers to make a comparison be- tween the baflots given out and the ballots returned so as to detect if possible the undue use if any made of any of the ballot papers. 8.151.] DE( be broken o|)on by i flence of the Depute didates or of their uj ceeding the polliag ( and of whicli they h ing Officer, indess-t stich that the ap|K>in following the poll, ii allowed, and no mor Clerk of the Munic paiity, after examini mine the matter in t hereinbefore mention^ shall forthwith, in t Officer and such of t then be present, sec have been examined before. 38 V. c. 28, 161. The Clerk ( ceived the ballot pape the number of vot(!s ^ out .pen ing any of th liie mimbei- of votes f and shall at the Towt .some other public pluc turn of such ballot pa to be elected the cand number of votes, (h) j ous place a statement of votes for each cand to agree as to the written statement to be made by the H (.7) The clerk is to fina tioned, but this determin whom the election may a for tlie purposes of the c( (/') The simple duty of uate or candidates having power to decide as to the i This must be left for the Queen v. Ledgard, 8 A. & (t) There is no power once put up or to put up Leeds, 11 A. & E. 512. I ballots, this mistake mua see The queen ex rel. And 151.] DECLARATION OF ELECTIONS. Ill be broken ojKjn by the Clerk of the Municipality, in the pre- sence of tiie Deputy Returning Officer and such of the can- didates or of their ugent« as may be preHent o day huc- cc'oding thn polling day, at an hour and place to boapitointed, and of which they have been notified by the Deputy Kotuni- ing Officer, unle8H> the distance neccHsary to be travoll^d is such that the ap|K)inted place cannot be reached on the day following the poll, in which case a reasonable time shall be allowed, and no more, for the purpose of coming bel'oro the Clerk of the Municipality ; and the Clerk of the ^lunici- piility, after examining the ballot papei"H, shall finally deter- mine the matter in dispute, and sign the written statement lieroin before mentioned; (g) and the Clerk of the Municipality slmll forthwith, in the presence of the Deputy Returning Officer and such of the candidates or of their agents as may then be present, securely seal up the ballot papers which have been examined by him into their several pacikages as before. 38 V. c 28, ss. 19, 20 ; 39 V. c. 5 ss. 12, 13. 161. The Clerk of the Municipality, after he has re- aerk to caat ceived the ballot papers and statements before mentittned of ueuiMe^'who the number of votes given in each polling place, shall, with- iseioctedj&o. out « j)ening any of the sealed jjackets of ballot papers, cast up the number of votes for each candidate from such statements ; and shall at the Town Hall, or, if there is no Town Hall, at some other public place, at noon, on the day following the re- turn of such ballot papers and statements, publicly declare to be elected the candidate or candidates having the highest number of votes, (h) and shall also put up in some conspicu- ous place a statement under his hand showing the number of votes for each candidate. (^) 38 "V.c. 28, s. 21. "•?}■ (.7) The clerk is to finally determine the matter of dispute men- tioned, but thia determiuiition cannot bind any Courier J udye before whom the election may afterwards be contested and a scrutiny hod for tlie purposes of the contest. (h) The simple duty of the Clerk is to declare elected " the candi- date or candidates having the highest number of votes." He has no power to decide as to the qualitication of any candidates to be elected. This must be left for the decision of a competent tribunal, see The Queen v. Ledgard, 8 A. & E. 535. (t) There is no power to amend the statement after it has been once put up or to put up an amended statement, see The Queen v. Leeds, 11 A. & E. 512. If he make a mistake as to the num)>er of ballots, this mistake must be corrected hy the Court or a Judge, see The Queen ex rel. Andrews v. Collins, L. K. 1 Q. B. Div. 336. s. 'iu ^>. IMAGE EVALUATION TEST TARGET (MT-3) A ■^ J'^ %// -^^-^ A* /<^^"4. C V 1.0 1.1 1.25 M 12.5 m^ Hi 2.0 1.4 i III 1.6 V <^ /] Photographic Sdaices Corporation m V <^ is 23 WEST MAIN STREET WEBSTER, N.Y. 14SS0 (716) 872-4503 o^ 112 THE MUNICIPAL MANUAL. [SS. 152-154. 8. 155.] In certain 152. In case it appears, upon the casting up of the votes to*h»ve*a^ as aforesaid, that two or more candidates have an equal casting vote, number of votes, the Clerk of the Muncipality or other per- son appointed by by-law to discharge his duties of Clerk ia his absence or incapacity through illness, and whether other- wise qualified or not, shall, at the time he declares the result of the poll, give a vote for one or more of such candidates, so as to decide the election. (^') 2. Except in such case, no Clerk of the Municipality shall vote at any municipal election held in his Municipality. 3. All Deputy Returning Officers and persons employed as Deputy Keturning Officers and Poll Clerks, if otherwise qualified, shall be entitled to vote. 38 V. c. 28, s. 22. 153. In case, by reason of riot or other emergency, an interrupt- electiori is not commenced on the proper day, or is interrupted after being commenced and before the lawfiil closing thereof, the Eeturning Officer, or Dej)uty Returning Officer, as the case may be, shall hold or resume the election on the follow- ing day at the hour of ten o'clock in the forenoon, and con- tinue the same from day to day, if necessary, for four days, until the poll has been opened without interruption, and with free access to voters for twelve hours in all, or thereabouts, in order that all the electors so intending may have had a fair opportunity to vote, (k) 38 V. c. 28, s. 23. 154. But in case the election has not, by the end of the fourth day from the day the same commenced or should have commenced, been kept open for the said twelve hours, the Returning Otlicer or Deputy Returning Officer, as the case may be, shall not return any person as elected, but shall return his voters' list and ballot papers on the following day Election not commenced, or ed by riot, etc., to be resumed. If election is prevented for four days, poll book is to be re- turned, and anew elec- tion ordered. {j) Where there is an office to be filled and tAvo candidates have an eciiial number of votes neither can fill it without some provision being made for a casting vote. The general rnle is to negative any ques- tion on which tliere is an equality of votes, see section 233. But for reasons stated an exception is here created in the case of an elec- tion see The Queen ex rel. Bulijer v. Smith, 4 U. C. L. J. 18 ; Tk Queen ex rel. Pollard v. Frosser, 2 U. C. P. R. 330 ; The Queen ex rel. Hume v. Lutz, 7 U. C. L. J. 103. (/,•) It is necessary that during the hours of polling the electors shall have free access to the polling place. The Queen ex rel. Davk et al. v. minon et al., 3 U. 0. L. J. 1G5. In case, by reason of riot, or other emergency, an election is not commenced on the proper day, or is interrupted altar commencement, the election must be resumed to the head of the oV not having been an place, and the head his warrant therefor. tion 174. 155. When a po Wards or polling si statements hereby di been so returned to any of the sealed said statements the n for any office in res previously declared, statements previousl; for the candidate, an< the next day, and, ifne (lays, till the poll has b access to voters for the thereabouts. The obje( iug to vote may, notw fair opportunity to vot( the expiration of the foi tunity of voting, in com prehended a new electioi (0 "If rioting takes having the ordinary nerv from recording their vot for the common law prov sense that all persons shs and voting without fear * H. 245 ; see also The Case, lb. 252. (Hi) The new election mthin four days, been k Officer has not returned cause of the failure. If I duty as to return any ot no doubt be set aside. 1 3 U. C. L. J. 165. Whe unsuccessful candidate i place by a crowd control neither the fact of the ob denied by that candidate rtl Gibbs et al. v. Branig of modern decisions is no he shown that he really ffhicli the election is sej mlmn et al, 3 U. 0. L. . 15 & 155.] RIOTS AT ELECTIONS. 113 to the head of the Municipality, certifying the cause of there not having been an election ; (l) and a new election shall take place, and the head of the Municipality shall forthwith issue his warrant therefor. (m) J38 V. c. 28, s. 24. See also sec- tion 174. 155. When a poll ha« been duly held in each of such Declaration Wards or polling sub-divisions, and the ballot papers and duty om""" statements hereby directed to be returned to the Clerk have ^^'"■^• been so returned to him, the Clerk shall, without opening any of the sealed packets of ballot pa])ers, cast up from said statements the number of votes given for each candidate for any office in respect whereof the election has not been previously declared, together with the votes appearing by the statements previously returned for other Wards to be given for the candidate, and shall at noon on the next day, at the the next day, and, if necessary, continued from day to day for four days, till the poll has been open without interruption and with free access to voters for the time mentioned, viz., twelve hours in all, or thereabouts. The object, of course, is, that all the electors intend- ing to voto may, notwithstanding riot or other emergency, have a fair opportunity to vote. If it were shown that, notwithstanding the expiration of the four days allowed, there was not a fair oppor- tunity of voting, in consequence of which votes were lost, it la ap- prehended a new election would be ordered. (I) "If rioting takes place to such an extent that ordinary men, having the ordinary nerve and courage of men, are thereby prevented from recording their votes, the election is void by the common law, for the common law provides that an election should be free in the tense that all persons shall have an opportunity of coming to the poll and voting without fear or molestation." Nottimjham Case, 1 O'M. k H. 245 ; see also The Stafford Case, lb. [234, and T?ie Drogheda Case, lb. 252. (Hi) The new election is to take place in case the election has not, \(ithin four days, been kept open twelve hours, and the Returning Officer has not returned any person as elected, but has certitied the cause of the failure. If the Returning Officer should so far forget his duty as to return any ot the candidates elected, the election would no doubt be set aside. The Queen ex rel. Davis et al. v. Wilson et al. 3U. C. L. J. 165. Where it was sworn that intending voters for an unsuccessful candidate were obstructed in approaching the polling place by a crowd controlled by one of the successful candidates, and neither tlxe fact of the obstruction nor the control was unequivocally denied by that candidate, the election was set aside. The Queen ex rel. Gihhs et al. v. Branighan et al, 3 U. 0. L. J. 127. The tendency of modern decisions is not to compel a party to pay costs, unless it be shown that he really participated in the improper conduct for which the election is set aside. 2Vte Queen ex rel. Davis et al, v. Wilson et al, 3 U. 0. L. J. 165. 15 1 ■.[i' ' 114 THE MUNICIPAL MANUAL. [SS. 156-158. it ' 1; I Town Hall, or if there is no Town Hall, at some other public place, ])ublicly declare to be elected the candidate or candi- dates heaving the largest number of votes polled, (n) 38 Y. c. 28, 8. 26. DscUration 156. The person or persons so elected shall make the ne- tion JJ"*™^' cessary declarations of office and qualification and aiaume offlM. office accordingly, (o) 36 V. c. 48, s. 119. Div. VI. — Miscellaneous Provisions. Clei-k to retain Ballot Papers. Sec. 157. Inspection of Ballot Pajjers. Sec. 158. Evidence. Sec. 159. Offiiices. Sees. 160, IGl. Secrecy of Proceed Ings. Sees. 162-164. Candidates may do Agents' duty. Sees. 165, 166. Computation of time. Sec. 167. Technical objections not to prevail. Sec. 168. Expenses of liettirning Officers, etc. Sec. 169. When ballot 157. The Clerk of the Municipality shall retain for one Sedestroyed month all ballot papers received by him or forwarded to him in pursuance of this Act by Deputy Returning Officers, (/)) and then, unless otherwise directed by an order of a Court or Judge of competent jurisdiction, shall cause them to be destroyed in the presence of two witnesses whose declara- tion that they have witnessed the destruction of such papers shall be taken before the head of the Municipality, and filed amongst the records of the Municipality bv the said Clerk, {q) 38 V. c. 28, s. 27. When ballot 158. No person shall be allowed to inspect any ballot papers Se'inepected. in the custody of the Clerk of the Municipality except (n) See notes to sec. 151. (o) Acceptance of oflBce when the person elected is qualified to be elected is obligatory, see section 272. ( p) This is with a view to a contest, if any be intended as to the validity of the election. ((/) After a month, it may be said, if there be no order to the con- trary from the Court or a Judge, that the ballot papers have served their purpose and that their further retention would serve no good purpose. The destruction of them must be in the presence of two witnesses whose declaration in writing that they have witnessed the destruction is to be filed among the records of the Municipality. & 159.] INSPECTION OF BALLOT PAPERS. 115 uiulei' the order of a Court or Judge of competent jurisdic- tion, to be granted by the Court or Judge on being satisfied by evidence on oath that the inspection or production of such ballot papers is required for the purpose of maintaining a ])roseciition for an ofFence in relation to ballot papei-s, or for the purpose of a jjetition questioning an election or x-eturn ; and any such order for the inspection or production of ballot papei"S shall be obeyed by the Clerk of the Municipality. (»•) 2. Such oi'der may be made subject to such conditions as to persons, time, place, and mode of opening or inspection as the Court or Judge making the order thinks expedient. (s) 38 V. c. 28, s. 28. 159. Where a rule or order is made for the production by Evidence m the Clerk of the jMunicipality, of any document in his pos- *° ***}^\ i. session relating to any specified election, the production of lot papers, the document by the Clerk, in such manner as may be di- ^^ rected by the rule or order, shall be conclusive evidence that the document relates to the specified election ; (t) and .anyen- doi-seiuent appearing on any packet of ballot papers pro- duced by the Clerk, shall be evidence of such papers bemg what they are stated to be by the endorsement. 38 V. c. 28, s. 29. ia cer- cases. (r) One object of the ballot is secrecy. But this is not the only object. Purity of election is another object. Where to attain purity of election it is necessary that an inspection of the ballot papers shoulil be had, it may be had under the circumstances, mentioned in this section. These are when required for the purpose of main- taming a prosecution for an offence in relation to ballot papers, see Regbia v. Bearihall, 34 L. T. N. S. (J61, or for the purpose of a peti- tion questioning an election or return, see //( re Election of Reeve, of Mwardnburg 13 U. C. L. J. N. S. 44. In either of these cases the order for inspection may be made by the Court or a Judge of com- petent jurisdiction. It is doubtful if an order can be made under this Act, for tlie inspection of ballots for the purpose of a petition relat- ing to a Parliamentary election. See The Uloucenter Case, 2 O'M. & H.59. («) A form of order for inspection will be found in Jlejina v. Beardsall, 34 L. T. N. S. 661. (0 This section relates only to evidence. If an order were made on a Clerk for the production of a document supposed to relate to a par- ticular election, it would never do to permit the Clerk to disobey the order on the alleged ground that the document in question does not relate to the part^ular election. Therefore the order so long as un- reversed or unvaried is made conclusive as to the fact. er Coleridge, J,, in Woodvxird v. Sarson.i, L. R. 10 C. P. 733, 743. {d) It is now a canon of election law that an election is not to be set aside for a mere informality or irregularity which cannot be said in any manner to have affected the result of the election. The Queen V. The lin-tor of St. Mary, Lambeth, 8 A. & E., .S.'iG ; Rerjina ex, rel. Walker v. mtchdl et al, 4 U. C. P. R. 218 ; In re Monk 'Election, 32 U. C. Q. B. 147 ; The Queen v. Plenty, L. R. 4 Q. B. 346 ; The Queen v. Ward, L. R. 8 Q. B. 210 ; Regina v. Coimm, 28 L. T. N. S. ]1G ; Retjina ex rel. Harris v. Bradhurn, 6 U. C. P. R. 308; Reguia ex rel. Pre.ston v. Touchhurn, lb. 344 ; Shaw v. Thompson, L R, 3 Chy. Div. 233. But where it appears that the irregularity is of such character and of such magnitude that it may have eflfected the result, the election ought to be set aside : Hackney Election, 31 L. T. N. S. 69 ; Woodward v. Sarsons, L. R. 10 C. P. 743 ; Mather v. Brown, L. R. 1 C. P. Div. 59G ; In re Johnson v. Lambton, 40 U. C. Q. B. 297. (e) The Act does not contain any provisiDn for the taxation of the amount of these services. Their reasonableness therefore must in the first instance be judged of by the Treasurer of the Municipality, In the event of a diflference between him and the person who per* formed the services as to their value the amount can only be settled by action or arbitration. 170. If, after t Cotuicil, he is con^ becoint's insolvent w or applies for relief custody, or assigns or absents himself ti months without boii the Council entered shall thenfby become the seat vacant, and 8. 123. (/) The contingencie effect of vacating a seat 1. Being convicted of 2. Becoming insolvent 3. Applying for relief 4. Remaining in close 5. Assigning property 6. Absence for three : resolution entered in the The Municipal Act of ] his goods, a good grounc Municipal Council, see h iu) As to the meaning vacant," &c., see The Kit Leech, 7 A. & E. 963 ; //( (h) There must be an be ordered. Price v. Bai or a resignation to take el deriiig a new election. L Willard, lOInd. 62; Peo, et al. V. Blfhop of Cuventn Glover on Municipal Corp an incumbent is vacant, \ Stuart, J., in Stocking V. > 8 Ind. 344. Where the contmgency than death, a on holding it, the proper cedure and not a writ oi election. The Queen v. 1' Rowley, Zq.KU2,S.{ 1 Q. B. Div. 217. But it inary procedure given by cannot be adopted. The < 16 ft 170.] VACANCIES IN COUNCILS. 121 170. Ifj lifter the election of any poi-son iis member of a s#»u t« b». Council, he is convicted of felony or infanionH crime, or ^"ninoln* becoiiu'S insolvent within the meaning of tlie Insolvent Acts, •*''*'"3r' or applies for relief as an indigont debtor, or remjiins in close ' custody, or assigns his jM'ojxu'ty for the umi of his cr(;ditor8, or altsents himself from the meetings of the Council for three months without being authorized so to do l)y a resolution of the Council entered in its minutes, his seat in tlui Council (/) Hball thereby become vacant, (tj) and th(! Coinicil shall declare the seat vacant, and order a new election. (A) 36. V. c. 48, s. 123. fcll^ i (/) The contingencies which, under this section, will have the effect of vacating a seat in the Council are : 1. Being convicted of felony or infamous crime. 2. Becoming insolvent under the meaning of the Insolvent Acts. 3. Applying for relief as an indigent debtor. 4. Remaining in close custody. 5. Assigning property for the use of creditors. 6. A])sence for three months from the Council without leave by resolution entered in the nunntes of the Council. Tiie Municipal Act of ISfili, made the return of nulla hona against his gooils, a good ground for vacating the seat of a meml)er of a Municipal Council, see In re Wood, 20 U. C. Q. B. 513. [i]) As to the meaning of the words, "slhall thereby become vacant," &c., see Tin- Kim/ v. Oxford, 6 A. & E. 349; T/ie Queen v. Leedi, 7 A. & E. 9G3 ; Ilardwick v. Brown, L. R. 8 C. P. 400. (/() There must be an actual vacancy before a new election can be ordered. Price v. Baker, 13 Am. 346. An anticipated vacancy, or a resignation to take effect at a future time, is no ground for or- dering a new election. Lindsay v. Luckett, 20 Texas, 516 ; Biddle v, WiUard, 10 Ind. 62; People v.'Wetherell, 14 Mich. 48. See also Colt (tal.v. Bixhop of Coiyntn/. Hob. 150; Owen v, Stainoe, Skin. 45; Glover on Municipal Corporations, 216. "An existing office without an incumbent is vacant, whctlier it be a new or an old one," Per Stuart, J. , in Stuckimj v. State, 7 Ind. 326 ; see also Collins v. State, 8 Ind. 344. Where the office becomes vacant, through any other contingency than death, and the person whose seat is vacant insists on holding it, the proper remedy against him is quo warranto pro- cedure and not a writ of mandamus on the Mayor to hold a new election. The Queen v. Cormvall, 25 U. C. Q. B. 293 ; The Queen V. Rotvley, 3 Q. B. 143, S.C.,6 Q. B. 668 ; The Queen v. Itippon, L. R. 1 Q. B. Div. 217. But it would appear that in such a case the sum- mary procedure given by this Act, in the nature of a quo warranto, cannot be adopted. The Queen ex rel. McOouverin v. Lawlor, 5 U. C. IC ■' n 122 THE MUNICIPAL MANUAL. [flS. 171, i/2. &173]. Quo toarr- anto proneod- iDRt on onilttiiiir to Ttcalo seat. Any member mav reNign with conrniit of majority of council. 171. In the event of any member of any Municipal Coun- cil forfeitinj? bin seat at tbe Coimcil or bis right thereto, or of bis becoming disfjualitied to hold bis seat, or of bis seat b(?comiiig vacant by disqtialification or otherwise, be shall forthwith vacate Iuh seat, and in tbe event of bis omitting to do 80 at any time after bis election, i)roce(!i'n ('a.^e, \'2 Mod. 40'-'; The Qiiem v. aiiiun'ster, Holt 450; Van Omlnll v. J/aznrU 3 Hill (N. V.)'-M3; State V. Allen, ill Ind. 510; I'loph- ex rel. I/anrnhan v. Mctniixilihin Folke Hoard, 20 N. Y. 310. A Warden may resign by " verbal iiifi- nmtiim to the Council wliile in scasion," or "by letter to the (.'ounty Clerk, if not in session." Sec. 173. V>y this section the resignation cftii oidy bo eflTectivl when "with the consent of tlie majority of tiie iiienil)er8 present, to be entered on tiie minutes of thcC'ouncil. ' Until such coiiHont be given and recorded, tlic oiler to resign may be recalled, The Queen v. Lane, 2 Ld. Hayd. 1304; The Kimj v. Jiipjion, 1 Ld. Kayd. 5(13 ; Jenniw/n Cane, 12 Mod. -102; IhizarU's Caw, 2 Holl. 11; The Klnq v. Pattern, 4 B. & Ad. ; see also Van Ovxilally. JJaztti t, ,3 Hill. (N. Y.) 243 ; State v. Aneker, 2 Rich. (.S. C.) 245. But see S'nte. V. Ildunn, 13 Am. 384. In general, the right to acc.'pt a resignation is incidental to the power of ajjpointment. The King v. TaUUiiiji, 1 Sid. 14 ; Jennintj'a Case, 12 Mod. 402; Taijlor'a Case, I'opham 133; !'4il (>») Tlie duty of the Clerk in the first instance, is to notify tlie members of the Council of the vacancy. He is only required to call a special meeting to fill the vacancy, " if required by a majority of the members of the Council. (n) Mere hesitation to take the oath until legal advice can be procured is not to be deemed a neglect or refusal within the meaning of this section. In re Asphodel and Saryant et al., 17 U. C. Q. B. 593. (o) See sees. 171, 172. {p) Some evidence must be adduced before the officer named, to satisfy him as to the vacancy, in order to make it obligatory upon him to act under this section. It is impossible to lay down any rule as to what amount or kind of evidence or information should be laid before him. In re Asphodel and Sargant et al., 17 U. C. Q. B. 593. ((/) Where a thing is directed to be done by a statute " forthwith," it means within a reasonable time. The Queen v. Worcester, 7 Dowl. 780. The word "immediately" is more strictly construed. Th King V, Huntingdonshire, 6 D. & R. 588 ; The Queen v. Asldon, 1 L M. & P. 491 ; Folkardv. The Metropolitan Railway Co., L. R. 8 C. P. 470. (r) The person to be appointed is the person who was appointed to hold the last past election, unless some other has been appointed by (t) See note n to s. 17 88, 175-177.] NEW ELECTIONS TO FILL VACANCIES. 12& refusal B«t non- election not 17 5- Tlie person thereupon elected shall hold his seat for Termot the residue of the tenn for which his predecessor was elected, Son'therJ**'* or for which the oflSce is to be filled. («) 36 V. c. 48, s. 126. upon elected. 176. In case Such non-election, neglect or refusal as afore- Warrant for Baid, (t) occurs previous to the organization of the Council for the year, the warrant for the new election shall be issued by the head or a member of the Council for the previous year, or by the Clerk, in like manner as provided by the onehiuidred and seventy-fourth section ; (u) but such neglect or shall not interfere with the immediate organization of the to p'revent' new Council, provided a majority are present of the full num- oilouncU ""^ her of the Council. 36 V. c. 48, s. 127. 177- The Returning Officers and Deputy Returning Offi- Time for cers shall hold the new election at furthest, within eight days nouce ofnMr after receiving the warrant, (a) and the Clerk shall appoint a election. the Council to hold casual elections, or to hold the particular election. It does not appear to be left to the discretion of tne head, ("lerk Oj member who issues the warrant to nominate the Returning Officer. {s) The word ' ' seat " is several times used in this Act. It ia a figurative expression to indicate office. When a person takes his seat, he ia said to take the office. When he resigns his seat, he resigns the office. When the seat is vacant, the office is vacant. The person elected is, in the language of this section, to hold his seat for the residue of the term of his predecessor, in other woids, to hold the office for the residue of such term. The word, in the sense h»re used, is borrowed from Parliamentary language. (0 See note n to s. 174. [u] Five Councillors were elected in January. At their first meet- ing, on the 17th January, only one made the declaration of qualification ; and a doubt having been raised as to the remaining four, in conse- quence of some employment held by them under the corporation they delajed in order to consult the County Judge. On the 19th Janu- ary they met again and organized themselves, but on the same day the Reeve for the previous year issued his warrant to elect four other Councillors who were returned ; and on the Slat Jaiuiary these four with the one who had first qualified, met and claimed to be the Council. He'd, that the second election was invalid ; for the parties first elected not having re/used to qualify, but only delayed, and having done so within the twenty days allowed, there was no ground for a new election. In re Asphodel and Sarijant, et al., 17 U. C. Q. B. 593, A mandamus was therefore ordered to the clerk to deliver up the papers to the Council first chosei.. lb. {a) The Returning Officer is to hold the election at furthest "ivithin eight days after receiving the warrant," The general rule for the I'lnputation of time fixed by a statute is — unless there be something in the statute to the contrary — to hold the first day excluded and the i r"r 126 THE MUNICIPAL MANUAL. [S. 177. a 178.] FILLII m '■ ■ 1,1 ^ i> ■'■■ llr' time and place for the nomination of candidates, f nd in case a poll is demanded, shall, at least four days before such poll- atter day included. Ex parte Fallon et nx., 5 T. R. 283. In this case tlio statute required an annuity deed to be enrolled "tvithin twenty days of the execution," and it was read as excluding the day of exe- cution. Lord Kenyon, in delivering judgment, said, "it would be straining the words to construe the twenty days all inclusively. Suppose the direction of the Act had been to enrol the memorial within one day after the granting of the annuity, could it be pre- tended that it meant the same as if it were said that it slicula be done on the savic day on which the act was done ? If not, neither can it be construed inclusively where a crreater number of days is allo\/ed." The same interpretation was put on the words " iv'Uh'm twenty-one days after the execution," in the case of the registry of a warrant of attorney. WilUamt v. Bimjesn, 9 Dowl. 544. Lord Den- man, in delivering jiulgment, said, "The question in this case has been decided in ex parte Fallon, which is an unquestionable autho- rity." In Scott V. Dichson, 1 U. C. P. R. 36G, where the words were " within sixteen days after the service hereof," as used in the Ejectment Act 14 & 15 Vict. c. 114, Robinson, C. J., said, "I think the rule of computation given by Stat. 2 Geo. IV. ch. 1, s. 22, does not apply, .as this is a term appointed by a statute, not by a rule of court, and by a statute passed after th.at Act, and therefore we must com- pute according to the general rule where there is no express provi- sion. Tliis makes the Hrst day inclusive and the last exclusive, or viceversd." Scott v. Dickson, 1 U. C. P. R. 366, wfis followed in Vrooman v. Shiiert, 2 U. 0. P. R. 122 ; Buffalo and L. H R. II'. Co. Brookuhanks, lb., 126 ; Cameron v. Cameron, lb., 259 ; Calkujhm V. Bmnes et al., lb., 144; Clark v. Waddell, lb., 145; PJtillips\: Merritt, lb., 233; Cnthbert v. Street, 6 U. 0. L. J. 20; Jn re West Toronto Flection, 5 U. C. P. R. 394. See further, Warren v. Slade, 9 Am. 70 ; Westhj-ook ManufactnrinS. 216, and by Dampier, .J., as "one who voluntarily proposes him- self or adopts the proposal of others." Ih. See furtlier, Muiiiz\, Sturfje., 8 M. & \V. 310. It is not necessary to constitute a persona candidate for the purposes of this section that he should be actually nominated at the election. The Queen ex rel. Corbett v. JuU, 5 U. C. P. R. 41. But if, after having been nominated, he, with the consent of his proposer and seconder, withdraw, he ceases to be a candidate. The Queen e.c rel. Coyne v. C'hisho(m, 5 U. C. P. R. 328. Tha inter- est of the relator is not established by the ordering of the writ. TIk Queen ex rel. Shaw v. Mackenzie, 2 0. L. Chamb. R. 36. It is not ueces- i sary that a relator who was a candidate should shew in his application to oust the successful candidate that he himself is qu.alified to aticept office. The Queen cv rel. Mitchell v. Adams, 1 C. L. Chamb. n.M. An elector Avho has himself been instrumental in electing a candidate j will not be allowed afterwards to complain of the election of that can- didate. The Queen ex rel. Poineroy v. Watson, 1 U. C. L. J. 4S. j The Queen ex rel Loyally. Ponton, 2 \]. C. P. R. 18; TheQim\a\ rel. Rosebush v. Parker, 2 U. C. C. P. 15 ; In re Kelly. \. Mncarow, H U. C. C. P. 457 ; The Queen ex rel. Grayson, v. Hell, 1 U. C. L. J.N. S. 130; Rerjina ex rel. Renis v. Cusac, 6 U. C. P. R. 303. Uponsimi-I lar principles it has been held that a Councillor who is instrumental j in the election of a particular person as Reeve or Deputy Reeve, can- not afterwards be allowed to move against the jjcrson so electeii Reeve or Deputy Reeve. T/ie Queen ex rel. Rosebush v. Parker, 2 U. | C. C. P. 15; but see The Queen ex rel. Clint v. Upham, 7 U. C-i L. J. 69. So where there is only one candidate or set of candi- dates proposed, and he or they are in good faith elected by acclama-i tion, no contest will be allowed under this section. The Queen ex rdl Bmj'j et al. v. Bell, 4 U. C. P. R. 226. " If the electors do not thinkl it worth while to contest an election in the ordinary way, it nuyj 180.] CGI after acceptance of of ahewH by affidavit to a properly be considered them a right to contes! Hagarty, C. J., lb. 22 Municipal Corporations, poratioii, should be relat members of the Councils nt. McMullen v. DeLi^le (if Superior or County C( rent and co-ordinate juris Court was of opinion agai hold liis judgment, upon at the instance of a diflert cause, pending before a ( sHorn was collusive and enjoyment of office conti Wahoii, IV. C. L. J.N i! otherwise qualified, att beenmitiated in collusioi P(Uter.mi v. Vance, 5 U ( toset up irregularities iAt the relator committed theii , |ailure of liis own proceedi I irregular, lie may notify dc I to proceed de novo, in whic application. The Queen e. , (/') The first point for coi application is to be made t t'ou, or one calendar mom person elected." In thee the election is to be exclude at all events are allowed to may have been accepted mo cation be not made within If 'Office has been accepte \1'mexrel. Rosebush v. Pa I must not only be made with ractice directs. The Queen IMeho 1, and the statemei 111 -r'! , application failed. Kf^falWd to elapse. J be allowed to file an Tnfor \''"Q"eenexrel. White v. Re ItoSll^rAV"^'^ be at least IL hi ^n*.*^^* ^« believes 1 C^^" founded; the oth fc- setting forth fully anr I or;?P°^-*^^*PP«°^tion p'atoris suflicient to obtain i j5 180.] CONTROVERTED ELECTIONS. 131 after acceptance of office by the peraoii elected, (h) the relator security tnd shews by affidavit to any such Judge, (i) reasonable grounds for 5^^^«(|. properly be considered tbat the Legislature did not mean to give them a right to contest it by an application of this kind. " Per Hagarty, G. J., Ih, 229. It is not desirable that the Clerks of Municipal Corporations, having the custody of the papers of the Cor- poration, should be relators in (/no loarrnnto proceedings to unseat members of the Councils of which they are Clerks. The Queen ex nl. Mc Mullen v. De Lisle, 8 U. C. L. J. 291. All the Judges, whether (if Superior or County Courts named in this section, possess concur- rent and co-ordinate jurisdiction. But where a Judge of the Superior Court was of opinion against a sitting m(inibcr, he declined to with- hold his judgment, u|jon the ground that there was a prior relation at tlie instance of a different relator against same defendant for same cause, pending before a County Court Judge, which relation it was sworn was collusive and intended to protect tlie defendant in the enjoyment of office contrary to law. Tlie Queen ex rel. McLean v. W'atmt, 1 U. C. L. J. N. S. 71. A stranger to the proceedings may, if otherwise qu.alified, attack them on the ground that they have heen initiated in collusion with the defendant. 2V/e Queen ex rel. Paitermn v. Vance, 5 U. C. P. R. 334. But he will not be allowed to set up irregularities in the proceedings as such unless he shew that the relator committed them purposely, as, for example, to secure the failure of his own proceedings. Ih. If a relator find his proceedings irregular, he may notify defendant not to appear and of his intention to proceed de novo, in which case he may successfully make a second application. The Queen ex rel. 31etcal/e v. Smart, 10 U. C. Q. B. (/() The first point for consideration is the time within which the I application is to be made, that is, " within six weeks after the elec- I tion, or one calendar month after the acceptance of oiiif p by the person elected." In the ■ computation of the f.ix weeks, t..? day of the election is to be excluded. See note a to sec. 177. Six weeks at all events are allowed to impeach the election, although the office may have been accepted more than a calendar month. If the appli- cation be not made within the six weeks, the test is then, whether the office has been accepted more than one calendar month. The mmiexrel. Rosebush v. Parker, 2 U. C. C. P. Iti. The application nmst not only be made within the time limited, but be made as the practice directs. The Queen ex rel. Tel/er v. Allan, 1 U. C. P. R. 214. I Therefore, where there was no written motion paper, as required by 1 Rule No. 1, and the statement was not signed, as required by Rule I No, 2, the application failed. lb. (See Appendix) ; and if the time jbited be allowed to elapse without an application, the relator will Inot be allowed to file an information in the nature of a (juo warranto. \!y Queen ex rel. White v. Roach, 18 U. 0, Q. B. 226. (i) There should be at least two affidavits : the one of the relator, I to the effect that he believes the grounds mentioned in the statement I to be well founded ; the other an affidavit of the relator or other Ipereon, setting forth fully and in detail the facts and circumstances jthich support the application. Rule No. 2. The affidavit of the |R'ator is sufficient to obtain the writ. Tlie Queen ex rel. Carroll v. ^■•v-.i W 132 THE MUNICIPAL MANUAL. [s. 180. supposing that the election wiis not legal, or was not con- ducted according to law, or that the person declared elfctod thereat was not duly elected, (k) and if the relator entei-s into Berkv'ith et al. 1 U. C. P. R. 278. It seems, althongh it has not been expressly decided, that the attorney of the relator may act aa a com- missioner for taking the aHidavits. Tho. Qitcfii ex rtl. BlaUikll v. RochcHtir, 12 U. C. Q. B. (530. The Judge must be either a Judgeof the Superior Courts of Common Law, or the senior or olKuiatiiig Judge of tlie County Court of the County in wliich the electiuii ur appointment took place. Sec. 179. (k) The grounds of the application are here specified, viz : ^either that the election was not legal, or was not conducted according to law, or that the person declared elected was not dxdy elected. The granting or refusal of the writ is a matter of discretion. If "rca- sontahle grounds " he sliewn, the writ no doubt will be ordered. But it is not for every mistake or irregularity that the writ will be ordered. If the mistake or irregularity in no manner contributed to .an impro- per result, tlie Judge may very properly refuse the writ. Si o Tht Qiiet'H V. Ward, L. II. 8 (). B. 210. The ai^jlication may be made although defendant has not taken the oath of office. Jit re t^aiceriiw Stevcnso)!, 5 U. C. L. J. 42. The followingjuay be the fonri of the statement : IN THE QUEKN's BKNC'II (or COMMON PLEAS). The statement and relation of , — . of , (here insert the names of , who, complaining that and addilions of all, if more than one pemou), hath (ur lu.ve) not been duly elected, and hath [vr have) unjustly usurped and still doth (or do) usurp the office of — , in the Town of (or Township of , as the case may be), in the County (or United Counties) of , under the pretence of an elec- tion held on , at , in the said County or (United Counties). [And, (tvhen it is claimed that the relator, or Ike relator and another, or others, ouf/ht to have been returned), that, (here name the jmrtij or par- ties so entitled) was (or were) duly elected thereto, aud ought to have been returned at such election], and declaring that he, the said relator, hath an interest in the said election, as a , states and shews the following causes why the election as the said to the said office should be declared invalid aud void. [And when so claimed) the said (naminy the party or parties) be duly elected thereto], Fii-st — That (for example) the said election was not conducted according to law in this, that, &c. Seco7id — That the said - returned, in this, that, &c. Third— Th&t, &c. Signed by the relator in person, or by C. D,, his attorney. NoTS.— Where the hitention of the relator Is to impeach the election as altogether void, in •which event, as tlie office cannot be claimet for any other or others, tbi portion of the above and succeeding forms relating thereto should be omitted. was not didy or legally elected or a recognizance before taking affidavits, in t two 8uretie.s (/) (to he (/) Tlie following may be IN THE queen' 180.] CONTROVERTED ELECTIONS. 133 a recognizance Leloi-e the Judge or before a Commissioner for tiiking affidavits, in the sum of two hundred dollars, with two sureties (l) (to be allowed as sufficient by the Judge upon Tlie relator is not allowed, at the hearing, to object to the election (jf tlie party or parties complained against, on any ground not speci- tied in the statement on which tlie summons was moved. Rule 9, Appendix. But it is, notwithstanding, in the discretion of the Judge, if lie see fit, to entertain, upon his own view of the case, any substan- tial ground of objection to or in support of the valdity of the election of citiicr or any of the parties which may appear ni *' o. evidence before liini. Ih. None of the proceedings are to be set imide or held void on account of any irregularity or defect, which shall not, in the (ipiiiion of the Court or Judge, be deemed such as to interfere with tliu just trial and adjudication of the case on the merits. Rule 18. The statement of the relator as to an objection supported by his iitiiilii\ it is looked upon as a material traversable allegation, and if (kfuiidant omit to answer it, he may be hehl to adujit its truth. Hri/nia vx rel. Jferrei/ v. Scott, 2 C. L. Chamb. R. 88. The statement may be amended by shewing that the relator was a candidate or a voter. The Qticm ex rel. O ' lieUhj v. CharUon, (i U. C. P. R. 254. Wiiere the allegation was, that the relator "had an interest in the said election as a voter, " and his affidavit stated that he had voted ' ' on the said election, but not for the said William Rjvstall," it was held to lie sutHcient. Hef/iiiu ex rel. lioxn v. Rantall, 2 U. C. L. J. N. S. 160. A lieliitor is not necesaaiily bound to prove his interest. Jieyiiia ex rtl. linrtll/e v. O'lieilli/, 8 U. C. Q. B. (UT ; see further The Queen v nl. Poineroi/ v. ^'atsoii, 1 U. C. L. J. 48. The Queen ex rel. VmplKll V. o'Mallej/, 10 U. C. L. J. N. S. 250. (/) The following may be the form of the recognizance : IN THE queen's BENCH {or fOMMON PLEAS). UsTAiuo, County bered, that on the one thousand eight Chief Justice {or a (or Be year of it remem- our Lord , of — -, taking bail) United Counties) of — day of , in the hundred and , before me — Justice, or a Commissioner for v^™...^ in Her Majesty's Court of Queen's Bench (or Conmion Pleas) for Ontario, cometh , of , and , of , and acknow- ledge themselves severally and respectively to owe to , of ; — (here inserting the name or names of the perso7i whose election is complained aijainst.), as follows, that is to say, the said the sum of two hundred dollars, and the said and the sum of one hundred dollars each, upon condition that if the said do prosecute with effect the writ of summons in the nature of quo war- muto, to he issued on an order of fiat to be made at the instance and upon the relation of the said , against the said , to show liy what authority he (or they) the said claims (or claim) to be {here date the office so claimed), and why he (or they) the said shoukl not be removed therefrom [and {where so claimed by the relator) why he the said relator (or the imrty or parties entitled) should not he declared duly elected, and be admitted to the said office] ; and if the said do pay to the said all such costs as the said Vm pi 131 THE MUNICIPAL MANUAL. [h. 180. affidavit of justification) (m) in the sum of one hunilred dollar eacli, conditioned to prosecute tlie writ with effect, or to pav the party against whom thj same is l)rought any costs which may be adjudged to him against the rehitor, the Judge shall direct («) a writ of summons in tlie nature of a quo Court of {or the J\ii1ge i)rc8i(linc i» ChamherB, at the City of Toronto, hi the County of York, or the .Tudue of the County Court of tlie County of ) Hliall direct in that l)<'half, tlien thia recog nizancc to be void, otherwise to remain in full force. T",ken and acknowledged the day and year that al)Ove mentioned, Before me (m) The following may be the form of affidavit of justification : IN TIIK queen's DENOH {or COMiMON PLEA.s). I, A. B., of, &c., one of the sureties in the recognizance hereto an- nexed, make oath and say as foUoMs : 1. That lam a freeholder (or householder, as (he case maij he), re- siding at, &c. 2. That I am worth property to the amount of one hundred dollars over and above wliat will pay all my just debts {if hail in (iinj otkr action, add) " and for every otlicr suiw for which I am now bail". 3. That 1 am not bail in any other action or proceeding (or, except forE. F., at the suit of G. H., in the Court of, &c., in the suniof, &c.) And I, C. D., of, kc, the remaining surety in the recognizance hereto annexed, make oath and say as follows : 1. That I am a freeholder, &c. {as before). The above named deponents, A. B. and C. D., were sever- ally sworn before me, at, &c., in the County of, &c., tills day of , A. D. 18—. A Commissioner, Ac, A.B. CD. (?i) The following may be the form of the Judge's fiat : IN THE queen's BENCH {or COMMON PLEAS). Upon reading the statement of , of , in the County of , complaining of th.e undue election and usurpation of the office of , by , [and {if so, statinn) that the said — (relator or other person nained) was {or were) duly elected, and ought to have been returned to the said office], and upon reading the affi- davits filed in support of the said statement ; and also upon reading the recognizance of tlie said , and sureties therein named, and the same being allowed as sufficient ; I do order that a writ of summons do issue, calling upon the said , {the party whmf election is complained of,) to show by what authority he {or they) the said {the jiartij w/iose election is complained of) now exercises or enjoys {or exercise and enjoy) the said ofiice [and why {if so claivicl) IN THE QUEEN The Queen, upon the re To and , nan summons. 180.] QUO WARRANTO SUMMONS. 135 varmnfo to be issued to try tlio matters contested, (o) 3fi V. c. 48, 8. 132. ho (or they) tho said ahouKl not bo removed therefrom, and the said relator or other jxrMtn or jtcr.ii»is iiitmnl) slioidil not ho declared duly elected, and be (^dniittod tliereto], returnable liefore, kc. Dated this day of , 18—. (u) The following may be the form of writ : ONTARIO. VicrouiA, by tho Grace of CJod, &c. To , of , &c., in the County (or United Counties) of . We command j'ou {anfl each of you) that you [ntid each of i/on) be ,antl ajJiieiir l>cforc the Chief Justice or other .Fustico of our (!ourt of (,tuecii'8 Bench f>r Common Pleas for Ontario, presiding in I'liaiuhcrs, at the Judges' Cham1)erH in onr City of Toronto, on tho tightii day after tho day on which you Hhall be served with this writ, thuu and there to answer and show to such Chief Justice or Justice l)y wliat authority you claim to use?, exercise or enjoy the otKce (if , which oliice upon the relation of , having as he says an interest in the election to the said olKce as a - — -, we are informed that you have usurped and do still usurp [and that (//'.to rlahiu'd) the said {relator or party or iiarfies vicritioneil) was {or were) and shoidd have been declared duly elected .and admitted tliereto], and further to do and receive all tliose things which our said Chief Jus- tice or Justice shall thereupon order concerning the premises. Witness, the Honourable .Chief.Justicc of our said Court of {or other Justice in vhoxennitie the, ivrit ix tented, at Toronto, this (lay of , 18 — , and in the year of our reign. To the writ must be attached a copy of the relator's statement of ohjectious and grounds, and of the names and adtlitions of the persons who shall have made the affidavits upon which the writ issued. (liule 3 Appendix. ) The notice may be in the following form : IN THK queen's BENCH (or COMMON PLEAS.) The Queen, upon the relation of , against - To and , named in the within (or summons. annexed) writ of The within (or annexed) writ of summons has been issued at my instance and relation ; and a statement concerning the premises, whereof a copy is hereunto annexed, is filed in the otHce of the Clerk of the Crown m this Court (or with the Clerk in Chambers at the City of Toronto), together with affidavits supporting the same ; and the names and additions of the deponents to the said affidavits are hereunder written. And you are served with the said writ of sum- mons to the intent that you do appear and answer, as herein com- manded, or otherwise judgment will be given against you by your 'ff M " I 136 ETiUenco to fa« uicd on return of writ may Imj taken vim vote by luuvo of Jucign, etc. When the relator clatniit to bo elected. m THR MUNICIPAL MANUAL. [ss. ISl, 182. 181. The .hulge of the .Superior Court before wliom the writ of suminoM.s is retinimWe, niiiy order the eviur election to the therein mentioned oHicc will he •loelared invalid, and you will be removed tiierefroni [ami the aaid (tlw ri'ldfdi; or , tlia /mrh) or purtkn, if 'i 111/, itl/fi/cil tolw piUiflcd) tlierein named bo declared duly eleoted, and will bo admitted thereto in your place.] A. li. in person. or by ( '. D. his Attorney. The above mentioned deponents are : • , of . , of . (p) There was no such provision as tlie above in the Act of 18(JC. It for the Hrst time appeared in the Corrupt Practices Municipal Elections Act, .'io Vict. cap. 3l), ss. 5 & 6. In some cases it maybe necessary for the Judye before whom the case is returnable, in order to avoid needless expense, to avail himself of this section. It author- izes a proceetling in the nature of a commission to exannue witnesses. The Jutlge may, if he see fit, command the attendance of witnesses before him. See sec. 189. (7) It seems to be well understood that before a Judge will enter- tain an application, not merely to make void the election of the party complained against, but to declare the relator or some other person elected in his stead, it must be sliewn, to the satisfaction of the Judge, that notice had been given of the discjualification of the suc- cessful candidate at such a time and in such a manner as nmat have made the electors aware that if they voted for that candidate their votes would be thrown away. Sec note /> to sec. 74. Twenty-six per- sons voted twice for the defendant. The Judge deducted twenty- six from the gross number of votes recorded for defendant, anil thus left the relator in a majority of nine. The relator was accordingly declared elected. The Queen ex rel Pomtroy v. Watson, 1 U- C. L, J. 48. The relator, who is entitled to the seat, is not to be deprived of it by the resignation of his opponent. The Queen ex rel. Johnstu^i V. Murnei/, 5 U. C. L. J. 87. hS. 183-18.\] wi 183. I" caH(t ihr or more persons el writ against siich pc 184. Where inon validity of an eloctic llcfve or l{(!ev(>s a letuniabjo before th Ju(l;,'() ntay give on meiit upon each one V. c. 48, H. 1.'{C. 185. The writ sha of the said Supei'ior Crown in the Couni shidi be returnable jMOper Court at To; Court at a i)lace nnni ) It wa.s, under the a private relator had no a '//('» iiuirraiifo, either tr grimmls which, if nieiiti (if the body, or to att;i thmugli the individual n r*'/. Luirrt'tire v. IVoodru^ to liavo been in this rjs] cap. r»4, sch. N(». 2;}, anc this Act appears to be in (■<) At an election ther l)e several persons electe test the election of any a see fit to contest the elec Each relator complying m ami independent writ. brought to try the validi case, all the writs are to to try the first. One ob foriiiity of decision. Tfi'f R. 198. Where the firsi to protect the defendant regarded. The Queen ejL ■S. 71. [t] If not tested on th< The Queen ex rel. Linton ^ irregularity may be waivi Although a County C it is always to be issued suggested that the fiat shi he returnable. It has be 18 m tt 1H3-1H5.] wiUT OF guo wakuanto. 183. 1'^ ciiHo ihf; gromuls of olnjection apply (miuuHv to two or more persons I'lcctetl, the ndiitor may proceeil by ono writ iigainst such pci'sons. (/•) 'Mi V. c. 4H, s. I'M). 184. Wlicro more writs tliau ono nro brouj^lit to try tho viiliility of an eloction, or the right to a Reeve or Deputy Uccve or I{(M!ve8 as afonisiiid, nil such writs shull b(^ made n'tunmlile before the Judgt! who is to try the first, and such ,Iu(1>,'o may give ono judgment upon all, or a separate judg- mt'iit upon each one or more of them, as he thinks tit. (m) 36 V. c. 4H, H. 1:56. 185. The writ shall be issued by the Clerk of the Trocoss of tlu! said Superior Coiu'ts, or by the Deputy Clerk of the Crown in the County in which the election took jJace. and .shall ho returnable before the Judge in Chambers of the piopor Coui't at Toronto, or before the Judge of a County Court at a place named in the writ, (t) upon the eighth day 1S7 ■I i Whon'n.'To- ral dvctlniii oninpltlned of. All to l« tried by the MUi« Judge. Writ, who to iN*ue, and re- turn day theroof. ) It was, uiulor tho statuto 12 Vict. cap. 81, sec. Itfi, hold that a jiriviitc roliitor had no ri;;lit ])y a writ of suininons, in the nature of a'/'w iriirraiilo, either to attack the Township Council by name upon grnuiids which, if nientioued, must necessarily lead to a dissolution (iftlic hody, or to attack tlic wliolo Council in one i)roc»!ediug, tliniugli the individual n.-'nies of every member of it. The Qitten ex fil. Lmrri'iirr V, WixidruH', ^ U. C. Q. B. 3.%. But the law cippears to have been in this rsspect afterwards amended (see 13 & 14 Vict. cap. r»4, sch. No. 23, and IG Vict. cap. 181, s. 27), and sec. 191 of this Act appears to bo in tho amended and extended form, (.i) At an election there may be several candidates ; so there mcay l)c several persons elected to otfice. One i)ersou may see fit to con- test the election of any successful candidate ; so another person may see tit to contest the election of another of the successful candidates. Kacli relator complying M'ith this statute, may have his own separate and independent writ. In this w\ay there may be several writs brought to try the validity of the same election. When such is the case, all the writs are to be made returnable before the .Judge who is to try the first. One object is obvious, and that is, to preserve uni- formity of decision. The QiU'Oi ex. rcl. Forwanl v. Detlor, 4 U. C. P. R. 198. Where the first relation is collusive, and merely intended to protect tlie defendant in the enjoyment of office, it may be dis- reg.irded. Tke Queen ex rel. McLean v. WaUon, 1 U. C. L. J. N. S. 71. (/) If not tested on the day it was issued, it wonld be irregular. The Queen ex rel. Linton v. Jackmn, 2 0. Ij. Chamb. R. 18. But the irregidarity may be waived by appearance. (lb.) Although a County Court Judge may grant a fiat for the writ, it is always to be issued out of one of the Superior Courts. It is suggested that the fiat should state before what Judge the writ is to be returnable. It has been held that a County Court Judge may 18 1' 138 THE MUNICIPAL MANUAL. [s. 186. after service computed exclusively of the day of sei-vice (v), or upon any later day named in the writ, (v) 36 V. c. 48, s. 137. Serrioe to be 186- The writ shall be served personally, (a) unless the personal, uu- p^^^y to be served keeps out of the way to avoid pei-sonal order the writ to issue returnable before a Judge of a Superior Court The Queen ex rel. Lutz v. WUllamnon, 1 U. C. P. \\. 94. In sueli case it is the duty of the relator to see that the proper papers are trans- mitted to Toronto. lb. {u) Thus, a writ served on Monday of one week wouhl be return- able on Tuesday of the ensuing week, ' ' or upon any later Jay named in the writ." (v) The fallowing may be the form of affidavit of service. IN THE queen's BENl't (or COMMON PLEAS.) The Queen, on the relation of against I, the- -, of . in the , make oath and say, that I did, on day of , personally serve the above named defendant (or defendants) with the annexed writ of summons, by delivering to him (or each of them) a true copy thereof, on which said copy was endorsed a written notice, a copy whereof is hereto annexed, and to which said copy (or copies respectively) of the said writ was annexed a written copy of a statement of the above named relator, a copy of which said copy of statement is also hereunto annexed ; and I fur- ther say that the minute (or minutes) of the said service, written on the said writ of summons, was (or were) so written by me within twenty-four hours after such service. -, 18-. Sworn at , in the County of , this day of — Before me Upon the return of the writ, the party or parties summoned may appear either in person or by attorney. Rule No. 4, Aj)pendix. The manner of appearance is by endorsing on the back of the relator's statement, attached to the motion papers, the words, "The within named C. D. appears in person (or by attorney, as the, case may he) to answer the grounds of^ objection to his election which are within stated." Jb. If on the return no appearance be entered, the Judge sitting in Chambers may, before rising on that day, direct an entry to be made on the back of the statement, as follows : ' ' The within named C. D. (and E F. ) being duly summoned, hath (or have) not appeared to answer the matters within objected." (Rule No. 5, Appendix. ) This entry, if not made on the day directed, may he made on a subsequent day. Ih. The Judge may thereupon, on that or any subsequent day, proceed to near and determine the matter. (Rule No. 7, Appendix.) (a) "Personal service" of a writ has never been defined by the Legislature, Each case is left to depend on its own particular cir- 8. 187.] SERVICl (d) Tlie writ to make 8. 187.] SERVICE OP WRIT OF QUO WARRANTO. 139 service, in which case the Judge, upon being satisfied less excuged thereof, by afiidavit or otherwise, may make an oi'der for ^^ i^^- such substitutional service as he thinks fit. (b) 36 V. c. 48, s. 139. 187 The Judge befcre whom the writ is made returnable. Returning or is returned, (c) may, if he thinks proper, order the issue of putj^'returo^ a writ of summons (d) at any stage of the proceedings to make "'8 o®ce' cumstances. The Courts have not held it necessary to put process into the actual corporeal possession of the defendant, to constitute personal service, but have looked more to the object of the service — timely notice to defendant of intended legal proceedings against him. Har. C. L. P. Act, 2nd ed,, note v to sec. 16 p. 17. In general a copy of the writ should be left with defendant, and the original shewn to him if he desire to see it. Gogys v. Lo7-d Jfiintini/toircr, 1 D. & L. 599, per Alderson, B. The copy of tlie writ must be left with, and not merely shewn to defendant. norlei/ v. Gloivr, 2 Str. 877. Though defendant refuse to take the copy, if the person serving it bring it away with him, the service will be defective. Phjmn v. Bruce et nl., 8 Taunt. 410. Where the copy was thrust through the crevice of a door to defendant, who had locked himself in, the service was held to be sufficient. Smith v. Wintle, Barnes, 405. Service upon a wife, agent or servant, is not personal service. Frith v. Lord Doii'(jnh 2 Dowl. P. C. 527 ; Davies v. Monjan, 2 0. & J. 237 ; 6'o7'/.'*. v. Lord Huiitinytowei; 1 D. & L. 599; Chriatinas v. Eicke, 6 i)'. &. L. 156. (1>) Personal service can only be dispensed with under the circum stances here mentioned. The Queen ex rel. Arnott v. Marchant et al. 1 C. L. Chamb. R. 167. (c) "Is made returnable, or is returned." This expression ap- pears to be used in order that a writ " returnable" on the face of it Defore a Judge named therein, may be " returned " to and acted upon by any Judge presiding in Chambers, or the Judge pre- siding in the County Court for the time being, according as the Judge mentioned in the writ belongs to a superior or an inferior court. (d) The writ to make a Returning Officer a party may be in the fol- lowing form : ONTARIO. Victoria, by the Grace of God, &c. Whereas, upon the relation of , in our Court of Queen's Bench (or Common Pleas), , it hath been ordered that a writ of sum- mons should issue , to show by what authority he (or they) claims or exercises (or claim or exercise) the office of ; and whereas it appears to our Justices of our Court of Queen's Bench (or Common Pleas) , before whom the said writ hath been made return- able (or as the case may be), that you were the Returning Officer by whom the said hath (or have) been returned as duly elected to the said office, and that it is proper you should be made a party to the proceeding aforesaid : These are therefore to summon you to be . k 1: t m V 140 THE MUNICIPAL MAl^UAL. [SS. J 88, 189. mav be made the Returning Offiuer or any Deputy Returning Officer a ■ party. pai-ty thereto, (e) 36 V. c. 48, s. 138. Thejudgo 1S8- The Judge before whom the writ is returned may ™rtain'per- a^^ow any pei-son entitled to be a relator to intervene and 80II8 to inter- defend, and may grant a reasonable time for the purpose ; ( be used. See sec. 204. (/) The following may be the form of writ of trial : [L. S.] Victoria, by the grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defende" of the faith. To the Judge of the County Court of the County of Greeting : Whereas, upon the trial of the validity of an election of , cliosen upon the day of , to be for the Township of , (or as the case may be) in the County of , and which elec- tion hath been complained of by E. F., as the relator, alleging {as thf. case r.iay he) that he himself, or that he and C. D. , &c. , or that C. D., &c., was or were duly elected, and ought to have 1 een returned, it hath become material to ascertain whether [here statiruj conmcli/ the issues to be tried), and whereas it is desired by , our Chief Justice (or Justice) of our Court of Queen's Bench (or Com- mon Ple.'u;) before whom thtj same is pending, that the truth of such matters as aforesaid may be found by a jury ; We do, therefore, pursuant to the statute in such case made and provided, command you, that by twelve good and lawful men of the County of , who are in nowise akin to the said E. F., the relator in the said ca,se, or to tiie aa.k\ (the other jiarfy or parties, namiiuj him or them), and who shall be sworn truly to try the truth of the said matters, you do proceed to try the same accordingly ; and when the jury shall have given their verdict on the i^^atters aforesaid, we command you that you do forthwith make known to our said Chief Justice (or Justice) what shall have been done by virtue of this writ, with the finding of the jury hereon indorsed. 'It m 142 THE MUNICIPAL MANUAL. [s. 190. S. 190.] JUDOMENI sions of section two hundred and four, (k) 36 V. c. 48, 8. 141. Judge shall 190. In case the election complained of is adjudged in- so™not d*iiy valid, (I) the Judge shall forthwith, by wi-it, cause the person III •, Chief Justice {or Justice) of our clay of , in the year of our Witness, the Honorable said Court at Toronto, this ■ reign. The following may be the form of indorsement of verdict thereon : I hereby certify that on the day of , before me, L. M., Judge of the County Court of the County {or United Counties) of , came as well the within named relator as the within named {the other party or parties) by their attorneys {or as the cane may be) and the jurors of the jury, by me duly summoned as within com- manded, also came, and being sworn to try the matters within mentioned on their oath, said that, &c. {k) When the party or parties summoned 'las or have appeared, no more formal answer need be made by him or them to the relator's case than by affidavits filed in answer. (Rule No. 10, Appendix.) But the Judge may in his discretion require from either or any of the parties further affidavits or the production of any such evidence as the law allows. lb. None of the proceedings had in any case for t'-ying the validity of an election, or which follow the determina- tion thereof, are to be set aside or held void on account of any irre- gularity or defect, which shall not, in the opinion of the Judge before whom the objection is made, be deemed such as to interfere with the just trial and adjudication of the case upon the merits. (Rule No. 18, Appendix.) Contempts in disobeying writs of summons, certio- rari, mandamus or other process, riile or order of Court or of any Judge thcrecff, acting in the execution of the powers conferred by this Act, are to be certified into the Court from which the writ of summons issued, to be dealt with like other contempts of such Court in other cases. (Rule No. 16, Appendix.) The forms given may be changed when necessary, at the discretion of the Judge who tries or determines the case, to adapt the same to such particular case. (Rule No. 17, Appendix.) It has been held that a Judge of a County Court cannot, in deter- mining the validity of a contested election, incidentally decide against the validity of a Township By-law. The Queen ex rel. McLaughlin V. Hicks et al., 5 U. C. L. J. 89. ( I) The following may be the form of the judgment : In the Queen's Bench {or Common Pleas) the Queen on the relation of against {and A. B., Returning Officer, made a party by the order of a Judge.) Be it remembered, that on the Lord one thousand eight hundred our day of and - -, in the year of at the Judges' Chambers in the City of Toronto, before me, , Chief Justice {or Justice) of Her Majesty's Court of Queen's Bench {or Common Pleas) came as well the above named relator by his attorney as the above named by his {or their) attorney and service of the writ S. 190.] JUDGMENT IN QUO WARRANTO PROCEEDINGS. 143 found not to have been duly elected to be removed, and in elected, ad- ctise the Judge determines that any other person was duly rfMted?""' elected, tlie Judge shall foi-thwith order a writ to issue confirm elec- tion, etc. of summons hereunto annexed, having been duly proved upon affi- davit, and upon the said day and upon other days thereafter, at the Chambers aforesaid, having heard and read the statement and proofs of the saiil relator, touching and concerning the usurpation by him alleged against the said of the office of in the said writ of summons mentioned (and of the alleged misconduct of said A. B. as Keturning Officer at the said election) [and if «o] the election of {the parti/ or partic'i vnme.d) thereto], and the answers and proofs of the said — — , and having heard the said parties l)y their council (or oi the ca.fc mai/ he), and upon due c(jnsideration of all and singular the premises now, that is to say, this day of , in the year aforesaid, I do adjudge and determine : First — That the said relator had, at the time of his making hia aforesaid complaint, an interest in the election to the said office of as a . Second — That, &c. nu-tZ— That, &c. Fourth — That the said hath (or have) usurped, and doth {or do) still usurp the said office, and that he (or they) oe removed there- from [or that the election of to the said office was void, and that he (oc they) be removed therefrom (an the judyment may 6p.)] And that the said relator [or the said (naming the partij or parties whose tifctiun li ajjinued, tuhen Iw, or they are adjudged to he entitled to the md office)] wiia (or were) duly elected thereto, and ought to have been returned, and is (or are) entitled in law to be received into, and to use, exercise and enjoy the said office. And I do adjudge and determine tliat the said do not in any manner concern himself (or themselves) in or about the said office, l)ut that he (or they) be absolutely forejudged and excluded from further using or exercising the same, under pretence of the said elec- tion [and further, that the said (naming the relator or party whose election is affirmed) be (or be respectively) admitted to the said office in his (or their place (or places)]. And I do further order, adjudge and determine, that the said relator do recover against the said his costs and charges by him in and about the said relation and the prosecution thereof expended, to be taxed in the said Court. All which the said writ of summons, and the said judgment, and the statements, answers and proofs of the said relator and of the said , and all other things had before me touching the same, I do hereby certify and deliver into the said Court, there to remain of record as a judgment of said Court, according to the form of the statute in such case made and provided. E. F. , J. The following may be the conclusion of a judgment for the defend- ant, to follow the word affidavit, in the foregoing form : Thereupon now at this day, that is to say, on the day of aforesaid, at the Judges' Chambers at Toronto aforesaid, all and 144 THE MUNICIPAL MANUAL. [s. 190. May eauM causing sucli other pei-Hon to be admitted ; (vt) and in case new eiecUoD. ^j^^ Judge determines that no other pei-son was duly elected singular the relation ami proofs of the said relator, and the answers and proofs of the said bein^ seen and fully understood, I ilo consider and adjudge that the said office of so claimed by him (or them) the said be allowed and adjudged to him (or them), that the said be dismissed and discharged of and from the premises above charged upon him {or them) and also that he {or they) the said do recover against the said relator his {or their) costs by him (or them respectively) laid out and expended in defeiuliug himself (or themselves) in this behalf. All which, ^c, (as in the judfjment for the relator.) The following may be added if costs allowed and taxed : ' ' Afterwards, that is to say, on the day of , in the year of the reign of our Lady the Queen, cometh, the said , and prayeth that his (or their) said costs so as aforesaid adjudged to him or them be taxed and assessed according to the form of the statute, in such case made and provided, and the said costs of the said , in and about his (or their) prosecution (or defence) aforesaid, ami (whn the Returnbin Officer is a parly) of the said , in and ab(mt his defence aforesaid, so as aforesaid adjudged to him (or them), are now here accordingly taxed and assessed as follows, that is to say, the costs of the said at the sum of [and the costs of the said (when Relurnivij Officer entitled thereto) at the sum of ,] ami the said 1 C. L. Chamb. C. Q. B. G17 in mercy, &c." See Beyina ex ret. Gibbon v. McLellan, \\. 125 ; The Queen ex rel. Budiffe v. O'lteilli/, 8 U. (m) The following may be the form of writ for removal, &c. ViCTOKIA, &c. To the Corporation of — Whereas on the day of (the town, township, or city of.) in the year of our Lord one at the Judges' Chambers in the thousand eight hundred and City of Toronto, before ; Chief Justice (or one of the Justices) of our Court of Queen's Bench (or Common Pleas) for Ontario, it was by the said Chief Justice (or Justice) adjudged and deter- mined that of had usurped, and did then usurp, the office of [and that was (or were) duly elected thereto, and ought to have been returned, and was (or were) entitled in law to be received into, and to use, exercise and enjoy the said office,] all which has, by the said Chief Justice (or Justice) been duly certified into our Court of Queen's Bench (or Common Pleas) pursuant to the statute in that behalf. Now, we being willing that speedy justice be done in this behalf, as it is reasonable, command that the said (tin person or persons, namin• Council is adjudged invalid, the writ for their removal, and OTu»d,?to., for the election of new members in their place, or for the JiMtio°'toa» admission of others adjudged legally elected, and an election tothe»h«riS! to till u|) the remaining seats in the Council, shall be directed to the Sheriff ot the County in which the election took place: (o) and the Sheriff shall have all the powers for admitted, received, and sworn into the said office, to use, exercise and enjoy the same.] And we do hereby command you and every (j{ you to obey, observe, and do all and every act, matter and thing tliat may l)e necessary on the part of you or any of you in the premises, according to the purport, true intent and meaning of these presents, and of the statutes ii that behalf, and that you make known to our Court of Queen's Bench (or Common Pleas) at Toronto, on the day of , how this writ shall have been executed. Witness, &c. («) The following may be th6 form of the writ for new election : Victoria, &c. To the Corporation of person or persons and to any Returning Officer or other it shall of right belong to do any act to whom necessary to be done, touching the election hereinafter commanded to be held : Whereas, (as in the last precedent to the asterisk, omitting the part hrtmen bmchets, and then proceed as follows:) And we do further command that you, the said Municipal Corporation, and any Return- ing Oiiicer or other person or persons, or such of you to whom the same sliall of right belong, do, pursuant to and according to the statute in that behalf, cause an election to br as speedily held as shall be lawful, for the election of a person (or persons) in the place or stead of the said , who has (or have) been removed as afore- said ; and that you, or such of you to whom the same doth of right belong, do administer to the person (or persons) who shall be so elected, the oath (or oaths), if any, in that behalf by law directed ; and that you admit, or cause to be admitted, such person (or per- sona) so elected into the same office, and that you, the said Municipal Corporation, do shew how this writ shall have been executed to our Court of Queen's Bench (or Common Pleas) at Toronto, on the (lay of . Witness, &c. (o) The following may be the form of writ in such case : Victoria, &c. To the Sheriff of the County (or United Counties) of , Greeting : Whereas (the same as in the precedent of mandamus (note mioB. 190) kth end of the words " adjtidged ami determined," then say) that the 19 •r 146 THE MUNICIPAL MANUAL. [s. 192. causing the election to be held which a Municipal Council has in order to supply vacancies therein, {p) 36 V. c. 48, s. 143. Defendant 192. Any person whose election is complained of may, may dig- unless such election is complained of on the cround of cor- otaJm, except ^ ^. .i i. / i -lL- i in certain rapt i>ractices on the part of such person, withm one week ""*'• after service on him of the writ, {q) ti'ansmit post paid, t election (or v lections) of all the members of the Municipal Corpora- tion of , returned as elected at the election (or elections) of mem- bers of the said Corporation held (describing the time or timen itmlpkce orpUtceH of such election (or elections) was (or were) invalid or void in law, and that (naming them all) had usurped (proceeding an in the mid precedent, adopting the plural/orm, to the anteri.sk, and then as follows .) and we do hereby further command yon, the said Sheriflf, that yon do, pursuant to the statute in tHat benalf, admit and and return and swear into, or cause the said naming the pernon adjudged to have hcpn duly elected) to be forthwith admitted or veturned, and sworn into the said office, to use, exercise, and fciijoy the same, and that you do ami perform, or cause to be done and performed, all and every act or acts, thing or things necessary to be done and performed in the prem ises : and we hereby command and strictly enjoin all and every per- son or persons to whom the same shall lawfully belong, to be aiding and assisting you, and to do all and every lawful and necessary act to be done by him or them in the premises, according to the purport true intent and meaning of these presents, and of the statutes in that behalf ; and how you shall have executed this writ make known to our Court of Queen's Banch (or Common Pleas) at Toronto, on the day of next, and have then there this writ. Witness, &c. A writ requiring a lew election may be in the following form : ViCTOllIA, &c. To the Shfiff, &c., (as in the precedent of a mandamm (note m tos. 190) to the asterink, omitting the part hettoeen the brackets, and adoptinij tliej>luralform, then concluding asfolknos :) and that you do every act necessary to be done by you in order to the due election and admis- sion of members of said the Corporation, in the place and stead of the persons whose elections have been so declared invalid , and we hereoy command, and strictly enjoin all and every person and per- sons (continuing as in the last precedent to the end.) Witness, &c. (p) It would seem that the Sheriff is to appoint a Returning Officer when an old Council has been superseded by a new one. Where the members of the new Council have been ejected there can be no longer any councillors in possession of the office. The otiict there- fore of this v'.au8e is to enable the Sheriff to take the steps, necessary to the election or admission of new members with a view to the re- organization of the Council ((2) The writ is to be generally made returnable on the eighth day 36 V. c. 48, .s. 144. 8S. 193, 194.] DISCLAIMERS. 147 1>; through the post office, directed to " The Clerk of the Judge's Mode of pro- Chambers, at Osgoode Hall, Toronto," or to '* The Judge of •^"*""«' the County Court of the County of " (as the case way be), or may cause to be delivered to such Clerk or Judge a disclaimer signed by him, to the effect following : (r) "I, A. B., upon whom a Writ of Summona, in the nature ofarorm. (^1(0 WaiTunto, has been served for the i)urpo8e of contestinc my right to the office of Township Councillor (or as the case viay be) for the Township of in the County of (or iu the case may be), do hereby disclaim the said office, and all defence of any right I may have to the same.] "Dated day of (Signed) 'a.b: 36 V. 0. 48, s. 144. 193. Such disclaimer, or the envelope containing the same, Posting and shall moreover be endorsed on the outside thereof with the j^j^'^er.' word "Disclaimer," and be registered at the post office where mailed, (s) 3G V. c.*48, s. 145. 194. Where there has been a contested election, the Person eiec- [lerson elected may at any time after the election, and ctainTat any before his election is complained of, deliver to the Clerk t'""" ^"oro after service, computed exclusively of the day of service ; and the ilesign of this clause is, that the disclaimer, if any, _ should be tiled kfore the writ is returned. (r) When the writ has been issued by direction of a Judge of one of the Superior Courts and is returnable before a Judge of any such Court, the disclaimer should be addressed, " To the Clerk of Judge's Chambers, at Osgoode Hall, Toronto," or if returnable before the Judge of the County Court, then to "The Judge of the County Court of the County of," &c. In either case, the disclaimer so addressed may, if preferred, be mailed or else be delivered to the proper Judge or Clerk. If mailed, the envelope must on the outside be endorsed with the word "Disclaimer." The letter must also be registered in the office where mailed. Sec. 193. If the party, instead of disclaiming under this section or sec. 194, accept office, he can only resign under circumstances detailed in sec. 172 and sec. 173 i this Act. («) Two things are here made requisite : 1. That the disclaimer or envelope containing the same be endorsed on the outside thereof with the word " Disclaimer." 2, That it be registered at the post office where mailed. >,|j- 148 THE MUNICIPAL MANUAL. [sS. 195, 196. !l hig election '. of the Municipality a disclaimer signed by liim as fol- Form. "I, A. B., do lierchy disclaim all right to the offico of Township Councillor {or an the rnxe may hf) for the Township of {or CM the cnne may be), and all defence of any riglit I may liave t(t the same." 3G V. c. 48, s. 146. operate an resignation. Who to be deemed elected. Duplicate di.iclaimer lie delivered Digcittimor to 196. Such disclaimer KJiall relieve the party makinf,' it from all liability to co.sls, (u) and where a disclaimer has been made in accordance with the preceding sections, it shall operate as a resignation, (v) and the candidate having the next highest ninnber of votes shall then become the Coun- cillor, or other officei', as the case may be. ((/;) 36 V. c. 48, 8. 147. 196. Every person disclaiming shall deliver a dujilicatp dUdaimer to ^^ i^-^^ disclaiuie)- to the Clerk of the Coimcil, and the Clerk to clerk. shall forthwith communicate the same to the Council. (/) 36 V. c. 48, s. 148. {I) Disclaimers are of two kinds : 1. Disclaimer under sec. 192, which must be transmitted " within one week after service of the writ. " 2. Disclaimer under the section here annotated, which may be tr' nsmittcd "at any time after the election," but "before the elec- tion is complained of. " In the case of the former there are no costs, unless the Judge is satisfied that the i)arty disclaiming consented to his nomination as a candidate, or accepted the ottlce. In the case of the latter there can be no costs, as the disclaimer must be made before writ, and when made relieves the party "from amiability." See sec. 195. The effect of a disclaimer after the issue of the writ is to put an end to the suit. Jiajina ex rel. Hannah v. Paul, 9 U. C. L. J. N. S. 238. («) If the disclaimer be too late defendant may be ordered to pay costs. Ex rel. Hawke v. Hull, 2 0. L. Chamb. it. 182. See further note t s. 194. I {v) See note h to s. 172. (vi) Where the object of the relator is not only to cause the defen dant to vacate office Ijut to substitute anotlier candidate into the ofKce the disclaimer cannot prevent the latter being suhstitutfti but rather under this section facilitates that result, see IVie Queen v. Blizard, L. R. 2 Q. B. 55. {x} The purpose of this secticin is obvious. It is that the Council ^ may be informed of what has taken place. This is done through the | S8. 197, 198.] COSTS IN QUO WARUANTO PROCEKDINOS. 149 generally. 197. No costs Hliall be awiirded agaiiiHt any pei-son July ConUof (lisclaitning, iiiilcss the Judge is satislied that such party con- cuam°ntfl' seated to his nomination as a candidate, or accepted the office, in which case the costs shall bo in the discretion of the Judge, (a) 36 V. c. 48, a 149. 198. In all cases not otherwise provided for, costs shall bo Corti^ in the discretion of the Judge, (b) 30 V. c. 48, a 150. tlie instrumentality of the Clerk. And he obtains the knowledge necessary to enable him to net from having been served with a du- [ilicate of the disclaimer. (a) The rule is, that the costs of n contested election are in the discretion of the Judge. Sec. 198. The exception is, wliere a regular .lisclaimer is made within the time limited for tho purpose, in which case no costs are to bo awarded against the party ivho disclaims. If liowever, the Judge bo satisfied that the party " consented to his nomination as a candidate, or accepted the olfice," the case comes within the rule and not the exception. Where defendant personally contested the election, but on its being moved against sent in a dis- cliiinier praying to be relieved from costs, because, having been duly elcctud, he was obliged, under a penalty, to accept office, the learned .liidgo in Chambers refused to relieve him of costs. T/ie Qmcn ex rel. Ffatlicntone v. McMou'icn, 2 C. L. Chamb. R. 1.37 . But if the defendant disclaim in proper time, and be free from any imputation of blame, it is not usual to give costs against. him. Th*' Queen ex rel. Caupland V. Webder, ti U. C. L. J. 81). If tho disclaimer bo filed too late, dearly costs are in tho discretion of the Judge. Ex rel. Hawke v. }hn,'2 U. C. Chamb. R. 182. On the 4th March the relator obtained a summons to contest defendant's election, and the writ and statement were served on that day. On the 9th, defendant sent a written dis- claimer to the Judge in Chambers, which was received on the 10th, and on the 13th the relator's affidavit was filed stating that defend- ant hid consented to his own nomination, and had taken his seat, &c. No proof of the grounds taken in the statement were ever filed, and the case was then allowed to drop. On the 27th April, the relator filed a further affidavit stating that after the disclaimer the Reeve had ordered a new election, at which he, the relator, was duly elected, but that the defendant persisted in retaining his seat, con- tending that it had not become vacant by his disclaimer. Sir J. B. Robinson under these circumstances, refused to give jixdgment, as if the matte!' were still pending on the summons, there being no proof iif any of the objections taken, but held that the disclaimer could not nullity the election, as the parties seemed to have supposed ; and that if the Council should support the relator in his seat, the defendant or some one else must move against his election on the ground that it was illegally ordered. The Queen ex rel Freeman v. Jones, 1 U.O. P. R. 306. The Judge who was in Chambers at the return of the summons, might perhaps enter an adjournment to a certain day, and call for proofs as to the first election, and give judgment. lb. (b) The Judge has a discretion to withhold costs altogether from either side, if he see fit. The Queen ex rel. Swan v. Hotvai, 13 U. C. '1 .■>..at is, to order each party ti< 1)iiy lii» own coHts. I'er Hiigiirty, .1., The (Jittiii fj- rd, (Jonlnn'u'r \. ''irnj ei (li, 'A IJ. C, L. J. (M>. 'Hiey are almolutely in his diHcrL'tion : Lovfriii'iv. JJairmiii, L. Jl, 10(!. 1*. 7-<>. Where it wnH sworn that intending voters for aii uiiHucceHHful candidate were obHtnicted in the anproacli to the jiollin)^ i)hic(; by a crowd under tlio coutnd of onuof the Hucccssful candidates, and neither tlie fact of the obHtruction nur the control was unetiuivocally denied by that caniUcbvto, tlie clectinn as to him was set aside with costs. Tlir Qiit'Pti ej- rrl. iJihlm v. Jinmi- (ifiiin, 3 U. C. L. J. 1*27. Tlie tendency of modern decisions ianottu make a party pay costs unlot-s it be shewn that he himself jiartiuiimtcd in the improper comhict for which the election is set aside. Tin' iiuei'ii I'xrel, Kirkv, AMcUtim', 1 U. C L.J. 49. The Quveu es nl JJnris it III. V. Wilxoii et nl., Ih. 1(55; The Qiwi'ii fx nf. Wniki-rw Mitrlii'lt, 4 U. (J. P. K. '218 ; T/w Quei'ii ex rel. Johnmn v. ^fiirifn ft al., 5 U. C. L. J. 87. lint relators are not to be discouraged from l)ringing cases of invalid elections under notice of a Judge at the peril of having to lose tho costs necessarily incurred. T/ie (Jtiei a w ;>/, JMIo V. nenn/, 1 U. C. L. .1. N. S. 1'2« ; The Queen ex rel. Clmrlu V. LewiHet 1(1., 2 C. L. Chainb. R. 177; The Queen ex rel. Jfunivw Hall, lb. 187 ; The Queen ex rel. Dillon v. Mi-Neil, 5 U. C. C. P, 137. In one case a learned Judge refused to make a relator pay costs, though unsuccessful, where it was shown he had acted in good fnith in bringing forward his complaint. The Queen ex rel. ('rozilame, and relator's statement was shewn not to be strictly correct, the latter was ordered to pay costs t(/ ' former. The Queen ex rel. Hawke v. Hull, 2 C. L. Chamb. R. 18*2. But a returning officer, who received illegal votes not on the roll was ordered to jiay costs. The Queen ex rel. Johnston v. Murney, 5 U. C L. J. 87. The Master, on taxing costs to the successful party, should consider whether or not the successful party produced an unnecessary number of affidavits, or affidavits unnecessarily diffuse, and aci, accordingly. The Queen ex rel. Walker v . Hall, 6 U. C. L. J. 138. Abydawto pay the costs of a contested election is illegal, and will be quashed with costs. In re Bell v. Manners, 2 U. C. 0. P. 507. A Municipality cannot legally support such a contest, or indemnify one of the partiea to a contest, of the kind. Ih. But the cost of litigation undertaken honajiile, and on reasonable grounds, for the assertion or defence of corporate rights, may be paid out of corporate funds. The Queen v, Brid'iewater, 10 A. &, E. 281 ; The Queen v. Lichfield, 4Q. B.893; The Queen v. Leeds, lb. 796 ; The Queen v. Warwick, 15 L. J. Q. B. .30(5 ; Atturne.y-Oene.ral v. Wiifan, 1 Kay 268 ; Lewis v. Rochester, i> C. B. N. S. 401 ; The Queen v." Tamworth, 19 L. T. N. S. 434. record a.s ujiulgmen occasioi; requires, < uaturo of a writ of cxPCutio.T for tlie co 200. TheJudgeH or a majvnrity of th K^tle the foriMH of dmnns and executi( the practice re.s[)ectii siicli writs, and the any other writ or ore ing tlie practice gene validity of such electi costs thereon ; and n ('•) I'oniierly leave w .Iiidye to the full t'ourt. VAl B. 140. Thatpri of 1858, when introduce Committee. 1'ho object iiitt-nded. The danger i decision. So far no sucl ((/) The power of a Jii defendant or Returning final determination of tlie f•) and may re^'ulato tlif pnictioe rcspectinj^ the Hi.iing out, wcrvico and execution of Hucli writs, and tho i)uniMhu)ent fov disobeying the sanu), or any other writ or order of the Court, or Judge, and respect- ing tlie practice geufu-ally, in hearing and determining tho viiliility of such elections or aj)pointments, ami respecting the ousts tlicrcon ; and may from time to time rescinil, alter, or (c) I'ornierly leavo was given to appeal from tho douiflion of the .ludgu to tho full Court. The Queen ex rel. MrKcan v. Ilixjn, 15 U. ('. (l V>. 140. Tliat privilege w:ih in the Munioipnl Institutions Act (if 1858, when introduced to the A.'jscmhly, but was struck out in Cdininittee. Tho object, no doubt, is jiromptly to ensure tlie relief iiiti'iiiktl. Tho danger is that there may bo a want of uniformity of decision. So far no such mischief has arisen. ((/) Till' power of a Judge to award costs for or againbt a relator, defendant or lleturning Otticer, is in general exercised only on the final deturniiuivtion of the case. Tht Qm-eu ex rel. Arnott v. Marcliaiit dttl.,2C. L. Cbamb. 11. 167. (f) The following may bo the form of Ji. fa. for costs : VlClOIUA, &o. To the Sheriff of the County (or United Counties) of , Creeting, We command you, that yon levy, or cause to be levied, of the goods and chattels of A. B., late of , the sum of , which hath lately been adjudged to C. D., of , in our Court of Queen's Bench (or Common Pleas), at Toronto, according to the form of the statute in such cases made and provided, for his costs by him laid nut and expended in his defence upon a certain writ of summons in the naturo of a '/uo wnrraiitu, issued out of our said Court against the said C. D., upon the relation of the said A. B., for usurping the office of , in our of , in your County {or Counties) if the Retiirniiifi Officer lian been made n parti/, add here, " to which proceeding E. F. , the Returning OHicer at tho election of the said C. D. to the said office was made a party " ) ; whereof the said A. B. is convicted, as in our said Court appears of record ; and that you have that money before our said Court, at Toronto, immediately after the execution hereof, to satisfy the said C. D. , for his costs aforesaid, and have you then there this writ. Witness, &c. y. B. — When the Beturning Officer has been made a 2}arti/, and is tntltled to cods, the fieri facias muM be/ramed accordingly. l,-1 152 THE MUNICIPAL MANUAL. [S. 201. add to such rules ; hut all existing rules shall remain in force until rescinded or altered as aforesaid. {/) 36 V. c. 48, s 152. Division IX. — "Pkkvention of Corrupt Practices. Bribery and undue influence defined. Sees. 201, 202. Certain 2)ciyment8 lawful. Sec. 203. Evidence to he viva voce. Sec. 204. Effect of conviction of candidate for bribery. Sec. 205. Additional 2yenaUy. Sec. 206. How penalties recoverable. Sec. 207. Report and record of convictio^is. Sees. 208, 209. Witnesses, how prociired — Self-crimination not to excun from giving evidence. Sees. 210, 211. Proceedings, within what time to be taken. Sec. 212. Case in which penalties not recoverable. Sec, 213. Publication of the law agaiiist corrupt practices. Sec. 214. Bon^sto'br' 201. The following persons shall be deemed guilty of deemed bribery, and shall be punished accordingly : — (g) bribery. {/) The powers conferred are : 1. To settle the forma of the writs of summons, certiorari, manda- mus and execution, 2. To ri'ifulate the practice respecting the suing out, service and execution of such writs, and the punishment for disobeying the same or any other writ or order of the Court or Judge, and respecting the practice generally in hearing and determining the validity of such elections and appointments, and respecting the costs thereon. 3. To rescind, alter, or add to such rules. But it is declared that all existing rules are to remain in force until rescinded or altered. The existing rules which have been in force since the Municipal Act of 1849 will be found in the Appendix. The tariff of fees allowed in contested Municipal Election cases will be found in 32 U. C. Q. B. 211. (g) Bribery was an offence at Common Law and independently of any statute. The King v. Pitt et al. 3 Burr. 1338. So the mere offer of a bribe was at Common Law an offence. 2Vie KiiKj v. Vaughan, 4 Burr. 2500. But in order, if possible, effectually to put it down, the Legislature has from time to time interfered. In the year 1854 the Imperial Legislature, after all that had previously been done, passed an Act in which it was recited ' ' that the laws now in force for preventing corrupt practices in the election of members to serve in Parliament have been found insufficient." 17 & 18 Vict. ch. 102. In the hope of remedying the insufficiency of the law the statute called " The Corrupt Practices Prevention Act, 1854," was framed. lb. Its provisions were embodied in statutes of the 8. 201.] BRIBERY AT ELECTIONS 153 1. Every person who, directly or indirectly, by himself, or Giving by any other person in his behalf, (h) gives, lends or agrees ™^*^ *^ to give or lend, or offers or promises any money or valuable consideration, or gives or procures, or agrees to give or pro- procuring cure, or offers or promises, any office, place or employment to office, etc., or for any voter, or to or for any person on behalf of any late Province of Canada and of the Legislature of Ontario, as regards Parliamentary elections Stat. Can. 23 Vict. c. 17; Stat. Ont. 32 Vict. cap. 21, 8. 67, and in 1872 were applied yyy the Local Legislature to Municipal Elections. 35 Vict. cap. 36. The sections here annotated are substantially the same as the provisions of the Imperial statute 17 & 18 Vict. c. 102. Formerly bribery at Municipal Elections was the subject of legislative interference. Jtegina ex rel. McKeon v. Hogri, 15 U. 0. Q. B. 140. Each act of bribery is a distinct ofifence, Milnes v. Bale, L. R. 10 C. P. 591. (/i) It is perfectly clear that the meaning which is to be given in this Act of Parliament to the words " any other person on his behalf," is every person other than the candidate for whose act he is responsible. Per Martin, B., in The Noriokh Election Petition, 19 L. T. N. S. 617. In Parliamentary election law it has long been established that where a preson has employed an agent for the purpose of procuring his elec- tion he, the candidate, is reponsible for the act of that agent, though he himself did not intend to authorize it. The Taunton Case, 1 O'M. & H. 182. It is, in poiut of fnot, making the relation between a can- didate and his agent the relation of master and servant, and not of principal and agent. Tlie Westminster Case, lb. 95; T/it Wigan Case, lb. 191. A variety of cases might be put, in which a principal is liable even civilly for an act of an agent which he never intended, and at which he is exceedingly displeased. See T/ie WeMbury Case, lb, 54. A well established case of bribery by an agent avoids an elec- tion, even though the agent acted against instructions. Soiith Grey Election, 8 U. C. L. J. N. S. 17. It is now, as regards elections for the Local Legislature, expressly declared that " when it is found, upon the report of a Judge upon an election petition, that any corrupt practice has been committed by any candidate at an election, or by Ilk agent, whether with or without the actual knowledge and consent of such candidate, the election of such candidate, if he has been elected, shall be void." 36 Vict. cap. 2, s. 3. sub-s. 1, Ont. Agency ia a result of law to be drawn from the facts in the case, and from the acts of individuals. The Sligo Case, 1 O'M. & H. 301. There is always a great difference in the degrees of agency. As you go lower down, you require more distinctly to shew that the act was done by a person whom the candidate would be responsible for ; as you come higher up, it is more as if the candidate had done it hiTiself. The Hereford Case, lb., 194. No one can lay down a precise rale as to what would constitute evidence of being an agent. The Bmlley Case, lb., 17 ; S. C. 19 L. T. N. S. 670 ; The Bridgewater ('a.s(, 1 O'M. & H. 115. A man's wife, if she interfere in the election, is ijMo facto his agent. Tlie Cashel Case, lb. 288. It may be said that an act, however trifling, is evidence of agency, and that an aggregate of isolated acts will by their cumulative force constitute agency. The Bfwdley Case, lb. 18. Canvassing alone, and with or without a can- 20 i] r A.__ — — 154 THE MUNICIPAL MANUAL. [& 201. m voter, or to or for any peraon in order to induce any voter to vote or refrain from voting at a municipal election, or upon a by-law for mising any money or creating a debt upon a Municipality or part of a Municipality for any purpose what- ever, (i) or who corruptly does any such act as aforesaid, on vassing book, is evidence of agency. The Staleyhridqe Case, Ih. 08 • The. Jjichjidd Case, lb. 25 ; The Windsor Case, 19 L T. N. S. 613'; The Li/iidomlerry Case, 21 L. T. N. S. 709. But canvassing, iudepen- der.tly of the candidate, and for an independent association, rebuts the inference of agency. The WeHtminnter Case, 1 O'M. & H. 91. "I cannot concur in the opinion that any supporter of a candidate who chooses to ask others for their votes, and to make speeches in his favour, can force himself upon the candidate as an ageut. " P(r O'Brien, J., Tfie Londonderry Case, 21 L. T. N. S. 712. A supporter of a candidate who accompanied the candidate in a sleigh saying tc) some cabmen, "Boys, follow me," does not sufficiently constitute him the agent of the candidate so as to affect him with illegal acts. The Quern ex rel Thompson v. Medea//, 11 U.C, L. J. N.S. 218. Eatifi. cation by the principal after the act is equivalent to a previous autho- rity, the Tumworth Case, 1 O'M. & H. 80; The Blael-hnni Ca*p, Th. 200. Agency ceases with the election. The Salford Cane, Ih. 137 ; Th ; Kimfs Lynn Case, lb. 208 ; The Bridi/etcater Case, Ih. 114; Conversation after the election ia over is inadmissible without pre- vious proof of agency. The Water/ord Case, 2 O'M. & H. .3. (i) This section gives a new and enlarged definition of bribery. ^^ I o/fer is included in the definition. 8ee Bush v. RaUinij, 8ayer, 289 ; Sidston v Norton, 3 Burr. 1235 ; Ifardimj v. Stokes, 2 M & W. 233; Henslow\. Fawcett, 3 A. & E. 51. "It cannot be supposed that an offer to bribe is not as bad as the actual payment of money.' The Coventry Case, 1 O'M. & H. 107 ; The Staleybridi/e Cc « 76. 66; see also The Taunton Case, lb. 183. Offering to accept a public office in the election of the people at a reduced salary may be deemed bribery. State ex rel Nexoell v. Purdy, 17 Am. 485. The evidence to prove !in ofl'er ia usually re(]uired to be stronger than when money has actually passed. The Cheltenham Case, 1 O'M. & H. G-4. Money given to a disqnalifi'ed voter is apparently within the terms of the Act. The Guildford Case, lb. 15. The section speaks of the giving, lending, or agreeing to give or lend "money or valuable consider- ation,' or "office, place or employment," "anything, great or "r^all, which is given to procure a vote," is a bribe. The Coventnj Case lb. 100. The promise of refreshment is bribery. The Dd- min Case, lb. 124. So a promise before a poll to repay a voter after the money expended by him upon drink. The Hastini.is C'wie, lb. 218. It matters not how long before the election the promise may have been made. The Slujo Case, lb. 302. Betting on the result of an election may be held to be bribery. Gregory v. Kiim, 11 Am. 58, 58, note . The charge of bribery, however, is one that ought to be established by clear and satisfactory evidence. TJic London- derry Ca.v', 1 O'M. & H. 278. Mere suspicion of bribery is not enough to upset an election. lb. The Judge should be satisfied beyond doi'.bt that the oifence is made out. The Lichjield Case, 20 L. T. N. S. 11. g_ 201. J BRIBERY AT ELECTIONS. 155 account of such voter having voted or refrained from voting at any such election; or upon any such by-law ; (j) 2. Every person who, directly or indirectly, by hynself or Or for per- by any other person in his behalf, (k) makes any gift, loan, fluenoing offer, promise or agi'eement as aforesaid, to or for any per- ^°*«"- son in order to induce surh pei'son to procure, or e^ideavour to procure, the return of any person to serve in anj' IMunici- ])aJ Council, or to procure the passing of any such by-law as aforesaid, or the vote of any voter at any municipal election, or for any such by-law ; (I) (j) If the money be given before the election, to induce a man to vote or refram from voting, tl\e act is ipso facto bribery. But if after the election, it must be shown to have been ('one " corruptlij." An act clone corruptly moj-n? an act done by a uian knowing that he is (Idiiig wrong, and doing it vith an 3vil object. The Bruxlford Case, 1 O'M. & H. 37. Corruptly means to influence votes. The Cheltev- litiiii Cdw, 1 lb. 64. " To produce the result which the Legis- lature iiitomlod to forbid." The Walliiiiiford Case, lb. GO. Contrary to the intention of the Act, with a motive or intention by means of it to produce an eflfect upon the election. The Hereford Case, !b. 195. The Judge must satisfy his mind whether that which was done was really done in so unusual and suspicious a M'ay, that he ought to impute, to the person who has done so, a criminal intention in dolii^ it. The Bodmin Case, lb. 125. (i) See note h to sub. s. 1 of this section. [l] This sub-section is aimed at that offence whic^ is known in England as 'purchasing a borough." Of late suchtran lactions have been very rare. An instance of it was exposed in ISiJS The Com- mittee in the Harwich Election, reported that G. W. P. was not duly elected ; that G. W. P. entered into an engagement with J. A. , through his solicitor, in accordance with the tcms of which engage- ment the said G. W. P. was on his part to pay certain sums of monej' m the event of his return, and the said J. A. was tn endeavour to procure the return of the said G. W. P. for the said borough. Clerk ou Elections, 99. In the Barnstaple Case, 2 P. R. & D. 33(5, an agreement was proved in the following form : — "I will pay £400 and £1000 within a week after the election at B." C, it was proved had been very active in averting the threatened disfranchisement of the borough, and incurred expenses to the amount of £1,400 in so doing. It was in respect of this bill that the agreement was made. C. swore that it was no part of the understanding that he should pro- cure L. 's return. But the election was held void. The fair payment of the expenses of a member, if he will stand, does not of itself con- stitute an illegality under this provision, although it constitutes a case calling for a full enquiry. The Coventry Case, 1 O'M. & H. 07. If the inquiry, according to what the learned J udge said had sliewn that E. had agreed to give H. £5, he might say a farthing, in point of law, — if he agreed to give him anything, if only a peppercorn, for the purpose of purchasing any influence which H. had with the i 166 THE MUNICIPAL MANUAL. [S. Corruptly influencio^f voters. .3. Every [)erson who, by reason of any such gift, loan offei", promise, procurement or agreement, procures or en- gages, promises or endeavoura to procure the return of any pei"son in any municipal election, or to procure the passing of any such by-law as aforesaid, or the vote of any voter iit any municipal election, or for any such by-law ; (m) Advancing, 4. Eveiy person who advances or pays, or causes to Ije for* britery^ paid, any money to or to the use of any other pei-son witli ♦'c- the intent tliat such money, or any part thereof, shall be expended in bribery at any municipal election, or at any vot- ing ujion a by-law as aforesaid, or who knowingly pays, or causes to be jjaid, any money to any person in discliiirge or repayment of any money wholly or in part expended in bri- bery at any such election, or at the voting upon any such by-law ; (n) Voter ^ 5^ Every voter who, before or during any municipal elec- money, etc. tion, or the voting on any such by-law, directly or indirectly wn-eei^g °for ^7 himself oi' any other person in his behalf, receives, agrees money to or contracts for any money, gift, loan, or valuable consideni- tion, office, place or employment, for himself or any other electors of Coventry, and of advancing E. 's interest as a caiulidate at the election, it would have been bribery, and woidd have avoided the election. Per Willes, lb. 100. (m) The traasaction intended by this and the preceding sub-sectiou is one and the same. But while the preceding sub-sectiou makes illegal the conduct of the giver, this makes illegal the conduct of the receiver. See the last note. (w) The object of this sub-section is to prevent the expenditure of money for purposes of bribery. If advanced or paid before the election, witk intent that it shall be expended in bribery, it is illegal. If knowi)iv.io /.r.ncn.ini.afi'nn "r sub-section is not To receive valuable consfderation "on accoimtof any person having voted or refrained from voting," &c., is to receive it corruptly. See note j to sub. 1 of this section. {q) For a long time doubts existed as to whether the hiring of teams and vehicles to convey voters to and from the polls was legal or not. The doubts were removed in the case of Parliamentary elections for the Local Legislature by sec. 71 of 32 Vict. ch. 21, Ont. The su1)section under consideration is in effect a transcript of that section. The subsection is in two parts. The first part affects the candidate and his agent ; the second part affects the voters. To bring a case under the Act there must be a hiring on the part of the candidate or his agent, or receiving pay for the use of horses, teams, carriages, or other vehicles for the purpose mentioned. One M., a carter, who vot^d for respondent at the request of P., the respondent's agent, carried a voter five or six miles to the polling place, saying that he would do so without charge. Some days after the election P. gave M. $2, intending it as compensation for such carriage, but M. thought it was in payment for work which he had done for P. as a carter. The candidate knew nothing of the matter. Held, that there was not properly any payment by P. to M. for any purpose, the money having been given for one purpose and received for another. In re Brockvllle Election, 32 U. C. Q. B. 132. But even if there had been such a payment, it was made after P.'s agency had ceased, and as there was no previous hiring or promise to pay to which it could relate, it was held not to come under the operation of the statute. Ih. If such payment had been established it would have avoided P. 's vote, but not M. 's. Ih. See further the remarks of Richards, C. J., as to the hinng of cabs, &c., in The West Toronto Case, not yet reported. A candidate is under no obligation, legal or moral, to pay for loss of time of voters or their travelling expenses. Per Baron Watson in Cooper v Slade, 6 H. L. 0. 754. The payment of a vooer's expenses in going to the poll is illegal as such, even though the payment may not have been intended as a bribe. Sovih, Orey Election, 8 U. C. L. J. N. S. J 7. If made on condition of his voting it is bribery. Cooper v. Slade, 6 H. L. 0. 764. See further Begina ex rel. Thompson v. Medcalf, 11 C. L. J. N. S. 248. 202. Every pei or by any other pt ens to make use oi or threatens the other i)erson, of an practices intimidat induce or compel s' or on account of su voting at any electi wi.se interferes wit voter, sliall be deeu subject to the peua 48, s. 154. (r) Intimidation ma object of the Legislatu to avoid an election on that tiie rioting or vi agents, for whom he : such ail extent as to pi tiou. ' ' The Staleyhridti (lers an election carriell the freedom of electio freely exercising their : ham Ciue, lb. G4. If 1 cannot bu said to be a I home to the candidate Htafonl Cast', lb. 229. with general bribery or spread over such an e: community to such an < is satisfied that freedon Theprogheda Case, Ih Legislature has used I practise intimidation, d the vote of a single vote or whether the illtreai removal of custom or bi done with a view to aff. of the franchise, it is w ^mi Case, lb. 204. Tl something like the qu^ Vi'iiuhorCase,Ib.Q. T Barnwell, 5 W. R. 557. the Church. The Galw ford Case, 2 O'M. & H. missal from employmei discharge of servants ; ; folk Case, lb. 241, oroi if made in order to inflt injury has been actually s. 202.] INTIMIDATION AT ELECTIONS. 159 202. Every person who, directly or indirectly, by himself Persons or by any other pei-son on his behalf, makes use of or threat- "loi" nee or ens to make use of any force, violence or restraint, or inflicts jntimidatioa or threatens the infliction, by himself or by or through any ©f undue ' other i)erson, of any injxiry, damage or loss, or in any manner influence, practices intimidation upon or against any person, in order to induce or compel such pei-son to vote or refrain from voting, or on account of such person having voted or refrained from voting at any election, or who in any way prevents or other- wise interferes with the free exercise of the franchise of any voter, shall be deemed to be guilty of tindue influence, and be subject to the penalty hereinafter mentioned, (r) 3G V. c. 48,' s. 154. (r) Intimidation may be either general or particular. The great nbject of the Legislature is to secure freedom of election. " In order to avoid an election on the ground of intimidation, it must be shewn that tlie rioting or violence was instigated by the member or his aj;cnt3, for whom he is responsible ; or it must be shewn it was to such an extent as to prevent the election being an entirely free elec- tion." The Staleyhridf/e Case, 1 O'M. & H. 72. The common law ren- ders an election carried by violence, force or intimidation void, because the freedom of election is violated, and persons are prevented from freely exercising their franchise and giving their votes. The Chelten- ham Ciue, Ih. G4. If the intimidation be so general that the election cannot be said to be a free one, in that case, though it is not brought home to the candidate or his agents, the election would be void. The Stafford Gusc, lb. 229. General intimidation must be put on a parallel with general bribeiy or general treating ; that is, it must be shewn to spread over such an extent of ground, and to permeate through the community to such an extent, that the tribunal considering the case is satisfied that freedom of election has ceased to exist in consequence. The Drogheda Case, Ih. 259. With respect to particular voters, the Legislature has used language which makes it undue influence to practise intimidation, directly or indirectly, with intent to influence the vote of a single voter. Whether the voter be the person illtreated, or whether the illtreatment be violence, or damage done by the removal of custom or business, or employment, is immaterial, if it is done with a view to afifect the voter or interfere with the free exercise of the franchise, it is within the prohibition of the Act. The Black- hum Case, lb. 204. The cjuestion whether a man made a free vote is something like the question whether a man made a free will. IVie Windsor Case, lb. 6. Threats of eviction by landlords. The Queen v. Barnwell, 5 W. R. 557. Threats to suspend or refuse the rights of the Church. The Galway Case, 1 O'M. & H. 303 ; see also The Long- ford Case, 2 O'M. & H. 16 ; Tlie Tipperary Case, lb. 31, threats of dis- missal from employment ; The Weslbury Case, 1 O'M. & H. 50 ; discharge of servants ; llie Blackburn Case, lb. 203 ; The North Nor' folk Case, lb. 241, or other wrongs or injuries of a similar character, if made in order to influence the vote, is undue influence. Where an injury has been actually inflicted the proof is comparatively easy, but 'it m 160 THE MUNICIPAL MANUAL. [SS. 203,204, Expen»e§ of 203. The actxial ])ei'sonal Vxpenses of any candidate, his candidaiM. expenses for actual professional services performed, and bom fide payments for the fair cost of printing and advei-tisinL', shall be held to be the expenses lawfully iucm-red, and the payment thereof, shall not be a contravention of this Act. (») 3G V. c. 48, 8. 155. Evidence of 204. Where, in an application in the nature of a 9'?/o wnr- tices'on^""' Tanto, any question is raised as to whether the candidate or appiicstion any voter has been guilty of any violation of section two qm war- hundred and one or two hundred and two of this Act, affida- rarUo. y\^ evidence shall not be used to prove the offence, but it where merely a threat has been made, and not executed, tlie jjoint is often difficult to determine. The North Norfolk Case, Ih. 242. If the threat be proved, the onus is upon those who made the threat or who are responsible for it, to siiew that intimidation did not proJuw its natural conse(|uence, namely, terrifying the people from the exer- cibe of their legitimate franchise. The Drogheda C(i e lb. 25(i. A mere ;ittempt to intimidate a voter, even thouuh unsuccessful, wouM avoid an election. The Northallerton Cane, Jo. 173. (n) The candidate is not restricted to purely jjersonal expenses, but may (if there is no intent thereby to influence votes) hire rooms for cop'niittees and meetings, and employ men to distribute cards am! placards, and perform similar services. Enut Toronto Case, 8 U. (.'. L. J. N. S. IK^. A candidate in good faith intended that his elec- tion should bo conducted in accordance both with the letter and spirit of the law, and himself paid no money except for printing. Monev, however, was given by friends of the candidate to different persons for election purposes, who kept no accounts or vouchers of what thej f)aid. The election, notwithstanding, was supported. Ih. In Eng- and candidates are required to pay money tor election purposes through an authorized agent, and to render detailed accounts of the expenditure. 2(j & 27 Vict. ch. 20, ss. 2, 3, 4. Similar provisions now exist here as to Parliamentary elections. See 36 Vict. ch. 2, ss. 8, 9, 10, 11, 12, Ont. It is always more satisfactory, on an election inquiry to have the expenditure shewn by proper vouchers. See remarks of Chief Justice Richards on The Eud Toronto Cane, 8 U. C. L. J. N. S. 119, and The West Toronto Cane, not reported. Where all the accounts and records of an election are intentionally destroyed by the respondent's agent, even if the case be stripped of all other circumstmces, the strongest conclusions will be drawn against the respondent, and eveiy presumption will be made against the legality of the acts concealed by such conduct. South (Jreii Election Case, lo. 17. Where a candidate puts money into the hands of an agent, and exercises no supervision over the way ' a which the agent is spending the money, but accredits and trusts him and leaves him the power of spending the money, there is such an agency estab- lished as to render the candidate liable to the fullest extent, not only for what the agent may do but also for what all the people that agent employs may do, although express instructions be given that none of the money should be improperly spent, lb. 205.] PENALTY FOR BRIBERY AT ELECTIONS. 161 shall be proved by viva voce ovideuce taken before the Judge ' of !inv County Court, upon a reference to him l)y tlie Judge of the Superior Court for that purimse, or upon an appoint- ment gi'un ted by him in cases pending in such County Court. (<) 3G V. c. 48, s. 156. 205- Any candidate elected at any municipal election, who Penalty oq is fouiul guilty by the Judge, upon any trial upon a writ of ^""fj'^'*/" (luo icurranto, of any act of bribery, or of using undue influ- bribery, eta euce iis aforesaid, shall forfeit his seat, and shall be ineligible us acaiididiito at any niunicii)al election for two years there- after, (u) 36 V. c. 48, 8. 157. (/) The Jiulge whose duty it is to try an ordinary application in the nature of a (jiio warranto, may inquire into the facts either by atlidavit or by oral testimony. See sec. 189. The exception created by tills suction is, where ' ' any question is ramd as to whether the caiuUdiite or any other voter has been guilty of any violation of sections 201 or 202 of this Act ; " in other words, been guilty of briljcry "r undue influence within the meaning of those sections. In sueli ■'* Ciiso v'lra voce (evidence alone can be used. The reason no (loiil ; is, that to charge the candidate or a voter under either of the get' ions mentioned, is to charge him with an offence which may be ei.lier a crime or in the nature of a crime. See sec. 205, and that it ,vould be contrary to all precedent to permit a person to be tried for a crime on what is called in this section *' affidavit evidence." («) The consequences of being found guilty are two-fold : 1. A forfeiture of the seat. 2. Personal incapacity, for two years the reafter, to be a candidate i at a JIunicipal election. It is not said that these consequences shall folloM' if there be bribery or undue influence by an agent, without the knowledge, or against the instructions of the candidate. It may be that in such a case the seat will be lost to the candidate. See note / to s. 201. But it is clear that a man cannot be guilty by his agent of an illegal act, and be held personally responsible, and be personally punished for that act, unless he has given the agent authority, express or I imphed, to do the illegal act. The law of agency has certainly, in 8iich cases, been much extended by Committees of the House of 1 Commons. But it is a clear proposition of law, that if a candidate 1 employ an agent for a perfectly legal purpose, and tha ; agent do an illegal act, that act does not affect the principal person illy, although it may afifect his seat, unless a great deal more be shewn. It must be shewn that the principal directed the agent to do the act, or really meant he should so act. No man who is an agent for a legal puq)ose can make his principal criminally responsible for an illegal act, unless the principal in some way authorized it. See per Lord Wensleydale, in Cooper v. Slade, tJ H. L. C. 793. See further Dun- man Case, 2 P. E. & D. 324, and Levering v. Dawson, L. E. 10 C. P'll. The learned Judge of the County of Simcoe, in Booth v^ 21 ^P ^1 ^■M. i mi 162 THE MUNICIPAL MANUAL. [SS. 2O6-208, AdditioDki 206. Any ^. ..'son who is adjudged guilty of any of the ptmaiUM. offences within the meaning of sections two hundred and one or two hundred and two of ttiis Act, shall incur a i)enalty of twenty dollara, and shall be disqualified from voting at any municipal election or upon a by-law for the next succeed- ing two yeara. (v) 36 V. c. 48, s. 159. Baoovtry of 207- The penalties imposed by section two hundred and *" six of this Act shall be recoverable, with full costs of suit, by any person who will sue for the same by action of debt in the Division Court having jurisdiction where the offence was committed ; (w) r d any person against whom judgment ij rendered, shall be ineligible, either as a candidate or munici- pal voter, until the amount which he has been condemned to pay is fully paid and satisfied, (x) 36 V. c. 48, s. 160. Judge to 208. It shall be the duty of the Judge who finds any can- make return, ^ijg^^g guilty of a contravention of section two hundred and one or two hundred and two of this Act, or who condemn! any person to pay any sum in the Division Court for any offence within the meaning of this Act, to report the same forthwith to the Clerk of the Municipality wherein the offence has been committed, (y) 36 V. c. 48, s. 101. 8S. 209, 210.] wn Sutherland, 10 U. 0. L. J. N. S. 287, held that indirect bribery ai bribery by agents, rendered the candidate ineligible for re-election. (v) These penalties, it is presumed, will not follow unless the illegal act be shewn to be that of the party sought to be personally affected, or the act of some person who was authorized by him to do it. See note u to sec. 205. {w) As the pecuniary penalty is only $20, it is believed that the Division Court would have had jurisdiction without this provision; 9ee Medcalf y. Widdifield, 12 U. C. C. P. 411; but its enactment | here, as the , point is not entirely free from doubt, O'Reilly q. t. v, Allan, 11 U. C. Q. B. 526, was a proper precaution. (x) The payment of the amount will not remove the disability w]iere the payment is within two years of the conviction. See sec. 206. But the disability shall contmue after the two years and until | the judgment is satisfied. (y) The object of this provision is to prevent the person disqualified I being placed upon the voters' list. The clerk upon leceipt of the! report rendered necessary by this section, should enter the nameintl book to be kept for that purpose, and erase the name from the list of I voters of the Municipality. The former duty is imposed by the! next section of this Act ; the latter, it is apprehended, is an implied I duty. So far as the Returning Officer at an election is concerned, | the lisb is final. See sees. 99, .100. 8S. 209, 210.] WITNESSES AT ELECTION TRIALS. 1C8 209. '^^ Clerk of every Municipality shall duly enter in cn«rktokMp a book, to be kept for that purpose, the names of all persons {S^^namlT of within his Municipality who have been adjudged guilty of •**'[??''", anv offence within the meaning of section two hundred and Sffenow, eta one or two hundred and two of this Act, and of which he has been notified by the Judge who tried the case, (z) 36 V. c. 48, 8. 162. 210. Any witness shall be bound to attend before the Attonduiee Judge of the County Court upon being served with the order °' »'*»«•■••. of such County Court Judge directing his attendance (a) and (z) It is presumed, for reasons given in the previous note, that the Clerk should also erase thu name from the list of voters of the Manicipality. (a) The order should be intituled as of the proper Court and cause, and may be directed to the witnesses by name, and after reciting the power of the Judge to take evidence, might conclude as follows : — You and each of you are hereby required to attend before me at on the day of A.D., 187 , at the hour of o'clock in the noon (or forthwith) , to be examined as a witness in the matter of the said Petition and to attend the said Court until your examination shall have been completed. As witness my hand. (Signed) Judge of the County Court. This ia in the form of order in general use under the English Act of 1868, for the trial of controverted elections. R, S. O. c. 11 sees. 51, 52. Under the Enclish Act, counsel applied for on order for tihe attendance of one J. M. He stated that the process server had used every effort to serve him with a subpoena but without effect, though there was reason to believe he was in the house. The application was granted. The Water/ord Case, 2 O'M. & H. 3. Serjeant Ballantine, in one case in proof by a witness that T, W. was keeping out of the way to avoid bemg served with a subpoena, applied to the Court for an order for the attendance of his wife, who had not been subpoenaed. But the Judge (Martin, B. ) said he had no power to grant such an order, unless the wife had been subpoenaed. The Nor- vich Case, 1 O'M. & H. 8. Upon another witness (Mrs. H., who had been subpoenaed as a witness) being called and not answering, t'.o same learned Judge is reported to have said, " I will make an ord;;r lor her to come. If witnesses will not come, I will immediately make Unorder for them to come." lb. In one cose where counsel for the respondent stated that he would require the attendance of a wit- nesB who had been previously called by the petitioners, (the learned Judw, Fitzgerald. B.,) said, "You had better write a letter to M., ud he must be brought back at the respondent's expense. " On the foUowicg day M. was called, but did not appear, and an order waa granted for his attendance. The Longford Case, 2 O'M. & H. 12. In a tase tried before Mowat, V. C, at Prescott, where it was shown that -iff 164 THE MUNICIPAL MANUAL. [«. 211. WltnewinB not exuuwd ttom Biiawor ingon grnuiuts of 8ulf crimina- tion or ih'ItI' lege. Proviso. upon payinont of tlio nocesHnry f(!98 for 'ich nttonclance, (h) in tlio Biinio manner as if lio luul been uirectod by a writ of tvhjxtna Ko to attend, and lie may be punished for contempt, and hIuiII bo liable to all the penalties for such non attendance in the same manner as if he had been served with such sul)- pa-na. (c) 36 V. c. 48, s. 1G3. 211. No person uliiU be excused from answering any ques- tion put to him in any action, suit or other proceeding in any Court orbefoio any Judge, touching or concerning anj election, or by-law, or the conduct of any pei-son tlierciit, or in relation thereto, on the ground of any privilege, or on the ground that the answer to such (piestion will tend to criminate such person ; (d) but no answer given by any person claiming to be excused on the ground of privilege, or one of the Imnds on a steamboat, then at tlie wharf in the town, was a material witnens, an order was made for bis attendance ; and upon tlie cajitain of the boat refusing to allow him to l)e served or to give any information about liim, an order was made for the attendance of tlie eaptain. The South (Jrenvillt Cane, August, 1872, not reporteii. (h) When the witness, at the close of his examination, asked for his expenses, the .ludge (Willes, J.) allowed liim his expenses aahe bed been called by himself, hut intimated that if any other witness desired to Iw paid his expenses, ho should make the demand before he was sworn. (r) Quiure, sliouhl the process for contempt be issued by the Judge presiding at the trial, or from the office of the court in whicii the Setition has heen filed. Unless tlie former, there would be weat elay in enforcing the attendance of a witness ordered to attend. (d) At common law, a witness is entitled to refuse to answer any question that may tend to criminate him, not only because the an- swer it-self might be evidence against him on a criminal charge, bat because it might furnish a link in the chain of testimony which might implicate him in such charge. See Keith v. Lynch et al., 19 Grant, 497 ; See further, Emeri/'s Caw, 9 Am. 22. Those who decided the common law, originally thought it was unwise and unjust to make a man, however guilty, criminate himself. See Regina v. Boilihj, 41 U. C. Q. B. 291. The object of this section is to make an I'mova- tion, to a certain extent, on these principles of the common hw. Election Committees, Judges, and Election Commissioners must make their inc^uiries among persons who are generally exj)ected to be hostile witnesses and unwilbng to tell the truth, and who, if the common law were left untouched, would be always entitled to say, " I will answer no such question," and so the inquiry would be baffled. Therefore the Legislature, in the section here annotated, has enacted that the i tendency of the answer to expose the witness to a criminal charge, should not, contrary to the general rule, be any excuse for not an- Bwering the question, deeper Blackburn, J., in The Queen v. HulMf L. K. 5 Q. B. 383, 384. on tlie ground tliat penalty under this , itinlcr this Act, agaii the witness a certif excused on eith(*r and tnio nnswfu-, to t V. c. 48, s. 1G4. !12.] LIMITATION OP ACTIONS FOR BRinRHY. 165 oil tlio grouiul tliut such anawor will Hubjcct him to any ponalty undtM* this Act, hIiiiH ho iih(hI in iiny profctuling miller this Act, a^'aiiist such pcrHoii, (^;) if tho Jiul^'n jjiv(!S to tli(> witiicHS a certificnto that ho cl;iitnt'(l the riglit to be fxcuscd on cithor of tho f^'rouiulH aforesaid, and uiado full and tiuo answer-, to tho Hatisfaction of tho Jtidgo. (/*) 36 V.c. 48, H. 164. 212- AH proceedijigi-i other than an apjdication in the na- i.imitationof turt' of (/no warrantu against any poison for any vicdation of"""'""* section two hundred and one or two hundrt^d and two of thia Act, sliall bo conunenccd within four weeks after tho numi- ei|iii! election at which tho offence is said to have boon tiMiiiiiitted, or within four we(?ks after tho day of voting iij)oii any by-law as aforesaid, (y) 30 V. c. 48, s. 105. (c) Tlic Le^'ial'>.turc, having' tiikcsn away from tho witness tliat com- mnu law imuiuniti' ;igfiiMst criiiiinatiiif,' himself, hcru givoH hini an im- munity on certain conditions, ^il'/ic Qnccn v. Ilttlmc, L, 11. 5 i-i. B. .SS4. (/) If the witness has really complied with tho conditions ho is cntitlcil to a certificate, 'and tiie Judge hns no rigli to rofnsu it. nr(jm;nv. Prlrr ,'f nl., 22 L. T. N. S. 12. The r.iiiditions are not only that ho claimed tho curtificato, hut " made full mi'/ truo an- fWi'Y to (lie, sdfi.i/ddioii of tfii' Juiler of persons on the Roll is also required. lb. The tiling 8. 218.] Council by electing V. c. 48, s. 120. 218. At every su preside, and if ther( select one of thems( may vote as a meml of these papers, and qualifications, when re( In re Hawk and Ball rel McM'inus v. Fenju or Deput}- Reeve has t of a vote by merely reti made. The Queen ex n But see T/ie People v, (X.Y.)634. When four mr.jority of the whole r their first meeting a re put and fji'conded, and : the hearing of all, but the Council Chamber, d held to be duly elected. G. L. J. N. S. 104. It present dissent from an the person proposed, th( I Str. 52 ; Oldknoto v. ] They are taken to assen of the whole Council, v consequence whether the '/ rel. Hifdr v. Barnhari take place at a meeting i for the holding of the el ip) What is meant by ting one of themselves t< Warden is the head th mean so to bring the par organization is perfected the j)arts come together 1 members refuse to take t: members refusing cannot bers not desirous of bein^ themselves. So long as ] mg that they should not quorum. See Tfie Queei Dalton, May 8th, 1873, al it is believed that a mem hold the office until ren !\6Dt meeting of couu'^y tioundl, etc. Place of 219. In case of an equality of votes on the election of the head of any County Council, or Provisional County Council, then of those present, the Reeve, or in his absence the Deputy Reeve of the Municipality which has the largest number of names on its last revised assessment roll, as ratepa^ crs, shuU have a second and casting vote, (r) 36 V. c. 48,8, 122. Place of flrat 220. The membc-s of every County Coimcil shall hold meetiog. their first meeting at the County Hall if there is one, or otherwise at the County Court House. («) 36 V. c. 48, s. 168. 221. The subsequent meetings of the County Council, and all the meetings of every other Council shall be held at such place, either within or without the Mvmicipality, as the Coun- oil from time to time, by resolution on adjourning to be entered on the minutes, or by by-law, appoints, (t) 36 V. c. 48, s. 169. 222. The Council of any County or Township in which meeting may ^^^ qj^^.^ Town, or incorporated Village lies, may hold its hers have met for the purpose of electing a Warden, the Clerk of the Council is to preside at the meeting. If there be no Clerk, the members present are enabled to elect one of themselves to preside. He may, however, vote, but not have a casting vote unless he hap- pen to be the representative of the Municipality which has the largest number of names on its last re\ased Assessment Roll. See sec. 219. {r) See note j to sec. 152. (s) The object of stating place as well as time of the hist meeting is to prevent surprise. See notes to sec. 215. Subsequent meet- ings, as to time and place, may be regulated by adjournments. See sec. 221. {t) The object of this section would seem to be to enable a County Council to sit in a city or town that has been separated from the county, when the proper county buildings are situate therein and are owned by the county. See sees. 220, 222. But thelanguaG;e "every ofAer council," is broad enough to admit of any Municipal Councd holding sittings elsewhere than within the Municipality. The section has not yet been judically interpreted. The meetings are to be held "at such place," &c., as the council, from time to time, by resolulion on adjourning, to be entered on the minutes, or by by-law, appoint. It is apprehended that an established place of meeting would be by by-law, and that, in the absence of any such by-law, the place may be determined for the next meeting by resolution on adjourning, at which time there would be no opportunity of passing a by-law. Strictly speaking, there ought to be either a by-law fixing a perma- nent place, or a resolution from time to time entered at each adjourn- ment. See In re Pajf'ord and Lincoln, 24 U. C. Q. B. 16. a 223.] BEMUNER. sittings, keep its pu of the Council and City, Town or inc< and bold such real such purposes, (v) 223. The Counci by-laws for paying attendance in Coun committee of the C dollars per diem, anc (to and from) for su( 40 V. c. 7 Sched. A (h) See note t to sec. {v) Municipal Corpor of Mortmain. Brovm are held to be in force »,, 22 Grant 203 ; affirmed, Te in dtiw, of the Council and of its officers and servants within such '*"* City, Town or incorporated Village, (u) and may purchase and hold such real property therein as may be convenient for such purposes, (v) «6 V. c. 48, s. 170. 223" The Council of evciy Township and County may pass S®™^?"** by-laws for paying the members of the Council for their ciiiora and attendance in Council, or any member while attending on ^^™|^d. committee of the Coimci!, at a rate not exceeding three dollars per diem, and five cents per mile necessarily travelled (to and from) for such attendance, (w) 36 V. c. 48, s. 172 ; 40 V. c. 7 Sched. A (171). (») Sec note t to sec. 221. (i') Municipal Corporations are within the operation of the Statutes of Mortmain. Brovm v. McNab, 20 Grant 179. And these Statutes are held to be in force in Ontario. Corporation of Whitby v. Liscombe, 22 Grant 203 ; aflBrmed, 23 Grant 1. See further, Doe d. Anderson v. Todd et al., 2 U. C. Q. B. 82 ; Doe d, Vancott v. Head, 3 U. C. Q. B. 244 ; HaUock et al. v, Wilson, 7 U. 0. C. P. 28 ; Mercer v. Hewston et al., 9 U. C. C. P. 349. And this being so, the power can only properly be exercised in the limited manner in which it is con- ferred, i. e., to purchase and hold such real property as may be convenient for the purposes mentioned. See Ketchum et al. v. Buffalo (t al, 14 N. Y. 356 ; State v. Mansfield, 3 Zab. (N. J.) 510 ; Nicollv. New York [■ t m THE MUNICIPAL MANUAL. [s. 224. Bemunera- tion of m«}-or, oto. m 224. The Head of the Council of any Connty, City, Town or incorporated Village may be paid such annual sum or other remuneration as the Council of the Municipality may determine, (x) 36 V. c. 48, s. 173 ; 40 V. c. 7. AS'cAed A (172. ) persona. Per Robinson, C. J., in East Nissouri v. Horseman. 16 U. C. Q. B. 58.3. The members of the Council arc not the Corporation, but the agents of the Corporation for the ivBFairs and funds of tlie Corporation. When these agents are proved 'ho to misappropriate the funds of the Corporation as to put the money into their own pockets when not authorized so to do, a bill in Eqnitv at the instance of a ratei)ayer, JilakU: v. Staplen et al., 1.3 Grant (57, or an action at the suit of the Corporation will lie against them to recover it back, and when that misappropriation is mixed up with whai may have been rightfully jiaid, it is but right, in order to operate as a safeguard to the Corporation, to cast the Inirthen of proof on the agent, to separate from tlie approi)riation he has received that portion whicli he would be legally entitled to take. Per Burns, J., in Eaut XU of the council. 175 230. In case of the death or abMence of the head of a when reeve Town Council, the Reeve, and in case of the absence or death ^e^e'to*^ of both of them, the Deputy Reeve, and in case of the death pre«i the duration of the author.ty. But it is am>rehended that tiia authority would cease on the presence of the officer "who ought to preside." See note t to sec. 231 . {I) The general import of the words used deserves attention. Apparently no question can come before the Council or meeting, on which the presiding officer or Chairman is disentitied to vote. f 176 THE MUNICIPAL MANUAL. [s. 234. 88. 235, 236.] m ■1:^1 cawof oqiia there is an equality of votes shall be ileemed to bo negatived lltyof vote.. ^^^) 3g Y ^ 4y^ g 132. Adjourn- 234. Evuiy Council may adjourn its meetings from mant. time to time, (o) 3d V. c. 48, s. 183. There is no exception of any kind in the enactment. Tliu riglit tu vote is given "on n/l questiona. " Its exercixo on nny jiarticiilar ?uc8tion, perhaps affecting the conduct of the presiding olHcer or Jhainnan liiinself, is a matter left entirely i'l hi3/)vvn lUscrotion. {ill) An cxceiitinn to this rule, recognized in the Act, i.s that wliidi allows a casting vote in the election of the head of a County ('oiuicil, See sue. 219. Another is where united Counties make i»n>vi^ion for improvements in one of the Counties separately. Sec. 47D. {(>) Adjourned meetings are generally held for the purpose of completing the untini.-:hetl business of a preceding meetuig. It is allowable, therefoi-e, in the case of an ordinary adjournuieiit, to transact any business th.it might have Ijeen lawfull}' traiLsactod at the preceding meeting, but wliich was not transacted for want of time or opportunity to do so. See The Kimj v. /f arris, 1 ]]. & Ad. 93ti ; Si'dilitiivj V. Loraiit, 3 H. L. C. 418; Smith v. Law, 21 N. Y. 296 ; Warner v. Moiufr et al. 11 Vt. 385 ; People ex ref. Lnew v. - - - ' - .-hi. , 412, auy way Jiatr/ielor, 22 N. Y. 128; People v. Marfin, 1 Seld. (N. Y.) Huihnn Co. v, SUite, 4 Zabr. (N.J. )7 ISj; In re\liohm' Street, 1 La. An, In the midst of a Parliamentary debate upon a (luestion, member may move *'th?,t this house do now adjourn, ' not by of amendment to the original cpiestion, but . ,s a distinct (piestioa •which interrupts and supersedes that already under considuratiou. If this second (question be resolved in the affirmative, the original question is superseded ; the House must immediately adjourn, and all business for that day is at an end. May on the Law and I'r.actiee of Parliament, 7 ed. 274. The motion for adjournment, in order to supersede a question, must be simply that the House do «o(r adjourn. It is not allowable to move that the House do adjourn to any future time specified, nor to move an amendirent to that effect to the ijues- tion of adjournment. Ih. The House may also be suddenly adjourned by notice being taken that the necessary number of members to con- stitute a majority are not present ; and an adjournment caused in that manner has the effect of superseding a question in the same way aa a formal question to adjourn when put and carried. In either case the original question is so entirely superseded, that if it ha^ not yet been proposed to the House by the Speaker, it is not even entered in the votes, as the House was not fully in possession of the ques- tion before adjournment. If a motion to adjourn be negatived, it may not be proposed again without some intermediate proceeding ; and in order to avoid any infringement of this rule, it is a cominon practice for those who desire to avoid a decision upon the original question on that day. to move alternately that " this House do now adjourn," and "that the debate be now idjourned." The latter motion, if carried, merely defers the decioion of the House, while the former, as already explained, altogether supersedes the question. Yet members who only desire to enforce the continuance of the debate on another day, often vote for an adjournment of the House, OFFICEIW OJ Div, I. -The Heai Div. H.— TuK Cij.:h Div. IIL-ThkTrea! 1)1 v. IV. — A S.SE.S.SOR.S OlV. v.— AUDITOH-S Div. VI.— VALrAToRi Div. VII — DuTiEH of ATIOI Div. Vin. —.Salahikh Di\ Wl Lu 235. Tlie lu'ad of e^ tion .shall be the Wardf the Miiyor tliereof, anc Vill!i<((; tlie Reeve then 236. The hee-' of th cer of the Corporation «hich, if carried, world si support. This dis^^- i.'tion result should follow t. at i' Suppose a question to be op art anxious for an adjourni of a question proposed bv adjournment of the House, , wid carry the adjournment, of at once, and its suppor defeat, lb. . », It is said that at cd Woint such officers as tl Untmr's Co. v. Passey, 1 Bi f '7/- Barnard, Comb. 41 or the appointment of the 1 tion, and so the implied pov exercsed. ^^e Hobokeny. Ufman, 2 Dutch. (N. J) (•J.Y.)196;/';,Wv: Gira i?"' differences betweei r n°V"^ subordinate offic "^ ^- Q. B. 314. W Experience has demons 23 88. 235, 236.] HEADS OP COUNCILS. PART V. OFFICERS OF MUNICIPAL CORPORATIONS. 17T p,v. T.— The Head. Div. II.— The (JiJ';kk. Div. III. -The Treasurer. Div, IV.— ^ssessok.h ani) Collectors. L)IV. v.— AUDITOR-S AND AUDIT. Div, VI.— Vali:atorm. Div. VII,- Dltieh ok OFFICER.S respecting Oaths and Declar- ations. Uiv. VIII.— Salariks Tenure oy Office and Security. Division I.— The Head. ' Who to he. Sec. 2:i5. Duties. Sec. 236. 235. The liead of every County and PrcJvisional Corpora- who to be tioii shall be tlie Warden thereof, and of every City and Town ^^°i^ the Mayor thereof, and of every Town.shij) and incorporated Yillrt^o'the Reeve thereof, (r) 36 V. c. 48, s. 184. 236. The he8'' of the Council shall bo chief executive oflS- Dutieaof cer of the Corporation ; (s) and it shall be his duty to be c^^c°i. which, if carrieil, world supersede the question they are prepared to support. This dis^ i-tion should always be borne in mind, lest a result should follow t„at is widely different from that anticipated. Suppose a question to be opposed by a majority, and that the minority aru anxious for an adjournment of the debate, but thiit on the failure of a (juestion proposed by them to that effect, they vote for an adjournment of the House, the majority have only to vote with them and carry the adjournment, when the obnoxious question is disposed of at once, and its supporters have themselves contributed to its defeat, lb. (r) It is said that at common law Corporations have power to appoint such officers as the nature of their constitution requires. Vintner's Co. v. Passey, 1 Burr. 237 ; Hadmi/s Caw, 1 Mod, 23; The Kimj V. Barnard, Comb. 416. But by this Act provision is made tor the appointment of the principal officers of a Municipal Corpora- j tion, and so the implied power, if it exist at all, should be sparingly [exercised. See Hoboken v. Harrison, 1 Vroom. (N.J.) 73 ; White v. Tallman, 2 Dutch. (N. J.) 67; see also People v. BnleU, 2 HiU (N. Y.) 196; Field v. Girard College, 54 Pa. St. 233. There are obnous differences between such officers as enumerated in this section and subordinate officers. See In re McLean v. Cornwall, 31 |U.C.Q. B. 314 (s) Experience has demonstrated the necessity of more power and 23 V •^ r 3' Mt 1 ill' il' 178 THE MUNICIPAL MANUAL. [h. 236. mi t vigilant and active at all times in causing the law for the ffovernment of the Municipalty to be duly executtHl aiul put in force ; to inspect the conduct ot nil huI (ordinate oHicein in the government thereof, and, as far as may be in hJH i»owpr, to cause all negligence, carelessuess and positive violation of duty, to be duly prosecuted and punished, and to communi- cate from time to time to the Council all such information, and recommend such measures within the powers of the Council as may tend to the improvement of the Himnces, health, security, cleanliness, comfort and ornament of the Municipality. (<) 36 V. c. 48, s. 185. more resnonsihility in the Executive Head of our Municipal Institn- tions. Too often tlio duties of the Mayor or the Chief Kxeoutive Officer are only nomiunl, and to these he gives but little attuiitioii- a natural result of his want of importance and of his inaldlityto control the administration of Municipal affairs. If the otiive Ik clothed with dignity and real authority ; if the Mayor sliall !« til y ; mal. invested with the veto power ; if he shall have the sole rit'lit t appoint and the unrestricted power to suspend or remove siinordi- nate officials) or heads of departments ; — then the citizens c.in justly demand of him that he shall bo individually responsil)Io for the proper conduct of the concerns of the Municipality, and if gricvancei exist they will know to whom to apply for remedy, and on whom to fix the blame. Per Judge Dillon, in Dillon's Municipal Corixira- tions, p. 2.3. Mayors of our Cities and Towns have respoiiHihility without power, anil one result is a lax administration of Municipal affairs, too often combining inefficiency with extravagance and waste. {t) Much of the happiness of the inhabitants of a City or Town »*'"'r.c. fSee sec. 7.1\. Tho Mayor of a City or Town ie tjc officio a Justice of the Peace : sec. 395, and, where there is no PoUce Magistrate, has jurisdiction to hear and determine pro- secutions for ofifences against By-laws : sec. 390, and, under particu- lar circumstances, is authorized to call out the 2'>osse comitatus to enforce the law within the Municipality, should exigencies require it. Sec. 453. (a) It is made the duty of the Council to appoint a Clerk. Con- venience, if not duty, however, will at all times render one necessary. Bmrley v. barlow, 7 U. C. L. J. 117. Qutere, are the oiiices of Clerk and Treasurer so incompatible as to m-'ke it illegal for the same person to hold both offices. See note k to sec. 172, In the En^'. Stat. 3 & 4 Will. IV. cap. 101, s. 18, there is an express pro- hibition against appointing tho same person to both such offices. [ See Haivkings v. Newman, 4 M. & VV. 013. (fi) The Clerk being an executive officer of the Council, it is his iuty to make all entries as directed. He is not at liberty, without the previous sanction of the '"ouncil, to exercise any discretion of •i --.fj 180 THE MUNICIPAL MANUAL. [s. 238. ' ■ .1' ■ Provision for 238. The Council may by resolution provide that, in case oroierk, *"'* *^6 Clerk is absent, or incapable through illness of perform- ing his duties of Clerk, some other person to be named in such resolution, or to be appointed under the hand and seal of such Clerk, shall act in his stead, and the person so appointed shall, while he so acts, have all the powers of the Clerk, (c) 36 V. c. 48, s. 187. hia own. His record oi the proceedings is to be out note or comment." ' true " and " with- The duties of the Clerk, here enumerated, are the following :— 1. To record all resolutions, decisions and other proceedings of the Council. 2. To record the name and vote of every member voting, if required by any tnember present. 3. To keep the books, records and accounts of the Council. 4. To preserve and file all accounts acted upon by the Council. 5. To keep the oiiginal or certified copies of all By-laws, and of all minutes and proceedings of the Council. All which he is to keep in his office, or the place appointed by By-law of the Councd. Other duties are imposed by succeeding sections of this Act. The Clerk while in office, can only charge the Council by acts within the scope of his general authority, or by such aa the Council beforehand directed or afterwards sanctioned. Hainsay v. Wtskn District Council, 4 U. C. Q. B. 374. He may amend an erroneous record. Scammond v. Scammond, 8 Fost. (N. H. ) 429 ; Cass v. Belluwi, 11 Fost. (N. H.) 501 ; Harris v. School District, 8 Fost. (N.H.)58; Gibson v. Baileti, 9 N. H. 168 ; Whittier v. Varney, 10 N. H. 291 ; Welles V. Battelle, 11 Mass. 477; Low v. Pettingill, 12 N. H. 337; Pierce v. Richardson, 37 N. H. 306 ; President v. O'Malleij, 18 111. 407 ; Mott v. Reynolds, 27 Vt. 1 Wms. 206 ; Covington v. Ludlom, 1 Met. (Ky.) 293 ; Boston Turnpike Company v. Pom&et, 20 Conn. 590; Bishop v. Cone etal, 3 N. H. 513 ; Hoag v. Dnrfey, 1 Aiken(Vt) 286 ; Chamherlaih v. Dover, 13 Maine, 466. The power to amend ceases when he ceases to hold the office. School District v. Ailmiori, 12 Met. (Mass.) 105 ; HartwelL v. Littleton, 13 Pick. (Mass.) 229. His successors cannot make an amendment. Taylor v. Henry, 2 Pick. (Mass.) 397 ; State v. Williams, 25 Maine, 561, 565 ; Fossett v. Beam, 29 Maine, 523. But in a proper case the Council might direct the amendment to be made. Hutchinson v. Pratt, 1 1 Vt. 402. Where an amendment is made, and it should not be attempted unless absolutely necessary, it should be made with the sanction of some superior officer or of the Council, and in such a mpnner as to be easily distinguished from the original text. See Pierce v. Richardm, 37 N. H. 306. Where the applicant for the office of Township Clerk shewed that he was unable to write, his application for a writ of mandamus failed. The Queen v. Ryan, 6 U.O. Q. B. 296. (c) The Council has an implied power, in case of tht temporary fii 239, 240.] BEi i-atei)ayers appearing il 239, 240.] RETURNS TO GOVERNMENT. 181 239. Any penson may inspect any of the particulara afore- said, (d) as well as the assessment rolls, votei-s' lists, poll books, and other documents in the possession of or under the con- trol of the Clerk, at all seasonable times, (e) and the Clerk shall, within a reasonable time, furnish copies thereof to any applicant at the rate of ten cents per hundred words, or at such lower rateg as the Council appoints, and shall, on payment of the proper fee therefor, furnish within a reason- able time, to any elector of the Municipality, or to any other |)ei-son interested in any by-law, order or resolution, or to his attorney, a copy of such by-law, order or resolution, certified under his hand and imder the corporate seal. (/) 36 V. c. 48, s. 188. 240. The Clerk of every City, Town, incorporated Village anu Township shall, on or before the first day of December in each yeai", under a penalty of twenty dollars, to be paid to the Treasurer of Ontario in case of default, transmit to the Treasurer of Ontario a true return of the number of resident rate[)ayers appearing on the re\'ised assessment roll of his Municipality for the year, and shall accompany such return \*-ith an affidavit of the correctness of the same made before a Justice of the Peace verifying the same in the following fom :— (g) absence of the Clerk, to appoint a person to discharge his duties. See TkKiwj V. Mothtr>iell, 1 Str. 93 ; Hutchinson v. Pratt, 11 Vt, 402. ((/) See note h to sec. 237. ('') It is the right of any inhabitant of the Municipality to inspect the records, boolis and other documents of the Corporation on proper occasions : The Kimj v. Shelley, 3 T. B. 142 ; The King v. Bahh, lb. 579 ; Harriwn\. Williams, 3 B. & C. 162 ; lioyers v. Jones, 5 D. & R. 484. And it is a right which may be enforced by man- damus. The King v. Newcastle, 2 Str. 1223 ; The Kiinf v. Lucas, 10 East 235 ; The King \. Purnell, 1 Wils. 242; The King v. Bruhjeman, 2 Str. 1203; People v.Mott, 1 How. Prac. (N.Y.)247; Cock'burnv. Bank, 13 La. An. 289 ; People v. Walker, 9 Mich. 328 ; People v. Cor- nell, 4T B&rh. (if .Y.) 329. (/) No provision in made for the funding of these fees by the Clerk ; and there is no declaration making the fees liis own. In the absence of some By-law or resolution authorizing him to keep them, it would, it is presumed, be his duty to pay him over to the Corporation. See The Queen v. Cumherlege, 36 L. T. N. 8. 700. ((/) The duty of the Clerk is to make the return required by this section "on or before the fii-st day of December Ik each year," under the penalty named . The machinery of Municipal government assumes that certam things are done by certain days in the Municipal year, 80 that other things may in their order follow. Municipal officers Minutei, ftc, to be open to inapecUon. Copied to be furnished and charges therefor, ko. Clerk to transmit a yearly re- turn of rate- payers to the Provincial Treasurer. 182 THE MUNICIPAL MANUAL. [s. 241. T- - i-f Clerk. |!.?i'-'' f AVhat such '^xiP return shall -n-^ show. «4 rrH •^ o o « b w*^ *-■ rt s^^ ^^-^ O rt ^ eads rdin ssme HS^^ SS4S r 3 < Oathof Terl- I, A. B., Clerk of the Municipality of the (City Town, Township flcfttion, or Village (as the cane may be), of make oath any say, that the (above, within written, or annexed an the. cam may be) return, con- tains a true statement of the number of resident ratepayers appearin? on the assessment roll of the said City (Town, Township or Villagti for the year one thousand eight hundred and (Signed) A. B. Sworn before me, &c. 36 V. c. 48, s. 189. See also Jiev. Stat. c. 28, s. 5. To make to 241. The Clerk of every Township, Village and Tow. tottle'^*"™ shall in each year, within one week after the first day in County March, {h) under a penalty of twenty doUai-a in case of de- fault, make a return to the Clerk of the County in whicli the Municipality is situate, of the following pai-ticidars re- specting his Municipality for the year then last past, namely: 1. Number of persons assessed. 2. Number of acres assessed. 3. Total actual value of real proijeiiy. 4. Total of taxable incomes. 5. Total value of personal property. 6. Total amount of assessed value of real and pei-sonal property. 7. Total amount of taxes imposed by by-laws of the Municipality. 8. Total amount of taxes L.^ posed by by-laws of the County Council. 9. Total amount of taxes imposed by by-laws of any Provisional County Council. cannot, therefore, regard provisions as to time with too much strict- ness. But if the thing required to be done within the time limited be not done, it does not follow that it cannot afterwards he done. It is, no doubt, important that it should be done within the time hmitf.d ; but " it is still more important that it should be done; and therefore if, owing to some imcontrollable circumstance, it is not done on the proper day, it ought to bo done on the next or some other." Per Pollock, "C. B., in Hunt v. Ilibbs, 5 H. & N. 12G. So far as the public interests are concerned, the Act may be looked upon as directory. The Kinq v. Xorwkh, 1 B. & Ad. 310 ; see further, Cole. V. Gre.en, 6 M. & Q. 872; Morqan v. Parry, 17 0. B. 334; Bnmijil V. Bremmer, 9 C. B. N. S. 1 ; Nickkw. Douglass, 35 U. C. Q. B. 127; The Queen v. Inyall et al, L. R. 2 Q. B. Div. 199 ; Striker v. A'f% 7 Hill (N. Y.) 9 ; Elemlorfv. New York, 25 Wend. (N. Y.) G93. Bat so far as the olHcers whose duty it is made to do the things within | a limited time, the Act may be construed as imperative. Hunt v. Hibbs, 5 H. & N. 126. The Municipality may suffer in more wa)i | than one if the officer neglect to i^erform his duty by the day named. See sec. 245. (/t) See the last note I • 241.] RETURNS If COUNTY. 183 10. Total amount of taxes as aforesaid. 11. Total amount of income collected oi* to be collected from assessed taxes for the use of the Municipality. 12. Total amount of income from Licenses. 13. Total amount of income from Public Works. U. Total amount of income from shares in incorporated Companies. 15. Total amount from all other sources. 16. Total amount of income from all soui'ces. 17. Total exijenditure on account of roads and bridges. 18. Total expenditure on account of other public works and property. 19. Total expenditure on account of stock held in any in- coi'porated Company. 20. Total expenditure on account of Schools and Educa- tion, exclusive of School Trustees' Eates. 21. Total expenditure on account of the support of the poor, or charitable purposes. 22. Totid expenditure on account of debentures and inter- est thereon. 23. Total gross expenditure or account of Administx*ation of Justice in all its branches. 21. Amount received from Government on account of Ad- ministration of Justice. 25. Total net expenditure on account of Administration of Justice. 26. Total expenditure on account of salaries, and the ex- penses of Municipal Government. 27. Total number of sheep won-ied by dogs, and the amount paid therefor by the Municipality. 28. Total expenditure on all other accounts. 29. Total expenditure of all kinds. 30. Total amount of liabilities secured by debentures. 31. Total amount of liabilities xxnsecured. 32. Total liabilities of all kinds. 33. Total value of real property belonging to Municipality. 34. Total value of stock ui incorpoi*ated Companies ovaed by Municipality. 35. Total amount of debts due to Municipality. 36. Total amount of arreai*s of taxes. 37. Balance in hands of Treasurer. 38. All other property owned by Municipality. 39. Total assets. 36 V.c. :t8,s. 190. , I. ;■!■ 184 THE MUNICIPAL MANUAL. [SS. 242-245. OountT clerk 242- The Clerk of every County shall, before the first day retmxk to the ^^ April in each year, (i) prepare and transmit to the Pro- ^Tineiai vincial Secretary a statement of the aforesaid particulars re- ' specting all the Municipalities within his County, (J) enter- ing each Municipality in a separate line, and the particulars required opposite to it, each In a separate column, together ^nth. the sum total of all the columns for the whole County, and shall also make at the same time a return of the same particulars respecting his County, as a separate Municijmlity, and also of the following particulars ; — 1. Number of Public School Inspectors. 2. Amount paid to School Inspectors. 3. Total amount paid to Sheriffs. 4. Total amount paid to County Crown Attorney. 6. Total amount paid to Clerk of the Peace. 6. Total amount paid for constable and police service. 36 V. c. 48, s. 191 ; 40 V. c 7, Sclied. A. (173). 243. The Clerk of every City and Town separated from a County shall, before the first day of April in each year, {k) make a return to the Provincial Secretary of the particulars i'^ section two hundred and forty-one mentioned respecting his City or Town. 36 V. c. 48, s. 192. 244. The Provincif J Secretary shall, as soon as may U after the commencement of every Session, lay before tlie Legislative Assembly a copy of all returns hereinbefore re- quired to be made. (I) 36 V. c. 48, s. 193. 245. The Treasurer of the County shall retain in his hands any moneys payable to any Municipality, if it is certi- fied to him by the Clerk of the County that the Clerk of i such Municipality has not made the return hereinbefore re- quired J and the Treasurer of Ontario shall retain in his hands any moneys payable to any Municipality, if it is certi- fied to him by the Provincial Secretary that the Clerk of such (t) See note g to sec 240. ij) See sec. 241. {k) See note g to sec. 240. {I) It is to be noted that while the duty of the Clerk, as to each j return, is to make it on or before a particular day named, see sees. 240, 241, 242, 24.S, the Provincial Secretary is required, "as soon as j may be after the commencement of every Session, " to lay a copy of j all the returns before the Legislative Assembly. And also Clerks of citiea and towna. ProTincial Secretary to lay returns before the Legislative Assembly- Moneys to be retained if returns not made. (?) The Treasurer is— 1- To give security. 185 J. 246.] TliEASURERS. Municipality has not made the returns hereinbefore required. jm) 36 V. c. 48, s. 194. DrvisioN III. — The Treasurer. Uis appointment, duties and remuneration. Sees. 246- 248. Successor may draw moneys. Sec. 249. 246- Every Municipal Council shall appoint a Treasurer, Treasurer to (o) who may be paid either by salary or by by a percentage ^ "ppointed. \f) and every Treasurer, before entering upon the duties of iu3 office, shall give such security as the Council dii-ects for the faithful performance of his duties, and especially fordv , . accountmg lor and paymg over all moneys which may come rity. into his hands ; [q) and it shull be the duty of every Coun- (m) The object of this section is to bring to bear the pressure inilicated on the Municipalities concerned, in order that the Municipal officers may be thereby compelled to make the requisite returns. (o) The offices of Treasurer and member of the Council are incompatible. Tfie Queen v. Smith, 4 U. C. Q. B. 322. The Treasurer has no power to bind the Corporation bj' acceptance of orders for School Teachers salaries. Munnon v. ColUngwood, 9 U. C. 0. P. 497 ; Sffliri V. Horseman et al •Nor should he pay money oi Act of Parliament should be tliaii the resolution or By-la Miameut, 2w Robinson, C. «• '181; and if a Treasurer so ft'on, he would be probab] • 5 J ir 247.] DUTIES OF TREASURERS. 187 247- Every Treaaiu'er shall receive and safely keep all To roceiye moneys belonging to the Corixjration, and shall i)ay oiit the ^re or'and same to such persons and in such manner as the lawi* of the vriting was that the Council should give their note for j700, to be used in the Niagara District Bank by the dcifcndant. This nntfi v»as accordingly made by the Keeve, and endorset assuming this to be the case, of wliich there was some question, the Council, by omitting to notice or object to this item, were not bound to pay it. lb. If the Treasurer chooses to act upon the construction which ho puts upon or the inferences which he draws from mere conversations among members of the Council which may take place in his presence, he does so at his own risk. He should be aware that no loose conversa- tions of any one or more members of the Council can fonn a voucher that will acfpiit him for paying publi-; money. 76. 285, j)er Robin- son, C. J. The Treasurer should not pay money on any or every draft and order which the lleeve for the time being may direct him to pay. The Township moneys will probably be considered as still in his hands unless paid out on a proi^er legal authority, for purposes contemplated and authorized by law, at least until he lias received I a formal acquittance and discharge from the Municipality. Eiixt yiimiiri V. Horseman et al., 9 U. C. C. P. 191, per Draper, C. J. Xnr should he pay money on an illegal order or resolution, for an Act of Parliament should be regarded by him as a higher authority tliaii tlie resolution or By-law of a Corporation created l)y Act of P.uiiameut, 2]er Robinson, C. J., in Danieln v. Burford, 10 U. C. Q. B. 481 ; and if a Treasurer so pay money on an illegal ordef or reso- lution, he would be probably subject to criminal proseoutitm. jjtr Kobinsou, C. J., in Etist NUsouri v. Horseman, lU U. C. Q. B. 580. '.4. ;5' 188 THE MUNICIPAL MANUAL. such Treasurer for any work performed or to be performed ■ Hii liability (t) and such Treasurer shall not be liable to any action at limited. jg^^ £qp j^jjy moneys paid by him in accordance with any by- law or resolution passed by the Council of the Municipality of which he is the Treasurer, unless where another d!;i[Mjsition is exi)res8ly made of such moneys by statute, (u) 36 V. c 48, s. 196.' Half-yearly 248. Every Troas'rer shall also prepare and submit tothp Msets!"'" ° Council "If yp^ . ' a -oi-rect sta cement oi the ;noneys attlio f.'jdit t^ kio v-uipu a.ion (a) whoso officer he is; and in Cities, Tons\ •;!!;- /porated Villages and Townships whicli have pa. :jet2 !■•: Ihyvii j-equiring this to be done, the Tn^asurer shall, on or L»eiore x!. 'wentieth day of December in each But where persons entrusterl with the administration of a fund liave incurred legitimate and proper expenses thrown upon them by their fiduciary situation they have a right to reimburse themselves out of the funds. See The King v. The Inhabitants of Esuex, 4 T. R. 591. The. K'uHj v. The Commissioners of Sewers for the Tower IJnmkti, 1 B & Ad. 232 ; Attorney-Oeneral v. Mayor of Norwich, 2 M. 4 C. 406 ; Eeyina v. The Mayor and Town Council of Sheffield, L R. 6 Q. B. (552. An attempted appropriation contrary to the terms of the trust may be restrained. Attot'ney-Oeneral v. Aspinall, 2 }il.k(^. 613. A by-law declaring that the officers of the Corporation shall be indemnified for all lawful acts done in an official caiwcity is uot illegal. Irivin v. Mariposa, 22 U. C. C. P. 367. (<) It is against the policy of the law that a member of a Council, who is a trustee for the people, should have any contracts with the Corpotation, and so be in a position to make a j>rofit out of his trust. See note p to sec. 74. (k) The first part of the section makes it the duty of the Treasurer to pay out money in such manner as the laws of the Province and the lawful By-laws or resolutions of the Council direct. But in order, it is presumed, to relieve the Treasurer from the responsibihty of deciding what By-laws or resolutions are or are not legal, it is here provided that he slndl not be liable to any action for "any moneys paid by him in accordance with any By-law or resolution passed by the Council of the Municipality of which he is Treasurer.' In other wortls, the By-law or resolution, whether legal or illegal, if requiring him to pay the money, is a protection to him. This part of the section is, it is believed, designed to relieve Treasurers from the embarrassment indicated, and if not so read will contradict the first part of the section. (a) The moneys of the Municipality should be by the Treasurer deposited and kept to "the credit of the Corporation," and not to his own credit. They should be kept in a separate accouujt and not be mixed up with the Treasurer's private money. Peers v. Oxford, 17 Grant. 472. Most of the losses which Municipalities have sus- tained have arisen through the misconduct of their Treasurers, being perso taxes on or ore the ceniber. (c) -6 Y. c. ' (f/) The withdrawal of m^ right of the Municipality 249.] DISMISSAL OF TREASURERS. 18» ytar, (b) prepare and transmit to the Clerk of tho Munici- Annual Hit i)ality a list fi all persons who have no*^ paid their rxunici])al dofauit'foV'* taxes on or ore the fouiteenth dav ot said month of I)e-t"e»' cember. (c) .6 Y. c. y the Head of the Council, though not iu terms an appointment, is, under this section, in effect I the same. (f) ITie offices are incomi)atible. The disqualification extends to I the holding of the incompatible office "during the preceding year. " I See The Queen v. Hiorna, 7 A. & E. 960. 25 t •I 194 THE MUNICIPAL MANUAL. [s8. 256, 256. in any contract or employment with or on behalf of the Cor- poi'ation, (d) except as Auditor, shall be appointed an Audi» tor. 36 V. c. 48, s. 203. Duties of. 255. The Auditoi*s shall examine and repoi-t upon all ac- counts affecting the Corporation, or relating to any matter under its control or within its jurisdiction for the year ending on the thirty-first day of December preceeding their appoint- ment. (/•) 36 V. c. 48, s. 204. To Prepare 256. The Auditors shall prepare an abstract of the re- detriM '"** ceipts, expenditure, assets and liabilities of the Corporation, statement of and also a detailed statement of the said particulars in such expencUture, form as the Council directs, and report in duplicate on all *«• the accounts audited by them, and make a special report of any expenditure made contniry to law, (g) and shall file the same (d) yee note p to sec. 74. (e) This is to permit the same individual to be reappointed to the office of Auditor. Audits in Cities and Towns may be daily (see sec. 252), and in otlier Municipalities monthly or quarterly, a directed by By-laws on that behalf. lb. . (/) Negligence of the Auditors in examining and reporting upon accounts will not, under ordinary circumstances, relieve those indebted to the Corporation from the pajrment of their liabilities, See fn rt Eldon and Fergmoti, 6 TJ. C. L. J. 207. "It seems tome to be a monstious proposition, that an officer of the Corporation may wilfully or even nesbgently omit to enter the receipt of moneys ; and because the ^ udifors have not been able to discover the omission, and the (.orpor-uion approves of the report, that when the omissions are discovered the officer may set up the audit to cover his own fraud or neglect." lb. 209, per Richards, J. A surety for the due per- formance of a Treasurer's duties is not relieved from liability by the negligence of the Auditors in proving the Treasurer's accounts. Frontenac v. lireden, 17 Grant 646. The fact of the Treasurer hanng become reduced in his circumstances after the auditing au'l passing of his accounts, and before the discovery of an error in them, is no bar to a suit against the surety. lb. (r') Ti.e duties of Auditors, under this section, may be thus classed; 1. To prepare an abstract of the receipts, expenditures, assets and liabibties of the Corporation. 2. To prepare a detailed statement of the said particulars, in such form as the Council directs. 3. To report in duplicate on all accounts audited by them. 4. To make a special report of any expenditure made contrarj to law. 5. To file the reports in the office of the Clerk of the Council within j one month after appointment. n ss. 257-259.] AUDIT OF ACCOUNTS. 195 in the office of the Clerk of the Council within one month after their appointment, (h) and thereafter any inhabitant or ratepayer of the Municipality may inspect one of such du- plicate reports at all seasonable hours, and may, by himself or his agent, at his own expense, take a copy thereof or ex- tracts therefrom, (i) 36 V. c. 48, s. 205. 257. The Clerk shall publish the Auditors' abstract and Clerks to report (if any), and shall also publish the detailed statement gtracu and' ill such form as the Council directs, (j) and in case of a minor ■ta'«men<* Munici|)ality the Clerk shall transmit to the Clerk of the County Council a copy of such abstract and statement, and the same shall be kept by the Clerk of tlie County Council as a record of his office. 30 V. c. 48, s. 206 ; 40 V. c. 7, Sckd. A (174). 258 The Council shall, upon the rejMJrt of the Auditors, ^^^S?*"^ finally audit and allow the accounts of the Treasurer and Anally, 4c. Coilectoi'S, and all accounts chargeable against the Corpora- tion ; and in case of charges not regulated by law, the Coun- cil sliall allow what is I'easonable (k). 36 V. c. 48, s. 207. 269. Unless otherwise pi'ovidcd, every Coxxnty Council Audit of shall have the regulation and auditing of all moneys to be ™^d%y paid out of the funds in the hands of the County Treasurer (l). Twaaurer. 36 V. c. 48, s. 208. {h) See note (j to sec. 240. (i) The right to inspect the Auditors' report is extended to " any inhabitant or ratepayer." The diflference between an inhabitant and a ratepayer is, that "inhabitant" means a resident, whether a rate- payer or not, and that a "ratepayer" is a person who pays taxes, whether a resident or not. See Tlie Ki.ij v. North Curry, 4 B. & C. 961. Jklere colourable residence is insufficient to constitute a person an inhabitant. The King v. Sargent, 5 T. R. 4G6 ; The Kinq v. Duke of Richmond, 6 T. R. 560 ; Britce v. Bruce, 2 B. & P. 229, n ; The Kingv. Mitchell, 10 East. 511 ; Whithorn v. Thomas, 7 M. & G. 1. {)) The word shall, as here used, is imperative as regards the officer upon whom the duty is cast. See note ij to sec. 240. (i) Notwithstanding the use of the word "finally" in this section, it is believed that the Corporation may, on the discovery of fraud or mistake, recover moneys due to them on accounts audited, although according to the report of the Auditors nothing is due, and notwith- standing the allowance of the accounts upon the basis of the supposed correctness of the audit. See note/ to sec. 255. (I) The Council is to have the regulation and auditing of all moneys to be paid, &c. The word "regulation" appears to refer to an order prior to payment, as does thg word " auditmg" refer to an ■k . \\ "■H V; ( ^ I ■;jf ft ■ f, t r.-^ 196 THE MUNICIPAL MANUAL. [ss. 260-262. Audit of ao oounts ia cities. In other Mu- nidpaiities. 260. In Cities and Towns the Council may also appoint an Auditor, who shall, daily or otherwise as directed by the Coiuicil, examine and report and audit the accoimts of the Corporation, in conf onnity with any regulation or by-law of the Council (m) ; and in other Municipalities the Auditors shall also, monthly or quarterly, as directed by by-lav examine into and audit the accounts of the Corporation (n) 36 V. c. 48, s. 209. Appoint- 261. Notwithstanding anything iu this Act, the Council STStora by of the Coi-poration of the City of Toronto shall, during the the City of month of December in each year, appoint two Auditors, (o) Toronto. gg y ^ ^y^ ^ ^ Monthly 262. Notwithstanding as aforesaid, (p) the Auditors for the said City shall every month, commencing at the end of the first month in the following year, and so on to the end of such year, examine and repoi-t upon all accounts affecting the Corporation, or relating to any matter under its control or within its jurisdiction, (q) 35 V. c. 77, s. 2. act done after payment. The Council have, under section 258, a feneral power to finally audit and allow all the accounts of the 'reasurer, &c., and all accounts chargeable against the Corporation. (m) There was nothing in the old law to prevent a daily audit; but as regards Cities and Towns, there is now in this sectiou an express declaration that the Auditors shall, "daily or otherwise," as directed by the Council, examine, report and audit accounts. The person appointed would, it is presumed, be subject to the disqualifications mentioned in section 254. As to the effect of the audit, see note/ to sec. 255. (n) In rural Municipalities the accounts are not usually as numer* 0U8 as in Cities and Towns. While in the case of the latter the audit may be "daily or otherwise," in the case of other Municipahties it may be " monthly" or "quarterly," as directed by by-law. (o) The general power is for the Council of a City or Town to appoint an Auditor. Sec. 260. The exception, as two Auditors in the case of the City of Toronto, is because of the magnitude and muLiplicity of the yearly accounts of that Municipality. One of the advantages of having two Auditors is, that where they act indepen- dently of each other they may check each other's wo'-k. (p) See the last note. (7) The words "under its control or within its jurisdiction" may give rise to some question. Thus, for example, it is the duty of the Council of the City to raise by taxation money required for public j education or for police purposes, but the Council has no discretion as to ^he amount. This being so, it cannot well be said that Pubw School Board moneys or Police Board moneys are either under the 88.263,264.] VALUATORS. 197 263. The said Auditors shall discharge the duties imposed Annual upon Auditors by the two hundred and fifty-sixth section of •*"'*• this Act (r) within one month after the thirty-first day oi' December in each year, (s) 35 V. c. 77, s. 3. re- property. Division VI. — Valuators. Ap2)ointment and Duties. Sec. 264. 264. The Council of every County may appoint two or S'"'"*}J more Valuatoi-s for the purpose of valuing the real property appint ""^ within the County, whose duty it (shall be to ascertain, in their* dS'ies. «very fifth year at furthest, the value of the same in the man- &o. ner directed by the County Council ; but such Valuatore shall not exceed the powera jiossessed by the Assessors ; and the valuation so made shall be made the basis of equalization of EquaHw- the real property by the County Council for a period not *'**" °' ''"' exceeding five years ; and the equalization of personal pro- perty shall be as heretofore, {a) 36 V. c. 48, s. 210. control or within the juriadiction of the City Council. Yet, in the interest of the ratepayers, it would seem only proper that the repre- sentative body who raise the money should have some control over its expenditure. (r) See notes to sec. 256. («) See note g to sec. 240. (a) Before the Act of 1866, a County Council arrived at the value of lands situate in the several local Municipalities of the County, merely by a process of equalization on an assumed or arbitrary valuation, with the object of producing a just relation between the different local Municipalities without reducing the aggregate valua- tion of the whole County. This was found unsatisfactory, and for remedy section 175 of the Act of 1866.wa8 enacted. The appoint- ment of County Valuators is the main feature of the remedy, and is left discretionary with the County Councils. The purpose of the appointment is "the valuing the real property" in the County. The duty of the Valuators, when appomted, is to ascertain the value "in the manner directed by the County Council," but on this stipulation': that they (the Valuators) are not to "exceed the powera possessed by Assessors." The valuing may be as often or as seldom as the County Council see fit, provided it be done in every fifth year [ at furthest. It is not supposed that a valuation will be necessary every year. But in some localities real property fluctuates in vpJiue Kore than in others, and so, within the limit mentioned, a discretion is vested in the County Council. The section has reference only to real property. The equalization of personal property remains as heretofore. M' r 198 Declaration of office by certain offloen. Declaration of qualiflca- tion. form of. THE MUNICIPAL MANUAL. [8. 265. Division VII. — Duties of Officers Respecting Oaths and DECLAKATIONd. Declarations of ojice and qualijication. Sees 265-267. Before whorn viade. Sec. 268. Persons to administer oatJis and declarations. Sec. 269, Record and deposit of. Sec. 270. Oaths respecting matters before Council. Sec. 271. Penalty for refusing office, or not making or refuabvg to administer declarations. Sec. 272. 265. Every person elected or appointed under this Act (i) to any office reqiiii'ing a qualiiication of property in the incumbent (e) shall, before he takes the declamtion of office, or eaters on his duties, (d) make and subscribe a solemn declaration to the effect following : (e) I, A. B., do Bolemnly declare that I am a natural-bom (or natur- alized) subject of Her Majesty ; and have and had to my own use and benefit, in my own right (or have and had in right of my wife, as the case mny he), as proprietor (or tenant, as the cane may he), at the time of my election (or appointment, an the cane may require), t« the ofKce of hereinafter refeireJ to, such an estate as does nuahfy me to act in the office of (ttam'wj the office) for (namhnj the place for which such person has been ekded or appointed), and that such estate is (the nature of the estate, to U specified, as an equitable estate of leasehold or ofhenvise, as the cm may require, and if lain/, the same to he desiffnated by its local descrip- tion, rents or otherwise), and that such estate at the time of my election (or appointment, as the case may require) was of the value d at least (sj ecifyiny the value) over and above all charges, liens ani encumbrances affecting the same. 3G V. c. 48, s. 211. 88. 266-268.] DEC (b) ''Elected or appointed." As to the diflference see note (i to sec. 178. (c) This applies to members of the Council. See sec. 70. (d) The election of a head of the Council is " a duty," within tlie meaning of this section. See In re Hawk and Ballard, 3 U. C. C. P. 241. (e) Notwithstanding the use of the word "estate" in the form of declaration of office, a member of a Council is nevertheless qnalitied if the rating of the value on the roll be sufficient in amount. JifijiHa ex ret. Bole v. McLean, 6 U. C. P. R. 249. It was attemptctl to unseat a member of a Council on the ground thjit ho had not, iu lus declaration of office, specified the nature of the estate ; hut it was held that such an objection could not be made a ground for botting aside an election under the summary provisions of the statute. Tht C,'< en ex rel. Halsted v. Feiris, G U. C. L. J. N. S. 266. Besiiles, it is to be observed that there is no declaration in the statute tu the (;/) See sees. 235, 256, 257, 88. 266-268.] DECLARATIONS OF OFFICE. 199 266- Every Returning Officer, Deputy Returning Officer Declaration and Poll Clerk, every member of a Municipal Council, every ^rtSn'oSl Mayor, and every Clerk, Assessor, Collector, Constable and <»»• other officer appointed by a Council^ (/) shall also, before entering on the duties of his office, make and subscribe a solemn declaration to the effijct following : I, A. B., do solemnly promise and declare that I will truly, faith- Form of fully anil impartially, to the beat of my knowledge and ability, declMation execute the office of (inserting the name of the office), to which I have " ° "*' been elected (or appointed) in this Township (or as the case may he), and that I have not received, and will not receive, any payment or rewanl, or promise of such, for the exercise of any partiality or malversation or other undue execution of the said office, and that I have not by myself or partner, either directly or indirectly, any interest in any contract with or on behalf of the said Corporation. 36 V. c. 48, s. 212. 267- The solemn declaration to be made by every Auditor Auditor's d«- . ,'„ , , ,, "^ •' claration. {g) shall be as follows : I, A. B., having been appointed oo the office of Auditor for the Form of. Municipal Corporation of , do hereby promise and declare that I will faithfully perform the duties of such office according to the best of my judgment and ability ; and I d( solemnly declare, that I had not directly or indirectly any share or interest whatever in any contract or employment (except that of Auditor, if rf-tt\}]mntfd) with, by or on behalf' of such Municipal Corporation, during' the year preceding my appointment, and that I have not any such contract or employment, except that of Auditor for^the present 36 V. c. 48, s. 213. 268. The head and other raembei-s of the Council, and the ^^f^yo"" suljoidinate officers of e/ery Municipality, shall make the to be made. effect that an omission to take the declarations required shall be a fnrfeiture of office. See The Queen v. Humphrey, 10 A. & E. 335. A refusal to take the oaths of office has been held equivalent to a refusal of the office. The Kmg and Queen v. Lanoood, Carthew 306 ; Esi'kr V, Starve, 2 Show. 158 ;' .S'. C. In P>ror, 3 Lev. 116. Upon the liidarationa being made, the office becomes full, de facto. The King V. ^icijn', 10 B. & C. 486 ; The King v. Winchester, 7 A. & E. 215. Before the Court will entertain an application for a quo warranto, it must be made to appear that the declarations required by tliejstatutes weremaile. The Queen v. Slatter, 11 A. & E. 505; see, also, 7Vie Kingv. Tate, 4 East. 337. See further, note n to sec. 272. (/) For corporate purposes there may be an implied power to appoint officers where appointment is not expressly authorized by the statute. See note r to sec. 235. This section extends to all officers appointed by the Council, whether officers named in the statute or not. ( How en* forced. SalarieB of officers. THE MUNICIPAL MANUAL. [g. 273. the declarations of office and qualification within twenty davs after knowing of his election or appointment, (q) and every person authorized to administer any such declaration, who upon reasonable demand refuses to administer the same, (r) shall, on summary conviction thereof before two or more Justices of the Peace, forfeit not more than eighty dollars, nor less than eight dollars, at the discretion of such Justices, to the use of the Municipality, together with tLe cost of prosecution. (») 3G V. c 48, s. 218. & 273.] SAI Division VIII. — Salaries, Tenure of Office and Security. Ifnoi otherwise settled, Council to fix salaries. Sec. 273. Tenure of Office. Sec. 27 i. Gratuities to retinng Officers. Sec. 275. Securitij to be given by. Sec. 276. Ofences. 29-30 V. c. 51, s. 187, 188. 273. in case the remuneration of any of the officers of the Municipality (a) has not been settled by Act of the Legisla- (q) Casual information is not sufficient. Before an elected officer can be visited '', ith heavy penalties, imposed for neglecting to accept his oltice, he must have regular notice of his own election, either by being actually present when it is announced, or being apprised of the fact by some official authority. Per Denman, C. J., in f/ic Queen y. Preece, 5 Q. B. 97 ; see also Loudon v. Vunacre, 1 Salk. 142. (r) The administering of the declaration is purely a ministerial 1 t. But it liaa been held that the person administering it so far u quiesces aa to disentitle himself to be a relator in proceedings to set aside the election. The Queen v, Greene, 2 Q. B. 4(50. (h) This section does not declare that the payment of the fine shall be in lieu of service. Mere payment of the fine is not any excuse for non-acceptance of the office. See The King v. Bower, 1 B. & C, 585, and The Queen ex rrl. Bkmlell v. Boche.'iter, 7 U. C. L J. 101. Nor is it declared that the omission to take the declaration within the time limited shall be a forfeiture of office. The Queen « rei. Forsyth v. Dolsen, 7 U. C. L. J. 71. (a) Under a power to remunerate all "township officers," it win held that Municipal Councillors had no authority to remunerate themselves. In re Writjht and Cornwall, 9 U. C. Q. B. 442 ; Danieli v. Burford, 10 U. C. Q. B. 478 ; East Nisnouri v. Horseman, 16 U. C. Q. B. 57r» And it was made a question whether the Warden of a County, or Mayor of a City, is to be deemed an officer, so as to be entitled to remunerivtion aa such. The Queen v. Gore, 5 U. C. Q. B. 357 ; In re McLean and Cormoall, 31 U. C. Q. B. 314. But now Buch questions are to some extent set at rest ; for the Council of every Township and County may pass By-laws for paying the mem- tiire, (b) the Council i shall provide for th( whether the remunerai of the Council, (c) bers of the Council for th the head of the OouncU of Village may he paid such (.'ouncil sees fit. Sec. 224 [h] Where a Municipal to the Clerk of the Peace fees,' it was held that tl allowed by the Jury Act, subse(iuently in the same B. '2M, (teneral powers t its officers, does not autho specitically fixed by their C Lom, 9 Mo. 190. So, if t tix the remuneration of Cr another l)oard to do so. P In re Prince and Toronto, \ {••] Municipal officers an rij,'ht to compensation is ej tiun or contract. Jones v. Smimni, 2 Dowl. N. S. 47( iml, Rod- Island and St. Li wIMi'U, 13 Gray (Mass. jil7 ; (larnter v. St. Louis, 3 ;i-'i; I'eoiilc v. Supervisors, n Paige (N.Y.)69G;Jfm'y I lukil Slates, 2 Story (C. C! ) Biirhn v. Xew Orleans, 16 P.i. St. 335 ;.!/(•( 7«„^v. St s U. 284 ; Lamjdnn v. Crw, j made for their remuneratio Kjisation, extra the salary, I official duties : Andreivs v. I I Xew York, 2 Sand. (N. Simrr V. Pray, 7 Serg. & R ;w.,lHill(N. Y.).S62; ] fm;i V. Trenton, 4 Zabr. (J 2ne,i,J(X.Y.)257; J/«;, Cow .N .Y.) 531; Z?o,W«/c M.i; linyht V. Supervisors, U 1- Iowa 413; Carroll y. St jt has Iwen held that a pror w or regulation on the si wieeshave been rendered \'''l(ftv. Mann, 15 Wend. (N y.Sewen, 1 Chit. 175; Dew Kamp. 218, Bilke v. ffnvek Cames (N.Y.) 104; Prestc 1ltoo,/.,l Pick. (Mass.) 175; 273.] SALARIES OF OFFICERS. hire, (6) the Council shall settle the ssme, and the Council shall provide for the payment of all municipal officers, whether the remuneration is settled by statute or by by-law of the Council, (c) licra of the Council for their attendance in Council, sec. 223, and so the head of the Council of every County, City, Town or Incorporated Village may be paid such annual sum or other remuneration as the Cuiincil sees fit. Sec. 224. ('() Where a Municipal Council, in 1850, passed a vote assigning to the Clerk of the Peace a fixed salary for tliat year ' ' in lieu of all fees," it was held that this did not cfebar him from claiming fees allowed by the Jury Act, 13 & 14 V^ict. cap. 55, which was passed gubseciuently in the same year. Prbujle. v. McDonald, 10 U. C Q. R. 254. (teiieral powers to a Corporation to fix the compensation of its officers, does not authorize it to take away the fees of an officer specitically fixed by their Charter or Act of Incorporation. Vnrr v. St. Loiiin, 9 Mo. 190. So, if the IjCgislature provide that one board shall tix the remuneration of Corporation officers, it is not compotont for another ])oard to do so. Piuple. v, Andltorx of Mmjne, 13 Mich. 233 ; In re Prince and Toronto, 25 U. C. Q. B. 175. (ij Municipal officers are not entitled to compensation unless the right to compensation is expressly given by statute, by-law, resolu- tion or contract. Jones v. Cartnartnen, 8 M. & W. G05 ; Thotnas v. .yTOH*v(, 2Dowl. N. S. 470; The Queen v. Pred, 16 Q. B. .32; Rnck- funl, Ruck l.'iland and Si. Louis li. W. Co., v. Saije, 16 Am. 587 ; Slkea V. Ihtfu'ld, 13 Gray (Mass.) 347 ; Burton v. New Orleans, 16 La. An. HI" ; (larnkr v. St. LouU, 37 Mo. .'j.'H; see also Baker v. Utlcn, VJ N. Y. '.&'); I'l'Ojile V. Supervisors, 1 Hill (N.Y.) 3()2 ; Cumniimi v. Brooklyn, 11 1'aige (N.Y.) 596; Jersei/ v. Quaife, 2 Dutch (N.Y.) 63 ; Andrews v. Unihl States, 2 Story (C. C. ) 202 ; United States v. Brown, 9 How. 487 ; Bartun v. Xew (Jrkans, 16 La. An. .395 ; Smith v. Connnonvealth, 41 Pa. St. 335 ; McVluny v. St. Paid, 14Min. ^20;Boi;den v. lirookline, SVt.284; Lanijdon v. Castleton, 30 Vt. 285. And where provision is made for their remuneration by salary, they have no claini for com- pt^iisation, extra the salary, for services alleged to be outside of their oieial duties : Andretvs v. United States, 2 Story (C.C.) 202; Palmer I V. Xm York, 2 Sand. (N. Y.) 318 ; Oilmore v, Lewis, 12 Ohio 281 ; I BiWirr v. Pray, 7 Serg. & Rawle (Pa. ) 447 ; see also Peoj>le v. Super- I rww, I Hill (N. Y.) 362 ; Wendell v. Brooklyn, 29 Barb. (N.Y.) 204 ; ImM v. Tcfuton, 4 Zabr. (N. J.) 764 : but see People v. Sujtervisors, ' """ " ----- 2 1" Iowa 413 ; Carroll v. St. Louis, 12 Mo. 444 ; and for this reason it has l)een held that a promise to pay extra the sum fixed by By- law or regulation on the subject, is not binding, though greater hrvices have been rendered than could have been legally exacted, ll'ikh V. Mann, 15 Wend. (N. Y. ) 44 ; Batho v. Salter, Latch 54 ; Lane f. SViw//, 1 Chit. 175; Dew v. Parsons, Ih. 295 ; Morris v. Burdett, ICami). 218, Bilke v. Havelock, 3 Camp. 374 ; Callaqnn v. Hallet, 1 |Caines. (N. Y.) 104; Preston v. Bacon, 4 Conn. 471; Shattuck v. 'ttw/«, 1 Pick. (Mass.) 175; Bimier v. Pray, 7 Serg. & Kawle. (Pa.) 20» ■? n 204 THE MUNICIPAL MANUAL. [s. 273. Mo<)e of ap- pol itmcnt. Iln m 2. No Municipal Council shall assume to nmko anv ai>f>ointincnt to office, or any arrangement for tlio (lisclifii'.; of the duties thereof, by tender or to applicants at the lowest remuneration, (d) 36 V. c. 48, a. 219. 447 ; Smit/i v. ^milh, 1 Bailey 70 ; C'lrroU v. I'yler, 2 Har. 4 OilL (M(l.) 54 ; JMxiU V. Cincinnati, 7 Ohio St. 237 ; Pilie v. NewOrHwi, 19 La. An. 273, and, indeed, in the interest of the [iublic the rule bai been carried so far as to prevent a Municipal officer recovering a reward for a service embraced within his official duties, such as the capture of a thief l)y a Constable. Gibnore v. Lewix, 12 0hio2.SI; J'ootv. lioHton, 5 Cush. (MasM.) 219. .Salaries, when voted, should b* given as salaries, and not as acts of /^race or mere rewards for merit. Jn re McLvan and Vorinviill, .Si U. C. Q. B. .?14 ; Henhp v. Sacmmentn, 2 Cal. 580 ; Smith v. Conunonwf.nllh, 41 Pa. St. 336 ; Decoy v. S"; York; .S9 Barb. (N.Y.) KJO; Jitaden v. Philadelphia, GO Pa. ot. 4W; Philadel))hia v. Given, Ih. 1.36. By-laws fixing salaries are not, ;«t«', to be looked upon as contracts. Common weal fh v. Bacon, (i Serg, t Kawle. (Pa.) .322; /itu-ivr v, Piftuhimj, 4 Pa. St. 49; UnicemUjs. Waldvn, 15 Ala. 055 ; Carry. St, Louis, 9 Mo. 190; Commouwmltky, Mann, 5 W. & S. (Va.) 418; Madinon v. Kelm, 32 Ind. 79; Sm\lh\. County, 2 Par. (Pa.) 293; Conner v. Sew York, 1 Seld. (N.Y.) 285; Warnrr v. Pen^de, 2 Denio. (N.Y.) 272 ; [owa v, Foi^ter, 10 Iowa 189; Wald raven \. Meniohin, 4 Coldw. (Tenn.) 431 ; Ilohoken v. (lmr,i Dutch. (N. J.) 2()5 ; but see CVioxe v. Lowell, ^ Gray (Mass.) 3.1; Carerleifv. Lowell, 1 Allen (M.aas. ) 289; ffiestand v. Aeiv OrlfUiiK, H La. An. 330. The Corporation may in^'. 3 Denio. (N.Y.) .381 ; Peoplev. Lawrence, GHill. (N.Y.)2-H; Bank v. Supervisurn, 5 Denio. (N.Y.) 517 ; Merrill v. Plamjiehl, 4r)N. H. 12(5 ; Vincenty. Nantucket, 12 Cush. (N.Y.) 103 ; Pike v. Middkhn, 12 N. H. 281. An indemnitjr to an officer for lawful acts gives hire no claim for compensation against the consequences of unlawful acts. Jrwin v. Mariposa, 22 U. C. C. P. 367 ; A By-law to indemnify » Councillor for the coats of a contested election would be illegal, h re Bell andManvers, 2 U. C. C. P. 507, 3 U. C. C. P. 400. An agreement bv a Corporation with o*"" '>f its officers for an increase of the salary of an office retained by L n .iS compensation for the loss of an office of •which he was deprived, is not l)inding unless under the seal of the Coq)or;aion. The Queen v. Stamford, 6 Q. B. 433 ; see also Cope v. Thames, tl-c. Dock and Railroad Company, 3 Ex. 841. So the appointment of a Corporation Solicitor should be under the Cor- poration Seal. Arnold v. Poole, 4 M, & 0. 860. A Town Clerk, if a solicitor, may have a lien on papers of the Corporation, with respect to which he has done work as an attorney or solicitor. The Kiii'j v. ■ Sankey, ," A. & E. 423. {(I) The lowest tender is not always the most satisfactory for &274.] TENURE OF OFFICE. 20» 274. All officera appointed by a Council («) shall hold office Tenure of until removed by the Council, and shall, in additinf to tho "**'•• duties assigned to them in this Act, jK'rfornv all c. .uties rdiuirwl of thcni by any other statute, or by the by-laws of " *** tlic Council. (/) 36 V. c. 48, a. 220. acceptance ; ami so much has this been found the ca6o in the ntanage- mento' Miinicipal affairs, that tho liegislatnro has been compolled to interftre, and make tho declaration tliat " ^Vo Municipal C'i)Uiicil fhiill aiHiime to make anj/ appointment to otHce, or nni/ arrniigeuunt fur the (liBcharge of the duties tliereof, by tender," &c, Poor pay, piHir service, is generally the rule, (iood servants are deserving of gftihl pny ; and good pay to good servants will, in tho long run, bo fouiul to be true economy. [() This section applies to all oUictira ajjpointed by tlic Council, no iDiitter what their rank, ccmditicm, or duties. Their tenure is in effect during the pleasure of the I'ouncil. The declaration that they are toboldolHce "until removed by the Council," impliedly authorizes tbu Council to rcjuove them at any time — in other words, at tho jkajiure of the Council. Unless, at all events, there be an appoint- imnt at a yearly salary under the corporate seal, or other appointment hum wliich a yearly hiring must be uiferred, there will be no holding exct'iit during the pleasure of the Council. See In re Mnrphcrmu and B'mmi, 17 U. C. Q. B. 1)9 ; Bcrerln/ v. Jiarfon, 10 U. C. C. P. 173. See furtiier llammoml v. McLay, ii'8 U. C. Q. B. 4fi3. Where the appointment is under scial, it may be held binding on the Coq^onvtiou without proof of a By-law. lirouijhton v. Ihunitford, 19 U. C. C. P. 434. A pt-rson, therefore, who enters into the employ uient of a Municip.il ( iirporation, nmst be taken to do so with the fullest knowledge of his dependence on the pleasure either of the present or every future I'ouncil. Hkkeif v. HenJ'reir, 20 U. C. C. P. 429. In such a ease it is in the power of the Council to remove without notice or hearing. See Baiftfs due, 1 1 Coke 98 (h) ; The Kinq v. Coventri/, 1 Ld. Rayd. 391 ; (j'uHkins'H Cane, ST. R. 209 ; The Kin;/ v. Oxon, 2Salk. 428 ; The A'i«7 V. Mayor, Jix., 1 Lev. 291 ; The Kimj v. Andover, 1 Ld. Rayd. 'i\0;Fu'ldv. Commonwealth, 32 Pa. St. 418; Ex parte Ilennen, 13 Pet. (U.S.) 230 ; Hoboken v. Gear, 3 Dutch. (N.J.) 2(55 ; MadUonv. Kelno, 32 Ind. 79 ; Stadler v. Detroit, 13 Mich. 346. But the officer removed, altliough not appointed under seal, should be paid for the time he OTved. Dempmi v. City of Toronto, 6 U. C. Q. B. 1. Where a Municipal Corporation appoints an officer, in obedience to a statute t ■> ?> Hiotographic Sdences Corporation 33 WEST MAIN STREET WEBSTER, N.Y. 14SS0 (716)S72-4S03 206 ,.i THE MUNICIPAL MANUAL. [SS. 275, 276. 276.] £ME A gratuity 275. Any Municipal Council, other than a rrovisional i™ Mrtain^"" Council, may gi-ant "to any officer who has been in the sunice cases. of the Municipality for at least twenty years, and who has while in such service, become incapable through old age of efficiently discharging the duties of his office, a sum not ex- ceeding his aggregate salary or other remuneration for the last three yeara of his service, as a gratuity upon his removal or resignation, (g) 36 V. c. 48, s. 221. Corpora- tionf, &Cm may accept security of certain Com' panics for their officers. Provisions respecting such security to apply. 276. The bonds or policies of guarantee of any incorpo- rated or Joint Stock Company, empowered to grant guaran- tees, bonds or policies for the integrity and faithful account- ing of public officers and other like purposes, may bo accepted instead of, or in addition to, the bond or security of any offi- cer or servant of any Municipal Corporation, in all cases where, by the provisions of this or any other Act or of any by-law of such Corporation, such officer or servant is required to give security, either by himself, or by himself and a surety or sureties, and where the parties directed or authorized to {(j) As Municipal officers hold office until removed (sec. 274) a removal may be bad for any cause, or without cause. See note e to sec. 274. If the power of removal were only for cause, old age would not be good cause. Bac. Abr. Corp. E. 9 ; Hazard's Cmt, 2 Kolle 11. But as the holding is different, an old servant might be dismissed simply because old and worn out in the service. In such a case without legislation, there is no power in a Municipal Corpora- tion to grant a gratuity. The policy of enabling Municipal Corpora- tions to make gratuities to servants is a doubtful one. This section is merely experimental, and the power intended to be conferred by it can only be exercised in the case of an officer — 1. Who has been in the ser\rice of the Municipality for at least twenty years ; 2. And who has, while in such service, become incapable, througli 1 old age, of efficiently discharging the duties of the office. Service for any period less than twenty years, or incapacity from any other cause than old age, gives no right to the exercise of tiie power. The amount of the gratuity, which is to be paid in bulk, must be a sum " not exceeding his aggregate salary, or other remu- neration, for the last three years." The gratuity is only to be paid on removal or resignation. The decision as to a gratuity, when made [ under the circumstances and within the limits prescribed, will not I be subject to be reviewed by any Court. Re The, Queen v. Samhclch, j 2Q. B. 895, S. a III Error, 10 Q. B. 563. There is a distinction between gratuity and annuity. See Oibson v. East Indian Co., o\ Bing. N. C. 262 ; Clarke v. Imperial Gas Co., 4 B. & Ad. 315; Iml v. East Indian Co., 17 C. B. 351 ; Marchant v. Lee Co/werwyj Board, L. R. 8 Ex. 290. take such security se Company as aforesaii thereof; and all the such security, to be i his sureties, shall apj tee of such Company of, or in substitution directed or authorize^ existing securities shj 27-8 y. c. 7, s. 2. [The following ena< are made hj sections 1 EMBEZZLEI 187. All books, papers able securities respective employed by or on behalf of his office or employmei tion ; {j) and in case ai deliver up or pay over th. to any person authorized 1 deemed guilty of a fraudu prosecuted and punished iently embezzling anv c master; (I) but nothing porationorofanyother J (h) See notes to s. 246. , (i) The subjects of crin , passage of the B. N A Ai Je enactments here ann- ITiey have not been repeal '"/.^e^efore properly trea' I still m force. (i) So as to enable the ( the offence of embezzlemen ({) This is a most impc valuablesecurities, byany ^the Council, &c., Lpt , ^ration. In the next pL «ft.8e or fail to deliver „5 5 'fylfntemhezzle,nenttl institutes the offence. r( P'we, L. R. 2 C. C. 154. (0 See32-33 Vict. c. 21 ^11 s. 276.] EMBEZZLEMENT BY OFFICERS. 207 take such security see fit to accept the bond or policy of such Company as aforesaid, and approve the terras and conditions thereof; and all the provisions in any such Act relating to such security, to be given by any such officer or servant, or his sureties, shall apply to the bonds and policies of guaran- tee of such Company as aforesaid, which may be taken in.stead of, or in substitution of, any existing securities, if the parties directed or authorized as aforesaid see fit, whereupon such ^ndslnay existing securities shall be delivered up to be cancelled. (/*) be cancelled. 27-8 V. c. 7, s. 2. \The following enactments, creating criminal liabilites, (i) are made hy sections 187 avid 188 of 29-30, V. c. 51.] EMBEZZLEMENT OF BOOKS, MONEYS, ETC. 187. All books, papers, accounts, documents, moneys, and valu- Embeizle- able securities respectively, by any person or oflBcer appointed or ment by emploj'ed by or on behalf of any Council, kept or received by virtue njunicipal of his office or employment, shall be the property of the Corpora *'*'^' tion ; (j) and in case any such person or officer refuses or fails to deliver up or pay over the same respectively to the Coqioration, or to any person authorized by the Council to demand them, he shall be deemed guilty of a fraudulent embezzlement thereof, (k) and may be prosecuted and punished in the same manner as a servant fraudu- lently embezzling any chattel, money or valuable security of his master; {I) but nothing herein shall aflFect any remedy of the Cor- poration or of any other person against the oflender or his sureties, (h) See notes to s. 246. (i) The subjects of crime and criminal procedure are, since the passage of the B. N. A. Act, for the Legislature of the Dominion. The enactments here annotated were passed before Confederation. They have not been repealed by the Legislature of the Dominion, and are therefore properly treated by the Legislature of the Province as still in force. (j) So as to enable the Corporation to prosecute criminally when I the offence of embezzlement is committed. (i) This is a most important provision. It is in the first lA&ce I declared that all books, papers, accounts, documents, moneys, and valuable securities, by any person or officer appointed by or on behalf of the Council, &c., kept or received, are the property of the Cor- poration. In the next place it is declared that if any such person refuse or fail to deliver up or pay over the same, he shall be guilty of \ifrau(hknt embezzlement thereof , &c. Refusal or failure apparently I constitutes the offence, regardless of intention. See Regina v. I Prince, L. R. 2 C. C. 154. (0 See 32-33 Vict. c. 21s. 69. D. .!;*■ i 208 THE MUNICIPAL MANUAL. [s. 2T6. StealinK or destroying, &c., certain documents relating to municipal el(!ction8 to be felony. Punishment, or any other party ; nor shall the conviction of such offender be receivable in evidence in any suit, at law or in equity, against him. (m) STEALING WRITS OF ELECTION, POLL-BOOK, ETC. 188. If any person steals, or unlawfully or maliciously, either by violence or stealth, takes from any Deputy Returning Officer or PoU Clerk, or from any other person having the lawful custody thereof, or from its lawful place of deposit for the time being, or unlawfully or maliciously destroys, injures or obliterates, or causes to be wilfully or maliciously destroyed, injured or obliterated, or makes or causes to be made any erasure, addition of names or interlineation of names, into or upon, or aids, counsels or assists in so stealing, takinel destroying, injuring or obliterating, or in making any erasure, addi- tion of names or interlineation of names into or upon any writ of elec- tion or any return to a writ of election, or any indenture, poll-book, certificate or affidavit, or any other document or paper made, pre- pared or drawn out according to or for the purpose if meeting the requirements of the law in regard to municipal elections — (h) ever; such offender shall be guilty of felony, and shall be liable to Ik; imprisoned in the Provincial Penitentiary for any term not exceed ing seven nor less than two years, or to be imprisoned in any other place of confinement for any term less than two years, or to suffer (m) The civil remedy is to be distinct from, and indepeudeut of, the criminal procedure for punishment of the offender. (w) If any person — 1. Steals 2. Unlawfully or maliciously, either by violence or stealth, takes from any Deputy Returning Officer, or poll clerk, or from any other person having the lawful custody thereof, or from its lawful place of deposit for the time being ; 3. Unlawfully or maliciously destroys, injures or obliterates, or causes to be wilfully or maliciously destroyed, injured or obliterated ; 4. Makes or causes to be made any erasure, addition of names, or interlineation of names, into or xipon ; 5. Aids, counsels or assists in so stealing, taking, destroying, injur- ing or obliterating, or in making any erasure, addition of names, or interlineation of names, into or upon ; Any writ of election, or any return to a writ of election, or any | indcature, poll-book, certificate or affidavit, or any other document : or paper, made, prepared or drawn out, according to or for the pur- pose of meeting the requirements of the law in regard to Municipal elections, shall be guilty, &c. The words, "anj'- other document," &c., do not include the assess- 1 ment roU, which is the foundation of the poll-book and several of I the other documents mentioned. The Queen v. Preston, 21 U. C. Q- 1 B. 86. So that it has been held that an indictment will not lie for forging or altering the assessment roll for a township deposited wtn j the Township Clerk. lb. i 277.] JURISDICTION OP COUNCILS. 200 such other punishment by fine or imprisonment, or both, as the Court shall award ; (o) and it shall not in any indictment for any Jocu^j't such offence be necessary to allege that the article in respect of need not be which the offence has been committed, was or is the property of any stated. person, or that the same was or is of any value. PART VI. GENERAL PROVISIONS ARPLICABLE TO ALL MUNICIPALITIES. Title I.— Gexehal Juhisdtctiox of Councils. II.— Rkspkctixg By-laws. III.— Resfec'tixo Finance. IV.— Akbiteations. v.— Debentures and other Instruments. VI.— Administration of Justice and Judicial Proceedtnqs. Title I. — General Jurisdiction of Councils. DivasioN I. — Nature and Extent. Confined to Municipality. Sec. 277. Qmenil Regulations. Sec. 278. May not grant vionopo/ies. Sec. 279. Except as to Ferries. Sec. 280. 277. The jurisdiction of every Council (a) shall be con- jurisdiction Inned to the Municipality the Council represents, ex- °'' "=•>'*"'''''• 0) Two years common gaol would be illegal. |21U.U. Q. B. 215. The Queen v. Poioell, (a) The word "jurisdiction" is here used in the sense of power. I Municipal Corporations are the creatures of the Legislature. •• They J can exercise no powers but those which are conferred upon them by the Act under which they are constituted, or such as are necessary jto the exercise of their corporate powers, the performance of thair I corporate duties, and the accomplishment of the purpose of their lassociation. This principle is derived from the nature of Corpora- Itions, the mode in which they are organized, and in which their jiffairs must be conducted. In aggregate Corporations, as a general jnile, the act and will of the majority is deemed in law the act and JTill of the whole, or as the act of one corporate body ; the conse- jiliience is, that a minority must be bound not only without but |«gainst their consent. Such an obligjftion may extend to every joneroug duty, to pay money to an unlimited amount, to perform jiemces, to surrender lands and the like. It is obvious, therefore, Ithatif this liability were to extend to unlimited and indefinite objects, |4e citizen, ' y being a member of a Corporation, might be deprived Idi his most valuable personal rights and liberties. The security 27 'W ' \m 210 THE MUNICIPAL MANUAL. [8. !n. cei)t where authority beyond the same is expresslj given, (b) and the powers of the Council sliall be exer- against this danger is in a steady adherence to the principle stated, VIZ., that Corporations can only exercise their power over their respective members for the accomplishment of limited and detined objects." Per Shaw, C. J., in Spaulding v. Lovjell, 23 Pick. (Mass.! 71. See further, Bangt \ . Snoio, 1 Mass. 181; WiUm-d v. Xetrliunj- port, 12 Pick. (Mass) 227 ; Stetson v. Kempton, 13 Mass. 272; K-ijn V. Wenfford, 17 Pick. (Mass.) 273 ; Cojnwjoniom/^/t v. Turner, 1 Cuah, (Mass.) 493; Coolly v. Greriville, 10 Cush. (Mass.) 56 ; Men'wm \. Moody, 25 Iowa 163 ; Lnfayette, v. Cox, 5 Ind. 38 ; Minturn v. Lurw, 23 How. 435 ; Bain v. Spratley, 5 Kansas 525 ; Vincent v. yantiirl:it, 12 Cush. (Mass.) 103; Comniixulunera v. Mifjheln, 7 Ohio St, 109; Gallia Co. v. Ilolcomb, lb. 232 ; Fitch v. Pinckard, 4 Sciim, (111) 78; Caldwell v. Alton, 33 111. 416; Trustees v. McConndl, 12 111, 140 ; State v. Mayor, 5 Port. (Ala.) 279 ; State Bank v. OrkamSm: Co., 3 La. An. 294; Head v. Ins. Co., 2 Cranch. (U.S.) KiS; /J^ Russeyv. Davis, 13 La. An. 468; People v. Bank, 1 Doug. (MicL) 282 ; City Council v. Plank Pioml Co., 31 Ala. 76 ; Ex parte Biimti,^ Ala. 461 ; Le Conteulx v. Buffalo, 33N. Y. 333 ; People v. Railroad r,;., 12 Mich. 389 ; Petersburg v. Metzker, 21 111. 205 ; Neiv Lomkn v, Brainanl, 22 Conn. 552 ; Hodge v. Buffalo, 2 Denio, (N.Y,) 110; Mayor v. Yuille, 3 Ala. 137 ; Harris v. Intendant, 28 Ala. 577 ; InH- dant v. Char.dler, 6 Ala. 899 ; Ctor^- v. Davenport, 14 Iowa 495 ; JWiol V. Mayor, d-c, 9 Hump. (Tenn.) 252 ; Leonard v. Canton, SoML'i 189; JJoaijlas v. Placerville, 18 Cal. 643; Argentl v. (S'rt/i /Va^nVo, 1 16 Cal. 255 ; JFa/Zftce v. «<. Jo«', 29 Cal. 180 ; Collins v. Jhikh, HI Ohio 523 ; Willard v. KiUingworth, 8 Conn. 247 ; A'yfe v. J/fl/i;/,S| Ind. 34. See further, note k to sec. 8. (h) A Municipality, whether a County, City, ToM'nship or Village, I is a locality ; and the Municipal Council is the governing body ot that locality. Beyond the limits of the locality the Council has not I in general any authority whatever. For this reason, the section begins by declaring that " the jurisdiction of every Council shall kl confined to the Municipality the Council represents." See note/to I sec. 14, and note u to sec. 18. Thus a Township Council has no! power to impose any regulations on a Township of which it is not! the Council. So of every other local Municipality. The propofiitioaj is so reasonable and so self-evident that no authorities are needed tol sustain it. Nor can one Municipal Council, in general, benefit! another Municipality at the expense of its own ; for instance, baildj a school-house in a Township of which it is not the representative. p This too is an unmistakable proposition, but as between Township and Counties, not so clear as the preceding. For many purposes i Township is within the jurisdiction of the Council of the County i which it is situate, and is subject to be taxed for County purpusf by the County Council ; but the right of a Township Council to ti itself in aid of the County is limited. It would seem that a TownJ ship Council has no right voluntarily to pass a By-law imposing r rate in aid of a County rate. Fletcher v. Euphrasia, 13 U. C. Q. B 129. So the right of a Township Council to pass a By-law in aido the cost of a school-house ordered by the County Council is doubtri Kennedy v. Sandwich, 9 U. C. Q. B. 326. A Township By-Lw «-al ^I! s. 27".] POWERS TO BE EXERCISED BY BY-LAW. 211 oJKpd l>y by-law (c) when not otherwise authorized or pro- vided for. (d) 3G V. c. 48, s. 222. nil luaslieil as to so much of it as related to the raising of a sum of nil nev to defray the demands of the County Council on the To wn- sliiii, «nd as an eciuivalent to the Government school grant, &c. , it nut appearing on the face of the By-law that it was directed to the irirpiise of meeting a deficiency, nor even that there was any, if that wuiiM have authorized the By-law. Fletcher v. Euithrasla, 13 U. C. Q. B. 129. ic] The jurisdiction of every Council is not only to be confined to tl,. .Municipality the Council represents, but is to be exercised, M'hen DMt (ithurwise provided for, by By-law. When a Corporation is duly erc;ted, the law tacitly annexes to it the power of making By-laws or iirivate statutes. This power is included in every Act of Incor- pomtion; for, as is quaintly observed by Blackstone, "as natural rekiiu is given to the natural body for the governing it, so By-laws or statutes are a sort of political reason to govern the body politic." 1 Bl. Com. 476. Though the power to make By-laws is unquestion- ably an incident of every Corporation, it is rarely left to implication ; but is usually, as in the present case, conferred by the express terms oftlie Act of Parliament. According to Lord Coke, tlie word " by " or " bye " signifies a habitation. Willcock on Municipal Corpora- tions, 73. Hence i?//-law or Bi/e-lsxw may be defined as being the law of the inhabitants of some Corporate place or district, as distinguished ; from the general law of the Province in which the Municipality is i situate. A By-law is a rule obligatory over a particular district, not biing at variance with the general laws, and being reasonably adapted I to the purposes of the Corporation. Gosling v. Vdey et aJ,, 19 L. J. Q. B. N. S. 135. A By-law has the same force, within the limits of the Municipality, and with respect to the persons upon whom it law- ' lly operates, as an Act of Parliament has upon tlie people at large. lllifkiiw v. Swansea, 4 M. & W. 621 ; see also The Queen v. Osier, 32 1 1'. C. Q. B 324 ; Heeland v. Lowell 3 Allen (Mass.) 407 ; Presbyterian mwchw.Neto York, 5 Cow. (N.Y.) 5.38; .S'^. Loiiisx. Boffimjcr, 19 Mo. ukikDermottv. Board of Police, 5 Abb. Pr. 422 ; Taylor \. Varonde- ht, 22 Mo. 105 ; Baker v. Portland, 10 Am. Law Reg. N. S. 559. The jCnirts, upon general principles, recognize judicially what Municipal jCuuncils are competent to do, and hold that it is not necessary for Ithem to recite in a By-law all that is requisite to show that they have Ipriiceeded regularly in passing it. Orierson v. Ontario, 9 U. C. Q. B. J.I ; fw/ier v. VaiKjhan, 10 U. C Q. B. 492 ; see further, The King |v, Harmon, 3 Burr. 1328 ; Roman Catholic Church v. Baltimore, G |Gill(Mil.)394; Stuyveysanl v. New York, 7 Cow. (N.Y.) 588. W) It is a common belief that a Municipal body can do by resolu- n whatever may be done by By-law. Nothing can be more fcrroneous, or more tend to the insecurity of Municipal government. ^ThQueen exrel Allemaing v. Zoeger, 1 U. C. P. R. 219. The bneral principle known to the common law is that a Corporation can Ny act through its seal, and the express declaration of the Legisla- pre here is that "the powers of the Council sJiall be e' ercised by p.vlaw when not otherivise authorized or provided for." But among wple generally, and among that class composing Municipal Councils * 1 r3' 212 General power to mako regu' lationa ; THE MUNICIPAL MANUAL. [«• > •? 278. Every Council may make regulations (e) not H))(.citi- cally provided for by this Act, and not contrary to law, fur particularly, there is a dislike of formality, ami, in consequence, the too frequent abandonment of By-laws for mere orders or resolutirm. Now, the proceedings of a Municipal Council that may be lawlullv had by order or rescmition, are comparatively few and unimportant. A By-law should not be dispensed with unless in a very clear ca.rocee(lii iiicriibers, the apjiointin !,w authorizing the format it be not contrary to the g( Fir.il— The regulations ol .'ist nt witli the Municipal lifing, im])art to it its pow iiimle of operation : they ai .iti'in. Hence all laws in true test of all By-laws," s tmu of the Crown in granti the Corporation." 'J'/ic K Municipal Council ; it may iiie intention of the Lcisla siijiarent good of the Aluni the same case, said, " Corj t'l their constitution. If t /''. 1S39; but see "The i As tnansceiuling the Munici ii"l«ising an oath of oiKce w a Vdte to a class of i)ei-son; l^ersdus to be candidates not vote to an officer not entitle( ing the right of admission scriheil mode of election, c qualifications either on mei Angell & Ames on Corporat ';r.lt.277;?V(.A';//i/v./irn l^riuh; 38 Mo. 450 ; Thomp. '■'.M/ra;(a'f'o.,37Maine25«. Hmnd—The law of a cov ceedmgsof Corporations as f( , wiitrary to the common or st »yl;iws,"saysHobart," "n the realm, and subordinate t I this reason, a By-law "inn "king "private property fi K" would be void; An-( I «here a Statute authorized ^fl "regulating," or, if lu 'I the (lead within the city, tion had granted lands for tli Muted that they should bee, lie Corporation was not th •TlHlding such interment, 'teculeJ ou the ground that t t;!Lf"'«'H^J'''=^ ^'^8 deleg "it the By-law passed wast ;1'if'*'"'^"^P«^«o'iisent tC r- ''"1^ *^** "« c«venan migh made with the Corpoi hnibarrass the exercise of its 278.1 POWERS OP COUNCILS TO MAKE REGULATIONS. au aovpriiing the proceedings of tlie Council, the conduct of its iiitriibers, the api)ointing or calling of special nieetingH of the Iw authorizing the formation of tlie Corporation, and, secondly, that it be not contrary to the general law of the land, /"((..((—The regidations of the Ivluuicipal T'onncil must not hoincon- jist nt with the Municipal Acts, for these Acts create it an artificial Uins, impart to it its power, designate its object, and prescribe its iiindt' of operation : they are in sliort tlie constitution of the Corpor- ation. Hence all laws in contravention of them are void. "The tnie test of all By daws, " says Mr. Justice ^Vilmot, "is the inten- tiiin of the Crown in granting the charter, and the apparent good of the Corporation." Tlin Kin;/ v. Spiwer, .3 Burr. 1838. So of a Municipal Council ; it may he said that the true test of a Bydaw is iiR intt'ution of the Legislature in incorporating the Council, and the iilipareut good of the lilunicipality affected. Mr. Justice Yates, in tliesamu case, said, "Corporations cannot make Bydaws contrary til tiieir constitution. If they do so, they act witiiout authority. ' /;. 1839; but see "The Case of Corporations," 4 Co. R. 77, 78. As transcending the Municipal Acts, Bydaws creating a new office, iiniiiising an oath of office where none is reipiired by the Acts, giving a Vote to a class of persons not entitled to vote by law, qualifying ]ersons to be candidates not qualified by the Acts, <^'iving a casting vote to an officer not entitled to it by the Acts, restricting or extend- in^' the right of admission or eligilnlity to office, altering the pre- S'.riiicil mode of election, or imposing new or additifmiu tests or i;ualific.itions either on members or voters, would be void. See Angell & Ames on Corporations, 345 ; see also The K'ukj v. Miller, i!Td{. 277 ; The Kimj v. Barhn- l^nnjeonn, 1 Ld. Rayd. .'584 ; fitnte v. hrikkr, 38 Mo. 450 ; Thovipwn v. Carroll, 22 How. 422 ; Andrews v. iMtmiiee Co., 37 Maine 25»j. /n re Bell\. Manvers, 3 U. C. C. P. 399. S^Clmd — The law of a country being as well a rule for the pro ceedings of Corporations as for the conduct of individuals, all Bydaws idiitrary to the common or statute law of the country are void. * ' All Bylaws," says Hobart," " must ever be subject to the general law of the realm, and subftrdinate to it." Xurrin v. Slaps, Hob. 210. For this rcison, a Bydaw "impairing the obligation of contracts," or taking "private property for public uses without just compensa- tion," would be void. Angell & Ames on Corporations. 333. But vliere a Statute authorized the Corporation of a City to make By- laws "regulating," or, if necessary, "preventing," the interment It the dead within the city, it was held'^that though that Corpora- tion had granted lands for the purpose of interment, and had cove- nanteil that they should be quietly enjoyed for that purpose, yet thai tue Corporation was not thereby estopped from passing a By-law :;irli(l(ling such interment, under a penalty. Ih. The case was itcided on the ground that the legislative power of the Corparation "ver this subject was delegated to it for tlie (joud of the Citij, and j tiiat the By-law passed was to bo regarded as if passed by the Legis- lature ; that no person is entitled to use his property so as to injure ''■lother, and that no covenant could give him power so to do, even though made with the Corporation ; since, as tending to control and ' niliarrass the exercise of its important jjowers as a local Leyislalure, ''3' 214 To repeal, alter, &c,, by.lawi. THE MUNICIPAL MANUAL. [s. 271). Granting monopoflca prohibited. Coimcil, and f^ouorally hucIi otlier rogiilutioiis as the good ^f the iulialiitants of th(( Municipality retniin-s, and may iPiwiil, altxT and amend its by-laws, savo as by this Act rostiicli '1. 3G V. c. 48, s, 2-2:i. 279. No Council shall have the power to give any pci-s: a an exclusive right of exercising within the Municipality any the or w covenant, when it c.ainu in competition witli them, must givewny ^. ./as repealed. Jf>. The leyislative )»o\ver of a Corporation is ih only restricted ])y the statute law, ))ut by the generivl princiiilcs iirn! pclicy f»f the common law. Indeed, whenever a By-law swk^ tn alter a well-settled and fundamental principle of the coniinon law, nr to estaldislnng a rule interfering with the rights or endangfiiiiu tin; security of individuals or the public, a statute or other Hpeciulaiithi- rity emanating from the creating power must be shown to Icg.iliK it, either expressly or by implication. It is upon this princijilc tl:;it, though many By-laws ])assed l)y the ancient Municiiial Corpiir.iti'ns in lOngland tor the ?'C'jii/t(tiu)t of trade have been ailjudged good, vtt many wei'e adjudged void as in rent r( tint of trade and an ojiprcs-i ii of the subject. See sec. 270 and notes ; see further Co/Huh v. //'■'■/., 18 Ohio ryj';} ; Ro/ier/.i v. Oijli; ;W 111. 459 ; Adnmi* v. Miujuv, 'JIMkh. 56 ; Sill v. Coniim/, 1 K. )*. Smith (N. Y. ) 297 ; Cinriiiiiati v. dinmi,. 10 Ohio 192; Wood \. BruuUi/ii, 14 Barb. (N.Y.) 425 ; J/rni/. v, Akruii, 14 Ohio 580 ; IJitddlrMun v. Ifiiffiii, (! Ohio St. ()04 ; /!%. - v. Jom\% 1 Wend. (N.Y.) 237 ; Marlitkl v. Frariiuj, 4 Ohio 427. It need liardly bo mentioned that the Municipal body which Ins power to make lias power to repeal By laws ; it being of tliu vtry nature of legislative power that, by timely changes in the nileitpre- Bcribes, it should be enabled to meet the exigencies of the occasinn, The Kin;/ v. IJinl, 13 East. 379 ; Blovmerv. Sfidlci/, 5McL. (U.,S.)l."s. Repeals cannot l)e made to operate retrospectively to the prejirliii' of vested rights. Tlie Kiix/ v. Ash well, 12 East. 22; State v. ("Jj Clerk, 7 <^hio St. 355 ; Stoddard v. Gilmaii, 22 Vt. 5G8 ; Pond v. J\V7»,') cf on should keep any piiii. &o. //;. That no l«Muids below the weir, u far. 4!I7. That none of tli above sueh a nund)er of Y'"niimij of Silk Throwdtt not a monopoly, J)ut a : ingrnss the whole trade, I trade, according to what ma.ster of any boat, &c., fi send on shore any goods b Fellon-slup of Porters. C l«rson should exercise the h'f Joiners. Warinely. Lo 1 Burr. 127; TheKiw,v.,l Ifm. S02; The Kin.} V. II brewer's servant should bt cart, after one of the cloct lAly Day, and from thenc pnalty, &c. Bo.iworth y. y-Pope,2B. &Ad. 465. hndmhabitingand dwelli "thin two mdes of the a otter for sale auy fresh mc lisanday. The Butcher^^ J. 2'9.] CREATION OF MONOPOLIES. tnult or calling, (/) or to impose a Hpecial tax on any person (/) Monopolies are odious to the law. A monopoly in when the jiledf any merchanilise or coinmoility is restniined to one or to acer- tAinmimliur, 11 Co. 8(5, and has three inseparable conseciuents — the increanf of the price, the badness of the wares, the impoverishment iifdthiTs. Ih. By statute 21 Jac. 1, c. .3, all monopolies and all com- missi' ns, grants, licenses, &c., to any person, &c., for any sale, buy- in^:, silliiijj, making, working, using of a thing, kc, are void. And anv one grieved, &e., nia»' have an action on the statute, and recover trtlile iliinmges and double costs. So nionoiiolics are oontriiry to Muk'ii.i Cliarta. 2 Inst. C3. By statute .?8 Kaw. .3, a merchant may ireily deal in all manner of merchandise. The statute of 21 .Jac. 2, does nut extend to letters patent for inventicms, &c. The first part (f this section is simply a declaration of the common law. When- tvtr a 15y-law seeks to alter a well-setthid and fundamental principle (f the ciimmou law, or to establish a rule interfering with the rights if iniliviihials or the public, the power to do so must come from jHain mil direct legislative enactment. Tnylur v. Grmcultl, 2 ( Jreen. (N. .I,| '2'2'J. Legal restraints, in the form of regidfitions, may, however, 1* imiioseil upon the few for the benefit of the many. L'ity Council r. Ahi>iiA, 4 Strob (S. Car.) 241 ; CharlcMon v. licipt'iHt Church, lb. 300; I'loriav. Calhoun, 29 111. 317 ; Sf. Paul v. Coulter, 12 Minn, ■11, It is sometimes difUcult to determine when a By-law is in restraint of trade, and when it is a mere regulation of trade. The ■ niier is illegal ; the latter legal. The following have been held to k mere regulations and so valid : That no butcher or any other per- wn should, within the walls of the city, slaughter any beast, &c., to forfeit, &u. Pierce v. liartrum, Cowp. 2f)9. 1 hat no butcher or other pprson should keep any swine within the walls of the city, upon pain, &c. Ih. That no commoner should keep any sheep in the wmnds below the weir, under the pain, &c. James v. Tnlneij, Cro. I Car, 4!>7. That none of the Company of Silk Throwsters sliould have 1 above such a number of spindles in one week. Freetiiantie v. The ('•inqxwi/ of Silk Thrtncstcrs, 1 Lev. 229. And per Cur. " This is ! not .1 monopoly, but a restraint of a monopoly, that none might ingrnss tlie whole trade, being rather to provide for an equality of [trade, according to what is convenient and good." lb. That no I ma.>iter of any boat, &c., from place to place, &c., should unload or !«nd on shore any goods but by such persons as are of Company and Fellowship of Porters. Cuddon v. Easlwlck, 1 Salk. 192. That no I l«rsou should exercise the trade of a joiner uidess free of the Company I of , Joiners. Warlnel v. London, 1 Str. ()7o ; See also Oreen v. Durham, IBurr, 127 ; The Kmj v. Master, Ac. of the Co. ofSurrfeonH in London, 2 Burr. 892 ; The Klmj v. Harrison, 3 Burr. 1322. That no drayman or brewer's servant should be abroad in the streets, with his dray or 1 cart, after one of the clock in the afternoon between Michaelmas and Wy Day, and from thence after eleven in the forenoon, under the I penalty, &c. Bosvmrth v. Hearne, 2 Str. 1085 ; See further, Shaw V, Pope, 2 B. & Ad. 465. That no person using the art of a butcher, and inhabiting and dwelling within the city or suburbs thereof, or »ithin two miles of the same city, should keep open any shop, or offer for sale any fresh meat, on the Lord's Day, commonly called [Sunday. The Butchem' Company v. Morey, 1 H. Bl. 370. That 215 i" t 216 THE MUNICIPAL MANUAL. [8.279. exorcising tlio same, (tj) or to roqtiiro a licenso to bo taken for no stranger or foreigner ahouUl use or exorcise the craft or mystery of a taylor within the Haid city, except Ijo should first ho inadt) free of the Biiid city. Wnolleij et ill. v. IdU, 4 Burr. 1931 ; sou o\m Hii*m,rtk V. Hudfjen, 7 Mod. 45H. Hy-laws may, under certain circuriiHtaiicei), l)u passed exempting manufacturing e8ta))li8hment8, in wliolu or iu part, from taxation for a term of years. See see. 341). 'J'lio following liavc been held to he had, as in restraint of trade : That no ineinUr Hhcmld sell the barrel of any iiand gun, &c., ready proved, to any person of tlio trado not a member in London, or within four mile* tliereof. T/ie Manter, tie, of dun maker a, .Oc, v. FfU, Willes. 384. No member should strike his stani)) or murk or the barrel ot any person not a member of the Company, &c. Ih. That every person iiDtlicini/ already free of the city, occupying, using or exercising, or who sbail occuj)y, use or exercise the art, trade or mystery of a butchir within the said city or its liberties, si ad take upcm himself tlio fniMloinof the Company of Butchers, anl that if any person or persons (exiept such as are already free, &c.) sliall use the trado of a butcher, not being free of this Company, he shall pay, &c. Jlavrlmn v. (Induuin, 1 Burr. 12. So aa "to persons using the occupation of inusio aul dancing." JMnnsoii v. Grunroitrt, !) Mod. 104. That no person should erect any bootli, for tiie purpose of any show or jmblic entertainineiit, in any public place within the borough, without license from the Mayor, wliich license should not bo given at or for any other time than during the annual fairs, if three iiiiwl»itant househohlers, residing within 100 yards of the place intended to Ix; URcd, should have previously memorialized the Mayor to witliiiold such license, &c. Elwooil v. Bulloch, 6 Q. B. 383. Where a particular building was designated for the slaughtering of all aniinalu mteudod for sale or consumption in the city, the owners of wiiicli were granted the exclusive right, for a specified period, to have ail such animals slaughtered at their establishment, tne By-law was lieM bad. Chinujo v. Jiuvijif, 45 111. 90. So where it was provided that those only to whom licenses were granted should have slaughter- houses within the city. Re Nutih and McCracken, 33 U. C. Q. B. 181. Or that none but three persons appointed by the City should sweep for hire or gain any chimney or flue in the city. The Qiifen v. Joh- Hon, 38 U. C. Q. B. 549. So By-laws requiring hucksters, without legislative authority, to pay a license fee : Dunham v. liocliester, ') Cow. (N. Y.) 4G2 ; druggists to make returns under oath as to the ([iiality and kinds of spirituouH li([uors sold by them : Clinton v. PliiHipn, 11 Am. .'S2 ; prohibiting the use of canals on Sundays : The Cnl'ln- mid Hebble Navigation Co. v. Pilling, 14 M. & W. 70 ; prohibiting liceused tavern keepers from having a light in their bars : liegina v. Jscliininl, 35 U. C. Q. B. 298 ; requiring the owners of theatres to pay theCity Constable a certain sum : Waters v. Leech, 3 Ark. 110; requiring a Railroad Company to keep a flagman by day and a red lantern oy night at a point where its track crossed a street : Toledo, U'ulmA and We.'itern Hail way Co. v, JacHonville, 16 Am. 611 ; authorizing the arrest of free negroes in the street after ten o'clock at night : Mayor, Ac, of Memplua v. Winfield, 8 Hump. (Tenn.) 707. (y) Taxes must be general. A tax levied on a particular occupation is therefore bad. Savannah v. Hartridye, 8 Ga. 23 ; LinitiiKj v. exprci.siii;,' tbo Hnnio, (/*) .statute .so to do ; (?") but exoccdiii^' ono dollar, to bo liticate ot'ooinpliiinco with tnuk'or call in/,', (j) 36 V. 280. A Council may g tttry which may bo vv.hU nvhs/on^ I McCord (S. Car.) ffishin;,'to Hidl fresh meat in (| or ^lall, in Culeman or in Bah .March ill each y(!ar, apidy, in w Ci'miuitteu, titiiting the annur til the sum u( ^AO to obtain a c mthiiri/ing tiio holder of the frdi meat in one stall in C( fur line year, from first of M; tifcito in (d)tained," is bad (A) The i)()wer to license car cieiit of a rea.s(>n;ible sum as a c I«'wer inuHt not be so used as t( //mv,-/, 2<) Iowa 123. The di (.aiinot a.sseiit to the position tl txceeils the expense of issuiiii' I"mer and inii>oses a tax." By shoni of all its efficiency. Prr 56() ; see also, Carfer v. Dow, i '''iii,/l>. 136; A.'^h v. People,' I «. By-laws re(juiring a license tihitioii are to be considered in iAh. 1.37. (0 The import of these won ,in«aniiig is, that in the absence o '•nu the creation of ;i monopoly, any person exercising a trado or taken for the exercise of the sai toJoanyofthethingsmentione w plain in its terms, and direct I section. ^ U) The issue of such a certifi '0 any abuse, for the fee to be Mar.' It is not said for what eflect is to be given to it whe: W sort of thing that will n puch good to the issuer. See no , (i)Aferryis a franchise whi buseoftheCrown,ortheauth, waenipoweredbythe Crown or ' 28 71 'M] FKIIHIES, 217 exorcising,' tho Rnmo, (h) wnhrs autliorizod or ro Wis. 56() ; see also, Cnrtcr v. Dnn\ lb. 208 ; Fire Dcpartmcul v. Ifvlfen- ('.m, II). 13G ; A.s/i. v. People, 11 Mich. 347 ; Chihem v. People, lb. W. By laws requiring a license fee so heavy as to amount to a pro- iiil)iti()ii are to be considered in restraint of trade. Mobile v. Yuille, 3.\la. 1.37. (i) Tile import of these words deserves special attention. The me.iniiig is, that in the absence of some statute authorizing or requir- ingtlie creation of a monopoly, the imposition of a special tax on any jwrson exercising a trade or calling, or requiring a license to be taken for the exercise of the same, no Council shall have tho power to Jo any of the things mentioned. If there be such a statute it must be plain in its terms, and direct in its language. See note/ to this section. (j) The issue of such a certificate as here mentioned cannot lead to any abuse, for the fee to be paid for it is not **to exceed one dollar." It is not said for what purpose it is to be issued, or what effect is to be given to it when issued. It is apparently a non- descript sort of thing that will not do much harm to the receiver or much good to the issuer. See note h to this section. (i) A ferry is a franchise which cannot be set up without the license of the Crown, or the authority of some body corporate or per- son empowered by the Crown or the Legislature to grant the same. 28 '!• . 216 THE MUNICIPAL MANUAL. [s. 280. to certain ferries, Exception as sented by such Council, (I) other than a ferry between a Province of the Dominion of Canada and any British or foreign country, or between two Provinces of the Dominion, (m) 36 V. c. 48, s. 225. See B. N. A. Act, 1867, s. 91, (13) ; Bev. Stat., c. 112 ; and sec. 465 (4), jwst. Com. Dig. "Piscary." B. It is the exclusive privilege to carry pas- sengers across a river, lake or arm of the sea, from one village to another, or to connect a continuous line of road leading from one township or village to another. Newton v. Cubitt, 12 C. Br N. S. 32. Wliere the Legislature has conferred upon a Municipal Corporation its whole power to establish and regulate ferries within the corporate limits, then and then only can the Corporation grant exclusive privileges of ferry. East Hartford v. Hartford Bridge Co., 10 How. (U. S.) 511. The exclusive power must appear by express words or necessary inference. Mere power to establish and regulate ferries within the corporate limits would not, it seems, be sufficient to enable the Corporation to confer on others an exclusive right of ferry. Harrison v. Statf, 9 Mo. 526 ; Minturn v. Larue, 23 How. (U. .S.) 435 ; McEwan v. Taylor, 4 G. Greene (Iowa) 532. The grant by the Legislature is, in the interest of the public, one which may if necessary be I'epealed or altered. East Hartford v. Hartford Bridije Co., 10 How. (U. S.) 511 ; See also Charles River Bruhjt v. Warrm Bridi/e, 11 Pet. [li. S.) 420; Hartford Brid,," Co. v. Ferry Co., 29 Conn. 210 ; Kerhy v. Leivis, 6 O, S. 207 ; The. Queen v. Davenport, IG U. C, Q. B. 411. As to the right of s Municipal Corporation in the public interest to derogate from its own grant of a ferry, and other points as to the right of Municipal Corporations as to ferries. See Foy Petitioner, 15 Pick. (Mass.) 243; Fannin') v. Gregoire, 16 How. (U. S.) 524; Ea.'it Hartford v. Hartford Bridi/e Co., 16 Conn. 149, 17 Conn. 79, 10 How. (U. S.) 511; Ghilvers v. People, 11 Mich. 43; O'Neill v. Police Jury, 21 La. An. 586 ; Aiken v. m'.stern B. R. Co., 20 N. Y. 370; Briison v. The Mayor, dx., of New York, Pierrepont, and LeRoy, 10 Barb. (N. Y.) 223; Harris v. Neshit, 24 Ala. 3118; United States v. Fanning, Morris (Iowa) 348 ; Conner v, Nm Albany, 1 Blackf. (Ind.) 43; City v. Ferry Co., 27 Ind. 100; Shallcross v. Jeffersonvilb , 26 Ind. 193 ; Dnckwall v. New Albany, 25 Ind. 283 ; Harrison v. State, 9 Mo. 526. As to the respon- Bibility of ferrymen, see Walker v. Jackson, 10 M. & W. 161; Willouijhhi/ V. Horridge, 12 C. B. 742 ; Fisher v. Clishee, 12 HL 344 ; WilMn v, Hamilton, 4 Ohio St. 722 ; White v. Winnisimmt Company, 7 Cush. (Mass,) 155; Le Barron v. East Boston Ferrtj Company, 11 Allen (Mass.) 312 ; Harvey v. Rose, 7 Am. 595; Wyckof V. The Queen's County Ferry Co., 11 Am. 650. (I) See note k to sec. 8. (m) Ferries between a Province and any British or foreign coun- try, or between two Provinces, are subject to the exclusive legisla- tive authority of the Parliament of Canada. B. N. A. Act 8. 91 subs. 13. & 281.] Ai TlTJ DlV. I.— AUTB Div. II. — Obje< Div. III.— VoTii Div. IV.— CoNf] Div. v.— Quas: Div. VI.— Bv-Li Div. VII.— By-l^ Div. VIIL— Antk Division Original and Co Proof of facts fo 281. Every by-li tion, and shall be si bv the peraon presi^ has been passed, ar 3G V. c. 48, s. 226. [n] The formalities The By-law must be- 1. Under the seal o 2. Signed by the he Or by the person wl passed. 3. Signed by the CI Unless the Bydaw I md Brooke, 17 U. C Prince Edward, 30 U would seem to be as es Ohio St. 95 ; see also, the head of the Corpoi to do his duty in passi of his township or a members of tht Coui member of the Counc head of the Council pe -'lU-C. Q. B. 626; 'TO'/' ay Co., 17 Grani breach of duty, againsi applymg the seal to mi the plaintiflF, founded previous contract, wo cannot be a remedy ag to a remedy on the coi contract been duly ma( 1 1 none. Fair v. Moi ^•ommisaiouers need no &28].] AUTHENTICATION OP BY-LAWS. Title II. — Respecting By-laws. 219 -Authentication of By-laws. -Objections by Ratepayebs. , -Voting on by Electors. -Confirmation of By-laws. -Quashing of By-laws. -By-laws creating Debts. -By-laws respecting Yearly Rates. Div. VIII. — Anticipatory Appropriations. Div. I. Div. 11. Div. III. T)TV. IV. Div. V. Div. VI Dnr. VII. Division I. — Authentication of By-laws. Original and Copies. Sees. 281, 282. Proof of facts for Lieutenant-Governor. Sec. 283. 281. Every by-law shall be under the seal of the Corpora- iiow .by-laws tion, and shall be signed by the head of the Corporation, or W the pei-son presiding at the meeting at which the by-law has been passed, and by the Clerk of the Corporation, (a) 36 V. c. 48, s. 226. {a) The formalities prescribed in this section are indispensable. The By-law must be — 1. Under the seal of the Corporation. 2. Signed by the head of the Corporation. Or by the person who presided at the meeting at which the By-law passed. 3. Signed by the Clerk of the Corporation. Unless the By-law be sealed it is not a legal By-law. In re Croft ami Brooke, 17 U. C. Q. B. 269 ; see also, In re Mottaslied and Prince Edward, 30 U. C. Q. B. 74. Signature under this section Toulil seem to be as essential as seal. See Blanchard v. BisHell, 11 Ohio St. 95 ; see also, State v. Newark, 1 Dutch (N. J.) 399. Where the head of the Corporation, either from caprice or obstinacy, refuses to do his duty in passing a By-law which is required for the benefit of his township or a part of it, it would seem that the remaining members of thb Council would be justified in requiring another member of the Council to take the chair, and do that which the head of the Council perversely refuses to do. Preston and Manvers, 21 U. C. Q. B. 626 ; see further. Brock v. Toronto and Nipissing Mb ay Co., 17 Grant 425. No action can be sustained, as for a breach of duty, against the head of a Municipal Corporation for not applying the seal to make a contract between the Corporation and the plaintiff, founded upon a refusal, which, if there had been a previous contract, would have constituted a breach of it. There camiot be a remedy against the h ad of the Corporation equivalent to a remedy on the contract against the Corporation itself, had the contract been duly made, so as to make a valid contract where there u none. Fair v. Moore, 3 U. C. C. P. 484. By-laws of Police Commisaioners need not be sealed. See sec. 416. to be authen- ticated. (!■ r 220 • THE MUNICIPAL MANUAL. [SS. 282, 283. Proof of. 282. A copy of any by-law, written or printed, without erasure or interlineation, and under the seal of the Corpora- tion, and certified to be a true copy by the Clerk, and >)y any member of the Council, shall be deemed authentic, and be received in evidence in any Court of justice without pfoofof the seal or signatures, unless it is specially pleaded or alleged that the seal or one or both of the signatures have been forged, (b) 36 V. c. 43, s. 227. By-laws re- 283. The facts required by this Act to be recited in anv asLnt^of the by-law which requires the approval of the Lieutenant-Gov- Xieut-Qover- ernor in Council, shall, before receiving such approval, h verified by solemn declaration, by the head of the Council, and by the Treasurer and Clerk thereof, and by such other per- son and such on other evidence as to the Lieutenant-Governor in Council satisfactorily proves the facts so recited ; or in case of the death or absence of any such municipal ofticer, upon the declaration of any other member of the Council, whose declaration the Lieutenant-Governor in Council may accept, (o) 30 V. c. 48, s. 228. {b) In the absence of some provision of this kind, it wcmld in general be necessary, in order to prove a By-law, to produce and prove the original By-law. See Jie Tlietford, 12 Vin. Abr. 90; Lumhard v. Aldrich, 8 N. H. 31 ; Stevens v. Chicarjo, 48 111. 498; Moo7- V. Nvivjield, 4 Greenl. (Me ) 44 ; Halloivell and Augmtu Bank v. Hamlin, 14 ^lass. 178. A copy is, nnder this section, made evidence in any Court of Justice without proof of seal or signatures when — 1. Without erasure or interlineation. 2. Under the seal of the Corporation. 3. And certified to be a true copy by the Clerk, and by any member of the Council. On a motion to quash a By-law, order or resolution, it is only necessary to produce a copy, certified under the hand of the Clerk alone, and under the Corporate seal, together with an affidavit of the party applying, that the coi)y was received from the Cleric Sec. 322. The latter section is framed for a special purpose, while the section here annotated is meant to provide generally for all cases. Per Draper, C. J., in In re The Board of School Trustees ami Cor- poration of Sandwich, 23 U. C. Q. B. 639. (c) Tiiis section applies only to By-laws requiring "the approval of the Lieutenant-Governor in Council" To procure the approval, it is made necessary that — 1. The By-law be verified by solemn declaration. 2. The declaration be made by the head of the Council, the Treasurer, and the Clerk o' the Council. 1. 284.] opposiTio The Lieutenant-Goverr m 284.] OPPOSITION TO BY-LAWS BY RATEPAYERS. Division II. — Objectiox by Ratepayers. 221 W'Jien and how made. Sec 284. When successful. Sec. 285. 284. In case any peraon rated on the assessment roll of Opporition any Municipality, or of any locality therein, objects to the *** ^y-''*"- passing of a by-law, the pas.sing of which is to be preceded by the application of a certain number of the ratable inhabi- , tants of such Municipality or place, he fhall, on petitioning ilic Council, be at liberty to attend in pei-son, or by counsel 01 attorney, before the Council at the time at which the by- law is intended to be considered, or before a committee of the „ ^ . Council appointed to hear evidence thereon, and may produce made. evidence that the necessary notice of the apjjlication for the bv-law was not given, or that any of the signatures to the application are not genuine, or were obtained upon incorrect statements, and that the proposed bj-law is contrary to the wislies of the persons whose signatures were so obtained, and that the remaining signatures do not amount to the number nor represent the amount of property necessary to the passing of the by-law. (d) 36 V. c. 48, s. 229. 3. And by such other jyersons and on such other evidence as, to the Lieutenant-Governor in Council, satisfactorily proves the facta recited. The Lieutenant-Governor acts, as it were, judicially in the matter. [d] The right to object does not extend to the passing of 'dl By- laws, but only such as are " to be preceded by the application of a certain number of the ratable inhabitants of the Municipality or place." The right to attend for the purpose mentioned exists only " on petitioning the Council." The persons so attending may raise all or any of the following objections : 1. That the necessary notice of the application for the By-law was not given. 2. That any of the signatures to the application are not genuine. 3. That some of the signatures were obtained upon incorrect statements. 4. That the proposed By-law is contrary to the wishes of the per- sons whose signatures were so obtained. 5. A nd that the remaining signatures do not amount to the number nor rcjjtesent the amount of property necessary to the passing of the by-l? w. In re Monfffomery and Raleigh, 21 U. C. C. P. 394, where the appli- cation was to quash a drainage By-law, Gwynne, J., said, •' We are not prepared to say, that if a Municipal Council, in violation of the apparent fact that a sufficient number to put the Council in motion ^3' ■ '■'» ' 222 THien bj'- laws shall not] THE MUNICIPAL MANUAL. [sS. 285, 286. 285. If the Council ia satisfied upon the evidence that the application for the by-law did not contain the names of a suffi- cient number of persons whose names were obtained without fiaud and in good faith, and who represent the requisite amount of property, and are desirous of having the by-Iavr passed, or if the Council is satisfied that the notice required by law was not duly given, the Council shall not pass the by- law, (e) 36 V. c. 48, s. 230. Division III. — Voting on by Electors. Proceedings prelimiruiry to tJie Poll. Sees. 286-297. The Poll. Sees. 298-304. Who to Vote. Sees. 301, 30ii. Freeholders. Sec. 301. Leaseholders. Sec. 302. Oath of Freeholder. Sec. 303. Oath of Leaseholder. See. 304. Proceedings after close of Poll. Sees. 305-310. Secrecy of Proceedings. Sees. 311-312. Scrutiny. Sees. 313-316. Council must pass when carried. Sec. 317. *■' Unless jietitioned against. Sec. 318. If a, by-law 286- In case a by-law requires the assent of the electoi-s of iflsenrof the & Municipality before the final passing thereof, (/) the fol- had not petitioned, such fact being made apparent in the manner indicated in sections 194 and 195 (same as 284 and 285 of this Act) of the Municipal Institutions Act, should nevertheless proceed to pass a By-law imposing rates, that such a By-law could be sustained upon a motion, shewing these facts, made to quash it. But in the absence of all suggestion of fraud and all opposition to 'the By-law when before the Council, upon the ground taken, I think that a By-law which recites that a sufficient number had petitioned should be taken to be true, unless, at least, the recital be clearly established to be glaringly untrue, so as to afford a presumption of fraud in the pro- ceedings of the Council." See further the following note. (e) The By-law should in every case be passed subsequently to and consequent upon the presentation of the required petitioH praying the particular By-law to be passed, and after the fullest opportunity given to every ratepayer to be effected by the By-law to object io its being passed. Per Gwjmne, J ., In re Morrell and Toronto, 22 U. C C. P. 326. See further, the previous note. (/) By-laws for creating debts not payable in the same Municipal year are here notably intended. See sec. 330 and notes thereon. s, 286.] PUBLICATION OP BY-LAWS. 223 lowing proceedings shall be taken for ascertaining such assent, electors, ((j) except in cases otherwise provided for : obuintog same. 1. The Council shall by the by-law fix the day and liour Time and for taking the votes of the electors, and such places in the voting''to be Municipality as the Council shall in their discretion deem flxediy best, and where the votes are to be taken at more than one ^" * place, shall name a Deputy Returning Officer to tako the votes at every such place ; (h) and the day so fixed for taking the votes shall not be less than three, nor more than five weeks after the first publication of the proposed by-law. (t) 36 V. c. 48, s, 231 (1) ; 40 V. c. 8, s. 51. 2. The Council shall, before the final passing of the pro- Ry-iaw re- posed by-law, publish a copy thereof in some public newspaper a^Mnt^of published witlxiu the Municipality, or if there is no such elect?" to be newspaper, in some public newspaper published nearest the ^" Municipality, or in the County Town, the publication to be continued in at least one number of such paper each week for three successive weeks, (j) and shall also put up a copy of {ij) If the proceedings preacribed be not taken, or be not duly taken, the By-law may be held invalid. See Barnett v. Newark, 28 111. 62 ; Hifjkij v. Bunce, 10 Conn. 567 ; Conhoy v. Iowa, 2 Iowa 90 ; see also sec. 323 at the end. Besides where the By-law if approved would be illegal the proceedings may be restrained. Hdm v. Port Hopeetal., 22 Grant 273. (/() It has been held sufficient if the 'manner of ascertaining the assent of the electors be prescribed by a notice attached to the pro- posed By-law when published, though the Act says that it shall be determined by the By-law. Boidton v. Pderborouf)h, 16 U. 0. Q, B. 380. (i) Where publication was required for four consecutive weeks, in some newspaper published weekly or oftener in the Municipality, with a notice that, on some day within the week next after such four weeks, a poll would be demanded, and the first publication was on Thursday, 12th January, and Tuesday, 7th February, was appointed for the polling, it was held too soon. Goe v. Pickerhuj, 24 U. C. Q. B. 439 ; In re Miles and Richmond, 28 U. C. Q. B. 333. Where it was required that the By-law should be published for the space of twenty days, in at least one newspaper, before it should go into effect, it was held that the By-law would go into effect twenty days after its publication in the first number of the newspaper. Hoboken v. Gear, 3 Dutch. (N. J.) 265. [j] The publication is required to be made in some newspaper published within the Municipality, and if no such newspaper, then in some public newspaper published nearest the Municipality, or in a newspaper published in the County Town. The Municipality of Kingston proposed to take £7,500 in a road company, and published \t ^%. i 224 THE MUNICIPAL MANUAL. [8. ss. 287-290.] voTiNc i Notice. m I the by-law at four or more of the mcst public places in the Municipality, (k) 37 V. c. 16, s. 6. 3. Ai-tpended to each copy so published and posted shall be a notice signed by the Clei'k of the Council, stating that a By-law (No. 6) to authorize a loan, containing the usual recitals, imposing a rate, and directing the issue of debentures, &c. When the By law came on for discussion, a clause was added reducing the sum to £5,000, and directing the rates to be altered accordingly, ani!, thus amended, it passed in June, 18.54. In December following another By-law was passed (No. 8), providing for the issuing of debentures (authorized by No. 6), and directing a rate to be levieil for the payment of the interest thereon, but making distinct jirn visions for meeting the principal out of the profits of the stock to be taken, and from other funds. This By-law did not repeal No. G, but the enactments in it showed clearly that the rates imposed by that By-law were meant to be dispensed with. Held, that the last mentioned By-law was bad, for it was a new and independent By- law, and not a mere supplement to No. 6, and should, therefore, have been published before the passing, and have contained the usual recitals and enactments required in By-laws for creating a loan. Hehl, also, that By-law No. 6 was \m\, though not moved against, for it was not published beforehand in the form in which it ultimately Eassed. Jn re Bryant ami Pitt^bimj, 13 U. C. Q. B. 347 ; but see y/*,- pragge, C, in Brock v. Toronto and XipinMnij li. Co., 17 Grant 433. Where the statute required publication in each newspaper publishedin the Municipality, an omission to publish it in one of the local newspapers was held to avoid the By-law. Simpson v. Lincoln, 13 U. C. C. P. 48. All that the section here ainiotated requires is publication "in some newspaper published, weekly or oftener, in the Municipality,' in conjunction with the posting of the By-law at "four or more oi the mobt public places in the Municipality." Where the statute simply required the By-law to be promulgated, it was held sufficicut to publish it in the newspaper in which the By-laws of the city were usually publistied. Git]/ Council y. Truchelut, 1 Nott & McC. (South Car.) 227. It is not necessary that the By-law should be, Mm publication, signed and sealed, as required by sec. 281 of this Act. The word ' ' By-law " is used in the statute not merely to designate an instrument containing all that is stated in sec. 281, but the same instrument which is still in the hands of the Council and under con- sideration. Paffard and Lincoln, 24 U. 0. Q. B. 16. Where the statute provided for alternate modes of publication, and empowered the Corporation to determine which mode should be adopted, it was held tliut publication in the mode directed by the Clerk, witiiout the intervention of the Corporation, was insufficient. Highj v. Bmc(, 10 Conn. 436, Ih. 567. It is not, of course, for the Court, on applica- tion, summarily to set aside a By-law for defective publication. In such a case the Court will exercise its discretion, and set aside or refuse to set aside the By-law, according to circumstances. BouUm and Pe.terhorouyh, 16 U. C. Q. B. 380 ; In re Gibson v. Bruce, 20 U. C. Q. B. 398. (k) It is to be observed that publication in the newspapers is not (»') See note q to sec. 174. («) The system of ballot now to be applied to the pass hWion. See In re Johnson M«c. n~ etseq. 7! gs. •287-290.] VOTING on by-laws by electors. sndi copy is a true copy of a proposed by-law which will bo takon into consideration by tho Council after one month from the tirst publication in the newspaper, stating the date of the Jiist publication, and that at the hour, day and place or idacts therein fixed for taking the votes of the electors, the polU will be held. (1) 36 V. c. 48, s. 231 (3). 287. Forthwith (?«) after the day has been fixed as aforesaid, for taking tho votes of electors, with respect to the by-law the Clerk of the Municipal Council which proposed the by- laft- shall cause to be printed, at the expense of the Munici- pality, such a number of ballot i)apers as will be sufficient for the purposes of the voting, (u) 81) V. c. 35, s, 1. 288. The ballot papers shall be according to the form of Schedule J. to this Act. (o) 39 V. c. 35, s. 2. 289. The Council shall by the by-law fix a time when, and a place where the Clerk of the Council which proposed the by law shall sum up the number of votes given for and against the by-law, and a time and place for the appointment of ]wrsonH to attend at the various polling places, and at the final sumuiing up of the votes by the Clerk respectively, on behalf of the persons interested in, and promoting or opposing the pa.ssage of the by-law respectively, (p) 39 V. c. 35, s. 3. 290. At the time and place named the head of the Muni- cipality shall appoint, in writing signed by him, two persons 225 nallotpnporM to be printed , Form of Council to fix a day for appoint- ment of per- sons to attend at polling ])tncG!i and for aumming up votes. Selection of agents. . ^k aliine nuule sufficient. Posting of the By-law at fou." or more of the mo.t i.uLlic places in the Municipality is also required. (/) The notice may be in this form : Take notice, that the above is a true copy of a proposed By-law, whicli will he taken into consideration by the Council of the Muni- cipality after one month from the first publication in the (naming the im-sjMijer), the date of which first publication was (stating the day of tk (ctd; month and year), and that the votes of the electors of the said Municipality will be taken thereon at (naming the jjJace or , lilacti), on (naming the day, cOc.), at (naming the hour.) D. C, Clerk. (»() See note 7 to sec. 174. [ii) The system of ballot already applied to ordinary elections is I now to be applied to the passing of By-laws, which is also a mode of election. See In re Johnson and Lambton, 40 U. C. Q. B. 297. See [kc. 117 et»eq. (0) See note p to sec. 117. • (])) See sec. 120 et aeq. and notes thereto. 29 K" It Agent to maks declaration Appoint- munt in absence of agent. 326 THE MUNICIPAL MANUAL. [SS. 291-29i to attend at the final summinc; up of the votes, and one per. son to attend at each polling j)lace on behalf of the pemns interested in and desirous of promoting the passing of the by-law, and a like number on behalf of the persons interesteil in and desirous of opposing the passing of the by-law. In] 39 V. 0. 35, 8. 4. 291- Before any person is so appointed he shall make and subscribe before the head of the Municipality a declaration in the form of Schedule K to this Act, that he is interested in and desirous of promoting or opposing (as the case mav be) the passing of the by-law. (r) 30 V. c. 35, s. 5. Admission of 292. Every person so appointed, before being admitted to pomng place, the polling place or the summing up of the votes, as the owe •*"• may be, shall produce to the Deputy Keturning Ollicer or Clerk of the Municipality, as vhe case may be, his written appointment, (s) 39 V. c. 35, s. G. 293- In the absence of any person authorized as aforesaid to attend at any polling place, or at the final summing up of the votes, any elector in the same interest as the person so absent may, upon making and subscribing before the Depiitj Retui'ning Officer at the polling place or the Clerk of the Municipality a declaration in the form of Schedule K to this Ant, be admitted to the polling place to act for the person 80 absent, (t) 39 V. c. 35, s. 7. Kxciusion 294- During the time appointed for polling no i)erson *iMe.''°'^'"^ shall be entitled or permitted to be present in any polling place other than the officers, clerks and persons or electors {q) Thia is for tho purpose of preventing all appearance of parti- ality, and if possible of satisfying all parties that there is no partiality or appearance of it. See sec. 147 and notes thereto. The mode of appointment deserves attention. It must not only be in writing but | signed. (r) This is to secure the good faith of the persons appointed as well ] as of the person appointing them. {s) See note q to sec. 290. {t) The right to make an appointment under this section is depen- dent on the absence of the persons appointed under the previou I sections. The appointment when necessary may be made byanjj elector ' ' in the same interest as the person absent. ' ' Of course there I must be bona fides on the part of the person appointing as well ai I the person appointed. The declaration required by the section uj designed to secure the necessary good faith. 88.295,296.] VOTING aiitliorized to attend '!,'i V. c. 35, 8. 8, 295. TJie Clerk of any elector entitled to has been appointed D< or who has been name place other than the ( give to such elector a c Officer, Poll Clerk or f such by-law at the ] stationed during the j also state the property? which he is entitled to 2. On the productio Retin-ning Officer, Poll to vote at the polling pi polling day, instead of a lulling sub-division wli entitled to vote ; and i attach the certificate to ficate shall entitle any place unless he has be^ ^ iictiiining Officer, Poll ' polling. 3- In case of a Depu ; polling place at which he 1 01' 111 the absence of the pre-sent at such polling p Retiimmg Offi.,er the o I qualified to votu on the 296. In the case of M Hanls or polling sub-div Jiali, before the poll is o *q"ity Keturning Office (ivision, a votera' list Act, containing the nam r;f persons appearing b' m to be entitled, under pel firet and three hundr («) See note I to s. 142. (^•) See 8. 137 and notes th^ Deputy returning ofBeerB, poll clerkd and •gents may Toto at polling plaee where they are em- ployed, 83. 295, 296.] VOTING ON BY-LAWS BY ELECTORS. 227 autliorized to attend as aforesaid at such polling place, (ii) 39 V. c. 35, s. 8. 295. The Clerk of the Municipality, on the request of any elector entitled to vote at one of the polling places, who hius been appointed Deputy Returning Officer or Poll Clerk, or wbo has been named as the j)erson to attend at any polling place other than the one where he is entitled to vote, shall give to such elector a certificate that such De))uty Returning Officer, Poll Clerk or person is entitled to vote for or against sucli by-law at the polling place where such elector is stationed during the polling day, and such ertificate shall also state the ])roperty or other qualification in respect to which he is entitled to vote. (t>) 2. On the production of such certificate, such Deputy "n certWc»t« Returning Officer, Poll Clerk or person shall have the right clerk of the to vote at the polling place where he is stationed during the '"^jj''^' polling day, instead of at the polling place of the Ward or [lolling sub-division where he would otherwise have been entitled to vote ; and the Deputy Returning Officer shall attiich the certificate to the voters' list ; but no such certi- ficate shall entitle any such elector to vote at such polling place unless he has been actually engaged as such Deputy Ketiirning Officer, Poll Clerk or person during the d^y of polling. 3. In case of a Deputy Returning Officer voting at the Who to ad- polling place at which he is a))pointed to act, the Poll Clerk, ^tVin'such or in the absence of the Poll Clerk, any one authorized to be <^®' present at such polling place, may administer to such Deputy Returnmg Officer the oath required to be taken of voters qualified to vote on the by-law. 39 V, c. 35, s. 9. 296. In the case of Municipalities which are divided into who to con- I Wards or polling sub-divisions, the Clerk of the Municipality fn municipal- hall, before the poll is opened, prepare and deliver to the I'^e" uters, iitul a Ik of electors f(;r the Municipality similar to tho list montion.,! in the i»receding section ; and tlie Clerk shall jierforiu tlic like dnties with respect to tho whole Miniicipality as iirc imposed upon a Deputy Keturning Officer in respect of a Ward or polling sulndivision. 40 V, c. 12, s. 18 (2). Votinj? to lie by ballot. Procci'dingd to be ns nt municipal electionx. Form of directions for guidance to Toters. Frooliolders wlio may yote on by-law. The roll 298. At the day and hour affixed as aforesaid, a pollshal! he lield and the votes shall 1)6 taken bv ballot, [a) 39 V. c, 35, .s. 10. 299- The procot'dings at such ])oll, and for and inciilcntu! to the same, and the jnirposes thej-eof, shall be the samo, ;is nearly as may be, as at munici])al elections, and all the pri> visions of sections one hundred and sixteen to one Iiundit^i and sixty-nine inclusive, of this Act, so far as the saiiio :ii' j applicable, and except so far as is herein otherwise providtl shall apply to the taking of votes at such poll, and to all matters incidental thereto, (h) 39 V. c. 35, s. 11. 300. The ]jrinted directions to bo delivered to the Deputy I Returning Officers shall be in the form of Schedule L. t» j this Act. (c) 39 V. c. 35, s. 12. 301. Any person shall be entitled to vote on any by-la* I requiring the assent of the electors, who is a male ratepayer, I and, at the time of tender of the vote, of the full ageotj (a) Sees. 114 and iiotea thereto. (b) The application of the sections named, not only to the takinjj of the poll, but "to all matters incidental thereto," is a very wide, f but not too wide, application of them. The purpose being to securel secrecy in the vote, not only at the time of voting, but subsequent. The sections which prevent the inspection of ballot papers, exceftJ under tlic order of the Court or a, Judge, and for the destruction oil the ballot papers after a limited time, arc necessarily embraced, (c) The omission to deliver these directions would not necessarily] avoid the election ; but this does not exculpate the officers concerns for neglect of duty. above niciitioued, and hi ('/) See sec. 78 and notes t W See sec. 201 and notes i (/) See note d to sec. 76. 52.] WHO MAY VOTK ON BY-LAWS. 229 t«ontv-one yoars, and a natural born or naturalized subject of Ker ilajosty, {(/) and who has neither directly nor indirectly nct'ived, nor is in expectation of receiving, any rewaixl or gift for the vote which he tenders, (e) and is at tho time of hucIi ttnilev a freeholder, either at Law or in Equity, in his own ii;'lit or in right of his wife, of real property within such Miiiiiciiiality of sufficient value to (uitithi him to vote at any iimuieipal election, and is rated on the last revised assessment lull us such freeholder, and is named or imrported to ho iiiiiiied in the voters' list of electors. (/) i. In c.'iso of a new Municipality in which there has not in'Moof lictiiany iussossment roll, the (puvliticatiou of being named (m cipaiity Mioh list and of being rated on the roll shall be dispensed hM^'^bcon'no with, liut in such case such person offering to vote shall not asu'ssmont Ijr ciitillcd to vote unless he possesses the other (pudifications aljove mentioned, and has, at the time of tender of his vote, ?iilli('ient property to have entitled liim to vote if he had Km rated for such property, and unhiss at such time he muiios such proi)erty to the Deputy Returning Officer ; and tlie Deputy Returning Officer shall note such property in the voters' list opposite the voter's name, at tlie request of any j one entitled to vote on such by-law. ((j) 3G V. c. 48. s. 232 ; 1 3'J V. c. 35, s. 26. 302. Any person shall be entitled to vote on any by-law ff,'??®' ^ j re(|iiiring the assent of the electors, who is a male ratepayer, may vote on aid at the time of tender of the vote is of the fidl age of '^i-'*^"- I twenty-one years, and a natural born or nattiralized subject I of Her Majesty, and who has neither directly nor indirectly roceiveil, nor is in expectation of receiving, any reward or U'it't for the vote which he tendei-s, and is resident within the I iluiiicipality for which the vote is taken for one month next Wfore the vote, and who is or whose wife is a leaseholder of real j)roperty within such Municipality of sufficient value to ('/) See sec. 78 and notes thereto. W See sec. 201 and notes thereto. (/) See note d to sec. 76. i'.i] This is a necessary provision. The general rule is to require loth the possession of property and the rating of it on the roll ; but m latter requirement presupposes the existence of a roll. In the pe of a new municipality during the first year there can be no N. In such a case the possession of the property qualification ia pmcieut. I. rJ :k t» TIIK MUNICIPAL MANUAL. [»• OATHS or In euo of D«w niunlcl- pkllty wluT* there lioi boon no asMHsinout toll. Oath ol free- holder Toting on by-law. entitle liiin to vote at r niunicijml ('loction, niul who is rated on tlio lust rcvlsotl nsHCHHinj'nt roll tliorcfor, and wliich lease extends lor tho period of tin»o within which tli«» doht to be coutriictod or the money to ho rniseerty to the Deputy Keturninff OiHcer ; and the De|>uty Returninj,' Offi- cer shall note such jiroperty in the voters' list, opposite the voter's name, at the recjuest of any one entitled to vote ou such by-law. (/) 36 V. c. 48, s. 233 ; 39 V. c. 35, s. %. 303. Any ratei)ayer offering to vote in respect of a free- hold on any such by-law, may bo required by the Deputy Returning Officer or any ratepayer entitled to vote ou any such by-law, to make the following oath or allirniution, or any part thereof, or to the effect thereof, before hia vote is recorded : — (j) You swear that you are of the full age of twenty-one years, and a natural born (or naturalized) subject ot Her Majesty ; That you are a freeholder in your own right {or in the right of your wife, «.■» the case may require), within the Municipality for which thii vote is taken ; That you have not voted before on the By-law in this ToTvnship {or Ward, as the cajte may be) ; (/») The voters umler a By-law are not in all cases the same is ordinary electors. By-laws creating debts, not payable in the same Municipal year, usually provide for the payment of the debt in » term of yeara mentioned in the By-law. Leaseholders whose leases are for a less term than the term mentioned in tlie By-law, or in which the lessee is not bound to pay Municipal taxes, have no right to vote. See Erwin and Toionscnd, 21 U. C. C. P. 330. (t) See note g to the preceding section. {j) See sec. 09 and notes thereto. You swear tliat you are of th natural born or naturalized subj Thut you have been a residen this vute is taken for one montli That you are (or your wife it pality and the lease extends foi debt to be contracted or the mo lubmitted to the ratepayers is tie lesbto in said lease has) i municipal taxes ; That you have not before vote Ward, a» the COM may be) ; That you are, according to law That you have not directly o gift, nor do you expect to rec I tender ; That you are the person namec I Toters' list ; That you have not received ar ijj) See sec. 100 and notes th« , 301] OATHS or VOTERS ON BY-LAWS. 231 That you are, according to Inw, entitled to vote on the laid By law; That you have not directly or indirectly received any reward or irift, mir do you exi)oct to receive any, for the vote which you tomler; That you are the person named, or pur^mrting to bo named, in the Tottrs' list of clcctDrs ; Tliat you have not received unytlung, nor liaH anything been priiniisiil to you directly or indirectly, either to induce yii jnihlication. Sec. 319. y\tke. Sec. 320. Consequent validity. Sec. 321. 319. Every promulgation of a by-law (jy) shall consist in promuiga- thc publication, through the public press, of a true coi)y of [^^"^ °^ ''^^ the Ijy-law, and of the signature attesting its authenticity, witli a notice appended thereto of the time limited by law for applications to the Courts to quash the same or any part thereof; and the publication aforesaid shall be in a public iitwspiiper published within the Municipulity, or if there is no such newspaper, then in the public newspaper published iieitrest the Municipality, or in the County Town ; {<]) and cases, the Council care entitled to a reasonable time. See per Morrison, J., in Re Peck and Peterborough, 34 U. C. Q. B. 134. The duty is one which may be enforced by mandamus after the lapse of a reasonable time, and after demand and refusal. lb. If the Cuuucil, whose duty it is made to pass the By-law, be incompetent to pass any By-law, the By-law may, notwithstanding the vote the electors, be set aside. JRe Baird and Almonte, 41 U. C. Q. B.415. [m] See sec. 313. [n] See sec. 315. [')] The general rule in the case of a By-law approved by a majority of the electors is, that it shall be passed within six weeks thereafter. This section creates a necessary exception to the general rule. It excludes from the six weeks whatever time may intervene between the presenting of the petition and the final disposal thereof. [p] Promulgation ordinarily means publication ; but it is intended by this Act to give peculiar effect to a promulgated By-law. The notice appended to the By-law as published gives the time within which application must be made to the Court to quash the By-law. If the By-law promulgated be within the proper competence of the Council, it is to be deemed, notwithstanding any want of substance or fonn either in the By-law itself or in the time or manner of passing the same, a vaUd By-law. Sec. 321. (7) See note J to sec. 286. :'}■■ \i 238 THE MUNICIPAL MANUAL. [ss. 320, 321, ^M S. 322 ] QU ; 'l-' 'v i ■•'11 S|; Notice to bo given. Form of such notice. i ; . •' the publication shall, for the ptiqiose aforesaid, be continued in at least one number of such paper each week for thi-w successive weeks, (r) 37 V. c. 16, s. 7. 320. The notice to be appended to every copy of the by- law for the purpose aforesaid, shall be to the eft'ect following; («) Notice. — The above is a true copy of a by-law passed by the Muni- cipal Council of the Township of A, in the County of B, diie of the United Counties of B, C and D {or as the case may be), on the day of ,18 , and (ivhere (he approval of the Ijieuf/'tiant-Govfrm in Council is hi/ laio required to (jive effect to such hy-lani) approved by His Honour the Lieutenant-Governor in Council, on the day of , 18 ; and all persons are hereby required to take notice, that ony one desirous of applying to have sucli l)y-law or any part tiierm: quashed, must make his ai)pHcation for that purpose to one of Her Majesty's Superior Courts of Common Law at Toronto, before the end of the Ter n of the said Superior Courts next after the special promulgation thereof by the publication of this notice in three con- secutive numbers of the following newspapers, viz. (here name th> newspapers in which the publication is to be made), or he %vill lie too late to be heard in that behalf ; and take notice that sucli term com- mences on the day of next. (/) Q. 11., Township Clerk. 36 V. c. 48, s. 238. If not moved 321. In case no application to quash any by-kw is nwde in the time before the end of the Term next after the third publication bTvalfd '° ^^ ^^^^^^ by-law and notice as aforesaid, the by-law or so miicli thereof as is not the subject of any such amplication, or not (r) A By-law requiring the assent of the electors must be pub- lished in A'OHte newspaper published within the Municipality ; ainl if no such newspaper, in some public newspaper published nearest the Municipality, or in the County Town. See sec. 28(1, siili. 2, Promulgation, under this section, is made to consist of publication " through the public press." This afterwards is defined as luiiij Sublication in a (i. e. any) public newspaper published within the lunicipality. If none such, then in the public newspaper published nearest the Municipality, or in the County Town. (s) Where an Act of Parliament expresslj' provides that a thing is to be done in a given form, that form should be strictly followed. Wa7-ren v. Love, 7 DowL P. C. 602 ; Codrimjton v. Curkwis, 9 Dowl. P. C. 968. But where the direction is that the form given, or one " to the same effect " or to " the effect following," shall be followed, similar strictness is not required. Bacon v. Ashton, 5 Dowl. P- C. 94 ; Smith v. Wedderburne, 4 D. & L. 296. (t) In the case of a By-law imposing a rate, the application to quash cannot be entertained after the next terra of the Superior Courts of Common Law after promulgation. See sec. 324. (]«a.slie(l upon such apy pre.scrihe.s or directs an of the Council to ordaii staiKiiiig any want of si itself, or in the time ai valid by-law. (it) 36 V. Division How to proceed. Sec. Time I united /or apph ilut'wn against for co Xo action till after qu Lidbillti/ of Municipal 328. Tijulerof amends. S 322. In case a reside person interested («) in lu) Neglect to make an a the effect ui curing any roau law, &c., itself, or in the tii videil what is ordained or d proper competence of the C of tlie Council, a By-law aff lor wh^t is done under it. Q. B. ()2G. (a) The applicant, in stri( [ of the Municipality in which I in the provisions of the By- C, P. 527 ; Bixjart v. Belle j Kimji>ton, 9H t. C. Q. B. ] against a By-law of the Unite swore that (hiring all the ye; of the separation, a resident of the Town of Peterborou Peterl)orough, it was held thi aa a resident, so as to be ei Coihjer and Peterborough, 8 ' U Township, though not a re was objected that, being a held that, as a freeholder of the Bylaws passed by the T I to move to quash any of its 2l'.C-C. P. 317. So it ha in the Municipality which 1 j named on the Assessment j Boiilt„n and Peterborough, L •tated deponent to be a ratej 8.322] QUASHING BY-LAWS. quashetl upon such application, so far as the same ordains, prcscrilies or directs anything within the proper competence of tlie Council to ordain, presci-ibe or direct, shall, notwith- standiiiff any want of substance or form, either in the by-law itself, or in the time and manner or passing the same, be a valid by-law. («) 36 V. c. 48, s. 239. 239 Division V. — Quashing By-laws. How to proceed. Sec. 322. Time Uniitedfor application. Sees. 323, 324. f Mution against for corrupt practices. Sees. 325, 326. Si) action till after quashing and notice. Sec. 327. Lidhiliti/ of Municipality for acts umler illegal by-law. Sec. 328. Ti'uder of amends. Sec. 329. 322. In case a resident of a Municipality, or any other Qu«.shing person interested («) in a by-law, order or resolution of the '^y-***'- (h) Neglect to make an application witliin the time prescribed has the etlect of curing any loant of substance or form, either in the By- law, &c., itself, or in the time or manner of passing the same, pro- rideil wluat is ordained or directed by the By-law, &c., be within the priiper competence of the Council. If not of the proper competence ci the Council, a By-law affords under no circumstances protection lor what is done under it. Sutherland v. ^East Nissoari, 10 U. 0. Q, B. ()2G. [a] The applicant, in strictness, should state that he is a resident of the Munici])ality in which the By-law was passed, or has an interest in the provisions of the By-law. Bahcock v. Bedford, <0c., 8 U. C. t V. 527 ; Brnjart v. Belleville, 6 U. C. C. P. 425 ; Kinijhorn and ! KwjM'in, ;?() U. C. Q. B. 1.30. Where ai applicant, who moved I against a By law of the United Counties of Peterborough and Victoria, swore tiiat (hiring all the year 1850 he had been, and was at the time of the separation, a resident of and within the limits and boundaries of the Town of Peterborough, a corporation within the County of Peterborougii, it was held that the applicant was sufficiently described as a resilient, so as to be entitled to make the application, hi re Coufier and Peterborough, 8 U. C. Q. B. 349. Where a freeholder of a Township, though not a resident, applied to quash a By-law, and it was ol)jected that, being a non-resident, he could not do so ; it was telil that, as a freeholder of the Township, he had an interest in all the By laws passed by the Township Council sufftcient to enable him to move to quash any of its By-laws. In re De la Haye v. Toronto, 2U. C. C. P. .317. So it has been held that the owner of real estate 10 tlie Municipality which had been assessed, though not himself Darned on the Assessment Roll, had a sufficient interest. In re Boitlt.ni and Peterborouyh, 16 U. C. Q. B. 380. Where the affidavit stated deponent to be a ratepayer and a resident householder, it was . k f4 I 240 THE MUNICIPAL MANUAL. •M [8,3 Council thereof, [b) applies to either of the Sujjevior Couits of Coramon Law, (c) and produces to the Court a cony of the by-law, order or resolution, (d) certified under the hanj of the Clerk and under the corporate seal, (e) and allows bv held unnecessary to give any furtlicr description of liini. Jiubr v Purix, 10 U. C. Q. h. 621. Acquiescence of the applicant cannot Ij^ properly used against him on an application to quash a By-law proveil contrary to law, when other interests, both public and private, than those of the applicant are affected. Per Wilson, J., In re Fairkm ana Sandwich East, 32 U. C. Q. 15. 582. (I)) The power delegated to the Courts summarily to quasli illegal By daws, &c., is one, so far as Municipal Institutions are conctriktl, peculiar to this country. Re Brvdle and lioinnanviUe, ,38 U. (.', Q.B, 580. It does not exist, so far as the editor is aware, either in (Irtat Britain or tlie United Sttites of America. See note k to this sectioa Before the statute 12 Vict. ch. 81, sec. 165, the Courts of Ujij^r Canada had not any power sunnnarily to quash By-laiai of a .Nhrnici- pality, see Jn re McO'dl and Peferhuruuijli, U. C. Q. 6. ')()2, anJ that power was not extc.ded to ordern and 7-etioIutioKs till 22 Vict. cL 99, sec. 194. See In re DanieU and liurfurd, 10 U. C. Q. B. 4:S; In re C t'here the seal of the Corporation, though not mentioned in the Clerk's certificate, was on the same page with the certificate, immediately above it and opposite to the signature of the Reeve and Clerk, the By-law wm &322.] Qt arfiJavit (/) that the s held tn he sufficiently com] Kl. Tlie Court will disi on a ciipy of the Bydaw, preil and Pri7ice Edwai V!T n ** ^^^ "'^Py Producee I M the Council, and by T. wi \m \^ ^^''^ sufficient. I, ItheBylaw from the Clerk of 31 If g^ 322,1 QUASHINO BY-LAWS. WX. ■Mmt if) that the same was received from the Clerk, ( J ail only when there is som By-law, &c. In re I 310 ; llmrHon v. Ontario, Smiulale, 17 U. C. Q. B. I ll)l ; In re Secord and Lin Liw, order or resolution is stances which, by the expi Tr I.iijl'fiii) and Uentwort/i V. E'l"! Xisnouri, 10 U. is in every case di8creti( ijuash, but that it mat/ y-liiw, luid not in fact a Jiy-hiw for the want of the coqiuMto Bcal, niiiy be looited upon iia u "reaohition or order," and mi mm Bulijeet to tiie Mununiuy juriindiction of tlio C'ouita on ftpphciUiouu (juaah. 'I'iie Couit haa refused to ([UaHJi a liy-iaw on thegrouml tli.it a quorum of f lie Council waa not prcaent at ita iiaaaing. Sutlirdnh'l V. EoKt Slnxi)iiri, 10 U. C. Q. 15. ti'Jd. Where mere errors of cakiiLi- tion are charged, unlesa clearly made out, the C(nirt will not (|ii,ivi the liy law. i'dj/nrd (tiid Lincoln, '21 U. (J. Q. H, Iti. Ami uvtn il hIiowu to exist and to be extensive, the Court will lean stroiigl) to the sii[iiiort of the Hy-law where it appears to have been acted ui«.ii. Oricr.-iiju (iitd Oid'irio, 'J U. C t^. H. (i'S.i ; >Spayjn's, wIumi ftucli by-law lian not booiv sub- Exception. mittod to, or lius not roc('iv«!(l th<* assent of Huch eloctors or iiit(|iiiyors, and in .' re Boqart . y.Bdlerlllf, ({ U. 0. C. P. 4L'.') ; Sfavdhi, and V>'sprn, 17 U. V. Q. B. li'U: see further S'larh-ff, v. York; 14 U. 0. C. P. 1()1 ; In re T)rnpc ml llowiltoii, 2") U. 0. Q. B. .3(5.3 ; In re Sfwlci) ntid WhidMor, 2.3 U. ('. Q. B. .5(i9; L<'dilh> ; h n I{ii'hardson and lionrd. itf CoiiiDiUwniers of Police for Toronto, •i-S U. C. Q. B. 621. The apidication under this section must bo lauile " H-vV/tm one year after the passing of the By-law," &c. If nut so made. It nhnli not Ih- entn-tninvd. 8co Smith v. Poonci/, 12 U. C. Q, B. (501, as to the meaning of similar words. It is in the discretion of the Court to ref|uire great ]ironiptness of application, ami to refuse to rpiash a BydaAV, even though the application be made within the year. See remarks of Richards, C. J., in Tai/lor (III/ Wed Wllllaiiis, .30 U. C. Q. B. .348 ; see further Carroll v. Ml, 10 Crrant G4 ; Oripr v. St. Vincent, 12 Grant 330. It was at ill times in the discretion of the Court to refuse to accede to an plication to quash a By-law when great inconveinence wfmld I ariie from the (;uashing. fn re Grant and Toronto, 12 U. C. C. 1 . 357 ; see furtlier note k to sec. 322. In the case of a By-law j imposing a rate and specially promulgated, the apjilic.ition is not to lie entertained after the term next after the third publication of the By-law. See sec. 321. Certain By-laws may bo cpiashed in I vacation. See sec. 326. (") If a By-law require the assent of the electors or ratepayers to reniler it valid, and no such assent be obtained, the By-law will be Mil void. See note o to sec. 286. And in such a case the applica- tion to quash the By-law ' ' may bo made at any time. " K 246 THE MUNICIPAL MANUAL. [ss. 324-326. promul gated. Qaa8hing by-laws ob- tained by bribery, etc. 'iP \ Time after 324. Ill case a by-law by which a rate is imposed has cMinotTe*^ been promulgated in the manner herein before specified, (o) quashed, if no application to quash the by-law shall be entertained (») Dromu - after the next Term of the Superior Courts of Commou Lav after the promulgation, (q) 36 V. c. 48, s. 242. 325. Any by-law the passage of which has been procured through or by means of any violation of the provisions of sec- tions two hundred .and first and two hundred and second of this Act, (r) shall be liable to be quashed u|)on any applica- lion to be made in conformity with the provisions hereinbefore contained, (s) 36 V. c. 48, s. 243. 326. Before detenning any application for the quashing of a by-law upon the ground that any of the provisions of the said two hundred and first and two hundred and second .vc- tions of this Act have been contravened in procuring,' the passing of the same, and if it is made to appear to a Judge of one of the Superior Courts of Law that pi'obable grounds exist for a motion to qurish such by-law, the Judge may make an order for an enquiry to be held, upon such notice to the parties afiected as the Judge may direct concerning the said grounds, before the Judge of the County Court of the County in which the Municipality which passed the by-law is situate, and lequire that upon such enquiry all witnesses, both against and in sui)port of such by-law, be orally examined and I iMsedure in such case. IiKjuiry by County Judge. (o) See sees. 319 and 320. (/>) See note m to sec. 323. ('/) The inconvenience of quashing a By-law imposing a rate, after it has been acted upon for months, is generally more than equal to the inconvenience of allowing a By-lav/, though technically defective, to exist. The eifect of this sectiun will be important, in curing tech- nical defects in By-laws imposing rates. The limitation applies to By-laws which have been specially promulgated, and commences at the time of such promulgation. Per Draper, C. J., in Boijart v. Belleville, 6 U. C. C. P. 425 ; and where the By-law imposes a rate, it would be well for the applicant moving against it more tlian a Term after its passing, to shew that it has not been specially pro- mulgated. Ill re Grant and Toronto, 12 U. C. C. P. 357 ; but see also romarks of Draper, C. J., in Boijart v. Belleville, 6 U. C. C. P. 425. If the By-law moved against be one requiring the assent or electors or ratepayers, and it be shown that such By-law was not submitted to the electors or ratepayers, the application to quash it may be made at any time. Ser note n to sec. 323. (r) See notes to sees. 201 and 202. («) See sec. 322. (f) See note I to sec ,32".] STAYING PROCEEDINGS ON BY-LAWS. 247 the by-law. cross-examiued upon oath before the said County Court Judge. (<) 2. The said County Court Judge shall thereupon return lutum of tlie evidence so taken before him to the Clerk of the Crown ovidenoe. and Pleas at Toi'onto ; and after the return of said evidence, aud upon reading the same, any Judge of the said Superior Coiuis may, upon notice to such of the parties concerned as he thinks proper, proceed to hear and determine the ques- tion ; («) and if the gi'ounds therefor api)ear to him to be j„^-ment, satisfactorily established, he may make an order for quashing said by-law, and he may order the costs attending said pro- ceedings to be paid by the parties or any of them who have supijoited said by-law ; and if it appears that the application to quash said by-law ought to be dismissed, the said Judge may so order, and in his discretion award costs, to be paid by the persons applying to quash said by-law. (y) 3G V. c. 48, S.244. 327. After an order has been made by a Judge directing gt^y of pro- aii inquiry, and after a copy of such order has been left with J^®*^^'^^^^'" the Clerk of the Corporation of which the by-law is in ques- tion, all further proceedings upon the by-law shall be stayed until after the disposal of the application in respect of which tlie enquiry has been dii-ected ; (a) but if the matter is not prosecuted to the satisfaction of the Judge he may remove the stay of proceedings. 36 V. c, 48, .s. 245. It) This section provides for an "inquiry," ami afterwards for "a hearing and determination." The inquiry is to be held before the Judge of the County Court, and the hearing and determination bcfure any Judge of one of the Superior Courts of Law ; but before an inquiry can be ordered, ' ' probable grounds " for a motion to quash the By-law must be shown to the Superior Court Judge to ffhom the application is made. On such inquiry all witnesses, both against and in support of the By-law, shall be orally examined and cruss-examined before the County Judge ; but apparently no express provision is made for compelling the attendance of witnesses on the iiiijuiry ; in all probability their attendance may be compelled by subjja'ua issued out of the Court in which the application is pending. («) As to what is a hearing and determination, see The King v. Juitken of Kent, 9 B. & C. 283, aud In re Judge of Perth and Robinson, 12 U. C. C. P. 252. (f) See note I to sec. 322. (a) A stay of proceedings on an application to quash a By-law is a novelty. No provision is made for it on an ordinary application to quash a By-law. It is not stated in what manner the stay of pro- ceediuya under this section is to be enforced. The ordinary mode of k \t ih 248 THE MUNICIPAL MANUAL. [8, i' i ii'i Municipality 328. In case a by-law, order or resolution is illegal in for acts^done whole Or in part, (b) and in case anything has been done under illegal under it (c) which, by reason of such illegality, gives any person a right of action, (d) no such action shall be brought until one month has elapsed after the by-law, order or reso- lution has been quashed or i-epealed, nor until one month's notice in writing of the intention to bring s\ich action has been given to the Corporation, (e) and every such action s enforcing a rule of the Queen's Bench or Common Pleas, is by attach- ment, in the nature of contempt. See In re Allen, 31 U. C. Q B. 458. (h) It is not necessary that the illegality should appear on the face of the By-law in order to brini? into operation the provisions of this section. If, for example, in the case of a road, it be run through an orchard contrary to the statu ',e, there can be no question alinut the By-law being illegal. In s... li a case the party must apply ami have the By-law quashed, beforj l.e ca'i sue for anything done umler tin: By-law. There may be c isc ! where parties might maintain actions without taking that course ; but it is apprehended the effect of the section is to de])rive partieb )f any action whatever against any one, so long as the liy-Iaw has ?• nther been quashed nor repe-iled, when- ever it is made to appear ti'tt wliat is complained of was done umler a By-law. lilack v. mdte et nl., 18 U. C. Q. B. 371 ; SmWf v. Toronto, 7 U. C. L. J. 239. Whenever the By-law be quashed or repealed, the action must be brought against the Corporation alone, and not against the person acting under it. Black v. Wliiti' d nl., 18 U. C. Q. B. 371. The quashing or repeal of the By-law is not t''/?;i/^io«.— A tende I m satisfaction of a cause under a By-law, order or \ i. How maAe.—A. tend mdfll V. Kimi, 6 C. & P''-'^. .7 V. Harvey, 3 Bing Ifiestiouforthe jury M hm,n;i, 4U. C. Q. B. |to be of specie; but a tern Iground of being notes, wil line precise sum intende If i"™M change. Bradu l«ight to be actually produ, IW-' V. Suwpstone, 3 C. I; '11; but this may be di [tender is made, as, where 32 1\ '■] TENDER OF AMENDS. 249 be brought against the corporation alone, antl not against any Notice of person acting under the by-Uiw, order or resolution. (/) 36 **'"*'°* V, e. 48, s. 246. 329. I" case the Coi-jioration tenders amends to the plain- Tender of tiff or his .attoi-ney, (g) if such tender is pleaded and (if "°®'"*'- ami this, as ah'eady mentioned, precludes the bringing of the action while the By-law, &c., subsists, see Carmichnel v. Slater, 9 U. 0. C. P. 423 ; but it does not Tollow that the Statutes of Limitations oiily begin to run from the time of quashing or repealing. It ia dear thiit actions may be brou^nt (though only against the Corpo- ntimi) for things done under the illegal By-law, &c., that is things (lone in pursuance of, or in execution of it, or under its authority ithiie in force. The t\£\A of action may be held to vest the moment thfthiui;i.s done, and, if so, every statut". limiting a right of action I.! tlie particular kim'. would begin to r^ forthwith. VVere it not so, very stale matters might be made grounds of action against Municinal CVnuicils, and which (in the case of individuals) wouldj be outlawed. (/) !t appears, therefore, that if anything has been done under a Bylaw, &c., which, being illegal, gives any person a righ'" of .action — 1. The action shall be l)rought against the Corporation that passed thi' Bylaw, &c., and not against any person who acted under it. '2. The action is not to be brought while the By-law, (^'c, is in force, nor until one calendar month has elapsed after the By-law, ic, is (juashcd or repealed. .3. iiefore hringin;^ it, one calendar month's notice in writing of the inteiitinii to bring it must first be given to the Co' joration. 4. Wiiether notice of action can be given hefort the By-law, &c., is (luashed or repealed is a question, but mateFif.! only in case the time for bringing the action is limited, and the time about to expire. See il-Kenzi'i'. v. KiiKjHton, 1.3 U. C. Q. B. fi34. (.'/I The law as to tender is not much understood by the general puhlic. 1. Didnitinn. — A tender in this section means the offering of money I in satisfaction of a cause of action arising out of something done j amler a By-law, order or resolution, quashed or repealed. 2. Huw maile. — A tender must be unqualified and unconditional. ^lliMl V. Kbm, 6 C. & p. 2.T/ ; J'nnimjH v. Major, 8 (.'. & P. 61 ; i'^'io. 7 V. Ilan-ey, 3 Bing. 304. Whether conditional or not, is a luestion for the jury. Marsden v. Gooile, 2 C. & K. 133 ; Milhurn Milhiirn, 4 U. C. Q. B. 179. Strictly speaking, the tender ought I to be of specie ; but a tender of bank notes, if not objected to on the ground of being notes, will be good. Blow v. limwU, I C. & P. 365. jlhe precise sum intended, or more, must be tendered, without |re.;uiring change. Brady v. Jow!^, 2 D. & R. 305. The money jought to be actually produced, Kram v. Arnold, 7 Moo. 59 ; Leather- W' V. SwH'pstone, 3 C. & P. 342 ; Thompson v. Hamilton, 5 O. I'* HI ; Init this may be dispensed with by the party to whom the jttnder is made, as, where defendant said he had the money in his 32 ■■■*. ij! 250 THE MUNICIPAL MANUAL, [s. 330. traversed) proved, (h) and if no more than the amount tendered is recovered, the plaintiff shall have no costs, but costs shall be taxed to the defendant, and set off against the verdict, and the balance due to either party shall be recovered as in ovdi- nary ca&es. (i) 36 V. c. 48, s. 247. iiii I Division VI. — By-laws Creating Debts. Requisite formalities. Sees. 330-332. Assent of electors, when required. Sec. 333. When special Council ineetinc/ sufficient. Sec. 334. When repealable mid when not. Sees. 335, 336. Illegcd rejieal to he ignored. Sec. 337. , Purchase of Public Works. Sec. 338. Rates to he imposed therefor. Sec. 339. By-laws for 330- Every Municipal Council may, under the formalities debtsT''*'"*^ required by law, pass by-laws for contracting debts by boiTow- ing money or otherwise, and for levying rates for paymnnt of j such debts on the rateable property of the Municipality, for pocket, and plaintiff said, ' ' You need not give yourself the trouble of offering it, for I will not take it." Domjlans v. Patrick, 3T. R. C84 ; Jnc/cson v. Jacob, 3 Bing. N. C. 869 ; Llado v. J/or*"• a? is otherwise provided in the next two sections of this Act : 1. The by-law, if not for creating a debt for the purchase when to of public works, (m) shall name a day in the financial year ^^''^ ^'' ([) The power here conferred is under the formalities required Ly law, 1, To pass By-laws for contracting debts by borrowing money or otherwise. 2. And for levying rates for the pajnnent of such debts on the ratable property of the Municipality, for any purpose within the jurisdiction of the CounciL In ordinary trading, Corporations have clearly an implied power to borrow money for the nurposes of their business, and to give securities for the repayment o: the same. Curtin v. Leuvitt, 15 N. Y. 9; Bami v. Merchants' Exchange, 1 Sandf. Ch. (N.Y.) 280; Beem v. PhtnixbloHs Co. 14 Barb. (N. Y.) 358; Fay v. NMe, 12 Cush. (Mass.) 1 ; Lucas \. Pitney, 3 Dutch. (N. J.) 221 ; Stration v. Allen, 16 N. J. Eq. 229 ; but whether such a power is to be implied in the case of a Municipal Corporation is not so clear. See Bank v. Ch'd- Ikuthe, 7 Ohio, Part II. 31 ; State v, Maddison, 7 Wis. 582 ; Hills V. Gleasoii, 11 Wis. 470 ; City v. Lamson, 9 Wall. (U. S.) 477 ; Kttclium v. Buffalo, 14 N. Y. 356; Canal Bank v. Su])ervisors, 5 Denio. (N.Y.) 517 ; Barker v. Loomis, 6 Hill. (N. \^) 463 ; People wBnnnan, 39 Barb. (N. Y.) 522. The power, however, is here in express terms conferred subject to certain limitations. Express power to borrow implies the power to give security to the lender. RmWoad Co. v. Evansville, 15 Ind. 395 ; Commomcealth v. Pittsbury, U Pa. St. 49« : Middleton v. Allegfiani/ Co., 37 Pa. St. 237 ; Se>/hert v. PilUhimj, 1 Wall. 272 ; Dp Voss v. 'Richmond, 18 Gratt. (Va.) 338 ; Vm v. Burlinyion, 3 Wall. 654 ; Galena v. Corwith, 48 111. 423. It has been held that a Municipal Corporation has no power to borrow at a greater rate o.^ interest than six per cent. See Wilson and The County ofEhjiii, 13 U. C. Q. B. 218; but see nowiVorll. l3ee McCormkk v. Oakley, 17 U. C. Q. B. 345. (o) See note t to section 330. . I. '^t 11 I' r; ■ P V ; i 4;, i I fflif 256 Amount and object o( debt : Amount to be raisod annually ; Value of roal proi)erty ratoablu ; Spscial rate for inturcnt and Hlnking fund, etc. THE MUNICIPAL MANUAL. [s. 332 J. 333,] nV-LA\VS HE That debt, created on security of Bpecial rate. Municipal council may make princi- pal repay- able by equal annual in- stalments. (ft.) Tho aiiiouiit of tlio debt which such by-law is in- temlfd to ci'cate, (h) and, in some brief and geneinl terms, tho object for which it is to be created ; (b.) Tlio total amnunt re(iuired by this Act to lio raised annually by .special rate for paying the debt and interest iiiidcr tho by-law ; (r.) The value of the whole real ))roperty rateable iimler the by-law, as ascertained and finally determined as aforesaid; ((/.) The annual special I'ate in the dollar or i)er foot front- age!, or otho! vise, as the ease may be, for paying the intircst, and eivating a yearly sinking fund for ])aying the i)riiici[)alot' the debt, or for discharging instalments of principal, iicconl ing to the foregoing provisions of this Act, or — in case the debt is payable under the provisions of section three liumlruil and thirty-two — for paying the instalments of priucijial auj interest as they respectively become payable ; (e.) That the debt is created on the security of tlie special rate settled by the by-law, and on that security only. ."JG V, 0. 48, s. 219. 332. In any case of passing a by-law for contracting a debt, by borrowing money for any pui"i)ose, (c) the Municipal Coun- cil may in its discretion make the principal of such debt repayable by annual instalments during the currency of tlie period (not exceeding thirty years, if the debt is for gas or water works, and not exceeding twenty years if the debt is for any other purpose) within which the debt is to be dis- charged ; such instalments to be of such amounts that the aggregate amount payable for principal and interest in any year shall be equal, as nearly as may be, to what is payable for principal and interest during each of the other years of such i)eriod ; and may issue the debentures of the Municipal Corporation for the amounts, and payable at the times, cor- responding with such instalments, together with interest, annually or semi-annually, as may be set forth and provided in such by-law. (d) (&) See note u to sec. 3.30. (c) See note k to sec. 330. (d) The ordinary mode in to provide for the raising of a certain amount for tlie annual interest and a certain amount for the arnual smking fund, so as, within the period specified in the By-law, to dis- charge the debt and interest. See sub-s. 3 & 4 of sec. 330, aud uotes "'e^'to. Hut the Council -'^■ctioiiinako the principal ™mo,k-is,ft,lopted, it, .In .I'l'imvestnientofthesinkii that the nistalnients shall 1 hffl'mnt payable for principa f"™lya.sn.ity be, to U unnge,.hoftheotherye. teui that the instalments sh Itomure easily understood I Kincpal, anditisdeclai an,l,ntcrestiu any year S.'^l':l>-f,l^J«forpWcipa F «"uM, muier ordinary ci iMiomyearto year. Whe l^e provision that the mr. (£3;1-11 be eaual. ^^ J'^ieenotespaudrytos. '>) For re.asons already ex W See sec. 331. f-' reqmres tiie exnrn^a „„„ J. 3;)3.] BY-LAWS REQUIRINO A8SEXT OF ELECTORS. 257 2, Such by-law shall set forth tho annual special mto to be Whtt bv- niist'il in pacli year during the period of tho currency of tho Ijt'oitt. (Iclit wliioli sliall bo suHicient Hcct)rding to tho amount of nitf.iliK' ])n)j)orty, appearing by the last rtwised or revi.scMl and eiiiializol assessment rolls before the passing of the by-law, to (iLscImrge the several instalments of principal and the interest itccniiiig due on said del»t, as the said instalments and iiitemst bocoine respectively i)ayable, according to the terms (if siiiJ by-law ; («) anality of the Coiiuty (or United Counties), ol , at , in tlio said County (or United Counties), Ml tho day of , 18 , at tlie hour (tf cckk in tho noon, at whieh time and place the mem- kn of th« Council are liereby required tu attend for tho purpose alMri'sr.iil. O. //., Clerk. 3; V. c. 16, s. 8. 40 V. c. 7, Sched A (175.) 335. Where part only of n sum of money provided for liy a by-law has been raised, the Council may repeal the by- I law us to any part of tho residue and as to a proportionate Tklld union pMMd at nicetlntc ipeclally uallud and held throo inonthc after notice, lie. Form of notice. When part only of money roisod, by- I (I) See note h to sec. .333. (/) In other words, shall be illegal. As to setting aside a By-law j iur illegality, see sec. 322 and notes thereto. \in) The requisites to tho validity of the By-law appear to be — 1. That it be jias-sed at a meeting specially called for the purpose |of considering tho same. 2. Such meeting to be held not less than three months after a Icopy of the By-law as the Siime is ultimately p;wsed, together with a JDotice of the day appointed for the meeting, has been published. •". Such publication to be in some newspaper issued veokly or Icftener within the County as constituted for judicial purposes, or, if Ithere be no such iiublic newspaper, then in a public newspaper pub- ilisbeil nearest the County. i'i) See note e to s. 228. H If, between publication and passing, a material alteration is owe in the By-law, the By-law will be invalid. In re Bryant and ""'■Ukmjh, 13 U. C. Q. B. 347. (p) See note y to s. 286. 17) See note s. to s. 320. '..< 260 law nia.v be rfponltHi ai rcHlUuv. Proviso. Until debt tiaid, curtain iv-l.iw» tun- not l>o rvpviilej. Nor nltcreil. THE MUNICIPAL MANUAL. [s. 336. SI 337, 338.] c'Onth Excrptions. part of the special rate imposed therefor, (r) provitltMl the rej)ealing by-law recites the facts on which it is fouiiilcd, and is ajjpointed to take etlect on the thirty-first day of Decemljer in the year of its passing, and does not aftect any rates due or ])enalties incurred before that day, and provided the by-law is tirst ajiproved by the Liei'tenant-Governor in Couucii 3G Y. c. 48, s. 2iyX 336- Alter a debt has been contracted, the Council sliall not, until the debt and interest have been ])aid, rei)cal the liv- law nnder which the debt v.as contracted, or any hy-liiwiur l)aying the debt or the iut«'rest thereon, or for ])roviding there- for a rate or additioual late, or appropriating thereto the sur- j)l«s income of any work or of any stock or interest therein, or money from any other source ; and the Couucii sliall uot alter a by-law providing any such rate, so as to diminish the amount to be levied under the by-law, except in the cases oereiu authorized, {n) and shall not a])p)y to any other pur- \)Oi',ii any money of the corporation which, not having li«n previously otherwise apju'opriatod by any by-law or resolutioi;, (;•) It is an erroneous impression, when once a Municipal Council has (leterniinoil U'< contract a loan, in order to aid, fiu- example, in ailvancing a public work, that the Mhole matter of the Bylaw passed for that object is entirely out of their control, and not niertly sueh parts of it as are necessary for securing those who bue advanced nu)uey under its provisions. Jn re JJitl and WaUinijItnui, 9 u. (.'. Q. B. :no. Iso By-law pas- ad under this section can take efTect — 1. Unless it recites tlie facts on which it is founded. 2. Unless it be appointed to take etl'ect on the Sis; December in the year of its passing. X Nor if it atleet any rates due, or penalties incurred, befort the j day it t.ikes eiitct. 4. Unless it be approved by tha Lieutenant-Governor iu Council (s) A Municipal Council has in general power to repeal ami alter I the By-laws of the Municipality. Note y to sec. 50. This section j creates an exception to the general rule. The proviGions of it are I necessary for the security of creditors. It is enacted, lirst, that no j Council shall either repeal a By-law under which a debt was con- 1 tracted, or, secondly, alter a By-law providing tae rate so as toj diminish the amount to be levied under the Bylaw, &c. 'IlieBvj law, liowover, may, under certain circumstances, be in part rejiealeil, | pursuant to sec. 335. So the rate may, under certain circumstance, j be reduced, pursuant to sees. 350, 351. If the repeahng By-laM'WJ not come under one of these enactments it must be qua^lieih i»| re Smidi and Oakland, 24 U. C. C. P. 295. 88. 337, 338.] CONTRACTING DEBTS TO THE CROWN. has been directed to bo ft[)plie(l to such payraont. (/) 3G V. c. 48, s. 254. 337. No oflficer of the Municipality shall neglect or refuse to carry into effect a by-law for paying a debt under colour of 11 l)y-law illegally attempting to repeal such first mentioned bvlaw, or to alter the same so jus to diminish the amount to be levied under it. (n) 36 V. c. 48, s. 255. 338. Any Council may contract a debt to Her Majesty in the piirchiLse of any of the public roads, harbours, bridges, huildinj^'s or other public works in Ontario, whether belong- w to this Province or to the Dominion under colour of illoKal by-law. Municipal counciJHinay purchase pnbllo works, etc., ' and contract del lis to Crown, althoufi;h no special or other annual rate settled. [1] This requires the sinking fund to be loft untouebcd, and pro- I hihits the Council withdrawing any money transferred thereto, or 1 otherwise applying any fimda that have l)een approi)riated thereto. j See 7)1 re Barber v, OUnwa, 39 U, C. Q. 15. 406. ('0 Tlie object of this section is, to nonipel MviiMoipal Corporatuins . 'Itheir officers to keep faitli with creditors. \V'ii. a the latter I ailwince money upon the security of a By-law for its repayment in I ulidle or in part, within a specified period at a spocified nite, any j Bylaw attempting to repeal such mentioned By-law or altering the I Mine, so as to diminish the amount to be levied under it, would be I a fraud, wliether so designed or not. But see see. ,3.35 et seq. I Besides, it is the duty of the Traasurer of every Municipality to see j that the money collected under such By-law is properly applied to I tile payment of interest and princip;il of debentures issued under the IBvLw. Sec. 386. The 207th section of 29 & .30 Vict. ch. 51, pro- jvideil that an officer guilty of such neglect as specified in this section Ijiliouhl be guilty of a misdemeanor, and be punished by fine or jiinprisonment, or both, at the discretion of the Court whose duty it j night be to ^ass sentence upon him. This being matter relating to jcrime and cnminal procedure, and so within the exclusive jurisdic- Iton of the Timinion [legislature, is omitted from the section here limiotated, but it is presumed that the enactment is still in force. («) The statute 12 Vict. cap. 5, sec. 12, authorized the Governor |in Council to contract with any Municipal Council or other local l-orooration, for the transfer to them of any of the public rofwls, wbours, bridges, &c., which it might bo more convenient to place 1 n 41. •»-r ^,. ?[?'; ' mh'^ m 252 THE MUNICIPAL MANUAL. [s. 338, bonds, deeds, covenants and other securities shall be valid although no special or other annual rate has been settled or under the management of such lociil authorities. By statute 14 k 15 Vict. cap. 124, any Municipal Corporation in Upper Canada minht contract a debt to Her Majesty in the purchase of any roads, &c., and the Municipality might enter into, make or execute all or anv bonds, deeds, covenants or other securities to Her Majesty, whick such Municipality might deem fit, for the payment of the amount ot purchase money of any such work, and for securing the performance of any conditions of sale ; and might also pass all By-laws for any of the purposes ; and such By-laws, debts, bonds, deeds, covenants or other securities were to be bindin" and valid on such Municipality to all intents and i^urposes, though no special or other rate per annum should be settled or imrxjed, to be levied as provided under the 177th section of the Municipal Corporations Act of 18-19. But by section 2, the Corporation was nevertheless authorized, in any By-law for the creation of such debt, or for making or executing any such bonds, deeds or other securities, as aforesaid, to Her Jklajesiy, or in any other By-law by the Corporation, to impose a special rate per annum of such amount as the Municipality might deem expedient, for payment and discharge of such debts, bonds, covenants or otlier securities, or some part thereof ; and every such By-law should be valid and binding on the Corporation, though the rate settled or imposed should be less than was required by the 177th section c'the | Municipal Corporations Act for 1849 ; and all provisions of that Act | (except in so far as they were inconsistent with the Act then king passed) were to apply and extend t) every such By-law, and tk moneys to be raised thereby, as full; as they would extend to any By-law enacted by any such Municipality for the creation of any debt or raising any loan, as provided in said 1771;h section, and to tiie I moneys thereby raised. By statute 16 Vict. cap. 181, s. 39, it was enacted that none of the provisions of the 4th or Kith sections of the Municipal Corporations Amendment Act of 1851 should affect or apply to any By-b w passed or to be passed by any Municipahty in | Upper Canada foranj cf the purposes mentioned in 14 & 15 Vict. ap. 124, or to any debts, bonds, deeds, covenants or other securities con- tracted, made or executed to Her Majesty, unJer the provisions oi that Act, or for any of the purposes therein mentioned. By statute I 18 Vict. cap. 133, it was enacted, in effect, that no By-law, to be | passed for raising money upon the credit of any City, Town, Too- ship or Village Corporation, should have force or efifect until the I approval of the Municipal electors should have been obtained. All these provisions were rei>ealed by the Municipal Institutions Act of 1858 ; and see. 226 of Con. Stat. U. C. cap. 54 (of which sec 229oi 29 & 30 Vict. cap. 51 was a re-enactment) was in effect substituted for them. The fair result would seem to be that none of the sections 330 to 332 of this Act, relating to By-laws creating debts, extend to By-laws made for the purchase of public works, except in the manner and to the extent po..nted out in the second paragraph of the section here annotated, and that such By-laws would, at all events if passed I by a County, be valid, although not containing any special rate, ami I although not assented to by the ratepayers. See In re O'lu'd and I BY-LAWt Division VII.— By ] (A) See note I to sec. 330. hy York and Peel, 15 U. C. C. P. 249. a 339, 340,] by-laws respecting yearly rates. 265 imposed to be levied in each year, as provided by sections tliiw hundred and thirty to three hundred and thirty-two of tlii8 Act. 36 V. c. -18, s. 256. 339. The Council may in any by-law to be passed for the Rates may i» creation of any such debt, or for the executing of any such IhJ'paynwnt bonds, deeds, covenants, or other securities as aforesaid, to of debts con-- Her Majesty, or in any other by-law to be passed by the wuh^the Council, settle and impose a special rate per annum, of such gJg^^o'kB amount as the Council may deem expedient, in addition to all other rates whatsoever, to be levied in each year upon the assessed rateable property within the Municipality, for the payment ind discharge of such debts, bonds, deeds, covenants or other securities, or some part thereof, and the by-laws shall be valid, although the rate settled or imposed thereby is less I than is required by the sections last mentioned ; and the said I sections shall, so far as applicable, apply and extend to every uch by-law, and the moneys raised, or to be raised thereby, I as fully in every respect as such provisions would extend or apply to any by-law enacted by any Council for the creation j I of any debt as provided in the said sections, or to the moneys I raised or to be raised thereby, (b) 36 V. c. 48, s. 257. Division VII.— By Laws respecting Yearlyj.Ratks. Amou.it and Limit of Bates. Sec. 340. lluw estimated. Sec. 341. Estimates and By-laws tc be annual. Sees. 342, 343. Incase of deficiency. aS^cc*. 344, 345. In case of excess. Sec. 346. Dinefrom lohich Taxes imposed. Sec. 347. Priority of Debentures. Sec. SiS. Power to Exempt from taxation. Sec. 349. Reduction of Special Hate. Sec. 350. Fonmdities in By-law therefor. aS'cc. 351. 340. The Council of every Municipal Corporation, and of Yearly rates I every Provisional Corporation, shall assess and levy on t^^^ ^^'m^ '"I't'*' Iwhole rotea'jle property within its jurisdiction, (c) asuflScient pay all debts I sum in each year to pay all valid debts of the Corporation, P'^"the ye»i. (6) See note I to sec. 330. (c) The assessment is to be on "the lohole ratable property, &c." I An assessment, therefore, on a portion of the ratable property, such » wild lands, wonld be invalid. % f1 MW. It 'ti M 264 THE MUNICIPAL MANUAL. [s. 3W. V- t ■fs ill' I^mS It : Aggregrate whether of principal or interest, falling due within the year Oh rate limited * *' 'V ' to two cents ~ in the dollar. ^^ rpj^g power given is to assess and levy, &c., a sufficient sum in each year to pay all valid debts falling due within the year. It is not *' easy to define what is meant by " a valid debt." It may bo described as a debt which the Corporation is legally liable to pay," and the pay. • ment of which may be enforced by process of law. The word "debt " must be taken as used in its most comprehensive sense, "as some- thing due from one to another." Per Spragge, V. C, in Wilkkand Clinton, 18 Grant 559. Then the assessment is to be to pay all valid debts "failing due loitlnn the year." The general rule is that Muni- cipal bodies ought not, in one year, to levy a rate to pay debts due in a past year. The ratepayers of a locality should not be required to pay for the benefits which the rateptayers of a previous year enjoyed. Each year's debts should be paid by that year's assess- ments, unlsss in those expressly authorized cases where a deviation is allowed by statute. Per A. Wilson, J., in Ilaynes v. Copdmd et al., 18 U. C. C. P. 167. After a lupse of years the ratepayers would be a totally dififerent body from that which it was a few years previously. "Purchasers, availing themselves of their right of inspecting the annual reports of the Auditors of the lial)ilities of the ratable property in the City, have acquired property which lu Cm I absence of any such liability appearing, aa that which is now asserted, ' they may fairly claim to hold discharged of any such liability as that now sought to be imposed upon it. To charge the present owners of real property with this liability would seem to partake of the character of a fraud upon them, &c." Per Gwynne, J., in Fronkum V. Kingston, 20 U. C. 0. P. 64. The general mconvenience of retro- spective rates has in England been long known and recognized in the Courts of Law, on the ground that succeeding ratepayers ought not to be made to pay for services of which their predecessors have had the benefit. See The Kinq v. Ilaworth, 12 East. 556 ; CortU v. Rmi Watertvorks Co., 7 B. & C. 314 ; TJie King v. Fiininhire, 5 B. & .U 761 ; Woods v. Heed, 2 M. & W. 777 ; Jones v. Johnson, 5 Ex. 862; ^S". C. in Error, 7 Ex. 452. One object of the law, as ratepayers fluctuate, is to protect i)resent inhabitants from being burthened with the expenses of their predecessors. The King v. Wavell et al, Doug. 116; The King v. Goodcheap, 6 T. K. 159; Attorncii-Gmrd\ v. Wigan, 18 Jurist 299. As a rule, money required for Municipal purposes ought to be raised, as the law directs, beforehand, instead of being in any manner or by any person advanced, in the exjKCta- tion of reimbursement by the Municipality. See The King v. Haworth, 12 East. 556 ; Tawney's Case, 2 Ld. Rayd. 1009; Dnicm V. Wilkinson, Cases Temp. Hard. 381. But see Biirnham v. Pekr- horongh, 8 Grant 366 : S. C. 7 U. C. L. J. 73. It is for reasons such i as these that the power to assess under this section is restricted to | debts falling due "within the year." See Clapp v. Tliitrlow, 10 U. C. C. P. 533. The result appears to be that no Municipal Council has power, witliout the consent of the electors, to authorize the \ expenditure of money for purposes not falling under the head of ordinary expenditure, without having tht money in hand to meet the demand, and without making provision, by rate or otherwise, to raise the required amount to meet the demand when due. McMuskr v. Netvmarket, 11 U. C. C. P. 398; S. C. 8 U. C. L J. 44; see also] i 340.] AMOUNT . but no such Council 8 GU and Moore, 27 U. i 154. The policy of the Is is not money in hand t arfidpaHon, or that othei within the current year. may be prevented. By t If there were no such pc migh^ allow arrears of del bind future Councils and permitted, there would b< cipal Councils. The Legi the ratepayers of the se pjvrers entrusted to the li rity fur many purposes to tions and limitations upon j with the Municipal Coun< I pnu are exercised with a I tions. If they neglect thi thank for any inconvenien I and they certainly should : i in their favour, and furnisi j provisions of law which art i less or unauthorized expen Cmmh. See Mellish v. 1 Pfln-borough, 19 U. C. Q. \Q; Cnm v. Ottnioa, 23 I iU.C. C. P. 150. See furt B.Wl; Potts V. Dunnville, htld, that a Municipal Cor that the cause of action a and falling due in a pre ordinary expenditure of 1 Jfhich no rate was by B jvrould be held that there j valid debt incur. ed in one I it in that year, does it be the debt paid or tht [omission? Per John Wib CP. IG8. If the debt be 1 I should be allowed to recove Ijadgmeut productive is no c I™ ju^lgment should not be I IB. 774 ; Pnyne v. Brecon It (.311; Hartnall v. Pm If.J^are, 19C. B. N. S. 8J Vmtm. 19 U. C. Q. B. 28 ^m-d of Works. L. R. IOC jAmenca there is an express J'l.v year subsequent to the c ■jfe declared illegal and void, \'Mnch V. Ddroit, 12 Mich. 34 m J 340.1 AMOUNT AND LIMIT OF YEARLY RATES. but no such Council shall assess and levy in any one year 265 CM wul Moore, 27 U. C. Q. B. 150; and Grant and Piial'mck, lb. 154 The policy of the law appears to be that all debts, where there is not money in hand to meet them, should be met by a rate in at/iW/w/ion. or that otherwise the amount should be raised by rate \rithin the current year. By the observance of this policy, abuses may be prevented. By the neglect of it, abuses will assuredly arise. If there were no such policy to be observed. Council after Council migh* allow arrears of deb ;s to accumulate year after year, so as to bind future Councils and t > burthen future ratepayers. If this were permitted, there would be no check upon the extravagance of Muni- cipal Councils. The Legislature, in order to protect the interests of the ratepayers of the several Municipalities against abuse of the pijwers entrusted to the Municipal Councils, and which have autho- rity fur many purposes to bind them, have provided certain restric- tions and limitations tipon their powers. It is for those who contract (rith the Municipal Councils to see for themselves that the powers given are exercised with a due regard to such restrictions and limita- ; tions, If they neglect this, they have their own want of caution to ; thank for any inconvenience or loss they may suffer in consequence, ; and they certainly should not expect that such neglect should ojjcrate in their favour, and furnish an argument for disregarding those wise pn)vi3ion8 of law which are designed to protect ratepayers from reck- less or unauthorized expenditure or incurring of debts by ilunicipal fouiicils. See Mellish v. Brantford, 2 U. C. C. P. 35 ; Scott et al. v. \ Ffinhomuih, 19 U. C. Q. B 469 ; Wriciht v. Qreij, 12 U. C. C. P. [4:9: C/ms v. Ottawa, 23 U. C. Q. B. 288; Hnynes v. Copeland, 18 lU.C. C. P. 150. See further, Wentworth v. Hamilton, 34 U. C. Q. . m ; Potts V. Diainvilk, 38 U. 0. Q. B. 96. It has therefore been ;lil, that a Municipal Corporation, sued for work done, may plead I that the cause of action arose for and concerning a debt incurred ami falling due in a previous year, which was not within the ordinary expenditure of the Corporation for that year, and for which no rate was by By-law imposed. 76. In such a case it would be held that there was no "valid debt." But suppose a I valid debt incur, ed in one year, and the Corporation omit to levy I it in that year, does it become a less valid debt the next ;^ear ? lis the debt paid or the duty extingiiished by reason of the j omission? Per John Wilson, J., in Haynes v. Copeland, 18 U. C. IC. P. 1G8. If tlie debt be not paid or the duty discharged, plaintiff jihould be allowed to recover a judgment. The inability to make the |jiid(,Tnent productive is no defence to the action, nor any reason that Ithe judgment should not be obtained. See PallUter v. Gravesnid, 9 K'.B. 774; Payne v. Brecon, 3 H. & N. 572 ; Biixh v. Martin, 2 H. ItC. 311 ; Hartnall v. Rijde Commisaionerg, 4 B. & S. 361 ; Hartley jv, Mare, 19 C. B. N. S. 85 ; Scott v. Burge.sK and Bathitrnt School Umstets, 19 U. C. Q. B. 28 : Frontenac v. Kim/ston, 30 U. C. Q. B. 1534 ; ,S'. C. 32 U. C. Q. B. 348 ; See further Stratton v. Metropolitan Umd of WorU L. R. 10 C. P. 76. In some of the United States of JAmerica there is an express prohibition against contracting debts in liny year subsequent to the current year, and in such cases the debts lire declared illegal and void. See Jonas v. Cincinnati, 18 Ohio, 318 ; Y^'Mrich V. Detroit, 12 Mich. 279 ; Philadelphia v. FUuwjen, 47 Penn. 34 'if t •* 266 TK»S MUNICIPAL MANUAL. [s. 340. more than an aggregate rate of two cents in the dollar on the actual value, exclusive of school rates, (e) ProTision 2. If in any Municipality the aggregate amount of the ag^gato'' rates necessary for the payment of the current annual expenses not sufficient of the Municipality, and the interest and the principal of the payable ' debts contracted by such Municipality on the twentv-iiiuth within the day of March, 1873, exceed the lAid aggi-egate rate of two year. cents in the dollar on the actual value of such rateable It :' r^ prop- V. riiUwlcljihiu, see cilsn, DU-lij Davenport, IJ St. 21 ; JuhnHon v. Philadelphia, lb. .382 ; Bladen 60 Penn. St. 4()4 ; Wallace v. St. Jose, 29 Cal. 180 ; V. Cedar Falls, 27 Iowa, 227 ; Daveiijwrt Gaa Co. v, Iowa, 229. (e) The limitation as to the amount of rate was first intrwluccd hy the 29 & .30 Vict. nap. 51, sec. 225. The rates in some Municipalities were, before the passing of that Act, so rapidly increasing as to cause alarm ariong the ratepaj'ers, and seriously diminish the value of property and so threaten to impoverish tlie ratepayers. The remedy applied is that of limiting the aggregate animal taxation to "two cents in the dollar on the actual value, exclusive of school rates. " If an attempt were made' to exceed the restriction, no doubt the Court of Chai'cery would, upon a proper case being made out, inter- fere by injunction. See The Edinhur ..sWK^B^^ 342. The Council of every County or local IMunicipalitv shall every year make estimates of all sunis which may l»e re- quired for the lawful purposes (i) of the County or local Muni- cipality, for the year ir; which such sums are required ij be levied, each Municipality making due allowance for tlie cust of collection, {j) and of the abatement and losses which mav for capitalizing the annual values of real property at six per cent,, and equalizing all values, with a view to the imposition of County rates. But since 1st January, 1867, the distinction has been aholislicd. Actual value is now tlie rule in all Municipalities, Under the old law, a By-law impisinj^' a rate for County purposes, to be levieil on actual . alue, and in Villages on annual value, w.x'i held not to be illeg.al. O'ftcriiun v. Ontario, 9 U. C. Q. B. 02.1 I'nikr vJon. Stat. U. C. cap. 31, sees. 155, 15(5 and 157, a portion of jm-j expenses to be Jjorne by a City and County was to beui proportion tn till; assessetl value of all the ratable properi/y in each, and it was •enacted that in comparing the value of ratable property in any City or Town and County for the purpose of the Act "the assessed annual value sliall be hehl t > be ten per cent, of the actual value " so tint al- though for the general city jjurposes property was to be rated at an an- nual value of .$G on an ;ictual value of $100, yet as betweju the City ami Ooun ^y, for jury expenses, tiie annual value of the Cily property was to be dee "d ten per cent, of its actual value, which would make the ac- tual value of City property for this purpose ten times six pe; cent,, or sixty ]>er cent, (instead of one hundred per cent.) of its actual v"Jue, The ef Jct of this was to reduce the actual value of City property, which was generally rated much higher than County property, in' throwing off forty per cent, of its actual value, and to make sixty jwr cent, of the actual value represent the total actual value. It was the mode under that Act adopted to equalize the Rural and City rating. But by and since the Act of 1866, all real and personal property are estimated at actu.il value in all Municipalities, and the rule prescribed l)y the Con. Stat. U. C. cap. 31, sees. 155-157 has been held to be superseded, greatly, as it is said, to the disadvantage of Cities. Froutcnac v. KiiifjstuH, 30 U. C. Q. B. 584 ; S. C. 32 U. C. Q. B. 348. (i) Lawful purposes. Municipal Councils, which are the creatures of Statute Law, derive all their powers of taxati'^n from Statute Law, if the purpose of taxation be not either expressly or infer- entially authorized by Statute, it is not a lawful purpose. Minol v. Inhabitants of WeM Roxhury, 17 Am. 52. {j) In making yearly estimates of the sums required, it will be necessary for the Council to make du:. allowance in r^'ipeci; "^f the foUov/ing : 1. The cos I; of collection ; 2. Abatement and losses which may occur in the collection ; 3. Taxes r n lands of non-residents that may not be collected ; and accordingly have a margin sufficient to cover drawbacks ansiug from any or all af the foregoing causes. It is not necessary that the By-law should set forth the edtimatt s on which it is founded. FLtcher and Euphrasia, 13 U. C, Q. B. 129. Mentioning a speeihc 1 ot'cur ill the collecti( of non-residents wh s. i;i. sum to 1)6 raised for su an estimate that sucii lliiliinson, C. J., Jb estimates have been m wanting. H). A loca in pass a By-law of its Ik A By-law authori ]iuri)ii.ses, and donh/e th {lurpdses, is clearly bi purpf^:-;i'S to the full an in the other, is, on the t'ouncil, for it is exercis bii' exi)re8.sly confcrre only argument offered 1 Council had ascertciinei held by non-residents, i (.'oHuty By-law would I a considerable deticien Township Treasurer wi such a By-law was nece the jmrposes of this ar^ tions of the Township ( facts on which they reh (though if our deci'-.ion' have to be indispjnsabl before u.s) ; but v, e thin not sustain the B /-law, imrjiMe of mi'etinif a dJji would enable tli3 Tow expressly to meet it," &i enactinr; "tliat the sum raised on all rata.'de proi expenses on the Townsh iwhiM, and a portion c and bridges as the Couii remain, to be handed < ensuing year," was quas 134. Draper, J., said: jdtogother. As to the p bad, for the reason given i3 C. C. Q. B. 129. 1 telling how much must I be raised ; nor yet can it pence in the pound must ^^'375 which the Townsh; "e also other apparent iiecessa_ry to advert to ft 135. It is now ex //, Council, in paying over supply out of the funds c .» 5, 242.] ANNUA!. ESTIMATES. otcur ill the collection of the tax, and for taxes on the lands tif non-residents which may not be collected. 32 V. c. 36, s. 1.x juui to 1)6 raised for specific purposes mav he treated aa setting forth an tstiinate that sucii sum is required for these purposiis. Per llnliiiison, C. J., Jb. 133. The Court vill intend that proper eitiiiiates have been made, in the absence of evidence th..t they are wanting. If'. A local Municipality has not, it seems, the power to [lass a By-law of its own, imposing a rate in aid of a County rate. /'/, A By-law authorizing a levy of certain moneys for Township puqHises, and dotihle the amount required by the County for County [luriKiscs, is clejirly bad. lb. " To raise moneys for those same )iiirii':-:es to the full amount in one case, and to double the amount in the other, is, on the face of it, beyond the power of the To ./nship (.'mintil, for it is exercising a power not only not conferred upon them, 1)11 exi)re8sly conferred upon another Municipal Corporation. The iinly argument offered to justify this course was that the Township CiiuiR'il had ascertained that, owmg to the large proj)ortion of lands held liy non-residents, a sum very far short of that imposed by the (.'(iinity Bylaw would be collected by the collector on the roll ; that a ciinsiilerable deficiency woidd remain to Ijc made up which the Township Treasurer would have no i\\\v\i. to meet, and therefore such a By-law was necessary to supply tliose T'lnds. . . , For the purposes of this argument we will assume tlie object and inten- tions of t'le Township Couuc'l to be what are stated, and that the (acts on which they rely ad requiring them to take this course exist (though if our decision had to reat upon any such ground, it would have to be indisp insable that all those facts should be established hefore us) ; but we think, assuming everything suggested, that will not sustain the B/-law, which is not, on the. fact of if, ilircctvd to the jmrjiose of vipetiiiii a deficiency, and does not even stKjijent any, if that would enable tlu Township Council to raise money by By-law expressly to meet it," &c. Per Robinson, C. J., Ih. 132. A By-law tiiactinrj " that the sum of three pence in the pound be levied and raised on all rata'Je property, to raise the sum of .t'375, to defray all expenses on the Township for the current year, Count!/ and Towu'^hip iixhiiled, and a portion of said sum to be laid out on repairs of roads and bridges as the Council thinks most wanted, and if any balance remain, to be handed over to the credit of the Township for the ensuing year," was quashed. White v. Collinijwood, 13 U. C. Q. B. 1S4. Draper, J., said : " In our opinion this By-law must be quashed altogether. As to the part imposing rates for County purposes, it is had, for the reason given in the preceding case. Fletcher v. Euplirasia, 13 U. C. Q. B, 129. And then this By-law affords no means of telling how much must be deducted from the sum of £375 directed to he raised ; nor yet can it be ascertained how nmch the rate of three pence iu the pound must be reduced ii order to raise that portion of t'375 which the Township Council \w'i authority to impose. There are ^Iso other apparent objections to this By-law which it is not necessary to a^lvert to for the purpose of sustaining our judgment.'' ill. 135. It is now expressly enacted that every local ^lunicipal (.ouncil, in paying over . . . it.'^ share of any County rate shall supply out of the funds of the Municipality any deficiency arising from 26» 270 By-Iawi for raUinK iiKinuy by rate. THE MUNICIPAL MANUAL. [a .-j^j 343. Tiie L'ouiioil of every Municipality mny pass one l,v. Iiiw, or several by-lawH, authorixiug the levying and collect iii* of a v-^te or rates of so much in the dollar upon the asspssed value of the [troperty therein as the Council (hicnis siiffi(>i,.i)t to raise the sums reijuired ou such estimates. (^) ',V2 V c 3i3 8. 14. tlip non-pnipnctit of the t(ixe», Imt shall not be held an.iwcrablo fur any duHoiency arising from tlie abatcinu.its of, or inability to collect, thi'Ux on /«'r.so/i(f/ property." Seo. ITf) of 11. S. (). 180. It hasbecii intiinatiil that a local Municipality has no power to add to the column liculed "County Rate" an allowance for the cost of collecting tlie fmintv rate and for the abatements and losses which might (iccur in the collection of it, and f(|iiire(l. tlio (-'ouncil ii|)(rom anv tinappn)| jdity. (0 32 V. c. :K V Thf Municipnl Council Mid : " I ilo not think th< iKMninpelled to avoid a V th.it foniu error was coi that 8ort done which v In this e.iBo, the Count (il the ratable jiropcrty it iViI,(l('it», whereas it Court refused to set asi of the special rate be u orv, the ()l)jcction woid pruhably for the summar I'. •!., in Serunt and Li case the sum mentionec the amount mentione«"*'• 'lity. (0 32 V. c. 3G, 8. 15. V, Tlif MiiniciiKil Council of Oiitnria, 9 U. C. Q, B. ()2.?. Bums, J., mid : " I do not think tlie LcgiBlature intended that the Court slioula 1* KiiniKlled to avoid a By-law because it could be made out by proof that siiiii« error was coniniittnd in a calculation, or souiothing of that «iirt done wliich would in strictness be illegal." lb. G32. In tlii» c.iso, till) County Council, in estimating tlio actual value i,t the ratable la-opcrty in the Village of Oshawa for 1851, made it tVil.lWG, whereas it should have been £92,500, and yet the Court refused to set aside the Bylaw. Ih. But if the amount (if tlie special rate be unequal or plainly insuflicient ami so illus- orv, tliu olijection would assume a suljstantial charact'jr calling priili.ibly for the summary interference of tlie Court. Pir Draper, r, .1., in Secord and Linndn, 24 U. 0. Q. B. 142, 150. In thia case the sum mentioned in the By-law was $(),4;J4,773, whereas thb.iiiiount mentioned in the rate was $G,452,()55, a difference "too small tiireijuire serious notice when the rate to be imposed was half a mill in the dollar," and so the Court refused to quash the By-law. I'), lint (vliert' it was clear and admitted that " the 5jd. in the piiuml on the sum stated in the By-law to be the value of the ratable pmiicrty within the ^lunicipality, would not produce such an amount as would cover the payment, which, under the By-law, is appointed to bo made •. itliin the year, but considerably less," the rule was made alisiilute to q:<.ash the By-law. Pern/ v. Wliifby, 13 U. C. Q. B. 5G4. Ac lidtiinson, C. J., "It will bo found, I think, to come short by £.30." i''. r)G7. This By-law on the face of it provided, " that if the rate in at." ( ne ye.ir should prove deficient, &c., such deficiency shmild be made .p from the general fund of the Town." As to this, the Chief Justic ! said, "And the manner in which the By-law pro- rides for making up the defficiency that may arise in the payment, even if it were clearly leg.al, would not still cure the obje';tion, for the statute expressly requires that the rate imposed -t/inll he in itself suHieient to cover it upcm the Ijasis of calculaticm assumed, and if not it declares that the By-law shall be voy\." lb. 5G7. But still it is apprehended that it is not necessary that calculati()ns should in the case of every By-law be strictly correct. It is not incuin})ent on t> Municipal Council to raise all that is required, and no more th- required for ordinary purposes, by one By-law. \\'ere this the law, it Would be impossible, owing to contingencies, for any Municipal I'ouucil to comply with it. The amount collected may either fall t short or exceed the sum required. If short, the deficiency may be I luade up from any unappropriated fund belonging to the Municipality. I Sec. ;M4. If no unappropriated fund, the deficiency may be equally I deducted from the sums estimated or from any one or more oi them j or a second By-law passed, under the section here annotated. If an excess, tlie surplus becomes a part of the general fund of the Munici- I pality, unless otherwise appropriated. Sec. 346. (0 See the last note 271 THE MUNICIPAL MANUAL. [ss. 345-34;. •■ < i Eitloikteii in»y Im) reduced t>ro- portloiialiy. W'h«n Hum* c<)llovte balance. Yearly taxes to be com- puted from 1st January, unloM otherwise ordered. 346' Jt' there is no uiiRppropritited fund, tlio (Icficicncv may ht) tuiimlly ileductetl from the huihh eHtimateilus n'lniinj, or t'rom uiiy one or more of them, (m) 32 V. c. 36, 8. 16. 346. If the Hunih collected «'xceed the e.stimiiteH, the Imliinoe hIiuII form part of the qenerid fund of the Municipalitv, aii'l be at the diMpoaul of the Council, uideHS otherwiMO NiKciallv appropriated ; but if any portion of the amount in cxcm liu been collected on accoinit of a special tax upon any jiiu'ticuliir locality, the amount in excess colh'cted on acco\uit ot .such special tax .shall be appro])iiuted to tlie special local oliject (n) 32 V. c. 3G, a. 17. 347. The taxes or rates imposotl or levied for luiv vnr shall be considered to have been iujposed, and to lictluLMiii and from the fiiat day of January of the then current year, antl end with the thirty-tirst day of December tlieix-of, («) (in) See uoto k to sec. 343. (/;) Tlic preceding sections, as well as the Hrst part of this section, relnai niDn; particularly to general cutiiaates for L'eiieral imqioHts. If any portion of the amount in excess has been eollected on .ic'diint of a special tax upon any particular locality, the L'enernl rule isimt to apply, in such e.i.se the amount collected shall, nistead of formini! part of the general iiuul, be appropriated to the special local nliject and no other. {()) liy Con. Stat. U. C. cap. 55, sec. 10, it was deularcd that the taxes or rates levied or imposed for any year shall be cousidLiud tn have been iinpuMil for the then current year commencing ist Jamur) and ending Slat December. It was apparently enacted to ruiiiuve a dillieulty, sucli as tliat which presented itself in MiUUh v. lirautfurd, '1 U. C. ('. P. 35. hi re Yarwnod, 7 U. ('. L. '. 4; Hughes, Co. J., said : ''The sixteenth section of the I'uiisolidateii Assessment Act of Upper Canada, specifies that the taxes iiiiiiiwii for the year shall be considered to be so imposed for the ciirreut year, commencing on 1st January and ending with 31st Ducenibcr, unless otherwise expressly provided for by Bj'-law. I consider, ia the absence of such a By-law, if the taxes imposed for the year are to date from Ist Jiinuary to Slst Decera})er, that the projierty upoa •which rates and taxes are assessed is to be that whicli tlie rated party owns or possesses within the same periotl, and no more ; aiiJ if he were a resident of tlie Town when the assessment was taken, or after the 1st of January, he was properly assessed as a rosideut, because the assessment relates back to l.st of January in eacli year. In Marr v. Vifnna, 10 U. C. L. .). 275, the same learned Jiulge said: " The facts which came out in this case shew me tliat tlie decision In re Yanvuod, 7 U. C. L. J. 47 was not correct iu one particular. Had the appellant there been assessed as well in Yar- mouth as St. Thomas m respect of the same income, an injustice ■would at once have pregented itself, which I am satisfied would have led me to a conclusion different to the one I arrived at, because the uiiifss otherwise expr bv law under which 3;'V.c. 3G,8. 18. 348. All d(!bentnr( in tilt' year of our Lon seven, hy Municipal liascd upon the yearly m] PKIOKITY or DEO£NTUHES. 373 uii.t^ otlitirwifio exprcHsly j)rovidod for by the ennctraent or bvlaw uiuler which tlie aame uro directed to bo levied. (/>) S-jV.c. 3G,8. 18. 348. All dtjbcntiires isHUf'd l)ef()ro the fii-Ht day of Jimunry, Priority ol in tlu' vearofour Lord one thonsund LMght Immlred and hixty- i'it of tliu saniu ])r()i>i:rty. >So that 1 am now Batistiod the Bix- tctiith (now eiglitccnth) uuction only tixoB the Muuicipul lineal year tn> 'inmenco on Ist .lanuiiry and to end un Slat Deccmher in each yt,ir (uiilesH ft Municipid Uy-law tix it otherwise) for all purpoBCB for which nitt'8 anil taxes are to be considered to have been im^tosedfur any current VL'iir. " In/ovv/ v. Proiuljant, Oflnint 478; (.'orhitt v. Tai/lur, •n V. C. (I B. 454, and lidl v. McLean, 18 U. C. C. Y. 41(r, it was con- kmlitl thiit tuxL'H imposed for a particular year should be taken, not only as imposed, but aa due from Ist January. But the Courts re- fusiil CO to interi)ret this section. In Corhett v. Taylor, Draper, C. J., will ; " Wu do not so interpret this section of the statute, but read it u iiiti'iKled (merely) to fix the fiscal year for all Municipalities for the |iuri)ose (tf rates and taxes, and as providing that, no matter what part of a year a By-law imposing rates and taxes may bo passed, the taxis shall be considered as imposed for the whole current year. Tlic arguniunt for the plaintiff, if pushed home, amounts to this : that on such a covenant, (against incumbrances) if entered into on M January, the taxes for the current year would be in arrears on that ilay, if a tax or rivte were imposed (at any time) within the year, md in ifl'uct the covenant would t)o broken as soon as made, althoujjh when entered into no tax or rate had been imposed." Wilson, J., in Mv. McLean, 18 U. C. C. P. 416, said, •*lii one sense the tax may be said to be due when it is imposed by the passage of a By-law for that (jurpose ; but it cannot be strictly said to bo due until the collector has got his r^n ; nor even then, for he cannot distrain or take any .^.^ipuisory proceeding to enforce payment until he has called at least once on the party taxed and demanded payment, or traiibuiitted a statement by post demanding payment if the party be not resident within the Municipality." And again, "A person who I pays the taxes imposed on him for a particular year before the end of that year pays the amount in advance. He pays it up to a day whicli has not yet arrived . The time for its payment has gone by, I kt the time for its complete accrual has still to come," If>. 421. It ia to he observed that the section here annotated declares not only that I the taxes, &c. , imposed or levied for any year shall not only be con- •idered to have been imposed but " to be due " on, from and after 1st of January of the then current year. It remains for the Courts to j decide in what sense the word "due " is used in this section. {p) It ia in the power of the Municipal Council to say by the Bylaw from what time the tax or rate shall be taken to have been unpused, &c. If there be no direction to that effect it will be con- sidered as imposed and duo from 1st January of the year in which I passed. 35 ■.« 11' 274 i 1 How rates for payinK them to be -calculated. To be applied solely to such pur- poses. Rate for sinking funds. Power to «xempt fac- tories from taxation. p;, i' THE MUNICIPAL MANUAL. [g, 349 of passing such-by-law, shall hold the order of priority which they occupied on the said first day of January, one thousand eight hundred and sixty-seven J (5-) and each Municipal Com. ration (having so issued debentures) shall levy a rate on the actual real value of the rateable property within the Muni- cipality represented, sufficient to produce a sum equal to that leviable or produced on the yearly value of such pro[>ertyag established by the assessment roll for the year one thousand eight hundred and sixty-six ; (r) and such rates shall be applied solely to the payment of such debentures, or interest on such debentures, according to the terras of the by-lav under which they were issued. («) 2. In cases where a sinking fund is required to be provided, either by the investment of a specific rate or amount, or on a rate on the increase in value over a certain sum, then such a rate shall be levied as shall at least equal the sum originally intended to be set apart, (t) 32 V. c. 36, s. 11. 349. Every Municipal Council shall have the power of exempting any manufacturing establishment, in whole or in part, (a) from taxation for any period not longer than ten (q) Before 1st January, 1867, in Cities, Towns and Incorporated Villages yearly, and not actual values prevailed. By-laws of Citia, Towns and Incorporated Villages creating debts were up to that date necessarily based on yearly values. Debentures were issued on the security of such values and rights acquired by the purchasers that such values should, until the payment of the debentures, be main- tained. The object of this section is to declare that such rights sbaij be maiutamed. (r) It is necessary for the Corporation, under this part of the section : first, to estimate what amount in any year would be pro- duced on the basis of a yearly value in 1866, and then to levy a rate on actual value sufficient to produce a sum equal to that amount. («) The application otherwise would be a breach of trust, and subject the Council to be proceeded against in the Court of Chance^ by way of injunction. See Wilkie v. Clinton, 18 Grant 557. {t) See note r above. (a) The object of this section is to enable Municipal Councils to encourage manufacturing establishments within their limits. The section is not in terms restricted to new manufacturing establishments. It authorizes the exemption to be made as to any manufacturing establishment, in whole or in part, apparently extending to old ai well as new establishments. Whether the introduction of the words " in whole or in part" enables the Corporation to discriminate in favour of new manufacturers as against old ones of the same class or kind, remains to be decided. It was held, under a statute enabling .ynnicipal Councils to exer i 350.] REDUCTION OF SPECIAL RATES. 275 years, and to renew this exemption for a further period not exceding ten years. (6) 36 V. c. 48, s. 259 ; and see post & 454 (5). 350. In case in any particuliu* year, one or more of the '^en the „ . c 1 »te imposed following sources of revenue, — namely : by by-Uw niky bere- (fl.) Tl»e sum raised by the special rate imposed for the pay- ^y!!^''^ meat of a debt, and collected for any particular year ; and (6.) The sum on hand from previous years ; and (c.) Any sum derived for such particular year from the suiplus income of any work, or of any share or interest therein applicable to the sinking fund of the debt ; and Municipal Councils to exempt from taxation "manufactures of wool- lens, cottons, glass, paper, &c.," that a By-law exempting new man- nfactures as against old manufactures in the same line of business was void. In re Pirie and Dundas, 29 U. C. Q. B. 401. Wilson, J., in delivering the judgment of the Court, said, " I do not think it would be against the statute to provide that all cotton manufacturers should be exempt from taxation, because it places all persons of the same line of business on the same footing, without giving any advantages or priviliges to one or more of that trade over the others. * ♦ * In no case is A. of the cotton or any other particular trade to get the benefit which B. of the same trade is not also to get. For this is a monopoly of the worst description, and it cannot be necessary either for the proper stimulus of the trade, though it may stimulate A. very wonderfully in that trade, but then only at the expense of B." lb., 407 ; see further, sec. 279 and notes thereto. The general rule is, that the burden of tax ition should fall equally, and for this reason 9tatut«8 exempting particular persons or particularly property from taxation are construed strictly. See notes to sec. 6 of the Assess- ment Act. The Municipal Council may impose reasonable condi- tions to be complied with by those claiming exemption under this section. See In re Pirie and Dundas, 29 U. C. Q. B. 401. (i) The power is restricted in the first instance to an exemption for ten years, with a power to renew the exemption for a further period [ not exceeding ten years — in all, twenty years. The power to renew is not given from time to time, but only once to be exercised. See MUan v. Jarvlc, 13 U. C. C. P. 176, and Bank of Montreal v. Tay- I fcr, 15 U. C. C. P. 107. It is a question whether the By-law can be repealed within the period of exemption mentioned therein, after its terms have been accepted and acted upon by the persons in whose favour it is passed. In other words, the question is whether the By- law is to be looked upon simply as a local law or as a contract. If the former, it may be repealed ; if the latter, it cannot be repealed ; for one party to a contract cannot rescind it against the will and to the prejudice of the other. See East Saginaw Manufacturing Co. v. I'^ityof Ead Saginaw, 2 Am. Rep. 82; S. C, 19 Mich. 269; The Ptopk ex rel Cunningham et al. v. Boper, 35 N. Y. 629. h I 276 THE MUNICIPAL MANUAL. [&351. IJ t^'Sins Wl 'ih^ (d.) Any fium derived from the temporary investment of the sinking fund of the debt, or any part of it, and earned to the credit of the special rate and sinking fund aixouuts respectively, amount to more than the annual sum ijquiied to be raised as a special rate to pay the interest, and the in- stalment of the debt for the particular year, and leave a sur- plus to the credit of such accounts, or either of them, (c) tkn the Council may pass a by-law reducing the total amount to be levied under the original by-law for the following year to a sum not less than the difference between such last men- tioned surplus and the annual sum which the original by-law named and required to be raised as a special x'ate. 36 V c 48, s. 2G0. Recitals 351. The by-law shall not be valid (d) unless it recites :- suSh'bj^iaw. C^*) -^^^^ amount of the special rate imposed by the original (c) Having discovered the existence of a surplus arising from the sources mentioned in the section, the Council should, first, ascertaiu the precise amount of the surplus ; secondly, ascertain the total amount to be levied for the then next following year ; thirdly, (kduct the one from the other ; and fourthly, take credit for the result, and reduce the original rate so as to yield no more than what is necessary after taking such credit. To ascertain the surplus, the interest and sinking fund appropriation of the cui "cnt year, as well as an amount equal to the interest of the year fouowing, ought to be deducted from the amount at the credit of the special rate account. In the event of there being a surplus in any year after paying interest and appropriating the necessary sum to the sinking fund, sec. 356 requires such surplus to remain in the special rate account, to be applied if necessary towards the next year s interest. If the sarplus exceed the following year's interest, the excess may, under that section, be transferred to the sinking fund account, in reduction of principal. It would appear to be necessary, liefore dealing with the surplus, to see not only that there is enough at the credit of the special rate account to meet the interest and sinking fund appropri- ation of the current year, but the interest of the year following, li after such calculation enough is found for tha two years aiul to spare, the excess may be dealt with imder the section here anno- tated — that is, looked upon as po much collected in anticipation of the requirements of the year following, leaving the balance nnlj between it and the amount necessary, according to the original By- law, to be levied. The course therefore recommended is, wlicnever a surplus is in any year found to exist, to retain to the credit of the special rate account, besides the re(iuirements of the year, a sum equal to the interest of tlie following year, and then, iirst, either to carry the brlanco to the sinking fund account, under see. 35t!, or consider it as so much in hand for the next following year, and to reduce the rate of tliat year so as to make up the deficiency only. {d) See note I to see, 334, 52.] ANTICIPAi V Rk APPROPRIATIONS. 277 bv-lav ; (e) (2.) The balance, of such rate for the particular v(ar, or on hand from former years ; {/) (3.) The surplus income of the work, share or interest therein received for such year; (g) and (4.) The amount derived for such year from any temporary investment of the sinking fund — (h) Nor unless the by-law names the reduced amount in the Rsdncedrate dollar to be levied under the original by-law — t® b« named. Nor unless the by-law is afterwards apprc ved by the Lieu- ny-iaw to b« tenant-Governor in Council, 36 V. c. 48, s. 261. approved of bytheLieut." Oovemor. Division VIII. — Anticipatory Appropriations. When and how made. Sees. 352, 353. Bij Senior for Junior Municipality. Sec. 354. 352. In case any Council desires to make an anticipatory Anticipatory appropriation for the next ensuing year in lieu of the special "fJ^^^* _ rate for such year, in respect of any debt, the Council may bo mode. do so, by by-law, (i) in the manner and subject to the pro- lisions and restrictions following : 1. The Council may carry to the credit of the sinking fund What funds « niBV DA SO accoimt of the debt, as much as may be necessary for the appropri- purpose aforesaid ; ij) '**^' (a.) Of any money at the credit of the special rate account of the debt beyond the interest on such debt for the year following that in which the anticipatory appropriation is made; (k) {b.) And of any money raised for the purpose aforesaid (l) by additional rnte or otherwise ; (e) See sec. 330, sub-sec. 3. (/) See note c to s. 350. {<]) See same note. (h) See same note. ( i ) This and the foregoing sections are made for the relief of the ratepayers, provided the security of the creditors be not lessened. (j) "Aforesaid," i. e. of making an anticipatory appropriation for the next ensuing year, in lieu of the special rate for such year, in respect of any debt, &c. {k) Here it is clear that a year's interest in advance is to be retained, as directed by sec. 356, and pointed out in note c to sec. 350. (0 "Purposes aforesaid." See note y above. 278 THE MUNICIPAL MANUAL. [s. 353. The Mureos and appli- cation to be stated. Wlien moneys re- tained suffi- cient, thu yearly rate may be suspended for the en- suinj; year. By-law must recite— The oHi^inal debt auu object. (c.) And of any money derived from any temporary in- vestment of the sinking fund ; (m) (d.) And of any surplus money dei-ived from any corpor- ation work or any share or interest therein ; («) (e) And of any unai)propriated* money in the treasury ; (o) Such moneys respectively not having been otherwise ai> propriated ; 2. The by-law making the appropriations shall distiuj^aiibii the several sources of the amount, and the poi*tions thereof to be respectively applied for the interest and for the sinking,' fund appropriation of the debt for such next ensuing year ; (/)) 3. In case the moneys so retained at the credit of the special rate account, and so appropriated to the sinking fiiiul account from all or any of the sources above mentioned, arc sufficient to meet the sinking fund appropriation and interest for the next ensuing year, the Council may then pass a by- law directing that the oripnal rate for such next ensuing year be not levied, (q) 36 V. c. 48, s. 262. 353. The by-law shall not be valid (r) unless it recites— («) (a.) The original amount of the debt, and in brief and general terms, the object for which the debt was created ; {(} (m) The investment authorized by sec. 357. («) See sec. 350 and note thereto. (o) The right of a Municipal Council to take moneys already appropriated, and apply them to purposes diflferent from the original appropriation, is very questionable. Though sometimes done, it oxight never to be encouraged. In the case of appropriations to thu sinking fund account of a debt, it cannot be legally done. tSee Edinhunjh Lift Assurance Co. v. St. Catharines, 10 Grant 379 ; /«'• Barber and Ottawa, 39 U. C. Q. B. 40G. (p) The sources to he one or other of the foregoing. (q) \Vhen the surplus, though not equal to the product of the entire rate for a year, is considerable, a By-law may be passed for the proportionable reduclion of the rate, sec. 350 ; but when the surplus IS Bufhcient to meet the sinking fund appropriation and interest for a j'ear, a By-law may lie passed to the effect that for that year the original rate he not levied. (r) See note I to sec. 334. («) This section bears the same relation to sec. 352 that sec. 351 bears to sec. 350. The one is for the reduction of the special rate for a year, the other for the entire cessation of it. (t) See sec. 330, sub. 6, and no(es thereto. 354.] ACCOUNTS AND INVESTMENTS. (h.) The amount, if any, already paid of the debt ; (f.) The annual amount of the sinking fund appropriation reqmred in respect of such debt ; ( 2. No such by-law shall be valid unless approved by the Lieutenant-Governor in Council. 36 V. c. 48, s. 263. 354- After the dissolution of any Municipal Union, the Senior Mimicipality may make an anticipatory appropriation for the relief of the Junior Municipality, in respect of any debt secured by the by-law, in the same manner as the Senior Municipality might do on its own behalf, (v) 36 V. c. 48, s. 264. 279 Th« amonnt paid. The •nnnal amount for ■inking fund. The amount for sinldDg fund in hand. The amount required for interest. And that it is reierred, etc. By-law to be approTed by lieut. Gov- ernor. Antici- patory ap- propriation on separa- tion ot Muni- cipalities. Title III— Respecting Finance. Div. I. — Accounts and Investments. Div. II.— C0MMIS.S10N OF Inquiry into Finances. '•t Division I. — Accounts and Investments. Accounts for Special Rate and Sinking Fund. Sec. 355. Surplus on Special Kate, Application of. Sec. 356-357. Surplus on Special Kate, Investment of. Sec. 358. Gemral Surpkis, Application of. Sec. 359-361. Unauthorized Application, Liability for. Sec. 362. Yearl)/ Returns to Goveminent. Sec. 363-364. (h) See sec. 350 and note thereto. (i') An anticipatory appropriation in relief may, it is apprehended, 4 I, .'ill rtm 280 THE MUNICIPAL MANUAL. [88.355,356. Two Bpecial accounts to be kept ; 1, of the special rates; 2. of the 8inkin<; fand or instal- ments of principal. 356. The Council of eveiy Municipal Corporation shall keep in its books two separate accounts, one for the H|)ecial rate, and one for the sinking fund, or for instalments of principal of every debt, to be bcth distinguished from all other accounts in the books by some prefix designatin" the purpose for which the debt was contracted, (a) aud shall keep the said accounts, with any others that are necessary, so as to exhibit at all times the state of every debt, and the amount of moneys raised, obtained and appropriated for xkk. ment thereof. 36 V. c, 48, s. 265. When BUT- 356. If, after paying the interest of a debt and appropri- appii^*to * ating the necessary sum to the sinking fund of such debt, or intOTMt'and ^ payment of any instalment of principal, for any financial to sinking year, there is a surplus at the credit of the special rate '"''^" account of such debt, (h) such surplus shall so remain, and be eitheu one in reduction of the special rate for a given year (sec. 350) or for the cessation of the rate for that year. Sec. 352, (a) Two accounts are mentioned ; the special rate account, and the sinking fund or instalments account. The amount of .ill rates collected and received by the Treasurer will appear in the first, and from it be transferred to the second all such sums as form portions of the sinking fund or instalments fund account. The first or special rate account will constitute the interest account as well as the general account, and the sums required for interest will be retaineii therein until disbursed, and then be charged thereto. The sums transferred on account of principal to the second or sinking fund or instalments account, will of course be also charged against the first or special rate account, and when transferred be credited to the second or sinking fund or instalments account. It is unnecessary to remark upon the great importance of the accounts being kept \rith the greatest care and accuracy. The object of keeping the accounts as directed, and any other necessary accounts, is to exhibit at d times the state of every debt and the amount of moneys raised, obtained and appropriated for payment thereof. In one case the Chancellor of Upper Canada said, " I think I ought not to dispose of this case without observing upon the utter disregard of the provisions of the statute disclosed in the evidence on the part of those officers of the Municipality whose duty it is to see to the keeping of its accounts. The separate accounts, so pointedly required by sec. 230 of the Act (same section as here annotated), seem not lo have been kept, but special rates, sinking fund account, and rates and assess- ments for general purposes, appear to have been mixed up together. The directions of the statute are so explicit that it was nothimj kn than moKt culpable neglect of duty not to folloto them." WdUt v. Clinton, 18 Grant 560. (6) A surplus beyond the interest may arise from the increase of ratable property, &c. ; for when a Bydaw creating a debt, 4c., is passed, the ratable property is ascertained irrespective of any Jtiiurt increase, &c. See sec. 330, sub-s. 5. g,357.] APPLICATION debt, (c) 36 V. c. 48, s ((/) See sec. 358 et seq. g, 357.] APPLICATION OF SURPLUS ON SPECIAL RATE. 281 maybe applied, if necessary, towards the next year's interest ; but if such surplus exceeds the amount of the next year's interest, the excess shall be carried to the credit of the giukinf fund account, cr in payment of principal of such debt, (c) 36 V. c. 48, s. 266. 357. The Lieutenant-Governor in Council may, by order. Application direct that such part of the produce of the special rate ^th roSent levied, and at the credit of the sinking fund account or of of Lieut- the special rate account as aforesaid, instead of being so ctoiScS?' invested as hereinafter provided, (d) shall, from time to time, as the pame accrues, bo ap[)lied to the payment or redemption, at such value as the said Council can agree for, or of any part of such debt or of any of the debentures representing or constituting such debt, or any part of it, though not then payable, (e) to be selected as provided in such order, and the Municipal Council shall thereupon apply and continue to apply such part of the produce of the special rate at the credit of the sinking fund or special rate accounts, as directed bvsuch order. 36 V. c. 48, s. 267. (c) If the surplus of the special rate account in any year exc ied the payment of the ordinary calls upon it, together with, the next year s interest, the excess may be transferreif to the sinking fund account, that is, applied towards the liquidation of principal. Pro- vision is, by sec. 358, made for the investment of the excess. ((/) See sec. 358 et seq. (f) The object of the special rate is to pay off the debt and interest j authorized by the By-law in accordance with the terms of the By-law. Sec, 330, sub. 4. The ordinary mode is by annually raising a certain sum for inteiest and a certain sum for sinking fund or instalment, so as to discharge both principal and interest when payable. If the principal be payable by annual instalments, there will not be such an accumulation to the credit of the sinking fund as if the principal money we e payable at the expiration of a fixed period of time. See «ec. 332. The annual rate in either case is based on the value of the ratable property at the time of the passing of the By-law, "irrespective of any future increase of the ratable property of the Municipality, " and irrespective of other incomings speciKed in the Act. .Sec. .330, subs. 5. In any view, therefore, there may be an accumulation of money in the nature of surplu.s to the credit of the nind in advance of what is required to pay the annual obligation nmler the By-law. Instead of investing the same, provision is by this section made for the application of the money ' ' to the payment or redemption, at such value as the Council can agree for, " of any part of the debt, though not payable. This can only be done by onler of the Lieutenant-fJovemor in Council. It i? ' itended that the I imer shall be a continuing one, for it is declared that the Council all thereupon " apply and continue to apply " the same, as directed 36 . t« li't' ''V '':»!i': , m\ 282 SurpUia niKy be invested ib certain cuei. O THE MUNICIPAL MANUAL. [bs. 358-360. Council may apply other funds to- * 'dstiicli (IteblS. Certain moneys may be set apart for educa- tional par> poaes. 368- If any part of the produce of the special rate leriej in respect of any debt, and at the credit of the sinking fund account, or of the special rate account thereof, cannot be immediately applied towards paying the debt by reiuson of I no part thereof being yet payable, (/) the Coun-jjl shall '.on time to time, invest in Government securities or otherwisf as the Lieutenant-Governor in Council may direct, (y) ,36 V c. 48, s. 268. 369. r vei such Council may aj)proMriate to lini pavment -.'■: r'ny i .;^ f, 3 surpl'8 incon ) dorivecl from any jmlilio or t'j) t ..••;» (Mn \vo\'k,or from any share or interest theioiu, after papnij t\: annual expenses thereof, or any uiiajipropiiuted moiu. la ti c 'reas'iiry, or any money raised by additional rate (h) ; am: ;ii< ' money so appropriated shall be canied to the credit of the sinking fund of the debt, or in jjaynieut of any instalment accruing due. (i) 30 V. c. 48, s. 209. 360. Any Municipal Corj)oration having surplus numevs derived from the " The Ontario Municipalities Fund," or from any other source, (k) may, by by-law, set such surplus apart by the order. It ia felt by the Legislature that the possession of an unproductive surplus is an element of abuse, and provision is maJe by this 'and the following sections for the investment or other disposal of it. (/) See note e to 357. (y) The power conferred so far is simply to invest in Government securities. This, it is apprehended, may be made without any order in Council. But if an investment otherwise than in Government ' securities, or such secuiities hereinafter specially mentioned, it ii presumed that an order in Council will be required. (/() The rate for the payment of a debt created by By-law is calculated according to the existing value of the taxable property of the Municipality, irrespective of income from public worts or other increase. Sec. 330, subs. 5. But by thic section the Council of the Municipality ia empowered to supplement the proceeds of the rate by the appropriation thereto of the following moneys : 1. The surplus income derived from any public or Corporation work, or from any share or interest therein, after paying the annuil expenses thereof. 2. Any unappropriated money in the Treasury. 3. Any money raised by additional rate. (j) See note c to sec. 357. (it) The original of this section was, by the Act of 1866, restricted in its operation to the Upper Canada Municipalities Fund. It w«« by the Act 31 Vict. ch. 30, sec. 27, extended to moneys derived from other sources. 361.] APPROPRIA for educational puqwst j IS »,• , other moneys h (or ' lawfully app I pubi>'. ecu'ities of thf [ ID tinii mortgages on n •] APPROPRIATION OF OENEILVL SURPLUS. 283 for efiiicational ptuiJOseH, (I) and invest the sane (m) as well j^ii. other moneys held by such Munici))al Corjwration for, or ; lawfully aj propriatef! to, educational purposes, in pubii'. eciinties of the D jniinion, municipal debentures, or latirsi mortgages on reh} estate, held and us- i for farmin<^ puiy, .s, anil being the hi t lien on such real estate, and th: aie to time, as such securities nititure, may invest in inTertment oti . like securities, or in the securities already authorized ° **""** bylaw, as nmy be '^ii etcd by such by-law or by other by- laws passed for that j)uri)0se. :'. No sum so invested shall exceed two-thirds of the ProTiso : as I value of the real estate on which it is secured, according to ment!'' ' the last revised and corrected ""ssessment roll, at the time it is so invested, (n) 36 V. c. 48, s. 270. See Rev. Stat. c. 28, U'; and c. 204, s. 93. 361. Any Municipal Corporation having surplus moneys Loans to [set .i|«irt for educational purposes, may, by by-law, invest JJ^^gj, Jtlit >.tiiie ill a loan or loans to any Board or Boards of School jTiiibtees w'thiu the limits of the Municipality, for such term (^1 Wliero a Township Council enacted that the interest arising on Itie invested funds for schools in a Township, should be apportioned Ion, and according to the number of days the schools had been open or jtaught in each half year, the Court refused to tj[uash the By-law. In |rf ««n;i.v and Ernedototi, 39 U. C. Q. B. 353. iiii) The power is not only to set apart the surplus for educational Ijurposes, but to invest the same. Tne investments may be : 1. In public securities of the Dominion ; 2. Municipal debentures ; 3. First mortgages on real estate, held and used for farmiug pur- ioses. In the event of the mortgagor making default, the Municipal Cor- Nratiim may, notwithstanding the provisions of the Statute of jJl»rtniain, have a decree of foreclosure. Orford v. BaUey, 12 Grant, ^6. There is probably no serious danger of Municipalities holding nds so acquired to any alarming extent. lb. If it should become I serious evil, the Legislature can cure it at any time by compelling a 'lie of the lands so acquired. Ih. This is directed against possible abuses, and intended to secure afety of investment. The direction that the sum invested is not to piceed two-thirds of the value of the real estate on which it is lecured, according to the last revised and corrected Assessment Roll F the time the money is invested, is deserving of careful attention. pnicipal Councillors are tmstbes for the ratepayers, and if they dia- Ttgard the safecuard of this section, they are made civilly responsible *o make good ;*e loss. See sec. 362. t 284 THE MUNICIPAL MANUAL. [8.3«. SI 303, 364.] ANNUAi or tornifl, and at Huch rate or ratos of interest a« may t« i agreed upon by and between the parties to such loauorirMrj resj)ectivoly, and may be set forth in such by-law ; (o) or may by by-law grant any portion of such moneys or otliei- general tahc^K^' funds by way of gift to aid poor School Sections witliin tut' tioM. Municipality, (p) 36 V. c. 48, s. 271. See Rev. Stat.i % 8. 94. No memborg 3g2. N"o member of any Municipal Corporation sliall taU of corpora- , , . , •' , . ■ i • , tion to bo part m or in any way be a party to the investment of m fnveBtment *"°'* moneys tvs are mentioned in this Act, by or on Whalf of the cori)oration of which he is a member, otherwise tint Rov. Stat, c, if* authorized by this Act, or by the seventh section of llA 28i».7, Act respecting tfie Clergy Reserves, or by any other law J that behalf made and provided, (q) and any such person* Liability for ^^"^o shall be held ))ersonally liable for any loss sustaineilbj loM. such Corporation, (r) 36 V. c. 48, s. 272, ' (o) I*; should be noted that the fir:t part of this section only apjliei I to R Corporation ' ' having surplus moneys set apart for cdiicatiiml I purposes," The first part is a copy of section 275 of the Act (J I 18<)(5. Bof(>re section 275 of the Act of 1866, which was take.a froai ( sec. 4 of Stat. 27 Vict. cap. 17, each Township Lad power ir, grant loj the Trustees of any School Section, ou the<.r application, authority I to borrow any sums of money necessary for specified purposes, ii | respecfc to School sites. School houses and their appenuages, orforl the purpose or erection of a teacher's residence ; and in tha'. eveiit! was required to cause to be levied in each year upon the taxable j property in the Section a sufficient sum for the payuient of interest on the sum so borrowed, and a sum sufficient to pay of thtl principal within ten years. Con. Stat. U. C. oh. 64, a. 35. By tha I section here annotated, the Municipal Corporation may not merjlyj give authority to School Trustees to borrow, but itself lend mcaen to the School Trust«?es within the limits of the Municipality, "tori such term or terms and at such rate or rates of interest as may ix I agreed upon, 4;c., and set forth in such By-law." See In reM'rtjj and Toronto, 25 U. C. Q. B. 409. (p) The latter part is not, like the first part of the sectinil restricted to moneys set apart for educational purposes. The grantl may be of such last mentioned moneys, "or other general fnniKj by way of gift to aid poor School Sections wif-dn the Municipality, '| {q) The members of the Municipal Council are agents for th«l peoi)lc whom they represent, with a limited authority in regard tol the borrowing and lending of money, as well aa other matters. Tbeyl are also trustees for the people, and, being so, are not allovred tol make a profit out of the trust fund, or deal with it otherwise tluii| directed by the Legislature. See sec. 414. aud notes thereto. (r) Trustees exceeding their powers as to the mode of investment! where loss is the result are very commonly made persoaally liable :or I (') See note g to uec. 240. ■I i Municipal* itlcsluJcbtod to Muntotpal Loan Fond to mak* an- nual returna to Provincial Trvafurar. ja3G3, 364.] annual returns to government. 280 363. The Treasurer of every Municipality for which any luui of money haa been raised on the credit of the ConHol- idateil Municij)al Loan Fund, shall, bo long as any part of tiicli sum, or of the interest thereon, reuinius unpaid by such Municipality, transmit to the Ti'<'asurer of Ontario, on or before the fifteenth day of January in every year, («) a return, ceiiifi«l on the oath of the Treasurer before some Justice of the Poace, containing the amount of taxable jn'operty in the Jliinicipality according to then last assessment roll or rolls ; Imnic iiccoiuit of all the debts and liabilities of the Munici- mlit}', for overy pur[)oso, for the then last year ; and uuch further information and parti prosecution for a misdemeanour. Per Robinson, C. J., in Eait .Vu- COMMISSION ( . (') ' • is presumed that wi Jtiound by their answers to q iMte to sec. 452. a. 366.1 COMMISSION of enquiry into finances. 387 tame iH>wei- to HUtnmon witnesses, enforce their attcnilaucOt and c(in)|)el them to proiluce documents and to give cvideuce, Many Court has in civil cases, (h) 36 V. c. 48, s. 275. 366. The expenses to be allowed for executing the com- E«P«n«««^of iuU<'ioii nhiill be determined and certified by the Treasurer of miM OnUirio, uml shall thenceforth become a debt duo to the '***"^ '""* conimis(*ioner or comniissioners by the Corporation, and bhall k jiHynble within three months after demand thereof made • bv the I'ominiHsioiier, or by any one of the commissioners, at tie ortice of the Treasurer of the Corporation, (c) 3G V. c. 48, s. 276. :ft iniiriv. lli)rmnan et al., 16 U. C Q. B. 507. Inquiries into other than tinincial matters are authorized by another section of this Act, sec. 452. If it be alleged and proved that the Councillors whose duty it M U inve all necesBary and reasonable information, maliciously con- ipincl to withhold information, and contrived and intended to cause I cipeiue and damage to the Corporation, by increasing the costs and (i[ieDsv8 of the Commission, and throw upon the Corporation any mU (sec. %(}), and it be charged and proved that the Councillors, in pnnnAiice of such contrivance and intention, misconducted them- Klves to the damage of the Corporation, an action on the caHu may be maintained against them at the suit of the Corporation for recovery of damages. HJaat Nutsouri v. Norseman et al., 16 U. C. Q. K 5.V) ; and in such an action, where it was shewn that the Clerk ibientvd himself and kept back the b( oks, &c. , in collusion with the defendants, and that, in consetjuence, the costs of the Commission, vhich otherwise would not have exceeded £75 or £100, were increased J to £328, it was held that the sum of £250 damages was not excessive. IS. C. 18 U. C. Q. B. 31. There is nothing in the section to prevent I the Corporation from suing for money due them. Per Richards, J., \h n Eldon and Fenjvon et al., 6 U. C. L. J. 209. It would be un- |rea»inable to hold that ;;he power to inquire should deprive the Cor- Ipnration of the right to resort to a more speedy and economical I mode of investigating accounts, and of obtaining payment of the |uiount due when ascertained. lb. (i) " . is presumed that witnesses on such an inquiry would not be Ikund by their answers to questions to criminate themselves. See |iote to sec. 452. _{() The expenses are l-j be determined by the Treasurer of Ontario. |>o appeal of any kind is nr ided for. When determined, the JKcount may be certified. Whei, certified, the amount of it becomes lidebt due by the Municipality to the Commissioner or Commission- T«r«, payable "within three months after demand, &c." A right |«t action arises on the part of the Commissioners to recover the «ney by action at law, after the amount has been determined, cer- Jied, and demanded. The plaintiff in such an action is not obliged ) prove the regularity of the issue of the commission. Briatoto v. \ionwall, 36 U. C. Q. B. 226. i';3' ^88 THE MUNICIPAL MANUAL. [ss. 367, 36J. Title IV. — Arbittutions. Division I — Appointment of Abbitbators. Division II. — Pkoceuure. n. 369-371.] app( m.i i:|; ll'M Appoint- ments bow to be made. Division I. Appointment of Aebitbatoes. IIoio Appointed. Sees. 367-371. Failure of parties to ajipoint. Sec. 372. Jiespecting real property, d'c. Sees. 373-374. Where several interests. Sees. 375-376. Award, wJiento he made Sec. 377. Certain 2)erson8 disqualified. Sec. 378. 367. The appointment of all arbitrators shall be iu writing under the hands of the aj)pointer.s, (a) or in case of a Corpoiu- tion, under the corporate seal, and authenticated in like man- ner asa by-law. (h) 36 V. c. 48, s. 277. Council or 368- Th e arbitratoi-s on behalf of a municipal corporRtion ^"^ appol^l shall be appointed by the Council thereof, or by the head for corpora- thereof, if authorized by a by-law of the Council, (c) 36 V, """• c. 48, 8. 278. (a) Decided cases show the great practical diflBoulty wliicli either .^a^ty may often have in obtaining possession of the appointinent of Lis opponent's Arbitrator when he wishes to make the submissioat rule of Court, and the dehiy, expense and inconvenience to wkich this diiEculty may subject him. A method, it is suggested, mayb« found to remedy this difiiculty. If each party took the precaution, at the time of the reference, of requesting the other party to make the appointment of his Arbitrator m duplicate, and if they mutually agree to furnish each other with one of the diiplicate parts, and not a mere copy, there seems no reason why, on producing tlie appoint- ment of his own Arbitrator and the duplicate original of his opponent's Arbitrator, and properly verifying both of them, the submission mi)(lit not be made h rule of Coui-t. llussell on Awards, 5G0. (b) There should, in strictness, be a By-law of the Council author- izing the appointment, or the alKxing of the seal to the appointment or a By-l;iw delegating the appointment to the head of the CuunciL See sec. 3(58. But the Municipal Council maj' so act as to b^ <'?topi)ed from taking formal obj-jctiona to the mode of appoiutment S« In re Eldon and Fenjuson, 6 U. C. L. J. 207 ; and Wilson and Port Hope, 10 U. 0. Q. B. 405, The appointment, when properly author- ized, should not only be under the seal of the CoriJoration, l)ut be signed by the head of the Corporation and by the Clerk of the Cor- poration. Such is the mode of authenticating a By-law. See sec. HI (c) As a rule, an Arbitrator, to represent a Municipal Council, must bo appointed by that Council ; . the exception is when th« gg. 369-371.] APPOINTMENT OP ARBITRATORS. 2a» 369. In cases where arbitration is directed by this Act, Mode of tp- either party may appoint an arbitrator, and give notice there- ^wt^toM of in writing to the other party, and therein calling upon such »«>d condaet- partr to appoint an arbitrator on behalf of the party to whom trations.' such notice is given, (d) A notice to a Corporation shall be given to the head of the Corporation, (e) 36 V. c, 48, s. 279, 370- The two arbitrators appointed by or for the parties ti>'^ "^^\^ ghall withiu seven days from the appointment of the lastly appointed. named of the two arbitrators (/) apjjoint in writing a third aibitrator. (g) 36 V. c. 48, s. 280. 371' I" cases where more than two Municipalities are in- when mon terested, each of them shall appoint an arbitrator, and in such municT^i- case, if there is an equality of arbitrators, the arbitrators so '"e^. appointed shall appoint another arbitrator, (/t) or in default, at Council, by By-law, deputes that power to the head of the Council. S«e Dote b to preceding section. ((/) The notice must be in writing. It should state the object of the arbitration, name the Arbitrator appointed by the party giving the notice, and call upon the other party to name his Arbitrator. It ihoiilJ be express and absolute. Where B. had given notice to a railway company that " it was his intention " to appoint M. as Ar- bitrator, and if they failed for fourteen days to appoint one, he would ippoint him to act for both parties, and M. did so act, the Court re- fused to enforce the award. Bradley v. London and North Western Railway Co., 5 Ex. 769. {() This is apparently a provision for the service of the notice. "It ihall be given to the head of the Corporation. " (0 As to computation of time, see note a to sec. 177. (g) It is a common error to look upon a third Arbitrator as an I nmuire. Tbe .ccupier or person so interested, and I the latter shall, within seven days thereafter, name an [l] A difiference it. co be observed as to arbitration between Muni- 1 cipal Corporations and arbitrations between a Municipal Corporation ud individuals. In the latter case the individuM appoints his Arhitrator, and gives due notice thereof to the head of the Council. When he does so, the head of the Council is required, if authorized I by Bylaw, wthin seven days, to appoint a second Arbitrator, and, I besides, to give notice thereof to the individual ; in which notice mst be clearly expressed "what powers the Council intends to jtiercise with respect to the property, describing it." For form of mandamus on the head of a Municipal Council to appoint an Arbi- [trator, see The Queen v. Perth, 14 D C. Q. B. 156. (0 See note c to S3C. 368. |"i) As to computation of time, see note a to sec. 177. (n) Seo notes to sec 456. (o) The first stop is to be taken by the Council, who are required I to cause to be served on the owner or occupier of, or person interested lis, the land to be aifected a copy of the By law affecting it, certified jto be a true copy, under the hand of the Clerk of the Council. Then I the initiative as to arbitration is to be taken by the owner so served. litis his duty, within twenty -one days after service, to name an I .Arbitrator and give notice thereof to the Council in the manner pre- jicril)ed bv the last clause. If he allow the twenty-one days to expire I without doing it, then the Council may take the initiative by appoint- ling the first Arbitrator, and giving notice of his appointment. If I this is (lone the owner of the land is required, witnin seveii days I thereafter, to name the second Arbitrator. As to computation of [time, see note a to sec. 177. (p) See note c to sec. 368. Illil t* . I4 'h i- 292 THE MUNICIPAL MANUAL. [ss. 375, 3(6. A 377, 378.] PROCE] arbitrator on his behalf. Scked. A (177). 36 V. c. 48, s. 284 ; 40 V. c, li r Where seve- 376. In case there are several persons having distinct in- iMFntei!' terests in property in respect of which the Corporation is etted in the desirous of exercising the powers referred to in thi. tliree pertj'. hundred and seventy-third section, under a by-law in thjt behalf passed, whether such persons are all interested in the same piece of property, or some or one in a part thereof, and some or one in another part thereof, and in case the bylair or any subsequent by-law provides that the claims of al! should, in the opinion of the Council, be disposed of bv m award, {q) such persons shall have twenty-one (instead of seven) days to agree upon and give notice of an arbitmtor jointly appointed in their behalf (r) before the County Court Judge shall have power to name an arbitrator for them, 36 V. c. 48, s. 285. County 376. If any such owner, occupier or person so interested, to'appoint^* ^^ ^^® ^^^^^ o^ ^^^7 ^^^^ Council, whether from want of arbitrator in authoi'ity in that behalf, or otherwise, («) omits toname anarbi- certa ncaPds. ^^.^^q^. ■v,^itbin seven days after receiving notice to do so,(^) or if the persons having distinct interests as aforesaid (m) omit to name an arbitrator within twenty-one days after receivii.;; , notice to do so, or if the two arbitrators do not •within sevtii j days from the appointment of the lastly named of the two ! arbitrators agree on a third arbitrator, or if any of said arbi- trators refuse or neglect to act, (v) the Judge of 1 he Countj I Court of the County in which the property is situated, on the application of either party, shall nominate as an aibitn- (q) Where several persons are interested (as in the opening of 1 1 new road, &c.), there may be an arbitration under this Act as to each J person interested, or, in the option of the Council, an arbitration ul to all, and the claims of all be determined by one award. In the | latter case, instead of seven days only allowed by sec. 37t), twenty j one days are given. (>•) See note d to sec. 3fi9. {a) See note c to sec. 3(58. (/) As to computation of time, see note a to sec. 177. (h) See see. 375. (v) 'M«,vof the Arbitrators." This may be ta..en to refer ti the! refusal or neglect of any Arbitrator mentioned in any of the precedj ing sections, from section 307, t.) act, for in none of them is there any such provision niuile for the neylect or refusal of an ArbitriK" to act. 317, 378.] PROCEDUKE IN ARBITRATIONS. 2d3 tor iw) a fit person resident without the limits of the Muni- cipality in which the property in question is situate, to act for the party failing to appoint, or as such third arbitrator, or in the stead of the arbitrator refusing or neglecting to act, and such arbitrators shall forthwith proceed to hear and determine the matters referred to them. 36 V. c. 48, s. 286 ; {0V.C.7 Sched. A (178). 377. In any of the cases herein provided for, (x) the avbi- Time for tratora shall make their award within one month after the ^w&raf apjwintment of the thii-d arbitrator, (y) 36 V. c. 48, s. 287. 378. No member, officer or person in the employment of ^^^Jj^'***" any corporation which is concerned or interested in any from acting arbitration, (2) nor any person so interested, shall be appointed ^"on. or act as an arbitrator in any case of arbitration under this Act. 36 V. c. 48, s. 288. Division II.— Procedure, Oath 0/ Arbitrator. Sec. 379. Proceedings. Sec. 380. Costs, power over. Sec. 381. MajvrUy to decide. Sec. 382. Evidence, wliere filed. Sec. 383. Award, ivlien adoption hy Bif-law required. Sec. Award, how made, and jurisdiction of Courts. 384. Sec. 385. (>r) Though not so directed, it would be convenient that the nomi- latiou should be in writing. (/) See sec. S"? et seq. (1/) From the time the Arbitrator has made the award his authority I ceases. He cannot afterwards make any correction or alteration, tfenof manifest errors, /mn^ v. ^/noH, 8 East. 54 ; Ward v. Dean 3B.&Ad. 234; lie Hall v. Hhula, 2 M. & G. 847 ; Brooke v. MU- 'M, 6 M. & W. 473. (z) An Arbitrator should be impartial. If corrupt conduct on I the part of an Arbitrator be shown, his award will be set aside. See Uiitmon V. Peat, 3 Atk. 529; Earle v. Stacker, 2 Vern. 251; \ Burton v. Knujht, lb. 514 ; Morgan v. Mather, 2 Ves. 15 ; Emer*/ v. ITwc, 5 Ves. 846^ Lonsdale v. LUtledale, 2 Ves. 451 ; Clarke v. \Sliyken, 2 Bing. N. C. 651. But mere suspicion of misconduct is hot enough. Crosaley v. Clay, 5 C. B. 581 ; see also Aiion, 2 Vern. 100 ; Goodman v. Saijers, 2 J. & W. 249. In order that there should I not to be even suspicion as to Municipal awards, it is here declared I that "no member, officer, or person in the employment of any Korporation which is concerned or interested in any arbitration, nor jay person so interested shall be appointed or act as an Arbitrator." Jbee /;i re Elliot and South Devon Raihoay Co. 2 De ,G. & Sm. 17- (f,> 294 THE MUNICIPAL MANUAL. [ss. 379, 380, ,381.] COSTS I I'" I . ArbitTBtora 379- Every arbitrator, before proceeding to try the matter to b« sworn. Qf t],^ arbitration, shiU take and subscribe the following oath (a) (or in case of those who by law affirm, make and sub- scribe the following affirmation) })efore any Justice of the Peace : Form of " I (A. B.) do swear (or affirm) that I will well and tnilj- trr oaUi. the matters referred to me by the parties, and a tine and impartial awanl make in the premises, according to the evidence and my skill and knowledge. So help me Ood. " 36 V. c. 48, s. 289, •Xi eof 380. The arbitrators sliall, within twenty days (6) after meeting, &c. the appointment of the third arbitrator, meet at such place as they may ageee upon, (c) to hear and determine the inutttr in dispute, (d) with power to adjourn from time to time, iunl >hall make their award in writing, (e) and, if the arbitration is re- specting drainage works, in triplicate, which shall he hindiii" (ft) The oath is not only to be taken by e^'ery Arbitrator, Inittfll*" taken by him " hej'ore in-ocecdinif to try the mutter of Hip arh'drnihnt." The oath, besides, is not only to be taken but subHcribcd. Whiu taken md .subscribed, it. is to be filed with the papers of tlie refer- ence. {h) As to computation of time, see note a to sec. 177. ((•) There is no express direction in this statute that the Arbitra- tors shall cive to the parties notice of their meetings and an opimr- tunity of being heard ; but this is essential, at least to this extent, that wliether there has been a formal notice or not, it should apjitar that the parties at least had knowledge of the meetings ami aii opportunity of being heard and producing evidence before the Arbitrators. /« re Johnson and Oloiicenter, 12 U. 0. Q. B. 13'). ((/) An Arbitrator is in general, whether of the legal professifin or H'v, the judge of law as well as fact, see Jiippetnl. v. (fraij. of an award by sever.al individuals, all should execute at the sime time and in the presence of each other, In r> TnnnU'iimn and Jfeol, !) Dowl. 9G5 ; Wade v. Dowlbu], 4 K. 4 B. 43; //f/;W v. liuhltn, G U. C. C. P. 52; Martin v. Kenjan, 2 U. C. W R. 370, and full opportunity shouhi be given to the minority of tbo Avbitrators, iL so disposed, to join in the award. lb. (m) See Sf c. 384 and notes thereto. (/() Which may be in this form : "It is hereby agreed that section 383 of the Act respecting Municipal Institutions in the Province of Ontario shall apply to any award made touching or concerning tiie premises aforesaid." (o) The duties of the Arbitrators, where this section applies, & to — 1. Take full notes of the oral evidence given on the reference. 2. File the same, immediately after the making of the award, witli the Clerk of the Council, for the inspection of all parties iiiterestel 3. File in like manner all documentary evidence or a copy thereof. 4. In c!" J they proceed partly on a view or any knowledge or skill possessed by themselves or by any of them, put in Mritm^i statement thereof sufficiently fall to allow the Court to form a jmlf ment of the weight which should be attached thereto. But it does not follow that the award will b«> set aside for non- compliance with the provisions of this section. Jn re Nvrthumkrlam and Durham and Cobourg 20 U. C. Q. B. 283. ('/) See note e to sec. 380. !. References by rule of frius. 384, 385.] MAKINO AWARDS. 297 334. In case the award relates %•) property to be entered Award to b* apon, taken or used as mentioned in the three hundred and ceruhfcwM, MVfDty-third Rection, and in case the by-law did not author- "\"**^,^ \u or profess to authorize any entry or use to be made of the by°iaw With- property l>efore an award has been made, except for tlie pur- ["m*'*'*''" pose of survey, or in case the by law did give or profens to live such authority, but tho arbitrators find that such au- thority had not been acted upon, the award shall not bn bind- ing on the Corporation unless it is adopted by by-law within lii weeks after the making of the award ; (/)) and if the same isuot so adopted, the original by-law shall 1)0 deemed to bo re- pealed, and the property shall stand as if no such by-law had lieen nmde, and the corporation shall pay the costs of the ar- bitnition, 36 V. c. 48, s. 294. 385. Every award made under this Act shall be in writing ijMinilcr tho hands of all or two of the arbitrators, and shall lie su^ijcct to the jurisdiction of any of the SuiHsrior Courts of Lw or Equity, as if made on a submission by a bond con taiiiing an agreement for making the submission a rule or onler of such Court ; (r) and in the cases provided for by the tiiree Inmdred and eighty -third section, the Court shall con- sider not only the legality of the award but the merits as they ap]iear from the proceedings so filed as aforesaid, and my call for additional evidence to be taken in any manner the Court directs, and may, either without taking such evi- Jenoe or after taking such evidence, set aside the award or Award to be niaJe by at least two arbitrators, and iiubject to Superior Court*. Power* of tlie Courts in 8ucb matterp. i/'l A Municipal Corporation has, by statute, certain '.wwers in I r*t»rl to nw-ula, streets and 'other communications, and to drains and i lewers, which powers may be exercisetl by By-law. Any award I maiie in reference thereto is dependent on the adoption of the award ' w Bylaw within six weeks after its making ; and the original By- law IS also made dependent on the i)assing of such second By-law. [ The award is not to be binding on the Corporation unless, within the time limited for the purpose, it is adoptetl by the Council. If not I » »(inpte(l, the original By-law is to be deemed repealed. In this j event the Corporation is to pay the costs of the arbitration. As to I'hich see sec. 381 and notes thereto. ('/) See note e to sec. 380. (r) Formerly there were two kinds of submission that might be I nide rules of Court : ' !. References l)y rule of Court, Judge's order, and order of Nisi I Priua. 2, Submissions in writing, by virtue of the statute 9 & 10 Will. III. ch. 15, where they contain au agreement to the effect that they may I w made rules of Court. 38 (a i I'. p ■ \ PI' 298 THE MUNICIPAL MANUAL. [n 385. remit Uio mattei-s inferred, or any of tlicin, from time to time, to the consideration and det«irmination of tlio same ar bitrators, or to any otluir person or pei-sonH whoiti the Court may a|)iM)int, a.s pi-eHcribod in '* I'he Commcni Law Procedm Act" a'lU tix the time within which such further or dp* lUv. State. ,^.^yrd shall be made, or the Court may itnelf increase or dj. mininh the amount awanlttd or nthorwiwe modify the award as th' justice of the ctwe may seem to the Court to require |< 3G V. c. 48, s. 295. TrrLE y . - Dedentuhks and other Inhtrcments. 7\) he under neiil and hear vgnatnre of head, .bee, 38C. Rail inaif JJcbeiit urea. DeJ'ectH in form. '.•. 387, Hex. ;j88. These were extended by the Common I^w Procedure Act, 18.')tl, 8. 97, wliieli enatud that " Every agreement or suhniiaaioii, wlietkr by deed or instrument, not under seal, may he made a ride (('niieuf the Superior (/ourts of Law or E((uity in Upper Canada, on the ii|i|ili cation of any jiarty thereto, iinlesa such agreement or siilHiiisuMn contain words purimrting that tlie parties intend that it slioulil wt be made a rule of Court," &o. This provision is now in 8ul)staine re-enacted in sec. '210 of the C. L. P. Act. Rev. Stat. ()nt.,c.')0. Tti effect of tlie clause here annotatei^ is to place suhmissiima umlirtliii section on the same footing as any of the foregoing descrihecl sub missions. In re liraiil and Watt-rluo, I'J U. C. Q. B. 450 ;aiiil/i(r' Eldon mid Ffri/usutt, (i U. C. L. J. 'J07. The etfect of making aiiv award inider this Act subject to the jurisdiction (>f any nf thi: Superior Courts of f^aw or K(juity, as if made on a suhinissidii hy i bond containing an agreement for making the submission a rule or order of such Court, appears to be to bring all such subniissionii iimifr the statute of 9 & 10 Vs'ill. 111. cap. 15, and to give the Cmirts power to review the awards, and if necessary, to enfore the porforinauce oi them. See notes to Harrison's C. L. P. Act, 2nd Ed. 22.1 The or dinary remedy by action is of eourae open to any party to an awanl under this section. See I far pel v. Portland, 17 U. C. Q. B. 4,)'), lu Bueh an action it is no objection to the declaration tiiat it was updD a submission to three arbitrators, while two only executed the awanl, for the statute authorizes two to act, and makes their award vidiil. /''. Under a plea of no award it has been held that defendants carnot dispute the Arbitrators' authority to award a portion of the sum awarded. Hodgson v. Whithy, 17 U. C. Q. B. 230. (s) The ])0wer hero given can be reasonably exerci8e^ EXECUTION OF DEOENTUAEH. 299 loail hnprovcMtfut Dehcntnrea. Sec. 389. TriiimjW of H'-yiutered Dehentni'en. aSiu's. 390-393. So ixi'in nndir $100. «Sec. 394. H^.^lridious aa to Jiankiny. 29-30 \. 51, »;!. 218, 1»19, p. 305. 386. All (It'licnturesmul other iiistrunioiitH duly autliorizod 0«benturei, to lit' ixecutt'tl oil Ijohalf of a Muuicipal UoriKmition shall, how to be* uult'SM (itlierwiso Hpet-iaily authorized or itrovided, hv Hcaleil ««««utoa. witli the ijt'ttl of tl»o Cori)oration, and 1)0 8i;4UC(l by tho head thereof, or by some other person authorized by by-law to >i;,'ii the mint!, (u) otherwise the same shall not be valid, (h) ami it shnll he the duty of tho Treasurer of the Municipality toH-ethftt the money collected under such by-law is pro- [Kilv applied to the i)iiynient of the interest and princi[»al of juch debentures, (c) 3G V. c. 48, s. 290. I ('I) Alt loiigh tho By-lttw providca tlijvt the debtiitiues Hhall bo «ii.'iieil by tlio heivd of the L'ounuil, yet, if the head of tho (Council perviTsely refuse to (Uscharge his %.>? ?> / //^^ /^ ^# '/ Photograpliic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 ^ '^ ■^ \ C)\ 300 THE MUNICIPAL MANUAL. [ss. 387, 388. Full amount recoTerable, though nego- tiated at interest exceeding 6 per cent or buowpar. In certain cases, deben- tures valid without cor- porate seal, Ac. Debentures valid potwith- standing de- fect in form. -Proviso. [Section 217 of 29-30 V. c. 51, is as follows ;— 217. Any such debenture issued as aforesaid shall be valid and recoverable to the full amount, notwithstanding its negotiation by such Corporation at a rate less than par, or at a rate of interest greater than six per centum per annum, or although a rate of inttiest greater than six per centum per annum is reserved thereby or made payable thereon.] 387. Any debentui'e issued in aid of any railway, or for any bonus, signed or endorsed and countersigned as directed by the by-law, (e) shall be valid and binding on the Corpora- tion without the corporate seal thereto, or the observance of any other form with regard to the debenture tlian such as may be directed in the by-law. (/) 36 V. c. 48, s. 297. 388. Any debenture issued under the authority of any by- law which has been promulgated under chapter forty-eight of the Acts passed in the thirty-sixth year of Her Majesty's reign or under this Act, (g) shall be valid and binding upon the corporation, notwithstanding any insufficiency in form or otherwise of such by-law, or in the authority of the corpora- tion in respect thereof : (h) Provided that the said by-law is in the protection of creditors. The duty of the Treasurer to see that the money collected under the By-law is properly applied is made imperative, and no subsequent By-law or resolution of the Council would in law be any excuse for the neglect of that duty. If the By- law atithorize the loan for a special purpose only, the treasurer could not, without disregarding his plain duty, apply the money to any other purpose. Orier v Plunket, 15 Grant 152. But where the mis- application had been actually made before the filing of a bill by a ratepayer complaining of the misapplication, and the same had been made in good faith in discharge ot a legal liability of the Munici- pality, and the Council of the Township approved of and adoptwl the payment, a bill by a ratepayer to compel the Treasurer to repay the amount and personally bear the loss, was dismissed. lb. (e) See sec. 559 and notes thereto. (/) This is an exception to the general rule, which requires deben- tures of a Municipal Corporation to be sealed with the seal of the Cgrporation and signed by the head thereof. Sec. 386. ^^^ly sni-'h an exception should be either created or preserved, it is difficult to understand ; but so the law is written. The effect of the section is, as regards debentures ir aid of any railway or for any bonus, that they may be in such form as the By-law directs, and shall be valid notwithstanding the want of the corporate seal thereto. (g) See sec. 319. (h) Were it possible to secure for all money By-laws the stamp of legality, so as to remove all suspicion of informality, irregularity or illegality, the effect would be eminently beneficial It would beget 389. Every debe Act numbered fiv and tifty-two, and on it.s face the t and shall contain the by-law under \ s. 299. 71 / s& 389, 390.] FORM OF DEBENTURES. 801 accordance with subsections one to five, both inclusive, of section three hundred and thirty or in 'accordance Avith section three hundred and thirty-two, (i) and has received the assent of the electora where necessary, and that no successful application has been made to quash the same before the end of the next Term after the promulgation thereof, (k) 36 V. c. 48. s, 298; 39 V. c. 7, s. 2 (Sched.) 389. Every debenture Lssued under the sections of this Form of Act numbered five hundred and fifty-one, five hundred '^'*^''"*"'^** and tifty-two, and five hundred and fifty-three, shall bear on its face the words " Local Improvement Debenture,^' and shall contain a reference, by date and number, to the by-law under which it is issued. {I). 36 V. c. 48, s. 299. 390. Any debentures to be issued by any Municipal Coun- Mode of cil may contain a provision in the following words : btTp™^' """^ "This debenture, or any interest therein, shall not, ajler a cer- *"' titicato of ownership has been endorsed thereon by the Treasurer a spirit of confidence alike of advantage to the seller and to tl\e buyer of Municipal debentures. Less room would be left for specu- latiuu or trade on the fears of men and contingencies of law, and more stability be imparted to the negotiation of Canadian Municipal securities ; one consequences of which — and not the least — would be the increase of the market value of the securities. A mode likely to attain an end so desirable was suggested by Mr. Harrison in his preface to the first edition of this work. It was, to require all money B) -laws to be approved by some competent public functionary, and when so approved that the debentures should not be liable to be hnpeached on the ground of informality, or want of technical accu- racy, or otherwise. (i) The debentures are only made binding on the Corporation when these provisions of the sections are complied with. See 2'j«.s< and Lmn Cuiuijamj v. Hamilton, 7 U. C. C. P. 103; AnrjUn v. Kingston, 16 U. C. Q. B. 121 ; Crawford v. (Mourg, 21 U. C. Q. B. 113 ; -see further, note b to sec. 386. (i) See sec. 312, and notes. (/) Ordinary debentures must be sealed with the seal of the Cor- poration, and be signed by the head thereof. See sec. 386. But as to debentures issued in aid of any railway or for any bonus, see see. 387. The requirements contained in this section are in addition to tliP ordinary requirements. The purpose of the section is to dis- tinguish debentures which are secured only on particular localities in a iluuicipality from those which have all the liable property of the Municipality as security. ll'\ 302 THE MUNICIPAL MANUAL. Is. m I! if,' of this Municipal corporation, be transferable, {??i) except by entry by the Treasurer or his deputy in the Debenture Registry Book oi (}») Debentures in the United States are held to be negotiable. They are designed for the raising of money for some particular pur pose mentioned in the By-law authorizing the same. Unless neg). tiable, that purpose would be defeated. They pass from ham! to hand as other negotiable securities. See Mercer County v. Jlarbi [ Wall. (U.S.) 83 ; Afei/er v. Mxiscatine, lb. 384 ; Gelpeke v. Duhwiv., lb. 175; Miami v. iVaine County, 2 Black. (U. S.j 722; Chapk v. liailroad Co., 8 Gra,y {Ma.a9.) 575; Clapp v. Cedar County, 5 hwi, 15 ; Craig v. Vicksburq, 31 Miss. 216 ; Moris Canal Co. v. FUhn 1 Stoct Ch. (N.J.) 667"; Clark v. Janesville, 10 Wis. 13() ; GoiihU Sterling, 23 N. Y. 464 ; White v, Vermont and Mcuimchmcttf M. road Co., 21 How. (U. S.) 575; Bank v, liailroad Co., 4 Duer. (X. Y.) 480; Commissioners v. Bright, 18 Ind. 93; Avnmy West, 22 Ind. 197 ; De Voss v. Richmond, 18 Gratt. (Va.) 338; m> V. ^Madison, 7 Wis. 6S8 ; Maddox v. Gi'tham, 2 Met. (Ky.) 50. .So the principle of negotiability has been applied to the coupons, even though detached from the debenture. Thompson v. Lee Cuunln, 3 Wall. (U.S.) 327; Murray v. Lardner, 2 Wall. (U.S.) 110; 'i;y V. Lamson, 9 Wall. (U.S.) 477; Johnson v. Stark Co., 24 111, 75; Knox County v. Aspinwall, 21 How. (U. S. ) 539; Railroad Co. v. Otoe Co., 1 Dillion, 0. C. H., 338. Indeed, debentures and coupins have been held in the United States to be so far negotiable as to render persons endorsing them liable as endorsers. Bull v. S'm, 23 N. Y. 570; see also Campbell v. Polk Co., 3 Iowa, 467; Fmr- child V. Ogdensburg Railroad Co., 15 N. Y. 337 ; Hodges v. Slmkr, 22 N. Y.'ll4; Keller v. Hicks, 22 Cal. 457. The fact that a debenture was, when duly signed and sealed, feloniously stolen from the Corporation and transferred to the plaintiff, a bona jvl'. holder, for value, was held to afford no defence. Tru.ft and Lm Co. V. Hamilton, 7 U. C. C. P. 98 ; see further Seybill v. Nai'md Currency Bank, 13 Am. 583 ; Dinsm,ore v. Duncan, 15 Am 534 ; Veining v. Inhabitants of Houlton, 18 Am. 253 and note thereto ; Boyd v. Kennedy, 20 Am. 376. Holders for value, with- out notice of the equities between the original parties, are not bound by such equities. In re Imperial Land Co. of Marse'dh, L R. 11 Eq. 478. Where a Corporation issues debentures, knowing they may be assigned, the Corporation may be estopped as against the assignee from setting up, that the debentures were illegally issued Webb et al. v. Heme Bay, L. R. 5 Q. B. 642. By an Act of Parlia- ment commissioners were appointed who were to expend money in emproving a Town. They were authorized to levy rates on the Town and to borrow money on the security of the rates, giving bonds for the money so borrowed, of which £100 at the least should be chosen by lot and paid off every year. Interest on the bonds had been duly paid, and, except in two years, £100 had been paid off every year, but more than £15,000 remained on the security of the boni«. Held, that holders of such bonds to the amount of £800 were not entitled to the immediate payment out of rates or to a receiver of the rates. Preston v. Great Yarmouth, L. R. 7 Ch. App. 655 ; see fur- ther, Crouch V. Credit Fonder, L. R. 8 Q. B. 374 ; Bissell v. Kank- kee, 16 Am. 554. !S, 391-393.] TRANSFER OF REGISTERED DEBiiNTURES. 303 the said corporation at the Town (or Village) of (n) ," cr to the like effect, (o). 36 V. c 48, s. 300. 391. The Treasurer of every Miinicij)ality issuing any de- Debenture benturescontaining the provision in the last section mentioned, book. shiill ojien and keep a Debenture B,egistry Book, in which k shall enter a copy of all certificates of ownership of deben- tures, which he may give, and also every subsequent transfer of any such debentui'e ; (p) such entry shall not be made except upon the written authority of the person last entered in such book as the owner of such debenture, or of his exe- Hitoi's or administrators, or of his or their lawful attorney, Thich authority shall be retained by the said Treasurer and duly filed, (q) 36 V. c. 48, s. 301. 392. After such certificate of ownership has been endorsed Registered as aforesaid, such debenture shall only be transferable by transferred entiy, by the Treasurer of the Municipality or his deputy, in by entry, siicli Debenture Registry Book, from time to time, as trans- * fen of such debenture are authorized by the then owner tliereof, or his lawful attorney, (r) 36 V. c. 48, s. 302. 393. The Council of every Municipality may authorize its ^^"""^ "'^ (h) The design of this section is so far to control the negotiability of tiie debenture as to enable the Municipal Corporation at any time and at all times to have a knowledge of the holder of it. This is in the first instance effected by a declaration against general negotia- bility on the face of the debenture, in the form given in the section. After the endorsement of ownership by the Treasurer, no legal trans- fer of the debenture can be made, except by entry by the Treasurer or his Deputy in the Debenture Registry book. The provision is analogous to that against transfer of property in a ship, except in a particuLr mode, after certificate of ownership granted. See Sher- mod V. Coleman, 6 U. 0. Q. B. 614 ; Orsey v. Mounteney, 9 U. C. Q. B, 382; Chiskolm v. Potter, 11 U. C. C. P. 165; Wilson etal. v. Cameron, 22 U. C. C. P. 108. The effect of the provision when applied, will be to a great extent to impede the negotiability of the debentures to which it relates. (o) Or to the like effect— See note a to sec, 320. (f) b'ee note n to sec. 390. (?) No provision is made for the payment of any fees to the Trea- wrer for the services directed. The rule is, that a public officer is not entitled to payment for duties imposed upon him by statute in the absence of an express provision for such payment. See Jones v. Carmarthen, 8 M. & W. 805 ; Askin v. London, 1 U. C. Q. B. 292 ; SePringle and McDonald, 10 U. C. Q. B. 254 ; Regina v. Cumber- 1*% 36 L. T. N. S. 700. (r) See note n to sec. 390. '■t 304 THE MUNICIPAL MANUAL. [s. m. the borrow- ing of sums to pay cur- rent ex- peiiws. ii, ' Without special authority, no bond, etc., to be given (or less than $100. head, witli the Treasurer thereof, under the seal of the Cor- poration, to borrow from any person or bank such sums as may be required to meet the then current expenditure of the Corporation, until such time as the taxes levied therefor can be collected, (s) and the Council shall by by-law regulate the amounts to be so borrowed, and the promissory note or notes to be given in security therefor, {t) 36 V. c. 48, s. 303. 394. No Council shall, unless sj)ecially authorized so to do make or give any bond, bill, note, debenture or other under- taking, for the payment of a less amount than one hundred dollars ; and any bond, bill, note, debenture or other under- taking issued in contravention of this section, shall be void:(!() (s) It is tloubtful whether, in the absence of an express autliority to borrow money, a Municipal Corporation has the power tci Iwrrow even to meet current expenditure. See note k to sec. 330. The power to give a promissory note for money borrowed was also a sub- ject of doubt. Sec Attorneij-General v. Lichfield, 13 Sim. 547; see further, note m to sec. 394. In the past, some Municipalities have assumed to borrow money from banks, and to give promissory nutes for payment ; but the Legislature, to remove all doubt, has in express language conferred the power, subject to certain reasonable limita- tions. (<) The i)ower is to borrow to meet ' ' the current expenditure of the Corporation," which, under ordinary circumstances, should be met by the collection of taxes. So the duration of the loan is orly to be " until such time as the taxes levied therefor can be collected.' The security to be given for the loan is a promissory note. The power is to be exercised only by By-law. The By-law should regulate- 1. The amount or amounts to be borrowed. 2. The promissory note or notes to be given as security therefor. The Corporation caimot make a legal promissory note for a less sum than $100. See sec. 394. In Cities the Council may by By- law require the payment of taxes to be made into the office of the Treasurer by a day named, and in default may impose an additional I percentage charge apparently for the purpose of meeting interest on j moneys borrowed under this section by reason of the delay in pay- ment of taxes. See note m to sec. 251. (m) It has been said that the power to execute bonds, deeds and j covenants is inseparable from the existence of all Corporations, pub- lic and private. See Commonwealth v. Pittsburg, 41 Pa. St. 278; see i also Z>o«,7/a.M v. Virginia City, 5 Nov. 147. " Generally speaking, all Corporations are bound by a covenant under their corporate seal, properly affixed, which is the legal mode of expressing the will of the entire body, and are bound as much as an individual by his j own deed. * * * But where a Corporation is created by an ict j of Parliament, for particular purposes with special jwiwv.s, then| indeed another question arises, their deed, though under their cor- porate seal and that regularly affixed, does not bind them if it appear j [Seciiuns 218 and 2U 1\ &3H] IlESTBICTIONS AS TO BANKING. 305 but nutliin"' herein contained shall be construed to affect or repeal so much of the pi'ovisions of sections two hundred PtotIho. anil eii'liteen and two hundied and nineteen of the Act of the Parliament of the late Province of Canada, passed in the g^ioii held in the twenty-ninth and thirtieth yeai-s of the [, reiiin of Her i)resent Majesty, and chaittered tifty-one, as is inteml"! to prohibit Mimicipal Councils acting as bankers, or issuin;,' notes to circulate as those of a bank, (v) 36 V. c. 48, s. 30-t. [Sectms 218 and 219 o/ 29-30, V. c. 51, are as follows : — 218. Xfi Connoil shall act as bankers, or issue any bond, bill, note. Restrictions (Itkiiture or other undertaking, of any kind or in any form, in the upon Coun- naturedf a hank bill or note, or intended to form a circulating ^ilsw to mciiiuni, or to supply the place of specie, or to pass as money ; nor, ig*ujng^i,ni,^ inkss specially authorized so to do, shall any Council make or give bonds, etc. I Miy IkiiiiI, bill, note, debenture or other undertaking, for the pay- i mcnt of a less amount than one hundred dollars ; and any bond, bill, j Ditc. debenture or other undertaking issued in contravention of this I section shall be void. I. In case any person issues or makes, or assists in issuing or xo issue [ making, or knowingly utters or tenders in payment or exchange, any bank notes, kill, bill, note, debenture or undertaking, of any kind or in any Jto., con- fonii, in tlie nature of a bank bill or note, intended to form a circu- Ac?^declawd lating medium, or to supply the place of specie, or to pass as money, a m'isde- [ ctntrary to this Act, such jjerson shall be guilty of a misdemeanor. ] meanor. Ifcvtlie express provisions of the statute creating the Corporation, or Ik necessary or reasonable inference from its enactments, that the Idteil was ultra vires ; that is, that the Legislature meant that such |i (ked should not be made." Per Parke, B., in South Yarmouth R. Ifij. V. (Irvat Northern R. Co. 9 Ex. 55, 84 ; adopted by Martin, B. , [in hujm v. Brecon, 3 H. & N. 670 ; see also Holdmoorth v. Dart- umth, 11 A. & E. 490 ; Rec/ina v. Lichfield, 4 Q. B. 893 ; Pallisterx. Xdrm-md, 9 C. B. 774 ; Nowelletal. v. Worcester, 9 Ex, 457 ; Kendall |v. A'iftf/, 17 C. B. 483. The power to make bonds, bills, notes, deben- Itiires and other undertakings for the security of money borrowed is |liere expressly recognized and restricted to this extent, that the mtx shall not be exercised "for the payment of a less amount than llOO,' and with the emphatic declaration that any such security jissueJ in contravention of the Act ' ' shall be void. " An exception |i3 created by sec. 559 sub. 3. (r) Banking, Criminal Law, and Criminal Procedure Law, are all inbjects which, under the B. N. A. Act, appertain exclusively to IlieDoraiuiou Legislature. B. N. A. Act, s. 91, sub. 15 & 27. The Act of 18G6 was passed by the Legislature of the late Province of mada, before Confederation, and therefore at a time when no Buestion of its constitutionality could be properly raised against it. file sections 218 and 219 of the Act to som. extent relate to crime, « not to banking, and so the Legislature of Ontario has very pro- 39 M' 306 THE MUNICIPAL MANUAL. [s.3fl5. ,« 396, 397.] QUAL Certain per- sons to be , ex officio justicei of the peace. TiTLK VI.— Rksi'Ectino the Administration of Justice axu Judicial Puocekdinus. -Justices of the Peace. -Penalties. -Witnesses and Jurors. -Convictions under By-laws. -Execution aoainst Municipal Corporations. -Contracts void alike in Law and Kyurrv.' -Police Office and Police Ma(1istiiiliialitied was invalid to uphold the detention of the prisoner con- [ luieil under it. The Queen v. Boyle, 4 U. C. P. R. 25G ; -S'. C. 4 U. I C. L J. X. S. 256. It is now jjrovided that no Alderman, &c., after takin<,'the oaths or making the declaration as such, shall be required tn iiave any property qualification or to take any further oath to I tiiable him to act as a Justice of the Peace. Sec. 397. Although the Mayor is ex officio a Justice of the Peace sec. 1 9.5, he is only entitled to act as such where there is no Police { Magistrate, Every City and every Town having more than 5,000 inhabi- Itaatsd/id// have a Police Magistrate. R. S. O. cap. 72 sec. 1. jEvery other Town maj/, if the Lieutenant-Governor in Council see I fit to make such an appointment, have a Police Magistrate. Jh., m. 2. When the Lieutenant-Governor in Council is of opinion that Itk due administrntion of justice requires the temporary appoint- Iment of a Police Magistrate for a County or any part of a County, jtlie Lieutenant-Governor in Council may appoint such Police Magis- |trate.'>.ccordingly. 41 Vict. cap. 4 sec. 9. {'') The jurisdiction is to try and determine — 1. Ml prosecutions for offences against the By-laws of the Town |«rCity. '-■ AH prosecutions for penalties for refusing to accept office Itierein, or to make the necessary declarations of qualification and TOliice. I (/) It is the policy of the law to require all persons entitled to wharge the subordinate but responsible and, it may be, arbitrary ^lities of a Justice of the Peace, to have some property qualification answer to persons aggrieved by their misconduct. No person can ^a \\arden, Mayor or Reeve without having some property qualifi- ,!<• I 308 THE MUNICIPAL MANUAL. [ss. 39*^, 35J, Jurlndlctlon of iluBtleeg und<9r by-lttwi. JurlHdlction in caMS not specially pro- Tided lor. further oath to enable him to act as a Justice of the Peace, {(/) 3G V. c. 43, s, 314. 398. Kvtiry Justice of the Peace for a County (h) uliall have jurisdiction in all cases arising under any J3y-liiwofanv Municipality in such County, wliere there is no I'ulia^ Magistrate, (i) 30 V. c. 48, s. 310. 399. In case any offence is committed against a by-law of a Council, for the i)rosecution of which ofl'ence no otlitr nn,. vision is made, (j) any Justice of the I'eace having jiiiistliciiuii in the locality where the itiender resides, or where the offciiLf was committed, whether the justice is a member of the C'uim- cil or not, may try arid determine any prosecution for tlie offence. 30 V. c. 48, s. 311. cation. The possession of these offices, therefore is some giiaraiitn. of property. But a I'olice Magistrate, as such, is not reiiuinil t.i possess any property ; and it is lliHiuidt to iniderstanil wliy he, n; all local Justices of the Peace, should be exempt from having a iiro- I)erty «iualiHcation. See 11. S. O. c. 72, s. 5. {(j) iSec note c to s. 39(5. (//) The authority of Justices of the Peace appointed by theC'rmra is limited to the locality si)ecilied in their commissions. It is in iii case attaclicd to the person, so as to be capable of being exeriistl elsewhere than within those limits. A Justice of the Peace, fur the time that he shall make his abode or be out of the County whuru he is in commission, cannot intermeddle or talce any recognizance or any examination, or otherwise exercise his authority in any matkr that shall hapiien within the County where he is in commission. Neitlier can he cause one to be brought before him out of the County where he is in conunission, "for being out of the County where be i« in commission, he ia but as a private man. " See Paley on Convic- tions, 5 Ed. 18. i («) The meaning of this section is not free from doubt. The lan- guage used is very comprehensive. Every Justice of the Peace fun county shall have jurisdiction in all cane.i arising under any Bylaw of any Municipality in such county where there is no Police ilagis- trate. This is broad enough to give jurisdiction to County Justin's, in the cases mentioned, over offences against Bydaws committed in Cities and Towns, provided there be no Police Magistrate in suth Cities and Towns. {j) The Corporation of any County, Township, City, Town, or Incorporated Villa^'e, may pass Bydaws for inflicting reanonahk ^m and penalties not c Acceding $50, exclusive of costs, for breach of any of the By laws of the Corporation, and for inflicting rmoiM imnishment or hnprisunment, with or without hard labour, for any period not exceeding 21 days, for breach of any of the By-laws of the Cori)oration, in case of the non-payment of the fine inflicted for any .m.] HECOVERY OP PENALTIES. 309 DiviHioN II. — Penai.tiks. lifmveri/ niuf eii/orcfiment fhereo/. Seen. iOO-[02, Wkre offence nynlnst liij-Latos, Sec. 401. .Ijiplicatimi of penaltiea. Sec. 403. 400. Every fine and penalty imposed by or under the RecoTeryaiid vitlinrityof tliia Act [a) may, unless when; otlicr provision is or'iHmaitlM. siit'cially made therefor, (/>) bo recovered and enforced with ciwi.s, (r) by summary conviction, before any Justice of the Peuce for the County, or of tlie Municipality in which the such hrusch, and there hcintr no disti-csa out of wliich the fine can bo Itvii'il, with certain speciHea exceptions. Sec. 4.'>4 suba. 12-14. Tbe jurisiliction of the Justice is ni.ade to depend cither on the locality whore the offender resides or where the olfenco was committed. A iujtiue liaving jurisdiction in either locality may not only try but likriiiiiio the prosecution. Tiie authority of a .Justice, who is so by virtue of his ottice as Mayor, lleove, he, is limited to the county in which bis Municipality is situ.ite, and the autliority of a Justice of the I'oace ajtpointed l)y commission from the Crown, is limited to the (,'iiiiity therein specilied. See note A, to sec. .3U8. (ii) A By-law without* a penalty would be nugatory; so power ia given to Municipal Councils to pass By-laws for inflicting reasonable imiiisliment, with or without liard labour, either in a lock-up liouso in some Town or Village in the Township, or in the County (laol or House of Correction, f(jr any period not exceeding twenty-one days, for breach of any of the By-laws of the Council, sec. 454, sub-sec 14, in ease of non-payment of the fine inflicted for any such breach, and there being no distress found out of which sr.ch fine can be levied ; except for breach of any By-law or By-laws in Cities, and the sup- pression of houses of ill-fame, for which the imprisonment may be for any period not exceeding six months, in case of the non-pay- ment of the costs and tines inflicted, and there being no sufficient distress. C'j Where power is given to enforce payment of a pentalty in a particular mode, the power to enforce in any other mode is impliedly «chi(leil. Kirkv.Novnll, 1 T. l\. 118, 125 ; Hart v. Mayor, Ac, 9Wen.l. (N.Y.) 571, 588 ; //cwfi v. Town Council, 6 Rich. (S.C.) 404 ; 'W/^rv. Doty, 5 Ohio, .394; Jit'fc.^ v. Chamberlain. 17 Wis. 446; Mk V. Xcw Orleans, 10 La. An. 321 ; Grand liapid^ v. JIitghHs. 15 Mieli. 54. (O Ifefore the 18 Geo. III. cap. 19, was passed in England, there was no (jeneral power enabling a convicting Justice to award costs. Special provisions to that effect were, however, inserted in particular Acte. a^e Skinijleyv. Surri,lf v. .S7. ^farl/\ Xottini/havi, 13 E.ast. 9iii;Sellwoo(lv. Mount, 1 Q. B. 72(5; Lock v. Sdlwood, lb., 736; ^'"■<-imn W.Clark, 5 q. B. 887. The amount of costs should be specihed ni the conviction. Bott v. Ackroyd, 28 L. J. Mag. Cas. \'t m '^7 . 310 Imprlfion- in«nt in (WfHUlt of psymcDt. Ponaltlei Itnpowd by by-Uwg, Award of poDftlty and C08tl. TlIK MUNICIPAL MANI'AL. [n. 101 offence wuh coininittod ; ((/) luid in default of payiiiput the offi!fi(l«fr may be ci>nnnitt(Hl to the ('omnion (jaol, [fnusc ot (.'oiTcction, or Lock-uj) HoUHe of siicli County or Mimici jMility, there to be imprisoned for any time, in the dinmaion of th(! convictinjj Justice, not exce(>din^', (unb'ss when, otli,., provision is spc^cialiy made), tliirty days, («) unless siicli I'm, and peiuilty, and costs, including the costs of the coniiuittul iiro sooner paid. (/) 36 V. c. 48, h. 31 r». 401. The Justice or other authority before whom u pro- secution is had for an ofVenee ajjjainst a municipal by-law, (j) may convict the otb nchu* on the; oath or alliinatioii otaiiv credible witness, (//) ami shall award thcs whole or such imrt (it 207 ; seo ftlao The Qumi v, Ehi, JS E. & B. 480 ; Hoc further, 7'"cn;v. NiwmiD), 15 M. & W. (;4r», (;;").'{; Wraij v. Ti>h; Vll). H. AK,:m: The Quern v. (,'lrunu itnont iiiiponed by the by-law an ho thinka nil Th' A'i»,'/v. f'lMohl, fJilb. Ill ; Purlman v. OMen, Siiy. I7H: The 114'. '/Vic A'iw;/ V. Jd/innou, Willos, 4'Jr», noto r, Hut, 8<> fur nn thia Vt is I'ipncorned, ii is oxpresfily i>rovi»leil that " the pci'Moii ^'ivingor iiiakini,' the iiiforniiition or coiiipliiint, hIiuII I)u n t'oiiiiiutuiit witiiuHM. " Sn'. M- It is also now oxprossly (lucl.-vrotl that t;ii tlio trial of any ufiidriliwf, mnltir or '/iirtiijhifito)i, 2 E, & B, 717 ; Sweeny v. Spouner, 3 B. & S. 329; Ren-ev. Wood, 5 B, & S. 364 ; Attorney-Oeneral v, SvUimn, 32 L J. Ex. 92 ; Easton's Cane, 12 A. & E, 643 ; Cattel v. Ireson, E. B. i E. 91 ; Morden v. Porter, 7 C. B, N. S. 641 ; Hearne v. '■'(ir/oH 2 E. & E. 66 ; Parker v. Green, 2 B. & S. 299 ; In re lmi.i anil MrOlnxhan, 29 U. C. Q. B. 81 ; The Queen v. Boardman, 30 U. C. Q, B, 553 ; The Queen v. Roddy, 41 U. C. Q. B, 291. ?# 'ft R 312 THE MUNICIPAL MANUAL. [&40i> How levied. fit,(t) with the costs of prosecution, and may by warrant, under the hand and seal of the Justice or other authority, or in caw two or more Justices act together therein, then under the hand and seal of one of them, (k) cause any such jjecuniarv penalty and costs, or costs only, if not forthwith paid, to be levied by distress and sale of the goods and chattels of the offender. (I) 36 V. c. 48, s. 317. Commit- 402. In case of there being no distress found out defcuitof of which the penalty can be levied, (m) the Justice distresn. j^^^^ commit the offender to the Common Gaol, House of Correction, or nearest Lock-up House, for the term, or (i) It may be that the By-law imposes a fixed penalty for tlie offence But usually the By-law states i maximum and minimum sum. The power of a Municipal Corpor;ibion to impose such a sliding penalty was at one time doubted. Soe note v) to sec. 454, sub. 12. The power of the Corporation to delegate to the Justice the fixing of the amount was also doulited. lb. But as a knowledge of the circumstances of each particular case is essential for the exercise ol discretion both as to fine and imprisonment, and as !,his knowledge can only be obtained by the Justice before whom the oflFender is brought, it ha been deemed ri^ht expressly to provide that the Justice shall award "the whole '.» such part of the penalty ^r punishment imposed by the By-law as Iw tlnuk>< Jit." In re Sndl and The Corporation oj ik Town of Belleville, 30 U. C. Q. B. 81. (k) The warrant must be under "hand and seal," and therefore in writing. See Hutchinson v. Loiondes, 4 B. & Ad. 118. {I) This section applies only to proceedings for offences against Municipal By-laws. Municipal Corporations have no power lo create crime or regulate criminal procedure. (7/if The power of imprisonment may be either as the direct punishment for an offence or .tb the means of enforcing payment of a pecuniary jjenalty. In the former, the provision would savour of crime, see note h to sec. 401 ; in the latter, of procedure other than criminal procedure. lb. Here the power of commitment is con- tingent on " there being no distress found out of which the penalty can be levied." The commitment, therefore, ought not to be issued till the fact ihat there is no sufficient distress is ascertained. Tk Queen v. Hawkins, Fort. 272, per Parker, C. J. ; Retjhia v. Steabl-v 6 U. C. P. E. 244. A Justice who in such a case commits a ^jarty without inquiry as to distress, may, if there be a distress, be sued as trespasser. Hill v. Bateman, 2 Str. 710. Some statutes only allow the commitment to issue upon clue proof upon oath of the want o distress. 50 Geo. III. ch. 108, s. 7. If the same person be convicted of two penalties, .and there be goods enough to answer only one, they may be levied under the one and imprisonment follow on the other. The Queen v. Wyatt, 2 Ltl. Rayd. 1195 ; 5". C- 11 Mod. 54. Convic- tions under the Dominion Fishery Act, 31 Vict. ch. (iO, are peculisr ,403.] APPLICATION OF FINES. 313 some part thereof, specified in the by-law. (re) 36 V, c. 48, ^318. 403 Unless otherwise provided, (o) when the pecuniary fidm, how iitnalty has been levied tinder this Act, one moiety thereof ^ * ' shall "0 to the informer or prosecutor, and the other moiety to the Municipal Corjioration, (p) unless the prosecution is Iroiiffht in the name of the Corporation, in which case the whole of the pecuniary penalty shall be paid to the Coqwra- tion, (?) 36 V. c, 48, s. 319. \S«e as to summari/ method of enforcing by-laws. Sec. 455.] g id therefore in in allowing imprisonment if the fine be not forthtvith ,paid. See Amtl V. BratUii, 23 U. C. C. P. 1. ill] Tlie commitment must be in writing. Mai/hew v. Locke. 2 Marsh 377. It should be drawn up forthwith after the commitment is onlered. In re MoHte.r.'*, .33 L. J. Q. B. 146. Detention of the party without a written warrant cannot be justitied further than necessary to make out the warrant. Hiitchimon v. Lowndes, ct al., 4 B. & Ad. 118. But the detention of the party till the return of the warrant of ilistress may, it seems, be by parol. Stile v. Walls, et al., 7 East. 53.3. {f)) If the statute under which the conviction takes place applies the penalty with certainty, it is sufficient for the Justice to award tie penalty to be paid and applied according to law. T/ie King v. Bimtt, 1 Salk. 383 ; The King v. Seale, 8 East. 573 ; The King v. nmimn, 2 T. R. 18 ; Tlie Queen v. H>ide, 21 L. J. Mag. Cas. 94 ; b Bwthroyd. 15 M. & W. 1 ; The Queen v. CrUlland, 7 E. & B. 853; Tkf Queen v. Johnnon, 8 Q. B. 102 ; see also The Queen v. Olossop, 4B. & Al. 616; Brown v. Nicholson, 5 C. B. N. S. 468; Seamen's HmiMx. Livei-pool, 4 Ex. 180 ; Wrag v, Ellis, 1 E. & E. 276. If there he any material variance between the conviction and the statute as to the appropriation of the penalty, the conviction will be ha-l. Griffith v. Harris, 2 M. & W. 335 ; Chaddock v. Wilbraham \/(, 2 Ld. Kayd. 1478 ; The King v. Priest, 6 T. R. 538. (r) This removes all ground for supposing tbat the inforiuMt or complainant is, by reason of pecuniary interest, disqualitieil, but leaves the question as to the competency of the person complaiBftl against to be a witness untouched. See note /t to sec. 401. [m) As to what matters are civil and what criminal, see note h to sec. 401. (t) The Evidence Act, Con. Stat. U. 0. ch. 32, long befora the j passing of the Act from which this section is taken, had removed any such disqualification as is here supposed to exist. See note h to ] sec. 401. (m) If this means anything, it means that the fact of the f :rsoii called as a juror being a ratepayer of the Corporation— that is, a party to the civil proceeding in which he is called — shall be a per emptory ground of challenge. Before this Act, such a person " was liable to challenge" for cause. The object of this Act must te to make the challenge good as a peremptory challenge. The onl)' exception to the challenge is where the Corporation " is a county. ,406,407.] FORM OF CONVICTION UNDER BY-LAWS. 31& 406- In prosecuting under any by-law, or for the breach Compelling of any by-law, witnes-ses may be compelled to attend and attendf&c? give evidence in the same manner, and by the same process, I as witnesses are compelled to attend and give evidence on I sunmian' proceedings before Justices of the Peace in cases tried summarily, under the statutes now in force, or which mav be hereinafter enacted, (v) 36 V. c. 48, s. 322. Division IV. — Convictio:;s under By-Laws. Fum of Conviction. Sec. 407. 407. It shall not be necessary in any conviction made Form of con- I iimk any hy-law of any Municipal Corporation, to set out ^'^^'°H _ [the information, appearance or non-appearance of the defen- laws. [daiit. or the evidence or by-law under which the conviction kmade, (w) but ail such convictions may be in the form fol- lowing; (.<;) (i) If it be made to appear to any Justice of the Peace by the oath icraltirmation of any credible person, that any person within tlie jiiris- lilictioii of such Justice is likely to give material evidence on bebaU of Itlie prosecutor or complainant or defendant, and will not voliuitarily jjppr as a witness at the time and place appointed for the hearing of Itlit information or complaint, the Justice shall issue liis sunmions to 1 jjerson, under his hand and seal, requiring bim to be and appear lit a time and place mentioned in such summons, before the J ustice, lortefore such other Justice or Justices of tlie Peace for the terri- Itirial division, as may then be there to testify what he knows con- Iceming the information or complaint. Con. Stat. Caxi. cli. 10.3, sec. hi It the person summoned neglect or refuse to appear at the time |jnil place appointed by the summons, and no just excuse be offered Ifor such neglect or refusal, then (after proof upon oath or atiimation Icf the summons having been served upon such person either person- jilly or by leaving the same for him with some person at his last or |B03t usual place of abode) the Justice or Justices before whom such mm should have appeared, may issue a warrant under his or their lands and seals, to bring and have such person at a time and place be therein mentioned before the Justice who issued the summons, |or i)efore such other Justice or Justices of the Peace for the same territorial division as may be then there to testify as aforesaid. Jb. 1". The warrant may, if necessary, be backed, in order to its >eing executed out of the juriadiction of the Justice who issued * II). J («•) The law was formerly otherwise. |Vict, R. & J, Dig. 1979. The Queen v. Jioss, H. T. 3 < !■ By-l m h< i ' 316 THE MUNICIPAL MANUAL. [S. Province of Ontario, ) BE IT REMEMBERED I County of , > that on the day of ^ \ j To Wit. ) , at . in the Cou'niyof , A. B. is convicted before the undersigned, one of Her Majesty's Justices of the Peace in and for the said County, forthattlie said A . B. {utatinr/ the offence, and time ami place, and when and dm committed), contrary to a certain by-law of the Municipality of tht of , in the said County of , passed on tiw day of , A.D. , and intituled (recUiinj t!,- m of thehy-taio) ; and I adjudge the said A.B., for his said offence, to! forfeit and pay the sum of , to be paid and applied acconL I to law, and also to pay to CD. , the complainant, the sum of | for his costs in this behalf. And if the said several sums arc not pail forthwith {or on or before the day of , as the cane mmi t. , I I order that the same be levied by distress and sale of the coeds ani I chattels of the said A.B. ; and in default of sufficient distress, 1 1 adjudge the said A.B. to be imprisoned in the Common Gaol of the said County of {07% in the public Lock-up at ) for the space of days, unless the said several sums, and all costs anii charges of conveying the said A.B. to such Gaol (or Lock-up), are sooner paid. Given under my hand and seal, the day and year first above] written at , in the said County. {L.S.) J.M., J. P. 36 V. c. 48, s. 323, EXECUTION Division V.— Execution against Municipal Corporations, Proceedings thereon. Sec. 408. Ifunicipal Officers, also Officers of Court. Sec. 409. Proceedings ^QQ A.ny writ of execution against a Municipal Coqwra- execution tion (a) may be endoi-sed with a direction to the Sheriff to j would not be fatal to the conviction, if the By-law be in other! respects sufficiently referred to. {lb.) But some reference to the f By-law is necessary. In re Livinf/stone, 6 U. C. P. R. 17. (a) A Municipal Corporation being liable to be sued, see note*/ toj sec. 3, is liable to the consequence of a suit, viz. , execution. As the I assets of the Corporation are not the property of the members of the I Council, but of the people whom they represent, the form of proceed- 1 . ing by execution against such a Corporation must, under certain cir I cumstances, diflfer from that of proceeding by execution against an j individual. If it were not for the provisions heve made as to execa- 1 tion, it would seem that the judgment creditor's principal remedy I would be by writ of mandamus. Coi/ v. Lyons, 17 Iowa 1 ; SupnnMil v. United States, 4 Wall. (U.S.) 435 ; Ocilena v. Amy, 5 Wall. (hM 705 ; Olnei/ v. Harvey, 50 lU. 453 ; Frank v. San Francisco, 21 Cal. 668; )U.C'. Q. B. 28. There ; litatute, in the creditor to res I of the inhabitants. Horner \h)B(:ardde>iy, Smith, 1(5 C 108.1 EXECUTIONS AGAINST CORPORATIONS. 317 I lew the amount thereof by rate, (b) and the proceedings apinst Ithe'rwii shaU then l>e the following : (c) f^^f;^ 1. The Sheriff shall deliver a copy of the -svi'it and endorse- sheriff to de- I Dient to the Treasurer, or leave such copy at the office or "»•' ""^y t*' dwelling house of that officer, with a statement in writing of statoment of the Sheriff's fees, (d) and of the amount required to satisfy ^^^JJ^^, {such execution, including in such amount the iiitfU'cst calcu- [lated to some day as near aa is convenient to the day of the service; [.Ww/fv. Cudwallader, 36 Pa. St. 126 ; Van Hoffman v. QuUiry, 4 Wall. (U.S,)535; Nlggs v. Johnson Co., 6 Wall. (U.S.) 166 ; Weberv. Lee m.,Ih. 210; United States V. Keokuk, lb. 514; State v. //«(/, 44 Mo. llMVa/ev. Beloit, 20 Wis. 79 ; State v. Milwaukee, lb., 87 ; Soutter U.ihilim, 15 VVia. 30 ; State v. Wilson, 17 Wis. 687 ; Watenlown v. (jvhj, 20 Wis. 501 ; Ex j)arte J/abuan, 28 Iowa, 88 ; Tilson v. Put- \miii, IDOhio, 415. It would seem that the private property of the jforiHjration, i. e. such as is hfelcl for profit and free from any public I trust, may be sold under execution. Ilolladay v. Frisb'e, 15 Cal. JKIO; Dannport v. Insurance Co., 17 Iowa, 276; Louisville v. Com- uwirndtlt, 1 Duvall (Ky. ) 295. It never could be intended by the [Legislature that executions could be enforced against property held [kimblic purposes, sucli as public buildings, hospitals, school houses, lie, Si-hdjI'cr V. Cadwallader, 36 Pa. St. 126 ; President v. Indian- Ufii", 12 Iiul. 620 ; Lamb v. Shays, 14 Iowa, 567 : Green v. Marks, pill. 221 ; iS'co/< V. Union School Sections of Bur (jess and Bathurst, ) U. C. Q. B. 28. There is certainly no right, independently of hutute, in the creditor to resort for payment to the private property I of the inhabitants. Horner v. Coffee, 25 Miss. (3 Cush.)4.34; see |jlsoi)V((r(/i(%v. Smith, 16 Con. 368. ('() The writ may (not must) be indorsed with a direction to the ISheriff to levy the amount by rate. The writ may also be indorsed, lis ill the case of writs of execution against individuals, either to I levy of goods or lands (or as the case may be) of the Corporation, in jwhichevent a rate would not be contemplated, and probably would I not he necessary. See Chicago v. Hasley, 25 111. 595 ; see also iBdmlhii V. Smith, 16 Conn.' 368 ; Horner v. Coffee, 25 Miss. (3 [ Cash.) 434. (') If the writ be indorsed to levy the amount by rate, the pro- |ceeding3 shall be as directed. ('/) The sheriff is. to deliver — 1. A copy oj the writ and indorsement to the Treasurer, or leave [such copy at the office or dwelling-house of that officer. 2. With a statement in writing of the Sheriff's fees and of the amount I required to satisfy such execution, including in such amount the I interest calculated to some day as near as is convenient to the day of [service. The sheriff is not entitled to poundage on writs of execution I against Municipal Corporations, unless he actually make the money. fi ■r i I 318 . THE MUNICIPAL MANUAL. [g 455 If claim not 2. Ill case the amount, with interest thereon from the day ba'strudc by mentioned in the statement, is not paid to the SLerifi' Avithin '• Sheriff. one month after the service, the Sheriff shall examine [\» assessment rolls of the Corporation, and shall, in like manner I as rates are struck for general municipal purposes, striiie a rate sufficient in the dollar to cover the amount tine on the execution, (e) with such addition to the same as the Slierif I deems sufficient to cover the interest, his own fees, and the Collector's percentage, up to the time when such rate will probably be available ; Sherifl'd pre- ,3. The Sheriff shall thereupon issue a precept or pipcqits, lector" *€.] under his hand and seal of office, directed to tlie Collector to ievy rate. q^. respective collectors of the Cor])oration, and shall annex to every precept the roll of such rate, and shall bv such precept, after reciting the writ, and that the Corporation had neglected to satisfy the same, and referrii)g to the roll annexed to the precept, command the Collector or Collectors, within their respective jurisdictions, (f) to levy such rate at the time and in the manner by law required in respect of | the general annual rates ; Grant v Hamilton, 2 U. C. L. J. N. S. 2G2. Where a settlement is obtaineil by means of the pressure of the Sheriff, he is entitled to be paid reasonable compensation for the services performed, altiioughno special fee be assigned for such service in any statute or table of unsta. lb. If the Sheriff make the money, it would seem that the writ ij virtually executed, and that he is entitled to poundage, thoH(;li he may under this section have levied a rate to collect the amount, lb. See further, Xo.s/i v. Dickenson, L. R. 2 C. P. 252 ; BlMn-b v, Bath, t'ollicry Co.. 3(5 L. T. N. S. 800 5 Boe v. Hammond, L. R 2C. P. Div. 300. (fi) It is the duty of the Sheriff to strike a rate " sufficient," 4c, No provision exists for the striking of a second rate, in the event of the first proving insufficient. If tlie amount levied should be mm than sufficient, provision is made for the disposition of the surplus. Sub. 5. It would appear to be necessary, where there are in the hands of the sheriff at the same time several writs of executioii against the same Corporation, to strike a rate for each particular writ See Grant v. Hamilton, 2 U. C. L. J. N. S. 2G2. (f) The first thing for the Sheriff to do is, to deliver a copy of the writ, indorsement and statement, in the first sub-section mentionei The Kpcond, after the expiration of a month, to examine the Assess- ment Rolls of the Corporation and strike a rate, &c., as in the second sub-section directed. The third, to issue a precept such as in the sub-section here anno- tated mentioned. If the Corporation withhold the Assessment Rolls ' from the Sheriff, his remedy would be to apply to the Court by man- CONTRA( fcither in his own name or I 55. 409, no.] CONTRACTS WITH MEMBERS OF COUNCILP. 319 i In case at the time for levying the annual rates next Bitsroiii. I after the receipt of such precept, the Collectors have a reneral rate roll delivered to them for sugh year, they shall [jilJ a column thereto, headed " Execution rate in A, li. vs. ,» ■Jk Toii'nship " (or as the case may be, adding a similar column for each execution if moi-e than one), and shall I bsfrt therein the amount by such precept required to be levied u])on each person respectively, and shall levy the gniountof such execution rate as aforesaid, and shall, within the time they are required to make the returns of the jcneril aiiniial rate, return to the Sheriff (g) the precept with the amoiiiit levied thereon, after deducting their percentage; 5 The Sheriff shall, after satisfying the execution and all Surplus. jfees thereon, pay any surplus, within ten days after receiving [the same, to the Treasurer, for the general purposes of the ICorfioration. (h) 36 V. c. 48, s. 324. 409. The Clerk, Assessors and Collectors of the Corpora- Clerk, A8sei«- I lion shall, for all purposes connected with carrying into fedtoro to be itffect, or permitting or assisting the sheriff to carry into offlceriof the Itffect, the jjrovisions of this Act, with respect to such execu- which writ Itioiis, be deemed to be officers of the Court out of which the '^"9'- III it issued, i>nd as such shall be amenable to the Court, (i) Ijiiil may be proceeded against by attachment, mandamus or lotherwise, in order to compel them to perform the duties jleieby imposed upon them. 36 V. c. 48, s. 325. Division VI.— Contracts void alike in Law and Equity. Contracts with members of Council void. Sec. 410. 410. In case a member of the Council of any Municipality, Contracts by either m his own name or in the name of another, and either ™foj^" mi8, to compel them to submit the PioUs to him. See Gi-ant v. hmilton, 2 U. C. L. J. N. S. 262. (ji) The (lutiea of Collectors under this clause are ihe following : 1. To add a column to the general Roll, with the heading directed. '- To insert therein the amount by the precept required to be levied. 3. To levy the amount of the execution rate. i To return to the Sheriff, ^^-ithin the time limited, the precept, Tith the amouut levied, after deducting percentage. !/i) See note d to this cection. (i) Tliis is a most important clause. The power of the Court over i officers is of a very summary nature. They may be punished by l'^' i!, 320 THE MUNICIPAL MANUAL. [s. 410. 1 410.] CONTRACT Corporation alone or jointly with another, enters into a contract of any UwifToidfn kind, or .nakes a purchase or sale in which the Corporation equity. is a party intei-ested, and which is on that accoinit void or voidable in Equity, (I) the same contract, purchase or sale process of attachment for contempt in disobeying its rules or onlen ' See 2 Chit., Archil. 1710, 12 Ed. {I) Tlic settled rule in equity is, that he who is entrusted with the business of others cannot be allowed to make such business an object of interest to himself. This rule does not depend on reasouiiii; tech- nical in its character or local in its application. It is fouiuled um principles of reason, of morality, and of public policy. It hiu itj foundation in the very constitution of our nature, for it has authori- tatively been declared that a man cannot serve two niasturs, ami u recognized and enforced wherever a well regulated system of jurii- pruclence prevails. Per the Chancellor, in Toronto v. Bowci, 4 (Irant 604. One who has power, owing to the frailty of human nature, mil be too readily seized with the inclination to use the opportunity k securing his own interest at the expense of that for which he is entrusted. York BnUdinnH Co, v. Mnvkcnzk, 8 Brown, P. ('. 4i The wise policy of the law has tliereforc put the sting of disability into the temptation as a defensive weapon against the strength of the danger which lies in the situativMi. Ih. (54. This conflict of interest ij the rock, for shunning which, the disability under consideration has j obtained its force, by making that person who has the one part entrusted to him incapable of acting on the other side, that he may j not be seduced by temptation and opportunity from the duty of hij trust. Ih. 60. The law will in no case permit persons who have undertaken a character or a charge, to change or invert that character by leaving it and acting for themselves in a business in which their character binds them to act for others. lb. <)({; see further, Lhiniilnit,^, tOc, v. Colnnan et al., L. 11. 6 H. L. C. 189; Port v. Bmtl!,W\ Am. 5 ; Board of CommisdonerH v. Reynolds, 15 Am. 245. The j application of the rule may in some instances appear to bear harJ upon individuals who had committed no moral wrong ; but it ii essential to the keeping of all parties filling a fiduciary character \a their duty to preserve the rule in its integrity, and to apply it to every case as it arises, which justly falls within its principle. P'.r\ Esten, V. C, in Toronto v. Boives, 4 Grant 530. To deny the; cation of the rule to Municij)al bodies, would be to deprive it of muchj of its value ; for the well-working of the Municipal system, through •which a large portion of the aflfairs of this country are adniinisterwi, must depend very much upon the freedom from abuse with which I they are conducted. It is obvious that nothing can more temltoj correct the tendency to abuse, than to make abuses unprofitable to j those who engage in them, and to have them stamped as abuses in I Courts of Justice. Per Esten, V. C, lb. 531. The tendency tol abuse may indeed be in part corrected by public opinion ; but public j * opinion itself is acted upon by the mode in which Courts deal with I such abuses as are brought within their cognizance. It has been well| observed that the view taken by Courts of Equity with respect 1 morality of conduct among all parties is one of the highest moralitv; and this cannot fail to have a salutary effect upon public opinion itself.] ')! 1 410.1 CONTRACTS WITH MEMBERS OF COUNCILS. shall also be held void ii; any action at law thereon against tk CoiTwratiou. (?«) 36 V. c. 48, a. 327. Just 09, on the other hand, if a low standard of morality were pre- ftnted iiy the Courts, its inevitable tendency would be the demorali- latioii of the public feeline in regard to transactions of a questionable ch.iracter. Ili. Where the Mayor of the City of Toronto secretly contracted to purchase, at a discount, a large amount of the deben- tures of tlio City, which were expected to be issued under a future Bylaw of the City Council, and was himself afterwards an active party in procuring and giving effect to the By-law which was subse- iiaeiitlv pMseil, the Court of Chancery held him to be a trustee for the City of the profit he derived from the transaction. Toronto v. Bum, 4 Grant 489 ; which decisio? was afhrmed in Appeal, — Kobinson, C. J., dissenting— (> Grant 1, and afterwards upheld by the Privy Cciuntil. So where a member of a Municipal Corporation aireed with another party to take a contract from the Corporation for the execution of certain works in his name, the profits whereof were to be divided between the parties, it was held that such a con- tract was in contravention of the Municipal law, and the Court of Chancery refused to enforce the agreement for a partnership. ColUnt V, Sicindle, 6 Grant 282. An action at law on a contract for the sale oi goods by a trading partnership, of which a member is also a mem- kr of the Municipal Council, may, where the contract is not executed, be rosisttul on the ground that one of the plaintiffs is a member of the Municipal Council. Brown et al. v. Lindnuj/, S.'j U. C. y. B. t'lOO. A bill will lie, by some of the inhabitants of a Muni- cipality alleging an illegal misapplication of Municipal funds by the Mayor, which the Council, though requested, refused to interfere with, See Paterson v. Boives, 4 Grant 170 ; see also West Gwlllim' Wii V. Humi'toH ami North- Western li. Co., 23 Grant 383. (w) In an action at law, the declaration alleged that defendant, aa I agent of the plaintiflfs, undertook to expend certain moneys for them m certain roads and bridges ; that he falsely and fraudulently repre- sented to them that he had caused work to be done ; and, in collusion I with the persons alleged to have done the work, and by drawing i orders in their favour containing such representations, caused I a certain sum to be drawn out of the plaintiffs' treasury, whereas I the work had not been done and the plaintiffs lost the money. I Common money counts were added. It appeared at the trial that I the Corporation, by a resolution, directed that $300 should be jgranted to each Councilor, defendant being one, to be expended on jthe roads ; and, by another resolution, that $lClO should be placed Ito the credit of each Councillor, to be expended by them on the jroads and bridges in their respective divisions. This was in accord- jjuce with an established practice, by which the Councillors super- jbitended the laying out of moneys in their respective divisions. jDefendant granted several orders on the Treasurer to different persons jfor work alleged to be done, which orders were paid, and it after- hards appeared that the work, though contracted for, had not been jJone. There was no evidence of fraud or collusion on the part of jthe defendant, or any gain to himself, except a charge to the Corpo- Iration of commission on moneys expended. The jury fouud for the plaintiffs. The Court ordered a new trial, holding that the special 41 321 ,1 1* r t, ml 1 1 322 THE MUNICIPAL MANUAL. [s, 4]] Division VII.— Police Ofticb and Police Maoistratk. [See also Rev. Stat. c. 72.) Who io preside in Police Office. Sec. ill. Clerk of. Sec. il 2. Police offleen 411. The Council of every Town and City Hhiill establuh tSwns.'* ""** therein a Police Office ; and the Police Magistrate, (n) or in his absence, or where there is no Police Magistrntp, the Mayor of the Town or City shall attend at such Police Office daily or at such times and for such period as may be ueccssiirv for the disposal of the business brought before him as a Jus count was not proved ; that there could be no recovery on the cummun counts ; and that it was doubtful if, in such a cose, there could l)e any adeciuate remedy in a Court of Law. (Jhnthim •:. HouhUui, 27 U. C. Q. B. 550. Contracts such as the foregoing, between Corporations and members to act as Comniisaionera, Over- seers or Superintendents, are now expressly authorized and legalized. See sec. 454, sub. 2. {«) The duty to establish a Police Office for every Town and Citj is, by this section, apparently an imperative one. Every Cityami every Town having more than 5,000 inhabitants nhall have a Police Magistrate, 11. S. 0. c. 72, s. 1. Other Towns may have a Police Magistrate if the Lieutenant-Governor in Council sees fit to appoint one. lb. s. 2. And by 41 Vict. c. 4, sec. 9 : " When the Lieutenant' Governor in Council is of opinion that the due administration of justice requires the temporary appointment of a Police Magistrate for a County or any part of a County, the Lieuteuant-Governor in Council may appoint such police magistrate accordingly," and he "shall have and exercise within the County or territory for which he is appointed all the powers, authorities, rights, privileges and i'urisdiction, so far as the asme are within the authority of the Legii- ature of Ontario, by law appertaining to Police Magistrates appointed for Cities." lb. The persons who may preside at tlie Police Court are the Police Magistrate, Mayor, and any Justice of the Peace having jurisdiction in the Town or City : L The Police Magistrate, if able, daily, or at such times and for such period as may be necessary for the disposal of the business. 2. The Mayor, if no Police Magistrate, or in the absence of th« Police Magistrate. 3. Any Justice of the Peace having jurisdiction in the Town or City, at the request of the Mayor thereof. No Justice of the Peace for a City or Town where there is a Police Magistrate, is empowered to act in any case for any City or Town, except in the case of the illness, absence, or at the request of the Police Magistrate." R. S. 0. c. 72, s. 6. This part of the section applies to the case of a Town or City where there is no Police Magistrate, and the Mayor is entitled to act as such. Sec. 396. S.412.] CLERK or POLICE OFFICE. 323 tire of the Pence ; but any Justice of the Pence having juris- ,liction in n Town or City may, at the requeut of the Mayor tkreof, act in his nteacl at the Police Office. 2. Except ill cases of urgent necessity, no attendance is re- quired on Sunday, (o) Christmaa Day, or Good Friday, or any ilrtv iipj)oiiit«d by proclamation for a Public Fast, Tlianks- (jiving, or Holifhiy, or on any day set njMirt by the Council as a Civic Hdiduy. 36 V. c. 48, s. ;J28. 412. The Clerk of the Council of every City or Town, or aerk of such other person m the Council of the City or Town apjwints ^j'^if'*'*' for that purpose, shall be the Clerk of the Police Othce there- dutlM of, hikI perform the same duties and receive the sajne emolu- ments tus Clerks of Justices of the Peace ; ard in case the said Clerk is paid by a fixed salary, the said emoluments shall Fmiof he |i«i(l by him to the Municipality, and form part of its •''''y- funds, and such Clerk shall be the othcer of and under the i'olice Magistrate, (r) 36 V. c. 48, s. 32U. ((/) The statute 29 Car. 2, cap. 7, s. 6, prohibits tho execution of any process, warrant, &c., ou the Lord's Day, except in cases of treason, felony, or breach of the peace. It is a matter of public IKilicv that no proceedings of tho nature described in the statute ihould be had on a Sunday, and that they cannot be made good by any assent or waiver Ijy the party illegally arrested. The Kin;/ v. ileiinH, 1 T. R.2()5 ; Re RniuHilen, 3 D. & L. 748 ; Ex parte Eijifhiton, Ik 754. The statute authorizes arrest on a Sunday for indictable offences. Rawlins v. Ellis, 16 M. & W. 172. It is presumed that the Police or other Magistrate, whose attendance may oe required on ahohday, is himself to judge whether the case be one of "urgent necessity," and attend or not as he may determine. Works of necessity and charity are exempted from the operation of the "Act to prevent the profanation of the Lord's Day in Ontario. R. S. 0. c. 189, 8. 1. (r) The appointment of Police Clerks rests with tho Municipal Councils. The Clerk of each Council is to act ex officio in the absence of any other appointment. W'liether he acts ex officio or is appointed to act, if in the receipt of a fixed salary as Clerk of the Council, the fees appertainmg to his office as Clerk, either of the Police or Recorder's Court, are to be paid by him to the Municipality and form part of its funds. See Askin y." London District Council, 1 U. C. Q- B. 292. Where a Municipal Council in 1850, passed a vote assign- inc to the Clerk of the Peace a fixed salary " in lieu of all fees," and subsequentlv the Jury Act (13 & 14 Vict. ch. 55) was passed, it was held that the resolution would not debar him from claiming fees allowed by tlie Statutes for preparing jury books for the following year. PringU and Stormont, Dundas ami Okngarry, 10 U. C. Q. B. -^. The Court said, " The Council may, in their discretion, revise their regulation of his salary in consequence of the change made in , his dutits, if they can insist upon his being paid a fixed salary ; but I i 324 Division Board of Comtnls- sioncr* of polico in cities And townR, of whom coin- poBod. THE MUNICIPAL MANUAL. [g, 4)3 VIII.— Board ok Commihsionkrh ok pouck in Ciiib AND VoiAiK FOKCE IN ClTIKH AND ToWNH. liuanl, viinnhera qf. Sec. 413. PoiitrH uj\ as to WitncHses. Sec, 414. Qnonnn, v)/io to he. iSec. 414. J\fn>/ I'lcaiHii horsitH, cabn, ((r. Sec. 4 1 5. Jiyldvjs oj\ how (inl/iotti'cati'il and provviL Sec. 416. ln/'t'ovtion o/\ ho)>) /jnuinhuble. Sec. 417. ll'Kjh ]ia!l!^8. .V«c, 418. Pot ice Force. Sec, 419. Ai>point))H')it of. Sec. 420. Regnlattons for. Sec, 421. J)ntien of, \Sec. 422. Jieinniieratum of. Sec. 423. Consfah/ea in Towuh where no PoUc.e Muf/isti'ate, Sec. 424. Dinsolntion of present Jioanh. Sec. 425. Arrests without warrant. Sec. 42G. Suspension from ojice. Sees. 427, 428. 413. Ill every City there is hereby constituted a Board of Coiftinissioiiers of Police, and iu every Town hv iiig a Police Mugistrato the Council may constitute a like Board; (a) ami such Board shall consist of the Mayor, the Judge of the County Court of the County in which the City or Town is it would 1)0 mu'casonable and unjust to hold that he must be liiniteil to Ills prcsout salary, and receive nothing for doing the uew dutits, The Council cannot thus deprive him of the feea which a statute of the Province allows him," rev Robinson, C. J., lb, 255. So where by the Enghsh Vestry Clerks Act, 13 &, 14 Vict, ch. 57, s. 7, the \ estry Clerk is reciuired to make out, when rei^uired, the poor n.tc ami to assist tlio Church wartlens or overseers in preparing auu luakiii^out all other parochial assessments or accounts, and by the Inioa Assessment Committee Act Amendment Act, 27 & 28 Vict. c. 39, s. 7, the overseers of a Parish may cliarge any expense incurred by thein with the consent of the Vestry in making out any valuation list upon the poor rate it was hold that the valuation list was not an assessment so that the Vestry Clerk was entitled to be paid therefor notwith- standing his salary as Vestry Clerk, lieijina v. Cumberlege, 36 J. T. N. S. 700. (rt) Of late it has been deemed expedient to withdraw particular municipal functions from the Councils of certain Municipalities, ami to vest such functions in Boards appointed wholly or in part inde- Eendently of the people. It has benn found that Councillors chosen y the people, and directly responsible to the people for their conduct, are not the best custodians of power to be exercised against some 01 the people for the welfare of the whole jjeople. Matters of Pohc* have for this reason been withdrawn and vested in a Board of (.oni- missioiiers of Police, created aa provided in this section. J. 4H.] COMMIHRIOXEHS Or I'OLinE. 325 situate, nnd tlio Police Ma^iHti'iite ; jind in cnne the otKce of (i)iiiitv Judge or that of I'olico Magistrate is vncnnt, the (oiiiH'il of the City hIjuII and the Council of the Town may Aiiioint a penion resident therein to he a member of the Biiaiil, or two persons bo resident to be nieinbera theieof, as tilt' mc nmy require, during such vacancy : (h ) but the Council of any such Town may at any time, by by-hiw, dis- solve «iid put an end to the Hoard, and tliereafter the Council shall have and ex(!rcise all powers end duties pre- viously Liul or exercised by the Board, (f) 37 V. c. 16, 414. Such Commissioners shall have power to summon and ^?,'"'" "■ *• i\;imino witiieHS(!s on oath ((/) in all matters conncsoti'd with till' adminiKtrution of their duties ; (<■) and a majority of the Majority to fliiiinl shall constitute a (pionun, and the* acts of a majortiy oonnutute* t|iiotum. '/) The intention Ib, that the Board, when full, shnll consist of throe [R'rsons, nnf Police in a City to put an end to its existence, the iimabitants of a 'J'own are lid'erently placed, for the Council of a Town 'Mnay at any time lissolve and put an end to the Board." ((/) The power is "to summon and examine witnesses on oath.' This power without more does not amount to much so long as tiiere is no power given to compel the attendance of witnesses, or to pUDlsh refractory witnesses wiien in attendance. The provision is imperfect. Had it been that the Commissioners should have "the same power to summon witnesses, enforce their attendance, &c., as my Court has in civil ciises," see sec. 3(55, it would have been more perfect so if it had been declared that the powers of the Com- missioners were to be in all respects the same as the powers of Com- missioners under the Statute of Ontario, R. S. 0. c. 17, respecting enquiries concermng public matters. See sec. 452. (0 The duties under the Act, are : '4 « « !V • 326 THE MUNICIPAL MANUAL. [s. 415. l:'(,.f shall be considered acts of the Board. (/) 36 V. c 48 g. 334 ; 37 V. c. 16, s. 10. Lieeniing 415. The Board of Commissioners of Police shall in Cities stabief, cab*, regulate and license the o-vnei-s of livery stables and of horses **• cabs, cari'iages, omnibuses, and other vehicles iised for hire, (7) 1. To regulate aiid license the owners of livery stables and ot horses, cabs, carriages, omnibuses and other vehicles used for hire, 2. To establish the rates of fare to be taken. 3. To provide for enforcing payment of such rates. See sec. 415, 4. To appoint members of the Police Force. Sec. 420 5. To make regulations for the government of the Force, 4c. Sec 421. {/) No provision is made either for the appointment of Cliairman, though a Chairman is intended, see sec. 416, or for a casting vote ia the event of a tie. See I'eople v. Hector, Pie mental v. San Franciico, 21 Cal. 351 ; Inm- ance Company v. SortwcU, 8 Allen, (Mass.) 217 ; see further, note « to sec. 217. ((j) Power to a City Council to make such ordinances " respecting streets, carriages, waggons, carts, drays, &c.," as to them should seem expedient and necessary, was held to authorize an ordinance requiring all iiersons who drive for hire any cart, dray, waggoner omnibus, within the City, to take out a license and to require the vehicle to be numbered, or on failure to do so to pay a fine. Cllij Council V. Pepper, 1 Eich. S. C. Law, 364 ; see further, BockiiKj v. Jonea, L. E. 6 Q. B. 29. Under a similar ordinance the imposition of an annual charge on each car of a street railway company was sus- tained. Frankfort Railway Co, v. Philadelphia, 58 Pa. St. 119; Johnson v. Philadelphia, 60 Pa. St. 445; but see Mayor, (Oc, v. Avenue Railrocul Co., 32 N. Y. 261. Authority to license hacks, drays, waggons and othtr vehicles used within the City for pay dots not authorize the taxation of vehicles hauling into and out of the city. City of St. Charles v. Nolle, II Am. ^. The power is by this section restricted to vehicles "used for hire," and so clearly excludes any power to license vehicles used by merchants, manufac- turers and others for their own use. St. Louis v. Grove, 4(3 Mo. 574, In England, by Stat. 6 & 7 Vict. ch. 86, sec. 33, provision is made for licensing hacks, and a penalty is imposed on the driver of a hack- ney coach who shall apply io\ hire elsewhere than at some standing appointed for the purpose. The following cases have been decided under that statute. Hun-ell v. Ellis, 2 C. B. 295 ; Royers v, Maf- Namara, 14 C. B. 27; Heath v. Brewer, 15 C. B. N. S. 803 ;£ parte Mitcham, 5 B. & S. 585 ; Buckle v. Wrightson, lb., 854; »- 7ier V. Ustier, L. E. 7 Q. B. 423 ; Foioler v. Loci; L R. 7 C. P. 272. So regulations are made under the Metropolitan Public Carriage Act, 32 & 33 Vict. ch. 115, sec. 4, regiilating vehicles plying for hire. The ,416.] BY-LAWS OF COMMISSIONERS OF POLICE. 327 jindsk)! establish the rates of fare to be taken by the owners , ordrivere, (A) and may provide for enforcing payment of such ntes, (i) and for such purposes shall pass by-laws and enforce gjjaii make the tiaine in the manner and to the extent in which any by- by-iaw«. ]iv to be passed under the authority of this Act may be en- forced. 36 V. c. 48, s. 335. • 416. All by-laws of such Boai"d of Commissioners of How such Police shall be sufficiently authenticated by being signed by au'thJnti- the Chairman of the Board, which passes the same ; (j ) and a cated and copy of any such by-law written or printed and certified to be a true copy by any member of such Board, shall be deemed authentic, and be received in evidence in any Court of jus- tice without proof of any such signature, unless it is specially pleaded or alleged that the signature to any such original bv-law has been forged, (k) 36 V. c, 48,. s. 336. i following cases have been decided under it. Carke y. Stanford, L. R. 6Q. B. 357 ; Allen v. Tunbridge, L. R. 6 C. P. 481 ; Bockhvj v. Jmea, L R. 6 Q. B. 29 ; see also Duck v. Addhujton, 4 T. R. 447 ; The Kiiifjy. Raivlimon, 6 B. & C. 23 ; Cloud v. Turfery, 2 Bing. 318; Bk'diml V. Bennett, 4 H. & N. 127 ; decided under other similar Acts in England. (/() The power " to regulate and license" vehicles used for hire, would involve the power to establish the rates of fare t'> be taken by the owner or drivers, as well as the power to make it obligatory upon !uch owners or drivers to carry the tariff printed in some conspicuous place, for the use of those who employ the vehicles. The Legislature has not left the former part of the proposition open to mere infer- ence. (i) It is intended that the provision for enforcing payment of rates, tc, shall be bv By-law. For all the purposes mentioned in the sec- tion, the Commissioners are empowered " to pass By-laws and enforce the same in the manner and to the extent in which any By-law to be passed under the authority of this Act may be enforced. " The usual male of enforcing the provisions of a By -law is by fine, to be levied by distress ; and in default, by imprisonment. See sees. 401, 402, and noten thereto. Express provision to that effect is made in sec- tion 417. (i) The ordinary mode of authenticating on ordinary Municipal By-law, is to have it under the corporate seal of the Corporation and the signature of the head of the Corporation. Sec. 281. Commis-' sioners of Police are not a Corporation, and therefore have no cor- porate seal ; so that their By-laws are to be deemed sufficiently authenticated " by being signed by the Chairman of the Board which passes the same. " (k) This is in effect a transcript of a similar provision made as to the admission in evidence of ordinary Municipal By-laws. See sec. 282, and notes thereto. ( tin t May be en* forced by pen<lei, How recorered. W'. \: 328 THE MUNICIPAL MANUAL. [ss. 417, 418 417. In all cases where the Board of Commissioners of Police are authorized to make by-laws, either under this or any other Act or law, they shall have power in and by such by-laws to attach penalties for the infraction thereof, (/) to be recovered and enforced by summary proceedings before the Police Magistrate of the City for which the same are passed, or, in his absence, before any Justice of the Peace having jurisdiction therein, in the manner and to the extent that by-laws of City Councils may be enforced under the authority of this Act; (m) and the convictions in such proceed- ings may be in the form hereinbefore set forth, (m) 36 V. c 48, s. 337. Highbaiii«f8. 418. The Council of every City shall appoint (o) a High Bailiff bvit may ju'ovide by by-law that the otHce of High Bailiff and Chief ConstfiMe (p) shall be held by the same pei"son. 36 V. c. 48, s. 338. ( I) See sea 400, and notes thereto. ' (m) See R. S. O. c. 72, a. 6. («) See note x to sec. 407. (o) The appointment of High BailiflF rests with the Municipal Council, whereas the appointment of Constables rests with the Board of Police Commissioners. Sec. 420. {p) A Constable is an officer of great antiquity. Bac. Ab. Constable, A. The office was originally instituted for the better preservation of the peace. Ih. C. A Constable is the proper officer to a Justice of the Peace, and so is bound to execute warrants. lb. D. If a Constable be sued for anything done m the execution of his office, he and all who assist him may plead the general issue, and give the special matter in evidence. lb. The Council of every Town not hav- ing a Police Board, shall and the Council of every Incorporated Vil- lage, may appoint a Chief Constable and one or more ConataWes for the Municipality. Sec. 424. And in Cities and Towns having a Pdlice Board the force shall consist of a Chi of Constable or as many Con- stables and other officers and assistants as the Council may deem necessary. Sec. 419. The duties of a Chief Constable usually differ from those of the High Bailiff. The latter is, as it were. Sheriff of the City ; and yet it has been held that it is the duty of the .Sheriff •f the County in which the City is situate and not of the High Bailiff of the City, to convey to the Penitentiary prisoners sentenced at the Recorder's Court. Glass v. Wujmore, 21 U. C. Q. R. 37. Kvery City must, under the section here annotated, appoint a High Bailiff, and may by By-law direct that the offices of High Bailiff and Chief Constable shall be held by the same person. The Council may suspend the High Bailiff from the duties of his office. Sec. 421, Police officers " are not necessarily Constables or conservators of the peace." See the following note. POLICE FORCE. 329 i4l9.] 419. The Police Force in Cities and Towns having a PoHcc ibwo joard of Comraisioners of Police, shall consist of a Chief and towns. Constable and as many Constables and other officera and assistants as the Council from time to time deem necessary, (q) n^. ((/) This section relates to the constitution and number of the Force. It is to consist of a Chief Constable and as many Constables and other officers and assistants as the Council from time to time deem neces- urr ; bat in cities in no case to be less in number than the Board reports to be absolutely required. The only authority of the Council is, subject to the provisions of this section, to fix the number of the Force, but not to appoint the members of the Force. See sec. 420. The Polioe Force is a force not known to the common law ; Police (icer is an officer not known to the common law. It is created by statute. Being so created, such an officer can only exercise such power as the statute confers on him, either by express authority or necessarj' inference. See Commomoealth v. Hastbuin, 9 Mete. (Mass.) 259; f'omvwnweakh v. Diujan, 12 Mete. (Mass.) 233. In Massachu- setti. ?ohce Officers are made Peace Officers. See Butric.k v. Lowell, i.^ilen, (Mass.) 172. So also in Main. See Mitchell v. Rockland, 52 Maine. 118 ; .>) The object of this se( I of the peace officers namei |fe/tfa«ori not committed j Caution, must, however, 1 I circumstances. A Magisi [an arrest is made without Si 424-426] ARRESTS WITHOUT WARRANT. 333 424. The Council of every Town not liaving a Boai'il of Constables in Commissioners of Police (w) shall, and the Council of every in- ^nj^e'"** corporated Village may, (x) appoint one Chief Constable, and one or more constables for the Municipality ; (>/) and the per- sons so rtj)pointed shall hold office during the pleasure of the Council, {z) 37 V. c. 16, s. 12. 425. Wherever in any Town thei-e was on the twenty- ^^■J^"J^*°°, fourtli day of March, '^J874, a Board of Commissioners of police com- Police constituted undei'^^the Acts then in force respecting tow*]""""* '" k'DS. Municipal Institutions in'^^'his Province, the Council of said Town may by by-law dissol' e and put an end to said Board, and thereafter the Council shall have and exercise all powers I and duties which might, under said Acts, have been had or ; exercised by said Boai'd ; (a) and unless and until so dissolved I and put an end to, the said Board shall have and exercise all tie [loweiti ami duties which, but for this .section, would have ■ leen exerdsed or had by said Board. 37 V. c. 16, s. 13. 426- In case any person complains to a Chief of Police, or Arrests by j to a constable in a Town or City, of a breach of the peace fo^aUe'^'ed laving been committed, (b) and in case such officer has reason to breaches of lielieve that a breach of the peace has been committed, though connnitted° Dot in his presence, and that there is good reason to api)re. '" **>*''' I ' ' ° ^ •■ presence. tk numey. lb. It may be that the Council has surplus funds in { hand to meet demands witliout levying a rate. If so, the levying of I a rate, even though asked by tlie Board, would be umiecessary. See hhool Trustees and Gait, 13 U. C. Q. B. 511, 521. Formerly the jBoard of Commissioners had not power to fix the remuneration, and jwhen thelaw was so the Court refused to interfere to compel the I Council to pay the remuneration fixed by the Board. In re Prince \ml Toronto, 25 U. C. Q. B. 175. (if) See note n to sec. 411. (/) The Council of a Town not having a Board of Commissioners J must appoint, but the Council of an incorporated Village may, if it j see tit, appoint. In the case of the former there is an imperative I duty, lu the case of the latter the duty is discretionary. (,!/) See note q to s. 419. (:) See note r to s. 420. (a) See note e to s. 41.3. ('j) The object of this section is to remove doubts as to the authority jot the peace otficers named to make arrests without warrant for »/»'»- JtewaHOM not committed within their view. See note q to sec. 419. J Caution, must, however, be exercised in making arrests under such circumstances. A Magistrate's warrant is a great shield. Where an arrest is made without it, if it should turn out that the provisions • 14' i % i ^34 THE MUNICIPAL MANUAL. [g. ^V| hend that the arrest of the peraon charged with comraittiiw the same is necessary to prevent his escape or to prevent t renewal of a breach of the peace, or to prevent immediatt violence to pereon or property, then if the pereon complain- ing gives satisfactory security to the officer that ho will with- i out delay appear and prosecute the charge before the Police I Magistrate or before the Mayor or sitting Justice, suck officer may, without wan-ant, (c) arrest the person charged in order to his being conveye any Common Gaol or House of Correction, either for trial cr Look'tip houies. 1 . To establiali aud maintain a Lock-up House or Lockup Huusu withiii the County ; 2. To eatabliali and provide for the salary or fees to be paid to the Constable in cliarge ; 3. To direct the payment of the salary out of tlie County fumls. A " Lock-up House" is a place for the temporary confinement of n prisoner, or of a prisoner committed for a short space of time. Sec. 449. The Gaol is for the whole County, but in each Cmnity or Union of ( counties there can be only one Gaol, aud that situate in the County Town. But there may be several I^ock-up Hnuses, am! situate where most convenient. Councils of Conntkn only are by this section authorized to establish Lock-up Houses. See sees. 4li4, 435, as to Cities, Townships, Towns and Incorporated Villa^'M. Unfortunately these places of imprisonment (Lock-ups) like t'luirt Houses in this Provi; •" are not always what they ought to be. Bat the responsibility at piesent rests on the Municipal bodies wiiohive the control of them. It is or ought to be the duty of the Executive Government to see that this control is properly exercised. It the Government have not the power the law is defective and ouglit to ^ amended. The laws of health, humanity and decency alike, deminJ that such buildings as those ir entioned should be fit for the purposes for which they are designed. Per Harrison, C. J., in Craufvnli. Beatie, 39 U. C. Q. B. 31. » While the gaol is to be placed in the care of the Slieriff, sec. 44u, each lock-up is to be placed in charge of a Constable, sp^nills appointed for that purpose by the Magistrates at a General SesiiioM of the Peace. The law has made some provision for having gaol" ^ a proper condition to receive prisoners, but none for the condition of the lock-ups. Some of the latter are iu a most disgraceful condition. See the last note. (j) Counties have the power under a different section. Sec «2. ss, 435,436.] industrial farms. in the pxpcution of nny nenteiice ; (k) and Bucli CouncilH Hhall have all tho powers and authoritios confisrred on County (Vmiicils in relation to Lock-up H0U8O8. (/) 3G V. c. 48, s. 353. 435. Two or more Municipalities nmy unito to cstaMish .Wntiovk- aiid maintain a Lock-up H(MJHe. (in) 36 V. c. 4H, s. 3r)4. «Pho"»««- 436. Tln' Council of every County, City or Town Hoparated L«nain»yb» fri.m a Coiiity may iicqiiire an o.state in landed property for inJu»trla> ,11 In.Instrial Farm, and may estahlisli a House of Industry o*f'induM'i7',' ;iiiil !i llouso of Kef'ugo, and provide by by-law for the erec- refuBeetc' til III ami re|)iur thernof, and for the appointment, payment and and duties of Inspectora, Keepei-s, Matrons and other ser- vants for tho Hiiperinteudonco, care and management of such Houses of Industry or Refuge, and in like manner make nilt's and regulations (not repugnant to law) for the govern- ment of the same : (n) (t) The persons who may, under the operations of this section, be tuiitiiicd in L(jck-up Houses, are the following : 1. Those nentciifed to imprisonment for not more than ten days, under any By-law of the Council ; 2. Those detained for examination on the charge of having com- mitted any offence ; .1, Those dHained for transmission to the Common Gaol or House if Correction. Sec further, sec. 449. In none of the coses mentioned, should the detainer in the Lock- up of persons other than those mentioned be longer than mentioned, iir fur any other purpose than mentioned. Excess in any of these particulars may subject the persons concerned to an action of tres- pass. HeaAtkimv. Kilhy, 11 A. & E. 777. The committing Magistrate is not in general liable f'^r the suffer- ings of a person committed to the Lock-up, when that Lock-up is not in a fit condition to receive inmates. Craivford v. Beattic, 39 U. C. l^. B. 31. (/) See sec. 432 and notes thereto. [m] The power to unite in establishing and maintaing a Lock-up House, it is apprehended, includes the power to make a valid agree- ment as to the terms which each shall contribute towards its e8«^-\lj- lisiiment and maintenance. The keeper of a County Lock- up may !« paid either by salary or fees. See sec. 432. («) The powers under this section are : 1 . To acquire land for an Industrial Farm ; 2. To establish a House of Industry and House of Refuge ; 3. To provide by By-law for the erection and repair thereof ; I t 340 THE MUNICIPAL MANUAL. [ss. 437, 438. Proviso B8 to united or contiguous counties. Inspectors to k«ep Hnd render accounts of expenses, etc. ;j'.f 'A 2. Any two or more United Counties, or any two or more contiguo\is Counties, or any City and one or more Counties, or any Town or one or more Counties, may agree to have only one House of Industry or Refuge for such united or contiguous Counties, or City and Counties, or Town and Counties, and maintain and kee]> up the same in the manner herein provided, (o) 36 V. c. 48, s. 355. 437. The Inspector of a House of Industry or Refuge appointed as aforesaid, shall keep an account of the charges of erecting, keeping, upholding and maintaining the House of Industiy or Refuge, and of all materials found and funiished therefor, together with the names of the pei-sons received into the house, as well as of those discharged there- from, and also of the earnings ; (p) and such account shall be rendered to the County Council every year, or oftener when required by a by-law of the Council ; (q) and a copy thereof shall be presented to the Legislature. 36 V. c. 48, s. 356. By-laws may 438. The Couucil of every City and Town may respect- ^ta^bZiIng ively pass by-laws : workhouses andliouses 1. For erecting and establishing within the City or Town, o correct on. ^^^ ^^^ ^^^^j^ Industrial Farm, or on any ground held by the corj)oration for public exhibitions, a Work-house or 4, To provide by By-law for the appointment and duties of Inspec- tors, Keepers, Matrons, and other servants ; 5. To make rules and regulations for the government of the same. At first the powers were only permissive (Con. Stat. U. C. ch. 54, sees. 415, 419) ; then compulsory, 29 & 30 A^'ict. ch. 51, sec. 413; and now again permissive. As the names indicate. Houses of In- dustry and Refuge are intended for the poor, the destitute, and the idle. See sec. 451. (o) See note m to sec. 435. {})) riie duties of Inspectors are, under this section, to keep an account showing the following : 1. The charges for erecting, keeping, upholding and maintainint' ' the House of Industry or Refuge, and of all materials found and furnished therefor ; 2. The names of the persons received into the House, as well as those discharged therefrom, and also of the earnings. {(/) The duty to render the account to the County Council, is made to depend on the passing of a By-law. The account is to be ren- dered every year or oftener, when required by a By-law of tne Couucil. ss. 439, 440.] CUSTODY OF GAOLS. 341 House of Corrfcction, and for regulating the government thereof; (r) 2. For committing and sending, with or without hard "^o^'aWeto labour, to tlie Workhouse or House of Correction, or to the ted therato. Industrial Farm, by the Mayor, Police Magistrate, or any Justice of the Peace, while having jurisdiction in the City orTo^^'n respectively, such description of persons as may by the Council be deemed, and by by-law be declared expedi- f'ut ; (s) and such farm or ground held as aforesaid shall, for the purposes in this subsection mentioned, be deemed to be within the City or Town and the jurisdiction thereof, (t) 36 V. c. 48, s. 357. 439. ontil separate Houses of Correction are erected in the several Counties in Ontario, the Common Gaol in each County respectively shall be a House of Correction ; and fvery idle and disorderly person, or I'ogue and vagabond, and incorrigible rogue, and any other person by law subject to be conuiiitted to a House of Correction, shall, unless otherwise provided by law, be committed to the said Common Gaols respectively, (u) C. S. TJ. C. c. 127, s, 11. 440. The Sheriff shall have the care of the County Gaol, Custody of iOiol offices and yard, and gaolo^s apartments, and the ap- **° ** poiutraent of the keepei*s thereof, (a) whose salaries .shall be Until houses of correction be ureeted, the common gaols in each respective couuty are c^jstituted houses of correction. ',■ The powers are- 1. To erect and establish a Workhouse, &c. ; 2. To regulate the government thereof. (<) Workhouses or Houses of Correction are intandetl to be places of pmiiahment, for the commitment thereto maybe '* with or without hard labour. " Tlie description of persons liable to be so committed is left to the determination of the Council by By-law. !0 Municipal Councils cannot in genei-al acquire property for any purpose witliout the limits of the Municipality. Here the power is to erect and establish a Workhouse "within or without" the City or Town. But for all the purposes of the section the property is, for obvious reasons, to be deemed to be within the City or Town, and tiie jurisdiction thereof. See note u to sec. 18, and note b to sec. 277. («) ftaols are designed for the imprisonment of criminals where reformation may or may not be an object of the imposition of pun- ishment, but where the person, although not a criminal, is idle, disorderly, a rogue or a vagabond, the House of Correction, if any, is the proper place for his incarceration. The County Gaol is to be used lor such a purpose only where, in the particular County, there is no House of Correction. i'l) Some disputes having hitherto existed between Sheriffs and t 'It 342 THE MUNICIPAL MANUAL. [ss. 4''.i, 442_ Keeiiers. Gaoler to have » yearly salary in place of all fees, per- quisites or impositions wbateTer. fixed by the County Council, subject to tlie revision or requirement of the Inspector of Prisons and Public Cbari ties. (6) 36 V. c. 48, s. 358. 441 . The salary of the gaolor shall be in lieu of all fees, perquisites or impositions of any sort or kind whatever ; and no gaoler or ofiicer belonging to the Gaol shall demand or receive any fee, perquisite or other payment from anv prisoner confined within the Gaol or prison, (c) C. S U C. c. 127, S.5. County 442. The County Council shall have the care of the Court- haTe*careof House and of all offices and rooms and grounds connected court-house, therewith, whethe?' the same foims a separate building ot is connected with the Gaol, (J) and shall have the appointment of the keepers thereof, whose duty it shall be to attend to the proper lighting, heating and cleaning thereof; and Hliallfroip, time to time provide all necessary and [)roper acconinioda Municipal Councils, arising out of a real or supposed conflict of jurisdiction as to Court Houses and Gaols : See Huron awl Brm v. Macdonakl, 7 U. C. C. P. 278, the object of this and thbthiee fol- lowing sections is, so far as language can do so, to remove all canst of dispute. Though it is bv sec. 429 enacted that the County Council may pass By-laws for^recting, improving, and repairing tlie Gaol, &c. , and shall preserve and keep it in repair, and provide the fuel, food, and other supplies requirecl, it is here enacted tliat the Sheriff shall have the care of the Gaol, Gaol offices and yard, ami Gaolor's apartments, and the apj nntweut of the Keepers. While upon the Council rests the responsibility of keeping the l)uilding, &c., in repair, and of providing tlie necessaries, upon tlie.Sherilf rests the responsibility of management and internal government. (6) While the appointment of the Keepers is vested in the Sheriff, the amount of salaries is to be fixed by the County Council, subject, however, to the revision of the Inspector of Prisons. . It is not said who is to decide as to the number of Keepers. The Keepers are necessary for the care of the Gaol. As the care of the Gaol is cast on the Sheriff it is presumed that he must decide as to the number of Keepers, but that their salaries shall be fixed by the County Council. Should the (salaries be fixed at such a sum as to render it impossible to obtain'fit men for the office an appeal to the Inspector of Prisons and Public Charities, is provided. (c) See note q to s. 391. \d) While the care of the Gaol is entrusted to the SlieriflF, the care of the Court House is entruafred to the County Council. It is, hw ■ ever, expressly declared that the Council "shall from time to time provide all necessary and proper accommodation for the Courts ot Justice other than Division Courts, and for all officers connected m>lt such C'outtn." 445 Cities and T ,443-445.] COURT HOUSES AND GAOLS. 343 City gaols to be regulated by by-laws of city eouDcil. Upon separa- tion of anion of counties, gaol and court-house regulations to continue. tioD fuel, liglit and furniture for the Courts of Justice other thau the Division Coui-ts, and for all olficei-s connected with such Courts. 36 V. c. 48, s. 359. . , , 443. In any City not being a separate County for all pur- poses, (e) but having a Goal or Court House separate from the County Coal or Court House, the care of such City Gaol or Court House shall be regulated by the By-laws of the City Council, if) 36 V. c. 48, s. 360. 444. In case of a separation of a Union of Counties, all rules and regulations, and all mattei's and things in any statute for the regulation of, or relating to Court-Houses or Gaols in force at the time of the separation, shall extend to the Co-irv House and Gaol of the Junior County, (g) 36 V. c IS, s. 361. 445 Cities and Towns separated from Counties snail, as 5y^"'**j'*' towns separ A public officer suffering loss through the failure of the Municipal Council to provide proper OflBce accommodatiou, has an action for the recovery of damages against the Mnncipal Corporation. Lees v. Cudrtun, 33 U. C. Q. B. 409 ; see further, Grifftii v. City of Hamilton, 3: U. C. Q. B. 519. Gaols have, at all times, been considered of universal concern to the public, and are still considered sb to sucii an oxtent that to a great extent they have been placed under the control of a public officer -the Inspector of Prisons. See note a to sec. 429. Court Houses shouM not be deemed of less public concern, unless the lives of Judges are to be deemed of less valu3 than the lives of felons and other criminals. It was a mistake e rev to have placed the building aud control of Court Houses elsewhere than with the Government, in the ailjoining Province of Quebec a different policy has been adopt- ed, and the contrast between the Court Houses there and here establishes the wisdom of the Government policy. It is not too late for the Legislature to give a controlling power as regards the con- struction and maintenance of Court Houses to tks Government. The administration of justice is not a matter of mere local concern ; and the reason which has impelled the Legislature to place the erection and maintenance of Gaols under the control of the Government, applies with as great force to the erection and maintenance'cf Court Houses. H Every City is a county of itself for municipal purposes. See mqumi V. Umith, 7 U. C. L. J. mfThe Queen v. Rochenter, Jb., 101, 102. » - -i, {/) So long as the Gaol and Court House are the property of the ?T""^ it is the policy of the Legislature to give the control of such buildings to Municipal bodies— the right of the City Council to the control, in preference to that of any other Municipal body, can- not be questioned. {<]) See sec. 35 and notes thereto. ^ I' va 344 THE MUNICIPAL MANUAL. [s. 4«, atedfrom oonnties for erection and main- tenance of oourt-house. Reference to arbitration in caw of disagree- ment. i<' \ parts of their respective Counties for judicial purposes, (/)hear and pay their just share or proportion of all charges and ex- penses from time to time as the same may be incurred of erecting, building and repairing and maintaining the Court- House and Gaol of their respective Counties, (»t) and of the proper lighting, cleansing and heating thereof, and of provid- ing all necessary and proper accommodation, fuel, light, and furniture for the Gaol and Courts of Justice, other than the Division Courts, and for all officers connected with siicli Courts; (w) and in case the Council of the City or Town separ- ate as aforesaid, and the Council of the County in which sucli City or Town is situate for judicial purposes canjiot bv agreement from time to time settle and determine the amonnt to be so payable by s\ich Citv or Town respectively, then the same shall be detei'mined liy arbitration, according to the provisions of this Act. (o) 39 V". c. 34, s. 1. Compensa- 446- While a City or Town uses the Court-Honse, Gaol or towMi'^for ^^ House of Correction of the County, the City or Town shall use of court- pay to the County such compensation therefor, (a) and for the {!) Though there is a separation for municipal, there is not for judicial purposes. See note e. to sec. 443. (m) The inhabitants of Cities anil Towns separated from Counties, although contributing nothing towards either the erection or main- tenance of Court Houses built and maintained by the Counties in which such Cities and Towns ai-e situate, like the inhabitants of other local Municipalities, such as Townships and Villages in a County, use the Court House auvl Gaol of the County in common. This bein'- so, it is only fair that all should bear a just share or proportion of a!. charges and expenses from time to time incurred in and about erecting and maintaining the Court House and Gaol. The obligation is cer- tainly a mora5 one, but it has been found that moral obligations are not strong enough to compel Municipil Corporations to be just to each other. See note a to sec. 446. The result is that the Legislature has here to some extent converted the moral into a legal obligation. (») The addition of the proper lighting, cleansing and heating, aud of providing all necessary and proper accommodation, fuel, lif;ht and furniture for the Gaol and Courts of Justice (other than the Division Courts), and for all officers connected with such Courts, wiu lirst made by sec. 1 oi' 39 Vict. cap. 34, Ont. (o) See note c to sec. 446. (a) In cojitsequence of the separation of the City of Toronto im .^ the County of York for judicial purposes, a deed was executed be- tween the respective Corporations, in which the City covenanted to pay the County a certain annual sum for the use of the Court House, The deed also contained other agreements as to the use of the Gm This arrangement was ^o continue in force until twelve months S, 446.] COMPENSA car* and maintenance upon, (b) or settled bj V.c.48,'8. 364. notice to determine it si which came into force ; the county for judicial p city gave the county tr tin'uance of the use of th the action of the Legislat i respecting it, and that no \ Hm, that the contentioi ' released from its covenan Act : and that there wa even for an aliquot portio hecnme due on the 21st A 0. P. 95. And it was af' the same parties, that in was not bound t ) paj' the use of the Court House, S. "The city makes no spec County of York. It can same in a larger degree as the Village of Yorkville. in the statute law, I do n( created." lb. 517 ; and tents and purposes a part such County, in common county, it makes no use i express enactment providi k the defendants." lb. section, is the legislation t (■'') Aijrepd upon. It wr hy deed or l)y a By-law uii to be an exec utod one, j j unnecessary. Wenfworth ^ (r) Arbitrators were app !l>ecember, 1855, to settL betn-een the City of Londc ing v".ie compensation to be 01 the County Court Hous «1 matters then dependii On the same day they aw county in certain railways onetifth to be tranoferred to belong to the county ; county £2,075 on account c «««sra repair within the Rv the County £1,966 in wrthly, that in future et «Jpense of all prisoners cc tfi^m respectively, and tha pe City should be paid ovei 44 8.446.] COMPENSATION FOR USE OP COURT HOUSE. 345 care and maintenance of prisoners, a« may be mutually agreed upon, (b) or settled by arbitration under this Act. (c) 36 V.c.'48,8.364. notice to determine it should be given. By the Law Reform Act, which came into force in February, 1869, the City was re-united to the county for judicial purposes, and on the 21st March; 18(59, the citv gave the county the stipulated notice as to intended discon- tinuance of the use of the Gaol, stating that, as to the Court House, the action of the Legislature had virtually terminated the provision respecting it, and that no further payment would therefore be made. Hdd, that the contention of the City was correct ; that it had been iflcTsed from its covenant to pay by the operation of the Law Reform Act ; and that there was no legal liability on the part of tlie City even for an ahquot portion of ths half-year's rent which would have liecnme due on the 21st March following. Toronto v. York, 21 U. C. C P, 95. An\i 't •348 THE MUNICIPAL MANUAL. [». «L KM This act not to affect 29- 30 Vict. c. 61, m. 414, 416, which enact that him in the Common Gaol of the County, (k) 36 V. c. 48 1 1 368. 451. Nothing herein contained shall be taken or constnied to affect 01 repeal sections four hundred and fourteen and four hundred and fifteen of the Act passed in the Session of the Parliament of the late Province of Canada, held in tb* twenty-ninth and thirtieth years of the reiiL,^! of Her jneseM Majesty, and chaptered fifty one. (/) 36 V. c. 48, h. liCD. [Sections 414 and 415 o/" 29-30 V. c. 51, are as follows :~\ • Justices, etc., 414. Any two of Her Majesty's Justices of the Peace or of He may cominit Ingpectora appointed as aforesaid may, by writing under tlieir hanii pereons w o ^^^^^^1 neals, commit to the House of Industry or of Refuge, to be employed and governed according to the rules, regulations, and | orders of the House — Indigent. Idle. Lewd. Frequenters of public- houses. (1) All poor and indigent persons who are incapable of supporting themselves ; (^0 (2) All persons without the means of maintaining themselves, anl able of body to work, and who refuse or neglect so to do ; [in] (3) All person leading a lewd, dissolute or vagrant life, and aa- \ cising no ordinary calling or lawful business sufficient to gain or \)k- cure an honest living ; («) (4) And all such as spend their time and property in public linnses, j to the neglect of any lawful calling ; (o) {k) The whole of the expenses of the administration of criminal | justice in Ontario should be paid out of the Consoli(latc>l Revenue Fund of the Province. Rev. Stat. Ont. ch. 86, s. 1. All accounts I of or relative to such expenses, must be audited, voucheil and approved under such regulations as the Governor in Council from time to time directs and appoints. lb. sec. 2. The several heads of ) expense mentioned in the schedule to the Act are deemed expenses of the administration of criminal justice within the meaning of the Act. Jh. sec. 1. See In re Pounett and Lamhton, 21 U. I'. Q. B' 472 ; S. a 22 U. C. Q. B. 80. (I) The reason that these sections, though not repealed or affected by this Act are here set forth will be found explanied in note r to | sec. 394. (/;) That is, poor by impotency or defect, as the aged, decrepit, or j deformed . (jtt) That is, poor who, though not so by impotency or defect, yet, from laziness or some similar og-vse, " refucc or neglect" to work. («) Til at is, poor by prodigality and debauchery, sometimes aU thriftless poor. (o) That is, persons who, though not really poor, are persons mnch the same as those described in the last note— persons neglectmgal lawful calli ng, and spending th eir substance in public houses. 413. Kvery person co Refuge, if tit and and tilKiur during his contini idle and does not prfom jjjigiied, »r is stubborn, tie punished according t Industry or of Refuge in , 151.] (5i Andiilioto. (p) VAGRANTS. 349* Idtoti. 41o Kvery person committed to the Howse of Industry or of Puniihment Refuge, if fit and and able, shall be kept diligently employed at "n,^*^^*^ Ijbiiar daring his continuance there ; and in case any such pc-rson is * i,l]c juiil does not iierform such reasonable task or labour as may be usJLmed, "r is stubborn, disobedient or disorderly, such person shall t« punished according to the rules and regulations of the House of Industry or of Refuge in that behalf.] 1;/) An idiot or natural fool is one without understanding from his Mtivity, ami therefore jiresumed not likely ever to attain under- itandiiig, These several classes of persons are commonly described as vagrants -io«e, idle and disorderly persons, or pests of society. They are the i nibject in a more extended form of legislation under an Act of the 1 ijominion Legislature. 32 & 33 Vict. ch. 28. It declares that the lowing jHirsons shall be deemed vagrants — loose, idle or disorderly I persons— and be liable to be proceeded against as such : 1. All idle persons who, not having visible means of supporting I themselves, live without employment. 2. All jjersons who, being able to work, and thereby or by other I means to maintain themselves and families, wilfully refuse or neglect I to do so. 3. All persons openly exposing in any'street, road, public place or lighway, any indecent exhibition, or openly or indecently exposing I their persons. I All persons who, without a certificate, signed within six months I by a Priest, Clergyman or Minister of the Gospel, or two Justices of the Peace residing in the Municipality where the alms are being uked, that lie or she is a deserving object of charity, wander about J ud kg, or who go about from door to door, or place themselves in I the streets, highways, passages or public places to beg or receive alms. 5, All persons loitering in the st'-eets or highways and obstructing Cscngers by standing across the footpaths, or by using insulting guage, or in any other way, or tearin" down or defacing signs, I breaking windows, breaking doors, or door-plates, or the walls of I houses, roads or gardens, destroying fences, causing a disturbance I in the streets or highways by screaming, swearing or sin^'ing, or I being drunk, or impeding or incommoding peaceable passengers. 1 ti. All common prostitutes or night walkers wandering in the I fields, public streets or highways, lanes, or places of public meeting lor gathering of people, not giving a satisfactory account of them- iMlves. See The Queen v. Levecqm, 30 U. C. Q. B. 50<» All keepers of bawdy-houses, or houses of ill-fame, or houses Itorthe resort of prostitutes, and pei.dons in the habit of frequenting jfoch houses, not giving a satisfactory account of themselves. 8. All persons who have no peaceable profession or calling to liiamuin them-elve-j by, but who do, for the most part, support Itlemselves by gaming or crime, or by the avails of prostitution. TiiO Sriiiciniil Vn.trr.anf iff in Tnnlon.l ia n fian TV nK g3^ Th& G85, 68(),. I Tho priiicipal Vagrant Act in England is 5 Geo. IV. ch. jtkLMous under it will b« found in Paley on Convictions, I *\ '4 350 THE MUVICIPAL MANUAL. [8. i5J iDTertlga- tion by county judgn of charges u( malfeoNsncfl by municipal 'Office n. Division X.— iNviWTKiATioNH as to Malfeasance or Cckporau Ofj-icers. 452. In cose the Council of any Municiiiality at any tinif passes a resolution requesting the Judge of the Comity Coim of the County in which the Municipality is situato to invcsti gate any matter to be mentioned in the resolution, (7) and relut ing to a supposed malfeasance, breach of trust or otiiir m conduct*(r) on the part of any member of the Coiuicil oiotHw 5th ed. Its provisions have been extended by the Eng. Stat. 31 ij; Vict. ch. 52, and enforced by the Kng. Stat. .34 & .3') Vict. ch. 112, intituled "An Act for the more etfectual Prevention of I'nme Although vagrants may be proceede»l against criminally nmkr the feneral law, it wouhl seem that under a power "to regulate tk« 'olice of the City," By-laws may bo passed for arresting and lining vagrants, so hmg as the By-laws are not in contlict with the geiierjl law. See St. Louin v. Bentz, 11 Mi. 61 ; Stdte v. Cowan, 29 .Mn. 330 ; S/iafer v. Mumma, 17 Md. 3.31 ; Jiifert v. Commmweallh, 42 I'a. St, 89. Such By-laws are looked upon as mere Police regulati(in.s nitlier than laws against crime. See Adeline XoU'h Cuhc, 11 Maine, ."Oj; Portland v. Baixjor, 42 Maine, 403. Tlie welfare of the citi^ns does not depend so much on the existence of laws against va;.'rmts as in the proper enforcemsnt of them. These laws are as much Jim. garded by the Police as by the thriftless and vicious class agiinst whom they are eiitacted. (7) Provision is m.vle by sec. 365 for an inquiry, umler certaia circumstances, into "the financial affairs of the Corporatiim ami things connected therewith." This section contemplates a uiach wider lange of inquiry. The matters as to which inquiry may k made under this section are — 1. Supposed malfeasance, breach of trust, or other miscomlutt on the part of any member of the Council or officer of the Corpon- tion, or of any person having a contract therewith, iu relation to the duties or obligations of the member, officer or other person to the Municipality. 2. Any matter connected with the good government of the Munici- pality, or the conduct of any part of the public business therenf. The inquiry, in any case, is to be made by the County JuJge, on ■& resolution requesting him to make the inquiry. The subject matter of the inquiry should be mentioned in the resolution. The duty of the County Judge to make the inquiry, on the passing of a proper resolution, is imperative. Having made the inquiry, .t is also his duty, with all convenient speed, to report to the Council-- 1. The result of the inquiry ; and, 2. The evidence taken thereon. Apparently no provision is made for the expenses of the iniiuiry- '^ in_the case of inquiries into the finances of the Corporation. Sec. 3oo. (r) " Or other miscouduct." What is liere meant, no doubt, 11 iM] UALFEASANCK OP MUNICIPAL OPFICEHS. 351 »f the corjwration, or of any pei-Ron liftviii«T; n contract there- with ill relntioii to the dutifjH or obligations of tin; nicmlHjr, offiar or other Jjei-Hoii, to the Mmiiciimlity, or in laso the ('(iuii(il of any MiiiiicipHlity sees fit to cause en(|iiiry to be mmle into or concerning any nuitter connected with the good (fnvpmniont of the Municipality, or the condiict of any pai*t of the |mliIicl»ii«ineBs thereof, (*») and if the Council at any time .ludce to |iii,ss('s ft resolution recpiesting the said Judge to mak(! the in- roVnti^Jdln (luirv, the Judge shall inquire into the same, and shall for Kcv, sut. c. that purpose have all the powers which may be conferr«rl iimii CoiniiiisHioners under The Act resfjectimj Inqnirles coii- nrmmi Vnhlic Mattern, (t) and the Judge shall, with all con- venient s|)eod, report to the Council the result of the misconduct iii the nature of inalfeafiancc or breach of trust of aome kiii'l, aiiiiertaiuing to the (Uitiea of the office. Accordiug to the ;'iiier;il construction of Statutes, where general words follow particu- Iv Wdnls, they are to be construed cjundfrn ijenens with the particu- Isrworils which have preceedeil them. The Kiiii and Ij' corporated Villaoes. -Or CouNTiKs, C1TIE.S, Towns and Incorporattd Villages. -Of Townships, Citie.s, Towns and Incorporaiei) Villages. -Of Counties, Cities and Separated Tov. 's. -Of Cities, Towns and Incorporated V'lLLACEi. -Of Cities and Towns. -Of Towns and Incorporated Villages. -Of Counties only. -Of Townships only. electiou inquiries. See sec. 211. Witnesses, it is apprehended, would not be eutitled to compensation for loss of time, see note a to sec. 305. (m) Thj Judge is required to report not only the result of the inquiry but the evidence taken thereon. This intends that the eri- dence at the inquiry shall be reduced to writing. (v) "Posse Comitatus," or power of the County, includes the aid of and attendance of every person above the age of fifteen wthin the County. Persons able to travel are recjuired to be assistant in thii service. It is used when a riot is committed, a possession is kept on a forcible entry, or any force or rescue made, contrary to the Queens writ or in opposition to the execution of justice. The power u \{ii.] GENERAL POWERS OF MUNICIPAL COUNCILS. ])]\H to assist him in the execution of them ; linugh he may do no if ho pleases, on forcible resistance to the exe- mtra nf the prouejis. Sheriffs, &c., are to be assisting Justices of h Peace in supprtissing riots, &c., and raise the po8ne by charging iiiy nnmber of men to attend for that purpose, who may take with win sucli TN "apons as shall be necessary, and they may justify the Wing ,ind even killing such rioters as resist or refuse to surrender ; ml persons refusing to assist in the posne may bo fined and impris- W. It is lawful for a peace oflicer to assemble a competent num- Kroi people and sulficient power to suppress rebels, rioters, &c. ; but m must be great caution, lest under a pretence of keeping the [eice, the peace officer cause a breach of it; and Sheriffs, &c., are Jiishalile for using heedless violence or alarming the country in Bwe cases without just ground. See Watson's Office of Sheriff, fc'le(].2,73, 193. I ''(•) The powers conferred by this section can only be exercised by V ^' ^^^ Grand Junction Ralhoay Co. v. County of Haathnja, 25 45 f1' 354 THE MUNICIPAL MANUAL. Obtaining Property. [s. 451.1 For obtain- 1. For obtaining sucli real and personal property as mar | iwi'and'per- be required for the use of the Corporation, {n) and for aonai, etc. erecting, improving and maintaining a liall, and any other I bouses and buildings rniuired by and being «|)on the land of the Corporation, (6) and for dis,posing of sii (a) The right of ft Municipal Corporation to acquire property I inucpendently of statute is by no means free from doubt. See noti V to bee. 222. But in order that there should be no doubt as to the right of the ('orporation to acquire property for corporate purposes, express power is here conferred. It is not to be extended to th; acquireiijent of land for speculation or ijrofifc. Bank of Mkhipn^. Niks, I Doug. (Mich.) 401 ; Daoiaon C'olle'je v, C/taw/*er»' iVemW^.j] Jones, Eq, (N. C.) 253-353 ; State Bank v. Brackenridge, 7 BhcEl (Ind.) 395 ; McCartee v. Orphan Societ;/, 9 Cow. (N. \ .) 431 ; amlm\ V. St. Louis, 29 Mo. 543. But the acquirement of wet lands, with a tot I to their improvement and sale, is expressly autliorized. Sub-sec. 15,1 of this section. In the event of the Corporation lending money cc i mortgage of realty, if default be made in the payment of tiie mort- gage money, the Corporation is entitled to a decree of foreclosure, j notwithstanding tho Statutes of Mortmain, and is not restricted to j a decree for sale of the land. Orford v. Balleij, Ji2 Grant 271); seel further Broion v. McXab, 20 Grant 179. And it would also seemj that a Municipal Corporation may give lime to a debtor and take ij mortgage on real estate to secure its payment. See BAIcrillf y.i Jiidd, 16 U. C. C. P. 397 ; but see Brown v. McXnh, 20 Grant i:9.j The laying out, upon a map of .an intended town, of squares or other] open spaces for public recreation or amusement, or for any other] public purpose, renders them as sacred to such purpose as the streeti j themselves. Per Spragge, V. C, in Guelph v. The Cnnwia Cm-\ pir>ij, 4 Grant 654 ; see further Wyoinvvj v. BelL 24 Grant 5()4; andj if an alienation to a diflferent purpose, by a person pretending tohivej the right to alienate, be attempted, the Court of Chancery wonldj interfere by injunction to restrain it. / h. So, if the MunicipaK'orj poration itself be a trustee of land for a public purpose, and ^Tithontj authority attempt to alienate it, in broa ti of the trust for which it is j held, the Court of Chancery would interfere by injunction to rcstraiBJ the alienation, or, if actually made, would order a reconveyance.! Jftorney-General v. Goderich, 5 Grant 402. {b) The power to erect a hall and other buildings required by thel Corporation does not, it is apprehended, include a saw-mill, erectedl with the avowed intention of benefiting the Mup'cipality. i>eej Kinlo.s.s v. Siauffer, 15 U. C. Q. B. 414. llie Court of Queens Benchl refused a rule n'm for mandamus at the instance of the Justices oil the Huron District, to compel the Municipal (^ouncil of the Huroi^" District to build a Court House. Justices of the Huron Dhtnclr., Huron Council, 5 U. C. Q. B. 57 1. It was decided under the 10 4 ll| Vict. c. (>, that a District Council cannot he made liable in damaga for negligence in repairing the steps leading to a Court-Housc, : aJia •when an individual in consequence thereof fell and lost his hie, f action was held not to lie against the Corporation, at the suit of t .m] APPOINTMENT OP OFFICERS. 355 property when no longer required ; (c) 36 V. c. 48, s. 312(1). Appointing certain Officers. 2. For appointing {d) such— Pound-keepers, Fence- viewers, Overseers of Highways, Road Surveyors, Road Commissioners, Vahiators, representatives, under Lord Campbell's Act. IfaivkesJiaw v. Dal' km, 7 U. C. Q. B. 590. A By-law passed by the Municipal Council of Prcscott and Russell, to tax the County of Russell alone lor the erection of a rcfjistry ofiice for the use of the United Coun- ties, vas set aside. Smith v. Prescott and RuxseV, 10 U. C. Q. B. 282. A By law to raise money wherewith to build a Town Hall and Market approved by tKe ratepayers did not specify any site on wiiieh tiie buildings were to be erected. Heid, that this left the Councillors unfettered in the choice of site, although at the time tiere was a resolution on the minutes of the Council adopting a par- ticular (me, and which had been conveyed to the Corporation for the purpose. Lxtlk v. Wallacebunjh, 23 Grant 540. (c) This includes a Town Hall and the site on which it stands, when it is deemed that a new Town Hall in another situation M'ould te more convenient for the public. In re Hawke and Welled»ij, 13 r, C. Q. B. 636. The Court under special circumstances refused to quash a By-law for the erection of a Town Hall, the objection being that they had ateady by a previous By-law acquired a dififerent sire and contracted to build on it. Forester and The. Voiporatiou of Bos-*, 24 U. C. Q. B. 58S. The Court of Chancery has not tho power of restraining the Councillors of an incorporated Village in fae due exercise of their con- I stitutional power from changing the site of a proposed Town Hall, I and Market although the first site has been acquired for the purpose it not being shewn that any change of circumstances had been made ly larties on the faith of it, or that any corrupt or improper motive actuated the members of the Council in making the change. Little v. Macebitrgh, 23 Grant 540.' M It is not here expressed in what manner, that is, whether under I corporate seal or otherwise, the officers in this section named are to w appointed. The Municipal Bill of 1858, when introduced to the House of Assembly, had the words "under the corporate seal " ; but these words were, for some reason, afterwards struck out in commit- te. It has always been a recognized qualification of the principle which requires the use of the seal, that there are certain small mat- j tcrs of such frequent occurrence in the course of conducting affairs ! liy a Corporation, that it appears to be of necessity that Corporations should be allowed to transact them without going through the for- Diality of a sealed instrument. The hiring of servants to perform their ordinary duties has from a very early period been one of these Inceptions. Bainef, v. The Credit Harbour Co., 1 U. C. Q. B. 174. :^ r|' 356 THE MUNICIPAL MANUAL. [s. 454. certain otBcers. May appoint and such other officers as are necessary in the affaire of the Corporation, or for carrying into effect the provisions of any Act of the Legislature, (e) or for the removal of such officers; (/) but nothing in this Act shall prevent any mem- ber of a Corporation from acting as comniissiouer, superinten- dent or overseer, over any load or work undertaken and car- ried on, in part or in •whole, at the expense of the Munici- pality ; and it shall be lawful for said Municipality to pay any such member of the Corporation acting as such eom- niissioner, superintendent or overseer ; (g) 36 V. c. 48, s. 'ili (2). See Jiev. Stat. c. 188, s. 2 ; c. 192, s. 5. lie ofRc^'s named in this section come within the exception the least of it, doubtful. The old law required such I!: (1 1 Whether the ofRc^' is, to say the least oi it, douDCiui. ine oiu law requireil appointments to be under corporate seal, 12 Vict. ch. 81, s. 31, sub. 5, and the intendmeTit of this subsection, wliich must be taken in connection with the general words at the commencement of tliis section, appears to be that the appointment should be by By-law. {e) The power is not only to aj)point the officers named, but "sucii other officers as are ucccsnari/ in the affiiirs of the Corporation, or for carrying into efl'ect the provisions of .T,iiy Act of the Legislature." There are those who contend that it is incident to the powers nf a Municipal Corporation to appoint all ofiicers necessary in the affairs of the Corporation. Vintners v. Pasaey, I Burr. 235 ; Hastmj.i ('(!>, 1 Mod. 2-i ; Tlw K'uKj v. Barnard, Comb. 410 : Hohokm v. BarrUwi, 1 Vroom. (N. J.) 73 ; Wdte v. Tallman, 2 Dutch. (X. J.) 67; fto;« V. Buh'll, 2 Hill (N. y.) 19f) ; Field v. Glrard Colktje, 54 Ta.^t. 233. But where an Act makes provision for the appointment ■ ." principal officers named, and other necessaiy officers, the statute must so fai as possible, be followed, and no appointments be made. in contravention of it or otherwise, at directed by it. The Kinu v. Wci/moith, 7 Mod. 373 ; The Kivj v. Biunstead, 2 B. & Ad. (i99; The Kin.i v. Sjjence.r, 3 Burr. 1S27 ; The King v. Chitty, 5 A. & E. 609 ; Siudler V. Detroit, 13 Mich. 346; Vason v. Augusta, o^Uio. 542. (/ ) Words authorizing the appointment of any pubhc functionarj- include the power of removing him, reappointing him, or appointing another in his stead, in the discretion of the authority in wliom the ])ower of appointment is vested. Rev. Stat. Out. cap. I s. 8 sub. 25. But the power of removal cannot, unless expressly delegated, be exercised by a portion merely of the Corporation, but by the Cor- poration as a corporate body acting duly and regularly. Lord Brm s Case, 2 Str. 819; The Kimj v. Lyme Her/if, (Funir Assent of •lectors Deoessary. Security may be required. W w Kl:r V 968 THE MUNICIPAL MANUAL. [9,454 as the said Municipality may deem expedient, and maj take security therefor ; (l) (a) No such by-law shall be passed until the assent of the electors has been obtained, in conformity M'ith the provisions of this Act in respect of by-la^s for creating debts, (m) (b) Any Municipality granting such aid, may take and re- ceive of and from such person or body corjwrate that mav receive any such aid, security for the compliance with the terms and conditions upon which such aid is given, (n) 30 V, c. 48, s. 372 (5). [And nee section 349 os to exempting mann- /acturing eatahlishmerds from taxatio^iJ\ Aiding Road Cor,ij)anies. Aid for roads, 6. For taking stock in or lending money, or granting l»rbour«.° bonuses to any incorporated company, in respect of any road, bridge or harbour, within or near the Municipality, under and subject to the respective statutes in that behalf, or for gi-auting aid by way of bonus to any incorporated road or bridge company ; (o) (I) In the United States it has been held that the Legislature can- not constitutionally authorize a Town to loan its credit to persons who will in consideration thereof maintain a manufiicturing enter- prize in the Town for their own jjrivate emolument. AUm v. Jaji, 11 Am. 185. ; Jireiver Brick Co. v. Brewer, 16 Am. 395 ; see further, Commercial National Bank v. City of lola, 2 Lillon C. C. 353. But no such question has been raised in this Province. A Municipal Council, under sec. 349 of this Act, has power to exempt any manu- facturing establishment, in whole or in part, from taxation for any period not longer than ten years, and to renew the exemption for a turther period of ten years. The object is to encourage manufacturing establishments within the limits of the Municipality. See note a to sec. 349. This subsection contemplates the granting of money by wav of bonus for like purposes. Where the majority of the members of the Council granting the bonus were also stockholders in the Com- pany proposed to be beretited the By-law was set aside. Rt Buinl and Almonte, 41 U. C. Q. B. 415. («i) See sec. 333, et aeq. (n) It is optional with the.Municipality to grant the money oi not Therefore the grant may be made only on particular terms and cou ditions. The object of this enactment is to enable the Municipality granting the aid to accept security for compliance with the terms and conditions of the grant. (0) Any Municipal Council having jurisdiction within the locality through or along the boundarj' of which any such road passes, mil mibacribe for, hold, sell, and transfer stock in any Company formed ^1 ,454.1 AID TO CHARITIES. 859 (fl) No such by-law granting such aid by way of bonus liall be passed until the assent of the electors has been ob- tiiaed in confoi*mity with the provisions of this Act in re- jpect of by-laws for creating debts, (p) 37 Y. c. 1% b. 14 ; 39 V c. 34, 8. 9. A'ding Indigent Persons and Chcmties. ', For aiding in maintaining any indigent person belong- May aid ing to or round in the Municipality at any Work-House, jj^^, and Hospital ci- institution for the insane, deaf and dumb, blind chariwes. or other public institution of a like character ; or for grant- in-aid to any charitable institution or out-of-door relief to the resident poor (q) ; 36 V. 48, a 372 (7). See post, a. «"(11). miller the general Act (Rev. Stat. Ont. ch. 152), or any former Act pused for the like purpose, and may from time to time direct the Jlsyor, Reeve, Warden or other chief olficer of the Municipality, on behalf thereof, to subscribe for such stock in the name of the Muni- cipality, and to act for and on behalf of tho Municipality in all matters relative to such stock, and the exercise of the rights of the Munici- pality as a shareholder ; and the Mayor, Eeeve, Warden or other chid' officer shall, whether otherwise qualified or not, be deemed a iharekolder in the company, and may vote and act as such, subject to any rules and orders in relation to his authority made in that behalf by the By-laws of the Municipal Council or otherwise, and may vote according to his discretion in cases not provided for by the Municipality. lb. sec. 67. The Municipal Council may pay all instalments upon the stock they subscribe for and acquire, out of any moneys belonging to the Municipality, and which are not specially jppfopriated to any other purpose, and may apply the moneys arising from the dividends or profits on the said stock, or from the sale thereof, to any purpose to which unappropriated moneys belonging to the Municipality may lawfully be applied. lb. sec. 68. So the Muni- cipal Council of any locality through or along the boundary of which lay such load passes, or within which any such work connected therewith is constructed, may out of any moneys belonging to the Municipality, and not appropriated to any other purpose, lend money to the company authorized to make the road, &c. , upon such terms and conditions as may be agreed on between the company and the Muni- cipahty making the loan ; and the Municipality may recover the money so loaned, and appropriate the money so recovered to the purposes of the Municipality. lb. sec. 70. The Municipal Council may issue debentures for the payment of any loan negotiated by them with any such company, in the same manner, and subject to the same conditious, as required by law with regard to the issuing of other debentures. lb. sec. 71. [p] See sec. 333 et seq. '?'. The Legislature here, in a few words, have enabled but not required Municipal Councils to pass By-laws for aiding in maintaining 'I't 360 THE MUNICIPAL MANUAL. Census. [i45i lAcaicenmu. g. For taking a census of the inhabitants, or of the resident male freeholders and householders in the Municipality ■ M % V. c. 43. s. 372(8). . '^' To regulate drlringon roads and bridges. Opening or stopping up drains and water- courses, etc Driving on Roads and Bridges, 9. For -egulating the driving and riding of horses and other cattle on highways and public bridges, and for prevent- ing racing, immoderate or dangerous driving or ridin there- on ; («) 36 V. c. 48, s. 372 (9). Drainage. 10. For opening, makin:,', jireserving, improving, repair- ing, widening, altering, diverting, stopping up and pulling down, drains, sewers or water-courses, within the jurklic- II). sees. 10 any indigent person belonging to or to be found in the Municipality at a public institution, or for granting aid to any charitable institu- tion or to the resident poor. Though the Legislature have given full authority to Municipal Conncila of their own motion to aid the resi- dent poor, they have left a discretion to be exercised in regard thereto. In England the 43 Eliz. ch. 2, makes it the duty of Justices to pro- vide for the relief of the poor. The words used in the English Act are, "shall and may tax, rate and assess," and then provides for overseers of the poor, who have power to call for and administer the necessary funds. We have no such organization in Ontario. It is not therefore competent for our Courts to proceel upon the case of any individual applicant, for it does not rest with the Courts to dictate to Municipal Councils what particular cases of distress call for public relief. Per Robinsson, C. J., In re McDougall and Lobo, 21 U. C. Q. B. 82 ; S. 0.7 U. C. L. J. 316. (r) The B. N. A. Act provides for a decennial census (sec. 8), and the Dominion Legislature has made provision for the taking of the decennial census. ,S3 Vict. ch. 21 ; 34 Vict. ch. 18. But it may he that the Municipal Council desire to have a census more frequently, or to check the census of the particular locality made by the Domi- nion authorities ; in either of which events, power is here conferred for taking the reijuisite census. The census is to be of the inhabi- tants or of the resident male freeholders and householders in the Municipality. {a) No person is allowed to race with or drive furiously any horw or other animal upon any highway. Rev. Stat. Ont. ch. 183, sec. 5. So every person who has the superintendence and management of any britlge exceeding thirty feet in length, is allowed to put a? » notice thereon forbidding persons riding or driving on or overitat* no unnc( J.4M.] CONSTRUCTION OF BUILDINGS. 36! tion of the Council, (t) and for entering upon, breaking tip, takiii" or using any land in any way necessary or conveni- ent for the said purposes, subject to the restrictions in this Act contaiiK'd ; (u) 36 V. c. 48, s. 372 (10). Egress from Buildings. 11. For regulating the size and number of doora in churches, For reguia- theatres and halls, or other buildings used for places of wor- J{,°gJ^^ ^f sliip, public meetings, or places of amusement, and the street rhurchei, (rates leiuling thereto, and also the size and structure of stairs °^* and stair railing in all such buildings, and the strength of beams and joists, and their supports; (v) 29-30 V. c. 22, S.4. faster rate than a walk Ih. sec. 8 ; and persons violating any of the provisions of the statute are subject to penalties whioli the statute imposes. Ih. sees. 10, 1 1, 12. (/) It ii:i8 been held under former statutes that a Municipal Council Lis no right to bring down water in any quantity upon the land of m iinlividn.d, and leave the water to st.iguate there, without show- ing tiiat it could not otherwise have been got rid of, and without siiowing tliat it was not in the power of the Council to lead the water away from the plaintiff's land after the Council had conducted it there. See IJroirn v. Scwnia, 11 U. C Q. B. 87 ; Perdiw and C/iin- tjmmuil, 25 U. C. Q. B. (51 : Ruioe v. HochcMer, 29 U. C. Q. B. 590. ki inrtlier Mfrrn/tehl v. Worttcr, 14 Am. 592 ; Attorney-General v. lk(kmj Local Board, L. il, 20 Eq. 626. (n) By the 45Gth section it is provided that every Council shall make to the owHt'M or oci.'upiers of, or other ])ersons interested in, real pro- perty entered upon, taken or iised liy the Corporation in the exercise of any of its powers, or injuriously aflfected by the exerci^^R of its powera, due compensation for any damages (including cost of fencing when required) necessarily resulting from the exercise of such powers, btyoml any advantage which the claimant may derive from the cou- teaipiated work. It is olear, therefore, that no Municipal Corpora- tion has a legal right to say they may trespass a little upon the pro- perty of a private person, doing no unnecessary damage, unless they show it was necessary and convenient for them for the purposes of the roaii, street or other work. Besides, it should be shown that there was a By-law authorisdng the work. St. (ieoryc's Church v. ^mty of Orey et al., 21 U. C. Q. B. 265. Unless a By-law were 'hoffu, the Corporation would be looked upon as trespassers ; M<1 to answer, under such circumstances, that they trespassed a uttle, doing no unnecessary damage, would be no answer at alL (»•) The protection and safety of life should be two great objects of Municipal (iovernment This enactment is made in pursuance of Mese objects. 46 ',!< r 1 i i 362 Finet and peokltlea ff,>-t i' i THK MUNICIPAL MANVaL. Fines and Pemiltiea. {See also sees. 400403, p. 309.) [8. 451 12. Viiv inflicting reasonables fines auJ penalties (w) not (w) The corporate powers are not only limited but must l)e reajon. ably exercised and not only strictly within the limito of the charter bat in perfect subordination to the C'-nstitution and general law of tholanj and the rights dependent thereon and that power if properly exerciied may be enforced by good and competent penalties. Per Dickinjon, J., in Watern v. Leech, 3 Ark. 115; see further note / to sec. 219. It was at one t''me supposed that, under power to a Corporation to impose a reasonable tin"? not exceeding a certain aniourt, for violation of tVe provisions of a By-law, the Corporation was Ixrand to fix a certain sum in the By-law, and had no power to reserve a discre- tion as to the amount within the limits prescribecl, ami V'ml t. Searl, Bridgman Kep. 139, was cited as ivn authority for thjt poaition. But in a subsequent case, where that case was cited to the Court Parke, B., said, "The only case we have been able to find bearing on Ihi' question is that cited in the argument for the plaintiff— IW V. tiearl, Bridinnan llep. 139 — in whic h the penalty was such a sum u the Master, Wardens, &c., should as; ess, not exceeding 40i«. ; but thi» case is no authority either way. for the By-law was held to be bad, and it might have been so held upon other objections, or upon this. In the absence of any other authority to the contrary, we do not see any objection to this mode of fixing the penalty. It is a certain penalty of £5, with a power cf mitigation not below £2, and we do not think this is unreasonable. We therefore think the second ol)jection oupht not to prevail'! Piper v. Chappetl, 14 M. & W. 624-64i Again, assuming the right of the Corporation to so fix a penalty, itt power to delegate the discretionary power to a convicting Justict was doubted : Peters v. The Premient aud Board of Police of London, f- U. C. Q. B. 543 ; In re FenneU aud Guelph, 24 U. C. Q. B. 238-243. But now, whether the fine be fixed in the By-law or not :'- is enacted that the convicting Justice "shall awai-d the whole or such part of the penalty or punishmenc imposed by the Bylaw, at he sees fit." Sec. 401. A By*-law without fine or penalty would be in efiFect nugatory. State v. Cleveland, 3 Rh. Is. 117. So it has been held that Corporations havo an implied power to enforce By-iavs by the imposition of reasonable fines or penalties. Fisher v. HarrUkpj, 2 Grant (Pa. Cas.) 291 ; Barter v. Commonwealth, 3 Pa. (Pen. 4 W.) 253 ; Zylstra v. Charleston 1 Bay. (S. C.) 382. The line or penal^ should be imposed ou the person who violat- a the By-, aw, and not, if an unautlionzed trader, on the person w'lh wbom he leals. Cvidot V. FaHfwick, 1 Salk. 102 ; Frzakerley \. Wiltshire, 1 Sti %. 469 ; Willc on Corp. 155 pi. 369 "What is reasonable within th^ limits pre- scribed, must depend on circumstances. Afobile v. I "uUf, 3 Ala. 137. A penalty, although small, fixed on every stroke of the hammer which an unauthorized person uses in his trade of a goldsmitl: woma be unreasonable. Willc. on Corp. '54, pL 368 ; sec also New I'oiiv. Ordrcnan, 12 Johns. (N. Y.) 122. The Corporation cannot multiply one offei^ce into many, and punish for each. iSee Crepp* v. Danit* .15.' FINES AND PENALTIES. 363> icmling fifty doUara exclusive of costs, (x) k) Upon any pei-Bon for the non-performance of bis duties for neglect of rho has boen elected or appointed to any officij in the Cor- "*^' oration, (y) and who neglects or refuse.s to accept such office, ilcss '^ood -ause is shown therefor, or to take the declara- Con of office, and afterwards neglects the duties thereof ; («) ih] For breach of any of the by-laws of the Corpoi-ation : or breach of |(„)36 V.c. 48, s. 372(11). ''^■"'"'- 13. For collecting such penalties and costs by distress and Collecting ale of the goods and chattels of the ofiender ; (b) 36 V. c. 48, ^^^^^ L 312 (12). ■'i ICoirp. 640; Hart v. Mayor, if York, 14 Wend. (N. Y.) 87 ; New York v. Ordrennn, 12 Johns. Y.) Vii. But a By-law fixin/? one penalty for the first offence, 1 a larger one for the second, and a still larger one for every sub- K|Dent olTence, does not appear to be bad. Jiutchern' Co. v. BuUuck, IB. t P. 434. Where the penalty is fixed by a By-law, it cannot ckngwl by any authority iaferio" to that which fixed it. The [iiijv. Ashwell, 12 East. 29; Scarnimj v. Cryera, 3 Leon. 7. (;) The limiktion is fifty dollars, exclusive of costs. This is the aimvM. rhe Corporation may fix a less but cannot fix a greater ktr. penalty for infraction of a By-law. It cannot do indirectly 111 which it is not allowed directly to do. It cannot, by multiplying many that which is in reality only one offence, and annexing a fen Jty to "ach, evade the statute. (See preceding note.) But where •> transaction is really a distinct offence, and may be so declared, the panishment for each is within the competence of the Corpo- Uton, the fines would not be illegal though in the aggregate exceed- Bf liity dollars, exclusive of costs. Heue v. Town Council, G Eich. I Law. 404 ; see also Chicago v. Qtdviby, 38 111. 274. (j/) Every qualified person duly elected or appointed to be a Mayor, i^tmm, Reeve ov Deputy Reeve, Councillor, Police Trustee, Assessor ■' iiiikdor, who refuses to accept office, is subject to a penalty of jot more than eighty dollars nor less than eight dollars. Sec. 272. m section must be taken to apply to officers other than th&..,3 for Wch the Act has made express provision. As to what is "neglect," "refusal," or "good cause" for not ttpting, see notes to sec. 272. (a) See note w to sub. 12, of this section. {') The power to enforce the payment of fines by distress and sale "one that muse be expressly conferred. White v. Tallman, 2 Dutch ^J)67; Btrgeny. Clarkson, 1 Halst. (N. J.) 352; see also Clerk TwM, 3 Lev. 281 ; Lee v. Wallis, 1 Ken. Caa. 292 ; Adleij v. f'm, 2 Maule & Sel. 60. '. 1^ 364 THE MUNICIPAL MANUAL. [Moi m ' 'i ; imprUon- 14. For inflicting rea«onal)le punishment, by imprisoniueat SiowfX^and with or witliout hard labour, either in a Lock-up Koiwisj time of. Hotiw. Town or Village in the Township, or in the Coiiutr Gaol or House of Correction, for any period not exatlirj twenty-one days, for breach of any of tlie by-laws of the I Council, in case of non-payment of the fine iiitticted for m\ Rtich breach, and there being no distress found out of wbicli 8uch fine can be levied : (c) except for breach of any bvliwot by-hiw-s in Cities, and the suppression of houHCH of ill tW, for which the imprisonment may be for any jieriodnojl exceeding six months, in case of the non-payuicnt of tb* costs and fines infiictiMl, and there being no sufficiuiit distrt:* | as aforesaid ; (2(lG). li) The Corporation of any Township may possess and iiM the land so purchased, and may, whenever they deem ii;r\;ii,ii(iit, sell or otherwise depart with or dispose of the sh,. \>\ [mblic auction, in like manner tin they may by law yli 01' (liM[!ose of other property, and upon such terms and |cviiliiion.s, and with such mortgages upon the land so sold, [on tlier security for the piu'chase money or any portion Itli'ivul', (7) ns they may think most advantageous. 30 V. c. 1j>,s. 37i'(l7). The proceeds of the sale of such lands shall form part ProeeeJs of sale. IL I 21 ; The Queen v. .Vmro, 24 U. C. Q. B. 44 ; see further, The jVi 'I V, like, L. K. 1 Crown Cases, 21. Mmiiciital Corporations are not in genenal authorized to deal in k'ls. The Coiuicilof every County, Township, City, Town and livr^wprateil Village way pass By-laws for obtaining such real and ^'llilll pidjierty as may be required for the uao of the Corporation. kK 1 of this section. The additional power is hero conferred on tile Iniincils of Townships to purchaao all the wet lands at the dis- jK'sal iif the Crown, or any Corporation or jwrson. It is nvH'tho tell -atled pohcy of the Provincial Legislature, that the swamps iiii «ut lands of the Province should be drained. See li S. O. I/) Unless power were conferred to drain the wet ' ', the pur- ItW' of which is authorized by the preceding sub-btcc ^n, the lands Ituuiil be of little value to the Township Corporation. Hero it ia |iin.!ared that the purchase a)ul draining of such lands shall bo one ■f the purposes for which any Township Corporation may raise money loylduu or otherwise, or for which it may apply any of its funds not icrwise appropriated. h'l The powers to purchase and drain would not be of much value l»ithout a power to sell when drained. But the sale can only be by mm auction. This is intended as a provision against favouritism. lii to the power to foreclose such mortgages. See Orford v. Bailey^. |liGraut276. I, r. \i 411 1 n M* , , 1 366 ReguUtioni iw to tr«eii, bhrubi, ttc, in publio flMM. THE MUNICIPAL MANUAL. [,45^^ of tho ^enenU funds of the Municipality. (A) 36 V c 48 il 372 (18). ■ ' ' Ornamental Treea. IG. For causing any tree, shrub or 8ai>Hng, growin- orl planted on any public place, square, highway, street, \m I alley or other communication under it« control, to I* n\ moved, if and when such removal is deemed necesHfuv fori for any purpose of jiublic improvement ; (1) butno suclitrw,] shrill) or sapling shall bo so removed until after one inontliil notice thereof is given to the owner of the mljiiiniMl property, and he is recomi>en8ed for his trouble in plimtin'l and ])rotccting the same : nor shall such owner, or any itiitk-j mast(;r or other public officer, or any other person, rcruineorl cut down or inj\ire such tree, shrub or sapling, on prctfncel of improving the public place, square, highway, wtreet, nd,! lane, alley or other communication or otherwise, withmitl the express permission of the Municijial Council liaviiij; tWl control of the public place, square, highway, street, rotulj lane, alley or other communication ; and any Council may I expend money in planting and preserving shade and oriw-j mental trees upon any public place, square, higiiway, stiwt,! road, lane, alley or other communication within the Mimici- l)ality, aad may grant sums of money to any person orj association of persons to be expended for the same [nir- (/() As the purchase money may bo taken from any funds not otherwise, appropriated or raised by \v ay of loan or otherwise, ]«)■ able out of the general funds of the iMunic.pality, it is only r\{^^ | that the proceeds of sale should form part of the general funus ji i the Municipality. (/■) The policy of the Municipal law is to encourage the plautiug and growth of trees in public highways, squares and streets, for pur- poses of ornament or shade. Each such tree is made the property of the adjoining proprietor. R. S. O. c. 187, s. 4 sub. 2. But mi such tree is to be so planted that the same may be or become a niisisanoe in the highway, or obstruct the fair and reasonable use of the same. Ih. sec. 4 sub. 1. The removal under the section here aunotattsi j is only to take place when necessary for any purpose of public im- provement. Besides, it is not to take place until one mouth's notice I thereof shall be given to the owner of the adjoining property, and he be recompensed for his trouble in planting and protecting the tree. It is not in the power of the owner, pathmaster, or other officer or person, to cut down a tree without the express permission of the Municipal Council having the control of the public place, &c., ffierej the trej is standing. im] ENFOROINO TEIIPERANGE LAWS. 367 pd^; (/) 34 V. c. 31, Bs. 3 e \. Rutland and Burlinuton Jiailroad Co., 27 Vt. 150. Uij much easier to ijerceive and realize the existence and sources of thU power than to mark its boundaries or prescribe limits to its exercise. Comvi on wealth v. Ahjer, 7 Gush. (Mass.) 84; see also dommumreM V. Ttwk»bury, 11 Mete. (Mass.) 55 ; Hart v. Albani/, 9 Weml. (X.Y.) 571 ; iVVw Albany and Salem Ha'droad Co. v.fTiUoi), 12 lud. 3; Indlanapol'iH and Cincinnati liailroad Co. v. Kercheixd, li;in(l.b4; Baltimore v. The State, 15 Md. 380; People v. />, i^'', 25 Baru. (N. Y.) 374; Ohio d- Mixnisdippi Puiilroad Co. v. McCMUml,1o\\i 140. In the United States the exclusive power " to regulate com- merce with foreign nations and among the several States and wth the Indian tribes " is with Congress. Story on Const, s. lUoii. Chief Justice Marshall, in Dartmouth Collei/e v. Woodicanl, 4 Wheat. (U. S.) 518, (J29, said that "the framers of the Constitution JiJ not intend to restrain the States in the regulation of their civil institution.s adapted for internal government, .ind that the instra- ment they have given us is not to be so construed." See also .%'/'(/» V. Moore, 8 Barb. (N. Y.) 358; Waldon, v. Jiensenlaer and Suniiwj'i Hail road Co., lb. 390 ; Gahna and Chlcat/o Jiailroad Co. v. Louum, 13 111. 548 ; Fitehbiny liailroad Co. v. Grand Junction Builtcaij Co., 1 Allen (Mass. ) 552 ; Peters v. Iron Morriston Jiailrwi'l Co., ."3 Mo. 107; Grannahan v, Hannibal, p/ti'y, 28111. 283. Laws prohibiting the sale of intoxicating liquors have, in the United States, been again and again assailed as being cortrarytothe Constitution of the United States ; but their constitutionality appears to have l)een affirmed by the majority of the Supreme Court of the United States, after appeal from several St.ites, and after most able and exhaustive arguments. Thurlow v. Maxsachu^elts, 5 How. (U. S.) 504, 574, 589, GOU, G08 ; see also Brown v. ManjIamI, 12 AVheat. (U. S.) 419; People v. Hawley, 3 Mich. 330: Bepnldi^. Geary, 20 Conn. 179; Lincoln v. Smith, 27 Vt. 335; Stnfi' v. RoUn- son, 49 Me. 285 ; Bradford v. Stevens, 10 Gray (Mass.) 379; Bod- v. The State, 7 (iilL (Md.) 326 ; Jonex v. The People, 14 111. 19f) ; S'd/' V. Wheeler, 25 Conn. 290 ; Santo v. The State, 2 Iowa, 202 ; Cm- vionweallh v. Clapp, 5 Gray (Mass.) 97. Indeed, some of the Courts have gone so far as to hold that Municipal Corporations, under t general power to prevent pauperism and crime and tlie alwtement of nuisances, may declare that the .act of selling spirituous liquors is a nuisance. Goddard v. JackmnvilU, 15 111, b^Q; Jarhomll': i- Holland, 19 111. 271 ; Byers v. Olney, 16 111. 35 ; PrendergaM v. Fen, 20 lU. 51 ; Pekin v. Smelzel, 21 111. 464; Block v. Jack-mdlle, Si 111- \i A5i] ENFORCING TEMPERANCE LAWS. 36» jind'TA* Temperance Act of Ontario;" 36 V. c. 48, s. Rev. Stat, c . i V 182. 312(14). %• )>iflace every house, every business, and all the nroiHirty in the City, at the uncontrolled will of the temporary local authorities." Per Miller, J., Ydtes v. Milwaukee, 10 Wall. (U. fi.) 505 ; see also Underwood v. Green, 42 N. Y. 140 ; Croxhy V, lldiTcn, 1 Rich. (S. C. ) 385 ; lioherts v. Oijle, 30 111. 459 ; Stdem \. Railmid Co., 98 Mass. 431 ; Dinijley y. liunton, 100 Mass. 544. These remarks may, with perfect propriety, be turned against a Byhw making the sale of spirituous licjuors to a man a nuisance. Whatever doubt there may be as to the constitutionality of a By- law prohibiting the sale of spirituous licjuors, there appears to be none as to By-laws regulating its sale. They are looked upon as ordinary Police regulations, such as the State n)ay make or delegate to Municipal bodies to make, in respect to all classes of trades and employments. Bode v. Tke State, 7 Ciill. (Md.)32(>; BuneroJ't v. hums, 21 Vt. 45() ; The Licence Cases, 5 How. (U. S.) 504 ; Thomas V. Mrninl Vernon, 9 Ohio, 290 ; CHntonville v. Keetimf, 4 Denio. IX. Y.) 341 ; City v. Haisendn-ittle 2 McMullen (S. C") 233 ; City L'ovwil V. Arena, 4 Strob. (S. 0.) 241. In the last mentioned case, Evans, J., said, " I do not see how it can be supposed that the ordinance forbidding it (spirituous liquor) to be kept in certain places tan be said to be an interference with the power of Congress to regu- late trade. As well might it be said, that because gunpowder was imported and subject to duty, the State laws, which })roliibit vendors ieeping it in their stores, were in violation of the Constitution of the I nited States." Such a By-law must not be inconsistent with the IsHs of the Dominion regulating either Customs or Excise. See Ex I'lrk Harriniitun v. Rocheder, 10 Wend. (N. Y.) 547; People v. •Ifonix, l.S \\'end. (N. Y. ) 325. Tlio license of the Government to lell spirituous liquors is only an authority to sell according to law. Imw C'fWM, 5 How. (U. S.) 632 ; see also Meeker v. Van Pennselaer, 15 Wend. (N. Y.) .397. The power ought not to be gathered by mere inference. Commonwealth v. Turner, 1 Cush. (Mass.) 493; Ilmkm V. Rochester, 5 Cow. (N. Y.) 402; Commonwealth v. Dow, 10 Mete. (Mass.) 382; Ex parte Burnett, 30 Ala. 4(51 ; State v. Clark, 8 tmt. (N. H.) 176; StcUe v. Ferquson, 33 N. H. 424; Intendant v. 'hmdin, 6 Ala. 89 ; Perdue v. Ellis, 18 Geo. 580 ; License Cases, 6 How. (U. S.) 632. As to the powers of Cities, Townships, Town* 47 1 • I 370 THE MUNICIPAL MANUAL. Seizing Bread, etc. Is. m. Lightweight 18. For seizing and forfeiting bread or other articles whea andihort gf llg]^^^ weight or short measuremeut. " meaaure. 16. See also post 466 (10) (12). (0 37 V.clfi.i and villages as to tavern and shop licenses, see R. S c 181 • » 17, 21, 24, 32. ••',«. {I) The assize of bread has from the earliest times been deemed necessary. See Burn's Justice, Title "Bread." The power to seize as forfeited, bread or other jiroperty for light weight or short measure' ment is one that cannot be inferred from a mere power to regulate. Power **to regulate everything which relates to bakers " was held La. An. 432 ; Page v. Fazakerly, 3« Barb, (N. Y. ) .^92. The sale of hreail is now in England regulated by 6 & 7 Will. IV. cap. 37. In it there •was an exception of bread which, M'hen the Act was passed, wai known under the denomination of French or fancy bread. \Vhea this fancy bread became afterwards breid in onlinary and common use, and was so sold, it was held that the exception had ceased. The Queen \. Wood, L. R. 4 Q. B. 559. " The object of the Legis- lature in passing the Act was to liberate the trade from the restric- tions of the Assize Act, and leave the baker at liberty to make bread of any size and shape he pleased, and to charge his own price for it ; but in order to protect he customer from imposition, it required the baker to sell by weight. He is no longer at liberty to sell at so much a loaf ; he must sell at so much per pound, and the customer is to !« supplied with so many pounds of bread, unless he chooses to Iiivean article of an exceptional quality — something that is not ordinary bread ; and if he buy that, the baker is at liberty to sell it without reference to weight. But, unless it is of an exceptional character, if it is the common article of consumption, the baker must sell it as such. It is obvious that if what is now ordinary bread is to he treated as exceptional and an article of luxury, because it was so at the date of the Act, the enactment will become a dead letter." Pn Lush, J. , lb. 562. In another case, under the same Act, Cockbum, C. J., said, "We think, when a customer asks for bread by weight, that clearly is a case in which, whether the baker chooses to give him ordinary bread or fancy bread, the baker is bound to sell by weight We by no means say the baker was bound to weigh in the prcence of the customer, but he was bound to weigh the bread at some time or other before he sold it, and to sell it by weight instead of by the denomination of household bread, fancy bread, or any other denomi- nation." The Qiteen v. Kennett, L. R. 4 Q. B. 565-567 ; see further, The Aerated Bread Co. v. Gregg, L. R. 8 Q. B. 355. The power to seize, forfeit and destroy the property of another ii an extreme power, and only to be exercised when expressly conferred. Donovan v. Vkkahurg, 29 Miss. (7 Cush.) 247 ; Miles v. Chamkrlaiit, S& 455, in] y.A SUUMAR1 455. Whenevei to dii-ect, by by-la'' .should be done by maj also, by the default of its beinj sball be done at tl may recover the ( distre&s; (m) and, •ihall he recovered 36 V. c. 48, 8. 377. COM! 466. Eveiy Cc occupiers of, or property entered poration iu the 17 Wis. 446 ; Cincinni ^«#n, 76.32; Phil/ipi AJa. 137. (m) The usual penal See sec. 455, sub. 12. otherwise than by fin, 12 of sec. 454. But \ somebody should do th be done at the expem Md is here expressly g of snow such a power «ib.41. The power ii npal Corporation has that "any matter or Corporation." Suffer! tiuckness to remain, is appropriate remedy is t the owner, where the B '^ Marshall V. Smith, (») Municipal rates m But m either case thei W much he is rated. bimfor the amoun; placing of the name of 1 such power is intended : J"! *'^" interference v "Other, prima/acie giv, t« maintain the action el l-y Act of Parhament t SI 455, 4' 5'?'' T^ANDS TAKEN BY CORPORATIONS. 371 SCHMART REMEDY IF BY-LAWS NOT OBEYED. 455. Whenever any Municipal Council has any authority Mwieofoom. to dii-ect, by by-law or otherwise, that any ooatter or thing ^rmanM^of should l^ done by any person or corporation, such Council ^J^^ may also, by the same or another by-law, direct that in directedtote default of its being done by the person, such matter or thing coundi^Ae. shall be done at the expense of the person in default, and ma? recover the expense thereof with costs by action or distress; (m) and, in case of njn-payment thereof, the same shall be riecovered in like manner as municipal taxes, (n) 36 V. c. 48, 8. 377. COMPENSATION FOR LANDS TAKEN. 456. Eveiy Council shall make to the owners or P"^" r' occupiers of, or other pei-sons interested in, real by corporn- property entered upon, taken or used by the Cor- j^"^^' ** poration iu the exercise of any of its powers, (a) pensated. 1 17 Wis. 446; Cincinnati v, Buckinpham, 10 Ohio 257 ; Roaehnuqh v Sn#n, 76. 32; Phillipa v. Allen, 41 Pa. St. 481 ; Mobile v. Yuille, 3 A]a.i37. (m) The usual penalty for non-compliance with a By-law is a fine. See sec. 455, sub. 12. Power to enforce the provisions of a By-law otherwise than by fine must be expressly given. See notes to sub. 12 of sec. 454. But where the object of the By-law is really that somebody should do the thing required, power to permit the thing to be (lone at the expense of the party in default is a reasonable one, Mid is here expressly given. In the case of By-laws for the removal of snow such a power has for a long time existed. See sec. 466, sub. 41. The power is now extended to all cases wherever a Muni- cipal Corporation has authority, by By-law or otherwise, to direct that "any matter or thing" should be done by " anij person or Corporation," Suffering a party wall of less than the requisite thickness to remain, is not per «e ** a continuing offence. " The more appropriate remedy is the remowl of the structure at the expense of the owner, where the By-law pertiits of such a course being adopted. See ManhM v. Smith, L. R. 8 C. P. 416. (n) Municipal rates may be recovered either by action or distress. But in either case there is a Roll shewing ihe person rated and for how much he is rated. This is, as it were, the judgment against him for the amoun'., No provision is here expressly made for the placing of the name of the person in default on the Roll Whether such power is intended remains to be decided. (") An interference with the enjoyment of property belonging to another, ■prima facie gives a right of action. This being so, the right to maintain the action exists, unless shewn to have been taken away by Act of Parhament The burden of shewing that it has been I ;v 372 ' THE MUNICIPAL MANUAL. [g, 455 or injuriously affected by the exercise of its iwwers I'lH.; ,5:|.:, . . - oWigatioiis are paramount to individual rights and interests. In all civilized countries there is what is called the power of eminent domain. By this is meant the right of the public to appropriate private propeity for public uses. See The Divisional Counsel of the Cape Divhsiou mvl De ViUiers, L, R. 2 Ap. Cases 5G7. This right is generally subject to the limitation that private property shall not be taken for public use without due compensation. See ]VeHs v. London, Tilhnrif ami Smith- end It W. Co., L. R. 5 Ch. Div. 130. Such is one of the limitatiuiis in almost each State constitution in the United States. See .S'o«//c toestcrn R. W. Co. v. Southern and Atlantic Teleijraph Co., 12Adi. 585 ; Witham v. Oslmrn, 18 Am. 287 ; Oshorn v. Hart, 1 Am. 161 ; Wild v. Deiq, 13 Am. 399. Such is also one of the generally understood limitations in the unwritten constitution of Great Britain. "It is said this is for the general benefit of the inhabi- tants, &c., and it is only opposed Ijy a few interested indivi- duals. The usual answer to this kind of argument is, that if it is for the general benefit of the inhabitants to take from a few- interested individuals their property, let the public pay the interested individuals for that of which they deprive them," Pn Richards, C. J., in Jinrritt and MarlhorotKjh, 29 U. C. Q. B. 119131; see further, In re Alhumj Street, 11 Wend. (N. Y.) 148; Emhnis. Conner, 3 Comst. (N. Y.) 511 ; Jn re Webster and West Flamborowjh, 35 U. C. Q. B. 590. The Legislature may, under proper restrictions, delegate this power of eminent domain for particular purposes to Municipal Corporations and other Corporations essentially puijlic in their nature ancl ends. People v. Smith, 21 N. Y. 595 ; Willsim v. BlarJchird Creek Marsh Co., 2 Pet. (U. S.) 251 ; We.it Fiver Bruhjf Co. V. Dix, 6 How. (U. S.) 507 ; Jiloodeii/, 13 Am. 399. If there be no doubt as to the laud author- ized, &c. , the conditions precedent should be strictly pui-sued. Shufner V. St. Louis, 31 Mo. 264 ; Mayor, .(c, v. Lonif, lb. 3G9; Dijcbmn v. Xeiv York, 1 Seld. (N. Y.) 439 ; Hurbeck v. Toledo, 11 Ohio St. 219; Cincinnati v. Comb.'*, 10 Ohio 131 (1847) ; Mitchell v. Kirkland,! Comi. i<56.] COMPENSATION FOR I ANDS TAKEN. due compensiition for any damages (including cost of fenciM" when lequii'ed) (b) necessarily resulting from the exercise of such powers, beyond any advantage which the iwj . ,VirA(// I upon, id under tim section to be deteiTuined by arbitration. The C* urt det aside an ifarJ against a Municipal Corporation as to damage j in favour of a person through whose land a road had been opened, where it appeared tlut no notice had been given to the Municipal Corporation at the meetiug of the arbitrators. In re Johnson and Oloucesttr, 12 U. C. % B. 135. A Municipal Council by By-law opened a road across plaintiff's property, and arbitrators were appointed, one by the Council, one by the plaintiff, and the third by the Judge of the I County Court, to determine what compensation should be paid him. I Afterwards a resolution was passed by the Council that tlie arbitra- I tors so chosen should be instructed to take into consideration the damage to the plaintiff's crops, so that all differences might be settled ind they awarded separate sums for the opening of the road and for liiuiagea. Held, in an action of debt on the award, that the Corpo- Intiou could not, under the plea of no award, dispute the arbitrators' jiBthority to award the latter sum. llodijson v, Whitby, 17 U.C.Q.B. ISO. Where in a similar action it appeared that plaintiff named one lirbitrator and the Reeve another, and they being unable to agree on |tii!thinl, the County Judge appointed the third, and tlie tirst and Itkird mentioned arbitrators made an award in favour of plaintiff for IftO for compensation for land taken for a road, it was held that Ipliintiff was entitled to recover. Harpel v. Portland, 17 U. C. Q. B. jtfo. Afterwards the Council called another meeting of the arbitra- jtors, when all three attended, and the two first mentioned arbitrators lude an award giving plaintiff only £3 lOs. It was held that the |i«ond award was invalid. Jb. {(] See note a to sec. 466. . (0 The object of this section is to euable the Corporation to get a ( I/' t5 i ■ 'in! 376 If then be no party who can convey, etc. THE MUyiCIPAL MANUAL. [s. 451, ; 2. In case there is no such person who can so net ia j respect to such real property, or in case any pei-son int< .led in respect to any such real pi'operty is absent fr liij Province, or is unknown, or in case his residence la unl., ,n. or he himself cannot be found, the Judge of tLj (Jo titv Court for the County in which such property is situai. ,iaT on the application of the Council, appoint a jterson ' tin respect to the same for all or any of the suid piirwMes iil in esitect of such i)roperty, and shall retain the lirinc'"il v-i be paid to the f)erson entitled to it whenever he cainijthesani and executes a viilid acquittance therefor, nnlessthe Conrt of Chancrj , or other Court havinf? ecpiitablo I jurisdiction in such cases, in the meantime dir !cts the Co-'icii a) jfiiy the same to any ])erson or into Court; (?') and tie ('(iiincil shall not be bound to see to the application of jDT iiiu.rp.st so paid, or of any sum ))aid under the direction of "such Court. 0") 3G V. c. 48, h. 375. 459 All sumr 'igreed upon, or awarded in I'espect of such real pniiH'ity, shf" bo subject to the limitations and charges towliich tlie property was subject, (k) 36 V. c. 48, s. 376. If there be any parson known who can be said, within the ni»"' - I iii^' of tilt; first part of the section, to represent others, deal, .^s i jhiiulJ bu had with him. Ill} .See note/ to sec. 457. (!) A railway conioany agreed to pay a landowner, tenant jr life, a sum of money for the bonelit of him or other the owner for the time licvig, for indemnifying bim from the expense of making a new road, &c., and as a ccmipensation for the annoyance which he or mch other owners might sustain in consequence of the construc- dun ftf the r.'vibvay ; and the company agi-eed to pay a further sum lathe price of the land taken. Both sums were paid into court. The application of the tenant for life for the a osolute payment to ium 0' the first sum was refused. The costs of the road, &c., were paid out of it, and the rest invested. lie Duk". of Marlhurouqh^a Uniu, 13 Jur. 733 ; see also Pole v. Pol; 2 Dr. & Sm. 420, and Earl \(ijS!ir(uuliHry V. Xorth StajfonWiire Bailivay Co., L. B. 1 Eq. 593. (J) It W.18 a rule in equity that a person paying money to a trustee, I ic, was liouud to see to the application of the money. This has been found to work such hardship, that as between individuals it is now evicted that a person paying money upon an express or implied tnist is not bound to see to the application or be answerable for the misapplication thereof, unless the contrary is exprussly declared by the instrunieut creating the trust. K«v. Stat. Oat. cap. 99, 8. 1 1 1 ; cap. 107, s. 7. (i) In the absence of special cltuses for that pui-pose, the effect of U provision enabling a person under disability, &c., to convey land I for some authorized public purpose, is not to alter the course of ievolutiLn of property without the consent of the owner ; and there- ore if a Municipal Council, railway company, &c., contract with I incapacitated pe- .ons for the purchase of Land, the money is in <(|Uity to be considered as real and not as personal estate. Midland I i.omti(H Ra'dway Co. v. Oawln, 8 Jur. 138. Money paid into court 48 377 Application, etc., of pnr- chaw money where party iias not an absolute estate in th« propel ty. Pnrchnso ■"•■" sub. prop. lip <■•■ 878 TUB MUNICIPAL MANUAL. Ig, ^jq^ Division II.— Powers of Councils o? Counties, Citijm, Towxi AND Incorporated Villaoes. Jtespecttng Harbours, Docks, die. Sec, 460. By-Uwsmay 460- The Council of every County, Cit;, Town and in- li,^ " cor]>oratecl Village may pass by-laws for the following i poses : — • ;pur- The cleanli- nmaof WhUTM, docki, etc. Harbours, Bocks, d:c. 1 . For regulating or preventing the encumberiug, injuring or fouliiig, by animals, vehicles, vessels or other niwuu), of any public wharf, dock, slip, drain, sewer, shore, harbour, bay, river or water, (w) 36 V. c. 48, s. 378 (1). by a railway company for laiul taken from a person who w,t« in i state ui mental mibecility, a:ul who continued in tliat stiite until hia death, but was not the subject of a commission of lunacy, wu ordered after his death not to be reinvested in or considereil a» land, but to be paid to his executors. In re East Linculmhire Bailwrnj Art, 1 Sim. N. S. 2()0. Mo/iey paid into court for land taken under the compulsory powers of the hnulish Act 5 & 6 Will. IV. ch. til), for t Poor Law Union, during the life of a tenant for life, who by tne failure of intermediate limitations became tenant in fee simple, passed as real estate to his heir. Jn re Horner's Estate, 16 Jur. lOdl Where the purchase money of land, taken under the compuboiy powers of an Act of Parliament for public purposes, is paid into court subject to be reinvested in the purchase of land, freeofcxpenM to the parties beneHcially interested, on their petition, it is impressed with real uses, and is prima facie to be treated as real estate. In r* Stewart'n Estate, 16 Jur. 1063. If the person absolutely entitled to money for land has a right to elect to take it as personalty, a men acquiescence in its remaming invested in consols during his life, and his will by which he beipieatlis personal estate; only and does not devise realty, are not such proofs of election as to prevent the fundi descending on his death to hiE heirs. lb. See further, DunliJi> V. York, 16 Grant 216. (n) All powers of Municipal Corporations over public wharves, docks, slips, &c., must be derived from the Legislature. Snj/iUrv. Rockport, 6 (Ind.) Porter 237 ; CarrolUon Railroad Co. v. Winihro^.h La. An. 36. The Legislature of Ontario has no power to make laws as to navigation and shipping. 3. N. A. Act, sec. 91, sub. 10. "^Ir. Crompton presses upon us that Aw relating to trade and navigation have not a legal but as it were a sort of parliamentary meaniuj;, by which they are restricted do far as not to include the Merchant Sea- men's Act, and that they form as it were a code whijh takes them out of the general law of the land. In some cases that may l)e possibly true, but we are called upon to look to the plain and ordinary mean- ing of this Act of Parliament," &c. Per Pollock, C. B., in iiavrmt Hospital V. Liverpool, 4 Ex. 180-184. Accordmg to the plaiu and ordinary meaning of this sub-section, •' the regulating or preventiag ii) See note m to s. 455. li6U.J WHARVES, DOCKS, HARBOURS, ETC. i for directing the removal of door 8te|Mi, ])orcho8, nJiDis or other erections, or obstructions ]>rojectiug into or Ler any wharf , (lock, slip, drain, sowor, buy, harbour, river ir water, or the bunks or shores thereof, at the expcitMe of ike nrop'tetor or occupant of the proj)erty connected with Srlich such projections are found ; (o) 36 V. c. 48, s. 'HI). 3, For making, opening, preserving, altering, improving ni uiaiiitaing public wharves, docks, slips, shores, bays, irboi'.re, rivers or waters and the banks thereof ; {]>) 36 V. ,i\s.3'8(3). i For regulating hnrbonra ; for preventing the filling up rfKun'bering thereof ; for erecting and maintaining the t encumberine, injuring or fouling by animals, vehicles, vesselH or ler means, of any ])ublic wharf," &c., cannot be Iicld otherwise ID isatter of Municipal concern. The welfare antl good government it Municipality demands that things Ukely to be injurious to health id u it were, nuisauceo, should, under certain restrictions, be pre- uteri, mA, if thuy cannot be i)reveutcd, that they dhould be so ^tcri. 1m R. 5 Q. B. 184 ; Wehh v. Port Bruce Harbour Co., 19 U. ('. V. R 026; Cop v. iViMC, L. R. 1 Q. B. 711 ; Winch v. Connerrahn nf ij,. Tha.iic^, L. R. 7 C. P. 471 ; see also /W/»/»urf/ v. On>r, IKl'iM. 54 ; Eaxtman v. Meredith, 30 N. H. 284-295 ; PeopU v. Allm% 11 Weml. (N. Y.)fi39; Buckbee v. Brown, 21 Wend. (NY.) 110; w further, Sweeney v. Port Bunvell Harbour Co., 17 U. C. C P. "4; reversed, 19 U." C. C. P. 37(> ; Berryman v. Port Burmll HarL" C'o., 24U.C.Q. B. 34. ()-) It is not clear that the Local Legislatnro can enable a Munici pal Corporation to impose harbour dues, for such is certainl) m niterference with shippnig. See B. N. A. Act. s. 91, sub. 10. But assuming the power to exist, it cannot be exercised for purposes oi revenue. See Jn re Haynman and Owen Smind, 20 U. C. Q. B. H The power is here conferred in its lowest form, viz., toimixwMil collect such reasonable harbour dues as may nerve to keep tht Aar'» nr in (jood order, and to pay the harbour inanter. See In re Cam^rl^ and KinyHton, 14 U. C. C. P. 285. If the wharf, &c., be the property of the city, it may be that the right to impose and collect tolli would be held to be a mere incident of the ownership of pMp«rty. See note p. to subs. 3 of this section. But the right to f t idlit wharves and to demand tolls for their use would appear to be » fnu- chise requiring competent legislative authority. People v. Bnmlitf^ Wharf Co., 31 Cal. 33 ; Wharf Caxe, 3 Bland. Ch. (Md.) 3S3; II" wallv. Hall, 3 Paige Ch. (N.Y.)313; Thompson v. Sew lori, 11 N.'Y. 115. The power conferred is to pass By-laws for reguUting the vessels, crafts and rafts arriving in any harbour, and for imposioi! i and collecting such reasonable harbour dues thereon, &c. Itn^ impose the duty on the vessels, craft, rafts, 4c. See h i* | Bogart v. Belleville, 6 U. C. C. P. 425, and not on the shippers, con- signees, &c. Re McLeod e.t al. and Kincardine, 38 U. C. Q. B. (ib. But'see The President, dc , of Hit Bronte Harbour v. Co. v. M^, 23 U. C. C. P. 164. I") Counties not embr POLLINU SUB-DIVISIONS. 66i i. 461.] nm.sio.1 IIL-POWEM OF COCNCIW Of TOWNHHIPS, CiTIM, Towxs " AND ImoKl'OKATKU VlLLAUKS. ILtptethg Polling Stibdivisioru. Sec. idl (1.) " Ditqwilijxcaiion of Ebictors. Sec. 461 (2.) " MUnril (/)• Ji(t(jatnlle Tttblra. Sec. 40 1 (3.) '< Vidunlling lloims. 6ec. 401 (4, 5.) " Schools. Sec. 401 (6)^ " Cemeteries Sec. 461 (7,8.) " Cruelty to Animnh. Sec. 401 (9.) " Dogs. Sec. 401 (10,11.) - Fences. Sec. 401 (12.) '< Division Fences. Sec. 461 (13.) Watercourses. Sec. 401 (14.) Weeds. Sec. 401 (15.) " Filth in Streets. Sec. 4(i\ {\G ) " Hurning Stnmps, Jh'ush, i(c. *SVc. 401 (17.) •' Exhibitions, Shows, i('c. Sec. 401 (18.) •' Graves. Sec. 401 (19.) , . •' Shade Trees. Sec. 401 (20.) " Injuri/ to properti/ and notices. Sec. 401 (21, 22.) " Gas and Water Companies, .b'ec. 401 (23,24.) " Public Morals. Sec. 401 (25-34.) •' th Establishmut of Jhundaries. Sec. 401, (3o.) 402. " Pounds. Sec. 463. Public Health. Sec. 464. " Lock-up Houses. Sec. 434. " Tavern and Sltoj) Licenses. Rev. Stat. c. 181. ^ ]\. The Council of every Townshii), City, Town or incor- By-laws Iporatetl Village («) may pas-s by-laws :— Sado^for- s !t t 4 PoUiufj Subdivisions. 1. For dividing the Wards of such City or Town, or for inJiiig such Townshij) or Village into two or more con- I'fiiifut iwllins^ subdivisions, aiid lor establishing polling jpLices thereii. and for repealing or varying the same from jtiiiif to time ; a. d such ])olling subdivisions shall bo made or I varied whenever the electors in any Ward, Township, Village |oriK)lliiigsuhdivit>. on exceed two hundred, and shall be made [>iiil varied iu such a nuuiner that the number of electora in ") Counties not embraced within this section. Dlvidin^rcity 01 town into wards, etc. And toHTi- 8hipa and vil- lages into pulling 8ub- divinions,. etc. I v.' It 382 THE MUNICIPAL MANUAL. l^, {^\ any polling subdivisions shall not exceed at any timetm hundred ; (6) 36 V. c. 48, s. 379 (1). (a) Where a Municipality is divided into polling sub-dhia. ons, (bb) the same polling sub-divisions lall be used both for the election of members of the Legislative Assembly and for municipal elections ; and the polling sub- divisions for electiom to the Legislative Assembly and municipal electioiw shall hereafter be made the same in all cases, except that the Municipal Council of every City, Town or incorporated Villare, may by by-law unite, for the purposes of municipal elections, any two adjoining ^wiling sub-divisions. 40 V. c. 12, ss. 2iU. Polling rab diviaioni to Iw the Mine for electiona- toLegixlative Amembly and munici- pal elections. Council of city, town or incorporated vUlkfra may unite adjoin- ingr «ub- divisioni. Disqualification of Electora not paying Taxes. Disqualify- 2. For disquallfiying any elector from voting at miiiiiciiial I inurrearfor elections who has no^paid all municipal taxes due by liimon i taxes. oj. before the fourteenth day of December next precediw I the election ; (c) 36 V. c. 48, a 379 (2). ,S'ee a/«o «ec. 24s. ' Billiard or Bagatelle Tables. LiTOnrinsr 3. For licensing, regulating and governing all pi jrsons who, Idk the use for liiro or gain, directly or indirectly keep, or have in thel' and bapitelle Possession, or on their premises, any billiard or bagatelle talle j tables. or who keep or have a billard or bagatelle table in a house or place of public entertainment or resort, whether such billitrd . or bagatelle table is used or not, and for fixing the sum tu lie ; paid for a license so to have or keej) such billiard or bagjiulle table, and the time such license shall be in force, (d) 36 V, c. 48, s. 379 (3). {b) The powers here conferred are for — 1. Dividing the Municipality into two or more polling subilivisios 2. Establishing Polling Places therein ; 3. And may from time to time repeal or vary the same. Undci' circumstances stated it is made obligatory to create polling j subdivisions. The circumstances are, whenever the electors in any Ward, Township, Village or polling subdivision exceed two bun- i dred. In such a case it is made the duty of the Council so to vary i the polling subdivisions as not to exceed two hundred electors in j each pulling subdivision. (bb) As to appointment of Deputy Returning Officers for piling i subdivisions, see sec. 94 d, (c) See note r to sec. 78. (d) From a very early period in the history of this Province, perwni J. 461.1 VICTUALLING HOUSES, ORDAKARIES, ETC. VictuaUing Houses, d'c, 4. For limiting the number of and rejjulating victualling viotntlHng houses, ordanaries, and houses where fruit, oysters, clams, or nSmbw mJ victuals are sold to be eaten therein, and all other places for Regulation reception, refreshment or entertainment of the public ; (e) 36 T.c.48,8. 379(4;. 5. For licensing the same when no other provision exists License and therefor, and for fixing the rates of such licenses not exceed- '** "*' "™"* bg twenty dollars; (/) 36 V. c. 43, s. 379 (5). kwping billiard tables for hire have been subject to Legislative con- trol Stat. .W Geo. III. ch. 6 ; see also Church q. t. v. Jtichards, ' U. C. Q. B. 562. In some instances power was given to mipprcM such Hie of billiard tables. See The Kimjv. Home Dixtrlct, 4 U. C. Q. B. 0. S. 9 ; see further Pf-opfe V. Sergeant, 8 Cow. (N. Y.) 139. The power here conferred is only to Uceuse, rrgnlate and govern. Tower to license or regulate does not confer power to suppress. See Yaten v. Mmukn, 10 Wall. (U. S. ) 497. A By-law requiring payment of $300 for* lieen; e is not a prohibitory By-law. In re Neilly and Given Sound, Ti U. C. Q. B. 289. It is in the power of a Municipal Council to insist that there shall be no internal communication of the room in thich tlie billiard table is placed with any room or place in which spiritiidiis liquors are sold. lb. A By-law that no billiard table Mall be kept in a tavern or inn is good. In re A rkell and St. ThomuH CSl'. ('. Q. B. 594. On the trial of a billiard -table keeper charged with iiilowiiig a minor to play at billiards without the consent of parent or guardian, the burden of proving that the parent or piiriliau did not consent is on the prosecution. Conytrs v. The Siat(, U) Am. 6S(). '') It was held that under a general power to pass By-laws " for [thew/ZAfin;/ of the City," there was power to regulate restaurants and other places of public resort. State v. Freeman, 38 N. H. 42G ; see also .S:M* and Toronto, 20 U. C. Q. B. 302; In c- .Wiwl TrnHtccx and Toronto, 23 U. C. Q. B. 203 ; In re Cohnmn nwl Km, 27 U. C. Q. B. .'>. A County Council may, under some circumstaucej, own land held for school jjurjioses, although situato witliiii tiie limits of a City. Count!/ of Carlcton v. Public School iiropriated for a public ceineteiy, and for no other purpose ; and thereupon such laud, although without the Municipality, shall become i»rt thei-eof, and shall cease to be a part of the Municipality to wliicl) it formerly belonged ; and such by-law shall not be rfpealwl ; and the trustees of any burial ground may agiee for tilt' sail' or tnuisibr thereof to the Municipality which desires toaciuiire the same ; and in cases where such grounds have; not been used for burials, the municipality may dispose thereof, ami acquire otiier ground instead thereof; 3G V. c. 48, s. 379 (7). See «/«*> liev. Htnt. c. 170. S. For selling or leasing portions of sJich land for the pur- fjo""^,,'^'.! iiose of interment, in family vaults or otherwise, and for land for wr- 'clariug in the conveyance the terms on which such portion Ji^"""^' lall he held ; 3li V. c. 48, 8. 370 (8). (0 I jKirated Village, but the lamls so acijuired shall not form part of the Municipality of such City, Town or Incorporateil Village, hut shall ' cui'tiuue ami remain as of the Munieipjility where situate. (i) I'nilera power to a City Corporation "to establish cemeteries lirlmrial ]il;i(.es within or without the City," it was heM that the I I'.ty was authorize to establish cemeteries ot its own and to regulate I tkin. Imt tliat it did not empower the Council to subject to the 'intpil uf the City Sexton cemeteries, other than those belonging to I "iii; ( ity, nor to pabb a By-law for prohibiting lot owners in private ttDR'ttrics, though within the City limits, from entering to bury their ileaj without permission of the City Sexton and the pay- [inent of a fee to him. lioijcrt v. ImllanapoUx, 13 Ind. 1.S4. Ii the lar.liii to support a cemetery be cast on all the citizens, a By-law liminsiiig thu l)ur(leu on a particular class would bo bad. Benro- hh V. Mdj/or, <(c., 27 Ala. 58. Cemeteries are ' i)t /)^?* xe nui- JBnct'i. It is not enough to compel their removal to shew that they jrfectthe value of property in the neighbourhood. Ntw Orkann y.^'.LmU, 11 L-i. An. 244; MufHp-ore v. The CathoUr Church of IS.Lmim, 10 La. An. 431 ; Lah^ View v. Lcfz, 44 111. 81 ; see furtlier |»otc : to suh. 19 of sec. 461. Cemeteries are not to l)e subjected to jule to satisfy liens on them for the improvement of adjoining streets, japecially where the disturbance of eometeries is a criminal offence. U'wri/Zc V. Xnnn, li) Am. 78. So, a Municipal Corporation cannot, jrthout special authority given by Statute, take for a highway the mis of a cemetery. TruHteen of hmt EvaiKjelical Church v. WaUh, .\ni. 21 ; Evvnjreen Cemetery Aamciation v. CHii of New Hacen, 21 |iffl.W3. I Ij' '^^"'"o is no limitation as to the interest to be conveyed. When l» Municipality is seized in fee simple, the conveyance may be made |iilher for ever or for years. The power is to " sell " or ' leara. " 49 I -1 ■±^ ,l}( ■ n 386 THE MUNICIPAL MANUAL. Cruelty to Animala. [s. 461. |!v i. PreTeDting 9. For preventing cruelty to aniinHls; (m) and forpre-l ^mais and venting the destruction of birds ; the by-laws for thtse imr- ofMnS^'*"* poses not being inconsistent with any statute in that bcliHlf 36 V. c. 48, 8. 379 (9). ReguUtions aatodoga. Dogs. 10. For restraining and I'egulating (n) the running at (m) A cock has been held t(» be a domestic animal within tiiej meaning of the English statutes for the preveation of cruelty to] aninial». liiidije v. I'ai'HuvH, 3 B. & S. 38*2 ; see further }lifl'\ v, Gremhalijh, lb. 374 ; Clark v. Hatjui', 2 E. & E. 281 ; CoyM v, lUnl,, 12 If. C. L. R. 577 ; see also Murphy v. Manuiiuj, L. U. 2 Ex. hi, } 307. The words of our acts respecting cruelty to animals are : " Any j horse, mare, gelding, bull, ox, cow, heifer, steer, calf, mule, ass, shetp, 1 lamb, pig, or other cattle, or any poultry, or any dog or diimesticj animal, or bird." Con. Stat, Can. cap. 9(), sec. 1 ; Dom. Act.'!i4| 33 Vict. cap. 27, sec. 1. The word "cattle" used in the nrentj English statute, 28 & 29 Vict. c. GO, s. 1 , has been held to inducle I horses and mares. Wrhjht v. Pearioii, L. K. 4 Q. B. 582. A be |uest| for founding and upholding an institution for studying ami ciirinJ maladies of (piadrupeds or birds useful to man is a good charitiblel legacy. University of London v. Yarrow, 23 Beav. 159; 2Jiir. -N." S. 1125 ; atHrmcd on appeal ; 1 De G. & J. 72 ; 3 Jnr. 5. S. 421. (n) The power is not merely to " regulai,3," but to "restrain ' tliej running .at large of docs. This may be read in connection with thel next sub-section, which provides "for Wiling dogs " running at larger contrary to the By-laws. It will be observed that this siihscctwiil immediately follows one which ena1)lcs Corporations to \ms Ik-hf* for preventuig cruelty to animals. The kilhng of dogs, under artaia circumstances, though certainly cruelty to the dogs, is authurizcl au(^ justified on the ground that public safety demands it. The validityj of laws providing for tlie forfeiture or destruction of property with-j out compensation to the owners, has more than once been dmika See note a to sec. 456. But it is now settled that all rights df pn perty are held subject to such reasonable control and regidatinu the mode of keeping and use, as the Tjcgislature niiiy think rccessar] for the preventing of injuries to the rights of others, and tlie security of the public health and welfare. In the exercise of this jiower, thd Legislature may not only ])rovide that certain kinds of proi^rtyj either absolutely or when held in such a manner or under sucj circumstances as to bo injurious, dangerous or noxious, mav r^ seized and confiscated upon legal process, after notice and hcjinn but may also, when necessary to insure the public safety, authon such property to be summarily destroyed by the Mnniciiial ""'p!"!! ties, without previous notice to tiie owner. Per Gray, J., i" ' ''"" V. Forehand, 100 Mjvss. 136; .S'. C. 1 Am. II. 94; and per R(iliin8'« C. J., in McKeuze v. Campbell, 1 U. C. Q. B. 241-24.S. .Uanj"'" example given in each of the cases is that of pulling down builam •fW; % l461.] DOGS. of dogs, and for imposing a tax on the owners, iK)ssessor8 to prerent the spreading of conflagration, or the impending fall of the buililinm themselves. Moime's Case, 12 Co. 63, Ih. 1,3 ; Makverer T,Spi»i, iDyer, 3(5 b; Governor v. Meredith, 4 T. R, 794; 15 Vin. Abr. Title "Necessity," pi. 8; Reapuhllea v. Spnrhnwk, I Dallas (Pa.) 35;- Ta\jlor v. PlifwoiUfi, 8 Met. (Mass.) 4fi2, 4(J5 ; New York v. loni, 18 Wend. (N. Y.) 126 ; Cmivell v. Emrie, 2 Ind. (Cart.) .35 : see ilso jmfrican Print Works v. Lawrence, 3 Zabr. (N. J.) .'>90 ; Com' jwiiimWi v. Alffer, 7 Cush. (Mass.) 85 ; Salem v. Fluher v. McGirr, I'irayiMass.) 27 ; Purmmt v. I'entinydl, 11 Allen (Mass.) 512 ; A'a^<- /ffl^fli/roarfCo., 98 Mass. 443 ; lAcenm Canes, 5 How. (U.S.) 581, 599, G32. There'is no kind of property over which the exercise of this Kwcrismore frequent or supposed to be njoro necessary tlian dogs. the view of the common law, dogs of all sorts had no intrinsic value, ami the owner was held to have so little ])roperty in them that the stealing of them was not larceny. 'J'/ie Queen v. Rohinmn, SCox, C. C. 115; Mil'en v. Fnutlijre, Top. 101 ; Millen v. Fnwen, Bemil. Ill ; Mnnon v. KeeVnuj, 1 Ld. Ilayd. (iOS ; Iteail v. Eilirarda', i: C. B. N. S. 245. But see ffarriiujfon v. M if leu, 15 Am. 355, and notej. But the principal object of restricting dogs running at large ii the consideration of the very imminent danger to the community (i the horrible affliction of hydrophobia spreading to a great exter>t ttilwith great rapidity, unless instant measures Ije trvken to jtrevent It At Robinson, C. J., in McKenzie v. Campbell. 1 U. C. Q. B. 24i. The !aw hasj long made a distinction between dogs, cats, and other li'imestic quadrupeds, growing out of the nature of the creatures and the purposes for which they arc kei)t. Beasts which have been thoroughly tamed, and are use(I for burden or husbandry, or for M, such as horses, cattle and sheep, are as truly pro|)erty of intrin- lic viJue, and entitled to the same protection as any kind of {i;oods. But (lilt's and cats, even in a state of dinnestication, never wholly lose their wild nature and destructive instinct.?, and are kept either iw uses which depend on retaining and calling into action tliose very aitiires and instincts, or else for the mere whim and pleasure of the owner. l\r (Jray, J., in lilnir v. Forehand, 1 Am. R. 96. Dogs lave alwiiys been entitled to less regard and protection than more birmiess and useful domestic animals. The Queen v. liijmcr, T.. R. 2Q. B.I11V. 130; Lareronev. Mamjianti, 10 Am. 269; Mcilmt, v. Dudge, 2t' Am. « ; P„/na»i V. Payne, 13 Johns. (N.Y.) 312; Brown v. Carjlenter, J'}t, (138; Woolfv. Chalker, 31 Conn. 121. In the case of a Bvliw against the running at large of dogs, the object of the By- law 1! lint to prevent ( r punish trespasses upon property, but to prott •♦ the people of a city or town against danger to their lives— agaii jtlirMtened death in perhaps its most distressing form. Per Robins V--^;M McKemie v. Campbell, 1 U. 0. Q. B. 250, 251. The jfflective mode for protecting people from such a danger is the |!ii.ati(m of the cause of danger; and so, under a statute v .iicn p"ely authorized the Corimration to pass By-laws for "preventing al regjiUinfr " dogs runnuig at large, it was held that tlie Corpo- Wi .11 had power to pass a By-law for the killing of dogs rurmmg |« large in violation of the provisions of the By-law. Jb. 241. By jM' statute under consideration, the legislature have not left the lf"«er to inference, but conferred it in express language, " for killing 387 IP ' lij 388 THE MUNICIPAL MANUAL. m m ' " [8. 461. or haiboiuers of dogs ; (o) 36 V. c. 48, s. 379 (10). Ktllingdogi. 11. For killing dogs running at large contruiy to the br laws ; {p) 36 V. c. 48, h. 379 (11). ' I Fences. 1 2. For settling the height and description of lawful fences and for regulating and settling the height, description and manner of maintaining, keeping up and laying down fena-s along highways or any part or i)arts thereof, and for niakin" conifKMisation for the increased exijcnses, if any, to {lersuas required so to maintain, keej) up or lay down such last men- tioned fences or any part thereof ; {q) 36 V. c. 48, s. 3'!) (12); 39 V. c. 34, 8. 2. lencM. doL's, running at large, &c." lict it be observetl that the power either i,o restriiin, reguhato or kill is only to l»e exercised as to "dugs running at large." Therefore, where an officer, under such a I'y-law, entereil a »lwelling bouse, took the tlog fronx the dwelling iiouw, ami afterwards killed it, he was held liable to tlie o ner. liithnii v. Fahiiij, 15 Ciray (Mass.) (51 ; Kerr v. Sravi'r, 11 Allen (Mass.) 151. if the power were to kill " whenever and wherever found," the oliicer would I'.vvc a riglit iiencealdy to enter for that purpose, without jur- niisaidn, u[)on the close of tlie owner or keej)er of the dog, and tlurt kill it. Jildir V. Fori'liitnd, \ Am. 11. 94. Ah to when doip can \k said to be " running at large," see Coniiiioiiurdlt/i v. JXnr, lO .\lit».. (Ma.S8. ) 38'J. The Council of a Township has no power to appmiiiiatc the revenue arising fron; a tax imposed on the owners of dogs in iint part of tho Township to the improvements of jmhlic streets ami to other purposes witliin the limits of such part. //; re Jikhumd v. Front of Ltvdit and J^andmluwn, 8 U. 0. Q. B. 5G7. (o) Besides the power to restrain, regulate and, if necessary, k;ll dogs under the operation of By-laws, the adilitioual j-ower here conferred is to provide )>y By law for imposing a tax on the owners, possessors or Imrbourers of dogs. It is generally observed thatwiieu Assessors pay visits m the discharge of their duties there are mnny dogs without owners. But in order that some person may be taxed for the possession of such questionable property, provision is iii:ule for the taxation of the possessors or narbourei-s thereof. " lli« imposing a tax is to ba looked upon rather as a measure of revenue than as a mode intended to be pointed out fc indirectly restrainius or prohibiting the keeping of dogs l)y imposing a tax on them." /"" Robinson, C. J., in McKi'nzie v. Campbell, I U. C. Q. B. 24<). Sw further Kev. Stat. Ont. c. 19-1, and WiUkuns v. Port Hope, 27 I. <-• U. P. 548. ip) See note n to sub. 10 of this section. (q) An owner or occupier of lands, though bound to take care that his cattle do not wander from his own land and stray upon the lands of another, is not by the common law under any obligation to put up *i; s. 461.] FENCES. Division Fences. 389 13. For regulating the height, extent and description of ^▼'"'on lawful division fences ; and for determining how the cost there- cost thereof, ofsliiillbeapiwrtioned ; and for directing that any amount so aitportioned shall be reco%ei'ed in the same manner as jten-ilties not otherwise provided for may be recovered under Provirion this Act ; (r) but until such by-laws are made, the Acta ""Jj^^'^"**'* or miiiitain a fence. IfUfon v. AnirnMoti, 27 L. T. N. S. 519 i<]x. ; see als.) IIV//^v. Howfll, 19 Johns. (X. Y.) .385; Stafford v. In>jern(>l, 3 Hill i.V,Y.).38; Laurence v. Jenkim, L. R. 8Q. B. 274 ; Erxkiiiev. Aileane, I. R. 8 Ch. Ap. T^fi. Such an oblic.ation can only be foundctl upon jutHcriptive statutory obligation, by-law, agreement or covenant. Ih. If the (il)ligation to fence exist, it is in general absolute- -the act of (IikI or CM vKfjor only excepted. It is no defence therefore, in such a cise that the (lefen jjiloit of it leprives the person upon whom the duty devolves of the right to ciinplain of injuries suffer'^d by his animals, ('hicinuaU II. d- D. Rail- ("vi Co. V. Waternoti, 4 Ohio Si;. 424, or by the entry of animals on his land for want of a sufficient fence. York v. Davix, 11 N. H. 241 ; See also Rud v. Loir, fi Mass 90. Where the Legislature imposed a [leiialty of 8100 upon railways for every month's delay in performing the iluty of maintaining and keeping legal and sufficient fences, it n% litld that the neglect of the Corporation to perform the duty rendered them liable to reimburse any person sufiFering injury there- I'V. Xorr'ui v. Androscoiig'm Jinilrocul Co., 39 Maine 273. So it ias lieeu held that any one who voluntarily suffers his cow to go at large in the public streets of a city contrary to its By-laws, with no 'ine tn taks charge of her, and thus to stray upon a railroad track at the time when the cars are i)as&ing, cannot recover against the com* l»ny without proof of gross negligence on their part. Bowman v. TM,ml B<^t,m R.iilroad Co., ,^7 Barb. (N. Y.) 5115 ; see also Belh- J'fumund Imliwm Railroad Co. v. Baitet/, 11 Ohio St. 333 ; Xomj^j- "11', .(•(•., Railroad Co. v. Ballard, 2 Met. (Ky.) 177. (f) Tlie powers uere conferred are — J; " For regulating" the height, extent and description of lawful nimon fences ; 2. "For determining" how the cost thereof shall l)e apportioned ; 3 "For directing" that any amount so aoportKmejh. ace Smith v. A 'ja- im/u Canal Co., 2 Allen (Mass.) 355. («) If any owner, possessor or occupier of Innd luiowiugly su""!' any Canada tliistles to grow thereon, and the seed to ripen so as to cauac or endanger the spread thereof, he ia liable to prosecution, ll^v. Stat. Ont. c. 188, a. 1. A person knowingly selling any crass or other seeil among which there la any seed ot the Canada tJiistle, is il*' liable to prosecution. /It. sec. 9. Overacera of higliways may, *™ the authority of the Municipal Councils of which they are otfaceR, enter on lauds for the purpose of destroying Canada thistles. / '• sec. 3. (r) The streets, roads and laues of a City, Town or Village shuuil, BUBNir Burt 17. For regulatin lugs, trees, brush, st in or burned in th( lioM to be observec luch fires being ki 3:9(17). in tk interest of publi( ofaniin.'ils, and other the strt'uts would Ite tl pcliiic to the healthy ibouiii i)e of the first Cnniiiiiiiham, 1 l)enio (1 ikle (>8ence to expose imall |M)X, on a puidic ^ 'I'i ; Tilt KliKj V. Jiu lie) The jwwer here j I. The tivivH during m (luviugs or refuao may :'. .\d(1 for prescribiuj 3. .And for preventing. The kindhng of a tli exists, ut a time other ■iijrcprd of the prec*u V strung if not couclusi Where the owner ol lies his land in the on iliould l)e thereby occaai to 'laiiiages. But if he M naturally come upon [ ^mw mischievoua if i I ;l'>iiii; lie may act withou j » 'lahlf to damages for r. MiiKh, L R. 1 Ex. : ''■ Tvi''»\ L. R. 6 Kx 2 •< Fnl,h,, L. 15. 7 Q. B lit Stems, for the presi iftitiiiL'. Buchanan v. l I'p llnilmnf Co., 33 U ntisiiutvery long since I m the land is cleared it I us iieoessary part of the wat this business of cleai I pose to be within the re tuae or in a manner that hccident heyond the con I art uf not having taken , Jijience. IW Robins M^ «8, 450 ; fl^e also Hyc, t 461] BURNING STUMPS, TREES, BRUSH, ETC. Burning Stumj>$, Jiruah, e of tl>u tirst concern to Municipal bodies. 8eu J'eojile. v. i'wimii'jkim, 1 Denio (N.Y.) 524. It has been held to be an indict- ibl« iifieiice to expose a person having a contagious disease, as the mall |H)x, oil a pulilic highway. The Kluij v, Vantainlillo, 4 M. & >. ;,) ; riit K.mj V. Burnett, lb. 272. If) Tho power here given is for regulating — i. Tk timm during which stuuips, wood, logs, trees, brush, straw, !liaviu|,'8 or refuse may bo set on tire or burned iu the open air ; '.'. And for prescribing precautUmn to be observed (/uri'«[/ ^uc/t times ; 3. And for preventing fires being kindled at other times. The kindling of a fire, in a Municipality where such a By-law exiiW, at a time other than that prescribed by the By-law, or in lijrcgard of the precautions made necessary by tho By law, would "v strung if not conclusive evidence of negligence. Where the owner of land, without wilfulness or negligence, 'M hi^ land in the ordinary manner of its use, though mischief I ihoulil \k thereby occasioned to hia neigldwur, he will not be li.ible w laiiiages. But if he bring upon his land anything which would M naturally come upon it, and which in itstjf isiUingeroua, anil may Wnme mischievous if not kept under proper control, though in so lioiiij; he may act without personal w^lfiihiess or negligence, he will 1 1« '.iablf to damages for any mischief thereby occaaiont-d. FIrtcher ' I'iil'mh, L K. 1 Ex. 265, 279 ; .S'. C. L. K. 3 H. L. 3.'10 ; Cir-itnirn ' 'M'»\ L. K. 6 Kx 217 ; SvMh v. Fletcher, L. R. 7 Kx. ;W5 ; Hom n Fi'^hkii, L. It. 7 Q. B. 661. But so far as tire is concerned, the iiw seems, for the present at all events, to stand upyn a tliCFerent !*'tinx. liiichnnan v. Youiuj, 23 U. C. 0. P. 101 ; (nUnon v. Xorth \p Ilnilwa,, (Jo., 33 U. C. Q. B. 128 ; S. C. 35 U. C. Q. B. 475. ri'i' r* ^'"^^' ^°"'' since this country was altogether a wilderness. m the laud is cleared it can proy whime m ;'li- gKUCo or that of iiia sorvant'i a tire nrigea on hi» [jnaiiixeB niul lUmak't* tho projiorty )f another. FiUitir v. Phip/Hinl, 11 Q. R .347 , Vt also lianiiue lawful for tho Council of any Muiiici- LireniM not r4l(Vr|iomtion, or the Oomniissionci-s of Police in any City, ^, ceruin tfi prant licensos or licunHo c—'' \tfin to |>erHonH havinj^ *'">•• »«>«i tjliliitions of any work or circuh-.. .ing, or other Hh()WH of a "^ likp chiinirtor, or places of ^anilding, or to those en;?ii;,'t'il iu trutiio ill fniitH, goods, wares or nierchandiHe of whaUner dfficriiitioii, for gain. «)n the days of the Exhibition of tho AiH'it'"''"""''' ■'^'^*^"*^'"'t'*^" "^ Ontario, or of any Electoral Dis- trict or Township Agrictiltural Society, either on the grounds of such SociftVt or within the di8ty means of a li''n,c, lint in no case is the lieense t to prevent, or regulate and license. This intemla a discretion to be Hercised under all circumstances and iu all places. But the latter pirtnf the subsection takes away the discretion.ary power under the ci^■umstaneo8 stated. In no case is it to be exercised "on the days tftheexhiliition of the Agricultural Association of Ontario or of any tltttoral district or Township Agricultural Society, either on tbo gmniids of such society or within the distance of 300 yards from Wch grounds. (:) The proper interment of tho dead is a matter that deeply con- cms the health of tho living, and is therefore a proper subject for •Mnnicipal control, lioyart v. JmnminpoHn, 13 In. C. (N. Y.) 237 ; Prcxhytcnan Church v. AVir York, H'ciw. (N.Y.) 1^38 ; Contra v. Xeiv York; 7 Cow. (N.Y.) 585 ; f'ommoH- >^nllh V. Fahfij, 5 Cush. (Mass.) 408 ; Xew (h-lenm v. St. Loiiin ijiurrh, 11 U. An. 244 ; Coinmoinoealth v. Oootlrkh, 13 Allen (Mass.) ^; See also, VharlcMon v. liaptint Church, 4 Strob. (S.C.) 30()-309 ; ^'I'^rmf v. Catholic Church, 10 La. An. 431 ; AuM'mv. Murray, 6 IVk. (Mass.) 121. It has been held in the United States thdt wnals are not nintters of ecclesi ustical cognizance ; that the right to 50 ^ t I IMAGE EVALUATION TEST TARGET (MT-3) /. ;% >% 1.0 1.1 ■ 1.8 ||l.25 1 J4 ||6 V] n ^;; y /^ Photographic Sciences Corporation 23 WfST MAIN STREET WEBSTER, N.Y. 14S80 (716)873-4503 '<^ 'V- \ o^ 394 THE MUNICIPAL MANUAL. Shade Trees. [8.461. I' I En«»»gin8 20. For allowing to any person who plants any fruit trees MrtointiMi, or any trees, shrubs or saplings, suitable for affording shade *^- on any highway within the Municipality, (a) in abatement of statute labour or out of the general fund, a sum of not less than twenty-five cents for every tree so planted ; 36 V. c 48 8. 379 (20). See also Rev. Stat. c. 187. " " ' Injwriea to Property and Notices. Ornamental '^^' ^o^ P^'^venting the injuring or destroying of trees or tree*. shnibs planted or preserved for shade or ornament. ; (i) and bury a corpse and preserve its remains is a legal right, belonging, in the absence of testamentary disposition, exclusively to the next of kin, and includes the right to select and change the place of sepul- ture at pleasure, and that if the place of burial be taken for public use, the next of kin may claim indemnity for the expense of removing and suitably interring the remains, la re Beekman Street, i Btm. (N.Y.) 503-532 ; see also Botjart v. Indianapolli, 13 Ind. 143; hn Brick Presbyterian Church, 3 Edw. Ch. Rep. (N.Y.) 155. Lmmi v. Plitt, 13 U. C. L. J. N. S. 112. It ha<; been held .that it is an indict- table offence to take up a dead body even for the purpose of dissec- tion. Common decency requires that such a practice should he pre vented. The bare idea of it makes nature revolt. It ia an offence against decency to take a person's dead body with intent to sell or dispose of it for gain or profit. It has been held that to sell the dead body of a capital convict for the purpose of dissection, where ihs- section was no part of the sentence, is misdemeanor, and indictable at common law. 1 Russell on Crimes, 4th ed. 629. (a) The policy of the Municipal law is to encourage the planting of trees on public highways ; ancl in furtherance of this policy, pro- vision is here made for the passing of a By-law allowing a sum of not less than 25 cents for every tree planted on a highway, provided it he suitable for affording shade. If ti^< trees are not suitable for shade, the power cannot be exercised. Shade trees planted by « land-owner between a carriage path and a sidewalk are not to be deemed a nuisance. Graves v. Shattuck, 35 N. H. 258. (6) It was held in the United States— under a general power "to ordain such laws, not inconsistent with the Constitution and laws of the State, as shall be needful to tlie yood of Uie City "—that the City had power to pass a By-law imposing a penalty upon any person who should mutilate or destroy any ornamental tree planted in the streets, lanes or other public places of the City. State v. Merrill, 37 Maine 329. Whatever doubt there might be as to the power under » statute so general as that quoted, there can be none under the sub- section here annotated, which is "for preventing the injuring or deMroying " of trees or shrubs planted or preserved for shade or ornament. In order to sustain a charge under such a By law, it would not bo necessary to show that the injury or destruction wa» either wanton or malicious. If any person unlawfully and uialicioualy '!! LAYING DOWN GAS AND WATEK PIPES. 395 3. 461.] the liefacing of j)rivate or other property by printed or other notice3j(c)3CV. 0.48,8.379(21). .10 For preventing the pulling down or defacing of sign- Signs. boards (d) and of i)rinted or written notices lawfully affixed ; (,)'36V. 0.48,8.379(22). Gas and Wetter Companies. 23. For authorizing any cor|>orate Gas or Water Company Authorizing to lav down pipes or conduits for the conveyance of water or ^^Ttwcom- m under streets or public squares, (/) subject to such regula- P«"\'es to lay tiuus as the Council sees tit ; 36 V. c. 48, s. 379 (23). ete. ' cuts, breaks, barks, roots up, or otherwise destroj-s or damages the whole or any part of any tree, sapling or shrub, or any underwood res^iectively growing in any park, pleasure ground, garden, orchard or avenue, or in any ground adjoining or belonging to any dwelling house, the offender, &c., is guilty of a misdemeanor. Con. Stat. Cm. cap. 93, sec. 24 ; see further note » to sub. 16 of sec. 454. (') No one has a right to ir-jure the property of another with a new to gain or otherwise. Po&ting up placards against house walls, ic, may be a defacement thereof, and so a legal injury. Tlie object (if '.Ills subsection is to authorize the passing of By-laws to prevent such injuries. i'l) The pulling down or defacement of signboards is an amusement to which young men in a frolic often resort, without any regard to thi consequences. It would be well for all such to know that persons tearing down or defacing signs are liable to be proceeded against as vagrants. .See 32 & 33 Vict. c. 28, s. 1. (') "Lairfulbj aflfixed." See note c supra. (/*) In general, the sanction of the Legislature, or of some Munici- jal authority having the power to confer it, is necessary to authorize the laying down of gas pipes under streets or public squares. EUit V, Sl.ffielti Gas Co., 23 L. J. Q. B. 42 ; The Quetn v. Lonqton Gas Co., 2E.iE. 651 ; see also The Queen v. Charlesworth, 16 Q. B. 1012 ; llwiiimiv. Train, 9 CoxC. C. 180; Thompsonv. Sunderland Gas Co., I LR. 2Ex. Div. 429 ; BosUm v. liichardson, 13 Allen (Mass.) 14«, 160; h^QTunch City Gas Co., 25 Conn. 19. The laying down of water pros of course stands on the same footing. Milhau v. Sharp, 15 Barb. 1>Y.)210; Kekey v. Kinq, 32 Barb. (N. Y.)410; Commissioners y-lUvim, 2 Beas. (N. J.) 420. An agreement between a Highway wd and a Gas Company, that if the former would give the latter a hcense to open a certain pubhc highway the latter would make good tte expense of the road, and pay one shilling per yard for so much of ™ highway as opened, is a valid agreement. Edgeware Hii/hwaij \li-ml V. Harrow Gas Co., L. K. 10 Q. B. 92. A County Council 396 THE MUNICIPAL MANUAL. [s.461. ;*v!!v; Takinjt stock 24. For acquiring stock in, or lending money to, anvsiicli water com- Company ; and for guaranteeing the payment of money bor- panieB. rowed by, or of debentures iasued for money so bon-owed bv ProTiao, the Company : provided the by-law is consented to Ijy the H d of cor- 6^6ctors, as hereinbefore provided, (g) In snch ca.-ie the head poration to of any Corporation holding stock in any such Company to the j„^j^j^'^'^°'" amount of ten thousand dollars shall be ex q/^"c?o a director cases- of the Company in addition to the other Directors tJiereof, ih and shall also be entitled to vote on such stock at anv elec- tion of Directors. 36 V. c. 48, s. 379. (24). Pvhlic Morals. Saleofin- 25. For pi'cventing the sale or gift of intoxicating drink ^nifto^ to a child, apprentice or servant, without the cotisentofa children, etc. parent, master or legal protector ; (t) 36 V. c. 48, s. 379 (31). has no power, in the absence of express Lgislation authorizing it, t*■ ■■.■ KxhlWOom, 29. For [ireventing or regulating and licensing exhibitiftR, **"' held or kept for hire or profit, Ijowling alleys and other places of amusement ; (w.) 36 V. c. 48, s. 379 (35). a purpose is lawful. lb. But thongh destruction of the h(n;5.> •would be a means of suppressing it (see note ;i to sub. 10 of this sec- tion), it would seem that power to demolish is not to be inferreil fri.m the power to suppress. Welch v. Stowed, 2 Doug. (Mich.) S,"}-! The huildituj in which a particular trade is carried on, or the home which may be kept in a disorderly manner or used for unlawful purpciscs, is not per ne a nuisance. It is the misuse or abuse of it that constitites the nuisance. Biirdiff v. tSwenaon, 17 Texas 489 ; Darijanw. WwlUV 9 Ire. T/nv (N. Car.) 244. The property in the tenement is thercr'nre protected against destruction. Miller et, al. v. JJiircli, 32 Tex;is "OS ■ S. C. 5 Am. 242 ; HV/c/t v. Stowe.ll, 2 Doug. (Mich.) 33.S ; see also i7;i V. Siij'crritors, 3G N. Y. 297. A house which is only a nuisance becnuse occupied by one who carries on a business that is a nuisance cannot l)e destroyed. Clark v. Syracuse, 13 Barb. (N. Y.),32. In prosecutions for keeping bawdy houses, evidence may be given as to the coninion reputation of the defendants. State v. McDowdl, Dmlkv (S. C.) 34G. Where detendants, as master and mistress, resiile4 iu a house to which men and women resorted for the purpose of prosti- tution, l)ut no indecency or disorderly conduct was perceptible frum the e.xtcrior of the house, it was held, notwithstanding, that defemisiitj were rightly convicted of keeping a house of ill-fame. The Qit'-fu v. Jilce et al., L. R. 1 C. C. 21. A conviction, for that the defembnt did on, &c., in the City of Toronto keep a common disordarly b.aw4y house on Queen Street, in the same City, a place of resort for i^th men and women of lewd character for the purposes of prostituti 'U was held to be sufficient. The Queen v. Mun 'o, 22 U. C. Q. B. 44. But a conviction under Dominion Act, .32 & 33 Vict. cap. 28, Tor that defendant was in the night-time of the 24th Feljruary, 1870, .i common prostitute, wandering on the public streets of Ottawa, and not givin^' a satisfactory account of herself, contrary to the statute, was lield bad for not shewing sufficiently that she was asked before, or at the time of being taken, to give an account of herself, and did not satis- factorily do so. The Queen v. Levec/ue, 30 U . C. Q. B. 509 ; see further The Queen v. Smith, 35 U. C. Q. B. 518. (Hi) Under a power to a Municipal Corporation to make "Bylaws relative to nuixances generally," it was held that a By-law might be passed prohibiting the keeping in any manner whatsoever uf a " bowling alley for gain or hire. Tanner v. Albion, 5 Hill (N. Y.) 121 ; Updiike V. Camphrll 4 E. D. Smith (N. Y.) 570. But this is contrary to The People v. Serqeant, 8 Cow. (JSf. Y.) 139. See also Jachm v. People, 9 Mich. Ill ; Smith v. Madison, 7 Ind. 8G. It has been luhl that a ten pin alley is not per se a nuisance. State v. Hull, 32 X. -J- 158. Where the power to the Corporation is to determine whither bowling alleys shall be allowed, and if so, under what restrictions, a By-law requiring f.hem to be closed at a certain hour was held va!ki- State v. IJai/, 29 Maine 457 ; see also, State v. Freeman, 38 X. H. 426. The power by this subsection conferred is not only to regulate, and license, but prevent exhibitions held or kept for hire or profit, bowling alleys, and other places of amusement. A skating rink i«th & 461.] OAHING — RACING — VAGRANTS. 399 30. For suppressing gambling houses, (n) and for seizing Gwnin^ and destroying faro-banks, rouge et noir, roulette tables, and other devises for gambling found tlierein ; (o) 36 c. V. 48, 5.379(36). 31. For preventing horse racing ; (p) 36 V. c. 48. s. Racing. 379 (37). 32. For restraining and punishing vagrants, mendicants, Vagrtnto. and i)ersons found drunk or disorderly in any street, highway or public place; (q) 36 V. c. 48, s. 379 (38). The Queen v. Tucker, L. R. 2 Q. B. music is a place of amiisement. Ihv. 417. (ill Power to mppresn gambling houses does not, it is apprehended, Anthorize tlie Corpor.ition to demolish tiie houses so used. All com- mon gaming houses are nuisances in the eye of the law, being detri- mentil tci the pubhc, as they promote cheating and other cornipt practices, and entice numbers of persons to idleness, whose time mJL'ht be otlierwise employed for the good of the community. 1 Hawk. P. C. cap. 32, s. 4. See further Mit^sumippi Soriett/ of Arts V. J/iw/roiv, 7 Am. 723 ; Afoore v. The State, 12 Am. 367 ; Jioslei/ V. Airi's L R. 1 Q. B. Div. 84 ; ^ y. B. 580 ; State v. Book, 20 Am. Brodie and BowmanvlUe, 3 U. GOD. C. [()) As to the power to iteize and (leafroy private property, when necessary iu the public interest, see note I to sub. 18 of section 454. (p) The power is to prevent horse-racing. A former Municipal Act was to " prevent or regulate." Horse-racing is not under all circumstances illegal. Oliph 'nt on Horses, 3 ed. 412. No jjerson is, KoHcver, permitted by the law to run a horse at a race unless it is ilia own, nor to enter more than one horse for the same " plate," upon iain of forfeiting the horses. 13 Geo. II. cap. 19. sec. 1. No party can recover a wager on a horse race that is illegal within the statute. Shddou V. Law, 3 U. C. Q. B. O. S. 85. The proprietor of a race- course is not responsible for the " purse,'* unless upon clear i)roof of an express understanding to that effect. Gaten v. Timuu■ erected for evidencing the same, {t) 3G V. c. 4t! s 379 (25). , .. second, rogues and Vcagabonda ; and, third, incorrigible rogues. So; further, aeo. 451 and notes thereto. (»•) The power is to prevent indecent puhlic exposure of the persfin and other indecent exhil)itioiis. In order to render a person liable to an indictment for indecently exposing his person in a public place, it is not necessary that the exposure ahouhl be made in a place open to the public. The Queen v. Thallman, 9 Cox C. C. 388 ; .y. C. !) L. T. N. S. 425. If the act is done where a great nundjer of persons may be offended by it, and several see it, it is sufficient. ."/. If the indictment, however, charge the offence to have been coiiiniitteJ wi a highway, such an indictment will not be sustained by evidence that the ofl'ence was committed in a place near the highway, though in full view of it. The Queen v. Farrell, 1) Cox. C. C. 44t). An iml'e- cent exposure in a place of public resort, if actually seen by only one person, no other person being in a position to see it, is not an in- dictable offence. The Queen v. WeOh, 1 Denn. C. C. 31^8 ; Tlif (^'unn V. WatMn, 2 Cox. C. C. 37G : The Queen v. Farrell, 9 Uox. C. C. 440. A party was indicted for an indecent exposure in an omnibus, several passengers being therein. Held, a public place. Tin' (Jum V. JJohiien, 3 C. & K. .3(50. But a urinal, with boxes or divisions for the convenience of the public, though situated in an open market, was held not to be a public place within the meaning of the allega- tion. The Queen V. Orchard, 3 Cox, C. C. 248. Keeping a booth in a public place containing an indecent exhibition for hire, is an in- dictable otfeuce. lieijlna v. Saunders, L. 11. 1 Q. B. Div. 15. {s) Whatever place becomes the abode of civilizeil men, there the laws of decency must be enforced. The Queen t, Crumkn, 2 Camp. 89. Bathing in the sea on the beach near inhabited houses, from which the person may be distinctly seen, is an indictable offence, although the houses may have been recently erected, and till then it it may have been usual for men to bathe in great numbers at the place, lb. (<) See note/ to sec. 14. ,462,] ESTAULISilINU BOUNDAIIIES. 452. In cose the Council of any Township, City, Town or jjif,„.|^>rat€(l Villago adopts a resolution on the application of one half of the resident landholders to he affected thereby, ur iiixtu ite own motion, that it is expedient to place durable nioiiuiiicnts at the front or re!ir of any Concession or range or [lart thereof in the Municipality, or at the front or rear amies of the lots therein, (a) the Council may apply to the Lieiiteimnt-Governor, in the manner provided for in the tbiitv-ei^hth to the forty-fifth scictious of The Act reajicctiiKj Inwl Sin-vei/oi-s and the Survpy of Landa, praying hitn to Ciiiise a survey of such concession or range, or such j»art tbcifof. to be made, and such monuments to bo placed inider tLe imthority of the Commissioner of Crown Lands, (6) 2, The pei-son or persons making the stn-vey shall accord- iiijlh- plant stouea or other durable monuments at the front or at tiie lear of such concession or range, or such part thereof as iituresaid, or at the front and rear angles of every lot therein (iis the case may be), and the limits of each lot so a.>ceitiiiiied and marked shall bo the true limits thereof; (c) 401 Plactng landmark* and .nonii- mentii or marking boundarieg of con- opHiioni, lota, etc. l!cv. Stat. c. 14t), u. 38- 46. Cost of survey. ('() In the absence of such an application and such a resohition as the statute recjuires to autliorize an application to the Governor to caiisu the survey to be made, the survey would ho held unauthorized. '■-//-fc V. WAIhanhx, 14 U. C, C. P. 364. Where it was shown that the apiilicatioii was made, not by one half the resident land-holders t' k' atfecteil by the survey, but by ten freeholders, over half of »hoiii had no deeds for their lands, and that eleven or twelve free- i lUera who would be affected by the survey were not parties to the ipl'lit.'.tion, the survey was held to be unauthorized. lb. See fur- tiier. Thf. Queeu v. McOrenor, 19 U. C. C. P. 69 ; Boley v. McLean, 11 r. C. Q. E. 260. (4) The 38th section of Rev. Stat. Ont. ch. 146, recites that in several of the Townships in Ontario, some of the concession lines, or parts of the concession lines, were not run in the original survey performed under competent authority ; and the suri-eys of »me concession lines or parts of concession lines have been obliter- ited, and, owing to the want of such lines, the inhabitants of such concessions are subject to serious inconvenience, and for remedy [Willed that tiie C!ounty Council of the County in which any Town- Mip in Ontario is situate, may, on the application of one-half of the resident landholders in any concession, or without such ipplication, make application to the Lieutenant-Governor, requesting Mm to cause any such line to be surveyed and marked by permanent stone boundaries, under the direction and order of the Commissioner of Irown Lands. '<•) If the survey proceed otherv/ise than as directed by the statute,. tHesurvey wiU be unauthorized. Tanner v, BUsaell, 21 U. C. Q. B, »3 ; Boley v. McLean, 41 U. C. Q. B. 260. 51 ( \i'V t I I :':;:. 1:1 402 CnieltT to animui. Providing pound*. THE MUNICIPAL MANUAL. [8. 463. and tho costs of the survey Hhall be defrayed in the manner prescribed by the said statute, (d) 36 V. c. 48, s. 380. Pounds, Jcc. 463. The Council of every Township, City, Town and in- corporated Village, (e) may also pass by-laws (not inconsUtent with the Statutes of Canada respecting cruelty to Ani. mals,)— ( /) 1. For providing sufficient yards and enclosures for the safe keeping of such animals as it may be the duty of the pound-keeper to impound ; {g) (d) All expenses incurred in peforniing any survey or placing any monument or boundary under the provision of Rev. Stat. Out. ch. 146, must be paid l>y the County 1 reasurer to the person or per- sons employed in such survey, on the certificate and order of the Commissioner of Crown Lands. Sec. 42. The Council shall cause to be laid before them an estimate of the sum requisite to defray the expenses to be incurred, in order that the same may be levied on tho proprietors of the land in proportion to the quantity of land held by them respectively in such concession or part of a concession, in the same manner as any sum required for any other purposes authorized by law may be levied. Ih. sec. 41. A By- law to levy tho amount "from the patented and leased lands," ii bad. In re Scott and Peterhoroiufh, 25 U. C. Q. B. 453 ; In re Scott and Harvey, 26 U. 0. Q. B. .32 ; In re Scott and Peterborough, lb. 36; PeterhoroiKjh v. Smith, lb. 40. (e) Counties not included. (/) See note m to sub. 9, of sec. 461. (r/) The Pound is the custody of the law. Wooley v. Groton, 2 Cush. (Mass.) .S05. The pound-keeper is bound to take and keep whatever i» brought to him, at the peril of the persons who bring it. If wrong- fully taken, they (not he) are answerable. It would be terrible if the Pound-keeper were liable for refusing to take cattle in, and were also liable in another action for not letting them go. When once the cattle are impounded, he cannot let them go without a replevin brought against the distrainor, or without the consent of the party impound- ing. The replevin lies against him who takes, or him who commands the taking ; the Bailiff who seizes and the party who directs the seizure may both be sued. But the situation of a Pound-keeiier is not that of a BailiflF or servant. He is a public officer, discharging a public duty, and this as much in the keeping as m the receinng. Warden v. Chisholm, 9 U. C. C. P. 125 : see further, Clarke v. Dur- ham, E. T. 3 Vict. R. & J. Di;;., 2866 ; Carey v. Tate, 6 V. C. «. B. 0. S. 147 ; Isley v. Stubb^i, 5 Mass. 280 ; Smith v. limtwg- ton, 3 N. H. 76. Being a public officer, discharging a public duty, he is entitled to notice of action under Rev. Stat. Ont., cap, /J. Deniaon v. Cunningham, 35 U. C. Q. B. 383 ; Davis v. WiUiains, U t. C. C. P. 365. lu the declaration, it must be averred that he actea s. 463.] POUNDS. 403 2 For reetraining and regulating tLe running iit large or Animait tre^iMing of any animals, and providing for impounding "^** them ; and for causing them to be sold in case they are not cliiiinwl within ii reasonable time, (A) or in case the damages, tines ami expcnsoa are not paid according to law ; maliiiously and witlioiit reasonable or probable causo. Ih. The law wimld be different if the round-keeper voluntarily parts with the k -al control of the animals impounded, or impounds them in any (ither place than that prescribeii by law. liUh v. KitmoH, 1 Post. (N. H.) 448. Breach of a pound and liberating an animal therein con- tiiied was held to be no violation of a By-law prohibiting "any per- >n\\ from ouposing or interruping any City officer in the execution of the onlinances of the City." Mat/ t!/ur, 'ity etc. V. Onihurij, 22 (Jeo. 67. (/i) The powers are : 1. VoT rentrnlnitiij or rcjulating the running at large or trespassing of any animals : 2. For mpoundinij them ; 3. For causing them to bo unhl in case they are not claimed within ,1 rtasonablo time, or in case the damages, tines and expenses are not paiil according to law. This sub-section applies in terms to all animals. See note vi to sab. 9 of sec. 461. As to dogs, special provision is made for their destruction when running at Targe. See sec. 461, sub. 10, and notes thereto. The evils to be apprehended fi'om cattle, swine, or poultry running at large are mere injuries to private property and to the ne.itne88 and good order of the City or Town. It would not be either reasonable or necessary to allow the destruction of valuable tloipestic animals in order to prevent the risk of such injuries. Im- pounding till the damage is paid, is the more natural remedy, which the common law has sanctioned from an early period for an injury to private property ; and fine upon the owner seems to answer all the puri)08cs of preventing the puolic nuisance. Nevertheless', the Legisla- ture may by law sanction the more vigorous course of allowing a for- feiture and sale of the animal. Per Kobinson, C. J., in McKevzie v. Cmphdl, 1 U. C. (.i. B. 260. It is in the power of the Corporation tir may bo held to liave forfeited the proteetiita of tlie statute. .Vdr- ifi'init V. Allen, 2!) L'.C. Q. B. 384. It has beea hold tiiiit a mas- ter is lial)Ie for the acts of his farm servant in impounding cattk' in his altaencc, tlu! servant acting within the scope of iiis autlidritv. S}>(i[lunl V. I/iiliblc, K. T., 7 Will. IV., It. & J. Dig. '2SM. h treapasa against two defendants for seizing and taking cattk, uii/ defendant justitied as l*ound-keci)er ; and because the cattle wtru i;i the close of A., wrongfully trespassing in said close, and eating gra-s and corn therein, A. took the said cattle and delivered them to thu defendant as a Pound-keeper within his jurisdiction, and tliu ilcfm- dant impounded and afterwards sold them according to law ; ami tliu other defendant jviatitied the seizure and the sale by the rmui'l- keeper, as in the other ple.a, and that the defendant bought thi; i.u tie as the highest bidder ; to both of which pleas there was a ceiiera! demurrer. J/cId, that the plea by the Poaaddceeper wivs ball, as it did not show that ho received the cattle from a person in7/(y;i /ii< divmou, or thAt the close it'dx ho Hilitate, and that the plea of the jmr- chaser was good, 09 ho could not be held liable to the jilaiiitill in trespass. cTarke v. Duiiiani i-t «/., E. T., 3 Vict. K. & J. i'ig' 28(iG ; Rourke v. Muney, 30 U. f !. Q. B. 54(). In a plea of justitita- tion by a Pouad-keeper for takiag a pig, when the justitlcatiou was that the pig, contrary to Township rcgiilati(jns, broke throiigii a law- fal feace, it was held accessary to JiJlege that the fence was witliiii that Towaship, aad to show the close in which the pig was tr^pass- ing at the time. Vareij v. Tnte, U. C. Q. B. 0. S. 147. A Bylaw eaactiag that certaia aaimals 8})ecitied shall not run at large, Jiiii not impliedly allow others not named to do so, contrary to tLe cum- moa law. Jack v. The Ontario, Simcot and Huron li. W. Co., 141. C. Q. B. 328. (/) Aa actioa of trespass will lie by the owaer of a farm into whioli a neighboar's pigs may break, eater aad do damage against tlie owner of the pigs, unless he can excuse the act for defect of fences or upoa some other ground that ought to be specially pleaueii. Jilnck'ock V. MiUikan, 3 U. C. C. P. 34. So trespass is niaintaiuaMe against the owner of a bull which broke into the plaintiff's farm ainl '^'i"i,' told of the mischief *. 4C4.1 PUIILIC IIEAI.T'1. 405 4. FordeU'i-miuiJigtlic compon.sation to b« allowiul forgor- Compwiit. vicfs midtTcd, in cmrying out tln^ jd-oviHioiw of any Act, (k) Jli",Jt'to with res|K)ct to animals iui[»<)uniill was not present .■\t thi; time or awiiro of tht- ftiet. }f(i'«iu v. Mnnimi, 24 IJ. (!. Q. B. .^I'S. If a liorsf, thronj,'!! tlie nogleot of the owner in not ketM[)ing his fenci's pmiicrly reiiairerl, stray out of tlie Held in whicli it is feed- ing, into tho tk'lil of an adjoininj^ proprietor, and there get among his Imrses ami kick one in such a way as to cause his deatli, snch owner it liable in trespiiss for the injury which hi.s liorso lias done. Lci' v. Hil% IS C. H. N. S. So where defendant's horse injured I'laiiitiff's mare hy l)iting and kicking lier through the fence 8Ci)ar- atiiig the plaintiff s lind from the defenilant's. K/tin v. fjoftiiii Iron I'miipniij/, L R. 10 C. V. 10. W'hetlier at common law the owner of .iiliigis nnsweral/le in trespass for every unauthorizeil entry of tho animal into the land of another, as in the case of jiigs, an ox, or a horse, is il()nl)tful. Untd v. E'/ minis, 17 C. B. N. S. 245. An action "n the case lies against one who keeps a mischievous animal of any liind in respect of any damage done ))y such animal, where it can be shown that the owner knew of the mischievous pro))enHity of the minial. Thomnx v. Monjnii, 2 C'. M. & R. 49(» ; Card v. Ccisfi, 5 C, H. (^22;Mn!/ v. Ihmhit, 9Q. R. 101. See further, AppMwp v. Percy, \-\\. !> C. P. f)47 ; Ward v. lirown, 16 Am. 501. If the owner, upon 'ling toM of the mischief done, offers to settle, this is some evidence "f his knoM-ledgc that the animal was mischevious. T/iomnn v. ■^Hjui, 2C. M. k R. 496; Mason v. Morgan, 24 U. C. Q. B. 328. ■n Xew Hampshire, if animals are found "doing damage," they Mvbe impounded, and appraisers are to ascertain " whether any 'laniage was done." Hfld, that the statute contemplated art tut I and Wit merely nominal damages to justify impounding. OH(jood v. Oreen, (*•) The compensation may he for services rendered with respect to animals impounded or distrained, and detained in the possession of the distrainer. See Dargan v. Davwn, 2 L. R. 2 Q. B. Div. 118. (0 This section is, in effect, the same as sec. 2 of the Public Health Act Rev. Stat. Ont. cap. 190. The preservation of the public health is a matter of paramount municipal importance. Ex parte S/irader, 33 '-al.2(0; AMroolv. CommmnnenUh, 1 Bush. (Ky.) 139; Harrison on- i r*"' ^<'^"'"-(Md.)264;«7iWoM«v. Oijden, 9 Wheat. (U.S.) -Uo. A City Council having power to pass By-laws "to preserve )7 ( ' (;.l. 406 THE MUNICIPAL MANUAL. [8. 464. powera. by-law, delegate the powers of its members as such Health liaydeieg«te Officera to a committee of iheir own number, or to such per- sons, either including or not including one or more of them- selves, as the Council thinks best. 36 Y. c. 48, a. 382. (m) health," was held to have the power to procure a supply of water by boring an artesian well, or otherwise, on a public stjuare, as they saw fit. Lmmjuton v. Pajrpin, .31 Ala. 542 ; see also 7?o//*<; v. Calxit, 28 Ga. 50 ; Hale v. Houyhtwi, 8 Mich. 458 ; see further, sec. 3(56, buK 1. But it has been held that a Municipal Corporation owning lands od a water course distant from the city, had no right — unless acquired hv purchase or by the exercise of the right of eminent domain— to divert water to the injury of other riparian proprietors. Skin v. Bitnlcn 24 Ala. 130. (m) A By-law giving to a Board of Health " general supervision over the health of the city," and " all necessary power to carrj- thu ordinance into effect," was held to include power to rent a Imildin- for a temijorary hofij:ital, to protect the city from an apprehended visitation of cholera, and to make the Corporation liable for the rent although it did not become necessary to make use of the building. Aiillv. LexiiKjton, 18 Mo. 401 ; Barton v. Nem Orleans, 10 Li An. 317 ; Bdcher v. Farrar, 8 Allen (Mass. ) 325 ; ComiiuMwiters v. Pome, 6 Jones, Law. (N. Car.) 1.34 ; Hazeu v. Struuu, 2 Vt. 427 ; Wilkhmnw Albauij, 8 Fost. (N. H.) 9. Such a Board would have nower to make quarantine regulations. jJubo'm v. Auijuafa, Dudley vvieo.) .30 ;.Sy. Louis y. McCoy, 18 Mo. 288 ; St. Louis v. Boffimjer, 19 Mo. 13; Met- calfe y. St. Louis, 11 Mo. 103 ; Mitchell \, Rockland, 41 Maine, 3(i3; 5. C. , 45 Maine, 496. Health officers may enter and examine any premises. Rev. Stat. Ont. ch. 190, sec. 3, and may order tiie cleansing of the same, lb. sees. 4, 5, and may destroy whatever, in their opinion, is necessary to destroy for the preservation of the pul)lic health, lb. sec. 5, may, under certain circumstances, remove inhabitants from their dwelling houses. lb, seo. 7, and remove persons infected with a dangerously contagious or infectious disease, Ik sec. 6. The Lieutenant-Governor may, for purposes of health, under the PuMic Health Act, regulate the entry and departure of boats and vessels, lb. sec. 8, and may by proclamation declare certain rigorous sections of the Act in force in any locality, to be mentioned in the proclamation, lb. sec. 9, and may revoke or renew the pro- clamation, lb. sec. 10. On tlie issue of the proclamation, the sec- tions two to seven of the Act, unless declared to the contrary in the proclamation, are suspeaded, lb. sec. 11, and five or more persons may be appointed a Central Board of Health, lb. sec. 12. The revocation of the proclamation revokes the Board so appointed, lb. sees. 1.3, 19. A Local Board of Health may also be amwintal, Ih. sees. 14, 15, by the Municipal Corporation or Police Inistees, lb. sec. 15, at a special meeting, lb. sec. 16; on failure of which the Lieutenant-Governor may appoint the Local Board, Ih. sec. 17. Until such appointment the ordinary Health Officers of the Munici- pality are entitled to act, lb. sec. 18. The Central Board is em- powered to make regulations to prevent the spreail of infecticin, lb. sees. 20, 21, 24, and re'iuire the Ijocal Board to execute them, Ih. sec. 22, and to remove inmates of infected houses, 76. sec. 23, and I 465.1 INOINEERS — INSPECTORS — GAOL SURQEONS. \For powers of Citiea, Toumshipa, Tovma and Villages as fg lock-up Hcmaes, see sec. 434 ; and as to Tavern and Shop Liteniu, »«« ^w. Stat. c. 181, m. 17, 21, 24 & 32.] 407 V. Powf, llkiniton V. r to make .) 30 ; .S(. 13; J^/ ine, 3(i3 ; miiie any mler tlie itever, in (if the remove e IH-TSilIH Ih. sec. h, umlcr of Iwatj e certain ,entioneil r the pro- the sec- ry in the • persons 12. The ipoiiitei!, iniiinteii, rnistecs, hich the sec. 1^ Mmiici- ,rd is em- nfection, ,huui, /i. i3, anil Division IV.— Powers of Councils of Countim, Citiks and Separated Towns. Rupecting Engineers, Inspectors, Gaol Surgeons, do. Sec. 465 (1). '• Auctioneers. Sec. 465 (2). " Hawkers and Pedlars. Sec. 4C5 (3). " Ferries. Sec. 465 (4). " High Schools. Sec. 465 (5, 6). " Support of Scholars at High Schools and Univer- sity of Toronto. Sec. 465 (7, 8). Endowment of Fellowships. Sec. 465 (9). Public Fairs. Sec. 465 (10). Houses of Hefuge. Sec. 433. (I 465. The Council of any County, City and Town separatod ^•^■^ "*' from the County for municipal purposes, (n) may pass by-laws for— for the following purposes : Engineers — Inspectors — Gaol Surgeons, etc. I. For appointing, in addition to other officers, (o) one or enK^eMsl* more Engineera, and also one or more Inspectors of the impecton, otherwise enforce the regulations, Ih. sec. 26. The expenses of the Central Board are to be defrayed by the Government, and of the Lual Boards by the Municipalities, lb. sec. 27, on orders of the Local Board, Ih. sec. 28. The proclamation, regulations, &c., are to be published in the Ontario Gazette. lb. sec. 29, and the Gazette is made conclueive evidence of the proclamation, &c., Ih. sec. 30. Thereupon inconsistent Bydaws of the Municipality are suspended, /4. sec. 31. Wilful disobedience of regulations, &c., is made penal, " sees. 32, 33. The penalties to be paid to the Treasurer of the Municipality, lb. sec. 34, and oflfencea may be prosecuted notwith- JtejiJinc the repeal of the proclamation, Ih. sec. 35. No proceeding jder the Act is to be vacated, quashed or set aside for want of form, w be removed or removable by t -rtiorari or other process what- wever, Ih. sec. 35. (n) Incorporated Villages not included. (o) The oflGcers whose appointment is authorized are one or more — 1. Engineers : 2. Ingpecton of the House of Industry, Surgeons of the Goal, and other inatitutious under the charge of the Municipality. 408 gaolrar- geoni, eto. THE MUNICIPAL MANUAL. [g. 455 House of Industry ; also one or more Surgeons of the Gaol and other institutions under the charge of the Municipality .m.] H and for the removal 383 (1) of such officers, 36 V Aiictioneers. c. 48, 1 Auctioneers. ¥r ^ Licensing;, etc., hawlters, pedlars, eta ri! V 2. For licensing, regulating and governing auctioneci-s ml other peraons selling or putting up for sale goods, wares merchandise or effects by public auction ; (p) and for fixing the sum to be paid for every such license, and the time it shall be in force ; (q) 36 V. c. 48, s. 383 (2). Ilatokers and Pedlars. 3. For licensing, regulating and governing hawkpn ; petty chapmen, and other persons carrying on petty trades, who have not become permanent residents in the County, City or Town, or who go from place to place or to other men's houses, on foot, or with any animal bearing or drawing any goods, wares or merchandise for sale, or in or with any Iwat, vessel or other craft, or otherwise carrying goods, wares or While it is believed that at common law Corporations have jiower to appoint such officers as the nature of their constitution requires, the implied power, if existing at all, should be sparingly exerc'-ed. See note r to sec. 235. ( p) Power to regulate the conduct of particular trades or oallinp involves the power to license, but this power must not be so exercised as to create a tax or a monopoly. See note / to sub. 5 of sec. 461, A person licensed by a City Corporation to carry on any particular trade or business, is in no sense the agent or servant of the Coruor- ation, so as to render the latter responsible for his acts. Fmck v. Alexandria, 3 Peters (U. 8.) .398 ; but see Cole v. Nashville, i^ml (Tenn.) 162. The granting or refusing of a license is substantially the exercise of a judicial function. Duke v. Rome, 20 Ga. (535 ; The powers here conferred are to license, regulate and govern— 1. Auctioneers ; 2. OtJier persons selling or putting up for sale goods, &c., by public auction. In order to a sale by auction, within Eng. Stat. 50 Geo, III. ch.41, sec. 7, there must be an outcry, &c. See Allen v. Sparl-ltall, 1 B. 4 AL 100. A City Council may prevent sales by auction on the public streets of the city. WfiUe v. Kent, II Ohio St. 650 ; see also SUon V. Mobile, 30 Ala. 640. (7) Apparently no limit is given to the amount that may ^^xactw for the payment of the license, but it must be reasonable. See note w to sub. 12, of sec. 464. 2 nierclwudise for sale, license for exercising aTovrn.and the time providing,' the Clerk tils and the previc jdrties applying for (/■) An enactment of t Cimwrnmilth, 14 Am jictii'eisiierson.d and d h ff Fnnl V. Mc Arthur, (l'« nnt make a man a I r, IMe, 1 Burr. (JOO IhUit, 11 lliist. ISO. pke anil selling goods, ^ ii'r,4B. .tAl.r)10. In D'lt necessary lliat he she ^»k1s. Mdvxun v. Hope k itrs'i:! not having g{ siJii'it iirJcrs for goods, Md nnt to be a hawker. secaL^iiEiig. St.at. 24 & : Lt! ■esti-r ami having a .si Aii"iiey to imrchase the m Mle? v.as applied towards I fcre lievdted to a village s ! 'Wlifluilcnt (lid not conie \ I Kttioii 3 of the Pedlars' »"02; see further, Howe I tt.d necessary to justify a i "rs Act, 58 Geo. III. ch [*rsonslu.uld l)e found tra h/''U U. C. Q. B. 18. h'awmvictionforpeddlinj J"/! of goods should be 8 *'"■",'/, '2 Chit. R. 522 ; T/i M«rty to exemption from 7[^ the hawker exposed I ^"st he shewn that it was a market ,/./ac market ^/./ac**'*^ ■°** the County as are unable to incur the expense, but are de- iege,"etc. sirous of, and in the opinion of the respective masters of such High Schools, possess competent attainments for competing for any scholai'ship, exhibition or other similar prize offered bv such Univei-sity or College ; {h) 36 V. c. 48, s. 383 (7). iitaho Rev. Skit. c. 205, s. 32 (4). 8. For making similar provision for the attendance at any 5|«"" P'o- School, for like purposes, of pupils of Public Schools of attend»ne« (:) See note c to sub. 1 of sec. 454. (a) The Council of each County, City, Township, Town, or Incor- I Mrated Village waa authorized by Con. Stat. U. C. ch. 63, sec. 16, I irom time to time to levy and collect, by assessment, such sum or nuns of money as it may deem expedient to purchase the site or Btes, or to rent, build, repair, furnish, warm, and keep in order a 1 Grammar School House or Houses, for providing the salarj' of the te«her or teachers, and all other necessary expenses of such County Grammar School or Schools. The statute was held to be permissive not obligatory. In re Trustees Weston Gravimar School and Counties U York and Peel, 13 U. C. C. P. 423. But now, see Rev. Stat. Ont. I c. 203 ; In re Trustees of Port Roioan High School, 23 U. C. C. P. 11 ; j /» rt Board of Education of Perth and Corporation of the Toxon of \hA 39 U. C. Q. B. 34 The three Counties of Stormont, Dundas uid Glengarrj' were formed into five High School Districts. Held thitthe aid granted by the Corporation to the High Schools to j Kpplement the Government grant must be an equal special rate jt(«n the assessable property of the United Counties not upon each I Bigh School District, for the sum apportioned to its High Schools. M/mmierfaiK and the United Counties of Stonuont, Dundas and [toyurry, 42U. C. P. R. 279. 1) The provision to be made may be a permanent one. But it But not be for attendance at any other institution than that of the teS'*^"^ Toronto and Upper Canada College and Royal Gram- ( 'i y. !■ li It 1 I 412 THE MUNICIPAL MANUAL. At Wgh Schools. [a 465. the Municipality ; (c) 36 V. c. 48, s. 383 (8). See nho fe Stat c. 205, s. 32 (5). Endowing Fellowships. Dndowingr 9. For endowing such fellowships, scholai-ships or oxhilii- ' In Dni- *" tions, and other similar prizes, in the Univei-sity of Toronto Toronto'ind ^°^ ^^ *^'® Upper Canada College and Royal Grammar fJch4 j u. C. Col- at Toronto, for competition among the pupils of the Public lege. High Schools in the County, as the Council deem exitediea: ^ for the encour.igement of learning amongst the youth tliere- 1 of; (d) 36 V. c. 48, s. 383 (9). See also Rev. Stat. c. 20.) s. 32 (6). Public Fairs. tte*'howlng, 10- ^01" authorizing, on petition of at least fifty qunlitieil etc., of electors of the Municipality, the holding of public fairs at one and regu- ' or niore of the most public and convenient })laces («) notst']«ir- latiug same, ^ted from the Municipality for municipal purposes; (n.) The purpose for which such fairs may be held .sliail j be restricted to the sale, barter and exchange of cattle, lifirs?s, sheep, pigs and articles of agricultural productiou or require- j ment. (/) (i.) The by-law to authorize the establishment of any suck j fair shall establish rules and regulations for the government j of the same, and appoint a person whose duty it shall k to 1 [iin-ioN v.— Powers I The regulation of : (c) None are entitled to reoeive the benefit of the provision unleaj those who are themselves " unable to incur the expense." See fore-; going subsection. {(I) Fellowships, Scholarships, or Exhibitions endowed under tkijj clause, are to be for competition among the pupils of the Publioj High Schools of the County. (e) The place selected should not be n public street. Wartum^:\ Philadelphia, 3? Pa. St. 202-210 ; St. John v. New York, 3 Bojw 1 (N. Y.) 483; State v. Afobile, 5 Port. (Ala.) 279; CommmaM V. Bush, 14 Pa. St. 186; Commonwealth v. £owwaH, 3 Pa. Stf 202-206. (/) The grant of a fair does not of itself imply a right ia the! grantee to prevent persons from selling marketable articles id theirl private shops on market days. Maccksfield v. Chapman, 1- M- *j A person who, at such a fair, exposes goods for sale has »l W. 18. right to occupy the soil with baskets necessary and proper taming the goods. Townend v. Woodruff, 5 Ex. 506. for con* Tf ^ ^gj 1 PUBLIC PAIRS. lave tliem canied out, (g) and Hhall also fix the fees to be Mill liiin ^y I)ei'S0ii8 attending the said fair, (h) 413- 4 1 m (,•) Tlie Council authorizing the establishment of a public PubHcnotlce ediately after the passing of a by-law for that establishing i f,ir shall, imiii , . „ _ . pin-sc. give public notice of the same. (?) 36 V. c. 48, s. b.^.iiio)." \For pnwers of Counties, Cities and Toicns as to Houses of Effufj(, "■'° sec. 430.] same. I fin-ioN v.— Powers of Councils of Cities, Towns and Incor- porated Villages. \hiiii'fmy Water. Sec. 46G (1). •' Mm-hets Sec. 4G6 (2-13). Tainted Meat. Sec. 4G6 (14). " Xuisances. Sec. 4GG (15-19). " Enclosure of Vacant Lots. Sec. 4G6 (20.) " DrivuKj upon Sidewalks. *Sec. 4GG (21). " Impiyrtuniny Travellers. Sec. 4GG (22). ;■ The regulation of fairs and markets in England by By-law has kjUtn a subject of Municipal control. Plui/ery. Joiliii.'i,, 1 Sid. i4; Pkne V. Uartritw, Cowp. 270 ; The kin;/ v. Cottcrill, 1 B. 4. VI. 07. See also Mosley \. Walker, 7 K & C. 40 ; Maccki^Jield T NIni, 4 B. & Ad. 397. So in the United States, Cincinnati v. Mimjkim, 10 Ohio, 257 ; Wartman v. Philadelphia, 33 Pa. St. 'M: LtVlaire v. Dannpori, 13 Iowa 210 ; White v. Kent, llOhiovSt, 'itl;.Ui V. People, 11 Mich. 347 ; St. John v. New York. GDuer. (N. \ ;il5;.S^ Louis v. Jackton, 25 Mo. 37 ; St. Louis v. Weber, 44 Mo. %: ''miijot V. Xeiv Orleans, 16 La. An. 21 ; Nhihtinqale'i^ Case, 11 ^ck.iMiiss.) 168; Buffalo \. Webster, 10 Wend. (N. Y.) 100; Yates yilihivtihi; 12 Wis. 673 ; Ketchum v. Buffalo, 14 N. Y. 356 ; Miini- f''i'!i y. Cutting, i La. An. 335; State v. Lieber, 11 Iowa 407 ; hi'^ytt V. mier, Ih. 583 ; St. Paul v. Coulter, 12. Minn. 41 ; iya V. White, 33 Ga. 229 ; See further, note d to sub. 3 of sec. ♦A *! Ihe grant of a fair, merely with all the liberties and powers jwully appertaining to such right does not give a right to take tolls. V'F<'mt V. *(«/, 6 A. & E. 924. A grant of a fair with an express Ipat iif toll passes reasonable toll, though no toll be specified. I""'""' ^'- P'« a necessary inci- dent, the acquirement of land on which to ereci. market buildings. Xrffkmv. Buffalo, 14 N. Y. 366; Caldwell v. AUon, 33 111. 416; Pwpfev. Lowber, 28 Barb. (N.Y.) 65. So it is incident to the general llpower to decide on the cost, dimensions, etc. Peterson v. New York, N. Y. 449 ; iSmi^A V. Netobem, 16 Am. 766 ; Attorney General \. Cam- 'rvlj(, L R. 6 E. & I. App. 303 ; but see also SpauUliny v. Lowell, 23 FicJL [Mass.) 71, 80. The establishment of a market ought not to be in » public street. See note e to sub. 10 of sec. 465. Where the defen- UDts leased to plaintiff the market fees of a wood market, established in one of the public streets of the city, covenanting against their j dim interference, &c. Held, that the market being fixed in a public highway, which is privia facie for purposes of public travel, the (lercise of the rights incident to such market must be subordinate tfl the primary and principal purposes of the highway, and that pliintiff could i ot recover damages for interference by the user of the highway by the public. Hei/nolds v. Toronto, 15 U. 0. C. P. TA So long as the market is used, it is the duty of the Munici- pjhty to keep the same in a reasonable state of repair. Savannah v. ''Snt, 38 Geo. 334 ; 2 Withrow 132. Where the lessee of market 'm received fees as such, he cannot refuse to perform liis contract Tith the Municipal Corporation on the ground that the latter had no povertoerect the market. 7'he Board of Police of London v. Tal- lic(,3U.C.Q. B. 311. ((?) The regulation of fairs and markets has for a long time been tlieiubject of Municipal control in England and the United States. See note jf to sec. 465, sub. 10 (b). Regulation must of necessity acluiie the appropriation of one or more parts of the market for one j pMpose, and other part or parts for other purposes ; of providing, luatfreepassage through the market be kept open for ready access j to shops, stalls, or other places where different commodities are hiposed for sale. Per Draper, C. J., in Kelly v. Toronto, 23 U. C. I lu 1^^' ^"^ *^® "g^*> under the power to regulate, to restrict j tie sale of commodities to the public market is open to doubt. Some |« the subsecjuent sub-sections expressly empower Municipal Coun- jfliJ to restnct the sale of commodities therein mentioned to the l^ice established as a market place. From this it might be argued It*'' "cept as to the commodities mentioned, the power to restrict Ift^ 1 ^ *^® market place does not exist. See New Orleans v. yi-rf, 21 Am. 563. On the other hand, in some of the EngUsh XT', "emptions are made in favour of the sale in the owner's P 01 certam commodities specified. From this it might be argued i':r t ■r ■ 1 ■■■ s 416 THE MUNICIPAL MANUAL. [s. 46i; Old markou in tlio MunifiiHilitv, kLuII continue to bo markota, iuiJhIuII eoDtinued. "" that, except as tc tliese, there waa power to restrict Halts to the market phioo. See Howard v. Liipton, L. R. 10 Q, H. ,')!)s. Tt^ general (lueation in surroiuuled with clilHcultitH. " Tin; tixiiii/oi tlu place and tinicH at which markets shall ho held ami kcjit uix n, ,ii,.l the prohibition to sell at other places and times, in aiiioiij,' tla- ii.f),t ordinary regulations of a City or Town I'olico, and would ii.itiirnihln included in the general power to pass Bydaws relative td the nul/iic markets. If the Corporation had not the power in fiuiNtiou it jsilitfi. cult to see what useful purpose could he etf'ccted or wli.it olijctt »m intended hy the grant of the p(jwer to pass laws rtl.itivc to imMic markets. The mere regulatilke of LiukIoii, 'IV. i'.Q.K 543 ; J<'(m,„/ilhj,' Iowa 102; Anh v. People, 11 Mich. 347. So under an onliniunt "to erect market houses, establish markets and niarkit iihices, ainl provide for the government and regulation thereof," it was huM that the Council luulno power to fix upon one market place and \\X'hW. all persons at all hours of the day from selling fresh meat elsewht-re, JilooinuKitoH V. Wafi/, 4G 111. 489 ; .S'. C. 2 Withrow ir)0 ; set al.... Bet/nine v. Unqhe*, 28 Ga. 5(50 ; St. Paul v. Laidler, 2 \ ina. 19(1; St. Louis V. Wehber, 44 Mo. 547 ; St. Paul v. Coulter, I'i Miiin. 41 ; Rochester v. PettuKjer, 17 Wend. (N.Y.) 2(i.'>. A Bylaw enacting; "that no butcher or other person shall cut uj) or expose for sale any fresh meat in any part of the city, except in the shops and stalls in the public markets, or at such jjlaces as the Standing Committee un Public Markets may appoint," was held good by our Cmirt if Queen's Bench. Jn re Kelhj and Toronto, 23 U. C. Q. B. 4l'u. This, in the same Court, was afterwards aftirmed in Fennell and Ou^ljiK 24 U. C. Q. B. 238, and treated as settled in that Court. Sntlhu''! Belleville, 30 U. C. Q. B. 91. The rule in the lait case was in part discharged and in part made absolute ; and although leave to appeal was given, inasmuch as the By-law was not quashed, no appeal amla be had. C. S. U. C. c. 13, a. 28. The law of appeal hsis, in this particu- lar, been since amended and extended. 34 Vict. cap. II, {l^vx. i^tit. Ont., c. 38, 8. 18 sub. (c). In England and Ireland most of the markets J. 466.] MARKETS. ntftin all the privileges thereof until otherwiHe directed by 4lfr ire franchi««», extending over the whole or greater jmrt of the towns ;n which situate. Cork v. Sli'nikii'iii, Sni. & liat. 395. And as theurec- ticiii cif a new market is jiriniafdrie injurious to an old one, tliere is, in tilt ci«e uf a market by iirescription, the riglit to prevent the erection Mtani'wniarkut "within the conunon law distance of the old market." hi rf hlinijtm Market Bill, 3 C. k V. 513. And in such cases tliere i the right, 8(i long as there is room in the market for the sale of articles unlinariiy sold there, to itrcvent sales elsewhere. Priiici' v. //,fM, 5 H. * t'. 3(J3 ; see further AMoxleif v. Walker, 7 B. & C^ 40 j iliipr lit Durchi'iUtr v. Knuor, L. 11. 4 Kx. 335; Mc/Iolev Davis, 1.. il 1 y. B. Div. 59. A right, by custom, to exclude persons from nlliiig marketable artiules in their shops on market days without the limit!) of the market, has, therefore, been held valid. MacclesjieAd V. I'kU'ij, 4 B it Ad. 397. A sale, by sample, on a nuxrket day near tobut without the limits of the market, has however, been held not tirne, L. R. IHr. C. L. 135; Dulan v. Kavanaijh, Ih. 166. A horse was. m to be " an article" within the meaning of the statute. Llandaff, K Market Co. V. Lynden, 8 C. B. N. S. 515. A person who sold ■nutaml fish, which are marketable article", from door to door, »ithin the preac-ibed limits, was held not thereby to have incurred the penalty. Caaudl y. Cook, 11 C. B. N. S. 637. A party who- bought vegetables froLi a wholesale dealer in the market, who had. previously paid fees thoreon, and afterwards offered them for sale in the streets, was in a subsequent case held liable to fees. Black v^ 53 i\l t I(^ ff- u It'.' ,: I, m 413 THE MUNICIPAL »(ANUAL. [8. 466. comiMitent authoiity; («) and hU ninrkot rcHervRtiotiH (,r ai)[)ro|(ritionH heretofore njadf in any Huch Muiiuiixilitv nhnll continue to he vested in the Corporation ihi-root • 36 V c 48, H. 384 (3). R««t«i«tin(f 4. For preventing or regulating tlie' wile hy retail intlie •trettifete. I'uhlic HtreetH, or vacant lotH anse<| butchers of tho Corporation holding stalls in the market," was held bad. In re Fennell and Guelph, 24 U. C. Q. B. 238. m] MARKETS. 419 anil othrr iirticles offered for Halo; (g) 30 V. c. 48, h. 384 (*'■ 5, For pivvontiuf? or r('j,nilatin;^ the buying uiid wiling of tuigulkUni articlt's or luiiniulH oxpoHftd for wilo or luurkotc'd j (/i) 36 V. c. ■*'••••'*• 4^«.:i84 (5). Ct. For n'gdliiting the pliujo and manner of selling (/) and SBioofgrain, iif%'hing >,'"""> '"t.'at, vegetables, HhIi, hay, Htraw, fodder, mekt.tkna \*>i.kI, lumber, slnngleH, farm i)roiluce of every description, J','J]^|""^',„ siimllware iiiul all ()thiv;if as well as regulate tho buying and selling of articles r»H(/ uiitrak It is difficult to say what tho Legislature meant by tho use of language so indefinite in a matter of such importance to every (vnimunity. "The power to prevent or regulate the buying and Jelling nf articles exposed for sale or marketcil is more extensive than til,' Ix-yislature c ^i\\d prubiihly have intended to give, and would, if literally exercised, cover almost any enactment. Ptr Wilson, J., .uMlandlidln'ilk, 30 U. C. Q. B. 91. (i) This is tho first subsection that provides for regulating " the j-'i" and manner." Power to regulate the place has, by the Court (i (Queen's Bench liere, had been held to include tho power to restrict aki to a place such as tho market. >Seo note il to sub. 3 of thia wtion. 0) And all other articles. See note o supra. (i) A Bylaw prohibiting any person bringing produce, articles, 'Ximmfxiities, or things to a city market from selling or offering the ame for sale within the city limits on their way to market, or •"'hout having paid market toll, and before offering such things for lie in the market, was held bad. Kbujliorn and Khiystuii, 26 U. C. ^ B. 130. " The statute gives no authority for the passing of a Bylaw of so wide and general a character as the one now in cpies- 5i«n, or containing such conditions as it does. The provisions of the iUtutc are specific and limited, and the By-law should be restricted 11 its operation to the purposes and articles mentioned in the diflfer- «nt subsections ; and by doing so, the very proper object the Muni- ■•pility had in view would have been efifected. Per Morrison, J., "• 134. The same Court afterwards held that a By-law that •• no I*f8on shall buy, sell or offer for sale any game, fish, poultry, eggs, Wtter, cheese, grain, vegetables or fruits exposed for sale or marketed »^tlim the town until the seller has paid the market fees required by ,1 (;. J' 420 Preventing forestalling, etc. BeguUting bucktterp, etc. THE MUNICIPAL MANUAL. [g. 455 and vendors of smallwave from practising their calling in the market, public streets and vacant lots adjacent thereto ■ ll\ 36 V. c. 48, s. 384 (6). ' ^ ' 7. For pi-eventing the forestalling, regiating or mono- poly (m) of market grains, wood, meats, tish, fruits, roots vegetables, poultry and dairy products, eggs and all articles required tor family use, and such as are usually sold in tlit market ; 36 V. c. 48, s. 384 (7). 8. For j)reventing and regulating the purchase of such By-law No. 161, or has obtained a ticket from the Collector of Tdlls of the market of the town, as provided in the 27th eection of Bylaw No. 161, and before the hour of nine o'clock in the forenoon dunng the months of Jane, July and August, and ten o'clock during tbe rest of the year," .••as good. Jn re Siiell and BelkiUle, 30 U. C. (^. B, 81, D2. There had h;'fu some changes in the law between the two decisions, but whethei sufKcient to cause such a change in the de- cisions may Ijc a question. A person brought sheep to a public house forty yards out of the limits of a market, left them there, went into the market in search of customers, whom he took to Uje public house, and there sold the sheep. Held, a fraud on the market, lor which the seller was liable to an action by the lessee of the market. Bridiilaud v. Slto/ter, 5 M. & W. 375 ; see further, Brecon v. Edward', 1 H. & C. 51 ; Bl(tl:e!j v. Diimlcde, 2 Cowp. 661. (/) See note f to sub. 4 of this section. (m) Engrossuig or rcgrating is a common law'offence. The Kinj v. Wdddbujlon, 1 East. 143. It applies only with respect to the necessaries of life. PettamberdaH v. Thackooraeydaiis, 7 Moore, N. C 239. Where several incorporated companies and individuals, engaged in the mamifacture of salt, entered into an agreement whereby it was stipulated that the several parties agreed to combine and amalgamata under the name of " The Canadian Salt Association," for the purpose of successfully working the business of salt manufacture, and which provided that all parties to it should sell all salt manufactured by them through the trustees of the association and not otherwise, it was held that the agreement was a valid one, and not void as against the old common law offence of engrossing. Ontario S(dl Co. v. J/f^ chants' Salt Co., 18 Grant, 540. "I must conclude that long usage has brought about such a change in the common law since the de- cision in T/ie K'vnj v. Waddhifjfon, that even if it could be said that the object of the parties to the agreement in question here was to enhance the price of salt, tbe contract would be neither ilkgal nor against pubbc policy." Per Strong, V. C, lb. 543. A By-law that " no person shall forestall, regrate or monopolize any market grams. meats, fish, fruits, roots, vegetables, poultry and dairy products within the Town," was held good, because it repeats "the <)**>'«'< English provhionx" enacted in the section, and " does nothing nxnj- In re Snell and Belleville, 30 U. C. Q. B. 92 ; see further, h rt ten- nell and Gitelph, 24 U. C. Q. B. 238. ■ji* !.'^-" MEASURING CORDWOOD, FUEL, ETC. 421 *466.] things by hucksters, grocers, butcheis or runners; (n) 36 V. a 48, 8. 384 (8). 9. For regulating the mode of meaaui'ing or weighing (as MeMurinr, the case may be) of lime, shingles, laths, cordwood, coal and arUoicL other fuel ;(o) 36 V. c. 48, s. 384(9). (n) A By-law that no butcher, huckster or ninner should, between certain hours of the day, buy or contract for any kind of fresh meat or provisions, such as are usually sold in the market, " on the roads, streets, &c., within the town, or within one mile distant therefrom," was held bad. In re McLean and St. Catharines, 27 U. C. Q. B. (j03, "Such a By-law is quite inconsistent with the rights and jurisiliction of the neighbouring Municipality." Per Morrison, J., Ih.iM; also so held In re Suell and Belleville, 30 U. C. Q. B. 81. A Bylaw " that before 10 a. m. during May, June, July and August BO huckster, butcher, dealer, trader, runner, agent or retailer, or any other person purchasing for export or to sell again, should buy, bargain for, engage, or o^i^r to buy any article of household con- sumption, brought to the market, excepting pork, grain, flour, meal or wool," was, except as to huchMers and runners, held bad. In re Frnmll and Guelph, 24 U. C. Q. B. 238. The foregoing were decisions under 29 & 20 Vict. cap. 51, 8. 296, sub. 12. That section was after- wards aftended by the addition of the word " butchers " (31 Vict. cap. 30,^ec. 32, Out.), and again by striking out the words " living within the Municipality, or within one mile from the outer limits thereof. 34 Vict. cap. 30, s. 2, Ont. (o) A By-law to the effect that every person selling meat or arti- cles of provision by retail, whether by weight, count or measure, should provide himself with scales, weights and measures, but that no spring balance, spring scale, spring steelyards, or spring weighing machine should be used for any market purpose, was held valid. hreSnell and Belleville, 30 U. C. Q. B. 81. By-laws requiring the weighing or measurement of goods before sale are a valid exercise of Municipal power, and are not illegal as in restraint of trade. Mdiih V. Sorrell, 1 Jones, (N.C.) 49 ; Stokes v. Neto York, 14 Wend (.N'.Y.) 87 ; Pai(je v. Fazackerly, 36 Barb. (N. Y.) 392 ; Xeio York v. -VioW«, 4HilL (N.Y.)209; Yates y. Milwaukee, 12 Wis. 673; Tink- hm\. Tapscott, 17 N. Y. 147 ; Chicaf/ov. QuimLi/, 38X11. 274; Briggs y^A Liijht Boat, 7 Allen (Mass.) 287 ; Frazier v. War field, 13 Md. -(9. So the establishment of public weighing scales for hay. Oosa V. Corporation, 4 Sneed (Tenn.) 62 ; Yates v. Milwaukee, 12 Wis. M. Upon the conviction of a railway company under the English statute 5 & 6 Will. IV. ch. 63, sec. 28, for having in their possession a weighing machine which, upon examination thereof, duly made by the Inspector of Weights and Measures, was found to be incor- rect ; Held, that a machine which, from its construction, was liable «> variation from atmospheric and other causes, and required to be aiijusted before it was used, was not incorrect upon examination within the meaning of the statute, if examined by the Inspector wfore It had been adjusted. London and North Western R W. '■<>■ V. Bichards, 2 B. & S. 326. But a weighing machine which nag become out of order so as to weigh untruly, is an incorrect . f. •'■•('■• ''4' 422 THE MUNICIPAL MANUAL. [& 466. Penaltiei for light weight, etc. i 1 t Bogulating vehicles uied in in marliet Tending. Assize of bread, etc. Sale of meat distrained. 10. For imposing penalties for light weight or short count, or shyrt measurement in any thing marketed ; (w) 36 V c 48, 8. 384 (10). See mite s. 454 (18). , ' ' 11. For regulating all vehicles, vessels, and all other things in which anything is exposed for sale or marketed, and for imposing a reasonable duty thereon, and establishing the mode in which it shall be paid ; {q) 36 V. c. 48, s. 384(11). 12. For regulating the assize of bread, and preventin" the use of deleterious materials in making bread ; and for providing for the seizure and forfeiture of bread made con- trary to the by-law; (r) 36 V. c. 48, s. 384 (12). Seeank a. 454 (18). 13. For selling, after six hoTirs' notice, butchei-s' meat dis- trained for rent of market-stalls; (s) 36 V. c. 48, s. 384(13). weighing machine within the meaning of that statute, ahhough, by making an allowance for the error, the weight of the article could be ascertained truly by it. Great Western If. W. Co. v. BaiH>:, 5 B. & S. 928. Scales having shot placed within a ball, which shot may be removed at pleasure, renders the scale an irrQjroperin- stnmient of adjustment within the meaning of that statute. Can V. Strlmjer. L. R. 3 Q. B. 433. A spring balance unjust to the sdlr is not within the statute, which is for the protection of the public when purchasing. Brooke v. Shcuhjate, L. R. 8 Q. B. 352. (p) See previous note. (7) This does not authorize the imposition of tonnage dues on scows, crafts, rafts, railway cars, &c., coming into the Municipality merely because they contain firewood, though such firewood may have been brought into the Municipality for the purpose of being exposed or offered for sale or marketed for consumption within the Municipality. In re Campbell and Kingston, 14 L. C. C. P. 285. What the statute authorizes is the regulating the vehicles, vessels, &c. , in which anything is exposed for sale or marketed, and for im- posing a reasonable duty thereon. When the commodity is exposed for s5e, the power to impose the duty, if it is really given, arises, and if it be intended to impose tlie duty on the vehicle or vessel, it must be on that in which the article is exposed for sale or marketed in any street or public place. The Legislature never contemplated that, under pretence of passing a By-law to regulate markets, any Municipal Corporation should have the power of levying a tax on the general commerce of the country merely because a particular Town or City happened to be the place where forwarders are in the habit of transhipping commodities from one description of craft to another, and where merchants frequently contract that certain articles ni which they deal, shall bo delivered, in view of this very practice ol transhipment. lb. (r) See note I to sub. 18, of sec. 454. («) Trespass lies for setting tables on a market place for the sale of ^M^"^^ 8. iSQ.] TAINTED MEAT. Tainted Meat. 423 14. For seizing and destroying all tainted and unwholesome Tainted pro- meat, poultry, fish, or other articles of food ; (t) 36 V. c. 48, '^'""• 8.384(14). , ; goods without the permission of the owners. Noninch v. Sv>ann, 2 W. lii. 1.116; see Doe St. Julian, Shreroabuiy, v. Cowlei/, 1 0. & P. 123. Permission of tlie owners must therefore be first obtained. Sarthamptoii v. Ward, 2 Str. 1238. Stallage is the payment due to the owners of a market in respect of the exclusive occupation of a portion of the soil. Yarviouth v. Groom, 1 H. & C. 102 ; see also, The Queen v. Cassicelt, L. R. 7 Q. B. 328. The question what con- stitutes a stall is a question of fact for a jury. lb. A Court of Equity will reon, 3 F. & F. lOG ; so knowingly taking unfit meat to public market for sale. The ilmn V. Junis, lb., 108 ; but in either event the knowledge of the unfitness of the food is essential to the creation of the offence. Rdj'ma V. Crawley, lb. , 109 ; the oflfence is a nuisance at common law, Shillito V. Thompnon, L. E. 1 Q. B. Div. 12 ; each sinde act of exposure of tainted meat is a distinct oflfence. In re Hartley, 31 L. L. J, M. C. 232. A salesman who sells in a public market meat which is afterwards found to be unfit for human food, but w hich he has no means of knowing or reason to suspect was other than good and wholesome meat, is not liable to an action upon an implied warranty or for money had and received. Emmerton v. Mathews, 7 H. & N. 586 ; but a person who sends animals destined for human food to a public market for sale, impliedly represents that they are, so far as he iuiows, not infected with any ct ntageous disease dangerous to animal :•;!' 434 AlwtoiBjnt ofnnisanoea. 1 • ! THE UUNICIPAL MANUAL. fg 4gj 15. For preventing and abating public nuisances • (u\ % Ufe. Wards v. Hobbs, L. R. 2 Q. B. Div. .331. A condition of wde that they are to be "taken with all faults," does not negative or qualify this representation. lb. It has been held that the Citv authorities may, under their general powers to regulate markets require oysters, which have a great tendency to putrefaction, to W sold at certain designated stands, and prevent their being sold -ilse. where. Municipality v. Cutting, 4 La. An. 335 ; Morano v. Mam 2 La. An. 218. But if any meat, poultry, fish, or other articles of food become so far tainted as to be unwholesome, express power is given here for the passage of By-laws providing for their seizure and destruction. Such a power, though an extreme one, is perfectly legal. See note m to sub. 10 of sec. 461. (m) The power is to prevent and abate public nuisances. The Act does not authorize the suppression of a nuisance so called which is not in itseF unlawful, i. c, the prevention of persons called runners or guides from exercising their calling in a Town. He Dam and Clifton, 8 U. C. 0. P. 236. The nuisances intended are of two kinds ; public or common nuisances, which affect people generally, and private nuisances, which may be defined as anything done to the hurt of the lands, tenements or hereditaments of another. Russell on Crimes, 4th Ed. 435. That which affects only three or four persons is a private and not a public nuisance. The King v. Lluyd, 4 Esp. 200. The mere declaration by a City Council that a structure is a public nuisance does not make it so, unless it in fact have tliat character. Per Miller, J., in Yates v. Milwaukee, 10 Wall. (U. S.) 497; see also Underioood v. Oreen, 42 N. Y. 140 ; Crosby \. Warrm, 1 Rich. Law (S. Car. ) 385 ; Roberts v. Ogle, 30 111. 459 ; Sakm \ Railroad Co., 98 Mass. 431 ; Dingley v. Boston, 100 Mass. 544 ; Lake Vieio v. Ldz, 44 111. 81 ; Vandyke v. Cincinnati, 1 Disney 532 ; Wrefunl v. People, 14 Mich. 41 ; State v. Jersey CUy, 6 Dutch (N. J.) 170; Welch v. Stowell, 2 Doug. (Mich.) 332 ; Kennedy v. Board of Health, 2 Pa. St 366 ; Oreen v. Savannah, 6 Ga. 1 ; Clark v. Mayor, 13 Barb. (X, Y.) 32 ; Saltonstall v. Banker, 8 Gray (Mass.) 195. The term "nuisance' is well understood, and means literally annoyance — anything that worketh hurt. The King v. White, 1 Burr. 333 ; The King v. Davty, 5 Esp. 217 ; Burditt v. Swenson, 17 Tex:. 489. It is not necessary to constitute a nuisance to shew tnat the smell, &c., produced should be unwholesome. It is enough if it renders the enjoyment of Ufe and property uncomfortable. Per Lord Mansfield, in The King v. White et al, 1 Burr. 337 ; see also TJie King v. Neill, 2 C. & P. 485 ; TbHiak V. Rankin, 16 Am. 737 ; St. Helens Chemical Co. v. Corporation of St. Helens, L. R. 1 Ex. Div. 196; Campbell v. Seaman, 20 Am. 5S1. "li there be smells offensive to the senses, that is enough, as the neigh- bourhood has a right to fresh and pure air." Per Abbott, C. J., The King v. Neill, 2 C. & P. 485. " The only question therefore, is, is the b usiness (slaughter house), as carried on by the defendant, pro- ductive of smells to persons passing along the pubhc highway." H- A By-law providing "that no person shall keep a slaughter house within the city without a special resolution of the Council " is bad, • IBiiiHill &466.] y , 48, 8. 384 (15). NUISANCES. 425 teniline to create a monopoly. In re Nash and McCracken, 33 U. C: B 181- So a By-law imposing a fine upon every person "who •hull keep or suffer to be kept, any swine within the said borough from 1st February to Slst October inclusive, in any year. Everett T Gram, 3 ^- T. N. S. 669. A resolution of Council or license from the Corporation is no defence to a prosecution for a public naijance. f/ie King v. Croaa, 2 C. & P. 483. "This certificate is no defence ; and even if it were, a license from all the Magis- trates in the County to the defendant to slaughter horses in this Ten- place, it would not entitle the defendant to continue the bnfiness there one hour after it became a public nuisance to the ceighlwurhood." Per Abbott, C. J., Ih. 484. " If tht defendant's slaughtering house was so conducted as to be a public nuisance at common law, the Parish might at any time have caused it to be removed ; and I am clearly of opinion that in this case it was so con- ducted as to be a nuisance at common law, and that the defendant Tiild not have been and is not entitled to any compensation." Per AHwtt, C. J., in The King v. Watt.% 2 C. & P. 486, 488. It was in this case proved that smells proceeded from the slaughter house which were a great nuisance to persons passing along the public hi;:h\vay. Ih. If a certain noxious trade is already established in a iljce remote from ha1))tation and pul)lic roads, and persons after- inrds come ani, 3 B. & S. 62-66 ; Tipping v. St. Helen's Smelting Co., 4 B. & S.608; S.C.U H. L. C. 642; Gautit v. Fynney, L. R. 8 Ch. Ap. S ; Hurmon v. Good, L. R. 11 Eq. 338 ; Salvin v. North Branchcpeth (ml Co., L. R. 9 Chy. 705 ; Ball v. Ray, L. R. 8 Chy. 467 ; Broderv. Snillard, L R. 2 Ch. Diy. 692 ; Adanis v. Michael, 17 Am. 516. The power to abate a public nuisance is a portion of police authority necessarily vested in the Corporations of all public towns. Per Buchanan, J., in Kennedy v. Phelps, 10 La. An. 227 ; see c\l80 i^r'Honiy. Railroad Co., 40 N. Y. 273. But a private individual cannot justify damaging the property of another on the ground that It is a public nuisance unless it do him a special and particular injury. i)iwMv. Pctley, 15 Q. B. 276. Arnold v. Holbrook, L. R. 8 Q. B. 96; The Mayor, dc, of Scarborough v. Rural Sanitary Authority of S<(irhorough, L R. 1 Ex. Div. 344 ; State v. Parrott, 17 Am. 5. A dis- tinction must be drawn between a house which is a nuisance per se, m one that is only a nuisance by reason of its use or abuse. In the after case there is no legal right to destroy the property. See note < to sab. 28 of sec. 461. In several parts of England public slaughter 54 < "i > l.W/?, Bright (Pa.) 69; brick-making, Wanatead v. Hill, 13 C. B. .N, S. 479 ; Bamford v. Turnley 3 B.& S. 62 ; a planing mill, Rhodes r. Ihmhar, 57 Pa. St. 274 ; powder house, Cheatham v. Shearn, 1 Swan. (Tenn.) 213 ; Durnemilv. Dupont, 18 B. Mon. (Ky.) 800; a dan- gemus building, Nolin v. Major, 4 Yerg. (Tenn.) 163: Harvey v. [^mahj, 18 Ark. 252 ; spirit of sulphur or oil of vitriol works, The hit<) V. White, 1 Burr. 333. The power conferred by this section is to pass By-laws for "preventing or "reglating" the erection or continuance of such nuisances. A By-law declaring that " no person shall keep a slaughter house within the city without the special reso- lution of the Council," was held to be void, because it permitted favouritism by the Council, and might be used in restraint of trade ornscil to grant a monopoly. In re Nanh and McCraeken, 33 U. 0. Q B. 181 ; but see Inlmbitantu of Watertown v. Mayo, 12 Am. 694 ; t« further, Hughes v. Trew, 36 L. T. ¥. S. 585. I.f I Kinging of bells, blowing of horns, and other iinnaual rxo\sea, «6 heie treated as nuisances. They may or may not be nuisances, Kconliug to circumstances. It is in the power, however, o.' the i^'Tjwation at any time to treat all such, when in streets and public puces, as nuisances, and prevent them. It is difficult to describe, itougheasy to imagine, such "an unusual noise" as would be a Dwsance. Some examples may, however, be given. The noise of a |«mth in carrying on his trade, if in a neighbourhood where there » a number of offices, and of sufficient magnitude to prevent the Kcnpants from following their lawful business, will, if it aflfect a tonsiderable number of inhabitants, be deemed a public nuisance. y'«Aini/v. Lloyd, 4 Esp. 200. Knocking at a door or ringing a Mr-bell at night, where the noise is so great as to disturb not only wtoHTier of the house and his family, but his neighbours may be fUlul and wanton" within the meaning of Eng. Stat. 10 & '1 Vict. '-'ir, * a' '^' although the man who was guilty of it had been -"Wucted to deliver papers at the house. Clarke v. Hoggins, 11 * I 'rt •428 TMngof ■gnni, «te. 'Vacant lots, Driving, etc., THE MUNICIPAL MANUAL. U ^^ 19. For pi-e venting or regulating the firing of gimsor' other tire-arms ; and the firing or setting off of firn lialls. sqnibs, crackers or tire-works, and for preventing clmiivariej I and other like dibturbances of the peace : (y) 36 V c 4s i 384(19). ■ ■ ' Vacant Lota. 20 For causing vacant lots to be properly enclosed 36 V. c. 48, s. 384 (20). Driving upon Sidewalks. 21. For preventing the leading, riding or driving of horses! I I C. B. N. S. 544. A circus, the performances in which were to be I carried on for eight weeks near the plaintiff's house, and the perf.m- ances, which took place every evening, lasted from about half past seven till half- past ten o'clock. The noise of the music and shontiujl in the circus could be distintly heard all over the house, and wm w | loud that it could be heard above the conversation in the diiiini;- room, though the windows and shutters were closed. This wwlieli to be a nuisance. Inchbukl v. JRobinaon, L R. 4 Ch. App. 38.S. Ift| man builds a rolling mill close to inhabited cottages, so tint vibration produced oy the hammers cracks the walla of the Cdttaga, I and the noise of the mill causes them to become and remain nniii- 1 habitated, the rolling mill will be a nuisance. Scott v. i'nV/*, 4 F.Sj F. 349; S. C. 10 L T. N. S. 240. (y) A shooting ground near a public highway, where persons come j to shoot with rifles at pigeons, targets, fcc, may be a nuisance. Tkl King v. Moore, 3 B. & Ad. 184. So, by means of powder, working j stone quarries near the public streets and dwelling houses. Tkl Queen v. Mutters, 10 Cox 6. Fog signals were held to be withinj the term fire-works, as used in Eng. Stat. 23 & 24 Vict. cap. 139. 1 Bli88 V. LUleii, 3 B. & S. 128. A schoolmaster who permitted «nj infant pupil under his care to make use of fire-works, was hddj rv^sponsible in an action for the mischief which ensued. Tk R\w]\ V. Ford, 1 Stark. 421. A. made fire-works and kept them fori sale in a house situate on a public street. In his absence, by! negligence or accident, a fire took place amone the materiaLi of! the hre-works, which set light to a rockei and caused it to dyi across the street and set fire to a house, in which was a peisoaj who was burned to death : Held, that the keeping the tire-workjj was too remotely the cause of the death to render A. amenable in ij charge of manslaughter. Tlie Queen v. J5«ineW, 4 Jur. N.S. 10SS;| S. a Bell C. C. 1. A defendant sued for fire- works cannot, under] a plea of never indebted, object that the sale of fire-works v illegil | Fenwick v. Laycock, 1 Q. B. 414. not k\ (z) "Vacant lots of land" are here ir. tended, though expressed, and which in Cities and Towns are often made receptacle! of nuisances. Hence the power to direct them "to be property enclosed. " 71 J 466] PUBLIC HEALTH. 429» or cattle iipn sidewalks or other places not proper there- upon lide- for;(«)36V.c. 48,8. 384(21). ''''^•- JmjtortuHing Travellers. 22. For preventing jiersonH in streets or public places from importuning imioiluiiing othei-s to travel in or employ any vessel or * *"' rtliicle, or go to any tavern or boarding house, or for in,iilatiiig iKjrsous so employed ; (h) 36 V. c. 48, s. 384 (22). Public Health. 2:i For providing for the health of the Municipality, and PubUo 1 ipinst the spreading of contagions or infectious diseaees ; (c) " ' [ y> V. c. 48, s. 384 (23). tiee also, Rev. Stat. c. 190. Hii A sidewalk is that portion of a highway which pedcstriana I kire a lawful right to use. Bacon v. Boston, 3 Cuah. (Mass.) 174 ; hkmwjUinx. Bay, 42 111. .WS; Walhtct. v. New York, 2 Hill (N.Y.) «(); IMl\. Mmchesta; 40 N. H. 110 ; L'ai/moud v. Lowell, (J Cush. Mm 1 5-24 ; I /art v. Brookl>jn, 36 Barb. (N. Y.) 226. The right of tiie public 80 to use sidewalks makes it the iluty of the Muuiuipal jithiirities to see that horses or cattle should not be led, ridden or inven on the sidewalks. See Commonwealth v, C'Mr.ini«iuie8;(j/)36 V. c. 48, s. 384(27). . C. 20. L J. 'Mag. Cas. 190. The'P]nglish statute 25 & 2(5 Vict ap 66, is extended to nitro-glycerine and all other substances for ie time being declared by an Order in Council to be specially dan- firoos. In the United States it has been held that a City Corpora- Cfn may lawfully pi-vas a By-law requiring all gunpowder brought itft the city to be conveyed to the pul)lic m.agazine of the city, except Tontok' retailed, and then to be kept in limited rjuantitica and ni wure canisters. Williams v. Auyuxta, 4 (ia. 509. Two Justices -Hiigland, under 12 Geo. III. cap. (51, ss. 11, 18, were empowered t'^ a'ljuilge a forfeiture of gunpowder conveyed in the city contrary I V'ite provisions. Where several packages of gunpowder, amounting athe whole to 3(X) lbs. weight, were sent by different persons to a nrehouse in London belonging to a carrier and licensed Ccinnan, as 1 itemnorary halting place in their transit, it was held that there was ■/> unlawful hanug or keeping of gunpowder within the meaning of I 'k statute. Bignn v. MitdieU, 2 B. & S. 523. A conviction, under tie statute, awarding a forfeiture of giinpowder, must show that the hxrsonto whom it is adjudged is the person who seized. The King i.hiith, 5 M. & S. 133. A person wno manufactures and keeps fog- toiak-being tin cases filled with giinpowder and fitted with nipples al percussion caj)8— upon the premises within distances specifietl by Unifisb statute 23 & 24 Vict. cap. 139, s. 6, and for which premises khad not a license under sec. 11, was held liable to a penalty. Jilias P i%, SB. & S. 128 ; see generally, WeUe;/ v. noolleij, L. R. 7 VB, 61 ; Eliott v. Majendie, lb., 429 ; see further. Brown v. Mary- l«M(U2Wheat. (U.S.) 419, 443. to) The prevention of damage to buildings by fire is an object wich affects the interests of aU the inhabitants, and relieves them pom a common burden and a common danger, and is therefore with- ffithescope of Munioiwal authority. Allenv. Taunton, 19 Pick. (Mass.) te; Toneij V. Millhunj, 21 Pick. (Mass.) 64 ; Hardy v. Waltham, 3 pietc. (Mass.) 163; Huneman v. Fire District, 37 Vt. 40; Wmlleigh Y^'f'm, 12 Me. 403 ; Vamlerhilt v, Adam.'*, 7 Cowen (N. Y.) 349, I*-. Where such is the case, the Municipal Council is authorized 'i , :| '?^;r 432 Medalt tnd rrwardt to p«raotia dlatinguUh- ing tham- mIVi* at flrM. Aid to widows. THE MUNICIPAL MANUAL. [g ^f^^ 28. For providing mcdalh or rowurdM for jK-i-sonH who ,ii., tingiUHh tli«!iuH«!lveK at firns ; and for griuiling iKTiiuun aid, or other wise aHsirtting tlio widows and orpluiiw otV'nt.ji,> who «ni kiUod by accident at such tirca ; (A) 30 \' c \H », 384(28). ' ■ ' to appoint ami pay Fire Wanlcns, Firo Knj"^ ; i>x further, note d to sub. 47 of this section ; or an act ia done by tlie City for its own corporate advantage or immediate emolument. Oliver v. Worcester, 102 Masa. 489 ; or perhaps where the neglect ij a duty cost upon a gas company or a water company, or other trading company of a qiuu^i public character, to the prejudice or loaa of une of the public. Atkinson v. Newcastle and Gateshead Wutn Work* Co., L. 11. 6 Ex. 404 ; reveraed, .36 L. T. N. S. 761. A Railway Company waa held liable for running a locomotive over a hose .•uiii deatroying it, whereby a building waa lost which otherwise niijjbt have been saved from destruction by fire. Metallic Compremon i'(ut- ing Co. v. FUchburg R. W. Co., 12 Am. 689. (7i) The prevention of the spread of fire is often attended with great personal risk and couaequent loss of life. No ordinary remu- neration is therefore deemed a suihcieut incentive at all times fur the efficient discharge of the dangerous duty. The providing of medals or other rewards for those w-lio distmguiah themselves at fires, auil urn] PRKVENTINO FIRES. 43S 21). For prevfijitiiiff or ro^jlating the use of fiio or lights injuliK eubiiiet iimkei-M' HhojtH, ciiv)K3ntci'H' shopH, luul coin- bustiU.' I'luccs ; (i) 30 V. c. 48. h. 384 (29). ,;ii For iireveiitiiig or roguhiting the currying on of maim- utmies or tradcH dangorouH in cuuaing or promoting tiro ; (y) jj V, c. 48, 8. 384 (30). , ^ ;||. For iirtvcuting. and for ronioviiig or roguhiting the cirn-^tnictioii of iniy rliinumy, due, firo-placcs 8tov(!, ovon, boik orothcr npi-'iraUis or thing which may he ilangtMous in causing or iironioting tire ; (k) 30 V. c. 48, 8. 384 (31). 3'.'. For rf;,'uliiting the con.^truction of chimneyH as to iliniciDions and otherwise, ami for enforcing the proper deaniiig of tiio same ; (/) 30 V. o. 48, t-. 384 (32). ihein^nting of pecuniary aid to thj widows ami orphaiib of thoso tiio Vm thuir lives wliilo in thu diuuhar^o uf such a duty, and owing thereto, in a inudablo purjiose, for whioJi full power is here given. >w Thf Qii^eii V. C'umhe, 13 Q. B. 179 ; Ax' Parte Loiuhr, 13 Jur. IW; Tb (Jiiecn v. Combe, 3 Now Suss. Cases, 394. ii; P'eventiou is better than euro. On this principal Municipal Cianiiis art! authorized to prevent or regulate the use of tire or lights j a stiiika, cabinet-makers' shops, carpenters' shops, "combustible I jilicea.'' See noto r to sec. 452. j) Security for life and property are the two great objects of l!imici|ial control. Manufactories or trades injurious to health may ; 1« restrained See 40(5, sub. 15, 17. Similar power is here conferred u t«i " manufactories or trades dangerous in causing or promoting iK." These may be either prevented or regulated. Indeed, there i power in ease of emergency, to destroy houses to prevent the Rre*l of Hre. See sub. 39 of this section. These laws, though to- WDe extent infringing man's natural riglits, are yet for the public \M. hi (Joddard V. JacknonvUle, 16 111. 589, Scales, J., said, "We Jive a mitural right to labour or to rest ; yet we are forbidden to 1« me idlers, vagrants or vagabonds. We nave a natural right to Uilanil destroy our animals ; yet cruelty to them is forbidden. W-.» m a natural right to give away our property or destroy it ; yet wo toy not gamble it ofiT. So in relation to storing gunpowder in Cities, aiiMting tire works, &c. The acts are innocent in themselves ; but laeirdauBerous tendency to the conmiunity in the particular place I»)aire8tne right of the owner to become subordinate to the publio I'l The importance of having chimneys, flues, fire-places, stoves, v^m, 4c., satelv constructed, in thickly-populated places, so as to- j|ftvent tiro and ita spread, cannot be over-estimated. Hence the pmlature, in this sub-section, not only provides, as in previous Isb-Mctiona, for the "preventing" or "regulating," but for "remov- '*;■ *ee note h to sub. 10 of sec. 461. II A By-law providing that no persons other than Chimney Inspec- v9 Flr«tn itablei, ato. l>iii)|p>rou* iiinnii- (■ctorloii Chliiniuj'H, ■tovea, etc. Size nnd uli-aiilDK 9t cliliiiney*. ttu. ''■■^ 434 THE MUNICIPAL MANUAL. [s. 466. 33. For regulating the mode of removal and safe keemnff of aahes ; (m) 36 V. c. 48, s. 384 (33). ^ ^ 34. For regulating and enforcing the erection of mrtv walls ; (?i) 36 V. c. 48, s. 384 (34). ' ' SdlSSI'etc.. ^^- ^°^ compelling the owners and occupants of houses to to honwa. ' have scuttles in the roof thereof, with approaches • or staira Aahos. Pwty walli. ip^' 1 • r' I 't ' ■■] r ^i im. JH"' , % m |j tors appointed by the City Council, shonl.i sweep or cause tn be swept, for hire or gain any chimney or flue, was held to be bad Begina v. Johnson, 38 U. C. Q. B. 649. (m) Many fires are said to be '• accidental" which are the result of neglect to keep ashes in fire-proof utensils ; and yet regulations for the safe keeping of ashes are seldom made, and when made, rarely enforced. Ashes may, under certain English statutes, be removed as refuse or rubbish. See Filhey v. Combe, 2 M. & W. 677 ; Zoir v. Dodd, 1 Ex. 845 ; Lynden v. StanbrUlge, 2 H. & N. 45. See further^ The Queen v. Wood, 5 E. & 6. 49 ; Ouardiam of Holborn Unm \'. Vestry of St. Leonard, Shoreditch, L. R. 2 Q. B. Div. 145 ; Gay t Cadby, L. R. 2 C. P. Div. 391. (n) Regulations as to party-walls must be strictly followed. If a person, under colour of such regulations, do injury to his neigliliour, he is liable to be sued. Pratt v. Hillman, 4 B. & C. 269 ; see also The Queen v. Ponsford, 1 D. & L. 116. No man has a right to pre- sume that his neighbour will hereafter build a house adjoining to his, and erect half of his outside wall on his neighbour's (ground in cm- sequence of such presumption. Barloio v. Noiinan, 2 W. Bl. 9,i9 ; An external wall cannot be said to be a party- wall. Sivu v. E»tai'. Company, 14 L. T. N. S. 55. A party- wall is a thing which belongs to two persons as part owners, or divides two buildings one from an- other. Weston V. Arnold, L. R. 8 Ch. Ap. 1084. The English Statute 14 Geo. III. ch. 78, was held not to make party-walls com- mon property. Matts v. Hawkins, 5 Taunt. 20. If one proprietor added to the height of such a party- wall, and the other pulkf down the addition, the first might maintain trespass for pulhng doirn so much of it as stood on the half of the wall which was erected on his own soil. lb. The property in a wall, though erected at joint ex- pense, follows the property of the land whereon it stands. Ih. rower to pass ordinances " to authorize the erection of party-valls. &c., and to regulate them," has been held to include the power to authorize their erection upon the appUcation of either owner, and without the consent of the other. Hunt v. Ambrmter, 17 X. J- ^■ 208. It has been held that the owner who pulls down a party-wall, under the authority of the Metropolitan Building Act, 18 & 19^ict. cap. 122, is not bound to protect, by boarding or otherwise, t!ie rooms of the adjacent owner left exposed to the weather. Thomf- son v. Hill, L. R. 5 C. P. 664. See further as to party waUs 5ro/f v. Legg, L. R. 2 Ex. Div. 39 ; Hindge v. Baker, 15 Am. 475. As to the ; meaning of the word "owner" in such an Act, see Wheekrv. Graon any property subject to the regulations of the Council, in order to ascertain whether such regulations are obeyed, or to enforce or carry into effect the same ; (r) 36 V. 0. 48, s. 384 (38). (o) The prevention of fire is the first thing of importance ; access to it, in the event of fire, ia next in importance. The previous sub- sections are of the finit class ; this, of the second. It enables Municipal Councils to pass regulations compelling owners and occu- pta of houses to have sicuttles in the roof, or stairs or ladders, lead- ing to the roof. (p) The previous subsections deal with details. Many things under their operation may be required to prevent fire. In many respects special provision is made for guards, against fire. But in order that the power may be as extensive as necessary, a general power ia here conferred for causing buildings and yards to be put "in other respects" into a safe condition against fire, and not only Jgainst tire, but "other dangerous risk or accident." See note r to sec. 452. ('/) The powers here conferred are— 1. For requiring the inhabitants to provide fire buckets ; 2. For regulating the examination of fire buckets ; 3. And the use of them at fires. Xo explanation is given as to what is " a fire bucket." Bucket is tie t«rm applied to a vessel commonly used to draw water out of a well. W This is an important subsection. It does not follow that oecause ueople are required to do certain things, even for their own ttfety, that thev will do as required. Negligent people have exie'ed a all times, and will continue to exist as long as time itself. Super- naon is necessary. The power, therefore, conferred by this subsec- nonis for authorizing appointed oflScers to enter, at &\l reasonable »na UDon any property, subject to the regulations of the Council, In order to ascertain whether such regulations are obeyed." But me more important part follows— that which enables the officer " to sniorce or carry into effect the same." The enforcement might be by prosecution and fine ; but the words '« carry into effect the same^' J 436 THE MUNICIPAL MANUAL. [s. 466. r\ V' ^ I ! Preventing 39. For making regulations for suppressing fires, ami for epreading of p^^lljj^g down or demolishing adjacent houses or other ei'ections, when necessary to prevent the spreading of fii-e • Is) 36 V. c. 4S, s. 384 (39). appear to indicate a specific performance of the duty by the offictr. If the regulation be that certain things shall not be, the officer m;,y ' ' " ' ' power to remove tliem ; but if it be that cerkua be held to have power to remove them ; but if it be that cerkiin things shall be, he is not likely to supply them without acme piovi- sion for compensating him. No property should, it is apprchemlwl, be demolished or destroyed without an opportunity of some kind tu opportunity of some kind to See Vuoper v. Tk: Board ■// destroyed the party concerned of being heard. Works, .Oc, 14 C. B. N. S. 180 ; see also The Queen v. Sparrow, It; C. B. N. S. 209 ; Baiuncm v. Vestiy of .«. Pu.cms, L. K. 2 Q. li 528 ; Smith v. Shiqison, L. E. 6 C. P. 87. (») nights of private property may be made subordinate to piiWic necessity. The right to destroy buildings in order to prevent the spread of a conflagration is one that has been exercised from the earliest times. See note « tc sub-sec. 10 of sec. 4G1. In kucL a < .i- , in the absence of an express statutory lialnlity, the owner ol pn, perty so destroyed is without remedy. Dcwcji v. White, JI. & M. 5(1; White y. Charleston, 2 Hill (S. Car. ) 571; People v. Winnehammi-r, 12 How. P. 11. Kep. CJourt App. 2()0 ; Knxselly. Xew York, 2 Donio. (N. Y.) 461^74 ; Taylor v. Ptf/vwulh, 8 Mete. (Mass.) 4(i2; //d/.r' v. New Bedford, 16 Gray (Mass.) 297 ; Mnaloiiuld v. Jiahrlitii, U Minn. .38 ; Surocco v. Geary, 3 Cal. 09 ; Western Colkye v. Ckri'laiA, 12 Ohio St. 375; Coffin v. Nantucket, 5 Cush. (Mass.) 2G9; %■/' < v. Nantucket, 11 Cush. (Mass.) 433; iVcDonald v. Jiedu-iwj, 2 Will:- row 549; S. C, 13 Minn. 38; Field v. City of Dts Moines, 18 Am. 4 L If there be a remedy given by the statute or -it common law, existiuj; because of excess, the fact that the owner Avas warned does not allect his right of recovery. New York v. Pentz, 24 Wend. (N. Y.) COS ; set also Pent?, v. uEtna Insurance Co., 9 Paige (N. Y.) 5G8 ; City Fin /«-. Co. V. Corlies, 21 Wend. (JST. Y. ) 3(57. The opinions of lystandir.s as to whether in their judgment the building, if allowed to staml, woiild have taken fire, held not be admissible evidence. SeM Yoii V. Pentz, 24 Wend. (N. Y. ) CSS. As one whose property has l^ctn destroyed, by the order of the public authorities, for the public bene- fit, has a strong natural equity for compensation, a stiitute making the Corporation liable should be liberally expoundeil, though n»t strained to cover cases not fairly embraced within them. /'•/■ Nelson, C. J., in New York v. Lord, 17 Wend (N. Y.) 285, atfirme.! 18 Weml. (N. Y.) 126 ; see also New York v. Pent-., 24 Wend. Cs- Y.) 668; Stone v. Mayor, ,{.c, 25 Wend. (N. Y'.) 157. Such a statute ought not to be construed to apply to a building pulled dowu s impossible to save it. Taijlur v. after it is so far burnt that it is Plymouth, 8 Mete. (Mass.) 462. If the statute give a right to com- pensation and prescribe no specific remedy, an action will lie. ^'" ' 8eUv. Nero York, 2 Denio. (N, Y.)461. This subsection, provulir-ij for pulling tlown or demolishing " adjacent houses urotlier ertdioni, apparently does not extend to personal property. See Stone v. .y!C York, 20 Wend. (N. Y.) 1.39; S. C. 25 Wend. (N. Y.) 157; ^^^ York v. Lord, 17 Wend. (N. Y.) 285 ; S. C, 18 Wend. (N. Y.) l'^- 466.] REMOVAL OP SNOW, ICE, DIRT, ETC. 437 40. For regulating the condncfc, and enforcing the assis- Enfordnn tance of the inhabitants present at fires, and for the preset- "*«!«? ** vation of property at tires ; (t). 3G V. c. 48, s. 384 (40). Removal of Snow, Ice, Dirt. 41. For compelling persons to remove all snow and ice from the roofs of the jjremises owned or occupied by them ; H^ow^rtL***^ and to remove and clear away all snow, ice aixd dirt, and other obstructiono, from the sidewalks, streets and alleys adjoining such premises ; and also to provide for the cleaning of sidewalks and streets adjoining vacant property, the pro- perty of non-residents, and all other persons who, for twenty- four hours, reelect to clean the dame ; (u) and to remove and g/jfwafks,**' streets, etc [t] The prevention of the spread of fires and the preservation of property at fi.es are two very proper subjects for Municipal control. Puv-er to enforce assistance of those present at fires comes under the first lieail, and the latter part of the subsection under the second lieail. The property intended, it is believed, is personal property ; in cities as much of it is lost by theft as by fire, and often as much liy recklessness as by theft and fire combined. ill] The powers here conferred are for comj)elling persons — 1. To remove all snow and ice from the roofs of the premises oivned or occupied by them ; 2. To remove and clear away all snow, ice and dirt, and other obstructions from the sidewalks, streets and alleys adjoining their premises ; 3. For the cleaning of sidewalks and streets adjoining vacant property, the property of non-residents a'lG all other persons. 4. To remove and clear awaj' all snow and ice, &c., from such side- walks and streets, at the expense of the owner, or occupant in case of his default. 5. In case of non-pa3rment, to charge such expenses or special assessment against such premises. An Act authorizing a local board of health to provide for the removal of "dirt, ashes, rtibbish, filth, dung, and soil." was held nit to authorize the passing of a by-law for the removal of snow. T^t Quern v. Wood, 5 ?!. & B. 49. It has been held in this Province that, in the absence of any public regiihition, people are not compelled to keep the roofs of their houses cieiir of snow, or to detain the snow on the roofs, so that it cannot Wile from thence into the street. Lazarm v. Tormito, 19 U. C. Q. B. 1. The contrary has been held in the United States. Shipley T. Fifty Associates, 101 Mass. '251 ; S. C. 3 Am. .S46. In the lnit«d States it has been also held that persons sufifering snow and ice to accumulate upon an awning placed by them over a sidewalk, "the a^Tiing be insuflficient to hold the snow and ice, and it in con- feqiience give way and injure a passer-by, are liable to damages. movd V. Holhrooh, 9 Allen (Mass.) 17. It would oeem that, prima ih^ I' 438 THE MUNICIPAL MANUAL. [s. 466. tri ii r I clear away all snow and ice, and other obstructions, from such sidewalks and streets, at the expense of the owner or occu- pant in case of his default ; (v) and in case of non-payment facie, the occupants of the building, and not the owners, out of occn- pation, are the proper persons to lie sued in such an action. Kirby V. Boylston Marhet Association, 14 Gray (Mass.) 249. But if the roof be under the control of the landlord, and not of the tenant, the former would be liable. Shipley v. Fifty Associates, 101 Maw. 251 • S. C. 3 Am. 346. A stnicture such as a cornice of a building pro- jecting over a street in a city in such a manner as to be dangerous to passers-by, is a nuisance which the corporate authorities may abate, and if they fail do so after notice of its dangerous character the city will be liable to any one injured thereby. Grove v. Fo4 Wayne, 15 Am. 262. See further Mullen v. St. John, lb. 530. It would also seem that the accumulation of snow and ice on a side- walk, in the absence, at all events, of a public regulation on the subject, would not render the adjoining proprietor liable to an action for an accident arising therefrom. See Shepherd v. The Midhmd Railway Co., 25 L. T. N. S. 879 ; Sharp v. Powell, L R. 7 C.P, 253. The City of Boston, under the power "to make needful and salutary By-laws," passed a By-law requiring the tenant or occupant, or, in case there shall be no tenant, the owners of buildings border- ing on certain streets, to clear snow from the sidewalks adjoining their respective buildings, &c. It was held valid. Goddart, Ptll- tioner, ondon, had a daughter who attended to his shop, and who was considered so beautiful tliat a crowd of 300 or 400 persons used daily to assemble and stand at his shop windows for the purpose of looking at her. "The incon- venience was so great, both to Mr. Very and to his neighbours, that he was obliged to send his daughter out of town. " 6 C. & P. 04'), note. A bookseller in Fleet Street took out the frames, of his first- floor windows, and put into one of the windows an elfigy of a bi.shop, under which was written " Spiritual broker " ; in the second window a figure of a man in ordinary dress, and under him the words " Temporal broker. " He afterwards added a third figure— that of the Devil, "the arm of the figure of the bishop being tucked into that of the Devil." These figures attracted such crowds to gaze at them that the bookseller was convicted of obstructing the high- way. The King v. Oarlile, 6 C. & P. 636. Attracting and keeping crowds of people an unreasonable time by reason of speeches may be subject to prosecution. Rex v. Sarmon, 1 Burr 516 ; Hariri- V. Commonwealth, 19 Pa. St. 412. A person who had mills which were partly on a road allowance and partly on a public river, by the waters of which the mills were worked, was held not to have such a rightful interest as to entitle him to complain of an olwtruction to the river. Giles v. Campbell, 19 Grant 226. A Municipal Corpora- tion has no power to order the construction of weigh scales on one / of the principal streets in the JTunicipality, Cline v. Coniuw//, 21 Grant 129, or to authorize a cab stand to be so stationed on a public street as to be a nuisance to adjoining proprietors. In re Davie^ and the Village of Clifton, U. C. Q. B., Coram. Morrison, J., June, 1S7/. The acts of several persons in obstructing a highway may together constitute a nuisance which the Court of Chancery will restrain, though the damage occasioned by the acts of any one, if taken alone, DOOB-STEPS. 441 4 466.] 43. For directing the removal of door-steps, porches, rail- Remorai of m or other erections, or obstructions projecting into or otS' '^''^ over any road or other public communication, (y) at the expense of the proprietor or occupant of the property cou- Dfctetl witli which such projections ai'e found. 36 V. c. 48, 8. 384 (43). wnnH be inappreciable. Thorpe v. Drumfitt L. R. 8 Ch. Ap. 650 ; Ciw T. Cmmdl, 21 Grant 129. A City Council, having "exclusive power over streets," has the riiiht by By-law to determine to what extent and under what cir- cumsUnces they may be encumbered with building m-aterials. Wowla r, J/frtcs J2 Ind. 515; but see Ball v, Armstrovr/, 10 Ind. 181. Such a By-law will protect parties acting under it when such actions are not grouiuled on negligence of the defendants, lb. The Cor- poration ra.ay, however, require a bond of indemnity before granting jiich i> privilege. McCarthy v. Chicago, 63 111. 38. The conditions ittaihed to the permission must be strictly observed. Lowell v. <\miim, 10 Allen (Mass.) 88. f;/) Owners or occupiers of houses abutting on streets have a right tnraakc a reasonable use of the street. Warehouses with doors and wimiows and opening upon the street, and shutters projecting on the same when open, in the absence of a statute or By-law to the con- trary, held not unreasonable. Underwood X. Caruei/, 1 Cush. (Mass.) iw'; Gemirdv. Couke, 2 B. & P. N. R. 100 ; 0' Linda v. Lothrop, 21 Pick. (Mass. ) 292. So openings communicating with underground ainrtraents, so long as not dangerous. Bacon v. Boston, 3 Cush. (Mass.) 174. Lowell v. Spaidding, 4 Cush. (Mass.) 277. The powers here cnferred are, to pass By-laws for "directing the removal of door- stei)s, porches, railings or other erections or obstructions" projecting intii or over any road, &c. See Le Neve v. Mile End Old Tovn, 8 E. i B. 10.W. Strictly speiiking, no one has a right to i)roject his buililiiiR or any part of it beyond the line of road. But this does not mean a strict mathematical line. Tear v. Freehody, 4 C. B. N. S. 228; see also .S'<. Gporf/e'.s Vestry v. Span-oio, 16 C. B. N. S. 209. .\n olatruction beyond a substantially regular line must, if insisted ipon by the Municipal authorities, be removed. Bamnan v. St. hurai>, L R. 2 Q. B. 528 ; Ecclesiastical Cummifisioner.s v. Clerken- ^*l 4 L. T. N. S. 599 ; 8. C. 3 De G. F. & J. 688 ; The Qmen v. I'l.v, 8 E. & B. 469. Where a man, under contract to build accord- ing to a specified plan and according to the Metropolitan Building Acts, commenced building according to the plan, which w.ns in some Mrtieulars in contravention of the Building Acts, and upon being antioaed by the Board stopped building and refused to proceed ; Mil, that he was bound to rebuild in conformity with the plan, modified 80 as io meet the requirements of the Acts. Cuhltt v. Smith, 11 L. T. N. S. 298. By-laws were made by the Local Board of Sun- 'Wand, under the English Public Health Act. 1848, s. 115, and the "^al Government Act, s. 34, by one of which (No. 12) all party yl^^'^'^ept in houses of one storey, were required, under a penalty '".'I''?' to he nine inches at least in thickness, and by another of f fK 1 *^' '* ^*' provided " That in case any offence under any Mthe foregoing By-laws shall continue, the person offending shall bo 56 ^* I it]. ' 442 Nnmbcrlng Imumi, «to. THE MUNICIPAL MANUAL. Numbering Houses and Lots, [8.466. 44, For numbering the housea and lots along the streets of the Municipality, and for affixing the numbers to the houses buildings, or other erections along the streets, (a) and lor charging the owner or occupant of each house or lot with the expense incident to the numbering of the same. 36 V c 48, s. 384 (44). liable to a further penalty not exceeding 408. for each day (lurini? which such offence shall continue after written notice of the offence has been given by the Ijocal Board to the oflfender." A person hav- ing been convicted and fined for an offence against the Bylaw Xo. 12, in building a party-wall four and a halt inches in tljitknea instead of lune inches, was convicted upon an information charging him, under By law No. 42, with coutinuiiiy the offence, and again fined. Held, that suffering the party-wall to remain unaltircil wis not a continuing offence within By-law No. 42, or if it was, that the By-law was unreasonable — theappropriite remedy being theremoTal of the structure by the Board, as authorized by sec. 34 of tlie Local Government Act, 1858. Marshall v. Sinitli, L. II. 8 C. P. 41«i see further, Jlall v. Nixon, L. R. 10 Q. B. 152, in which lirmn v, Holyhead, 1 H. & C. 601 ; Young v. Edwards, 33 L. J. M. ('. S-JT ; and Hatteraley v. Burr, 4 H. & C. 523, are discussed ; see al* Cheelhavi v. The Mayor, dc, of MaiicJieMer, L. R. 10 C. V. 249. By sec. 75 of the Metropolitan Local Management Amendment Act, tlie erection, without the consent of the Metropolitan Board of Works, of any building, &c., in any street, &c., beyond the general line uf buildings, is prohibited ; and it is enacted that for any iniringement of that provision, the Vestry or Board may summon the oHeiidcr before a Justice who may order the demolition of the buihhng, and make an order as to costs ; and that on default of the owner, the Vestry or Board may enter and demolish it. And sec. 107 enacts that "no person shall be liable for the payment of laiy pmiltijot forfeiture und«jr the recited Acts, or that Act, for any offence made cognizable before a Justice, unless the complaint respecting such offence have been made before such Justice within six months next after the commission or discovery of such offence." Held, that the limitation clause applied only to the case of pecuniary penalties or forfeitures, and not to offences under sec. 75. Vestry of Bemomltfij V. Johnson, L. R. 8 C. P. 441 ; see further. Commercial Bank v. Cotton, 17 U. C. C. P. 214 ; S. C, in appeal, lb. 447. (a) The powers are to pass By-laws for — 1. Numbering the houses and lots along the streets of the Mumci- paUty ; 2. Affixing the numbers to the houses, Ac. ; and for 3. Charging the owner or occupant of each house, ic, mth the expense. Some provision of this kind in large cities is not only convenient but necessary. The intention of such a statute is to give control to one public body, in order to insuns the avoidance of the incoaveni- 71 MARKINO BOUNDARIES OF STREETS. 443 45, For keeping (and every such Council is hereby re- Record of qaireilto make and keej)) {b) a record of the streets, and ti.'^rt*""*' oombers of the houses and lots numbered thereon re8i>ect- JTflv, and entering thereon, and eveiyuuch Council is hereby iMiiired to enter thereon a division of the streets with boiimlaries and distances for public inspection. 36 V. c. 48, Naming Streets. ii For surveying, settling, and marking the boundary p„, marking lues of all streets, roads, and other public communications, the bounda- lail for giving names thereto, (c) and affixing such names at nMiing'" tie coruera thereof, on either public or private property ; but 'treeu, eto. DO bvlaw for altering the name of any street, square, road, line, or other public communication, shall have any force or fffeot unless and until the by-law has been registered in the KegL^try office of the County or other Registration Division ; I jdJ t'.e Registrar shall be entitled to a fee of one dollar, for (ver)' hy-law so registered, and for the necessary entries and j certificates in connection therewith ; 36 V. c. 48, s. 384 (46) ; \ii)\\c.l,Sckil. A. (180). Kce of having several houses in the same street or place of the same limber. Two statutes on the subject were at one time existing in London, giving similar powers to two public bodies, which powers tmlil not, consistently with the object of the Legislature, co-exist ; ind so it was held that the earlier was repealed by the later statute. !k\cy. Mftropolitan Board of Works, 12 C. B. N. S. 161. |4) Most of the preceding sub- sections are discretionary. It is in It power of the Council to refrain from exercising the powers con- I femnl in the discretionary sections, but the provisions of this sub- lectiun are obligatory. Every Council is " hereby required " to make uilkeep a record of the streets and numbers, &c., for public inspec- tion. There are cases where even the word " may " should, looking «the context, be construed as imperative. See The Kinq v. Barlow, ■ 2 Silk, m ; Crake v. Powell, 2 E. & B. 210 ; McDougall v. Paterson, 11 C. B. 755 ; The Quern v. Tithe Coinminsionerx, 14 Q. B. 459. The I ^bjtct of this sub-section is to avoid the iuconvenience either of lnving several streets in the same Municipal ity of the same name, or Kveral houses in the same street of the name number. Seo per "illes, J., in Daw v. Metropolitan Board of \ 'orks, 12 C. B. N. S. 167. (f) The powers are— 1. For surveying, settling »/iid marking the boundary lines ci all wMts, ic, rtee note y to sub. 43 of this section ; - For giving names thereto, see note h supra ; and ■'• Affixing such names at the comers thereof, "on either public or P""!/*! property." ( 'r'i' ;|' 444 AicerUiii* Ing leTelt of MUan, •to. M THE MUNICIPAL MANUAL. Levels of Cellars — Plans. [i. m. 47. For ascertaining and compelling owners, tenants m\ occu))ants, to furniHh the CouncilH with the levels ofthecdlHPi heretofore dug or constructed, or which may heronftcr Wdu^ or constnicted along the streetB of the Muiicipalitv, (d\ Tljo general rule is, that there can be no interference with jirivate property without the m.-vkine of due compensation seo sec. i'yf, and notes thereto ; but tlie interference here sanctioned is (if aotriviaU character, that the permission la given without any provision as h compensation. {d) It has been held that authority to a Municipal Corporation "t/i repair and keep in order its streets, ' enabled the Corporation, with- out special power, to construct drains and sewers. fUlier v. Ilnnu- hurqh 2 Grant, (Pa.) 291 ; Conew. //or(/bJ(/, 28 Conn. 3(i3 ; see alw Borough v. Shortz, 61 Pa. St. o'J9 ; Strowl v. Philmhlphkt, Ih. 2oo; State y. Jeritey City, I Vrom. (N. J.) 148; State v. Jcrmii Vhi,\ Dutch. (N.J.) 493'; State \. Jersfli/ City, 5 Dutch. (N.J.) -141. So itha been deciMv. iV"'/""' ISeld. (N. Y.) 369; /one* v. New Haven, U Com. \]Park(T'''\ 'II ,j(j 1 LEVELS OF CELLAU9. Hich Ifvels to be with reference to iv line fixed by the l»y« ^w«;3GV.c48,8. 384(47). I iN.V Wilson V. New York, 1 Dcnio (S. Y.) I. C^V2•,^t(tl■tiH V. nroiikli/ii, 1 Hill. Western huilrond Co., 4 Gniy (Mass.) oOl ; ,,r,//. lU!rny(Ma88.)3r)3; nih r h^idMimrt V. Wriiiht, 2.') Iiu , , V I W't ; •»/«'"'■" V. Western H JiUs.lhwkhjn, 32 N. Y. 48U ; VhUd v. /io»/«H, 4 AUcu (Mftss.) 41 ; H/i„/r;v. HWw/cr, 10 Allen (Mmis.) 591 ; EoHtmun v. Mnhrith, 3G VH "84' J^'*"''" V. Wiliintiytun, 9 Ire. (N. Civr.) 73; iJtlimniko \'u)irk. 1 Saiulf. (N Y.) 222; Munn v. I'iltshunj/i, 40 I'a. «t.3l^; J/m»v;/(mv. Limer, 9 Humph. (Tenn.) 757 ; Jhtrolt v. Core//, 9lliib,'l05; Wra»' v. Brooklyn, 41 Barl). (N. Y.) .381 ; 8cc also //i/Wdi/v. S'. Lfunard's, Shornlitch, 11 Cy. B. N. S. 192 ; J\ir.soii» v. S'lkiiKlnai, 17 L. T. N. S. 211. A Municipal Corporation would Jit iudiciuusly in insisting on having drains made under the direo- fiin uf thuir oflicers and by their own workmen and con- &wt(ir8, instead of the private proprietors, for it wouhl not do to allow all pcraons to break into a main sower and make drains at their (liscrttii PH. Besides the inconvenience, the health of the eom- nuiiity would suffer from such a course, for the nuisance occasioned h ildtctive draiiuvge may often give rise to a wide-sprcail evil, in- janiig many more than the persons on whose premises the cause of tiit iiuisan('e exists. It seems a necessary policy, therefore, for such » I iiriHinition to keep the matter in their own hiuuls. But then, if tut L'oriKiratiou does for such good purposes prevent proprietors from mking the drains they require, antl oblige them to have them done ktht Coriwration engineer and contractors, it is manifestly just and •ncvary that the Corporation should see that the work is done as it MjlhttolMJ. Per Kobmson, C. J., in lieeoet v. Toronto, 21 U. C. Q. IM. Where a drain was so unskilfully constructed by the Cor- poration contractors as not to carry off the water, but to carry tilth m\ t!ie main sewer into plaintiff's cellar, which for months he yeiiilured, it was held that he was entitled to sue the Corporation 'ur thi! recovery of substantial damages, though no By-law for the making of the drain was proved. Ih. ; see further VanPelt v. Tke •iijo/Dai'diport, 20 Am. 622. So where the drain, though properly (•nstructcd, was not kept cleaned, whereby it became choked up uiJ the overflow ran into the plaintiff's premises. Meek v. White- i*aid Board of Works, 2 F. & F. 144 ; see further Scroytjie v. Mph, 30 U. C. Q. B. 534. So if, in the construction of a drain by Corjiiration contractors, (piantities of earth be thrown up and per- mtteil to continue, so that in times of rain mud and water are I iiven on a person's premises, he is entitled to sue the Corporation iordamagoa. Farrelt v. Loudon, 12 U. C. Q. B. 343 ; see also Jotu-a 'iW, 5B. &A1. 837; Drew v. New River Co., G C, & P. 754;. frovi/ Vompamj v. Donne, 3 Bing. N. C. 34 ; Coe v. i/'wf, 7 B. & ^^31 ; but see IIW v. Lee, 7 E. & B. 426 ; Clothier v. Webster, 12 |- B. X, S. 71)0. Without positive legislation, a grave doubt may » expressed as to the absolute right of the conservators of a high- «) ti) Hood a man's land and destroy his property, even if no other mtthuil uf drainage be attainable. Per Hagarty, J., in Perdue and ''«''l/imcoiM//, 25 U. C. Q. B. 61, 65, 66: " I cannot conceive what Hn they (a Township Municipal Council) can have to drain all the loriace waters of that Township, or of any particular area, up against 44& •I lri> I' ii 446 THE MUNICIPAL MANUAL. [s. W, "St ' OompeiiinK 48 For compelling to bo deposited with an orticor ♦« i^ ioKofground named in tl«e by-law, betoiv. cominoncuig the erection of any SfblliidiEp" *»'••«>•»«. '^ ground or block plan of such building, with th'. toiM levels of the cellars and basements thereof, (e) with rpf.r •fwUd. ^ ' """T- tho Ifind of r.nother, and to drown it in part, or Rltogethcr tn the destruutiop of his farm, although they may have done flair W(,rk la the most ikilful and Bcicntitic manner, and although it may htve been abK.dntely noceasary to drain in this manner for the making if a «ood roml." Per Wilson, J., in Jiowe v. HocheMer, 29 V.. ('. g H 590-695. " I concur with my brother Wilson's juilgniciit, ami i .ji) BO with groat hesitation, 1)Ut I cannot soo my way to n more aatiifac- tory conclusion." Per Morrison, J., Ih. 598. A Muiiiciiml (V {)oration can ac(iuiro the ri^ht to turn a stream of water uimn the ands of another, to the injury thereof, only by an exercise nf the power of onunont domain. Pettifjrew v. EmtnAvillp, 23 Wis. 223 ; 3 Am. 50; soo nlso Smith v. Wnnhiufftnn, 20 How. (U. S.) 13J' Hildreth V. Lowell, 11 Gray (Mass.) 345; Stainton \. Metmt^fyn Bonrd of World*, 23 Beav. 225 ; 3 Jur. N. S. 257 ; t'ator \: bm. ham, 5 B. & S. 115; Aurora v. Jieed, 11 Am. 1 ; liuKk'm v. ,?/. Joseph, Ih. 4(53; Darby v. Crowland, 38 U. C. Q, B. 338; Cyldm V. City of Ottawa, 1 App. K. 54. {e) It is under sec. 76 of the Metropolis Local Management .Act, 18 & 19 Vict. cap. 120, the duty of evenr person, before beginninj; Ui lay or dig the foundation of any new house or building, Ac.tfijnve seven days' notice in writing to the Vestry, &c. The 8;.mc sectim provides that every such foundation shall be laid at such level as will permit the drainage of such house or building in compliance with the Act, and as the Vestry, &c., shall order ; also that every such drain shall bo made in such direction, manner and form, and of such materials and workmanship, and with such br.inches thereto, ami u the Vestry, &c. , shall order ; and that if the house, building or drain, &c. , be begun, erected, made or provided in any respect con- trary to the order of the Vestry, &c. , it shall be lawful for the Vestry, &c. , to cause such house or building to be demoliahed, 4c, It was held that there was no power to demolish without first giving the party gnilty of the omission an opportunity to be heard, roo/icr V. Hoard of Works for Waiuhworth Diatrict, 14 C. B. N. S. 180. Xo man shall be condemned in person or property without an oppor- tunity of being heard in his defence. See Tlie King v. Camhmjf, 1 Str. 557 ; The Kim/ v. Betm, 6 T. R. 198 ; Harper v. Carr, 7 T. R. 270; Capelv. Child, 2 C. & J. 568; Hammond v. Beml>jde,\^'« Got)) where art thou? Hast thou not eaten of the tree whereof I cominandod thee that thou ghouUlRt not eat ?' And the same (luestiou wa« put to Eve also." PfV Fortescue, J., in rv A'ifl'/ V. Cambr'uhje, I Str. 6(5(5, citod by Bylos, J., in Cooper r, RmM of Worki for Wmd»wnrth Dintrkt, 14 C. B. N. S. 1U6 ; Rtdh'rt'onl's (hue, 13 Am. (565 ; Loverhuj v, Dawson, L. R. 10 r. P.:il. The 18 & 19 Vict. cap. 120, was held not to apply to J C.W "f the more removal of a building. Major v. Park Lane Co. , L K. 2 E(i. 453. I/) Where the Vestry directed drainage pipes to bo "stoneware pipeiof the best quality, " tbe use uf Aylesfonl pipes was held not t) be a flufliciont compliance. Anntin v. St. Mary, Lambeth, 4 Jur. .\. S. 274 ; .S'. 6'. 27 L.J. C'h. 677. (;;i It was held, under 18 & 19 Vict, cap 120, that the Metropoli- tin District Board of Works had no power to lay down any general nr arbitrary rule, requiring all owners or occupiers of houses situate ffithiii its district to convert privies into water-closets. Tinkler v. Vawhcorth District Board o/ Work'i, 2 De G. & J. 2(il ; S. C. 4 Jur. X. S. 293. " The question is not whether they have power to cause or order privies within their district to be put in a proper and decent state, if not in that state, but it is whether they have the rigiit or power to force on the plaintiif the mechanical contrivance of tater-closets, with their requisite apparatus, for which he is to find Titer supply as best he may, instead of the privies which, sufficient u privies if kept in a condition proper for such conveniences, are upon bis land for the pu rposes of his cottages there. The claim of thedefcndants in that reupect appears to me manifestly groundless." Pff Knight Bruce, L. J., lb. 294. But an order may be made for tiie conversion of an insufficient privy into a water-closet. St. Lukes r. Lewis, 1 B. & S. 864. The Court of Chancery will not interfere by injunction to prevent a Municipal Corporation exercising bo)ta fjk the powers conferred upon it by the Legislature — for example, in this case, the erection of a urinal. Biddulph v, St. Geonje's, Hawi-er Square, 9 Jur. N, S. 434 ; reversed, 76. 953. The cleans- ing of cellars, sinks, water-closets, privies, privy vaults, &c., is jnma facie the duty of the occupant. Russell v. Shenton, 3 Q. B. 449. If the privy be in such a condition at the time of the letting as to be 1 nuisance, both owner and tenant are liable to be prosecuted ; but if it become in such a condition after the letting, the tenant or occu- pant only is responsible. The Queen v. Osier, 32 U. C. Q. B. 324. An agent merely to receive rent is not liable to be prosecuted in rapect of any such nuisance. Ih. : see further, Peck v. Waterloo miStaJorth Local Board of Health, 9 L. T. N. S. 338. If the owner 'i I m 448 nihiiK In hollow places, draini, etc. Sewerage and drain- age. THE MUNICIPAL MANUAL. ^ ^gg 50 For compelling or regulating the filling up, draininir clearing, altering, relaying or repairing of any grounds, yards' vacant lots, cellai-s, private drains, sinks, cesspools and pi'ivies ; (/^) and for asse.«8ii)g the owners or occupiers of such grounds or yards, or of the real estate on which the cellars private drains, sinks, cessjwols and privies are situate, with tho cost thereof, if done by the Council on their default • 11] 3C V. c. 48, s. 384 (50). '^' 51. For making any other regulations for sewerage (ji of laml on which 'here is a house, construct on the other part of the land a sewor, anu let the house, anil aterwards, by reason of the original faulty construc<-ion of it and the continued use of it by tlie owner in the faulty state, the house is injured, the owner is liable to the lessee for keeping and continuing the sewer so constructed Alston V. Grant, 3 E. & B. 128. (h) A clause of a By-law requuing that "all grounds, yards, vacant lots, or other properties, abutting on any street, shoulcl be drained, ' was held valid. In re McCutchon and Toronto, 22 U. C. Q. B. (il3. The sixth section of a By-law reciuiring all grounds, &c., not already drained, abutting on any street witli a common sewer, to be drained into the same within fourteen days from the advertising of the .'iv- law 'or one week — the seventh section imposing a penalty on any one of not les3 than one dollar nor more than ton dollars for wich montii he should omit to do so — and the eighth providing for enforcing piiy- ment by (listrass, or imprisonment not exceeding thivty-oiie days, were quasheil as illegal. lb. A subsequent By-law added to tlie eighth section above mentioned a proviso, that any person thereby required to construct a drain who should not do so, but be willing to f)ay the same rent as if he were using the sever, should be exempt rom penalties, was also quashed, lb. (i) The statu! j refers as well to sewers, &c. , constructed, as to be cohotructed. In re NcCuichon and Toronto, 22 U. C. Q. B. filS, and though authorizing the passing of a By-law to compel drainage, couples it with a power to assess the cost thereof, if done by the Council, on the owner or occupier, in default ; thus p dntiug out how " the compelling " is to be carried out. Ih. 619. The charge, more- over, if the work be done by the Corporation, is a personal charge, and not a charge on the land. Moore v. Ilynes, 22 U. C. Q. B. 107 ; and so not to be enforced by the same means as ordinar/ assessments. In re McCutchon and Toronto, 22 U. C. Q. B. 613 ; see' further i/rtnt of Montreal v. Fox, 6 U. C. P. 11. 217; Squire v. Oliver, 24 Grant 441. (,/ ) " Sewerage " or " drainage." Sewer, in its general sense, may mean the whole apparatus, and in its specific sens-j. a^lrain or part of that apparatus. Per Lord Campbell, in Poplor Board of )lorl. 534 ; Gilinan v. Lamid, '20 Am. 175. Power to construct a sewer " into, through or under laud" is not to be reetricted to the construction of sewer.i miderlanci. Roderick v. Aaton Local Board, L. R. 5 Ch. Div. 328. (ij See note d to sub.*47 of this section. (') The power is to charge not only all persons who own or occupy proiierty which is drained mto a common sewer, but " which, by any m of the Council, i>s required to he drained into such sewer, vhcther drained or not. In England It has been held that all jiersons whose property derives any advauLr.g'' from the works of Commissioners of Sewers, may be assessed in i espect of that pro- perty. Soadji V. Wilsou, 3 A. & E. 218. Where a district within one Commission of Sewers was divided into ^iepai«te levels, each drained by a separate line of sewers and deriving no benellt from the Kwers in the others, each level was recpiired to be separately rated. Tk(^H<'('HV. Tower Hamlets Commiaaioriers, 9 B. & C. 517. And it was held that the party sued might shew, notwithstanding the iktision of the Commissioners, that he derived no benefit from the Kweras a defence to the action. Stafford v. lleunston, 2 B. & B. 691. It was also held, that under the English Acts it was uot alone suffi- cient to justify an assessment to the sewer rate that the property should derive some benefit from the drainage ; but it was also neces- »n' that there should be an occupier of the property assessed. .Vc.fp V. Weather, 3 Q. B. 984 ; Tracey v. Taylor, lb. 966. A tenement in the King's Dockyard, deriving a benefit from publio «ev. rs, and occupied by an officer of the Government paying no rent, *a bcU subject to sewerage rate. Nethertonv. Ward. 3 B. & Al. 21. The power ia to charge "a reasonable rent for the use of" toe sewer. An amercement on a Township generally, and a distresg on one of the parties Hable, by Commissioners of Sewers, was held good- Hammii v. Nornahell, 11 A. & E. 383. But it vras held that 10 (ustress could be levied for any such pui-pose within the precinct* 57 < H' J5S 450 THE MUNICIPAL MANUAL. Licensing Transient Traders. [s. 466. Regulating traniiient trsden. 53. For licensing, regulating and governing transient ti'aders and other persons who occupy pi-emises in the City or Town, or incorporated Village, for temporary periods, \tn) and whose names have not been duly entered on the mm. ment roll in respect of income or personal proi)erty for the then current year ; 36 V. c. 48, s. 384 (53). User of Streets. ^jmiaMuu 54. For regulating the conveyance of traffic in the public "^ " streets, (n) and the wid*\ of the tires and wheels of all vehicles of a royal palace, occupied as the residence of the sovereign. Attopiey-General v. Donahh'm, 10 M. & W. 117. The owner or occupier of property drained, or required to be drained,by a sewerage By-law, may legally be allowed to commute by paying a fixed sum in gross, in discharge of the annual rental. In re McCutfhun v. Toronto, 22 U. C. Q. B. 613. The charge is a personal one. tiamin V. Vestry of Paddinrjton, L. R. 6 Q. B. 164 ; Vfdry of St. Giln, Camheitcell v. Weller, lb. 168 n ; Sheffieki v. The Board of Worb, L. R. ] Ex, Div. 395; Board of Works v. Goodwin, 76. 400; see further note i to subsec. 50 of this section. (m) Taxes are usually imposcil annuall J'. Persons liable are gener- ally assessed in the commencer ont of the year ; the taxes are after- wards imposed, and not collected till the fall of the year. Traden who live m the Municipality throughout the year cannot well escape taxation ; but those who come into the Municipality after the Assess- ment Roll is completed, or leave it before the Collectors' Roll is jompleted and in the hands of the Collectors, would escape if there were no such provision as the one here annotated. Power is given by by-law to //>e??sc, regulate and govern such traders. Thcixwr to license incrides the power to charge a reasonsible fee for the license, and to prevent the doing of bus^'ness till such fee be jKiii See sec. 465 sub. 3 and notes thereto, as to hawkers, peilhirs, &c. (n) The powers here conferred are for regulating — 1. The conveyance of traffic in the public streets ; 2. And the width of the tires and wheels of all vehicles used for the conveyance of articles of burden, &c. It would seem that the Municipal Council may pass By-laws regu- lating the rate of speed allowable in the public streets, the route over which omnibuses may pass, and the time of day for which imrticular streets may be used for particular purposes. Commonwealth v. Stodder, 2 Cu-h. (Mass.) 562; Commonmalth v. Bobertmi, SCush. (Mass.) 438 ; Vanderbilt v. Adavis, 7 Cowen (N. Y.) 349-352; Il(i4- mgton v. Na^Hlle, 1 Swan. (Tenn.) 177. So to pass By-laws regulating the removal of buildings, and the temporary use of the streets for that purpose. Day v. Green, 4 Cush. (Mass.) 433-437. So to pre- vent the unnecessary obstruction of streets and crossings by railway ,466.] USER OF STREETS. 451 aw9 regu- route over . particular imcdilth V. mn, -^Cush. m ; '•'«"*• regulating gtreets for So to l>re- by railway used for the conveyance of articles of burden, goods, wares or street*, merehandize. 36 V. c. 48, s. 384 (54). *»'«"''• «♦«• cars, Davln v, Xcw York, 14 N. Y. 506 ; also to prohibit the uso of steam and regulate the speed of such cars. Doniififutr v. State, 8 Sm.tMar. (Mise.) 649 ; Railroad Co. v. BHffalo, 5 Hill (N. Y.) 209 ; \{n\tz V. Loivj Inland Railroad Co., 13 Barb. (N. Y.) 646, unless there be something in the special charter of thj nompany or general law of the land to the contrary. State v. Jersey City, 5 Dutch. (N. J.) 170. lu England legislative sanction is necessary to enable a com- pany to occupy the streets for a horse or street railway. The Qiieen \: train, 9 Cox. 180; Oalhreath v. Armour, 4 Bell App. C. 374; see Jko The Queen v. Ga^ Co., 2 E. & E. 651 ; The Queen v. Charles- mrth, 16 Q. B. 1012. So in the United States. Boston v. Richard' m, 13 Allen (Mass.) 140 ; City Railroad Co. v. Memphis, 4 Coldw. (Ten;i.) 406. The Legislature may authorize Municipal Councils to give or withhold an absolute assent to such a use of their streets, or provide for use upon certain conditions. Railroad Co. v. Baltimore, 21 M(l. 9%) Railroad Co. v. Leavenworth, 1 Dillon (C. C.) 393; Hm V. Railroad Co., 21 111. 516-522 ; Frankford Pasaemj-r Pail- mil Co. V. Ph'Jfulelphia, 58 Pa. St. 119; Clinton v. Railroad Co., 24 Iowa 455; People v. Kerr, 27 N. Y. 188; Hinchman v. Patterson Horn Railroad Co., 17 N. J. Eq. (2 C. E. Green) 75 ; Philadelphia v. /Mromi Co., 3 Grant (Pa.) 403 ; Commonwealth v. Central Pas- wnjrr Railroad Co., 52 Pa. St. 506; Railroad Co. v. 0^ Daily, 12 Inii. 551 ; Railroad Co. v. Applhjate, 8 Dana (K.y.) 289 ; City Rail- rmlCo. V. Louisville, 4 Bush (Ky.) 478 ; People v. Railroad Co., 45 BirU (X. Y.)73; Railroad Co. v. Adams, 3 Head (Tenn.) 696; Sifth Avenue Railroad Co. v. Kerr, 45 Barb. (N. Y.) 138 • McFarland f. Railrooil Co., 2 Beasl. (N. J.) 314; Brooklyn Railroad Co. v. Railroad Co., 32 Barb. (N. Y.) 358 ; Railrooil Co. v. New York, 1 Hilton (N. Y.) 562 ; Ifercer v. Railroad Co., 36 Pa. St. 99 ; City Mroad Co. v. Memphis, 4 Coldw. (Tenn. ) 406 ; City Railroad Co. yCity Railroad Co., 20 N. J. Eq. 61. But direct authority to a Company to carrj' passengers over the streets of a City does not exempt the Company from a certain amount of Municipal control in tie conduct of its business. Frankford Passenger Co. v. Phila- ^iliia, 58 Pa. St. 119 ; State v, Hero in want of. domestics or labourei's, and for ree obierved upon reading the subsection, been extended to the proliibitum of buildings " ofJiei- than those having nicain walls of brick, iron or stone, and roofing of incombustible material." The removal of a wooilen building to the jjrohibited district would be an "erection' or •'placing," within the meaning of such a By-law. IVailleiiihw Gilmnn, 12 Me. 403 ; see further, S/tiel v. StUherland, fi H. & N. 790; Jlobhs V. Dance, L. II. 9 C. P. 30. Ordinary repairs would not, however, be either an "erection" or "placing." Brady \. Inm- ance Co., 11 Mich. 423, 4G9; Booth v. State, 4 Conn. 65; Bmntw Hunn, 27 Conn. 332 ; Tuttle. v. State, 4 Conn. 08 ; Stexoart v. Com- monwealth, 10 Watts (Pa.) 307. The power to pull down or remove a Ijuihling erected or placed in contravention of the Bylaw, though a necessary, is a strong power, see note n t'> sijb. 10 of sec. 461, and should only be exercised in cases clearly of contravention, and after notice to the person ofl'ending, so as to give him an opiior- tunity to show cause before the destruction of his property. See note e to sub. 48 of sec. 466. It would seem that a person specially injured by the contravention of such a By-law would havi; an action against the wrong-doer. Aldrich v. Howard, 7 Rh. Is. 199, but not against the Municipality. Forsi/th v. The Mayor, ipo8 in any strctit, and ownin? streets for tlie purpose ; and for taking »ip or re- Kiirin? such pipes, and for using every jiower and prniloge ■ivpntonny Gas or Water Company incorporated in the Mimiciiwlity as if the same Avere specially given by this Act, siibjict, however, to the provisions herein contained as to tlio erection of pas or water-works and levying rates therefor ; (;•) 3oV.c.48, s. 38.3(14). I.'i, For providing for the a])pointment of three Commis- fioiifTs for entering into contracts for the construction of gas Ml] water works ; («) for superintending the construction of thesiinic; for managing the woiks when completed ; and lor providing for the election of the said Comip'.ssionei's I'Vtlie electors from time to time, and at such jieriods and for such terms as the Council nniy may apprint by the liv-Iaw authorizing the election ; (<) 3G V. c. 4^, s. 3m (11). 111. For constructing gns and water works, and for levying snaiiiuiiil special rate to defray th'. yearly iuteri'st of tho ex- ]v>nilitnre therefor, and to foi-m ar* equal yearly sinking fund htheiiayment of the principal within a time not exceeding 457 r.ny1nRclowo ftxH and water pipe*. Commis- sioner* for erection of (tii.s or water worka. fVl Construrtion 01 j^!is and watur woi ks. 'trictsi'.nd pnMic s'^v.ai'os for public purposes, .lU'l subject to as i.::ie iiicniiv'ji: ieiicc to the public as oonipatilile witli tlio exorcise of nei-iithiirity. See note (./") to sec. 4()1, sub. 2:1 The object of this iji'jLctioii is ;o en",ble the Corporations of Cities ami 'J'owns. if so 'i.-;"S«l, tlic! iKclves to erect the necessary works to Hyht tlie ,Miii;i- (;;Ml:ty, instcul of contracting with a private comi)any. The nc.vt siik'ctiou makes similar jn-ovision for the snp]ily of water. Tho W'iKis tobe lione by Conunissioucrs. See snl). J"». It is presumed that any interturcuce with private property for either purpose would l^suiiKctito the ri^'ht of the owner to claim compensation. See »■■ 450, ami notes thereto. i>i See preceiliug note, '•■I This is the subject of an an Act of tlic Dominion Legislature. 5^\ictcap. 48. \>) T!ic powers are for — '■ Pnrldiiig for the appointment of three Coiumis=!ioner3 f «•; rmg into contracts for the coustruiition of gas or water works ; -• ^iipirlnkntUnij the conatructi ..p. of the same ; 3. Munwjlmj the works when completed ; , f™^'i'bng for the election of the Commissioners by the electors '■'Ml time to time, &c. ^ 5S ''t for 458 Ihtlinato to bo publinbed and noticH uf taking poll on by-law. Poll to be held and majority muHt bo 111 favour. By-law to be passed with- in three months. If by-law rejected. THE MUNICIPAL MANUAL. [sg. 468 4(;j thirtv vrprs. nor lesn than five yeara. (ft) 36 V c 48 1 385(17). ' ' •'• 468- No by-law nndor tli3 lust sub-section cf the jMccttd- ing aoctiou shall be passed — (i) First : — Until ostimates of the intended expenditurp have been published for one month, and notice of tlio timeai*- pointed for taking a poll of the electors on the proitoNwl hv- law has been jniblished for two months, and a co])y of the proposed by-law at length as the same may be ultimaU'lv passed, and n notice of the day a])i)ointed for finiilly consider- ing the same in Council, have been published for thrwMiiontlis in some n(!wspaper in the Municipality ; or if no iicwsiiaiier is published thei-eiu, then in some newspaper i:i the Couutv in which the Municipality is situate ; (c) Nor, .secondly :— Until at a poll held in the saino manner and at tiic same places, and continued for the sumo tune iw at elections for Councillors, a majority of the eloctoi-s, votiii;' at the poll, vote in favour of the by-law ; Nor, thirdly : — Unless the by-law is pas.sed within tliite months after holding said poll, (d) 30 V. c. 48, s. 38G. 469. If the })roposed by-law is rejected at such poll, no other by-law for the same pur})ose shall be submitted to Divisio.v VII.— I (fi) The By-law ia made subject to a vote of tho people. Sees. 468, 4G(). {h) The requisites, under this section, to the validity of the By- law, appear to V)o the following : 1. Publication of estimates of the intended expenditure, for one month ; 2. Publication of the notice of the time appointed for taking a poll, for two months ; 3. Publication of a copy of the proposed By-law as the same may be ultimately passed, niid a notice of the day appointsil for tiailly considering the same, for tliree months ; 4. Ratification of the By-law by a majority of the electors ; .5. Passage of the By-law within three months after hoUing the poll. Failing these or any of them, the By law may be held invalid. See note // to sec. 280. (c) See notes * and j to sec. 286. (d) See note a to sec. 177. e. heus. I same may , fur tiiuJly nvaliJ. See 4-0-472.] OAS AND WATER. the elector during the cun-ent year, (e) 3G V. c. 48, s. 470. In cftse there is any Gas or Water Company incor- mmttnl for the Municipality, the Council shall not levy any -as or water rate until (/) such Council has by by-law fixed u iiiice to ofler for the works or stock of the Company ; nor until iitif r tliii'ty days have elapsed after notice of such price has kfii communicated to the Company without the Com- tianv's having accepted the same, or having, under the pro- visions of this Act as to arbitrators, nametl and given notice iifiiuailiitmtor to determine the price, nor until the price aciepted or awarded has been paid, or has been secured to the siitisfactiun of the Company. 3G V. c. 48, s, 388. 471. TIi»' foregoing clauses or any of them shall not be cuiLstnied to apply to or affect the provisions contained in any it|peciiil Act obtuiued or to be obtained by any Company or Muiiioipiil Corporation, (g) 36 V. c. 48, h. 389. 459 ProTiilona where tbero Is a gas or water com- pany Inoor* poroted for the muni- cipality. Proviso as to proTlsloDs in gi)ecial Acts. Division- VII.— Pow '»' CouNcius OF Towns and iNcouron- .vTEU VlLLAOES. 472. The Council of every Town and Incorporated Village ny-iaws may ..-:..m by-laws :(;.) . t-^' 'f\ T!ie object of this section is to protect the r.atcpayera bi'ing hamsse.l and the Municipality put t(> needless expense by the useless mi' :'i )i in of By-laws for approval of the electors. The "current year ii nded is the current Municipal year which begins on 1st January and ends on Slst December, antl corresponds with the caleiiilar year. If the By-law be rejected at any time in one year it caimot be ayain submitted until the year following. i/) The course of proceeding indicated appears to be tlie following : 1. If there be a Gas or Water Company incorporated in the Muni- ci[i;ility, the Council of the Municipality, before levying a gas r water rate, is by By-law to fix a price to be offered for the wor' , •- st'nk i)f the Company ; i Tlif Company, within thirty days after comnumicatiou of a Min of a price, is either to accept the same or to proceed to arbi- tnti./ii ; 3. If the Slim be either accepted, or a different sum awarded, the Mnnicipalities before levying the rate, is required to pay or secure tbt sum. i;i) A general enactment does not usually derogate from or inter- fere »ith the provisions of a special Act of Parliament. See note c to sec. 1. (p) Commissioners of Police in Cities have similar powers to those '^1 ■' 1 1 'A< t m i 460 I [V. ! .■ i I .1 TlIK MUNICIPAL MANUAL. [tn. 4"3, i:| Licensing Vehi'clett, d'c. << n.'(rtiiiitin({ 1 . For ro'niliitiiii' ami liC(!UHinctlio ownciH nf livorv mil,!- and llcoiiH- 1 ii I 1 • •! 1 , .'""""^ tnK ilTery RiKi ••» horscs, oiilw, (;iirna«^(*H, omnihiiHCH ami otlifr \>|ii( Im jtHblo»,cab«, f,„. iijj,, . (,^) for cMtabliHliiujj; tlie rateH of faivs to bf taken l)y ttio owiKTH or ili'iv«rn, (r) and for euforciii!/ ii;iviii..ai thereof. («) 30 V. c. 48, h. .391. Division VITT.— Excluhivk rowEiis of Cointils or CorNHBi. lidHjU'cXuiij Pi'olcrtioii of liooma. Six, 47.3. ** liouril of Awl'it — Criminal Justice Accoihtk Sees. 474, 475. J/ivcri/ Slohlns, (Cv;. Sec, 47G. Jlorxe Thi.trea, Scr, 477. /vi/»'orf;mejtfs hj Hinijh Cotintiea of a Union. S'fi, I 478-482. 473. The Council of every County (<) may luuko Iv-lavj; Protecting Booms, 1. For ]n'otocting nnf] rciifiilating booms on any "tnara or river for tlio .safo ktu^ping of timber, s:uv-!i);'s itnJ I staves -witliiii the Municipality. (?t) 46 V. e. 4!^, s. 3'J:'. Board of Audit — Criminal Justice, lix- 474. Every County Council shall ajMnnt at its first inet'tinn iu each year two jtcrsons, not more than one of wliom shiil I belong to such Council, to be members of the IJoaid of 1 Audit, {(() for auditing and approving acco\uits muI clfinaiulj By-laws niBj b« iimJu ftir — Protecting booms. County Boards of Audit. here conforrcd uitou Councils of Towns and Incor^iorated Vilhgei | See sec. 415. {'/) Sec note ;/ to soc. 415. (;•) See note /( to sec. 415. {k) See note i to sec. 415. (t) Kestrictctl to Counties. (n) The right to lloat timber, saw-logs and st.avcs over river!" snij I other streams, is an ordinary riglit of navigation, and is recmrniMd by atatnte. See JAttli' v. Inr,- vt ul., .3 U. C. C, V. 'il'S. Suchtmikr| is usually for the time kept in Ijoouis, and the protection aiul rijiila- tion of booms becomes tlierefore a matter of municipal ctmcern. (a) It would be very inconvenient for the Council to pay th« accounts mentioned in this section to the sevenU otficers before auiU' \lmiJ.,H V. I'lmftf, 2 Tf i:M"C.] LIVERY 8TAULES. 4C1 fp-iVrml against the Cotinty, the npproving and »\ii(Uting fhiTfif jiri'vious to tho ninetec^nth day of Decoiulicr, oiio ibiiu^Hiitl f'lK''*^ hundred ' and Hixty-figlit, belonged to tho j>,i,.nil Quarter HesHions. 30 V. c. 48, s. 393. 476. The Council may pay tho i)erHons appointed by thoni Payment of tu^rvcoii tlio HJiid Board of Audit, any isuni not exceeding uottra"""'' luiir iliillaiM'ticli per day for their attendance at Huch audit, U.J livi' celts for each ndle necessarily travelled in respect \knvi ill goini; to and from such audit. (A) 30 V. c. 48, s. 3l4:4UVic. 7, iV/t'/, A. (18-J). Livoij II or sen, lOc. 476 Tlic Council of every Coinity, having County gravel R,.^,uiing I (.r iiiauadiiiiiizi'd ronds within its jurisdiction, and iinder its "'"^"'-•'•'"'''''B imiiinliatf control, such roads beinj< kept up and repaired (ltul)le^ Ac, kniuiiiciiKil tiixiition, and upon which no toll is collectcMl, (c) skiillmve power to pass a by-law or by-laws authorizing the U;'u!iitiiig iind licensing of the owners of livery stables, and I (j li'irs's, cubs, carriages, omnibuses, and all other vehicles K'Til ur ktnt for hire ; ((0 and for issuiiiL' and regulating KtliniovemmLiit auditors and final nllowjinco by tho fiovoniniont ; li^thdi (iciasions might be conutautly arising for reclaiming from lue'tiiarH any sums that tho Governmout County Auditors or the IfrcviiKial Truasurer may have rojocted. /Vr llobinson, C. .)., in \lmii,it V. l',m>,etf, 21 U. C. Q. K 472, 484 ; S. C, 22 U. C. Q. li. h\'l: M al.io lit n DacUhon and QiKirtir iSetmiou-i, 24 U. C Q. li. (50 ; \h r> Ihiiiiiill (iiid Quarter Srssioii-'*, 2(5 U. C. Q. B, 430; In re \li'!>l,n:rrM' Lincoln, 34 V (J. Q. B. 1. '' As to compensation to pidilic officers. See note x to s. 273. Tliij section does not extend to the Comicil of every County. 1' a r'stiicttMl to a County " having C!ounty gravel or maoaibvmi/ed JKAliiwitlim its jurisdiction (iml under its inuntdiate oontnd, such |iw.ls king kept up and repaired by Muuicipal taxation, (tH(/ upon I'iuchiio toll is collected." 'i Tlie powers conferred are for — 111 ''''^'^**''^8 '''"'^ licensing of the owners of livery stables, and of JMses, cahs, carriages, omnibuses, ai. I all other vehicles used or |"?t tur hire ; i Ibsuiiig and regulating teamsters' licenses ; i Kegiilating the width of tiro used on vehicles ; \i Establishing the rates of fare that may be collected or taken by iBiuwuers or drivers ; i Enforcing the payment oi such licenses ; I ^ '^i' WW' 462 li ■• ' - Kateg of &re. hi Rewards for appre- hension of persons Kuilty of horse bteal- ing. THE MUNICIPAL MANUAL. [g, ^^J1 teamster's licenses ; (e) lor regulating the width of tire nsed on such vehicles ; (/) for establishing the i-ates of fare that may be collected or taken by the owners or drivera • (g) for enforcing the jiayment of such licenses, (A) regulating rates of fares for the conveyance of goods or passengera ; (?) and for enforcing the width of tire that may be used on such vehicles, when travelling on the aforesaid County gi-avfel or macadam ized roads. 36 V. c. 48, s. 395. Horse Thieves. ■ 477. The Council of every County shall provide by bylaw, that a sum not less than twenty dollara shall l)e payable as a reward to any person or persons who shall pursue and appre- hend, or cause to be apprehended, any pei-son or persons (niiltv of stealing any horse or mare within the said County, (i) or 6. R«gulating the rates of fares for the conveyance of goodt passengers ; 7. Enforcing the width of tire, &c. See note 8 to sec. 415. {e) It is presumed teamsters teaming for hire only are here in- tended. See note tj to sec. 415. (/) See note n to sub. 54 to sec. 466. {(j) See note h to sec. 415. (h) See note i to sec. 415. ( t ) See note h to sec. 415. {k) One of the objects of Municipal government is the protection of property. In furtherance of this object, it has been held in snme of the States of the Union that a Municipal Corporation may offer a reward for the detection of offenders against the property of anotiier. Thus in cases of arson. Y'ork v. Foysc/d, 23 Pa. St 391 ; Craw^kir V. Boxburif, 7 Gray (Mass.) 374. But in other States the power to offer rewards for the detection of criminals, in the absence of expresi legislation, has been denied. Gak v. South Bvnmk, ^\ Me. 174; see also Lee v. Fle).iiniishi(>.f, 7 Dana (Ky.) 28. In this Province express legislative sanction is necessary to the exercise of the power. Om- VHtUv. West Niniouri, 25 U. C. C. P. 9. The power in this section is restricted to rewards for the pursuit and apprehension of a person j or persons guilty of stealing any horse or mare within the County, i and to By-laws passed by the Council of the County. Ih. The i reward is not to be " lens than twenty dollars. " This is the minimum ; j 80 the Council may make the reward as much more as thev think j reasonable. The reward is to be payable to the person " who shall pursue and apprehend," or cause "to be apprehended," the guilty person. It is only to l)e paid on convicti jn of the thief, and on the order of the Judge before whom the conviction is obtained. Any per- ] HORSE THTEVE8. 463 8.477.] »nd such reward shall be paid out of the funds of the Corpo- ration on Conviction of the thief, on the order of the Judge liefore whom the conviction is obtained. (I) 36 V. c. 48, s. 396. See 29-30 V. c. 51, s. 355 (26). [Subsection 27 of Section 355 o/ 29-30 V. c. 51, enacts as followi :— •>; The said reward shall not disqualify the person claiming the Not to clJ>> mi or entited thereto, from being a witness.] w^tlllS^ ion performing the service, who, without such reward, is not bound to perform the service, and placing himself in the position described bv the statute, may sue in any Court of competent jurisdiction for the amount of the reward. If it were the duty of the person M-ho made the arrest to have pursued and arrested him without any reward, he annot recover, for, so far as he is concerned, it is a promise without consideration. See Stoteabury v. Smith, 2 Burr. 924 ; Stilk V. Myrld; 2 Camp. 317 ; Harris v. Watxon, Peake 72 ; Briilgev. Cage, Cro. Jac. 103. It has therefore been held that ivatchman, who, while in the discharge of his duty as such, dis- covers a person in the act of committing the crime of ar^on, cinnot recover the reward oflFered. Pool v. Jionton, 5 Gush. (Mass. ) 219 ; GUmore v. Lewis, 12 Ohio 281 ; Means v. He.ndernhott, 24 Iowa 'i But where three persons broke gaol, and immediately after their escape the defendant, who was Sheriff, offered a general reward of one huixlred dollars for the capture of each prisoner, it was held that the Deputy Sheriflf, having succeeded in capturing two of the fugitives, ▼as entitled to two hundred dollars. Davk v. Mumon, 43 \ t. 677. "Upon the facts as detailed, the plaintiff had authority to arrest these prisoners without process and as a Peace officer. It would, in a general sense, have been his duty to do so if they had been pointed oat to him under circumstances to assure him of their identity and to lead him to apprehend reasonable danger of losing them if he waited for process. But the fact that he had this authority and was under this general duty did not put him, having no process in hand, under ay specific legal obligation to look them up . . . . The plaintiff, being under no specific official obligation to enter upon the netective lervice, for which he would not legally be entitled to pay from the State, he is clearly a person who mi^ht engage in it in reliance upon theoffer of this reward," &c. Per Steele, J., lb, (/) The obligation to pay is conditional — 1. On conviction of the thief ; 2. On the order of the Judge before whom the conviction is obtained. The plaintiff must in general prove performance according to the terms of the advertisement. See XeviUe v. Kdli/, 12 C. B. N. S. :*);,9mt7/i V. Moore, 1 C. B. 438; Thatcher v. Enqlaml, 3 C. B. 2*4; Enroveni(:nt8 therein. Reeves, &c., of the county in- terested alone to vote. Exception. Provisions of this Act for re-pay- ment to apply. Treasurer pay over moneys witho\it deduction. to THE MUNICIPAL MANUAL. [ss. 478482 Improvements hy either County of a Union. 478. The Councils of United Counties mpv make appro, priations and raise funds to enable either Couuty separately to carry on .such improvements as may be required by the inhabitants thereof, {m) 36 V. c. 48, s. 397. 479. Whenever any such measure is brought under tlie notice of the Council of any United C(?unties, none but tlie Keeves and Deputy-Eeeves of the County to be aflfecteJ Ly the measure shall vote ; (n) except in case of an equalitvof votes, when the Warden, whether a Reeve or Deputy Keeve of any portion of the County to be efliected by tlie measure or not, shall have the casting vote, (o) 36 V. c. 48, s. 398, 480. In all other respects, all the provisions of this Act giving such privileges and making provision for the iiavment of the amounts appropriated, whether to be borrowed upon a loan or to be raised by direct taxation, shall be adhered to (n) 36 V. c. 48, 8. 399. 481. The Treasurer of the United Counties shall pay over all sums so raised and paid into his hands by the sevenJ Collectors, without any deduction or peceutage, (;*, '1 ■ ReguUting 5. For regulating the manner aiiJ the divisioiw iij whicli £w To. statute labour or commutation money shall be iHJifoimed or expended. («) 36 V. c. 48, s. 390 (5). See 40 V &'c/ied. A (\ 81). c. (, of neglect or refusal to pay the same, the Collector may levv the same by tlistreas. If no suflicient distress can be fouud thtu upon summary conviction, liefore a Justice of the Peace of the County in which the local Municipality is situate, of his refusal or neglect to p ly the said sum and of their being no sutHduit distress, ho incurs a i)enalty of Kve dollars with coats; and in default of payment at sucli time as the convicting Justice slwl' commitment and of conveying the said person to gaol, b« 8oiiiicr paid. Assessment Act, sec. 85. And any person liable tu perfumi statute labour, under section 79 of the Act, not coniiuuteil, ij required to perform the same when requireil to do so by the iiath- master or other officer of the Municipality appointed for the pur- pose ; and in case of wilful neglect or refusal to perform mh same, statute labour after six days' notice requiring him to i1(j the shall incur a penalty of five dollars, and iij)0ii summary convictimi before any Justice of the Peace, such Justice shall order the mui.;. together with the costs of prosecution and distress, to be levied liv distress of the otfenders' goods and chattels ; and in case tliers "ln'i' bfc no suflicient distress, such ofTemlcr may be committed tn the common gaol of the County, antl there put to hard labour for any time not exceeding ten days, unless such penalty and costs, ami th. costs of the warrant of commitment and of couveyiDK the pers'ju t > gaol, shall be sooner paid. lb. All sums and pen.iTties rccovcril under this section must be paid to the Treasurer of tlie 1i«m1 Municipality, and form part of the statute labour fund tliereof. /'>. The warrant may, it seems, issue for imprisonment without first summoning the (fefaulter to answer, or making a formal conviction. IVie Queen V. Morrin, 21 V . C. Q. B. 392; but see note « to suli 48 of sec. 4()G. A By-law directing that the Overseers of Highwiiys should bring any person refusing or ncijlecting to perform statutt labour before the Reeve of the Municipality or nearest Justice of the ■ Peace, who, upon conviction, should impose a Kne of five sliiUuii's '. for each days' neglect, with costs, and adjudge tliat the payment vi , such line should not relieve the person fined from the perforuiaiicc j of the labour, was held good. In re Stinlihtrd and Willjerjom, mJ ! Grattfm and Eraser, 15 11. C. Q. B. KiS. So a By-law enactini; that i any person liable to perform statute labour, w ho after being duly notified should neglect or refuse to attend, sboubl forfeit or pay live shillings for every day he should neglect or refuse, and that tk<^ pay- J ment of suoh fine should release sucli person from tiie performance oi j statute labour, was held good, la re Banniniuin and Yanmnlk la| U. C. Q. B. 14. (n) The power to regulate the divisions implies a power to make j divisions, to which is added a i)ower to regulate the manner in hIwJ the labou« shall be performed or the commutation money exi«u>i.ill in each division. A party to save himself from tine must ptiioruij , 484.1 OBSTRUCTING STREAMS AND WATKH-COUB8E8. 469 may levy uud, tht'u i-or to make |ier 111 which ly exiwii'i'^'' Ist iitiioruif 484 The Council of every Township (t) may also ijass by- Bylaw* '^^ maylM llfl ; — niadtt foi^- Ohstrnctio.is to Streams ami Water-courses. 1. For preventing the obstruction of streams, creeks and PreTentlog^ inter-courues, (u) by trees, brushwootl, timber, or other nf^tre^" iMterii».!3, and for clearing away and removing such obstruc- *«• tions ftt the ex|)en8e of the otfendei-s or otlierwise ; 2, For levying the amount of such expense in the same r^rying manner as taxes are levied ; (v) "-.— — «xp«D8M. then called upon, his statute labour within the tlivision of the Town- ship in which lie resides. Oaten v. Dtren'uth, 6 U. C. Q. B. 2()0. (/) Restncte*! to 7W7w/(yM only. . . ; .i In) According to the civil law which pervaded the Province of (Quebec until the division thereof in 171)2, all rivers were distinguished u m lilic and private. Such nvers were called public rivers which ffii'iitained a i)erpetua! stream and were capable of being navigated ; Jill an wpresB interdict was made that nothing should be placed in i public stream whereby the navigjition might be prejudice 1. The dnhans held that a stream might acijuire the denoutination of Sver atlier by its magnitude or by the common acceptation of th \ neigh- Mrhdod. A river was distinguished from a couuuon currc.it occa- Meil l)y land Hoods, because one had always a constant stream, wlarly contined within banks, and the other might be casual and kmiKirary, flowing over a level. A temporary inundation by floods [ fu unt accounted to deserve the appellation of a river, or to alter I fc original private nature of the soil. Wherever a public stream iowed, though it were through a x^rivate channel artificially made, j Rt it coiistituted that place public ; but on the other hand, if the Kream ceased to flow over it, then it became again private. Per \hxaky, C. J., in The Quten v. Meyers, 3 U. C. C. P. 305-317. In England there seems to be at common law three descriptions of I liven or water-courses : 1. Narigable rivers, technically so termed, see note hi to sec. 495 ; 1 Rivers not navigable in law, but so in fact ; and though private a relation to the ownership of the soil, yet public highways in rela- I tioD to the use of the water ; 3. Private rivers strictly so called. Per Macaulay, C. J., TJie |Vw^»v. Meyern, 3 U. C. 0. P. 318. 'I'' powers under this section are for preventing the obstruction I ii''^'"*' '^'"^®''^ '^'^d water-courses," and wouhf appear to apply 1 to ill the foregoing streams. A person having mills partly on a road iHuwaiice and parcly on a public river, was held not to have such an afcrest in the river as to be entitled to complain of an obstruction pii GileA V. Campbell, 19 (irant 22G ; see also Cockhurn v. Eiwer, i In 1859 the defendants assuming to act under Consol. Stat. U. cap. 54, 8. 277, passed a By-law retiuiring persons to clear out all . V I: 'M 470 Penalties. •tre«m in anv town- ship cieared of obstrao tioiw, notlee may be served on council of adjoin'' t munic , "ty t'rorih wliich stresn irnu-, requ* og them %o reninye obstructions within their vinnici- psilty. THE MUNICIPAL MANUAL. fg 435 3. For imposing i)enRltie8 on- pai-ties causing such oUtm- tions. (w) 30 V. c. 48, h. 402. 485. Whenever any stream or ci*eek in any TownKhii, » cleared of all logs, brush or other obstructions to tb«! Towq line between such Township and any adjoining Township into which such stream or creek flows, the Council of the Town- ship in which the creek or stream has been cleared ou)b8tnic tion ma/ serve a notice in writing on the hearl < '':]i, Viinch of ' ' 1 at 'oining Township into wliich the stream or creek x.< , .», I ^^ lesting iuich Ooi-ucil to clear such stream or creek thr-.>;rh their Municipality ; (//) and it shall be the dutv of v'ci. i,',dt named Council, within six months after thcHervice of the L< 3 as aforesaid, to enforce the removal of all obhtnic tions in such creek or stream within their Muuiciitalitv, to the satisfaction of any pei*son whom the Coiuicil of the County in which the Municipality whose Council served the notice is situate, shall appoint to inspect the same. (;) 36 y. c. 48, 3. 403. Title II. — Powers and Duties of Councils as to Hninw.us AND Bridges. Div. I. — General Provisions. Div. II.— Counties, Townships, Cities, Towns and Villages. ■' .' ! obstructions in streams acroaa their lots, antl providing that the Council in their discrcition inicht do the work and levy the oust thereof by Bi)ecial late on the lands, imposini' i)enaltie8, &c. The defendants therefure cleared a stream on and alK)ve the pUintilf's land, and assessed him as a non-resident for $75, the amount ex pended on his lot, which he paid. The defendants did not, however clear the stream on the lot below, nor compel the occupant to di e», whereby in times of freshet increased quantities or water wert brongi>t down and dammed back on the plaintiff 's land HcM, that the defendants were not Uable to an action for damages at the suit of the p'aintiff. DaHcml v. Chatham, 24 U. C. C. P. 590. {w) See note w to sec. 454, sub. 12, (y) The previous section relates only to the removal of obstructious from a stream vithin a Township ; but where the stream flows into an adjoining Township, so that it may be said to be the joint interest of both townships to have the stream cleared of obstruction, pron- sion is maile for the clearing of the stream through the secoml Mum- eipality. (z) This involves the appointment by the County Council 0/ aa Inspector. The work is to be done to his satisfaction. NoproviaoA j 1 im] HIOHWAVS. DiT III.— Townships, Cities, Towns aud Villages. j),y' iv.-CovNTY Councils. p,y' v.—TowNsiirv Council . 471 •Ul- *•• "r Divi!>' N I.— General Fkovisions. , * ' //ijA»«iy» defined. Sec. 4S6. ; . Frteholdin '^ra- ... Sec.4S7. ^ ^ Junsdidion of Conncih. Sec. 488. PussessiM In Municipiditiea. Sec. 489, 490. Liability /(yr Repairs. Sec. 491. Conntij liofuls and Bridges defined. Sees. 492, 493. Impnvivg and M. '^taining County Roads. Sees. 494, 495. , , Maintaining Totmiship Roads. Sees. 496, 497. Koads under joint jurisdiction. >S'ec«. 498-.'500. Transfer of former powers of Justices in Sessions to County Councils. Sec. 501. Roads rested in Her Majesty not affected Sec. 502. RiKids OH Dominion Lands not affecteil. Sec. 503. Rmds necessary for egress. Sec. 504. Width of Kc'ids. Sec. 505. Kotices of Bif-Luios affecting PidMc Roads. Sec. 506. Begistratlon of Road By-laws, Sec. 507. DiKputes respecting Roads — Administration of Oaths. Sec. 508. Highways Defined. 486. All allownncea made for roads by the Crown Sur- What sbaii veyors in any Town, Township or place already laid out, or ^wic^y^h- hereatiter laid out ; (a) and also all roads laid out by virtue wayi. ii, in express terms, nuide for enforcing the daty here cast npon the •wond Township. Mandamus probably would be the proper remedy to eoforce the performance of such a duty. (n) The following are to be deemed common and pixblic highways miier the operation of this section, the origin of which is sec. 12 of Stit. U. C. 50 Geo. III. cap. 1 : 1. All allowances for roads made by the Crown Surveyoi-s, &c. ; 2. All roads laid out by virtue of any statute ; J. Any roads whei-eon the public money has been expended for •pemng the same ; 4. Any roads on which statute labour has been usually performed ; 5. Any roads passing through ijho Indian lauds ; t ',' -i ' 1 t!'< 1 i'i' Ki"i 472 TUB MUKICIPAI. MANUAL. [g, 4gg of any statute, or any roac's whereon the pul'lic money ha« or 6. The exception is where such roads have been already altcml may hereafter r)e altered according to law. Before the passing of the RO Oeo. III. cap. 1, the Cronn wwnot restricted from altering the orimnal plan of a Townghii), altLuji, already laid out previous to nKikinB gronts of lots of land therein. In the original survey, allowances tor roajina v. Great WenUni i. L\ .32 U. C. Q. B. 506. f'') Public money may mean the money of the Government, or the Boney of the local Municip.al Corporiitiou. Either, it is ai>prehend- «l wonW be public money within the meaning of this section. But it mast be shown that such money was lawfully expended, and ex- l'|^nj.'«h- 487. Unless otherwise pi-ovidcd for, the soil and freehold TMtod'in tii« (g) of every highway or road altered, amended or laid out, Orowu. according to law, nIihII be vested in Her Majesty, Her Heir* and Successora. 36 V. c. 48, s. 405. \ j ( I' ' l>' (if) "Any roada pMsingthronvh the Indians lands " is very indeti- nito language. 8u tur thure hmt nut )>uen any cose decided ostuiti pieaning. {e) " Shall b«) deemed common and public highways." TheMwonli have been read as if thuy were "shall be jnemhied to l>e cumniMu and public highways." in thia view inquiry maybe hod m to the oriuin of the road, and if the facta repel the presumption, the m»l will not be held to be a common nnd public highway. The ^ncmv, Great Western Railway Co., 32 U. C. Q. B. 50«-r>17. (/*) Where it was shown that the T(m\ was only travclletl as a temporary substitute for the ^iropcr allowance which raii near iiy, and the latter was afterwards opened, the Court inclined to tliiuk that the former might, within tne spirit of this clause, be f&irly ui• briilgeH within the Municipality, (/t) 36 V. c. A8, s. 406. Potaenaion in MunicijMilitt/. 489< Every imblic road, street, bridge or other highway, Btweu in iu a City, Township, Town or Incorjwrated Village, shall be aninoooi^"* vMtal in the Municii>ality, (») hulyect to any rights in the ^*^Ji^ Oy, 5 r. B. 533. But a plnintiff cannot maintain ejectment for a pnrtioii of a public highway. Sarnia v. Oreat Weftfrn RnilicayVo., 21 U, C. Q. B. r)9 ; hitvjMon v. Toronto, 26 U. C. Q. B. 137. But mliiiidtitted, CheMer \. Alter, I Burr. 133. |A) The control of the public highways has been by the I^uialatnre cnmmittvtl tu the Municipal Cor{Hiration8. They have, subject to the reicrvations in sections 502 and 502, been entrusted with almost unlimiteil power of dealing with existing roods and opening new (in«s /Vr Blake, C, in Attoritfif-O'inrriU v. Nriteaii Hwult'o., 2 (innt, li.15,- (i.3K. The Corporation of a County is liable to damages fur neglect to keep in repair a County road or bridge Hnrold v. ismwmd Onlario, l(i U. C. C, P. 43 ; S. ('. in appal, 18 U. C. C. P. 1 ; 866 further. The Queen v. YorkiHll>; 22 U. C. C. P. 431, and nuy maintain an action for an injury wrongfully done to a County m\ or bri»lf{e. WelliiiytoH v. mUon, et uL. 14 U. C. C. P. 299 ; S. i\, 10 U. C. C. P. 124. |i| The declaration is, that even/ public rood, street, bridge or other highway, in a City, Township, Town or Incorporated Viflage, shall be (f*kd in the Municipality. The word " highway " is here used in itibroailest 8) "<«ie, as including all public ways. 8ee note a to sen. 486. It is uia .u to include not only public roads, streets and brUlijen, kt o//ifr hiuhways. See Fort Edtmrtl Plank Eo/ Fulton, 17 Am. 46.S. Krery individual in the community lias an equal right to use a pnblic roaj, street or bridge. The Municipal Corporations cannot be deemed proprietors, and as such entitled to cciutrol the possession, anv more than any other coriwration or person interested in the streets, roads or highways. The property vested in the Municipal Corporations is a quaUtied one, to be held and exercised tor the benefit of the whole bcaly of tlio Corporation. They hold as trustees for the pubhc, and not by virtue of any title which confers possession sufficient to maintain an action of ejectment, i'er McLean, J., in i^itma V. Great WvMern Ralhru)/ Co., '1\ U. C. Q. B. ()'2, but may, itioems, sue for in uries done to roads or bridges within their juris- (Iction. Sec Tlntrlmc v. Boijart, 15 U. C. ('. P. 1 ; Welliix/toii v. IIVU. (t al., 14 U. 0. C. P. 2«9 ; S. C, Ui U. C. C. P. 124; T/i^i i^iufftt V. Fitzijerald, 39 U. 0. Q. B. 297 ; but see ]'<->tpm v. Vook; 26 l. C. C. P. 182. Defendants, if intending to deny property or poMtssion when sued by a Municipal Corporation as proprietors of a roul claiming property or exclusive possession, should, by plea, put in iwue the right of property of the plaintifls. Saniin. v. Great Wfftmt Jlallwai/ Co., 17 U. C. Q. H. ()U. Itoads witiiiu Townships may, uudcr certain circum.'jtances, bo assumed as County roads. Seo «. m. lil The soil and freehold of roads laid out by the Crown, is vested in the Crown. See note inh', h. R. 5 Q. B. 2(5 ; J mold v. /iluLir H i', I. P.. (i Q. B 433 ; ArmM v. Jlolbrook, L. R. S Q. B. 9(5. A '!w(1 executed by the owner of land abutting on a lane in which the hmits of the lane were given may be referred to for the purpose of »rtaining tlie width of tlie lane. , The Que< ii v. Donaliimn, 24 !-■ '".(,'. P. 148. An own. -r who clears open a i>aasage through his- Imil and neither marks by any visible distinction nor excludes \mm from passing through his land l)y positive prohi))itioii, slialP '. prisumed to have dedicated it to tiie i)ublic, per Lord Ellen- W(iui;h, iu Hex V. Lhyd, 1 Camp. 2U0. But an obstruction, such. ♦' •■ ■ 478 ■ ■ ' ^ 1 j * THB MUNICIPAL MANUAL. [g. 4^9 ated Village, taken and held possesMion of by an individual in lieu of a street, road or highway laid out by him witboat comj)en8ation therefor. {I) 36 V. c. 48, s. 407. as a ^te post or chains may be looked upon as evincing a contrary intention. Jtohert^ v. Kerr, 1 Camp. 262 n ; Ltthhridife. v. Winin Ih. 263 n ; Woodyer v. HnHden, R Taunt 126 ; Jtex v. inhnhitanU 0/ St. Benedict, 4 B. & Ad. 447 ; Rex v. InhaJltUants 0/ Leaice, 5 B. AAd. 469 ; Marqniii of Staffonl v. Coifnej/, 7 B. AC. 267 ; HarrarhugK v. Johmon, 8 A. & £. 99 ; Poole v. HtuJniMon, 11 M. & W. 827 ; /"rj/or V. Pryor, 2(» L T. N. 8. 768 ; Healey v. Corporation of Bailey, L. R. 19 Eq. .375 ; ComonioeaUh v. Newbury, 2 Pick. (Masa) .51 ; Proctor V. Lewinton, 25 111. 153, but it is not conclusive. Johnston v. Boulf 8 U. C. Q. B. 142 ; Darieti v. Stephens, 7 C. A P. 670 ; Bererlilqe v! Creelman et al., 42 U. 0. Q. B, 29. A highway may Iw dedicated to the public subject to a pre-existing rieht of user by the occnpien of adjoining land for the purpose of dep<,.:iting goods thereon. Marnnt v. Chavihcrlin, 6 H. A N. 641. Where an erection or evacuation exists upon land, and the land on wliich it existx nr to which it is contiguous, is dedicated to the public it is dedicated subject to the inconvenience or risk arising from the existing state of things. Finher v. Prowne, 2 A B. S. 770 ; Robinit v. Jiiwh, 15 C. B. N. S. 221 ; Le Nere v. Mile End Old Town, 8 E A B. 10.54. A\"here a Municipal Corporation laid out a street over defendant's lands and appraised his damages, it was hel) and ac. and excepts thoso taken and held hy individuals in lien of a read Uid out n-ithout compensation therefor, goes to sustain the view that snch allowances are vested in those who have taken such pcMwsion of them. Pn' Bichards, 0. J., in Burritt ami Marl- v>rrm|//(, 2ft U. C. Q. B. 119, 132 ; but see Piudtj v. Farleij, 10 U. C. Q. B. 545. A Municipal Council may sell any work or macadamized, phnk or other toll road which they have constrttcted or purchased, or any stock held in any road or other company, and apply the proceetlg of snch sale to the payment of existing debts contracted for ihe conitmction of the same, or for such stock, or if no debt exists iir snch work, road or slock, then to the general purposes of the Municipality or otherwise as they may determine. Kev. Stat. Ont. ap. l.K, 8. (54. (in) The powers of each Council are generally restricted to the lolity over which the Council governs, see note « to sec. 18; but iorsomeprirposes, in the interest of the general welfare or 'i3cause oi the public necessiti^, power is given to acquire land in a., adjoin- insMnnicipality. This section is one in which a power of such a ciuracter is conferred, the power is to acquire antf assume posses- i«in of and coutrol over any public highway or road in an a(ijaccnt Mimicii)a!ity. The wower is to be exercised for the purpose of using «ch highway or road " for a public avenue or walk.^' it cannot, of Mree, be of any avail unless exercised "by and with the con- «iit of the adjacent Municipality. Such consent is to be signified by the piu»iug of a By-law for the purpose. (n) III other words, only on payment for compensation to the owners for the land so taken. See sec. 450 and notes thereto. \o) See note a to sec. 486. (i'l The duty is to keep every public roatl, street, lu-ido'c and high- ly m repair. In Kugland an obligation to keep highways in rcriair rets at common law on the parishes and counties. Tht Kinij v. II). .,1 . i." f^l 1 1 ■J » SI i 480 THE MUNICIPAL MANUAL. [g^ ^91 on defaiilt of tLo Coi'iMi-ation so to keep in renai L. J 375 M. C. 216 ; Iftnley v. The The Queen v. IJorlty, 8 L. l. JN. s. 3»1.' ; see also the 0,«,„ v Kitchener, L. R. 2 C. C. 88. It wouKl aceiii that iu this ' -- f "inert in CW/wratton of JJatlet/, L R. 19 V,, . T.N. 8.382 ; Bee aiio- ' there IB a Bunilar common law obli<'ation. Wellington v WiLm \i U. C. C. P. 304; //rt*/-oW v. Siwcoe, Ifi U. C. C. P 43 v r « U. C. C. P. 9 ; 7'Ac V»^«» v. Yorkrille, 22 U. C. C. I'. '431'- iini'Jcl V. (;.7y of'loronto, 3J) U. C. Q. B. 306. " Apart from gp'ctiou ;«: (same this section) which imposes the burdon of repairing tlie mhU within the respective Municipalities in which they are situr.tuj the common law duty would apply to all such bodies to repair the roads which are withui their jurisdiction, and for which they can raise the funds retjuired for the purpose." Per Wilson, J., in Wellimilon w Wildon, 14 U. 0. C. P. 304. " We are of opinion for the reasons hire- after given and upon the authority of decided cases, that there is a clear common law liabili^.jy rcstin;^ on the defendants both civilly and criminally." Per Wilson, J., in Uarrold v, Simcoe IG U. C'.C. P. no. " 1 take it that a Corporation, ch.argcd with or assumin^jthc custody of a road or bridge, and having funds orthemeaiisoi {.htaiu ing fuiuls, by exacting toll or levying a rate upon tlie members ui the Corporation, with wliioh to make repairs, is at comnion law hauiid u keep such road orbriilge in an tflieientstate." /^e?" VaiiKoughret, I,, S.C, 18U.C.C. P. 14. " Satisfied as I am of the coinimm law iiiiljihty I h.^ve to consider whether the presence of this section 339 (similar ;(. this section 491), restricts or affects the application ot the couinma law." Per Hagarty, C. J., iu The Quern v. Yorkfil'c, 22 U. ^ C. 1'. 438. In the United States such a duty is altogether tlie creature n: statute. More;/ v. Xev/ane, 8 Barb. (N. Y.) 04') ; J'cple v. C(/w„(ii- x'toneri* of J/iijhu'di/K, 7 Wend. (N. Y.) 474 ; ChidiOjwi.auton, ITl'im. 475 ; P'kI'IIp v. Proprietors of Locks and Canals on the Mi-rrimn'- Jiiver, 7 Mass. 169 ; liiijelow v. liandolph, 14 (iray (Mass.) 541 ; see further, note ni to see. 495. Then, what is rejtuir / It is im|j(M,re entitled ti. the use of the entire of it as the highway, and are not Kntinei) t, the parts which may be metalled or kept in repair for tho ffl'jre conveuleut use of carriages or foot passengers. " Ptr Martiiv 61 • 481 .? ?1' •f" 4ifl^> THE MUNICIPAL MANUAL. [8. 491. f) , B., in T/t* Queen v. Tfie United Kiufidom Tekifraph Co., .IP. 4 F 74. see also E«v. Stat. Ont. c. 152, a. 1.S7, and Tutill v. WtJit Ham ixii Board of Health, L. R. 8 C. P. 447 ; The Queen v. FUzyeralil, 39 U. C. Q. B. 5i97. A different rule prevails in the United States. Tudde V. Norton, 8 Mete. (Maw.) 388; Smith v. HV/uWi, 7 Cush. (Man) 498 ; Sheplierdon v. Oolerain, 13 Mete. (Mass.) 55 ; Kelloijij v. Xor'\. amptoH, 4 Gray (Mass.) 65 ; S. C. S Gray (Mass.) 504; Homrtlv. North Bridgewater, 16 Pick. (Mass.) 189; Hayden v. Anlelmotigh, 7 Gray (Mass.) 338; CoijgmoeU v. Lexington, 4 Cush. (Mass.) 307; Sparhaiok v. Safem, 1 Alien (Mass.) 30 ; Richardn v. Enfitld, 13 Gray (Mass.) 344; Rowell v. Lowell, 7 Gray, (Mass.) 100; MK V. Laston, 2 Allen (Mass.) 5.52; Campbell v. Race, 7 Cush. (Msm.) 408. The duty to keep the road in repair extends as much to sidewalks for the use of pedestrians as to the travelled way for the use of carriages. Bm-mt v. Toronto, 42 U. C. Q, B. 5(J0 ; Hattm v. Windsor, 34 U. C. Q. B. 487 ; Raj/ v. Petrolia, 26 U. C. C. P. 73 ; B'/yt H al V. Dundm, 25 U. C. C. P. 420; Bacon v. Boston, 3 Cush, (Magg.) r'4; Lowell v. Spaulding, A Cush. (Mass.) 277; Drakev.Lomll,\i Aletc. (Mass. ) 292 ; //ar< v. Brooklyn, 36 Barb. (N. Y. ) 226 ; A'lrty v. Bojlston Market Association, 14 Gray (Mass.) 249; Manckttn v. Hartford, 30 Conu. 118 ; Hubbard v. Concord, 35 N. H. 54. So to street crossings. Raymond v. Lowell, 6 Cush. (Mass.) 524 ; ('oo//i/« v. Purrington, 42 Me. 332 ; Z?a/tfr v. Samge, 45 N. Y. 191. : it it in not a duty to plank from each man's house across a dikh t<, the ixreet, and keei) such pLanks in repair. McCarthy v. Omhawa, 19 U. C. Q. B. 245. Corporations of Townships may pass By-laws setting apart so much o' any highway as they deem necessary for thu pur- pases of a footpath, and prevent persons travelling thereon 011 horac- back or in vehicles. Sec. 525, sub. 4 ; but see Peck v. Biitam, 32 Barb. (N. Y. ) 634. Should a railing or other barrier be necessarj' to the safety of passengers, it may be neld to be the duty of the Cur- pnration to provide the same. Toins et tix. v. Whitby, .35 U. C. Q. B. 195; .S". C. 37 U. C. Q. B. 100; Shenvood v. Hamilton, 7//. 410; Chapman V. Cook, 14 Am. 686; Williams v. Clinton, 28 Conn. •264 ; Tolland v. Welliugfon, 26 Conu. 578; Palmer v. Andooer, iCaik (Mass.) 600 ; Rowell v. Lowell, 7 Gray, (Mass.) 100; Jvhm v. W'd- thum, 4 Cush. (Mass.) 299; Alger v. Lowell, 3 Allen (Mass.) #2; Burnham v. Boston, 10 Allen (Mass.) 290; Stinsonv. Gaii.lin>^r,il Me. 248 ; Doherty v. Weltham. 4 Gray (Mass.) 596 ; Daci* v. Ml,k\ N. H. 329 ; Hayden v. Attkborouqh, 7 Gray (Mass.) 338; 5/rtw/'//v. Portland, 39 Me. 113: Loker v. Damon, 17 Pick. (Mass.) 284 ; Dnvj v. Worcester, 21 Pick. (Mass.) 44 ; State v. Cornvdle, 43Me.427 ; Buwnm V. Boston, bQm\\. (Mass.) 1 ; Kellogg v. Noi-thampton,i(ita.y(yim.] 504 ; Mumon v. Z>«r6y, 9 Am. 332. But the duty is not an abso- lute one. GiHirist v. Garden, 26 U. C. C. P. 1 ; Castor . I'xbrdf, 391:. 0. Q. B. 113; lh7^o»v. Halifax., L. R. 3 Ex. 114; see ^ Cornwell v. MetropoUtan Commissioners 0/ Sewers, 10 Ex. 771 ; Crafter V. Metropolitan Railway Co., L. K. 1 C. P. 300; SiMrlmwkv.^Salm, 1 Allen (Mass.) .30 ; Murphy x. Gloucester, 105 Mass. 470; ^(hTix^ v. Campbell, 2 Black. (U. S.)590; Chicago v. GaUaoher,Um.'JS^ There is no duty to light a highway with lamps, Randall v. LdikmH. R. 8 Am. 327. Allowing snow to lie on a macadamised roail, does uot as a general rule, come under the idea of allowing a road to te (lut ot repair. Stewart v. Woodstock and Huron Road Co., 15 L. C <<• ''• ,W1] RBPAIRINO HIGHWAYS. 483 •1 if, There it no sach thing M an absolute right against tlie act of ()o(i »nd the proceMea of nature. Per Maul, J., m The Queen v. j/orwfo, 2 C. L. R. 599. But even in the case of snow or ice, it is for I jury tn Myi nnder the particular circumstances of the place, xiion 4c, if the non-removal was non-repair. Caatoell v. St. jlan\ if; iiM'f C'o., 28 U, C. Q. B. 247. In Promlence v. Clapp, i;How. (U. ^0 Ifili the court held tliat after a fall of snow it was tht duty of the City to use ordinary care and diligence to restore the nik to a reasonably safe and convenient state, and that it was for tiu jury to And whether it was in such state or not. Mr. Justice Xelion, in deliveriug judgment, said, *' The just rule of responsibility, jnd the one we thinlc prescribeil by the statute, whether the obstmc- tinn be by mow or any other material, ia the removal or abatement oeceuary so as to render the highway, street or sidewalk at all times ttfe and convenient, regard being haa to its locality and uses. See IhfiMV. limmli, 12C'u8h. (Mass.) 488; Lokerv. Brooliine, 13 Pick. i]i|»M.)343 i Hall v. Lowell, 10 Cusb. (Mass.) 260 ; O'Neill v. Lotoell, (i.Mlen (Mass.) 110 ; Shea v. Lowell, 8 Allen (Mass.) 1.30 ; Street v. llifh, 105 Mass. 82 ; Stone v. HiMardMon, 100 Mass. 49 ; Gilbert T. Mliuni, III. IBS ; Landolt v. Norwich, 6 Am. Law Reg. N. S. JSS; Pmuhnce v. Clniyp, 17 How. (U.S.) 161 ; Oreen v. Danlry, 12 Yt. S38; Triirp v. Lyman, 37 Me. 250 ; Savage v. Bangor, 40 Me. 116 ; //«Wwn/ v. Coiirord, 35 N. H. 52 ; lb , 74 ; Hall v. MancheH- kWX.H. 410; Billitiggv. WorceHfer, 102 Mass. 329; .9. C, 3 Am. Vd. The mere fact tliat a highway is slippery from ice \ir>ia it.*) that a person may be liable to slip and fall upon it while u> -ig mlinarj' care, if the way is proi)erly and well constructed, and the. j L< no guch accumulation of ice or snow as to constitute an obstruc- tiim, and nothing in the coustructi. n or shape of the way which (ccuious any special liability to formation or accumulation of ice ".fn it, 18 not a defect or want of repair which will authorize a jury to tind that it is not safe or convenient for travellers. Stanton v. hrimijield, 12 Allen, (Mass. ) 566. The doctrine of this case has been jfirmediu Johiuionv. Lowell, 12 Allen, (Mass.) 572; Nanon v. Boa- »«. 14 Allen (Mass.) 508 ; Gilbert v Rorlnmj, 100 Mass. 185 ; Cook 'irMiukee, 1 Am. 183; see also Durkin v. Troy, 61 Barb. 437 ; imjkndv. Toronto, 23 U. C. V. P. 93. This doctrine only goes tlie length of holding that a way, properly constructed, and kept ia such a condition as to be reasonably safe and convenient for travel ttallseasons of the year, is not defective by reason (»f the fact that it is covered with a smooth and even surface of ice, which renders it "ippery : but if the ice Iks allowed to remain in such an uneven and roanded condition on the 8urfa<;e that a person could not walk over it, using due care, without being in danger of falling down, the Honicipality may be held lisubk. Littlier v. Worcester, 97 Mass. y^;Hut4:hintv. Bonton, Ih. iT2 ; Stone v, HiMordMon, 100 Mass. '6; BlIlmjH v. Worcenter, 102 Mass. 329; 3 Am. 4<)0 ; Collin.'i iCoimcil BlufH, 32 Iowa, 324 ; .S'. C. 7 Am, 200 ; see also fw'/v. Troy, 61 Barb. (N. Y.) 580 ; Mayor v. MarrUdt, 9 Md. KiO ; *';:' ^'^ Holyoke, 105 Mass. 82 ; S. C, 7 Am. 500 ; MeLnwjhlin ^■'■>i!l of Carry, 18 Am. 432. " In the case before us the miestion w. whether there was such evidence of non-repair that the jwry mf It reasonably and properly conclude that there was neglixence m «n«rporation not having had removed the piece of frozen «now «r I 484 TUB MUNICIPAL MANUAL. [t-m. J. It. W' ice complained of, and that, without any want of roasonnble and ordi- nary care upon the part of tho plaijitifT, the a cident conld ud did happen, &c. Per Gwyuno, J., in liimjUmd v. Toronto, 23 U. L' C P. 100. In actions for slipping on a eidewalk, evidence that otheii had met with accidents at tliu same place was held inodniiMible Ifulthard V. Concord, 35 N. H. 52 ; CoIHiih v. DmxhfMhr, (iCtuli (Mass.) 396 ; AUlrirh v. Pel/mm, 1 Gray (Mass.) 510. The frdlowinjr may be mentioned as a few from the many cases as to what hare been held to be particular defects or want of repair : — A pile of stonw. Fi*reman v. CauUrhurii, I* R. (i Q. B. 214; li'njflow v. H>j frighten horses i)f ordinary gentleness, may be held, umiL-r wmii nr- cuinstances, to constitute a defect in the wfiy itself. Mor*'' v. /('Wi mond, 41 Vt. 435 ; C/iantherlain v. Ein^/iild, 43 N, H. 3o() ; llWi/' V. Enjield, 42 N. H. 197; Lnnd v. Tymjuhuiu', 11 Cush. (Maw., M; Dimock V. Sujjli-ld, 30 Conn. 129; ))Ut see Horton v. 7'(t««^ii, ill Mass. 2()(> ; Kinijxhiiry v. JJvdhani, 13 Allen (Mass.) ISli; CV/i- v Charlextoirn, lb. 190/*. ; Kcithv. Eaoton, 2 Allen (Mass. ) 5.V2 ; sec ulw C'or% V. 7/i//, 4 C. B. N. S. 55(J ; Pii-k/mrd v. ,V/;ti. 470 ; Tarry v. Anhton', L. li. 1 Q. B. Div. 314; Soidf v. araiidlml: Jt. W. Co. 21 U. C. C. P. 308; Vans v. Grand Trunk It. II'. '- 23 U. C. C. P. 143. The onus is on the plaintiff to give atHrnia tive evidence of negli. 44 N. H. 223. Evidence to shew th.it other horses besides the plaiutili's were frightened at the object, is adiuw sible, iJarlini/ v. WiMnmnland, 13 Am. 55. The jury r.reiii'tto infer a ilefect on the highway at a particular time ami place mtrvly from Mie fact that an injury was suat.iiued at that time ainl place. C/ii.nh V. C/ierrnfli'ld, 33 Me. 4(iU ; S/irrnian v. Kurtriyhl, .VJ Barb. (N. Y.)2(i7; Votlin.-< v. Dorclu'xtr.; G Cush. (Maa8.)39li; /'.i*(r./v. New Bcdjord, 9 Allen (Mass.) 200 ; Calkbix v. llaii/urd, .S3 Cuini 57 ; but see Kvarmy v. London, lirit/litoi}, dr., It. H'. Co., I- l^> ''*^ B. 411 ; .y. C. L. a. G Q. B. 759 ; A-ituI v. Muldlvm'X H. if. '". 1- Am. 720 ; MnlU-n v. ,S7. yo/(«.s 15 Am. 530. li' tlio evideiicf a a- consistent with the absence as with the presence of uegligeme, tbi 491.) RKPAIRINO HIGHWAYS. 485 Dei'^rill V. Orand Trunk R. W. DUintiff U not entitled to recover. r M U C Q. B. 517 ; «ee also Cotton v Wood, 8 C. B. N. S. 508 ; rl.^. 980. If the defect arise otherwise than fmm faulty structure, and from some act other than the direct con- iloot nf the defendants or their servants, anrl be a recent defect, it is perally necessary to show that defendants or their servants had knowledge thereof, or were negligently ignorant of it. See Costor v. ^/',rW;,^ 39 U. C. Q. B. 113 ; New York v. Sheffield. 4 Wall. IU- S.) 189; driffin v. Nexo York, 9 N. Y. 456; Vamhike v. fi»'-iH/.< 1 Disney 5.32 ; MrGinity v. New York, 6 Duer (N.Y.) ^A;Hnrt v. Brookh/n, ,36 Barb. (N. Y.) 226; Dewei/ v. Detroit, 15 Mich. 307 ; Prii.dle v. Fletcher, 39 Vt. 2.57 ; Y'al- v. Hamp- i'l, nvl B<'rUiire Tnrn/iike Co., 18 Pick. (Mass.) .^57; Dnvh v. ImnJIf Plank Road Co., 27 Vt. 602 ; Ooo,tl>rook, .57 Me. 181 ; •''^ ('. 2 Am. 30 ; W^).j v. AppU-ton, 26 Wis. 56 ; .V. C. 7 •m 39. Notice may he inferred from the notoriety of the defect, ■I. "^i * 486 TIIK MUNICIPAL NANl'AL. [^ m. m Mid from ita continunnce for inch a length uf tiuie m to lexl to the Ereaumptinii that the pruiMsr otficert of the MuDici[>aiity(li(l in fact now, or with proper vigilance and care might have known, the fact Thitt latter is Biitficiont, becaune thia decree of care ukI viin ^anoo they are bound to exercise ; and tnerefore if, in point of fact, they do not know of such tlefect, when hy ordinary uid ilu« vigilance and care they would have known it, they iuu< v. O,,,,,;.,, 1 DilL (J. C. R. (TJ. S.) 312; Hu.o v. HaiutiAd, 41 N. h' 135. If the defect Imj palpable, dangerous, and has ftigt«il f .r a long time, the jury may very properly infer either iieijligiii' supervision and ignorance con8e((Uont upon and '.'hari^eablu tii ituch neglect, or notice of the defect and a disregard of the duty to repair it. Maiirhi'Mtfr V, Hartford, 30 Conn. 118; see further /;/o'///i('i(./(.,,i v. Bntf, 42 111. 503 ; llowc v. Lowell, 101 Alass. 99 j DumMm, v, JS(M Gray (Mass.) ')(J8, altbdugb held otherwise in Maine, Si>rhiijir v. liowduinlmm, 7 ftreeul. i.Mti 442; Mamm v. EUnii'orlh, .32 Mo. 271. Speaking of a scwr, Morrison, J., said, "It tlid not appear, however, whuii thu n.ui accumulated in thu culvert or when the stone fell at itii mouth, tin mere existence of these obstructions was not, in my opinion, cnnu^li to est.iblish negliL'euce. There was no evidence that the (lefiinlaiiti or their otKcers liad any notice of these olistnictions, unr ilnl ii appear that they M'ere of so notorious a character, or hod coutinut vi long as to charge the defendants with constructive notice of thiiu. BcUcmitnw. Jlamdton, 33 U. C. Q. B. 251. But as to sewers, see Barton v. Syracme, 30 N. Y. 54 ; Si>rinii/Md v. LfCtniff, 49 ill. 47*). There is no presumption of law as to notice. It is for a jury t*' decide whether, from the circumstances, there w.a8 notice. Voll'^ V. hduibUuHtH, 2 Am. 30; Hall v. Lowdl, 10 Gush. (Maw.) '.''»; Stanton V. Sprimifield, 12 Allen (Mass.) 500 ; MoHftj v. Trmj, HI Barl. (N. Y.) 580; AlhtHon v. Chic/it^trr, L. K. 10 C. P. 319. In gonii States of the Union existence of the defect for twenty-four hours, Brady V. Lowdl, 3 Cush. (Mass.) 121, or express notice, 7Vi;)/' v. Lyman, 37 Me. 250, is necessary by statute before then, can l)e sny right of action against the Corporation. Where the encroachuaiit u: the ser. destroyed the road, so that the subject of repair was m in existence, it was held that there was no obligation at an enomioLs cost to rebuild the road. Beifiua v. BavdM-r, 5 Q. B. 270; T'i( Queen v. InhahitantH of Hornnea, Dears. C. C. 291 ; but see A' Quern V. Grvenhow, L. li. 1 Q. B. Div. 703. If the cost of rebuihUiiii the road or making the necessary repair would exceed the statutabit limit of taxation it may be that there would be no obliijation to repair. See Grant y. SUyo Harlwur ComndMionern, L H. 11 Jf' C. L. R. 190 ; BiUkr v. Tlie Brai/ ComnuHslontrt, lb. 181 Bot f. m] We {q) for MD of such ia nch a case i ntio.i 10 to c liing or atteni I W. Co., 10 Boten toMc. 4 (i/l Although Dot, in the onit lonie itatutalile I civil action. R. 181 ; CMim ten Fvrfmnn v. T. UkiUry l.iifd in the I'nitod {'iiHnlijiif UdikI, fiven in exprea ioMnrv. i'x/trii he brought in Hmd; '.'5 U. la luch an actioi wu tlic direct ai i\ Pick, (.\ldti8 WW V. ToiriMii I'luh. (.\[;w.s.) .-,(,•; T. Wiiirf.ili'i; 4 ( 447; Stickneij v Maw.SIO; Mmii keep iu rt'iMiir in < nJiiaiiy (lu coiiuu B»rrett. J., in Si the noience of th tie immediato ca whether or not tli in .Maine, New Hi in ShmrtxKl v. /A thii Province is, t m; both in theii b'hwayaiul the fMponiuble, such »ntrol, the Corpoi wnnnstained bm "^^ 37 U. c. ( "0 ; ('(ufor V. Cx ''""■eryiftheinji y^ on the part \"^'il V. Stwkhr iMmU, 20 111. 235 ^'''■hm Port, 48 A i^. .V''i«/fy, 1 M_ ■^'lally arose bj Pn. hanicsg, ftc -'*'"/* V. .)forrUtoi inn lug] 71 m] REPAIRIKO HIGHWAYS. 4$7 ble (q) for all damagoH suHtaiiiod by any peifton by rea- Limiution lOD of such default, but tho action must be brought "' ■***""•• ii Hch A cue it would, it is apnrehonded be tho duty of tho Gorpo* ntii>n 10 to close up the ruau that there could he no dAnj^er in iiinit or attempting to ute it. Sec lltiri'uhl v. Siiiiroe ami Ontario i. If. Co., 10 U. C. C. P. 43 ; .S'. ('. 18 U. C. C. P. 9 ; see further, Bote N to Mc. 405. ly) Although non-repair may be one subject of an indictment, it is Bot, in the aoscnco of special damage, i)eculiar to the plaintiff, or of lonie itatutable uroviaiou civing the right of action to the subject «f luvilactioiL JuUUr \. The Bray CoiiiniuMiontrn, L. It. 11 Ir. V. L. R. 181 ; Gihttm v. The Mayor i\f Prentoii, L. R. 5 Q. B. 218 ; but Me FvrfiiKtH V. The Mayor uf Canterbury, L It Q. B. 214 ; While. T. Hmdlry Ltiful Board, L. II. 10 Q. B. 219. Such is also the rule in the Tnitctl States. Detroit v. Ulakeley, 4 Am. 4r»(5 ; White v. ViiHiilijnj' Bund, 11 Am. G5, otid coses in note. Here the action is jiven ill express terms. Ifttrst v. Tnwn of Win field, 17 Am. 482 ; L'ttMnry. i'j-hridije, :\\) U. V. Q. B. II 3. The action is local and must W brought in the County whore the rood is situate. Feri/u/ion v. Hmd; .'o U. C. Q. B. 647 ; Irti'ln v. lirtul/ord, 22 U. C. C. P. 18. In lucii ail action it must be motlc to appear that tho alleged defect wu tiie direct and proximate cause of the injury. Adanin v. Carlisle, 21 Pick. (.Mass.) 14tJ ; May v. Princeton, 11 Mete. (Mass.) 442 ; I/ol- mil V. TowiiAniil, 13 Mete. (Mass.) 2t)7 ; hnnd v. Tynifuhoio', 11 (.'iwh. (M.\>i.i.) olJll ; HortoH v. /pnwich, 12 (jusb. (Mivss.) 488 ; Marhlt: r, H'orri/.;-, 4 (iray (Ma.ss.) .395; Tuttle v. U;lyob',<\ (Jny (Mass.) ♦47; Sticknei/ v. Mnid.^fone, 30 Vt. 733; .SV>(f/*.t v. Dennis, 1C5 Maw. 310; Mniidernrhid v. Dnhmiue, 29 Iowa 73. The obli;,'fttion to iiei'p ill repair is only as against such accidciitn ivs arc likely to and jctualiy do concur in using a highway for the purposo of travel. J'er lUmtt. J., in Si/Lrs v. Pawlet, 43 Vt. 4-l(i ; S. C, 5 Am. 29G. If the viuleiice of the horse, acthig without guidance or discretion, lie the immediate cause (jf the injury, the cases are conflicting as to vhethvr or not the Corporation is liable. The decisions on the point in Maine, New Hampshire and Massachusetts will be found reviewed aShmrwxl v. Hamilton, 37 U. C. Q. B. 410. The rule adopted in thii Proviuce is, that where two causes combine to pnxluce the in- m, both in their nature proximate, the one being the tlofect in tho ^iiway and tho other some occurrence for which neither party is rttptmsihle, such as the accident of a horse running away Iwyond control, the Corporation is liable, provided the injury wouhl not have Wn sustained but for the defect in the Ir^hway. Toni.i et iix v. irW/y,37 U. C. Q. B. 100; Shrrwood v Jt..nuUon, 37 U. C. Q. B. 410; ('(utor v. Uxhridye, 39 U. C. Q. B. 113. But there can be no iwovery if the injury lie attributable to any unskilf ulness or want of «r« on the part of the dnvcr. Flotwr v. Adam, 2 Taunt. 314 ; (W,/i/ V. StMkhriflne, 21 Vt. 391 ; Peoria Jiridje A/tiOriation v. iwwM, 20 111. 235 ; Alger v. Lowell, 3 Allen (Mass.) 402 ; Stnart v. JfirAi,M Port, 48 Me. 477 ; Cobh v. Standi^h, 14 Me. 198 ; Marriott "i. Sinul^ij, 1 M. & G. 563. So if the accident really and sub- «»nti% arose by reason of some defect in tho ^/lul'- tiff's wag- Pn, harness, &c. Jenks v. Wilbrnkam, 11 Gra" (Mass.) 142; '"^or^y. Morri«towH, I Vt. 357; Allen v. Hancodc, 16 Vt. 230; . ' . ri , 1 '<'; IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 128 u, 1^ ■ 2.2 Iti I " 120 1.25 III 1.4 <^ m 7 ^ tcV V 'W Photographic Sciences Corporation 33 WEST MAIN STREIT WEBSTER, N.Y. 14SM (716)872-4503 A ^^ V iV v> [V 4(^ 6^ .erfect, or one whose sight has been injured by disease, is each entitled to the same rights, and may «| on the same assumption. Each, however, is bound to know that prudence and care are in turn required of him, and that if ho fail in 1\ -491.1 DAMAGES FOE ACCIDENTS ON ROADS. irithin three months after the damagea (r) have been 489 this respect, any injury he may suffer is without redress." Per Hnnt C. J.) in Davenport v. Ruckman, 37 N. Y. 673. It is not, how- CTer too much to ask of persons of defective sight greater care than ii retiuirwl of peraons free from such infirmity. Winn v. Lowell, 1 Allen (Mass.) 177 ; see also Bridges v. North London Railway Co., L R. 6 Q. B. 377, 397 ; Hutton v. Wimhor, 34 U. C. Q. B. 487. Ko person is required to have perfect vision, or to be vigilant in the (liscovery of defects which on^t not to exist. T'hompson v. Bridge- vatfr, 7 Pick. (Mass.) 188. No person is in fault in neglecting to obeerve and avoid a defect not so plain and obvious as to be neces- girily observable by one in the possession of ordinary faculties, travelling at an ordinary pace. Cox v. Westchester Turnpike Co. , 33 Barb. (N. Y.) 414 ; Frost v. Waltham, 12 Allen (Mass.) 85. The fact that the traveller knew the danger, or was familiar with the road, is a circumstance to be considered in determining the question whether the plaintiff contributed by his own want of care to the accident. Chyards v. Detkick, 12 Q. B. 439 ; Reed v. Northjield, 13 Pick. (Mass.) 94 ; Humphreys v. Armstrong County, 56 Pa. St. 204 ; Smith v. Lowell, 6 Allen (Mass.) 39; Snoiu v. Housatonic Railroad Oo., 8 Allen (Mass.) 441; Froi^t v. Waltham, 12 Allen (Mass.) 85; ffari-v. Lod-port, 49 Barb. (N. Y.) 580 ; Whittaker v. West Boyles- /on, 97 Muss. 273 ; Fox v. Sackctt, 10 Allen (Mass.) 535; Muttony. TiwUar, .34 U. C. Q. B. 487. Such knowledge in some cases has heen held sufficient to raise a presumption of negligence on plaintiff's part, so as to require evidence to negative Ihd presumption. Fox v. (ikMnhimj, 29 Conn. 204 : FoUom v. UnderhiU, 36 Vt. 580 ; Wilwn T. Charkstown, 8 Allen (Mass.) 137 ; Jacobs v. Bangor, 16 Me. 187 ; Hanlonv. Keokuk, 7 Iowa 477; Brown v. Jefferson, 16 Iowa 3.39 ; .WAv. ioiPfW, 6 Allen (Mass.) 39; Wilson v. Char lesfoicn, 8 Allen (Mass.) 1.37 ; Norton v. Ipswich, 12 Gush. (Mass.) 488 ; James v. Sail Frmmto, 6 Cal. .528. Contributory negligence is not an answer to an indictment for manslaughter, in whicli the Queen, as representing the nation, is plaintiff. The Queen V. Keio et al., 12 Cox. C. C. 355. (r) The question of the measure of damages is one that has pro- clncedmore difficulty than perhaps any other branch of the law. ?fr Wilde, B., in Gee v. Lancashire. .i> m 490 THE MUNICIPAL MANUAL. [s. 491. I,*?;, i t'4- i) cases sometimes occur in which a jury, being over-anxions to fulK- compensate a party, give damages so great as to induce the Conrt ti iuterfere. In the great majority o' cases, however, I am satisiied with the common sense views upon which they act" Per Cockimm O. J., in Fair v. London and North W' tOWIM vested in the muni- oipality. Conie- • quences of «eglect. THE MUNICIPAL MANUAL. h 491 by-law of the Coi-noration, or otherwise assumed for public user by such Corporation. (<) 36 V. c. 48, s. 409. • [Bi/ sections 1 and. ZofC.S. C. c 85, it is provided that:- 1. The ri§ht to use as public highway all roads, streets andpuMic highways within the limits of any City or incorporated Town in this Province, shall be vested in the Municipal Corporation of such City or incorporated Town, (except in so far as the right of property or other right in the lard occupied by such highways nave l)een express- ly reserved by some Tirivate party when first used as such roads, street or highway, am! except as to any concession road or side road within the City or Town where the persons now in possession or those under whom they claim have laid out streets in such City or Town without any compensation therefor in lieu of such concession or side road). 13, 14 V. c. 15, s. 1. 3. If the Municipal Corporation of any such City or incorpnr- atetl Town fail to keep in repair any such roatl, street or highway within the limits thereof, such default shall be a misdemeanor for which such Corporation shall be punished by fine in the diacretiou of the Couit before whom the conviction is had. 13, 14 V. c. 15, s. 1]. time for trial was enlarged till after the decision of the Court of Appeal McHardyv. Perth, 7 U. C. P. R. 101. The statute begins to run from the occurrence of the accident, not from the death, Millar v. North Frederkh^burg, 25 U. O. Q. B. 31. So where plaintiff's mare fell through a bridge and was injured, but did not die for four months afterwards, when the action was brought it was held to be too late, / b. As soon as the mare was injured by falling through the bridge, the plaintiff's cause of action was complete. His damages in the words of the statute were then and from that time sustained, The subsequent death of the mare was merely additional evidence of the extent of his damages. lb. The damage was not the leas because lie did not at the time know its full extent. Ih. (t) This proviso does not apply to roads laid out by the Govern- ment and afterwards abandoned to the Municipalities. Inm v, Bradford, 22 U. C. C. P. 18. All the Le^slature meant by it is, that the merely laying out of a road or the building of a bridge by private owners shall not thereby cast a criminal and civil responsibility on the Municipality, or on the public represented by them. See Grtm V. Town of Bridge Creek, 20 Am. 18. " It is very easy to imagine cases where such a provision should most properly apply, especially in a country where such large open spaces are mcluded in town ani city limits — in some cases containing tracts of land in their original state. A landholder might, merehr for his pergonal convenience, «take out half-a-mile of roatl through his Iiuid, cleared or unclearol, and declare that he dedicated it to the pubHc. Such a proceeding, by itself, should not render the Municipality liable. But after this is done, and for a long series of years, tne public (al'iaii the Munici- pality) use the road as a frequented thoroughfare ; houses are built along it as their chief if not their only way of egress and ingress, and which houses are forthwith taxed by the Municipality ; rewirs :are regularly done to it every year by the road officers out of public moneys ; — it would then, I think, be an unparalleled state of the i92.1 COUNTY ROADS AND BRIDGES. What are County Roada and Bridges. i%» oTei- 492. Tlie County Council shall have exclusive juris- juri«djction diction [u) over all roads and bridges lying within any Town- ^u*^","sa sliii), Town or Village of the County, and which the Council ro«diand by bylaw assumes with the assent of such ToM'nship, Town ""*"• ur Village Municipality as a County road, or bridge, until « — — ^ ■ Itw if it lie in the month of the Municipality to declare that they are under no responsibility." Per Hagarty, C. J., in The Qiifen v. Yidrilk, 22 U. C. C. P. 431, 439. The adoption of a road by the parisli is no more than the use of it bj' the public. 7Vie King v. i>.i/,>, 5 B. & Ad. 484. If the road be used by the public, the parish most repair it, although neither the dedication nor the user has lieen idopted or acquiesced in by the parish. Ih., 469 ; see also The King T. Ijon, 5 D. & R. 497 ; The Queen v. KewhoUJ, 19 L. T. N. S. 650 ; hrman v. Canterliui-y, L. R. (i Q. B. 214. If a Municipal Corpora- tiuu hare created a street as a public street, taking charge of it and regulating it as other streets in the Municijiality, they cannot be aliuwud, whtiu sued for an injury arising out of their negligence bj^ me of the pubhc, to repudiate their liability. Mayor, tic, v. She/- wi/,4\Vall. (U.S.) 189; see also Jrwin v. Brculford, 22 U. C. C. P. IS; 6. C, lb. 421. Work done by proper authority to repair roads L'ed U3 highways, when no evidence of their establishment under sutiite uor other evidence of acceptance is shown, has repeatedly, in tk United States, been held sufficient to authorize the inference of acceptance by the constituted public authorities. Marcy v. Taylor, \'n\\.m; FoUomv. Underhill, 36 Vt. 580; State v. Athertoii, 16 N.H. 203; People- v. Jona, 6 Mich. 176 ; Alvurd v. Ashley, 17 111.. SSS; Cummonwealth v. Belding, 13 Mete. (Mass.) 10; Green v. (jflii«/i, 29 Conn. 157 ; Guthrie v. Neio Haven, 31 Conn. 308. Though therule is not uuifornjly recognized in the United States, it is believed tliat the weight and prevailing current of authorities support it. (V;i.« V. H(,>jt, 19 Conn. 154, 109 ; Baker v. Clark, 4 N. H. 380 ; V'/M-. J«(W, 3 Fost. (N. H.) 327 ; Cole v. Sprowle, 35 Me. 161 ; P.Jl^ltvJkmbien, 2 Doug. (Mich.) 256, 286 ; State v. Catlin, 3 Vt. mi Marcy V. Taylor, 19 111. 634; Boyer v. State, 16 Ind. 451 ; H.mv, Sanno, 32 Vt. 600 ; Hoklane v. Cold Spring, 21 N. Y. 474 ;. Cq;i«e V. Human, 15 Ind. 201 ; Leech v. Waugh, 24 111. 228 ; Gonne- Uv. Ford, 9 Wis. 216; Daniels v. People, 21 ill. 439 ; iloldane v. '-■'I Syrhm, 23 Barb. (N. Y.) 103 ; Jennings v. Tishury, 5 Gray Mass.) 7.S; Ramll v. New York Central Railroad, Co. 20 Barb. (N.Y. ) i^;IIa!i.iv. State, 8 Ind. 425; State v. Hill, 10 Ind. 219; Smith V .^'/«/c, 3 Zabr. (N. J.) 130 ; State v. Sartor, 2 Stro. (S. Car.) 60 ; it'itev. Aihert07i, 16 N. H. 202. It is doubtless within the power of Miiiiiuipal Councils to close up or by proper action refuse to accept aighways estal)lished by dedication ; so that it is impossible for laiid- wiiere to force upon the public, roads not necessary for public con- ^meuije. 8uch as are necessary the public ought to repair. Per wk, J., in Manderschid v. Dubuque, 29 Iowa 73 ; S. C. 4 Am. 196. •'') It is by section 487 enacted t' at the soil and freehold of every iighway or road, altered, amended or laid out according to law should « vested in Her Majesty, her heirs and successors. It is by section. J'^^^ 494 C' • f/ff * rf THE MUNICIPAL MANUAL. h 490, the by-law has been repealed by the Council, and over all bridges across streams separating two Townships in the County, and over all bridges crossing streams or rivem over one hundred feet in width, within the limits of any incor- 480 enacted that ewry jmhllc road, Mreet, hr'uhje, or other Jwfhwnu (not sayiniL,' soil or freehold), in a City, Township, Town or Incur. porated Village, shall be vested in the Municipality, MAjert h nmi rhjhtH la thi' nod which the individuals who laid out such road, gtrect bridge or highway reserved. It is, by the section here annotatel enacted that the County Council shall have fxdmlw juritutkfm over the roads and bridges mentioned, which may include roads and bridges such as mentioned in sections 487 and 488. An cndeavuur was made, in note ;/ to section 487, to reconcile sections 487 and 489. It is now necessary to reconcile the section under consiueration with those sections. The section under consideration, it will be observed, omits all reference to *' the soil and freehold," as provided for in sections 4})7 and 489, .and omits the use of the word "vest," as used in the latter tection. It simply declares that as to the roads and bridges intended, the County Council (not Corporation) shall have exclmve jumlir- tioti. The reason which probably led the Ijcgislature to confer the exclusive jurisdiction upon Counties over County roads and hridges, without vesting the soil or property of them in the Counties, v!\», that the County has no peculiar or exclusive locality constituting the County, apart from the separate Municipalities which compose it; and it mieht seem inconsistent, after vesting every puldic road, street, bridge or other highway, in a City, Township, Town or Incor- porated Village, in the Crown or in the particular local Municipality, to vest any of the same highways in the Corporation of the County, and therefore " the exclusive jurisdiction" was alone conferred upon tlie County Council, as the grant of a power sufficiently large for all practical purposes, and indicating that the local Municipality or Municipalities are to be excluded from all interference in the exercise of that i)ower. Per Adam Wilson, J. , in Wellmjton v. WUmn el al, 16 U. C. C. P. 1.30. That every public road in a Township is vested in the Municipality thereof, must be taken with some limitation ; for the County Council has, under this section, exclusive jurisdiction over all roads, &c., lying within any Town or Village of the County which the County Council, with the assent of such Town or Village Municipality, assumes as a County roa(L See Per Johu Wilson, J., in The Queen v. Louth, 13 U. C. C. P. 615-618. The section here annotated, before amendment, applied onlj' to roads or bridges within Townships. Per Burns, J., in St. George's Church v. Grey, 21 U. C. Q. B. 265. It will be observed by carefully reading the section that the powers of County Councils are now much extended. The exclusive jurisdiction is now conferred as to the following roads and bridges : 1. All roads and bridges lying within any Township, Town or Vil- lage of the County, and which the Council of the County by Bylaw, with the assent of the local MunicipaUty, assumes as a County roiJ or bridge. 'fl BOUNDARY LINES. 495 &493.] porated Villago in the County, and connecting any highway Wing through the Coixnty, and over all bridges over rivers formiiiL' or ci-OHsing boundary lines between two Munici palities. 3; V. c. 16, 88. 17, 19 ; 39 V. c. 7, s. 2, Seized. B. 493. Any County Council may assume, make and main- Boundary tiiu any Township or County boundary line at the expense m°tnuaned of the Coynty, or may grant such sum or sums from time *'y County. to time for the said pui'poses as they may deem expedi- «nt. (») 36 V. 0. 48, s. 411. . 2. All bridges across streams separating two Townships in the Connty. 1 All bridges crossing streams or rivers over one hunrlred feet in width, within the limits of any Incorporated Village in the Connty, ud connecting any highway leading through the County. 4 Over all bridges, over rivers forming or crossing boundary lines letween two Municipalities. The tint subjects in the section it is quite plain must be assumed k the County by By-law. The remaining three subjects are not within that part of the section to which the word " By-laws" refers, ;)fr Wilson, J., in O'Connor v. Otonabee, 35 U. C. Q. B. 82. The section does not in terms require that the last three subjects shall be asumed by By-law. The section reads better by itself that the Coanty Council shall have exclusive jurisdiction over thest three rabjects . . . It is the positive duty of the County to perform the necessary acts with respect to subjects two and three although the County Council has passed no By-law assuming such subjects hecause the County Council has exclusive jurisdiction over them. IL 83. The section must be read as modified by sections 498 and 515, and as meaning that every road dividing different Townships iball, when assumed by the County Council be withiuthe exclusive jurisdiction of the County, lb., 84 ; see further, Reqina v. ]\' ellivqton, 39U.C. Q. B. 194. The case oi Re Mc Brule ami York; 31 U. C. V B. 355, so far as it expresses that roads between Townships are Tithout having been assumed by the County within the sole control «f the County must be modified. See j;er Wilson, J., in O'Connor v. ifMuke, 35 U. C. Q. B. 85. The section was held in The Queen v. Perth, C. P. M. T. 1872, (not reported,) to be in^plicable to roads between Townships Jcquired by the County Council by purchase, and this decision ifhich was followed in Hacking v. T/ie Corporation of Perth, 35 U. ' Q. B. 460, was disapprovedi of in S. C. 35 U. C. Q. B. 467, by the Court of Appeal. (f) By Township boundary line, here m. which forms the boundary line of a between townships, and a road may w a County or a boundary line between the County Council may do one of two maintain it, or grant money from time ™iig cr maintaining it. See note a to mentioned, is intended a Township or boundary line also be a boundary line Counties. In either event thiiigs— assume, make and to time for the purpose of preceding section. I 'i^t % 496 Boadior bridgei as- ■um« x' 1 \ i I of a bridge over a river forming or croHHing n boundary line between two Counties, or a County and a City, Huch bridw Bhall be erected and maintained by the Councils of the voU V. S'uneop ami Ontario, 16 U. 0. C. P. 43 ; S. C. in Anno.) la U. C. C. P. 9; The Queen v. YorhHUe, 22 U. C. C. P. 43]. u il here by this section expressly declared to bo the duty of (Vmnty Councils to erect and maintain bridges over riverH/orwiiMj; or rmmii boundary lines between two Municipalities in the Comity, exceptinc the case of a City or separated Town. ' The Legislature has not given any definition as to the meftning of the word "river." The Legislature in some of the sectioni of the Municipal Act use the word "stream," in others " wnter-course, " in others "river," and in otliors "creek." 8ee s. 492, 4m, 4!»5 und 629. The words " stream " and " water-course " may lie looked upon as synonymous, but certainly not the words "river" and "crek." Every stream may be said to be a water-course, and every water- course may bo said to be a stream of water ; but every river cannot cr. The illice and . . in width with clearly defined banks, and which the peoitle there call " Black Creek," has been held by the Court of Appeal to be a river, within the meaning of the section here annotated. McHnvdij v. EUkt, et at, 1 App. R. 628; reversing 37 U. C. Q. B. 580. But even where the stream is beyond controversy a river the ( 'ounty Council " iridg* ofth C. Q. B He WeJtcott and Peterborowjh, 33 U. C. Q. B. 280 ; Heijhm v. Haldimand, 38 U. C. Q. B. 396, it was, however, intimated but not decided by Mr. Justice Wilson that the Council might be comijelled by mandamus to establish a bridge across the Grand River at some convenient place between Cayuga and Caledonia, there being none for that distance — eleven miles, and subsequently the Court (Harri- son, C. J., dinn.) made a rule absolute for a mandamus for that {)urpo8e. In re Brooks and Haldimand, 41 U. ('. Q. B. 381, The eauing road through the County of Wellington running north and south, crosses the Grand River in the village of Fergus, by the Tower street bridge, less than 100 feet in width, which was built in 1834, and by that bridge only till 1850, when another bridge more than 100 feet wide, was built by a private owner of property in the village over the river at St. David street, about 300 yards from Tower street. The County never by By-law assumed either bridge, but had granted aid in keeping up both. Held, that the County could not be compelled to mamtiini the St. David street bridge. Jieginav. Wellinijton, 39 U. C. Q. B. 194. Indictment would appw to be the proper remedy in all cases where a municipality is charged with the non-repair of an existing roatl or bridge. The Qmn v. Commmonen of Llnndilo Roadn, 2 T. R. 232 ; The Quern v. Oxforil and Whitney Turnpike Hoaibi, 12 A. & E. 427 ; Tlw. Queen v. Hahh- viand, 20 U. C. Q. B. 674 ; T/ie Queen v. Brown and Street,, 13 l.U C. P. 35G ; Begina v. T/ie Corporation 0/ the. Township 0/ McGiHtcraj, must have some discretion as to the place where the bridge should !« erected and must be allowed to some extent to judge of the necessity of the erection. Kinnear and Haldimand, 30 IT. 'J I 1<9.V] BRIDOKS BETA»KKN MUNICIPAUTIKS. 499 (\)unfi« or County luul Oity reHfieotively; (h) mu\ in chhc Differcnee* tli? Coniiciln of Huch (Jomity und City, or tli« t'ouncilH of j;;^;;;*/^!** jiifli Coiintieu, fail to agreo on tlio rt'HjK^ctive iKirtionu of the »'«>"• n\i' Itorne by the Hovenil MuniciimlitieH, it Hhnll 1« the iliitv of each Council to a)>iH)int arhitmtovB, iim pro- TJiM bv tliiH Act, to (letiM-nnne tho amount to Ite ho JSV, CQ. R 01 5 ^f •/"»«MOM rt») is. (q) not aHSumetl I, Tnaiiitaioed Hri4 ccept where it u over rivers form- wo ^'luDicipalilieii. 5 also the Ownty maintained hy tlie naintained by the the same, exa'pt itaiii bridges over ines between two V.-c. 16 8. 19. ctiwi. f between a County, ''illage, and an aJ- >ct. lly meant a road form- [imed by the County rved by the Town .hip ]t {>r maintain bridgw Ibetween two Murut:- as possible, to relieve epair, and throw thai fthereto. To cast ti^ repair a County ruaU, id unreuHonalile. Jw.' \rmont,ti ''•^'•,^f lucli is apparently tbe les, when not forniin! | litainod and impnAe-l ICounty boundary linrf le under the operation Townships l/jrikriDg ^ to erect or mainuin . ary lines l)etwe«n t«» to bridges over nvtR , S. 198,1 ROADS BKTWEKN MUNICIPALITIES. joining County or Oountie«, City, Town, Township or incor- porated Village, («) the CouncilH of the Municipalities be- tween which the road lies Hhall have joint juriHdiclioa over the .same, (/) althougli the road may so deviate as ia some lonning or crosBing a boundary line between two Municipalities. See MC. 492. {»] In ca«e a road lies wholhj or pnrtlif fiftwfien a Connty, &c., and a jdjoining County, &c. A roatl situate wholly w'Uhia a City, Town, Township or Incor])orated Village, ia vested in the local Munici- paJities. Sec. 489. "When, therefore, the defendants assert that the roiul in question is a Connty road, pro{)crly constituted vuch, uiter the provisions of the statute, they are asserting that to be the case which we see coulil not l>e. " Per Bums, J. , in St. Oeorget'n Churrh V. Grey et o/., 21 U. C. Q. B. 265, 2(58. When is a road to be iaJn rt of a road. In re Brant and WakrU, 19 U. C. Q. B. 450 ; see difference of opinion on the pomt between the late Chancellor and the President of the Court of Appeal, in Harroldv. Siincoe and Ontario, 18 U. C. C. P. 10, 17. The original Act was in this respect first amended by 33 Vict. c. 26, ss. 1, 8, by striking out the words "or bridge." Soe Beaver v. JTaMf/cWcr, i6 L. J. Q. B. 311. If the road were held to embrace a bridge forming part of the road, the liability to repair the bridge must be the same as the liability to keep the road in repair. See McHirnhj v. Ellkf, 37 U. C. Q. B. 580 ; 1 App. R. G28. (w) t. p., a road lying wholly or partly between a County, Town, City, Township or Incorporated Vdlage, and an adjoining County. &c., or a bridge forming part of a road. See notes « and v to sec. 4i)S. (x) "Joint jurisdiction." See note t to sec. 498. (y) It would be well for the Municipal Council first lassing the By-law and requiring the other Municipal Council to do so, to serve the latter with a copy of the By-law. That would be the best notice of the same. Six months are allowed to the Council of the latter Municipality within which to pass a By-law in similar terms. ,501,502.] ROADS VESTED IN HER MAJESTY. 603 ciptHty in respect to the road or bridge shall be referred to irbitration under the provisions of this Act («) 3f» V. c. . . «,«.418. ... Transfer of Pawera of Justices in Sessions, 501. All powers, duties and liabilities which at any time CertBin pow. before the fiist day of January, one thousand eight hundred ticei^'n^ and fifty, belonged to the Magistrates in Quarter Sessions, Jl?^^"*" with respect to any particular road or bridge in a County, county ooua- »nd are not confen-ed or im|)osed upon any other Municipal "'^* Corporation, shall belong to the Council of the County, or in case the road or bridge lies in two or more Counties, to the Councils of such Counties ; (a) and the neglect and dis- obedience of any regulations or directions made by such Council or Councils shall subject the offendei-s to the same penalties and other consequences as the neglect or disobe- dience of the like regulations of the Magistrates would have subjected them to. 36 V. c. 48. s. 419. Roads vested in Her Majesty not affected. 602. No Council shall inteifere with any public road or Roads etc, bridge vested as a Provincial work in Her Majesty, {h) or in ^ i^«>Tinciai (:) Whether or not the Arbitrators have power in respect to a bridge, to direct when and at what cost the bridge sliall oe built, and to compel the respective Municipalities to contribute, is doubt- ful h re Brant and Waterloo, 19 U. C. Q. B. 450. (rt) This section is not to be understood as limiting the responsi- bility of Counties to just the same measure of responsibility to which Magistrates in Quarter Sessions were subjecteti. This is not the purpose of the clause. It is a transfer clause or clause of convey - «nce from tlie Magistrates to the County Councils of all the powers, 4c ; and ou the completion of such transfer the Councils are to hold tiie property operated upon in like manner and subject to the general duties and habilities applicable to their other property. The section, it will also be seen, applies only to such particular roads and bridges M were not conferred or imposed on any other Municipal Council ; but it is difficult to say what roads or bridges can be within it, when lections 488, 489 and 492 have already conferred or imposed every road and bridge upon some Municipality, excepting those Govem- ment works specially exempted under section 502. The section BPder consideration was, it is presumed, inserted ex uhiindanti (antda, and not because there was any case or special property upon which it can really operate. Per Adam Wilson, J., in Harrold v. Smw and Ontario, 16 U. C. C. F. 50, 51. (ft) All public roi,il8, with few exceptions, are vested in the Muni- npahty in which situate. Sec. 4S9. Among the exceptions may be i\ i hk I' : i: 504 work! TMted In Her MajMty.atc., not to be in- terfered with. Piwlanwtion liy Lleuteu- •nt-OoTer- noruto loadf, ete., under con- trol of Oom- miMioner of Publio Worlu. Ordnance roads, lands, etc., not to THE MUNICIPAL MANUAL. [g, jQj any public Department or Board, and the Lieutenant-Gover- nor fehall by Order in Council have the sarrit jwwers m to such i-oad and bridge as are by this Act conferred on Muni- cipal Councils with respect to other roads and bridges ■ (A but the Lieutenant-Governor may by proclamation declare any public road or bridge under the control of the Commis- sioner of Public "Works, to be no longer under his control, (rf) and in that case, after a day named in the proclamation, the road or bridge shall cease to be under the control of the Com- missioner, and no tolls shall be thereafter levied thereon by him, and the road or bridge shall thenceforth be controlled and kept in repair by the Council of the Municipality, (e) 36 V. c 48, 8. 420. Nor Roada on Dominion Lands. 603. No Council shall pass any by-law (/) with. ^^'°t«»'ereti classed roads coming under the operation of this section, viz., public *"* roatls.'^&c., vested as Provincial works in Her Majesty, or in any public Department or board, such as the Department of Public Works. (c) There is a difference between a i)ower and an obligation. See note / to sec. 494. The Corporation in which a public road is vested is not only empowered to keep it in repair, but is bound to do so. Sec. 491. The power, without the obligation, is here con- ferred upon the Governor in Council. {(l) Such a proclamation was presumed, in an action to recorer damages for non-repair, where the local Municipality was shown to have used the road as a road vested in them. Inoin v. Brmlford, 22 U. C. 0. P. 18 ; S.C, lb. 421. (e) Suppose the public way to be a bridge, and that bridge crossing a stream which is a boundary line between two Counties, bat not in either of them, on whom devolves the obligation to keep such a bridge in repair after it ceases to be under the control of the Com- missioners of Public Works ? In Harrold v. Sivicoe and Ontario, 16 U. C. C. P. 43 , S. a, 18 U. C. C. P. 9, the obligation was held to rest on the Corporations of the two Counties. "I think that, looking at the question before us, we may properly give to the word •between,' the popular rather than the more limited, though possibly more rigidly correct sense ; and that when a bridge is constructed over navigable waters, and connects two opposite shores lying in different Counties, we should hold such a bridge to be between such two Counties, and that they are jointly answerable for its main- tenance, even though the Counties, as respectively containing the Townships between the shores of which the current flows, reach to the middle of the water, and are divided onlv by the invisible, un- traceable line called medium JHum aqua." Per Draper, C. J., m Harrold v. Siincoc. and Ontario, 18 U. C. C. P. 13. {/■) The power to legislate as to Municipal institutions in the Pro- work vested in i «,l!03.] R0AD8 ON DOMIKIOir LANDS. 1. For stopping up or altering the direction or alignment of any street, lane or thoroughfare made or laid out by Her Mijesty's Ordnance, or the Principal Secretary of State in vbom the Ordnance Estates became vested under the Statute <\f the Pnivinee of Canada passed in the nineteenth year of Her Majesty's reign, chapter forty-five, or the Consolidated Statute of Canada, chapter twenty-four, respecting the Ordnance and Admiralty lands, or by the Dominion of Canada; (g) or 2. For opening any such communication through any lands held by the Dominion of Canada ; (/*) or ; 3. Interfering with any bridge, wharf, dock, quay or other irork vested in the Dominion of Canada ; (t) 505 Ordlnanw roadf, \nt6B, eta, not to be interfered with. 19 v., c, 46» Con. StAt. Can. 0. 24. 8. 40 V. c 8. (D.) Dominion Iknda. Bridgee, eto. ■f-.;!^ vince is by the R N. A. Act. s. 92, sub. 8, vested in the Legislature of each Province. But whether a public work be vested in Her .Majesty as representing the Province, or the Dominion, see Attorney- Gmral v. HarrU, 33 U. C. Q. B. 94, it is equally beyond the power of a local Municipal Act to interfere with or control it without the content of the Queen. The previous section makes this the law in in reference to Provincial works, vested in Her Majesty. This has reference to Dominion works and Dominion property. (j) The object of this part of the section is to protect roads, &c., lad out through Ordnance lands. The Ordnance Transfer Act of 1856 divided Ordnance lands into two schedules ; the first schedule comprising all lands vested in one of Her Majesty's Principal Secre- taries of State, and the second such lands as are reinvested in the Crown for the public uses of the Pro\nuce. See Con. Stat. Can. cap. 36. (i) See preceding note. (i) The following public works, belonging to the late Province of Oanada, are by the B. N. A. Act declared to be the property of the Dominion of Canada : 1. Canals, with lands and water power connected therewith ; 2. Public Harbours ; 3. Lighthouses and Piers ; 4 Steamboats, Dredges and Public Vessels ; 5. Rivers and Lake Improvements ; 6. Railways and Railway Stocks, Mortgages and other Debts due by Railway Companies; 7. Military Roads ; 8 Custom Houses, Post Offices, and all other Public Buildings, "cent Buch as the Government of Canada appropriate for the use of toe ftovmcial Legislatures and Governments ; 9- Property transferred by the Imperial Government^ and known •« Ordnance Property, see note g to this section G4 r J A \ 006 THE MUNICIPAL MANUAL. R;i' If'' ■|w.i MiliUry landf. [8.504. 4. Interfering with any land reserved for militaty m. poses, or with the integrity of the public defences, witvoutcon- without the consent of the Government of the Dominion of ISTnion. Canada ; (k) and a by-law for any of the purposes aforesiii,! shall be void unless it i-ecites such consent. 36 V c. 4k « 421. Council not to clow road required by IndiTiduals fcr ingre»a, •grew, etc. Proviso. Roada Necessary Jor Egress, not to he Closed. 604. No Council shall close up any public road or higli- way, whether an original allowance or a road opened by thf Q-uarter Sessions or any Municipal Council, or othemise legally established, whereby any person will be excluded from ingress and egi-ess to and from his lands or place of re- sidence over such road, (/) unless the Council, in addition to comj)ensation, also i)rovides for the use of such i)erson some other convenient road or way of access to the said lands or residence. (?«) 36 V. c. 48, s 422. 10. Armouries, Drill sheds, Military Clothing anil Munitions of War, and lands set apart for public general purposes. B. X. 1 Act, s. 108, sch. 3. (Ic) No Council has power to pass any such By law as raentioneil without the consent of the Government of the Dominion of Caiuida: in other words, the proper Council has the power with the consent The consent being essential to a valid exercise of the power, it is declared that the By-law shall be void unless it recite such consent. (I) The power of a Municipal Council to close up a highway is subject to certain limitations. One of these, under this section, is against doing so in the case of a road '•whereby any jjerson will k excluded from ingress and egress to and from his lands or place of residence over such road." "The Legislature says in effect, ' Yoa must not stop up any road whereby any person will be excluded from ingress or egress to and from his lands or place of residence orpr such roiuL' If then, such a road be stopped, most certainly all {)ersons must be excluded from ingress and egress to or from their ands OKer that roiul. There can be no ingress or egress over a Btopped-up road. Therefore, J presume, all persons who come into their lands directly from that road, or pass from their lands directly on to that road, are to be protected. This would leave all persons who merely used the road as a convenience, but had no lands abutting' thereon, from or to which ingress or egress would be effected, witii- out the protection of the clause." Per Hagarty, C. J., in Moore (ml Esquesinn, 21 U. C. C. P. 277, 285. The Court will not, on the application of a person who merely used the road as a convenience but had no lands abutting thereon, quash a By-law for alleged con- travention of this section. In re Falle and TiUonbimj, 23 1. 1. L. P. 167. (to) The efifect of the latter part of the aection is to permit a ft 305, 506.] NOTICES OF BY-LAWS APFECTINCi U0AD8. SOT" WidOt, of Roods. 505. No Council shall lay out any road or street more ^'^**» »' tbrni one hundred nor less than sixty-six feet in width, except vbeie an existing road or sti'eet is widened, or unless with the permission of the Council of the County in which the Municipality is situate ; but any road, when altered, may be of the same width aa formerly, and no highway or street shall be laid out by any owner of land of a less width than lixty-six feet, without the consent of the Council of the Municipality, (o) 36 V. c. 48, s. 423. Soticea JRequiaite for Ihj-laws affecting Piibttc Roads. 506. No Council shall pass a by-law for stopping np, conditions altering, widening, diverting or selling any oiiginal allow- ^^^ng by*** 1 Council to close up such a road aa mentioned in the firat part of the jection, provided compensation be paid to tlie persons directly affecteil and a substituted road or way of access be provided. In re Ammaml Mari}wm, 25 U. 0. C. P. 1.33 ; In re Thurston and Veru- lam, Ih. 593. In Indiana it has been held that a Municipal Corpo- ratiim cannot close up a street in front of land owned by private indi- viduals without the consent of landowners whose land abuts thereon, or compensating them for the damage. See Ilaijnfa v. Thoinns, j Iiul. 38 ; Ir.tliaHapol'tJi v. Croon, lb. 9 ; I'ate v. Ohio and MuiHissippi Railrml Co., Ih. 479, 483. (o) The object of this section is to make all highways at least lixty-six feet, or one chain, in width. A maxinuini width of one hundred feet is also given. A By-law opening a new road should on the face of it show the wi! the ovncT of the soil relieved of the easement in favour of the public. Baictay v. HmoeWa Leasee, 6 Pet. (U.S.) 498, 513 ; Hama v. MvM, 10 Pet. (U. S.) 25. The conveying away the land to another, where the Corporation has authority to do so, is a distinct matter iltogether, and not necessary to the extinction of the public right of way. Johnson v. Jieesor et al. 10 U. 0. Q. B. 101. Counties have in certain coses, power to stop up highways and convey the right of way, Sec. 524 ; and Townships in certain cases, subject to the con- firmation of the County Council Sec. 625, sub. 2. (yl It ought to be observed that notice is requisite, not only before a Council sliall pass a By-law for " stopping-up, altering, widening, diverting or selling any original allowance, but "for establishing, t/ftimj, stopping up, altering, widening, diverting or selling any other public highway, road, street, or lane. " Under the old Acts it was held that no notice was necessary before passing a Bylaw to open a new road ; the clause then in force only applying to By-laws "for stopping up, altering, widening or diverting a road," trc. Dmk V. Hughes et al., 8 U. C. Q. B. 444. It was at one time contended that the Municipal Councils had only authority to change the direction of existing roads, and to widen or otherwise alter them, not to make new roads ; but it is now settled that such Councils have power to make new roads through any person's lands, not merely as- rabstitntes for other roads running near and between the same points, rat to afford a passage from one point to another where there has been. 50» / ii 'l';r 510 Notice to be poated up. And pub- liihed In Jiewip»per. THE MUNICIPAL MANUAL. [g, f^ 1. Until written orpiinted notices of the intended byUw Jiiive been posted up one month previouHly in h\\ of thenicwt juib'ic placeH in the iinniediato neighbourhood olHuchoriuiiwl allownnee for road, Htreot or other liighwaj, road, street or lane ; (r) 2. And publiHhod weekly for at least four successive weeks in some news|>ai»er (if there l)e any) published in tlje Munici. pality ; or if there be no such uew8pa[)er, then in a ucwh- no pnsange before. / b. It seems that a road is not miule, Ac, when a Bv-law authcrizing the making of it is passed, but only that it ii authorized to he made, &c., by the proper officer acting in a renwrn- able manner. Jh. As to stopping up, &c., it is not necessftry for the Council to do more thim close or abolish the highway by thi-ir enact- ment. They are not re(iuired to fence it in, or to place any physical obstruction m the way of persons passing. They only pnt an end to the riijlit of using it, and consequently to all obligntioii on the part of any person to respect it as a highway. Johunon v. Jtceuor et «/. 10 U. Cf. Q. B. 101. (r) Notices iu the English language ai-e intended. See Gralum v- A'jw.7, 1 1 Am. 401. The Court, on an application to quash a By-law, will assume that the Council have acted regularly in their itreliniiuary proceeilings till the contrary be shown. In re. Luffcrlij and Wod- ■wurth and IJaltun, 8 U. C, Q, B. 232 ; FiMher v, Vawjhau, 10 U. C. Q. B. 492. It would be well, however, that the Corporation should in every case preserve proof of regular notices by affidavit of the person employed to put them up. Per Robinson, C. J., /« n Laffcrty ami Wndworth aut^. Haltm, 8 U. C. Q. B. 235. ^^^lere ap|^)licant, attacking a By-law, ventured to go no further than file an affidavit of a person who said he had no recollection of seeing any notice, without asserting his belief that due notice had not been given, or taking any means whatever to ascertain whether or not the notices were put up, the Court refused to interfere. F'uhr v. Vauijhan, 10 U. C. (,>. B. 492. So where applicant did not positively negative any notices liaving been put up, tlie Court refused to 'uter- fere, although the Municipal Council did not prove that six notices were put up. Parker v. Pittiibiirf/ and Hmve Juland, 8 U. C. C. P. 617 ; see also /m re linker et aL and Saltfleet, 31 U. C. Q. B. 386. It is not necessary that such notices should be framed with such parti- cularity as to requii-e recourse to be had to a lawyer before framing them. See T/te (J^iieen v. Powell, L. R. 8 Q. B. 403. To a declaration in trespass qiiare clansuvi freqU, the defendant filed several pleas, justifying the trespass as done by him as servant of the Municipal Council of the United Counties of Wentworth and Halton, and l)y their command, in x)ursuance of a By daw passed on the 3l8t January, 1850, in accordance with the provisions and requirements of the Municipal Act of 1849, which came into force on Ist January, 1850. Held, on demurrer, that it was a valid objection to the several pleas, that they did not show a calendar month's notice given previous to the passing of the By daw ; that on the contrary they imported on the face of them that it could not have been given, because the By-law was NOTICES OP BY-LAWS APPECTINO ROADS. 511 Mner nnblUhed in Home neighbouring Muiiici|^ility ; nnd, in titlier cane, in the County Town, if any such there be ; (a) 3. Nor until the Council han heard, in person or by coun- P'T,*).*",,'"^ wl or attorney, any one whose land might be prejudicially fvctcdTtoiw* jffected thereby, and who jietitions to be ho heard ; (<) •*•'^• 4. And the Clerk shall give such notices, at the request of cierk to give the applicant for the by-law, upon payment of the reasonable on'^jTOni i\\ttm» attendant on such noticen. (/<) 36 V. c. 48, s. 424. «>' expcnaei. Reyistration of By-lawa for opening liodds. 607. Every by-law passed since the twenty-ninth day of Byi»wi March, one thousand eight hundred and seventy-three, or JJ^JidV * •re hereafter to he passed by any Municipal Council under the "p?"^ "" authority of which any street, road or highway has been or perty to be Nglitend. paaetl within a month after the Municipal Act of 1849 came into operation. Lafferty v. Stock, ,3 U. C. C. P. 1. {>] It will be observed that the statute does not fix any numhcr of inMrtioiw of the By-law in a newspaper, but the publication weekly furatixetl pericnl, viz., "at least four successive M'eeks." If, there- fore, the final publication be on a Saturday, that week would expire on the following Friday, and so for each successive week. A notice Unt published on Thursday, the 12th January, for Tuesday, the 7th February, was held not to be a publication for "four consecutive teek" In re Coe and Picker'uu/, 24 U. C. Q. B. 439 ; see also In re M^ and Richmond, 28 U. C. Q. B. 333. (t) Where applicant, being aware of the day of the passing of the Bylaw, gave notice that he intended opposing the same, but took no further steps in opposition until making an application to the Court to miash the By-law, his rule was discharged. Parker v. PUtubunjh MootitoH u(r«otuttl ill Ihw, (») be duly rogiatored b the limnt. try Ottice of tlio County or other RegiHtration Divinion m which thfl land in situatfl ; (h) nnd for the pnrpoHe of itvix. tration a duplicate original of nuch by-law shnll be mndeoiit, certified under the hand of tlie Clerk and the neal of the Municipality, and tthall be registered without auy furtW proof, (f) A»toi.y.iiiw« 2. Every by-law pasHoct before the Haid day, and evprr puM)/ order and resolution of the Quarter or Gunuriil Hi>i«iuu» piiHHed before -wid day, under the authority of which any , street, road or highway has alraady iHsen opened u|M)n any privutt) property, may, at the election of any party interested, and at the cost and charges of such party or Mimici|mlitv, be also duly registered, (U) upon the prwluction to the KtgJK- trar of a »luly certified copy of the by-law luulcr th« hand of the Clerk of the Mimicipality and seal of Hiich Miinici- j)ality, (e) or by a duly certified copy of Htich ord«r or resolution of such Qimrter or Oeneiv- Sessioiw, given tindta* the hand of the Clerk of the Peace, as the ca^ie I ' B. 158. Whore it is the clear duty of a Municipal Council to make a road, the Court may grant a mandamus to compel the perfonnance of that duty. In re AinjuMa and Leeds and GreneiUe, 12 U. C. Q. B. S2*2. The Council, in opening a road, must act by By-law. Tk Queen v. liunkiu, 16 U. 0. Q. B. 304. (a) It is essential to the validity of a By-law under the authority of which a street, roatl or highway shall be opened throu^{h private property, that the By-law be registered as required by this section. The section as ordered is not retrospective. liever'uhje v. Crnlmii et ai, 42 U. C. Q. B. 29. (ft) Whenever the Registry Office is only for a Kiding less tlian s County, it is presumed that the By-law shall, in order to its validity, be registered ni the Registry Office of such Riding. (c) It is only a duplicate original of the By-law that can be regis- tered, and such duplicate original must be certified under the hand of the Clerk and -seal of the Municipality. If so certified, it maybe registered without further proof. If not so certified, it is apprehended the Registrar may reject it. (d) In the case of streets, &c., ^ffreq/Ver opened, the section is im- perative. In the case of streets, &c., opened heretofore, the duty u optional. See lieveridije v. Creelman et al., 42 U. C. Q. B. 29. The option may be exercised by any party interested. If exercisd, it * to be at the cost and charges " of such party or the Municipahty. (e) See note e, to sec. 322. 1 ».'i08,.W9.] DIUPHTRB URUPKCTINiJ ROADS. 513 See a/so Rev, Stat. c. j.yk (/) 30 V. c. 48, H. 4i«. lll,ii"3. U'mntf* reHjteothu/ limuh. — Who to Admlmtter Oatlm. ftA. In ciiHo of (liHtMitoH ill imy Mmiiciimlitv concorninir rower to W' »" "- .1.11. I 1 •' luliiilnbur tmiln iillownncoH for toikIh, huu" lines, ItoiiiidiirK'H or conccH- .mth* lu vu- nionii, within tlm co/^niwiiicc of luul in tho cour.s(! of inv<;sti- '''"' ifitioribeforo II Muiiici|Mil (!ouiu;il, th« luiiul of tlio Oouucil msv adminintor an oath or atlirniatioii to any ]»arty or witnoHH «Hiiiinc(l ui>on tin! niatU'rs in (liKj>nt(\ (ecti,fj Tolh. Sec. nOQ (2, 3, fi). " Timhi'.r on liond Affowauci'it. Sec. 509 (1). " UranlUtg of privileges to lio(ul or Ih'UUje Conir jjdiiies. Sec. 501) (5). « Materials for Roads. Sec. 509 (7). " Road AUownmes. ,S'ec. 509, (8), 510, 611, 512. " Aid to Adjoining Mtmicijxdities in Makiiujf Ro(uls or Bridges. Sec. 513. , 509. The Council of every County, Township, City, Town P>''»]J* "•' and iiicoii>oiatc{l Village may [las-s by-laws — for— General Powers. ' - - 1. For opening, making, pre.serving, improving, repairing, Opening or widening, altering, diverting or stopping up roads, streets, roalus'°el:!''* ii^iuai-es, alleys, lanes, bridges or other public communications '/) In the case of a certified copy of an onler or resolution of Qiiirter Sessions, no 8e.al is m.-vde necess.ary. If given under the ■Mils of the Clerk of the Peace, no more will be re(juired for pur- p'sea of registration. {']] It is not intended to give Municipal Councils jurisdiction to ■ri/ and r/t/fmjHfi disputed boundaries, &c., but only to institute « an investigation respectinj; such roads or lines, &c., as are natenal t . . (2.) Making ; (3. ) I'resfcrving ; (4.) Improving ; (5.) Repairing ; , (6. ) Wideiiing ; (7.) Altering; (8.: Diverting ; (9.) Stopping up; Roads, streets, squares, allej's, lanes, bridges or othir public com- munications. Each of these words conveys a distinct idea and a distinct power, as it were, growing out of and becoming necessary in conseauence of the preceding power. It is of little use to open a street unleH» it U made, little use in making it unless to be preMrved, little use in preaerviwj it with growth of population unless improved, little use improvin^^^m, C. J., in WiUon v. Groven, 17 U. C. Q. B. 419, 424. The 4 J 518 THE MUNICIPAL MANUAL. [s. 509. I'M ^ I ! r.fi HakinK re- 3. For making regulations as to pits, precipices and deep w danMro" waters, and other places dangerous tt travellers ; (e) 36 V p'*ce«. c. 48, s. 425 (3). Timbef, d'C, on Road Allowances. Forpregerva- 4. For preserving or selling timber, trees, stone, sand or •ton«'ot(^' S^'*^®'» °^ ^^yf allowance or appropriation for a public road ; (/) but this shall be subject to the provisions of Thu amount of tolls authorized by this subsection appears, subject to limitation left to the discretion of the municipality. Municipa^y V. Pease, 2 La. An. 5.38 ; Muscatine v. Hershey, 18 Iowa 39. And the limitation in effect is, that they be no more than sufficient "to defray tlie expense of making and repairing" the bridge, road or other work. See In re Campbell and Kingston, 14 U. C. C. P. 285. It has been held that a Municipal Corporation which acquired* public road or bridge is bound by stat. 16 Vict. cap. 190, sec. 31, (R, S. O. c. 152 s. W,) and is not entitled to collect tolls for merely crossing any road, or for travelling thereon in crossing from one transverse road to another, when the distance between such trans- verse roads does not exceed 100 yards. Wilson v. Groves, 17 U. C. Q. B. 419. And thus although a portion of the road be abridge, and a by-law be passed authorizing the collection of tolls for the use of such bridge. Wilson v. Midd^six, 18 U. C. Q. B. 348. Councils of Counties and Incorporated Villages may pass By-laws for the assump- tion by the Village of any bridge within its limits under the jurisdic- tion of the County Council, such bridge being toll free. 41 Vict cap. 11, Ont. (e) Dangerous places on a highway subject the Corporation in whom the highway is vested tw an action for damages for injtuy arising from such places beiivg' allowed to remain in the highway. See note p to sec. 491. The power to regulate such places is there- fore essential to the protection of the Corporation, as well as the safety of the travelling public. The power to pass By-laws for the purposes mentioned in this section is permissive not obhgatory Wilson v. The Mayor of Halifax, L. R. 3 Ex. 114; but see fonud xix V. Wiithy, 35 U. C. Q. B. 195. No one is at hberty to leave an excavation of any kind adjoining a highway if it render the highway unsafe for the use of travellers. Barms y. Ward, 9 C. B. 392; Hadley v. Taylor, L. R. 1 C. P. 63 ; see also Cornwall v. J/e(ro^(i- tan Commissioners of Sewers, 10 Ex. 771 ; Hardcastle v. SoidK \urlf shire Railway and River Dun Co., 4 H. & N. 67. (/) The right of a Municipal Corporation to sell timber growing and standing on a road allowance, so as to vest a property m the trees in the vendee was at one time doubted. Cocliran v. Hmop, 3 U. C. C. P. 440. But express power to sell includes the power to pass the property, and also gives the right to recover the value ot trees wrongfully taken from a road allowance. Burleigh v. nam, 27 U. C. Q. B. 72. If there were no such provision, the P«>pe?y " trees growing on original road allowances would undoubtedly be m tM Crown as the owner of the soil The leadmg object of the re«erv»- Tf 8,509.1 no AD AND BEIDOB COMPANIES, 5l!j idmpecting tlie Sale and Management of Timber on Public Rev. stst. U)]di relative to Government road allowances and the "" granting of Crown timber licenses; ( of Ncjicnn v. The liyfovm avd Ncpean Boad Cmipany, 2 (Jrant 62(). The power is not only to grant or withhold permission to com- mence, but, if granted, to make regulations for the completion of the work, and to make the examinations necessary for the proper exercise of these powers. So that the controlling and directing power is, as it were, vested in the Municipal Corporations. See note m sub. 34 1^ sec. 46G. No Company formed under the Joint tock Companies lload Act is allowed to commence any work until thirty liays after the directors have served a written notice upon the lieml of tlie Municipality in the jurisdiction of which such road is intended to pass or be conatructed. Rev, Stat. Out. c. 152, s. 12. If the Municipal Council pass a Uy-law prohibiting, varying or altering any such intended line of road, the By-law shall have the same force and effect, and be obligatory upon all persons and upon the Company, if the Company proceed in the construction of the roatl, as much as if the provisions thereof were part of the said Act. lb. But if no By-law be passed within thirty days after service of the notice, tiien the i.'ompany may proceed with the intended road, without )*iiig liable to any interruption or opposition from any source wliatever. lb. sec. 13. No such road, however, shall, under any circunistancn be constructed or pass within the limits of any City, lucorporatel Town or Village, except by permission, under a By-law, of the City, Town or Village, passed for the purpose, lb. sec. 8. (j) A grant for a term of years is authorized for a consideration stated. Tlie grant is to be of the tolls fixed by By-law to be levied, &c. The term is not to be more than twenty-one years, ami the con- aideration, or part consideration, is to be that of planking, gravelling or macadamiznig the road, &c , oi of building a bridge, &c. The right of the lessee to give in his own name for tolls is douutfuL V/fiitmdev. Bdkhambe.,; 22 Tj. C. C. P. 241 ; Jllndleyy. GMrMv^ 19 Grant, 212. As to the rate of tolls, see note to sub. 2 of this section. ., , (k) See note ;« to sec. 495. ■, , ' ,509.] SELLING OLD ROAI) ALLOWANCES. 621 Taking Materials, i> (\- I/-' ". For fieftichiDg for and taking such timber, gravel, stone fJ'^J^^^"* or other mateiial or materials as may bo neccKsary for mak- taking map ingand keeping in repair any road or highway belonging to J^^'ew. lay such MuniciiMility ; and the right of entry upon such linds, 88 well as the price or damage to be paid to any jier- son for such materials, shall, if not agreed upon Ijy the parties concerned, be settled by arbitration in the manner provided by this Act; {1} 36 V. c. 48, s. 425 (7). Selling Old Road Alloioances. 8. For selling the original road allowance to the parties ^uScii'may next adjoining whose lands the same is situated, when a "top up and public -oad has been opened in lieu of the ongirial road al- uliouanco, lowance, and for tbe site or line of which conij)eiisation has been jjaid, and for selling in like manner to the owners of any adjoining land any road legally oto})ped up or altered by the Council ; and in case such parties respectively refuse to bfcoiiie the jmrchasers at such i)rice as the Council thinks rtiwnaUe, then for the sale thereof to any other ixjrsou for the same or a greater price, (m) 36 V. c, 48, s. 425 (8). (/| Tliis is an exercise of eminent domain, and so is m-ide expressly nibject to the payment of compensation. See sec. 45(>, an(l notes thereto. The right is to pass By-laws for Bearcliin^' for and taking mch timber, gravel, stone or otner material or materials as may bo wmnrij for making and keeping in repair any road or liighway be- lonmig to the Municipality. But the right of entry, as well as price or damage to be paid co any person for snch materials, is either to ha agreed upon or settled by aroitration. See sec. .367 ct i^eq. (w) Where a public roa <, J^ K, IQ. B. Div. 608. The statute does not require the Corporation to •10 more than close or stop up the road allowance. They are not re- 'iwred to fence it in or place any physical obstruction in the way of persons using it They only put an end to the right of using it, and con8e(juently to all obligation on thfi part of any person to respect it »^^ highway. The selling of the roatl allo^ 66 , allowance is one thing ; the If ' I'l' « V ■■"1 : i 022 When » roid to lubati- tuted for an original si- lowanea, oompenift- tion to penon whoM Und to taken who ownH land acUolnlng or- iginal rood. Conveying cf former road Allowance. . THE MUNICIPAL MANUAU [g. 5]() 61.0. In ca«e any one in possefMion of a concession road or side line huH laid out and opened a road or Htreet in place thereof without receiving compenHation therefor, or in caw a new or tnivelled public road hsH been laid out and opened in lieu of an original allowance for rood, and for which no com- penHation has been paid to the owner of the Iftnd appropriated a« a iiu>>lic road in i>lace of such original allowimce, the owner, if hiH lands adjoin the concesfiion road, aide line, or original allowance, shall be entitleeen passed to stop up the allowances they still continue public highways, and cannot be sold or conveyed. P>r Robinson, C. J., in Jn re Choatfi and Hope, 16 U. C. 0- B. 428. Where it is contended by a private individnal that a road allowance I>as V>cen legally stopped up and conveyed to him, ho muHtshow that all the proceedings made necessary in that behalf have been taken by the Corporation. WliUer v. Keown et al , 22 U. C. Q. B. 341. {n) So far, this section provides for two cases : first, where a per- son in posufHuion of a concession roarl or side line has hinuetf laid oat and opened a road, Ac, in place thereof ; secondly, where a new or travelled road has 1>een laid out and opened by, it is conceived, tk proper authorUf/, in lieu of an original allowance for roa«l, ^c. In either of these coses, if no compensation has been paid to the omier of the land, and if his lands mljoin the conc&ision road, side line, or onginal allowance, he shall be entUleil to the original roale to the nereon or perHonn \i\ion whoHe land the new road nms. (/») 2. When any such onginal road allowance is, in the oi)in- ioD of the CouDcil, useless to the public, and lies between bflu owned by different parties, the Municipal Council may lubject to the conditions aforesaid, sell and convey a part thereof to each of such parties as may seem just and reason- ible; (q) and in case comjxjnsation was not paid for the new rod, and the person through whose land the same pa-sses does not own the land adjoining the original road allowance, the amount received from the purchaser of the corresponding part of the road allowance when sold shall be paid to the |Wson who at the time of the sale owns the land through which the new road passes, (r) 36 V. c. 48, s. 426. Possession of Unopened liocul Allowances. 611. In case a person is in j)OSf!ession of any ))art of a Original ai- Govemment allowance for road laid out jidjoining his lot and road* when enclosed by a lawful fence, and which has not lieen opened waUy^ivofr* for public use by reason of another road being used in lieu sewied tin a «e alio Tlu Queen v. Oreat Western lla'dway Covipany, 32 U. C (j. B. 506. The surveyor's report should be express tliat the new uil travelled road is suflicient for the purposes of a public liighway ; ulin the report he should state the width of tlie new road and the liwtobe run. The King v. Hamlerson, .3 U. C. Q. B. O. S. 103; hnhj V. Farley, 10 U. C. Q. B. 545 ; see further, The Queen v. PkHlipi, L. B. 1 Q. B. G48. (f) While it is declared that certain persons shall be entitled to the old roa ^ IP 1.^ 1.1 524 by-law In pMMd for tbem. THE MUNICIPAL MANUAL. N 5i| thoreof, or in in posHOHfiion of any Government allowance for road parallol or noar to which a road hm hoeii CHttiltliHiiod liv hiw in lieu thereof, Huch jjei-Mon Hliall ho deemed IfjgHlly iki». seasf d thereof, an aj^jiinnt any private ])ei-Hon, (») until ii by-law httH heen [mssed for opening such allowance for roiid l)y tin,- Council having jnrisdiction over the Hanie. (/) 3G V. c IM H. 427. ■ ' be of little or no uso to him. For this rcAHon it is providud that iu such uaBc tho iillowaiicc Mhall ho sold, and tho pHJCue'lH paid to th>; person whooo land is taken for the new road. {«) This section provides for the secnrity of, fir»t, a [lenion in p<«- session f»f any part of a Govenunent allowance fr)r road, 4c., not opened for use "by reason of unolhcr road Iwiiuj unnl iu lieu thereof ; ' and seconilly, a person in possession of any (iovenuiieut allowanra for road parallel or near to which " a road Ihih hurn esdi'Mnhed Inj Ian; in lieu thereof," &c. A person so situated is to be deemed lej{allj' possessed as against any '■/irimt)', jievMon," but not as against thw Crown; and ho io to bo deenioeon pas-'od for opening such allowauce," &c. .So that as well agaimt private i»erson8 as Municipal Councils, until a By-law is [umul for opening, &c., he is to bo doomed legally possessed. See Citrri/ v. McLnxl, 12 U. C. Q. H. MTt. Jiy an Act of 1810 all allowance fur roads laid out by public authority wore declared, whetliur openid or not, used or not, "imblic highways." 50 Oeo. Ill, c. 1, s. 12. Hut for tho security of persons in possessiffU of them wlicii not used, it was in 184(5 enacted that no allowance for ronil in poHsession of a private person should be opened unless upon notice to him, and tin; passing of an order of tlie proper Municipal autliority. 9 Vict. c. 8. Both tliese enactments are here in substance re-enacted. A jwrson ia possession of a road allowance where a now road has Iwen opened or 18 used in lieu of it, to save himself from all disturbance, ought to acquire a legal title thereto, pursuant to sec. 510 of tliis Act. See Purd>i V. Fariey, 10 U. C. Q. B. 545; iV«/(Av. Olover, 24(iraut2lll; McKlllop V. Smith, Ih. 278. {t) A Municijjal Corijoration has a clear right to ojien an oriLmml allowance for road, and in doing so they must, at their peril, t)C correct as to its true position. The By-law should really descrilie tho boundaries of the allowance, if there be any uncertainty as to the true boundary. McMHlknand Curwloc, 22 U. C. 0. P. SM. "If the limits assigned bo not tho true limits of the side road as originally surveyed, tho Council has no jurisdiction to enact and declare that they shall be ; and whether the declaratory enactment have anv validity or not, a person Itonn fide contesting the true site of the road has, I think, reason to complain of such a clause being inserted in the By-law, as calculated to expose him to ditiiculties at any rate, if not to prejudice him in the conduct of any litigation which he may 11,512 Sn] nV-LAWB TO AID IM MAKINO ROADH. 625 Kotite of liy-Utwifor OjteniiKj nuch AUowancrg. 512, No Hiich by-lnw hIihII be jmHW'*! until notice in writ- Not(c« of by. inijhiw l»«(!n ^iven to the j)en*on in |»()Hs<, ToWN S, ANH VlL- LAiJES IN KKLATION TO UuAUH AND ItltlUOES. Aiding Counties in openivtj Nevf Roada, Ser.. .514 (1). Joint Work with other Mnuicipalitiea. Sec. b\\ (2). Hejiair of Township Jioadg, how enforced. Sees. 515-523. leceiKtrv to establish that tho metes and bounds assumed to be, are in fact the true limits of the origin.il allowance. The first clause of theKy-law will hi'vo, therefore to be quashed," &c. Per Gwynue, J., Ik 360, 3G1. A By daw enacting that " every person or persons hving enclosed or occujtying any part or parts of said quarter town line (an original allowance for roati) shall ]»e required, on or beff)re the fiint (l.iy of November next, to give up possession, and open the wme for the use of the public travel ; the same to be made by gratu- it«u9 or statute Libour, &c., was held to be valid. In re, Mr.Michnel nwl Towimml, 33 U. C. Q. B. 158. And per Morrison, J., "The Bylaw is in effect a notification to such parties (parties in possession) that after the day named the road allowance wdl be f>peued f(»r the fee use of the public, when the Council will take tlio steps for that purjKjse. It is inartificially expressed, liut can do no harm ; and we fee no ground for (plashing' the By-law." Jb. 1G4. («) There must be a notice in writing, which must be given to tho penon in possession at leant eight days before the meeting of the Cflnncil. See In re Samn and Toronto, 9 U. C. Q. B. 181. The object is to prevent his being taken Ijy surprise in regard to tho mtention to o[)en the road allowance of which he is in possession. ft) In general, the jurisdiction of a Municipal Council is restricted within the Imundaries of the Municipality. See note u to sec. 18; «< also note ft to sec. 277. But as roads, streets, bridges and "wiM like public communications may extend from one adjoining Xi I m /* ; u 526 THE MUNICIPAL MANUAL. [8. 514, .^15. ByUwi 614. The Munlci|)al Council of ev«ry Townjihi|), City, DMybciDMlt Town and iucoriM^mtud Villtigo may )iuh8 by-Iuwa— New Jioadn. Aiding; conn- 1. Fov ginntiiig to tlio County or Uniteil Counties in K ro°a(ir'" which buch Muiiiciitiility lies, aid, by Iohu or (.tlierwiiw. t.v •nd bridgon. wiirdH opouiiig or making any new roud or briiluc on tlie bounds of Huch Municipality; (w) Joint work* with other muoicipa- litio*. If any town- ■hip COUDCil ftils to per- foim ita duty. General Arrangements. 2. For entering into and performing any arnuigwnient witii any other Co\incil in the same County or United Coimtiffl for executing, at their joint expense and for tlieir joint bene- fit, any work within the jtuibdiction of the Council, [t) 3G V. c. 48, H. 430. Jiepatr of Township iloads — how En/urced. 615. Wlienever Township Councils fail to maintain Town- ship boundary lines not assumed by the County Council, (:) in the same way as other Township road, by mutual ngnv- ment as to the share to be borne by etich, it shall be C()m|«- tent for one or more of such Councils to apj)ly to the Cuuuty Council to enforce joint action on all Township Councils int<'rested. (a) 36 V. c. 48, s. 431. Municipality into another, so aa to be partly in each, power is here civen to pass By-laws for granting aid to an ailjoining Municipality ui making, opening, mamtaining, widening, raising, lowering or otherwise imprr nng any sucli road, &c. See note a to sub, 1 to sec. 509. {w) As a rule, Councils of Municipalities less than Countiea Lave not i)ower spontaneously to assess themselves for County piirpuses. See note h to sec. 277. Tlie power given by this clause is to grant aid, by loan or otherwise, towards opening or making any new road, i.e. not stating whether ilie same may be done voluntarily or only npon the solicitation of the Council of the County. See note r to sec 513. (x) The arrangement should be a completed one, in order to render valid a By-law for carrying it into effect. See In re Xichol and Almonte, 41 U. C. Q. B. 577. (z) See O'Connor v. Otonabee and Duro, 35 U. C. Q. B. 73. (a) The roads here intended are "Township boundary liiie&" Apparently the intention is to embrace roads lUviding TowiwDip ; otherwise there would be no necessity for a provision aa " to the share to be borne by each " in respect of the obligation to o\^\i. r^i-if RMie- ttot for a majority of tlie ratepayei-s resident on the lotj* bor- dtfiog «u either or both sides of such line to jH^tition the Couuty Council to enforce the opcninjj up or repair of such liueii jf road by the Township Councilb interested, {b) 36 V. i: 48, 8. 432. 517 A Connty Council receiving such j)etition, either Dut> of fi-om Township Councils or from ratepayers, as in the pre- ^^^*f^ redinf; section mentioned, may (c) consider and act upon the petition. saint' at the seBt\iou at which the jietition is presented, (d) % V. c. 48, 3. 433. ■ 618 The County Council may (e) detcnnine ui>on the Amount, &e., amount which etich Townshi[) Council interested shall be re- {jJHhwTby .]uired to apply for the opcniing or repairing of such lines of "ach town- mi, or to direct the exi)enditure of a certain portion of * '** statute labour, or both, as may seem necessary to make the ou rtpair and improve. It is true that in the case of Townships odja- ctnt to an unsurveyed track, the provision would be in ternia ipplicaliie, whether Townships were divided or not by "the bound- try liue," But the probabihty is, that the Legislature meant tho Kctimi to have a mure extended operation. Tliis supposition is con- iriiied by a reference to sec. 610, which gives certain powers to tho ntepaytrs bordering " on either or hoth sides of such linp." The County Council is, lu relation to such Townships, as it were, made the iirbiter. Power it given to tho County Council, on the applica- tion of any Township interested, "to enforce joint action" on all intertisted. The application should be by petition. (4| The preceding section supposes at least one of the Townships interested disposeil to do what is required of it. But if all interested iail to perform the duty cast upon them, a majority of the rate- wyers reHident on the lots bordenng on either or both sides of such line may petition the Council to enforce the opening up or repair of wch line by the Township Councils interested. The time ancl mode of so doing are provided for by the next section. (c) "May" is permissive. See note/ to sec. 494. The original Kction, 29-30 Vict. cap. 61, sec. 341, sub. 4, provided that "7« Mlltethe duty," of a County Conned receiving, &c. Th.- change ID langunge is designed to remove the duty, and leave the power to Id as one of simple discretion. («) The action may be either by directing the expenditure of money, or the doing of statute labour, or both, as may seem ueces- "fy "to make the said lines of road equal to other local roads." isee sec. 518. W See note c above. i 1' I ■'1 t\ 528 - THE MUNICIPAL MANUAL. [88.519,520 said lines of road equal to other roads. (/) 36 V. c 48 g 434. CommiMion. 519. It shall he the duty of the County Council to an. order of point a Comnussiouer or Commissioners to execute and en- cu"m Kch ^^^'^^ their orders or by-laws relative to such roads. If the roads. rei)res(Mitatives of any or all of the Townships interested in- timate to the Council or to the Commissioner or Commis- sioners so appointed, their intention to execute the work Proviso. themselves, then such Commissioner or Commissioners shall delay proceedings for a reasonable time ; (g) but if the work is not proceeded with during the favourable season by the Township officei-s, then the commissioners shall undeitake and finish it themselves. 36 V. c. 48, a 435. Sums deter- 520. Any Slim of money so determined upon by the tobopaidTy County Council as the portion to be paid by the resiiective townshipg. Townships, shall be paid by the County Treasurer on the order of the Commissioner or Commissioners, and the amount retained out of any money in his hands belonging to such Township ; but if there are not at any time before the sti'iking of a County rate any such moneys belonging to such Township in the Treasurer's hands, an additional rate shall be levied by the County Council against such Township sufficient to cover such advances, (h) 36 V. c. 48, s. 436. (/) The powera of the County Council are, to — 1. Determine the amount which each Township Council interested shall be requireil to aijply, &c. 2. Direct the expenditure of a certain proportion of statute lalwur, 3. Or both. Any different form of determination would be unauthorizeJ and void. (f/) The mere order or direction of the County Council, without powers to enforce it against the Townships interested, would be of tittle avail. Power is therefore given to County Councils to appoint a Commissioner or Commissiouera "to execute and enforce their orders or By-laws relative to such roads." This is, as it were, "i terrorem ; for it is also provided that if the representatives (probably meaning Reeves or Deputy Reeves) of any or all of the Townships interested shall intimate to the Council or to the ronimissiouer or Commissioners their intention to execute the WDrk themselves, then the Commissioner or Commissioners may delay their proceeding. But the delay is only to be for "a reasonable time." If the wvithin eight days of the time of his receiving such application, {k) 36 V. c. 48, s. 438. w payment. It is therefore provided that the" money sliall be paid k the County Treasurer, " on the order of the Commissioner or Commissioners." When bo paid, the money is to be retained by the County Treasurer out of any money in his hands belonging to the toTOsliip. If none, then the County Council may levy against such township a rate " sufficient to cover such advances. " |i) The County Council is, as it were, made the arbitrator between Townships in the same County. See note a to sec. 615. But where tile Townahips are of different Counties, the Wardens of the Counties ue by this subsection made the arbiters. Their power as such arbi- ters is to determine upon the amount which each Township shall « mjuired to expend, either in money or statute labour, or both, Wthe mode of expenditure. See note /to sec. 518. (jj It is apparently made the duty of the County Judge to act. !«notei to sec. 523. But if his duties proper were to demand thf whole of his time, no one could blame him for refusing to dis- mm anch an extra-judicial duty as that sought to be imposed upon ™ by this section. % I wty time of receiving the application. See note « to sec. 177. lu- a;tutive rests upon the Warden of the County m which the Town- ""p tiiat tirst made the application is situate. He is the convener « the meeting It is ma(le his duty to notify the Warden of the «w Louuty (ind the County Judge of the time and place of meeting. iiu! he must do '« within eight days " of the time of Jiis receiving the 67 i i c) In order that time may not be unnecessarily lost, it is made the y of the Wardens to meet "within twenty-ono days" from he \> ^1' P t \ p. • ! 1/ r , i ■• rt'ii 530 THE MUNICIPAL MANUAL. [s. 523.. "What the 623. At sucli meeting the "Wardens and County Judge, J^iStyjudjS or any two of them, (l) shall determine (m) on the share to *to* **tef' ^ l>orne by the respective Townships, of the amount required " "' * on the part or parts to be opened or repaired by each or both and shall appoint a Commissioner or Commissioners to super- intend such work, and it shall be the duty of the Townshii. Treasurer to pay the orders of such Commissioners to tlie extent of the sum apportioned to each ; and Pathmasters controlling the statute labour on the lots adjoining such line, on the portion of such line to be opened or repaired shall obey the orders of such Commissionei or Commissioners in per- forming the statute labour unexpended. 36 V. c. 48, s. 439. P t H S It Division IV.— Powers of County Councils in relation to Roahs AND Bridges. jRespecting tfie Closing of Road Al/oioances, Sec. 524 (1). tlie Opening and altering Roads, Sec. 524 (2). Trees obstructing Highways, Sec. 524 (3). Double Tracks in Snow Roads, Sec. 524 (4). Aid to Townships. Sec. 524 (5). " the repair of County roads in local MunicijmU- ties, Sec. 524 (6). (I) By sec. 521 it is provided that the County Judge is to k the third arbitrator, " VfY-iii aiich Wardens are unable to agree." And yet it ia provided by section 522 that the convening Warlen shall (before any opportunity to agree or disagree) notify " the other Warden and the County Judge " of the time and place of meeting; and here it is provided that "the Wardens and County Judge, or any two of them," shall determine, &c. ; as iitheOounty Judge were to be third arbitrator, whether the Wardens disagreed or not. In these respects there is an apparent inconsistency between the sec- tions mentioned. (m) The duties of the arbitrators are : ' 1. To determme on the sh.are to be borne by the respective Tovra- ships of the amount required on the part or parts to be opened or repaired by each or both. 2- To appoint a Commissioner or Commissioners to superintend such work. It is the duty of the Township Treasurer to pay the orders of the Commissioners to the extent of the sum apportioned to each Tovra- ship. Besides, path-masters, controlling statute labour on lots adjoining the line, on the portion of the line to be opened or repairtd, must obey the order of the Commissioner or Commissioners in performing the statute labour unexpended. OPENING AND ALTERING ROADS. 531 1524.] 524 The Council of every County shall have power (n) By-i»wa to pass by-laws for the following purposes : — '°'~ Closing Road Allowances. 1. For stopping up, or stopping up and sale, of any original Dispoiing of illowance for roads or parts thereof within the County, (o) aiiOTr»noi which is subject to the sole jurisdiction and control of the '*'!J2'*^1^ Ccuncil, and not being within the limits of any Village, Town or City within or adjoining the County ; {p) but the by-law for this purpse shall be subject to the five hundred and sixth section of this Act. (g) 36 V. c. 48, s. 440 (1). Ovening and Alt, sub. 3. This subsection is to be read only as to roads over which County Councils have exclusive jurisdiction. So sec. 525, sub. 3, b to be read only as to roads vested in the Townships. By this con- struction conflict of jurisdiction is prevented. («) This authorizes a serious interference with private rights, ami yet makes no express provision for compensation. The general rule rule is that when the property of a private person is interferetUitn for a public benefit, compensation shall be made. See sec. 4.% and notes : see also note b to sub. 1 of sec. 500. It has been held that g 524.1 AIDING TOWNSHIP ROADS. 533 other officer in whose division the land lies ; and, in the latter case for authorizing the trees to be used by the Overseer or other officer for any purpose connected with the improvement of the highways and bridges in his division, or to be Bold by him to defray the expenses of can-yiug the by-law into effect ; (v) and the Council may further pay such expenses out of County funds. 36 V. c. 48, s. 440 (3). Double Tracks in Snow Eoads. . ■' ' n • . 4. For providing for the making and keeping open of Double double tracks in snow roads, according to the provisions of anow^roiMls. The Act respecting Double Tracks in Snow Roads, {w) 36 ^^ V. C. 46, S. 1. c. 185. Aiding Tovniships, d'C. 5. For granting to any Town, Township or incorporated For aiding Village in the County, aid by loan or otherwise towards of*rcSd«'and oiMJuuig or making any new road or bridge in the Town, bridges. Township or Village, in cases where the Council deems the County at large sufficiently interested in the work to justify w"2be«^ such assistance, but not sufficiently interested to justify the tures of local Council in at once assuming the same as a County work, (03) jfyJi_ ^*' the statutable duty of opening a road on which trees grew was no answer to an action for injury caused to the plaintiff 's land by the felling of trees, acoompauied by the allegation that in so opening the ^Ji^;I a poniou of the trees on being cut and felled necessarily reached w ami fell upon the plaintiff 's land, but doing the said land no annecessary and no material damage. Howe v. Rochester, 22 U. C. C. P. 319. See further, Gilchrist v. Carden, 26 U. C. C. P. 1. (t) If the proprietor himself cut the trees they become his pro- perty. They are his property as owner of the land. See note / to «ec. 509. But if he make default, the By-law may authorize the trees cither to be used for Municipal purposes or sold to defray the eiptnses of carrying the By-law into effect. See latter part of note «to sub. 10 of ace. 461. Further expense, if any, to be paid out of County funds. (ic) See the Act in question, Eev. Stat. Ont. c. 185. W The ordinary powers of a County Council, are, so far as roads uu bridges are concerned, to deal only with County roads and Wges. See note it to sec. 18, and note 6 to sec. 277. These are — 1. Such roads and bridges as lie within any Township, Town or V*^?* of the County, which the County Council by By-law assumes *ith the assent of the local Municipality as a County road or bridge. 2. Bridges across streams separating two Townships in the County. h ■''^•iU'ir 1' I \ 534 THE MUNICIPAL MANUAL. [8. 525. and also for guaranteeing the debentures of any Mtinicipality within the County, as the Council may deem expedient />/^ 36 V. c. 48, s. 440 (4). ' ^' Repair of County Roads in local Municipalities. Opening 6. For requiring that the whole or any part of any County Slliidpi^'' ^^^ within any local Mui icipality shall be opened, improved iities. and maintained by such local Municipality, (z) 36 V c. 48, s. 440 (5). By-lawi for— Division V. -PowEHs OP Township Councils in REunox lo Roads and Bbidqes. Aiding Counties. Sec. .525 (1). Closing Road Allowances. Sec. 525 (2). Trees obstructing Highways. Sec. 525 (3) Footpaths. Sec. 525 (4). Sale of Mineral Rights. Sec. 526. Sale of Roads in Villages and Hamlets. Sec. 527, 528. 525. The Council of every Township may (a) pass by- laws — 3. Bridges crossing streams or rivers over 100 feet in width, within the limits of any Incorporated Village in the County, and coimect- ing any highway leading through the County. 4. Bridges forming or crossing boundary lines between two Muni- cipalities. See sec. 492. But inasmuch as there may be new roads or bridges contemplated by local Municipalities, in which the County at large may be suffi- ciently interested to justify assistance, but not sufficiently interested to justify their assumption, power is given to the County Council to grant to the Local Municipality aid, by loan or otherwise, towards the opening of the same. (,V) County Councils have no power to make grants in aid of the ordinary roads and bridges of particular local Municipalities. In re Strachan and Frontenac, 41 U. C. Q. B. 175. The power to guaran- tee the debentures of any Municipality within the County does not appear to be restricted for the purpose of aiding local works in which the County is interested, but is left apparently to the exercise of the discretion of the County Council in cases in which they think it expedient to do so. (z) This is a provision rendered necessary in all probability by the decision in In re Rose and Stormont, 22 U. C. Q. B. 531. See note / to sec. 494. But the necessity for such a provision cannot be said to have arisen from any language used by the Judges in that case. On the contrary the language used is opposed to the pohcy of such a provision. (a) "May pass By daws," &c. See note /to sec. 494. 71 lELATIOS TO Aidlntr ad- Joining county in making rotdi, ite., and granting aid to county for roada acwumad by county. ^ ,;25.1 CLOSING ROAD ALLOWANCES. 535 Aiding Counties. • 1. For granting to any adjoining County aid in making, oiiening, mamtaining, widening, raising, lowering or other- wise improving any highway, road, sti'eet, bridge or com- munication lying between the Township and any other Muni- cipality, (b) and for granting like aid to the County in whicli the Township lies in respect of any highway, road, street, bridge, or communication within the Township as- sumed by the County as a County work, or agreed to be so affiumed on condition of such grant j (c) 36 V. c. 48, s. Ul (1). Closing Road AUowancea. 2. For the stopping up and sale of any original allowance stopping up for road or any part thereof within the Municipality, and for Srig*„*ft*road filing and declaring therein the terms upon T/hich the same allowance. is to be sold and conveyed ; (d) But no such by-law shall have any force ~ («) Unless passed in accordance with the five hundred and Pfo't**' sixth section of this Act, (e) nor (b) The powers of a Township Council undei' this section are for passing By-laws to aid any adjoiuing County in — 1. Making ; 2. Opening ; 3. Maintaining ; ' i Widening ; 5. Raising; (i. Lowering ; '. Or otherwise improving ; . See generally as to these powers, note p to sec. 506. The description of aid *' by loan or otherwise " is not specified here u in sub, 5 sec. 524. Any highway, road, street, bridge Y or communication lying between the Township ami any other Municipality. (f) The power is not to aid the County in respect of am/ local liiKhway, road, &c., assumed by the County as a County work, but omy when ia the case of a highway assumed " on condition of such grmt ;" in other words, when the promise to make the grant was one of the inducements to the County to assume, and, as it were, the condition on which it was assumed. ((/) The "stopping up" is one thing and "the sale" another. rhere can be no sale till the allowance for road be stopped up. But ttere may be an effectual stopping up o£ the allowance although there be no sale. See note re to sec. 509. I«) See sec. 506 and notes. '■'M'ib, 'if ii: ;'■' 53C THE MUNICIPAL MANUAL. I ■ 3 !•■« h ''1 t '.'■•' ':* !;''■ ' ^' i '-H ;f [«. 525. (6) UHtil confirmed by a by-law of the Council of the • County in wljich the Township is situate, at an ordinary see- sion of the Uouuty Council, held not sooner than thrw months nor later than one year next after the passinc thei^ of; (/) 36 V. c. 48,8. 441 (2). * Trees obstiitcting Jlighwayt. Ordering 3. For directing that, on each or either side of a highway cut^down on under the jurisdiction of the Council (g) passing thiough "a «««h8ideof wood, the trees (unless such as are reserved by the owner for ornament or shelter) shall, for a space not exceeding twenty- iive feet on each side of the highway, be cut down and re- moved by the proprietor within a time appointed by the by- law, (h) or, on his default, by the Overseer of Highways, or other oflficer iu whose division the land lies ; and, in the latter case, for authorizing the trees to be used by the Overseer or other officer for any piirpose connected with the improre- ment of the highways and bridges in his division, or to be sold by him to defray the exj)enses of carrying the by-law into effect ; (t) and the Council may grant out of Townsbiji funds any money that may be necessary to pay for the cutting down and removing such trees ; 36 V. c. 48, s. 441 (3). Footpaths. • ' ■' rootpath*. 4. For setting apart so much of any highway as the Council may deem necessaiy for the purposes of a foot (/) The By-law of the Township is not to have any force until confirmed in the manner and at the tinrie mentioned. If not con- firmed at all, or if confirmed at a seesion of the Council other than the one specified, it would be, for all purposes, inoperative. If not legally confirmed, it would not affect any jjerson's interest. If con- firmed by a By-law of the County Council;^ and illegal, it may be moved against. It wouM, it seems, be premature to move against the By-law of the Township before confirmation by the County Council. In re Choate and Hope, 16 U. C. Q. B. 424, 428. The statute 20 Vict. cap. 69, required such a By-law to be confimied by the County Council within a year from the passing of the By-law. Before confirmation, the 20 Vict. cap. 69 was repealed by statute 22 Vict. cap. 99, saving all things done thereunder, and by it no confir- mation of such a By-law v ,s made requisite. The Court intimated that the confirmation of the By-law was still necessary to its validity. Winter v. Keown, 22 U. C. Q. B. 341. {g) See note t to sub. 3 of sec. 540. (7t) See note m to sub. 3 of sec. 540. (i) See note v to sub. 3 of sec. 540. ' '" " ' ' 1\ ^ J26.] MINUUL RIGHTS UNDER ROADS. 537 pttii, (k) «nd for imposing i»nalties on pei-sons travelling thereon on horsebcMJk or in vehicles. 36 V. c. 4-8, s. 441 (4). Tounuhips and Countien Selling Minerals. 526. The Corporation of any Townsliip or County, where- s»ie of mine- ever miiienvls are found, may sell, by public auction or other- unjj^^ wise, the right to take minerals found upon or under any roads orer which said Township or County may have jurisdiction, if considered expedient so to do. (in) [k] Footpaths or side walks constitute a portion of a highway prD|ier for the use of pedestrians, and necessary to l)o kept in rep«ir by the Municipal Corporation. See notes to sec. 491. .Nothing would be more likely to render such walks unfit oud unsafe for the purposes of their uesi^mi than to allow persons to travel thereon on horseback or in vehicles. Hence the express power to • prevent the latter mode of travel by imposition of penalties. It is ipprehemled that Corporations of Townships, like otlier local Muni- apal Corporations, would have an implied power to do all that is here authori/ed. (m) The freehold of a road, notwithstanding the dedication o' the right of way to the public, remains in the owner of the soil. I^ the rood were laid out by the Crown, the soil and freehold would remain still the property of the Crown. See note nd notes thereto. Minerals, so far a» the Municipalities are concerned, are by this section placed on the ttme footing as growing timber. As to either, +ho Mimicipal Cor- poration may now nass By-laws for sale. There is good reason why, ^ the case of standing timber, the removal of which is necessary to- the T.joyment of the public easement, such a power should exist, ow note/ to sub. 4 of sec. 509. But that reason has no application vhatever to the sale of minerals found under tooAb. See Johns tt aL ''•i(ffi,24U.C. C. P. 219. 68 "'-(?/•*• r'il 538 THE MUNICIPAL MANUAL. No nle tin after notice. [•• 827. 2. No such sale shall take place until after (hie notice of such intended by-law has been posted up, iu six of the roont public places in the immediate neighbourhood of such roa,l for at leust one month previous to the time fixed for consider' ing such by-law. (n) 3. The deed of conveyance to the purchaser or piirchasent wiuTpubiio under sold by-law, shall contain a proviso protecting the raid travel. for public travel, and preventing any iises of the granted rights interfering with public travel, (o) 36 V. c. 48 a 442, Sale of Roada in Villages or IlamleU. 527. In cuae the Trustees of any Police Village, or fifteen of the inhabitant householdera of any other incoriiorated Vil- Bale not to 4nt«rf«re When roads in police Til lages and i«»»*may"iS' ^*^® °'' hamlet ccm.si8ting of not less than twenty dwelling v-nthip ' coundls. stopped up, houses Standing within an ai'ea of two hundred acres, peti- townshi'p *" *^"^ the Council of the Township in which the Village or hamlet is situate, and in case the petition of such unin- corporated Village or hamlet, not being a Police Village, is accompanied by a certificate from the Registrar of the County within which the Township lies, that a plan of the Village or hamlet has been duly deposited in his office according to the registry laws, (p) the Council (n) See note r to sub. 1 of sec. 506. (o) The right of the public to the use of the highway .is a high- way is paramount to any right to remove minerals. The latter right therefore m'lst be so exercised as not to interfere with the former. The Municipal Corporation is liable to be sued by any person sus- taining damages by reason of defect in the highway, aud may, in some cases, without any contract, have its remedy over against the person who caused the defect. See note r to sec. 491. {p) The power of the Township Council to act under thia section only arises — 1. In case the Trustees of any Police Village, or fifteen of the inhabitant householders of any other Unincorporated Village or Hamlet consisting of not less than twenty dwelling houses within an area of 200 acres, petition. 2. And in case the petition of such Unincorporated Village or Hamlet, not being a Police Village, is accompanied by a certificate from the Registrar of the County within which the Townshi],i lies, that a plan of the Village or Hamlet has been duly deposited w his office according to the Registry laws. Whenever anj' land or original Town or Township lot has been surveyed or subdivided into town or villafi;e lots or other lots, so difFenng from the cianner in which such land or lot was surveyed or .granted by the Crown that the same cannot or is not, by the des- i «.,','8.1 STOPPING UP ROADS IN VILLAGES . 539 jjiy («) pnM a by-law to stop up, sell and convey, or other- wise deal with any original allowance for road lying within tb« limitfl of the Village or hamlet, as the wune shall be laid down on the plan, but subject to all the restrictionH con- tained in this Act with reference to the sale of original allow- iDces. (r) 36 V. c. 48, s. 443. 528. Tlie last section shall apply to a Village or hamlet whon Tillage situate in two Townships, whether such Townships ai-e in the i^h 'ouwo same or different Counties, (») and in such case the Council towmhipi. of each of the Townships shall have the power thereby con- ferred, (/) as to any original allowance for road lying within that prt of the Village or hamlet which according to the rejistered plan, is situate within such Township, (m) 36 V. Title III.— Powkrs of Mcnicipal Councils as to Drainagk and OTHER ImPKOVKMENTS PAID BY LoCAL RaTE. Div. I.— Townships, Cities, Towns and Villages. Div. II.— Cities, Towns and Villages. Div. III.— Counties. cription given of it, easily and plainly to be identified, the persyn. Corporation or Company making such survey or subdivision, must, within three monthi) from the date of the survey or subdivision, i(xlge with the Registrar a plan or map of the same, on a scale of not iwii than one inch to every four chains, showing the number of the Township or Town lots, and range or concession ; the number or Irtterj of Town or Village lots, and names of streets, with the "tronomical or magnetic oearing of the same, and other similar in- formation. See R. S, 0. c. HI, sec. 82. (?) J%— permissive. See note/ to sec. 494. (r) See sec. 509, sub. 8. W The last section in terms applies only to a Village or Hamlet ttute in one and the same Township as well as in one and the same WMty but as villages are often formed at the corners of different Township, which may or may not be in different Counties, it is by MIS section made to extend to "a Village or Hamlet situate in two lownships, whether such Townships are in the same County or in Hfflerent Counties." The extension is scarcely sutHcient, for there « \ illages formed of parts of tnore than two Townships. (') See note/ to sec. 494. ' .' ' '. ' . " WSeenotei)t0 8ec. 527. M ii'ir- I MO ■i •'}:■• Munlcipal connclU may pam by-lawf for deepen- ing streams, etc., drain- ago, etc. Examina- tion by engineer. THE MUNICIPAL MAKUAU f, 509 Div. I.— '''owNMiiirH, C1TIE8, Towns anu Vauot*. Loeul drainage hy-lawa, and fund for. Seca. B29 530. Cotupfaintu reapectivg aaaeaaments, how tried. Ste 3''9 (8-13.) ■ Qnnahing Ihj-lawa, limitationa respectiiuj. »S'er. 531..'^33. }]xtenaion of vjoi'ka to otht;r Mi(nieipiditie«. JSee. 534, Mode of ajyportioniiuj coat. Seca. 635-54 1. WJio to keep in repair. Seca. 542-544'. Damage done by worka. Sec. 645. * Drainage 6// p*m«/e />er»OH«. Sec. 546. Earth maif he aj/rcad mi road, Seca. 547, 548. C(ynatruction of ditch on tovm line between two Miummll- ties. Seca. 549, 550. 629. In case the lunjority in number of tLo i^inons, at shown by the hibt revised aHHe8.srnent roll, to be the ownent (whether resident or non-rehident) of the ijroperly to i*b(nt- fited in any part of any Township, City, Town or iucoriioi- ated Village, i)etition the Council for the dcej)eiiiiij,' of uny stream, creek, or water-course, or for draining of the pioiKily (describing it), {a) the Council may proouro an examination to be maile by an Engineer or Provincial L»ind Surveyor of the stream, creek, or water-coni-so propowed to be (1661)6^11, or of the locality proi)08ed to be drained, and may procure (a) Drainage acts arc constitutional. Norfleet v. Cromwell, 16 Am. 787, and Municipal Corporations are not responsible in dauiiiges fur the legitimate exercise of the powers conferred nx .*'em as to dram- age. Dnrhy v. Crowland, 38 U. C. Q. B. 338. There are sevtnJ proceedings necessary before the passing of any By-law uudcr tbii section. The first proceeding necessary is a petition from "the majority in number of the persons, us shown l)y the last revintd assessment roll to be the owners (whether resident or non-rwiidcBt) the property to be benefited in any part of any Township," 4c. Ithu not yet been decided what majority is sufficient to procure the action of the Councd. "Four concessions in a Township may be interested in different degrees in a work which would drain all the lands iu those concessions ; but it might be of more importance to the owners of the lands in one of those concessions than to all the owners of the lands in the other three to procure the constiiiction of the work. As at present advised, we do not see that a majority of the resident owners in the one concession would not comply with the terms of the Act." Per Gw)'nne, J., In re Montgomery and lialeujh, 21 U. C. C. P. 381, 395, The objec- tion that the petition was not signed by the requisite majority n not one that can be entertained by the Court on an application to (mMh the By-law ; at all events, in the absence of fraud or corrupt coudnct on the part of those who passed the By-law. In re. Miclne am ToroiUo, IIU. C. C. P. 379; In re Montgomery and Rale'fjh, 211. 1- C. P. 381. M] DEEPENING STREAMS AND DRAIXAOE. 541 and estimates to he made of the work by siicli Engi- Piam and wtt or Surveyor, and an assownient to be miido by «nch •^'"•'•^ EngiiitiT or Surveyor of the real proporty to btr bennfitwi br soch (Iceiteiiing or drainage, stating as nearly as may la, in th« opinion of luch Engineer or Sui*voyor, tho proportion «f Iienefit to bo derived by such deepening or drainage by t\nf road and lot, or portion ot lot ; (h) and if the Oonncil is of opinion that the deepening of stich stream, cr«ek or vatfi-course, or the draining of the locality describeil, or i portion thereof, would be dcMirable, the Council may jmsa by-lawn— (c) 1, For providing for the deepening of the stream, creek or Pordeepen- nlCT-conrse, or the draining of the locality ; (d) Itnd'SS™ age. (4) On receipt of the requisite petition, the Council nmy, in ita dijcretion, refuse to proccod further. See note / to sec. 494. But if the Council decide to act on it, the Council may procure — 1. An examination to be made by an Knginecr or Provincial Land- Surveyiir of the streams, kc, proposed to be deepened or of the locality proimscd to be drained. i Plans and estimates to be made of the work by such Engineer w Sar\'eyor. 8. An assessment to be made by such Engineer or Surveyor of the ml property to be benefited, ftc., stating aa nearly as may be (in the opinion of the Enijineer or Surveyor) the proportion of benefit to be derived by such deepening or drainage by eeeri/ road nud lot, w/ortion of lot. The contention that all the lands which will be benefited by the protmsed work have not been assessed, or that for any other reawn tne several assessments made upon the respective lots, or any «{ theu are overcharges, does not constitute ground for moving to qoah tie By-law. AU those matters are matters subject to appeal, Ml! it is there such a contention should be tried and investigated. ftrGwynne, J., Jii re Montyomery and RaUlijh, 21 U. C. C. P. 393. W The Council is left, upon receipt of the Engineer's report and fiuij' preliminaries, to judge whether or not ' ' the deepening of the twam, tc, or the draining of the locality described or a portion thereof would be deeirable," &c. If its opinion be in the affinnative, it may pass the By-law; but if of a negative opinion, there is no power to compel the Council to do so. See note/ to sec. 494. '•^ The purposes for which such a By-law may be jiassed are for we deenening of any stream, creek or water-course, or the draining 01 the locality. The effect of deepening a particular stream, creek or water-coarse may be more effectually to drain the locality ; but there may be localities requiring drainage in the immediate vicinity w which there is no stream, creek or water course. In either event It M contemplated that a By-law may be asked and passed. See note "•to Bee. 484, as to streams, creeks and water-courses; ii:. '1^ m ** 542 THE MUNICIPAL MANUAL. [s. 529, For lerying rate for paj' ment. For borrow- 2. For boiTowiiig on the credit of the Municipality tbe £5(5*^?*" ^*"^^^ necessaiy for the work, although the same extends be yond the limits of the Municipality (subject in tliat cxse to be reimbursed as hereinafter mentioned), and for issuing tlie debentures of the Municipality to the requisite ainouLt, iu sums of not less thi>n one hundred dollars each, and payable within fiftee»i years from date, with interest at a rate of not less than five per centum per annum ; (e) 3. For assessing and levying in the same manner as taxes ■ ai-e levied; upon the real property to be benefited by the deeping or draining, a special rate sufficient for the payment of the principal and interest of the debentures, and for so assessing and levying the same, as other taxes are levied, by an assessment and rat* on the real property so benefited (ia- cluding roads held by Joint Stock Companies or private individuals), as nearly as may be to the benefit derived by each lot or portion of lot and road in the locality . (/) {e) The amount borrowed is to be payable within fifteen yeara from the date of the By-law, and yet no provision is made for requiring the By-law on the face of it to show the date of its passing, It is necessary to the validity of an ordinary By-law to raise money on the credit of the Municipality, thah it should name a day in the financial year in which tlie same ie passed when the By-law ahall take effect. Sec. 330, sub. 1. This section, however, does not require that such a day should be named iu the By-law. Pa Gwynne, J., In re Montijomery and RaltUjh, 21 U. C. C. P. 397. But even iu the case of an ordinary money By-law, the Court of Common Pleas refused, after the issue of debentures, to quash the By-law on the ground of the omission. In re Michie and Toronto, 11 U. C. C. P. 3;9. Draper, C. J., said -"I have felt a goml deal of doubt whether the Legislature did not intend that in the body of every By-law shall be stated a t ay upon which it is to take effect. The date on which a By-law is lassad does not necessarily forma part thereof, though it may be tbe practice for some officer of the Corporation to mark the day of its passing thereupon. And I think the Legislature meant that it should not be necessary to refer to any- thing extrinsic to the By-law, for the purpose of learning when it would or had come into operation. The purchaser of a debenture, for instance, would require to see that it and the By-law under which it was issued were legal, ea\d might on that account require to see when the By-law took effect. " (/) A By-law enacted that the drain should be made in accordance with the survey and levels takeu by the Engineer ; that theu should be raised, levied and coUec^^od ofif the lots and parts of lots in the Township to be benefited by making such drain, the sum of S2tilM5;th»t the sum of $2690 should be divided into three equal annual payments, bearing interest at the rate of eight per cent, per annum, first pav- ment to be made in 1871, and to contiaue in each year till the whole 3 amoutt, iu S, 529.1 ASSESSMENT FOR DBAINAOE, (a) Any person whose property has been assessed for such Protlso. deepening or drainage may pay the amount of such assessment, less lie interest, at any time before the debentures are issued, in which case the amount of debentures shall be proportion- ably reduced ; ig) and 543 should be paid, for the purpose of paying one part of the cost of said drainage, and the cost incidental thereto assessed upon the lands iforesaid ; and the Collector should in each year place the same upon the Collector's roll against each lot or part of lot "as set forth in the jnnexcd schedule," to be collected and paid over to the Treasurer, as other taxes were collected and paid over, to form a sinking fund to meet the payment of debentures. iL then provided for payment by the Treasurer of the Municipality of the sum of $306, assessed on roids and road allowances. It then provided for the issue of d ben- turea for $2696, at a rate of interest not exceeding eight per cent, per jumum, in sums of not less than $100 each, payable in three years from 15th December, 1870 : and, lastly, that if the amount to be collected from such assessment should, ny reason of the lands being non-resident, or otherwise, fall short ri tno sum required to meet the deoentures or interest as they became due, the Treasurer should pay sach deficiency out of the general funds, and reimburse those funds when the assessment should be levied out of the land. The schedule, which was annexed to and formed part of the By-law, was entitled "Schedule showing the benefits to be derived by each lot from the drainage to be performed under this By-law." The objection raised tgaiust the By-law was, that it did not properly provide for a special rate sufficient to include a sinking fund for the payment of the deben- tures therein mentioned, but provided for the levying and raising of certain iustalmeuts with interest, and did /lot state or provide from what date such interest v!»8 to be charged. But the By-law was lustained as against the objection. In re Montgoiuery and Jialeigh, 21 U, C. C. P. 381. " Upon a careful consideration of the section, we do thick the objection is not insumioantable. " Per Gwyiine, J. , Ih, 395. The learned Judge, after usin^ the language quoted, made a critical examination of the section, leading to a particular con- ttmctiou, but which examination is too long for insertion here, and then concluded , "This section of the By-law is, we think, open to this construction, and being so construed seems to be free from the objection taken." Notwithstandine, it is recommended that such a Bylaw be not made a precedent under this Act. It is inserted here, not as a guide, but as a warning against its use, or the use of any By- law at all like it. The Legislature has very wisely provided a form of By-law which shall (mutatis mutandis) be used. See sec. 530. (y) This is, in effect, an authority for the payment of a debt in ad- vance ; and as an inducement there is a rebate of interest. But it is tft be observed that the privilege can only be exercised "before the debentures are issued." After the issue of the debentures the debt for the whole amount is contracted, and it rests with the purchaser, 'ho thereby becomes the creditor of the Municipality, to say whether ic will accept payment of any of the debentures before maturity, and " >o, on what terms as to rebate of iaterest or otherwise. li 5ifi PtotIm. For proTid- inghow assessment be paid. For ascer- taining the liable to the rate. THE jrUNICIPAI iCANU/X. fg, 529, (b) Any agreement on the part of any tenant to pay tiie rates or taxes of the demised property shall not apply to or include the charges or assessments for draining under thig section, unless such agreement in express terms mentious or refera to such charges or assessments, and as payable in respect of drainage works ; but in cases of contracts of pur- chase or of leases giving the lessee a right of purchase, the said charges or assessments shall be added to the price, and shall be paid (as the case may be) by the purchaser, or by tbe lessee in case he exercises such right of purchase ; (h) 4. For regulating the times and manner iu which the assessment shall be paid ; (i) 5. For determining what real property will be benefited by the deeping or draining, and the proportion in which the assessment snould be made on the various portions of lands 30 benefited, (k) and subject in every case of complaint, by the owner or peraon interested in any property assessed, whether of overcharge or undercharge of any other property assessed, or that property that should be assessed has been wrongfully omitted to be assessed, to proceedings for trial of such complaint and appeal therefrom, in like manner, as nearly as may be, as'on proceedings for tho tiial of complaiflte (h) The purpose of the By-law is to improve the freehold. The money to be raised under the By-law is not so much a tax as the con- sidoiation for the improved drainage. This being so, the obligation to pay is thrown upon the owner of the freehold, and not upon the tmant, who has merely covenanted or agreed in the ordinary form to p,vy taxes. One exception, however, is where by the lease, he has e^;pressly agreed to pay charges in respect to drainage works. Another ia where the lease contains a contract of purchase, in which case such charges shall be added to the price to be paid by the pnrshaser. If it wore not for this express exemption, it might be held that ordinary tenants under a covenant to pay taxes would be bound to pay the drainage rate. See In re Michie and Toronto, 11 U. C. C. P. 379. (i) Not only the times but the manner in which the assessment shall be paid may be regulated by the By-law. {k) It was held not to be necessary for the By-law to specify the mode of ascertaining and determining the property to bo beuitited. In re Montgomerif and Italehjh, 21 U. C. C. P. 381. Held also, that a schedule annexed to the By-law, showing the benefit to be derived 1 7 each lot from the drainage to be performed under the By-law, which schedule was declared to be part of the By-law, sutficiently in- dicated that the lands ao assessed were assessed as the nuly laniU v.ithin the Municipality regarded as benefited by the proposed work. See note/ to sub. 3 of this section. M] ASSESSMENT FOB DfUJNAOE. 545^ .1 ; Injury to low lying land. iothe Court of Revision undex* " The Aaseaament Act." (l) Rey. But c. St. c. 48, s. 447 ; 37 V. c. 20, s. 1 j 39 Y. p. 34, s. 8. i««>.m.6«,67. 6. The Council shall have the like power, and the provi- PeUtioiii for lijng of this section shall apply in cases whwe the drpinage ^^*°' on be effectually accomplished only by embanking, pu,mpiDg or other mechanical operajbions, but in such cases the CouncU sbdl not proceed except upon the petition of tyro-thirds of theownera above mentioned in Ihis section. 40 V. c. 26, s. 1. 7. In cases provided for by the next preceding sub-section, the Council may pass by-laws for assessing and deJEraying tlve innual cost of maintaining the necessary works upon the kids and roads to be beneiSted thereby, according to the pro- raions of this Act ; and may do all things necessary, and ptss all requisite and proper by-laws, and enter into all proper wntracts for maintaining and giving full effect to said woi'ks; ind all the provisions of this and the following sections to Kction five hundred and fifty-eight inclusive, shall bo ap- plicable, so far as possible to tiie draining of lands under sub- KctioD six of this section ; except that the provisions of lection five hundred and forty-three shall not apply to any of the works mentioned in said sub-section six, except during the pleasure of the Council of the Municipality in whfch the works are situate. 40 Y. c. 26, ss, 2 & 3. 8. Trial of such complaints shall be had in the first in- Conrt of Be» taceby and before the Court of flevision of the Municipality hrw^ri- iii which the lands or roads lie, which Court the Council ™»p;. ., lull, trom time to time as occasion may require, hold on wne day not earlier than twenty nor later than thirty days from the day on which tiie by-law was first published, notice of which shall be published with the by-law during the first tliee weeks of its publication. (r»)i SfetioMSffir 658 to apl^r Seetioa&tt onlytoauriy dnnng tbB wUloftte Oouueil. ii j;- UOC 'fl See notes to sees. 56 to 66, of Tht; Assessment Act. '•■•/ In the case of In re Montgomery et al. and the Township of Ra- y, 21 U. C. C. p. 393, decided under the provisions of 32 Vict c. 43. I ^')''oe.J.,8aid: "Thsobjectof theAct.a8it,appear8tome,i8tomake lie appeal to the Council, if not appealed from to the County Judge "J the decision of the County Court Judge, if the appeal should. » earned to him, as final and conclusive as, the decision of the Court «K«vuion and of the County CJourt Judge respecti^rely are unde*' ««.\Me8sment Act, which is an Act that may be said to be in pari r;?«^ththe Municipal Institutions Act, of which 32 Vict. cap. L f J™*' Drainage Amendment Act) is but a part. Such a ■we of dtc«ion upon tiie several matters being provided by the Act, •wins to conclude the idea that these matters can be opened upon »■ m^ ^ ' I 546 THE MUNICIPAL MANUAL. [i. 530. Trannnif- ■ion ofaa- MMOHtnt roll. Appeal to eounty Judge. Powers of Jadge on apiwal. Rer. Stat. e. 180, U. 69-05. Powcn oe 9. Such Court shall be constituted m the same manner ReT. Stat e. ^^^ ^"^e the same power as Courts of Revision under "The 180,M. 47.6si Aatestment Act" (n) 10. In case of any such complaint, the Clerk with whom the roll is deposited shall transmit to tha Court of Revision a certified copy of so much of the said roll as relates to such Municipality. 11. The appeal from the Court of Kevision shall he to the Judge, or Junior or acting Judge, of the County Court of the County within which such Municipality is situate. 12. In case of appeal to the Judge, Junior or acting Judge of the County Court, he shall have the same lowers and duties, and the Clerk of the Municipality shall have the same powers and duties, as nearly as may be. as they bare respectively upon appeals from the Court of Revision under ' ** llie Asaesssment Act" (o) Variation of 1 3. In case, on any such complaint or appeal, the assess- on oompiaint ment is varied in respect of the property which is the subject or appeal, ^f i\^q complaint or appeal, the Court or Judge, as the case may be, shall vary pro rata the assessment of the said property, and of the other lands and roads benefited as afore- said, without further notice to the persons interested therein, . '. ■•- so that the aggregate amount assessed shall be the same as if there had been no appeal ; and the Judge, or in case there is no appeal to the Judge, the Court of Revision shall return the roll to the Municipal Clerk from whom it was received, and the Assessora shall prepare and attest a roll in accordance with their original assessment as altered by such revisinn. 36 V. c. 48, s. 447 ; 40 V. c. 8, s. 57. 530. Such by-law shall, mutatis mutandis, be in the form or to the effect following '. {p) A BY-LAW to provide for draining parts of (or, for the deepening | of in, as the case may be) the Township of motion to quash the By-law, and we are of opinion that they cannot , The appeal in now before the Court of Revision, the decuion of which maybe appealed from to the Jadge or Junior or acting Mge of the County court of the County in which such Municipality u j situate, (n) See notes to sect. 47 to 55, inclusive, of The AweMment Act (o) See notes to sees. 69 to 66, inclusive, of The Assessment Act. (p) The words are shall be (not may be) in the/orm or to the(/«<] following. See note s to sec. 320. Form of by- law. if ' ■». ■'i 530.] FORM OF DRAINAGE BY-LAW. Zit lodfor boROwing; on the credit of the Municipality, the tuni of for completing the same, {a) Promoiuklly adoptea the day of , A.D. (r) ^Vhenu a majority in number of the owners, aa shown by the iHticviied MMsament roll, of the property hereinafter bet forth, to he benefited by the drainage {or deepening, an the ceue nmy be), have petitioned the Council of the said Township of , praying tbit (ij (here let out the purport of tlie petition, describing generally the fToptriji to be benefited,) (t) And whereas, tnereupon the said Council procured an examination to be made by , being a person competent for such pur- poae, of the said locality proposed to be drained (or the said stream, creek or water-course proposed to be deepened, as the case may i(), and has also procured plans and estimates of the work to be mde br the said , and an assessment to be made by him of the real property to be benefited by such drainage (or deepening, at tht (otf may be), stating, as nearly as he can, the proportion of benefit which, in his opinion, will be derived in consequence of such drainage (or detpening, aa the case may be), by every road and lot or portion of lot, the said assessment so made, and the report of the laid in respect thereof, and of the said drainage (or deepening, as the caae may be) being as follows : (here set out the rfpvrt and asteinnnent of the Ehigineer or Surveyor employed. ) (u) And whereas the said Council are of opinion that the drainage of the locality desciibed (or, the deepening of such stream, creek or water-course, an the case may be) is desirable : (v) Be it therefore enacted by the said Municipal Council of the said Tomuhip of , pursuant to the provisions of chapter one hundred and seventy-four of " The Revised Staiute^ of Ontario" — Ist. That the said report, plans and estimates be adopted, and the aid drain (or deepening, as the case viay be) and the works connected therewith be maae and constructed in accordance therewith. 2nd. That the Reeve of the said Township may borrow on the oedit of the Corporation of the said Township of (w) tiietumof , being the funds necessary for the work, and nuy issue debentures of the Corporation to that amount, in sums of Mtlejs than one hundred dollars each, and payable within yarj from the date thereof, with interest at the rate of per centum per annum, that is to say, in (insert the manner of payment, 1^'thtr in annual payments or otherwise), such debentures to be pay- *!>'' *t , and to have attached to them coupons for the payment of interest (x) 3nl. That for the purpose of paying the sum of (four hun- mand seventy-five dollars), being the amount charged against the ('?) See note d to sub. 1 of sec. 629. (r) See note e to sub. 2 of sec. 529. ■' W See note < to sub, 6 of sec. 330. (0 See note a to sec. 529. («) See note b to sec. 529. ,..,-• --^ (r) See note c to sec. 529. • ■ - ; ^- {v] See note e to sub, 2 of sec, 529. - (^) See gub. 6 of sec. 330, and notes thereto. 'v ' '' ' • • I m £i4& THE rUNICIPAL MANUAL. [8.530 iv, MU m 4' *:* [4 -i ;*-■-■ 1^^ ■ v.! urn ■*: said lands so to be benefi^d as aforesaid, other than lands [or roidi or landn'ind toads) belonging to^ the' Mntiidpaliir, 'kdd to cover interest thereon for [ten] yem, at the rat^ of {jive) per cent per annnm, the following sjHScii^l rates, over and above iklf other ntei ■hidl be aMessed am' levied (in the satn6 ntanner and at the nme time as taxds are leVied) upon the undertnentioned lots and parts of lots ; and the amount of the said special rates and interest aaaeaied a» aforesaid apainat each lot or part 6f lot respectively shall be dhided iato c^;nal parts, and one such part shall be assessed ud levied as aforesaid, in each year, for yekrs after the final pan- ing of this by-law, during which the said debentures hare to ran. (y) •"-■•1 "■.,i '^ / .t •viii .■itt'i.i'--" r> II •. " ..♦. rj.li.:f ■ lii'Ui "i..:j': '.'I •yj,iU!.. ■Ii> ^'i. .1!' •.!■ •111' ;1 > ■»'<' "3 2 2"", ' r -ii't • ■J II' O TS 02- O la 9 use u 4i :^ '1: \ •■ "> iii •: |888888 8 8 in e 5? 2 ^ 1 5. uS o 8 S 3 s io«o«oaoo)0 -. 3, .2.3 II 3 a p o g CO O s -§ - ll (^) See note /to sub. 3 of sec. 629. 8 M. 531, 532.] QUASHING DRAINAGE BY-LAWS. 4th. For the purpose of pasring tli^ sum of one hundred and twenty ilnllan, being the total amount aasesBed as aforesaid a^nst the said roids (or laiuk (^ Toaih and lands) of the sai^i Municipality, and to cover interest thereou for (ten) years at the rato of (J?t»e) per cent, per annnm, a special rate of m th^ dollar shall, over ind above all other rates, be levied (in the same manner and ai tb« lumtime asta^es are levied) upon the whole ratable property in the said Township of in eac^ ye*r:(or the penod of . , Tears, after tne date of the final passing of this by-law, durin^- whicn the said debentures have to run. ' . 2. In the event of the assessment being altered by tli6 Court of ^Revision or Judge, the by-law shall, before being finally passed, be amended so as to conespond with such alteration by the Court of Revrsion or Judge (as the case maybe). 36 V. c. 48, s. 448. ••'•'! 631- Before the final passing of the by-law it sliall he published once or oftener in every week for four weeks in some newspajwr in the Municipality, or, if no newspaper is published therein, then in some newspaper published in the nearest Municipality in which a newspaper is published, together with a notice that any one intending to apply to have such by-law, or any part thereof, quashed, must, within ten days after the final pa.ssing thereof, serve a notice in writing upon the Reeve or other head officer, and upon the Clerk of the Municipality, of hig intentioi^ to make applipar tion for that puqxjse to one of Her Majesty's Superior Coturts of Law at Toronto, during the Term next ensuing the final passing of the by-law, (a) and the Council shall, at least three weeks before the final passing of t^e by-law, post up conspicuously a copy thereof, and of the aa^d notices, at four or more of the most public places of the Municipality. {h) 36 V. c. 48, 8. 449. 532. In case no such notice of intention to make applica- tion to quash a bv-law is served within the time limited for tliat puri)Dse in the preceding section, the by-law shall, not- withstanding any want of substance or form, either in the M This is wore than is, required in. the case of the qua^hijig of a/aj' owi description of By-law, All that is in general necessary is tlM^ uie »ppliation to quash should be made within one yeaf alter the P«^g of the By-law. Sec. 323. In the case of a By-law proroiMr gated, no application can be entertained after the term next after preaalgation. Seo. 324. But in neither ease is it necessary t quash to be taken. Copy of by- law and no> tioe to be poatedup. If no applica- tion to quash made in time specified, by- law to be ralid, not- withstand- ing defeeta. H' if- Mm 550 Power to •mend by- Ikw when no •ufioient meant pro- vided for oompletlon of the work. m 4n Bebentune not to be In- valid thougli not in ac- cord on je with by-law. •■•. ;!., /«r : . THE MUNICIPAL MANUAL. [g. 533 ly-law itself or in the time and manner of passing the same b9 a valid by-law. (c) 36 V. c. 48, s. 460. i. In case any by-law already jvAased, or which may be herea.^r paosed by the Council of any Municipality, for the oonstruction of* drainage works by assessioent upon the real property to be benefited thereby, and which has been acted upon by the constiniction of such works in whole or in pai't, does not provide sufficient means, or provides more than sufficient means for the completion of the works, or for the redemption of the debentures authorized to be isijued thereundci- as the same become payable, the said Council may, from time to time, amend the by-law in onhv fully to cany out the intention thereof, and cf the i^etition on which the same wa« founded. (. (183). 533. No debenture issued or to be issued under any by- law aforesaid shall be held invalid on account of the same not being expressed in strict accordance with such by-law, pro- vided that the debentuiXd are for sums not in the whole exceeding the amount authorired by the by-law. 37 V. c. 20, s. 3. (c) In the case of an ordinary By-law, if the application to qnasli be not made within the time ui that behalf limited, see note a to sec, 631, the Court will not entertain it. But the validity of the By-Uw is oubject to be incidentally questioned in any suit or proceeding that may afterwards arise in reference to it. See note « to suo. 2 of lec, 551. Here it is provided that if no notice of intention to make au appli- cation to quash the By-law, such as made necessary by the preceding section, be served within the time limited for that purpose, ihe By-btv shall, notwithstanding " sny want of stibatance or form, either in the By-lavr itself or in the time or manner of passing" it, be "a valid By-law." In other words, that which by reason of some substutial defect, is utterly void when passed, afterwards becomes a valid By law in consequence of the neglect of some person interested, within ten days after the pasiing of the By-law to give notice of his intention to make application to ouash the By-law. This is certainly a vigoroui application of the maxim, " Vigitantlbut et "ton donhientibiu jm ^itbneniunt." TL j section ban not evc:x the qualifying words "So far as the same ordaius, prescribes ce directs ai jtLing within tht prqxr cimipeience of the Council," used in sec. 321. 8t« i ote « to that section. But it remains to be decided whether the omistion of those wordi, either designedly or accidentally, is to be hel I to confer a wnr mtb modo to pass a By-law clearly beyond the tompetence of the Council . (d) Th« powei to act under this section does not arise unl«" |J« original Bjr-law •' has been acted upon by the construction of m works in whole or in part" m , - y- VA iU 535.] APPOBTIONINO COSTS Of DRAINAGE. 551 mu- ^^hon Ikndi, etc., In ad' joinlDZ mu- nielpiaity may be charged, thougrh works not carried into Ru«)) muni- cipality. 534. Wbereve it is necessaiy to continue the deepening M'faen work or dreinage afoi-esaid beyond the limits of any Municipality, SnSJd *"* the Engineer or Surveyor employed k>^ the Council of such {|''?J?*, Mnnicipality may continue the survey and levels into the nicipaisty!' idjoining Municijiality, (e) until ho finds fall enough to carry the water beyond the limits of the Municipality in which the deepening or drainage was commenced. 36 V. c. 48, s. 451. 638. Wbeie tlie deepening and drainage do not extend bevoud the limits of the Municipality in which they ad'e commenced, but, in the opinion of the Engineer or Surveyor aforesaid, benefit lands in an adjoining Municipivlity or greatly improve any road lying witl in any Municipality, or between two or more Mimicipalities, (/) then tlie Engineer or Surveyor aforesaid shall charge i>he xands to be so benefited are improved, with such proportion of the costs of the work lod the Corporation, person or company whose road or roads 18 he may deem just ; and the amount so charged for roads, or agreed upon by the arbiti^ators, shall be paid out of the general funds of Fucli Municipality or company, [g) 36 V. c. 48, 8. 452. {() Apparently, the Engineer or Surveyor appointed by the Coun- cil ii, in the firat instance, to judse of the neceaaity of continuiug the deepening or drainnge beyond the limits of the Municipality. If he think it necessary he may continue the survey and levels into the adjoining Municipality, " t(N(i/ he finda faV enough to carry the water oeyond the limits of the Municipality in which the deepening Of drains^ was commenced." No Municipality, xnd no omcur of my Municipality, has power, in the interest of the public, to drain water on to the land of any proprietor, and lodge it there against the will of the proprietor. Soe note a to snb. 1 of sec. 509. (/) The deepening or drainage may be either confined to the parti- cahtr Manicipality in which commenced, or extended to and through u adjoining Municipality. See the laat note. But even in the former case the deepening or drainage may be so contiguous to the (djoiaing Manicipality as to bmefit lauds thereL., or greatly to ivprore roads lying therein, or between two or more Municipalitiea Monging to any Corporation, person or company. And the policy of the Act beinff that land benefited by deepening or drainage snould contribnte to the coat thereof, this policy is to be carried, out, as it were, regardless of Municipal boundaries. (9) Tb« £ng>.^r or Surveyor is in the first instance made the page of the Cinrunt to be paid. It may be any sum that "he may ««in jiut." Provision is hereafter made for appealing from his Moitou. Sec. 640. The amount, whatever it n»»y be when ulti- mately determined, is to b« paid out of the general funds of such Miuunpality ©r Company. i. n' Wk I Fin .1 p I 5^2 ' THE MUNICIPAL MANUAL. [ss. 536-338. neportMto 636. The EnglileiBf or Surveyor Afoi-esaid shall detw- dji'iit/to"'' "^ine and repf>rt to the Cotincil by which he was employed, bearexpense. whether the dfcopeniug or drainage shall be constructed and maintained solely at the expense of such Municipality, or whether it shall be constructed and maintained at thecxpfinw of both Municipalities, and in what proportion, (h) 36 V c. 48, s. 453. Piauf.etc. 537 The Engineer or Surveyor aforesaid, (t) where necessary, (j) shall make ])lan8 and specitications of the deepening or drainage to be constructed, and charge the lancb to be benefited by the work as provided hereiix (k) 36 V. ^ c. 48, s. 454. Council of munlLlpality 538. The Council of the Municipality in which the deep- wiierein onlng or drainage is to be commenced, shall serve the head of r°'"^Ji**''"'* the Council of the Municipality into which tlie same is to to notify niu- . iii i nicipaiityto be continued, or whose lands or roads are to be benefited bo benefited, y^^thout the deepening or drainage being continued, (l) with a copy of the report, plans and specifications of the Engineer or Surveyor aforesaid, when necessary, so far as they affect such last mentioned Municipality ; (w) and unlesw the same (A) It may be proper under certain circumstances to sub- .; the particular Municipality in which the deepening or drainage is torn- menced to the entire coat thereof, see note / to sec. 535 ; or it may h i.:oper to subject the afljoining Municipality or some portiou ihereof, or some roads therein, to a proportionate part of the cost. Ik 'I is for the Kugiueer or Surveyor in the first instance to determiue tL matter. He is required to report lus uetermination to the Coimcil that employed him. If he find that the work should be done at the expense c* both Municipalities, he is also to report " iu wW propor- tion " each should contribute. If necessary to make the report intelligible that it should be accompanied by plans or specification!, slneh ^ans and specitications must accompany the report See lea. 529 and 537. it.i ■:■<;. (i) i. e., the Engineer or Surveyor appwnted by the Conncilto examine the creek, stream or water-cuurse proposed to be deepenwl, or the locality proposed to be drained. See note b to sec. 529. (j) See note h miprd. (k) See note/ to sec. 535. {I) See note h sufrit. (i«) Two thirgs are to be observed • 1. What is to be served. "• 2. Uprth #hom service is to be elfecJlei. , . ., 1. The service is to be of a copy of the report, pliirfMa specilJisi- .i.i^x,i-';siL ■..« -^m' mi. n't .]'-MiiuV^ A" ■ .* J39, 540.] APPEAL FROMT rOBT OP DRATNAGE. «58 ii »npealed from as hereinafter provided, it shall be binding eal, for such sum as may be doterminod by tlie arbitrators, in tlie same manner and with such other providions as wonld have been i)roper if n majority of the owners of the lands to be taxed had petitioned as provided , in the five hundred and twenty -ninth section of this Act. (y) 36V.C. 48, s. 456, 040. The Council of the Municii)ality into which the ^ut such deepening or drainage is to be continued, or whose lands, may appeal. road or roads are to be benefitetl without the deepening or dTUinige being carried within its limits, may, within twenty .. ' f'-^m the day in which the reports was sei-ved on the iit the Municipality, (a) apjjcal therefrom ; (t) in whioh cue n'ley shall serve the head of the Corporation from which they received the report, with a written notice of th&reoD."*^ ' appeal ; such notice shall state the ground of appeal, the tijnsof the Engineer or Surveyor, so far as they affect the adjoining Municipality. Thia is to be done when necessary. 2. The service is to be on the head of the Municipality. Tins is wIRcient It is not like the service of the notice under sec. 531, thich must be on the head of the Municipality and the Clerk. («) See note m to sec. 529, and note t infra. ' ■•m ~ (p) See note g to sec. 535. ' , , ■ i ' i (- portlona 2l»d by •nglnoar. Such notico must state — 1. The ground of the appeal ; 2. The name of tho Euginoer or other person appointed .vbitrator for the Municipality appealing ; atid 3. Call upon the other Municipality within ten days after serrice to appoint an arbitrator on their behalf. See sec. 56 sub. 2, of the Assessment Act, and notes thereto. (u) See notes a and b to sec 367, and note d to sec. 369. ' (t>) As to computation of time see note a to see. 177> (to) See sec. 367, et atq. (x) Sec note c to sec. 378. (a) A provision for the construction of a drain would be ineffective anleas some provision were made for the maintenance of the dniu when constructed. It is here, in general terms, made the du^ of each Mnuicipality "to preserve, maintain and keep in repair lo much of the drain as is within its own limits. This may be «ther at the expense of the Municiptdity, or parties more inunediately interested, or at the joint expense of both. / I. M3.] KEEPING DRAINAGE IN RIPAIR. iaoail bjr any Court of competent juriwUctioD, to make Tom tune to time the neceflsanr repain to preserve and maintain th« wnic ; (6) and Hhalf be liable to pecuniary damage to inrpenon who or whoQe property iti injuriously aifeoted by maoDof nich neglect or rofuaaL (r) 36 Y. o. 48, h. 459. 543. In any case wherein after such deepening or drainage ii fully made and completed, the same has not been continued into toy other Municipality than that in which the same was coDim^'nced, or wherein the lands or roads of any such other MuDici[Mlity are not benefited by such deepening or drain- age, (d) it shall be the duty of the Municipality miiking such detpeoiDg or drainage, to preserve, maintaui and keep in re|iair the same at the expense of the lots, parts of lots and roads, as the case may be, as agreed upon and shown in the bylaw when iiiuUly pajEAied. (e) 2. Id any case where similar drainage has been constructed oQt of the general funds of the Municipality previous to the tnth day of Febiniary, 1876, the Council may without petition, on the report of an Engineer or Surveyor, )>as8 a bjkw for preserving, maintaining and keeping in repair the Mme at the expense of the lots, parts of lots and roads, as the cmt may be, benefited by such drainage, and may assess such lotd, parts of lots and roads so benefited, for the expense thereof, in the same manner, by the same proceedings, and subject to the same right of appeal as is provided with regard to drainage made and completed under the provisions of thiiAct. (/) 3. The Council may, from time to time, change such ••bi.-.'-jnt on the report of an Engineer or Surveyor ap- {i) Mmdamut ia not the appropriate remedy to compel a Monv apu Corporation to keep a highway in repair. Indictment is the ™™2," ^^ "od« of procedure in such a case. See note p to sec. ^; Bat in the case of a drain the reason for the preference of an Mictment fails. Hence the remedy by mandamm is, under this •wtjon, the express remedy. It cannot be invoked unless there be a »«|l«ct or refusal on the put of the opposing Municipality, after »M0Mble notice in writing given by any party mterested therein. (f) Ses note J) tc sec. 491. W 8«e note * to sec. 536. (e) Sm sec. 590. 5Aft UsMllty tat damag*. Whm works not aitMidwl beyond limits of mu- oMpdltjr oommenoinff ■sine, ttcior do not twDf* lit sny othar munieipkllty work! to bo Bulntalnod by muniei* psiity com- mcBclng Mm*. Whm dMin- agokU-Mdy eompletol hM DMn paid for out of funds of municipality rapair may be charged on property benefited. And nient charged, .,,. i>r 'MJi r.* • I ) 1 Jl!-,7 . M .U'K J .(■. •;. (0 "Hus enactment is only applicable in the case of drainage oon- PwJ* °^ of the geqend funds of the Municipality previous to 10th :^ I cmFM 'iX-'Ji- W :M ■ ..a t>>5n ft I mi ** T *' •tot v!i''Ui jwttp;lhehkengh|te of appeal as tb persons cnarged woUltt hayie m the ,case of an original assessment! (g) 2i6 V. c. 48, s. ^60; '39 V. c. ^i, s. 7, 544. If a drain already construct^, or hereafter con. -! i i:iJ- •'. ■ - ■ 1.JI.I I outlet or otherwise, may be >.s^essed fc|r the construction and maintainance thereof in suoh proportion and aniQimt vn may be a&certained by the Engineer, Surveyor or arbitrators under the formalities provided in the preceding sections. 36 V. c is, s. 461. 545. If any dispute arises 1;)etween ii^dividuals, or between individuals and a Municipality, or Cpnjpany, or between a Company and Municipality, or between Municipalities, as to damages alleged to have been done to the prpperty of any Municipality, individual or OoinpaJiy, in the construction of di-ainage works, (i) or consequent thereon, (J) then the Muni- — ■— ^ ■ ■ .1. I ■ ■■.■■[ .11-- m ■ ■- ■■ .1 ig) The power ia " from time tO; time " tq chAii(|e the aaseumeot. But this can only be done on the report of a^ Enguieei; 91 ISurvepr appointed to examine and report Qn the drain, deepening or repaui. Notice of such change should of coarse be j^ven to the parties con- oemed, so that they may, if dissatisfied or aggrieved, appeal there- from. {h) The construction of a drain costs money ; vhere such a drain i^ constructed by a Municipal Corporation, those whose land is benefited thereby are called Upon to pay tow.ard8 the costs of con- struction and maintainanoe. Sec. 5'29. If .such a drain be vsed bj another MunicipaUty, company or individual as an outlet, or other- wise, it is QjDdy just that such Municipality, ci^nq^any or iodindoil should be assessed a proportionate )ju:t.fqr,c5>n(itri4ction and main- tenance, tlie proporubnate part la, m J^ei fifBiiiutano^, tp be ascer- tained by the Eugineer or Surveyor, f uhject tp.appi^ as piovided in the preceding sections. , It oiily remains • to .pe noticefl th^ fioi sec- tion 19, on the fjace of it, .applicable "'lbp,A.4'*4n <^lready con- structed," . • . , . , ' . . '/■ • a- ^' "*'d of fence viewers is held conclusive as to matters within their jurisdicticn. Stedman v. Wasky, R. & J. Digest 15l8. x^n y. Partner, 24 U. C. Q. B. 683. The Court has no power sum- ?*Q R M * "'*** ^*'*"" "^'^^ ^^ *■« (Cameron and Kerr, 25 t. ^ H- D. 533. But if the award be from any cause bad, it will not I tH' It f' 558 THE MUNICIPAL MANUAL. [as. 547.549, I ^1 •s * Power to ■eontract to Vajment by mnnidpa- lity. 547. Where, under the provisions of the sections evehun- ^nIS^^ dfed and twenty-nine to five hundred and fifty-eight, both tS'iU^te inclusive, of this Act, a ditch is Mng constructed for drain- drrinsge. M. age purposes along a road allowance, contracts may be made ■«8»toM8. by the Municipal Council so constructing for spreading the earth taken from the ditch on the road ; (o) and if the wad or any part thereof is timbered, or if stumps are in the way the timber may be removed ; and not less than twelve feet of the centre of the road shall be grubbed before the earth ig spread upon it. 39 V. c. 34, s. 3. 548. The removal of the timber, grubbing and spreading of the earth, together with such portion of the cost of the ditch as the Engineer or Provincial Land Stu-veyor may deem just and proper, shall be charged to the Municipality and paid out of its general funds, (g') 39 V. c. 34, s. 4. ^SSbJo***" ^^' ^^^"^ ^* ^ necessary to construct such a ditch along town line a town line between two or more Municipalities, the Muni- nklpajSiM"" °^P*^ Council of either of the adjoining Municipalities may, on petition, as provided for in section five hundred and twenty- nine of this Act, (r) cause the ditch to be constructed on either side of the road allowance between the Municipalities and make the ^oad in manner as provided in the two preced- ing sections of ..his Act, and shall charge the lands and roads benefited in the adjoining Municipality or Municipalities with such proportion of the cost of constructing the said ditch as the Engineer or Surveyor aforesaid deems just and be a defence for anything done under it. Malom v. FauUmtr, 11 U. 0. Q. B. 116 ; Murray v. Dawmn, 17 U. C. C. P. 588 ; S. C, 19 U. C. C. P. 314 ; Dawmn v. Murray, 29 U. 0. Q. R 464 ; see farther aec. 58 of The Assessment Act and notes thereto. (o) It has been held that a Municipal Corporation who laid out a street over the land of a. private individual and appraised the damages, may, in reducing suoh street to the proper griule, carry the soil tnerefroqi and deposit it on a street on another part of the same Municipality. City of Ntw Haven v. Sargent, 9 Am. 36ft iq] The Engineer or Provincial Land Surveyor has a large dis- cretion conferre« 439. The Corporation may, notwithstanding, by the terms of the contract, render itself liable to the contractor for the whole amount. ^nn Albany y. Sweeney, 13 Ind. 245; Lucas v. San Francisco, 7 Cal. 463 ; Lovell v. St. Paul, 10 Minn. 290. The Corporation may so contract as to make the contractor look to the assessment for his Cy ; and although the assessment be void, he would not in snch a case ve any right to sue the City for the contract price. Leavenworth V. Kanhn, 2 Kansas 357 ; Stoifl v. Williarmimrg, 24 Barb. (N. Y.) 427 ; Goodrich v. Detroit, 12 Mich. 279 ; Johnson v. Common Council, 16 Ind. 227 ; iV^fw Albany v. Sieeeny, 13 Ind. 245. See further, Kmrny v. Covington, 1 Met. (Ky.) 339 ; Smith v. Milwaukee, 18 WJB. 63 ; Finney v. Oshkosh, lb., 309 ; ChUago v. People, 48 111. 416; Sui,pert v. Baltimore, 23 Md. 184 ; Hunt v. Utica, 18 N. Y. 442. If the Corporation agree with the contractor to collect the sseaments, a failure to do so would render the Corporation liable. Morgan v. Dtibuqae, 28 Iowa 675. See also, Beard v. Brooklyn, 31 But). (N. Y.) 142 ; Cunming v. Mayor of Brooklyn, 11 Paige (N.Y.) fi; Baler v. Utica,, 19 N. Y. 326 ; Green v. Mayor of New York, 5 Abb. Pr. Rep. (N. Y.) 503 ; Reoek v. Netvark, 33 N. J. Law 129 ; imtiy, San Francisco, 16 Cal. 266. All depends upon the nature »ad form of the contract Foote v. Milwaukee, 18 Wis. 270 ; Bond ^■^]frcark, 19 N. J. Eq. 376 ; Palmer v. Stump, 29 Ind. 329 ; Me- 77 V New York, 7 Bosw. (N. Y.) 601 ; Reitty v. Philadelphia, 60 « a 467; Creighton v Toledo, 18 Ohio St. 447 ; B^falo v. Hollo- wy. 7 N. Y. 493 ; Storrs v. Utica, 17 N. Y. 104 ; McGiiire v. Smock, "Am. 35f<. See further, note I to sec. 652, and note t to sec. 666. (/) As the rate is to be an anDual rate in the dollar, and to be 71 \ •?f 7 W'^M V i •!■ apSKHK I I ^t2 RagnUting tinMBnd nuuinarof JerylnSM* MmnenU, THE MUNICIPAL MANUAL. [g, 55] 3. For regulating the time or times and manner in which the asResBments to be levied under this section are to be paid, {g) and for arranging the terms on which parties assessed for local improvements may commute for the mr. according to the value of the real property benefited, an arbitrary rate of |l per foot would be clearly bad. Ex parte Aldwll ml Toronto, 7 U. C. C. P. 104. A frontage rate is not bad in itself, hat bad when the statute requires the imposition of an annual rate. Ptr A. Wilson, J., in Haynen v. Copelana, 18 U. C. C. P. 150. Chiirchei and other property exempted from general taxation may be exempted from this local rate. 76. It is not necessary to impose a tepmte rate on the property on each street. lb. ig) The By-law of a Municipal Corooration, passed in ISfi.*), for the purpose of authoriziug the levying of a rate for certain local improve- ments, in the shape of the pavement of sidewalks, after recitinp t previous resolution o£ the Council accepting a tender for the vrork and authorizing the passage of a Bydaw to levy a certa-n rate per foot frontage on the owners of real estate on the farti of several streets named, provided that the required sum should be raised by local taxation "upon the propnetors of the sevenl lots of land adjoining said sidewalks immediately beudfited there- by ; except that part on Jamtss street opposite the Market Place, and those parts on Church street opposite the several churches and school houses," that the persons named in the first column of the schedule annexed to the By-law were proprietors of land adjoining the sidewalks and were immediately oenefited thereby ; that the whole of the said property so benefited was by the assessment rate of 1S65 rated at $12,554, enacted that there should he railed from the said proprietors twenty -two and a half cents in the dollar, and that the collector for 1865 should coUcct the same in the nsial way. It then repealed a By-law of 1864, authorizing the levying of the frontage rate. The work in question had been begim, tinisbed and paid for in 1864, with the exception of $659, which were paid before the passage of the By-law of 1865. There was the further fact, that the whole of plaintiff's property at the corners of two streets wu assessed, whereas the flagging extended only over a portion of it Held, that the By-law contained nothing objectionable on its face ; but assuming it defective in providing for the debt of the previoui year, it was merely providing in 1865 for a debt contracted and pro- vided for by the By-law of 1864, but provided for imperfectly, and that the mere repeal of a defective, doubtful or invahd rate imposed within the jurisdiction of the Council, for another free from all objw- tion, is not a violation of the rule a^ninst prospective rates. Held also, that it was no objection to the By-law that certain propneton were rated for the special rate who were not on the general assessment roll, nor that the assessed value of 1864 was taken instead of tlut^ 1865, as this did not appear on the face of the By-law, and could be raised in an action of replevin. Held also, thivt the whole of plam- tiff's property as assessed was liable, though the flagginc extended over a portion only, Haynes v. CopeUtnd, 18 U. C. C. P. 150; b«« further. The Great Western Railway Co. v. West Bromoich Commi- sioners, 1 E. 4 K 806 ; Blackburn v. Parkinson, lb. 71 ; /oimrf t. a comTCon i « 552.1 PETITIONS rCR LOCAL IMPR0TEMENT8. 663 meat of their proportionate shares of the costs th^^^eof in priocipsl Bams ; (A) 36 V. c. 48, s. 464 (3). 4. For effecting any sucn improvement as aforesaid with if ftindii itot» finds provided by [wirties desirous of having the same duties. ' tffectod (f) 36 V. c. 48, s. 464 (4). 552. No such local improvement as aforesaid shaH be un- OondiUou Jertaken by the Council (unless as provided in tne next SSSerSSdnJ Mction), except under a by-law passed in pursuance of the •"?,!""*' ^ fourth sub-section of the preceding section, otherwise than **" '"' on the petition of two-thirds in number of the owners of the real property to be directly benefited thereby, (j) represent- ing at least one-half in value of such real property ; the num- ber of such owners aud the value of such real property having been first ascertained, and finally determinined in the manner and by the means provided by by-law in that behalf i (k) fni if the contemplated improvement is the construction of i comn^on sewer having a sectional area of more than four Pkmtttad Board of Works, L. R. 7 Q. B. 183 ; Plnmstead Board of ITwhT. BrU\$h Land Co., L. K, 10 Q. B If ; Dryden v. Ooeraeer* ofPvtney U. L. 1 £x. Div. 223 ; aud note f to sec. 2 of The Assess- fflent Act (M The Court in one case intimated that the owner or occupier of property drained by a common sewer might legally be allowed to commute by payment of a fixed sum. In re McCutchon and Toronto, J2U.C.Q.B. 613. (0 Where funds are provided by parties desirous of havinjg the local improvement, of course there will be no necessity for levying or uaening the rate contemplated by the previous sub-sections. 0") See note (! to sec. 651. |i) Where a By-law provided that the number of owners and the tiloe of the real property was to be ascertained by the City Clerk, uul bt. appended to the petition, a certificate that the total number or persons assessed for property to be directly benefited was twenty- tkree,— that sixteen names were signed to the petition, that the toUl value of the assessed property was ^20, 182, and that the awnnt represented by the signers of the petition was $413,496, the Coart, on an application to quash a By-law for local improvements, refwed to go behind this certificate. Jure Michie and Toronto, 11 V.C. C. p. 379 ; see also, In re Montgomery and RaleUjh, 2 1 U. C. C. P. «1. "It is not objected that he (the Clerk) acted corruptly and [fwdulently, and though' as I gather from the unanswered statements m the relator's affidavits, the City Clerk has fallen into an error,— tt error easily accounted for, as his conclusions were drawn from the JJKMment roll only,— yet I tliink we caimot on that account annul «e whole proceeding. . . , f am not to be understood as deter- ■"""Dg that he should have confined his inquiry to the assessment ^- t' 1 F ^ p — r~" f V ■ 1 |/ 1 THE MUNICIPAL MANUAL. [8.553. Further oon- feet, one-third of the cost thereof shall aho first b'> provided SSSw."*" for l>y the Council, by by-law for borrowing mo every such Council is hereby authorized to pass L uch pose, or otherwise, (l) 36 V. c. 48, s. 465. ■which pur- In cTtaln eases peti< tions m»v dtipemed wtth. TTnleu , Masinent petitioned •gainst. k 563> In cases where the Council of any Cit. , rown or be incorporated Village decides to contribute at lea- , alf of toe cost of such local improvement, it shull be lawfi,; lor the said Council to assess and levy, in Tnuwuo liereinbeibre provid^l by the five hundred lUid fifty-first and five hundred and fifty- second sections of this Act, from the owners of real property to be directly benefited thereby, the remaining portion of such CQst without petition therefor, (m) unless the majority of such owners representing at least one-half in value of such proi)erty, j)etition the Council against such assessment, within one month after the publication of a notice of such proposed assessment in at least two newspapers published in such City, Town or incorporated Village, if there are two newspapers published therein, and if there are not, then in two news- roll, when he was reqnired to ascertain and finally determine the matter of number and value ; but I think that, havLg acted at we must assume bonejide, the Legislature intended hia determination to be final, as the foundation for the By-law authorizing the improve- ment and imposing the special rate, lie Michie and Toronto, 11 U. 0. 0. P. 3u5, per Draper, C.J. ; see further, note e to sec. 531. (/) A Municipal Corporation contracted with a paver to do certain work at a fixed price, of which the Corporation was to pay one-third and the owners two-thirds. It was, however, judicially determined that the owners were in law liable to pay only one-third. Held, that the paver had the right to recover two-thirds against the Corporation. Tmirnier v. Municipality Number One, 5 La. An. 298 ; aee further Crman v. Municipality Number One., lb. 537 ; Maker v. Chicago, 38 111. 266 ; Chicago v. The People, 48 111. 416; Jieillyv. Philadelp}ua, 60 Pa. St. 467 ; Michel v. Police Jwy, 9 La. An. 57 ; see also, notee to sec. 551. (m) Where a City was authorized by one section of the Act, on the petition of two-thirds of the owners of abutting property, to make certain improvements in a street, and by a subsequent section power was conferred upon the Council to order such improvements by a two-thirds vote of the Council, it was held that, althou^ proceedings relative to the improvements were commenced by peti- tion from the property holders, yet, haviuf; been ordered by a two- thirds vote of the Council, they were vahd, although two-tmnls ot the property holders did not unite in the petition, for that the two- thirds vote of the Council made the proceedings valid, iwtwitt- atMiding any prior defects. IntUanapolit v. Maruur, 16 Ind. 11^; aee further La/ayette v. Fowler, 34 Ind. 140 ; see further i/cConwirt T. Patching 14 Am. 440. <^553.] LOCAL IMPROVEMENTS. pppen puoliabcfi nearest the proiKwed work, (it) 3G "V. c. 48, 8. 4^6. ft«S In) It hM been held that vhere a Municipal Corporation exercises u. oover to make \wa.l improvements and charse tlie coat thereof (u {be Unds direody benefited thereby, that the owners of such ludi, if accewiblu by reasonable diligence, are entitled to reaaonabl« • opof the meeting of the Comniissiuuers for assessiiig the cost, and this althiHigh the charter be silent on the subject. i(fton v. .Vayo-, 3wan. (Ten.) 177 ; W/iyte v. Afayor, «tc., 2 Swan. (T ^ ^(14 ; Wflim V RailrocuL Co., 25 111. 43 ; Jeiiks v. Chicago, 4t> IL < j HitmelmaHv. OVwer, 34 Cal. 246. Where the By-law >t & >> \. cipal Corporation provided that the Clerk of the Coir A nh .1 cause a notice to be left at the place of abode of each en ^.h., mrtieti attetaed for such improvement, that tlie assessment ^ Jiitv u and tk amount thereof, and that a By-law would be passed in a<. i'd.-\nce therewith unless appealetl from as provided by law, the v.'ourt, on the application of a person interested, who swore that he ' ^ i?" notice of the By-law until some time after it was passed, ami ..< '• he first Ijecame .iware of the particulars of it and of the proceedings on which it VM based in February belore the application to quash, refused to ijOtth the By-law. In re Michie v. Toronto, 11 U. C. C. V. 379. hr cur. " The sixth objection is sustained in fact, as I understuid the statements. But the provision requiring notice of intention to pais the By-hkw to be given or sent to parties affected by it, is not lUtutory, nor is the validity of the By-law made dependent on pro- viiiom contained only in By-laws. Ajid although the relator states in lu« affidavit that he had no notice of the By-law ' until some time alter it was naased,' and that he first l)ecame aware of the particu> larsof it and of the proceedings on which it was based in February lait, yet it is difficult to suppose that he was not aware long before that date that the stone sidewalk was being laid down, or that the work wag of that character which was usually paid for by special local rate. Tliis was enough to put any one on enquiry. Then he seenu, from his own expression, to have become aware of the By-law tome time before he became aware of its precise contents ; but the knowledge of the first was notice of the secotid, and he then might hive learned everything necessary to support a much earlier appli- Jon to quash the By-law." Per Draj)er, C. J., Ih. 385. Notice to "repave " held not sufficient where the assessment was for paving, m V, Jer^aj cUy, 3 Dutch (N. J. ) 530. Notice of time and place for J«nog objections to proposed improvement. State v. Jersey City, 1 «m (N. J.) 309 ; State v. Jsr^ey City, 2 Dutch (N. J.) 464 ; State v. Jtrit)iCity,iZai>t. (N. J.) 062 ; State v. A'ewark, I Dutch (N. J.)399 ; mt V. malteth, 2 Vroom (N. J. ) 547. Requisites of such a notice. "Jt- . Charkttmon, 98 Mass. 583; Ottaira v. Macey, 20 111. 413 ; Sim- tTIj'"^'""'' 6 Eh. Is. 255 ; Bnltimare v. BotthUH, 23 Md. 329- '^JMcbon provides for the publication of a notice of the propowd «e«nent m at least two newspapers published in the City, Town ■&» 'l^t 066 J'T^; ' '■ jf Certain we* tkmi not to ■pplj to OCT' I worki. K . < I a if pi''" Hu. It' Lighting, watering, •nd BWMp- Ingatneta. THK MUNICIPAL MANUAL. [gg. 554, MJ. 654. Nothing contained in the three next precedint; lec- tions of thin Act ahull Im) conHtrued to apply to any work of ordinary repair or maintainance ; and every ooiumon aewer made, enlarged or prolonged, and ever} Htreet, lane, alley public way or place, and sidewalk therein, once made, OMned' widened, prolonged, altered, macadamized, pared or planked under the said iiections of this Act, shall thereafter be kept in a good and sutiicient state of repair at the expense of the City, Town, or Village generally, (p) 36 V. a 48. & 467, Sweeping, Lighting and Watering Streets, 565. The Council of every City, Town and incorporated Village may (q) pjiss by-laws for raising, upon the \)eititm of at least two-thirds of the freeholders and householders resident in any street, sq\iare, alley or lane, representing iu valuo one*half of the assessed real property therein, (r) such sums as Aiay be necessary for sweeping, watering or lighting tl e street, squbre, alley or lane, by means of a speciiJ rate on the real property therein according to the frontage thei'eof ; (rr) but the Council may charge the general coqwr- or Incorporated Village, if there be two ; if there be not, then in two newspapers published nearest the proposeil work. Where the Lenslature lias made the giving of notice necesjury, and provided a moile for giving such notice, that mode should be strictly fullowt.-.l. Simmons v, Oard'mer, (5 Rh. Is. 255 ; Scnmmon v. Chiciujo, 40 II' 146; Biflfy v. St. Lotiia, 34 Mo. 4(^4; JfildMhr. Lotcell, IK'-ny (Mass.) 346; Wiltinms v. Detroit, 2 Mich, 660; State v. EUwMh, 1 Vroom. (N.J.) 366 ; Durant v. Jersey CUy, 1 Dutch (N.J.).'»9; Nortiyich v. Hublkird, 22 Conn. 687 ; State v. Jermy CUy, 4 Z«br. (N. J,) 662; DHhwjm v, ]Yooten, 28 Iowa 671 ; Palmyra v. Motion, 2«> Mo. 593. Failure, aft^r notice, to object to an aaseument before a City Council, when it had the power to revise and correct or annul it, and direct a new assessment, was held to be a waiver of notice. Ottawa V. Railroad Co., 25 111. 43; oee also State v. Jertey t'i/y, 2 Dutch (N. J.) 444. {p) See note ;> to s. 491. {q) May discretionary ; see note /to sec. 494. (»•) See note e to sec. 661. (rr) The power is upon the petition of at least two-thirds of the freeholders and householders resident in any street, square, alley or lane, representing in value one-half of the assessed real property therein to raise by means of a special rate on the real property therein according to the frontage thereof, such sums as may be necessary for- 1. Sweeping, \ 2. Watering or [ tJie street, stiuare, alley or lane. 3. Lighting ( I, $55.1 LIOHTINO AND WATBSINO STRIET8. ite funds witli the expenditure iuourred in auoh making or repairing, or in Huch sweejiing, watering or lighting hh aibre- nii (i) ? 2. The Conncil may also, by by-law, detine certain areas or MctioHH within the Municii>ality in which the streets should be watered, nnd may ini|K)He a special ratt^ iijK)n the asHessed ital property therein, according to the frontage thereof, in onler to pay any expenses incurred in watering such rtreeta. (<) 36 V. c. 48, s. 468; 37 V. c. 16, s. 21. It la verv plain that what the Logialature authorizes is, that the Ewer of the Council to impose a rote for tlie purposea iiulicateil is to «icerci«e(l only by Hy-law, out! that such By-law should in every cue Ije iMueil BubBeart of the Municipality of such City, Town or incorporated V^illago, but shall continue and remun as of the Municipality where situate. (»«) 40 V. c. 25, h. 1. See alio Heca. 461 (7), atul 467 (8). \t1 LoMlntM for ipedal improre- mcDti. Division III.— County By-laws for Road Improvkmknti. Sj)ecif>l rates hij-C Wm ^ t 958.] COUNTY BY*LAWB FOR ROAD IMPR0VEMBNT8. M9 Cy within any jMirtictilar p«rt of one or |>arts of two -Dslup8 to be deHcrilted by metos and boundH in tho by- law, in mldition to all other rateH, a sum HutKcient to defray the rx])eiifle«i of making, reiiairiDg or improving any road, bridge, or other public work, lying within one Townaliip or between |)artH of such two TownuhipH, and by which the mbalatAutA of Huch parts will be more osiiecially benetitd, {w) but this section shall not a]>ply to any read, bridge or other public works within the limits of uiv Town or incorj)orated Yillaga (a;) 36 V. c. 48, i.469. 568. No by-law under the last preceding section shall be ProoMdingi pa'«scd, except— Uw for ■tub improve 1. Upon a petition signed by at least two-thirds of the "'•■** electors who are rated for at least one half of tho value of the property within those parts of such Townships which are to be iiffectetl by the by-law ; (i/) nor 2. Unless a printed notice of the petition, with the names Notiw, ^ the signers thereto, describing the limits within which the Waw is to have force, has been given for at least one month, ky putting up the same in four different places within such parts of the Township, and at the pln) See note (f to sec. B61. W See note n to sec. 863, 72 ^ ■ V,' , i': *"■ ' -i' ■'n \ 570 THE MUNICIPAL MANUAL. il!^ m [8. 559. TiTLK IV. — P0WBR8 OF Municipal Councils as to Railways. Aiding hy taking $tock, loan, guarantee or bomu See 559. * ' Heml of Council to be a Director e^>officio. Sec 560. Townshipa may permit RaUwaye to pats along hlghicay$ Ac. Sec. 561. ^Ammu may 659. The Council of every Township, County, City, Town iw^mad* ^jjj inoorpoi-ated Village (a) may pass by laws— (a) Applies to all Municipal Corporations. The powers conferred are in general discretionary, not obligatory. See note /to sec. 491. These powers are, under certain limitations, to aid Railway Com- Sanies. The constitutional right of the Legislature to aathorizt; [unicipal bodies to aid trading Corporations, such as railwavf, and to tax the people for aid, is in the United States a subject of grave judicial conflict. Strong ground was taken by Chief Justice Uillni against the power in a very able and exhaustive judgment delivered by him in HaniwH v. Vernon, 27 Iowa 28 ; S. C. 1 Am. 215. Refer- ring to Dubuque County v. Lubaqne. and Pucific liaUiaa;/ Co., Hi. Greene (Iowa) 1, where the majority of the Court held otheraise, he said, ' ' I)is;\8ter, the child of extravagance and debt, and dialiunour, the unbidden companion of bankniptcy, are the bitter but legitimate consequence of that decision, and 'the end is not yet' In every other State in which a similar decision was made, similar cniuc- aueuces ensued." He admits the constitutional right of eminent omain, but says, though in some respects kindred, it and tketaxinj; power are essentially difl'erent. Similar ground was tiken ajj'ainst the c(Hi8titutionalitv of such acts in W/iitiny v. Shfloygaii (omFond flu Lac RaUway Co., 25 Wis. 107 ; 3 Am. 30 ; and The People ?/ t4. Thf. Detroit eeu con- finned until quite recently in the Supreme Courts of Michigan anil Wisconsin, and in this tJoart in Hanmn v. Vernon." He concludei his judgment by saying, •• We find that upon principle and reason there is the same authority for the exercise of the sovereijjn power of taxation in aid of the construction of railroads that there is for the exercise of the right of eminent domain, and that this view is sus- tained by an overn helming weight of authority." See further, Walker v. City of Cincinnati, 8 Am. 24 ; Commismmeri of Leaiyn- teorth County v. Milter, 12 Am. 425 ; Chicayo, DanvHl>' "«;"'"• rennet Railway Company v. SmUh, 14 Am. 99. But on one {wint the Judges in the United States ore all agreed with unusual luianumty, 1,5)9.] AID TO RAILWAYS. 1, For subacribing for any number of sbares in the capital stock of, or for lending to or guaranteeing the payment of uy lum of money borrowed by an incorpoi-ated Railway Comptnj to which the eighteenth section of the statute Ibarteenth and fifteenth Victoria, chapter fifty-one, or seo- tionii seventj-five to seventy-eight inclusive of chapter sixty* six of the Consolidated Statutes of Canada, or the equivalent HCtioDs of " The Railway Act of Ontario" have been or may be made applicable by any special Act; {h) 36 Y. c. 48, s. «1 (1). ud that Ib, that Municipal Corporations have no implied jjower to lid Railway Companies. Aurora v. West, 22 Ind. 88 ; Starin v. Gtm, 23 N. Y. 439 ; OmiM v Sterling, Jh. 439 ; Barnes v. AtehtBon, 2Ka'" 3 454 ; Atheton v. Butcher, 3 Kansas 104 ; Bank v. Rome, 18 X. Y. 38 ; Bridgeport v. Houmtonue Railu^y Co., 15 Conn. 475 ; Martli V. FuUon, 10 Wall. (U. S.) 676 ; Mc/iol v Nanhville, 9 Hump. (ten.) 252 ; St Loui* v. Alexander, 23 Mo. 483 ; Jones v. Mat/or, ifrc, !!5G». 610 ; Duanenburgh v. Jenkins, 40 Barb. (N. Y.) 574 ; French v. ItKknuiktr, 24 Cal.518 ; People v. Mitchell, 35 X. Y. 551 ; Thomn- ms.Ln County, 3 Wall. (U. S.) 327 ; Railroad Co. v. EoanmUle, 15 Ind. 385; Aurora v. West, 9 Ind. 74; Lafayette y. Cox, 5 Port. Ilml) 38. The power supposing it to be ^)erfectly constitutional, is oftbat extra municipal character that no mtencluicut will be made is favonr of the exercise of it in a doubtful case. Bate v. Ottawa, 23 I'. C. C. P. 32. Where a Municipal Corporation passed a resolution granting $1000 to an individual in consideration of his having advanced tkt amount in aid of a railway, the resolution was quashed. lb. (i) The aid may be — 1. By ailicription for any number of shares in the capital stock of the Company. 2. By kmlirnj money to the Company. 3. By mmranteeing the payment of any sum of money borrowed by tie Company. The eubscription for stock may be conditional, Iliggins v. Wh'Uhi, ^ U. C. Q. B. 296 ; and if the amount subscribed be paid either fetly to the Company, or to the contractors of the Company at. wi\x request, the liability of the Municipality is thereby extin- puhed. Woodruff V. Peterborough, 22 U. C. Q. B. 274. It would seem that a By-law authorizing subscription for stock, ••Iiwially if it authorize the issue of debentures, is the contracting w a debt not payable in the same municipal year, so as to demand «e formalities required by sec 330 of this Act. In re Billini/s and Ofc«ce*Sec. 394, By this clause a special authority is given for the issue of debentures in aid of Railway Companies, in sums "not less than twenty dollars. " (e) A By-law of a County Council in aid of a railway to the extent of f20,000, by way of bonus, which had not Iwen submitted to the ratepayers was quashed. Ex rel Clement v. WentuHtrtk, 22 U, C. C. P. 300. It would seem that the general intention of the Lejnslature is that all assistance granted to a Railway Company shonld l)e «ith the assent of the electors before granted, and that the making ot direct advances from moneys actualfy in hand to aid a milway is not contemplated. Per Hagarty, C J., in In re Bate and OUam, 23 U. C. C. P. 35. " If we assume for this argument that the CouncU may grant a bonus to a rail wry, consisting of unappropriated moneys in hand we still think the Legislature meant, and have bo expreased their mear.ing, that the bonus must l>e to the Railway Company, and not to some individual to repay bim for advances to, or services ren- dered to such Company. " lb. , 36. A By-law granting f 1,000 to an individual in consideration of his having, at the instance of the Cor- poration, advanced that amount iu aid of a Railway Company, j«™» therefoN nmwhed. lb. Where a Municipality has legally a ngW to jMim a Bly-law granting aid to a Railway Company, it would k pre- .560,661.] AID TO RAILWAYS. Wdr 5. For directing the manner und form of signing or (Bdoning any d> benture so issued, endorsed or guaranteed, lod of countersigning the same, and by what officer or per- KHi tbe same shall be so signed, endorsed or countersigned wpectively: (/) But no Municipal Corporation shall subscribe for stock or incar a debt or liability for the pur])ORes aforesaid, unless the By-law before the final passing thereof receives the assent of the electors of the Municipality in manner provided by this ict (g) 36 V. c. 48, s. 471 (5). See also Rev. Stat, c 165, 1 31 (3). 560- In case any Municipal Council subscrilies for and yds stock in a Railway Company under section five hun- dred and fifty-nine to the amount of twenty thousand dollars or upwards, (h) the head of the Council shall be ex-offido one of the directors of the Company, in addition to the number of Directors authorized by the special Act, and thall have the rume rights, powers and duties an the other Directors of the Company. 36 V. c. 48, s. 475. See also M!^tat.c 165,8. 31 (4). 561. The Council of every Township may pass By-laws L authorizing any Railway Company, in case such author- ity is necessary, to make a branch railway on property of the Corporation, or on highways, (i) under such conditions as the Council 8«*8 fit, and subject to the restrictions contained in ■itare to apply to restrain the submission of the By-law to the rate- Ktn, as they may ilisupprove of it, Vickers v. Shuiiia, 22 Grant 410 i but where there is no power to pass the By-law, the attempt to pw it may be restrabed. Helm v. Port Hope. 22 Grant 273. (/) The powert are, to direct — 1. The maimer and form of signing or endorsing any debenture so ■wl, endorsed or guaranteed, and of countersignmg the same ; !■ By what officer or person the same shall be so signed, endorsed ofvfluntersigned i-espectively. '** further, Attorney-General v. Mayor qf Leed«, L. R. • In. 588. (*l A Municipalitv which has suuRcribed for stock in a i-ailway wpany and thereby become a stockholder in the company, has the ■me nijhU as to the management of the affairs of the company a» •yonlmary stockholder. HarubUwes v. Dudin, 2 Withrow, 86. (•) 8e» »ub.|. 64 of sec. 466. Form of dctantui*. Subflcrip- Uoni, ete., to ' be ooDflrme# br aiMnt o( eleoton. In eertain CMM, bead of oounetl to- beex-Q^taio a director. By>!aws so. thoriaing^ brandi rail* ways, tram and otber railway^ along biglK ways. m mk n "f ;{ ' li' i't .1 1 i 1 i" «74 Tire MUNICIPAL MANUAL. [si 562, 563. Kw. 8Ut. c. " 7%* Kailway Act of Ontario" and any other Acts affect. ^^ ing Buch railway ; and may also pass By-laws to anthorize companies or individuals to construct tramways and other railM'ays along any highway on such terms and conditions as the Council sees fit (j) 36 V. c. 48, s. 476. PART VIII. Police Villaoes. Div. I.— Formation of. Div. II. — Trustees, and Eleciion of. Div. III.— Duties of Police Trustees. ^:' Bziitinff police TiU tinned. New police TiUagea. Division I.— Formation of. Existing Villages continued. Sec. 562. ' Nevo—ltow formed. Sec. 563. 662. Until otherwise provided by comi)etent authority, every existing Police Village (a) shall continue to be a Police Village, with the bonndaries now established. 36 V. c. 48, 8. 477. 563. On the i^tition of i',ny of the inhabitants of an unincorpomted Village, the Council or Councils of tiie County or Counties within which the Village is situate (i) ij) See sub-sec. 54 of aec. 466. (a) There is in general no difficulty in defining the boundaries of an Incorporated City, Town, or Village, because the statute, pro- clamation, or other authority incorporatuig such a Municipality usually prescribes the boundaries. See Irwin v. Bradford, 22 1. C C. P. 18. But in the case of a Town or Village not so incorporated, or net having limits otherwise assigned to it, there must of necessity be uncertainty as to the boundaries. A Police Village may he set apart by a County Council with such limits as are deemed exi^lient, Sec. 563. The boundaries of a Village or Hamlet fluctuate from (Uy to day with the growtli of houses, but the dTect of this section will be to restrict the boundaries, notwithstanding the growth, until sucn boundaries be otherwise established. The boundanes «ecl"ea»re the boundaries now establisl ed. See The Queen v. Cottle, Iby. ft 412; MiUon-ntxt-Si(tiu(jborne Conwnmoiiera v. Fuversham, W d. n \^ S. 648, note ; see further, note c to sec. 563. (h) The words "Unincorporated Village," as here use.!, may Jf looked on as the word '• Town" or " Village" used in several Uijiiistt 1. 563.1 FORUATION OF POLICE VILLAGES. 57{S ntTi ^y ^y-^^f erect the same iuto a Police Village, and Acti of Parliiunent to indicate a collection of houses. It is a mat- terof «ome tlifficalty to give a detiuitiou of " Town" or " Village," when not incorporated, so as to cover all cases. In Co. Litt. it is tfud, that " a place cannot be a Town in law unless it hath, or, in timet {)a said, "Probably a garden ittacheil to a house and occupied along with it should be reckoned &s pat of the house, in considering whether the houses are continuous. " it. 131. in The Queen v. CoUle, 10 Q. B. 412, 416, Russell Uurney tbarged the jury that a town is generally "a congregation of houses, iDdthat the jury were to say whether the spot in question was sur- mnded by houses so reasonably near that " the inhabitants might befairly said to dwell together." Keferring to this charge, Lord Cimpbell (in the same case) said that the learned Recorder hsi* with nnch felicity comprised, in a few words, all that was material ii» the Iwguage of the Barons of the Exchequer, as to the definition of a town, in ElMt v. South Devon Railway Vo. Ih. 420. His «lf iiiition n« .0130 approved of in Milton-next SiU'mij!>orne Coinmifuii -g v. hmham, 10 B. k S. 548 ; and London and SotUh }Venter> ,lway ji/., L R. 4 H. L 010. In the List mentioned case it was i that lu conducted. Sees. 575-579. Powers of Returning Officer. Sec. 580. Tenure of Office. Sec. 581. Yotei ?' Lists, d'c, to be returned. Sec. 582. Vacancies, how filled. Sec 583. Inspecting Trustee, how appointed, ^ec. 584. 664. The Trustees of eveiy Police \ illage existing when tiiis A<'^t takes effect, (d) shall be deemed the Truulm V8Si)ectively ot every such Village as continued umler tLL» Act. (c) 36 V. c. 48, s, 479. 565. The Tnistees of every Police Village shall be three in number. (/). 36 V. c. 48, s. 480. and from snch reuonine they arrive at the conclusion that Tedding- ton is a town. The fallacy of this conulusion, however, is made quite apparent from the ma^m and [.tlans which h.*ve been reterrud to in the case ; and from which no man of any ordinary sens? and disceniment can fail to see that Teddiugton is anvthing more than whatMi:W(v and properly called a village. " Blnchmore v. London amt Sotdh Wu- tern Railway Co., 19 L. T. N. S. 5. (c) The power is by By-law to erect the same into a Police Village. and assign thereto "such limits as may seem expedient." It » * legislative power. The Council should, in the same By-law, name the place in the Village for holding the first election, and the re- turning officer thereof. Sec. 569. {d) While the members of the executive and legislative body of m Incorporated Municipality are called Councillors, see note k to ««• 8, the members of such a Iwdy in the case of a Police VUlace »re called Trustees. The general powers, however, of each body are much alike. See sec. 586, et seq. («) See note a to sec. 562. if) It is presumed that two (the majority) would be a qnonua See note a to sec. 217 : see also sec. 570. ,}6W71.] ELECTION OF POLICE TRUSTEES. 577 HJH. The persons qualified to be elected Police Trustees QuaiiiteaUon ly be such peraous as reside within the Police .Village or *' ""•**'^ fithiu two miles thereof, (g) and are eligible to be elected Totnship Councillors, and are qualified in respect of property for which tbey are rated in such Police Village to the amount nquimlso to qualify thom. (/*) 36 V. c. 48, s. 481. 567. If there nre not six i)er8ons qualified under the Defldency in preceding section, any person entitled to vote at the election qu^iaJ^Mr- Dttj be elected, (i) 36 V. c. 48, s. 482. ioni. 568. Any Township elector, rated on the last assessment qu«i iflc»uon roll for such property in a Police Village as entitles him to o'«i««'«W' rote in respect thereof at the munici[jal election for the Tovi^hip, shall be entitled to vote at the election for Police Trustees, {k) 36 V. c. 48, s. 483. ' 569. The Council by which a Police Village is established PUce for ibali, by the by-law establishing the same, (l ) name the Jui^uou,''ete. place ill the Village for holding the first election of Police Tnutees, and the Returning Officer therefor, (wt) 36 V. c. 48,&484. 570. In a Police Village, after the fira\. election, the P>»e« for Trustees thereof, or any two of them, (n) sh.ill, from time to J^umt lito- time, by writing under their hands, appoint the Return- """^ •*"• lug Officer, and the place or places within such Village for ; nominations and elections, (p) 36 V. c. 48, s. 485. 571. No election of Police Trustees shall be held in a Ko eiMtioB» to be in — — tarenu. W In the absence of express provision, persons resident without tie limits of the Village would not be qualified. Regina ex rel. •W?ttv. Rochester, 7 IJ. C. L. J. 101 ; Jiegina ex rel. Fleming v. A* sec. 76. and notes thereto. (1 See gee. 5C3. I») Sec «ec. 87, and notes tliereto. I«! See note n to sec. 217. >l The Comity Council must name the place for holding the first ««i«n and the Returning Officer thereof: .Sec. 5«9. Both must, to lubsequent elections, be appomted under tim section by the -, — , »<.vvwui.o, uo appomted fnutee* or auy two of them, 73 U' » -i^ ,m Mi W4^ 678 Nomination mMilnf. ProTiaton for ChrUtmM D.y. Whotopi* •Id*. If no more candldaten than offlcer*. If more nnd poll demand- ed. Election. Notice of pernoDS pro- poied to be posted. THE MUNICIPAL MANUAU [dC .'i72-r,7<, tiiveni, or in a liotiHe of iniblic cntertAintneDt licenv^l towi) 8|>irituou8 liquoni. {q) 30 V. c. 4K, r. 4^6. 572. A meeting of tlio Eloct«jr8 flmll tiike pW- f** t(^ nomination (r) of candidateM for the offic()ll or polls shall be opened for the election, at nine oVIock in the morning, and shall continue open until five oVIm-k iii the afternoon, and no longer, (y) 30 V. c. IS, h. 41ifl. 676 • The Returning Officer or Chairman of the in«'tin)» shall on the day following that of the nomination, post ii|»in the office of the Clerk of the Township, if it is sitii:it»il in such Police Village, and if not, then in sonio otlicr imhhc place in such Police Village, the names of tho pci-soas nom- inated at such meeting ; and shall, if a poll is irhmssjuv, (v) See sec. 93, and notes thereto. (r) See note 7 to sec. 104. (a) See note g to same. • (t) See note )' to same. («) Sec sec. 108. (r) See note t to sec. 105. [w) See note a to sec. 111. (x) See note r to sec. 112. (y) See note (/ to same. .CJ?«] KLKCTION OF POLICU TUUftTEKS. dmunii in writing from the Clerk of the Townuhip, or (M> if thr TownHhi|>H, n Hut of the iiaineH of the ](ei-Huns uinifti'ii^ bv die nsHOtwmeiit ixill to be entitled to vote in the mle. T* Jiw Village, Huch m is re([uirc(l to 1)«! ftirniHliiHl muhv ,li; mvi KViion. (=) 36 V. c. 48, h. 4'Jl ; 40 V. c. 7, ScheJ. J77 Th*^ Clerk of the TowiiHliip, or Clerks o.. the Towii- ,t;!Mi, which any I'olice Vill:w to the Returning Officer of such Police Villa;^c a list o! tk« !«»«* ai'cording to the form l»y law prescribed in the ciw of othtT lumiicipal elections, of the persons etititled to to w[f at Townshift municipal elections, in respect of real rni|»TtT situate, or income received in ilie said Police V!il«)!f, IT in the iM)rtion thereof in th(! Municipality of iiK'h ('l4>rk, iuid rIihII attest the said list by his solemn decla- niinii in writing mider his hand. 3G V. c. 48, 8. 492 ; 40 vo.; .s7(«/. A (I8r>). W8. The various sections of this Act i-elating to tlie pro- j miiiiig* Ht the nomination and election of Tt>wn8hip Conn- filluiK, iiidmliiig those relating to the questions to be put mil outiiM to he administered to electors, and as to the i|<|iuiiitiiK!iit of a Chairman or Returning OlKcer, in case the Cmm a|)|H)ii)ted is absent, and also the prot'isions res|>ecting oittrovtirted elections and for the prevention of corrupt frwtiii'N, hIihII apply and l)e acted on, unless where a diHer- I Til |iiT)viM()ii i.s herein made, in the election of Police Tnis- |'«. ('.) :{(j V. c 48, s. 498 ; 40 V. c. 7, .Sc/ted. A (180). 579. Ill case a casting vote is required to detisrrnioe an I'x^i'm, the Returning Officer, whether otherwise qualified j'f ii''l, lilmll give a casting vote for one or more of such l*-lwUte ,, no as to Vide the electi«m, and except in such Y»^ 'ii'" K«turiiiii;i; OHicer shall not vote at anv such elec- •*'■ ir) ;{C V. c. 4^, s, 495. 579 I.lnt nf Toton to be ob- tiUiicd. Clork of tnwiulilp to fiirntiih iil|>lia)ietU-«l list of vutvril Lint to be att«i>t«(l by (luclamtlon. Kxeept whnr« otber- Mrl«c pro- vUlcU, H«0r |>rocuc<]ln„», ftc., to b« h*(l lis at olevtioni, cte., of ooun- cilluM, etc. CaxtlnK vote ill cMe of tiOH. ' ' m T!,e omiarioii of the Huturiiing Officer or riiuirnian to <1<» m "^'' ^ thin »«,-cti(iii would not pfr up iiivaliilatu the election. •'I^aur^l. HVt/iv'/v. Mih-hM, 4 U, C. P. H. 218. ' >•: rif)t« 7 to Hec. 240. '" if.M i« in a<:coril.'nicc with the general rule that a jmrticnlar l^»i"n, «nWfjnent to a general provision on the same subject, I '"ntrol th»: Ijtttw. Sec note r to sec. 1. \*Ji '^f'" * ^*''*"'"'"'j ""'''i-'''. after chising the ixtll, rcc I ""^"« » ^'"tcr that liis vnte ha n ti . Eii)tnie$ of, h) See sec. 592. (') Crtdihle toUneta. See note h to sec. 401. ("I The path-muter, or some path-master, if more than one, is to jweive the penalty. When he receives it, it is his duty to apply it wthe repair and improvement of the streets, Ac. See x note to sec. *<. a« to the form of conviction. 74 586 THE MUNICIPAL MANUAL. [89. 595-597. him by this Act, (iv) shall incur a penalty of five dollars. 36 V. 0. 48, 8. 511. Z^Z to b!?' ^^^- '^^® penalties prescribed by the preceding section, or commenced, by that for the establisbiiient of regulations of j)olice, shall be sued for within ten days (x) after the ofl'ence haa leeu couinutted or has ceased, and not subsequently. 3G Y c 48, 8. 512. ■xceptlonn from repeal. Boundarieji of cities and towuf. Amherst- burg. Proclama- tionti. Special Acta. Rer. SUt. e. 176, not affected. CONFIRMING AND SAVING CLAUSES. 696. Nothing herein contained shall be taken or constniej to affect or repeal so much of the schedules in either of the Municipal Corporation Acts of 1849 and 1850 as defines the limits or boundaries of any Cities or Towns, being schedule B. of the Act of 1849, numbers two, three, four, six, seven, eight, nine, ten and eleven, and Schedule U of the same Act, numbers one, two and three, and Schedule B. of the Act of 1850, numbers one, five, twelve, thirteen, fourteen and fifteen ; and also so much of Schetlule D. of the said Acts of 1849 and 1850 as relates to Aniherstburg, and also so much of the two hundred and third section of the said Act of 1849, and so much of any other sections of either of the said Acts relating to any of the Schedules thereof as have been acted upon, or as are in force and remain to be acted upon at the time this Act takes effect, and all proclamation!! and special statutes by or under which Cities and other Municipalities have been erected, so far as resjiects the con- tinuing the same and the boundaries thereof, ahull oontinne in force, (y) 36 V. c. 48, s. 513. 697. Nothing herein contained shall affect Tfie Aetm- l)ectin(j tite eatablishment of Municipd/ Institutions in tk JHstricta of Alyoina, Muskoka, Parn'y Sound, Nlpisning, (ml Thunder Bay. (z) 36 V. c. 48, s. 514. (w) Tha duty to enforce tlie Regulations of a Police Village ii obligatory, see sec. 592, and is here made penal. As to what ii a wilful neglect or omission, see sec. 191 of The Assessment Act, ami notes thereto. {x) See note a to sec. 177. iy) This section was especially preserved and continued by sec. 43 of the Act 29 & 30 Vict. cap. 51. That section is here quoteil at length. Its existence is essential to the preservation of the tem tonal and Municipal organization of many Municipalities, and its meaning so obvious as not to demand any farther notice. (2) See R. S. 0, cap. 175. SCBE1)."A."] FORM OF BALLOT PAPER. SCHEDULE "A." 587 (Section 119.) Form of Ballot Papkr. (1. In the case of Cities.) Form for Mayor. FOR MA YOR. ALLAN. Charles Allan, King Street, City of Toronto, Merchant. BROWN. William Brown, City of Toronto, Banker. Form for Aldermkn. S a _2 * Ph S «i . % * §^ .0 M >. ■S s 3 I ^% o g2 00 /''07? ALDERMEN. AROO. James Argo, City of Toronto, Gentleman. BAKER. Samuel Baker, City of Toronto, Baker. DUNCAN. Rober* Duncan, City of Toronto, Printer. .588 THE MUNICIPAL MANUAL. [ScHED. ''A." (2. Jn the case of Totoru divided into Ward*.) Form for Mayor, Reeve and Deputy Reevi. 1 '1 ' ' 1 i 1 ■,■■•• i > i i ^^> •t-: $ •c~. -2*»' 1 4 J \ k i « m 5 i ■^\ » S 1 i o 1 o H o 00 (« Oh b •3 •a s 1 s 4> o :S >. «»-i -§ o S 1 ^1 V a s _o 2 'C 5 Pi 1 d o M) ^OiJ MA YOR, THOMPSON. Jacob Thompson, of the Town of Barrie, Merchant. WALKER. Robert Walker, of the Town of Barrie, Physician. FOB BEE VE {if any). BROWN. John Brown, of the Town of Barrie, Meichant. ROBINSON. George Robinson, of the Town of Barne, Merchant. FOB DEPUTY REEVE {if any). ARMOUR. Jacob Armour, of the Town of Barrie, Pumpmaker. BOYD. Zachary Boyd, of the Town of Barrie, Tinsmith. ScHD)."A."] form of ballot paper. Form for Councillors. 689' 1 lunicipal Council of the ard No. , Polling 18 . FOR COUNCILLOR. ■J 1 BULL. John Bull, of the Town of Bar- rie, Butcher. ■J ':■■':* PiUection for the Members of the ^ Town of , W Subdivision No. day of January, 2 JONES. Morgan Jones, of the Town of Barrie, Grocer. 1 c 3 McAllister. AUister McAllister, of the Town of Barrie, Tailor. 4 O'OONNELL Patrick O'Connell, of the Town of Barrie, Milkman, • '? (3. In the case of Townships divided into Wards.) Form for Reeve. \ E 5 -s 1 3 Ml "^ FOR REEVE. 1 BARDELL, THOMAS. Of the Township of Peel, Yeo- man. 2 SNODOBASS. ALFRED. Of the Township of Peel, Yeo- man. 1 Electi cipal of ( H.4^ ^ ' ?'!' 590 THB IfUKICIPAL MANUAL. [Sana '• A." ll I"; p 'i. • ! ! . '* I m Form for Councillobs. 5 V .a 00 I— < &^ o ^ ,X3 o u s o P4 6 V a o u FOR COUNCILLOR. BULL. John Bull, of the Township of York, Doctor of Meilicine. JONES. Morgan JoncB, of the Township of York, Fanner. McAllister. Allister McAllister, of the Town- ship of York, Farmer. O'OONNELL. Patrick O'Connell, of the Town- ship of York, Lumber Merchant. RUAN. Malachi Kuan, of the Township of York, Farmer. SCHULTZE- Gottfried Schultze, of the Town- ship of York, Farmer. WASHINGTON. George Washington, of the Township of York, Gentleman. ScHro."A."] FORM OF BALLOT PAPF.K. 591 (j, //( Ihe case of J ncorpo'rated VUhf/ex lling sub- [)f January BULL. John Bull, of the Village of Yorkville, Butcher. of the Mn day ( 2 3 JONES. Morgan Jones, of the Village of Yorkville, Grocer. Klection of Members County of McAllister. Allister McAllister, of the Village of Yorkville, Tailor. 4 O'CONNELL. Patrick O'Connell, of the Vil- lage of Y'orkville, Milkman. N'liTF.— In any case where there are two or more Deputy Reeves, the ballot W*f will make provision accordingly, naming them as first Deputy Reeve, timil Deputy Reeve, &;c. 39 V. c. 5, Sched. A. I';!' I 592 THE MUNICIPAL MANIAL. [8CHKD. ' B." #" H i SCHEDULE "B." {Se.rtUms 122 ami 141.) DlKEtTIONS tOJt THK (JUIltANC'E OK VoTKMH IN VoTIXU. Tlio voter will go into one of the coin]>nrtnieiitf*, nuil, with the pencil provideil in the conipartnient, phico a cioms on thu rij^ht hand side, opposite the nnnie or namea of tlio uandidutu ur voiuliilatct fur whom he votes, thus X The voter will then fold up the hnllot piipor no an to «how the nwno or initials of the Deputy Returnini/ Otficer (or l!etiinuii|{ Otticer, an t/ie cane moij fie^ signed on tiie baefe, and leiiviiig the com- partment will, without showing the front of the ])U|)er to uny jiertou, deliver such ballot so folded to the iJeputy Heturning utliccr {or Returning OfKcer, aw tfiv case may be) and forthwith ijuit tho polling place. If the voter inadvertently spoils a ballot paper, lie m.iy rotum it to the Deputy Returning OlHccr (or Returning DilJcer, a.* the can nun/ he) who will, if satisfied of such inadvertence, give him another ballot i)aper. If the voter votes for more candidates for any olTicc than he is entitled to vote for, his ballot paper will bo void so far as relatet to that ofiice, and will not be counted for any of the candidates for that office. If the voter [daces any mark on tho paper by which he may after- wards be identified, his ballot paper will be void, and will not be counted. If the voter takes a ballot paper out of the polling place, or deposits in the ballot box any other paper than the one given to him by the officer, he will be subject to imprisonment for any term not exceeding six months, with or without hard labour. In the following forms of Ballot Paper, f/ivtn for illiulmtm, the Candidates are, for Mayor, Jacob Thompson and Robeiit Walker ^ /or Reeve, John Brown and George Robinson ; for Dtmty Jitnt, Jacob Armouu and Zachaky Bovd; and for Councillors, John Bpu, Morgan Jones, Allister McAllister and Patrick O'Cossku; and the elector luui marked thefrat paper in favour of Jacob Thomp- son /or Mayor, George Robinson /or Reeve, and Zachaky Boyp/o^ Deputy Reeve, and han marked the second paper in favour of JoH>' Bull and Patrick O'CoNNELL/or Councillon: — ! f m !ki«."B,"l FORM OF DALLOT PAPERS. 593 i •J o :p2 - S a u- ^v ^ ^ P-M t*M 12 ° i s v y, &) •" d ^ /'oA' MA roii. THOMPSON. Jftool) Tliompnoii, of tlio Town J^ of Hftrriu, Murchiiiit WALKER. Ilobort Wftlkur, of the Town of liarriu, I'hyBician. FOU KhEVE (ifitny.) BROWN. John Brown, of the Town of Barrie, Merchant. ROBINSON. George lloltinson, of the Town X of Barriu, Merchant. FOR DEPUTY liEEVE (If any.) ARMOUR. Jacob Armour, of the Town of Barrie, I'lunpmaker. BOYD. Zachary Boyd, of the Town of )( Barrie, Tiusniith. 5 ^ 1 FOR COUNCILLOR. J C •-< CO ^ r > ^- 1 BULL. John Bull, of of tlie Town of X Barrio, Butcher. 2 JONES. Morgan Jones, of the Town of Barrio, (Jrocur. .2 ^« ^ i t- <4^ 3 **- 3 McAllister. AUister McAllister, of the Town of Barrie, Tailor. 3 1 . -c 4 0'CONNF.T.L. Patrick O'Connell, of tlie Town X of Barrie, Milkman. 10 38 V. c. 28, Sched. E. ; 40 Y. c. 7, Sched. A. (187). H' 594 THE MUXICIPAL MANUAL. [ScH. f n & i 3 « •aoniouno,') •aA99iJ piIU JO;t«J^ •xnjipu JO •pauugjt? JO uJOAi.^ •Buoiji^ofqo •ja^OA joaouapisoij •UOg S^JOUIJUJ 10 (^uuuax 'japjoq -asnojj 'japioiiaaj J . •a'^OA 0:^ p9|:H!JU3 Bi ja!j0A Qin qoiqAi JO !j09ds3j ui it^iad -ojj }o noii^'dijosaQ 1 1 * •p9!>0A B«1{ J9:(0A 9q^ ^vH'i Sui!j«oipni ^lavm aoj uuinibo 1 3 2 1 •3 I e 3 r. ci 3 o » .• •3 b c a n : s 9 i 1 8 « .■PS •-2 2 1 M s SCH. "D."l FORMS TO BE USED AT ELECTIONS. 596 SCHEDULE "D." (Section 131.) Certificate as to Assessment Roll. Ehl'mtothe Muniripal Council of the of , 18 . I A. B., Clerk of the Municipality of , in the County „[ , do hereby certify that the assessment roll for this Tovnislup {or as the cam rnui/ he) of upon which the voters' list to k used at this election is based, was returned to me by the ,\!se8sor for said Township {or ot the cane tuaij he) on the ,Iav (if • , 18 , and that the same was finally revised mil corrected on the day of ,18 Dated this day of , 18 . A. B., Clerh 40 V. c. 12, Sched. B. SCHEDULE "E." (Section 144.) Form of Declaration of Inability to Read, &;c. \,A. B.,oi , being numbered on the voters' list, idr polling subdivision No. , in the City (or at the cdmnuiy he) vi , and County of , being a legally qualitied elector iurtliesaid City [or o-s the ra-ie may he) of , do hereby declare ;lut I am unable to read (or that 1 am from physical incapacity suable to mark a voting paper, (in the cane may he), A. B. (Hia X mark.) The day of , A. D. IS . 38 V. c. 28, Sc/ieJ. D. SCHEDULE "F." (Section 144.) FuRM SCHEDULE "H." (Section 1(53.) Form of Statutory DECLAR.vnoN of Secrfxy. I, A. B., solemnly promise and declare that I will not at tliis eke- tion of members of the Municipal Council of the City (or a.i rli, --.i- mat/ be) of , disclose to any person or persona the iiauio "i any person who has voted, and that 1 will not in any way wlKit-t.evcr unlawfully attempt to ascertain the candidate or candidates tor wli"m any elector shall vote or has voted, and will not in any way whate"- ever aid in the unlawful discovery of the same ; and 1 will k.jL[i.Hcrt. all knowledge which may come to me of the ]»er.son for wli >ia ;ui} elector has voted. Made and declared before me at A. D. 18 . a D., Justice of the Peace (or Clerk of the Municipality of ). this day of 38 V. c. 28, Sckl G. Sni. " Closiso of the i'okrs' lid iml 'ri L"] FORMS FOR VOTIXG ON BY-LAWS. SCHEDULE "J." (Section 288.) Form of Ballot Paper. 597 FOR The By-law. AGAINST The By-law. 39 V. c. 35, Scheil A. SCHEDULE "K." (SectioHH 291 and 29^.) I, the undersigned A. B., solemnly declare that I am a ratepayer "i the Township {or as the case may he) of (the MunkipalHij the Conn- (ihfirkkh proposed the by-law), and that I am desii'ous of promotiug 'vr niiposing, an the case may he) the passing of the by-law to (here vi'frl ohjcd of the hy-Iaw), suljmitted to the Council of said Town- iti|i (o?' «(t the case nuiy he). (Signature) A. B. Made and declared before me this day of , A. D. CD., Head of Municipality. 39 V. c. 35, Sched. B. . If, m SCHEDULE " L." (Section 300.) Directions for the Guidance of Voters in Voting. The voter will go into one of the compartments, and with the f*"™ Pro/Wed in the compartment, place a cross (thus X) on the n?l|t hand side, in the upper space if he votes for the passing of the MMaw, and in the lower space if he votes against the passing of the %i ' 598 •]•'. THE MUNICIPAL MANUAL. [SCH. "X The voter will then fold up the ballot paper so as as to show th name or initials of the Deputy Returning (or Ivetuming Officer ». tlie raxc man be) signed on the back, and leaving the compartment will, without showing the front of the paper to any person, dtliver such ballot so folded to the Deputy iieturning Officer (or rietuinin:.' Officer, ns t/ie cuxe mai/ he) and forthwith (piit the polhng place. If the voter inadvertently spoils a ballot paper, he may return it to the Deputy Returning Officer (or Returning Officer, tm Ih c-i... ma>i be), who will, if satisfied of such inadvertence, give him anotkr ballot palmer. If the voter places on the paper more than one mark, or places any mark on the ])aper by which he may be afterwards identified, lii"> ballot paper will be void, and will not bo counted. If the voter takes a ballot paper out of the polling place, or deposits in the ballot box any other paper than tlie one given to him liy tin- Deputy Returning Officer (or Returning Officer, an thf cokc wmj hn, he will be subject to imprisonment for any term not exceeding six. months, with or without hard laljour. In f/ip foUow'inij form of Ballot Paper, ijireii for illudrat'm, I'n Elector Ji'. iiil tliJH I'roviiico ; fur liowever Huitimrted at that end or wlictiior Hiiitportcil tlioio or not, or wliotlicr uHaldu jw ii Idilw' „[ not, with r)r withrmt that support, it would Htiil as) to tli.it liar witliin tlic Province he real eHtate, ei'ccted and attaclied as it is n* the terminus in this Province." Ih. 1J>(». It has been hcM that tlie i)roprietor» of water workH whose niaina, pipes and other .inpar- atus were laid down in and iiiidcr the Hurfaee of land were lialde t< be rated under II (leo. ill. eap. 12, au oecujiierH of l.ind. ']'!■■ Qiirr-nv. Edxt London ]Vn/rr U'oAii, 18 Q. B. 70.j ; T/ir (jiui-n \: ||'..' Mii/d/mx Wftfir Co. 2Hl,. .1. M. C. l.S") ; T/n; Q„mi \: IHnni,,! ham Wnti'v U'orti Co., I 15. & S. 84; lait Hee //( n 6Vm To. -/„,' (HtdWd, 7 U. C. \j. .1. 104. Chi'L^Hi Widir Work^i Co, v. Ih.u-h.i. 17 Q. 15. 308. .So tlie proprietorw of land occupied by a tanal and towiiiL' path, having on and Itelongin;,' to tiieni, aa inciilcnt thereto and necessary to tlie occupation ;ind u.sc tiiereof, ecrtaiii imstj for fastening vessels, stone Ur'idgcs, culverts and a dry-dock. '/V- Queen v. Orerneern of Xeiilh , L. II. (J (^. 15. 707; see lui'ther, Unjuii ■ Canicd l)y thcni for tlic purposes of their r;iil\v;iv, ;;- either laud f)r real projierty, witiiin the meaning of the A.^stf- ment Act. The bcgisliiturc having defined wiiat tliey mufuitliylami. that meaning ouglit not to Ije extended so as to include a harb.nir < : land covered with water. JinJ/alo iind Ijoke llnron /I'niliniii I'o. \. (Joderkh, 21 U. (J. <). 15. !)7. So in Kngland, it has been held tiiat.i dock or basin, of whic!) ninety-five acres were covered v.itli H.itor, was property other than land, within the nuianing of 3 & 4 Will. IV. ca]). 00, sees. 33, 34. The Queen v. PHo, 7 W. li. oSlJ, .V. ('., 5.Jiir. N. S. 120!>. The part covered with water may lie held not td Im taxable, and yet buildings ami land not covered with water, used for the purpose of harbour may be taxed. T5y recent Kngli.sli statutes (30 & 31 Viet. e;ip. 1 13, sec. 17), it is declared that the (jcciipier (if any land covered with water " sliall jjay to the sewer rate in rc8iK.t: to his property one-fourth [lart only of the rate in the pound payabii in respect of houses and otlier property." field, as to a Coiiiiiaiiy possessed of a canal, of filter beds supported on brick archcD, ami sometimes covered with water and at other times not, of land ustn for keei)ing sand for tlie filter beds, and of land having tliurein irmi pijies, mains and service pipes, tliat the canal and filter lieds were land covered with water, and assessable only at oiie-lonrth tin amount to be ini[)os(Ml on houses, &c., but that the land used for tin purpoae of keeping sand, and the land occupied by iron pipes, niaiii- and service pipes were liind th'it ought to be assessed at tiie fiiil ii] INTEIirilETATION. 6oa .th ill Other iiropcrty, oxcopt Liiiid and Real Estate, and Reiil Profteity as iil>ovo dtfiMCid, and except property herein ex- iiressly tjxeiiipted. (/>«*/ 7Vt./; C'o«y<, 3 How. (U. S.) 133 ; Honk v.r/„x(».r, lOUich. Law, (S. (Jar.) 104; S/oli- v. C/iar/i'.'y..(:„. V. JiixticcK, 28 (Ja. 121; Tin-Bank v. J/<»//or, Dudley, ''■a.) 130; see also, Mni/or v. J/artrldi/i', S (ia. 23; XnKlivdlc v. /■/rtw'^ 5 Coldw. (Tenn.)(500; O'lJunni'll v. Baliy, 24 Miss. 38(5; w further, note m to sub. 17 to sec. (i of this Act. ' Authority " to t»x real ami personal property " would not, unless expressed to tlio contrary in the statute, include money, notes, accounts, dehts and choses ill action. Joluiwn v. L/'xhu/fon, 14 B. Mon. (Ky.) ()4S-()()1 ; iMlmthv. H,;„iuii/, 1 Bush. (Ky.) 381 ; llrid;/<'.t v. CnlJhi, IV.] (ia. ^jh I'l^njik V. Ilihi'i-nla Bank, 21 Am. 704; Imt huo Jarksonril/n v. Mmd, 12 111. 138 ; Jo/inmn v. Orci/on Citi/, 2 Oregon, 327. Nor '■"iiM it. unless so expressed, give power to tax income. Sarnnnak w/'O'/cWf/r, SUa. 23; hut see Lbnumj \. Charleston, 1 McCord, '\r ' ^'^' P"^ intention of this Act is that all j)roperty situate *ithm the Province, not being land, real estate or real property, and wj* lieuig exempt under the Act, inrliidimj choses in action and. ?'l ' ■■ fa ii no4 TIIK MtrNinPAI, MANI'AU [h. 3. (!).) " Pro).«'it,y" hIihII inciltido hoili mil hikI poi-Koniil pm- porty iiH mIk»vc (Ictiiiod. («) .'J2 V, c. 30, h, 5. 3. iriioruMipifd Iiitiil hIiiiU Ixi (l()ii()iiiiii)it4!il " LhikIh (if Non l!«'Hi(l(!iil,H," iiiilcHs tli(i owimr tlirnfof Iuih a Nf^al flomiciltMir ]»lun? of liiiHiiK'HM in tho local Municipality wlioiti tlu! Hunif in Hitnatc, Of giv«'M notice in writ.inj^, mating foiili IiJh full imm.', <'K..ipt, c, jj|,|,.^, „j- rcHldciKU) and poHt offif^! addniHS, in tlm f'lf-ik of tlit' Miinici|iiility, on or Ixifon; tlm tliirtirtli fliiy of Jiiiiiiaiv in radi year, tliat li(f ownH hiicIi land, dfiMcrihing it, ami rc(|iiinn IiIh natn(! to 1«' onttjifid on tlii; aHHCHsint^nt roll \.]ti'.u:\m:, iff ' l'ro|i«rl> 1Ili(i(^rii|>li' Strol). I, aw (S. Car.) '2\7 ; Sln/r ■■. Cilij dounril, I Mill. Cj,. W; Shih' V. (.'lilt f'liiiiirit, n Kicli. Imw (S. (!(ir.) Mil; rih/ Chiivnl \. V. CoHihi, 4'Ki<:li. Law (S. (^ar.) '2M , (Hh/ doiiiinlw. sinli;'2Hym (S. Oar.) 7I!>. i>iit apimrciitly aiH!Xi'c]iti(iii oxJHtH in the cnMi: nf !ano;.ll ItcrHdiial pnipiirty within the I'rdviiKK! in tho pdMHdHKJoii oi wiiitroln! any agent (ir triiHtcie iVir or (in ))ehalf of any dwncr tlicre'if win. i< resiili;nt out df thin I'mvineo, iH lialihs to HHHeHHrncnt in the Miit- nianner and Hiilijeet to the like ex(!ni)itionH iw in the cfiHCuf tliuotbir perHdnal prdptTty of a like nature uiidei tlie act. (/) 'riio rule iH, tliat " nnoeeiipicd land" «//(«// l»(! (len(imiii,it<.ii "landrtdf non-reHidentH." The exeeptionH created hy thin Htctinn, are two — 1. ^V''llere the owner has a hsgal domicile or phwie of liUHJmihH in tho local Municipality where tho land iH Hituate. 2. Where, being renidoit out of tlii! Municipality, ho f^ives notice, in writing, netting fdrth liiH full name, jilace of rcHiilence, Ac, tiiifJ, reipiircH hiH name to bo entered on the roll. " What the KegiHlaturc meant waa to make it the duty of the .uies aor to aHHOHH all laiHJH in the name of the owner, where Hiicli 'iwiht rcHided mlf/ihi the Municii)ality, and wan known by thefWso.s.Hortok .so rcHidcnt, or where by (liligcnt en(juiry tho aHHOHHor Hliall he alii'; t" diflcdver that ho ia ho roHitlent. Fiut tho licing in/mi rcHident witlim the Munieijiality, or liaving a legal domiciTc or place of liiuincs.' there, ia made an indinpeiiHablo condition to the proiirietor kin^' aHHosaed for the land up(m the roll in hia own name, unlesis, indeed, being a resident out of tho Townahip, Village, &c., lie shall have signiiied to the aascHBor tliat he owna audi land^ «'"' Jesir'!' ^' bo aaBcaaed therefor." Per ilobinaon, C. J., in /icrlin v. ^li-nn'fj K. & A. 275), 284. Tho aaaosaor cannot legally of hiinnolf insert the name of a iion-reaidont on tho roll. There must, in such caae, be ii] RKAL K«TATK OK RAILWAY COMI'A.VrKH. C05 'X2 fliicli iioticf! iniiy l>P ill tlu) fonii or to tJiy the l/^giHhitiiro to ^'ivo Vi th<; aKicHwiFH thu riulit, upon tlieir own view of tlie own<'rMlii|iof lai.'l^, t" put tlii:in (town upon thxir rr*!! uh the pr(i])<;rty ot mi iwhu'liuil, n!«i(li;iit in iinot/ur mul norhdjm ii lUntaitl. purt ol the i'ro- rui", ami tliiiH throw upon hiicIi iiiiliviiliinlH the eoHtii of ;iii !i|)|ieal <;t |j«rlia|iH of an tietion, liku the pruHeiit, in wliieh the pioilnetioii of aiiijiyiif till; roll in docianiil to he eviilenee of the ileht. " /'t. v. /Vv/////, .'!'_' I'. '' Q. H. IK); hut the eontrary in now held. See Tin: limit nf Tmnlu V. Fiim'mij, 18 (Jrant .'Wl ; SUunihorw v. (JnmplxH, '24 Oraiit, 17. iy this »':';tiiiii made an exception. Itailroful property, whether real or [*r.»iiii,il, ill the alwence of loj^islation to the contrary, is liahle to t«,iti'm ia tiie MiinieipalitieM where situate. Uni'lronil. ('<,. v. »'•':/''', 2 lili. Ih. 4r)»; llailroad Ho.w. Cnnnilhi, 10 Ohio St. ir)4; Mmd Co. V. Clutc, 4 raigo i'h. ( N. Y.) .'{84; Haihon,! ('„. v. -.:"'(.'/ '/iW/rz/t, 14 111. U;;}; WhrrAr V. /.'nllroii'l Co., 12 liarh. ^■^■)''il ; ll'tilrmil Co. V. Sjie(ir/ii(i.ii, 12 Iowa \\2 ; />ori,>j>'irl ''■ mliOMl Co., Ui Iowa. .'HS; RaUrowl. Co. v. Ahxamlrln, 17 !-V 'H COG 'h\ THE MUNICIPAL MANUAL. [^ 5 PUOPKRTY IJAnLE TO TAXATFOK. All tiixo* to Im< IhvIuiI . ., 6. All inuniciiHil, local or direct tiixoH or rntoK, Hlmll.wlim •(iimiiy iipoii no other cxprcHH jn-oviHion Iibh Imm iimdo in tins n'si«d, !)(> .m.perty. ''^^'^'^ eciually upon tho wliolo rntcahh! property, md im.l \^r. when no' Honal, (if the JMunicipallty or other locality, accdnliii" to the Dillon &. HSHCHHt'd value of Huch propoi-ty, ( j ) and not upon any one or Oratt. (V"a.) 17(i ; Ifaih-omf v. Co. Lnfm/etfr, 22 Ind. 2(12 : llalh-Md Co. V. Stiifi', 2.') Ind. 177 ; A/)])lf;/(itc v. Kunixf, '.\ lUish. (Ky.)(^48; J{onii- Jfiiilroiii/ Co. v. J'onic, 14 (la. 275; Jinlluinnu' \. Hniliddil r,/- 4 (Jill. (Md.)2.SS; /flcliiiioiKl v. Jhui'ul, 14 (invtt. (Vii.) 38.'). The Torontit Street Kiiilwivy ('i)iiipiiuy iH not iiHscHmihlofor that iMirtiiaicf tiic 8trc!L't8 oooupied l»y thoin in tho City of Toronto for the iiur|msn) of tht'ir railway, either ftH real or personal e-state. Toronto Sti»i lltdhviui Co. V. Fh-niinii, 37 U. C. Q. li. 11(1. In Home ciwch it lias been helil that tiie I lolling Stoek of J?ail\vay Companies nre Hxtuns, so as not to paHs under a mortgage of tiio realty. See I'lilmn- v Forlx-.'^, 23 111. 301 ; Strirkhtinl. v. Porbr, M .Maine, 2(i3 ; 7'7«. v. Mahti', 25 111. 257 ; Fiinmrx' Loan ami Trust Co. v. IIiuilnd*(ni, '.Vi Barb. (X.Y.) 484; Fdnnn-H' f,„,m ami Trust Co. v. Thr Com im, ■<■>,>{ Hank, II Wis. 207; FhillqMX. Winslom, 18 B. Mon. (Ky.) 431 . mit in tho ab.senee of legislation to the contrary, rolling stock shouM l* held to l)e personal property, /{nnilalt v. Elincll, II Am. I't'ii. 741; Sti'vcus V. Jiafalo and Ni'iv York Cifi/ llailroad ('iiiiijiiinii it ul., HI Barb. (X.Y.) 590; Bcardslmj H al. v. Ontario Jiank, Jl>. ()1!». It is tho duty of every Railway Company annually to transmit to the Clerk of every Municipality in which any ])art of therna.lor other real proi)erty of the Company is situate, a statement HJicwiiig; 1. The (piantity of land occupied by the roadway, and tlie nctua! value thereof according to the average value of laiul in the locality, as rated on the assessment roll of tlie pruviou.s ytar. 2. The real property other than the roadway in actual use ami uc cupation by the Company, and its value ; and 3. The vacant land not in actual use by the C!ompany, and the value thereof as if held for fanning or gardening purposes. It is then the duty of the Municipal Clerk t^j communicate the same to the assessor. It thereupon becomes the duty of the assessor to deliver at or transmit by post to any station or office of the Company, a notice of the total amount at which he has assessed the real property of the Company in Ins Municipality or Ward, shewing the amount for e.uh description of property mentioned in the above statement of the Company. Sec. 26 of this Act. ij) The intention is that whenever a Council determine to raise a certain sum for a certain purpose within the scope of their authonty, the same shall be raised by assessment, to be laid equally upon the whole ratable jiropcrty, according to the assessed value of such pro- perty, and not upon any one or more kinds of property. Dm ; . McG'dl V. Langton, 9 U. C. Q. B. 91. Where a Slunicipal Council, .,>.] MANNKIl OF LKVYINO TAXt». 607 iiKin' kinJfi of property in ptiiticulHr, or in (lifTt'rent propor- tioitf. 33 V. c. aO, 8. 8. •Jd'J: Ita'ilrwd lutt'.i'l of following tliu plftin direction of the Htitutc, 'ty Hy-lftw ;iii]»iiieil n tAX on vihl IiuiiIh nlono, the Ily-liiw wnH hultl to be illogdl. \) a gi'iicrikl tax levied frrhinirfh/ upon leivl property would l»o n Ixriiniimtion in favour of per8onal projMirty, nnd void. l. MvUlll v. Liitii/fon, » U. t'. g. \\. IM. So taxn- •,;iin cxcliisivtly of tiio l.iiid of iioiireHideiitH, or taxation of the Manio It } higher rate or in a ditlbrcnt manner from the land of residentB. liiiji'ominlv, S/iili; 2^imvrH, (H. C!ar, ) 71!>; Xwlinlh- v. All/irop, fiOililw. (Ten.) f)')! ; see furtlier, liiiimtt v. lilfniiinihuiii, 3! Pa. St. I'l, It is illegal to attempt to compel the owners of farm.s lying within miij iniloon each side of a i)ul)lie highwjiy to pay for eraainc, niaciulamiziiig and improving it, by an asHCHsnient upon their laiuiH !.i the acre. Wimlitnijlon Ari'uiii', 8 Am. 2^m. The declaration is not <:ni]ily that '(// Miivlvijin} ta.vin Hliall l)u levied cipially upon the whole itilile pniperty, but that all Municipal local or direct taxes or niteH Cal. 282; aardiner «/. Gardiner, 5 Greenl. (Me.) 133 ; EcanwiUe v. Hall, 14 Ind. 27; fmian v. Shepard, 27 Ind 288 ; Madinon v. Whitney, 21 Ind. 261 ; i U'in If ' 608 THE MUNICIPAL MANUAL. [s. 6. m- Whmt pro- Q. All land and personal property in this Province shall to'tLatioD. ^e liable to taxation, (a) subject to the following exemi> tions, (6) that is to say : Potvell V. MadiHon, Ih. 335. The share of a part owner of a steam- boat, in the absence of express legislation, held not to be taxable where the owner was resident. Xew A Ibany v. Mcekiii, 3 Iiul. ;81, Nor a steamboat belonging to a resident of the city, but registered elsewliere, and only touching at the city during her trips up and down the river. Wllkoj v. Pekiii, 19 111. KJO. But the contrary was held in Alabama. Buttle v. Mobile, 9 Ala. 234 ; see further, Oakkwl V. Whipple, 3!) Cal. 112 ; Hayes v. Pacifc Steamship Co. 17 How. (U. S. ) 59<) ; St. Joneph v. Railroad Co. 39 Mo. 476 ; lluyt v. Cm- mUmioners of Taxes, 23 N. Y. 224. There is no right to tax steam- boats coming occasionally within the Municipality, where such steam- boats arc owned l»y foreigners or non-residents. St. LuiiU v. Fernj Co. II Wall. (U.S.) 423, but see St. Loiiia v. Wiijiiins Fi-rni (a 40 Mo. 580. See further, sections 23, 24, 25, 2G and 27 of this Act, and notes thei^+o. (a) The propert;>' liable to taxation is properly in the Prorim, Personal property, such as Bank Stock held out of the Province has therefore been held not liable to taxation. Nickk v. DouiiIuk, 35 U. C. Q. B. 12o, S. a 37 U. C. Q. B. 51. Bank Stock owned by a resident of Kingston in the Merchants' Bank, which hail its head office at Montreal, was decided to be properly out of ^the Province, and so far not liable to taxation. Jb. {b) The burden of taxation, when there is no express provision to the contrary, should fall equally upon the whole ratable property, real and personal, of the Municipality. See sec. 5 of this Act. This being so, provisions creating exemptions are to be strictly construed. Sj)ea/: v. Powell, L. R. 9 Ex. 25 ; Orr v. Baker, 4 Ind. 86 ; Gordon V. Baltimore, 5 Gill. (Md.) 231 ; State v. I'oum Council, 12 Rich. Law (S. Car.) 339; Mmicipalifi/ v. Bank, 5 Rob. (La.) 151 ; Mimici]mlit]i V. Railroad Co., 10 Rob. (La). 187; Trmteesv. McConndl,\'n\\m\ People v. McCrterij, 34 Cal. 433 ; Railroad Co. v. Alexamlm, 17 Gratt. (Va.) 171 ; iJast Sayiuaw ManufudHriiuj Co. v. EadSariiimw, 19 Mich. 259 ; S. C. 2 Am. 82 ; Bo,itoH Seamann Friml Stxitl;! v. Mayor w/v. Supervisors, lb. 185; Bond v. Kenosha, 17 Wis. 284. Itwi s at or,e time clearly held that tlie assessessment of property ex- eicirt ].}• law from assessment is so far a nullity as to render an »:.! to the Court of Revision unnecessary, and the decision by that wnrt iir the Cosnty Judge to the contrary of no binding effect. ttv'i' ]\\slem Railway v. Rouse, 15 U. C. Q, B. 168 ; London v. [f"/ ^\fMeri,Railwa>/ Co., 17 U. C. Q. B. 202; Sliaw v. Shaw, 21 '••^ Q.B. 4.S2; Shaw v. Shaw, 12 U. C. C. P. 456. But later Mtlicrities have doubted that position. Toronto v. d-eat Western f!'-">y Co., 25 U. C. Q. B. 570 ; Scraqij v. Citi/ of London, 26 U. HI. B. 263, 271 ; S. C. on appeal, 28 U. C. Q. B. 457 ; Niagara tiU'-uSMitemon Bridije Co. v. Gardner, 21) U. C. Q. B. 194, 200. The jK'st lucent authority, and that a decision of the Court of Appeal,. ^ sushmed the (piestion. AUckle v. JJow/las, 37 U. C. Q. B. 5L swiurther sec. 5G of this Act, and notes thereto. W The property exempt by this subsection is : 77 • '? ( ? 04. ^■1 Sfj'-, «10 THE MUNICIPAL MANUAL. U'li [8.6. Tied'noToffl. . (^•) ^1^^^'^ ^^^^ property mentioned in the preceding claase oiaiiy. IS occupied by any person otherwise than in an official oaiia- city, tlie occupant shall be assessed in respect thereof, but the property itself shall not be liable, {d) 32 V. c. .']6, s. 9 (■') 1. All property veMed in or held hy Her Majesty, or vested in any public body or body corporate, officer or person in /y«,s^ for Her Majesty or for the public use, of the Province. 2. All property wMed in or held by Her Majesty or any other person or l)ody corporate in trmt for or for the use of anv tribe or body of Indians, and either unoccupied or occui.if 1 by some person in an official capacity. Property, whether freehold or leasehold, in the use or occui),itiiin of the Crown, or of any person or persons in his or tlieir otficial capacity as servants of tlie Crown, is not assessable. Shaip v. Sh'nr 12 U. C. C. P. 45() ; Th-i Secretarif of War v. Turunto, 22 U, C, (). ]i. 551. So property held by tlie Crown and not granted, locateti or leased, so far as the interest of the Crown is concerned. Stri^tw Kent, 11 U. C. C. P. 255; see also Street v. Siiinne, 12 U. ('. C ?. 284; S. C. 2 E. & A. 211 ; AtiMin v. Simcoe, 22 U. C. Q. B. 73. But the statute does not say that land which has once been k'g,ally cliarged with an assessment shall become discharged of it when and because it comes into the ijossessiou of the Crown. The Strr^lnq of Warv. Toronto, 22 U. C. Q. B. 551 ; and before the decision of the Merwi/ Docks V. Cameron, imdJoneft v. The Me rKey Boch, UU.L C. 443 ; an idea had got abroad that if the occupation were for \Mk purposes or charitable purposes which prevented the occupation l>ting benefical, the occupation was that of the Crown and not ratable. See Sheppard v. Bradford, 1 G C . B. N. S. 3(59 for an example. But in Jam V. llie Merney Dockf, which so far as it went settled the law, it was decided that the fact of the it being an occupation for public pur- poses did not exempt the occupier from the payment of poor rates ; but that the occupier was rateable provided he derived revenue from the land, unless the occupation was one on behalf of the Crown — or what may be called an extension of tlie privilege nf the Crown — an occupation for the purposes of the (ioverument of the country. Per Blackburn, J., in Beijina v. Wed Derhy, L. 11. 10 Q. B. 288. See further Lord Colchester -''. Kewne>/, L. R 1 Ex. 368. See further. Lord Bute. v. Grindall, 1 T. R. 338; ft ''.v v. University of Edinburgh, L. R. 1 H. L. Sc. 348; Attorm'nO'-ii'-rtily- Dakin, L. R. 3 Ex. 288 ; The Queen v. JlcCann, L. R. 3 Q. B. 077 ; The Mayor of Essemlon v. Blackwood, 36 L. T. X. S. 025; Tk Mayor of London v, Stratton, L. R. 7 H. L. C. 477. {d) The exemption mentioned in the preceding sub-section as to property vested m or held by Her Majesty, &c. is here (luaiitied by an enactment that the occupant shall be liable to assessment, pro- vided he do not occupy in an official character, but the proiK'rIii, itself is not to be liable. Per Draper, C. J., in Street v. Kent, 11 1. C. C. P. 260. A race course held under demise from the Crown, w aa regards the interest of the lessee, taxable. Mayor of Emmi el al, and Blackwood, L. R. 2 Ap. Div. 574. A person havnig the mere possession of a lot of laud vested in the Crown, determmable at any S.6.] EXEMPTIONS PROM TAXATION. GU there (3) Every place of worship, and land used in connection Places of erewith, church yard or burying ground, (e) 32 V. c. 36, '™"*"P' **' 8.9 (3). See also Rev. Stnt, c. 170, s. 13. (4.) The huildings and grounds of and attached to every K"''",'',*'^!^' Tniversity, College, High School, or other incorporated Sem- tutions. iftirv of learning, whether vested in a trustee or otherwise, so long as such buildings and gi'ounds are actually used and occupied by such institution, or if unoccupied, but not if otherwise occupied. (/) 32 V. c. 36, s. 9 (4). moment, has not such an estate as will qualify him for office under The Municipal Act, but is nevertheless rightly assessed ander this Act. Th queen ex rd. Lachford v. Frizdl, 9 U. C. L. J. N. S. 27. (f| The (luestion whether or not a place of pubhc worship is exempt from taxation for local improvements was raised in /fai/nes V. Oijidaiiil, 18 U. C. V. P. 150, anil apparently the Court decided in favour (if the exemption. Wilson, J., said, " Then it is said that the exeinptinu of the churcli and scliool property from this local tax avniils the Ky-law by destroying the equality of the charge. ... Tliu ilefeudants contend that as cliurch and school property are eiempt frnn all taxation, such i)roperty is necessarily exempt from l*il improvement rates. The eightli section of tli'' Assessment Act ijthe one which provides how, in the absence of any express pro- rision to the contrary, ' all Municipal locxl or direct taxes or rates are to be levied.' Then section nine provides that ' all land and per- S'lniil property ahall be liable to taxation, subject to the following txemptions.' ... So tlip*; local assessments were distinctly i«fore the Legislature when these exemptions were framed, and imoug such exemptions are ' every place of worship, churchyard or Ijurying-groimil,' &c. There is no reason to suppose that the legislature made any distinction in these exemptions between assessments for general and local purposes. Ih. IGl, 162. In Eiiglanil it lias been held that "a church" is neither a " house" nor "land," for the purpose of assessment under the Metrojjolis Man- agement Acts, 18 & 19 Vict. cap. 120. sees. 105-2.'>0, 25 & 26 Vict. qi. lO-?, sec. 77. Aniieil v. Ve.^fri/ of Poddiiifiton, L. R. .3 Q. B. 714. •iwiiers of a cemetrv have in England been held liable to be assessed '"f a poor rate, 'n^-i/bm v. St. Mary Abhot'-s, 12 A. & E., 824. fmav. AlniPij Pari- CemHenj Co., L. R. 8 Q. B. 515. "Burying sTiiund" is by this sub-section exempt from taxation. But whether we exemption extends to all "burying grounds," or only such as iseil in connection with a place of worship, is a question not yet de- ttnrnned. See further. Broad way Baptist Vkin-ch v. MrAte», 8 Am 480; fir>,t Prexhi/feriati Church v. Fort nayne, 10 Am. ■^\ Tk Sldte V. The Mayor, ,{•(•., of Newark, Ih. 223 ; BnMon Sea- i»^"»Fmul Society v. The Mayor, .tc, of Boston, 17 Am. 1.^3. (/) This is not an absolute, but a qualified exemption, viz : " so as DDg as such buildings and grounds are actually used and occupied by Men institution, or if unoccupied, but not if otherwise occupied," A Dmhhng erected for and used as elementary schools for the educa- ™>iof the poor, and two dwellings erected for the teachers of the ^J, ' It/, i'^:- 1^ 612 Town and City halls, tec. Public road!), &c. Tllli: MUNICIPAL MANUAL. [g g (5.) Every Public School House, Town or City or Town- ship Hall, Court House, Gaol, House of Con-ection, Lock-ui, House and Public Hospital, with the land attached theretd. and tli(! personal property belonging to each of them. (7) 3'i V. c. 30, s 9 (5). ^^ " (G.) Every public road and way or public square (h) 3'^ V. c. 36, s. 9 (G). schools, all vested in a trustee, were liehl not to be exciniit iimkr Eng. Stat. 11 & 12 Vict. cap. (K), sees. 2, (j!), from the payment of a Mtc for the paving of the street (jn whieli they abutted. Buifdilrh v Wakfjuld Local Board oj Jfcaltli. L. K .U Q. B. 5(]7. {(/) The Legislature, in using the terms they do in exempting cer tain Imildings, such as Court-houses, iJaols, Places of Worship and the like, and then exempting the real property of some institutions, and the real omI personal property of other institutions, must liavc had in view the nature, object and purposes of these buildings ami institutions. Thus : 1. Every place of worship, and land in connection therewith church-yard or burying ground. Hub. 3. 2. Every Public School-house, Town or City or Township Hall, I'ourt-house, Gaol, House of Correction, Lock-up House ami Public Hospital, witfi the land attached thereto, and the pei- sonal property belonging to each of them. Sub. 5. 3. The Provincial Penitentiary, the Central Piison, and tiio Pn.- vincial Peformatory aiul the land attachet<1 hereto. Sub. 8. 4. Every Industrial Farm, Poor-house, Alu.s-house, Orphan Asylum, House of Industry antl Lunatic Asylum, and every house belonging to a company for the reformation of offenders. and the real and personal property belonging to or conuecttil with the same. Sub. 9. The liCgialature, it will be observed, does not exempt all hospitals, but only pnhlic hospitals. Lord Coke says, in SuHvn'^t C'axe, 10 Rep. 31 a, that there is no legal hospital except where the poor persdiis benelited are themselves incorporated ; and he says that \vhere tlu corporate succession is vested in tnistees to efl'ectuate tlie purixtsw of the institution, there is no legal hospital. It seems, however, tolerably clear that a legal hospital in that sense is not meant where the words "public hospital" are used in this section. It is more reasonable to hold that the words are used in their popular sense, and that any institution which, thoULdi not in a strictly legal, iniglit in a i)opular sense be called a public hospital, may claim exemption. See Lord Colchester et al. v. Kciniei/. L. K. 1 Ex. 368 ; In re Ai'imii of ,Si.';vlity is not ia any iiniper sense taxal)le under general tax laws. Pcd/ih' v. Sulintimi, 51 111. 37; Director.-) of the Poor v. Srhoo/ JJlnHor.-^, 42 Pa. St '21 ; hiWiiUinU of Woro'.fti'r Coniif.f v. The Mujior, ut this exemption is not held to extend to proi)erty of the Municipality, not for the [)urpose of carry' iig on Municipal .'ovemment, hut for the protit or convenience of iti citizen's indi- viiliullyor collectively. LonUr'dIc v. Coiiimoin'-ni/fh, 1 Duv. (Ky.) "'j. it is not declared by our Statute that the occupant of tluj Muni- ipality when occupying for the purposes of gain, shall be exempt ■Piiii tixation ; but tho eoutr.iry appears. See notes c and d to ^'j'i-sees. 1 and 2 of see. G of this Act. (a) The Penitentiary, erected near the City of Kingston, in the f'"Uiity of Frontenac, called "The Provincial Penitentiary of Can- ^l^' the Central Prison in Toronto, and the lieforniatory at l*ene- tMgiushene are the institutions here intended. (') The institutions here mentioned are all of a charitable charac- 'ti, itml therefore we find the Legislature, with as much liberality as l«3il)le, exempt not only the institutions themselves, but the "real '•'"'personal property belonging to or connected with the same." (w) The property of every public library, mechanics' institute iiHl other pul)lic literary or scientific institution, ai)pears to be abso- lutely exempt ; but the property of an agricultural or horticultural U I 614 THE MUNICIPAL MANUAL. [8.6. Personal (H.) The personal property and official income of tlif Sovernors.^ Governor-Genernl of the Dominion of Caiiiula, and the official income of the Lieutenant-Governor of this Province (a) 'i-> V. c. 30, s 9 (11). (12.) The hoiises and jjremises of any offioovs, non-com- missioned officers and privates of Her Majesty's rcculur Army or Navy in actual service, (o) while occupied by tk-iu, and the full or half-pay of any one in either of such services ; and any pension, salary, gratiuty or stipend derived ly aiiv person from Her Majesty's Impai'ial treasury, or elsewlieie out of this Province, and the pei'sonal j)ropei'ty of !>uy \\n>,iimpali(,j V. Julmsfon, G La. An. 20. 'if ' i^f-!ifl{ i*- 61G I'l'moiml property «!• ctircd by morttcaKR, or rrovlncini or Municipal dobuntiircH. DlTlilendu only of Uaiik Stock to Vo aS8C'8ii v. linlfruorc, .'> dill. (.\ld.) 2.31. If the only jxiwcr conferred were to tax " property within tiie limits o" the city,' that would not confer authority tf) tax hank stock. Samwudh v. Jfarlrliliji', *> ''i* 23. It was held under the Act of 187.3, as amended, that the sUxik held hy a citizen of Kingston in the Merchants' Bank of ('ana^Li, of which the heanrson in any Tlailrofid Ooin- ifliiv, (?•) the HlinrcH in Building Socif)t,i(!H, and so niucli of tlio i*i>ioiml iiropcrty of any jiorsoii hh is invested in any C'oni- miiv incoiiionitud for the i)ur|»os(! of lending money on tho i^iinty of real ('.state : but tho interest anerty which is owned out of this Pn)viiit(!, except as h(!rcinaft(!r provided, (w) 32 V. c. 30, ..'J (IS); ;57 V. c. ]!), «s. 1 it 2. (2(1.) So much of the personal ])ro])erty of any persrm as is w|u;il to the ju.st debts owed by him on account of such pro- |iiTty, except such (hibts fis ai'e secured by inortgngo upon his real estate, (./•) or are inipaid on account of tluj jiurchase ;,i'.m'y thurotbr. 32 V. c. 30, s. D (ID). (21.) The not personal ]n'0])crty of any junvson : jtrovid(fd tile same is under one hundred dollars in value, (y^ 32 V, c. :1G, H. (20). RnllroKil and ItiilldInK' So- ulutjr itt- HJiiim (;h not t'XC V c % H. y (21). * " ' (2:5.) Tlic! Hti|M'ii(l or Hiilmy of liny clci^yiiiim (ir iiiiiiiMU;r of ifli/^ioM, while ill artiiiil coimcctioii wiUi any rlhiicli, and (loin;; «liity in hiicIi cli'i/^yriiiiii or iiiiiiisUM', to tlic cMtiituf oiM^ tlioiiSMiiil tlollars, iiixl tlio |>itrsoii!i^(! or ilwtHiii' Ikhim o miil cstuti. oxcc|»t iiitercMt on inortgaj^'t's. (h) o'i V. c. '.U'l, h. 'J ('!'.]). ih '' l»rn|)crty." II' tli" l.itt'jr I)'; under oao IniiKh-cd iliill.ir.s in viiliie, itn uxuin|it Iroia tiixiitioM. ('.) iN'o ja'dviMJoii i.-i lii'P'^ iii.'iilc I'lir tin' diiliiclidn of liw.tci) frmu ilionmij. ,Si;(! .S'(/////V(;( V. /.'nljiiimni, I l'uj,'H. (N. 15. ) 4.'{|. (■.'.) I'crHoiis liaviii;^ iiifinncH exec, 'din;,' 8*00 .'iro iijiimniiitly lial;!': ti> lio taxt'd to tli<; full aiiioiiiil, of tlicir incomi!, ,••« JMroiiK;, nut murcly for tliecxcuM.i ovcr.'^lOO ; lait :io [icihou ia to Ik; uii'.c.^.-icilat.ik- Hiiin UH tlia aaioaat of IiIm I'.ct pci.ional [iroiicrty lliua tin; aMioiiiit"; incoTai) in (txcciH of .SKX). Sci; mci;. '2H. It Iiih Im.'ch Ih'M in th' Coar't r)f Appfal r(:\iM'sin;^ llic d.ciiiioa of tlio Court of (^lurn i iJi'Midi, tliat til'; iiironii; of (dl olliccrs of tin; boiniiiiriii (invijriiiiiLiit in (;xi;Mi|it from tiixatioa. .Suf! /,ijii(i/i(in v. (,'i/ij nj (jlhtini^jini y.i roportoil. {(i) Tho L'ind sulcH'.'ctioM of Hiji^tion of tlic A'.'t of IS'if), vm HO liioad aH to cxciniit tln! Ht,i|)(;nil or « dary of '///// iiiini.itcroi iiJi.'inii, iio nnttiir lii.'W iar;^ij it wan, and no nwitlia' liow d(;iivcd. Tlii; i;'iii Hciiiinnoo waH tli;>t Hi'vcra! clur^ynnai, citlmr in no nianucr (loiii^'iiut} IXH Mtioli, hnt liavin^ larf,'(j inoonio.-t .as profcnsorH ia i!iiiv.,r<(itif.-i, "r otlimwiso noiinnally doini^ rliity an (d(a'gyini;n, l.iit li.uing l;ir^''; i:i- (tonics iiidc))ciidi;ntly of tlirir clinrdicH, made chiiia to uxoiiipt;"!:. and had tlicir incoinc.t ixcmplcd, though miicli liuttcr aMi; to py a tax on iiK.'omi! tlian many profcsHional men, hiiHiaesH iiioii .'in4 nioulianic.-*, who wore not ex:.'in')t from tax on im'onic. This w.m fi.lt to 1)0 Hindi an injiintici; tint tin; ".'J Vict. caii. 'J7, hcc. 4 wjwim (.i!. rcjieahng hiiIi .section '2'2 as it foniurly stood, and aidi.stitatiiii,' f'T i: thu Hci;tioa as it now stands. {h) If the owner of land were taxed for the hind .yjconliii,; to its value, and also taxed for the rental which he received fw iiK."nv; from it, he would lie twice tixed. See note t to siih. K! of tliis.w;^ A jierHoii HO situated was doubly taxed under the Act of hS.iH, :i"'i HO the law continued till ISGS, when it was altered hythesi:l.«T tion here annotitcd. llental is now exempt from t;ix;itioii. Iiittait derived from mortga;4es on real estate is not exempt for the itiis"ii mentioned in the note f, to Bill). 1(> of this Hcetion. ft u'.-( ill value, it r III of \(mM frmii i,*9.] I'KOl'KinV OK lll.SIDKNTH OUT OK TIJK IMIOVIN* K. Ci.'i.) HniW'liold clU'ctH (»f wlmt<'V«T kiiul- iKMtks iiiid wKwin;; iilt'^"'- ('") '^■^ ^- ^' *^''' "• '^ (-'^ 7. Wlicroiuiy porHoii (Uirivrw fiotn Komrj tni'lc, (jllicc;, (lalliiij,' or|>iiifi%''ii)n, an iitcoiiir wliicli in entitled liy law t(i ex(;iii|i- tioii fi'OMi MHseHHiiMtlit, ti(! mIiiiII liot Im! Ixxiiid (o iiMiil liiinselt' of^iitli ri;,'lit to exeiiiptinii, Ixit if lio tliiiik.i 111. lie limy re- (i;iirf liif name to ho entered in the iiH.seHsinciit roll for wiieli iiKOiiif, for tlic |»uritose of liein;^ ei, titled to vote »it ehxitions fur till! Ii<'^,'iHlative AHHejuMy iind Muniei|i)il ( 'oimeil.s, iind mil iiii'oiiDi hIiiiII in kiicIi chho lie linlilo to tiiMition like other is.^it'^ililc iiiconu! or |(ro|»ei'ty, iirid it hIimII he the duty of the Awtii'-or to enter thiii«fhiii ll/riliii!iry iiHe l»y 11 debtor aii'l iii» f.iiiiily, at* wull hh tlio n''rc^,s(/;'// weariii,^' Jiiiiiariil of liiie.McIl' ainl iainily, toj,'(itli(;r with cert.iiii Hjieciiicul artirlcH of fiiriiituro and fiK*!, an; almi lixciiipt from koI/.iu'o ami nalo iiiidiir execution. Stat. t S. (». c. (id, H. 2. All wearing iiii|)arui ia, under tiii.'H Hiih-Hoc- ti')ii,i:xuiii)t friitii taxation. 'I'lii.s woiilii, |»rohalily, lie held to iuuhide irtidfii (if jewelry in ordiuiiry use. Mhii/'h/ik; v. /Hr/inn/Muii, 'H Omn. m ; Vok-vm v. Prnll, 'M S. H. .'Uo. ''') I'ersoiiit may now vote at Municipal KlcctiouH in n.'Mpeet of H'-i'tni; altiiimjjli not jioHHCHscd of real or iiersonal [iroporty of any •iml. I'lfciireMentatioa and taxation are said to ho corrolutive. ItwHiilil 1)0 luiruawinahle to oxemiit a ui;ui'h income from taxati Jirv. Stat. c. 174, ss. 250-2r);V) 'A»N.'iiMor« 10. Tho ('(Hincil of overv Municipality, cxcoi.t Countii's torn to 1)0 ai)-"'"'" »l>l»oiMt Hin'li jiuiulxM- ot AMHCHsors iiruKViIlcptnistiirtlii' l)oiiitoa. Municiimlity a.s tlicy may think ncccsHary. (y) ;I2 V c 'V, B. 19. Munici- imlity iiiiiy IHI lllvldlMI Into uf ROUS- iiieiit (lis- tllclH. 11. Sucli ( 'ouncils may a))])oint to Hudi Assphhoi-h and Col lectors the assesHincnt (listiict or (liHtrictH within which thov kIuiII act, and may prescrilx! regulations for govt'iuiiii; tticiii in the perfonniincu of llieir duties. (//) 3lJ V. o. .'JO, s. 2'J. Aps ssincn rollH, tlit'lr form, L'Dii- ttilltli, utc. DUTIES OF ASSKSSOUS. ' 12. The Assessor or Assossors shall jircpare nn nssw* nicut roll, (d) in which, after diligent inijuiry, he or tlicy irom laud in tho fact tlmt the one ia iiniiidvable, ami tlie nth-t nwiviililo from mio pljuje to another, there ia very littlu of Tho Municipal Act. (//) The i)owcrs arc — 1. To appoint to each aaaesaor and^collector tho district or ilistrioti within wluoh he shall act. 2. To prescribe regulations for governing the officer in tlie perfor- mance of his duties. (n) The assessment as respects real property, is the mode iiroviili;4 for ascertaining tiio actual value thereof. Unless followtil liy the imposition of a rate, it creates no liability. None of the iiieth.Hls pointed out by the statute for the collecting and eaforciiiL' imymeiit of a rate can apply untd a rate has been actually imposed. ''m/.''( V. Tnuhr, 23 U. L'. (^ 6. A'A. But the assessment roll, when com. plcted, is the foundation of all proceedings with a view to ekctMis or taxation. See see. 42 of this Act, and notes thereto, Aiulali : copies and lists ought to correspond with it, for it is the primary or original ridl. Per Adam Wilson, J., in LaHuliti'iihonimjIi v. .IW.-ii., 14 U. C. C. P. 180. But while thia is so, there is no special provi- ; eion whatever declaring it to be an offence to add or alter such a r(dl. Thf Quoeii V. Pn^tou, 21 U. C. Q. B. 8(). An assesaoris nut bound to encpiire into the trusts upon wliich lands are held, Imt M view each man's premises, and to find out whether or not he li assessable, or whether or not he comes under any of the exemptioas allowed by law. Fiaiichun v. St. Thomas, 7 U. C. L J. '2io. I, To make dili jlj.j jORM AND CONTENTS OF ASSESSMKNT KOLL8. 621 ibnll tct down according to tlio best inforuiution to bo y_(i) (H The naiiu's nud surnnmos in full, if tlio hiumo oin Wnm<««of \f iLscHtiiutHl, ot :ul taxal)le i)ors(»ii.s rcNiilt'iit in tho Muiiici[Mlity who hiwo taxable in'operty therein, or in IM The iluty of nn nflHessor in itrupnrinij the nHseMsniuiit ml) i.-i, wler tliU lection, twofold : 1. TmnaU ililigoiit iiuiuiry for tho iiifonii;iti<>n Hnj,'gt'Htt'd • 2. Tonettiio rcHulta down according to tlie lient iiifniination to lio bl, If any assessor ?'c//M/' or inijirf to iiurform any duty rcquircil of kniliy this Act, lie shall iinoii conviction tlicroof buforc any (.'oiirt 111 cmiiui'teiit jurisdiction in tlio County in Mhich he ia assctisor, fnr- felt tuner Majesty such sum as the Court may order ami ad jud^'o, tuttxcteilingononundred dollars. Sec. liSl) of tliis Act. If lio m;iko aiiiijiinl urj'ivitiltilviit asses^^iment, or copy of any assesMor.s roll, or iilfullv and fraudulently enter on tho roll the name of any person fhii sfmuld not he entered therein, or fraudulently oniitu tiiu name of my person who shouhl be entered, or wilj' nil n onut any it;'l 18 distributed among the several ratepayers according to the «8«.«e(l value of their property, real and personal. Property ?^«l for less than its value escapes its due proportion of the ^rtneu of taxation, but as the whole amount to be taxed cannot be 'crwl, other property must bear more than its due proportion of ♦ l . I* ''I't 622 Of iion-roi>l- dents. Property as- sessable. Knrthcr par ticulars. THE MUNICIPAL MANUAL. which the Assessor [s. 12. has been a]*- the district for pointed; (c) (2.) And of all non-re.sident owners who have given tlie notice in writing mentioned in section three, and requirod their names to be entered in the roll. {posite the rame of the party the letter " F," "H," "T," or " F. S.," as the case may be. Column 5. — The age of the assessed i)arty. Column 6. — Name and address of the owner, where the party named in coluniu two is not the owner. Column 7. — School section, and whether Public or Sepa- rate School Supporter. Column 8. — Number of concession, name of street, or other ilesi^'uation of the local division in which the real proi)erty lies, Column 9. — Number of lot, house, itc, in such division. Column 10. — Number of acres, or other measure showing the extent of the i)roperty. Column 11. — Number of acres cleared, (or, in Cities.Towns or Villages, whether vacant or built u[)on.) Cohnnn 12. — Value of each parcel of real property. Column 13. — Total value of real property. Column U. — Value of personal pro[)crty other than income. Column 15. — Taxable income. Column 16. — Total value of personal property and taxable iiicouie. Column 17. — Totarvalue of real and personal property and taxal)le income. Column 18. — Statute labour (in case of male persons from tweutyone to sixty years of age), and number of days' laboui*. Column 19. —Dog tax; number of dogs .and number of bitches. tut the greatest care should be used in the selection of com])etent persons to till the office of assessor ; and those persons wlien ap- pcinte'l should use the greatest diligence and -vccuracy in the per- tonuance of their duties. A slovenly assessment is often the fore- ™Mr of expensive litigation, and is at all times and under all wcaniatances a source of trouble and annoyance to all concerned. 'lie Mits of electors and their interests as ratepayers may alike be jwiianlized by carelessness or ignorance in those to whom the law tntrasU the discharge of most imiwrtaut duties. I'f 624 THE MUNICIPAL MANUAL. K 13, u. Land to be av. Schedule 2. ' ' '" Mode of Assessing Heal rropcrtij. 13. Land shall be assessed in the Municipality in wliicli the same lies, and, in the case of Cities and Towns, in the "Ward in which the property lies ; and this shall iniliKlp tlir land of incoi-porated Companies, as well as otlier property ; (niiHi/i|y, 17 Grant 514; S. C. on appeal, 18 (Jrant 39 ti' If *he ptreiin served as owner omit to appeal, ho is bound by the assessment, tlitthtr owner or not. McCarrcdl v. Wafiins a (d., 19 U. C. Q. R 'ki Ibe duties of the assessor under the first ])art of this section TOtt to land not coming under the description of the previous aec- Has 'iand occupied by the owner," but to lands such as described "" s«. 3 aa "unoccupied land," These duties are, to assess the owner- '• Ii known, and residing or having a legal donucile or place of "i^mess within the Mmdcipality. ■: h, bting resident without the Municipality, he has given the w-w mentioned in sec. 3 of this Act. 79 i: •?f '■!'■■ ( 626 THE MUNICIPAL MANUAL. [s. 16. owner alone, if the land is unoccupied, or against the owner and occupant, if such occupant is any other person than the owner. (I) 32 V. c. 36, a. 24. When owner ±Q. If the Owner of the land is not resident within the and'"* ™ Municipality, but resident within this Province, then, if the unknown. ]and is occupied, it shall be assessed in the name of and against the occupant and owner ; but if the land is not occu- pied, and the owner has not requested to be assessed therefor The assessor has no legal right to place on the roll tlic name of a non-resident owner merely becanse he is known to him. His rigbt to do so only arises when the latter has given the notice reiiuired l)y sec. 3 of this Act. See notes to that section. But in the case of a person residing in or having a legal domicile or place of business within the Municipality, his name, when known, may be placed on the roll. A man's place of residence may not be his domicile or place of business. There are cases in which place of abode and place (if business mean the same thing. See Haslopt v. Tliorni', 1 M. k S. 103 ; Alexander v. Milton, 2 C. & J. 424 ; RobeHs v. ]\ lUkirm, 2 C. M. & R. 561 ; Johnson v. Lord, M. & M. 444. But place of residence and place of business do not necessarily mean the same thing. Tk Queen v, Deujhton, 5 Q. B. 896 ; The Queen v. Coioard, l(i Q. B. 819 ; The Queen v. Hammond, 17 Q. B. 772 ; 27/e Queen v. Grujorij, 1 E. & B. 600 ; The Queen v. Sjtratleij, 6 E. & B. 363. (I) If the land be occupied the ''ccupant should be assessed. If not the owner, both he and the owner should be assessed. If unoc- cupied, then the owaier alone must be assessed. Occupation here meant is not simply possession as by a child, servant, or caretaker, but by a person having an interest of some kind in the lanu. The occu- pation need not be a personal one in this sense, that the occuiwuit should have his house on it. It will be enough if he have his house elsewhere in the Municipality, and so work it as to be vioilJy possessed of it. Bank of Toronto v. Fanninq, 17 Grant 514 ; ]\'m\(. v. Coulter, 25 U. C. Q. B. 177 ; see also Fru'er v. Bodenhcm, 19 b.T. N. S. 645. But merely sinking a post in the ground or some other trifling act of that character will not be sufficient to constitute occupation. Grayit v. Local Board of Oxford, 19 L. T. N. -S. 378. Where the occupation is necessary for the perfonnauce of ser- vices, and the occupi' r is required to reside on the premises in order t» perform the services, the occupation being strictly auxiliary to the performance of duties which the occupier must perform, the occupier IS a servant an(' ought not to be assessed. Hughes v, Ocermrn of the Parish of Chatham, 6 M. & G. 54 ; Dobson v. Jonei>, Ik, H- : Clark V. Overseers of the 2>ari8h of St. Mary Bury Ht. Edmm'ls \ C. B. N. S. 23 ; TJie Queen v. The Overseers of IVhaddon, L. K. 10 Q. B. 230 ; Fox v. Dalln/, I* R. 10 C. P. 285 ; SmUh et al. v. Om- ^eers of Seghill, L. R. 10 Q. B. 422 ; Attorney -General v. ?'/«?,»; Tontine Westminister Chambers Association Limited, L. II. 10E.x. 30j; White V. Maynard, 15 Am. 28. Occupant for non- resident owner may 1)0 awoBied as owner in certain cosei. a. 1", 18.1 ASSESSMENT OP OWNERS AND OCCUPANTS. 627 then it shall be assessed as land of a non-resident, (m) 32 V. c, 36,8. 25. 17. In the case of real jiroperty, owned by a person not resident within this Province, who lias not requiied ]m name 10 be entered on the assessment roll, then if the land is occupied it shall be assessed in the name of and against the occupant as such, and he shall be deemed the owner thereof for the piii-i)ose of imposing and collecting taxes upon and from the same land ; (a) but if the land is not occupied, and the owner has not requested to be assessed therefor, then it snail be assessed as land of a non-resident ; (o) and it shall not be necessaiy that the name of such non-resident or owner lie inserted in the assessment roll, but it shall be sufficient to mention therein the name of the repiited owner, or the words "Otmr UnkiiuwH," according to the Assessor's knowledge 01' information. 37 V. c. 19, s. 4. 18. Wlien land is assessed against both the owner and gj^ssed"* occuimnt, or owner and tenant, the Assessor shall {]>) place ajfuinst Ml names within brackets on the roll, and shall wiite ^gup'^^. When land may be aa- aesred as non-resi- dent. ((«) The meaning of this section is not free from «loubt. If la^id l« (iccupied, no donht it should he assessed in the name of the occu- lant. If unoccupied, and owned by a person living in the Munici- jiaiity wliere he is owner, it maybe assessed in his name. But iiunoccupied and owned by a non-resident, it can only be assessed ■n his name on hir. request in writing, .See note/ to sec. ,3, of this Act. This section provides that if the land be occupied " it shall be assessed in the name of and against the occupant and owner." The 'incstiou is, whether this is to l)e done where the owner is a non- widentof the Municipality, and has not requested his name to be mtereil on the roll. The Ian juage of the section is broad enough to WW all owners, whether resi.,4U; Cor if et al v. 'Uris- ""^ h R. 1 C. P. Div. 54 ; .S'. C, L. R. 2 Ap. Div. 2G2. '») ^e note I to sec. 15. J\ n>e only power to assess on the owner, as owner, when a non- fw^eut 18 on request. 8ee note /to sec. 3 of this Act. I J'n 1*""* <^f""phance with this section is not necessary to the ™iityoi an assessment. DeBlaquire v. Beeher et nl, 8. U. 0. C. „ "' ' ^I'-Qwen ex rel. Lnchford v. Frlzell, 9 U. C. L. J. N. S. 27. 1 "ie last mentioned case Mr. Dalton said, " The name of the defen- ' H / 1 4: f I »«■ -'fif': 628 Batepayor only to be counted ouee. THE MUNICIPAL MANUAL. [3 ]^ Opposite the name of the owner tlie letter " F," and opiiositt the name of tlie occupant or tenant the letter "H " or "T" and both nanics shall be numbered 011 the roll. (7) 3-' V r 36, s. 26. \iv - • • 2. No rate})aytr kIuiII be counted more than once in returns and lists recpiin d by law for mur'cii)al purposes, and the taxes may be reci)\eied from eith<;r the owner or occ\iiiaiit(ir from any future owner or occupant, siving his recuui'st against any other j)erson. («) 32 V. c. 30, s. 2U. W' dant is not set down under that of Henry Boweu and In-acketeil with it, nor is the assossnieut iigaiiist the defenthuit beparately miuibi-nil (Hi the roll. iSoine other ileviatioiis from the statutory torni will be oli served. The defendant's name however, is written in the genera! heading 'Names of Taxable Parties,' and that it was so written fur the pui pose of assessing him is known from otlier facts. Are these deviations, then, so essential as to render the assessment void? After examining tlie Knglish cases and onr own, as far us I have been referred to or ha\'e )ieen able to find them, 1 have come to tht conclusion that tlie assessment is good. It would certainly seem an extraordinary thing, considering the class that assessors must neces Barily come from, tl)at variances from the fonn of the assessment shoulil vitiate it." Mr. Dalton's decision was approved of and followed by the Court of Queen's Bench. Jn iv JohmoK o:i. .See further Monjan v. Parn/, 17 V. K. 'SU, ami Bnuii/itl V. Bniitn. s;H,_au:i •til V. OmlaOil, I L_ 3:c^'w ,a would lead one V .lone bemadehOK 19. When the land is owned or occupied by inoi*e persons When Und than one, and all their names are n;iven to tln^ As.se.ssor, they ",';^'ru'o'^ne™ jhall be assessed therefor in the proportions belonging to or '■'>»«» one. ixcupied by each respectively ; (/) and if a portion of the land HO situated is owned by parties who are non-resident, ;md who have not required their names to bo entered on the K\l{tt) the whole of the property shall be assessed in the names furnished to the Assessor as the names of tlie owners, saving the recoui-se of the jiei-sons whose names are so given against the others, (u) 32 V. c. 36, s. 27. 20. Eveiy farmer's son bona Jl\m. Ker and Bros. , " were the persons in whose names the pro- [«rties were rated. The Qiiren exrel. McGreijor v. Kw, 7 U. C. L. J. )> ; see further. The Queen ex rel. Lachford v. Frhdl, 9 U. C. L. J. •V^. 27. In n Johnwn and Lambton, 40 U. C. Q. B. 397. (") See note/ to 8. 3. (") See note « to 8. 13. I.) -i . I f,l' f J 630 If (lither living. THE MUNICIPAL MANUAL. U 20 1 . If the father is living, and either the father or mother is the owner of the furni, the Hon or Hons may he etiU'ied rated and assesaed, in resjiect of the farm, jointly with the father, and m if such father and 8(jn or sous were actually and bona Jide joint owners thereof. 2. If the father is dead, and tho mother is tlie owner of If fltthiT ftnnowliea ^^'^ farm, and a widow, the son or sons may be entered, rated by tho inothur. and assessed, in respect of the farm, as if he or they was or were actually and bona Jide an occupant or tenant, or joint Rer. Stat. c. occupants or tenants thereof, under the mother, and within 10, the meaninjr of " 17ie Election Act." '1-: : Farmer's Kon may require his name to be entered on assess- ment roll 03 joint owner. 3. Occasional or temporaiy absence from the farm for a time or times, not exceeding in the whole four months of the twelve months next })riov to the return of the roll })y the Assessor, shall not op(!rate to disentitle a son to W con- sidered bona Jide resident as aforesaid. 4. If there are mo^'e sons than one so resident, and if the farm is not rated and assessed at an amount sutKcieut, it' equally divided between them, to give a qualitication to vote at an election for a member of the Legislative Assenilily. ir at a municii)al election, to the father and all the sons, where the father is living, or to the sons alone where the father is dead and the mother is a widow, then the right to I'O assesseit under this Act shall l)elr)ng to and be the right only of the father and such of tho eldest or elder of said sons to whom the amount at which the farm is rated and asses-scil will, when equally divided between them, give a qualiticatioii so to vote. 5. If the amount at which the farm is so rated and assessed is insufficient, if equally divided between the father. if living, and one son, to give to each a quali fication so to vote, then the father shall be the only person entitled to be assessed in resj>ect of such farm. 40 V. c. 9, s. 2. 6. A farmer's son entitled to be assessed under any of the preceding provisions, may require nis name to be entered Aivi rated on the assessment roll as a joint or sej)ar;\te owner, occupant, or tenant of the farm, as the case may be ; ami such farmer's sou so entered .-^nd rated shall be liable in respect of such assessment tvs such owner, tenant, or occu- pant. 40 V. c. 9, s. 4. 21.] DEDUCTION OP TAXES FROM RENT. 631 InterprttU- tion. " Owner." ' Fam." 7. Wherever the following words occur in this section tLsy shall be interpreted na follows : (o) " Owner " shall signify proprietor in his own right or in the right of his wife, of an estate for life, or any greater entate, either legal or equiUible, except where the proprietor jg a willow, and in such latter case the word "owner" shall signify proprietor in her own right of any such estate. (i) "Farm" shall mean land actually occupied by the owner thereof, and not less in (quantity than twenty acres. (c) "Son," or "sons," or "farmer's son," shall, for the pur- "Son,'»4o, poses of this Act, mean any male person or persons not otherwise qualified to vote, and beuig the son or sons of an owner and actual occupant of a farm. ((/) " Election" shall mean an election for a member to the " Election." Legislative Assembly of this Province, or to a municipal Coun- cil, as the case may be. (e) "To vote" shall mean to vote at an ehiction. (/) "Father" shall include step-father. 40 V. c. 9, s. 1. 21. Any occupant may deduct from his rent any taxes paid by him, if the same could also have been i(!C0vered from the owner, or ])revious occupant, unless there is a special agieement between the occupant and the owner to the con- trary, (v) 32 V. c. 36, s. 28. " To vote." "Father." When tcnarta may deduct taxes from rent. (r) If the lease contain no provision as to the payment of taxes, it is the duty of the landlord, as owner of the land, to pay them. Dor, V. lJ(we, 18 U. C. C. P. 424 ; see further, Jiook v. Mcwr of Lhqml, 17 C.B.N. S. 240; and t>/i<'ffit'td Wala- WorLt Co., v. Bmtdl, L. 11. 7 Ex. 409. But if between the ow ner and the occu- pant there Ijc a special agreement to the contrary, of course there will not be the right to deduct taxes from rent. Defendant took a written agreement for a lease of cert lin premises?, which lease was nleut as to taxes, hut verbally agreed to pay thcni ; no Ic oc was ever executed, owing to a disagreement on another point. Defendant oc- cupied the premises for four years, pa;, ing taxes for three years with- out objection. When sued for rent subsequently accrued, he claimed to pet oft the taxes, on the ground tliat as the agreement made no provsion for theff", and coulu not be added to by verbal evidence, they nust fall on the landlord. Held that, having voluntarily made toe panueuts iu pursuance of his own agreement, even if it were without consideration, he could not recover back or set off such pay- ments. MfAmmn v. 2 ickdl, 2.3 U. C. Q.B. 499. It is not said in the Act wheu, or from (I'.iartcr or month, the occupant may deduct the taxes ^>i' It w ?■! j. m 632 THE MUNICIPAL iMANUAL, [fis. 22, 23. AnHOMorto 22. Tlio AHHos8or slmll write oijuonito tli(3 name of nn« uot« non- _ • 1 i !• I 1 I 1 • 1 . . . rcHidenU.if uon-rcHulent fivenildcr, wlio n'qimcs Iiih iiaiiio to b(! entered th3rol^' °° ^" *'"' *'"'^' ^^ lK'i<'inbetbi-o jn'ovidt'd, 0/.) in (;.,liimii ihhmIht three, tlio letters " X. Ji.," iiiitl tlio uddnisn of such five- lioldor. (x) 32 V. c. 36, h. 2U. How nroiKir- 23. Except in i ho case of iniuenil lands "acrciimftor uro- ly cBtiiiifttou* *iii* 1 1 I lilt ' vulod tor, real und persouiil projuMty sIihU ho cstimiitcl ut their actual cash vr.liu', as tlioy would Ix; )i](iir)iis('(l in mv. ment of a just debt from a solvent debtor, (ii) ;J2 V c fo s. 30. / • • . from his rent ; and under a sini.ilar en.ictuicnt iu Ijiglaiid it waslield that a tenant could .lot ocicnpy for iscvond yo;ir;i, p.iyiii" taxes ainl claim to deduct fi-mri his last 'juiirtur'.s roi't tlio wluili! iiiiiount of taxes paid l)y him d'aring the term. Sfuhh-i v. Par.^itiii, 3 H, k A\. 1)16. And our Act Iris iu one case received a tumilar (Miistnictiim, Wndi' V. T/iDiiij/ioii, ft. (t/., 8 U. ('■. L. J. 2'_'. An onliiiary IfsiSf, under the words in tlic statute, containing a covenant "t.> jiiy taxes," covers a .special r.U o created by aCJorpDmtion JJydaw, na wuU a.s other taxes, /n n Mh-I.h' ool, L. II. 9 Q. R84; The Queen V. Loiuloit ti: North Wvntera liailica;/ ('o. L. il. 9 Q. B. 134. It is, to a gre;it extent, a matter of opinion. The opiiiimis of men on such a subject are -"ery materially affected, more sn th;ui they are perhaps aware of by the point from whicli they cnnsiilcr it. A man who is impressed with a consideration of how naicli a thing is worth, %vill entertain a widely difi'erent opinion from hira who simply looks at it as a thing to he purchased ni expectatinn of profit, whether by the employment of it or selling it again. Pi-r Drajjer, C. J., in McQiini;/ v. The Unity Fire /.i.vuriiice Co., 9 U. C. C P. S8. Perhaps, after all, the best standard of value is that mentioned, in this section — -'actual cash value," sucli aa the property would be appraised "iu p.aymeut of a just debt from a solvent debtor." See further, notes to sec, 192. But it is no defence to an action for taxes, that the property was excessively rated. London v. Theilrmt \\(d- em Railway Co., 17 U. C. Q. B.' 2()7 ; see also, Xlc'iara FalU Sus- pension Bridge Co. v. Gardiner, 29 U. 0. Q. B. 194; gee further. .on.] VACANT LAND. 633 •I 111 estimating? the vahie of miiiovHl laiuls, hucIi lunds Mincnii m.l the buildings thereon Hhall be valued and oHtimated at *" *" the value of otlici" laiidH in the iieighlx)nihoud for agiicnl- tmal purpses, l)nt the inoonio derived from any mine or iiiiiifi-al woi'k.slmll be subject to taxation in the same manner iMjthci' incomos under this Act. (z) 33 V. c. 27, s. 5. 24. In nHsessing vacant ground, or gi'ound used as a farm, ^^'"'' •'"»" ^-nrilen, or nuisery, and not in immediate demand for btiild- vacant land, inj ])ur]ioseH, in Cities, Towns, or Villages, whether i^corpo- "JJi^i^^^J,*" nteJ or not, the vahu> (o) of such vacant or other ground shall i>e calculated ljt> tliat at which sales of it can he freely made, and where no " ' ""' * salt's can l»e reasonably expected during the current year, the A\Hes.sors shftll value such land a.s though it was held for fiiriuiiig or gnnlening purposes, with such per centage added thereto as the situation of the land reasonably calls for ; ml such vacant land, though surveyed into building lots, if imwld a:H such, may be entered on the assessnuint roll as so many acres of the original block or lot, describing the same k the ik'scription of the block or by the number of the lot iii4 concassion of the Township in which the same is situated, IS the case may be. (6) Jf'M'V Ditehand Harltonr H B. 445. lioiird V. Overseers of Birkenhrad, L, R. i:) A Statute of Pennsylvania provitleil that in addition to taxes ilaaily coUectulde, the owners of ore beds in a particular township, ihouij my to the supervisors of the woods, one and a half per eent tir each ton of ore received and carried away by teams over the nvids. It was held that the Statute was constitutional, and that the owner of an ore l^ed was bound to pay the tax, although he had leased the Ijeil. Weber v. Relnharil, 13 Am. 747. '•'i) " Tlie ([uestion of what ia the proper principle of valuation is fine extremely general in its application. It effects the pecuniary laterents of almoat every one, not exce]jting the Judges themselves, 10(1 we should therefore not go out of our way to express opinions Jponit." Per Robinson, C.J., in In re Dickson and Halt, 10 U. C. >j. B, 395, 398. (') This section in effect divides vacant land into two classes. 'ne class consists of lands of which sales can be reasonably expected wniig the current year ; the other class, of lands of which no sales can lie reasonably expected during the current year. Between the '»" there must be a diflference of value, and a difference in the mode '' ^'•essraent. The first is to be valued at the price at whicli sales an w freely made ; the second is to be valued as though held for j'^mening or farming purposes, with such per centage added thereto J* "'6 situation of the land may reasonably call for. Any construc- 'w of the Act which confounds these two classes abrogates the one 1 ' h 634 AiMowmuiit thorviif. Wbpn not held for riilo, but for KtiT' (leni, etc. Knllway eotnpniiios to furnlHh cur- tain state- meiitfl to clnrkH of muDlclpall- tiON. THE MI;NICII>AL MANUAL. [»«. 2.), jC 2. In fljich ciiMo, the m; >)«r and (Ipscription of ouch lut conripi-iHiDj; eivch Huoh block Khnll \m iiwerted in the nm^n- mnnt roll ; and each lot Bhall hu liable tor a )>roiH)rtiutiati' Hharo >in to value, and the amount of the taxt^s, if the proitcrtv M Hold tor arrears of iaxeH. (c) 32 V. c, 3G, h. 31. 25. V h(U) ground is not held fi>r the i»;n*])oseH of Kiilc.lmt h used, reference being had to its position and local advantages. Im* is to be done l)y assessing snch land, witli the residence or bmlilmi;. at a valuation which, at six per cent, per annum, would yieM a simi equal to the annual rental which, in the judgment of the as^e83ors. it is fairly and reasonably worth. See Dudman v. I >'jar, L \\. " H. L. 0. 212. (e) On or before, &c. See note y to sec. 240 of The Municipal Act. 1 26.] 8TATI::MENTS or RAILWAY COMPANIES. G35 stituto. .''i.'i- ,1. Tlio viicunt livjul not in nctual uh(» by tho Oompany, tiiil tilt' vhIuo thereof, us if liuUl fur fiirniing or ganleuing |iiiri>oHeH : And the f'lcrk of the Mutaci|)aUty shall coniniunicato Huch Duties o. sUU-mciit to the AnweKMor, who Hhall ilelivui- at, or trnnHniit thoMOD. hv \mt to, any Htation or offico of tho Company i nofico aililmsi'il to tht' Company of tho total amount at which he has assessed the nml j>rop('rty of tho C'ompany in his Mnnici- mlity or Ward, showing the amount for each ilescription of liin|)erty ui(!i)tio!UHl in the above Htatcnicnt of the Coni- mny; (/*) nml HUch Htat(unent and notice respctctively nhall beht'M to 1m» the statement and notice re(piire assessment Tlu Grcut U'eMi-ni Jiailwat/ Co. v. JioiM; 1.5 U. C. QB. 1(18; Lct'loH v. Vri'ut Wextn-n liaillrau Co., 17 U. C. Q. B. 2ii2; Twoiitu v. Great Western Rail wan ^'"■. S.l U. C. Q. B. 570. The assessment of the land must be according to the average value "I land in the locality. Great Wesltrn Jiailwai/ Cu. v. Feniinn, 8 It'. C. P. 221. kl) Tlie statement from the Railway Company to the Municipality Dwlnotlje in any particular form. Great We-Hfeni Jlailwaii Co. v. >'niu% 8 U. C. C. P. 221. And the delivery of the statement by we Assessor to the Company of the amount at which he htus assessed the re.-!! projwrty of the Company ia necessary, to enable the Com- P^'y, if diasatistied, to appeal. LotuJon v. Great Western Railway Co., J^L. U. Q. B. 500; XkholU et nl. v. Cumminq, 2.i U. C. C. P. 169. ,, omissiou of the Assessor to distinguish in his notice to a Railway ttinipaiiy between the value of the land occupied by the road, and i ti. '4 er . , i;' ^36 THE MUNICIPAl, MANUAL. [8. 27. m ■■' Proceedings 27. As regai'ds the lands of non-residents who have not 1" n"?e8icf8nt required their names to be entered la the roll, {h) the Assesao!-!} lands. shall i)roceed as follows : — JdhfroT'*" ^' "^^^'^ ^^^^^ insert such land in the roll separated from eepura^iy. the other assessments, and shall head the same as ^^Nnn-resi- dents' Land Assessments." (i) k^now'nTo be '^' ^^ *^^ ^'^"'^ ^^ "°* known to be subdivided into lots, it subdivided shall Ijc designated by its boundaries or other intelli"ible iato iot8. description. (J) " When 3. If it is known to be subdivided into lots, or is part of subdivided ° ^ traet known to be so subdivided, the Assessore shall into lots. designate the whole tract in the manner prescribed with regard to undivided tracts ; and, if they can obtain con-ect information of tlie subdivisions, they shall put down in the roll, and in a first column, all the unoccupied lots by their numbers and names alone, and without the names of the owners, beginning at the lowest number and proceeding in numerical order to the highest; in a second column, und opposite to the number of each lot, they shall set down the qufintity of laud therein liable to taxation ; in a third column, and opposite to the quantity, they shall set down the value of such quantity, and, if such* quantity is a full lot, it shall l)e sufficiently designated as such by its name or number, Imt if it is part of a lot, the part shall be designated in some other way whereby it may be known, (k) 32 V. c. 36, s. 34. their otlioi real property, as required by the Act, does not absolutely void the assessment. Grent Western Rallwaij Cc . v. Rogem, 27 U. C. Q. B. 214. It is only the subject of complaint to the Court of Revision. S. C. 29 U. C, Q. B. 245. {h) See sec. 3 of this Act, and notes thereto. (j) No action will lie for the recovery of taxes against a non-resi- dent who has not required his name to be entered on the roll See note /to sec. .S. The only remedy of the Municipality is against the land itself. Ih. ( ;■) If the land is not hioimi, ,! 638 Qos couipa- nies, etc. Pergonal pro- perty of partner- i^hips, how m ;k .1 If THE MUNICIPAL MANUAL. fg 30 held by him an part of his personal property, unless such stock is exempted by this Act. (o) 2. In Companies investing their means in gas works waterworks, plank and gravel roads, manufactories, hoteis' railways and tmm roads, harbours or other works requirinJ the investment of the whole or principal part of tlie stock in real estate already assessed for the purpose of carrying ou such business, the shareholders shall only be assessed ou the income derived from such investment, (p) 32 V. c. 36, s. 3G 30. The pei-sonal property of a partnershi|» shall be assessed against the firm at the usual pl.ice of business oftheparLiier- (o)^ Tlie gootls anil chattels of an incorporated company having its locality and existence without the Province, but wmeh gomls aud chattels are within the Province, are under the operation of this sec- tion exempt from taxation. Western of Vnnaila Oil LamU and Workx Co. V. The Corporation of the Towmhip of EniuskiUi-n, 28 U C. C. P. 1 (p) If the caxiital, or principal part of the capital stock he invested in real estate for the purpose of carrying ou the business, or for any other purpose, such real estate is subject to assessment, and being so, it is deemed fair that shareholders sliall only be assessed on the income derived from the investment. The Suspension Bridge across the Niagara River, between t le Province of Ontario aud State of New York, owned by a Comp.iuy, being real estate, was improperly assessed as personal estate. It was argued that it ought not to l)e assessed as real estate because the shares of the shareholders are lia1)le to taxation. But the Court refused to give eflfect to the argu- ment. Niiigara FnlU Suspension Briifije Co. v. Gardner, 21( U. C. tj. B. 194. Wilson J. in delivering judgment, said; "It was also said it woulu b i unfair to assess the bridge as real estate against the Company, becaase it is held by shareholders, and their a/tajv.* are l)y the statute assessable against them respectively as personal projicrty. and so the P;»me property would be twice taxed and paid for. Xo doubt this is so ; but we cannot help that. The land and erections are not less real estate because the interest of the owners in the same is rated as personal estate. The land is in the town of Clifton, where it should be rated and paid for. Where the shareholders are we do not know. There may not, so far as we judicially know, be one of them in the Province; or their shares may not be worth one farthing, aud may not be computed by them in the return made of their per- sonal property. But if it were otherwise, it could make no difference. for the reason against this property being assessed as land is quite as good a reason for the shares not being assessed as personal estate ; and so, if the argu'nent be good, it should escape taxation altogether. . . The 37th section of the Assessment Act (same section 29 of this Act) shews that this bridge should be considered as real estate, in which case, OS the pr-nciuaS part of the stock consists of real estate, the shareholders are ifable to be only assessed on the income derived from their investment. 76.199,200. PARTNERSHIP PROPERTY. 639 3.30.] jliin iq) and a pai'tner in his individual capacity shall not be and whore to aawlsable for his share of any pei-sonal property of the partner- ** "*««*. ship which b»8 already been assessed agaiust the lirni. V,c.36,8. 37. , ■ • ■ 32 •? If a partnership has more than one place of business, (r) Ai to part- each branch shall be assessed, as far as locality where it is situate, for that portion may be, in the having more of the pei-sonal '!»•» ""«, '■ busiiiesa lo- cality. (n) It is no easy matter to say where the usnal place of business of a partnership is, where the business is such that it cannot be con- ducted in one place, but necessarily in several places. Thus : Sup- wse a lumbenng firm having an office in Toronto, getting out logs (luring the winter in diflerent parts of the Province, rtoating the logs in sjiring in other parts of the Province, and in summer selling the logs in QuelxiC or at some other point out of the Province. The Lnsiness is that of getting ont logs and selling them at a prolit. It ii apnrtihended tliat the business ought to be said to be carried on fin where the principal office or head office is situate. In Taijlor v. J7/^ (.'mvlaml Oaa Co., II Ex. I, it was held that a Corporation d:i)ella where it fan'iw on its biuinenA. Iii Minor v. Loudon anil Xorth- \\ultm Railway Co., 1 C. B. N. S. 325, it was hehl that a Railway Compauj' does not carry on its business at a receiving house or book- ing office kept by an agent. In Shields v. Great Northern Railway Cu., 7 Jur. ^. S. 631, it was held that a Railway Company does not carrj- on bnsiiiess at any place other than its principal office at which its business is managed. In Broivn v. London and North- WeMern, Mkaij Co., 4 B. & S. 326, it was held that this means their general ksinesa— not where they carry on a part or even a material part of their business. See further, ^«/«j/h( v. Great Wentern JiailwaifCo., SOL J. Ex. 124 ; Mitchell v. Bender, 18 Jur. 430 ; MrMahon v. The IrJiXorth ]Ve.tter;, Hallway Co., 19 W. R. 212; Ahrena v. McGil- i/ii/, The Grand Trunk Railway Co., yarnliheea, 23 U. 0. O. P. 171. h Ex parte Charles, L. R. 13 Eq. 038, where manufactuiers of steel Mil nther articles at Sheffield, who rented *ensation at the i)lace where he performs such duties, and he &}iall not be assessable therefor at his place of residence, (x) but, if required, shall jiroctu-e a cei-tificate of being otherwise assessed under tlie provisions of this section : but this section shall not apply to County municipal officers. 37 V. c. 19, s. 6. 34. The peraonal property of a pei-son not resident witliin this Province, shall be assessed in the name of and against any agent, trustee or other person who is in the control or possession thereof, and chall be deemed to be the individuii! pi'operty of such agent, trustee or other person, for all objects within this Act. (y) 37 V. c. 19, s. 5. 35. In case of personal property, owned or possessed by or under the control of more than one peraon resident (o) in tlie Municipality or Ward, each shall be assessed for his share only, or if they hold in a representative character, (h) then each shall be assessed for an equal portion only, (c) 32 V. c. 36, s. 43. JohiiKfon, 7 U. C. L. J. 4G. So where the appellant, whose residence waa Loiulon, though in the Village of St. Thomas at the time of the assessment, waa only temporarily there for the purpose of winding up the business of an agency of the Bank of Montreal at that place, it was held that he could not be taxed on his income in St. Thomas. In re Ashwort/i, 7 U. C. L. J, 47. So where a farmer, resident of Vienna, having taken a house at IngersoU, in another ManicipaHty, whither the greater part of his household eflfects had been removetl, and most of his family resided at the time of the assessment, although he temporarily remained and slept in his former domicile during the night, it was held that he could not be legally assessed iu \ anna. Afarr v. Vienna, 10 U. C. L. J. 275. {x) The intention of the Act is that a person holding an office or having a place of business shall, for personal property, be assessed at the place where the office or place of business is situate, and not at his place of residence. See note t to sec. 31. This section is m affirmance of that principle. (y) See note d to sec. 36. (o) Resident, &c. See note to to sec. 32 of this Act, (&) See note d to sec. 36 of this Act. (c) This apparently intends the assessment to be separate as to S.36.] TRUST PROPERTY. 643 36. Personal property in the sole possession or imder the Cases of ex- sole control of ".ny person as trustee, guardian, executor or *'="*''"'» '^' administrator, shall be assessed against such person alone. (,/) 32 V. c. 36, s. 42. 2, Where a person is assessed as trustee, guardian, executor or administrator, he shall be assessed as such, (e) with tlie addition to his name of his representative character, and such iiisessiuent shall be carried out in a separate line from his individual assessment, ( f) and he shall be assessed for the Parties m- sesMd ai trustees, etc.. to have their repre- sentative character attached to their names. each ; each to be assessed for an etjual portion onli/. Why this should be so, it is difficult to understand. It inr.y be in case of the persona .Tssessed. See note >l, hi/ra. If all were jointly aesessed, then each would 1)6 severally as well as jointly liable for the whole amount of the assessment. But where each is only assessed " for a portion, " each must be discharged on payment of the taxes for that portion. {il) Trustees, guardians, executors and administrators are supposed tij liave the means of reimbursing themselves out of the estate moneys paid for taxes. Though described on the roll in their repre sensitive capacity it would seem that tbey are persontally li.ible for the payment of taxes. "It may, no doubt, operate hardly, but Lot iiuire so than the seizure of any other person's goods which may happen to be in the possession of the person assessed." Per Kobinaon C. J., in Dcnulson v. Ilvnrif, 17 U. C. Q. B. 276. So a l>ersoii appearing upon the books of a liauk as the legitl holder of ita shares is, upon the failure of the bank, held liable for the debts of the Ittuk to the extent of the shares held by him, although he re- ciived and holds the shares as collateral security for a loan to a !hareh(Jder or otherwise in trust. See Crcnme et at v. Bahcock et al., 10 Met. (Mass.) 525; Grew v. Breed et nl., 10 Met. (Mass.) 369; Mih-hix. Storm, ({ Hill. (N. Y.) 024; Ito>re left by a resident of the State of New York in tlie State of ^tnnnntinthe hands of the agtut for management, collection, and "vestment that they might be properly assessed in Vermont. But '■^ llMtd'v. Board of Snpervkors, 11 Am. 1.32, it was held that M'here i resilient of Iowa had deposited for safe keeping in Illinois promisory ""tc's collected by himself in Iowa that they were liable to assessment in Iowa. M See note (/to sec. 34. 1 ' ) An administrator, though assessed in his own name for real j1 my •: V> 614 .■I'' .?-' v PartleulBrs respecting real prope;'ty to bedc- llTcred to aampRorf) in vritlin ly thp parties to b« iissetjg- Btatements given by parti OS not THK MUNICIPAL MANUAL. [ss. 37, 33. value of the real and personal estate held by him, wlifitlicr in luH individual name, or in conjunction with others in siicli representative character, at the full value thereof, >,■ for tue l)ro])ev proportion thereof, if others resident within tl;e Mime Municipality are joined with him in such represeiititivo character, (g) 32 V. c. 36, s. 44. O'enerdl I'l-ovi/iions. 37. It shall be the duty of every jierson a&sessal)le forrtnl or pei-sonal proi)erty in uny local ^Municipaliiy, to f^'ivc all necessary inA)rnu\tion to the As.-^essors, nnd if rc(|uiru(l Lvtlit; As.sossor, or by one ')f the A.ssessors if there is more tlmu one, he shall deliver to him a sttiti'inent iii writiuf,', sii,'ii(h1 Iv such person (or by his agent, if the jieison himself is aUseut,) containing all the particidars respecting the real oi- per.soniil property assessable against such person, which are requiroil in the assessment roll ; and if any reasonable douljt is enter- tained by the Assessor, of the correctness of any infoiniiitidii given by the pai-ty applied to, the Assesfjorshall require from 1 " n such written statement. (/) 32 "V. c. 36, s. 45. 38. No such statement shall bind the Assessor, or excuse him from making due enquiry to ascertain its correctness ; (/.) property l)elongiii^ to tho estate, cannot qualify upon it as a inuialir of the Council. Thf Queen ex rel. iSlock v. Dam, 3 U. C. L, .1. I'JS. {,'/) It la (juite plain from the reading of this section th;it there ought to le 110 confusion between the asbcsbincut of property bciuiig- ing to a man in his own right, aiul that which he holds in a represen- tative capacity. When holiling property in tli'i latter capacity, he is to be asses8eelf is aljsent) CA)ntainiiienalties upon summary conviction before a Justice of the Peace, 32 V. c. 3G, s. 47. 40. To prevent the creatior" of false votes, where any per- snn claims to be assessed, or cknms that any other per.son fhvM be a.ssessed; as owner or occupant of any parcel of Itindlng on asMMort. Penalty for no ((iviDK dtnteincct or making fiilse stat^ inunt. AssosBor to mnke tn- (|ulriea be- fore aflsesa- ing persons or to be irtherwise satisfiud of ita correctness. The receipt of the .«t;ittii),iit is luit iutciulcd to be a substitute for but an aid to diligence liv tlu Assessor. (') ' "lie Asse.siior is to make such an assessment as he believes to be just HI nl coivect. Some men, owning assessable property, may de- sire tc be assesseil at too small a simi, in order to escape taxation. i|tlier;i, having pioperty, but not of sufficient value to qualify vhem either r.« Councillors or voters, may desire to be assessed at too large .iM aiiiiunt, in order either to be a candidate for office or a duly i|u:ilific;l voter. Others, having no assessable property of any kinil, may, for either of the purposes last mentioned, desire to be assessed fir property when they ought not to be assessed at all. It is the iltity of the Assessor to be astute in preventing erroneous assessments, irom whatever cause designed. ('») The penalty of twenty dollars may be enforced in case of — 1. Failure to deliver the loritten statement when rc(piired by the Assessor ; 2. Kiiowimjli/ stating therein inytMmjfalm therein. The written statement is onl/ to be delivered when required by the Assessor. If he have ve^isonable doubt as to the correctness of «rbij information given to him, it is his duty to require the written Statement. 8ee note i to sec. 37. The latter should of course, be as jifar y as possible a true statement. It is intended to be acteil upon iiy ^he Assessor, and may mislead him, to the advantage of the per- Mn giving it. Hence the imposition of a penalty for the giving of a «'f'«3/i/ false statement. $ \ :• iui t I J 6iG clalmJnK tn bu MflCS.'M.'d. AiwdHorH to give hotirf to partien of the TaluH ut which tliuir proi'erty ossvasud. pu THE MUNICIPAL MANUAL. h 41. liind, or ns posHes.sing tlio income wliicli ontitlos Mm to vott- Ml tho Municipality at iiny election, and t!ie AHsraior \m reason to sn.si)ect that the person ho clainiinj,', or for whom the chiim is nuule, lias not a just rif,'ht to he ho asHCHscd it nhall he the duty of the Assesaor to nmke roasonahle Hinnii- riea before UHsessing such jtcrHon. (m) 39 Y, c. 11, s. I'H. ,Si:e aho lie v. iitat. c. D, 8. 2U. 41. Every Assessor, before the completion of his roll, .shiill leave for every i)arty named thereon, resident or iloniiciltil, or havint,' a place of business within the Municiiialitv, und shall ti-unsniit by jjost to every non-resident who hus n'(|iiii(ii his \v,\\\w to be enUned thereon, and furnish»Hl his iKlilrcss to the Clerk, a notice of the sinn at which his real and |i('ii> jixtl] sections, every AsseHsor shall begin to n>ako his roll in '^""oj!*" '* Mch vear not later than the fifteenth day of February, and pioted. shall toinplete the same on or before tho thirtieth day of April, (/•) and shall attach thereto a certificate signed by without any further or other notice being served on them thoy were aittred on the ftssesament roll as tinidly re vised Ijy the Court of Ito- visimi fur ;?43,400, the Ccmrt of Common I'leas lield that thoy were Dot liable tu l)ti taxed on the last named sum. This deitision was reversed l)y the Court of Appeal in .S". C. 2G U. C. C. P. 323, but the littor was in it» turn reversed, and the decision of the Common Pktu reatorud by the Supreme Court of Canada and the Superior Court, lb. 395. (r) hi each year every Assessor must now begin to make hia roll not later than the fifteenth day of February, and nmat complete tho same on or ))efore the thirtieth day of April, luid on tlie first day of May, must deliver the completed roll to the Clerk of the Munici- jiality, witii tlie certiticaten and affidavits requiruil by Law attached. Sec. 43. Tlie duty, so far as the Assessors arn concerned, to make ami complete tlie rolls l)y tho d.ays fixed for the purpose, is impera- tive. See note (/ to sec. 240 of the Municip.il Act. One reason for itk'iiig so in the case of Assessors is, that jiersons desirous of appeal- ii'i,' irnm their as.sessnients arc only allowed fourteen days — not after tl. return of the roll, but *' ajicr thv t'liiw fixed for the rcfitrn of t/if ■'■',"— to give notice of appeal. Sec. ')(), sub. 2 of this Act. If an .V essiir delay to return his roll for several (lays after the ti||iie fixed i(/i the return of his roll, he abridges by so many days the time allowed liy the stiitute for giving notice of appeal against his assessments. 'l the delay he the result of irilfid omission on the part of the Asses- sor, he is made liable upon conviction — 1. Toa./iHc not exceeding $'?00, and to impiis(mment until the fine lie p.ild, in the common gaol for a period not exceed '< ^ six months. -. Or, to both fine and imprisonment, in the dis, ..i .»n of the C'jurt. See sec. 191 of this Act. But if the deLiy be the result of o//ier than willful omission, still the Asses.sor is liable to forfeit such sum as the Court shall order Mil adjudge not exceeding $100. See sec. 189 of tliis Act. But the no:i-return of the roll by the day named does not invali- date the assessment. Nickle. v. JJuHjla><, 35 U. C. Q. B. 126 ; T/ie ^»-'-n V. Intjull, L. R. 2 Q. B. Div. 199. See further note ;/ to sec. 240 of Tlie Municipal Act. If there be a change of occupancy, and the isseMiir have notice of it, he may before the return of the roll make » corresponding alteration on the roll. In re McCiilluch and the ^""nt^j Ju,l,,e of LmU and Unnv'dle, 35 U. C. Q. B. 449. 4. I •■ i!'- n m I n 048 CortiflestA attached to roll. THE MUNICIl'AL MANUAL. [g. 40 him, and verified ui)on outh or nfiirmation in tlie form follow- ing :(») " I do certify {f) tlmt I have set ilown in the niMivo agicMiiiciit m1| "all the real property liaMo to taxation Hituate in thu Miiiiici|inlity " (or Wanl) of {iixl/ir rune hkii/ hi) and the true actual value tlitrwif in "each case, according to the iHJst of my information nnd juilutntnt- " And alHo that thu said asiiesBntunt roll contains a true Rtntcmint nf •'the aggregate omount of the iHirsonal proi)crty, or of the taxable "income, ot every party named cm the aaid roll; and that I have " eatimated anil set down the same afcordiiig to the l)t'8t of my infnr " mation and lielief ; and I further certify, that 1 have entered tlifrecii " the names of all the resident houscijolders, tenantnaud freelidldera "and of all other jjersons who have required their names to lie en' " tered thereon, with the trne amount of property occupiecl or owned, "or of income received by each, and tliat I have not entered the " name of any person whom I tlo not truly believe to Ikj a Ikhibc- " holder, tenant or freeholder, or the iKnuijidf occupier or owner nf "the property, or in receipt of the income set down opiiosite his " name, for his own use and benefit ; and that the date of deiivory " or transmitting the notice, renniretl by section forty-one of The *• AMeHniiiPid Act in every case truly and correctly stated in tlie said " roll ; and I further certify and swear (or affirm, nK tlw cdsf iimiili*] "that I have not entered the name of any person at too low a rate in " order to deprive such person of a vote, or at too high a rate in order " to give such person a vote, or for any other reason whatever ; and " that the amount for which each such person is asHessed uiHin tliu " said roll truly and correctly appears in tlie said notice delivered ur " transmitted to him as aforesaid." 32 V. c. 3G, s. 49 ; 36 V. c. 2, s. 4 ; 37 V. c. 19, .s. 8, 40 V. c. 8, s. 55. («) The duty of Assessors is not only to return 'he roll I)y the time limited for the purpose, but before doing so to attach thereto a certificate signed by them respectively, (iml verified upon oath or affirmation in the form given. .See note n to sec. .320 of The Muni- cipal Act. The omission of the certificate does not invalidate the assessment. See note p to sec. 18. (0 Tlie certificate, it will be observed, embraces the following points : 1. That the Assessor set down in the roll rd! the real iirnperty liable to taxation situate in the Miuiicipality or Ward {»* Oif case may be. ) 2. That he set down the fnta ncfiinl raUie thereof in each case. according to the best of his information and judgment. 3. That the roll contains a tnie statement of the cujumjati' nmtint of the pemoual property, or of the taxable ineume, of trern party named on the roll. 4. That he has estimated and set down the same according to the best of his information and belief. ^ces the following i, 43,1 nKMVERY OP A8«K8ftMENT ROLLS TO fT.KHK. 649 43. Every AnReRRor Hlinll, on or Iwforo tlie fii-st day of AK*«Mninnt Mm, deliver to the Clerk of tlie Miinicipality hiuOi ii.sNeMs- ',"|'|Jewd*to nieiitntll, completed and ndded up, with the certifinitcH and ciurknof affidiivitH ftttnclied ; (n) and the Clerk Hhall irnniediutdy upon iie1"uta* the receipt of the roll, file the Hanie in his office, and the same shall, at all convenient ofKce liourH, be optiu to tlu' inspection of all the houBeholdera, tenantH, freeholdeis and income 5, That he entered thereon the nnmcs of nil the resident hoimc- hoMen, tonanta and freehciMera, and of all ofhft' porsoiiH who hftvo rcijuired their namoa to he entered thereon, witli the true amount of property occupied or owned, or of tho income rtceivetl, hy eacJi. 6, That ho has not entered the name of tiny person whom iio did not Irnhi hi'Herc to be a householder, tenant or fnuiholdcr, or the Imna fide occupier or owner of tlie property, or in receipt of the income, set down opposite his name for his own use and lienctit. ". That the date of delivery or transmitting tho notice required l)y section 41 of the Assessment Act ia in every case tri«i and (orrcrllii utaffd in the roll. 8. That he has not entered the name of any person at too low a rate in order to deprive such person of a vote, or at too high a rate in order to give such person a vote, or for any ot/ier / reason whatever. 9. Th>.t the amount for which each auch person is assessed upon the said roll tnily and correctly appears in the notice de- livered or transmitted to him. In the case of Hm^hmere 1 Sommers' Tracts, 374, IfiSO, it M'aa said that "tho making of votes by such means (fraudulent tleuds) was a very evil and unlawful thing, and tended to the destruction of the Government and debauching of Parliament," and that "it was •".■.;Ioss 10 thinR bu .1. practices were part of the constitution of our fiovemment, or to imagine that persons whom wo entrust with f)ur lives and fortunes ought to be made and chosen by such evil devices." i^eel Peck well 319. In England at least two statutes have been wed to prevent the makmg of conveyances for such purposes. These are the statutes 7 & 8 Will. III. cap. 25, sec. 7, and 10 Anne «p. 23. But notwithstanding both these statutes, it was held that conveyance of land by one vendor to several vendees for a hoiidjide consideration is valid, although the avowed object of the vendor was t« multiply votes, and that of the vendees to acquire the right of foting. Akxnnder v. Xewvimi, 2 C. B. 122. Whether or not there » a fraud in the making of t!;e grant is a question of fact, which must in all cases be decided by the Revising Court. Xricion v. Wjtrlji, lb. 203. ('') It is hy the previous section made the duty of Assessors ' ' to mt and compkte" their rolls by a day fixed for the purpose. Here uT^^ tlieir duty to deliver to the Clerk the assessment roll com- pleted and added up, with the certificates and affidavits attached, ^notect. 3ec. 42of thisAct. 82 ; "'f ■ 650 THE MUNICIPAL MANUAL. [i4' votei-s resident, owning or in possession of proiierty, or in receipt of incomes in tlie Municipality. {«) 32 V. c. 36 s. 50 • Special 2»'ovmon8 relating to Counties, Cities, Toicns ani{ Villages. Time for 44. tn Cities and Towns separate from tlie County, the S^ment Coimcil, instead of being bound by ti.e periods above men •°d "''^'"B tioned for taking the assessment, and by the periods named cities, &c. for tJie revision of tlie rolls by the Court of Revision, ami l)v the County Judg(?, may pass by-laws for regidating the above periods, as follows, (lo) that is to say : — For taking tlie as.ses.s ment between the first day of July and the thirtieth tlav of September, the rolls being returnable in such case to tl:e i'itv or Town Clerk on the first day of October ; and in siicli case the time for closing the Court of Revision shall be the fifteontlj day of November, and for final retuin by the Judge of the County Court the tliiity -first day of December; and the assessment so made and concluded may be adopted bv the Council of the following year as the assessment on which the rate of taxation for said following year shall be levied, and in tlie year following the passing of the by-law, the Council may .idopt the assessment of tluj pi'eceding year us the basi? of the assessment of that year. 39 V. c. 33, s. 1 (2). {(') One object of tho delivery of the roll to the Clerk, so far as this scotiou is concerned, is that the same may be fileil airlopent" the inspection of jvll tlic lioiiseholders and freehoMei-s resident or owning property in the Miuiicipality. See The Kiinj v. AninM, 4 A. & K. ()u7 ; T/ic Queen v. Blayye, 10 Jur. 983. This is in order tc eual)le the persons designated, to examine the roll, and if not found correct to appeal against the same in the manner directed and within the time limited for the purpose. Sec. 56. The Court or a Judge ii» doubt would, on a proper application, grant a maiuhiuK^ to any householder, tenant or freeliolder resident, owning or in iM)sseiisi"n of property in the Municipality, who, at a proper time and in a {ir) The periods for taking the assessment and for the revision oi the rolls, are as a rule Hxed, l)ut thia section authorizes exception* in the case of Cities and Towns separate from tiie County. The Councils of those Municipalities have tht power within certain hunts, to regulate tho periods for the services named. » 45-47.] COURT OP REVISION. 651 45. In Cities, Towns and incoii»oratecl Villages, the Conn- p»yinent of ril may further pass by-laws for making the taxes payable |^"^^^t|,°' tothe Treasurer by instalments ; and may in such case impose jniulilitional pr centage, now applicable to default of taxes if m\ in bulk, on default in any of the instalments in which tie same may be made payable, (x) 39 V. c. 33, s. 1. (3) 46. County Councils may pass by-laws for taking the Cormty assessment in Towns, Townshijjs and incori)Oiate(l Villages, p^°^y.i'^^*g between the first day of February and the first day of July. {>/) for reguiat- 2. If any such by-law extends the time for making and wssment, &c! completing the assessment rolls beyond the tii-st day of May, then the time for closing the Court of Revision slmll be six weeks from the day to which such time is extended, and for filial return by the Judge of the County, twelve weeks from tliatday. (2) 39 V. c. 33, s. 2. COURT OF REVISION AND APPEAL. 47. If the Council of the Municipality (a) consists of not wiien Bore than five members, such fi\ of Revision for the Municipality more than five members, such hve menibei"s shall be the Court ^'j congisu 32 V. c. 36, s. 01. bers only. (/) This, if fairly carried out, will be found a convenience to the t ipayer. The prompt payment of the instalments may Ve made a i^ndition precedent to the enjoyment of the privilege intended to be wnferreJ. Besides, it is in the power of the Municipal Council to impose a per centage on default of payment of any of the instal- mtuts. This may be a per centage " additional " to that now ipplicahle to default of payment of taxes if payable in bulk. i'j] This is an exception to the general rule. See note w to sec. 44. (:) See note r to sec. 42. (1) By the B. N. A. Act, sec. 92, sub. 14, tlie power to make laws inrtlation to the administration of justice in the Province, including the constitution, maintenance and organization of Provincial Couits, wth of civil and criminal jurisdiction, is vested exclusively in the ugisiature of the Province. It is competent to the Provincial wpslature to provide for the establishment of inferior Courts, and to invest them with such jurisdiction and powers as may be tleemed «ipeWa, 16 111. 484- Memjlifr v. Cotinty. 5 Nev, 244. Biit inferior tribunals so con- stituted are to be restricted to the jurisdiction and to the ex- ercise of the powers expressly given or neceassarily implied. Z^Mm V. CharleHton, 1 Bay. (S. C.) 382 ; People v. Slnughfer, 2 Dou' (Mich.) 334. The section here annotated makes provision for a Court of Revision, so called because it is its duty, on proper application, to revise the assessment rolls in each local Municipal- ity. If the Council consists of not more than five members, md membei-s shall be the Court of Bevision. If of more than five mem hers, then, by the next section, the Council is to appint five of its members to be the Court of Revision. The jurisdiction of the Court is, by sec. 53, "to try all complaints in regard to persons wrongfully {daced upon or omitted from the roll, or assessed at too high or tno ow a sum." Whatever fairly comes under this language is within the jurisdiction of the Court. The roll as finally passed by the Court is, except as to cases appealed, and for wliich special provision is made (sec. 59,) to be valid, and bind all parties concerned, notwith- standing any defect or error committed in or witli regard to the roll. Sec. 57 of this Act. It is only, however, to be so held as to matters within the jurisdiction of the Court. If the subject matter of com plaint be within the jurisdiction of the Court, the party concenieil must appeal to the Court, and has no other remedy. See Milinnl V. Coffiu, 2 W. Bl. 1330 ; Wilxoii v. Weikr, 1 B. & B. 57 ; Tlx Km; V. H'ukuH, 6 T. R. 583 ; Cmnmonwealth v. Leech, 44 Pa. St. 332; h re Canal and Walker Street- 12 N. Y. 40C ; Tlie Khuj v. Mwi'ir of JirUh/ewater, 6 A. & E. 339 ; Ex parte Lee, 7 A. & K. 139; TheQtm V. Poole, II). 738 ; The Queen v. Mayor of Xorwich, 8 A. * L ()33 ; The Queen v. Lords of the Treamry, 10 A. & E. 374; A&h v. Sharpe, 2 Ex. 352 ; The Queen v. Mayor of Nondch, 3 Q. B. 2S5; Churchwardens of Birmingham v. Shaw, 10 Q. B. 868 ; Pnllen v. Davis, 10 C. B. N. S. 492 ; Scragge v. London, 26 U. C. Q. B. 2()3; Niagara FalU Suxpcnmm Brid(fe Co. v. Gardner, 29 U. C. Q. B. 194: Barton v. Piggott, L. R. 10 Q.'B. 8(5. The Stat. 43 Eliz. cap. 2, sec. 1, enabled the overseers of every parish to raise, weekly or other wise, by taxation of every inhabitant, &c. , and of every occupitr ot lands, &c., competent sums of money for and towards the necessarj- relief of the lame, impotent, old, &c. By sec. 6 an appeal was given to the Court of Sessions in these words : "That if any person or persons shall find themselves grieved with any sesx or tax or othr att done by the said Churcli wardens, &c., that then it shall k lawful for the Justices of the Peace, at their General Quarter Sessions, 4c., to take order therein as to them shall be thouglit convenient, and the same to conclude and bind all the parties." In Milward v. CopW. W. Bl. 1330, the Court said that all that related to the assessment land net in the occupation of the plaintifif was coram nonjuilice,m the determination of the Justice's a nulity. This case was upheld m Fletcher v. Wilkinx, 6 East. 285, 286, and Hurrell v. Wid; 8 Taunt :i69 ; The King v. WeU>ank, 4M. & S. 222. In Martthally. P>tmii, 9Bing. 595, the Court said that if the person aggrieved were an inhabitant possessing visible property, he was liable to be placed on the rate, although his ratable property turn out afterwards to amount M] COURT OP REVISION. 653 to nothing ; anJ that his only remedy in such case was an appeal to the Justices. The contrary is the rule if the subject matter of the eomplaint be one over which the Court has no jurisdiction. See Orothiflty. Barioelf, I Ld. Kayd. 471 ; IVeaver v. Price, 3 B. &, Ad. 409 • Goveniorn o/Brutot Poor v. Wait, 1 A. & E. 264 ; C'harleton v. j/imy, HA. & K. 993; The Queen v. ^fayor, 7ta(«, 21 U. C. Q. B. 432 ; Shaw v. Shaw, 12 U. C. C. P. 45*). By 43 Geo. III. cap. 99, the laws reLatiny to the duties under the management of the commissioners for the affairs of taxes were con- solidated. It provideil for the appointment of assessors, and by seu. 24 gave an appeal to any person who should think himself "otrr- (krtjKl OT overrated hy miy assessment or surcharge," &c.; but by sees. 69 and 70 of 43 Geo. III., cap. 161, the right of appeal was extended to " any astesmnent." This was held to include the case of I person claiming exemption and otherwise wrongly assessed. Allan j.Sharpe,2Ex. 352; 3ee further, Pedley v. Damn, 10 C. B. N. (S. {91. The words used as to the jurisdiction of Courts of Revision in this Act are sultstantially the same as used in 16 Vict. cap. 182, sees. 'J6-28. The question was raised at a very early period as to whether persons claiming to be exempt from assessment, or whose assess- ment was otherwise illegal, were bound to appeal to the Courts of Revision; in other words, whether the Courts of Revision y jurisdiction to try such a subject matter of complaint. In n. There was no complanit IB this caao that the name of the Compaay was "wrongfully inserted on the roll." The complaint was that it was inserted on the roll for pwptrty that was exempt from taxation, and -hs Court held that m was not a case of overcharge within the meaning of the Act. In tefcnv. Great Western Railway Co., 17 U. C. Q. B. 262, Sir John Ocbmson, referring to Milward v. Coffin, 2 W. Bl. USO. And '.'drfo« V. AUmty, 11 A. & E. 993, said that "when that has been »««e»cry different one as to its consequences from that of a mere ucer- nlmim;" and Burns, J., referring to Milward v. Coffin, 2 W. Bl. 1330; Mardall v. Pitman, 9 Bing. 595 ; Governorn of Bristol Poor v. *< 1 A. k E. 264, was more explicit, and said, " The distinction *« it is necessary to appeal, and where the claim may be resisted ''if' i m <354 THE MUNICIPAL MAKUAL. [8.47. fl' IJk It 1 'J by action of trespass or replevin, is this : if the power existed to make the axxemnHent., then tnere is a jurisdiction in those doing it nnd in such C(iKe the remedy is by appeal only. But if the asseag' ment be Uleijnl, then there is no jurisdiction to do it, and in mch caiw the person resisting is not compelled to resort to the remedy of appeal, but may resist the illegal exaction If jKople were obliged to submit to an arbitrary mode of making the assess- meat, and so compelled to go to the Court of Revision for redress rather than take the opinion of the Law Courts on the illegal act of the Assessor, it might lead to great inconvenience and hardsiiiu, Iwsides holding the door open to injustice being perpetrated liy the Assessors ; and as the rolls are revised by a Court of Revision formed from members of the Council, they should not adopt an illegal assessment. . . . I do not think the Assessor could drive the defendants to the Court of Revision as a matter of necessity by call ing that land which was not land." In Shaw v. Shaw, 21 U. ('. Q. B. 432, 437, Sir J. B. Robinson said, " If the property mh exempt from assessment by statute, there was no necessity for going to the Court of Revision in order to have their decision on the iwiut. as the cases of At'dward v. Coffin, 2 \V. Bl. 1330, and Charkltm v. Allway, 11 A. & E.993, fully establish." In Shaw v. Shaw, 12 U. I'. C. P. 456, 459, Mr. Justice Morrison, then a Judge of that I'ourt, in giving judgment said, " The property in question (property in the occupation of the Crown) not being taxable property, was wrongly inserted on the roll, and being specifically exempt by the statute Trom taxation, the unauthorized assessment of it could not render it liable to taxation, or give JurMlciion to the Court of JtevMun. It was a mere nullity, &c. . . . There is nothing in the statute to show, or which can be construed as showing, that property so exempt should become liable to taxation from the fact of the Assessor assess- ing the property or insertintr it on the roll." Up to this jwint Iwth the Common Law Courts held that property exempt from taxation could not be taxed, and that neither the Court of Revision nor the County Judge had power under the words used in the Act to adju- dicate on such a ((uestion. But in Toronto v. Great Weittern llai'mij Co., 25 U. C. Q. B. 570, where the question sought to lie hroujjht before the Court was as to the eflfect of the Court of Revision and County Judge upholding an assessment of the superstructure of a railway, which by law is exempt from taxation. Draper, C. J., said, "As to the question itself, as at present atl vised, we do not think it would be found to present any great difficulty. If the Assessors had put the two annual values (the roadway and super structure were separately assessed) as forming the whole valuation of the laud, though there mlijht have been an appeal to the County Judge on the question of cccemim valuation, and he must have confirmed or reduced it, we do not see how, muler the statute, his decision could have been brought in question." This was certainly, so far as the case can be taken as a decision of any kind, a j^^^^^^ at variance withZowrfowv. Great Western Railway Co., ITU.C.y.B. 202, where Bums, J. said in a similar case, "I do not think tie Assessor could drive the defendant to the Court of Revision by all ing that land which was not land," &c., and the cases following it, including Shaw v. Shaw, 12 U. C. C. P. 468 Mr. Justice Morrison, who delivered the judgment of the Court of Common Pleas in Wi«"' SI gs, 48, 49 ] COURT OP REVISION. 655 48. If the Council consists of more than five members, When of such Council shall apjwint five of its members to be the ^y^ **'"' Court of Revision, (ft) 32 V. c. 36, s. 52. 49. Every member of the Court of Revision, before enter- Oath«of ing upon his duties, shall take and subscribe, before the Clerk co ™t " Re- of the Municipality, the following oath (or alHrmation in ''■'<>«'• cases where by law affirmation is allowed) : — (c) "I , do solemnly swear {or affirm) that I will, to the best "of my judgment and ability, and without fear, favour or par- "tiality, honestly deci>m(/7 V. London was appealed to the Court of Appeal, and though the point was one of the grounds of appeal, and argued in the Court ^'f Appeal in the hope that that Court would settle the law on this very important point, yet the following is the only note either of the irgumentor the judgment of the Court on the point : " It was con- tended also that the decision of the Court of Revision was final, as lietermined by the Court below ; but tlie argument on this point is "Diitted, as the judgment proceeds upon the other grountl vnli/." ''^rajig v. London, 28 U. C. Q. B. 459. But in XicUev. DoiKjlits,' 37 L' t'. Q. B. 51, the iwint was before the Court of Appeal and that wnrt upheld the earlier decisions holding that where there Wiis no jnnrtiction to make the assessment the decision of the Court of Re- gion IS not binding on the person erroneously assessed. See further '-"fw V. Gray, L. R. 1 C. P. Div. 452, and note a to s. 57 of this Act (*) Court of Revision. See the last note. (') See sec. 267 of The Municipal Act, and notes thereto. '■^1" I m^m 'I m m ill 656 Quornm. Who to be Cltirk. Meetings of Court. Whwi first iiiGPting «'f the Court to be licld. Court to try all com- plaiuts, itc. THE MUNICIPAL MANUAL. [88. 50-53. 60. Three members of the Court of Rev'bion shall be a quorum ; and a majoiity of a quorum may decide all questions before the Court. {roceeding8 thereof (e) 32 V. c. 3G, s. 54. 52. The Court may meet and adjourn, from time to time, at pleasure, or may be summoned to meet at any time by the head of the Municipality ; but the fii-st sitting of the Court of Revision shall not be held until after the expiration of at least ten days from the expiration of the time within which notice of api)eals may be given to the Clerk of the Muni- cipality. (/) 32 V. c. 30, s. 55 ; 37 V. c. 19, s. 11. 53. At the times or time appointed, the Court (j/) shall meet Jind try all complaints in regard to persons wrongfully (d) Quorum. See note n to sec. 211 of The Municipal Act. {>«) See sec. 237 of The Municipal Act, and notes thereto. (/) At least ten days from, &c. See note a to sec. Ill of The Municipal Act. (;/) This section declares the jurisdiction of the Court. It is not only to try all complaints of persons "assessed at too high or too low a sum," but all comjilaints of persons "wroiujhiWy placed uiwii or omitted from the lloll. " See note a to s. 47, and note a to s. 57. The person who gives a notice of his intention to appeal is not bound to follow it up. Should he, before the day for the trial, abandon liis notice the aijpeal would drop. In The Queen v. Stokv BlUi, G Q. B. 158, on an appeal from an order of Justices to the Sessions, the ap- pellant served a notice of countermand, but the Court, n()t\\ith3tanJ- ing, made an order confirming the order of the Justices, witli costs. It was held th.at the Court had no jurisdiction to do so. And )>er Patteson, J. : " It is unfortunate that the Sessions proceeded in this manner. The orders states that, no one appearing to prosecute the appeal, they confinn the order of removal. That, they had no JM- isdiction to do ; and we connot separate the order for costs from the order of coniinnation," &c. But by this statute it is declared that *'if either party fails to appear in person or by an agent, the Court may proceed ex parte." Sub. 17 of sec. 5fi of tl is Act. If the appel- lant appear to prosecute his appeal, and show himself to be in a posi- tion to do so, it is the duty of the Court to try it. But the Court, before proceeding ex parte against the persons to whom the notice was given must be satisfied that due notice— that is to say, at least six days' notice— had, before the Court, been given to such parties, nr Morrison, J., ni The Queen \. Cornwall, 25 U. C. Q. B. 2S)2. The ap- pearance of the parties by their council for the purpose of objecting to the notice is no waiver of it. lb. In the event of the Court re^ fusing to hear a complaint when it oxight to do so, &mandam*mm be obtained to compel them to do so. The Kimj v. Jmtkea oj Ktiit, tfu. [88. 50-53. ion shall be a a all questions Clevk of the tjof. (e) 32 V. I time to time, ,ny time by the (' of the Court • xpimtion of at ; within which k of the Muni- , s. 11. Court {ij) shall ons wrongfully icipal Act. thereto. 1 aec. Ill of Tlic Court. It is not (t too high # .53.] TRIAL OF COMPLAINTS. 657 olaced upon or omitted from the roll, or assessed at too high or too low a siini. 32 V. c. 36, s. 58. jt (', 283. In thij case, on the appearance of the appellant, a resolu- tion was moved, Boconilecl and carried, to the effect that no further Bdtiie should Ije taken of his a]>plication for relief. The Court held tk-.t there hatl not been any ]ieal at all. The proper course under these circumstances rc'ul'l liave been to have applied to this Court for a vuindnmut to crnipel them to hear this appeal." /6. 287. It is the duty of the C(urt, wlien a person appeals against an assessment, and appeal's to iMjiIwrt L.o uj-peal, to decide the complaint either one way or the other. Tk Law Sociefij of Upijer Canmla v, Toronto, 25 U. C. Q. B. 199. Ahitaining from decision is no determination of the matter of appeal IK Sec also Re'ilna v. Gunrdiavs of BUjuleswade Union, 21 L. T. N. S.4M. Tkqiletu v. R^dminMer Union, U R. 1 Q. B. Div. 503. The pirsiiii ajipcaling is entitled to a decision on his appeal before hvt CM lie made liable to pay any taxes in respect of th s ai>^espn;ent jpiiist which he appeals. Until decided, the assessr en( is, as it ttre, withdrawn from the assessment roll. Tltv Lav Society of (>//'/• Ca/inrffi V. Toronto, 25 U. C. Q. B. 207 per Morrisoii, J. iyiDie act of the Court would, it seems be necessary before a decision cuulil be said to he given. lb. In re Jud(je of Perth and J. L. Robin- M, 12 U. C. C. P. 252, where on an application claiming a reduction oi as«e.ssment, the Court of Revision adopted a resolution " That the >p|ilication of James Lukin Robinson for a reduction of his taxes on the as-sessment be dismissed, as this Council is of opinion that the limls of complaiuant have not been assessed higher in any case than Iimls simiLirly situated of residents of the Municipality," it waa hdil that this resolution was a sufficient act done as to amount to a decision. And jjcj- Draper, C. J.: "I think it would amount to an ntire defeating of the statute, and a denial of the relief it was iu- temleil to afford, if, by refusing to entertain the petition altogether they could prevent the complaint being heard. As at present ad- ^*eil, 1 shouKl treat such a refusal as a decision against the petitioner. hi substance it certainly is so, only it may be said to be a decision «.thout trjiiig the case. In the present instance, the Council have, 1 think, by the very terms of their resolution, shown that they have Wthe matter, though they have done so without hearing the com- mmt further than by reading the statements of his petition. They Mfe liisuiissed the petition ' because his lands have not l)een assessed teher in any case than lands similarly situated of residents of the "nuicipahtj.' This is really a decision of the complaint, and im- ports an examination into the merits. They profess to have ascertained * fact which in their judgment, disentitles the applicant to relief Werthe Act. lb. 252. In The Kimj v. Ticker, 3 B. & C. 544, the wissal of a complaint, on the mistaken ground that the Court had ^jurisdiction to hear it, was, under the peculiar provisions of 3 1 » • cap. 33, sec. 2, considered such an act done by the Court as 83 ^iiti- !,i'i' ■' ''4 <568 Mny admin- ister oaUii, etc. Penalty to witnesMH who refuse to »**tnd. THK MUNICIPAL MANUAL. [88.54-56 54. The Court, or some member thereof, niav administer an oath to any party or witness, beforti Iiis evidence iNtJikrii and may if8ue a summons to any witness to Httoiid surli Court (h) 32 V. c. 36, s. 56; 37 V. c. 19, s. l-). See „l\ sec, 56 (16). 65. If any pei-son summoned to attend tlie Cmn-t (if Revi- sion PS a witness fails, without good and suiK. '"o-t icih ,i, t,, p.* ma (having been tender-ed compensation ier liis time.Utlic !■<■ 3 r* fifty crnts a da. ), lie shall incur a jxMialty of twenty d'l'irs, to be recoverable, with costs, by and tothe u,seof;lIlv ]lC n suing for the same, either by suit in tlit; proiicr Divi- sion r • n-t, or in any way in which penalties ini?urr(;(i iiiKlcr any by-lit v of the Municipality may be recovered. (//) ;)7 V c. 19, s. 10. Proceeding /or the Trial of Complaints. Notice of grieved. complaint by ^^- ^'^y Person complaining of an error or omission in party ag- regard to himself, as having been wrongfully inserted on or omitted from the roll, or as having been undcrcliarffod or over- charged by the Assessor in the roll, may personally or liv liin agent give notice in writing to the Clerk of the Muiiici|iaiitv, (or Assessment Commissi' mer, if any there be), that lieeon- sidera himself aggriev ed for any or all of the causes afoa'- said. (a) 32 V. c. 36, s. 60 (1); 36 V. c. 48, s. 200. to give a right to appeal. And per Abbott, 0. J. : " The appliiiitinn must be made witliin a certain time, notices an; to lie given, .iml tlie Petty Sessions must be held within thirty days. Tlie party, thca- fore, cannot renew his application for relief if tiie coni])hiMt is ih- missed, nor can this Court issue a maiulamux to tlie special Petty Sessions. The (question then is, whether a dismissal of the ciiin|il liiit not on the merits, but on a mistaken notion of law, is not, umlir *»/i cirriatiManctft, to be considered as an act done against which an apiwl lies by the seventh section of the Act. I think that it is, hut my iijiiiiion is founded on the peculiar provisions and l.uignage of the Act. and must not be considered as a precedent in any other civse." Ih. ">4". {h) No witness can be compelled to a tend till paiil or teudcred compensation at the rate of ftity cents a day. Sec 55 of this Act. (/() The duty of a witness when summoned is to attend (^wrt. But that duty is not made compulsory unless when siiniumnei! he k paid at the rate of fifty cents a day. This is intended as comiienM- tion for his time. When this has been paid or tendered, the «itncs3 is bound to attend, or submit to a penalty " not exceeding twenty dollara." (o) Every Assessor, before the completion of his roll, and tliTcfdre , before the return of it, must leave for every party named th rem. S.56.] PROCKEniNOS FOR TRIAL DP COMPLAINTS. 659 ik 11.) The notice Hhall be j^'iven to tlio Clerk (or Assessment romrain'onei if an^'^ tiiva-e be) Avitliiu fourteen days after the m iipon whir'\ the roll is required by law to be returned, i)r Vitiiin fo:'rteen days after the r^ : urn of the roll, in case fhe 8iime is no returned withni the time fixed for that purpose, (b) 37 V. c. 19, s 12. (3.) If a unu"''^ipal elijctor thinks that any pei-son has been ssessf' i^o low or too high, or has be(m wi-ongfully insei-ted ,)n or omitted from the roll, he may within the time limited liv the itiLCt'ding sub-section give notice in writing to the Clerk of the Municipality, (or Assessment Commissioner, as the oise may k") and the Clerk shall give notice to such jieniou and to the a ^sessor ol' the time when the matter will lie tried by the Couit of Revision ; and the matter shall be decided in the same manner a« complaints by a person assessed, (c) 32 V. c. 30, s. GO (2); 37 V. c. 19, s. 12; 3r> V.c. 48,s. 200. Tlma within which Dotioen of nppeal to tlia Court are to bo given. When I'lector thinkiian) person M- HRMed at too low or too high a rate. mil resident or domiciled or Iiaviiig a place of business within tlv Miuiicipalitv, Juid transmit by post to every non-resident who sh. lavereijuested his name to be entered thereon and furnished hU j'ldres.* to the Assessor, a notice of the sum at which his real and xmm\ proptrty has been assessed, Sec. 41. If, upon inspection lit, the jjerson assesseil finds in regard to himself, an error or "mission of the description mentioned in this subsection, he must, within fourteen days after the time tixeil for the return of the roll jve notice tlicreof in writing to the Clerk of the Municipality, that K considers himself aggrieve00 ; Xic/iolUv. Cumvihig, 25 U. '•■ C, P. IGS). But if the notice bo served, and the party either omit '•oapiteal within the time herein limited, or wholly omit to do so, the uscssmeiit would bind him. McVarrall v. Watkinr, 19 U. C. Q. B. •4S. Mere formal objections to the notice of appeal ought not to be allowed to prevail when no one can be misled or injured by the Jleged errors. In re, McVtiUoch ami ffie Jiali/c of the Vounty Court of Unh ml (Jrenrille, 35 U. C. Q. B. 452. In" the case of palpable ■Jfiora needing correction, the Court may extend the time for making "M complaints ten days further. Sub. 18 of this section. I'') As to computation of time, see note a to sec. 177 of The Muni- ■■il»l Act. I') Persons assessed may not only, under the preceding subsection, vomplaiu of errors or omissions in regard to themselves, but, under ™ '"'section, any municipal elector, thinking that any person has w assessed too high or too low, may make a complaint, in which ■*«"t he, the compliinant, should, in writing, request the Clerk to ""Hiy the person comnlaineublic place within the MuniciiMvlity or Wind a liut of all conipluinantH, on tbei'* own iKilmlf, ii^aiiiMt tlic AHHeHSorw' return, and of all complainanttt on aci;o\i<'t of the asHeHsment of other porHons, Htating the naiiicK of ciich, witli a concise deacrijition of tho matter coniplaiiied u"ainst, together with an announcitnient of the time when tbe Coun will be held to hear the conii)laintH ; (il) and no alteration Nlmll be made in the roll, unless under a complaint formally nmdc according to the above juovisions. (^) 'V2 V. c. 30, ». 60 (.']]. (5.) The Clerk of the Court sliall enter the Hppeals on the list in the order in which they are received l»y him, and tin- Court shall proceed with the api>eal» in the order, iis nturly hk may be, in which they are so entered, but may grant an udjouin- inent or postponement of any api)eal. (/) 37 V. c. I'J, k 14. a burgess has beou struck oflf tho roll on the application of aimthtr burgess, tho latter has suliicient interest in tho matter to entitle him to appear on a rule for a mandamus, though the otticiiil defeiidaiit does not ; and it is proper, though perhaps not imperative, t > serve a copy of the rule on such objector. The Queen v. Mayor of EMrr, 19 L. T. N. S. 432. The Court will not grant a mandmam to rectify such a roll by the insertion therein of the name of the person oniittcil for non-residence, unless it be made clearly to appear that he does in substantially and hona Jidf reside within the borough aa to nmke his omission therefrom unreasonable. Jh, The Court of Ileviaidii in doing what is here authorized, act as it were judicially, and, as judges, are protected in what they do. Foickrv. Pa*MOH«, 20 Ain. 431. (d) The list should give : 1. The names of all complainants on their own behalf, against the Assessor's return. 2. The names of all complainants on account of the assessment oi othei'H. 3. A concise description of the matter complained against. Together with an announcement of tlie time when the Court will be held to hear the complaints. See sub. 6 as to form of list. It is also the duty of the Clerk to atlvertise in a newspaper the time at which the Court will hold its first sitting, sub. 7, and cause to bt left at the residence of the Assessor a list of all the complaints respect ing his roll, sub. 8, and notify each \h -son in respect of whom » complaint has been matte, subs. 9-11, all of which must be at least six days before the sitting of the Court. Sub. 12. (e) Any alteration made otherwise than under a complaint, acconl ing to law, would bo as no alteration, and so reganled. See ykhm V. Cumminij, 25 U. C. C. P. 1«9, reversed in the Court of Appeal, but upheld by the Supreme Court. (/) The Clerk has no discretion as to the placing of the aopcals : his duty is to enter them on the list in the order iu which thej an Tl j^ .56,1 PROCEEDINGS FOR TRIAL OF COMPLAINTS. (C.) Such list may l)e in tlie following form : — (r/) Appeala to be heard at the Court of Keviaion, to be lield at on the dny of 18 . , Appellant Ilu8i)0Ctiiig whom. Matter oomplaincil of. A. B »*^«W Overcharged on land. CD K. F Name omitteectiug hib roll, (/) 32 V. c. 3G, 8. 60 (7). (9,) The Clerk shall prei)are a notice in the form following J) for each ijei-sou with respect to whom a complaint has wn mude : "Take notice, tlmt you are required to attend the Court of Revi- sion iit on tho day of in the natter of the following appeal : "Appellant, G. H. "Sui)ject— Tliat you are not a bona /ule owner or occupant, (or an ''ifcii^*' may /*«.) " (Signed) X. Y., "ToJ. K. * Clerk." 32 V. c. 36, 8. 60 (8). w«ivertiiie sit- tillKH of Court toIoaTHalUt with aii- seiaor and prepare notice to perHon com- plained against. k m' ~ 662 THE MUNICIPAL MANUAL. [i. 5C. W \ ^ ; How »b«n taei rervt'U. BarTiM to »)" (1^.) If tho iKjrBOU vesicIeH or lias a place of buHineHS in tin «t niiident*. |^j.^j Municipality, the Clerk Hhall cause tlie notice to !« left at the iwi-Hou's residence or phice of l^u«iue^48. (/) 33 V. c. 3G 8. 00 (9). (11.) If the pei-son is not known, then tlie notice HJiall U loft with Konie grown person on the xsesstHl premises, if tlu'ii in any Huch person there resident ; or if tlie |H'm)n is imt resident in the Municipality, then the notice shall be luldifHatd to such i)eraon through the post office, {m) .'J2 V. c. 36, m. CO (10.) vrhcnnotico (12.) Evecj notice hereby rerpiircd, whether by imblici **i ted*"" ti^i'i rtdvertisement, letter or otherwise, shall be coniplett'd at least six days before the sittings of the Court, (/t) 3J V. c. 30, 8. GO (11.) {I) The preparation of the notice directed bjr tho orecediiig auli section would ho of little worth, unless the notice, wiieii prupiireil. were in some way or other communicated to the person conccnitil. If the person inteixled to be notified reside or have a place , wliioh bear on this application, we find that they ire.illiiii 'iitive by force of the Interjjretation Act, and when wo misiilert! J object of the complaints made by the relator, we cannot werlihik tiiu iihin words of the st.-itute. The Legislature clearly intiiiiliil that in all cases of objection by third parties, a notice of cfmiliint imist be j,Mven to the party complained against at loit.4 six ibv!) lieforc the sitting of the Court at wliicb it is to be heard, and Aat such notiiies six lubl be prepared and given in due time by the ' lerk. . . . The language of the Act is plain and unambiguous. li tlie mode of procut'ding provided by the statute is insufficient, jnaiiivtiiifnt or open to abuse, the remedy is with the Legislature. f«r this Court to si. that five days' notice or any less number is nffitiiiit, would be U, issume a legislative authority." '«) The notices of apiK^als may be so numerous that there will not w time for the Clerk to h.tve them all served within the time limited '»r the puriwso with a view to a hearing of the appeal. The right I" wllin ausiatanco in such a case arises. But even with the aid tMre may not l)e sufficient time Initween the sefvice and the day 'Wximtcd for the hearing, and in such case provision is made for 'Mgraiitiug of an adjourned sitting. ■V 'i.i. I I I, « €64 Effect of de- claration by each party. Proceedings in otiier Oaths of cer- tain parties not ne<'«8- sary. When to proceed ex partt. , ~«f^ THE MUNICIPAL MANITAL. [g 5(5 and the Court shall thereupon enter the jjerson assesswl at such an amount of personal property or taxable income as is H]iecified in such declaration, unless such C mt is dis- satisiied with the declaration, in which case t)ie puity nrnkiiiit the declaration, and any witnesses whom it inav l)o dp. sirable to examine, may be examined on ofith bysiieh Court respecting the correctness of such declaration ; (;>) and .such Court shall confirm, alter or amend the roll as the evidence seems to warrant. 32 V, c. 36, s. GO (12.) (15.) In other cases, the Court, after heaviufjthc complain- ant, and the Assessor or Assessora, and any witness adduced, and, if deemed desirable, the party complained aj,'iiinst, (y) shall determine the matter, and confirm ov ivnuiul the rull accordingly. 32 V. c. 36, s. 60 (13). (16.) It shall not be necessary to hear upon oath tlie (om- plainant or Assessor, or the party complained aj^ainst, uidcss where the Court deems it necessaiy or pioper, or the tvidonce of the party is tendered on his own behalf or recpiiml I»y tlio opposite party, (r) 37 V. c. 19, s, 15. (17.) If either party fails to a})pw\r, eitluM- in person or by an agent, the Court may proceed ex, parte, {a} '.'y2 \. c. 3(i, 8. 60(14). (;>) Net personal proiierty is personal property, les.s certain delitji. See note x to sub. 20 of sec. (>. No one is to be assessed for a Iosh sum .18 the amount of bis personal property than tlie amount of \m income during the past year, ami this without ileduotiuu l)y rcwon of any indebtedness, *' save such as shall equal the annual iutcrost tlnreof. " Sec. 28. The value of personal property, less 8\ioh ilebts a^ ised, by the Court, before the fifteenth day of July in every vear. 32 V. c. 3G, s. 59 ; 37 V.c. 19,8.11.; 40 V. c. 31, s. 9. this wctiou to ascertain whether or not due notice has l)een given to the {urties. See note f/ to sec. 53. (') "Palpable," strictly speaking, moans percei)til)Ic to the case — 1 something that may be felt. But according to the general uiuler- standiiig, it means something easily perceived and detected — some- thing M plain that the perception of it immediately produces 'ietectioii. If errors of this nature ap|)ear and are of suthcient importance to l)e corrected, there may be an extension of time for SMing complaint in reference to them. • {«] So far as the Court is concemeil, this section would appear to be im])eratire. But so far as the public is concerned, it may \>e held to lie only directory. See note ij to sec. 240 of The Municipal Act. Where an act is remiired to be done for the public good, and there hu been a wrongful omission to do it, and a serions inconvenience will ariso from its not being done, a Superior Court of law has the p"werof ordering it to be done under the prerogative writ of man- ''iwiK Per Ix)nl Campbell, C. J., in Thf Queen v. Jfochfixter, T K t B. 924. Of this we have a well-known instance in The King v. V/ianoir, 2 .Str. 1123, where Overseers of the Poor not haviue Iftn apjiointed for a parish as the statute requires, '• in I<^tcr week T within one month after Koster, " a inamlamm was grantend acted upon. There can be no doubt that for the public good, m toeffectiiate the intention of the I^gishiture, the revision of the W (though the first day of July have passed without it,) if practi- wjWe, ought still to tftke place. The proper course would probably l)e w apply tor a mamlamuM to the head of the Council to summon the ^onrtto meet, under the authority given him by sec. 52, with a vieT» ^' hear and determine the matters complained of, due notices Ijeing "nt given to the respective parties. See The Queen v. Cornwall, 25 84 1 ,^ , ! H r *.'*■■ -,,^ t :i. iiii«ii#.»i:; IS* y 4- i ' I rl V /••' 666 Boll to be binding, notwith- standing erronin it or in notice sent topentons aaaeMed. THE MUXICIPAL MANUAL. Tg^ 5y 67. The roll, as finally passed by the Court, and ceitified by the Clerk m passed, shall, except in so far m the siime may be further amended on appeal to the Judge of the County Coui-t, be valid, and bind all parties concerned, (p) notwithstanding any defect or error commitvetl in or with regard to such roll, or any defect, error or mis-statement in the notice required by section forty-one of tliis Act, or the omission to deliver or transmit such notice, (a) 40 V. c. f« 8. 56. ' U. C. Q. B. 292. Possihly the writ might be directed to tlie Court, or memliers composing it ; for though not a Corporation, they coiwti' tute, as it were, a staudinu and iMjrpetual tribunal within tlie Muni- cipality. Per Lord Campbell, C. J., in The Qiuru v. RochMki; 7 E & B. 925. (v) The Court of Common Pleas in XkholU ct a\. v. Ciiwmhtij, 25 U. C. C. P. 169, held the notice essential to the validity of the assess- ment. The Court of Appeal reversed that decision. The ^uiireuiu Court affirmed the decision. This amendment is designed to get rid of the effect of the Su]jreme Court decision, (a) In Earl of Rmhtor v. lieere, 2 B. & P. 391, .392, the Court said that "it had been determined by all the Judges of Englani v. Shaw, 10 Q. B. 8y appeal, than an erroneous decision of this CJourt on a matter withni its iariwliction while unquestioned by a writ of error. I f it be appealed against, the law has made tlie decision of the Court of A[)peal final ; uJ if that Court conHi-med the act of the inferior fanutionarieri, how- ever confessedly erroneous that decision miji^ht be, it wouhl be con- clnsiveforall puri)ose8, and, among others, for enforcement ; else this ilsunlity would follow, that a rate which tlie Court of direct and final jnrinUction ha*l pronounced valid, must l)e considered as invalid when Msiileretl collaterally in any other Court as the protecting' authority turthe officer of the law who was directed to enforce it. And to this extent there can be no difTerence between the case of a rate n(jt ap- pealed sgaiust and one appealed a^^ainst and confirmed. The authority uf the original Court, up to the tune of appeal and subject to that, is exactly of the same force as that of the Court of Appeal, liotli stand on exwtly the siime principles. They are the acts and decisions of functionaries or Courts entrusted by the law on matters within their jurisdiction. But all this depends on that limitation of jurisdiction. If in the first instance the primary Court has goiie beyontl those limits, it« a^t is void. The party grieved may, if he please, appeal, because the statute enables liim to do so, und excess of jiiiisdiction is in itself a ground of appe?l as nnich as merely erroneous decision. Anil if the Court of Apx)eal erroneously confirms the act of the Ccuirt Wow, it may be that the party appealing cannot object to the want of jurisdiction in any collateral proceeding ; his own act may estop iiim (iersonally. But in the case supposed he is not bound to apt eal, because he is at liberty to treat the act as void." Jf>. 878. The rei«oniiig of this case was approved, ailopted and ap; Mc«l by the Court of Common Pleas in IWley v. Daviupt nl, 10 C. :>. >'• S. 45)2, 512. The question, then, according to this rea8t)niug, is, wliether the act of the Assessors iu assessing the person complaining wa.s an act within their jurisdiction. If within their jurisdiction, the act remaius, unless disaUowed by the Court of Kcvisi.iu or on appeal to the County Judge. If not within the jurisdiction, the act is null mil void, and no act of the Court of Revision or tlie County Jmlgo can jrive it validity. See note a to sec. 47. In Allen v. .Shia/), 2 w. 'm2, it wag held that the decision of the Assessor uiuler 4o (ieo. III. cap. S9, sec. 24, and 43 Geo. 111. cap. KJl, sec*. (i<>, 70, to the effect tliat a person was a "horse dealer," was conclusive, unless ijipealed against in the manner prescribed by the statute. I'arke, 0., said : " On a careful consideration of these Acts of Parliament. % seem to me to differ from the 42 Pdiz. cap. 2, as to the Poor Kate, and that the Legislature intended that the (LsscMuifnt of the •Assessors appomted by the Commissioners should bi; final and con- clusive, unless appealed from in the first place to the Commissioners, I I-* m m am Tnrthor powen Krant4xl to Court of Kinding, unless disputed in the manner pointed out. On rearliiig the HtatuteH I come to the same conclu- sioii L(!t ufl then look to the iK)wer of appeal, which i)()H8il>ly might he framed in Huch a way as to show that the liegin- attire did not mean it to be conulusive. This provision is containe l;e ards '- undfreharged" or "overoharged,," also uses the wonis, " vr'inii/iilhi' inserted «)n or omitttsd frfini the roll." In -SVrw^,'/ v. l.iwiloH, L'C'i;. (1. Q. B. 271, Hagarty, J., when referring tr) the l«n guagc of our statute, said: "lianguage more apparently indicating the eHtahlishmi-nt «if a rule of decision to govern all ranen and hnr 'ul fnrthi-r i/iii-xtio)i a.-, to the liability to assessment could, we think, not 'easily be iise.l. " In MrCtrrnll v. WnlkUix, 19 U. (J. Q. B. 248, where a person who at one time had been an occupant of a hniine, but never was owner or had any prntencj to Vjc owner, was assessed m owner, but ])aid no attention to the notice of assessment. Sir .1. »• Kohinson, said : " I'.ut whether hrs was assessed on the roll as owner or Jis oe(;upier. it was ineumlient on him to apiHsal or to \w.i\im under the 2()th seetif.n of IH Viet. cap. 182, if he meant to inni«t that his name was vroiiufnllij hiMPrtid on the roll. Having owii"'-'' tf) dn HO, h(! Vteeame li.vble to iiay iho amount for which he ito not only Appeal from igainst a decision ot the l^ourt ot llevision on un a|tpeal to vimon. Mid Court, but also against the omission, ne^h.'(;t or n-i'usal of .said Court to hear or decide an apjxial. {ehalf passed by the Municipal Council. I'O Such an appeal as the present can only exist by statute, and only to the extent that the statute plainly gives the right. Atlor- v;illwral v. Siflem, 10 H. 1^ (J. 704 ; /'lo/iO- v. J'olia- ./uH/ia; 7 ilich. iW; Dubeijaev. lirhmnu, I Iowa, '144; donltiiij v. Ihidh dfy, ■ Iowa, 90; MuKotine v. Stixk, 7 Iowa, 505. The Municipal wthorities are not bound, in the absence of statutory refjuirenient, toinform a person either of his right of appeal or of the proceedings n«a«»ry to prosecute the appeal. T/ir Kiiiij v. JntHirrM of \V< ■ lyUir^, 3M. &. s. 493^ 4y(j ; aee also, Miirf/i,/ ,/. I. v. Hiirviy, t ^- ''. C. P. S28. Ignorance of the provisions of a statute, ijt wpresent, is no excuse for non-compliance with its provisions. .No man can be allowed to complain of his own act. vVliure the fpellant not only attondeil the meeting at wliich the ap[)lication »M inaile of the Town funds of which .ho complained, hut himself *tt k 7 Vict. cap. 18, sec. (i'J, said ; "Upon the gr(«uiid, therefore, that tlie right oC ai>peal ji^-iinst the decision of the Revising Barrister is given only upon a condition which has not Ijeen complied with in the pres- ent oa.se, the Courtis unanimously of opinion that the appellant i.s not in a situation to be lieard " See further, Torraiuf v. Mcl'hnmn, 1 1 U. < ;. Q. \^. '-'(K) ; In re .\fe,/erH and Wuniiacott, 23 U. C. Q. B. (ill ; J,i re T»r..r and Prextnn, 23 U. C. Q. B. 310 ; Pentlund v. IlHith, 24 U. C. Q B. 4()4; McLellnn v. McVleUan, 2 U. C. L J. N. S. 2!I7; Kx jnirfc ( 'nrth, L. R. 3 Q. B. Div. 13. One of the conditions imi^ised by this SL'ution is, that the person appealing shall, in persou or i*j- Ins nttonuy or agent, serve upon the Clerk ot the Municipality, within five days after the first day of July, a written notice of his intention to appeal to the C^ounty Judge. When the IvCgislature is thus giving to a Judge jnria. 115. Thetirst point to bo noted is, that the notice must be in writing, bee /'"^ Que.n V. Jmtires of Salop, 4 B. & Al. 626 ; Tlw Quem v JuHie^' .of Surrey, 5 B. & Al. 539 ; T/ie Queen v. JuMces of LincoM'r(,-i B. & C. '548 ; 7'lie Queen v ^•'■— ■■'■' ttu„,:.,^.ln„^h,rf. 19 1. ■'. M. C. 127. It is not said V. Ash, 4 C. B. 74 see 9 ; T/ie Queen v. MMtkeg oj LturoMiin, a I. V. Juntires of Jluntingdonnhire, 11> I- •'• Md that it 7nuM bo signed. Pellierhrvliit also, Curtis v. Brigfd, 11 C. B. >. .S.y.': .59.] NOTICE OP APPRAIi. m •*! Rerwion, a written notice of liiH intention to appeal to the ProTiMt as tn (."ouiity Judfje — except in the MunicipHlity of Shuniah, in ^'*""*^- which muiiicipulity the notice shall be given within ten days after the first day of August in every year. Thf Qwnt V. JimtlceH of Kent, I* R. 8 Q. B. SOS. It must be given "vithin tive dayfl after the tirst day of July." See nntefttoaec. 1"7 of The Municipal Act. The first (lay of July is now the day fixenointe«l by the Court for the hearing of the api)eals would be stdl the Home. rideag, therefore, the CouH; is prejMircd to act in a mar. c- that wiiuld JNi wholly inconsistent witn judicial gravity and de i;. , by re* irtuig to a mere subterfuge in order to get over a suppo .. uilH- culty, tue i)))jcction that now presents itself wouhl not be at all lessened by the lapse of time. Atley v. J/i'l, 4 C. B. liS, 40. In Jiinther cone the same learned Judge said: " The attorney has had the whole time l)etween the decision of the cose liy the Reviuinu Barrister and the fourth day of the term, inclusive, tn prepare and leliver his notice. He has thought fit to leave it till the last moment, v.iien there is no time left to remedy the defect. The only power we Live to extend the time is under section U4, and that applies to the notice of the rcs^tondent, and not to a case like this. " PetherhrUhje v. .4«A, 4C. B. 74, 75 ; see also Bmum v. Tnitiplin, L. R. 8 C. P. 241. I'nnrts of Revision are now expressly authorized to appoint adjourned littings for the purpose of hearing appeals, for wnicli notices M'ere not served in jiine for the first (lay. Snl). 13 of sec. .%. The appearance of the party on whom the notice was servetl for the pur- pose of objecting to the sufficiency of the notice, is no waiver. The ^mn V. Cornwa/I, 23 U. ('. Q. B. 280 ; see also, Ororer v. lioutniut, K'. B. 70. The notiue is to be ot the intenion of the party to appeal. Its object is simply to inform the parties coiioerned that the Iierson decided against ;»< .lissatisfied, ami intends to avail himself of the ritflit to appeal which the statute gives him. If it Hul)stantially give this information, it will l>e, no matter what the lonn lie, hehl ■'uflicient. The Quern v. JuMiren of De),hi,fh^/,ire, 1> IJowl. TiOlt ; Tfw ^Nwi V. JmtlcfH of Ojfordihire, 4 Q. B." 177 ; 77.*- V'""'* v. HV-rf- imihUm, ."i Q. B. .300 ; The Queen v. JimfireH of Jinrk-i,iffJ*'u,i^h;r>; 4 h. fcB, 259, note b ; see also, Tlie Queen v. Rfi-order of Lif^-rj^ml, 15 V B. 1070. The grounds of the appeal need not Vie stat*?' <>n the iwtice, unless so recjuired by the statute giving th» iippe* Th4t 'l""n v. WeKtmoreUnul, 10 B. & C. 226 ; nee also, The f/m^^» v. n 672 Day for b«»riDg. Clerk to notify par> tiex. 1,1 i: ' % 'i ' 1' LiHt of ap- piillaiit*, Ike. to he pnNtcd up b^' Clerk. THE MUXICIPAL MANUAL. [^^ 55 3. The Judge Hhall notify the Clerk of the day he apjwintu for hearing appeals. (/) 4. The Clerk shall thereupon give notice to all the partifs appealed against in the same manner as is provided for ealfc;l agiiinst, ^viih a brief statement of the ground or cause of apiieal together with the date at which a Court will be held to hem- appeals, (/t) Derby, 20 L. J. M. C. 44 ; see further, The Quern v. JuHliteH 0/ NewcaMtk-Hpou-Tiinp, 1 B. & Ad. 033; Th' Queen v. Juntkrt of OxfortMire, I B. & C. 379 ; The Queen v. Sheanl, 2 B, & C. 85ti. But it should, on the face of the notice, in some manner appear that the party is dissatisfied with the decision intended to k appealeil against. The Queen v. Mayor of Harwich, 1 E. & B. ()I7 ; sec also The Queen v. JaMkes of Wext Rulbuj YorkMre, 7 B. & ('. 678 ; Thit Queen v. Btackanion, 10 B. & C. 792 ; The Queen v. Juntket of Enufi, 5 B. & C. 431. There does not appear to be any power to waive these notices so as to give the Court jurisdiction. Nee Neidou v. Oivrneera of Moltberhj, 2 C. B. 203, and Grover v. Bontem, 4 C. B. 70. (/) The duration of the notice is not here in express terms sped- fieti. Possibjy sub. 12 of sec. 56 would apply, wherein it is doclareil that every notice hereby required, whether by pubUcation, letter or otherwise, shall be completed at least six days before the sittiD({ of the Court. («/) In Tfie Queen v. The Court of Bev'uiion of the Town of Comwnll, 25 U. C. Q. B. 291, Morrison, J., said : "It was argued on the part of the relator that the neglect of the Clerk, or a failure by nim in the performance of his duty, ought not to have prevented the complaints being heard, and that aU that was incninbeDt on the rel itor was to make a request under sub. 2 to the Clerk. Upon an e lamination of sec. 60, and its subs. 2, 7, 8 and 10, which bear on this application, we find that they are all imperative, by force of the Interpretation Act ; and when we consider the object of the oomplaints made by the relator, we cannot overlook the plain iconU of the statute." Tlie provision here for the authorization of eervice for a subsequent day, in the event of failure of the Clerk to do what is required of him, meets the difficulty. (h) See proceeding note. , 159.] HEARINO APPEALS. 673 C The Clerk of the Municipality shall be the Clerk of sucli cierk of ., \ / .V Court. Court, (i) ',. At tlio Coui't so holden, the Juclgo shall hear tlie Hearing and ,p|ieals(j) and niay adjouna the hearing from time to time, min""" Hill lit Icf judgment thereon at his jtleasuie, but so that all the jiiiKiils may be determined before the fii-st day of August — exirpt in the Munieipality of Shuniah (in which M'li'ic*- p^o^ig^gg {,, mlih all such appeals shall be determined before the fifteenth Shunlah, &c. (lav (if September in every year), and except in the cases nruviiled for in sections forty-four aiul forty-six. 37 V. c. lUl6;-iOV. c. 31, H. 10. mi lil It is ol»ligiiti>ry upon the (.'lork of tlio Municipality to ivct as (lerk nf tlie Court. No iirovision is made for the appointment of a ul«tituti'. ij\ It has been made a (juestion whether any new evidence can be pTOJiitiior fresii witnesses called on an appeal f^om the decision of in inierior tribunal, in the absence of statutory provision to that tJiit. In the case of a conviction for an offence, it is said, the ty cfremliiig has due notice of the hearing, and it is his duty to mii: ail his eviilenco to the hearing. Kent v. Stuckely, Gilb. I{. i5.i. loll; 3 Back. Com. 4.''k'i. Superior Courts review the sentences li iniirinr ones, bnt that only, and ilo not admit new evidence not pmhtcuil lieliiw in order to examine the justice of a sentence that was Diitin any degree produced l)y it. See Dickenson, Quarter Sessions, %. imtt'. In ii civil bill appeal in Ireland, Richards, B., held that new evi.'unei! is inadmissible. (I'oniKin v. BecKj/Kui, ,3 Cr. & Dix. C. C. })4; Hunker's Digest, 120C. But in Tlie Kinij v. C'ommmlonerH '/A'/'Mf, .SM. & S. \'X\, it was held that the Commissioners of Ap- palsnu matters of Excise could not -proiierly reject the testimony of »:tiits.scs tendered for the appellant, upf)n an appeal to them against conviction liy the Commissioners of Excise, r.pou the ground that inch witnesses were not examined .at the original hearing. The Kimj "■'.'"iiimmu)ier,i o/^\ ppe((/t< in E-rcise, 3 M. & Sel. 133. In delivering :tiJgment, Ix)rd Ellenborough said : " If any inconvenience is likely !" result from this determination, the Legisl.itnre must l)c applied !■ to rimed;- it." Ih. 143. In T/ie Kimj v. Jefre;/.^, 1 B. & C. ()04, i'ffcver, wl.jre a perf^on who had been summoned by two .Justices, inlir 7 & 8 Will. 111., cap. G, sec. 1, appeared before tliem .and w.as OTiud tin)ay the tithes demanded, and raised no ciuestion as to the * -' s hut atterwanls appealed to the Sessions, and at the Sessions mktirst time set up the motliis, it was held that the Justices of ••itStssinns might, in the exercise of their discretion, rightly reject tteiiew ividence. In The Kbuj v. The Justices of Suffolk, 1 B. & Al. ™, where an appeal w;vs made to the Sessions against a rate on four ?''im(is speeitied, and the party, being still ilissatistied, made a further '!!■«« to the (ieneral Sessions, specifying two .additional grounds of !". ^yl^yi J-. said : ''The impression on my mind is, that he ' "* »t the Couvtij Sessions, be confined to the same grounds of ' rctionthat he to-tk at the Borout/h Sessions, for the former Court »in the nature oi ; fuarl uf lievk'w, and it is their duty to examine 85 ■f J. I :!■ ■ I !iw^' ^^#i- m 674 AsHOMmpiit roll to he produced to tho Court, and aiuend- ed, etc THE MUNICIPAL MANUAL. fg ()() 60. At the Coiiit to be hoUlen by tho County Jml-ff, or acting Judgo of the (Jourt, to hear the iiji|)t'iils hcrt'ink.ibre pi-ovidcil for, (k) tlie pei-Hon having char^^e of the lU'se.isiaeiit roll j>aHHe(l by the Coin-t of Revision NhiiU nj»|K'!ir mid pio. lUico Huch roll, and all i)(i[>ers and \vrit:nf,',s iu his cuxtodv connected with the matter of appeal, Q) and hucIi roll A\,\\[ be altered and amended according to tho decision (if the Judge, if then given, who shall write his initials ii^'uinst any part of the said roll in which any mistake, error or omiMsiim is corrected or supplietl ; (la) and if the decision is not then if the rate can l)o supixa'ted on the grounds decideil unon liy the Court btdow. If tluit wcru not so, it wouM he oiiun to tliu party at the IJorough SesHions to state any illusory grfiunds of miiical. ami to put forth TiU irlioli' ntn-niftli hi/ Hitrpriup nt the ('itiDitij Sim'ioux" Ih. (54"). Holn»yd, J., Haid : " The f/'ounty Sessions are to re try the Kami- mattei-s whieh were triable at tho Bonmgh Sessions. In all twos i if new trials or of error, the Court of Appeal looks at the origiu:il ini eeedings. Th( re may, howcrer, hi- fn-sh evUtnirc (uhlno>l. . . . The appeal to the County Sessions must here he eontiuud tc the oriijiiittl tiidftcr of' coiiiiiUihd only." Hi. G40. "It sueiiis tu k an uio'versally admitted rule that, in every case of appeal to the Sessions, both parties are at liberty to examine competent Mitiii'Meii on their behalf, irtthoiil rcijanl to whitthi'r thiji iiarc Imv ifumiiml hiforc or not." I'aley on C!ouvietions, 5th ed. 3i!l). bi Knglaii' the Legislature has at length, as suggested by Lord Klleal)orougli in '/Vc Ki>iij,v. ('ommUnowrti of Eu-'im', 3 M. & Sel. 33, interfered iiuinat- ters of excise }>y 7 & 8 Oeo. IV., cap. 53, sec. iS*, ivs amended hy 4i 5 Will. IV., cap. 51, see. 24, by providing thai; no witnesses are to lie examiueil on an appeal iu matters of excise except tlume who wtre examined before tho Justices, or tendered for examinat :i ami refused by tliem. See The Que"n v. Oamhlf, IC M. & W. .'M. in Kirhn V. Th' Uwner.t of the SebuUa, L. R. 1 P. C. 'IW, the I'rivy Council, as a matter of discretion, refused to receive fresii evidence upon au appeal from an interlocutory decree of the Vice Adniinilty Court of the Cape of Good Hope, in a cause of salvage. The result of the authorities would appear to be, that it is in the discretion of the County Judge to receive fresh evidence in support of tlie gr mnJi of appeal raised in the Court af Revision, but not in support ol any new or additional grounds of appeal. (/t) This section applies to all appeals that may be and are legally brought before the County Judge or acting Judge for his decision. (I) The person having the custody of the roll passed by the Court of Revision would, properly speaking, be the Municipal Clerk. It is appeal. ^ui= „<^«.v» w.^ ^ „.. - , ' • i given in evidence before the Court of Revision, touuhuig the ai'iieii in that Court. (m) It is presumed that the alteration of the roll by tiie Jiidge, in any case where he is without jurisdiction, would be of the same )\ . [8.00. y Jml};*s or \ert'iul*t'ore •J iwHCvsuietit <'!ir mill lint- his custody jcli roll ^li'ill vision of 'lie s ugiuusl any f or omission )U is not tlien sil uwn liy the to tliu \i^irty at f (iitpcal. ami l«i ) ru try the Hinu' In nil case:*"! the iirii^iual [th (Uhici'l. ■ • • cdiitiui^'l ti' the ' It secuis to 1(« of iiplKjal tit the ui.eteut witufMei In Englaii' l;i>; enltorougli in ''"■ interfercil iii.ii'at- amuuileil I'y ■* ^ .■itiiessfsarutiilie ,t tliose who were t.Kamiuati 'U aiul ,1 & W. '^^- In |(^- '211, tliel'nvy ve fresh f viik-uce ^e Vice A.lmir.Jty Ivage. The result II the .liscretioii »t ,,rt of the gr.^uuiU |iu support ot aiiy ,] l,e anil are legally I for his (leciaiou. fccipaU'lerU. lt« Llytoproilucetw I ^ f . 1 vith the Is and other valors Iroll hy the .Tmlge, M be of the same S, 61-03.] COSTS OP APPEALS. 675 "ivfu tho riork of the C'oiii-t shall, when tlio same is jLpvon, forthwith altor and amend the re" -rding to tlio same, and s\\\\\\ write his nauie against every such alteration or conrc- tiou. ()() 32 V. c. 3G, 8. C5. 61. In all proceedings before tlie County Judge or acting Jml^e of the CVairt, under or for tho purjioses of tliis Act, such Judge shall possess all such jmwers for coniijelling tlie atttmlance of, and for the examination on oath of all jmrties, wliether claiming, or objecting or objeete) lu the matter of apiHiivl from the T'liurt of Revision of tho ,of , Appellant, and Amend- mvntii how Powrr* of .TuiIk" sit- tliiK In ap- peal from Court of Be> Tlvlon. Stylo of pro- vei-Uinifa. , Respondent, aiiilthe same need not be otherwise entitled. 37 V. c. 19, s. 17. 63. The cost of any proceeding before the C()urt of Revision orliel'ore tlie Judge as jiforesaid shaM be paid by or apportioned Wil of no other cfiFect than the alteration of tlie roll by a stranger. I'l) It is, in tho case here pro/ided for, made the duty of tho Clerk it the Muuicipivlity, upon receipt of a certiticnte of tlie decision from Cltrkof the Court, forthwith" to "alter and amend" tlie roll, mil for endence m the event of any disimte .as to the fact, "to Titehis name against every such alteration or correetion." Tho wbto amend is not the am'endment. The latter, to be eflfectually ffiaile, shoidd be actually made ; and this is what is contemidated in tae tirst part of the section, in the production of the ndl, and in telatttT part by the certificate to the Clerk, and alteration of tho why the Clerk. See also sec. Go of this Act. M The powers enumerated are : '• For comi)elling the attendance of, and for the examination on oath of all parties, whether claiming, or objecting or objected t", and all other persons whatsoever. - for the production of books, papers, rolls and docur^.ents. ^' fur the enforcement of orders, deoisions and judgments. (i) !^ee note », of sec. 320 of The Municipal Act. CohU to be iipportioiied by tho Judge, aiid how uDforcod. ■i . '■■1 r % ^^'V ^^.^a; IMAGE EVALUATION TEST TARGET (MT-3) /, ^ .5^. 1.0 I.I Li||2j8 |2.5 US Uii |2.2 ii IS 1.25 1 1.4 1.6 ^ 6" ► ^ y] % /: >> /^ '^ '/ Photographic Sdences Corporation 23 WEST MAIN STREET WEBSTER, N.Y 14580 (716)872-4503 ■K^ ^ 676 iM; W ■ ft'' t. ,1. 'i-n What costfl chargeable. Decision of County Judge to be final. THE MUNICIPAL MANUAL. [ss. 64 65 between the parties in such manner as the Court or Jud^e thinks fit, and where costs are ordered to be i)ai(l by any pai-ty claiming or objecting or objected to, or by any Assessor Clerk of a Municipality, or other person, the same sLall Ije enforced, when ordered by the Court of Revision, by a dis- tress warrant under the hand of the Clerk and the conwrate seal of the Municipality, and when ordered by the Judf'e by execution to be issued as the Judge may direct, oitlior from the County Court or the Division Court within the County of which the Municipality or assessment district, or some part thereof, is situated, in the same manner as ujwn an ordiiiary judgment for costs recovered in such Court, (n) 32 V. c. 36, s. 67 ; 37 V. c. 19, s. 18. 64. The costs chargeable or to be awarded in any case may be the costs of witnesses, and of procuring their atteudaiico and none other ; (?•) and the same are to be taxed accordio" to the allowance iji the Division Court for p.ch costs; and in cases where execution issues, the costs tliereof as in tlie like Court, and of enforcing the same, may also be collected thereunder. 37 V. c. 19, s. 19. 65. The decision and judgment of the Judge or acting Judge shall be final and conclusive (s) in evei'y case adjudicated, and the Clerk of the Municipality shall amend the rolls accordingly. 32 V. c. 36, s. 69. {(/) The costs chargeable, or to be awarded, in any case may be the costs of witnesses and of procuring their attendance, and none other. And the same are to be taxed according to the allowance in tlie Division Court for such costs. Sec. G4. (r) "And none other.'" These words exclude any allowance for counsel fees or for service of notices, &c. («) The decision, &c., is made final and conclusive in every (•«•<*' adjudicated. The words do not mean that the decisions on appeals to the County Judge shall be final and conclusive to all intents ami purposes, but merely that the judgment shall be final and conclusive in the paHkidar case. The Judge, thongh sitting in appeal, may review his previous decisions, and overrule them if clearly demou- strated to be erroneous. See Webder v. Oceriteer.*, Ac, L. I!. > C. P. 30G. And the decision, &c., is only final and conclusive in the particular case adjudicated, lohfre there is power or jun-'<- diction to culjiulicate. See note a to sec. 47. If there be power tn adjudicate, the result is to be looked at as the decision or juilg meut, regardless of the reasons given for arriving at that result. /« the matter of the Mai/or of Hythe, 5 A. & E. 832 ; The. Qim v. Bolton, 1 Q. B. GG; Thompson v. Iiiyham, 14 Q. B. 710; The. Qmvy- Daumnn, 7 E. & B. 672; Former v. Forster, 4 B. & S. 187;/^; Queen V. Levi, 34 L. J. M. C. 174 ; Wildes v. Russell, L. R. U- 1. ! 6. 65.] FINALITY OF COUNTY JUDGES* DECISION. 677 ;22; Ex parte Vawjhiin, L. II. 2 Q. B. 114; IClxfou v. Rose, L. II. 4 Q. B. 4. If there was jurisdiction in the particul.ar Court to adjudi- cate, and the decision of tliat Court is made iinal or conclusive, no nther Court can review the sufficiency of the reasons ; often tliere is jjjooil judgmeut and 1)ad reasons. Ih. In Alkn v. Shai-p, 2 Ex. 3:>2-3()0, Parke, B., said: "Wherever a statute gives to certain persons the power of adjudicating upon a particular matter, their jurisdiction excludes all further intjuiry. Here it is as if tlie statute bad 9ai;ana ratiii'' for 9iiori'. than it ought to be, yet it mni/ also mean ratiu" when tho party ou(/ld not to ham' hecji rated at all." If in our statute the oiilv words used were " undercharged or overcharged," it might he argiioll according to the reasoning of Baron Parke, that a person wroiifrfullv assessed is overcharged and so must appeal. But the letter opinion appears to be that where an assessor assesses that Avhichi3n()tassJss• a''ainst _ . foumlatioii of the jurisdiction is defective, a prohilntion may be applied for at once. The Mai/or, .t-c, of London v. Cox, L. 11. 2 H. L. C. 230; Everard v. Kendal/, L. R. 5 C. P. 428 ; Janics v. London and Hmith Wederii lUiUwaij Co. L. 11. 7 Ex. 1S7 ; -S'. C. L. 1{. 7 Ex. 287 ; .Ao; Cooh\. am et al, L. R. 8 C. P. 107; Whinni/v. Schmidt, Ih. lis'; In re Vharlchh, L. R. 8 Q. B. 197. The Court of Chancery has juris- diction to grant prohibition, ]{e Bnterann, L. R. 9 Eq. (JGO ; see alsn, In re Foster, 3 Jur. N. 8. 1238, but will in general, leave the party applying for it to the Comnuni Law Courts, if the Comniou Liiv Courts be sitting. Ih. Either prohibition (R. 8. 0. c. 52, s. 3) or mandanum (Ih. 18) may now be obtained from a JuJge of the Common Law Courts in vacation. Those who seek prohihi- tion must apply with pro'uptitude. In re Deiilon and Mdi-mnil, 1 H. & C. (iu'i. It may I i granted after judgnient and suutuiicu in the inferior Court, Avhen the party has had no opportunity of a[i- plying earlier to the superior Court, and has not acquiesced iu the pr )ceedings of the inferior Court. Roberts v. Ilumhiij, 3 M. & W, 120 ; Yates v. Palmer, « D. & L. 283 ; Aldrhlye v. Cato, L. I!. 4 i'. C. 313 ; but see In re Foe, ') B. & Ad. OSl. It may, in the didorc- tion of tho Court, be granted on the application of a stranger. Di Ilalier v, Tlie Queen of Fortinjal, 17 Q. B. 171 ; The Queen v. 7Vy«, 10 B. & 8. 298. The affidavits should be intituleil simply iu the Court, and not in any cause. Ex Parte Evans, 2 Dowl. N. S. 410; see further Breeden v. Capp, 9 Jur. 781. If the application fail it will not be allowed to be renewed upon affidavits statin^' matter not before presented to the Court, but existing at the time of the original application. Bodenham v. Richetts, (> N. & M. 537. The decision ot the inferior Court on facts going to its jurisdiction is reviewable on on application for prcdiibition. Liverpool Gas LUjht Co. v. Oirmi-r-t of Evesiow, L. R. C. C. P. 414. The Court will not in such a case in- terfere by prohibition, unless it be perfectly clear that there has been an excess of jurisdiction. Ricordo v. Maidenhead Board, nf Neallli, 2 H. & N. 257 ; Mannbui v. Farqidiarson, 6 Jur. N. S. 1300; Tk Queen v. Twhi, L. R, 4 Q. B. 407 ; see also, Bomjard v. Mc Whida; 12 U. C. Q. B. 143 ; Me Whirterv. Bomjard, 14 U. C. Q. B. 85; /«»•- Chief Superintendent of Schools v. Sylvester, 18 U. C. Q. B. 538. If any inferior Court proceed or attempt to proceed in a matter in whicli it aas not jurisdiction, there may be a prohibition from one of the supe" ir Courts of Law. Darh>j v. Cosens, 1 T. R. 552 ; Ex parte Smijik, '. ■!.-„ , G6, 67.] NON-RESIDENTS APPEALS. G79 Qg, When, after the api)eal provided by this Act, the as- Copy of jessmentroU htus been finally revised and corrected, the Clerk Jrlngnrnted of the Municipality shall, without delay, transmit to the *« county Comitv Clerk a certified coi)y thereof, (t) 32 V. c. 36, s. 70. ^"^ ' NOX-UESIDEXTS APPEALS. 67. In case any uon-re.sident, whose land within the limits of an V City, Town, incorporated Villiigo or Township, has been assessed in any revised and corrected assessment I'oll, (vt) corapLiiiis by petition to the ])roper Municij)al Council, at aiiv time before the first day ot May in the year next follow- 'w that in which the assessment is made, such Council shall, atitstirat meeting, after one week's notice to the appellant, tn' and deeide uj)on such complaint ; (v) and all decisions of Mii'iicipal Councils under this Act may be appealed fi'om, tried iiud decided, as ])rovided by the fifty-ninth and following sections of this Act; and if the lands are found to have been as- sesjied twenty-five per centum higher than similar land belong- ing to re.si(lents,tlie Council or Judge shall order the taxes I'ated on sucli excess to be struck off ; (w) and, in all such cases, wlieie the land has been subdivided into park, village or Appeals with respiict to non-refi- Uenta' lauds. Lots subdi- vided not to affect rolls revised and correatcd. C. M. &N. 748; The Qm-cii v. Horeord, .3 E. & E. 115. A iloela- ratioii by statute, that the proceedings of an inferior tribunal shall fetinil ami conclusive, is held not to deprive tlie party of a writ oic-rtlimri in cases where it is proper for such a Avrit to go— not to trj' tlie merits, hut to see where the limited jurisdiction has exceeded itsWmls. The K'tmi v. Morhi/, 2 Burr. 1040; see ako, Ex parte //"i'/s3Hill(N. Y.)'42; The Klii;/ v. Com mUsioiieni, 2 KaUe 43 ; Lnir'niiv. CiDinni-'i.iioiH'rn, 2 Gaines (N. Y.) 179; Sttirrv. Tntdees, 6Wcii,l. (X. Y.) 5(i4; Peopk v. The Manor, 2 Hill (N. Y.) 9; Tii-tAHj V. Dod'je, 9 Minn. Kit). But where the declaration is made in reiereuce to a Court of general and superior jurisdiction, as of the Hnprenie Court of New York (for example, in confirming appraise- ments for opening streets), there can be no appeal in any manner to ihigiier tribunal. Jii re Canal and Wdllcer Strei-fs, 12 N. Y". 40G ; hnXew York liaUroud Co. v. Marcln, 11 N. Y. 270. (0 See note g to sec. 240 of The Municipal Act. d') This section probably has reference only to non-residents rtose names are not on the roll, and who would therefore not tweivc the notice made necessary by section 41 of this Act, and mIio »oaU not have any notice of the day on -which the roll would be fstDrned, so as to appeal within fourteen days after its return, as* R^imred by sec. 56, sub. 1. ('•) See sec. 5G and notes thereto. ' ^f (if) If tlie Council he of opinion that the laud is not rated higher iffl similar land Ijelonging to non-residents, they will, of course, SU1133 the complaint. In re Jwbje of Perth, 12 U. C. C. P. 252. ^" ■ "T : 680 r i Annual ex- amination of assessment rolls by municipal! councils, and for •what pur- pose. THE MUNICIPAL MANUAL. [g gjj town lots, if the s?me are owned by the same pei-son or wr- sons, the statute hibour tax shall be charged only uiwn the aggregate of the assessment, according to the jjvovl.sions of this Act ; (x) bnt no roll shall be amended, under tliis sec- tion of this Act, if the complaint was tried and decided before such roll was finally revised and corrected, midcr tlie provisions of the fifty-sixth to sixty-sixth sections of this Act. (y) 32 V. c. 36, s. 64. EQUALIZATION OF ASSESSMENTS. 68. The Council of every County shall, yearly, licfore imposing any County I'ate, and except as i)rovided by sections forty-four and forty -six, not later than the first day of .Julv, (z) examine the assessment rolls of the different to\viishi]ts, Towns and Villages in the County, for the i)receding financiiil year, (a) for the purpose of ascertaining whether the vulimtion made by the Assessors in each Township, Town or Village for the current year, bears a just relation to the valuation so made in all such Townships, Towns and Villages, (h) ami (x) See sec. 87 sub. 2 of this Act. (?/) A previous judgment between the same parties on tlie same subject matter operates as an estoppel. Cojmimtuonurs of Ltith Jlur- hour V. Inspectors of the Poor, L. 11. 1 S. Ap. 17, 23. (z) See note (j to sec. 240 of The Municipal Act. (a) See In re Revell and Oxford, 42 U. C. Q. B. 337. {h) It is made the duty of the County Council, yearly : To cfmim the assessment rolls of the dififerent Townships, Towns and ^'illagcs in the County for the preceding financial year, for the purpose of ascertaining whether the valuation made by the assessors in each Township, Town or Village for the current year bears a just rclatidii to the valuation so made in all the Townships, Towns and Villagi.'s. And for the imrpom of Coiinfij raten, power is given to htma--^' or decrease f^Q aggregate valuations of real and personal property in any Township Town or Village, adding or deducting so much per ceiit. as may, in their opinion, be necessary to produce a just relation betweeji all the A'aluations of real and personal property in tlw County. But thei/ shall not reduce the aggregate valuation tliereef fir the whole County, as made by the assessors. Valuation of j)''operty, real or personal, is, to a great extent, a matter of opinion. See note 2/ to sec. 23 of this Act. Some men are more sanguine than ' others, and therefore more likely, looking to the futnre, to make a higher estimate of present value than those who are less sanginne. Some men in their inquiries into a subject matter of investigation .ire more careless than others, and so more likely to take things fur granted than others. These and similar considerations intlueiieing assessors acting independently of each other, in different local Mum- cipalities, often jiroduce very dissimilar results even in aujonuuu yearly : To exmnhw Towns ami Villages for the purpose of assessors in erxli bears a just relation Towns and Villigts. given lo birrttio'Or iial property in a")' r so much per ceut. uce a just i-dation al property in tlw . aluation thereof H ilr.ationofp-opcrty, er of opinion. See more sanguine than le futnre, to make a o are less sanguine, of investigatiiiaare to take thnigsfor erations intluoncing lifferent local Mum- even in aajonuuj; i 68.1 EQUALIZATION OF ASSESSMENTS. jnav for the jniriiose of County rates, increase or decrease tlie afgre||ito valuations of real and pei-sonal [)roperty in any Towiishii), Town or Village, adding or deducting so much iier centum as may, in their opinion, be necessary to produce ii just relation between the valuation of real and personal estate in the County ; (c) but they shall not i-educe the Municipalities. But so far as the County is concerned for the pur- 1)1186 of County rates, a ju.st relation is needed in order that the rate levied may hear, as nearly as possible, equally on all the local Munici- Ijalities in the County. In order to bring this about, when inocjuality is found, a power to increase or decrease the aggregate valuations of taxalile property in the local Municipalities of the County, so long as the whole aggregate valuation of the County is not reduced, must lie exercised by some body having authority over the whole of the local Municipalities, and that bony is the County Council. Tlie Legislature has not attempted absolutely to prescribe by what method of ])roeeeding the local Municipalities shall V)e made to bear a jnst relation to each other. It could hardly have succeeded in any snch attempt. Much must, of necessity, be left to the judgment of those who are to conduct the operation, and who, by reason of their leal iinowledge, are best (pialined to do so. Per Robinson, C. J., in lilhm and Huron and Bruce, 20 U. C. Q. B. 119. \f) We may suppose the Council fixing upon some one Township or Town, in the first place, as that in which the value appears to have been assigned with the strictest regard to truth and justice, and then having selected such a standard, we may supjpose them taking up each Tnwnsliip, Town, &c., and adjusting the valuation by such standard. In doing this, the members of the Council must, of necessity, be gov- erned Ijy their own judgment, and could not, in the nature of things, have any nde given to them Ijy which they could arrive at any par- ticular result. It must be entirely a matter of opinion whether, if land cleared or uncleared in Township A. is valued at such a sum per acre, land in Township B. ought to be valued at any and what other sum per acre. But when the Council shall have adopted the proportional value which land in one Township bears to land in another, and shall have compared them all bj' some standard, then they must ascertain and express how much per cent, must be added or deducted from the assessment in each local Municii>ality to make them all hear just relation to each other. This is not given as a rule or method of proceeding that can guide or assist the Council in ad- justing the relation between the different local Municipalities, but as a method by which they are to express to the collectors the effect of tlie relation they have established, as leading to an addition or de- 'luction of so much per cent, to or from the assessment of each mdividual, according as they have found the assessment that has lieen made in the particular local Municipality too high or too low, •w compared with the standard by which they have resolved to abide. This direction to the collector makes his duty afterwards simple and precise. But the business of the Council in equalizing the assess- ments is not one that can be accmplished by any arithmetical cal- culation. Kg two bodies of men, any more than any two individuals, could 1)6 expected to arrive at the same conclusions, if they attempted 86 A81 • 1;. I.s4' 682 Local inuni- cipulit}' may appeal. THE MUNICIPAL MANUAL. h gg^ aggregate valuation thereof for the whole County as made by the Assessors. 32 V. c. 36, s. 71, (1). / 2. If any local Municii)ality is cliasatisfiecl with the action of any County Council in increasing or decreaising or rcfusiii" to increasf! or decrease the vahmtiou of any Municinalltv, the Municipality so dissatisfied may appeal from tint ilecisiou of the Council to the Judge of th(i County Court of tlio County at any time within ten days after such decision, Ui by giving to the Judge and the Clerk of the County Conncil a notice in writing, under the seal of the Municipalltv, of such appeal ; (r) and the County Judge shall ai)point a' dav to make tlie adjustment iudepenileutly of each other. The Lcisla- ture has not attempted to instruct the Council liow they are tn \irn- ceed in order to do ciptal justice. It has done the heat it euuld in committing the duty to them on general terms of equalizing the assessments, so as to produce a just relation, hut have necessarily left it tu them, as l^est they can, to work out the pmhleni. It is a thing more easily talked of than done. Per RoLiusun, C, J., in GihsoH and Iluruii and Briiri', 20 U. C Q. B, 1*20. It is not for a Court of law to interfere, as regards the rca^oualjk- ness of the valuations and the eouclusions to be come to ciu tliat point, 1)y ccmiparing tho value set upon land in one .MuiiiLiiiality with the value set upon land in another. It is not for a Court tu judge of that. Even if it were, there are various eireunistiuiets to be taken into consideration as bearing upon the cpicstiou of eoniim- tiition and value, of which a Court has not the means of judging, for want of that local knowledge which the members of the. County Council, chosen l)y the people themselves, must be supijosed U> possess, and doubtless do possess. It is not merely the faet tliftt oni' Township has been long settled, and another not so long, that should alone intluence the judgment in making the comparison, nor yet the number of inhabitants, though these are eireunistanees tliiit would naturally be taken into consideration. Quality of soil and oi timber, abundance or scarcity of water, distance from market, and the description of inhabitants, as well as their numbers, are matters that ref^uire to be considered in comparing one Township with another ; and when these and all other matters have been considered, the conclusion to which they lead are to be formed by the Council, and not by a Court of law. But so far as the Legislature has assumed to prescribe i-ules for the guidance of a Municipal hody, in the discharge of any duty or exercise of any power, such body must, beyond doubt or tpiestion, conform to the rules. And if the Council, where rules have been prescribed for their action, were to ^'o con- trary to the rules or in any way violate them, the Court, if this were clearly made out, would interfere by writ of mandamus, Th^'Qwni v, MlddlcM'j; 2 E. & B. (594, and the act itself might be held illegal in any proceeding in which its legality would come in (lueHtuni. Lincoln v. Niaijara, 25 U. C. Q. B. 578. (d) See note a to sec. 177 of The Municipal Act. (e) See note r/ to sec. 53 of this Act. .68.] EQUALIZATION OP ASSESSMENTS. esa (orlitftiing the appeal, not later than ten days from the rftvipt of such notice of tlio appeal, and may, at such Court, iirtntrd to hear and deterniine the matter of appeal, or p^ovIm. sdjomii the hearing thereof, from time to time ; but except isiiiovided in sections forty-four and forty -six, the same shall not be adjourned or judgment deferred beyoud the first (Liv of Aufjust next after notice of the ap[)eal ; and the Judge eiiiializo the whole assessnuiut of the County. (/) 32 >li;ii V.c.30,8. 71 (3); 37 V. c. 19, s. 23. i/i 111 the event of the Judge allowing the appeal and reducing the aiiumnt of the aggregate value of asaessnient of tlie partiuular Miiiiiciii»lity appealing, the difference between the sum fixed by tlie I iiiiity Council and the re( bleed sum allowed by tlie t'ounty Judge ffiu lie added to the aggregate vabiations of the otlier loerJ Munici- palities, or some of them, acconUng to the evidence before liim, in iikli a maimer that the aggregate valuations of the whole County is n It rcilural. h\ Sim coi> (t HJiiill not prevcut the County Coiincil from eiiualiziii" the valfiiitions in the .sovorul Municipalities according to the Ihsi infunnation ol)tainal»lo ; ((j) and any rate imposed, accord- ing to the equalized as,sessnient, shall he m valid an if all the assessment rolls had been transmitted. 32 V, c, 3C, s. 72. 70. In cases where valuators are appointed hy tlio Couiuil to value all the real and pcusoual property within the Ctmiitv, (/<) they shall attest their re[)ort by oath or afliinuatioii in tlie sauKi manner as Asse.ssoi'S are nMpiired to vciil'y their i>lls by the one hundred and tenth s(!ction of this Act. 32 V. c. 36, s. 73. 71. The Council of a County, in apportioning a Comity rate among th(! different Townships, Towns and Yillugi.s within the County, (/) shall, in order that the sauKi ni;iy be assessed equally on the whole ratable jiroperty of the County, make tlie amount of property returned on the .'ussessuient rolls of such Townships, Towns and Villages, (ir reported by the valuators as finally revised and cfjUiiliz.'d ((/) It would never do if the neglect of a Clerk of one local Muni- cipality to transmit a certified copy of his roll were to have tlii' cffat of delaying the entire proceedings of the County Council, witli a view to equalization of assessment, especially as it is pnnideil tli;U the eoualizatiou is to be made "not later than the first day dfJuly. .Sec. t)8. The only remedy is that provided, viz., to proceud to equalize, notwithstanding tiie absence of a particidar roll or rolls. {h) The proper valuators of property, real and personal, iii the different local Municipalities, are the assessors. But as these in the several local Municipalities, act independently of each other, ainl Jis men, perhaps, differ more widely on the value of property than nther matters of opinion, the results so far as the whole County is cnn- cerned, are anything btit equal or uniform. B'efore a County rate can be imposed, the valuations in the different local Municipalities must bo etpialized so as to bear a just relation to each other. See. ♦)8. Such equalization has hitherto been effected throut'h the mem- bers of the County Council themselves using their local knowlcil.'e in order to arrive at as correct a judgment as possible. This seeti'iii appears to be . 'li 73. Where a sum is to be levied for County pur[)0sea, or County liv the County for tho purposes of a particular locality, tlie gpp"^['jpn'* I 'oiincil of tlie county shall ascertain, and, by by-law, direct -iunas (j) It is by sec. 68 declared tliiittlie County Council, >,(/(H-e iinpos- iV/any rate, and not later than tho Hrat day of July, shall exiunine the rolls of the several local Municipalities, in order to ecjualize thcin for the current year, so as to boar a just relation to each other. Hire it is declared that in ai>portiijtiiii(j a County rate among the different local Municipalities tho amount of property re- ' turned on the rolls or reported by the valuators as finally revised iiii\i:iiu\izeil for thr preci'dhiij year, shall bo the basis of apportion- s:ent. i^w McConuick v. Oid-ki/, 17 U. C. Q. B. .345. Thu Council ot a County in passing by-laws to levy money for County pur- [■ijtj in 18J7 apportioned tho assessment of the different ^luni- cipalities not upon the basis of the value aceording to the rolls as finally revised and ecjualized for 187(5, but accorJing to the rolls w 1877 ; Held illegal ; In re Reoell and Ojford, 42 U. C, Q. B..33;. ik) Xew as well old Municipalities are liable to contrilnitc to the County rate. See The Queen v. The Mai/or, dr., of liirniiniihain, 10 «. B. 116; lie(fm v. iVew Windmr, L. R. 1 Q. B. IJiv. 152; i '-'. M L T. N. S. 172 ; The Queen v. Monck et at., Si, L. T. X. S. i-'O. The apportionment of a County rate must be on tho basis of tlie rolls as finally revised and equalized for tho preceding financial year. Sec. 71. In the case of a new Municipality erected during the current year, it is plam there can be no such roll. But in order that the direction of the statute may be, as nearly as possible under the circumstances, carried out, it is by this section made the duty of the County Council, by examining the rolls of the former Munici- l*lity or Municipalities of which the new Municipality formed a !«rt, to ascertain to the best of their judgment— 1. » hat part of the assessment of the Municipality or Munici* palitiea had relation to the new Mnnicipality ; /I. I I T ^ reiiulrffi couti POMHI. li. . I' C80 THE MUNICIPAL MANUAL. [g 7| imi for wliiit portion of hucIi sum Hhall bo lovidd in each Townsliip ty I'ur- 'Pown or Villngo in Huch County or locality. (/) 32 \ c 30, H. 70. ■ ■ County 74. Hnl)jnct to tlio proviHionH of Hections forty-four nud tifiMiiiwiiDt'H forty-six tho County Clork hIihII, before the fifttfeiitli ilay of in"''i''M** "-' -^"n''^^ i" each y(!ar, certify to tho Clork of each Muiiici- dpulltlua. )>ality in tho County, tho tot»il amount which has hww m (lirt'Ctcd to bo levied therein for tho then current ycai'. tor Coiinty purposes, or for tho purposes of aiiy such localitv ; and the Clerk (tf tho Municipality shall calculate and iiisfit the same in tho Collector's roll for that year, (in) '.V2 V. c. 30, H. 77. 2. Ami ii'/i(tf iHivt sliould continue to be accounteil as the iwseiw- niuut of tho origiuiil Muuiuipality, so ait to apportion Itotwcon them " their several shares of the Cuuntv tax." ^ (0 Tlic sum to he levied may ho either for County imqwses or for tlio piu'poses of a particular looality in the County. If thu funiKr, tlie rate nnist bo levied as nearly as poasililo equally on ciicli lncii Municipality in the County. 7'///ee v Wiiti'rloo,\)\).VAl.\\.')'i). If tho Latter, it may be levied in the particular h)cality, witlnmt reference to other localities in the County. Tho Dy law in '/y^ (iml Wttli'vloo enacted that the following sums should l)e Icvitil and collected in the under-mentioned Townships and Incorporateil Vil- lages, viz. : Township of Arthur £34 Township of Hentinck 22 Town of (Juelph 153 — and so on, enumerating twenty-four different localitius.'aiul assign- ing to each a certain sum, ranging from f (> for the Township "f Melancthon to £521 for the Township of Waterloo, and that thise sums should be levied and collected in the different Municipalities, in accordance with the statute. In giving judgment. Sir J. B. riobinsnii said : "Tho last of the By-laws moved against is that of tlie 14th of June, 1851, which is clearly illegal ; for by it the County Council assumes to rate certain Townships (tuw«' Municipftl loan Fund in Ontario or in any general or special Act iiutiiorizing the issue of debentures, or in any by-law of tlic County Council providing for tho issue of the same, (ti) 32 V. c. 3G, 8. 78. :'j) & 8TATUTK LAUOUP.. 76. No pei-son in H(!r Majtssty's Naval or INUlitary Service CortMn on full ])iiy, or on actual service, shall be lialSllo to p(!rfoi'nv H'l'inuiry Mer- stiitiite Inborn" or to conimut') therefor ; nor shall any non-com- »'<-•" exempt. miv^ioiied oHicer or private of tho Volunteer force, certified liy the orticor commanding tlie company to which such Volun- lOT belongs or is attached as being an efficient Volunteiir ; (rt) liut this lust exemption shall not ai)ply to any Volunteer who u assessed for proi)erty. (b) 40 V. c. 27 s. 1. (Firemen mnpkd in certain casus.) See R, S. O. c. 178, s. 6. be levieil, ftiul whether for County purposes or local purposes (see ante / ti) 8(jc. 73) ; and tlie latter, on receipt of the certilieato, shall nuke (//(' wci-mirij calciihttioiis in order to ascertain the neccHsary rate, and insert tlio rate, when ascertained, in the collector's roll for the current year. The duty in each case, so far as the otficer ia wiicerucd, is imperative. See note y to sec. 210 of the ^lunicipal Act. (n) No special provision for the ccdlection of a rato for interest on ^umlij (kbcnturcn is to he interfered with, whether such provisions 1* coutnined : 1. In any Municipal Corporations Act heretofore or still in force ill this Province ; 2. In any Act respecting the Consolidated Municipal lioan Fund in this Province ; 3. In any general or special Act authorizing the issue of deben- tures ; or i In any By-law of the County Council providing for the issue of the same. See further, tec. 330 of The Municipal Act, and notes thereto. (a) See note i to sub. 1 of sec. 483 of Tho Municipal Act. C*) The latter part of this section was, l)y the Act of 18G9, added to the corresponding' section in tho Act of 18()C. Its object is to aid jn securing the efficiency of the volunteer force. No volunteer is to •* entitled to the benefit of the section unless certified by the ™oer commanding the company to which such Volunteer be- ■JA l\ r ^ 688 THE MUNICIPAL MANUAL. [ss. 77-79. I Where to be performed. Liability of peraonn not otherwise assessed in townships. WhoUabie 77. Every other male inhabitant of a City, Town or ^rttdrin*"*' Village of the age of twenty-oue years and upwards, and «"'e8> towns under sixty years of age (and not otherwise exempted bv ages, j^^ ^^^^ performing statute labour), who has not been nases- sed upon the assessment roll of thu City, Town or Villa"e,or •whose taxes do not amount to two dollars, shall, instead of such labour, be taxed at two dollai-s yearly therefor, to be levied and collected at such time, by such person, and in such manner as the Council of the Municipality may, by bv-law. direct, (c) and such inhabitant shall not be required to have any property qualification. 32 V. c. 3G, s. 80. 78. No peofon shall be exempt from the tax in the kst preceding secnon named, unless he produces a certificate of his having performed statute labour or paid the tax else- where, {cl) 32 V. c. 36, s. 81. 79. Every male inhabitant of a Township, between the ages afore.said, who is not otherwise assessed, and Avho is not exemjjt by law from performing statute labour, sliall be liable to two days of statute labour on the roads and highways m the Townsbip, and no Council shal^ have any power to reduce the statute labour required under tliis section, (e) .'32 Y. c. 36, s. 82. longs or is attached to be " an efficient volunteer." But voluuteen;. like others having property, are bound to perform statute lalwur in respect of such property, or commnto for the same. (c) The rule is, that all male inhabitants of a City, Town, or Vil- lage, of the age of twenty-one and upwards, and under sixty years of age, and not assessed upon the assessment roll of che City, Tmvu or Village, or whose taxes, if assessed, do not amount to two ddllais, shall, instead of statute labour, be taxed two dollars yearly. The exemptions created by the preceding section are : 1. Persons in Her Majesty's Naval or Military Service on full pay or on actual service. 2. Non-commissioned officers or privates of the volunteer furce certitied by the OtKcer commanding the company to wliicli they belong or are attached to be efficient volunteers. See further, note i to sub. 1 of sec. 483 of The Municipal Act. {d) Where there is no power to tax there is no need of an appeal to the Court of Revision, and where an appeal is had and fails the person appealing is not according to the most recent authority on the point precluded by the result of the appeal from further coutestm^' his liability to the tax. See note a to sec. 47 and note a to sec. I'l of this Act. (e) See note I to sub. 3 of sec. 483 of The Municipal Act. :&.,> 689 jf the volunteer iorce he company tti whidi mt vohinteers. he Municipal Act. no need of an mf ial is hail ami fails the recent authority on the from further coutestui^ 17 ami note a to sec. .'. Itatio of ser- vice in caie of persona B8«e«8ed, CoQUcil may reduce or increase the number of days pro- portionately. IS. 80, 81.] COMMUTATION OF STATUTE LABOUR. 80. Every person assessed u})on the assessment roll of a Township shall, if his property is assessed at not more than three hundred dollars, be liable to tvk^o days' statute labour ; at more than three hundred dollars, but not more than five liiintlreddollars, three days; at more than five hundred doUai-s, kit not more than seven hundred dollars, four days ; at more than seven hundred dollars, but not more than nine hundred dollars, five days ; and for every three hundred dollars over nine hundred dollars or any fractional part thereof over one hunihed and fifty dollai-s, one additional day ; but the Council of any Township, by a by-law operating generally and rateably, may reduce or increase the number of days' labour to which all the parties, rated on the assessment roll or otherwise, shall be respectively liable, so that the number of days' labftir to which each person is liable shall be in pro- portion to the amount at which he is assessed. ( /) 32 V. c. 36, s. 83 (1). 2. In Townships where farm lots have been subdivided ^f^^j*"^*"* into park or village lots, and the owners are not resident, parit lots, and have not required their names to be entered on the as- *^'*' sessnieut roll, ( refiidenta ad- mitted, but do not per- form statute labour. Amount of non-rcsi- denta' statute labour. PfotUo. THE MUNICIPAL MANUAL. [ss, 87, 88. 87. In case any non-resident, whose name has been entei-ecl on the resident roll, (/) does not perform his statute labour or pay commutation for the same, the Overseer of the High- ways in whose division he is placed shall return him aa a defaulter to the Clerk of the Municipality, before the fifteenth day of August, and the Clerk shall in that case, enter the commutation for statute labour against his name in the Col- lector's roll ; (u) and in all cases both of residents and non- residents, the statute labour shall be rated and charced against every separate lot or parcel according to its assessed value. ' 2. Whenever one person is assessed for lots or parts of several lots in one Municipality, not exceeding in the aggie- gate two hundred acres, the said part or parts shall be rated and charged for statute labour as if the same were one lot, and the statute labour shall be rated and charged against aiiv excess of said parts in like manner ; (v) but every resident shall have the right to pei'form his whole statute labour iu the statute labour division in which his residence is situate, Tinless otherwise ordered by the Municipal Couucil. 32 V. c. 36, s. 89 ; 33 V. c. 27, s. 6. COLLECTION OF RATES, Clerks of 88. The Clerk of every local Municipality shall make a SM°to make Collector's roll or rolls as may be necessary, containing col- towM-oiu- ^'^^^^^ ^or all information required by this Act, to be entered their form', by the Collector therein ; (a) and in such roll or rolls he shall contents, •to. ~ {t) See sec. 3 and notes thereto. (m) See sec. 89 and notes thereto. (v) The second subsection of this section is an ameudment maJe to this section as it originally stood by statute 33 Vict. cap. 27 sec. 6. " The Assessment Act of 18G9" placed the lands of residentsand uon-residents, as regards the performance of statute labour or pay- ment of statute labour commutation, on the same footing^ .Such was the law before 1866. Canada Co. v. Howard, 9 U. C. Q. B. 654. But the Act of 18()6 granted a privilege to non-residents wliicli was not enjoyed by residents. The Act of 1869 destroyed it. Ihe Act 33 Vict. cap. 27, sec. 6, to a great extent has restored the privilege. (a) All the directions in this section are to the Clerk, and not to the Council. His autliority in the matter is derived solely from tie statute. With his duty, under this section, the Council ot tne Municipality has nothing whatever to do. The duty is a statntor) .88.] COLLECTION OF UATES. 693 set down (h) the name in full of every peraou assessed, and tbe isscHsed \'ulne of hiu real antl pei-soiial pi-operty and taxable in- come as ascertained after the final revision of the assessments, aud he shall calculate, and opposite the said assessed value as therein described of each respective person, he shall set down in one column to be headed ^^ Count ij Rates" the amount for whicli the person is chargeable for any sums ordered to be levied by the Council of the Coutity for County purposes, and in another column to be headed " Township Kate.,*' " Y'lllage Rate" '• Town Rate " or " Citij Rate," as the case may be, the amount with which the peraon is chai'geable in obligation which the Clerk is bound to perform. See per Mowat, V. C., in Grier v. St. Vincent, 13 Grant 512, 519. (ft) The duty of the Clerk under this section is — 1. To make a collector's roll or rolls as may be necessary contain- ing columns for all information required by this Act to be entered by the collector therein . 2. To set down the name in full of every person assessed, and the assessed value of his real and personal iiroperty and taxable income as ascertained after the final revision of the assess- ments. 3. To calculate, and opposite the said assessed value as therein described of each respective person to set down the amounts for which the party is chargeable 4. To set down in one column, to be headed " County Rates," the amount for which the party is chargeable for any sums ordered to be levied by the Council of the County for County pur- poses. 5. To set down in another column, to be headed " Township Rate,' "Village Rate," "Town Rate" or City Rate," the amount with which the party is chargeable in respect of sums ordered to be levied by the Council of the local Municipality for the pur- poses thereof, or for the commutation of statute labour. G. To set down in other columns any special rate for collecting the interest upon debentures issued, or any local rate or school rate or other special rate, the proceeds of which are required by law, or by any By-law imposing it, to be kept distinct and account for separately. ". To calculate such last-mentioned rates separately. 8. To head the columns therefor "Special Rate," "Local Rate," "Public School Rate," "Separate School Rate" or " Special Rate for School Debts," as the case may be. The statement of an aggregate amount where separate amounts are required to be stated would be no compliance with tlie statute, and the roll itself would be so far defective as to be no ju.stitication forale\7 «nder it. Coleman v. Kerr, 27 U. C. Q. B. 5, 13. But if some of the rates be correctly stated, the distress will be so far legal, in the absence of a tender of the legal rates, that neither can the i.>. I' I i" 694 THE MUNICIPAL MANUAIfc [8^3, respect of siims ordered to be levied by the Council of tlie local Municipality for the puri)oses thereof, or for the com- mutation of statute labour, and in other colunuis any special rate for collecting the interest upon debentures issued or any local rate or school rate or other S])ecial mte, the pro- ceeds of Avhicli are recpiired by law, or by the by-law imjiosing it, to be kept distinct and accounted for sepamtely; ami every such last mentioned rate shall be calculated separately and the column therefor headed ** Special Hate," ^^ Local Mate" '' Ptillic School Mate," *' Separate School Mate," ov " Special Mate for School Debts" as the case may be. 3'' V. c. 36, s. 90 ; 40 V. c. 16, s. 13, (2, 4 6). goods seized be reiilevied nor trespass maintcainerl for the seizure. Hquire v. Moone;/, 30 U. C. (J. B. 531 ; see also, Corliett v. JuhnMon H al, 11 U. C. C. r. 317. In Cook v. Jones, 17 Grant 488, 490, .Sprag^-e, C, said : "I think tliat though there are very good reasons for tlii; provision in the statute, that they (the rates) shomd be kept separate, still the provision is only directory, and under Connor v. Domjlno', 15 Grant 45G, tlie omission to keep them separate would not invali- date a sale for taxes. I say this assuming that tlie facts in tliis caie are in favour of the objection. 1 am not satisfied, however, that this is the case, for the aggregate of the difl'ereut columns whicli are set out separately agree with the column headed 'Total Taxes.'" A rate having been imposed for the purpose of building a new sclmol house, certain persons ni the Municipality, who were not Catliolics, but Protestants, signed a notice to the Clerk (he being oiioof tbeui), that as subscribers to the Ilonian Catholic separate school they claimed to be exempt from all rates for common schools for tlie year 18G1 ; and tlio Clerk in making up the roll, omitted this rate opiKisite to their names. Held, that the Clerk had acted illegally, and was liable to punishment. In re likUdale v. Brmh, 22 U. C. Q. B. 122. Burns, J., in delivering judgment, .said: "He (the Clerk) seems to have thought that he, as Clerk of the Municipality, had a right to omit on the collector's roll carrying out the rate to his own name and the [names of the] others who signed that notice. This is a clear violation of his duty as prescribed by the 89th and 90th sections of The Assessment Act, chapter 55 of the Consolidated Acts (similar to this section.) When the Town Council passed the By daw authorizing the levying of such a sum as the school trustees requireil, it was the duty of the Clerk to calculate the i-ate that each person should pay, according to the assessed value of his property, and set the sum down on the collector's roll. Whether the individuals named in the col- lector's roll would be exempt from payinent of any sum or rate men- tioned in the roll depended upon something else, which the Clerk, in the discharge of his duty as far as making out the roll according to law, had nothing to do with." lb. 125. But although the Court in this case, held that the Clerk had acted illegally, in the present defective state of the law on this point they felt that they were powerless to grant any summary relief. Burns, J., said: " M n Brush's iluty as Clerk of the Municipality ended when he completed the roll and placed it in the hands of the collector for the collection iii 89, 90.] ROLLS OF LANDS OF NON-RESIDENTS. em^ 89. All moneys assessed, levied and collected under any ProTindai Act bv which the same are made payable to the Treasurer of aSJI^^ „,(! thia Province, or other public officer for the public uses of po'ioc*«dia "^„ . r. • 1 ^.1 same man- the Province, or tor any special purpose or use mentioned ner as local in the Act, shall be assessed, levied and collected in the same '■''^*''- ^ maimer as local rates, and shall be similarly calculated upon the iissessmeuts as finally revised, and shall be entered in the Collector's rolls in separate columns, in the heading wheipof shall be designated the purpose of the rate ; (c) and the Clevk shall deliver the roll, certified under his hand, to the Collector, on or before the first day of October, or such other (liiv as may be prescribed by a by-law of the local Munici- piiity. ((/) 32 V. c. 36, s. 91. 90. The Clerk of every local Municipality shall also make Oerk to out a roll (e) in which he shall enter the lands of non-resi- ™iig*o?iandf dents whose names have not been set down in the Assessor's of non-resi- roll, together with the value of eveiy lot, part of lot, or of the rate. We can nowhere find that it is laid down, either in The AssetSinent Act or in the Municipal Act, that it is the duty of the (.lerk to certify either to the collector or to the Treasurer any errors which uiay have been made. There arc provisions with respect to trrors ami mistakes made, and that tlie lands stated shall not exempt from the taxes by reason of the error or mistake ; but we can find it nowhere stated to be a duty upon the Clerk of any Municipality to certify to any other person or authority when such error or mistake exists or has been niiide." Jh. 12(i. And again : " There is no diflS- cuity in proncnnicing that the Clerk, in this instance, did not dis- char''e his duty according to law; but the difficulty consists in say- ing that we can, )jy a vKiudavin-'^, at this stage of the proceedings, order him to tlo anything which will have the effect of remedying the ilefective execution of his duty. After giving the matter much thoujjht and consideration, we have arrived at the conclusion that wtmust discharge the rule for a nuindamn.^" Jh. 127. The Clerk, wheu preparing the roll, ought not to insert in the column headed "County Rate" an allowance for the cost of coUectiug the County rate, and for abatements and losses which might occur in the collec- tiou of it. ('•) The local machinery is the best adapted for the collection of taxes, and therefore is made available for more than local purposes. ''ee note h to sec. 88. (t^) It is here made the duty of the Clerk to deliver the roll, cer- bneil under his hand, to the collector, on or before the first day of wtoljcr, or such other day as may be prescribed by a By-law of the W Municipality. Unless the roll be certijied as directed, the UUector is not bound to act under it. Vienna v. Marr, 9 U. C. L. J. 301. W It is the duty of the Clerk, under this section : I' 'i.t . rN J V 696 namoi not in aMOM- ment rolls, «te. Duties of collectors. THE MUNICIPAL MANUAL. [g.Ol^ parcel, as nBcertained after the revision of the rolls; and he shall enter opposite to each lot or parcel, all the rates or taxes with which the same is chargeable, in the same niamier as is provided for the entiy of rates and taxes upon the (Jol- lector's roll, (/) and shall transmit the roll so made out, cer- tified under his hand, to the Treasurer of the County in which his Municipality is situate, or to the Treasurer of the City, or Town, as the case may be, (y) on or before the fii-st day of November, (h) 32 V. c. 36, s. 92 ; 40 V. c. 7, ,Sckd A. (190). COLLECTORS AND THEIR DUTIES. 91. The Collector, upon receiving his collection roll, kIi.iII proceed to collect the taxes therein mentioned. (/) 32 V. c. 36, 8. 93. 1. To enter the lands of non-residents whose names liave nnt been set down in the assessors roll, together with the valuo of every lot, part of lot, or parcel, as ascertained after the reviaion of the roll. 2. To enter opposite to each lot or parcel all the rates or taxes with the same is chargeable, in the same manner as is proviiled for the entry of rates and taxes upon the collectors' roll. 3. To transmit the roll so made out, certified under his hand, to the Treasurer of the County, City or Town, as the case may be, on or before the 1st November. (/) The non-residents' roll must show : 1. The lands of non-residents whose names have not been set down in the assessor's roll. 2. The value of every lot, part of lot, or parcel. 3. All the rates or taxes with which the same is chargealtle. {(j) Hot like the roll mentioned in the preceding section, sec. 80, because on the non-resident land roll there cannot legally be the names of any persons on whom the collector can or may call for pay- ment of taxes. {h) The Treasurer would not, it is apprehended, be bound to accept the roll unless certified as directed. See note d to sec. 89. But tlie neglect of the Clerk either to transmit the copy directed, or his transmission of it in an imperfect form, would not invahdate a sale of non-resident land for taxes. A llan v. Fisher, 13 U. C. C. P. 03. (t) The collector is to proceed to collect the taxes— that is, the money due in respect of taxes. He has no right to accept promissory notes or securities of any kind in lieu of money. The acceptance of such a security could in no way interfere witli the right to distrain. See Spry V. McKenzie, 18 U. C. Q. B. 161. Where a collector is charged with the collection of taxes for several years consecutively, he has the right to apply money made or money paid for taxes to ve not been set 4 92.] DE>fAND OF PAYMENT OP RATES. 697 92. He simll call at least once on the |X)r8on taxed, or at To demand thei)lace of his usual residence or domicile, or i)lace of busi- r^JS*.*"*"' ness, if within the local Municipality in and for which such Collector has been a{)pointed, and shall demand payment of the taxes payable by such person, (k) and shall, at the time of such demand, enter the date thereof on his collection roll opposite the name of the person taxed ; and such entry shall be jtriiiui facie evidence of such deniiuid. (I) 32 V. c. 36, S.94. the taxes in arrear during the 'i-at of the years. MeBriile v, Cfnrd- hm, 8 U. C. C. P. 29G. It is, among other things, the duty of the collector, npon receipt of his roll, to call upon the person charged, sec. 92, an(i if taxes not paid, to levy therefor, sec. l>5, and for that pnrpoiie make diligent enquiry to discover sufficient goods and chat- tels belonging to or in possession of the person charged, whereon a le\T may be made. Sees. 94, 104. If none can be found after dili- gent search, the collector may relieve himself by oath from further accountability in regard to taxes unpaid. Hec. 104. A collector of taxes legallj' cpialified acting within the scope of his powers is protected from all illegalities but las own, and this although there was no jurisdiction to tax the person assumed to be taxed. y'outll V. Tripp, 14 Am. 572. In the absence of some statutory pro- visions regarding the giving of receipts for money paid the collector ij not obliged to give receipts. Stiles v. Hltcficocl; 19 Am. 121. (i) The demand is essential to tlio validity of subsequent proceed- ings authorized by the statute. Vamphvll \. Eliiia, 13 U. C. C. P. i%; see further, (hvc v. Hunt, L. R. 2 Q. B. Div. 389; see as to non- resident land, /?« i^^a^H/ovj V. liecket' et af., 8 U. C. C. P. 167. It must, it is presumed, be made by the collector himself, for it is said -"he shall call at least once," &c. Apparently it need not be made peraonally of the person liable to pay, for it is said the call is to be "on the person taxed, or at the place of his usual residence or domi- cOe, or place of business if within the local municipality, so that a ilemand made of some person at the place of residence, domicile, or place of business of the party liable wouhl, it seems, be suffi- dent lb. The distress cannot be made for fourteen days after the ileniaml. Sec. 93. If the demand be legally made upon the person taxed, no subsequent demand, in the event of change of occupation, is necessary to enable the collector to distrain the goods of the sub- sejjueut occupant. Awjlin v. Minis, ISU. C. C. P. 170. Aiu\ per mlson, J. : "If tiie collector be required to make a fresh demand tourtcen days before he can distrain, npon every change of owner- ship or occupancy, he may be baffled for ever. Besides he cannot tell whether there has been a change of ownership or not, though he might Ije better able to know of a change of occupancy." J/>. 178. Dut the person in possession, whether the person assessed or not, "lay be looked upon as the person " who ought to pay the taxes," so as to make a demand on hnn sufficient without showing a demand on the pereon assessed. See note r to sec. 93 of this Act. (') This is a most important provision. Without it, the entry •^rtamly would not be evidence of the demand in the lifetime of the 88 ■flf ' 04' ' 698 THE MUNICIPAL MANUAL. [8.03. m When pity- 93> In mont U not fn,„.f«An maa«, col- lOUlTPen lectors to Collector may, by hiniHolf or by LIh agent, (/<) cnso any person neglects to pay his tflxcH for m the demand, 'i'here Mas no such provision in the Act of ISiili. (t first appeared in the " Assessment Act of 18(H)." See further, note p to sec. 100, and note » to sec. 101 of this Act, (in) Ah a/oremid. See note k to sec. 92. (u) Tlie collectors of taxes are officers annually appointed to collect the taxes, which, iu far the greater number of instanueM, they are aide to do by merely calling upon those against whom they are charged. In cases where they may have t(» resort to coiui.ulgdrj measures although tlie Legislature has enabled them to levy iu person ami without the authority of any process, yet it was scarcely coutemjdated that the collectors themselves would, as a matter of course, act the part of bailiQs and auctioneers in seizing niul selling. Per Kobinson, C. J., in Fraxr)' v. Paijc vt al., 18 U. C. Q. B. 3.'l(i; Bee also, Newhcrri/ V. St<'i)/ini.'*, IG U. C. Q. B. C9. So that while power is jjiven to the collector by himself to levy, it is iihio said he may liy his agent lew. But when a bailiff or agent is apijointcd, he ouj^lit, strictly speaking, to receive a warrant, ■vvliich miiy be iu the following form : Crrv OK - to wit. To A. B., iTiy Bailiff. "You are hereby authorized and required to distrain the goods and chattels of tJ. D. of, &c. , which you shall find on the premises of the Baid ) by diatresH of the gooilH ami chat- j"y 'jf][^J,'," tflsl'/) of tho perHon who ouj^lit to pay tho Hunic, (/•) or of andsoie. invgoo to sec. 88 of this Act. Shouhl thqierson distrained njion, by his own misconduct, prevent the dis- triM from heing realized, it would seem that a second distress may be b« fully made. Ler v. Coob', 3 H. & N. 203. ill] Where a collector of taxes haviug seizetl more chattels tlian suliicicnt to pay the tax anil costs of sale after selling enough for that purjiose, proceeded further and sold all tho remainder of the distress consisting of distinct and separate articles, it was held that he was a trei'p.tsser only as to the goods in excess of the amount of the tax uid exiieases. Scekins v. Oooi/dlc, 14 Am. ofiS. (/() ll'i7/( costs. Until this Act became law, there was no scale or tariff of costs, see Murray v. McXair, 2 Lrical Courts (Sazutte 14, but k this section it is provided that "the costs chargeable shall Ixi those jiayahlo to bailius under the Division Courts Act. (7) A planing macliine standing liy its own weight fin the floor, rthoiit fastening, with belts and an engine to work it, has been heiil to ho a chattel liable to seizure for taxes. I/ii)>'! et til. v. (uiiimin;/, 10 U. C. C. P. 118. So an engine and boiler detached fwrn the freehold by a fire, have been held to be chattels. WiiJtoii ilalv. Jarvis, 14 U. C (J. B. G40. So temporary floors, scantling, li.irtition.s, piesses, shafting, vats, cocks, and other such things. Hn'jiii-s ct nl. V, Towers, Hi U. C. C. P. 287. So machinjry of diUcr- tnt kinds detached from the freehold, Var.- L R. 8 Ex. 03 ; S. a lb. 174, in appeal. (<) It is evident that the Legislature intend the taxes to be paid in 1', k t 4 I .700 Prooi- 77tfl Dilution Cunrtn Act. It) 32 V c 3G, H. 95. 94. If »uy i«'iMOii wliOHd naiiui iippem-H on tlio roll w not rcHidcnt witliin tho Miuiiciiiality, tho Colloctor hIihH tniiiHrnit to him hy posl, iiiMrcMmMl in iiccordHiicc! with the notice j(ivpri l)y such iiou-resiilfiit, if uotico has been given, 11 stiitpnipnt mid (hnnaud of tho tuxes charged against him iu tho roll, («) and hIihU at thn tiniR of Huch transmiHsion enter the (Ut«^ thereof on tho roll opponite tho name of hucIi prHon ; and some wivy, and think it hotter to make amj gootls in tlie iioHHtuKimi of tho ])arty, wliothor helongin^' t) hiinHolf or not, lialile, witlmut doubt, for tho tiixos, than tliat tho collector hIiouM Im nt the ri»k and exponso of contostin;^ title with every one wlio nii>,'ht cliiim title to the yoods Heized. Per BurnH, .f., in Fmwr v. I'ani' it itl, 181'. 'J. Q. B. 34(). If tho ilistress he made on tho goods and chatttUoii the perHou "who ouj^ht to pay the taxcH," it may ho inailu im Im goods and chattelH in his poHHeHsion, although not on tliu aHHODStd premises, provideil made within the County. AvijUn v. MluiK, IS ir. C (J. V, 170, 17!'. By an agreement hetween t'n fJreat Wustcni Railway Co. and the Erie and is iagara Railway Co., tlio former wer<.' working the latter line of railway with their own engines ami oars, and tho defendant, as collector, seized one of such cars on the line nf railway for taxes due by the Krio and Niagara Kailway Co. iu rt'.«iR.ct of other land belonging to tho Company. Hold, that the Buizure was illegal, for the car, when taken, was in the possession of the Croat Western Railway Co. and their own property. Gi-mt W'uinn liatlmiji Co. V. I,'nii<'rn, 2\) U. C. Q. B. '245. No action will lie aK.iiiist n collector or baililf for distraining the goods of a stranger witiiimt necessity, upon the allegation that there were goods enough of the person asijossod to pay the taxes to satisfy tho demand. McElkroh V. MmxhH, 7 U. C. h. J. 244. (t) See note p to this section. [a) When the collector proceeds to enforce payment, he is to ..iov,i..i..„«v. .,u.vu..uv, cap. 55. Section 'Jo ot tnat aci luui not as hero, the words "addressed in accordance with the notice given by such non-resident, if notice has been jjiveu." Their introduction shows that the section now beyond question applies to nou-resulent owners who have requested to be assessed. ','( J 95.] DISTRESS ON LANDS OP NON-RESIDENTS. rich entry Hhull bo jrrbna fticle fvidnnco of Huch truiiHiuiM- siouaudof th« time thoroot*. {h) 32 V. c. 36, b. 90. ; 96. In cane of tho luDil of noii-rcsith'tits, who liavo icfiuircJ When Col- tlitii- iiiimeH to be entert'd on tlm roll, the Colh-ctoi', iiftfr ono dintrain fcr mouth fmm the date of the delivery of the roll to hiiii, uiid ;»J|';„"„"t;,"'** ifojr fourteen dayH from the tinie hucIi demand as aforrsaid luiui. but been ho tranHUiitted by post, (r) may ntake diHtrc^sH of any 1,-0(1(1!) iiml chattels ( Vict. cap. 1H*2, was held not to he n con- ilitinri prutedont to tho power of diHtrcHS. l)e lildiiuli re v. lii-rkcf ft lit, 8 I. ('. (J. V. 1(}7. But now it is clear, under this section, that thcilemand or statement ia n condition precedent to the distress. iSeu Dotti k t() BHU. U2 of this Act. ( (/) Omli* anil chatlds. See note 7 to sec. 9.3 of this Act. (') The collector has no legal power to go out of his ( 'ounty for the paqiose of making a distress. He may under section i)0 make a dis- trtsKdf the goods and cliattels of tho person who ought to jtay tho men ill his iKJSsession wherever the same may be foiimlin the County witliin which tlie local Municipality lies. But in tlie case of a non-re- lulent the power of distress is only as to such good and chattels vMi lie mail Jiiiil upon tfip laml. Any goods foujid ujion the land, whether litlon^'inL' to the party who ought to jiay the taxes or to a itranger, are liablo to be so distrained. Sec note « to sec i)3 of this Act. (0 It is probable that under these words a (distress by a collector for taxes Mould supersede a prior seizure by the sherifT under execu- tion. Aikhnttl v. Grant, 4 U. C. P. It. 121. But a mere notice by the collector to tho sheriflfof the amount due for taxes is not a distress so as to sujiersede the prior claim of the sherifV under this section /''. In the absence of a dislrt^nH, the execution creditor is entitled to the entire proceeds of the sale, to the exclusion of the tax collector. /''• Chattels in possession of a receiver of the Court of Chancery were seized and sold by a bailiflf for taxes. Neither tho bailiff nor the purchaser was aware until after the completion of the sale , "^M'l'operty was in the receiver's possession, or was intended t'l be effected by the order appointing a receiver, and both had been informed to the contrary in good faith >)y the party in «jrge. Held that the sale was valid. Gihsou v. Lorell, 19 (irant, IJ*. In (lehveriiig judgment, Mowat V. C, said : "The principal gwmul of objection to Afr. Bacon's (the purchaser) claim was that he sale was void in equity by reason of the property having been in the ^:u»to(ly of the Court through the receiver at tho time of the sale, iheanawer to this objection is, neither the purchaser nor even the ,'.* I I .1 • I. /I. ;i m THE MUNICIPAL MANUAL. [S8. 96, 97. ' 5^ given, and in what manaer. Public not Ice 96. The Collector shall, by atlvei-tisement posted up in at ^V«.^®„*I!,i'^ least three public places in the Township, Village or Ward wherein the sale of the goods and chattels distrained is to be made, give at least six days' (g) j)ublic notice of the time and place of svich sale, and of the name of the person whose pro- jjerty is to be sold ; (h) and, at the time named in the notice the Collector or his agent shall sell at pubh's auction the goods and chattels distrained, or so much thereof us may be necessary, (i) 32 V. c. 36, s. 98. 97. If the ])ropei-ty distrained has been sold for more than to°bL*pllfd'to ^-'^^ amount of the taxes and costs, and if no claim to tlie party in surplus is made by any other person, on the ground that tlie Surplus, if nclf ' m i 2 bailiff was informed of this until after the sale was completed. On the contrary, they had been expressly told, on what might well seem to tlicrn to be competent authority, that the engine and boiler (the goods ai.c^ chattels sold) were not affected by the Chancery proceed- ings, and were not in the possession of the receiver. " Ih. 202. And again : ' ' No doubt, if the Court had been applie») If the claim be disputed, the collector may pay over the money to the Treasurer of the local Municipality, who may retain the SMie until the rights of the parties have been determined by action at law or otherwise. Sec. 99. {>') It is not said that the collector, on payment of the money to the Treasurer, would be thereby discharged or relieved from acting at the suit of the rival claimants, or either of them — but such IS the fair intendment of the section ; and where the sale itself IS legal, such would probably be the construction put upon the section ky the Courts. (") The right to sue for taxes is, apparently, only given when the ■f* l\,^ ('•. I 704 THE MUNICIPAL MANUAL. [s. 101. copy of so much of the Collector's roll as relates to the taxes payable by such person, purpoitiijg to be certified as a true copy by the Clerk of the local Municipality, shall be jn'ima facie evidence of the debt, (p) 32 V c' 36, s. 102. returnwr ^^^" ^^ °^' before the fourteenth day of December in everv mil and pay year, or on such day in the next year not later than tlie first by"the day*** February, as the Council of the Municipality may apiwint, ;es ' ' cannot be recovered in any special manner provided by this t," — such as distress and sale in the case of resident taxuavers taxes Act," — such as distress and sale in tlie case of resident taxpayers, and sale of lands in the case of non-resident proprietors who have requested their names to be put on the roll. Berlin v. Grdinje, 5 U. 0. C. P. 211. In order to entitle a Municipal Corporation to sue for a tax imposed in the ordinary mamier upon resident ratepayers, the Corporation must be able to show, in the first place, that the defen- dant's name is on the roll, see Sargmit v. Toronto, 12 U. C. C. P. 185 ; McCarral v. Watkins, 19 U. C. Q. B. 248, and in the next place, that they have done what would be necessary to entitle them to distrain by warrant for the same tax, if the person sued had goods that might be seized, except perhaps there would be no occasion to made the previous demand mentioned in section 94, (93) per Robinson, 0. J., in London v. llie Great Wentern Raibmy Co., 16 U. C. Q. B. 502 ; and neither by distress nor by action can a ratepjiyer be com- pelled to pay a tax of which such notice has not been given to him aa the law has provided in the 48th (41st) section of this Act. 7''. By this is not meant that the plaintiffs in sucli an action are bound to set forth in the declaration that they have given such notice as the law requires before the assessment roll was tin.illy completed — that may perhaps be assumed till the contrary i? shown — but it must be open to the defendant to deny that such notice was given and to put plaintiffs to the proof ni it. Ih. In order to entitle the Corporation to sue a non-resident sident owner of lands, it must not only appear that the sijeciul remedies provided by the Act are unavailable, and that the defen- dant's name is on the roll, but, besides, it must be distinctly averred and proved that the owner had requested his name to be placed on the roll. Berlin v. Gramje, 1 E. & A. 279. (in) The former part of the section provides for the action, and this part for the cTidence to sustain it. The production of a copy of « vmch of the collector's roll as relates to the taxes payable by such person, purporting to be certified as a true copy by the Clerk of the local Municipality, shall be ;»•(/«« face, evidence of the debt. >o proof of the signature of the Clerk is apparently made necessary. It the certificate produced purports to be signed by him, it will l)o re- ceived on production. But when received, it is only prima jaoi evidence ; in other words, its accuracy, or the facts it represents, may be disjiuted and disproved. Sec Hesketh v. Ward, 17 U. C t. P. 190. ,101.] RETURN OP collectors' ROLL. 705 iroviiletl Ijy tliis dent taxpayers, letors ■who have V. Graiiijp, 5 U. )ration to sue for , ratepayers, the , that the tlefeii- ,, 12 U. C. C. P. aiul in the next y to entitle them in sued had goods be no occasion to (93) per Robinson. ., 16 U. C. Q. B, ■atepayer be com- )een given to him n of this Act. /''. ']\ an action are have given such roll was finally the contrary i? at to deny that [to the proof "t Lie a non-resident that the special ,d that the deitii- I distinctly averred Le to be placed ou every Collector shall retui'n his roll to the Treasurer, (q) and to be im shall i>ay over the amount payable to such Treasurer, speci- counciL*'^ ism iu a separate column on his roll how much of the whole amount paid over is on account of each separate rate ; (r) and shall make oath before the Treasurer that the date of the demand of payment and transmission of statement and («) It is the duty of the collector, under this section, on or before a (lav named or appointed for the purpose, not later than the 1st of February ; see note g to sec. 240 of The Municipal Act, to return his roll, and pay over the amount payable, specifying in a separate column en his roll how much of the whole amount is paid over on account of each separate rate. Does the collector at any time, and if so, when, become incapable of exercising his functions as collector ? Suppose the Municipal Council does not extend the time beyond the 14th of Pectinber, does he on that day become /((/ic<(M ojficio f No doubt he may receive moneys on account of taxes after that day, provided he has not made his return, and no doubt his sureties would be liable for moneys so received. Whitby y. Harrison, 18 U. 0. Q. B. 606; TofW V. Fmii ef. al, 20 U. C. Q. B. 649. But wliether he may exer- cise the cuvipuUnr!/ powers with which he is invested, is another qneation. The enactments which provide for the appointment of collectors, see sec. 250 of The Municipal Act, and sees. 10 and 11 of this Act, contain no limitation as to the time they shall hold office ; antl it is declared by sec. 274 of The M. licipal Act, that all officers appointed by a Council shall hold office until removed by the Council. ^Bmrkiiv. Barlow et al,, 7 U. C. L. J. 117; In re Mcl'herson and kman, 17 U. C. Q. B. 99. The better opinion seems to be, that the collector does not become /((«c/«s officio so long as he holds the otSce, and so long as his roll is not returned ; in other words, that his autliority to cclloct taxes on the roll is co-extensive with the tenn of his office, provided in the inter' al he has not returned his roll. The different provisions for the enlargement of the time for his making his return are in favour of the collector, and provisionally itt favunr of the ratepayers. This was the opinion of Robinson, C. J. , and Burns, J., McLean, J., dissentiente, in Newberry v. Stephens, 16 U. C. Q. B. 65, and was in fact the decision of the Court in that case, since recognized in McBr'ule v. Gardham, 8 U. C C. P. 296 ; m\ McLean v. Farrell, 21 U. C. Q. B. 441. Iu Coleman v. Kerr, 2il', ('. Q. B. 5, Draper, C. J., said: " The Court acted upon Netv- l^rr/ V. Stephens, or at least in accordance with its principle, in Tht' (hlffs^pMutemlent of Schools v. Farrell, 21 U. C. Q. B. 441 ; and the Court of Common Pleas recognized its authority in McBride v. ^mlhm, 8 U. C. C. P. 296. Oa these authorities we think this objection, the right to distrain after time fixed for return of the roll, IS untenable. (n If a collector refuse or neglect to pay to the proper Treasurer w other person legally authorized to receive the same, the sums wintained in his roll, or duly account for the same as uncol- iKtwl, then not only may the ordinary remedy by action against MS sureties be applied, but the Treasurer may, within twenty ws after the time the payment ought to have been made, issue 89 • 'i h ■i > I ^ '■.'Mj.l'ii: n 4 4 1' s I 1 4' h ' ■1 *„ ■M h; %. 706 - THE MUNICIPAL MANUAL. [ss. 102, 103. demand of taxes, required by sections ninet)'-two and ninetv- foiv in each case, has been truly stated by him in the roll i») 32 V. c. 36, s. 103 ; 33 V. c. 27, s. 7. ' ^ other per- 102. In case the Collector fails or omits to collect the t^ixes empioyMi to or any portion thereof by the day appointed or to be appointed which OdI*^' ®^ ^^ *^^^ ^"^*' P''eceding section mentioned, the Council of the lector doeg City, Town, Village or Township may, by resolution, author- ioeSnday. ^?® *^6 Collector, or some other pei-son in his stead, to con- tinue the levy and collection of the unpaid taxes, in the manner and with the powers provided by law for the general levy and collection of taxes, (t) 2. No such resolution or authority shall alter or affect the duty of the Collector to return his roll, or shall, in anv manner whatsoever, invalidate or otherwise affect the liability of tlie Collector or his sureties, (it) 32 V. c. 36, s. 104. 103. If any of the taxes mentioned in the Collector's roll remain unpaid, and the Collector is not able to collect the same, he shall deliver to the Treasurer of Lis Municipality an account of all the taxes remaining due on the roll ; and, in such account, the Collector shall show, ojiposite to each assessment, the reason why he could not collect the same by inserting in each case the words " Non-Resident " or " Sot sufficiefnt 2>roperti/ to distrain" or " Instnicted hj Council not Proceedings where taxes are unpaid, and cannot be collected. I a warrant under his hand and seal, dii-ected to the Sheriff of the County or High Bailiff of the City, as the case may be, commaml- ing him to levy of the goods and chattels, lands, and tenements of the collector and his sureties, such sum as remains unpaid and unaccounted for, with costs, and to pay to the Treasurer the sum so unaccounted for, and to return the warrant within forty days after the date thereof. Sec. 195. (s) The latter part of this section first appeared in The Assessment Act of 1869. As the entries to which reference is made are con- stituted evidence on their production, the oath here required is intended to be a guarantee for the truthfulness of the entries. (t) This section is intended to give the Council power, by resolu- tion, to authorize the same collector, or any other person in his stead, to continue collections which are being made, but not completed, at the time appointed for the return of the collector's roll. The power, however, cannot be exercised after the final return oj the ml by the collector, and after the lapse of several years. Hokomh v. Shaw, 22 U. C. Q. B. 92 ; Smith v. Shaw, 8 U. C. L J. 297. Bu the land is not thereby excused ; the arrears of taxes are a special lien on the land. Sec. 105. («) See sec. 101 and notes thereto. SJ. 104,105.] TAXES TO BE A LIEN UPON LAND. 7or tocdkct,^' as the case may be. (a) 32 V. c. 36, s. 105 ; 40 \.cl,ScM. A (Idl). 104. UlJon making oath before the Treasurer that the ^''^•°„*'*?^ sums mentioned in such acconut remain unpaid, and that he collectors to * hi not, upon diligent enquiry, been able to discover suffi- ^^",[^**^ cient goods or chattels belonging to or in possession of the amount. peinons charged with or liable to pay such sums, or on the premises belonging to or in the possession of any occupant thereof, whereon he could levy the same, or any ])art thereof, tbe Collector shall 1)6 credited with the amount not real- ised, (h) 32 V. c. 36, s. 106. 105. The taxes accrued on any land sli.all be a special lien ^a^* *» ^ oasuch land, having preference over any claim, lien, privi- land. lege or incumbrance of any party except the Crown, and shall not require registmtion to preserve it. (c) 32 V. c. 36, 8. 107. (a) It is the duty of the collector to return his roll by a ilay named or appointedfor the purpose. Sec. 101. It is also his duty under the section here annotated, when unable to collect any taxes, to deliver an account of all taxes remaining due on the roll, and in such account be is required to show the reason why he could not collect the same. If he fail in the performance of these duties, proceedings by action may be had against himself, or his sureties and himself ; proceedings also of a very summary character. See sec. 195. If these remedies be of no avail, and not till then, a court of law may interfere by mmlamus. In re Quia and the Treasurer oftfie Town of Dundas, 23 U. C. Q. B. 308. [h] This appears to intend that the proper course is, for the Muni- cipal Council m the first instance to debit the collector with all the taxes on his roll, and from time to time, as he pays over moneys, credit hira therewith, until he find himself unable to collect the balance, and then accept from him the oath here required, and credit bim with the amount not realized, so as to close the account. (c) The effect of this provision will make it necessary for every intemliug purchaser to search nf)t only the Registry Oifice for deuds or conveyances affecting land, but tlie office of the County or other Treasurer who would be able to give information as to the taxes, if ay. due upon it. See remarks of Bums, J., in Holcomh et nl. v. •^aic, 22 U. C.^ Q. B. 104. But apparently it is no part of an attor- My or solicitor's duty, under an ordinary retainer, for the investiga- aonoftitle, to make such a search. Rons v. Strathy, 16 U. C. Q. B. m"' The lien is not oidy made special, but one having preference ojerany claim, lien, privilege or incumbrance of any party except the -™wn ; hut even in the case of the Crown, if the lien have attached More the Crown became the owners of the land, the lien holds aa ^st the Crown. Per Adam Wilson, J., in Secretary of War \. imm, 22 U. C. Q. B. 55.5 ; see further, Stolces v. State of Oeorgia, • Am, 590. Taxes due upon land at the time of sale are an I ■14 708 THE MUNICIPAL MANUAL. [s. 100. . YEARLY LISTS OF LANDS (JllANTED BY THE CROWN. Annuaiiirts 106- Tlio Commissioner of Crown Lands shull in tlio ^'tSetc, month of Febrimiy in every year, tiansmit to the Ticasimr lUshedT ^^ every County a list of all the land within tlie County Comuila-^ located as free grants, sold or agreed to be sold by the Crown, Crown"' °^* '*'"«^<^» «i" i" Inspect of which a license of occuiuitioil LandH. issued during the preceding year. ((/) 32 V. c. 30 h. 108. See also Jiev. Stat. c. 23, s. 30. r ' If > m :«!!? incumbrance within the covenjuit for quiet enjoyment. Ilninif^^ V. ,Sviif/t, 11 U. C. (.}. B. .')7 ; J/uiri/ v. Avd^rmi, 13 U. C. ('. 1'. 470 ; see also, likhard v. Btiit, 14 Am. 1. IJut where tlie ventk-u of land subject to taxes allows it to be sold for the taxes, anil after- wards neglects to redeem, he cannot as of right recover ilauiages to the full value of the land, Mc('(>l.lum v. JJari^, 8 U. V. (), h. l.'H), Taxes cannot be said to be due ))efore they are inipoaed l)y the Council. Ford v. Proudfunt, !) Grant 478 ; Kempt v. I'tirkiju, '_'8 V. C. C. P. 121). In tlie case of residents, taxes are not due till the collector has received liis roll. Cvrhett v. T(ujlor, 23 U. C. Q. b.454, and not until the exjnration of fourteen days after demand, jii-r Wilson, J., in Ih'llw. McLean, 18 U. C. C. P. 421 ; and in the ca.te of non-residents who have reiiuired their names to be entered on the roll, not until one month after the collector has returned his roll. I b. Sewerago rate is not an incumbrance on laud. Moore v. //'/«►<, 22 U. C. Q. Ji. 107 ; see further note i to sec. 4()G, sub. .W of The Municipal Act. ((/) All lands in Ontario, subject to certain excejjtions, is lialde to Municipal taxation. .Sec. 0. One of these exceptions is, all property vested in or held by Her Majesty. Sec. G, sub. 1. This exception, however, is qualified by a declaration that when any such property is occupied by any person otherwise than in au official capacity, the occupant shall be assessed in respect thersof, but the property itself shall not be liable. Sec. (i, sub. 2. Unpatented land, sold or agreed to be sold to any person, or located as a free grant, so far as the interest of the purchaser or locatee is concerned, is made liable to taxation. &!ec. I2G. For the purposes of assessment, the motive for requiring a return to the Treasurers of Counties of lands located as free grants, sold or agreed to be sold or leased by the Crown, or in respect of which a license of occupation has issued, is self-evident. Per Draper, C. J., in Street v. Kent, 11 U. C. C. P. 260. When Street v. Kent was decided, the assessment law had not been extended to lands " sold or agreed to be sold." That was done by the statute 27 Vict. cap. 19, sees. 9, 10, 11, which has been embodied in the section under consideration. See Street v. Simcoe, 12 U. C. C. P. 284 ; Street v. Lambton, lb. 294, Under the old law, the Surveyor's general schedule was the founda- tion of all subseciuent proceedings. Doe Upi)er v. Edwards, 5 t. L. Q. B. 598, and it was necessary that the land sold for taxes shouW be stated on the list to have been described as granted or leasea. SS, 107, lOS.J M8T OF LANDS IN ARHKAU FOR TAXES 709 107. TIk! County Tn^isun!!' hIihU fumiKli to the Oferk of County trcv pacli local MuiiicipHlity in the County a copy of the Hiiid nw"opii»'oj lists so fnr aH rcfjards lunds in siicli Municipnlity, and Huch ii"t«t"cierks Clfik sliiill fuiTiish the Assessors resjiootively witli a state- paiitios. niciit showing wliat lands in tlie said annual list nre liahle to assessment within such Assessor's assessment district. («) 32V.C. 30, s. 109. ARHKARS OF TAXES. Dnt!(s of Treasurers, Clerks and Assessors in relation t/tereto. 108. The Tieasurer of every County shall funiish to the l>ik of each Municipality, except Cities and Towns, in the Coiiiitv, and the Treasurer of every City and Town shall liiniish to the Clerk of his Municipality, a list of all the laiids in his Municipality, in re.spect of which any taxes Imvo Wn in iirrear for the three yoan; next preceding? the first day of January in any year ; {/) and the said list shall be so fur- iiisk'd on or before the first day of February in evcny year, (ff) m\ shall be hpad(!(l in the words followinj^ : *' LIsf, of laur/s •'/(rtWe to be sold /or arrears of taxes in the yeivr oiia thoiisaiul !)i,f Ikll V. Orr, 5 0. S. 4.33. Land not contained in the list was kH not to be taxable, Peck v. Mnnro, 4 U. C. (!. P. 3(53, and the list mi^'lit be sliown to be erroneous. Perrif v. Piiimll, 8 U. f!. Q. B. 2.il ; .SVjWv. AV/(^ 1 1 U. C. C. P. 2.").''). Land returned in .Tune, IS'5), f(ir .isscssment, was held to be li.ablo for the taxes for the whole of that ye.tr. Doc il. Sfafa v. Smith, « U. C. Q. B. (i.58. A ak (if limd described ps granted was held entitled to prevail against a 8ulisef|uent patentee. Chnrlct v. Diibimqc, 14 U. C. Q. B. 085; kl'^nmn v. Voltonhunj, 6 U. C. C. P. 38.'). " I') The County Treasurer is made the medium of communication '«tweeii the Government and the officers of the local Municipalities. The officers for whom the information is really designed, and who fill make the necessary use of it, are the local assessors. (.')" In respect of which any taxes shall have been in arrears," tc. See note // to sec. 127 of this Act. (;) "0/; or hfiforo th' frd dai/ of Fclrrunrii." It is by sec. 130 Jeclared that tlie Treasurer shall not sell any lands which have not ten include(i in the lists furnished by him to the Clerks of the wcral Municipalities in the. month of Fchrunri/ preceding the sale. hSlfwarl v. Tamiart, 22 U. C. C. P. 284, 2Hi)', Hagarty, (J. J., faid: "Kvenif we found it clearly proved (which it is not) that the list fis not furnished until after the 1st of February, we should hold thatits l)eiiig furnished any time diirinri February would be sufficient unilerthcse two sections," sees. 118, 130. County trea- surer to fur- nish local olerkK with listfi of laiidii tlirci! years in arrears for taxes. ''^t *| v^m^ 710 ? :t\- liOoal elorkH to keep the llRtH in their oftlccii open to iofipcc- tion, give copier to MHeNRom, iiotif/ ooun- panl8, etc. THE MUNICIPAL MANUAL. [g. IQfj "eiykt hvndrpA and ;" (A) and, for tlio jmri)OHes of i\\\H Act, tlio tiixwi for tlio Hi-styoiir of tlio tliico which hiivo ex|iirod under the ]troviHionH of Uum Act, on uny Imid to b" sold for taxos, hHuII be doemed to linv»! biicn duo for threi years, altliougli the same u«ay not luive been placed uum a Collector's roll until some month in the year later tlmii the month of January. (/) 32 V. c. .'JG, s. 110; 40 V c 7 Sched. A. {Vd'l). ' ' ' 109- The Clerk of the Municipality is hf!rel)y ie(|uir((l to keej) tlie said list, so furnished by the Treasurer, on iilc in liis officii, subject to the ins|)ection of any ijerhou refjuiriiii; to see the sanui, and he shall also deliver to the Asschwoi' or Assessors of the Municipality, in each year, as soon m such AssesKor or Assessors are a])pointed, a co[»y of kucIi lint ; {k\ and it shall be the duty of the Assessor or Assessoi's to a.v certain if any of the lots or parcels of land contained in sucli list are occupied, or are incori-ectly described, and to notitV such occupants and also the ownei's thereof, if known wlictjier resident within the Municipality or not, upon their r('s]K(tivi' assessment notices, that the land is liable to be; sold for ar rears of taxes, and enter in a column (to be reserved for th^' purpose) the words *' Occupied and, I'artips Xntijieil" ov^SiA OcciipioA" as the case may be ; and all such lists shiill V signed by the Assessor or Assessors and r<,'tuiii(!d tvY/r slidulilhettattii on the list. JW Hagarty, C J,, in Stc.mirt v. Totjijort, 22 U. C. C. F. 289. Land described as "9 con. S. or E. i 14, N. or VV. i 14," wi." held to he a snfficient d'jscription of land liable to l)e sold for arriars of taxes on the list /h. I'lr JIngarty, (J. J. : " J see no olijectioiit'. calling it Nortli or West half. The land jtrohably Uos North-west nr iSouth-ea&t, and nothing wiU) shown tJiat the description wouM iint Buflflciently identify it. (i) See note / to sec. 127 of this Act. (it) The duty of the Clerk of the local Mnnicipality, in reg;>nl t- the list furnished to him, purunant to the re(iuireinents of the pa ceding section, are twofold : 1 . To keep the said list on file in his office, subject to tlie insi»ectioD of nni/ person recpiiring tc see the same. 2. To deliver to the assessor o- assessors, each year, wlicn npiwmt- ed, a copy of such list. He has other duties to perform in regard to said list, under stc. 111. Neglect of any of these duties may he summarily puuLfhcil. See sec. 115. no.] ASSKSSOK S CKHTIFICATE. 711 ■fi. of liny error discovered therein, (/) and tluf Clerk hIioII fileMiUtob* the Name in liis ofKco for {luhlic line ; (in) Jiiid every such list, ''^'""'•* orcify thereof, sliall he received in any Coui-t as evidence in mv case iiri.sinj;' concerning the asHOHsnient of such lands, {n) 32 V. c. 30, H. 1 1 1 ; 'M V. c. 27, s. D ■ 40 V. c. 7, .Sched. A. Aiid see post, s. 185. 110. The Assessoi-s sliall attHcl. to each such list {p) a AwcMor'i ctrtiticiit*! si^'iKid by them, and verified hy oatli or atiirmu- tioii. (7) in the form fbllowinjj : — (r) "I do hereby certify that T havo cxaminoil nil the lots in tliiH lint nani'''l ; ami tliiit I havo ontured tho iinutcH of all occtipniita thurooii, u well 'i'ched. A (193 and 194). {») The duties of the Clerk, under this section, arc : 1. To examine the assessment roll and ascertain wiiutlier any Int embraced in the last list received i)y him from tlie ( 'oiinty Treasurer, under sec. 108, is entered upon tlie roll aaoecupieil or ia incorrectly descril)ed. 2. To furnish the County Treasurer with a list of tlio spvi ml par- cels of land which appear on the resident roll as haviiij,' Uecoiuc occupied, or whi< h have been returned by tlie assessors as inorrectly described. {() The list furnished by the local Clerk, under the preceding part of this section, to the County Treasurer, is to enable the latUr to report the arrears and per centage duo in respect of non-resiilent land since become occupied, with a view to the collection of tax«8 thereon by distress and sale of goods and chattels of the occupant. («) The arrears may be collected in the same mnium; and MhjM to the mmp rotidUion.% as all ofhn- taxes upon the collector's roll. It is provided by sec. 9.3, that the collector may, after dumiml, levy the taxes with costs by distress of the goods and chattels of the pur- jd 112, 113.] INSUFPICtENT DISTRESS ON OCCUPIKD LANDS. 112. Tf thoro is not HulHcieiit ilistniss upon any of tho irMiiiiwl lundH, in tlm preceding srction nained, to siitisfy tlio tofl amnurit of tho taxes cliar^'od a^ainnt tin* name, as wi'll fortlif niTcarH an for tlict taxes of tho current year, the Col- lector hIkiU ho return it in his roll to tho Treasun.T of tho Miiim'i|mlity, Hhowinj^ tlu; amount collected, if any, and tho moiir't rcnmining unpaid, and stating the reason why i)ay- niiiit lias not been made, (r) 32 V. c. 30, s. 114. 113. The Treasurer of every Township and Village .ikll, within fourteen days after tho time njipoinKid fur the return and final settlement of the Collector's ion who nil j^ht to pay tlio Haino, or f)f niiy ^oocIh or chattels in his [>iKS(«8ion, wlierovur the Hame may be foaml within tlio < 'oniity, &c. ; ami liy sec. !>'), in the caHe wing section, which pividen what tlie collector shall do "if there shall not he suflicient 'hstrcsH ujion any of tho oucuiiied lands iu the preceding section Mied," 4c. '') The effect nf sees. 100, 110, 111 and 112 seems to lie, that the 'act fif the land heing in arrear and liable to be sold shall be com- muiMcatfcd hy the (.'ounty Treasurer to the Township ('lerk, who ilwll give a copy of the list to the assessors, wliti shall ascertain if My nf the lots named are occupied, and notify the occupants and "'itrs, if known, that the land is liable to be sidil for arrears of t»ies, and enter in a column, "Occupied, and parties notified," or 'Not occupied." The Clerk is then to ascertain if any lot in the iMtw entered as occupied. He shall notify the Treasurer tliereof, •'I'l the latter, by the first of July, shall return to the Clerk an ■i^couut of all arrears of taxes due in respect of such occupied M'K and t'le Ckrk shall then put the amounts in the collector's mil for the yaar, to be coUecte.l, &c. Per Ilagarty, C. J., in St^-wart '■■ rivi^iiiri, 22 U. C. C. P. 284, 200. 90 713 «*> Whore tlwtro Im not *ufll- eiriit tllMtruM nil Huch UnJi, StatoiiiRiit ot arrciiri to Iw fHtiirnud by IochI troa- Riircr, and wboD, h. t UK I ■■■■• I'l ■■ if: II) h^i; 111' if* . ' I, ,• 714 TIIK MUNICIPAL MANUAL. [s. 1 U. roll, (n) and Itefoio tlio oij^litli day of Apiil in every year, (h) I'urniHh the (Jouiity Treamner with a Htiiti'mmit oi all nn])uld taxeM mid Bcliool ratcH directed in th« wii I (.'ol- lector'H roll or by School TruHtooM to bo colloctcd. 2. Such rotuni shall contain a deHcription of tlie lots or parcels ()f hind, a Htatj'iiKUit of unpaid HiTeurs of tuxes, if any, and of arroam of taxes paid, on hinds of non-rcsiilfiiU which have boconn^ occupied, »w rc(julrod by section oue hundred and nine of this Act, and ^'enerally such other in- formation as the County Treasurer may rc(iuiro imd ilcnuud, in order to enable him to ascertain tho just tax clmr;,'eiilik' upon any hind in tho Municipality for that year ; and tlio County Treasui-er shall not bo l)Ound to recjiivo uiiy such stiue- mont after the eiglith ilay of April in eacli year, (c) 32 V, c, 3C, s. 115 ; 40 V. c. 7, Sched. A. (195). Liability of 114. lu case it is found by the statj^rnent directed hy the If arrcBrM'aro ln*'ti, to thr |,ru..-,jiug Ahkc'Wiii' 01' A:sscHMOi>», or nt';,dfctH to rt'turn to tlic Treawumr "''«''"«»»• a comet list of the lands wiiich have conu! to hr'iwMipicd, ii.s rH|i'ir('(l by the one hundred and (deventh Mcction of this Act, mil' II Htntcment of tho Ijidances which remain uncollcctse- •|nent sections, for distruas of goody and chattels on uucli IiukIh, wlieit iml)iic(|uent to the accruing of tho arrears tliey hecomu ocoiipiud. If the latter fail, the only course left for the County Treasurer is to fall Wk upon the principal and ordinary remedy, und that is all tlial this suction directs. (i) The duty to preserve tho list and furnish copies to tlie assessors ii iuiposed by sec. 109. (/) The duty of the assessors to examine the lands and to make a retufn thereof, is also imposed by sec. 109. See further, note v to »*f. 112 of this Act. '.';) The fine under sec. 189 is a sum not exceeding .?100, and the pmiishment under sec. 191 a tine not exceeding .^200, and to imprison- Went until the tine is paid, or to imprisonment for a term not exceed- ing six months, or to both fine and nnprisunment in the discretion of the I'ourt ; and under the section here annotated, though not accord- ing to the sections mentioned, the fines and penalties may be imposed "11 conviction before any two Justices having jurisdiction in wie *-uuuty in Mhich the Municii>ality ia situate. 1 '-'t 716 'lit After Btatc- ment under sec. 113, col- lection of arrears to belong to County trea- surer onlj-. Municipali- ties may re- mit taxes due on non- residents' lands. THE MUNICIPAL MANUAL. [g. H; may T)e paid to such local Treasurer ; but after the said sUite- ment has been referred to the County Treasurer, no more money on account of the arrears then due shall be received by any officer of the Municii)ality to which the roll relates (h) 32 V. c. 36, s. 118. 2. The collection of the arrears shall thenceforth bolonf to the Treasurer of the County alone, (i) and he shall receive payment of .such arrears, and of all taxes on lands of non- residents, and he shall give a receipt therefor specifyiu" the amount paid, for what period, the description of tlie lot or l)arcel of land, and the date of payment, in accordance with the provisions of section one hundred and eighty-six of this Act. (j) 32 V. c. 36, s. 119 (1). 117. Any local Municipality may, by by-law, remit, either in the whole or in i)art, any taxes now due or to become due upon the lands of non-residents within such Muuici- 2«ility, specifying the particular lands upon which the re- mission is made j (k) and, upon the passing of such 1)y-law, (//) The collection thenceforth lielongs to the Treasurer of tlie County alone, sec. 116, and any distress or other proceeding on the part of the local Municipality for the recovery of the taxes, unkss in cases coming under sees. 109 and 111 of this Act, wouldbe illegal. Hokomh v. Sham, 22 U. C. Q. B. 92 ; Smith v. Shmr, 8 U. 0. L. J. 297. It would seem that the roll should not only be returned l)y the collector to the local Municipality, but that the latter siiould return it to the County Treasurer. See sec. 120 of this Act. («■) After the return of the collector's roll, the duty of collecting is cast upon the Treasurer of the County, and upon him nhint: The Council of the County has no control over him so far as this duty is concerned. See note a to sec. 88 of this Act. In cases of non- resident lands subsecpiently becoming occujiied, he may make use of the officers of tlie local Municipality in order, if possible, to make the amount of the taxes by distress of goods and chattels on the Liml, See sees. 109 and 111 of this Act, and notes thereto. (./) It having been declared that the collection of the arrciis shill, after the return of the collector's roll, belong to the Treasurer of tlie County alone, he and he alone is the proper person to receive iiay- ment of arrears on lands of non-residents. The receipts which he may give should specify — 1. The amount paid ; 2. For what period ; 3. The description of the lot or parcel of land ; 4. The date of payment. (k) The rule is, that .after the return of the collector's roll, the col- lection of arrears of taxes appertains to the Treasurer of the County [8. 117. 8,118.] PART PAYMENT OP ARREARS. 717 jr tbe said sUite- isurer, no more liiill be received tlie roll relates. ceforth belong to he shall receive )u lands of non- or specifying the Aon of the lot or accordance with ei«^hty-six of tliis -law, remit, eitliev ?! or to become due in such M\uiici- )on which tbe re- nc of such l)y-la\v, he Treasurer of the r>r proceeding on the of the taxes, unless ,ct, would be illegal. \shair, 8 U. 0. L J. J ouly be returneil Ijy [lat the latter should of this Act. duty of collecting 13 Qon him «'('«''• 1"** ho far as this dnty is let In cases of non- he may make use of ' if possible, to make L chattels on the Iniul. treto. aof thearroiu'sslnll, the Treasurer of the erson to receive va) ■ illector's roll, the cob fasurer of the County it shall be the duty of the Clerk forthwith to transmit a copy of the by-law to the Treasurer or other officer having the collection of such arrears, (l) who shall then collect only so much of said taxes} as are not remitted. 32 V. c. 3G, s. 119(2). " ' ■ • , •■ 118. The Treasurer shall not receive any part of the tax Tiio whole charged against any parcel of land unless the whole of the p^d'at'once, arreare then due is paid, or satisfactory proof is produced of ""'*"? ^^^. the previous i)ayment, or erroneous charge of any portion divWed. thereof ; but if satisfactory proof is adduced to him that any prLtl of land on which taxes are due lias been subdivided, he may receive the proportionate amount of tax chai-geable Hlion any of the subdivisions, and leave the other subdivi- sions chargeable with the remainder ; (in) and the Treasurer may, in his books, divide any piece or parcel of land which alone. This being so, unless there were some provision made to the contrary, neither the Council of the County nor the Council of the local Municipality could legally, in any manner, interfere with the proper performance of that duty. But as the taxes when collected liecome and are the property of the local Municipality, it has been deemed only right that the Council of the local Municipality shall nave power, in some cases, to remit taxes, in whole or in part, due on the land of non-residents. This power can ouly be exercised by Bylaw. When so exercised, a certificate of the fact must be sent to the County Treasurer for his guidance. Tlie duty, of course, remains to collect the balance not remitted. (0 As the collection of the taxes after the return of the roll apper- tains to the Treasurer alone, it is not easy to understand " the other officer having the collection of arrears," to whom reference is here made, It may be intended to refer to the collector before the return of his roll. But the first part of the section deals only with the case of the return of the roll. This part, instead of being merely, as it were, an exception to the first part of the section, may be read us an inilependent section, covering ground not covered by the first part ot the section. (m) The rule is for the Treasurer not to receive part payment of a-Tears of taxes. The exceptions created by this section are : — 1. Unless the whole of the arrears then due is paid. 2. If satisfactory proof be produced of the previous payment, or erroneous charge of any part thereof. 3. If satisfactory proof is adduced that any parcel of land on whicli taxes are due has been sub-divided. The proof in each case is to be such as to satisfy the Treasurer ; '• f'l be satisfactory to him. It is presumed that if the proof be fwsouable, the proof will be deemed by him to be satisfactory. It IS not supposed that any public officer will act otherwise than fr;t ' (R< '■ ■; » ^?, If demanded, treasurer to give a writ- ■ten state- ment of arrears. 718 THE MUNICIPAL MANUAL. [SS. H9, 120. lias been returned to him in arrear for taxes, into as many |)arts as the necessities of the case may requii-e. (n) 3'> V c. 36, a 120. \ / - • 119. The Treasurer shall, on tlemancl, give to tbe owner of any land charged with arrears of taxes, a written state- ment of the arrears at that date, and he may charge twenty cents for tlie search on each separate lot or parcel not exceed- ing four, and for every additional ten lots, a fm-ther fee of twenty cents ; but the Treasurer shall not make any charge for search to any person who forthwith pays the taxes, to) 32 V. c. 36, s. 121. Lands on 120. The Treasurer of every County shall keep a separate unpaid to*bo book for each Township and Village, in wliich he sliall enter ierulin^hooks ^^^ ^^^^ lands in the Municipality on which it appeai-s from by treasurer. reasonably in t)ie discharge of any public duty cast upon him l)y virtue of his otTice. If the proof offered be a paper purporting/ to be a receipt of a collector, school trustee or other Municipal officer, the Treasurer is not to accept such proof until he has received a report upon the same from the Clerk of the Municipality interested, certifying the correctness thereof. Sec, 123. (h) The receipt of a proportion of taxes because of a sulMlivision, and in respect of a subdivided part, necessitates the duty upon tiie Treasurer of charging the remaining subtlivided parts with the re- mainder of the amount of taxes, ana, if convenient or necessary for that purpose, that he should divide the entries of the parct! of land in his books, and he is here authorized to do so. See In re Si'chr and Paxton, 22 U. C. Q. B. 118.^ In Payne v. Goodyear, 26 U. C. Q. B. 448, 451, JJraper, O. J. in delivering the judgment of the Court said : "It appears to me that under the 113th section (same as tliis section) of Tne Assessment Act, when satisfactory proof is adduced to the Treasurer that an entire lot has been subdivided, that officer must adjudge tho question of subdivision, and, finding the fact established, he has the right to receive the proportionate sum of the taxes due on the whole in discharge of the particular subtlivision so ascertained. When he has in good faith determined that the lot has been subdivided, and then received the due proportion of the taxes, the subdivision is as much discharged from the incumbrance as if the taxes on the entire lot had been paid." See furthei, Brooke v. Campbell, 12 Grant 526 ; Stewart v. Taggart, 22 (J. C. 0. P. 2S4. The section has been held to apply to receive a proportionate part of the redemption money after a sale of the whole lot for taxes. See notes to aec. 147 of this Act. (o) The Treasurer is not bound to submit to the demand of any person, whether interested or not, requiring a statement of arrears of taxes on any particular parcel or parcels of land. But it is his duty to submit to tlie demand of the owner (or his agent, which is the same thing), and to give him a written statement of the arrears to -date, provided his fees for search (there being no fee for certificate :r «,121.] LANDS OMITTED PROM ASSESSMENT. 719 the returns made to him by the Clerk and from the Collec- ' tor's roll i-eturned to him, that there are any taxes unpaid, and the amounts so due ; and he shal!, on the first day of May in every year, complete and balance his books by enter- ing against every parcel of land, the arrears, if any, due afc tbeliist settlement, and the taxes of the preceding year which remain unpaid, and he shall ascertain and enter therein the total amount of arrears, if any, chargeable upon the laud at that date, (p) 32 V. c. 36, s. 122. 121. if, at the yearly settlement to be made on the Proceeding* first (lay of May, it appears to the Treasurer that any ilnd'u found land liable to assessment has not been assessed, he shall ^g„*^^^*j report tlie same to the Clerk of the Miinicijmlity ; there- in any year. a^oD, or if it . ^mes to the knowledge oi the Clerk in any other riianner that such land has not been as- sessed, the Clerk shall, under the direction of the Council, enter sucli land on the Collector's roll next prepared by him tliereafter, or on the roll of non-residents, as the case may k, as well for the arreai's omitted of the year ])receding only, if any, as for the tfix of the current year : and the val- uation of such land so entered shall be the average valuation of the three previous years, if assessed for the said three years, but if not so assessed, the Clerk shall require the As- sessor or Assessor for the current year to value such lands ; and it shall be the duty o" the Assessor or Assessors to value How land to such lands when required, tnd certify the valuation in writing I statement) be paiil or tendered, or provided the person making the demand be authorized to do so, &n(\. J'urthwlth payd the taxes. (])) The duties of the Treasurer under this section are : 1. To keep a separate book for each Township or Village. 2. To enter therein all the lands in the Municipality on whicli it appears, from retjnis made to him by the Clerk, ^lvd from. the collector's roll returned to him, that there arc any taxes unpaid. 3. To enter therein the amounts so due. i To complete and balance his books on the first day of May in every year. See note mHr/(t??(«.t, refused to interfere. Jn re Seeker and PuJ^ion, 2'3 I ■ 0. Q. B. 118. s. 5.124.1 PERCENTAGE ON ARREARS. 721 m the correctness thereof, or until he is otherwise satis jied that such tax has been paid. (<) 32 V. c. 36, m(2). ;■ ... 124. If, at the balance to be made on the first day of May Ten percent in every year, it appears that there are any arrears due upon *° ^reare^ any parcel of land, the Treasurer shall add to the whole y«ariy. amount then due ten per centum thereon, (u) 32 V". c. 36, «. 125. '1 . . , (/) Before the Treasurer is to give any credit for taxes, he must be utisfiei' by evidence of the payment. The production of a paper j>\trpoiim(j to be a receipt for the taxes is some evidence of payment. But the Treasurer must be satisfied of the genuineness of the receipt, mJ of the fact that the taxes really were paid. The receipt, even if genuine, is not conclusive evidence of payment. See note m to sec. 119 of this Act. (n) Tlie Treasurer under sec. 120 is required to keep books, in which he shall enter all the lands on which it appears from the Clerk's return and the collector's rolls there are any taxes unpaid, and the mmiil so due. He is under the same section required, on 1st of May ill every year, to complete and balance his books by entering igaiust every parcel of land the arrears, if any, at the last settlement, aJ the taxes of the preceding year which remain unpaid. He is by the same section required to ascertain and enter in 1 is books the Wfl' mmunt of arrears, if any, chargeable upon the land at that date. By this section it is declared, if, at the balance to be made on first of May ill every year, it appears that there are any arrears due upon any parcel of land, he is required to aihl to tha tvhule amount then i'M feu per centum thereon. In Gilks'pie et al. v. Hamilton, 12 U. C. C. P. 427, it appeared that on Ist May, 1862, the Chamberlain of the City entered in his b("ik8 against the lands of the plaintiffs the arrears of taxes charge- aliie thereon, at the sum of $855 25, made up as follows : Taxes for 1859 $250 00 18()0, May 1, 10 per cent 25 00 $275 00 Arrears, May 1, I860 275 00 Taxes for ISGO 250 00 525 00 1861, Mcy 1, lOper cent 52 50 577 50 Arrears, May 1, 1861 577 50 Taxes for 1861 200 00 777 50 1»2, May 1, lOpercent 77 75 — — 85o 25 I *^ "^""tended by plaintiflFs that this statement was erroneous^ 1 'hat the following should have been the statement : — 91 '»! ,»* I i' t. !^ ir if^ r 722 THE MUNICIPAL MANUAL. [9. 125, Whnn there 126. Wherever tlie County Treasurer is satisfied that uMn'i3g t^ere is distress upon any lands of non-residents in arrear dente" tr 'a*. ^^^ taxes, (a) in a Township or Village Municipality, he may jurer'may issue a warrant under his hand and seal to the Collector of Taxes for 1859 $250 00 18C0, May 1, lOpercent 25 00 Arrears, May 1, 1860 275 00 Taxes for 18G0 250 00 10 per cent, on $500 60 00 Arrears, May 1, 1861 575 00 Taxes for 1861 200 00 10 per cent, on $700 70 00 $275 00 575 00 845 00 The Conrt held the former to be the correct statement. Draper, €. J., in giving the jutlgment of the Court, said (p. 429) ; " The question is, if the ten per cent, should be charged on tlie gross amount of arrears appearing due at each annual settlement, or only on the amount of taxes due for the se venal years. In other wonls, whether the amount on which the ten per cent, is to be calculatwl on 1st of May, 1862, is to include the preceding addition of ten per cent, made on 1st of May, 1860 and 1861, respectively. I think the Legislature have used language very clearly indicating an intention that ten per cent, should be added every year, calculated on the whole amount which is in arrear and due upon the lands at the time the charge is made. In the present case the lands were liable to satisfy a given sum on 1st of May, 1862, which sum included taxes for preceding years and ten per cent, added thereto at tlie preceding Ist of May. To that sum, which constituted the whole amount due on the lands, the statute, as I read it, directs that ten per cent, should be added." (a) It is not made the duty of the Treasurer to search for a distress on lands ; but if satisfied there is a distress, he may issue a warrant of distress. In order, to render the Treasurer liable for not making a distress, it would be necessary to aver and ])rove that he had notice of the distress. See Foley v, Moodie, 16 U. C. Q. B. 254. The neglect of a collector whose duty it was to search for distress, was held not to invjilidate a sale subsequently made of the land for arrears that might in whole or in part have been satisfied by such distress. Allen v. Fisher, 13 U. C. C. P. 63. The M law was for- merly otherwise, especially if it could be shown that there was a sufficient distress on the laud at the time of the sale. See Doe Bell V. Reaumore, 3 0. S. 243 ; Doe Upper v. EdwanU, 5 U. C. Q. B. 594; Dohky. Tally, 10 U. C. C. P. 432. But proving that there were a few pieces of timber on the lot, cut down by trespassers, and left by them to be prepared for market in a lot, or that some persons were in the habit of making sugar on the lot, leaving kettles and sap- troughs thereon, were held not sufficient evidence of a distress being on the land to invalidate the sale of it for taxes.- See Doe \-lW\- Edwards, 5 U. C. Q. B. 594 ; Doe d. Powell v, Rorhon, 2 1. 1. y. 1\ 125.] DISTRESS ON XON-RESIDENTS' LANDS. 723 such Municipality, (b) who shall thereby be authorized to authoriio levy the amount due, upon any goods and chattels found JSiy.*''"' ** upii the land, in the same manner, and subject to the same provisions, as are contained in the sections ninety-three to l.m-, Frasery. Maifice et al. , 19 U. C. Q, B. 150. The olcllaw as to the necessity of a distress, and the omission to distrain invalid Ktion, amended by 40 Vict. cap. 7 Sched. A. (198), discretionary *ith the Treasurer to issue his warrant, for by that enactment the »ori"may" was substituted for the word "shall." 'jl^'liere the warrant was tested "Given under my hand and •!d. I* il^ ■ : , I When lands J 27. Wherever a portion of the tax on any land has been to be sold for , "' ,.,,., n ,i ji taxes. due tor and in the third year, or for more than tliree yeai-* (c) The power of the County Treasurer by warrant to levy is limited to uon-resiileut lauds, so long as they remain as such umler his control. That control ceases as soon as, under the provisions of the 109th and following sections of this Act, it becomes his duty tn take the steps preliminary to the amount of the arrears being placed upon the roll of the Township collector for the purpose of Ijeing col- lected by him under his roll out of the property of the occupant. Sni/der v. Shibley, 21 U. C. (J. P. 518, 529. (d) Land vested in Her Majesty, the Queen, is, in general, exemiit from taxation. Sec. 6, sub. 1. But thouch not patented, if "sold 6, sub. or agreed to be sold," or " I, ' ated as a free grant, purchaser or locatee is liable to taxation and sale. the interest of the Sec. 138. cap. 19, sec. 9, of (fi) This was the date tixed by the Act 27 Vict. which this section is substantially a re-enactment. (/) This part of the section is intended to cover a defect which was pointed out in Street v, Kent, II U. C. C. P. 255. (fj) See note I to sec. 138 of this Act. '''mil 127.] 8ALK OF r.ANDS IN ARRKAK FOll TIIUKE YEARS. 725 pifceding the cm'rent year, the Trcrtsurer of the County ohftll, unless othorwiso difectcd by a by-hiw of the County Conuci!, submit to the Warden ot such County a list in du- nlicate of all the lands liable under the provisions of this Act to he sold for taxes, with the amoiint of arrears against each lot set opposite to the same, and the Warden shall f^^g^^* autlienlicate each of such lists by atKxing thereto the seal of years to bo tlie Coipomtion and his signature, and one of such lists shall warrant^of be (lemsited with the Clerk of the County, (h) and the Warden to III) It is declared that "Whenever rr /mrt'ion of the tax on any land has ken due for and in tlw fhird hkji; or for mori' tlian three years \inmlmj the cnrrent year, the Treasurer of the County sliall, ' &c. ThewoidHin Consol. Stat. U. C cap. 55,860. 12-t, were: "Whenever a /crtiow of the tax on any land has been ihio iov Jivf yerirn, ov for siidi longer period, " &o. The statute authorizes a sale upon a cou- tingeiicy. The taxes must be in arrear for the period mentioned Wore any legal sale can take place. A snic for .arrears for a less periml than mentioned is the same as a sale wliere no taxes are in amiar. All the proceedings are in such case void. Ford v. Proud- (W, 9(!rant478; Kcl/i/ v. Mnd-lcvi, 14 Grant 29; JMl v. McLean, "18 r. C, C. V. 41() ; see also Doe lic/l v. Beatnnoir, .S C). S. 24!^ ; Mitnro V, dreii, 12 U. C. Q. B. (547 ; Errinqhnt v. Dumhic, 8 U. C. (.". P. ()5 ; Harhmirn v. Bons/iei/, 7 U. C. C. P. 4(54. In Ford v. Pnnidfoot, 9 Urant 478, which was decided luider that Act, the .arrears of tnxes for noiipiiyment of which the land was sold were for the ye.ars 18r)3-4-5- »)•". The Treasurer's warrant for s.ale w.as issued on the 25tli of Feb- niary, 1858, and the sale took pl.ace on the 1.3th of .July in the same year. There were therefore five years' taxes due at the flate of the war- rant and of the s.ale. But it was held that the taxes were nut due for live years within the meaning of the Act. Spr.agge, V. ('., in giving juilgment, siiid : "It is clear, from the secticms to wliich I have refeiTeJ, that no taxes for a year or pai't of a year are made payable until the collector's roll is placed in his h.ands, because xuitil then there is no hand to receive them. This may be .as Late as the Ist day of October. It is also clear that the year's taxes cannot be due in any sense until after the time for appealing from the assessment roll is exiiired, and the Municip.ality has fixed the rate M'hich sliall be imposed. This must be done, under the statute, before the 1st of August. It may be done before. It is quite impossible th.at it shouKl be done so early in the ye'ter the earliest of these dates and the sale took place within five 726 THE MUNICIPAL MANUAL. [g. I27, otlu;r hIiuU l)e retained to tbo TreasmxT, with a warrHut tlieioto uiinoxetl, under tlie liaud of the Warden iiiid tlic seal of the County, comnuindin«i him to hjvy uikmi tht; iiind for the arreura duo thereon, with his costs. (/) 3'J V c ;JG 8. 128. ■ ' I'.V years ; consuciuontly tlio sale w.aB prcumturc. " In Kclli/ v. Muslim, 14 Orant 'IS), it was detorniined that there must Iju the full jK;rioil of arrears due before the issue of the warrant to sell, lu Hell v. Mi-Iahh 18 U. C. C. P. 41(5, 42.S, Wilson, J., went further than the learned Chanocllor, and said : " I incline to think very utroiigly thut the taxes of the i>reeuding year, for the purposes of sale for ani;.irs, are not to be considered as in arrear till after the expiry of tlie yi u in which they are imposed. It is only ftfti;r th.it time the ('oimty Treasurer has anything to do with them. The Hscnl year in clearly correspondent with the calendar year in this respect, and tliu /;/>• cedimj year's taxes n-e those unp'i,id at the end of tliu year. By tixiiiL' this dcHnitc time the computation is made easy for all partiun, unil there is nothing inccuisistent in holding tliat taxes may l)u due to enable a distress or suit to be maintained for them at one jjerioil, ami that they may be considered as due at another period for tliu imr- poses of a sale of the land itself. The Treasurer's books will certainly not show five years' arrears if any warrant for sale be issued hy hiui, unless the time 1)6 computed from the lirst of the year after the pre- ceding year's taxes have been imposed." In Hell v. MrLnin, tin collector got his roll on the 20th of August, 18.')2, and the CoiHity Treasurer issued his warrant on the 11th of August, ISoT; so tiint according to the decision in Ford v. Prui'il/oaf, ami without goin,' ;« far as suggested by Mr. Justice Wilson, the five years had imt expired, and the sale was void. So in Cuiiiior v. MrPliir.^nii, IS Gnuit ()07, where the c(dlector's roll was not delivered till ai'tc: August, 1852, and the Treasurer's warrant dated lOtli July, IS.')!, the sale, on the authority of the cases already mentioned, was lnW invalid. "When, owing to land being patented in .Tuly, taxes are charged thereon only for half a year, yet this is in effect a taxation for the whole fiscal year ; and so long as the patent issues befnre thf assessment is completed, taxes for the whole of the year Mlartiii such patent issues may be properly imposed, and the laml aolil tliere- for if unpaid. Coffer v. Snfiierland, 18 U. C. C. P. 357. Besuks reducing the period of arrears from five to three years l)efi)re the issue of the warrant to sell, the Jjcgislature, by the use of the wonU "/(»• and in the third year," have endeavoured to avoid some of tliu difficulties which presented themselves in the decided cases to which reference has been made. See further, sec. 347 of The Municiiial Act, and notes thereto. (0 In IlaU V. HW, 2 E. & A. 572, the late Chancellor Van- Koughnet said : *' The Treasurer's warrant is the foundatif>u of tlie subsequent proceedings, irregularities in which, where they have occurred in acts merely ministerial or executive, the Courts have gone a lon§ way to excuse. ... I look upon the act of the Treasurer, in determining what lands are in arrear for taxes ami liable to sale, as a (inaul judicial act, and one which must he per- formed in accordance with the statute." So where the atatute 128, 129.] DUTIES OP TttEASUIlERS. 727 128. The Cmuicil of a County, City or Town hIihU have Council m»y [K)W er from time to time to extend beyond the tornj of fo,*!*"* """' ' pkj'nwnt. 'illjl V. 3Iiiiilnn, ;)ie full ihiHihI (ji iB>U\:M<-L>vn, iirther than the eiy utroiigly that Hrtlo for anuara, ixjiiry of the yiiir time the i'lMinty ual year is clearly ct, ami the /)(•>•• lu year, liy tixiiiL' or all parties, anil es may he due to at one iieriml, anil riod for the imi'- ooks will certainly he issued hy him, ear after the jire- f V. MrLcini, the 2, and the County ist, IS')? ; so that I without going ;w vo years had unt V. MfJ'li>r.^'iii, IS lilivered tdl ai'ti'V 10th July, 1S''T. ntioned, was lu'M u July, taxes arc effect a taxatimi . issues befiire thu the year wlitiviu e land sold tlure- . . 357. Besiilts years before the use of the wonla roid some of the led eases to which ,f The Municiiial [IV Chancellor Van- foundation of the where they have , the Courts have K.n the act of the rear for taxes ami lich must he l^r- where the statute three yeivre, the time for the enforced collection by hulo of DonreKJileiit tuxes by by-law passed for that purpoHO. (k) 32 V, c. 36, 8. 129 ; 40 V. c. 7, ^ched. A. (199). 129. It shall not bo tho duty of the Treasurer to make Trenonror'i imiuiry before affecting a aalo of lands for taxes, to aac(H-tain MU^„gV'r- whether or not tlusre is any distress upon the land ; (/) nor ""it to nII. shall he be bound to inquire into or form any ojnnion of the value of tho land ; (/u) 32 V. c. 30, s. 1 30, Jirat purt. ni[mm\ tho Treasurer, in hia warrant, to tlistinguish between liuida patinted and those under lease or liocnso of oucupivtion, thu warrant was held to be a nullity. Ifcitl v. Hill, 22 U. U. Q. B. 578 ; .V. C, 2 E. i A. 509. A description of tho lamia as "all patented" is however, sutHeient. Brooke v. CiitiiplteU, 12 Grant 52(5. So whore the words used were "a// deeded." Vook v. Joncx, 17 Grant 488. The warrant should show the particular land that is to be sold. Ymmnd v. Elliott, 12 U. C. C. 1'. 217. A description in tho warrant of a jmrticular piece of land as "I't. of s. pt. Ill, Ist Con. Tay, 40 acres, ?12 9,')," was not sufficient. Grant v. (lUmonr, 21 U. C. C. P. 18. It would ho sufficient if the identity of the piece of land sold could be established. McJJondly. McDonaUJ, 2i U. 0. Q. B. 74. It must he under the seal as well as the signature of tho proper officer, J/oci/im V. Qitcmel, 2(5 U. C. Q. B. 5."!) ; Mun/aii v. Saahouriu, 27 U. C. Q. B. 230 ; McDouijall v. McMillan, 25 U. 0. C. P. 75 ; and founded on the Treasurer's return, when a reiuru was re(iuired. Doe M\. UnniiiiDri', 3 (J. S. 243; see also, Errimjton v. Dinabh:, 8U. C. L'. 1'. 05. A miatako in representing tho taxes as due from Ist July, 1820, to Ist July, 1828, m place of from Idt January of these years, was held not to hurt. Due Statu v. Smith, 9 U. 0. Q. B. (558. It was held, under the provisions of a particular statute, that after a Mpirctlon of Counties, the warrant shouhl go to the Sheriff of tho jnuior County to sell for arrears due both Counties. Doe Mountcanhel T. (Jmnr, 4 U. C. Q. B. 23. A warrant issued in 1837 and post- poned hy 1 Viet. cap. 20, wiis held to liave been properly acted on in 1839. Todd V. Werrt/, 15 U. C. Q. B. 614 ; see also, Hamiltuii v. Monald, 22 U. C. Q. B, 1.30. This section is only directory F'^m V. ih'VolUun, 41 U. C. Q. B. 239 ; Vhmxh v. Fenton, 28 U. C. C.P. 3t>4. (i) See note h to sec. 127 of this Act, See note a to sec. 125 of this Act. (m) lu Henry v. Buruess, 8 Grant ';45, 357, Sprayge, Y. C, in •Peakiug of the duty of a Sheriff conducting a tax sale (Sheriffs at that time being the authorized officers to do so), said: "Mr. Cameron put it that the Sherifl" cannot be taken to know that the value of a whole lot necessarily so ^Teatly exceeds the arrears of taxes that a we of the the whole is improper. This implies tliat the Sheriff is not bound to acquaint himself with what he is selling ; that he may properly remain ignorant of the improvements, the quality of the '.l-ii . WW 'Wfi 728 '5^ [I I ' ^ I pi w'h- What InmU only tho tNMurer ■hall Mil. County trea- •urer to pro- uare llHt of lands to bo ■old and ad- ▼erttfie In Oatette. • TIIK MlfNlCIPAL MANUAU [bb. 130, 131. 130. Tli« Trcn'"ror hIuiH not Roll any Inndn which hnvo not becMi included m tlio liutH furniHhed by him to the ('h>rkii of the Hcveval Municipalities in the month of F»'hniarv pre- cedinjj; the Hale, nor any of the landH which havo been re- turned to him ttH being occupied under tho provisioim of tho o);e hundred and eleventh section of this Act, (7) except the l.indH, the arrears for which Imd been plac(!d on tho collection roll of the preceding year and aguin returned mipuid and still in Jirrear in consequence of insufficient distreah lciui{ found an the lands, (r) 32 V. c. 3(5, s. 131. 131. Tho County Treasurer shall (s) pr(![)aro n copy of the list of lands to l)o sold, retpiired by section one Imndicd and twenty-seven of this Act, and shall include therein, in a separate cohnnn, a statement of the proportion of cost« chargeable on each lot for advertising, and for the eoimiiissioim authorized by this Act to be paid to him, distingniHhiiig the lands as patented, unpatented, or under lea.«e or liceiisi' of occupation from the Crown, and shall cause such list to he j)ublished four Aveeks in the Ontario Gazettf, and once a week, for thirteen weeks, in some newspaper published witliin the County, and, in the case of a Union of Counties, in each County of the Union, if there be one j)ublisli('d in each County, and if not, in such County or Counties of the Union in which a newspaper is published, or, if none bo .so published 8oil, and of every particular beyond the niunbcr of the lot and the asanmed quantity. I by no moans concede that he can 1.3 properly ignorant of these particulars, " &c. The declaration made in this section to the effect that the Treasurer shall not be ImiiihI to inquire into or form aiii/ opinion of the value of the land, was so made hec;mse of the decision in Henri/ v. Burnega. (7) The statute is prohibitory. Tho Treasurer shall not sell any lands which have not been included in the lists. There is no authority therefore in such a case to sell at all, and the sale, if any attempted, will bo void. Fi'Mton v. Mc Wain, 41 U. C. Q. B. 239. (r) See note d to sec. 114 of this Act. (.t) The duties of the County Treasurer, under this section, are the following : 1. To prepare a copy of the list of lands to be sold, required by sec, 127 of this Act. To include therein, in a separate column, a statement of the roportion of costs chargeable on each lot for advertising, anil -or the commissions authorized by this Act to be paid to him, distinguishing lands as patented, unpatented, or under lease or license of occupation from the Crown. F. H ';i 131.] LANDS IN JUNIOR COUNTIES. r20 ir this section, are the J soUl, required by sec. in Mtno otlifti* nfiw«imper puMished ii» Home adjoining Comity. 3J V. c. 36, H. 132 ; 33 V. c. 27, h. 1 1 . 2 Wlien a junior County is Boimj-ated from u Union of rroow«iin« _ ■ , ;,. ■' . • " 1 i ii rn c ii when laniU CounticH after a rfittirn i8 inftdo to tho rreaHurtir or the in trrfkr lor I'liitod CounticH of lands in urrear for taxe.s, itut such la.ulH jJ,**|oJco„„. have not been advertiHcd for Halo by tho Treasurer of tlio ty MpkntMi I'liited Counties, or senior County, Hucli Treasurer shall return oVciJii'Jtoit to the Treasurer of the jtmior County a list of all the lands within the junior County returned as in arrear for taxes, < ml not advertised ; and tho Treasui'or and Warden of tho junior County shall have power reH|H'ctively to tuk(! all tho proceed- ini,'H which Treasurers and Wardens, under this Act, can take for the Hide and conveyanco of lands in arrear for taxes ; It) 3. To cause such list to be [jublishud four wenka in tho Ontario llaytti; and once n week for thirteen weeks in some newspaper pubUshed within the County, and in tho c.v.'^o of a union of Counties, in each County of the union, if there l)e one pub- lished in e/ich L'(»unty, imd if not in such (Joimty or Counties in the union in which a newsp.iper is puhlislied, or if none be so published, in s "iiie other newspaper published in some adjoining County. It was, under the 13 & 14 Viet. cap. (57, held that tho omission of the Sheriff to advertise did not affect the validity of a sale for taxes, hut should he treated merely as a direction of the statute which tbo officer was bound to oliserve at Ids peril. Jarrix v. Ciii/ft'i/, 1 1 U. C. Q. B. 282 ; Jan-U v. nrook-c, 1 1 U. C. Q. B. '2\)9. Sucli ia now tho laff in the case of a sale by a Sheritf under writ of execution. Pater- m V. Toihlf 24 U. C. Q. B. 296. But in a case decided under tho 16 Vict, cap, 182, it was held that an advertisement in a local pajjcr was e(jnally necessary with an advertisement in the official Oazctte, snil for want of it the sale was held invalid. WU/invis v. Taylor, 13 U. •'. 0. P. 219. And in a case decided under Conscd. Stat. U. C, cap. K, tlie Court of Queen's Bench, in referring to Wil/lnmn v. Tuiihr. said, "If it were necessary for tlie decision of this case, we should, a.s at present advised, arrive at the same conclusion." If all V. Hill, 22 U. C. Q. B. 584. But such an irregularity was held not wvoid the sale in Coffer v. Sathcrlaiul, 18 IT. C. C. P. 357, and afterwards in Connor v. JJoia/laM, 15 Grant 45(5, by the Court of Appeal. The law is now settled according to the liccision of the Court of Appeal. McLaiic/ilin v. Pi/jiir, 29 U. C. Q. B. 52U. (') Before this subsection, there was a doubt as to tlie proper officer— the Treasurer of the new County, or the Treasurer of the old County— to proceed to the sale of lands situate in a junior Connty, sBuject to arrears of taxes due to the union. By analogy to proci.'dure after the separation of united Townships, it was generally supposed that all power as to the collection of assets, &c. (tlie power to collect involving the power to sell, see note / to sec. 185), would remain ^th the senior County, unless expressly diverted in favour of the jnnior County by Act of Parliament. Sec sees. 172, 173. This aub- 92 mi"«. 4 • f' ♦* fir 730 Nt-tice to be given in Huch adver- tisement. THE MUNICIPAL MANUAL. [ss. 132-131 but, in case the lands in such junior County have been ad- vertised by the 'J'reasurer of the United Counties before such separation, the sale of such lands shall be conii)letecl in the Sixme manner as if the separation had not taken place 3'^ V. 0. 36, s. 132 (2). ■ " 132. The advertisemeut shall contain a notification, tlmt unless the arrears and costs are sooner paid, the Trea-surcr will proceed to sell the lands for the taxes, on a day and at a place named in the advertisement, (u) 32 V c 36 8. US. Time of sale. Notice to be posted up. after 134. 133. The day of sale shall be more than ninety-one dsjg ;er the first publication of the list, (v) 32 V. c. 36 a (.) 36, 8. 134. The Treasurer shall also post a nf»tice similar to the said advertisement, in some convenient and public pl^ce at the Court House of the County, at least three weeks before the time of sale, (w) 32 V. c 3G, s. 135. A section appeared to have l>een Ijaseil upon such an assumption, for it makes a transfer of the power to the junior County uudor certain circumstances. It is declared if the separation be after a return is made to the Treasurer of the united Counties of lands in arrears for taxes, but such lands have uot been ad I'crtised for nale by the Treasurer of the united Counties or senior County, such Treasurer shall return to the Treasurer of the junior County a list of all the lands within the junior County returned as in arrear for taxes but not advertiseil, and the Treasurer of that County is authorized to pniecud to sell. But in case the lauds in the junior County hare, been ntlnrtiml by tlie Ti-easurer of the uniied Counties before the separation, tiie sale of such lauds shall 1)e completed in the sane manner as if the sepiration had not taken i^lace. In Canada Permanent BuiUiiKj Sorlcfji v. Aij- new, 2.3 U. C. 0. P. 200, it wafl held that until the passing of tl.'s enact- ment there was no power either in tiie Treasurer of the senior or junior County, or in any other officer, to sell lands for taxes that accrued clue before the separation ; and that the power can only now be exercised under this enactment, which is held to be retro spective. («) This is directory — not imperative ; therefore the omission of it will not invalidate the sale. See note is to sec. 131 of this Act. [v) The expression is not that there shall be "ninety-one days" at least between the first publication anl the sale, but that tliere shall be "more than ninety-one." See note a tc sec. Ill of TheMuniciiioJ Act. {w) The omission to do as here directed would not invalidate the salt. The enactment is directory — not imijerative. See note « to sec. 131 of this Act. ;. 'i 135-137.] MANNER OF SELLING LANDS. 731 13& The Treasurer shall, in each case, add to the arrears Exp«nsc« published his commission and the costs of publication, (as) amMs" 32V.C. 36, 8. 136. 136. If) at any time appointed for the sale of the lands, Adjourning no bidders appear, the Treasui'er may adjourn the sale from wd^ersr** rime to time to time, (a) 32 V. c 36, s. 137. 137- If the tfl.xes have not been previously collected, or if *'^? '". no i)erson appeara to pay the same at the time and place ap- lands shall pointed for the sale, (b) the Treasurer shall sell by public ^^'^^^^ auction so much of the land as is sufficient to discharge the surer. taxes and all lawful charges incurred in and about the sale and the collection of the taxes, (c) stlUng in preference duch part {x) So that a person intending to pay the arrears may, by inopec- tion of the advertisement and without further or other inquiry, ascertain how much he must pay to prevent the sale. The amount of taxes stated in the advertisement is in all cases to be held the correct amount. Sec. 137. [a] Even tboueh bidders appear, it the Treasurer discover a com- biiuition among tnem, or has reason to believe tliat a combiuiition exists, to prevent fair competition, it seems to be his duty to ailjourn. iiee note c to sec. 155 of this Act. CO There can be no valid sale after payment of the taxes. See note r to sec. 155 of this Act. (f) The 'sale of part of a whole lot which lay in two concessions, for arrears alleged to be due on half, was held to be illegal. JJoe Ui'Per V. Edwanln, 5 U. C. Q. B. 594 Where lots are inolude. The 'i'^t and west halves of lot 1, each containing one hundred acres,. 'I..) . k 'i f 'V. * iy 732 THE MUNICIPAL MANUAL. [s. 137. as he may consider best for the owner to sell fii-st ; (d) and in offering or selling such lands, it shall not be necessarv to descrilie f)articul!irly the portion of the lot which is to Ije sold, Imt it shall be sufficient to say that he will sell so much of the lot as may be necessary to secure the payment of the taxes due ; (e) arid the amount of taxes stated in the Tieas- were granted by the Crown at different times and to dififerent persons. The taxes being in arrear, lots 1 and 2 (four hundred acres) were returned as in arrear for £6 10s. taxes, without distinguishing that cue portion of the taxes was on lot 1, and the remainder on loW2, or upon the separate halves of lot 1. The sheriff put up and sold the whole of lot 1 for the sum of £3 12s. 6d., being half tlie taxes on the whole, and 78. 6d. for expenses. Held, the sale was void because a portion of th- eastdialf of the lot had been sold for taxes, a portion whereof had accrued on the west-half of the lot, and there were no meiins of apportionment. Ridout et al. v. Ketchum, 5 U. C. C. P. 60. So where the north and south half of a lot of land were assessed separately, and different amounts chargeil against each half lot, which amounts were afterwards added together and charged against the whole b)t, and a portion of the wliole lot sold for the combined amounts, the sale was held illegal. Laatenborowjh v. J/c- Lean, 14 U. C. 0. P. 175 ; see also, Doe a. McQ'dl v. Latujton, 9 U. C, Q. B. 91 ; Black V. Harniujion, 12 Grant, 175; ChrUdex. John- stone, 12 (rrant, 534. The i^atent granted a lot by the north and south lialves. The patentee, in 1853, conveyed the lot as a whole, and it continued in one owner till the sale of the 35 acres in 1858. In 1858 and 1859, eai \\ half was assessed separately. For the next three years it was a?>essed in two parcels of 165 acres and 35 acres, and for the succeeding two years the north half 100 acres and the w^est part south half (55 acres were assessed with a valuation oi ^U-SO on the whole. Held, right. Edinburgh Life Asmtrnnre Co. v. Fer- (jtisou et al., 32 U. C. Q. B. 253. In 1865, the 165 acres were sold for the taxes due for six years, including 1858, which was not covered by tbe warrant under which the 35 acres were sold for that year. Held that the sale was bad. Ih. Certain land assessed for taxes were desc) ibed in the assessment as the north part of a certain lot, which part contained 30 acres : Held, a sufficient description of the north- erly 30 acres of the lot, and that it and no other part of the lot was effected by the assessment. Ley v. Wrifiht, 27 U. C. C. V. 522. After a sale for taxes for 1859 and following years, a subsequent sale for taxes for 1858 was held invalid. Mili'i v. McKay, 15 Grant, 192. Where the sale was on the 5th of February, 1867, of taxes for 1859 and 1860, a snbseciuent sale for the taxes of 1802, 1863, 1804, 18(j5 and 1866, was sustained. Thompson v. Culcocl; 23 U. C C. P. 505. Where a warrant contained two different entries of the same lot for taxes due in two successive years, and the sheriff at one sale scdd lor one year's taxes, and at a subsequent atljourned sale, sold the same lot for the second year's taxes, both sales were lield voitL Sehafjtr et nx. v. Lundy, 20 U. C. C. P. 487. {d) See note c to sec. 165. • ' [e) In^K>iag,j8 v. Ledyard, 12 Grant, 322, Mowat, V. C.,said; ''I must presume that the intention of the Legislature was, that a '?! g, 137.1 LANDS NOT REALIZING FULL AMOUNT OP TAXES. 735 urer's pJvertLsement shall, in all cases, be held to be the cor- ,ect amount due. (/) 32 V. c. 36, s. 138 (1) ; 40 V. c. 7, &W.A.(200). ;., 2. If the Treasure!* fails at such sale to sell any land for when land the full amount of an-ears of taxes due, he shall at such sale for fun* ** adjourn the same until a day then to be i)ublicly named by a'nount of liim, not earlier than one weelr, nor later than three months tliereivfter, (Since the statute the objection was renewed but Hagaity, C. J., in Stewart v. Ta(/ijart, 22 U. C. C P. 290, said: "As to the objection that at the sale no particular 89 acres was sold, it is cured by the statute 18G8-9, sues. 138." (137 of this Act (/) An extract from the Treasurer's book showing the amount of taxes imposed, was held not to be sufficient evidence of the fact in an action of ejectment by a person claiming under a tax title. Mmo V. Grci/, 12 U. C. Q. B. 647 ; see Hntl v. Hilt, 22 U. C. Q. B. JSIb; ,y. C. 2E. & A. 569. kl) Uider certain circum^ances, the Shenff mnt/ adjourn a sale. See note c to sec. 155 of this Act. But under the circumstances hsre stated, he shall adjourn ; that is, where he fails to sell nny land for the/((// amount of the arrears of taxes due. Where a person attended a tax sale and ofifered to take twenty -nine acres of the lot and pay the full amount of taxes and expenses, and he was declared the highest bidder, but failed to pay the amount, and at an adjourned sale had the whole lot knocked down for the same amount, the sale was held to be void, loilcl v. Wernj et ai, 15 U. C. Q. B. 614. But the lie ter opinion appears to be that, in such a case, the legal estate, afier a deed has been executed by the Sheriff, passes, and the sale cm only be voided in equity. Raynes et ux v. Crowder et ux, 14 U. ^'Xy.Ul ; McAdle v. Cork,/, ' SO U. C. Q. B. 349. If the pur- ohaser fail immediately to pay the purchase money, it is the duty of tiie Tr'^asurer forthwith again to put up the p^'opei ty for sale. Sec. 139. It would seem that the Sheriff may sue a purchaser for the Mount of taxes, but in such an action it should be expressly aven od that the def»indant promised to pay for the land and accept a certifi- «te within a reasonable time. Jar vis v. Cayley, 11 U. (J. Q. B. ■S2;but8eeiVJHyriye v. Corbett, 14 U. C. 0. P. 557. I'l) The sale will not be held invalid because of a defective notice Msale. See note a to sec. 131. ^"^-^-^ J- tM i cin When trea- flurer sells land the fee ofwblchlsln Crown, be shall only . sell the interest of lessee, etc. 734 /? ; THE MUNICIPAL MANUAL. [SS. 138-UO. directed by the local Municipality in which they are situate for any sum he can realize, and shall accept such sum as full payment of such arreara of taxes ; (i) but the owner of any , , land so sold shall not be at liberty to redeem the same, excent i upon payment to the County Treasurer of the full amount of taxes due, together with the expenses of sale ; (k) and the Treasurer shall account to the local Municipality for the full amount of taxes paid. 33 V. c.* 27, s. 8. 138. If the Treasurer sells any interest in land of which the fee is in the Crown, he shall only sell the interest therein of the lessee, licensee or locatee, and it shall be so distinctly ex[)ressed in the conveyance to be made by the Treasurer and Warden, and siich conveyance shall give the purchaser the same rights i.i respect of the land as the original lessee, licensee or locatee enjoyed, (l) and shall be valid, without requiring the assent of the Commissioner of Crown Lands. 32 V. c. 36, s. 139. When pur- 139. If the purchaser of any parcel of land fails imme- to pay pur- diately to pay to the Treasurer the amount of the purchase chase money, money, the Treasurer shall forthwith again put up the pr-)- perty for sale, (m) 32 V. c. 36, s. UO. ^ Certificate of Sale — Tax Deed. Treasurer 140- The Treasui'er, after selling any land for taxes, sliall «ive a pur- give a certificate under his hand to the purchaser, {n) stating (») The power to sell at the first sale is only for the full amount of taxes. But at the adjourned sale the Treasurer may sell " for any sum he can realize." Neither the Trestsurer nor the Corporation is respon.sible for the title of the land sold. Austin v. Simcoe, 22 U. C. Q. B. 73. (k) See sec. 147 of this Act. (/) Land vested in the Queen is exempt from taxation. Sec. 6, sub. 1. But where land is leased, sold, or agreed to be sold by the Crown, or located as a free grant, the interest of the purchaser or locatee is liable to taxation. Sec. 126. Being liable to taxation, it is liable to sale, but the sale of course only passes the rights in respect to the land which the original lessee or locatee enjoyed. Such a sale, when followed by a deed, would, however, prevail against a patent subsequently issued to the original lessee or locatee, or a per- son claiming under him. JRi/ckman v. Van VoUenburgh, 6 U. C. C. P. 385 ; Charlen v. Dulmage, 14 U. C. Q. B. 585. («i) See note f/ to sec. 137 of this Act. (h) The certificate must — & 141.] EFFECT OF TREASURER'S CERTIFICATE. 735 Purchaser of lands oold tor taxes to be deemed owner there- of, for certaiu purposes, oa receipt of Treasurer's certificate. distinctly what part of the land, and what interest therein, chaser a have been so .sold, (o) or stating that the whole lot or estate ^^"^^ "' ban been so sold, and describing the same, and also stating the quantity of land, (p) the suno for which it has heen sold, and the expenses of sale, (q) and further stating that a deed '. coureying the same to the purchaser or his assigns, according to the nature of the estate or interest soldj with reference to ;he one hundred and thirty-seventh aud one hundred and ihirty-eighth sections of this Act, will be executed by the Treasurer and Warden on his or their demand, at any time after the expiration of one year from the date of the certifi- cate, if the land is not previously redeemed, (r) 32 V. c. 36, s. 141. 141. The pui'chaser shall, on the receipt of the Treasurer's certificate of sale, become the owner of the land, so far a« to have all necessary rights of action and powers for protecting the same from spoliation or waste, until the expiration of the term during which the land may be i-edeemed ; but he shall not knowingly permit any person to cut timber gi'owing npon the lan:l, or otherwise injure the land, nor shall he do so himself, but he may use the land without deteriorating its value, (s) 1. State whether the whole or part, and if part, what part of the land has been sold. 2. State what interest therein has been sold. 3. Describe the same. 4. State the quantity sold. 5. State the sum for which it was sold. 6. State the expenses of sale, including'commission. See sec. 144. ". State that a deed conveying the same to the purchaser or hia assigns will be executed on demand at any time after the expi- ration of one year from date, if land not previously redeemed. See sec. 148. When a certilicate is given, the land must be properly described in it, and be the same land as afterwards conveyed. Burgemv. Bank of Montreal, 42 U. C. Q. B. 212, » (o) See sec. 138 of this Act. (p) See note a to sec. 145 of this Act. (?) See note i to sec. 137 of this Act. (r) See see. 147 of this Act. W The certificate confers a qualified ownership on the purchaser. He becomes the owner so far as to have all the necessary rights of Mtion and powers for protecting the land from spoliation and waste. .'rt i''.| ,f : 736 THE MUNICIPAL MANUAL. [ss, 142, 143, FroTiio. 2. The puT'chaser sliall not be liable for damage done with- out his knowledge to the piO})erty during tlie time the cer- tificate is in force. 32 V. c. 36, s. 142. Meet often- 142. From the time of a tender to the Treasurer of the derofarrears ^^^jj aniount of redemption money required by this Act the said purchaser ahaA cease to have any further right in or to the land in question, (f) 32 V. c. 36, s. 143. 143. Every Treasurer shall be entitled to two and one-half j)er centum commission upon the sums '■ollected by In\n as aforesaid, (tt) 32 V. c. 36, s. 144. Treai'uror's commission. He is not knowingly to permit any person to cut timber growing npon the land ; nor can he himself cut timber on the land, or other- wise injure it. But he may use the land, so long as he does not deteriorate its value. If he injure the land or knowingly permit it to be injured, no doubt ho would be responsible to the owner in the event of the land being redeemed. But it is expressly declared that he is not to be held responsible for damage done without his know- ledge. Under such a certificate the purcliaser is entitled to the pos- session of the land sold, and being in possession he can avail himself of the certificate as a defence to an action of ejectment by the owner of the lanil. Cotter v. cSuthtrUiud, 18 U. C. C. P. :i57. So it would seem that under such a certificate he may maintain ejectment against any one in possession under the former owner. Ih. In McLauc/dan v. Pyper, 29 U. C. Q. B. .528, Wilson, J., said : "After the time for redemption has gone by, the certificate still continues iu force, and the owner has lost his power to redeem. Betweeu tliat time and the giving of the deed to the purchaser, could the purchaser take possession of the land or eject the former owner by authority of the certificate, or defend his possession against an action by a former owner ? I think he could. Yet there is no greater right given to him by the statute *;o do any of these acts under the ccrtili- cate, after the time for redemption has gone by, than while it is con- tinuing. If the purchaser were to enter o;^ a vacant lot for tlie purpose of using the land without detiorating its value, could the owiier, while he had still the right to redeem, eject the purchaser? I think he could not. The purchaser cannot use the land while another person is using it, and claims the right to use it adversely to him. The use referred to is the usun/ructitu, as distinguished from ihejiileicommii- sum, or what is technically called a use as allied with trusts. 2 Bl. Com. 327. 8o it is like that kind of use of land for which an ac Ciou for use and occupation will lie. {t) The rights of the purchaser are described in note » to the pre- ceding section. It is here declared that these rights shall cease " from the time of a tender to the Treasurer of the full amount of the redemption money required by this Act," but no provision is made for communicating the fact of such tender to the purchaser. (h) The commission is "a lawful charge," within the meaning of sec. 137, so as to entitle the Treasurer to sell for it as well as the taxes in arrear. See sec. 144 of this Act, 88.144,145.] DESCttlPTION OF LANDS SOLD. 737 144, Wherever land is sold by a Treasurer, according to Fees, etc., on the provisions of the one hundred and thirty-first and fol- **'*' °"*°*' lowii)" sections of this Act, he may add the commission and costs which he is hereby authorized to charge for the services above mentioned, to the amount of arrears on those lands in resjject of which such services have been sevei'ally jier- formed, (v) and in every case he shall give a statement in detail with each certificate of sale, of the arrears and costs incurred, (w) 32 V. c. 36, s. 145. 145. The Treasurer shall, in all certificates and deed's Expenies of pven for lands sold at such sale, give a description of the gi"ry office" part sold with sufficient certainty, and if less than a whole ["' deswip- lot, tlieu by such a general 'description as may enable a Sur- veyor to lay olT the piece sold on the ground ; («) and he (r) The commission is in th© nature of poundage, to be levied over and above the amount of taxes, and the Treasurer is only entitled to it when he lias made the money. See Buchanan v. Frank, 15 U. C l. P. 1%; S. a, 1 U. 0. L. J. N. S. 124; see further, Grant v. Hmihn, 2 U. C. L. J. N. S. 262 ; Maxh v. Dkhenmn, L. R, 2 C. P. '252; Bmids v. Bath Colliery Co., 36 L. T. N, S. 800. (ir) See note « to sec. 140 of this Act. (d) The method prescribed by 6 Geo. IV. cap. 7, sec. 13, was, to begin at the front angle of the lot on that side whence the Jots are numbered, and measure backwards, taking a proportion of the width, corresponding in quantity with the proportion of the particular lot in regard to its length and breadth, according to the quantity re(|iured to make the sum demanded. A deed thereunder of " thirty icresoflot, &c., to be measured according to the statute," was held to contain a sufficient description. Fraser v. Mattice et aL, 19 U. C. Q.B. InO; see also, Mclntijre v. Oreat Western liailwa'j Cr., 17 U. C. Q.B. 118. But a description as "twenty-five acres of lot," &c., without more, was held insufficient. Cayley et al. v. Foster, 25 U. C. QB. 405. So where the deed, under the 6 Geo. IV., of 120 acres of ilotof land, contained two descriptions — the first a description by >. metes and bounds, which was not in acconlance with the statute aid the other a general description in accordance with the statute, tie latter was held to govern. Mcfutyre v. Oreat Western Raihoay f",17U. C. Q. B. 118. But the statute 13 & 14 Vict. cap. 67. 'hich succeeded the 6 Geo. T"'',, which was repealed by 13 & 14 Vict. t^p. 66, required a description by metes and bounds, and a deed, Mce that statute, of land sold under it not containing a description w metes and bounds, was held invalid. McDonell et al. v. McDon- «'',24U. C. Q. B. 74. "West part of lot 31, in the 2nd con. of ™ Township of Enniskillen ; that is to say, 185 acres thereof," held uaufficient. Knaggs v. Ledyard, 12 Grant 320. Affirmed on »PN. "South part of west half of lot 17, in 9th con. Rawdon, 75 ■ «fH, ' insuthcient. Booth v. Oirdwood, 32 U. C. Q. B. 23. "Part « south part 111, in 1st con. Tay, 40 acres," not safficient. Grant 'Gilmnm; 21 U. C. C. P. 18. " N. i and W. pt. S. I 165 acres," 03 i /I, !■ S ^w**** ., pM . Slj.; i Sm- ' --? ..[iid^^l^^H m \t'i^^ '^:'.;: It . . f. 738 THE MUNICIPAL MANUAL. [g. 148_ may m ike search, if necesHary, in the Registry Office to as- certain the description and boundaries of the whole parcel and he nmy also obtain a Surveyor's desciption of such lots' to be takon from the Registry Office or the Goveinmeiit maps, where a full description cannot otherwise l)e oljtained such Surveyor's fee not to exceed one dollar ; and the charge so incurred shall be included in the account and paid by the purchaser of the land soid, or the party redeem ina the same, (b) 32 V. c. 36, s. U6. Trearorer 146. Except as before provided, the Treasurer shall not be nooth***** Mnt!tled to any other fees or emoluments whatever for any services renlered by him relating to the collection of aireare of taxes on lands, (c) 32 V. c. 36, s. 14/. fees. and "N. ^ lOG and W. pt. S, i, 65 acres," held bad on ♦^be authority of Knaf/gs v. Ledyard. Edinburgh Life Ansurance Co. v. Fenjimn, 32 U. 0. Q. E 253. Wilson, J,, said in th3 last case (p. 270) : "I was one of the.aiBrmiug Judges in that case (KnaggK v. Ledyard); but. T have since, in the case oi Booth v. Girdivood, 32 U. C. Q. B. 23, expressed my opinion that the juJgment I then gave was not the one which I ought to have giveii, for that the west part of the south half of a lot containing 65 acres, is a defined portion of land, namely, the west 65 acres of a particular block of 100 acres." "West hah" of the lot has been held good and sufficient. Bell v. McLean, 18 U. C. C. P. 416, '419. So " the N. or W. i 14," in a list under sec. 118 of this Act. Stetoart v. Taggart, 22 U. C. 0. P. 284. "Thirty acres north part of lot 33," is sufficient. Ley v. Wright, 27 U. C. 0. P. 522. "Rice Lands Paris Hydraulic Compaiiy," not sufficient Greenatreet v. Paris, 21 Grant 229. "The easterly 14 acres of the west- erly 90 acres of the north half of lot No. 2 in 10th con. of the said Township of Innistil butted and bounded as follows, &c.," sufficient Austin V. Armstrong, 28 U. C. 0. P. 47. This section requires a " description of the part sold with sufficient certainty." This in the same section is defined as being '* such a general deacrlplion as raay enable a surveyor to lay off the piece sold on the ground. " A descrip- tion by metes, bounds, and courses, having relation to the boundaries and courses of the original lot, would be the best description. It Vi^ould be pnident for the Treasurer in all cases, before making his deed, to obtain a Surveyor's description of the piece sold. This, no doubt, would be sufficient to enable the same, if not any s'lrveyor, to lay it off on the ground. Such a dc ?ription could be made out by an examination or the boundaritii of ioe v/hile lot, and the examination, if necasaary, of the Registry Office. The government maps may be examined where a full description cannot otherwise be obtained. Allowance is made by the section for a surveyor's fee, not to exceed $1, to be included in the Treasurer's acco-mt, and paid by the purchaser. (&) See sec. 146 of this Act. (•«* any time within one year from the day of sale, exclusive of purchaw that day, (e) redeem the estate sold by paying or tendering JJ^^f^'JjJ^ to the County Treasurer, (/) for the use and benefit of the thereon. v.'Oti Q. R 292 ; and where a statute allows cei-tain specified fees to a public officer, none others are in general allowed. See Hooker et at. V. Giirnett, Hi U. C. Q. B. 180 ; In re Dmndxon and Waterloo, 22 U. C. Q. B. 405 ; see further, note c to sec. 273 of The Municipal Act. ((/) The right to redeem is given to the i)wner of the land or his heirs, executors or administrators, or tc any other person, whether claiming title or not. McDowjall v. Mt: Millan, 26 U. C. C. P. 75. Such was the law before the passing of this Act. Boulton v. Ruttan, 20. S. 362; GUchrUit v. Tobin, 7 U. C. C. P. 141. [i] The time for redemption is, " any time within one year from the day of sale, exclusive of that day. " Where the sale took place ott the 7th of October, 1840, payment of the redemption money on the 8th of October, 1P<1, was held too late. Proudfootv. Bush, 12 U, C. C. P. 52. Buc payment on the 7tb of October, 1841, would have been sufl&cient. /fc.' (/» lu Allan V. Hamilton, 23 U. C. Q. B. 109, the land was sold ii October, 1560. The land was sold for the taxes of 1855-6-7 and 1859, under a warrant dated 11th June, 1860. The amount paid by the purchaser was $31 51. In January, 1861, the owner of the land applied to the Treasurer to know the amount of taxes then due on the lot, and was told $37 48 for the years 1855 to 1800 inclusive. This was paid, and a receipt was taken for the taxes for those years. The Treasarer, in March, 1861, went. to the SheriflF 's office, and caused an entry to be made in the book of sales, opposite to the lot, that the taxes had been paid within two months after the sale, that he would pay the purchaser the redemption money, and that no deed was to be given. The px'.rchaser was afterwards, and before any deed was given, told what had been done. But for some unexplained ttason, a deed was, notwithstanding, given. Held, invalid. In h\jM V. Ooodyear, 26 U. C. Q. B. 448, an entire lot having been wld for taxes, a person paid the redemption on the e»3t half, and a different person the redemption on the west half. It was aftei-warda represented to the Council that the last mentioned payment was a Batake, and the Treasurer having been ordered to refund, applied we money to a wholly different lot Held, that the east half was Pfoperly redeemed. lu givmg judgment. Draper, C. J., said : "The power to sell land wa? created in order to collect a tax, and the same fSMon that iuflutn'.ed the Legislature to enable the true owner of a iWrt to p^y his p.o'jer part of the taxes on the whole lot, would exist !J 48 favour to permit him to redeem (that part). . . We think tlT'ik ^^ ^^^^^^'^^ with the spirit and intention of the Act to hold ' , , .® ^nefit conferred on owners of land, under the circumstances nited in the 113th (118th) section, should be treated as extending to "'^w, similarly circumstanced as owning a subdivision of a lot, and to n : h. ' ' It/, [q- Nil* u ■ 740 THE MUNICIPAL MANUAL. [g. 143 purchaser or liis legal representativea, tlie sum paid \>y him together with ten jjer centum thoreor ; (g) lunl the TivaHint'i' shall give to the party paying such reileinjition inDiit'v, 11 re- ceipt stating the Bum paitl and the object of payment; ami such r(!ceipt shall be evidence of the redemption. Ih) 3'> V c. 3G, s. 148. ^ / - • M^t"'/-*'"' ^^®' ^^ ^^^ ^'^"'^ ^^ ""*^ redeemed within the period so al- deemed. lowed for its redemption, being one year exclusive of tbo da) enable them to redeem on adibioing .satisfactory proof to the Treasii rer of the subdivisiim. In our opinion, tliereforu, the ]iaymeiit received by the Treasurer of tfic jiroiiortlni of the arrears of taxis for whieh h)t l.'{ was sohl — which wouUl be, and in fact were, (hie in respect of tiie east ludf oidy — was an ell'ectual redeinntiou of thai halj'uf the lot. And we |)refer to rest our conchision in favour of tlie defencbants on this ground, to entering upon the (to my appruheiision) more doubtful (juestion — on the payment made hy mistake in the west half of the lot,— a payment which, at first glance, can hardly be said to have redeemed the lot, without holding that tiie form, luit the substance, is to bo considered by the Court, " &c. If the ovviitT, insteatl of paying the redemption money to the County 'i'reasurer for the vendee, pays it to the latter personally, and he accepts it, the liayment is in equity as effectual to save the property iis payiiiuiit ti the Treasurer would have been. Ccmuron v. Barnhari, 14 (irantlilil. So if the vendee verl ally agrees to accept payment personally a^ .. distance from the County Town, in lieu of its being made to tlie Treasurer for him, and the owner acts on this agreement, tin; nthur cannot afterwards, to the owner's jirejudice, require payment ot *hc money to the Treasurer, refuse to receive it himself when it is too late to pay it to the Treasurer, and insist on the land ))eing forfeited. lb. Where such an agreement was proved ly a cretlihie witness, but there was contradictory evidence as to whether wliat took place amounted to r.n agreement, the Court, holding that the presumptiou in a case of doubt must be in favour of fair dealing and not of for- feiture, gave the owner relief. Ih. (,7) When the redemption money is paid, it becomes the money of the purchaser, and not of the Municipality, H'i/.von v. Huron anl Bruce, 8 U. C. L. J. 135 ; Boukon v. York and Peel, 25 U. C. Q. B. 21, and all rights of the purchaser in regard to the land cease from the time the money is paid or tendered to the Treasurer. Sec, 141'. Where the purchaser, after the time for redemption is past, succecils in equity in having the sale avoided, he will be made to do eqiuty and pay the purchase money and ten per cent, thereon. Mammjbtm V. Montayue, 9 Grant 92. (h) The receipt must state : ' 1. The sum paid. 2. The object of the payment. And when these things are stated in it, and not otherwise, the receipt is made evidence of the redemption. The words are, sucn ':i SS.U9, 150.] FOIIM OF DEED TO PUKCHASER FOR TAXES. 741 of sfile as aforoHiiid, (/) tlifii, on tho dcMnnnd of the jmrcliaser, or hw lusHigius, or other legal representative, at any time aft«'rwa''d8, and on payment of one dollar, (k) t]m Treasiu'er shall |)r('i)iire hjuI execnte with the Warden, and deliver to hiia or them, a deed in duplicate of the land sold, in whicli <1(C(1 any number of lots may be included at the i eqm^st of till' inircliaser or any a-ssignee of the purchaser. (/) 32 V. c, 30, H. 149. 149- The woi'ds " Treasurer " and " Wardcm " in the fore- Moaniiuf of going section .sliall mean the j)orsous who at th(! time of the ^frc/and'' execution of the deed in such .section mentioned hold the WarUen. siiiil offices, (/u) 37 V. c. 19, s. 7. 160. The de(!d .shall be in the form or to the same effect as Contontu of in Schedule K. to this Act, (n) and shall state the date and effect" ciiiise of the sale, antl the pricCj^and shall descrilxi the land ac- *''»8''«<>f. coidiiig to the provisions of section one hundred and forty-five (not «H//) receijit shall be evidence of the redemption." See Smith Hill. V. Blakeij: L. R. 2 Q. B. 32«. (i) See note e to sec. 147 of this Act. (i) On tlie demand of the purchaser, &c., and on pajrment of one ilollar, it is incumbent on the Treasurer to prepare and execute (with the Warden) and deliver a deed in duplicate of the land sold. If he afuse t<) comply, an caetion will lie agivinst him, at the suit of the purdiaser, for the recovery of damages. See Stxi fjord v. Nlicrwood, SO. S. 441 ; see also lionllon v. RnUon, 2 O. S. 362. The deed may W' in the form mentioned in schedule K, to this Act, and shall have tlie effect mentioned in sec. 150. The deed may be demanded by an Msignee of the purchaser. See Doe ) and no such deed shiill ho invalid for any error or miscalculation in the amount of Uixea or interest thereon in arrear, or any error in descrihiii" the land OH " patented " or " unpatented "or '• held uiuler a license of occupation." (q) 32 V. c. 3G, s, 150: 34 V. c 28, 8. 4. 161. The deed shall be registered in the Regiatry Office of the Registration Division in which the lanils are situate, within eighteen months after the sale, otherwise the parties claiming under such sale shall not he deemed to have pre- served their priority as against a ])urchaser in good faith who has registered his deed jnior to the registration of the deed from the Warden and Trejvaurer. 31 V. c. 20, s. 58. &c also Rev. Stat. c. Ill, s. 76. Koffiitration 2. The Registrar or Deputy Registrar upon production of decdf. of the duplica-.e deed, (r) shall enter the same in the llegistry book, and give a certificate of such entry and registration (o) The (Iced must state. — 1. Tho date and cause of the sale ; 2. The price ; And (leMcrif)P the land in accordance with the provisions of section 145 of thia Act, which see, and notes thereto. (p) The form of the deed is one thing ; i s effect, another. It is declared that the deed shall be in the form given, and wlien in ninh form shall have the effect of vesting the land in the purchaser in fee simple or otherwise, according to the estate or interest sold. See sec. 138 and notes thereto. It is not declared, as was declareil in Con. Stat. U. 0. cap. 55, sec. 150, that the deed sliall vest the land in the purchaser, "free and clear of all charges and incumbrances thereon ;" but, considering that the taxes accrued on any land are by sec. 105 made a special lien thereon, having prefereuco over all claiiu«, liens, privileges, or incumbrances to any party except the Crown, it is reasonable to intend that it shall convey the laud free of incum- brances. (V) In other words, the deed, notwithstanding errors or miscalcu- lations such as specified, shall he valid. See further, as to the binding effect of the deed, sees. 155 and 156 of this Act, and notes thereto. {r) The provisions of the Registry Acts ore as much applicable to deeds of this kind as any other deeds. See Doe Brennan v. J\«/, 4 U. C. Q. B. 8. But no proof of execution is apparently necewary in order to satisfy tho Registrar. He is, upon pmluctm of the 'M [8. 151. ting the land in ler h^giil rt'|)ic- g to tlia uatiiK! li d«(!cl Hhall U\ uno\int of taxen describing the ' held xuuler a 150; 34 V.c. Registry OtHco of ids ani situate, wise tlie jiarties )d to have pre- n good t'aiih wlio tion of the deed . 20, H. 58. Sec upon production ! in the Registry and rogistnitioii 152.] REOISTRATIOy OF DEEDS. 743 •ovisions of section jct, another. It i» anil when in mch lio purchaser in fe<; linterest soil, i^et ba was tleclaretl in [shall vest the land I and incumbrances on any land are by uce over all claim*, jcept the Crown, it laud free of incuui- ^rrors or miscalcu- Ifurther, as to tlie Ihis Act, and notes Uich applicable to ^rennan v. 02^>'"t Iparently necessary ' production of the la acconlance with *' 77*« Jiegiatri/ Act." (s) 32 V. o, 36, R«t. But. e. 1 151. "*• 152. As rcHpects land Hold for tuxos before the first day Oj} *•»* wr- of January, one thousand eight hundred and fifty -one, on the K«Kiitrar to receipt by the Registrar of the j)roper County or place, of a ^^J, certiticate of the sale to the purchaser under the hand and deeds of gfiil of otlice of the Shi-rifT, stating the name of the purchitser, for m^i^bt. the sum paid, the number of acres and the estate or interest '<»" iMi. loki, the lot or tmct of which the same forms ])art, and the date of the Siieriflf's conveyance to the purchaser, his heirs, executoi-H nduiinistrators or assigns, (t) and on production of duplicate deed to enter the instrument in the Re;{iBtry book. He ii biiund to givu a certiticate of the entry and registration. Special proviniun is also, l)y this Act, made for the registration of deeds of Luvl sold l)ef ore the 1st January, 1851, sec. 162, or sohl between the lit January, 1851, and prior tu the 1st January, 18GG. Sec. 153. (») It was declared by the Registry Act of 18G5, which was passed on the 18th September of that year, that every deed made by a Sheriff or other officer for arrears of taxes should be registered within eighteen months after the sale l)y such Sheriff or other officer, . . . otmnrise the p irties claiming under authority of such sale should not 1 e deemed to have preserved their priority against a purchaser in giKMl faith, who may have registered his cleed prior to the regis- tratiiin of such deed from the Sheriff or other officer. Stat. 2$) Vict. cap. 24, sec. 50. It was, by the same statute, declared that all deeds for lands sold for taxes l)efore the passing of the Act should be regis- tered within one year after the passing of the Act on peril of losine priority as against a purchaser in good faith, who may have acquired priority o; regi8tratif)n, /A. sec. 57. This Act was repealed and, in lubstanco, re-enacted by 31 Vict. cap. 20, Out. Sec. 58 of the last mentioned is a transcript of sec. 5U of the first mentioned Act. So ttc. bM ni the last mentioned is a transcript of sec. 57 of the firt>t mentioned Act ; and being so, a question may arise under the last mentioned section, whether it had not the effect of extending the period for the registration of all deeds at miif time made he/ore 18C8 until one year thereafter, notwithstanding the provision of the Act of 186.'), which required registration of all deeds before then (18th Sep- teml)er, 1805) executed, to be registered within one year thereafter. In ejectment the plaintiff' claimed under a tax title made in 1839. The Sheriff 's deed was made on 10th July, 1840, but not registered till 18th July, 1861. The defendant claimed under the heir-at-law fif the patentee, by deed dated 18th May, 1855, and registered on 5th July, 1855. Held, that the title being an unregistered one when the Sheriff's deed was given : that the deed did not require registration to preserve its priority : that, having been registered before the 29 Vict. cap. 24, sec. 57, repealed by 31 Vict. cap. 20, sec. 59 Ont., it was unnecessary to re-register it under those Acts. Jonex v. Cowden "n'., 34 U. C. Q. B. 345 ; affirmed, 36 U. C. Q. B. 495. (') Deeds of land sold under this Act are to be registered on mere production of the duplicate. Sec, 151, sub. 2. But where the sales took ''I, m ■> \ '. V 'j^ ' 4 744 THE MUNICIPAL MANUAL. [ss. 153, 154. %t 4''; rf the conveyance from the Sheriff to the purchaser, his heirs, executora, administrators or assigns, such Registrar shall register any Sheriff's deed of land |old for taxes before the first day of January, one thousand eight hundred and fifty one ; and the mode of such registry shall be the enteriu" on record a transcript of such deed of conveyance, lu) 32 V c. 36, s. 152. 153. As respects land sold for taxes since the first day of January, one thousand eight hundred and fifty -one, and prior to the first of January, one thousand eight hundred and sixty-six, the Sheriff shall also give the purchaser or his assigns, or other legal representatives, a certificate under his hand and seal of office of the execution of the deed, contain- ing the particulars in the last section mentioned ; (i') and such certificate, for the purpose of registration iu the Registry Office of the proper Registration Division of any deed of land so sold for taxes shall be deemed a memorial thereof; and the deed shall be registered ; and a certificate of the registry thereof shall be gi'anted by the Registrar on produc- tion to. him of the deed and certificate, without further proof ; (w) and the Registrar shall, for the registry and certi- ficate thereof, be entitled to seventy cents and no more, [x) 32 V. c. 36, s. 153. Treasurer to 154. The Treasurer shall enter in a book, which the ^k descrip- County Council shall furnish, a full description of eveiy tions of parcel of land conveyed by him to purchasers for arreai-s of Ittllds COD* *> V L veyedto pur- taxes, with an index thereto, and such book, after such entries ^serby have been made therein, shall, together with all copies of Collectors' rolls and other documents relating to non-resident Sheriff to give oertifi- o»t«i of exe- cution of conveyances since Ist January, 1861, and before Ist January, 1866, for registration. If ' place before the Ist January, 1851, a certificate under the hand and seal of office of the sheriff is in acldUion required. Such certificate must state : 1. The name of the purchaser ; 2. The sum paid; 3. The number of acres, and the estate or interest sold ; 4. The lot or tract of land of which the same forms part : 5. 'The date of the Sheriff's conveyance to the purchaser. (m) See note r to sec. 151 of this Act. {v} See note ^ to last section. (w) See note r to sec. 151 of this Act. (x) See note c to sec. 146 of this Act. •?) S.155.] CONDUCT OP TAX SALES. 745 lands, be by him kept among the records of the County, {y) 32 V. c. 36, s. 154. • 165. If any tax in respect of any lands sold by the Trea- P^,***** 8ui"er, in pursuance of and under the authority of " The As- all, if land mmient Act o/1869" or of this Act, has ueen due for the third T" o'SyX!* year or more years preceding the sale thereof, («) and the same 32 v. c. Sd is not redeemed in one year after the said sale, (i) such sale and <**>• the official deed to the purchaser of any such lands (provided the sale be openly and fairly conducted) shall be final and binding upon the former owners of the said lands, and upon s& iiersons claiming by, through or under them (c) — it being intended by this Act that all owners of land shall be required (i/j Entries made in such a book, as to the particulars mentioned, might, in the event of the death of the Registrar, be evidence of the {Kts therein contained. See Smith et al. v. Blakey, L. II. 2 Q. B. 326. (a) See note h to sec. 127 of this Act. . (6) iSee sec. 147 of this Act, and notes thereto. (<•) In Cotter v. Sutherland, 18 U. 0. C. P. 390, Wilson, J., said : "We should require strict proof that the tax has been lawfully made ; but in promoting its collection we should not surround the procedure with too unnecessary or unreasonable rigour. We should sec that the law is honestly and fairly carried out, and that no injus- tice is done to the owner or the public, and that the claims of pur- chasers are properly maintained. A substantial rather than a literal compliance with the provisions of the statute will more ecjually, and qnitc fairly protect all parties. " This language was quoted with approbation by Chief Justice Richards when delivering the judg- ment of the majority of the Judges of the Court of Error and Appeal in Connor v. DoikjUu^s, 15 Grant 456, 464. In Pai/ne v. iMMymr, 26 U. C. Q. B. 448, 451, Draper, C. J., in delivering the judgment of the Court, said: "The primary, it may be said the sole object of the Legislature in authorizing the sale of lands for arrears of taxes was the collection of the tax. The statutes were not pisseil to take away lands from their legal owners, but to compel those owners who neglected to pay their taxes, and from whom pay- iient could not t)e enforced by the other methods authorized, to pay ly sale of a sufficient portion of their lands." In Cook v. Jones, 17 ••rant 489, the present Chancellor said: "The language of Chief justice Draper in a previous case, Payne v. Goodycnr, 2G U. C. Q. B. «1, states accurately, as I think, the purpose and character of these ftitutes.— (He then quoted the language of the Chief Justice as above ™ proceeded.) — This is the language of a learned judge less dis- [«*d than some other Judges of the Courts, and less disposed than the majority of the '^ ' '^ T^ .... x. ,_.,ix ,._ Court _ »;'t vituited by irregularities, 'f'^ySiitherlaiul, takes a these stitutes." Connor v. Domjlasit, to hold tax sales I think that Mr. Justice Wilson, in just view of the objects and nature of ;k^ hi I 94 "^■"' -fM U 746 U 1- ' 1 1>..* ^5 THE MUNICIPAL MANUAL. [g, I55 to pay the arrears of taxes due thereon within the period of three yeai-s, or redeem the same within one year after the The Bection here annotated declares th: i the sale and the official deed to the purchaser of any such lands (provided the sale shall be openly and fairly conducted) shall be final and binding, &c. To allow bidders to buy off each other at such a sale, and so to combine to prevent a fair competition, is illegal. Such conduct is acainst the policy of the law, as the law regards auction sales as a°ju8t and open method of selling property for the best price. It is also against the policy of the assessment laws, which appear to have been framed with an anxious desire that when land is necessarily sold for taxes, as small a quantity as possible should be sold. Where competition is bought off or silenced, it is a misapplication of terms to call a purchase under sach circumstances, a purchase at auction. If the Treasurer, when selling lands for taxes, sees that competition— the essential element of an auction sale — is virtually put down, it is his duty to adjourn the sale. The course proper for the Treasurer under such circumstances, may be attended with difficulty ; but the law has a right to look for the exercise of sound judgment, firmness and discretion, as well as firmness in the execution of such duties. Per Spragge, V. C, in Henry v. Burneas, 8 Grant 357. Where one of the Sheriff's officers conducted the sale at which he knocked down without any competition, to another officer of the Sheriff, a lot of land worth about £350 for less than £7 10s., the sale was declared void. Massinyherd v. Montayue, 9 Grant 92 ; S. C. 8 U. C. L J. 274. Where a lot was put up for sale on the 10th of April, when an intending purchaser offered to take 29 acres and pay the taxes, but afterwards refused 1 > carry out the purchase, and in the July follow- ing, at an adjourned sale, the same person purchased the -'00 acres for *;he taxes upon the statement that he had already acquired a title to the land, which he desired to confirm, and with a request not to oppose him, the sale was held illegal. Todd v. Werry el ul, l.iU. C. Q. B. 614. In such a case the remedy of the owner seems to k to file a bill in Chancery. Raynes v Crotoiler, 14 U. C. C. P. Ill ; McAdie v. Corby, 30 U. C. Q. B. 349. The section concludes with the declaration of policy on the part of the Legislature, in these words : " It being intended by this Act that all owners of land shall be required to pay the arrears of taxes due thereon, within the period of three years, or reedeem the same within one year after tlie Treasurer's sale thereof. " If the land sold were not, at the time of sale, subject to assessment and sale for taxes. Doe Bell v. Kcaiimurf, 5 O. S. 4.S3; Street v. Ktnt, 11 U. C. C. P. 255, or, if at any time before sale the taxes be paid, the sale would be invalid. Hoicn et ux. V. Thompson, M. T. 6 Vict. MSS., R. k J. Dig. 241 ; Dof Bell V. Beavmore, 3 0. S. 243 ; Myers v. Brown, 17 U. C. C. P. 307. But the pajrment to be effective must be, as against the tax deed, proved to have been made to some officer entitled to receive it at the time when paid. Doe d. Sherwood et al. v. Matlheson, 9 U. C. Q. B. 321; Jnrvis v. Cayley, 11 U. C. Q. B. 282 ; Jarvis v. Brooke, 11 U. C. Q. B. 299, and be proved beyond reasonable doubt. jUacdoimMv. Hmrf, 9U. C, C P. 76. If voluntarily paid, the money cannot be recovered back. Austin v. Simcoe. 22 U. C. Q. B. 73 ; see also Street v. SiniM, 12 U. C. C. P. 284 ; .S". C. 2 E. & A. 211 ; see further, Bibbanl v. Hickman, 2 Withrow 347. sAbb] CONDUCT OP TAX SALES. 74r Treasurer's sale thereof. Ul, 148. 32 V. c. 36, s. 130. See 88. 140, In Yolham v. Hall, 15 Grant 335, the late Chancellor held a tax sale for more than was due not to be final and binding under 27 Vict. cap 19, sec. 4, from which this section was taken. But this decision was not very cordially approved of in Edinburtfh Life Aatiurance Co. ^.Ftrguson, 32 U. C. Q. B. 268, where Wilson, J., said : "I do not lee why the mere adding together of the two rates, and treating them as a single charge on the wn le lot, the snni on each half being ex- actly alike, and selling a part of the whole lot as for the one rate, so long as the two half lots are owned by the same person, should . . defeat the sale openly and fairly conducted, " &c. It is competent, where the sale is op/enly and fairly conducted, to sell the whole lot for taxes. Cotter v. Sutherland, 18 U. C. 0. P. 357. The Court will not, in such a case, presume against a sale on the suppositioii that too much land was sold for a small amount. lb. Sales made after the return day of the writ to sell, are valid. lb. So where the sale has been openly and fairly conducted, it will be be considered final, although it be shown that the land, thoiigh assessed as unoccupied, was occupied. Bank of Toronto v. Fanning, 18 Grant 391. It is opposed to the policy of the law as recognized by the Court of (Jhan- cery that an oifacer having such important powers and duties with reference to the sale of land for taxes as the Treasurer, should him- self be allowed to become a purchaser at such a sale. In re Cameron, U Grant (il2. But the Court of Common Pleas has held that there is nothing to prevent the party assessed, if desirous for any purpose to obtain a tax title, to omit paying the taxes and himself become the purchaser at such a sale. Stewart v. Taijijart, 22 U. C. C. P. 284. This would not, at all events, avail in Equity, M'here the person omitting to pay taxes is the tenant for life, designing to acquire the reversion through his own wrong. See Munro v. Riidd, 20 Grant 55. It is now held, notwithstanding what is said to the contrary in Ford Piomlfoot, 9 Grant 478, that the Corporation of the local Municipal- ity is not a necessary paity to a bill impeachinc a tax sale. Black T. Harmijton, 12 Grant 175 ; Mills v. McKay, 14 Grant G02. One Tripp, being owner of certain land, executed a niarr'age settlement nnder which his wife was entitled to the land for her life. The taxes ifterwards fell in arrear, and the land was sold by the Sheriff to pay them. By arrangement with the purchasers, Tripp's widow became entitled to their interests in the property. She iiaving sold to tlie defendant, the purchaser av Sheriff's sale conveyed to defendant. In a suit by the assignee of Tiipp's heirs to set aside this sale, defen- (littt claimed to be a purchaser for value, without notice. The same wlicitor acted for vendor and vendje in the transaction of the j^e to defendant. This solicitor knew then, and before that Tripp hail be m the owner, and that he had executed a marriage Kttleraent under which the wife was tenant for life only ; but he did not know or suspect she was bound to pay the taxes for which the land was sold and he did not communicate to defendant that she was under such an obligation ; Held, that defendant was tijt affected by constructive notice of the liability. Munro v. Budd, 20 Ijrant 55. It would seem that the Mayor of a Town cannot M'y become the purchaser at a sale of lands for taxes in his Town. ^miutrtft V. Paria, 21 Grant 229. h I' 't :y 748 '>^f;::.y THE MUNICIPAL MANUAL. [ss. 156-158. G ■..-•^ I W^ ■1 V' ^^ a|gi|- JH m^^M PP ¥\ P ^) :^ Deed raiid 156. Wherever lands are sold for arrears cf taxes, and the pStKifnot Treasurer haa given a deed for the same, such deed'sliall be quMtionod to all intents and purposes valid and binding, (a) except as certain time, against the Crown, if the same has not been questioned be- fore some Court of competent jurisdiction by some person in- terested in the land so sold within two yeai-s f»om the tinie of sale, (ft) 32 V. c. 36, s. 155. Certain 157. In all cases where lands have been validly sold for de©de""rto taxes, the conveyance by the Treasurer who made the sale, beinyaiid, If or his successors in office, shall not be invalid by rea.son of vaUd. the statute under the authority whereof such sale was made having been repealed at and before the time of such convey- ance, or by reason of the Treasurer who made the sale having gone out of office, (c) 33 V. c. 23, a 5. Rifhto of en- 158. In all cases where lands are sold for an-eara of taxes, to tax pur- whether such sale is or is not valid, then so far as regards chaser in rights of entry advei-se to any bona fide claim or right, (o) The section does not make valid a deed made in pursuance of a sale for taxes where there were in fact no taxes in arrears at the time of the sale. Hamilton v. Egglefon, 22 U. C. C. P. 536 ; Promlfoot V. Austin, 21 Grant 566, or where the sale has been made by an officer, who by virtue of his office was not clothed with authority to sell. Caniuln Permanent Buifdiny Society v. Aijnew, 23 U. C. C. P. 200. The Treasurer is, under sec. 130, prohibited from selling lands which have not been included in the lists furnished by him to the Clerks of the several Municipalities prior to the sale, and so, although the sale be by the proper officers, it is an unauthorized sale, and so not within the protection of this section. Fenton v. Mc Warn, 41 U. 0. Q. B. 239. »\here the description of the laud sold is so imcertain as to be void, the defect is not cured by this section. Bimjessv. The Bank of Montreal, 42 U. 0. Q. B. 212. (b) The two years after which the deed is made valid must elapse after the execution of the deed and not from the time of sale. Hutchintion v. Collier, 27 U. C. C. P. 249 ; see further, Cliiinh v. Lenton, 28 U. C. C. P. .384, 404 ; Carroll v. Burners, 40 U. C. Q. B. 381. It is doubtful if the section applies to make good a s.ile other- wise bad, in favour of a purchaser who makes no claim for nearly twenty years, leaving the origin.al owner in possession and in ignor- ance of the sale. Auxtin v. Armstrong, 28 U. C. C. P. 47 ; Kemj't v. Parkijn, lb. 131 ; see further, Carroll v. Burgess, 40 U. C. Q. B. 381. (c) The contrary before the passing of this Act had been held in Brmmt v. Hill, 23 U. C. Q. B. 90 ; McDonald v. McDomdl, 24 U. t. Q."B. 424; see also, McMillan v. McDonald, 26 U. C. Q. B. 4)4; Jones v. Coioden, 34 U. C. Q. B. 345 ; S. C. 36 U. C. Q. B. 490 ; McDougallv. McMullan, 25 U. C. 0. P. 75. The 33 Vict. cap. 23, sec. 5, from which this section is tv\ken was framed to prevent the «fFect being given to such objection as specified. ,159.] IMPROVEMENTS MADE BY PURCHASERS. 749- whether valid or invalid, deiived mediately or immediately possesiion under such sale, the fifth section of Tlis A ct respecting the TOnvoysd. Immfii' of Real Property shall not apply, to the end and Rer. sut. o. intent that in such cases the right or title of pei-sons claiming '*' ■• *• adveraely to any such sale shall not be conveyed where any person is in occupation adveraely to such right or title, and , that in such cases the Common Law and the second, fourth and sixth sections of the statute passed in the thirty-second Law und 32 vearof the reign of King Henry the Eighth, and chaptered JJ; 2,'4& e' nine, be revived, and the same are and shall continue to be vevivwi. revived, (d) 33 V. c. 23, s. 6. 159. In all cases, (not being within any of 'the exceptions Where; - ? and provisions of sub-section th- •'o this section), where ancTvoid^for lands having been legally liable iu be assessed for taxes, are uncertainty, sold as for arrears of taxes, and such sale or the conveyance chaser has consequent theron is invalid by reason of uncertain or insuiR- ihe^'ralueof cient designation or description of the lands assessed, sold or the land and. conveyed, and the right or title of the tax purchaser is not mentey&c, valid, and the lax purchaser has entered on the lands so liable *^ ^^ ■*" ^ to assessment or any part thereof, and has in) proved the same, ' tknincasean action of ejectment is, brouglit against such tax purchaser and he is liable to be ejected by reason of the invalidity of such sale or conveyance, the Judge of Assize before whom such action is tried shall direct the jury to assess, or shall himself (if the case be tried without a jury), assess damages for the defendant for the amount of the pur- chase money at sxxch sale and interest thereon, and of all taxes paid in respect of the lands since the sale by the tax purchaser and interest thereon, and of any loss to be sustained in consequence of any improvements made before the com- mencement of such action by the defendant, and all persons through or under whom he claims, less all just allowances for the net value of any timber sold off the land, and all other jast allowances to the plaintiff, and shall assess the value of the land to be recovered, (e) |(') The 32 Hen. VIII. cap. 9 made void the aale by a person not in possession of a mere right of entry. The sections of this Act Kijitcting the transfer of real property which legalized the conveyance ^aright of entry is supposed to have superseded the statute of 32 Hen. VIII. cap. 9. The statute of Henry VIII. is for the purposes of this sectii.n revived. In Hill v. Long, 25 U. C. C. P. 265 a con- veyance of a light of entry was attacked under the operation of sec. 6 of 33 Vict. cap. 23, from which this section is taken, but the •Iccision of the Court proceeded u^wn a diflerent ground. [(] \Miere certain land was assessed and advertised for sale^ /f.l (t 4 750 THE MUNICIPAL MANUAL. ; I I i i m The plaintiff to pay for improre- ment*, etc, unlen tax purchawr eleeti to re- tain the .and on pay- ing iti value. [8. 160. 2. If a veiiUct is found for the 7>laintiff, no writ of pos- session shall issue until the plaintifi' has paid into Ck)urt for the defendant the amount of such damages : or, if the defen- dant desii'es to retain the land, he may retain it, on payinc into Court, on or before the fourth day of the ensuing Tern" or on or before any subsequent day to be appointed by the Court, the value of the land as assessed at the trial ■ after which payment, no writ of possession shall issue, but the, plaintiff on filing in Court for the defendant a sufficient k- lease and conveyance to the defendant, of bis right and titk to the land in question, shall be entitled to the monev so paid in. (/) 33 V. c. 23. s. 9. Seotion not 3, This section shall not apply in the foUowins: cases •— to apply. * ° if taxes paid («) If the taxes for non-payment whereof the lands were before Bale; gQ^d have been fully paid before the sale. jfiandwere (6) If, within the period limited by law for redemption, redoemed; ^^^ amount paid by the purchaser, with all interest pajable thereon, has been paid or tendered to the person entitled to receive such payment, with a view to redemption of the lands, (c) Where on the ground of fraud or evil practice by the purchaser at any such sale, a Court would grant equitable relief. 33 V. c. 23, ss. 9 & 1. in -^ases of fraud. When the 160. In any of the cases named in the one hundred and tenatit\n°°* fifty-ninth section wherein the plaintiff is not tenant in fee fcei the value simple or fee tail, the payment into Court to be made w to be paid aforesaid, of the value of the land, by the defendant desiring intoChan- ^ retain the land shall be into the Court of Chancery, and the plaintiff and all parties entitled to and interested in the said lands, as against the purchase at such sale for taxes, on described in the warrant and sold at a tax sale, and conveyed as part of lot eight, it being in fact part of lot /re, and when itappearril that the Treasurer, who conducted the sale, described the locality of the land intended to be sold and the taxes due upon it, the tax purchaser was held to avail himself of the protection of sec. 9 of 33 Vict. cap. 2.3, Ont., from which this section is taken. Churclieretal V. Bates et al., 42 U. C. Q. B. 466. (/) There should be an assessment at that time not only of the damage but of the value of the land for the purposes of this section. The defendant may retain the land before paymg into Court its assessed value. Plaintiff is not entitled to the possession unless he pay the damages assessed. If the plaintiff be not tenant in fee simple or fee tail the p,ayraents must be made into the Court of Chancery. SS. 161, 162.] PAYMENT OP MONEYS INTO COURT. 761 When the defendant ia not tenant in fee, the Talueofliu> proTementfl, etc.. to be Said into hanoery. Any othjr person int«r^ estedmay pay in value asseMedif defendant does not. in the Court of Chancery u sufficient release anJ con- veyance to the defendant of their respective rights and in- terests to the land, shall be entitled to the money so paid in such proportions and shares as to the Conrt of Chancery, regarding the interests of the various parties, seems proper, (g) 2. In any of such cases wherein the defendant is noi tenant in fee simple or fee tail, then the payment of damages into Court to be made as aforesaid by the plaintiff, shall be into the Court of Chancery. 33 V. c. 23, s. 10. 161. If the defendant does not pay into the Court wherein such action is brought, the value of the land assessed as aforesaid, on or before the fourth day of the said Term, or on or before such subsequent day as may be appointed by the Court, then any other peraon interested in the lands under the sale or conveyance for taxes may, before the end of the yid Tern^, or before the expiry of ninety days from any sub- sequent day to be appointed by the Court for payment by the defendant, pay into Court the said vj luo of the lands ; and till the expiration of the time within wl.ich such payment may be made, and after such payment no wi'it of possession shall issue. (A) 2. The defendant, or other person so paying in shall be The paver to entitled as against all others interested in the lands under fo*'sw!h pro- the sale or conveyance for taxes, to a lien on the lands for J^'^" ?fL ' such amount as exceeds the proportionate value of his interest interest. in the lands, enforceable in such manner and in s\ich shares and proportions as to the Court of Chancery, regarding the interests of the various parties, and on hearing the parties, seems fit. 33 V. c. 23, s. 10. 162. In case the defendant or any other pei-son interested How the pays into Court in manner aforesaid, the plaintiff shall be en- T."?'S!" I,! , , . , , ... ', . ! ^ , «... obtain the tmea to the amount so paid m, on tiling m Court a sufficient value of the release and conveyance to the party so paying in, of all his J*"** ^"^ right and title to the lands, in which release and conveyance It shall be expressed that the same is in trust for such party, tOKcure his lien as aforesaid, (t) 33 V. c. 23, s. 10. (j) See note /"to sec. 159. [^ See note/ to sec. 159. (jl The filing in Court of a sufficient release and conveyance by the plaintiff to the party paying the money into Court ot all hia, the n, I MSH ?|WW ^1 1 IMtJM 'r'fi W 1 iBffSi (t^nRf^g ■■ i UM iff i 1 |H 1' R^^IR f V ^''i'li' ■ " {'»' ' { i 1 762 THE MUNICIPAL MANUAL. [ss. 103, 164, «* . n V; Jff How the 163 . If the said value of the lands is not paid int. pro"eniente, '^ abovG provided, then the amount of the duiiiagos ^"hS'lh.*" *^® Court of Chancery shall be paid out to the van- sons, who, if the mle for taxes wore valid would be t to the lands, in such shares and proportions as to t^ of Chancery, regarding the interests of the various • seems fit. (/t) 33 V. c. 23, & 10. ean be ob- toined. "ourt '. into per. 'titled Court •xrtifs, ProvWf to ( ' ..uly «l.tcbtion. 1 OS n N'K i I N 164. fn all actions of ejoctmi'ut in which both the plaintiff 'if his t'cle wert good) would be entitled in fee simple or fee tail, and the defendant (if his title w«!re good) would be nl.so ' so entitled, if the defendant, at the time of ajipoarin" "ave otice in writing to the plaintiff in such ejectnieiit or to his .L.orney named on the writ, of the amount claimed, auC. that on jiayment of s\ich amount, the defendant or person i;i pos- session would surrender the possession to the plaintitF; or that he desired to retain the land, and was ready ami willing to pay into Court a sum mentioned in the said notice as the value of the land, and that the said defendant did not intend at the trial to contest the title of the })laintiff ; and if the jury, or the Judge, if there be no jury, before wl'oni such action of ejectment is tried, assess damages for the (ief'eudant as provided in the five next preceding sections, and it satis- factorily appeal's that the defendant does not contest the action for any other [)urpose than to retain the land on ])ay- ing the value thereof, or obtain damages, the Judge before whom such action is tried, shall certify such fact upon the record, and thereu])on the defendant shall be entitled to the costs of the defence, in the same manner as if the pkmtilT has been nonsuited on the trial, or a verdict had been ren- dered for the defendant. 2. If on the trial it is found that such notice was not given as aforesaid, or if the Judge or jury assess for the defendant a less amount than that ch\,imed in the notice, or find that the defendant had refused to surrender jjossession of the land after tender made of the amount claimed, or (where the de- fendant has given notice of his intention to retain the said land), that the value of the land is greater than the amount mentioned in the said notice, or that he has omitted to pay plaintiff's right and title to the lands is a condition precedent to the obtaining of the money out of Court. See note/ to sec. 159. (it) The payment is to be made into the Court of Chancery when e plaintiff is not tenant in fee simple or fee tail of the land soug it the to be recovered See sec. 160. [ss. K)3, 164. 165.] LIEN or TAX PURCHASER. 763 laid int. '^onrt iiagcs I. into le vari' per. uld be e ititlcd vs to t^ Court rai'iou- vdm, )i\\ the pliiintiff (C simple or fee ) would be nlso a]H>earing <;ave iiinent or to his aimed, aiio that V person i'.i poji- he plaiiititi"; or Muly and willing lid notice as the ,t did not intend tiif ; and if ilie fore wl'oni such or the (iefeudant 3ns, and it sjitis- not contest the he land on iKty- jc Judge before h fact upon the entitled to the if the i)lamtiff t had been rcn- |ce was not given 31- the defendant ice, or lind that [sion of the land [• (where the de- ] retain the said Plan the amount omitted to pay I precedent to the p sec. 159. k Chancery when tf the land soug'it into Court the amount mentioned in the said notice for thirty lavs after tijo fdaintitf had given to the defendant a written DoHce that be did not intend to contest the value of the land nieDtionetl in 8uch not) -, then in any such case the Judge iL.;)' lot certify, and the defendant shall not be entitled to the costs of the de/'ancc, but shall pay costs to the plaintiff; anil upon the trial of any cause after such notice no evidence ■' ... he required to be produced in proof of the title of the plaintiff. (.') 33 V. c. 23, s. 11. 165. In any case in which the title of the tax purchaser is not valid, or in which no remedy is otherwise provided by this Ac* the tax purcha.ser shall have a lien on the la^'ds for the pure' 'ise money paid at such sale, and interest '.-oi i at the mte of ten per centum per annum, and for th'i aiao^ of all taxes paid by him or them since such sale an int^i ... thereon at the rate aforesaid, to be enforced ) " iu^ • the lamlsinsuch prot)ortions as regards the various own -^ and in such manner as the Court of Cluincery thiidcs Dropi-i'. (wt) 33 V. C.23, s 13. m 1: 'k iii TaX'pur- chaser with* out a ramedy who«e titl« u In'-"'!'?, to hare a lien on tho land for purchase money, etc. Ill This section principally relates to costs and these the costs of *he ilefence. The ceneral rule is that the party who succeeds in the recovery of the land in an action of ejectment is entitled to the costs. Bat this section is an exception to that rule. It enables the defen- dant, altliougli leaving the land, to obtain his costs of the defence. This can only he where — 1. It appears that defendant at the time of appearing, gave notice in writing such as provided for by the section. 2. It satisfactorily appears at the trial that the defendant did not contest the action for any other purpose than to retain the land on payment of the value thereof, or obtain damages. 3. And the Judge before whom the cause was tried should certify the latter fact upon the back of the recortl. The section also incidentally provides a rule of evidence to the effect that " upon the trial of any cause aftar such notice, no evi- dence shall be re(iuired to be produced in proof of the title of the plaintiff." (ill) In Auciln v. Simcoe, 22 U. C. Q. B, 73, it was held that a tax purchaser who paid his money for what at the time of sale allsup- pwil to be an interest in land, was not entitled on it appearing tlat nothing was sold to recover the purchase money. The object of this section is, in such a case, to create not only a lien for the •momi' I the purchase money, but to provide for the payment of ^ interest thereon at the rate of ten per cent, per annum, and for ^e repayment, with interest of the amount of taxes paid by the tax purchaser. 95 764 THE MUNICIPAL MANUAL. [8& 16C-169. I,.', i; ; ContrMta 166. No valid contract entered into between any tax pur- S^whlTer '* chaser and original owner, in regard to any lands sold or as- •Dd oriRinai Bumed to have been sold for arrears of taxes, aa to purchase tiiiuMi. lease, or otherwise, shall be annulled or i.iterfered with by this Act, but such contract shall remain in force, and all consequences thereof, at Law or in E(juity, iis to (uliiiission of title or otherwise, as if this Act had not been puased (u) 33 V. 0. 23, 8. 12. 8eo». 157,166 167. Nothing in the ten next preceding sections of this whewThe'^ Act contained shall affect the right or title of the owner of owner has any lands sold as for arrears of taxes, or of any pei-son claim- ing through or under him, where such owner at the time of the sale was in occupation of the land, and the same have since the rfale Loen in the occupation of such owner, or of those claiming through or under him. (o) 33 V. c. 23, s. 7. 168. Nothing in the eleven next preceding sections of this Act contained shall prejudice the right cr title which any purchaser at any sale for taxes, or any one claiming through or under him, has lieretofore acquired or hereafter acquires under any other statute. ( jo) 33 V. c. 23, s. 8. 169. In the construction of the twelve next prececlin|T sec- tions of this Act, occupation by a tenant shall be deemed the oooupied «ince 8»le. Other Acts remedial to purchasers continued. Construction of "Tax pur- chaser." (?i) Before the passing of the 33 Vic. cap. 23, Ont. in 1869, cases aroses in which the former owner and the tax purchaser upon tlie faith of a valiil sale for taxes, which both supposed to have taken place, contracted with each other on the faith thereof but on discovery of the truth, that is, that the sale was invalid, the contract was amended or otherwise put an end to, notwithstanding the apparent admissiou of title by reason of the dealing between the parties, Tlie object of sec. 12 of the Act oi' 1869, from which this section is taken, is to continue in force the contracts so made notwithstanding the subsequent discovery of the invalidity of the sale. This is done with all the consequences of a valid sale as to admissiou of title or otherwise. (o) A person in the occupation of land is supposed to have some knowledge of the assessment and sale of the land or of facts which ought to put him upon enc[ui;y. Where such a person is nedigont of his rights, he is not entitled to the protection and benefits oy the ten next preceedings sections enforced on persons owning laud which has been sold for arrears of taxes. (p) It i. ; not the object of the sections to divest a person of the title which before the passing of the Act he had acquired, or here- after may acquire under any other statute than the one here anno- tated. The declaration of the Legislature is, that nothing in the eleven next preceding sections "shall prejudice the rigiit or title of such a person or of any one claiming through or under iiim. )) 170.] NON-RESIDENT LAND FUND. 755 occupation of the reversioner ; and the woixIh " tax purchaser" "Orlginti shall ftppJy to *"y person who purchases at any sale xinder °^°*'' colour of any statute authorizing sales of lands for taxes in arrear, and shall include and ext'^nd to all {)erson8 claiming through or under him ; and tlie words •' original owner" ihill include and extend to any person who, at the time of such sale, was legally interested in or entitled to the land 8uld, or assiuned to be sold, and all persons claiming through or under him. (q) 33 V. c. 23, s. 14. NON-RESIDENT LAND FUND. 170. The Council may, by by-law, direct that all the The Non- moneys received by the County Treasurer on account of t^^'°f-_j taxes OQ non-resident lands, shall be paid at stated periods to the several local Municipalities to which such taxes were due, or shall constitute a distinct and separate fund to be called the "Non-resident Land Fund" of the County, (c) 32 V. c. 36 fi. 156. (2) In the absence of any such by-law, the County Trea- ifnoauch surer shall pay over to the local Treasurer all such moneys "" when 80 collected. () from time to time, by by-law, authorize the Warden to issue, under the corpomte seal, uj)on the credit of the Non-resident Land Fund, deljentures payable not later than eiglit yeai-s after the date thereof, and for sums not less than one luindred dol- lars each, so that the whole of the debentures at tMiy time issued and unpaid do not exceed two-thirds of all arrears then due and accruing upon tlie lands in the County, together with such other sums as may be iu the Treasurer's hands, or otherwise invested to the credit of the said fund; (7) and all debentures issued by the Coimty shall be in the exclusive custody of the Treasurer, who shall be resi)oriHil)le for their safety until their proceeds are deposited with him. (r) 'ii V. 0. 36, 8. 163. By whom to 178- Such debentures shall be negotiated by the Warden ttated?"" ^^^ Treasurer of the County, and the proceeds shall be paid into the said Fund, and the interest on the said debentures, and the princii)al when due, shall be payable out of sucii Who to have charge of Ukem. (») Real property is fixed ; personal property is movable. There is full security for the collection of a modernte rate due in resjMJut of the one, and not mucli in respect of tlie other. Hence, while thu duty is imposed to supply out of the funds of the Municipality any deficiency arising from non-payment of the former, the rule is not made U^ extend to deficiencies arising from abatements of, or inability to collect the latter. (0) Sje note m'to sec. 174 of this Act. (p) May, &c. Permissive — not obligatory. See note/ to sec. 494 of The Municipal Act. (7) Debentures, when regularly issued, are trsansferable by delivery. See section .386 of The Municipal Act, and notes thereto. (r) The Trenjsurer being especially and peculiarly the officer entrusted with the collection of the money that constitutes the fund. See note c to sic. 170 of this Act. jS. 179, 180.] SURPLUS OP NON-RESIDENT LAND FUND. 759 Fund : (») but the purchaser of any such debentures shall not be bound to see to the application of the purchase money, or be held responsible for the non-application thei-cof. 32 V.a36, 8. 164. 179. If at any time there is not in the Non-residont Land Fund, ivhere siich Fund has Vieen created, money sufficient to pay the interest upon a debenture or to redeem tlie same when due, such interest or debenture shall be payable out of the general County funds, (t) and the i>ayment thereof may be enforced in the same manner as is by law provided in the cjse of other County debentures, (n) 32 V. c. 36,8. 16.5. 180. The Council of the County may from time to time pass by-laws apiiortioning the surplus moneys in the Non- resident Land Fund amongst tlie Munici[)alities ratably, ac- cording to the moneys received and arreara due on account of the non-resident lands in each Municipality ; (a) but such jpprtionniant shall always be so limited that the debentures uni«id shall never exceed two-thirds of the whole amount to the credit of the Fund, (b) 32 V. c. 36, s. 166. ProTlio. Provition for payment of *uch deben- tures. Sarptus of the Non-re- *ldent Land Fund to bo dividfd ar.ionK muuicipall- tlv8. |i) Tlie fund is intended to meet in advance tlie w.-mts of the local MunicipalitiuH, and not in any way to bu a source of revenue or gain. to the Coqjoration of tlie County. See note c to sec. 170 of this Act. But it is very properly here provided, that the purchiiser of a dclien- tare shall not he bound to see t«) the application of the purchase money, or be held responsible for the non-application thereof. {() The (lel)enture, though issued on the security, of a particular find, is in reality the promise of the County, and so the County is bouml ti) advance out of general County funds money sutticiunt to piy IntertfBt. (u) The • nlinary mode of enforcing p.ayment of debenturea is by Ktion. See Trmtt and Loan Compamj v. IlnmUton, 7 U. C. C. P. '^\Anglm v. Kint/xton, 16 U. C. Q. B. 121 ; Crawford el al. v. Wjour*/, 21 U. C. Q. B. 113. the Municipal Council— the the surplus funds (a) The Legislature has entrusted Coonty Parliament — with the duty of apnortioning Mong tlie Muni(;ipalitiea ratably, according to the moneys received »nil arrears due on account of the non-resident hinds in each Muni- cipility. If there were no le^slation to the contrary, the Council would he held to have the discretionary power to say by By-law »hen the money is to be paid over. But it is by statute ma^^^> ^*^- ill) It is not saitl wheii. the Warden shall cr...dc t.his to he done, hut without doubt it is intended that he shall do so witliir. a rensoiiablg time after the receipt of the report. (i) The poM'er given to a City to collect taxes awthorizes tlie sale by tbe City of non-resident land. Per Wilson, J., in Me Ka/i v. Baiu- ^/erf<,./., 30U. C. Q. B. 05, 07. But imtil the passing of sec. li2of 29& 30 Vict. cap. 53, of which the above was a rc-enactmeut, » City hiul no power to sell the land of a resident for arrears of taxes. Ih. (t) This is intended not merely as a check upon the person veceiv- '"g the money, but for the preservation of evidence of payn'.ont ; so that if one set of receipts should happen to be destroyed or mislaid, the other will l)e forthcoming. (') The entries refpiired are — '• The name of the party making payment ; 96 .! / h i % 762 M ' 8«curity by treuurora and eollec- ton. Bond with ■unties. THE MUNICIPAL MANUAL. [SS. 187, 188, books and accounts at least once in eveiy twelve months (m) 32 V. c. 36,8. 172. ^ ' • RESPONSIBILITY OP OFFICERS. 187. Eveiy Treasurer and Collector, before entering on the duties of his office, shall enter into a bond to the Cor\m- ation of the Municipality for the faithful performance of bis^ duties, (a) 32 V. c. 36, s. 173. 188. Such bond shall be given by the officer and two or more sufficient sureties, in such sum and such manner as the Council of the Municipality by any by-law in that behalf requires, and shall conform to all the provisions of such by-lav. (b) 32 V. c. 36, s. 174. L. The lot on which the payment ia made ; 3. The amount paid ; . 4. The date of the payment ; 5. The number of the receipt. (m) See note See sec. 20G of this Act; see further, note }' to sec. 246 of The Municipal Act. (c) This is a wise provision, intended to secure the due execution of the Act by the officers mentioned, whose Inisiness it is to learn their duty, and to do it accordingly. Either refusal or neglect is made jiunishable. The former involves an act of the will, bu , the latter does not necessarily do so. Any inquiry into the motiv es or cause of iiej,'lect, 80 far as this section is concerned, wouhl be inexpedient ; it would be leaving too much to the lenity of a jury. But mere omission is not necessarily equivalent to neglect. Inability or iiilierior force may excuse the non-perfoniijvnce of a duty by one who is willing to do it. Nor does it follow that every non-compliance with the directions of the Act, in its minor details, will bring the party within the penalty of this section. Neglect, howf ver, may m general l)e described as the omission to do some duty which the party was able to do, but did not do. Forgetfulness is no excuse. The penal part of the Act may press with more severity iu oyv. class of cases than another ; but with that the Courts have nothing t.f (io : the law is so written, and the Courts have nothing to do with the consefiuences. See Kimj v. Ihtrrell, 12 A. & K. 400. " N'<,'lect" means, in such a statute as this, the omission to do some dn vhich the party is able to do. Per Patteson, J., //^ 4(58, " re no fw mnjor or inability intervenes, omitting to do what oi t to be (lone is neglect." /"«• Williams, J., 7 />. 4«>9. "Thedef ..uit has contravened the Act without showing any lawful excuse. This is a Beglect within the Act. P'orgetfulness or carelessness lo such li*ful excuse." Per Coleridge, J., Ih, The neglect ma; wholly t« Jo the duty, or do it within the time limited in behalf. Kither is neglect within the meaning of this section. is of the itmost importance, so far as the administration of tlu n visions of 'te Municipal and Assessment Acts is concerned, that iiiiiigs should ^ ilone when directed to be done. See Hunt v. Hihbx, :^VL. & N. 123; The Queen v, hujall, L. R. 2 Q. B. Div. 199. This sectioi; through- ™ti so far as negleci is concerned, applies rather to cast d of mere leglect than of wilful neglect. The latter are looked upon as still "lore itenal, and especially provided for by subsequent sections. '^c. 11)1. The M'ords of the sections are : " If any Treasurer, 'I. .ill 764 THE MUNICIPAL MANUAL. [s. 189. ^ V; m i J it" m I'M* ^^1 theipduty, of competent jurisdiction in the County in which he is Trea- .«oft)K«d[ surer, Assessor, Clerk or other officer, forfeit to Her Majesty such sum as the Court may order and adjudge, not exceeding one hundred dollars. 32 V. c. 36, s. 175. Assessor, &c., refuses or neglects," &c. So the words of the next section are : •* If an Assessor neglects or omits to perform Am duties, the other Assessors, " &c. It would seem that the penalty or for- feiture is a personal one attaching to each person in default See The Kiiiff V. Share, 3 Q. B. 31 ; see also, Clarke v. Oani, 8 Ex. 252, Each is to be liable for such sum as the Court shall order, not exceedin|» one hundred dollars. A declaration treating two defen- dants as jointly liable for a penalty where there was a several duty and a several penalty, was held bad on a demurrer. Metcalfe q. t. v. Jteeveetal., 6 U. C. Q. B. 203. In giving judgment, Sir John B. Robinson said : •' They (the defendants, who were magistnates, sued for not returning a conviction) cannot commit a joint oflFence, and be subject to one penaltv, because neither transmitted it." Ih. 264. So where it is the duty of two assessors to return an assessment roll by a fixed day, it would seem that they should not be prosecutel jointly, but severally. The Queen v. Sn'uler et aL . 23 \f. C. C. P. 330. It is a personal penalty for a personal dci lult. Ih. It a said that the penalty or forfeiture is to oe "upon conviction thereof before any Court of competent jurisdiction in the County." Does this mean a civil o'- a criminal Court? The words of sect. 17()of the 29 cl 30 Viet. cap. 53, were, " Before the Recorder's Court of City, or bcforo the Court of General Quarter Sessions of the County." These words were oniitted in the sections here annotated, tly a several- ust uote. -not a joint one. See the (f) The oliligation of the ** other assessor" or assessors, under the circumstances stated, to do what is requireil of liiui or them, is as much a duty as any duty primarily imj-osed on him or them under this Act. if) The power to appoint involves the power to remove, and neglect or omission to perform specitied duties is a just cause of removal. See note e to sec. 274 of Tku Municipal Act. \il) See note c to aec. 14G uf this AoL • '.\ 'i.i , '4 766 THE MUNICIPAL MANUAL. [s. 191. PuniRhment 191. If any Clerk, Treasurer, Assessor or Collector, acting AsmMri, "n*^*®*" *'"«' ^ct, makes any unjust or fraudulent assessment •te. n>»**ng or collection, or copy of any Assessor's or Collector's roll, or «MMnnenU wilfully and fmudulently inserts therein the name of any person «'<'• who should not be entered, or fraudulently omits the name of any pereon who should be entered, or wilfully omits any duty reqtiired of him by this Act, (A) he shall, upon conviction (A) Cases of refusal or mere neglect are provided for by 8ec. 189. This section is intended for the punishment of misconduct stili more reprehensible than any provided against in that section. The acts of misconduct apccitied are : 1. Making any unjust or fraudulent asscssmoit or collection, or coi)y of any assessor's or collector's roil. See sec. 192 of this Act. 2. Wilfully and fraudulently inaerting therein the name of any person who should not be entered, or fraudulently ouiitting the name of any person who should be entered. 3. Wilfully omitting any duty required by this Act. See note c to sec. 189 of this Act. In Bac. Abr, " Offices and Officers," 181, it is said that "if an officer acts contrary to the nature and duty of his office, or if he refuses to act at all in these cases, the office is forfeited." In PhilipH V. Bury, 1 Ixl. Rayd. 5, it was held that contumacy is a good ground for the deposition of an officer. In 21ie. Kiwj v. Wdk, 4 Burr. 1999, 2004, Lord Mansfield said : "A general neglect or refusal to attend the duty of such an office is a reason of forfeiture ; so a determined neglect, a wilful refusal." By sec. 6 of 1 W. 4 M. cap. 21, it is declared that '* if any Clerk of the Peace aliall inisde- mcian himself in the execution of the said office, and thereupon a complaint and charge, in writing, of such misdemeanour sliall lie exhibited .igainst him to the Justices of the Peace in their (General Quarter Sessions, it shall be lawful for the said Justices, or the major part of them, from time to time, upon examination and due proof thereof, openly, in their said General Quarter Sessions, to suspend or discharge him from the said office." In Wildes v. Riuselt, L. K. 1 C. P. 722, 737, Willes, J., said : " The law upon the subject of forfeiture of an office is to be found in Com. Dig. ' Officer, K,' where it is laid down that an officer forfeits his whole office by non- user or abuser of the office by him or his deputy. In some such sense as this, and not merely in a criminal sonse, is the word mis- demeanour used in this section, sec. 6 of 1 W. & M. cap. 21, and there can be no doubt, therefore, that an absolute and persistent refusal by the Clerk of the Peace to enter an order of Sessions is a misdemeanour in hin office. I entirely agree with Mr. Chamkrs that a mere delay in acting upon such an order, or even a strong remonstrance against it by the Clerk of the Peace, would not amount to a misdemeanour so as to work a forfeiture of the office.' By the Dominion Act 31 Vict. cap. 71, sec. 3. "Wilfully" may be here read as meaning wantonly or persistently. See per Bram- well, B , in Sviith v. Bam/iam, L. R. 1 Ex. I)iv. 423, 424. By 1,192.] EVIDEXCE OF FRAUDULENT ASSESSMENTS. 767 thereof before a Court of competent jurisdiction, (/) be liable to a fine not exceeding two hundred dollars, and to imprison- ment nntil the fine is paid, in the Common Uaol of the County or City for a period not exceeding six months, or to both such fine and imprisonment, in the discretion of the Court, (k) 32 V. c. 36,8. 177. 192. Proof, to the satisfaction of the jury, that any real Whatibaii property was assessed by the Assessor at an actual value ^jyluju!* greater or less than its tnis actual value by thirty per centum '""^ •«»••- thereof, shall be prima facie evidence that the assessment was unjust or fraudulent. (1) 32 V. c. 36, s. 178. the Dominion Act, 31 Vict. cap. 71, sec. .3, *' Any wilful con- travention of any act of the Legislature of ,iny of the Provinces within Cana(la, which is not made an ofiFenco of some other kind, iihall 1)6 a misdemeanour, and punishable accordingly." See The Vwe/i V. Snider et at., 23 U. C. C. P. 330, 336. {{] Competent jurmliction. See note c to sec. 189. (ilj The punishment under this section may be — 1, Fine not exceeding $200, and to imprisonment till the fine be in the common gaol for a period not exceeding six months. 2, Both such fine and imprisonment, in the discretion of the Court. See /« re Slater v. WeJltt, 9 U. C. L. J. 21. [l] This section does not justify an assessor in assessing property thirty per cent, less or more than its true value. True, value is That is required. But where the departure from the vabie is so great as the per centage indicated, the fact of such a departure is made prima facie evidence of an unjust or fraudulent assessment. The true actual value of real ^)roperty is, in general, mere matter of opinion; and where the subject of inquiry is a mere matter of opinion, opinions of men will be found widely to difi'er. One man is sanguine, and fixes present value in hope of future increase ; another is gloomy, and is influenced by fears of future decrease. Itae values for purposes of sale, being able and willing to buy ; another values with the like view, being neither able nor willing to buy. Each man has his own stand-point, and his opinion is greatly iniuenced thereby. See note y to sec. 23 of this Act. That the price paid for land, and the money exi)endetl upon it, do not con- ititute its value, is a matter of every-day experience. The value rather depends upon the number of persons wlio at the moment arc »illmg to purchase, coupled with the unwillingness of the owners to sell, and in a less degree by the amount of capital held for invest- ment in land at the time. The anxiety of the owner to sell, when few are willing to buy, frequently reduces it to a value more nominal than real. iStrictly speaking, the value of land, like any other com- mwli'.y, is the price it will bring in the market at the time it is ^T u„r sale. See S'/uirt qui tuvi v. Wilson, 15 U. C. C. P. 284. 1} I t /.I 768 ' ■ ■ •■ ■ ■ It m tti n- PuolNlimont of culpable ■MOiHori. Proalty for ndt making a' 1(1 com- pletlDg ao- aeMment rolls by the proper time. Rev. Stat, c, 48, Kotto impair any other lia- bility. THE MUNICIPAL MANUAL. [sfi. 193, 194_ 193. An Assessor convicted of having raacle any unjuHtor frauiliileut uHHcssnieiit, (m) shall be Heiitenced to tht^ L'lcatcut l)uni8hnient, both by fine and iini)iisoninent, alluwt'd \>y tliis Act. in) 32 V. c. 36, s. 179. 194. Wi+li reference to " T/teJurorn Act,'* if any Assefwor of any Township, Village or Ward, except in the cii.ses ino- vided for by section forty-four and forty-«ix of tlii» Act neglects or omits (o) to make out and complete his asst«.siuiut roll for the Township, Village or Ward, and to return the same to the Clerk of such Township or Village, or of tljo City or Town in which such Ward is situated, or to the ])roper oflicer or ])lace of deposit of such roll, un or before the first day of September of the year for which he is A»- sessor, (p) every such Assessor so ofl'ending shall forfeit fur every such offence the sum of two hundred (h)ll!irM, one moiety thereof to the use of the municipality and the other moiety, with costs, to such person iis may sue for the san.c in any Court of competent jurisdiction by action of debt or information ; (7) but nothing herein contained shall lie con- structed to relieve any Assessor from the obligation of re- turning his assessment roll, at the period required elsewhere ^ut before any man can be convicted under this section, tliu jury must be satisfied of the actual value of the property in (juustidii ; and when it has been arrived nt, a valuation greater or hm tliaii it by thirty per cent, is made prima facie evidence tliat the assMssinent was unjust or fraudulent. It is of course in thi powur of tht accused, by proof of the circumstances under which the iissussmeut was made, to rebut the prima fwi^. case so establishuil. Set> Churcher v. C'oimns, 28 U. C. Q. B. 540. {m) 8ec the lust note. (n) See note k to sec. 191 of this Act. (o) Neglects or omits. See note c to sec. 189 of this Act. (p) See note ^ |tion,ouaque8tiou by this Act, and from the neimlties incurred by him by not returning the Hamo ac^ gly. (r) 32 V. c. 36, 8. 180. S„(,ho Uev. Stat. c. 48, a. lOl), (3.) 196. If a Collector refuHCS or neglects (a) to pay to the proper TreastU'er, or other penou logally authorized to receive theitiinie, the Hums contained in Iuh roll, or duly to account (cr the siinie as uncollected, (t) the Treasurer shall, within twenty dayH after the time when the payment ought to have been made, (n) iHsue a warrant, under hia hand and Meal, of ftct properly left to them, is final and conclnsivo. 8eo I fall v. CiYii, l»Ex. '247 ; Oomj/i v. Jlunlman, .Jur. N. H. 402; Mc Lilian iiuilamv. Browrr, \'2 U. ('. C. V. 642 ; Sijiiire ijtii tam v. Wilxon, 15 U. I'. C. P. 284. No damages are recoverable for the detention of the (lelit, because the tlobt is not due till judgment. See Frederick rLixl'q), 4 Burr. 2018 ; CumiiKj v. Silih/, Ih., 2489. [r) See uotu y to sec. 240 of Tlie Munieipal Act. (*) Refuses or neglects. See note c to see. 189 of this' Act. (() It is the duty of every C(dlector of taxes, on or before the 14tU of Decenil)er in every year, or on such other day in the next year, not later than the Ist of February, as the Council of the Municipality may aiipoiut, to return his roll lo the Treasurer, and pay over the amount payable to such Treivsurer snecifying in a separate culumu in liis roll how mueh of tlie whole amount paid over is ouiiccouut uf each separate rate. Sec. 101. If any of the taxes meutioued in the collector's roll remain unpaid, and the collec- tor Iw not able to collect the same, he must deliver to the Treasurer o! his Muuicipality an account of all taxes remaining due on the nil, and in such account must show opposite to eacli assessment the masou why he could not collect the »!une, by inserting in each ca«ti the words "non-resident" or "not suffaeicnt property to distrain" or " Inatrueted by the council not to collect," (as the case toyk). Sec. 103. (u) i. f. " Within twenty days a/tfr (he time when the paymi nt tmrjht te/iiii'i /«(! nuule." Those words are the same aa used in the eorres- P^ii'liii(j' sections 177 of Con. Stat. U, C. cap. 5.j, and sec. 182 of 29 iSOYict. cap. 5.3. The time within which the warrant must, under this section, !«) issued, is involved in considerable doubt. In VharleH- ^nk V. W'anl, 31 U. C. (J. B. 94, the only ease in wliich the tpies- tioii has arisen, the only two Judaea who expressed opinions on tlie point very materially differed in their views. The collector, i|i that ««. was appointed for the years 18G4 and 1865. In January, 1S(>5, Mwas authorized to continue the collection of the taxes for 18G4 ^W lat May, 1865, and in January, 1866, was authorized to eon- ™e"8olougashe should be recognized by the Municipality of we laid Township." He did not return the rolls until April, 18(57. iwgesumfor each of the years 1865 and ia66 appeared to he •wccimnted for. On 2nd April, the Township Treasurer, und.ra '*ilutioii,of the Council, demanded payment, and on 6th of same sonth issued hia warrant. The question raised was, as to the 97 rrooeodlnfn for oompell- inscolleotoM' to pay over iiioncyn col- lucUd to th» pro|)t.- treaiiurer. 'I" "■ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I tt£|28 |2.5 ■^ 1^ 12.2 - ni us US 1-25 II U 1.6 ^ 6" ► V] ^;. 0;^'^ >^ Photographic Sciences Corporation m v ^ v> A o^ '^,* 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 ■^'^ 4' ^^^^ K ^o ^ o 5^ o^ U Hi , ''1 770 THE MUNICIPAL MANUAL. [s. I95 directed to the Sheriff of the County or City (as the case mav be), commanding him to levy of the goods, chattels, lands and tenements of the Collector and his sureties, such sum as validity of the warrant. Chief Justice Richards, in uelivering judg. ment, said : ♦' The cases referred to by Mr. Harrison decide that the collector, while he retained the roll, had power to collect the taxes unpaid that were to be levied under it after the time mentioned in the statute (14th December) for the return of the roll, when tiie time had not been enlarged by the Council of the Municipality when the distress of the taxes was niardinary and «nu»u«l .npv is. to hold the L the sums couta meU fv days after the time 'Iwarrant. Here," JoJections. a demaj^. bfore he couW ^ means of the pressure of the writ, the Sheriff is entitled to reasonable com- pensation in the nature of poundage. See Michie v. Reynolds, 24 U. C. Q. B. 303 ; Hamilton and Port Dover Railway Co. v. Gore Bntik, 20 Grant 202; Bissidcs v. The Bath Colliery Co., .36 L. T. N. 8. 800; S. a 2 Ex. 459 ; *S'. C. affirmed in appeal, L. R. 3 Ex. Div. 174 ; Con- solidated Bank v. Bickford, 7 U. C. P. R. 712. (a) The section applies if the SherifT viruses or neglects, see note c to sec. 189 of chis Act, — 1. To levy. 2. To pay over the amount, if levied. 3. To make any return. 4. Or makes a false or insufficient return. {h) The application is to be made " upon affidavit of the facts." If the affidavit be deemed sufficient, the Court or Judge will grant a rule or summons, returnal)Ie at such time as may be directed, to answer the matter of tlie affidavit. See sec. 199. 6S. 199-202.] DEFAULTING SHER1FP8. 773 lime, or to any Judge of either Court in Vacation, for a rule or summons calling on the Sheriff to answer the matter of the affidavit. 32 V. c. 3G, s. 184. 199. The said rule or summons shall be returnable at such Wh«n ro- (c)32V. "- --»"-^'«- time as the Court or Judge directs. c. 36, s. 185. 200. Upon the return of such nile or summons, (d) the Hearing on Court or a Judge may proceed in a summary manner upon affidavit, and without formal pleading, to hear and determine tlie matters of the application, (e) 32 V. c. 36, s. 186. 201 • If the Court or Judge (/) is of opinion that the Ft. Fa. to Sheriff has been guilty of the dereliction alleged against him, to®^y°hr (ij) such Court or Judge shall order the proper ofticer of the money. Court to issue a writ of Jieri facias, (A) adapted to the case, directed to a Coroner of the County in which the Munici- pality is situate, or to a Coroner of the City or Town (as the case may be) for which the Collector is in default, (t) 32 V. . c. 36, s. 187. 202. Such writ shall direct the Coroner to levy of the Tenor of goods and chattels of the Sheriff the sum which the Sheriff '"* "''*• was ordered to levy by the wan-ant of the Treasurei", together ((•) It is to be observed that the application may be made to cither of the Superior Courts of Common Law in term, or to any Judge of titlier Court in vacation. See sec. 198. If to the Court, a rule is obtained ; if to a Judge, a summons. Either is, under this section, to " be returnable at such time as the Court or Judge directs. { r*- • «>7 ,0 H M O « W o 8 09 unfjoiijo jo<(uiniii 'ditoqii ;o .imimnij •om«3 JO joqmniij •aoiiJiinji JO X[|iini; iij HiioMJod ju jminiDK •iOJo(i p D 5S wi 5^ ■jnoqvi ,(ii(ap JO joqiiinii iniox I 'p|0 lillOA 00 0) iz aio;v iiio-i^iad jo jaquin)] « :i I i •ainoniii o[qnx«) pnu ifijadojd inauHJOd piiv |vni jo on[VA [ii^ox u 'I fc 5 g a .;? s 0-1 ■otiio3T(| eiqi)x«) pa« f!)jodojd iniiQgiod jo nn|iiA \nioj^ •BUlOOll] ojqoxBj, 'nmoaiti, iiiitit .iniiio Aaadoid i«iinHjs m is «! OS HO* 2 J ■.()jn(lojil ynat jn onim |ti)ox '.C^aad ~ -ojrl ittni JO fnojnd ipno jo anytx •8o3fiija pnn homo) 'Nspia nj 'ho iiinq .to i)ini3B\ •■djqg -QMoi n| pojnAp Bajai) JO jsqinnv •aia *?noj 'Rrwon ju jaqmnj^ | •o>D 'oitnoq 'JOT JO joqmn^ •tloi^nuS(Kap Jaqio JO ajvnhs '^naj^H 'nojsfioaaorv (•looiiag ntvittdag) -R I ( poqn? oiiqn.i) ;} •iionons [ooqag j e P 0- fe3 'faspifiej-aoti MimAvo sqi )oa 81 0A\? nmnjoD Uj pnnmn uouad naqA jnuMO jo maappTi pas ain«i{ ■^tmdnaoo jo b8v 'aog R.JAOIlll.f JO 'jHuaoj 'japioqoan'oq 'aepjoqaajj •noijudnooo '^ I '£}jud aiq'B -xm jaqjo JO 'jirodnooo jo auiu|ij ■{(Oj uo jsquiijj »-3 * 5 c/j ij ■2 S H'l ■5; [ScH. "B." :CU.' ■C"-**E."] D'^LARATIONS OF PARTIES COMPLAININO. SCHEDULE "C." 781 n a " : 5 2 2 s S i! Ul tl {Section Hi], atib-mrlivn 14.) jijBM UK l)KtI,AKATION BY I'AUTY ('OMPI,AININ(» IX I'KKSON OF OVKU- CHAKMK ON I'KKSUNAL ntOl'KKTY : I, A. B. {"ft ""< tKinif in full, with place of rfMii/cncr, httniuvmi, trade, pim'm, or calliii'j), do soUmnly iluclaru timt tho truo v.iluo tif all the pirsonal property aBBeasaljlo against ino (or n OF DECLARATION BY PARTY COMPLAININd OK OVKRCHAUCiE IN RESPECT OF PERSONAL PROPERTY AND TAXABLE INCOME : I.A, B. (net out name in full, with place of rvmlc nee, himneHU, trade, pfmoii or caUimj), do solemnly declare that tho true value of my I*rv)nal property, other than income, is li/ 'Acre are dehtu, add : that I am indebted on account of such per- J'mI property in the sum of ;] that my gross income •iaived from all sources, not exempt by law from taxation, is ; and that the full amount for which I am by law justly assess- We, iu respect to both personal property and income, is 32 V. c. 36 Sched. F. ,k I w f? w '782- THE MUNICIPAL MANUAL. [SCHS. •«F'-''H." SCHEDULE «F." [Section 56, mib-section 14.) FORM OP DKCLARATIOX BY AGENT OF A PARTY COMPLAINING OF OVER. CHARGE ON PERSONAL PROPERTY : I, A. B. {aetout name in full, with place o/reaidenee, humess, trmk X)rofefini'jnor calling), ageut for C. D. (aet out nai\^ in full, with placl of resiclenre, and calling of person assessed), do solemnly declare that the true value of all the personal property aaaessable against the saul C. D. (or as the case viaif be), as trustee, guardian or executor, etc., is [In case there are debts iti resjiect of the property, add .- The said C. D. is indebted on account of such personal proi)erty in the sum of ;] and that the tnie amount for which the said C. D. is liable to be rated and assessed in respect of personal property, other than income, is ; and that I have the means of knowing, and do know the extert and value of the said 0. D.'s personal property and debts in respect thereof. A. B. 32 V. c. 36, Sched. G. SCHEDULE "G." {Section 56, sid)-section 14.) FORM OP'dECLAKATION BY AGENT OP PARTY COMPLAINING OF OVE* CHARGE ON TAXABLE INCOME : I, A. B. {set out name in full, tvith place of residence, business, trwk, profession or calliuf/), agent for C. D. {set out name in full, with j/Awe of residence, and calling of person assessed), do solemnly declare that the gross income of the said C. D., derived from all sources not exempt from taxation by law, is ; and that 1 have the means of knowing, and do know, the income of the said 0. D. 32 V. c. 36, Sclted. H. SCHEDULE '«H." (Section 56, sub-section 14. ) FORM OF DECLARATION BY AGENT OF PARTY COMPLAINING OF AN OVER- CHARGE IN REMPECT OF PERSONAL PROPERTY AND TAXABLE INCOME : I, A, B. (set out name in full with place of residence, business, trade, profession or calling), agent for C. D. (set out name in full, tcith phce of residence, and calling of person assessed), do solemnly declare that ' the true value of the personal property of the said C. D., other than income, is ; that the gross income of the .said C. D., derived from all sources not exempt by law from taxa- tion, is ; and that the full amount for which Sctt"K."] FORM OF TAX DEED. 783 residence, husinens, tmk, nanie. in full, ii'i'/t i''"« do solemnly declare that ed from all sources not ; ami know, the income of the iresiilence.htsiMSf, trade Ido solemnly declare that Ve said C. U., other han X the cross income of tne lemptV law from taxa- ■Tu amount for which the said C. D. is justly assessable, in respect of both personal pro- perty and income, is . {If there are deht« on momt (fprojmrti/, add : That the said C. D. is indebted on account of such personal property in the sum of ;] and that I have the means of knowing, and do know, the truth of the matters hereinbefore declared. 32 V. c 36 Sched. I. SCHEDULE " K." (Section 150.) FORM OF TAX DEED. To all to u'hom these Presents shall come. We, , of the of , Esquire," Warden {or, Mayor), and of the of Esquire, Treasurer of the County {or City or Town) of , Send Greeting : — Whereas by virtue of a warrant under the hand of the Warden {or Mayor) and seal of the said County {or City or Town) bearing (late the day of , in the year of our Lord one thousand eight hundred and , commanding the Treasurer of the said County {or City or Town) to levy upon the land herein- after mentioned, for the arrears of taxes due thereon, with his costs, the Treasurer of the said County {or City or Tcwn) did, on the day of , in the year of our Lord one thousand eight hundred and , sell by public auction to , of the of , in the County of , that certain parcel or tract of land and premises hereinafter mentioned, at and for the price or sum of of lawful money of Canada, on account of the arrears of taxes alleged to be due thereon up to the day of , in the year of our Lord one thousand eight hundred and together with costs : Now know ye, that we, the said and , as Warden {or Mayor) and Treasurer of the said County {or City or Town), in pursuance of such sale, and of " The Assessment Act," and for the con- sideration aforesaid, do hereby grant, bargain and sell unto tlie said , his heirs and assigns, all that certain parcel or tract of land and premises containing , being composed of {describe ^'dand so that the same may he readily identified. In witness whereof, we, the said Warden {or Mayor) and Treasurer of the said County (or City or Town), have hereunto set our hands and affixed the seal of the said County {or City or Town), this day of , in the year of our Lord one thousand eight hundred ijid ; and the Clerk of the County {or City or Town) Coun- cil has countersigned. .A.. B. Warden {or Mayor). [Corporate Seal] CD., Treasurer. Countersigned, E. F., Clerk. 32 V. c. 36, Sched. C. \ ; t\ iVt, !'•■ m"^'^: ! t i I i 9. hi;' I. i! ■,, 784 THE MUNICIPAL MANUAL. An Act Respecting the Sale of Fermented or Spirituous Liquors. R. S. 0. Cap." 181. Short title, s. 1. Interpretation of words : s. 2. "Liquor," "Tavern license," "Shop license," " License by wholesale," License Commissioners : Appointment of, s. 3. Powers of, ss. 4, 5. Inspector of licences, s. 6. Issue of licenses : When it may take place, s. 7. Under direction of Board, s. 8. Procedure to obtain license, ss. 9, 10. Not to be granted for certain times and places, s. 11. Not to Commissioners and In- spectors, ss. 12-14. Tavern Licenses : Number, Limitation of, ss. IS- IS. Accommodation required, ss. 19, 20. Security to be given, s. 22. Shop Licenses : Who may obtain, s. 23. Limitation of number, s. 24. Licenses by Wholesale : Issue of, ss, 25, 26. No Licenses necessary for sale of native wines, s. 27. Transfer of Licenses, s. 28. Removal of Licensee to different premises, s. 29. AVhere license lapses, re-issue for remainder of period, s. 30. Duties payable : Amount of, ss. 31-33. License Fund, ss. 34-3(J. Regulations and Prohibitions: License to be kept exposed, s. 37. Notice of license to be exhibit- ed, s. 38. Liquors not to be sokl without license, s. 39. Nor kept for sale, s. 40. Exceptions, brewers and chem- ists, ss. 41, 42. No sale on Sunday, or after seven on Saturday night, s. 43. Or from vessels in port, s. 44. Liquor sold under shoj) or wholesale license, not to Ix; drunk on premises, ss. 45, 46. Penalties : For taking money for license certificate report, etc., s. 47. For issuing license contrary to Act, s. 48. In case of Municipal oflicers or members of Councils, ss. 49, 50. ■ For selling without license, s. 51. For selling on Sunday or after seven on Saturday night, etc., s. 52. For keeping disorderly house, 8. 53. For harbouring constables on duty, s. 54. For compromising prosecutions, ss. 55, 56. For tampering with witness, s. 57. Penalties not to be remitted or compromised, s. 58, LIQUOR LICENSE ACT. 785 'ermented or id Prohibitions: be kept exposed, icnse to be exhibit- to be soUl without 39. r sale, s. 40. brewers and chem- 1,42. L Sunday, or after 1 Saturday night, sels in port, s. 44. I under shop or license, not tol)e premises, ss. 45, money for license report, etc., s. 47. license contrary to Tiunicipal oflicersor of Councils, 93. ithout license, s. 51. on Sunday or after Saturday night, How penalties recoverable, s. 59. Application of penalties, ss. 60, 61. Powers of County Judge : Revocation of licenses impro- perly obtained, s. 62. Investigation of negligence of Inspector, s. 63. Procedure in such cases, s, 64. Prosecutions : hiformations, how and within what time to be laid, s. 65. Any person may be prosecutor, s. 60. License Commissioners and In- spectors not to try complaints in their District, s. 67. Certain prosecutions before two Justices or a Police Magi- strate, s. 68. Prosecutions in other cases be- fore one Justice or a Magi- strate, S3. 69, 70. From convictions for selling without license, s. 71. In other cases, s. 72. Procedure in cases where a pre- vious conviction is charged, s. 73. Form of informations and other proceedings, ss. 74, 75. Amendment of matters of form, . ss. 76, 77. Evidence : license, how proved, s. 78. Resolutions of License Com- missioners, how authenti- cated, s. 79. When sale of liquor will be pre- sumed, s. 80. Consumption to be proof of sale, 8. 81. light in bar-room, evidence of a sale, s. 82. Occupant of premises liable to penalties, s. 83. Certain piesumptions conclu- sive unless rebutted, s. 84. Defendant to prove license, s. 85. Compelling attendance of wit; "esses and production of do- cuments, 88. 86, 87. 99 Civil remedies against Innkeep- ers : For suicide, dro\niing, etc. , of intoxicated persons, s. 88. For assault by intoxicated per- son, s. 89. Notice may be given not to supply liquor to inebriates, 8. 90. Liability if notice disregarded, 8. 90. Money paid on illegal sale of liquor, . may be recovered back, s. 91. Officers to enforce the Law : Lieutenant-Governor may ap- point, 8. 92. License Commissioners may ap- point, s. 93. Powers and duties of, s. 94. Powers and duties of officers and of County Attorneys, s. 94. Right of search given, s. 95. Search warrant may be granted, 8. 96. Officers must prosecute, s. 97. Licenses in Territorial and unor- ganized Districts : Act to apply and Stipendiary Magistrate to try cases, s. 98. License Districts may be form- ed, s. 99. Appeals in such License Dis- tricts, s. 100. Appointment of Oommissioners and Inspectors where no Li- cense District formed, s. 101. Duties payable in such cases^ s. 101 (2). Issue of Licenses, s. 102. Powers of Municipal Corpora- tions, s. 103. Municipalities in which the Tem- perance Act is in force : Not affected by this Act, s. 104. But Commissioners and Inspec- tor may be appointed for County, s. 105, Duties of, s. 106. Wholesale licenses necessary, 8. 107. Prosecutions in such places, 8» 108. Expenses in such cases, s. 109, Schedules of Forms, p. 853. Ill, • 1% r^^j^ ^'i :i' >'i 786 THE MUNICIPAL MANUAL. [ss. 1 9. HER MAJESTY, by and with ihe advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : — Short otio. 1. This Act may be cited as " Tlie Liquor License Act:" (a) INTERPRETATION. 'Iff I J, VI ,1 " Tavern li- cense." interpreta- 2. In this Act the words and expressions following shall *'°"' be construed as folows : — "Liquors", (1) " Liqiiors" or "Liquor" shall be constnied to mean S yquor." ^^^ comprehend all spirituous and malt liquors, and all com- binations of liquors and drinks and drinkable liquids which are intoxicating. (6) 37 V. c. 32, s. L (2) •* Tavern license " shall be construed to mean a license for selling, bartering or trafficking by retail in fermented, spii'ituous or other liquors, in quantities of less than one quai"t, which may be drunk in the inn, ale or beer-house, or other house of public entertainment in which the same liquor is sold, (c) 37 V. c. 32, s. 2. (a) The English Statute 24 Geo. II. cap. 40, is not in force in this Province. Leith v. Willis, 5 U. C. Q. B. 0. S. 101 ; Heartley v. Hearm, 6 U. C. Q. B. 0. S. 452, and the English statute 14 Geo. III. cap. 88 is now superseded, Andrew v. White, 18 U. C. Q. B. 170. (ft) The Act extends to — 1. All spirituous and malt liquors ; 2. And all combinations of liquors and drinks and drinkable liquids which are intoxicating. . Spirituous and malt liquors are assumed for the purposes of the Act to be intoxicating. "All combinations of drinkable liquids which are intoxicating are placed on the same footing as spirituous and malt liquors. Whether a particular drinkable liquid is intoxicating or not, must be a matter tor enquiry upon evidence to be adduced before the Justice or Justices whose duty it is to adjudicate ujwn the complaint. See Harris v. Jenns, 9 C. B. N. S. 152. (c) The licenses provided for by the Act are three— 1. Tavern licenses, such as defined in this sub-section ; 2. Shop licenses, such as defined in sub-section 3 of this section ; 3. Wholesale licenses, such as described in sub-section 4 of this section. The tavern license authorizes a sale only by retail, that is in a quantity less than one quart, and the liquor so sold may be drunk in or at the place of sale. S.2.] INTERPRETATION. 787 Inks and drinkable bottles. (3) " Shop license '* shall be construed to mean a license '' Shop ii- for selling, bai-tering or trafficking by retail in such liquors '^'^' in shops, stores, or places other than inns, ale or beer houses, or other houses of public entertainment, in quantities not less than three half-pints at any one time, to any one person, and at the time of sale to be wholly removed and taken away, in quantities not less than three half-pints at a time. ((I) 37 V. c. 32, 8. 3, (4) " License by wholesale" or " Wholesale license" shall ^[;j,^|^g^?^ be construed to mean a license for selling, bartering or traffic- ing, by wholesale only, (e) in sixch liquors in warehoiises, stores, shops, or places other than inns, ale or beer houses, or other houses of public entertainment, in quantities not less than five gallons in each cask or vessel at any one time ; and in any case where such selling by wholesale is in respect of Liquor in Ixittled ale, porter, beer, wine or other fermented or spiri- tuous liquor, each such sale shall be in quantities not less than one dozen bottles of at least thi-ee half-pint» each, or two dozen bottles of at least three-fourths of one pint each, at any one time. (/) 37 V. c. 32, s. 4. The shop license also authorizes a sale by retail, that is in quan- tities not less than three-half pints, but the same ought not to be drank in or at the place of sale. The wholesale license, as the name indicates, is for a sale by whole* sale, that is to say, in quantities not less than five gallons or one dozen bottles of at least three-half pints each, or two dozen bottles of at least three-fourths of a pint each. The sale intended is of course to be made at one time and not on different occasions on the same or different days. A sale by any«person licensed, in quantities less than authorized by his license is clearly a punishable offence. See The Queen v. Faulkner, 26 U. C. Q. B. 529 ; Tlie Queen v. Denham, 35 U. C. Q.B.503. ^ ['I) See note c to sub. 2 of this section. "i at to form of conviction. W See note c to sub. 2, of this section. 8, as to form of conviction. See also Schedule D, No. See also. Schedule D, No. (/) Tlie Legislature of Ontario by 37 Vict. cap. 32. assumed to ake it obligatory upon brewers to take out licenses authorizing them to sell by wholesale. In BegiiM v. Taylor, 36 U. C. Q. B. 183, this enactment was held to be ultra vires, but the Provincial Court "f Appeal, lb. 218, reversed the decision. An attenapt was Aen made to carry the case for decision to the Supreme Court of ^'anada, but for technical reasons it failed. Reglna v. Taylor, 1 ^ip. C. C. 65. The same point was afterwards raised in The vw«i V. Severn, in which the Court of Queen's Benoh, following ''4 I U^-iT V: iJi '-it- w :(; 788 THE MUNICIPAL MANUAL. LICENSE COMMISSIONERS. [ss. 3, 4. Powers of the coinmis- ■ionen. For deflniug requisites for granting; tavern and abop 11- oenses. Board oi 3« There shall be a Board of License Commissioners to be n^oners!"" comix)secl of three persons to be appointed from time to time by the Lieutenant-Governor for each City, County, Union of Counties or Electoral District, as the I^ieuten ant-Go vemor may think fit ; and any two of the said Commisaiouei-s slmll be a quorum, and each of them shall cease to hold office on the thirty-first day of December in each year, but he may be reappointed ; and the said office shall be honorary and with- out any remuneration, (y) 39 V. c. 26, s. 1; 40 V. c. 18, s. 1. 4. The License Commissioners may at any time before the first day of May in each year, pass a resolution or resolutions for regulating and determining the matters following, (h) that is to say : (1) For defining the conditions and qualifications requisite to obtain tavern licenses for the retail, within the Munici- pality, of spirituous, fermented or other manufactured liquors, and also shop licenses for the sale, by retail, within the Municipality, of such liquors in shops or places other than taverns, inns, ale-houses, beer-houses or places of public en- tertainment ; Limiting (2) F*r limiting the number of tavern and shop licenses "ceases' etc. I'ospectively, and for defining the respective times and local!- the ruling of the Court of Appeal, but dissenting from it, gave judg- ment for the Queen. In The Queen v. Severn, the Supreme Court afterwards held that the decision of T/ie Queen v. Tai/lor, by the Court of Queen's Bench, was correct, and the decision of tlie Provin- cial Court of Appeal erroneous. The Legislature of Ontario at its last session made provision for refunding the moneys paid by brewers for licenses and also for repayment of hnea and costs to which they had been subjected. 41 Vict. cap. 14, ss. 1, 2, 3, 4. (g) It is difficult for the Municipal authorities to enforce regula- tions for the orderly keeping of licensed houses as well as to meet the devices parties may resort to for the purpose of evaduig and contra- vening them. Per Morrison, J,, in Regina v, Belmont, 35 U. C. Q. B. 298, 301. This difficulty on the part of Municipal Councils, was the cause of the passing of 39 Vict. cap. 26, s. 1 of which this and the sections following are a consolidation. See per Harrison, C. J., in In re Brodie and Boivmanville, 38 U. C. Q. B. 585. See further, sec. 105 of this of Act. {h) It is not as a general rule, intended that the Municipal Coun- • oils and the License Commissioners shall have concurrent powers. In re Brodie and Bowmanville, 38 U. C. Q. B. 580. In re Arkell and St. Thomas, lb. 594. fiS. 5.6.] INSPECTOR OF LICENSES. 789 ■ ('V ties within which and the persons to wliom such limited number may bo issued witlnn the year, from tlie first day of May of one year till the thirtieth day of Ai)ril inclusive of the next year ; (3) For declaring that in Cities a nnmber not exceeding Exemption ten persons, and in Towns a iwmber not exceeding four per- accominoii? sous, qualified to have a tavern license, may be exempted """• from the necessity of having all the tavern accommodation required by law ; (4) For regulating the taverns and shops to be licensed ; Rcguiationt. (5) For fixing and defining the duties, powers, and privi- leges of the Inspector or Licenses of their District. 37 V. c. 32, s. 9 ; 39 V. c. 26, s. 4. 5. In and by any such resolution of a Board of License Penalties Commissioners, the said Board may impose penalties for the "o'sedby™" infraction thereof. (?) 37 V. c. 32, s, 48. reguiaUom. INSPECTOR OF LICENSES. 6. An Inspector of Licenses shall be appointed by the inspector of Lieutenant-Governor from time to time for each City, County, al^^iX' **'* Union of Counties, or Electoral District as the Lieutenant- ment, Governor may think fit ; (j) and each Inspector shall, before Sur/ and" entering upon his duties, give such security as the Treasurer security, of tlie Province may require for the due performance of his said duties, (k) and for the payment over of all sums of money received by him according to the provisions of this Act ; and the salary of each Inspector shall be fixed by the Lieutenant- Governor in Council, (l) 39 Y. c. 26, s. 8 ; 40' V. c. 1*8, s. 1. (i) This section is very loose in its language, and indefinite as to its purpose. The power is to impose penalties, but it is not said whether these penalties are to be pecuniary or otherwise. If pecuniary there is an omission to state any limit as to the amount of the penalty. (i ) Although the Inspector of Licenses is appointed by the Exe- cutive it is in the power of the License Commissioners, also appointed "y the Executive, to pass By-laws for fixing and defining the duties, powers and privileges of the Inspector of Licenses for their District. (i) As to the duties of the Inspector. See sec. 9 and notes thereto. (0 While a salary may be allowed to the office of Inspector, that of Commissioner is honorary. See sec. 3. m' ir^^ 790 THE MUNICIPAL MANUAL. [88. 7, 8. I m. p iHue of lieenges. 1:' 'I' y In special cases. ISSUE OP LICENSES. 7. The Lieutenant-Governor in Council may direct the issue of licenses on stamped paper, written or printed, or partly written and partly printed, of the several kinds herein- before nientioned ; and the said licenses shall be si,i,nied l)y the Trea&ui'er of this Province, and dated as of the first day of May in each year, and shall thence continue in force for one yeai*, and shall exi)ire on the thirtieth day of April in the next ensuing year, (vi) After the ist 2. After the firat of May tavern and shop licenses mny of May. |jg issued between the first and fifteenth days of May in each year ; and licenses by wholesale may be issued between the first and last days of May in each year ; and all such licenses shall be deemed to have been issued on the said first day of May. (n) 3. Where special grounds are shewn, the License Commis- sioners may direct one or more licenses to issue at any time after the said first day of May, if within the limit author- ized by this Act. (o) 37 V. c. 32, s. 5 ; 39 V. c. 26, ss. 4 & 24. 8. Every license shall be issued, under the direction of tlie resjiective Boards of License Commissionei"s, by the Inspector of Licenses for the License District in which the tavern, shop, warehouse or other place to which the license is to apply is situate, except in the case of licenses tor ves.sels, which may be issued under the direction of the License Comniissionei's by the Inspector of Licenses for any License District to or from auy port in which the vessel sails, or at any jwrt in {m) The Temperance Act of 1864, provided that a By-law passed thereunder, should come into force from and after the first of March next, after communication thereof to the collector of inland revenue. The effect of such a By-law was to deprive persons licensed of the right to sell liquors during the last tM'o months of their license. See O^Xeil and Oxford, 41 U. C. Q. B. 170 • (w) The license, no matter whether issued between the first and fifteenth days of May, or between the first and last days of May, expires, under auy circumstances "on the thirtieth clay of April in the next ensuing year. " (o) The License Commissioners are to be the judges of "the special circumstances. " The license when issued, even under special c.rcum- stances, will not be in force beyond the 30th of April next, after the date of its issue. Licenics, bow issued. Vessel Licenses. PETITION AND REPORT. «.9.] which sho calls, (q) 37 V. c. 32, 8. 8 ; 40 V. c. 18, 9.2. 9. A license to sell spirituous, fermented or other mann- factured liquora, by retail, in any tavern, alehouse, beer-house, place of public entertainment or shop, shall not be granted (?•) fxce}>t upon petition by the applicant to the License Com- missioners of the District in wliich the license is to have effect, praying for the same ; nor until the Inspector, to bo appointed as hereinbefore provided, has reported in writing to the License Commissioners, that the applicant is a fit and proper person to have a licensf ind (in the case of a tavern license) Irns all the accommodation required by-law, («) and that the applicant is known to the Inspector to be of good character and repute ; (t) and every such report shall be duly tiled by the License Commissioners and shall remain (7) The rule is to issue a license for sale of liquor at some particu- lai place, but a vessel which S2uls from place to pL-vce, is a necessary excuptiun to the rule. li\ the former case the license can only be issued under the direction of the Board of License Commissioners, having jurisdiction over the place ; in the latter, the license nuiy be issued under the direction of the License Commissioners by the inspector for any license district to or from any jjort in which the vessel sails, or at any port in which she calls. ((■) The granting of the license may be conditional. Re(jhm v. PnUm, 3r) U. C. Q. B. 442. The granting or refusing of a license, is not a judicial act so as to be subject to review by tlie Court on cer- tmiri. See The Qitven v. iSal/onl, 18 Q. B. (587. If know- ingly granted when according to the provisions of the Act, it ouglit not to have been granted, the persons granting it are subject to pro- secution and fine. See sec. 48. («) A license granted under circumstances which, by the act should prevent its issue, would, in the face of the strong language used in the Act, appear to be void. See Thompson v. Harvey, 4 H. & N. 2M. See further note a to sec. 10, Two things are necessary ; first, the petition of the applicant ; second, the report of the inspector, embodying the details suggested. It is intended that the inspector shall in good faith, make the enquiries necessary to enal)le him to give the required certiticate. See Ri'jjhia v. KensiiKjton, 12 Q. B. 654; The duty to inspect is not one which the Court will enforce by man- damus. In re Baxter v, Jlenson, 12 U. C. Q. B. 139. {() The words, " character and repute," do not mean a man's real conduct and mode of life, but his reputation among his neighbours. He may be living in adultery, but if this fact is not generally known, he may still, by his neighbors to whom this fact is luiknown, be , esteemed a person of good character and repute. These words were introduced for the purpose of avoiding the evils which have been lound to result from the multiplication of houses licensed to sell •pirituous and fermented liquors, which in too many instances, were 791 No tayorn or ihop lioonsu to be l^raiited except upon petition and report thereon. Report to be filed. '1 792 THE MUNICIPAL MANUAL. IVhen patl* tion for liMDM to be preNDted. Report not to De eon- CllulTO. \w if; I: il' [s.9. open to the innpection of any ratepayer of the Municipality or any rroviuciul olficer. (n) 37 V. c. 32, s. 13; 3y V c 26, a 9. 2. Every petition for a tavern license, which in to Inko effect on the first day of May in any year, shall he filed with the License Inspector for the District wherein it is to Imve effect on or before the first day of April next jirecodini/. (v\ 40 V. 0.18, 8.4. ^ ^^ 3. The Inspector shall not report in favour of any appli- cant other than the true owner of the business of the tavf.-m or shop pro[»osed to be licensed, (w) and his report shnll be for the information only of the License Connnisioners, wlio shall nevertheless exercise their own discretion on each ai>- plication, (x) May bo dig- 4. Where the applicant for a tavern or shop Hccnso resides rensod with, [j^ ^ remote part of the License District, or wlioie for any other reason the License Commissioifcrs see fit, they may dis- pense with the re])ort of the Inspector, and act u|)()ii such information as may satisfy them in the i)remises. (i/) 37 V. c. 32,8. 13; 39 V. c. 26, ss. 11, 13. found to be the resort of the profligate and the worthless. See Leader V. Yell, 16 C. B. N. S. f)84. In England a person convicted of felony, is for ever disqualified from selling spirits Ijy retail. The Queen v. Vine, L. R. 10 Q. B. 195. (m) The report ought to be held confidential, as it is for tlie use of the Commissioners and of the Commissioners only, but as the effect of so dealing, might be productive of great abuse, provision is made for the inspection of the report by any ratepayer of the Municipality or any Provincial olficer. (w) This, it is apprehended, is only directory, in other words, that the Commissioners may, after the day named, if they see nt, receive the petition. The limitation as to time is made for their convenience. If they see fit to waive it, none others can well be allowed to complain. (w) The intention is, that the true owner only shall be licensed ; the certificate required is as to his character and repute. If the license were issued to a person other than the owner, tlicre would \» no guarantee for 'the proper conduct of the tavern or shop. See Thompson v. Harvey, 4 H. & N. 254. (x) It is clear that the Commissioners are not bound by the con- tents of the certificate, but may exercise their own judgment, making use of their own knowledge as to eacb application. (y) The report of the inspector is merely the means to an end where the particular means are not readily available ; the end may be at- tained by other means if the Commissioners see fit. '!( tS.10, 11<] PROCEDURE FOR OUTAININO LICENSES. 708 tho Municipality I, ». 13; 3y V. c. of the Municipality 10. If ui>on application of any ])ei-8on roquiring a tavcni ^*''*' "L*'^ or shop license, it appeuvH that Huch a)i[>licant in thu truo obtaining' owner of the b\iHineH» of Hnch tavern or shop, and Iuih coniplieil ['^g^ °' with the requirements of tho law, and of any Mnnicijial iic«nie«. bylawH enforce in that behalf, and also of the regidar tions iind requirements of thu License Commissioners, and is one of the persons designated or otherwise aj)proved of by the License Commissionens, the said License Commission(u-s raav grant such applicant a certificate under the hands of any two of them, stating that he is entitled to a license for a cer- tain time, and for a certain tavern, inn, house or place of public entertainment or shop within the Municif)ality, to bo mentioned in such certificate. («) >i'ee 37 V. c. 32, a. 14 ; 31) V,c.26, 8. 11. 2. The license duty shall thou bo paid by tlie applicant iiitosuch bank as may be desi^niated by the Provincial Trea- surer, to'the credit of tho " License Fund Account," for tho License District ; and upon prodtiction by the applicant to the ias])ector of the certificate of tho License Commissioners, to- gether with a receipt shewing payment in full of the duty to the credit of the License Fund Account, the Inspector niav issue the license authorized by the Commissioners, (b) 40 V. c. 18, s. 28. 11. The License Commissioners shall not grant any certi- Noiiconw ficate for a license, or any certificate whatsoever, whereby ({ranted for m person can obtain or procure any license for the sal« of '^® j*|? V"""* spirituous, fermented or intoxicating liquora, on the days of the Exhibition of the Agricultural Association of Ontario, or of any Electoral District, or Township, Agricultural Society Exhibition, either on the grounds of such Society, or within the distance of three hundred yards from such grounds, (c) 3(V.c. 32, s. 14. (('.) It is in tlie discretion of the Commissioners to grant or refuse the license. Therefore no action lies against them for the simple refusal of the license. Bassett v. Oudnchail, 3 Wils. 121, and in tiie absence ff corruption there can be no criminal jjroceedings taken against them. Rex v. WiUiavin, .3 Burr. 1.S17 ; -V. C. Hex v. Hann etal, 3 Burr. Iil6, and there is no provision made for an appeal from their decision. >ee Rex v. Middlesex, 3 B. & Al. 938 ; lie'ihia v. Dcaiw, 2 Q. H. ()« ; %i»a V. Cockburn, 4 E, & B. 2(!5 ; Ret'ima v. Eb/, T) E. & B. 489 ; Drabs Case, L. R. 5 Q. B. 33. See further note r to sec. 9. ('') See sec. 34. W A certificate for a license, if any granted 'in contravention of wi section, would, it is presumed, be held void. See ThompHon v. 100 % I / Y';i' % 794 No llconno to bit grantt>d to CoiiiiuU- tloiiitror Iiiipvctor. Linen M not to bo ImudU for unjr preniiMM owned bj ■uch penon inhUdlH- triot. Si f Lost Rub-wc- tion not to ap])ly to oompanieH In which cominisHlon- er, etc., \h a HliarehoIiJor. '^ I. TUB MUNICIPAL MANUAL. [b. 12, 13. 12. A tiivom or shop license shall not bo giinit«'»l under the provisions of this Act or any other Act of tlie \A every such case the License ConiniiHsiouer shall not, under a penalty of five hundr(!d dollars, vote ui)on any question affecting the granting of a license to the company, or for preniiseH owned or occupied by it. (/) 40 V. c. 8, s. 78. 11 ■ 'i Harve)) 4 H. & N. 2.54. TJio Court refuseil to grant a mamlniiuis to revoke a certiKoato for a liuonso granted in contravention of a Muni- cil)al By-law. See lieyina tx rd. ilambh v. liunmdv H al. 8 U. t'. Q. B. 2(5.3. (d) The Legislature have not here as in the preceding section left the eflFect of the license granted in contravention to the terms of the section to inference. A license granted where the Act provides it shall not be granted would, it is appreliended, be held void with- out the use ofcxpress language to that effect. See ThowpnoH and Harvey, 4 H. & N. 254. (e) The penalty is a severe one, but it can only arise when the cm> duct of the Commissioner or Inspector is hwvniKjhj wrong. Where the illegal conduct can be properly said to be the result of ignor- ance or mere negligence, it is apprehended the section is inappli- cable. (/) A similar provision is contained in The Municipal Act under which lie Baird and Almonte, 41 U. C. Q. B. 415, was decided. It was there held that, where three out of five of the members of a Municipal Council were disqualified from voting, a By-law passed by them granting b bonus to a stock company m which they were sharehoUIers, was void. ^1 ■■t ■* «. 14, 13.J LIMIT TO NUMBER OF LICENSES. 7&5 14. Subject to the proviHions of thiH Act as to romovniH (d for the preniiHeH therein iIcHcrihed, (J) and tfrBntua.itub- sli;,ll iciiiaiu valid only so lonj< as such pernon continuos to ^s^jtT**" lie the occupant of the said preinises and the true owner of the liii»liie.s8 there carried on. (k) 40 V. c. K^, s. 5. •ftnt ft manilamus to TAVERN LICENSES. 'I 16. Tiio nuiuher of tavern licenses to be gvantiHl in the uniiutionof r(>|K't'tiv(' Municii»alitie8 shall not in each year bo in excess Hlbumh. of the following limitations : (/) in Cities, Towns and incor- inoiuei, |orutt'(l Villages roHi)ectively, according to tho following ^JJ^i'^o*!"^ sciih', that is to say, one for each full two hundred and fifty uf the first one thousand of the population, and one for each full four hundred over one thousand of the jjopidution ; (in) (;;) See gee. 29. (/() See sec. 28. * •• (i) See note in to sec. 9. {}] k liceiiHe to sell spirituous liquors by retail, includes reason- ilile additions to the original promises, not diminishinjr the necus- wry acLomniodation, and it is a (juestion of fact, w-Jiether after iuih additions the premises arc not siUistantially th^i sumo as thufe licensed. Jiegiua v. Smith, 15 L. T, N. S. 178 ; Slrlm/cr v. 7A« Tmtm of Hiiddersjield, .3.3 L. T. N. S. 508 ; 77/e Qweii v. Jfajflin, LR. IQ. B. Div, 207. In England persons licensed to sell spirit- uous 11(111(118 by retail at particular places, are allowed M-ithout tho nectssity of a, magistrates license to sell at public fairs or public races. ^linii'ihi'y V. Rowhotham, 15 L. J. N. S. 222 ; A.'*h v. Lyiiii, L. R. 1 Q. B, 270 ; Ilannant v. Foulyer, L. R. 2 Q. B. 399, but tho law is Jifferent in this Province. (i) See note w to sec. 9. (') This section prescribes the maximum number of licenses for enh Miinicijjality. Licenso CommissiKners liave xuider sub. 2 of sec. 4, ixwer to limit the number of licenses. They may, in the case of a lOTticular Municipality, limit the number to less than the maxi mum provided for by this section, but cannot exceed it. (w) Taite for example a city containing a population of 11,000 : First 1,000 4 Remaining 10,000, divided by 400, equal to 25 Total There are none allowed for a fraction of 400. fr.i> i'' 29 ill n j^^ IB* ■ J i I ■ '■i 1-^ H ' m 796 THE MUNICIPAL MANUAL. In villages which are county towns. [s. 16. but in no cftse shall this limit authorize any increase in any Municipality in excess of the number of licenses therein issued for the year ending the first day of March, one thou- sand eight hundred and seventy-six, unless from the future increase of the population the License Commissionei-s think a larger number has become necessary, but not in any case exceeding the limit imposed by this Act ; (n) 2 In incorporated Villages, being County Towns, the limit may be five in number, (o) and in the Town of Clifton three hotels near the Falls of Niagam, which may be .Ucensetl, may be excluded from the number which would other- wise be i-lie maximum limit under this Act. (p) 39 V. c. 26, s. 2: Manner of 16. The number of the population which is to determine popuStion* the number of licenses at any time under this Act shall be with a view according tc the then last preceding census taken under the nnniber of authority of the Dominion of Canada, except where the licenses. License Commissioners are at any time of opinion thait, owing to a large increase of population since such census, an increased number of licensed taverns is needed for the convenience and accommodation of travellers ; and in that case, if the License Commissioners so certify, and the Council of the Municipality memoralize the Lieutenant-Governor for an increase of the number of licensed taverns, the Lieutenant-Governor in Coun- cil may authorize a new census to be taken under the author- ity of a by-law of the Municipality and at the expense of the Municipality, and the limit for the number of licenses shall thereafter, upon each such new census, be one for each full («) The number of licenses authorized in the year ending on ht March, 1876, is, in the absence of substantial increase of population to be taken as the limit. If there be an increase of population such as to warrant the issue of an additional number and the License Commissioners think a larger number necessary a larger number may be issued provided the maximum authorized by this section be not thereby exceeded. (o) An ordinary incorporated Village falls under the general rule laid down in the first part of the section. Where the Village is the County Town an arlntrary limit of five is fixed as the maximum. ip) The Town of Clifton extends to the Falls of Niagara. Tlie attraction of visitors there during the summer months is so great as to justify, in the opinion of the Legislature, the declaration that " three hotels near the Falls of Niagara, which may be licensed may be excluded from the number which would otherwise be the maxi- mum under this Act. " The meaning is that these three hotels may be an adiUhion to the ordinary maximum. B t > 17.] LIMIT TO NUMBER OF LICENSES. 797 li vi to determine this Act shall be J taken under the ixcept where the pinion that, owing jnsus, an increased ,e convenience and jase, if the License f the Munici[)ality kn increase of the jovernor in Couu- under the author- 16 expense of the of licenses shall one for each full tro hundred and fifty of the population under one thousand, and one for each five hundred over one thousand of the popu- ktion. (q) i In case of the alteration or formation of any Municipal- in ease of ity subsequent to such census of the Dominion of Canada, foJ^IJon of lie population of such Municipality, for the pui*poses of this munici- Act, may be ascertained by the said Commissioners by ^' '^" reference to the enumeration on which such census took place, or by a new census taken under the provisions of this section, (r) 3, Where, since the said Dominion census, a census has Or municipal teen taken in any Municipality under the authority of the '^^^' Council having jurisdiction, the limit may be the same as in the case of a census taken under this section for the purposes of this Act. (») ' J V. c. 26, s. 3. . 17. The Coimcil of every City, Town, Village or Township Council may may, by by-law to be passed before the first day of March in ^'™'*" iny year, limit the number of tavern licenses to be issued tierein for the then ensuing license year, beginning on the first day of May, or for any future license year until such by- law is altered or repealed, provided such limit is within the limit imposed by this Act ; (t) (}) Population is made the basis for the calculation of the maxi- lum number of licenses to be issued. The number of the popula- aon may be ascertained either by the result of the last general census, or by the result of a special census to be had under the • circumstances stated. While the limit under such special census is js under sec. 15, one for each two huntlred and fifty under one thous- ind, there is only one to be allowed for each five hundred over one thousand of the population. The latter differs from the provision of «c. 15, which is one for each four hundred over one thousand. (r) See the last note. (i) See note q supra. • • (') Power is, under sub-sec. 2 of sec. 4 of this Act, conferred upon the License Commissioners to pass By-laws for limiting the number ■' tavern and shop licenses respectively. Similar power as to tavern licenses only, is, by this section, conferred on the Council of every City, Town, Village, or Township. A similar power as to Shop Licenses is conferred by sec. 24. The power, if exercised by a Municipal Council, must be exercised before the first day of March ID any year. The limit, whether fixed by the License Comissionera w by the Municipal Council, is subject to the maximum prescribed "J sec, 15, When created by a By-law of tlie Municipal Council,. 't exists as to all future licenses, so long as the By-law is in force. ■I •' 798 THE MUNICIPAL MANUAL. [8. 18. fi'Z-it ■■' hwTim^tloK ^' "^'^^ Council shall cause a certified copy of such by-law to be sent to be sent immediately after the passing thereof to the rionew."'^" License Commissionei-s of the District in which the Munici- pality is situate. (w) 39 V. c. 26, s. 2 (3). Limited liceages. 18. In any case where the License Commissioners of any License District do not think fit, or are unable to gi-ant a new license to any applicant who has been licensed during the preceding twelve months, or any part thereof, they may nevertheless, by resolution, provide for extending the dura- tion of the existing license for any specified period of the year, not exceeding three months at their discretion, upon payment by the applicant, of a sum not exceeding the pro- portionate pai-t of the duty payable for such license for the then next ensuing license year ; and such license, when a cer- tificate of the extension aforesaid has been endorsed thereon, under the hand of the Inspector of Licenses for the License District, shall remain valid for the period specified in the resolution of the Commissionei-s, and no longer : (a) but this provision shall not he construed to confer on the License Commissioners any authority to exceed the limit prescribed by this Act as to the number of tavern licenses to be granted in any year, except in Cities, where the License Comniission- ei*s may in their discretion, having regard to the particular circumstances of the City, and of each application, grant (m) This is for the confirmation and guidance of the License Com- missioners iu the issue of Licenses in the particular Municipality. A By-law limiting the number of Tavern or Shop Licenses to one, would be bad, as "creating a monopoly. See In re Barclay and Bar- Umjton, 12 U. 0. Q. B. 86 ; In re Oreystock and Otanabee, lb., 458; InreBrodie and Bowmanv'dk, 38 U. 0. Q. B. 580, but not so where the limit is two or four. See Terry v. Haldimand, 15 U. C. Q. B, 380 ; In re G\ff'ord and Darlington, 35 U. C. Q. B. 285. («) In order to the procurement of a license, which in itself con- tinues only for a year, an expenditure of money is necessary in pro- viding the necessary accommodation. When the license has been obtained, a further expenditure is necessary in providing liquors, 4c., for the purpose of the business, most persons so licensed look for- ward to the renewal of the license, provided they continue of goml cond uct and repute. In order that such persons may not be surpnsed, or prejudiced by the surprise of not obtaining a new license, pron- sion is made for an extension of the license, not exceeding three months upon payment of a proportionate part of the duty. The object of the extension is to enable the persons indulged to make arrangements with as little loss as possible to go out of the business. This 18 to be done by the endorsement on the license of a certificate of extension. n s.19,20] TAVERNS AND GROCERIES. 799 missioners of any unable to gi-ant a ill licensed during hereof, they may, .ending the dui-a- ied period of the ;• discretion, upon jxceeding the pro- ch license for the cense, when a cer- endoi-sed thereon, les for the License »d specified in the nger : (a) but this 'er on the License e limit prescribed inses to be granted ;ense Commission- to the particular application, giant which in itself con- is necessary in pro- ;he license has l)een >viding liquors, 4c., so licensed look for- ey continue of goo^ *» (li) See sec. 15. (c) This is an extension of the principle already applied to the ToTO of Chfton. See note p to sec. 15. ((?) The existence of the required accommodation is a condition precedent to the granting of the license. Its continued existence is iko apparently a condition precedent to the continuance of the license. {() It is objectionable for a tavern or inn to form part of, or to be in direct communication with any shop or store, where groceries or provisions are kept for sale. It is equally objectionable for a room in which billiard tables are licensed for use, to communicate with a tavern or inn, and Municipal Councils in passing Tly-laws for the licensing of billiaid tables, may provide against any such communi- cation. See In tlie Nedey and Oioen Sound, 37 U. C. Q. B. 289 ; In « Arkell and St. Thomas, 38 U. C. Q. B. 594. See further, Jones "■ nutaker, L. R. 5 Q. B. 541. t 800 THE MUNICIPAL MANUAL. [ss. 21, 09 i \H- %l be shown, to the satisfaction of the License Commissioners to be a well-appointed and sufficient eating-house, with tlio appliances requisite for daily serving meals totravellei-s ; (/) and the requirements of this section shall apply to all tavfenis or houses of entertainment, without any exception whatever and continuously, for the whole period of the license, (n) 39 V. c. 26, s. 5. ^ City or town 21. The Council of any City or Town may, by by-law to preswibe"*^ he j)assed before the tii-st day of March in any year, prescribe require- ^°^ *^® *^®^ ensuing license year beginning on the first day ments as to of May, any requirements in addition to those in the last two tayern. preceding sections mentioned, as to accommodation to be pos- sessed by taverns, or houses of entertainment, as the Council may see fit ; (A) and the License Commissionei-s upon re- ceiving a copy of such by-law shall be bound to observe the pi'ovLsions thereof ; and such by-law shall continue in full force for such year and any future year until repealed, (i) 39 V. c. 20, s. 6. Security to be given. 22. Before any tavern license is granted, the person ap- plying for the same shall enter into a bond to Her Majesty in the sum of two hundred dollars, with two good and suthcient sureties, (to be approved of by the Inspector) in the sum of one hundi'ed dollars each, conditioned for e payment of all fines and penalties such person may be condemned to pay for any offience against any Act, by-law or provision in the nature of law, relative to taverns or houses of public entertaiuiuent then and thereafter to be in force, and to do, perform aud (/) A man who goes to an inn in the course of a journey wlutlier of bnsiness or plcasiur, is a traveller, and entitled to deuKuul rofii.'sli- ment. AtMmon v. Selkrfi, 5 C. B. N. S. 't42 ; Tai/Ior v. Hitmiihri'iis, 10 C. B. N. S. 429 ; Fisher v. Hoivanl, 11 L. T. N. S. .373 ; Taahr v. Humphreys, 17 C. B. N. S. 539 ; Peache v. Colman, L K. 1 C P. 32i; Pi'plow V. Richardson, L. II. 4 0. P. 168; DarU v. Scran', lb. 172 ; Waft v. Olenhter, 32 L. T. N. S. 85G ; Coulbai v. Trvk, 33 L. T. N. S. 340 ; S. C. L. R. 1 Q. B. Div. 1. (y '« person seeking a license for a tavern or house of eutertaiuiuent. This section enables the Council of a City or Town to uuike addi- tions to, but not to lessen the extent of the accommodation. (i) See note t sec. 17. Security to be given by taTern licensee. 88. 23, 24.] LIMIT TO NUMBER OF SHOP LICENSES. observe all the requirements thereof, and to conform to all by-laws and regulations that may be established by competent authority in such behalf, and such bond shall be in the words or to the effect of Schedule A. to this Act ; {j ) and when executed, shall be filed in the oflSce of the Inspector of Licenses, to be by him transmitted to the office of the Provincial Treasurer, {k) 39 V. c. 26, s. 7. SHOP LICENSES. 801 23. A shop license {I) shall not be granted to any person Shop unless he has filed his application with the Inspector on or ""homgiTen. before the first day of April in that year, and unless the Inspector has rei)orted to the License Commissioners that he is a |)erson of good character, and that his shop and premises „ ., aresuital)le for carrying on a reputable business, and unless he executes with sureties the bond in 1 he form expressed in Schedule B. to this Act. (w) 39 V. c. 26, s. 10. 24. The Council of every City, Town, Village or Township Number of may, by by-law to be passed before the first day of March, in limFted, and any year, limit the number of shop licenses to be granted ''<=«'"«*? ™»y theiein tor the then ensuing license year, beginning on the to certain lirst day of May, and in such bylaw or by any other by-law "^''^ctions. ]MS»ed before the first day of March, may require the shop- keei^r to confine the business of his shop solely and exclu- sively to the keeping and selling of liquor, or may impose (j) Lfjng before the passing of this Act it was heltl that a Town- shil) ( jjunuil had powei before granting a license to rec^uire a certifi- cate from the Township Treasurer of tlie deposit of a bond with the Treasurer conditional as in this section prescribed. In re Greystock ml(jkinuhe<;, 12 U. C. Q. B. 458. (Ii The Inspector whose duty it is to receive the bond and trans- mit it to the office of the Provincial Treasurer would thereby have notice of it. Ci See note c to sub. 2 of sec. 2 as to what is a Shop License. ("') The prerequisites of a Shop License are as follows : i. The liling of an application with the Inspector on or before Isfc Ajjril in the year in and for which the license is asked ; -. The report of the Inspector that the applicant is a person of good character, and that his shop and premises are suitable for carrying on a reputable business ; -!• Tlie execution of a bond with sureties In the form expressed in 'Schedule B to the Act. As to the duties of the Inspector see sec. 9 and notes thereto. 101 i' t i ' «02 THE MUNICIPAL MANUAL. [8. 25. any i-estrictions upon the mode of carrying on such traffic as the Council may think fit. (u) Certifled 2. It shall be the duty of the Clerk, immediately after the wnf to* ^ passing of such by-law, to send a certified copy thereof to the LioenseCom- License Commissioners within whose License District the misb oners, jyiunicip^iity jg situate and such by-law shall be binding upon the License Commissioners, and any shop license to be issued shall conform to the provisions thereof ; and such by- law shall remain in force for any future year until repealed, and any Clerk who neglects, omits cr refuses to send such certified copy shall incur a penalty of not less than forty no- more than one hundred dollars, (o) 37 V. c. 32, s. 10 ; 39 V. c. 26,8. 12. Iisne of licenaes by wholesale.' LICENSES BY WHOLESALE. 25« The Inspector of Licenses of the License District, in any Municipality in which the license applied for is to have effect, shall issue to any applicant, upon a requisition therefor signed by him, and after payment to the Inspector of the proper duty thereon, a license for selling fermented, spirit- uous or other liquors, by wholesale only, (jj) in his warehouse, store, shop, or place to be defined in said license, (q) and situate within the said Municipality, and such license shall be deemed a license by wholesale within the meaning and subject to the pi'ovisions of the fourth sub-section of the second section of this Act 37 V. c. 32, s. 15 ; 39 V. c. 26, 8. 14. (n) The Board of Commissioners have, under sec. G, sub. 2, power to pass resolutions limiting the number of Tavern aiul Shop licenses. Sec. 17, enables the Council of a City, Town, Village or Township to limit the number of Tavern licenses. This section contains simi- lar power as to Shop licenses. The Council in passing a By-law under this section may impose such restrictions aa it sees ht. A By- law limiting the number of Shop licenses to be issued in a Town to one, and requiring the licensee to confine his business exclusively to the keeping and selling of liquors, is bad as being in effect a prohibi- tory by-law and creating a monopoly. In re Brodie and Bowman- ville, 38 U. C, Q. B. 580. (o) The simple neglect or omission of the Clerk to comply with the directions of this section subjects him to the penalty. Ignorance, therefore, would not be any excuse. {p) See note c to sub. 2 of sec 2, as to what is a wholesale license. {q) See note J to aec. 14. ■M ss. 26-28.] TRANSFER OF LICENSES. 803 For*.y nor more s. 10 ; 39 V. c. a wholesale license. 26. Wholesale licenses may be issued at any time tluring ReguiatiouB the year after the License Commissioners of the District in "hoiei^ "^ which such license is to have effect, have directed the same licenses. to be granted, and sliall be strictly limited to persons who cairy on the business of selling by wholesale or in unbroken packages, (r) and any wholesale license so issued shall be and become void in case the holder thereof, at any time dui'ing the currency of the said license, directly or indirectly, or by or with any partner, clerk, agent or other jierson, carries on, upon the premises to which such license applies, the business of a retail dealer in any other goods, wares or merchan- dize, (s) 40 V. c. 18, s. 29; 39 V. c. 26, s. 14. 27. IManufacturers of native wines from grapes grown and Manufoctur- pioduced in Ontario, and who sell such wines in quantities ^"^ <>' naUve of not less than one gallon, or two bottles of not less than three half-pints each at one time shall be exempt from any duty under this Act, and shall not be required to obtain any license for so selling wines so manufactured, (i*) 39 V. c. 26, s. 15 ; 40 V. c. 18, s. 37. TRANSFERS OP LICENSES. 28. In case any peraon having lawfully obtained a license Transfew of under this Act before the expiration of his license dies, or i'*^*"***- sells, or by operation of law or otherwise assigns his said business, or removes from the house or place in respect of which the said license applies, his said license shall, ipso facto, l)ecome foifeited, and be absolutely null and void to all in- tents and purposes whatsoever, — unless such pei-son his assigns or legal representatives) within one month after the death, assignment, or removal of the original holder of such license, Of other period in the discretion of the License Commission- ers of the District in which the said license Las effect, obtsiins their written consent either for the continuance of the said (r) See note c to sub. 2 of sec. 2 of this Act. («) This section provides for the forfeiture of the license. The for- feiture arises in the event of the licensee at any time during the currency of the license either directly or indirectly carrying on the business of a retail dealer. The carrying on of the retail business, either by a partner, clerk, agent or other person comes under the «peration of this section. (0 This is for the encouragment of the Home Industnr. The pro- tection is a limited one. If the sale be in quantities less than one ^on or two bottles of not less than three half-pints each at one "me, it will be illegal in the absence of a license. 804 On transfer of Uvem license new report necessary. THE MUNICIPAL MANUAL. [s. 29. business or to ti'ansfer such license to any other person, and thereupon forthwith transfers the same to such other person, who, under such transfer, may exercise the rights giauted by such license, subject to all the duties and obligations of the original holder thereof, until the expiration thereof, in tlie house or place for which such license was issued and to which it applies, but in no other house or place, (u) 40 V. c. 18, s. 6. 2. In every such case of transfer of a tavern license, the person in whose favour any such transfer is to be made shall first produce to the License Commissionei-s a report of the Inspector similar to that mentioned in the ninth section of this Act. (v) 40 V. c. 18, s. 7. Inspector of Licenses may consent to removal of tavern- keeper to another house. Effect of Buch cou- aent. KEMOVAL OF LICENSEE. 29. Any Inspector of Licenses may, after resolution allow- ing the same, of the License Commissioners, endorse on any tavern or shop license ])ermission to the holder thereof, or his assigns or legal representatives, to remove from the house to which his saitl license applies to another house to be described in an endorsement to be made by the said Inspector on the said license, and situate within the same Municipality, and possessing all the accommodation required by law. (a) 2. Such permission, when the approval of the said In- spector is endoi'sed on the said license, shall authorize the holder of the said license to sell the same liquors in the house mentioned in the endorsement during the unexpired jwrtion (m) Upon the sale of a public house as a going concern, it is of the ossence of the contract that the license of the house be transferred, 2>ay v. Luhkc, L. R. 5Eq. 336; Cowlesv. Gale, L. Ji 7Ch. Ap. 12. See further, Clai/doii v. Green, L. R. 3 C. P. 511. A. being the keeper of an hotel without a license, and B. being cognizant of that fact, upon the transfer of the premises to B. £130 were deposited in the hands of a stakeholder to be handed over to B. if A. failed to pro- cure and transfer a license by the 31st October following. B. having failed to give the notice under the English Statute, and to attend tlie Magistrates on the licensing day, was held not entitled to recover the £150. Brj/ant v. Bmttle, 4 Biiig. N. 0. 254. [v) The transfer must of course be to a person of gooJ character and repute, as to which, see notes to sec. 9 (a) The license is for the sale of liqror in a particular place described. The removal of the transferee to another place without notice does not entitle the licensee to sell on the place to winch he has removed. Permission therefore must first be obtamed from the «8. 30, 31.] LICENSE DUTIES. 805 of the tenii for which the said license was f^ranted, in the same manner, and upon tlie same terms and conditions ; but no such j)ermiH8ion shall be granted unless and until the person apjilying therefor ha.s filed with the License Commis- Rioners a rejwrt of the Inspector containing the information required by law in case of application for a license, (h) and Bond to any bond or security which such holder of a license may have * given for any pxirpose relative to such license, shall apply to the house or jilaoe to which such removal is authorized, (c) but such permission shall not entitle him to sell at any other than this one place, {d) 37 Y. c. 32, s. 18 ; 40 V. c. 18, s. 8. -I WHERE LICENSE LAPSES. 30. In case for any cause the license becomes void, or in now iicemes ciise the term or interest of the holder of a license in the ™^^^ f^^ premises licensed ceases before the exi>iry of the license, or if premiies such licensee absconds or abandons the premises, or becomes any cause insolvent, the License Commissioners may grant a new license **>« licens* for the same premises, subject to the provisions of this Act, yoid, &o. iilion such terms as to the payment or refund by the new licensee of the duty for the iniexpired period to the person entitled thereto under the original license, as to the License Commissioners may seem just, (e) 40 V. c. 18, s. 9. DUTIES PAYABLE. 31. The following license duties shall hereafter be payable, Duties. and shall be in lieu of all others, (/) Provincial or Munici- pal—that is to say : License Commissioners to be signified by the endorsement by the Inspector on the License. (i) See 8. 9. (o) See s. 22. ((/) See note a to this section. (f) The power to grant a new license for the premises, arises, 1. Where the original license from any cause becomes voicL 2. AVhere the term or interest of the holder of the original license ceases before the expiry of the license. 3. 'When the licensee absconds or abandons the premises or becomes insolvent if) There was at one time an Imperial as well as a Provincial uuty, but the former no longer exists. Aiub-ew v. While, 18 U. C. m w ■*■', p f .1 !■ .4 - J^ 80G Coanoilmky Impoae a larger duty up to $200, but not more with- out conpent of electors. La THE MUNICIPAL MANUAL. [g. 30. 1. For each wholesale license, the sum of one himdml and fifty dollars : 2. For each tavern license in Cities, one hundred doilui-s ■ in Towns, eighty dollars ; in other Municipilities, sixty dollars ; 3. For each shop license in Cities, one hundred dollars • in Towns, eijjhty dollars ; in other Miiuicipulities, sixty dollars ; 4. For each license for a vessel navigating the wutt'ia of this Province, one hundred dollars, (y) 39 V. c. 2G, 88. 16 (1) & 26. 32. The Council of any Municipalit)- may by by-law to he passed before the first day of March in any year, re(|ulre a larger duty to be paid for tavern or shop licenses therein, hut not in excess of two hundred dollars in the whole, (h) unless the by-law has been approved by the electors in the nuimier provided by " T/te Municipal Ad," with respect to by-laws Q. B. 170 ; and now tlie duty, whether Provincial or Municiml, is in the first instance paid to the Provincial Government. See 'Ihf Queen v. The Board 0/ Pulice of 2\'laijam, 4 U. C. Q. B. 141. ((/) The Municipal Council cannot uiake the sum payable for a license vary according to locality, as in certain Villages, .?100, iind elsewhere, $75. See In re. Donelly and Clarke, 38 U. C. Q. B. 599, (/*) Before this Act there were questions as to the limit to the amount — whetiier the maximum intended only the amount payable to the Municipality, or the whole amount including as well the amount payable to the Government. See la re Bardaij and Darlimjton, 12 U. C. Q. B. 8(5 ; In re Harrhon and Owen Sound, IG U. C. Q. B. Kifi ; In re Richard-ion and the Polks Coinmisnionern 0/ Toronto, .38 U. 0. Q. B. 621 ; but now all doubt is removed by the nse of the words, " in the whole." If the By-law of the Municipality require a larger duty than $200 in the whole, it must he submitted to the Municipal elee- tors for their approval. See In re lirodie and BonrmanviUe, 38 t. 0. Q. B. 580. The Court after long delay refused to quash a By-law which ought to have been submitted to the electors, but \m\ not been. In re Sfieley and IVlndsor, 23 U. C. Q. B, 5«9. «ee also In re Bichardiou and Toronto, .35 U. C. Q. B. 630. The quashing fo a By- law under which a certificate has been granted and license isaueil, does 7wt nullify the license. The Queen v. Stafford, 22 U. C. C. P. 177. When the plaintiff leased a tavern to the defendant for three years at a rent of g;400 a year, payable quarterly, "the said lessor to allow the said lessee the amount he has to pay his license fees out of the first (quarter's rent in each year," and the license fee when the lease I M.33, 34.] LICENSE FUND. 807 assent of tho Rov. 8Ut. e. ■ft, which l)efoi'e their final passing require tho electors of the Municipality, (i). 2, Such l)y-law shall take effect from tho poaMing thereof, ' nnd continue in force for any future year until repealed, (j) 3. Any l»y-luw ho approved shall not be varied or re[>ealed niiless the varying or repealing by-law has been in like man- ner Hubniitted to and approved of by the electors of the Municipality, (k) 37 V. c. 32, s. 23 ; 39 V. c. 26, s. 10 (2) ; 40 V. c. 18, 8. 27. 33. In any Municipality where, by virtue of any by-law when dutie* in that behalf, passed under the provisions of any former I"^^,^*^.*** Act, a larger sum or duty in the whole than that mentioned tory figure ill section thirty-one was on tho tenth day of February, one |i^«ctell°° thousand eight hundred and seventy-six, payable for any shop or tavern license, such sum or duty shall be the lowest duty [tayable under this Act for any such license, until altered by bylaw of the Municipality to be passed for the purpose, (/) but in no case shall the duty be under the amount in tho said section specially prescribed, {in) 39 V. c. 20, s. 10 (3). LICENSE FUND, 34. All sums received from duties on tavern, shop and The duties, wholesale licenses, and received by the Inspector for tines and ^^nauiel to peualties, shall form the License Fund of the City, County, '<>"» "' was issued, and for some years previously, was ?85 ; but in the fol- lowing year it was raised to ^200, it was held that the lessee could claim no allowance beyond the first quarter's rent, the lessor being kuiid to allow the fee only, provided it did not exceed such rent. irw« V. Shannan, 41 U. C. Q. B. 249. (i) See note to sec. 286 et seq. of The Municipal Act. ^ (j) It is not necessary that the the By-law sliould be an annual oue. It continues in force from its jiassing till its repeal. (i) It was held that a Municipal Council of a Village incorporated Mtl separated from a Township in which, before and at the time of the incorporation, a By-law existed prohibiting the sale of intoxica- ting liquors in Shops and places other than houses of puVjlic enter- tainment within the Township, could not by a By-law not submitted to the electors of the Village for their approval, repeal the prohibitory By-law so far as it affected the Village. In re Cuunhujham v. Ahmnto, 21 U. C. C. P. 459. (0 See note h to sec. 32. (wi) See sec. 31. Fund. ■k f i t SI: \\ 808 TIIK MUNICIPAL MANl'AL. Application of tbo FuD(l. ChoqueH upon tbo License Fund Ac- oouut. Application of penaltioi where In- ■peotor is piosecutor. Where the whole penalty and [& 35. Union of Countios or Electoml DiHtrict losix^ctively for wliicli tilt) Honnl of LiccUHo Coumunbioucn* hiu l»et;ii fiiijMnutod 39 V. c. 2G, „. 19. " 2. Tlio LicenHo Fund hIuiII 1)0 iippliotl, under n-jjiiliitiouH of the Lioutonant-Glovornor in Council, for tlio imyinent of tho HJilary and ex[)onH<)Hof the Inspector, and for thocxiM-iiKt'H of the ofKco of the Board and of ofFicers, and othorwist- iu carrying the jtroviHions of the hiw into effect, and thercsidiio on the thirtieth day of J une in each year, and at Huch other times 08 may bo prescribed l)y tho regidationn of tlio Lieutenant-Governor in Council, Hliall bo paid over,— one third to the Treasurer of tho Province, to and for tlu' iiso of tho Province, and tho other two-thirds to the Treasurer of tho City, Town, Village, or Township Muiiicipiility in which tho licensed premises are re8i)ectively situatf! ; [n) but in cases where any Municipality by bydaw recpiires a hir^er duty in the case of tfivom or shop licenses to bejmid thiiii tho specific sum mentioned in the thirty-first sfsction for -iny license, tho whole of such excess shall be p)i'..l over to the Treasurer of such Munici[)ality. (o) 39 V. c. 20, s. 19. 3. Cheques upon tho License Fund Accoimt shall l»o di-awn by tho Ins[)ector, and countei*8igned by the < 'liaiiitwin, or any two of the License Commissioners, subject to the regulations of the Lieutenant-Governor in Council. 10 V. c, 18, 8. 28. ■ 35. Any penalty in money recovered under this Act, in cases in which an Insi)ector is tho prosecutor or compiiiin- ant, {j)) shall be paid by the convicting Justice, Justices or Police Magistrate to the ]>ector, and paid in by him to the credit of the "License Fund Acconnt ;" 2. In case tho whole amount of the penalty and costs is not relbvered, tho amount recovered shall be applied, Ki-st, to (m) There are some additional charges now imposed on the License Fund by 41 Vict. cap. 14, sec. 2. See further sec. C, sub-s. 1, 2, 3 and 4 of that Act. (o) See sec. 32 and notes thereto. {;)) The Act in several parts provides for penalties for its contra- vention. Others than the Inspector may be the prosecutor or cora- Elainant ; this section provides only for the case of the Inspector eing prosecutor or complainant. The License Fund is his imlem- nity. If he recover penalties, he is to pay them to the credit of the Fund. If he fail to obtain a conviction, he is to be indenniifial M,3r,, 37.] RXP08IN0 LICENSES. 809 thff |iayiiic a|)|>io|)n- conu mo not ated lUi li(!rt'iiiaft«!r iiioittionod. reoov^rwi. 3. In any cuho where tlio InHjM'ctor has prosdciitod and wutn eoiu olitaiiu'il a conviction, and has been unable to nicover tho '"'"""' "* Amniint of costH, the H.iniu Kliall bo made good out of tho uiid Liccnso Fund ar« not re- covoriNl. 4. In any caHO where the Inspector has ))ro8ecuted and imiomni.^ fiiletl to ol.'tain a conviction, he hhall hn indemnilied against wheroTo*'' iillioNtH out of t!'io License Fund, should the Justice, Jus- '^^jJ",'' t;ccs or I'olicc Magistrate before whom the complaint is conviction. made certify that such officer had reasonable and jtrobable causfi for jtrcfcrritig ituch pnwecution or complaint. 39 V. IS. C. '!>), H 36. All moneys r(;ceived for vessel licenses shall belong to Voiwiei fler Majesty, and bo paid over to the Treasurer of the Pro- """"***• vince. (7) 31) V. c. 20, s. 26. • I ■*) IlEOULATIONS AND PROHIBITIONS. 37. All licenses shall be constantly and conspicuously ex- jost'il ill the warehouses, shoj)s or in the ))ar-rooru of taverns, iuns, alehouses, b(.'erhouses or other jtlaces of jjidjlic enter- taimiiciit, and in the bar-saloon, or bar cabin of vessels, under a |Hiialty of five dollars for every day's wilful or negligent oiiiksion so to do, to be recovered with costs from the mer- cliiint, slio|)keeper or tavern, inn, alehouse or beerhouso- kii'iier or ke(!per of any other place of public entertainment, or nwHtor, captain or owner of the vessel so making de- f'tilt. ()•) 37 V. c. 32, s. 8. LIccnscii to bu k jpt ex* paiod. Penalty on non-e'- |)08urc. igainst costs out of the Fund. So also where he hua been unnlilo to rtcnver costs. (7) Where tlie license is in respect of some particular place in a Municipality, tliat Munioipality is interested in the license and en- titled to a i)ortion of the duty ; l>ut where a vessel which goes from Iilwe to place usually in different Municipalities is licensed, tho «liole amount of duty belongs to the Province. jo The duty imposeil is to have all licenses constantly and con- 'piciKiimly expose(l. Tho omission of that ''t8' gistered as such under and by virtue of " The Pharmacy Act" from keeping, having or selling liquors for strictly medicinal i/^' ' °' purposfts, and then only in packages of not more than twelve ounces at any one time, except under certificate from a regis- tered medical practicioner, (e) but it shall be the duty of such (f) An agreement, the object of which is to enable an unlicensed person to sell spirituous, fermented, or nL-vnufactured liquors without ilicenae, is illegal and cannot be enforced at law. See note t to sec. 91. As to the evidence sutBcient to convict under this section, see notes to sec. 80. See also Sch. D, No. 4, for form of conviction. K) In Reifma v. Taylor, .36 U. C. Q. B. 18.3, the Court of Queen's Beach held that to entitle a brewer or distiller to sell liquor nianu- TOreil by himself, it was unnecessary to obtain a license from the rrorincial Government ; that decision was reversed by the Court of ^PM, but afterwards restored by the Supreme Court in lici/ma v. ""'■». The Legislature of Ontario have, in consequence made pro- nsmn for the restoration of duty &c., to brewers and distillers. See «^ let. 0.14. I«) The right conferred on a chemist or druggist to sell spirituous ^lors \iithoiit a license is subject to the following qualifications : 1. That the sale be for strictly medicinal purposes ; i .^i ^'i • I 812 THE MUNICIPAL MANUAL. \V , ii |1^' [s. 43. chemist or druggist to record in a book, to be open to the in- spection of the License Commissioners or Inspector, every sale or other dispo.sal by him of liqnor, and such record shall show as to every such sale or disposal, the time when, the person to whom, the quantity sold^ and the certificate, if any, of what medical practitioner, (/) and in default of such sale or disposal being so placed on record, every such sale or disposial, shall, prima facie, be held to be in contravention of the provisions contained in the said thirty-ninth and fortieth sections of this Act. (ff) 37 V. c 32, s. 27; 40 V. c. 18, s. 12. ^h '"'"■'^toxi. ^^* ^^ ^^^ places where intoxicHing liquors are, or may be, eating sold by wholesale or retail, no sale or other disposal {y) of to'bedoMd *^^® ^^^^^ liquors shall take place therein, or on the premises thereof, or out of or from the same, (h) to any person or per- 2. That it be in a package of not. more than twcho ounces at one time, except under a certificate from a registoreil muilical practitioner. The duties consequent upon the sale are the following : 1. To keep a record of the sale, subject to inspection ; 2. The record to show the time when, the person to whom, the quantity sold, and the certificate, if any, of what medical prac- tioner. (/) A conviction of the defendant, who was a registered drug^^ist, for selling spirituous and intoxicating liquors by retail without hav- ing a license so to do, aa required by law, the said spirituous and intoxicating liquor having been sold for other than strictly medicinal purposes only, was held to be valid. Reglna v. Denham, 35 U. C. Q. B. 503. {//) See Schedule D, No. 11, for form of conviction. (7) " Sale or other disposal" would include a gift. See Or"rtnn v. Hiiuter, 1 L. T. N. S. 3()6 ; Pethmck v. Sargent, 6 L. T. N. 8. 48. This, however, does not prevent the licensee giving to "some mem- ber of his family or to a lodger in his house. " (/i) A person licensed to sell beer by retail " to be drunk or con- sumed on the premises, " supplied a pint of beer to a traveller who sat upon a bench placed a,nd ftutened to the wall of the house, return- ing the mug in which he was served, was held to have been [, opcily convicted of selling beer to be drunk on the jiremiseg. Vrox" v. Watts, 13 C. B. N. S. 239. A person licensed to sell beer iwt to be drunk on the premises whose servant handed beer in a mug through an open window to a person who, after paying for it drank it niime- diately, standing on the highway as close as possible to the wnidoy, was held to have been improperly convicted of selling beer mthe. }m'in!se>^. Deal v. Scholiehl, L. R. 3 Q. B. 8. The appellant being , licensed to sell by retail intoxicating liquor to be consumed 0// the premises, was charged with keeping open his premises for the sale o^ such liquors during prohibited hours. He had two shops, a i ) ,43.] CLOSING TAVERNS. 815- to be drunk or con- to a traveller who f the house, return- lave been i •nvt'ly yrem'M'S. (^''■o.<.< v. sell beer not to be • in a mug through ■ it drank it ninne- ible to the Avuiiluw, selling beer on /A'' he appellant being ; consumed oj tlw remises for the sale had two shops, i 50DS whomsoever, from or after the hour of seven of the from seven clock on Saturday night till six of the clock on Monday morn- s»turday ing thereafter, (i) and dunng any further time on the said njght till six davs, and any houra or other days during which, by any Mo^ay " statute in force in this Province, or by any by-law in force mom'ng- in the Municipality wherein such place or places may be bitjatcu, the same, or the bar-room or bar-rooms thereof, oflwht to be kept closed, (j) save and except in cases where grocer's and a draper's shops, which formed part of his house, and both shops could be entered from the house at the back as well as by the customer's entrance. The grocery business was carried on in » shop which had an entrance for customers on one street, and the dnir/ery business in a shop which had an entrance for customers on iro'.her street. During !;he day there were means of going, and c'lSiomers occasionally pjissed from one shop to the otlitr, but after ten 'dock shutters or partitions were put up and all means of com- muniiation, except through the house, prevented. It was held that tk defendant could not be convicted of having the house open for tlie sale of litjuor after ten o'clock at night. Bru/den v. Heiijhto, L. R.1Q. B. Div. 330. See also, Tasselly. Ovende.n, L. R. 2 Q. B. Div. 3S3. See sec. 82 as to evidence of guiit under this section. (i) The old prohibition was during the hours of divine service. Ste TheQunn v. Kna2)p, 2 E. & B. 447 ; Bei/ifa v. Whltcley, 3 H. & y. 143. An information for selling intoxicating liquors on Sunday is 50 far a charge of a criminal character that the defendant cannot be compelled to give evidence against himself. The Queen v. Boddy, 4) U, (J. Q. B. 291. See Schedule D, Nos. 5 and 6, for form of con- viction. (j) "Or by any By-law in for ct. in the Municipality, &c." The only Ixjcly, with some few exceptions, now authorized to pass resolu- tions for regulating taverns and shops tc be licensed, are the License Commissioners, and they act by resolution and not by By-law. See w. 4, sub. 4. This po.vor formerly was vested in Municipal Coun- cils, see In re BrhjUt and the City of Toronto, 12 U. C. C. P. 433, but was by sec. 1 of 39 Vict. cap. 26, Ont., transferred to the License Commissioners, except where express provision is otherwise made in tie Act, See In re Brodle and BowmanvlUe, 38 U. C. Q. B. 580; hn Arkell and St. Thomas, lb. 594, This section does not in ex- press language confer the power either on the License Commissioners ot on Municipal Councils. Not having been in express language cou- ierreil on Municipal Councils the inference would be that it rests »ith the License Commissioners under one general power to regu- ate. But whether a resolution passed by the License Commission- m for the purposes of the section would be "a By-law in force in jeMunicipahty," within the meaning of the section, is a question, 'tiras, under the old law, held that Municipal Councils may pass Bylaws against the sale of liquor to a person in a state of intoxca- tion, In re (Jreyduck and Otanabee, 12 U. C. Q. B. 458, or to idiots W'lmsane persons. In re Bosh and York ami Peel, 14 U. C. C. P. U,and it is now held that they may even since the appointment of 'I 1 1.4 ' ». - 'I Exception. $14 THE MUNICIPAL MAMUAL. [a. 44, a requisition for medical purposes, signed by a licensed medi- cal practitioner, or by a Justice of the Peace, is produced by tho vendee or his agent ; (k) nor shall any such Uquor, whether sold or not, be permitted or allowed to be drunk in any such places during the time prohibited by this Act for the sale of the same, except by the occupant or some member of his familv, or lodger in his house, (l) 37 V. c. 32, s -^8 • 40 V. c. 18, s. 13. ' 8ai« of 44. Where a license is issued, under this Act, to autliorize i'Xs "n'port *^^® ^'^^^ °^ Hquora upon any vessel navigating any river, prohibited, lake, or water in this Province, no sale or other disposal of liquor (m) shall take place thereon or therefrom, (n) to be consumed by any person other than a passenger on the said ves- sel, whilst such vessel is at any port, piei*, wharf, dock, moor- ing, or station ; nor shall any liquor, whether sold or not, be permitted or allowed to be consumed in or upon any ves- sel departing from and returning to the same port or wharf, dock, mooring, or station, within the time hereinafter in this section mentioned, by any person during the hours prohibi- ted by the preceding section for sale of the same except for medical purpose's, as provided in the preceding section. (0) License Commissioners, prohibit the sale of intoxicating liquors to a child, servant or apprentice, without the consent of the parent, master or legal guardian, /n rt Brodif- and Boivmam'ilk, 38 U. C. Q. B. 580. A By-law providing that the bar-room shall be closed, and unoccupied except, by members of the keeper's family or his employees, and shall have no light therein except the natural liglit of day, during the prohibited hours, is bad and in excess of tlie powers of the Police Commissioners. Re) 37 V. c. 32. s. 29 ; 40 V. c. 18, s. 14. 45. No person having a shop license to sell by retail, and Shop license no chemist or druggist, shall allow any liquors sold by him or authorize in his possession, and for the sale of which a license is re- i'l"*"" "o^d qmi-ed, to be consumed withm his shop, or withm the build- sumedintho ingof which such shop forms part, or which communicates °"*^' by any entrance with such shop, either by the purchaser there- of, or by any other person not usually resident within such building, [q) under the penalty, in money, imposed by the Penalty. liftv-lii-st section of this Act. {qq) 37 V. c. 32, s. 20 ; 40 V. c. 18, s. 10. 46. No person having a license to sell by wholesale, shall Liquor not allow any liquors sold by him or in his possession for sale, and gui^dTn for the sale or disposal of which such license is required, to premises of be conGunied within his warehouse or shop, or within any fn^cense^" ling which forms part of or is appurtenant to, or which g^jj'^"**" communicates by any entrance with any warehouse, shoj) or other premises wherein any article to be sold or disposed of indersuch. license is sold by retail, or wherein there are kept anjibroken packages of such articles, (r) 37 V. c. 32, s. 21. (p) The penalties are cumulative. 1. Forfeiture of license. 2. Penalty of $100 on the Captain or master in charge of the vessel and the owner or person navigating the same as well as the person actually selling or disposing of the liquor contrary to the section. 3. Penalties under sec. 52. See Sch. D, No. 12, for form of con- viction, I'i) See note h to sec. 43. (W) See Sch. D, No. 9, as to form of conviction. [A See note h to sec. 43. See also Sch. D, No. 10, for form of oi^ction. i W^'im' I' 816 THE MUNICIPAL MANTTAl [ss. 4749. "h'0- - rt m 5'}i Not lawftil to take money for certlflcatti, too. Penalty. Penalty for issuing any license contrary to tbia Act. Porfoiture of office by municipal officer if con- Ticted. PENALTIES. 47- It shall not be lawful for the License Commissionerii of any License District, or any of them, nor for any InsiHJc- tor, either directly or indirectly, to receive, take, or have (iiiy money whatsoever, for any certificate, license, report, matter or thing connected with or relating to any grant of imy license, other than the sum to be paid therefor as the duty under the provisions of this A.ct, or to receive, take or have any note, security or promise for the payment of any such money or any i)ai't thereof, from any person or persons what- soever ; and any person or jjersons guilty of, or concerned iu, or party to any act, matter or thing contrary to the ])rovi- sions of this section, or of sections ten and elevnu, shall for- feit and pay to and for the use of Her Majesty a penalty of not less than fifty dollars, nor moi*e than one hundred dollai-s, besides costs, for eveiy such offence, (s) 37 V. c. 32, s. 30. 48. Any member of any Board of License Commissioners or any Inspector, oflicer or other person who, coutrar}' to tlie provisions of this Act, knowing issues, or causes or procures to be issued, a tavern or shop license, or a certificate therefor, shall, upon conviction thei'eof, for each offence pay a line of not less than forty dollars, nor more than one hundred dollars, and in defiinlt of jiayment of such fine, the offender or offenders may be imprisoned in the County Gaol of the County ir which the conviction takes j^laces for a period not exceed- ing three calendar months, (t) 37 V. c. 32, s. 31. 49. If any officer of any Municipal Corporation is con- victed of any ofience under this Act, he shall, iii addition to any other penalty to which' he may be liable under this Act, thereby forfeit and vacate his office, and shall Ijc dis- qualified to hold any office in any Miinicipality in this Pro- vince for two years thereafter, (n) 37 V. c. 32, s. 32 ; 40 V. c. 18, s. 15. («) See note a to sec. 10. {f) The oflfence under this section involves. guilty knowledge. The words are, "Knowingly issues, &c." The issue through mistake or ignorance is not tlieref ore au oflfence under the section. Bejina v. Paton, 35 U. C. Q. B. 442. (it) The penalties imposed by this section, are not iu substitutioii for, but au addition to the ordinary penalties. The additional penalties imposed are, 1. Forfeiture of ofiice. iri.. ii 4' ";! ,50,51.] PENALTY FOR SELLING WITHOUT LICENSE. 817 not in substitution 50, If any member of any Municipal Council is convicted Forfeiture of of any offence under this Act, he shall, in addition to any mem^^ of other penalty to which he may be liable under this Act, ~"".flK ikereby forfeit and vacate his seat, and shall be ineiligible to k elected to or to sit or vote in any Municipal Council for two years thereafter ; (a) and if any such person, after the forfeiture aforesaid, sits or votes in any Municipal Council, Penalty. lie shall incur a penalty of forty dollars for every day he so atsor votes. 37 V. c. 32, s. 33; 40 V. c. 18, s. 15. 51, Any person (b) who sells or bartera spirituous, fer- penalty for mented or manufactured liquors of any kind, or intoxicrttin.fi, yyJ'li^^jYgoI** liquors of any kind, without the license thei'efor by law Vo- (juired, (c) or who otherwise violates any other provision of this Act, in respect of which violation no other punish- ment is prescribed, shall for the first offence, on conviction tliereof, forleit and ])ay a j)enalty of not less thar twenty dollars besides costs, and not more than fifty dollars besides costs ; ((/) and for the second offence, on conviction thereof, 8Dch person shall be imprisoned in the County Gaol of the 2. Disqualification to hold office in any Municipality for two years. The section is restricted in its operation to officers of a Municipal Corporation. (h) The preceding section is restricted to Officers of a Municipal Corporation. This applies to any Member of a Municipal Council. The adibtional penalties imposed by this section are, 1. Forfeiture of office. i Disqualification to be elected or to sit or vote in any Municipal Council for two years, I'l) Any person includes a married woman, lieyina v, Williams, fiU, C, Q. B. 462. A joint conviction of several persons for the same fece in a single penalty, is bad. Jiegina v. Sutton at al, 42 U. C. (!.B,220. (f| A license irregularly issued when there is no fraud in the ob- aining ui it, is a protection against jjenal consequences. Stevens v. ™*h, L. 11. 1 Ex. Div. 100. The charge in the conviction should * certain and so stated as to be pleadable in the event of a second |wecnti(in for the same oflence. lieijina v. IIalace of public entertainment, is convicted under this section, and his license {It) In Cattellv. Ireson, E. B. & E. 91, it was held that an informa- tion for using an engine for the purpose of taking game against Eng. Stat 1 & 2 Will. IV. cap. 32, sec. 2.3, is a criminal proceeding, and consefjuently that the person charged is an incompetent witness. So when the information under the English Statute 9 Geo. IV. cap. 61, cliarged the innkeeper with having " unlawfully and knowingly per- mitted and suflFeretl persons of notoriously bad character to assemble Slid meet together in his house and premises." Parker v. Green, 2 B. i S. 299. The game of dominos is not necessarily an unlawful game. V\(Qufe,i V. Afihton, 1 E. & B. 286 ; nor billiards, Oveiulen v. Jiaij- mild, 34 L T. N. S. 698 ; but playing at cards for money, even with the innkeeper's private friends, in his o^vn private room in the inn, 'r the playing of guests, with his knowledge, is unlawful. Patten v. ^riwr, 3 E. & E. 1. See further, Bosleij v. Davies, 33 I. T. N. S. 528; i/are v. Osborne, 34 L. T. N. S. 294 ; Cooper v. Osborne, 35 L. T. N. S, 347. So playing at ten pins for a pint of beer on each lame. Danford v. Taylor, 20 L. T. N. S. 483. Knowledge, or fMts from which knowledge may be inferred, on the part of the inn- Keper, is necessary. Bodey v. L'avie.i, L. R. 1 Q. B. Div. 84 : Bed- p( V. Hajpips, lb. 89. To perm t prostitutes to i» jemble for the !«rpo8e of prostitution, would ap pear to be disorderly conduct on TO part of the innkeeper. BaMeo v, Hannant, 3 B. & S. 13 ; l'iI«o)iv. .S'touari, lb. 913 ; see further, Marshall v. Fox, L. R. 6 y. B. 370. As to thieves : a municipal Council has povrer to prevent pinblijig, profane swearing, blasphemous or grossly insultmg lan- ?^e, or any indecency or disorderly conduct in a licensed inn. In ■' Bmlk and Boiomanville, 38 U. C. Q. B. 580. X 'i) The charge that the innkeeper allowed "drunkenness and ';'w disorderly conduct," is not too vague. Wrau v. Take,. 12 •^•8.492. ^ ■ ^:i 't I'M t I'V 820 I- 'I Si=^' P^ ProTiHlooH ■■ to harbour- ing con- ■tabloH on dnty. Penalty in cue any person com- promi«aa, oompouiidH, or settlusu cttae. THE JiUNIflPAL MANUAL. [sg. 54^ DJ, annulled, he shall not be elegible to obtain a licenso for tlie l)erioU of two years thereafter and shall also bo liable to tluj peuaities by the fifty-first section prescribed, (j) 37 V c 32,8. 36; 40 V. c. 18, s. 17. 64. Any person licensed to sell wine, beer or spirituous liquors, or any keeper of the house, shop, room, or other jilnco for the sale of liquoi-s, who knowing harboui-s or entortains any constable belonging to any police force, or surti^rs such person to abide or remain in hid shop, room or other i»liice during any jmrt of the time apjwinted ior his being on duty, unless for the purpose of qiielling any distiu-bance, or restoiiii" order, or otherwise in the execution of his duty, (k) shall, for any of the offt-nces aforesaid, be deprived of his licenso. (A 37 V. c. 32, s. 58. 55. Any pei-son who, having violated any of the provisiouH of this Act, compromises, compounds or settles, or oilers or attempts to compromise, comiK)und, or settle the offeiic*! with any person or jjersons, with the view of preventing any com- plaint being made in respect thereof, or if a complaint has been made with the view of getting rid of such complaint, or of stopping or having the same dismissed for want of prose- cution or otherwise, shall be guilty of an offence und(;r this Act, (vi) and on conviction thereof (n) shall be imprisonment {j) The penalties are cumulative — 1. The penalties in lec. 61. 2. The annulling or suspension of the license. 3. In case of annulling of license disqualification to obtain a license for two years. If there be a conviction under this section on more than one occa- sion the license may he revoked by the County Judge, and the per- son licensed disqualified from obtaining a license for two yoa^s thereafter. See seo. 62. See Schedule D, No, 13, for form of conviction. {k) Guilty knowledge is of the essence of this offence. It \b an offence knowinrjly to harbour or entertain any constable. See MuHm V. CoUim, L. il. 9 Q. B. 292. See Schedule D, No. 14, for form of conviction. ( I ) Loss of the license is the oidy punishment for the contraven- tion of this section. (m) A compromise contrary to the terms of this section is illegal, and therefore cannot form tlie subject of a reference to arbitration. Jn re Fraser and Eacott, 1 U. C. J. N. S. 324. («) A conviction to the effect that defendant did unlawfully k-' ss. .IG-W.] HEMISSION OP PRXALTIKS. sn to obtain a license for the coutraveu- atliiird lal)Our in the C^oinnion fJaol of tlio Comity in which the ofloiico WIV8 committed for tljo poriod of three caloudar wonth-s. ((*) 37 V. c. .32, s. 39. 56. Kvery iicrsou wlio is concerned iii, or is n party to, ri-naiiy for the compromise, compoHition or Hottlemont mentioned in the I.uJ',',J.j*^n* next preceding section, Hliall bo gnilty of an otienco under nny iuch this Act, (y>) and on conviction thereof shall Imj imprisoned ot^''™"''**' ill the Common (iiiol of the County in which theoil'ence was vnnimitted for the period of three calendai* nionthp. (y) 37 V, c. 32, 8. 40. 67. Any person who, on any ))rosocution under this Act, Pennityfor tampei'S with a witness, either botbie or after he is summoned wiiti}Vwl([- orappeni's as such witness on any trial or jiroceoding under "'"'■• this Act, or by the offer of money, or by throats, or in any cthor way, either directly or indirectly, induces or attempts in inilueo any such per.sou to absent himself, or to swear falsely, (/•) shall be liable to a penalty of fifty dollars ibr each otieiice. 37 V. c. 32, s. 42. Penalties not to he lieviltted. 58. No Police Map;istrate or Justice or Justices of the Penalties or Peace, License Commissioner or Inspector, or Municipal not'uj'bjr" Council or Municipal officer, shall have any power or au- r«uiiued. thority to remit, suspend or compromise any penalty or [mn- isliment inflicted under this Act. (s) 37 V. c. 32, s. 41 ; 40 V. c. 18, 8. 19. ittempt and offer to compoiiiKl and settle with one 11., a certain iiffimce, with a view of stopping or having the said charge disniissed k waiit of prosecution, is bad. Jicfjiiia v. Mnheij, 37 U. C. Q. B. 24S, See Schedule D, No. 15, for form of conviction. !fi) An act similar to this was licld to be within the power of the L"al legislature. Reijina v. Boardinan, .30 U. C. (J. 13. SoS ; but see note e to sec. 51. W The preceding section applies to the p.arty accused, this to all ^noare concerned or are parties to the conip oniise. (v) See .Sch. D, No. IG, for form of conviction. [r] The offence mentioned here, is a crimin.al offence at Common w. This section is therefore ultra vhrs, on the part of the Local Legislature. See lieyinn v. Lawrma-, 43 U. C. Q. B. Ifi4. I") In the past Municipal Councils and others have been too ready to remit penalties to electors or others who are likely to be useful at '|ie annual election. This section is de&igned to prevent the con- tinuance of such a flagrant abuse of the law. ^ ■ '•m 1 'H% f J ii: t 822 PenaltloR and coNtfl, how recoTor' able. THE MUNICIPAL MANUAL. Recovery r '' Penalties hi/ JJintress. [ss. 59, CO. 50. For tliG recovery of tlio iwniiltioH in money under tliU Act, and legal costH, upon and after conviction in ciis( s not a]>p»y-law in force in "«'niieocon- tk' suit! Miun'cipality, or that such licenso has boon obtained kiiny h'liud, or that tho person licensed has been convicted on more than one occasion of any violation of the provisions oftlif tit'ty-third section of this Act, or has been convicted on three several occasions of any violation of any of the provi- sions utthis Act, whether the olences in respect of which .such cfliivictioiiH were made wei'e the same or difltjrent in their cbinicter, so long as such convictions w(!re for offences com- mitted on different days, (o) shall siunmon the person to wiiora such lic«!iise issued to a[)pear, and shall proceed to hear inJdeteniune the matter of the said complaint in a summary iiiiiiiner, iu)d may upon such hearing, or in default of appear- iuce of the per.son summoned, determine and ailjudge that 8«cli license upon any of the causes aforesaid, ought to be re- voked, and thereupon shall order and adjudge that such license is and stands revoked and cancelled accordingly, and tlitieu|)on such license shall be and become inoperative and J ■ ''1 The (iiity is imperative. Moneys paid to the Inspector are by ™ paid to the License Fund, which is used in aid of tho carrying w of the Act. See sec. .34. A similar fund must be established by Muaidpal Councils out of moneys arising from liquor prosecutii as. '") The jurisdiction here conferred is stjvtutory and limited by the mgiiage of the statute to the particular cases for which provision 13 made. The infonnation must disclose one or other of the following cases : 1. That the license has been issued contrary to one or more of the pronsions of this Act or of a By-law in force in the Munici- pality ; - That the license has been obtained by fraud ; .1. r |fWP V'fl- \ ♦ ""^^ w 1\ ^ 824 ft $ :,' -!' H r I , #1 '"Kl Power of County Judge sa to InapectorM neglecting their duties. THE MUNICIPAL MANUAL. N g3 of none effect, (j)) and the pci-son to wliom such Hcense issued shall thereafter, during the full period of two years be disqualified from obtaining any further or other license under this Act. ('{ ss. 64, 65.] INFORMATIONS. 825 this section is final. ,lie power by this sec- is guilty of the matter complained of, and ought to he re- moved from his said office of Inspector, and shall order the same accordingly, and thereupon such pei-son shall no longer be Inspector, and shall thereafter, for the full period of two years, be disqualified from being or becoming an Inspector of Licenses, (u) 37 V. c. 32, s. 38. Procedure in such cases, 64. The complaint in the sixty-second and sixty-third sec- Procedure tions mentioned, may be by a short i)etition to the Judge en- ^^^°' **• ^2» titled " In the County Court of the County of ," (v) and "In the matter of the license granted to ' * {mviliig the dpfemlant)" {or, '• In the matter of , Inspector of Licenses for the Riding of the County of ,") praying for the revocation of the said license, (or the removal of the Inspector, as the case may be,) and upon hearing the evidence adduced, or upon default of appearance of the prosecutor or defendant, the Judge may dismiss the matter of the complaint, or make such order as he deems just, with or without costs to be paid by the prosecutor or defendant, and the order on adjudication of the said Judge .shall be final and conclusive, and shall not be the subject of ap[)eal or revision bv any Court whatever. 37 V. c. 32, s. 38; 40 V. c. 18, s.' 18 (2). • PROSECUTIONS. 65. All informations or complaints for the prosecution of information. any offence against any of the provisions of this Act, shall be J^'i|j"" ^ ** kid or made in writing, (within thirty days after the Com- mission of the oflTence, or after the cause of action arose, and not afterwards,) (a) before any Justice of the Peace for the |^*^^ (i() The Judge may either find the Inspector guilty or acquit him. If found guilty there is loss of office and personal incapacity to hold office for tlie full period of two years. If acquitted there is appar- ently no power to award costs in his favour. But it is presumed that the Inspector, in the event of the prosecution being malicious and without reasonable or probable cause, would have his remedy by action. (r) Tlie proceedings being entitled in the County Court it would seem that subpcenas and other process .nay issue from that Court to enforce, if necessary, the attendance of witnesses. (") Laying the information is the commencement of a prosecution wfore a Magistrate. The Magistrate, acting as a Judge, and on 104 i ■ 826 m^^ « 'i ,> ? ^ Form. Any person may be prosecutor, etc. License Commission- erg or In- spectors who are Justices of th« P«ace proliibited from tryini; certain com- plaints. THE MUNICIPAL MANUAL. [ss, 66-68, County 01' District in which the offence is alleged to have been committed, or in Cities and Towns where there is a Police Magistrate before such Police Magistrate, but may be made without any oath or affirmation to the truth thereof and the same may be accoi'ding to the form of Schedule C to this Act or to the like effect. 40 V. c 18, s. 21 (1). 66- Any person may be prosecutor or complainant in prose- cutions under this Act. (6) 37 V. c. 32, s. 47. 67. No License Commissioner or Inspector of Licenses who is a Justice of the Peace, shall try or adjudicate upon any complaint for an infraction of any of the provisions of this Act committed -within the limits of the License District for which he is a Commissioner or Inspector ; (c) but this section shall not be construed to apply to a Judge, or Junior Judge or Deputy Judg3 of a County. ((/) 40 V. c. 18, s. 38. Certain 68- AU prosecutions for the punishment of any ofience S>^"i^folre ^g^i^st any of the ju'ovisions of sections thirty-nine, forty, two or more forty-three, forty-four, foiiy-five, forty -seven, fifty-one and Police Magi- fifty-three of this Act, or any section for the contravention trate. of which a penalty or punishment is prescribed by section fifty-one, whether the prosecution is for the recovery of a penalty or for punishment uy imprisonment, may take j)lace before any two or more of Her Majesty's Justices of the Peace having jurisdiction in the County or District in which the offence is committed, or in Cities and Towns where there is a Police Magistrate, before the Police Magistrate of the behalf of the pablic in issuing the summons on an information laid before him, ovight not to delay proceedings to the prejudice uf the defendant. Reyina v Lennox, 34 U. C. Q. B. 28. When the statute provided for the commencement of the prosecution within twenty days, an information sworn on 30th December, laying the oflfence on 16th December, was held to be sufficient. lb. It is not necessary that the conviction should on the face of it, show that the prosecution was commenced within the time limiteiL Reijina v. Strachan, 20 U. C. C. P. 182. (/)) Any person, &c. This is apparently bro.ad enough to include a married woman. See Regina v. Williams, 42 U. C. Q. B. 4C2. (c) It is necessary that the adjudications of Justice.^ should not only be free f'-om bias, but if possible from all suspicion of bias. It is a cardinal principle in the administration of justice, subject to a few exceptions, that no man shall adjudicate in a cause or matter wlierein he is interested. See Paley on Convictions, 5 ed. p. 38, et neq. {(I) See sees 62 and 63. •: ■ .r. 1 I > s& 69, 70.] ENFORCING PENALTIES. 827 City or Town, (e) who, shall have authority to hear and de- termine kiuy case in which the offence is alleged to have been committed within the County (for judicial purposes) wherein such City or Town is situate, in a summaiy manner, according to the provisions and after the forms contained in and append- ed to the Act of Parliament of Canada, entitled " An Act 32.3 V ^ 31 mpecting the duties oj Justices of the Peace out of Sessions, (D>. in relation to Summary Convictions ami Orders" which Act, and the Acts already passed, or which may be hereafter piased, amending the same, shall be held to apply to all prosecutions and proceedings under this Jf Act, so far as con- sistent with this Act. , ,• ,i ' 2. The Justices or Police Magistrate shall in all cases re- Evidence to (luce to wilting the evidence of the witnesses examined before ^,i\w° '" them, or him, and shall read the same over to such witnesses, who shall sign the same. ( f) 40 V. c. 18, s. 20. 69. AH prosecutions under this Act, other than those men- All other tioned in section sixty-eight, whether for the recovery of a maTbe be-"^ penalty or otherwise, may be brought and heard before any f°""« "''^ or one or more of Her Majesty's Justices of the Peace in and ticesor for the Coimty where the forfeiture took place, or the penalty gJij^^ ^*" was incurred, or the offence was committed or wrong done, and in Cities and Towns in which there is a Police Magis- trate, before the Police Magistrate ; {g) and the procedure Mode of pro- shall be governed by Tlie Act respecting Sumnuvrij Convictions K^jv^'stat. c. kfon Justices of the Peace. 37 V. c. 32, s. 45 ; 40 V. c. 74. 18, s. 21 (1). 70. In all cases where the Board of License Commissioners Prosecutions in Cities passes a resolution in pui-suance of the powers con- uonroT*** "' ferred upon them by the fourth and fifth sections of this ^'j*^"^,g^"°' Act, (Ji) and in and by any such resolution, penalties are im- impoBing ' posed for the infraction thereof, such penalties may be i'«»"*'*''<'8. recove. ed and enforced by summary proceedings before the W It woultl seem that the Crown is not obliged to prosecute under this section hke a private individual lieforo two niagistriitcs, but may proceed by information in one or other of the Superior Courts of Common Law at Toronto See Regina v. Taylor, 3b" U. C. Q. B. 183. (/) It would be well for magistrates, when reducii..g the evidenco ot witnesses to writing, to use as nearly as possible the very language of the witnesses. {'j) See note e to sec. 68. (/') See note 3 to sec. 43. • sw I 828 THE MUNICIPAL MANUAL. [s. 71. Police Magistrate (if any), or before any Justice of ciie Peace having jurisdiction, in the manner and to the extent that by- laws of Municipal Councils may be enforced under the authority of " Th^ Mtmicipcd Act :" (t) and the convictions in such proceedings may be in the form set forth in section vrY'^ift?*" four hundred and seven of the said last mentioned Act. 37 174.8.407. y ^ 3<3 g 48. APPEALS. ■•:. t m'- Right of appeal in -ca!eal is given to the prosecutor or com})lainant within five days after the date of the said conviction, (7n) subject to the following provisions. 40 V. c. 18, s. 21 (4). Appellant to 3. The pei-soii convicted, in case he is in custody, sliall ^og-'" * either remain in custody until the hearing of sucli appeal nizance, before the said Judge, or (where the penalty of imprisonment with or without hard labour is adjudged) shall enter into a (i) See note e to sec. G8. (k) This applies to convictions for selling spirituous or fcnneiitetl liquors without a license. See Ifeyina v. Firmin, 33 U. C. Q. B. 523. {I) Whore there is jurisdiction to entertain the appeal, mere irregu- larity in the mode of procedure, is not a ground for prohibition, for example, the calling of a jury where the appeal should be heard with- out a jury. See Jn j-e Brown and Wallace, 6 U. C. P. R. 1. (m) The giving of this notice as directed, is a condition precedent to the hearing of the appeal. See The Queen v. JuntkeJi of Cheshire, 11 ^V. & E. 131). ' 1 S.72.] APPEALS. 829> ' '■> recognizance with two sufficient sureties, in the sum of two hundred doUara each, before the convicting Justices or Police Magistrate, conditioned peraonally to appear before tl)e said Judge, and to try such a[)peal and abide his judgment ^.here- upon, and to pay such costs as he may order, and in case the appeal is against a conviction whereby only a penalty or sum of money is adjudged to be paid, the appellant rjiay, (although or deposit the ordar directs imprisonment in default of payment) instead """vuy and of rem.'dning in custody as aforesaid, give such recognizance '^''^^ as aforesaid, or may deposit, with the said Justices or Police Magistrate convicting, the amount of the penalty and costs, and a further sum of twenty-live dollars to answer the lesjwndent's costs of appeal, (n) 40 V. c. 18, s. 21 (5). 4. Upon such recognizance being given or deposit made, Justices to the said Justices or Police Magistrate shall liberate such uepoBitions l)er8on if in custody, and shall forthwith deliver or transmit county' °^ by registered letter post-paid, the depositions and pajjcrs in Court. the ca&e, with the recognizance or deposit as the case may be, to the Clerk of the County Court of the County wherein bucli conviction was had. (o) 40 V. c. 18, s. 21 (6). 5. The practice and procedure upon such appeal, and all Rer. bist. the proceedings thereon, shall thenceforth be governed by apply. ° The Act respecting t/ie Procedure on Ajipeals to the Judge of (( County Court from Summary Convictions, so far Jia the same is not inconsistent with this Act. {])) 40 V. c. 18, s. 21(7). ^ ; - . ; In cctses other tJum those umler Section 51. 72. In all cases of prosecutions for any offence against any Appeal from- of the provisions of this Act, other than those for which any '^?,"^'';'i''"^ ii («) It is now enacted that when costs are directed to be paid on an appeal under this Act by either party to the other, no greater costs snail be taxable by or against either party as l)etween party and party, than the sum of $10, and the actual iuid necessary disburse- ments in procuring the attendance of witnesses and the fees to which the Clerk of the Peace shall be lawfully entitled. See sec. 8 of 41 Vic. cap. 14, O. (o) It is presumed that performance of the duties imposed uy this part of the section, could, if necessary, after proper demand and refusal, be enforced by writ of mandamus. (p) Where the appellant relies upon an objection on the evidence not raised before the convicting Justice or Justices, effect will not be giveu to it. See PurkM v. Huxtable, 1 E. & E. 780. tk-A^ •III «30 for those under 8, Si. Rev. Stat, c 74. THE MUNICIPAL MANUAL. [g. 73^ penalty or puniahment is prescribed by the said fifty-first section, an appeal shall lie from aiiy order or conviction in the same manner and to the same extent as is provided in and by Tlie Act respecting Summary Convictions hefore Justices of the Peace, (q) s. 24. 37 V. c. 32, a 46 , 40 V. 0. 18, PROCEDURE IN CASES WHERE PREVIOUS CONVICTION CHARGED. Procfledings 73. The proceedings upon any information for committing wherTa pre- ^^ offenco against any of the provisions of thLs Act, in case vious con- of a previous conviction or convictions being charged, Ir) charged. shall be aH icllows : 1. The Justices or Police Magistrate shall in the first instance inquire concerning such subsequent oflfence only, and if the accused be found guilty thereof, he shall then, and not before, be asked whether he was so previously convicted, as alleged in the information, and if he answei-s that he was so previously convicted, he may be sentenced accordingly ; (s) but if he denies that he was so previously convicted, or stands mute of malice, or does not answer directly to such question the Justices or Police Magistrate shall then inquire concern- ing such i)revious conviction or convictions. Number of 2. The number of such previous convictions shall be convictions, provable by the production of a certificate under the hand how proved, ^f ^he convicting Justices or Police Magistrate, or of the Clerk of the Peace, without proof of his signature or official character, or by other satisfactory evidence, (t) Previous 3. A conviction may in any case be had as for a first neiid not be otfence notwithstanding that there may have been a prior charged. (f/) This section extends to all convictions nnder the Act, except for selling spirituous or fermented liquors without a license. See note k to sec. 71. The advantage of appeals under this section is, tliat a jury^may be had for the trial of the appeals. See note / to sec. 71. {»'),*' Being charged," &c. See nete 4 at'tei- lou of any of leil a coiivic- soctiou tifty- gly, although •cut sections ; convicteil of said Hcctions, , sv.oh convic- on for a third e, anil may K V. c. 18 s. 16. EEDING — sale or other oiisuniption of )U, warrant, or t to state the quor siniplyr or, or the price disposed of, or be necessary to ed of, kept, or e the quantity allege the sale ty. {a) 40 V. je lieyinav. Ad- I. 142. „ iu tlie ha lit of lavfriug any 8,)eci- \h('. 'kino V. /'t !/«• ;he offence as scu- ddy. i»/cH7(iH««'r that the person ,rtiea to frerpient V. Ho'i'jcrd, i» hfc iliil sell wuie. 8.75.] FORM OF INFORMATIONS. 833 32^ V. 0. 31 76. The forms given in the Schedules to this Act, or any Fomu. forms to the like effect, (6) shall be sufficient in the cases thereby respectively provided for, and where no forms are prescribed by the Schedules new ones may be framed accord- ini; to those appended to The Act of Cjjinada entitled "iln?^ id respecting the duties of Justices of the Peace out of Ses- mn» in relation to Summary Convictions and Orders," or Ik Revised Statute respecting the Procedure on Appeals to (k Judge of the County Court from Summary Convictions, or auy Acts amending the same respectively — such foi ins being ^^s.^**** made short and concise in the mode indicated in the Schedules to this Act which shall serve as guides so far as the particu- lar civse will allow. 40 V. c. 18, s 36. beer, and other spirituous or fermented liquors, to wit, one glass of whiskey, contrary to law," for such a conviction does not shew whether the oflffince was for selling without a license or during pro- hibited hours. lb. It is not necessary in a conviction for selling hquor without license to mention any statute under which the convic- tion took place. Jieijina v. ftrc'chan, 20U. C. 0. P. 182. A conviction that one G. P. of, &c., innkeep«ir, after the hour of seven in the evening, &c., in and at his tavern, &c., being a place v/here intoxi- cating liquors ure allowed to be sold by retail, did unlawfully sell, &c. , one glass ol beer, &'j. , was held bad, as the use of the word innkeeper n. not enougli to shew the defendant the occupier, &c. Beglna '. Pmke, 23 U. C. C. P. 359. An information stated the defendant, 'a licensed hotel keeper in the Town of Peterborough, did, on Sun- lay, 2nd July, 1876, at the hotel occupied by him in the said Town, lispose of intoxicating liquor to a certain person who had not a «rtiticate therefor," &c., and the conAaction thereunder stated that the defendant was convicted " upqn the information and complaint i I R., the above named complainant, and another, before the Jiidersi^ed," &c., "for that the defendant," &c. (using the words in the mformation) : Held, that it sufficiently appeared that the hotel was a licensed hotel, at which liquor was allowed to be sold ; ihat asale " at " the hotel was equivalent to a sale "therein or on the premises thereof ; " and that it sufficiently appeared the defendant »i3 the proprietor in occupancy, or tenant or agent in occupancy. ^■'m V. Cavanayh, 27 U. C. €. P. 5,37. After a first conviction ^ l)een returned to the Clerk of the Peace and filed, the Justices, !i they think it defective, may make out and file a more formal con- ^ctiun, Wilmi v. Gaybiel et al., 5 U. 0. Q. B. 227. The Court rtfused to grant a mandamus to compel two Justices of the Peace to issae execution upon a conviiition for selling spirituous liquors without ^license, there being 8ot3 '. forni of conviction not fully describing tho offence, the con- viction nevertheless mu.it fully describe it. See X'u-on v. Xanneii, 1 Q. B. 747 ; see furthei, Reqina v. Jonen, 12 A. & E. 684 j Ikfjina V. Recorder of King's Lyi^n, 3 D. i L. 72.5. (c) The section as above is by 41 Vict. cap. 14, sec. 9, substituted for sec. 76 of the original Act. (d) It is the duty of a person summoned before Justices, if he have any objection to the form of the information, at once to state it, with a view, if necessary, to an amendment. See Crawford v. Bmttk, .t!) U. C. Q. B. 13, 29. Where a defendant appears and cross-exauiincs witnesses on a charge over which the Justice has jurisdictioa, whether there be an information or not for the charge, and whether j required to be in writing or not, he thereby waives the information. Stoness v. Lake, 40 U. C. Q. B. S20, 327. Where, instead of doing] 80, he insists upon the want of an information or defective infornia- ^ tion, and does nothing to waive it, he is, subject to the power of 1 amendment, entitled to the benefit of the objection. Ih. Thirej can be no reason why the information, like an indictment, may not! at any time before judgment be amended, and the section htrtj annotated in express language gives the power. See Rajim v.] Cavanacjh, 27 U. C. C. P. 537, 540. (c) The only answer which can be made to a proposed amendmen* is the prejudice to the defendant, but this is at most a mere claim t»| the indulgence of th( Court in the granting of an adjournnienM where the Justice is datisfied that the request is a reasonable on«* under the circumstances. (/) This section is printed as amended by 41 Vic. cap. 14 sec, 1(1 Ont ri 1 1 7.] AMENDING CONVICTIONS. 835 t, sec. 0, substitutcil to prove such offHtico, (g) and it can be undoi'Htootl from such convictiou, warrant, or process, or is otherwise made to a|)))ear that the aitpropriate [Kjnalty or punishment for Kuch otrence was intended to be adjudged, (h) 40 V. c. 18, s. 23 (1). 2. Upon any application to quash such conviction, or M»ybe ft arrant enforcing the same, or other procefis or jiroceeding *"»*"***^' whether in appetil or upon habeas corjms, or by way of cer- tiorari or otherwise, the Court or Judge to which such appeal is mtide or to which such application has been made u]M)n kheaa corints or by way of certiorari, or otherwise, shall dis- pseofsuch appeal or application upon the merits, notwith- stimding any such variance or defect as aforesaid, and in all cases where it appears that the merits liave been tried, and that the conviction, warrant, process, or proceeding is sufficient and valid under this section or otherwise, such con- viction, wairant, process, or ])rocoeding shall be affirmed, or shall not bo quashed (as the case may be), and such Court 01 Judge may, in any case, amend the same if necessary, (i) and any conviction, warrant, [process or proceeding so affirmed or affirmed and amended, shall be enforced in the same manner as convictions affirmed on appeal, and the costs thereof shall be recoverable as if originally awarded. 40 V. c. 18, s. m (;;) The old rule was to the eflfect that evidence would not be allowed to supply omissions in the statement of the charge, •• for the office of evidence is to prove not to supply a legal charge." See Rex T. Whatman, Doug. 345 ; Wilc^ v. Cooper, 3 A. & E. 524 ; Car- ;vn(«)' v. Mason, 12 A, & E, 629. This rule is reversed in the sec- tion here annotated. (/i) Where the Justice has a discretionary power either to fine or imprison, it will be difhuult to hold that the one form of punishment rather than one other is "t/w appropriate penalty or puni^liment," within the meaning of this section. Reyina v. Black, A? ' . C Q. B. ISO. The amendment by striking out the words. ' ^reby,"aud rabetitntuig the words, "or is otherwise made ,j t>pear," is ap- pwectly designed, if possible, to overcome some of the ditBculties pointed out in Regina v. Black. (i) The powers of amendment are wide and ought, if possible, to be ttercised, Rtijina v. Lake, 7 U. C. P. R. 2 1 5, but there are cases in which tie exercise of them is impossible. Thus, where there was a single joint conviction of two persons of having in their house of public Mtertainment unlawfully kept liquor for the purpose of sale, barter, «id traffic therein without the Ucense required, and adjudged for their offence to pay a fine of $40 and costs, an amendment was tetused. Reginav. Sutton et al, 42 U. C. Q. B. 220. Armour, J., indelivering the judgnaent of the Court, at j). 227, said : '*! think tie Police Magistrate, in making the conviction now before us, did I t 836 THE MUNICIPAL MANUAL. EVIDENCE, «fcC. [88. 78, 79. Licenit, how 78. lu any proHccution or proceeding under thi.s Act, in proTed. which proof in reociiilly pleaded or »ll('g*'(l tlmt the Hi^Miaturn to nny Huch original rogulation hits lieeii forged, (m) 37 V. c. 32, h. 41). 80. Any 1iouh<\ nliop, room, or other place in which are ruoMin proved to exiHt a bar, counter, beer punipH, kegs, jarH, decan- JJ,'Ji'"of*''* wrs, tumblers, glasses, or any other appliances or prepara- Hqunni !• tion» similar to those usiially found in taverns and shojw •"*"""• • where spirituous or fermented liquors are accustomed to be sol.l or tratlioked in, shall bo deemed to be a place in which jpirituouH, fermented or other manufactui-ed liquors are kept or liiul for the ptirposo of being sold, bartered or traded in, under the fortieth section of this Act, unless tiw contrary is proved by the defendant in any prosecution ; (n) and the occupant of nuch house, shop, room or other place shall be Pr««umption taken conclusively to bo the person •« ho has, or keeps thei-ein, ^^°*''"' such liqiioi-s for sale, barter or traffic therein, (o) 37 V. c. 32,8.60; 39 V. c. 2G, s. 22. |i/i) The section deals with two thinus, an original rcsulution and a copy. The former is sutticiently autncnticate(r by being signed by the Cliairman of the Board w/iich jtanKcil the xame — not the Chairman of theBoard/or consistent with guilt but inconsistent with inno- cence ; and this has in England been applied to charges against per- lona for having violated some of the provisions of the Liijuor License Acta. Thus where the e^'idence in support of an information against » beerhouse keeper for opening his shop on Sunday for the sale of beer was, that a little after midnight on Saturday the door of the liousc was closed and all appeared quiet ; that a little after two oa the Sunday morning, persons looking through the window saw a man drinking with the publican in the house, and that afterwards he let the man out. The defendant was held entitled to an acquittal, inas- much as it did not appear but that the man had been let into the house on the Saturday. Tmnant v. Gumherland, 1 E. & E. 401. But under this section the existence in a house of the usual appli- JDces of a bar-room, is to be deemed evidence that spiritous, fermen- teil, or other manufactured licpiors are kept or had for the purpose of ale so as to throw upon the accused the obhgation of provmg the contrary. (o) The presumption mentioned in the preceeding part of the seo- tioQ is a i«;buttable one. The charge is to be inferred "unless the I t ■■ S i?-! .**' ;*'. 838 BTidenee as to sale, etc., of liquor. THE MUNICIPAL MANUAL. [ss. 81, n Penons or lights in bar- rooms at pro- bibited times, when so proTed, to be prima /ctcie eTi- dence of il- legal sale of liquor. 81. In proving the sale or disposal, gratuitous or other- wise, or consumption of liquor for the purpose of any proceeding relative to any offence under this Act, it shall not be necessaiy to show that any money actually passed, or any liquor was actually consumed, if the Justices, Police Magis- trate, or Court hearing the case is or are satisfied that a tran- saction in the nature of a sale or other disposal actually took place, or that any consumption of liquor was about to take place ; (p) and proof of consumption or intended consumption of liquor on premises under license or in respect to which a license is required under this Act, by some jjerson other than the occupier of said premises, shall be evidence that such liquoi was sold to the person consuming or being about to consume or carrying away the same, as against the holder of the license or the occupant of the said premises, (a) 39 V. c. 26, s. 21. 82. In Cities, Towns and in incor|)orated Villages, in all cases where any peraon or persons other than members of the family or household of the keej^er of a licensed tavern or saloon, is or are found frequenting or present, or gas or other light is seen buraing in the bar-room of such tavern or saloon, where liquor is trafficked in, at any time during which the sale or other disposal of liquors is prohibited by any provision of this Act, (r) any such fact, when proved, shall bei deemed and taken as prima facie evidence that a sale or other dis- posal of liquors by the keeper of such tavern or other place contrary is proved by the defendant." But the presumption in this part of the section, is made conclusive. The occupant is to ha taken conclimoely to bo the person who has or keeps therein such liquors for sale, &c. (p) There may be a sale although no money passed from the buyer to the purchaser, although m the case of the sale of spirituous or fer- mented liquors in small quantities, this is usually the case. If the Justice is satisfied upon the evidence that a transaction in the nature of a sale actually took place, he may convict. So if satisfied that there was any disposal or that the consumption of liquor was about to take place. {q) Proof of the consumption or intended consumption of liquor is made evidence, but not conclusive evidence that that the liquor was sold to the person consuming or being about to consume it. (r) A By-law providing that a bar-room should l>e closed and unoccupied except by members of the keeper's family or his em- ployees, and should have no light therein except the natural light of day, during the time prohibited by the By-law for the sale of hquor, was held to be illegal Reglna v. Belmont, 35 U. C. Q. B. 298. 83, 84.] EVIDENCR. 839 has taken place contrary to the px'ovisions of the forty-third section of this Act ; (a) and such keeper may thereupon be convicted of an offence against said section, and shall, upon conviction, be subject to the punishment prescribed in and by the fifty-second section of this Act (t) 37 V. c. 32, s. 51. 83. The occupant (a) of any house, shop, room or other u»wnty of place in which any sale, bai*ter or traffic of spiiituous, fer- °'*"i*"' mented or manufactured liquors, or any matter, act or thing in contravention of any of the provisions of this Act, has taken place, shall be personally liable to the penalty and punishments prescribed in the fifty-fii-st and fifty-second sec- tions of this Act, as the case may be, notwithstanding siich gale, barter or traffic be made by some other person, who cannot be proved to have so acted under or by the directions of such occupant, (b) and proof of the fact of such sale, barter or traffic, or other act, matter or thing, by any person in the employ of such occupant, or who is suffiered to be or remain in or upon the premises of such occupant, or to act in any way for such occupant, shall be conclusive evidence that such sale, barter or traffic, or other act, matter or thing, took place with the authority and by the direction of such occupant, (c) 37 V. c. 32, 8. 52 ; 40 V. c. 18, s. 25. 84. In any prosecution under this Act for the sale or in prowca- other disposal of liquor without the license required by law, tJons for sale it shall not be necessary that any witness should depose license cer- directly to the precise description of the liquor sold or bar- Jj^po^ [s) See notes n and o to sec. 80 of this Act. (t) See sec. 43 and notes thereto. (a) When the husband, the occupant of the house in which the tale took place, was in gaol, it was held that his wife might be con- victed of selUng liquor without a license. Regina v. Williams, 42 U. C. Q. B. 462. [h) The occupant of a shop is criminally liable for any unlawful act done therein in his absence, by clerk or assistant, as for example, the sale of liquor without a license by a female attendant. Regina V. King, 20 U. C. C. P. 246 ; see further, Htigill v. Merrifield, 12 U. C. C. P. 269. (e) It may be that the sale &c., took place in spite of and contrary to the occupants command, and yet proof of the fact of the sale by wy person in his employ or acting for him is, under this section, nuide co7ichisive evidence that the sale was by his authority. See Stale V. Wentworth, 65 Maine 234 ; Brantigam v. White, 73 111. 561 ; Kwdy V. Howe, 72 111. 133 ; Feantz v. Meailotos, lb. 640 ; see farther, note n to sec, 80 of this Act. i' i> -4 |- ■ I i '■ i r; isl!« ! i ',1 It I,, I 840 THE MUNICIPAL MANUAL. [8& 85, 86. anffldent to put defeD' dant on hia defence, and oonviot him in default of xebuttaL Proof of Iwing Uoenaed to rest on tbe defendant. Eridence of lioenae. tered or ^he precise consideration therefor, or to the fact of the sale or other disposal having taken place with his par- ticipation or to his own jiersonal and certain knowledge, but the Justices or Police Magistrate trying th'^ case, so soon as it appear to them or him that the circumstances in eiidence sufficiently establish the infraction of law complained of, shall put the defendant on his defence, and in default of his rebuttal of such evidence, shall convict him accordmgly. id) 27-8 V. c. 18, s. 39 (1). 85. In any prosecution under this Act, whenever it appears that the defendant has done any act or been guilty of any omission in respect of which, were he v not duly licensed, he woidd be liable to some penalty under this Act, it shall be incumbent upon the defendant to p)*ove that he is duly licensed, and that he did the said act lawfully, (e) 2. The production of a license which on its face puqwi-ts to be duly issued, and which, were it duly issued, would \vi a lawful authority to the defendant for such act or omission, shall be prima facie evidence that the defendant is so entitled, and in all cases the signature to and upon any instrument purporting to be a valid license shall lirima facie be taken to be genuine. (/) 37 V. c. 32, s. 53. ]yitiusses. witnegBOB 86. In any prosecution under this Act the Justice, «ad not*ap- Justices, or Police Magistrate trying the case may summon le'bro'^' ht'^ ^^^ person represented to him or them as a material witness up by war- in relation thereto ; {g) and if such person refuses or neglects '"*' to attend purauant to such summons, the Justice, Justices, or Police Magistrate may issue his or their warrant for the arrest of such person ; (A) and he shall thereupon be brought {d) See note n to sec. 80. (e) See note k to sec. 78. (/) A certificate under the hand and seal of the License Inspector of the District is, under sec. 78, made sufficient prima facie proof of the existence of a license in any prosecution or proceeding. {g) The informer is a competent witness, Regina v. Strachan, 20 U. C. C. P. 182, but not the defendant, where the charge is preferred under cec. 43 of this Act. Begina v Roddi/, 41 U. C. Q. B. 291. (h) There is no power to issue the warrant in the first instance. The proposed witness must first be summoned. If, having been :,E- SS. 87, 88.J CIVIL REMEDIES AGAINST TAVERN KEEPERS. 841 before the Justice, Justices, or Police Magistrate, and if he refuses to be sworn or to affirm, or to answer any question tonching the case, he may be committed to the Common Gaol of the County, there to remain until he consents to be sworn -or to affirm, and to answer, (i) 27-8 V. c. 18, s. 39(2). 87- Any pei-son summoned as a jmrty to, or as a witness Production in any proceeding under this A.ct, may, by the summons, be eiv!m*y be i-equu-ed to produce, at the time and place appointed for his o' ^'' i^j"i*es any property, the person whofurnishedbim with Form of ftotion Bgainit them. f- I' if.' li- fe him in an improjjer position when intoxicated, it was held that the death did not arise from "accident caused by the intoxication," within the meaning of sec. 40 of 27 & 28 Vict. cap. 18, from whence this section is taken. Bobier v. Clay, 27 U. C. Q. B. 438. Hagarty, J., in delivering judgment, said, at p. 443 : " If the deceased, having Ereviously been drinlcing to excess, took in this tavern a tumbler of randy and drank it off at a draught, and thereby produced an imme- diate apoplectic seizure or asphyxia and fell btvck insensible, and died at once or in a few hours, could we hold that to be death from accident caused by intoxication ? We think not. " The learned Judge, in another part of the same judgment, at p. 442, said : ''Had our statute declared that if any person shall die from excessive drinking, the person furnishing the liquor so drank shall be respon- sible in this action, the case would be wholly different. See fu-ther Krach V. Heilman, 53 Ind. 517 ; Collier v. Larli/, 54 IniL 55y. (7rt) No additional time is apparently given to a legal representative to bring the action, owing to the death of the intestate, more than three months after the happening of the accident. See Turner v. Brantford, 13 U. C. 0. P. 109. The statute begins to run from the occur- rence of the accident, not from the death. Miller v. North Fml- ericksburuh, 25 U. C. Q. B. 31. (w) Proof of pecuniary damage does not appear to be necessary for the maintenance of the action. It appears to be in the discretion of the Court or Jury to assess the damages as they see tit, looking to all the circumstances of the case, provided the amount assessed be not less than $100 or more than $1,000. This question, as appeara from the head note, was raised but not decided in Bobier v. Clay, 27 U. C. Q. B. 438. It was afterwards decided as obove laid down in Hender- son v. Campbell, an unreported case in the Court of Queen's Bench, and in Oleason v. Williams, 27 U. C. C P. 93, by the Court of Common Fleas, under a different but similar section of the Act. was held that the the intoxication," I. 18, from whence B. 438. Hagarty, e deceased, having ftvern a tumbler of )roduccd an imme- isensible, and tlied ;o be death from The leanietl 442, said: ''Had ie from excessive k shall be respou- rent. See fu-ther 54 Intl 559. be necessary for X the discretion of efit,lookinctoall it assessed be not I, as appears from rv.Ckiy,2'V.C. d down in Hemkr- »f Queen's Bench, Court of Common Act. S,90.] CIVIL REMEDIES AOAINST TAVERN KEEPEKS. 843 toxica ted. Hnubfind, wife, &e. may notiiy HellerRof liquor not to furnish it to any person addicted to drinking. Liability or IMifMons so notified. the liquor wliich occasioned his intoxication, — if such fur- for aamuit Dishing was in violation of this Act, or otherwise in violation by'a'perwi of law, — shall be jointly and severally liabilo to the same thereby in- action by the party injured as the person intoxicated may be liable to ; (o) and such party injured, or his legal represen- tatives, may bring either a joint and several action against the jieraon intoxicated and the peraon or pei-sons who fur- nished such liquor, or a separate action against either or any of them, {p ) 27-8 V. c. 18, s. 41. 90. The husband, wife, parent, brother, sister, guardian or employer of any peraon who has the habit of drinking intoxi- cating liquor to exces.s — or the pare^ ♦■ brother or sister, of the husband or wife of such pei-son— v.- che guardian of any child or children of such jierson — may give notice in writing, signed by him or her, (o) to any person licensed to sell, or who sells or is reputed to sell, intoxicating liquor of any kind, not to deliver intoxicating liquor to the pei-son having such habit ; (p) and if the person so notified, at any time within twelve months after such notice, either himself, or by his clerk, servant or agent, otherwise than in terms of a special requisition for medicinal purposes, signed by a licensed medical practitioner, delivers, or in or from any building, (o) In McCurdij v. Sioiff., 17 U. C. C P. 126, decided under sec. 41 of 27 & 28 Vic. cap. 18, from which this section is taken — Wilson, J., at p. 138, said : " The Legislature must have considered, as many persons do, that the person who intoxicates, or sufifers or encourages another to become intoxicated when it is the interest of such a per- ' ion to make as large a sale of liquor as the other will or can be made to buy, is far more to blame than the unfortunate inebriate, and ihonld therefore be answerable for the acts and conduct of the person who has been deprived of his senses and rendered a really dangerous being. " In that case it was held, that the act may be construed as giving the civil remedy, at any rate, against the inu- keei)er, notwitnstanding a felony may have been conmiitted, which has not been prosecuted for although it does not, like an Imperial Act to which reference was made, contain any express provision to thatefifect lb. (;>) There is no reduction as to the amount of damages, such as contained in the previous section. See note n to that section. (o) When there was no evidence to shew that the wife had in fact signed the notice served, but merely that she signed a notice, a copy of which was served, it was held under sec. 42 of 27 & 28 Vict, cap. 18, from which this section is taken, that there could be no recovery. Okaton v. WHliama, 27 U. C. C. P. 93. (p) There must not only be proof of the notice, but proof of the ^t that the deceased, before and at the time of the giving of the ■844 THE MUNICIPAL MANUAL. [8. 91. IP m m booth or place occupied by him, and whereii or wherefrom any such liquor is sold, suffera to be delivered, any such liquor to the person having such habit, the jjerson giving the notice may, in an action Ji3 for personal wrong (if brought within six months thereafter, but not otherwise) (q) recover from the jierson notified such sura, not less than twenty nor more than five hundred dollars, as may be assessed by the Married Court or jury as damages ; (r) and any married woniiin may brlnKtlcttoif ^'^"^g ^"^^ action in her own name, without authorization by for damages, her husband ; and all damages recovered by her shall in that case go to her separate use ; and in case of the death of either party, the action and right of action given by this section shall survive to or against his legal represenratives. (a) 27-8 V. c. 18, s. 42. for H*^OT** 91. Any payment or compensation for liquor fumishetl in •oideonttary contravention of this Act, or otherwise in violation of law, may'notbe vvhether made in money or securities for money, or in labour jrecovered. or property of any kind, shall be held to have been received without any consideration, and against law, equity, and good conscience — and the amount of value thereof may be re- covered from the receiver by the party who iaau« the same ; (t) and all sales, transfei'S, conveyances, liens and _ ^ - notice, was a ijerson " *vho was in the habit of drinking intoxicating liquor to excess." This is the foundation of the case. {q) See note m to sec. 88. {r) No proof of pecuniary damage, is necessary to the maintenance of the action. See note ?j to sec. 88. (s) The action is not only for the benefit of the married woman, but of a parent, brother, sister, guardian, or employer. (t) The ordinary rule is, that where a contract which a party seeks to enforce is forbidden, either by the statute or common jaw, no Court will lend its assistance to give eflFect to it, but this section goes further and entitles the person who paid for liquor sold contrary to law, notwithstanding payment, to recover from the receiver the amount paid, as havmg been received "withut any consideration and against law, equity, and good conscience." It has been held that an agreement entered into for the purpose of enabling a person to sell beer and spirits without a license cannot be enforced. lUtclik v. Smith, 6 C. B. 462. When the vendor of spirituous hquors who sells them knowing that they are to be sold in violation of law, and who at the same time enters into an arrangement for aiding the pur- chaser so to sell them, cannot recover the price of the liquors from the purchaser. Foster v. Thurston, 1 1 Gush . (Mass. ) 322; see also White V. Buss, 3 Cush. (Mass.) 448 ; Spalding v. Preston, 21 Vt. 9. But it would appear to be no defence that the vendor knew the goods were 8. 92.] OFFICERS TO ENFORCE THE LAW. 845 king intoxicating the maintenance ,rried woman, but securities of every kind, in whole or part, made, granted or SeciiritiM, given, for or on account of liquor so furnished in contra ven- ^n' to b?' tion of i\m Act, or otherwise in violation of law, shall be 'ow. wholly null and void, save only as regards subsequent purchaser or assignees for value, without notice ; and no action of any kind shall be maintained, either in whole or in part, for or on account of any liquor so furnished in contra- vention of this Act, or otherwise in violation of law. [u) 27-8 V. c. 18, s. 43. OFFICERS TO ENFORCE THE LAW, THEIR DUTIES AND POWERS. 92. The Lieutenant-Governor may appoint one or more Lieutenant- Provincial officers whose duty it shall be to enforce the pro- ^y^^Soint '.•isions of this Act, and especially for the prevention of traffic offleers to in liquor by unlicensed houses, (a) 37 V. c. 32, s. 54. Act'*'** bought tor an illegal purpose, provided it was not made a part of the contract tliitt they were to be used for that purpose, and provided the vendor has done nothing to aid the unlawful design beyu id the sale. Trnri/y Telmaye, 4 Kern. (N.Y.) 162 ; see furth jr^ a ri;.!.^ v. Slijinan, 8 Barb. (N. Y. ) 439 ; Smith v. Godfrey, 28 J'ost. (r . H. / 379. It has been held that a brewer who supplies beer to a public louse on the credit of a person not licensed, can recover from such person the price of the beer. Brooker v. Wood, 5 B & Al. 1052, overruling Meux v. Humphries, 1 M. &: M. 132 ; S. CSC Sl P. 79 ; see however Latujton, v. Hmjhes, 1 M. & S. 593. («) It is by sec. 53, sub. 2 of Revised Statutes, Ont., cap. 47, de» clared that the Di\nsion Courts of the Province shall not have jurisdiction in any actions for spirituous or malt liquors drunk in a tavern or ale-house. (o) It is a conspiracy for two or more persons, whether Govern- ment officers or detectives, to act in concert in unlawful measures to enforce a Liquor License Act, for example, by artifice inducing a man to sell liquor contrary to law. Commonwealth ex rel. ,Shea ct al. V.Leeds, 8 U. C. C. L. J. N. S.216. Paxsoii, J., of Philadelphia, in (lehvering judgment, said: "For the relators it was urged they were engaged in a lawful object, to wit, the enforcenieiit of the Sunday Liquor Law. If this was in truth their object, it was certainly a lawful one and worthy of all commendation. As- suming such to have been their purpose, did tliey resort to any unlawful means to accomplish it ? If they did, and if they acted in concert in the pursuance of a common design, there was a coEspiracy. It %oa^ never intended that a mou nhontd violate the law in order to vindicate the law. I am of opinion that these re- relators, in their anxiety to procure evidence against Mr. Barthou- lott, went a step too far. He was not engaged ui any violation of law when they entered his place. They urged and persuaded him to furnish the beer. In fact they resorted to artifice and deception for that purpose. If any crime was committed, they were present- '4 'n i 846 THE MUNICIPAL MANUAL. [s8. 93, 94. I ' \ Appoint- ment of offlcers by Lieenfe ComminloD- en. 93. The License Commissioners, with the sanction of the Lieutenant-Governor in Council, may appoint one or more ofiicere to enforce the provisions of this Act, and es))ecially for the prevention of traffic in liquor by imlicensed houses and shall fix the sftcurity to be given Ly such oflicei-s for the efficient disch,.rge of the duties of their office, (b) and everv such officer or officei-s shall, within the License District ft which he is appointed, possess and discharge ^11 the Tiowe):i i allies of Provincial officer? appointed under the next (c) 39V.C. 26, s. 23. at •?ei» ng sectj 'U. Duties of offlcers and County At- torneys on receiving in- formation of infringement of this Act. »i;c' to ' 1>4. Every officer so appointed vxnder this Act, (d) every po- iU'i, or constable, or Inspector of Licenses, shall be deemed ■•^^hin the provisions of this Act; and when any in- formation is given to any such officer, policeman, constable or Inspector that there is cause to suspect that some person is violating any of the provisions of this Act, it shall be his duty to make diligent enquiry into the truth of such infor- mation, and enter comjilaint of such violation before th in Iiispectcr or officer appointed under this >4 by the Lieutenant-Governor. (/) 37 V. c. 32, s. 55. '^5. Any officer, policeman or constable, or Inspector of Right of Licenses lay, for the purpose of preventing or detecting ^,J2nt«t the violation of any f vhe provisions of this Act which it is his duty to enforce, (g) at any time enter into any and every niL of any ian, tavern, or other house or place of public entertainment, shop, warehouse or other place wherein re- fresliinents or liquors are sold, or reputed to be sold, whether under license or not, and may make searches in every j»art thereof, and of the premises connected therewith, as he may think necessc .y for tht- purpose aforesaid. (/*) 40 V. c. S, 8.26. admit oOwr. 2. Every person being therein, or having charge tl' eof, aityfor who refuses or fails to admit such officei', policeman v s: ^. n ".inaingto stable, or Inspector demanding to enter in pursuanc. ji tl 3 section in the execution of his duty, or who obst.-uct or attempts to obstruct the entry of such officer, p' 'oeman, nonstable, or Inspector, or any such searches as i, .■, said, charge it is the duty of the officer "to make diligent enquiry into truth of such information." See Sch. D, No. 19, for form of convic- tion. (/) The duty of the Crown Attorney to act is only in cases com- mitted to him "by an Inspector or officer appointed under this Act by the Lieutenant-Governor. " It is not his duty to act when the officer who commits the case to him is only an officer appointed by the License Commissioners, nor where the person committing the case to him is simply a Policeman, Constable or Amateur Detective. {(l) The right of search is granted not only to Policeman, Consta- Ues and Inspectors of Licenses, but •' to any officer" which would apparently include as well officers appointed by the License Commis- sioners under sec. 93, as officers appointed by the Lieutenant-Gov- ernor under sec. 92. (h) The time to enter is " at any time," whether on Sunday or any other day, and at any hour of any night or any day. The place upon which the entry may be made is, "into any and every part of any inn or tavern or other house or place of public entertainment, shop, warehouse, or otJier place wherem refreshmenSs or liquors are sold or reputed to be sold, whether under license or not." Ihe right is, "to make searches in every part thereof, and of the premises connected therewith, as he may think necessary for the purpose aforesaid. " All this may t done without any warrant or other authority than the holding of the office indicated, but there is no power to enter by force. See notes j and ifc to sec. 96. Regina v. Tott, 4 L. T. N. S. m. PI i ■ ^HjHkvj^ ' t' HH l^HI^ ^?%™tW WPP'- i^' '■ '■:, J r- !'» 3 ■) 1 1 t- ,J h i'- 848 Search war- rant may.b* granted. Unlawful keeping of liquor to be evidence of illegal deal- ings' therein. Duty of con- stables and others to prosecute offenders. Penalty for neglect. THE MUNICIPAL MANUAL. [ss. 9C, 97. shall be liable to the penalties and {)uni.suinent8 preHcnbed by section fil'ty-one of this Act. (i) 40 V. c. 18, s. 26." 96. Any Justice of the Peace or Police Magistrate', if satis- fied by information on the oath of any such officer, jiolicetnan constable or Insj^ector, that there. is reiisonablo giouiul for belief that any spirituous or fermented licjuoV is buing kciit for sale or disposal contrary to the provisions of thin Act in any unlicensed house or i)lace within the jurisflictiou of the Justice or Magistrate, may, in his discretion, grant a wiuTaut under his hand, by virtue whereof it shall i)e lawful for the person named in such warrant at any time or times within ten days from the date thereof to enter, and, if need be, hy force, the place named in the warrant, and every part there- of, or of the premises connected therewith, and examine the same and seaich for liquor therein ; (j ) and for this i)urjias<' may, with such assisttince as he deems expedient, break ojKin any door, lock, or fastening of such premises, or any itart thereof, or of any .closet, cupboard, box or other article likely CO contain any such liquor ; (Ic) and in the event of any liquor being so found unlawfully kept on the said premises, the oc- cupant thereof shall, until the contrary is proved, be deemed to have kept such liipior for the purpose of sale contrary to the provisions of the fortieth section of this Act. (l) 40 V. c. 18, s. 26. 97. It shall be the duty of eveiy officer, policeman, con- stable, or Ins))ector of Licenses in each Municii)ality, to see that the several provisions of this Act are duly observed, and to proceed by information and otherwise prosecute for the punishment of nny offence against the provisions of this Act; and in case of wilful neglect or d«tault in so doing in any case, such officer, policeman, constable or Insi)ector shall (t) See sec. 51 and notes thereto, conviction. See sch. "D. No. 18, for form of (j) The special warrant here authonzed is for entry, " at any time or times within ten days from the date thereof." This would ex- clude the day of the date. A person having this special entry may, if needed, enter by force. This is a power not conferred under the preceding section. i {k) The nature of the force authorized is here indicated, as the breaking open any door, lock, or fastening, or any closet, cupboard,- box or other article likely to contain liquor. (I) See note n to sec. SO. ' 8S. 98-100.] JUDICIAL AND TERRITORIAL DISTRICTS 849 fistrato, if sntis- icer, i)ulicetnim, ses, or any prt fo. 18, for form of incur a pcnulty of ten clollui-s for each and every such neglect and default, (m) 37 V. c. 32, s. 57. UNORGANIZED DISTRICTS. 98. Subject to the pi-ovisions as hereinafter contained, (n) This Act to the incct'd in <5 provisions of this Act shall apply to all portions terrJtoi;«i of Judicial, Territorial and other unorganized Districts of ■"|Jii^1'*5l». tills Province ; and in any prosocntion or proceeding there- trJcu. under the Stipendiary Magisti'ate in any such District shall )X)8- sesH and exercise all the powers and jurisdictions of the Police Magistrate, or oihev convicting Justice or Justices of the Peac^, under this Act j and the Lock-up of such District shall be deemed to be a Gaol for the purpose of imprisonment under this Act ; (o) and any money penalty imposed and recovered shall, where the Jjispector is not the prosecutor, or tk offence was not committed within any Municipality, be paid to tliL! Treasurer of Ontario ; and the provisions of this Act, applicable to Township Municipalities, shall apply to all Municipalities organized under The Act reapectiiKj the estab- hhiimt of Municipal fiisti tut ions in tite Bistricta of Alyom't, f^g^' ** °* iluskoka, Parry 6'ound, Nipiashig and Thunder Bay. 37 V, c. 32, 8. 59 ; 39 V. c. 2G, s. 25 last dame. 99. The Lieutenant-Governor in Council may declare any License dis- portion of a Judicial or Territorial District which is not judHaior within the jurisdiction of a municipal County, a License Dis- Ter;itori*i trict, for the purposes of this Act, and the Lieutenant-Gover- nor may ajtpoint therefor a Board of License Commissionei-s and one or more Inspectors. (j>») 40 V. c. 18, ss. 1 «k 31(1). 100. In any License District so formed an ajipeal shall lie Appeal from from any decision of the Stipendiary Magistrate in any prose- Ma^ui'tratM. ciition or proceeding under this Act, to the Judge of such (;ii) The penalty only arises in case of " wilful neglect or default." Thej^nalty is ?10 " for each anil every auch neglect." See Sch. D. No. 19, for form of conviction. (n) See sees. 99, to 104. (o) Committing Magistrates have nothing whatever to do with the condition of look ups. * * • The Taws of health, humanity mil decency ulike demand that such buildings as those mentioned should be fit for the purjjose for which they are designed. See per Harriaon, C. J., in Crawford v. liealtie, 39 U. C. Q. B. 13, 31. [p) See sees. 3, 4, 5 and 6 of this Act. 107 \U m m m JB50 THE MUNICIPAL MANUAL. [ss. 101-104. District, or to any County Judg« to whom an api)eal Iio8 in otljcr luatteiti in Huch District (7) 40 V. c. IH, h. 34 (2). 101. In Biich portions of Judicial or Territorial DiHtrictH as are not within the jiuiHdiction of any municiiwil County, and have not been included in any License Distiict, under the provisions of section ninety-nir"*, the Lieutenant-Ciovernor may api)oint one or more jjorsons as CommiHsionerH aiyl In- spectoi-s respectively for the granting of such number of tavern and shop licenses to such persons, for such places and periods, and upon such conditions as may be preHcrilmd by Order in Council, such licenses to take effect from the tirat day of June in each year, (r) 2, For any such tavern or shop license, the duty payable shall 1)6 the sum of sixty dollars. («) 39 V. c. 26, s. 25. 102. The licenses to be issued for the sale of spirituous, fermantcd or other manufactured liquors, in any place not within a License District, may be issued on such coiulitionH and under such regulations as the Lieutenant-Governor in Council from time to time directs, subject to the provinioiw of this Act ; and any bond which the Lieutenant-Governor in Council may direct to be taken from any pereori obtaining a license under this Act for any such place, conditioned for the observance of the law and of all regulations to be made under this section, shall be valid, and may be enforced ac- cording to its tenor. (<) 37 V. c. 32, s. 60. Powers of 103. Any Municipal Corporation within any Judicial or wrporat'oni. Territorial District shall have the like authority in respect of taverns and shops therein, and the licenses therefor, as the like Corporations in municipal Counties possess under the provisions of this Act (it) 39 V. c. 26, a 25. Appoint- nwntorCom* maMtonen, &e.,inDU- «rM«BOt within tlM JurtMllotlon of miintetn«l «oniM)lla or a lioeoM dii- trieb Dntiei pajabls. iMueof lieeniMfor plae«H not within lioenie dii- trict. 27.8 V. c 78, and R«T. 8Ut. 0. 182, not affected by this Act. MUNICIPALITIES UNDER THE TEMPERANCE ACTS. 104. Nothing in the foregoing provisions of this Act shall be construed to affect or impair any of the provisions of '« The Temperance Act 0/ 1864" of the late Province of iq) See sees. 71, 72 and 73 of this Act (r) See sec. 7 et seq. of this Act. («) See sec. 31 and notes thereta (t) See sec. 22. (u) See note j to sec. 43. 105, 106.] MUNICIPALITIES UNDER TEMPERANCE A0T8. 851 Cinada, or " Tfie Temperance Aeto/ Ontario ;" and no tavern or Hhop lioenfle ihall l)e issued or take eflfnct within any County, City, Town, incorporated Village, or Townhhip in Ontario within which any by-law for prohibiting the sale of liquor under the aaid Acta is in force, (a) 39 Y. c. 2G, a. 27 (1). 105. The Lieutenant-Governor in Council may, notwith- Com« standing that any such by-law effects the whole of any County i'°,"JJJJi^* noniiuate a Board of Commissioners of the number, and for may ba »|h the period mentioned in the thinl section of vhis Act, and tli!iS'JS?l!Lki also an ^n8|)ector ; and the said Board and InHi)ector shall A"^ ^ have, discharge and exercise all such powers and duties re8|)ectivcly for preventing the sale, traffic or (UsiK>8al of liquor contrary to the sjiid Acts or this Act as they respec- tively liave or should perform under' this Act (b) 39 V. c. 26, 8. 27 (2). 106. The Board of Commissioner and tlie Inspector so ^utieg of in apijointed under this Act shall exercise and discharge all their respective powers and duties for the enforceinent of the ^j.^ \ c. 18* provisions of ** The Temperance Act o/* 1864" and " T/te Re». s'ut. Temperance Act of Ontario," as well as of this Act, so far as "' the same apply, within the limits of any County, City, incor- (a) Richards, C. J. , in delivering judgment in Be MoUashtd awl ?nMf Edward, 30 U. C. Q. B. 74, 80, intimated, although not necessary for the decision of the case, that most of the provisions of the Temperance Act of 1864, referring to the granting of licenses and ponishing parties for violating the laws made on those subjects, were lupersedea, if not repealed, by the provisions of the Statute of Oui, -io, 32 Vict. cap. 32 ; but this was not the opinion at the time lenerally entertained upon the point, and is not the opinion of the ugislature as indicated in this section. Sections 1, 2, 3, 4^ 5, 6, 7, U and 10 of The Temperance Act of 1864 were on the 10th of May last repealed by the Dominion Legislature, 41 Vict. cap. 16, "a»to every Municipality within the limits of the late Province of Canada in which no By-law was passed and approved or adopted, ud passed under the authority and for the enforcement of the said Act. ' The better opinion appears to be that laws as to prohibition appertain to t) ; Dominion Legislature, and laws regulating the sale »ppertain to tL. Local Legislature. See lieyina v. Juttticei^ of Kings, 2 Pugs. N. B. 5;iJ, and per Strong, J-, in Regina v. Taylor, 36 U. C. % B. 183, 224. ('') It is to be presumed that each of the Dominion and Local ^islatures has power to devize the machinery necessary for tibe worcement of an Act which it has the power to pass, and if this be Wi it would be well that no legislative body should concern itself >boot measures which exclusively belong to another legislative body. ^ The Queen v. PrUtie, 42 U. 0. Q. B. 612. 1 .'i I ■ 852 ',«.• ,» ■«•£ V' ' < J If 1^ 1(" h-i it •?i4f ■ Wholeiale Uoenses. 27-8 V. 0, Ber. Stet. 182. Prosecutions where Tem- penmoe Acts In force. Kxpeuses in xpei auchoase. THE MUNICIPAL MANUAL. [s8. 107-109. porated Village or Township in which any By-law under the said Acts is in force, (c) 39 V. c. 26, s. 27 (3). 107. A wholesale license to be obtained undt. and subject to the provisions of this Act, shall be nece&sary, in order to authorize or make lawful any sale of liquor iii the quantities jg. allowed under the provisions of '* The Temperance Act of 1864" and " Tfie Temperance Act of Ontario." (d) 40 V. c 18, s. 30 (2). See also liev. Stat. c. 182, s. 13 (4). 108. The sale of liquor w^ithout license in any Municipality where **77te Temperance Act o/*l864" and 'T/te Temperance Act of Ontario " are in force shall nevertheless be %. contra- vention of sections thirty-nine and forty of this Act, and the several provisions of this Act shall have full force and effect in every such Municipality except in so far as such provisions relate to granting licenses for the sale of liquor by retail, (e) 40 V. c. 18,8. 30(1). 109. (/) All expenses incurred in carrying the provisions oft/ie last Jive preceding sections into effect shall he borne and paid in tlie proportion of one-third by the Province out of tlie Consolidated Revenue Fund, and two-thirds by the Mmdd- pality within which any such by-law is in force, in cases where t/iere is no License Fund under this Act ; and the proportmi of such expenses jmyable by the Municip(dity shall become dne and payable in one month after the same has been audited by the Provincial Treasurer, and after the Board of License Commissioners has requested payment of the same by notice in writing to the Clerk of the Municipality. 39 V. c. 26, s. 27 (4); 40 V. c. 18, s. 35. (c) See note h to sec. 105. {d) This would appear to be free from objection. The Legislature of Ontario has power to regulate the sale of spirituous and fermented liquors. See note a to sec. 104. The Temperance Act of 18(i4 allowed sales under certain circumstances m certain quantities specified. The Local Jjcgislature may well step in and say we shall not permit any such sales in this Province, unless the person selling is licensed so «c do. The quantities allowed to be sold by the Tem- perance Act of 1864 are such as to make necessary the obtaining of a wholesale license. See sec. 2, sub. 4, of this Act. (e) This is objecionoible. The Local Legislature has no power to make the sale of liquor contrary to the Temperance Act of 18t)4, an oflFence against sec. 39 and 40 of this Act, so as to subject the per- sons selling to the penalties of the Ontario Act, in lieu of the penal- ties imposed by the Temperance Act of 1864. Jieijina v. Pratie, 4- U. €. Q. B. 612, 623, 624. (/) Repealed by sec. 5 of 41 Vic. c. 14, 0. {Section 22.) FoBM OF Bond by Applicant for a Tavern License. Know all men by these presents, that we, T. U., of , V, W., of and X. Y., of , are held and firmly bound unto Her Majesty Queen Victoria, Her Heirs and Successors, in the penal sum of four hundred dollars of j^o(h1 and lawful money of Canada — that is to say, the said T. U., in the sum of two hundred Mars, the said V. W., in the sum of one hundred dollars, and the said X. Y., in the sum of one hundred dollars of like good and law- ful money, for payment of which well and truly to be made, we bind ourselves and each of us, our heirs, executors and administrators, firmly by these presents. Whereas the above bounden T. U. is about to obtain a license to keep a iivern or house of entertainment in the of ; the condition of this obligation is sucli, that if the said T. U. pays all fines and penalties which he may he condemned to pay for any offence against any statute or other provision having the force of law, now or hereafter to be in force, relative to any tavern or house of public entertainment, and does, ijerfiirms and observes all the recjuire- meuts thereof, and conforms to all rules and regxilations that are or may be established by competent authority in such behalf ; then this obligation shall be null and void, otherwise to remain in full force, virtue and effect. ]n witness thereof, we have signed these presents with our liands, nd sealed them with our seals, this day of , A. D. one and sealed them with our seals, this thousand eight hundred and Signed, sealed and delivered m the presence of us. T. U. [L. S.] V.W. IL. S.] X. Y. [L. S.] 39 V. c. 2G, Schedule A. SCHEDULE "B." {Section 23.) Form of Bond bv Applicant for a Shop License. Know all men by these presents, that we, T. U., of V. W. of , and X. Y., of , are held and firmly bound unto Her Majesty Queen Victoria, Her Heirs and Successors, in the penal sum of four hvmdred dollars of good and lawful money of Canada — that is to say, the said T. U. in the sum of two hundred dollars, the «aid V. W., in the sum of one hundred dollars, and the said X. Y. in the sum of one hundred dollars of like good and lawful money, 7 A I SCHS. "A." **B."] FORM OF BONDS BY APPLICANTS. SCHEDULE "A." 853 854 THE MUNICIPAL MANUAL. [SCH. "C."" for payment of which well and truly to be made, we bind ourselves and each of ua, our heirs, executors and admistrators, firmly by these presents. Whereas the above bounden T. U. is about to obtain a license to keep a shop wherein liquor may be sold by retail in the of ; the condition of this obli^tion is such, that if the said T. U. pays all fines and penalties which he may be condemned to pay for any offence against any statute or other provision having the force of law, now or hereafter to be in force, relative to any shop whereia liquor may be sold by retail, and does, performs and observes all the requirements thereof, and conforms to all rules and regulations that are or may be established by competent authority in such behalf ; then this obligation shall be null and void, otherwise to remain in full force, virtue and effect. In witness whereof, we have signed these presents with our hands, and sealed them with our seals, this thousand eight hundred and Signed, sealed and delivered ) in the presence of us ) uayof , A. D. one T. U. [L.S.] V.W.[L.S.] X. Y. [L.S.] 39 V. 0. 26, Scheil B. SCHEDULE "C." {Section 65 and 75.) General Form of Inkgrmatiox. Ontario, ) The Information of A. B. of the Township of County of York, > York, in the County of York, JJcense Insijector, To Wit : J laid before me C. D. , Police Magistrate, in and for the City of Toronto, [or one of Her Majesty's Justices of ihe Peace, in and for the County of York], the (lay of in the year of our Lord, one thousand eight hundred and The said informant says, he is informed and beneves that X. Y. on the day of in the year of our Lord, one thousand eight hundred and , at the Township of York, in the County of York, unlawfully did sell liquor without the license there- for by law required [or as the (ase may he. — See Forvis i» Schedule D.] A.B. Laid and signed before me the day and year, and at the place first above mentioned. CD. P.M. or J. P. i 8cH. "D."] FORMS FOR DESCRIBING OFFENCES. SCHEDULE " D." « {Section 75.) Forms for Describinu Offences. 1. Negleeting to keep Ikenae exposed, (Section 37. ) "That X. Y. having a licenae by wholesale {or a shop, or a tavern, tr a vessel license] on at unlawfully and wilfully or negligently) omitted to expose the said license in his warehouse or shop, or in the bar-room v-^f his tavern, or in the bar-saloou, or itfH»bm of his vessel," as the case viay be.\ 2. Nefikcting to ea^ibit notice o/licftue. (Stction 38.) "That X. Y. being the keeper of a tavern [or inn or house or place of public eutertaiimient] in respect of which a tavern license has duly issued and is in force on at unlawfully did not exhibit over the door of such tavom [or inn, &a,] in large letters the wordd, ' Licensed to sell wine, beer, and other spirituous or fermented liquors,' as required by ' T/ie lujuor License Act.* " 3. Sak without licenne. (Section 39.) "That X. y., on the day of in the year of our Lord one thousand eight hundred and at in the I'outity of unlawfully did sell liquor without the license therefor by law required." 4. Keeping liquor without license. (Section 40. ) "That X. Y. on at unlawfully did keep liquor for the purpose of sale, barter and trafHc therein, without the liceuse therefor by law required. " 5. Sale of liquor on licensed premises during prohibited hours. (Sections 43 and 52.) "That X. Y. on at in his premiseH [or on; or out of, or from, his premises] being a place where liquor may be •old, unlawfully did sell [or dispose of] liquor during the time pro- hibited by " The Liquor License Act " {or by by-law of the Municipal Council of or of the Licensed Commissioners for the District of or as the case may be,) for the sale of the :»nie, without any requisition tor medical puqioses as require! by «id Act being produced by the vendee or his agent. " 8. Allowing liquor to ^te drunk on licensed premises during jtrohihited hour' ■d.%'A'-^ •. Bk'-'{'{ B'i EWi r • [ Jl ■ ^BB ^^ w m:^^^^^ Wk^ f S ii' •r.' ". ' : n^i; . ' ■ WJ M ■* •. , w K'^- It, 5-4 a ' THE MUNICIPAL MANUAL. [ScH. "D." of the same by a perarn other than the occupant, or some member of his family, or a lodger in bis house. " 7. Sale qfless than three half -pints under shop licmne. (Section 2 (3).) unlaw* "That X. Y. having a shop license on at fully did sell liquor in less quantity than three half-plats." 8. Sale under wholesale license in less tfian wholesale quantities (Sections 2 (4), and 41.) " That X. Y. having a license to sell by wholesale on at unlawfully did sell liquor in less quantity than five gallons [or, than one dozen bottles of three half-pints eacli, or than two dozen bottles of three-fourths of a pint each]. " 9. Allowing liquor to he coiunimed in shop. (Section 45.) "That X. Y. having a shop license on at unlawfully did allow liquor sold by him {or in his possession), and for the sale of which i license is required, to be consumeil within his shop [or within the building of which his shop forms part, or within a building which communicates by an entrance with his shop], l)y a purchaser of such liquor [or, by a person not usually resident within the building of which such shop forms a part.]." 10. Allowing liquor to he consumed on premixes timkr trholenale license. (Section 46.) "That X. Y. having a license by wholesale, on. at unlawfully did allow liquor sold by him [or in his possession for sale], and for the sale of which such license is required, to be con- sumed within his warehouse [or shop, or within a building which forms part of {or is appurtenant to or which communicates by an entrance with a warehouse or shop, or premises) wherein an article to be sold (or disposed of) under such license, is sold by retail {or wherein there is kept a broken package of an article for sale under such license)]." 11. Illegal sale hy druggists. (Section 42.) " That X. Y. being a chemist [or druggist] on at did unlawfully sell Hquor for other than strictly medicinal puqwaeg [or sell liquo ' in packages of more than twelve ounces at one time without a certificate from any registered medical practitioner, or sell liquor without recording the same], as required by " The Liquor License Act." 12. Illegal sale under vessel license. (Section 44.) "That X. Y. being authorized to sell liquor on a vessel called the ' Spartan,' on at unlawfully did sell [or dispose of] liquor to be consumed by a person other than a pjvssenger on such vessel wliile in port [or unlawfully did allow liquor to be consumed SCH. ".D."] FORMS FOR DESCRIBING OFFENCES. 857 n under wholmile, m such vessel during the time prohibited by '• The Liquor License Act " for the sale of the same without any requisition for medical purposes, as required by said]." 13. Keejiing a disoi ilerl<; hou«e. (Section 53.) • "That X. Y. being the keeper of a tavern [or ale-house, or beer- lionse, or house of public entertainment], situate in the City [or Town, or Village, or Township], of in the County of on in his said tavern [or house] unlawtuUy did sanction [or allow] gambling, [or riotous, or disorderly conduct] in his said tavern [or house]." 14. Harbouring constables on duty, (Section 54. ) " That X. Y. being licensed to sell liquor at on unlawfully and knowingly did harbour [or entertain or suffer to abide and remani on his premises] 0. P. , a constable belonging to a police force, (luring a part of tlie time appointed for his being on duty, and not for the puri)Ose of quelling a disturbance or restoring order, or executing his luty." 15. Compromising or compounding a prosecution. (Section 55.) That X. Y. having violated a p'ovision of "The Liipior License A(t," on at unlawfully did compromise [or com- jwuiul, or settle, or offer, or attempt to compromise, compound or settle], the offence with A. B. , with the view of preventing any com- plaint being made in respect thereof [or with the view of getting rid i>f or of stopping, or of having the complaint made in respect thereof dismissed, iis the case may 6e.]" 16. Being concerned in compromising a prosecution. (Section 56.) "That X. Y. on at unlaM fully was cin- oemed in [or a party to] a compromise [or a composition, or a settle- ment] of an offence committed by O. P., against a provision of " Tlie L'uiuor License Act." 17. Tampering with a tcitness. (Section 57.) That X. Y. on a certain prosecution imder " The IJipior A((" on at unlawfully did tamper with » witness in such prosecution before [or after] he was summci appeared] as such witness on a trial [or proceeding] under t Act, [or unlawfully did induce, or attempt to induce O. P., • in such prosecution, to absent himself, or to swear falsely], i^. Refusing to admit policeman. (Section 95.) ise ' P.. [or said uess "ThatX. Y. ontho at being in (or iMving charge of) the premises of O. P. , being a place where liquor i - sola k re|mted to be sold], unlawfully did refuse [or fail] to admit [or struct] E. F., an officer demanding to enter in the execution of his duty [or did obstruct or attempt to 108 1 1, %M ,i " 858 THE MUNICIPAL MANUAL. [SctI. «« E." olMtruct K. F., an officer making searohes iu said premises, and in the premises connected with such place]." Id. Officer re/imnij to prosecute. (Sections 94 and 97.) "That X. Y. being a police officer [or constable, or Inspector of Licenses] in and for the Township of York, in the County (>!. York knowing that 0. P. ha«l on at committed an offence against a pr(»vi8ion of ' The Liquor Liceiue Act,' unlawfully and wilfully did and still does neglect to prosecute the said 0. Y. fcr his said offence." SCHEDULE «E." {Section 75.) Form of Information for Second, Third, or Fourth Offence. Ontario, i The Information of A. B., of &o.. License County of York, > Inspector, laid before me 0. D., Police Magia- To ^Vit : ) trate in and for the City of Toronto r owe of Her Majeuty's Justices of the Peace in and for the County tf York], the _ day of ia the year of our Lord cue thousand eight hundred and The said informant sn,ys he is informed and believes that X. Y. on at [describe liist o£'ence'\. And further that the said X. Y. was previously, to wit : on the loth day of December, A. D. 1876, at the City of Toronto, before C. D., Police Magistrate in and for the City of Toronto [or at the Township of York, in the County of York, before E. F. and G. H., two of Her Majesty's Justices of the Peace for the County of York], duly 'jonvicted of having on the 30th day of November, 187(5, at the Village of Yorkville, in the County of York, unlawfully sold liquor without the licfeuse therefor required by law [or as the caw maij be]. And further, that the said X. Y. was previously, to wit : on the 28th day of November, A.D. 1870, at the Township of Vaughan, in the County of York, before, &c., (cm in preceding paroffraph,) again duly convicted of liaving, on the 10th day of November, A. D. 1876, at tlie Township of Etobicoke, in the County of York, having a shop license, unlawfully allowed liquor to be consumed within a building which communicatea by an entrance with his shop, b<' a person not usu'vlly resident within the building of which such shop forms apart [or as the case may be. ] And further, that the said X. Y. was previously, to wit : on the 30th day of October, A.D. 1876, at the Village of Newmarket, in the County of York, before, &c., (see above) again duly convicted of hav- ing, on the 25th day of September, A.D. 1876, at the Village of Yorkville, in the County of York (being in charge of the premises of O. P., a place where liquor was reputecfto l)e sold), unlawfully failed to ailmit E. F., an officer demaniling to enter in the execution of hisf duty. SCHl "F." "G."] SUMMONS TO WITNESS. 85» RTH OpfENCE. s that X. Y. on And the infrirmant nayn the offence hereinbefore firstly charge January, in the year of i»ur Lord one thousand To Wit : \ eight hundred and seventy-seven, at the City of fofonto, in the saia County of York, X. Y. m cottvicted before me. MO THE MUNICIPAL BIANUAL. [SCH. "H." ^fl^l li \'t' ■ '^^1 ', ' * m&;i tt. lUi mmk C. D., Police Magistrate in and for the City of Toronto (or before us, E. F. and (K H., two of Her Majesty's Justices of the Peace, iu and for the said County), for that he the said X. Y., on the second day of January, in the year of our Lord one thousand eight huiulretl and seventy-seven, at the Township of York, in the said County, in his premises, 1)eing a place where liquor may be sold, unlawfully did sell liquor during the time prohibituv^ by '• T/ie Liquor JAreme Act" for the sale of the same, without any lec^uisition for medicinal i)uriK)He8 08 required by said Act, bein^ protluced by the vendee or Iuh aj^ent, (or an the cane mnij he) A. B. oeing the informant, and 1 {or i/v) ad- judge the saitl X. Y., for his said oflfence to forfeit and pay the sum of twenty dollars, to be paid and applied according to law, and also to Eay to the said A. B. the sum of six dollars for his costs in tliis ))«- alf, and if the said several sums be not paid forthwith, then* 1 (oc we) order the said sums to be levied 1)y distress and sale of the goods aii(l chattels of the said X. Y., and in default of sufficient distresH in that behalf* [or where the intiuui;; of a ilintreMn warrant icr.^a' he r'lininn to the defendant and Inx family, or it appearn that he has no (joint" irlienon to levy a dintirns, then instecut of the wordf Itetween ,,'te ttnterint'i*' nmj *• inasmuch as it has now been made to appear to me (or us) that the issuing of a warrant of distress in this behalf would be niinous to the said X. Y. and his family," or "that the said X. Y. has no goods or chattels whereon to levy the said several sums by distress,"] 1 (or we) adjuilge the said X. Y. to be imprisoned in the Common Gaol for the County of York, at Toronto, in the said County, and there to Iw kept for the space of fifteen dayx, unless the said sums and the costs and charges of conveying the said X. Y. to the said Common 'ce. Ontario, County of \''ork. To wit Be it Re!«embf,red that on the twenty-secnn(' d:»y of January, in the year of our Lord one thousand eight hundred and seventy-seven, in the City of ':, Y. is convicted before the under- in and for the City of Toronto, intlie „.„v. ^w„..„j, IV., v.. X.. J., two of Her Majesty's Justices ' we], adjudged the said X. Y. fur his said thinl offence to be imprisoned in the Common Gaol of the said County of York, at Toronto, in the said County of York, there to he kept at hard labour for the space of three calendar months (or m the catie may be). (iiven under my hand and seal [or our hands and seals] the day and year fii'st above mentioned, at Toronto, in the County of York. 861* <■> c. D. (L. S.) orC. D. (L. S.) E. L. (L.S.) V) SCHEDULE "1." (Section 75. ) Warrant of Commitment for First Okfexce whkre a Penaltv IS Imposed. Ontario, 1 To atx or any of the Constables and other Peace County of York, > Officers in the said County of York, and to the To Wit : ) Keeper of the Common Gaol of the said County at Toronto, in the County of York. Whereas, X. Y., late of the City of Toronto, in the said County, was on this day convicted before the undersigued, C. I)., Police Magistrate in and for the City of Toronto [or C. D. and K. F., two of Her Majesty's Justices of the Peace in and for the (,'ity of Toronto or County of York, as the cane may be\ for that iie, the said X . Y. , on at unlawfully did sell liijuor without the license therefor by law required (state offence as in the conviction), (A. B. l)eing the informant), and it was thereby adjudged that the said X. Y., for his said offence, should forfeit and pay thu sum of (will conviction), and should pay to the said A. B. the sum of for his costs iu that behalf. I . i, ¥1 V ; Pi -i 1 It" ri pi I '-.»>'■ m I 862 THE MUNICIPAL MANUAL. [Sai. " I." And it WM thereby further Adjudged that if th« uid Mveral •umi should not be paid forthwith, the Mid X. Y. should be impriioned in the Common Gaol of the said Countv at Toronto, in the said County of York, there to be kept at hard labour for the space of , nnleog the said several sums and the costs and charues of conveying the said X. Y. to to the said Common Gaol should he sooner paid. And whereas the said X. Y. has not paid the said several nmt, or any part thereof, although the time for payment therecif has elapsed. [ff a distress warrant ismied and tons rrtiimfd no yooih, or not sHjficient goods, say, "And whereas, afterwards on the i5th day of January, A.D. 1877, I, the said Polico Magistrate {or we, the saiil Justices), issued a warrant to the said Constables or Peace Officers, or any of them, to levy the said several sums of and by distress and sale of the goods and chattels of the said X. \ . ; " And whereas it appears to'me {or us) tts vail, by the return of the said warrant of distress by the constable who hod the execution of the same as otherwise, that the said constable has made diligent search for the goods and chattels of the said X. Y., but that uo sutb- cient distress wheroon to levy the said sums ooftld be found."] [Or where the issuing of a distress toarrant would he ruinous to (h dffendant and his famihj, or if it appears that he has no gmds whereon to levy a distress, then, instead of the foregoing recitals of the issue and return of the distress warrant, d:e., say : " And whereas it has been made to appear to me {or us), that the issuing of a warrant hy distress in this behalf would be ruirvms tu the said X. Y. and his family," or "that the said X. Y. lias no goods or chattels whereon to^Ievy the said sums by distress" as (la case may be]. These are therefore to command you, the said Constables or Peace Officers, or any one of you, to take the said X. Y., and him safely convey to the Common Gaol aforesaid, at Toronto, in the dmnty of York, and there deliver him to the said Keeper thereof, together with this precept. And I {or we) do hereby command you the said Keeper of the said Common Gaol to receive the said X. Y. into your custody in the said Common Gaol, there to imprison him and keep him for the space of , unless tne said several sums and all the costs and charges of the said distress, amounting to the sum of , and of the commitment and conveying of the said X. Y. to the said Common Gaol, amounting to the further sum of shall be sooner paid unto you the said Keeper, and for so doing this shall be your sufficient warrant. Given under my hand and seal {or our hands and seals), this Vabbant ov Commitmknt for Second {or Tiiirp) Offbnce, where I'UNIHHMKNT 18 BY ImI'MIHONMENT ONLY. Ontario, ) To all or any of the Constables an*l other Peace County of York, > Officers in the said (county of York, and to the To Wit : ■ Keeper of the Common Gaol of the said County, it Toronto, in the County of York. ^\Tierea8 X. Y., late of the rf in the said County, was on this day convicted before the undersigned C. I)., Ac, (orC. D. and K. F., &c., om in preeftUntj form), for that he, the said X. Y. on at (lAatr. offenre with previou/i ruHvir- Cum an gftfirrth in the conrictioii for the second ur third uffenet, or f York, and there to be kept at hard Uhour fur the space of three calendar months. These are therefore to command you the said Constables, or any one of you, to take the uaid X. Y., and him safely convey to the said Common (laol at Toronto aforesaid, and there deliver him to tho Keeper thereof, with this precept. And I (or we) do hereby com- mand you, the said Keeper of the said Common Gaol, to receive the laid X. Y. into your custody in the said Common Gaol, there to imprison him anil to keep him at bard labour for the space of three alendar months. Given under my hand and seal (or our hands and seals), this day of A.D. 1877, at Toronto, in the said County of York. C. D. (L. S.) or C. D. (L. S.) E. F. (L. S.) -V' ^ i. ^. J^.r.< IMAGE EVALUATION TEST TARGET (MT-3) // // %.<.<^ A .v^ ^^^e < < <^^s iL U.. 1.0 I.I |4i ■ 50 Ui US Ui2 12.2 2.0 1.8 ^ IIIh iiim y] ^;. 7 >^ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 873^503 .•v^ ^ II V 864 THE MUNICIPAL MANUAL. [41 Vicr An Act to amend the License Act, and for other purposes. [Assented to 7th March, 1878.] 41 Vict. Cap. 14. 1 Repayment to brewers, Ac, of duties, pen- alties, &c. HER MAJESTY, by and with the advice and consent of of the Legislative Assembly of the Province of On- tario, enacts as follows: — 1. A sum not exceeding seven thousand dolhus niiiy he set apart out of the Consolidated Revenue of the Pioviuce for the re-payment to any brewer or distiller who lias paid the duty on a wholesale license or licenses, the .amount of such duty and the amount to which any Municipality wa» entitled upon the issue of such license or licenses, under and by virtue of the Act passed in the thirty-seventh year cf Her Majesty's reign, chaptered thirty-two and interest thereon, and the amount of any fine or fines or penalties imposed and paid, by reason of the neglect of any brewer or distiller to obtain the wholesale license required by section twenty-six of said Act aiyi interest thereon, and on the several sums to be i'ei)aid under section three of this Act ; and the Treasurer of the Province may, upon such payment by any brewer or distiller being made to ap])ear to his satisfaction, repay the sum or sums so paid as aforesaid to the pex-son or persons who paid the same, or to his or their executors, administra- tors or assigns, (a) Province to be repaid what has been paid to municipali- ties. 2. Upon the distribution of the license fund thereafter) there shall be paid to the Px'ovince, out of the proportion of such license fund payable to any municipality, the amount which such municipality has been paid by any brewer or dis- tiller upon the issue of a wholesale license under said Act, and the amount of any fine or tines received by any munici- pality and the interest, which may be repaid to such brewers or distillers, (b) (a) See note/ to sub. 4 of sec. 2 of " The Liquor License Act." (h) See note /"to sub. 4 of sec. 2 of " The Liquor License Act." 14.] LICENSE ACT AMENDMENT. 865 3. Where any brewer or distiller, under and by virtue of License the Act ])assed iu the" thirty-ninth year of Her Majesty's ^"p^^'J^rTw- reign, chaptered twenty-six, has paid into the license fdnd of era, &c., in anv license district, or to the License Inspector the duty on any wholesale license or licenses, or has paid any fine or fines bv reason of the neglect of such brewer or distiller to obtain such wholesale license, and such duty and fines shall not have been paid into the Consolidated Fund, such license Board may ref)ay the same to the person or i)ersons who paid the same, or to his or their executors, administi-ators or assigns, such j)ayment being first approved by the Treasurer of the Province, (c) 4. Nothing herein contained shall be construed as an ac- This Act not quiesccTice by the Legislature, in the judgment heretofore quiescenc* in ;;iven 1)y the Supreme Coiiit against the authority of this g"?*"^'^'"*"* Lt'jrisliiture, to require brewers and distillers to take out a wholesale license in the terms and for the purposes mentioned iu the 3(ud Act passed in the thirty -seventh year of Her Majesty's ''ci^ii, chai)tered thirty-two, and to pay the duty ther.' .'. ;.:/) 5. Section one hundred and nine of chapter one hundred r. s. c. 181, ami eighty -one of the Revised Statutes of Ontario is hereby pea?^,"^ re[ieiiled. (e) 6. All expenses of carrying such of the provisions of chap- Expenses o( tersone hundred and eighty -one and one hundred and eighty Krs.'fcaps? two of the Revised Statutes of Ontario as may be in force in ^^k?^?' V^^ municipalities where a by-law prohibiting the sale of intoxi- how to be' eating liquors under "Temperance Act of 1864," or the ^°'°^* " Temjierance Act of Ontario " is in force, and this Act into effect, shall, when the license fund is insufficient for that imq)ose, be borne and paid in the proportion of one-third by the Province out of the Consolidated Revenue Fund, and two-thirds by the county within which any by-law for pro- hibiting the sale of liquor under the Temperance Act of 1864, or under chapter one hundred and eighty two of the Revised Statutes of Ontario is in force ; and where the by-law is that of a nainor municipality, such minor municipality's share of (c) See note fto snb. 4 of sec. 2. of " The Liquor License Act." *" ('/) See note/ to sub. 4 of sec. 2 of " The Liquor License Act." (') The Act repealed made provision for carrying into effect the provisions of sees. 104, 105, lOG, 107 and 108, some of which were cbrly unconstitutional, and others of doubtful validity. 100 '.• m 1= I! 866 THE MUNICIPAL MANUAL. [41 Vict. pality, how and when to be paid. the entire expenses shall be paid in the same proportion by the Province and the minor municipality respectively, sia when the by-law is that of a county. (/) Proportion (2) The proportion of such expenses i)ayable under this thrpiov'ince section by a county, or by a minor municipality, or by the or Munici- Province, sluiU be by them paid into the bank in which the license fund is kept to the credit of the license fuiid for the city or county or electoral district, as the case may be, and shall become due and payable within one month after an es- timate of the amount of the expenses for the current license year shall be made by the Board of License Coniniissioiiei-s for the city, county, or electoral district, as the case may l)e, and shall be approved by tlie Provincial Treasurer, which ap- proval shall be final and conclusive ; and after a cojty or du- plicate of such estimate and appx-oval together with a notice in writing by the Boai*d of License Commissioners, request- ing payment of the proportion payable by the municipality shall be served upon the clerk of the county, or minor muni- cipality ; and should any estimate prove insufficient for the payment of the expenses of the license year any deficiency may be provided for in the estimate for the succeeding year ; and should any sums remain unexpended in any year, the same may be applied on '•.ccount of the expenses of the suc- ceeding year. Payment of (3) Payment may be enforced against any county, or hew en.'°°' i^inor municipality by the Board of License Commissioners forced. in any Court of law or equity of competent jiu-isdiction in the name and by the title of *' The Board of License Com- missioners for the city, county, or electoral district of ," (as the case may be) ; and it shall not be necessary to mention or include the names of the commissionei-s in the proceedings ; and the said action or jiroceedings may be car- ried on in the name of such license board as fully and effectually as though such license board were incorporated under the aforesaid name or title. In the event of the death or resignation of any of the commissioners, or of the expiry of their commission and of the re-appointment of the same, or of the appointment of other commissioners, the proceed- ings, action, or suit at law or in equity, shall not cease, abate or determine, but shall proceed as though no change had been made in the commission or commissionei-s, and in the (/) See note b to sec. 105 of " The Liquor License Act." )\ U.] LICENSE ACT AMENDMENT. 867 jle under tins ity, or by the : ill which the ie fvmd for the ;e may be, and itli after an es- current license Comraissiouew tie case may l)e, surer, which ap- jv a copy or (hi- ;r with a notice iioners, reqnest- the municipality , or minor m.uni- iufficient for the r any deficiency succeeding year ; in any year, the jnses of the sue- any county, or e Commissioners ,t jurisdiction in of License Corn- district of I not be necessary missionei-s in the lings may be car- ird as fully aid ^rere incorporated ■vent of the death or of the expiry lent of the same, lers, the proceed- '1 not cease, abate ^ no change had ,nex-s, and in the h event of said license board being condemned in costs, the san\e may be payable out of the License Fund. (i) This section shall apply to all expenses heretofore This sooHon incurred under the Acts passed in the thirty-ninth year of aiiexpensM the reign of Her Majesty, chapter twenty-six and in the v'o't* c'*"26, fortieth year of the reign of Her Majesty, chapter eighteen, aDd"4o vict. or under the said Revised Statute, chapter one hundred and s.cfisi.**'** eighty-one, and the same may be recovered by the license board hereunder from the municipality liable by virtue of this Act to pay the same ; and any notice requesting pay- ment of its proportion heretofore given to any Munici- pality by any Board of License Commissioners, or by the raenibers thereof shall be as effective as though given under this Act. 7. When the by-law is a county by-law, and the license Ti»e ewe of district in addition to other portions of the county, embraces law an.uh* ' a city or town withdrawn from the county for municipal [rlf." e^m-"' purposes wherein the by-law is not in force, the license fundbtacin^^a of such city or town withdrawn from the county for muni- gep^gj*,,^*™ cipal purposes shall be kept as a separate license fund for where bv- siich city or town ; and such city or town shall pay a just force, share of the expenses of such license district ; and the same shall be determined by the Board of License Commissioners; and shall after approval by the Trea.surer of the Province be paid out of the license fund for such city or town ; and in determining such share of expenses the commissioners shall take into account with other circumstances, as far as may be, the propoi-tion of the expenses incurred in said city or to^vn. (g) 8. On an appeal to the County Judge or General Sessions Oosta en ap- from a conviction or order under the " Liquor License Act," Pf*J^'^"„ or under chapter one hundred and eighty-two of the Revised «nd«>r r. 8, Statutes of Ontario, Avhen costs are directed to be paid by 1. c, 13"^ ' either party, no gi-eater costs shall be taxable by or against either party, as between party and party than the sum of ten dollars, and the actual and necessary disbursements in pro- curing the attendance of witnesses and the fees to which the Clerk of the Peace shall be lawfully entitled. (A) (.7) See sees. 34, 35 and 36 of " The Liquor License Act," aa to the License Fund. (/() See sees. 71, 72 and 73 of " The Liquor License Act." ■'i '■■¥ ' 868 THE MUNICIPAL MANUAL. [41 Vict. lit f : -'xl i i:-P R. S. c. 181, a. 76, amended as to power of Justice to amend In- (onnations. 9. The seventy-sixth section of the said " Liquor License Act" is hereby repealed and the following section substituted therefor : (i) 76. At any time before judgment, the justice, justices, or police magistrate may amend or alter any information, and may substitute for the offeree charged therein, any other offence against the provisions of this Act; but if it appears that the defendant has been prejudiced by such amendment, the said justice, justices or police magistrate shall thereupon adjourn the hearing of the case to some future day, unless the defendant waives such adjournment. 10- The seventy-seventh section of said Act is hereby amended by inserting the words " or is otherwise made to appear" after the word " process," in the eleventh line of said section and by striking out the word " thereby" in the twelfth line of said sub-section, (j) "Minor 11. The word "minor municipality," when mentioned Uy." toter. l^Gi'®"^ shall be held to mean any municipality, other than pretation of. that of a couuty or union of counties. R s. c 8.77 amended. 180, (i) Sec. 76 of " The Liquor License Act " is iia this work at p. 834, printed as here amended and so annotated. ij) Sec. 77 of " The Liquor License Act " is in this work at p. 834, 835, printed as here amended and so annotated. mi: ^1 MUNICIPAL INSTITUTIONS, ALGOMA, ETC. 869 An Act respecting the establishment of Muni- cipal Institutions in the Districts of Algoma, Muskoka, Parry Sound, Nipissing and Thunder Ba3\ n. S. 0. Cap. 175. Organization of Townsliips : Area and Population reciuireil, 8. 1. Preliminary fleeting, ss. 2-5. Election of first Council, ss. G- 16. Appointment of Clerk, &c., a. 17. Powers of Council : General powers, s. 18. As to assessment, ss. 19, 20. Appeals therefrom, ss. 21-26. Assessments after the first, s. 27. Collection of taxes, ss. 28, 29. Arrears of taxes, s. 30. Sale of lands, s. 31. As to liquor licenses, s. 32. As to licensing of auctioneers, &c., s. 33. As to constables, s. 34. As to lock-up houses, s. 35. Other powers, s. 36. Elections and Councils after the first : Voters' (qualification, s. 37. Councillors' qualification, s. 38. Election how conducted, s. 39. Nomination meeting, ss. 40-42. Polling, s. 43. Tenure of office, s. 44. Controverted elections, s. 45. Vacancies in Council, a. 46. Conduct of business, s. 47. lleeve to be Justice of the Peace, s. 48. Police villages : Formation of, ss 49, 50. Electors, s. 51. Trustees, s. 52. Powers of Lieutenant-Governor as to annexation or union, s. 53. Special provisions as to Algoma, ss. 54, 55. ^ f"$ HER MAJESTY, by ami witli the advice and consent of the Legislative Astieiiibly of the Province of Ontario, enacts as follows : — 1. It shall be lawful for the inhabitants of any locality in Municipaii- the Districts of Muskoka, Parry Sound, Ni{)issing and "^Ja^rzed!^ Thunder Bay, having a population of not h!ss than one hun- dred persons witliin any Townshiji, or within an area of not more than ten thousand acres, to organize themselves into a .1 ,' 870 THE MUNICIPAL MANUAL. [R. S. 0. l^: 1.1 I '-'5. Jit stipendiary Magistrate, upon peti- tion, to call a public ineetlni^ to ibrm Muni- cipality. Township Municipality in respect of such Township or areii. 36 V. c. 50, s. 31. As to Afyomn, nea section 54. 2. In order to constitute and establish a Municipality as above provided, it shall bo lawful for the Stipendiary M.mH- trate of the District in which such locality is situate, upon the receipt of a petition in which the limits of the said pro- posed Municipality are deKned, and signed by not less than thirty inhabitants of such locality, to call a meeting by pub- lic notice of said inhabitants, to consitler the expediency of erecting a Municipality. 35 V. c. 37, s. 2. Petitioners to make a de 3. Before the said St Magistrate to appoint chairman. Magistrate to lirovide for flrat election. stipendiary Magistrate calls said poMt'to meet meeting, it shall be the duty of those petitioning for said expenses of Municipality to deposit with him a sum sufficient to meet and election, the expense of said meeting, as also of the election to be held, as hereinafter provided. 35 V. c. 37, s. 3. 4. The said Stipendiary Magistrate shall name some fit and competent person to preside at said meeting, who shall forthwith report the result of the same, with the votes given thereat, to said Stipendiary Magistrate, under oath, which may be administered by any Justice of the Peace. 35 Y. c. 37, 8. 4. 5. Upon receiving the report of said meeting for the estab- lishment of a Municii)ality, the Stipendiary Magistrate sliall lix a time and place for holding the first election in said pro- posed Municipality, and shall, in the notice ])roviding for said election, name the Returning Officer who shall preside at said election ; but uo such Municipality shall be estab- lished unless at such meeting at least thirty freeholders or householders have voted in favour thereof. 35 V. c. 37, 8. 5. Council, of g. The officei-s to be elected at the said election shall be W n AL O TTi C61*S eompoEcd. one Reeve and four Councillors, who shall have the same qualification as voters, and shall constitute the Council of the Township, the Reeve being the head thereof. 40 V. c. 8,. s. 53 (1). 7. The persons qualified to vote at said election shall be male British subjects of the full age of twenty-one years, being householders resident in the locality proposed to be organized into a Municipality. 40 V. c. 8, s. 53 (2). Nomination. Q. At the time and place appointed by the Stipendiary Magistrate under the fifth section of this Act, the nomijia- Quiliflca tion of Toters. '<' 9 175.] MUNICIPAL INSTITUTIONS, ALGOMA, ETC. 871 ,te calls said Kleetlon by arrlama- tiOD. set the figure tion of candidates slinll be made in the same manner as is provided in respect to the nomination of candidates at muni- cipal elections. 40 V". c. 8, s. 53 (3). 9. In cose no more persons are nominated than are re- quired to be elected, the Returning Officer shall declare such pereoiis to be elected. 40 V. c. 8, s. 53 (4). 10. Ill case a poll is required the Returning Officer shall Notice of adjourn the proceedings until the same day of the following ^''"f »"ert'ormo(l l»y tho County Juilgo in liko case in uthor MunioipaliticH. 37 V. c. 17, h. 3. 26. Tho said roll whon (iimlly' revJHod by tho Coiindl, or hy tlio Sti|)»'ndiaiy Ma;,'istrato in oaao of mipcal, wlmjl In; takon and hold as tho roll of tiio Munici[)ality, for all pur- j)oscH, until a now roll hiiH Ikmmi nuido as heroinaftor provided 3r) V. c. 37, 8. 15. 27. Tlu! Haid Council Hhall by by-law fix tho tinio for making tho subHe(iuont aHSOssnionts in the municipality at periods of not loss than oiio nor more than thrco yoar.s : and tho year for the purposes of this Act shall bo coi'.sidcrod us comnu^ncing on tho Hrst day of January thereof. 3.") V. a 37,8. IGj 37 V. 0. 17, s. 5. 28. The Council may, in each year aftcsr tho final roviHJon of tho roll, pass a by-law for levying a rate on all the real and })ersonal property on said roll, of not more than two cents oa the dollar, to provide for all tho nectsssary exjtcnsos of sur- (•(^iiiaftcr provided fix tli(! tiiiio for e immiciimlity at 1 tlirce y«!iirn : and 1 1)0 cor.sidcrod as ihercof. 35 V. c. f the final rcviHion on all the real and than two cents on f expenses of siiid (IS may he found ill the eighteentlv Ix the time for the kid Coll(!ctor shall Collectors by "?'/.e )ality formed under In the same way as louuties; and the shall perform the .lent of arreara of he Treasurers and jns of law relating deeds given there- thia Act, ai)i)ly to land therein for ids given therefor. take place in any [except during the October; and the C, nr).] MUNICIPAL 1N8TITUTI0NH, AUIOMA, KTC. a(lvpiti»oniPiit of tho proposed sulo, wliicli iiiid(>r the* ono tmiulrcd and thirty-fii'Ht and one liniidnHl and tliirty-Hccotid Ktions of " I'/iti AnttessiiieiU Act" is ri'(|uired to bo published in flu; Ontario (Jazette and in a local newspaper, Nhall, when liiiKJMaro to 1)0 sold in any such Municipality for arrears of taxes, be published also oiico u week, for at least four weeks, iu Mich new8])ui)er j)ubli8hed in tho City of Toionto as the Litiitcnant-Govornor in Council may designate. 38 V. c. 13,8 10. 32. The Council of any Miinicijiality formed under this Act shall have the like authority in resjieet to taverns and shops withhi tho Municipality and tho liciMises therefor as the Councils of Townships possess under " Thu Liquor License Art." 35 V. c. 37, s. 2G ; 39 V. c. 20 ss. 1 & 2.K J3. Except in the cascis of Townships and Villages sttaclied or belonging to a (bounty for municipal purposes, the Councils of Townships and incorporated Villages in Pro- visioiml Judicial, Temporary Judicial, and Territorial Dis- tricts shall have power to i)ass by-laws for the purposes nieii- doued in sub-sections two and three of the four hundred and sixty-tifth section of "The Manicijml Act." 40 V. c. 8, s. 87:^ Notlecm tlua fur. Itiiv. 8Ut e. tS.O.,H. I'M, la-i. Council to rcKuluti) titvprii liCL'DNOM. llcT. Stat, c.lbl. Townshlpi anil VlliHgoft ill UlKtrlvts to ImvH ixpwur to lici)n»<' nuutloiicorg, utc. Rrv. Smt. c. 174 «. 4(15 (2) & (3). 34. The Council shall have tlie jiower to appoint one or Appoint- niure constables within the Municipality, whose duty it shall movaiVf k to enforce and maintain law and order, and who shall per- <;on!'tubie«. form all duties appertaining to constables ; and the said Council shall have power, from time to time, to remove tho same, for any misconduct in their office, and shall also regu- late the fees to be paid said constables ; but such appoint- ment and tariff of fees shall be subject to the approval and .^^^^ ^^ ratification of the Stipendiary Magistrate of the said District, constables. 3o V. c. 37, 8. 28. 36. The said Council may establish and maintain a Lock- up House within the Municipality, and may establish and provide for the salary or fees to be paid the constable to be pLiced in charge of such Lock-iip House : but the ajipoint- nientofsaid constable sliall be ratified by the Sti[)ondiary Magistrate of the District ; and the said Council shall have [lower to remove or suspend such constable for neglect of iluty or other misconduct. 35 V. c. 37, s. 27. 36. In addition to the powei-s conferred upon said Town- Mp or Village Municipalities by this Act, the following sec- Councll may entablish a lock up liousu. Appoint- ment of a coiiHtablo thereto. Certain hoc- tions of U«v. i! 'Vi^' •■ , -^1— I, 876 Stat. c. 174, to apply. THE MUNICIPAL MANUAL. [R S. 0. Sees. 237, 239, 240, 244, 240, 247, 2fi4, 265, 2fi0, 267, 258, 2(!6, 2t>tl, 207, 208, 2119, 270, 272, 282, 284,310,320, 321, 322, 323, 324> 328. 329, 337,394,399, 401,402,403, 454, 48'.', 491. tions, with their Hiib-sections of " Tlie Municijxil Act," shall 1)6 applicable to the said Municipalities, so far as they can be adapted to tlie same, viz. : sections two hundred p,nd thirty- seven, two hundred and thirty-nine, two hundred and forty, two hundred and forty-four, two hundred and forty-six, two hundred and forty-seven, two hundred and fifty-four, two hundred and fifty-five, two hundred and fifty-six, two hun- dred and fifty-seven, two hundred and fifty-eight, two hun- dred and sixty-five, two hundred and sixty-six, two hundred and sixtj'^-seven, two hundred and sixty-eight, two hnndrod and sixty-nine, two hundred and seventy, two hundred and seventy- two, two hundred andeighty-tAvo,two hundred and eighty-four, three hundred and nineteen, three hundred and twenty, three hundred and twenty-one, three hundred and twenty-two, three hundred and twenty-three, three hundred and twenty-four, three hundred and twenty-eight, three hundred and twenty- nine, three hundred and thirty-seven, three hundreil and ninety-four, three hundred and r'nety-nine, four hundred and one, tour hundred and two, four hundred and three, four hun- dred and *lftj'^-four, four hundred and eighty-nine, .and four huadrta and ninety -one. 35 Y. c. 37, s. 33; 10 V. c. 8, s. 54. ELECTIONS AFTER THE FIRST. Who quaii- 37. The iiersons qualified to vote at eve.y election after fled to vote, the first shall be : Real pro- perty. Income. 1 . Eveiy male freeholder and resident householder wliose name ap))ears in the revised assessment roll upon which the voters list used at the election is based, for said Munici- pality, and who is of the full age of twenty-one yeai-s, and a natuialized or natural-boni subject of Her Majesty ; 2. Every male person who resides at the time of the elec- tion in the Municipality in which he tenders )us vote, and has resided therein continuously since the completion of the last revised assessment roll of the Municipality, and derives an income from some trade, calling, office or profession of not less than four hundred dollars annually, and is as.se.ssed for such income in and by the revised assessment roll upon which the voters' list used at the election is based, of the Municipality, and possesses the qualifications required by law other than in respect of property. 35 V. c. 37. s. 31 ; 36 V. c. 48, s. 77 ; 37 V. c. 3, s. 1 ; 37 V. c. 17, s. 9. e, 175.] MUNICIPAL INSTITUTIOKS, ALGOMA, ETC. 877 MunicijHil Act," shall , so far as they can be o hundred f,nd thirty- vO hundred ami forty, Ired and forty-six, two 3tl and fifty-four, two nd fifty-six, two hiin- d fifty-eight, two hun- sixty-six, two hundred eight, two hundred and hundred and seventy- mdred and eighty-four, dred and twenty, three 1 and twenty-two, three idred and twenty -four, i hundred and twerty- 1, three hundred and nine, four hundred and •ed and three, four lum- l eighty-nine, and four 37, s. 33 ; iO V. c. 3. Every peraon who is a fanner's son within the meaning Farmor*' of " The Municipal Act" and entitled as such to vote at *°°*' municipal elections, under the provisions of said Act. See Sev. stat. o. ^OV.c. 9. "*•'•"• 38. The pei"sons qualified to be elected as members of the Quniiflca- Council in any Municipality after said tii-st election, shall, in couodiior. addition to the qualification I'equired for votex-s, be assessed in the said assessment roll for at least two hundred doUai-s fiwhold or four hundred dollars leasehold. 35 V. c. 37, s. 22. 39. All elections after the first shall be conducted in the Place and same manner as is provided for municipal elections in Town- ^t^tion."' ships in Ontario, except so far only as is otherwise enacted by this Act. 37 V. c, 17, s. 7, part. 40. A meeting of the electors shall take jilace for the Nomination nomination of candidates for the offices of Reeve and Coun- coundifore. ciliors of the Municipalities formed in accordance with the proHsions of this Act, on the last Monday in December, annually, at such place therein as may from time to time be tixedby by-law of the Council. 37 V. c 17, s. 7, ^.»rtr<. 41. When the last Monday in December happens to be Nomination Christmas Day, the nomination of candidates for the office on^chrlit? of Reeve and Councillor's in each of the said Municipalities, '"^s Day. shall take place on the preceding Friday, at the times and places, and in the maiuier prescribed by law. 39 V. c. 7, s. it the time of the elec- tenders Jus vote, and the completion of the .nicipality, and derives office or profession of nually, and is assessed assessment roll upon ection is based, of the ificiitions required by . 35 V. c. 37. s. 21 ; J7 V. c. 17, s. 9. 42. The Clerk of the Municipality shall i)reside at the cicriv to pre- meeting for the nomination of candidates for the offices of ^^y^jj """''' Reeve and Councillors for such Municipality, and shall be the Returning Officer at all elections after the fii-st election, oince"^ °* 3(V. c.l7,s. 8. 43. The electors of every such Municipality shall elect PoUing day. annually, on the first Monday in January, the members ot the Council of the Municipality, except such members as may have been elected by acclamation on the uominatioji day. 31 V. c. 17, s. 1, jjart. 44. The persons so elected shall hold office until tlieir suc- cessors are ^^Iccted and sworn into office. 37 V. c, 17, s. 7, imi. 45. The provisions of law for the trial of controvei-ted Trial of eon- elections, applicable to Councillors of Townships iu Counties, elections '% 'M IV- ^'■11 M . ;878 THE MUNICIPAL MANUAL. [R S' 0. Vacancy In Council, how filled. shall apply to the membeii of the Council of any Munici- pality formed under this Act. 38 V. c. 13, s. 12. 46- In case the seat of any member of the Council becomes vacant by death, resignation or a continued absence from meetings of the Council for a jjeriod of six months, it shall be the duty of the Council to direct a new election to be held for the purpose of supplying such vacancy. 35 V. c. 37 a. 23. "Wiio to pre- 47. The Reeve of the said Council shall preside at all -ing* of the^' nieetings thereof, and, in the event of his absence, the Council Council. shall choose from among their number, a person to preside, and, in such case, the said person so presiding shall have all the powers and exei-cise all the functions appertaining to the Reeve. 3-5 V. c. 37, s. 24. Reeves to be 48. The Rceves of the various Municipalities shall be ex the r«ice^ ^^<^'^^ Justices of the Peace, and shall liave the like powers as are exercised by other Justices of the Peace in this Pro- vince. 35 V. c. 37, s. 25. i4- . i' I*" Erection of police vil- Isges. POLICE VILLAGES. 49. On the petition of thirty of the inhabitants of a Vil- lage in any of the said Territorial Districts containing one hundred inhabitants at least, the Lieutenant-Governor in Council may, by proclamation, erect the same into a Police Village, and assign thereto such limits as seem expedient. 35 V. c. 37, s. 29. Rer. Stat. c. 50. The provisions of " Tfte Municipal Act " relating to .595' toa^ppiy Police Villag(\s or their officera, shall apply to the Police to police Villages erected under the preceding section, except where ''*^' inconsistent with this Act. 35 V. c. 37, s. 30. •Qualification 51. The electors of any such Police Village aball be andefecUons 1*^*1" ""6^1 to ^^^e the Same qualification in respect to such In police Village as the electora of the said Township Municipalities; TiUageB. gj^j ^jjg elections for Police Trustees shall be held on the same days and in the same manner as elections for Council- loi-s. 35 V. c. 37, s. 31. -Quaiifica- 52. Any elector of such Police Village resident therein ""lU' may be. elected as a Police Trustee, unless disqualified on itruatees. account of holding an ofiice inconsistent with the position ot Police Tmstee. 35 V. c. 37, s. 32. "?( C. 175.] MUNICIPAL INSTITUTIONS, ALOOMA, ETC. 63. The Lieutenant-Governor in Council may, by procla- mation, annex to any Municipality formed as aforey' 1, any temtoiy lying adjacent thereto, and may, upon the applica- tion of two or more adjacent Municipalities, form the same either with or without additional area, into one Municipality. 2. In any such case the Lieutenant-Governor may fix the time at which the annexation or union shall take effect, and also the time when the first election shall take place, and the name by which the Municipality shall be called. 38 V. c. 13, 8.11. 879 Llcutci'iant- Governor Jn Council may annex to certain municipali- ties territory adjaLcent thereto, and form two into one. ALGOMA. 54. Except so far as regards any territory comprised in j^^^t to apply the Municipality of Shuniah, this Act shall apply to the Dis- to Aigoma. trict of Aigoma, except that the duties which by the preced- ing sections of this Act are required to be performed by the Stipendiary Magistrate shall, in that portion of Aigoma which is not included within the District of Thunder Bay, be performed by the Judge of the District Court of Aigoma. 38V.C. 13,8. 13; 36 V. c. 50, s. 28. 55. If any dispute at any time arises as to the validity of judge to de- any by-law, or resolution, or order of any Municipality in the alfto vauaity District of Aigoma, the same shall be referred to the Judge of by-ifcwa, of the District of Aigoma, whose decision thereon shall be iinal, and the said Judge shall have the power of enforcing his decision, if necessary, by a writ or writs under his hand and seal, to be directed to the Sheriff of the said District, adapted to the purposes intended. 33 V. c. 25, s. etc. 2.5. -•->—♦-•- 880 THE MUNICIPAL MANUAL. [R. a 0.. An Act respecting the Registration of Municipal and certain other Debentures. R. S. 0. Cap. 176. J.i .1 "'■' ii i.^'- :i Short title, s. 1. Returns to Registrar, s. 2. Provincial Secretary, s. 3. Duties of Provincial Secretary, s. 4. Registrar, ss. 5, 6. By-laws, how to be verified, 8.7. Books to be open to inspection, s.8. Registrar's fees, s. 9. Penalties, s. 12. Sanction of Lieutenant-Governor to bj'-laws, 8. 10. . Railway, etc., debentures not within the Act, s. 11. Debenture not impeachable against bona Jide holder for value with- out notice, s. 13. Debentures good for face value, 0. S. C. c. 84, 8. 16. Short title. Certified copieii of all by-laws under which debentureH are intended to be iHsaed, to be trans- mitted to the proper liegis- trar, etc. HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : — 1. This Act may be cited as " The Debentures Registration Act" 2. It shall be the duty of the Clei-k oi' person acting as snch, of every Municipal or Provisional Municipal Cor})oni- tion, and of the Clerk or Secretary, or person acting as such, of any other corporate body, within two weeks after the final j)assiiig of any by-law made and passed by such Corporatiou for the puri)ose of raising money by the issue of debentures, and before the sale or contract for sale of any such deben- tures issued or intended to be issued thereunder, to transmit to the Registrar of the County or other Registration Division in which such Municipal Corporation or other corporate body, or its principal office, is situated, a co])y duly certified, as hereinafter provided, of each and every by-law niaile and passed as aforesaid by such Municipal or Pro- visional Municipal Corjtoration, or other corporate liody, together with a return in the form specified in the Scliedulo A, hereunto annexed, showing the title or objects of each iW"- ■[ [R. S. 0,. ,176.] DEBENTUPES REGISTRATION ACT. 881 of Municipal res. lUteuant-Govemor 10. debentures not iCt, s. 11. npeachable against ler for value with- 13. 0(1 for face value, t, s. 16. e and consent of •iuce of Ontario, wes Reijistratlon lei'son acting as nicipal Corpora- 1 acting as sucli, :s after the final uch Corporation |e of debent\ne#, my such deben- |der, to transmit ler Registration ■atiou or otlier ,ted, a copy duly id every by-law nicipal or Pro- porporate hody, |in the Schedule objects of each Return to be made to Provincial Secretary. such by-law, the amounts to be raised thereunder, the num- ber of debentures to be issued thereunder, the amounts thereof respectively, the dates at which the same respectively fall due, the assessed value of the real and personal estate belonging to such Corporation or Company, the assessed value of the real and personal estate of the Municipality, and the amount of the yearly rate in the dollar to liquidate the same. C. S. C. c. 84, s. 2. ' 3. The Clerk, or person acting as such, of every Muni- cipU or Provisional Municipal Corporation, and the Clerk or Secretary, or peraon acting as such, of any other corporate body (excepting such as are in and by this Act excepted), shall, on or before the tenth day of January in each year, transmit to the Provincial Secretary a return made up to the thii-ty-first day of December then last past, in the foiTO specified in the Schedule B hereunto annexed, showing the name of the Municipal or Provisional Municipal Corpo- ration, or other corporate body, — the amount of its debt, if any, distinguishing the amount of debt incurred under the Municipal Loan Fund Acts, if any, from the remainder of its debt — the assessed value of the real and personal estate belonging to such Corporation or Company, or the assessed value of the real and pei-sonal estate of the Mxniicipality, or both, as the case may be — the total rates, if any, per dollar, assessed on such last mentioned property for all purposes, and the amount of interest due by the Corporation or Company, or by the Municipality. C. S. C. c. 84, s. 3. 4. The Provincial Secretary shall annually compile, from the returns so transmitted, a ste,tement in tabular form, show- ing the names of the several Coi'poi'ations in one column, and the contents of their respective returns against their respec- tive names in other columns, corresponding to those in the said Scliedule B ; and he shall cause copies thereof to be laid before the Legislative Assembly within the first fifteen days of the Session next after the completion of the same, or if the Legislative Assembly is sitting when the same .is com- pleted, as soon as may be after such completion. C. S. C. c. 84, s. 4. 5. The Registrar of the County or other Registration Registrar Division in which such Municipal Corporation or other cor- by.uws? wia porate body or its principal office is situated, shall receive Jo •'«•? and file in his office the several by-laws required to be trans- niitted to him as hereinbefore provided, and shall cause to 111 Provincial Secretary to compile tables fh>m sacb retuma and lay them before the Legislative iSssembly. ■n |U ) m W 'S K L, 882 THE MUNICIPAL MANUAL. [R. S. 0. copiM of the be entered in a book provided for that purpose, true and requ™ed by coiTcct copies of the retums hereinbefore requiied by the •ection 2. second section of this Act C. S. C. c. 84, s. 5. If requedted, 6. The Registmr of each County or otlier Registration may're^Stor I^ivision, as aforesaid, slmll provide a book of registration, the name of wherein he shall, at the request of the original holder or ofanyde-*' holders, or any subsequent transferee or transferees thereof '^"ut^'ti*"^ respectively, from time to time, cause to be entered and to he prima registered the name of such original holder or holders, or of dence!'*' ^^^'^ subsequent transferee or transferees, and siich holder or last registered transferee in such book of registration shall be deemed prima facie the legal owner and possessor thereof. C. S. C. c. 84, s. 6. which'by- ^' ■^'^ by-laws mentioned in the second section of this Act law's shiiu be shall be certified and authenticated by the seal of the Muni- ^^"^ ■ cipal Corporation, and by the signature of the head thereof, or of the person presiding at the meeting at which the ori- ginal by-law has been made and passed, and also by that of the Clerk of such Corpora tipn ; and all by-laws of other cor- porate bodies shall be attested and authenticated by the seal of such corporate bodv and by the signature of the head thereof. C. S. C. c. 84, s. 7. By-iaw8, re- 8. The Certified copies of all by-laws hei'einbefore referred b^oksof*^ to and transmitted as aforesaid, and also the returns in the R^riV" second section of this Act mentioned, and the book or books Office, to be of entry of such returns and of registration, shall be open to inspecMon P"^lic inspection and examination, and access had thereto at all seasonable times and hours upon payment of certain fees as hereinafter provided. C. S. C. c. 84, s. 8. Jaylwe^ 9- The following fees shall be i)aid |to Registrai-s under -under tbif this Act : $ CM. For registration of each certified copy of By-laws, the sum of 2 00 For registration of any Returns as prescribed in Schedule A, for each such Return, the sum of .' 1 00 For registration of the name of holder or transferee of any number of debentures not' exceeding five, the sum of 25 Over five and not exceeding fifteen, the sum of 50 Over fifteen and not exceeding thirty, the sum of 75 Upwards of thirty, the sum of 1 00 For making search, inspecting each copy of By-law, and examining entries connected therewith 1 00 C. S. C. c. 84, s. 9. Istt! 176.] DEBENTURES REGISTRATION ACT. 883 10. In all such cases as require the submission of any by- Meaning of law or by-laws to the Lieutenant-Governor of this Province J^JSng,"***! for his sanction, such sanction must firat be obtained to bring ^ ^■'*r* the same within the meaning of the words "final passing mitted to the thereof" in the second section of this Act. C. S. C. c. 84, Qoverao"*" s. 10. 11. The foregoing sections of this Act shall not extend to Act not to the by-laws, or debentures thereunder, of any Railway Com- ?idhray Mm- pany or any Ecclesiastical Corporation heretofore incorpor- p*"'*" °' ated or hereafter to be incorporated, or the debentures issued corporation«, by any religious denomination in its corporate capacity. C. *"" S. C. c. 84, s. 11. 12. Any Clerk or Secretary as aforesaid, of any Munici- Pjna'tJ J" * •' .11 /. • 1 1 1 i . I^ offlcen of pality or corporate body as aforesaid, who neglects to perform, coiporationi within the proper period, any duty devolving upon him in tif(fir"d*u°tei virtue of this Act, shall be subject to a fine of two hundred ""der this dollars, or, in default of payment thereof, to imprisonment nntil such fine is paid, but for a period not exceeding twelve months, to be prosecuted for in the name of the Attorney- General of Ontario, in anv Court of competent jurisdiction, C. S. C. c. 84, s. 12. 13. Any such debenture issued as aforesaid shall not be when not impeachable in the hands of a bona fide holder for value, '"p*"***^'"* without notice. C. S, C. c. 84, s. 16. \Section 16 <>/* C. S. C. c. 84, is as follows : — 16. Any such debenture issued as aforesaid shall be valid and Good for full recoverable to the full amount thereof, notwithstanding its negotiation amount by such Corporation at a rate less than par or at a rate of interest aj^unted ^ter than six per centum per annum, and shall not be impeachable atalesaiunu in the hands of a bona fide holder for value without; notice. 18 V. c. 50,8.4.] ^'''^L 884 THE MUKICIPAL MANUAL. [R. S. 0. i .-- ■■0 V ws M N |»5 ^ S 111 00 <4 «>• "^nS^^-S'S a. 4) ^ .b9 J»13 JS &:! s. WW ^■^> s ft* A 4) s >> a s* 125 I >z; 3 j2 ««-i • jSg o >> H? 05 1 S ^ 1 5 I P a* . f.. c. 176.] DEBENTURES REGISTRATION ACT. 885 s .2 I .■3 J* .S C a I 32 ^-^ I 1 i O g of -I s '1 rS'i 'U g PS ^B ■S3. •*> S 9 u m Is rt^ 3 o H ;.3. S P4 1 e ,s« -is I 1 DC H I— I I— t PQ 3| ;:3 Si »5 111 I' ■ i I- ir, 1 •■< 88G THE MUNICIPAL MANUAL. [R. S. 0. An Act respecting Public Meetings. p: i m < 11. H. O. Cai'. 177. Puhlic MeotingH dofinod, hh. 1-.3. Wliat noticuH i-c(^uire(l to coiiHti- tute, HH. 4-8. Sheriff, Mayor, or MngiHtratcH to atttiixl rncutinK, h. 9. Order of procoecuiigs at, b. 10. TowtirH of Chairtiiuii, mh. 11, 12. SjXicial coiiHtabloH, 8. 13, & C. S. C. c. 82, H. 14. Limitation of actioiiH for tbiiigs donu uudor thiu Act, h. 14. I'rovJHionH of C. S. C. c. 82. .?«; I)l>. H{K)-8U2. MagiHtratoH may diHiirm per. HOII8, H. I.'). WottpojiH to bo returiitd, hh. H!, 17. Kattcry, how imiiinhable, a. 18. No anim to bo carried, h. VJ. Lying in wait, do. 8. 20. PreamWo. TT boing the nndoubtod right of Her MajoHty's 8ul)j(ict.s to I mvAit togfitlier in ii peiicf^iiljlo iuid orderly manner, not only when roqiiirod to do s>» in compliiinco with th• or other chief niiniicinal officer of any HUch (.'ity or Town *'">'»>?''>• r('H[»(i in the form Notice. or to the effect following : And l(c it known, that tbc meeting to he held in pursuance hereof i« called in conformity with the provisioim of Chapter 177 of " T/ie R'rlHvl Statiitea of Onlarin" entitled "/!« Act reiqier.tmj Puhlic Mtdiaij»;" and that the said Meeting and all persona attending the ;i ■ '<:; ,• . i ' \Ht ... ! I? h I t. m^ 888 THE MUNICIPAL MANUAL. [K 8. 0. •amo will thoroforo Ixi within tho pnttuotinn ot tlid iniil Act, of all which prominoii, all iiiannvr uf nurMuiiH are hurt-by in Ilur Mnjcity'i namu most Htriotly charged ana cummanded, at their iKjril, to tako eaiMJcial notice, and to govurn thomivlvoH accordingly. , C. 8. C. c. H2, H. 4. Hannor of 6. Tho notice to Ik) ifwued l»y tho Shoriff of any County, nitoUniS ^^ ^y ^^® Mayor or other chit-f iniinicipal officer of any City •»ii«»*>y or Town, or by two or more JuHtices of tho Pcaco, forcallinj^ within*(he ' 'I'Dy Huch public mooting txa in the Hccoud ucction uf thJH Act SSI Act" °' ^ raeiitionod : 1. Shall 1)0 isHued at least three days before tlio day npon which such meeting iH ajtpointed to \)e held; and-8)iall 8et forth (a) The names of the roquiHitionistH, or of a coinpf!t<'ut number of them ; (b) That Buch meeting is called in conformity with tlie provisions of this Act ; and (c) That sucli meeting, and all jKjrsons attcndinj,' the same, will bo within the prot(;ction of this Act, and that all pci-smis are required to take notice thereof and govern thciusolves accordingly. 2. Such notice may be in tho form or to the effect of Schedule A to this Act. C. S. C. c. 82, s. 5. By private g, Ui)on information on oath, before any Justice of the within the Poaco, that any public meeting of the inhabitants, or of any [1^,°'^''^"*"' °' particular class of the inhabitants of any District, County, Riding, City, Town, Township or Ward, not being a pihlic meeting of the description mentioned in the first section of this Act, or a public meeting called in the manner referred to in the second section of this Act, is appointed to be held at any place within the juiisdiction of such Justice, ani that there is reason to believe that great n\imbe''s of jiersojs will be present at such meeting : any two Justices of the Peace having jurisdiction within the District, County, City oi Town within which such Meeting is appointed to be held, nuy give notice of such Meeting, and may declare the same, aiul declare all persons attending the same, within the protection of this Act, and require all persons to take notice thereof and govern themselves accordingly, and such notice or deciar-ition may lie in tho form of Schedule B to this Act. C. S. C. c. 82, s. 6. P n* M [K 8. 0. mill Act, of all Her Majeuty'i r iKiril, to takt) r c. 82, H. 4. ' any County, iv of liny City iicff, for colling ill of tliis Act 3 tho (liiy upon and-Hhall net )f a coiniHjtciit mity with the idinj,' the Hnme, that all pcrsnnH orn thciiisolves ;o the effoct of Justice of the [ants, or of any [istrict, County, l)eing a pihlic first section of launor referred lied to be held jstice, anl that of ])ersojs will ;s of the Peace r, City 01 Town held, mty give [the sanie, and L the protection iico thereof and le or dec arxtion ct. C.S. C.c. C. 177.] PUBLIC MERTINUS. 889 7. Every ShoriflT, Mayor, JiiHticu of tho Pcaco, or otlior Pinriff or |iertion who calJH any Huch puhlio iiux^tiiig aH in mentioned in nlinnR*!'iMt.' tho Hecond station of thin Act, ahall give public* notico thereof, '""',",■, ^ as extiinaivjily hm ho reasonably can, by causing to be posted Kivtimruiu ami distributed throughout tho District, County, Hiding, City, »"*'"•■• Town, Township or Ward for which the Hame is called, a Builicient nurnl)er of printed or written copies of tlic notico calling tho uimo. C. S. C. c. 82, h. 7. 8. The Justices of the Peaco who declare any public meet- Ju»ticoi do- ing about to be held to be a public meeting within th(» i)ro- inK»toSl'* tection of this Act, as in tho third section of this Act *'|,'''" i'™- mentioned, shall give public notice of its having been so Act to Kive declared, by causing to be ^tosted and distributed throughout no\'^" the District, County, Riding, City, Town, Township, or Ward for which tho samtj is so called, jus many jirinted or written copies of the notice or declaration issued by them in that behalf as may bo reasonably necessary for that pur]>os«!, and as the time appointed for tho holding sucri meeting reasonably admits. C. S. C. c. 82, s. 8. 9. Every ShoriflT, Mayor, Justice of tho Peaco, or other simrjff" and persou who either calls any public meeting under tho i)ro- ing ana visions of the second section of this Act, or declares any f,"cj|*|n^*^ meeting called by others to be a public meeting within the under tbii protection of this Act, under the provisions of tlie third section th^ 1^ * *" hereof, shall attend such meeting, and whether such Sheriff, Mayor, Justice of the Peace, or other person is appointed by such public meeting to take the chair and preside over the same, or not, every such Sheriflt, Mayor, Justice of the Peace, and other peraon shall continue at or neur tho place appointed for holding such public meeting, until the same has disperaed, and shall aflford all such assistance as is in his power in pre- sei-ving the public peaco thereat. C. S. C. c. 82, s. 9. 10. Every person required by law, or who has, in tlie usual way, been appointed at such j>ublic meeting to preside over the same, shall commence the proceedings of the meeting by causing the summons or notico calling the meeting, or the declaration whereby the same is declared to be a ])ublic meet- ing, under the protection of this Act, to be publicly read. C. 'S. C. c. 82, 8 10. 11. Any person required by law, or who has been appointed at such meeting in the usual way to preside over the same, shall cause order to be kept at such meetings, and for that 112 I mm«. C'tiairmiin to read rntiuiai- tion and make pro- clamntion for the preuervft. tlon of order. Chairman to remove dis- orderly per- J; PS;' I 890 THE MUNICIPAL MANUAL. [R. S. 0, 1^1: J ' lit; I B\ I, ■onR, and oouTict on Tiew of disturbance. purpose may, by oral direction or otherwise, cause any jjerson who attempts to interrupt or disturb such meeting to be re- moved to such a distance from the same as may effectually prevent such interruption or disturbance, and by an instru- ment in writing xinder his hand, on his own view, may- adjudge any person who so attempts to interrupt or disturb such meeting guilty of such attempted interruption or disturb- ance, upon which conviction any Justice of the Peace may, by warrant under his hand, forthwith commit such pereon to the Common Gaol of the County or District, or to any other place of temporary confinement that such Justice may appoint, for any period not exceeding forty-eight houi-s from the time of commitment signed, and until the lawful costs of the constable and gaoler for the arrest, transmission and deten- tion -^f such person are paid or satisfied. C. S. C. c. 82, s. 11. 12. i-r the purpose of keeping the peace and preserving good order at every such public meeting, the person required or appointed to preside at such meeting as aforesaid may com- mand the assistance of all Justices of the Peace, constables, and other persons to aid and assist him in so doing. C. S. C. c. 82, s. 12. 13. Any Justice of the Peace present at any such meeting, upon the written application of the person so required or appointed to preside at the same, shall swear in such a num- ber of special constables as such Justice may deem necessary for tlie preservation of the public peace at such meeting. C. S. C. c. 82, s. 13. 14. Every action to be brought against any person for any- thing by him donj under authority of this Act, or chapter eighty-two of the Consolidated Statutes of Canada, must be brought within twelve months next after the cause of sucli action accrued. C. S. C. c. 82, s. 21. [Sections li to 20 of C. S. C. c. 82, enact as folloics: — Persons of 14. If any person between the ages of eighteen and sixty, upon certain ages being required to be sworn in as a special constable by any Justice refusing to q{ ^j^g Peace, upon any such occasion, omits or refuses to be sworn, unless for some cause to be allowed by such Justice at the tiiuo, such person shall be guilty of a misdemeanor, and such Justice may there- upon record the refusal of such person so to be sworn, and adjudge limi to pay a fine of not more than eight dollars, which fine shall be levied and made by the like process as other fines imposed by sum- mary proceedings before Justices of the Peace, or such person may be proceeded against by indictment or information as in other cases of misdemeanor. 7 V. c. 7, s. 14. To call on Justices of the Pence, coo stables, &c., for assistance. Justices to Bwear in upccial con- stables on requisition ofChairman, Actions to be brought within 12 montba. be sworn in, guilty of a misdemean- or. 177.] PUBLIC MEETINGS. 891 jause any person leeting to be re- may effectually id by an instru- own view, may srrupt or disturb iption or disturb- tlie Peace may, mit such pei-son istvict, or to any such Justice may eight houi-s from lie lawful costs of nission and deten- , S. C. 0. 82, s. 11. een and sixty, upon lable by any Justice refuses to be sworn, lice at tbe time, such ;h Justice may there- sworn, and ailjudge ■which fine shall be lea imposed by sum- or such person may tion as in other cases i5. Any Justice of the Peace within whose jurisdiction any such Justices of meeting is appointed to be holden, may demand, have and take, of the Peace and from any person attending such meeting, or on his way to attend r^^jgon'!*""* the same, any offensive weapon, such as fire-arms, swords, staves, bludgeons or the like, with which any such person is so armed, or which any such person has in his hands or possession ; and every such person who iipon such demand declines or refuses to deliver up, peaceably and quietly, to such Justice of the Peace any such offen- sive weapon as aforesaid, shall be deemed guilty of a misdemeanor, and such Justice may thereupon record the refusal of such person to deliver up such weapon, and ail judge him to pay a fine of not more than eight dollars, which fine shall be levied and made by tbe like process as other fines imposed by summary proceedings before Justices of the Peace, or such person may be proceeded against by indictment or information as in other cases of misdemeanor, but such conviction shall not interfere with the power of such Justice or any other Justice to take such weapon or cause the same to be taken from such person without his consent and against his will, by such force as may be uecessF, lot that purpose. 7 V. c. 7, s. 15. 16. Upon reasonable request to any Justice of the Peace to whom Weapons to any such weapon has been peaceably and quietly delivered as afore- be returned said, made on the day next after the meeting has finally dispersed, *° V^^^ies in and not before, such weapon shall, if of tbe value of one dollar or "^"^ '" ''"***• upwards, be returned by such Justice of the Peace to the person from whom the same was received. 7 V. c. 7, *: 16. 17. No such Justice of the Peace shall be held liable to return any if accldont- snch weapon, or make good the value thereof, in case the same by a"y lost, &c» unavoidable accident has been actually destroyed or lost out of the possession of such Justice without his wilful default. 7 V. c. 7. s. 17. Persons guilty of battery with- in two miles of the meet- ing to be punished by certain penalties. 18. Any person convicted of a battery committed within the dis- tance of two miles of the place appointed for the holding of such public meeting, and during any part of the day whereon any such meeting has been appointed, to be held, shall be punishable by a fine of not more than one hundred dollars, and imprisonment for not more than three months, or either, in the discretion of the Court, whose duty it may be to pass the sentence of the law upon such person. 7 V. c. 7, s. 17. 19. Except the High Sheriff, Under Sheriff, and Justices of the Nooneto Peace for the District or County, or the Mayor and High Bailiff and approach Justices of the Peace for the City or Town respectively in which any armed with- such meeting is to be held, and the constables and special constables '^ two miles employed by them, or any of them, for the preservation of the public peace at such meeting, no person shall, during any part of the day upoii which such meeting is apiiointed to be held, come within two miles of the place appointed for such meeting, armed with any offen- sive weapon of any kind as firearms, swords, staves, bludgeons or the like ; and any person who offends against the provisions in this section contained shall be guilty of a misdemeanor, punishable by fine not exceeding one hundred dollars, and imprisonment not exceed- ing three months, or both, at the discretion of the Court whose duty it may be to pass the sentence of the law upon such person. 7. V. c. 7, 8. 18. H ^^^HP^« ' mB ^^^l&^ is J^... fl^^B' '^iH HHSb' i'HI'. " j^F ^ ' li' 892 Persons THE MUNICIPAL MANUAL. [R S. 0. guilty of T"«.i\*'**' commit an assault how to be punished. 20. Any peraon who lies in wait for ahy person returning, or expected to return, from any such public meeting, with intent to upon such person, or with intent, by abusive language, opprobrious epithets or other offensive demeanor directed to, at or against such person, to provoke such person, or those who may accompany him, to a breach of the peace, shall be guilty of a misdemeanor punishable by fine not exceedmg two hundred dollars, and imprisonment not exceeding six months, or both, at the discretion of the Court. 7 V. c. 7, s. 19.] SCHEDULE "A." I fiJ' . fc'* {Section 5.) TO THE INHABITANTS OF THE COUNTY OF A. {OT OS the COM may he), AND ALL OTHERS HER MAJESTY'S SUBJECTS WHOM IT DOTH OR MAY IX ANYWISE CONCERN : Whereas I, A. B., SheriflF of, &c., or we, C. D. and E. F., two (or whatever the nnmher may be) of Her Majesty's Justices of the Peace for the County {or District) 'f A., resident within the said County {or District) having received a requisition, signed by I, J, K, L, kc, &c., {inserting the names of at leant twelve of the reinmitionkta and cu many more as conveniently may he, and mentioning the number of the others ; thus) (and fifty-six {or as tlie case may be) others, who (or twelve of whom) are freeholder^ of the said County (or District) (or citizens of the said City) having a right to vote for members to serve in the Legislative Assembly in respect of the property held by them within the said County {or District or City, tfcc, as the case may he), requesting me (or us) to call a public meeting of (here recite the requi- sition) : And whereas I (or we) have determined to comply with the said requisition : Now, therefore, I (or we) do hereby appoint the said meeting to be held at (liere state the place) on , the day of next (or instant), at of the clock in the noon, of which all persons are hereby required to take notice. And whereas the said meeting has been so called by me (or us) in conformity with the provisions of chapter 177 of " The Reviml Stattites of Ontario," entitled "An Act respecting Public Meetinys," the said meeting, and all persons who attend the same, will there- fore be within the protection of the said Act, of all which premises all manner of persons are hereby in her Majesty's name most strictly charged and commanded, at their peril, to take especial notice, and to govern themselves accordingly. Witness my hand (or our hands) at of this , in the day of , 18 . A. B., Sheriff, or C. D, J. P. E. F., J.r. n c. 177.] PUBLIC MEETINGS. SCHEDULE "B." 893- {Section 6.) TO THE INHABITANTS OF THE COUNTY OF A (or OS the COse may he) AND ALL OTHERS HER MAJESTY'S SUBJECTS, WHOM IT DOTH OR MAY IN AKYWISE CO^CERN : Whereas, by information on oath taken before D. E. , Esquire, one of Her Majesty's Justices of the Peace, for the County of C. {or City, or District, {or as the case may be), within which the meeting hereinafter mentioned is appointed to be held, it appears that a Pub- lic Meeting of the inhabitants {or householders, dr., as tlie case may he) of the County of G. {or as the case may be) is appointed to be held at , in the said County {or as tlie case may be), on , the day of next (or instant), at of the clock in the noon, (or at some other hour on the same day), and that there is reason to believe that great numbers of persons will be present at such meeting ; and whereas it appears expedient to us C. D. and E. F., two (or whatever the number may he) of Her Majesty's Justices of the Peace having jurisdiction within the said County (or as tlie tm may be), that, with a view to the more orderly holding of the said meeting, and the better preservation of the public peace at the same, the said meeting, and all persons who may attend the same, should be declared within th«j protection of chapter 177 of "The Revised Statutes of Ontario," entitled '* An Act respectiiuj Pub- k Meetings ;" Now, therefore, in pursuance of the provisions of the said Act, and the authority in us vested by virtue of the same, we, the said Jus- tices, do hereby give notice of the holding of the said meeting, and dohoreby declare the said public meeting, and all persons who attend the same, to be within the protection of the said Act. Of all which premises all manner of persons are hereby in Her Majesty's name most strictly charged and commanded, at their peril, to take especial notice, and to govern themselves accordingly. Witness our hands at ttis day of in the , 18 . of C. E. D., J. p. B., j.p. &c. l! ^ I «94 THE MUNICIPAL MANUAL. [R S. 0. \i ' 'tv An Act to exempt Firemen from certain Local Services. R S. 0. Cap. 178. Formation of Fire Compauies may be authorized j s. 1. And certificates of enrolment granted, 8. 2. Holder exempt from certain cer- vices, s. 2. But certificate may be forfeited, s. 3. Certificate may be granted on seven years' service, ss, 4, 5. Exemptions under, s. 6. 1 Formation of Fire Com' "paniea. Discontinu- anoeor renewal. HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : — 1. It shall be in the discretion of the corporate authorities or Boards of Police in any City or Town, or place in which the formation ot Companies of Firemen is by law authorized and regulated, or, where thei'e are no such authorities or Board, it shall be in the discrection of the Justices of the Peace of the District or CoUnty in which such City or Town is situate, in Gen-^ral Sessions assembled, or the majority of them, to consent to the formation of a Fire Company in such City, Town or place, or to defer the same until circumstances in their opinion render it expedient that such Company sliould be formed ; and they may also, in their discretion, from time to time, discontinue or renew any such Company or Com- panies. C. S. C. c. 87, s. 3. Certificated 2. Whenever any Company or Companies of Firemen have Such Com-** been regularly enrolled in any such City, Town or place, the exempted" corporate authorities, or Board of Police in such City or ftom serting Town, or the Justices of the Peace for the District or County, M jurors, Qj, ^jjg majority of them, as aforesaid, respectively, being I 'f h , c 178.] EXEMPTION OF FIREMEN. 895 maybe forfeited, satisfied of the efficiency of such persons and acceptina; their and from cer- enrolment, shall direct the Clerk of the Peace for the District omcM?"" or County to grant to each member of such Company a cer- tificate that he is enrolled on the same, which cei-tificate shall exempt the individual named therein, during the period of his enrolment, and his continuance in actual duty as such Fireman, from serving as a juryman or a constable, and from all municipal offices. C. S. C. c. 87, s. 1. Such exemp- tion may be takfiii away In case of misconduct on the part of any mem- ber of any such Com. pany. 3. The corporate authorities or Board of Police in any City or Town, or where there ax*e no such authorities or Board, the Justices of the Peace for the District or County, or the majority of them, at any General or adjourned Sessions, upon complaint to them made of neglect of duty, by any in- dividual of such Fire Company^ shall examine into the same ; and for any such cause, and also, in case any individual of such Company is convicted of a breach of any of the rules legally made for the regulation of the same, may strike off the name of any s\ich individual from the list of the Company, and thenceforward the certificate granted to such individual, as aforesaid, shall have no effect in exemptiiig him from any duty or service in the next preceding section of this Act men- tioned. C. S. C. c. 87, 8. 2. 4. When any member of any Company of Firemen, regu- piremcn larly enrolled in any City, Town or place in which the forma- •>*''"« tion of Companies of Firemen is by law authorized and years ex- regulated, has regularly and faithfully served for the space g™P|^ [™™ and term of seven consecutive years in the same, the said ceruiu member shall be entitled to receive, upon producing due proof " ***' of his having served seven consecutive yeara as aforesaid, a certificate from the Clerk of the Peace of the District or County in which he resides, or from the Clerk of the cor- porate body or Board of Police under whose authority the said Company has been established, that he has been regu- larly enrolled and served as a member of the said Fire Com- pany for the space of seven yeai-s ; and such certificate shall exempt the individual named therein from serving as a constable, and from all municipal offices, but this shall not exempt any such Fii'eman from serving as a juryman. C. S. C. c. 87, s. 4. 5. The Municipal Council of any City wherein the forma- Firemen tion of Companies of Firemen is by law authorized and ^rwei term regulated, may, by by-law, enact, that when a member of any y**" •"*'■ t -^ 896 THE MUN7CIPAL MANUAL. [R. S. 0.. tiflcate to that effect. tied to a oer- Company of Firemen regularly enrolled in such City has regularly and faithfully served in such Company for the space and term of seven years consecutively, such member, upon producing due proof of his having so served, shall receive a certificate from the Clerk of the Council of the City or the Clerk of the corporate body under whose authority the Com- pany was established, that he has been regularly enrolled and served as a member of the said Fire Company for the space of seven years. C. S. C. c. 87, s. 5. Suchcertifl- g, Such certificate shall exempt the individual named 3xempt from therein from the payment of any personal statuie labour tax laibou^tax thereafter, and from serving as a juror on the trial of any and from cause in any Court of Law within this Province. C, S. C. jSrorfc^" c- 87,8. 6. [See also, as to exemption of Firemen from jury service,. Eev. Stat. c. 48, s. 7 (31) ; and as to exemption from mtmi- cipal offices. Rev. Stat. c. 174, s. 75.] ■ m n C. 179.] SUPPORT OF DESTITUTE INSAKE PERSONS. 89T An Act respecting the Support of Destitute ^ Insane Persons. R. S. 0. Cap. 179. Accounts of money for maintain- ing destitute insane persons to be laid before Grand Jury of General Sessions, s. 1. Payments for such purposes, s. 2. Witnesses may be called before Grand Jury, s. 3. HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : — 1. The Clerk of the Peace shall once in each year lay cierk of th» before the Grand Jury of the General Sessions of the Peace ^f^ the *^ in each County an account in detail of all sums of money Grand Jury expended during the last preceding twelve months, or neces- ^i^^^ton's sary to be advanced during the next ensuing twelve months, an account for tlie purpose of maintaining and supporting insane desti- nece^ry for tute persons received into the Gaol of the County, and the H^^gn^'"'"'^ said Grand Jury 'nay at such General Sessions present such persons. just and reasonable sum as they in their discretion think necesary for the purpose of maintaining and supporting insane destitute persons, either in the Gaol or some other place within the Coimty, for the year next ensuing the said Sessions ; which presentment shall be made once in each year, and in each year the like account in detail of the moneys ex- pended during the past year shall be laid before the Grand Jury as aforesaid. C. S. U. C. c. 122, s. 1. 2. The Chairman of the General Sessions may, from time The sum of to time, issue his warrant for the payment of such sum of ^n^*a ^o*l» money to the amount, but not exceeding the .amount, so pre- p«w by the sented, and such money shall be payable by the Treasurer of the County out of the moneys of the County in his hands and unappropriated, and the account so laid before the Grand 113 « n !^)7.. i ; If F 898 WitnMiM maybe nimmonad belbra the <}rand Jury. THE MUNICIPAL MANUAL. [R. S. Q, Jury from time to time, so far as the same has been approved of, and the said warrant, shall be a sufficient discharge and indemnity to all persons conceraed in the expenditure of such sum of money. C. S. U. C. c. 122, s. 2. 3. The Courts of General Sessions respectively shall from time to time, by writ of subpoena, call before them any per- son required by the Grand Jury, and shall swear such pei-son in open Court true answer to make to all such questions as may be asked of him by the Grand Jury, touching and con- cerning insane destitute persons in the County, and their maintenance and support, and every such pei-son shall be examined on the said oath before the Grand Jury. C. 0. 122, s. 3. C. S. U. An Act to regulate Travelling on Public High- ways and Bridges. R. S. 0. Cap. 183, ■ f m h : Highways : Vehicles meeting, s. 1. Overtaking and passing, ss. 2-3. Penalty for driving when intox- icated, s. 4, For furious driving or bias- STiemy, s. 6. bells necessary, a. 6. Bridges : Notice to be put up on, s, 7. Penalty for defacing, s. 8. Fast driving on prohibited, s. 9. Penalties : How recoverable, ss. 10-12. Recovery of not to prevent a civil action for damages, s. 13. Application of, s. 14* HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : — . HIGHWAYS. mSSnSTto !• ^^ ^^ *°y P^^oJi travelling or being upon any high- •drive to the way in charge of a vehicle drawn by one or more horses, or it c. 183.] PUBLIC HIGHWAYS. 899 one or more other animals, meets another vehicle drawn as right, kIj^ aforesaid, he shall turn out to the right from the centre of ' the road, allowing to the vehicle so met one-half of the road. C. S. U. C. c. 56, 8. 1. 2. In case any peraon travelling or being ujwn any high- Carrioj^ way in chai'ge of a vehicle as aforesaid, or on horaeback, is turn to th« overtaken by any vehicle or horseman travelling at greater '*«'**• speed, the person so overtaken shall quietly turn out to the right and allow the said vehicle or hoi'seman to jinss. C. S. U. C. c. 56, s. 2. 3. In the case of one vehicle being met or overtaken by if the w«igh another, if by reason of the extreme weight of the load on theiuV«». either of the vehicles so meeting or on the vehicle so over- "on*" *•»*■• taken the driver finds it impracticable to turn out as afore- said, he shall immediately stop, and, if necessary for the safety of the other vehicle, and if required so to do, he shall assist the pei*son in charge thereof to pass without damage. C. S. U. C. c. 56, s. 3. 4. In case any person in charge of a vehicle, or of a horse Penalty on or other animal used as the means of conveyance, tmvelling too^Srunkto or being on any highway as aforesaid, is through dioinkenness managetheir unable to drive or ride the same with safety to other persons travelling on or being upon the highway, he shall incur the penalties imposed by this Act. C. S. U. C. c. 56, s. 4. 5. No person shall race with or drive furiously any horse RacinB, or other animal, or shout or use any blasphemous or indecent Stct^fegh language upon any highway. C. S. U. C. c. 56, ss. 5 & 6. waj^, for- 6. Every person travelling upon any highway with a sieigh honM sleigh, sled or cariole, drawn by hoi-se or mule, shall have at toJ^v^^i*"* lea.st two bells attached to the hai-ness. C. S. TJ. C. c. 56, S.7. BRIDGES. Every person who has the supenntendence and manage- Notice to b« J ^ .. _ . r . . . o — tedatthw ment of any bndge exceeding thirty feet in length shall cause Kddges*to to be put up at each end thereof, conspicuously placed, a notice 7^'"» ^i**" legibly pnnted m the following form : " Any person or persons riding or driving on or over this bridge at Form of. ^ faster rate than a walk will, on conviction thereof, be subject to a tine, as provided by law." C. S. U. C. c. 56, 8. 8. • 900 THE MUNICIPAL MANUAL. [R. S. 0. Ptnaityon 8. In case any peraon injures, or in any way interfercH ieScin'gsuch ^i^h such notice, be shall incur a fine of not less than ouo noticfc nor more than eight dollars, to be recovered in the same manner as other penalties imposed by this Act. C. S. U. C. 0. 56, s. 9. ow bIid'"B ®' ■'^' ^^^^"^ ""^^ notice continxies up, any pci-son rides or ibrbiadsn. drives a horse or other beast of burden over such bridge at a l)ace faster than a walk, he shall incur the penalties iuipowjd by this Act. C. S. U. C. c. 56, s. 10. To be en- foreed by diatreM, RECOVERY AND APPLICATION 01' PENALTIES. Penalty for 10. In cases not otherwise sjjecially provided for, if any Sg thirAct. pf^J^on contravenes this Act, and such contravention is duly j)roved, by the oath of one credible witness, before any Justice of the Peace having jurisdiction within the locality where the ofience has been committed, the otfemler sliull incur a penalty of not less than one dollar nor more than twenty dollai-s, in the discretion of such Justice, with costs. C. S. U. C. c. 56,8. 11. 11. If not paid forthwith, the penalty and costs shall be levied by distress and sale of the goods and chattels of the offender, under a warrant signed and sealed by the convicting Justice, and the overplus, if any, after deducting the penalty and costs and charges of sale, shall be returned, on demand, to the owner of such goods and chattels. C. S. U. C. c. 56, s. 12. 12. In defixult of payment of distress the offender shall, by warrant signed and sealed as aforesaid, be imprisoned in the Common Gaol for a period of not less than one day nor more than twenty days, at the discretion of the Justice, unless such fine, costs and charges ai'e sooner paid. C. S. U. C. c. 56, s. 13. 13' No such fine or imprisonment shall be a bar to the recovery of damages by the injured party before any Court of competent jurisdiction. C. S. U. C. c. 56, s. 14. 14. Every fine collected undef this Act shall be paid to the Treasurer of the local Municipality or place in which the offence was committed, and shall be applied to the general purposes thereof. C. S. U. C. c. 56, s. 15. Or by Im- prisonment. Not to bar aciion for damages. Application penal tie*. pi'! c 184.] EXEMPTION FROM TOLL. 901 An Act exempting certain Vehicles, Horses and other Cattle from Tolls on Turnpike Roads. R. S. O. Cap. 184. Exemptions : Volunteers, s. 1. Persons going to Divine Service, s. 2. Persons owning farms divided by toll road, s. .3. Persons drawing manure in cer- tain cases, s. 4. Act not to apply to certain bridges, 8. 5. HER MAJESTY, by and with the advice and conHent of the Legislative Assembly of the Province of Ontario, enacts as follows : — 1. Officers, non-commissioned officers and m«n of the Kxemption Volunteers, being in proper staff or regimental uniform, dress cer'uincMMl or undress ; and their horses (but not when passing in any hired or private vehicle, unless when on duty or jnoceeding to or from the same), shall be exempt from the payment of any duty or toll on passing any turnpike or toll-gate, or any road, wharf or landing-place or bridge in this Province. 27 V. c. 3, s. 20. 2. All pei*sons going to or returning from Divine service Perwin on any Sunday or obligatory holiday, in or upon and with ^etufninK' their own carriages, horses or other besxsts of draught, and from divino also their families, and servants being in or upon and with emptedfroia such carriages, horses or other beasts of draught, shall ])ass *"''• toll-free through every turnpike or toll-gate on any turnpike road through which they may have occasion to pass, whether such turnpike road and the tolls thereon belong to the Pro- vince, or to any local or Municipal authority, or body of trustees or commissionera for local purposes, or to any incor- porated or unincoii)orated Company, or to any other body or person. C. S. C. c. 86, s. 1. i i , >■■<:■* ':: 902 Mttitt, &«., eroMring toadt when a farm dl*idMl by the road, exempt from toil— when. THE MUNICIPAL MANUAL. [R. S. 0. 3. No vehicle, ladoii or unluden, and no liorsos or cattle belonging to the proprietor or occupier of any IjuuIh divided by any turnpik'.) rond, Hhall bo liable to toll on paKsing tluoitgh any toll-gate on Huch road (at whatever di«tanco tlu; .mwi may 1)0 from any City or Town) for the Hole purpose of f,'«]iii<( from one j)art of the lands of Hiich proprietor or occupier to another part of the Hamo : Provided such vehicle, horwfs or cattle do not proceed more than half a mile along hucH turn- pike road, either in going or in returning, and are UHJng flucli road for farming or domestic puqwses only. C. S. C. c. 86, Da ^t TohiciM, &c, 4. Every vehicle hulen solely with manure, brought from laden with ^^^y City, Town or incorporated Village in this Province, and citli lea and towns ex- empt flrom toll. manure pau- _ . ,. , from employed to carry manure into tlie country parts tor the pur- lH)8e8 of agriculture, and the hoi-se or horses, or other beast of draught, drawing such vehicle, shall pass toll free through every turnj)ike-gate or toll-gate on any turnpike or macada- mized road within twenty miles of such City, Town or incor- porated Village, as well in going from such City, Town or incorporated Village, as in returning thereto, if the vehicle is then empty. C. S. C. c. 86, s. 3 j 32 V. c. 40, s. 1. This Act not 6. This Act shall not extend to any toll bridge, the tolls oertafn*^ on which are vested in any pei-son other than the Crown. C. bridge.. s. C. c. 86,8. 4. li". »-♦' 11 :; : '. n C. 135.] DOUULB TRACKS IN SNOW ROADS. 903 ,1 An Act respecting Double Tracks in Suow Roads. R. S. 0. Cap. 185. Interpretation, a. 1. County Counuil may pass by-law for double track, s. 2. Nature of tracks, s. 3. Bight of roa' t*>« number of horees or other animals, as the case may bo. 36 " team." V. 0. 46, s. 8. 2. The County Coimcil of ^ach County may provide by by-law for the making of a double truck, during the season of sleighing in each and every year, upon such public or leading roads within the County, whether county roads or not, as such Council deems advisable. 36 V. c. 46, s. 1. 3. Whenever a County Council has passed such a by-law, the double track to be made shall be so made that teams shall be able to pass withoitt being obliged to turn out when meeting each other. 36 V. c. 46, s. 2. 4. The right hand track shall always be that in which a Right of team shall be required to travel, and if any pei-son is driving "***• his team in the wrong track, it shall be his duty to leave the same whenever he meets another team rightfully en^Hled to use such track. 36 V. c. 46, s. 3. County Council may pus by-taws for maklDg doable tracks on road I during sleighing st^asOD. Nature of traolu. ■il 904 Duties and powers of path-mas- tors or road- masters. If township refuse to make tracks, county may do so and impose a rate. Her. Stat. c. 180. Penalty for persona refusing to work under path- masters. Penalty for traTelling on left hand troick and refusing to turn out. THE MUNICIPAL MANUAL. [R S. 0. 6> A Cotmty Council may also provide by by-law that Path-niastoi-s ap))ointed by Township Councils shall cause the roatls on which double tmcks are to be made to be kept oikju for travel within their respective Municipalities, or in the event of there being no such Path-mastei-s available, may appoint Road-masters to perform that duty ; and such Path- masters or Road-mastera shall have full power to call out persons liable to perform statute labour, to assist in keepinfj ojien such roads within their respective Municipalities, and may give to such peraons as u..a,y be employed in so doing, certificates of having performed statute labour to the amount of the days* work done, and such work shall be allowed for to such persons in their next season's statute labour ; and such County Council may also provide for the application by such Township Council of so much of the commutation of statute labour fund aa may be necessary for the keeping open such roads as aforesaid within their respective Munici- palities. 36 V. c. 46, 8. 4. 6. In the event of a Township Council noglecting or re- fusing to keep such roads open for travel as mentioned in the next preceding section of this Act, the County Council sliall be entitled to do so", and to impose uj>on the Township so in default a rate sufficient for that purpose, and such rate shall be levied and collected in the manner provided by *' l^he Assessment Act " aa to the collection of County rates. 36 V. c. 46, s. 5. 7. Any person who is liable to perform statute labour, and refuses or neglects to turn out and work iinder any Path- master or Road-master who warns him out for that purpose under the authority of this Act, shall be liable to a tine not exceeding twenty doUai'S, nor less than one dollar, over and above costs, and in case of non-payment, to imprisonment for a term not exceeding twenty-one dnya. 36 V. c. 46, s. 6. 8. Any pei-son travelling in the wrong or left hand track, and refusing or neglecting to leave the same when met by a person who is travelling therein with his team as of right, shall be liable to a penalty of not less than one dollar, nor moi-e than twenty dollars, over and above the costs of j)rose- cution, and in case of non-payment, to imprisonment for a term not exceeding twenty-one days. 36 V. c. 46, s. 7. ,c. 18G.] USE OF ENGINES ON UIQIIWAYS. 905 An Act to authorize and repulate the use of Traction Engines on Highways. R. S. 0. Cap. 186. Traction Ki)ginea may be iised on Highways, b. 1. Conditions : Weight of engine, 8. 2. Speed, 8. 3. ^y idth of wheels, s. 4. Meeting and passing, as. 5-G. Lights to 1)6 carried, s. 7. In Cities and Towns, s. 8. Exclusion from certain streets in Cities and Towns, s. 9, Bridges on non-toll roads to be strengthened, s. 10. On toll roatls : — Notice to toll-keepers, s. 1 1. Subsecjnent proceedings, as. 12- 13. Tolls leviable, s. 14. Arbitration in case of disjtute, 8. 14. Collection of tolls, s. 15. Penalty for contravening of this Act, s. 16. How enforced, ss. 17-18. Appropriation of i)enalties, s. 19. No bar to civil suit, s. 20. Rev. Stat. c. 152, s. 2, made appli- cable to Traction Engine Cos., a. 21. HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts sis follows : — 1. It shall be lawful for any person to employ traction Traction engines for the conveyance of freight and j)assengers, or both, ??''u°f* **" over any j)iiblic highway in this Province, subject to the provLsions hereinafter contained. 31 V. c. 34, s. 1. GENERAL CONDITIONS. 2' No traction engine, so employed, siiall exceed i i weight weight twenty tons. 31 V. c. 34, s. 2. 3. The speed of any traction engine shall at no tinie exceed Speed the rate of six miles per hour, and in Cities, Towna and In- coi-p orated Villages, the rate of three miles per hour. 31V. c. 34, s. 3. 114 906 THE MUNICIPAL MANUAL. [R. s. a. 14 il .ri * , '* I ( Width of wheels. 4. The width of the driving wheels of all such engines shall be at least twelve inches, and the wheels of the trucks or waggons drawn thereby shall be four inches in width for the first two tons capacity, load and weight of tnick included and an additional half inch for each further ton. 31 V. c 34, s. 5. 5. The provisions of Tlie Act to Regulate Travelling m Public Highways and Bridges shall be applicable to the nm- ning of any traction engine upon the highway. 31 V. c. 34, s. 6. 6. In case of any difficulty, or the prospect of any diffi- culty in the meeting or passing of an engine w\ion the high- way by any mounted hoi-seman or vehicle, it shall be the duty of the engine driver to stop the engine, and in every reasonable way to assist such mounted hoi-seman, or the per- son in charge of such vehicle, to pass the engine. 31 V. c, 34, s. 7. Lights to be 7. Every engine nin after dark shall carry a bright red Sirk! " ' light in a conspicuous place in front, and a gi'een light on the rear of the train. 31 V. c. 34, s. 8. Bev. Stat. c. 183 ftpplicable. Horsemen or Tebiclea meetings or passing en- gine to stop. Running through a city, town, Traction engines may he excluded from curtain streets, but not entirely from passing through a munici- pality. Panics running •ngines to IN CITIES AND TOWNS. 8. No engine shall be mn through a City, Town or Village unless a messenger is sent at least fifteen and not more than thirty rods in advance, cari_/ing a red flag by day and a bright red light by night 31 V. c. 34, s. 9. 9. In case the Municipal Corporation of any City or Town deems it necessary to exclude traction engines from tlie right to pass through any particular street or streets within the Municipality, it shall be lawful for such Corporation to apply to the Judge of the County Court of the Cotinty within which the Municipality is situated, and such Judge shall direct notice to be given to the owner of the engine, and upon the return of such notice may, in his discretion, make or re- fuse an order to prevent or regulate the running of engines upon certain streets : but it shall not be lawful under this section so to exclude the engines from any streets as entirely to prevent their passage through the Municipality by the then existing opened streets. 31 V. c. 34, s. 10. BRIDGES TO BE STRENGTHENED. 10. Before it shall be lawful to run such engines over any highvv^ay whereon no tolls are levied, it shall be the duty oi c 186.] USE OF ENGINES ON HIGHWAYS. 9or nan, or the per- the person or persons proposing to run the same to strengthen rtrengthen at hU or their own expense, all bridges and culverts to be '"*'^8"'' ^^ crossed by such engines, and to keep the same in repair so loDg as the highway is so used. 2. The costs of such repaii-s shall be borne by the ownere Owners of of different engines in proportion to the number of engines «i-?5.^L run over such bridges or culvei-ts. 31 V. c. 34, s. 4. contribute. SPECIAL PROVISIONS AS TO TOLL ROADS. 11. Before it shall be lawful to run a traction engine over Notice before c,ny highway upon which a toll is established, it shall be the ^^^^^ Juty of the pers m proposing to run the same, to leave a notice in writing to that effect with the keeper of any toll- gate on such road, at least two months previous to the run- ning of such engine, and such notice shall also contain a con-ect statement of the weight of the heaviest engine pro- posed to be used. 31 V. c. 34, s. 11. 12. The owner or ownera of such toll roads, within two Owners of months after the delivery of such notice as aforesaid, and Itrengthon upon receiving security to the amount of the cost of required bridges, &c> improvements, may cause all bridges and culverts \ipou the said road to be so strengthened as, in the opinion of the County Engineer of the Dounty in which any such bridge or culvert is situated, to ren ler the same safe for the constant passmg of such engines. 31 V. c. 34, s. 12. 13. In the event of the ownei*s of such toll roads neglecting if they do or refusing to comply with the requii-ements of the last pre- "°*' ***°*" ceding section, it shall be lawful for the parties about to run may do tJ»e such engines themselves to do the necessary work at their own ](,"mbur8^ expense ; such outlay tc be repaid to them by the remission out of toiiK of tolk upon the passage of engines !\nd trains through the p'tes upon such road. Until the whole of such outlay is repaid. 2. Such works shall be performed to the satisfaction of the ^ork to be County Engineer or other officer appointed for that i)uq)ose donetosatu- ty the Mimicipality within which the highway or the greater county part thereof is situated. 31 V. c. 34, s. 13. Engineer. U. The owners of such toll roads may levy such tolls as Toils. may be imposed by them upon the passage of any engine or truck through every lawful gate ; and if the owner of the Provision for «iigine is dissatisfied with the mte of toll, the same may *'*»''"»"<»'' ^ referred to the decision of thi*ee Arbitrators, one of whom •t 'i if I ' '908 THE MUNICIPAL MANUAL. [R. S. 0. Collection of tolls. shall be nominated by the owner of the engine, and one by the proprietors of the roatl, and the two so appointed shall choose a third, and the decision of the said Arbitratoi-s or the majority of them shall be binding ; and in the event of the two Arbitrators fii'st appointed as aforesaid failing or neflectin" within one month to appoint a third Arbitrator as herein provided, then the appointment of such third Arbitrator may be made by the County Judge of the County within which the said tolls are to be collected. 31 V. c. 34, s. 14. 15. It shall be lawful for the owners of any such road to enforce the payment of the aforesaid tolls in the manner jiro- vided by law for the collection of the ordinary tolls upon such roads. 31 V. c. 34, s. 15. PENALTIES. M :.: I To be enforced by distress. Penalty for Jg. If any pei*son contravenes this Act, and such coutra- ing Act. ' vention is duly proved by the oath or one credible witness before any Justice of the Peace having jurisdiction within the locality where the offence has been committed, the offender shall incur a penalty of not less than five dollars, nor more than twenty-five dollars, in the discretion of such Justice, with costs. 31 V. c. 34, s. 17. 17- If not paid forthwith, the penalty and costs shall lie levied by distress and sale of the goods and chattels of the offender, imuer a wai'rant signed and sealed by the convict- ing Justice, and the overplus, if any, after deduoiiuj; the jienalty and costs and chai-ges of sale shall be returned, on demard, to the owner of such goods and chattels. 31 V. c. 34, s. 18. Or by im- 18- In default of payment or distress, the offender shall, prisonment. y^^ warrant signed and sealed as aforesaid, be imprisoned in the Common Gaol for a period of not less than one day nor more than twenty days, at the discretion of the Justice, unless su?h fine, costs and charges are sooner paid. 31 V. c. 34, s. 19. IP Every fine collected under this Act shall be" paid to the Treasurer of the local Municipality in which the offence was committed, and shall be applied to the general purposes J thereof. 31 V. c. 34, s. 21. 20. No fine or imprisonment under this Act shall J bo a bar to the recovery of damages by the injured party! ApT'lication offlnes. Eecovery of damages. V' 187.] PLANTING TREES IN HIGHWAYS. 90»> before any Court of comijetent jurisdicton. 31 V. c. 34, 8. 20. 21. Section two of " T/te General Road Companiea Actg" rot. stat. «,. shall apply to Companies established for manufacturing or l^^yl ^' *** purchasing traction engines, and working the same. 31 V. c, 34, s. 16. . _ V • An Act to encourage the Planting of Trees along Highways. R. S. 0. Cap. 187. "Highway " defined, s. 1. Application of the Act in the case of cities and towns, s. 2. Property in trees on highways, s.3. Planting trees, s. 4. Injuring trees, s. 5. HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, eniicts as follows : — 1. Tie word ** highway," whenever it occurs in this Act, interpreta- shall be held to mean and include any public highway, street, ^o°,i°^ **'® road, lane, alley, or other communication, as well as any "highway." public place or square. 34 V. c. 31, s. 6. * 2. Sections three and four of this Act shall not apply to By-law incorporated Cities, Towns and Villages, unless the Council ni^akeTws*** tliereof first passes a by-law making the same apply thexeto. •Ac' apply to 0( IT _ oi a cities and ol V.C. 01, S. D. towns. 3. For the purpose of this Act, every shade tree,. shrub and Property of sapling now growing on either side of any highway in this ^^^^ °^ Province shall, upon, from and after the passing of this Act, vested in the be deemed to be the property of the owner of the land ?,'^^^,°^3f " adjacent to such highw^ay opposite to which such tree, shrub or sapling is. 34 V. c. 31, s. 1. ii:li ■fi'.' ■ p¥) i no THE MUNICIPAL MANUAL. [R. S. 0. U » ;' Planting trees. Property in. Injuring "treefl. 4. Any pereon owning land adjacent to any highway may plant trees, shrubs or saplings on the portion thereof con- tiguous to his land ; but no ti'ee, shiiib or sapling shall be so Elanted that the same is or may become a nuisance in the ighway or obstruct the fair and reasonsable use of the same. 2. Every tree shnxb or sapling so planted in any highway shall f< i' the purposes of this Act be deemed to be the pro- perty of the owner for the time being of the land whose owner planted the same. 34 V. c. 31, a 2. 5. Any pei-son who ties or fastens any animals to any such tree, shrub or iiapling so growing or planted upon any liigh- way, or who injures or destroys, or suffers or |)ermits any animal in his charge to injure or destroy, or who removes any such shrub, tree or sapling, or receives the same knownng it to be so removed, shall, upon conviction thereof before a Justice of the Peace, forfeit and pay such sum of money not exceeding twenty-five dollai-s besides costs as such Justice may award, and in default of payment the same may be levied of the goods and chattels of the person offending, or such person may be impx-isoned in the Common Gaol of the County within which the Municipality is, for a period not exceeding thirty days. Application 2. One-half of such fine shall go to the person laying the *'• information, and the other half to the Municipality within ■which such tree, shrub or sapling was growing. 34 V. c. 31, s. 4. [See also Rev. Stat c. 174, s. 454 (16).] Penalty. c. 188.] CANADA THISTLES. 911 An Act to prevent the Spreading of Canada Thistles. R. S. 0. 188. Occupants of land to cut down Canada thistles every year before maturity, s. 1. Overseers of Highways : To carry out Act in their Highway Divisions, s. 2. To notify land owners, s. 3. And cut down thistles on de- fault of owner, s. 3. To enter on lands of Railway Co. after notice by Municipal Clerk, 8. 4. To return acconnt of expenses to Municipal Council, ss. 5-6. Municipal Clerks to notify Station Masters, s. 4. Expenses of carrying out Act : How paid to Overseer, ss. 5-6, Appeal agaiaut, s. 7. How recovered by Munici- pality, 8. 8. Penalties : For selling seed of Canada This- tle, s. 9. For neglect of duty by Over- seer, 8. 10. How recoverable, a. 11. Application of, s. 11. HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the l:*rovince of Ontario, enacts as follows : — 1. It shall be the duty of every occupant of land to cut or occupanto of cause to be cut down all the Canada thistles gi'owing thereon, '•"<* •» ">* so often in each and every year aa is sufficient to prevent them growing on from going to seed ; and if any owner, possessor or occupier '**•'' '*'"''* of land knowingly suffers any Canada thistles to grow thereon And the seed to ripen so as to cause or endanger the spread thereof, he shall upon conviction be liable to a fine of not less „ . than two nor more than ten dollars for every such offence. 29 V. a 40, s. 1. 2. It shall be the duty of the Oveifeers of Highways in Duty of any Municipality, having first obtained authority from the h^^JilJJJ^g"' Municipal Council of which they are the officers, to see that under thk the provisions of this Act ai'e carried out within their respect- ^^ ive highway divisions by cutting or causing to be cut all the )V * 1'; ki I , "f f.i.. 912 THE MUNICIPAL MANUAL. [R. S. 0. And notify owners. And enter lands on default. Proviso as to lands Hown wltli grain. As to non- resident lands. Cannua thistles growing on the highways or i-oatl allowances within their resi)ective divisions. 29 V. c. 40, s. 2 ; 32 V. c. 41, ss. 1 & 2. 3. Every such Overseer shall give notice in writing to tlie owner, possessor or occupier of any land within the said divi- sion whereon Canada thistles are growing and in danj,'er of going to seed, requiring him to cause the same to be cut down within five days from the sei-vice of such notice. 2. In case such owner, possessor or occuj)ier refuses or neglects to cut down the said Canada thistles witliin the period aforesaid, the said Overseer of Highways shall enter upon the land and cause such Canada thistles to be cut down with as little damage to growing crops aa may be, and he shall not be liable to be sued in action of trespass therefor : 3. But no such Overaeor of Highways shall have power to enter xipou or cut thistles on any land sown with grain, ami where such Canada thistles are growing upon non-resident lands it shall not be necessary to give any notice befoie j)ro- ceeding to cut down the same. 29 V. c. 40, s. 2. railways. OverReer to enter on default. Clerics of 4. It shall be the duty of the Clerk of any Muniei[)rtlity in pauties'to whicli Railway property is situated to give notice in writing warn station to the Station Master of .'?aid Railway resident in or nearest to ™Tdnwn° the said Municipality, requiring him to cause all the Canada raifio!..*'" thistles growing upon the property of the said Railway Com- pany within the limits of the said Municipality to be cut down as provided for in the first section of this Act. 2. In case such Station Master refuses or neglects to have the said Canada thistles cut down within ten days from tin; time of service of the said notice, then the Overseers of High- ways of the said Municipality shall enter upon the j)roperty of the said Railway Company and cause such Canada thistles to be cut down, and the expense incurred in carrying out the provisions of this section shall be ])rovided for in the same manner as in the next following section of this Act. 29 V. c. 40, s. 3. 5. Each Overseer of ilighways shall keep an accurate account of the expense incurred by him in carrying out the provisions of the preceding sections of this Act with respect to each i)arcel of land entered upon therefor, and shall deliver a statement of s\tch expenses, describing by its legal dosciii)- tion the land entere.l upon, and verified by oath, to the Account of expenses to be kept by Oveiseer. And de- liTcred to occupant ot I 1 I ft 188.] CANADA THISTLES. 913 ill have power to with gniin, and pea non-resident lotice liefore pro- ), s. 2. neglects to have n clays from tin; ►verseers of High- pen the property ih Canada thistles carrymg out the for in the same his Act. 29 V. owner, possessor, or occupier of such resident lands, requu'ing re»itiont him to pay the amount. '■"''■• 2. In case such owner, possessor or occupier of such resident n tho owner lands refuses or neglects to pay the same within thirty days ''Jjj""'* *** after such application, the said claim shall be presented to the Municipal Council of the Corporation in which such expense was incurred, and the said Council is hereby authorized and ^.tabu^ required to credit and allow such claim, and order the same overwer. to be paid from the funds for general purposes of the said Municipality. 29 V. c. 40, s. 4. 6. The said Overseer of Highways shall also present to the Expen§e in said Council a similar statement of the expenses incurred by J*^den?°"* him in carrying out the provisions of this Act upon any non- iw>d«' resident lands ; and the said Council is hereby authorized and empowered to audit and allow the same in like manner. 29 V. c. 40, s. 4. 7. If any owner, occupant or possessor, amenable under Appeal the provisions of this Act, deems such expense e^fcessive, an '"'>**^ appeal may be had to the said Council (if made within thirty (lays after the delivery of such statement), and the s..id Council shall determine the matter in dispute. 29 V. c. 40, 8.4. 8. The Municipal Council of the Corporation shall cause A>w exper all such sums as have been so paid under the provisions of Jl^ovemi'by this Act to be severally levied on the lands described in the munici- statement of the Overseers of Highways, and to be collected ^^ ^' in the same manner as other taxes ; and the same when col- lected shall be paid into the treasury of the said Corporation to reimburse the outlay therefrom aforesaid. 29 V. c. 40, 8. 5. 9. Any pei'son who knowingly vends any grass or other Penalty on seed amopg which there is any seed of the Canada thistle "ed mixed shall for every such offence, upon convi'^tion, be liable to a with thistia fine of not less than -wo uor more than ten dollars. 29 V. '** ' c 40, s. 6. 10. Eveiy Ovei-seer of Highways or othor officer who re- penalty on fuses or neglects to discharge the duties imposed on him by Overseer this Aot, shall be liable to a fine of not less than ten nor ws duty, aore than twenty dollars. 29 V. c. 40, s. 7. 11. Every offence against the provisions of this Act shall peco^ery of l*c punished, and the penalty hereby enforced for each pewaities. 115 I ^'■■^ r-* ', . / I' '! 1 1 p." I 914 THE MUmCIPAL MANUAL. [R. S. 0. offence shall be recovered and levied, on Huminaiy conviction, before uny JuBtice of the Peace ; and all fines iminwed hIihII be paid into the treasury of the Muiiicipality in which such conviction takes place. 29 V. c. 40, s. 8. All Couoeiii 12. Any Municipal Corporation in Ontario may authorize rice^ttae °^ the carrying out of the provisions of this Act. 32 V. c. 41, «fthii Act. [See also Rev. Stat. c. 174, s. 461 (15).] tm ■ An Act to prevent the Profanation of the Lord's Day. R. S. 0. Cap. 189. Acts prohibited, ss. 1-6. Sales and purchases on Sunday void, 8. 7. Penalty, s. 8. Appropriation of, s. 9. Summary Convictions : — Procedure, ss. 10-11. Defects of form, s. 12. Imprisonment, s. 13. Limitation of prosecutions, s. 14. Actions, etc., against Officers:— Limitation of, s. 15. Notice of, s. 15. Tender of amends, s. 16. Costs, 8 16. Act not to apply to Indians, s. 17. HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : — • Ko laie to 1. It is not lawful for any merchant, tradesman, artificer, ^''sunday. mechanic, workman, labourer or other pei-sou whatsoever, on the Lord's day, to sell or publicly show forth, or expose, or offer for sale, or to purchase, any goods, chattels, or other persona] property, or any real estate whatsoever, or to do or exercise any worldly labour, business or work of his ordinary ^ordinary galling, (conveying ti-avellei-s or Her Majesty's Mail, by land or by water, selling drugs and medicines, and other works of c. 189.] OBSERVANCE OF THE LORD 8 DAY. 915 necessity and works of charity only excej)te(l). C. S. U. C. KKotpUoo. c. 104, 8. 1. 2. It w not lawful for any [»erHon on that day to hold, Po!iti««i convene or to attend any public political meeting, or to tippling/ tipple, or to allow or permit tippling in any inn, tavern, h^Vtedoii grocery or house of public entertainment, or to revel, or pub- Sundv. Holy exhibit himself in a Htate of intoxication, or to brawl or use profane language in the public streets or ojien air, so as to create any riot or disturbance, or annoyance to Her Majesty's j)eaceable subjects. C. S. U. C. c. 104, s. 2. 3. It is not lawful for any pei-son on that day to play at o»n»M and skittles, ball, foot-ball, racket, or any other noisy game, or to JrohiboS gamble with dice or otherwise, or to run mces on foot, or on horseback, or in caiTiages, or in vehicles of any sort. C. S. U. C. c. 104, s. 3. 4. Except in defence of his property from any wolf or other Hunting Mid ravenous beast or a bird of prey, it is not lawful for any per- * '^ °'* son on that day to go out hunting or shooting, or in quest of, or to take, kill or destroy, any deer or other game, or any wild animal, or any wild fowl or bii*d, or to use any dog, gun, rifle or other engine, net or trap, for the above mentioned puqiose. C. S. XJ. C. c. 104, s. 4. 5> It is not lawful for any person on that day to go out Fi»hiDg. fishing, or to take, kill or destroy any fish, or to use any gun, fishing rod, net or other engine for that purpose. C. S. U. C, c. 104, & 5. 6< It is not lawful for any person on that day to bathe in Bathing, any exposed sitxiation in any water within the limits of any incorporated City or Town, or within view of any place of public worahip, or private residence. C. S. U. C. c. 104, s. 6. 7. All sales and purchases, and all contracts and agree- Saiei and ments for sale or purchase, of any real or peraonal property m^^n"** whatsoever, made by any person or persons on the Lord's Sunday to be f, shall be utterly null and void. C. S. XJ. C. c 104, s. 8. void. 8. Any person convicted before a Justice of the Peace of Penalty, any act hereinbefore declared not to be lawful, upon the oath or aflSrmation of one or more than one credible witness, or upon view had of the offence by the said Justice himself, shall for every such offence bo fined in a sum not exceeding forty dollars, nor less than one dollar, together with the coste W ( i i ! & |,| 'I no Jkpplicatlon ofpenalUoN. JuNtlce to ■uinmon Mcuoed p»rty. Commit- ment. Form of conviction. THE HUMCirAL MANUAL. [R. S. 0. Conviction and oominlt- mcnt not to be void for want of form. and cbai'guH attoiulii.g tbo proceedijigH and conviction. C S U. C. c. 104, H. 7. 9. All Kiuns of money awarded or imposed fis finon or j»rn- altieH, by virtue of this Act, hIiiiII bo paid uh followH, that in to pay : one moioty thereof hIihII be paid to the party cluirg- in^ the olfence in writing before tho Juutice, and the other Tiioity to the Treanurer of the County or City wherein the offence was committed, to be by him accoiinted for in the fi.;me manner uh for other moneys de2>0Hited with or paid uvcr to him. C. S. U. C. 0. 104, h. 18. 10. Where any person has been charged ujwn oath or otherwise, in writing, before any Justice of* the Peace, with anj' oflenco against this Act, the said Justice shall summon the person so charged to appear before him, at a time and place to be named in such summons, and if such jHTson tails or neglects to appear accordingly, thc^n (upon proof of due service of the summons \ipon such person, by delivering or leaving a copy thereof at his house, or usual or last place of abode, or by reading the same over to him i)ersonally) the said J\istice may either proceed to hear and determine the case ex parte, or issue his warrant for apprehending hiich per- son, and bringing him before himself, or some other Justice of the Peace having jurisdiction within the simie County or Municipality ; and the Justice before whom the ])ei'son charged appears or is brought, sliail proceed to hear and deter- mine the case, or the said Justice, on view of the oft'^uce, may verbally order, or if on the complaint of a third party, then may, in writing, order the offender to be at once committed (although it be on the Lord's day) to the Common Gaol of the place, or into other safe custody, there to remain until the morrow, or some other day, according to circumstances until the case be heard and disposed of. C. S. U. C. c. 104, s. 9. 11. The Justice before whom any person is convicted of any offence against this Act, may cause the conviction to be drawn up in the form of the Sciiclule to this Act, or in any other form of words to the same effect aa the case may require. C. S. U. C. c. 104, s. 10. 12. A conviction under this Act shall not be quashed for want of form ; nor shall any wan-ant of commitment be held void by reason of any defect therein, if it is therein alleged that the party has been convicted, and there is a good and valid conviction to sustain the commitment. C. S. U. C. c 104, s. 11. i ) c 189.1 OnSRRVANCK OF THE LORD H DAY. 917 I uj)on oath or ;he Peace, with 3 Bhall smnmon at a time and it" 8\ich person I (upon pvooi of n, l>y delivering ual or hist place I personally) the d determine the ending hiich per- no other Justice same County or lom the ])erson » hear and deter- theofl''Uce,may lird party, then once committed lomraou Gaol of iremain until the •umstaiices until C.c. 104,8.9. is convicted of jonviction to be [a Act, or in a"y !ase may rcqxiive. 13. In defatilt of payment of any fine imposed under this rn dcfknii. Act, together .with the costs attendinff the same, within the f{[2['*'' jteriod hy tin) Justice of the Poaco before whom such convic- tion takes place, sjjecitied for the ))aynient thereof at t"e time of conviction, Buch Jusiicu of the Peace (if he deems it exjie- dicnt so to do) may issuo his warrant, directed to any con- stahle, to levy the amount of such fine and costs within a certain time, to l«j in the sai*l warrant expressjul ; and in case no distress sutHcieut to sati?*fy the amount is found, Uj may commit the offender to the Common Gaol of the County ^^,0'"'*" wherein the offence was committed for any term not exceed- ing three months, unless the tine and costs are sooner paid. C. S. U. C. c. 104, 8. 12. 14. The prosecution for any offence punishable under this r.imitation Act shall be commenced within 0110 month after the commis- proaccution. sionof the offence, and not afterwards. C S. U. C. c. 104, 8. 13 ; 36 V. 0. 10, s. 4. 16. All actions and prosecutions against ony person for >vhore anything done in | irsuance of this Act, shall bo laid and Jj"j"1;^®**» tried in the County where the fact was committed, and sliall tri«a. be commenced within six months after the fact committed, and not afterwards ; and notice in writing of such action, and of the cause thereof, shall bo given to the defendant one month at least before the action, and in any such action the ^fay"pi'2i defendant may ]>lead the general i.s8ue, and give this Act and Bunerai the special matter in evidence at any trial had thereujton. C. S; U. C. c. 104, s. 16. 16. No plaintiff shall recover in such action, if tender of Tender of sufficient amends is made before such action brought, or»if a ""»*'"*■» **"• sufficient sum of money is paid into Court after such action brought by or on behalf of the defendant ; and if a verdict passes for the defendant, or the plaintiff" becomes non-suited, or discontinues any such action after issue joined, or if upon demurrer or otherwise judgment be given against the plain- tiff, the defendant may recover his full costs as between Defendant if attorney and client, and have the like remedy for the same J,'^7e^^u' ^ as any defendant has by law in other cases. C. S. U. C. c. cosu. 104, s. 17. 17. Tliis Act shall not extend to the people called Indians. Nottoextend C. S. U. C. C. 104, S. 19. to Indiana •!* ■* * 1 1 ,1 1 ^m I m\M [R. S. 0. 918 THE MUNICIPAL MANUAL. SCHEDULE. (Seetim 11.) Be it remembered, that on tV.e day of , . in the year of our Loru one thousand eight hundred .\aA at , in the County of {or at the City of as the case may be), A. B., of is convicted before me, 0. D., one of Her Majesty's Justices of the Peace for the said County {or City aa the case may be), for that he the said A. B. did (nimcifij the offence, and the time and place when ami where the same loas com- mitted, at the case may be) ; and I, the said C. D,, adjudge the said A. B., for his oiitence to pay (immediately, or on or before the day of ) the sum of , and also the sum of for costs ; and in default of payment cf the said sums respectively, to be imprisoned in the Common Gaol of the said County (o»' City, aa the caae may be) for the space of months, unless the said sums are sooner paid ; and I direct that the said sum of {the penalty) shall be paid as follows, tint ia to say : one moiety thereof to th3 party charging the offence, '.nd ths other moiety to the Treasurer of tne County {nnming the one in which the offence was committed, or of the said City, aa tfie case may be), to be by him applied according to the provisions of chaptjr one hundred and eighty-nine of •' The Revised Statutes of Ontario,^' entitled "^k Act to prevent the Profanation of the Lord's Day." Given under my hand and seal, the day and year first above mentioned. C. D., J. p. [L.S.] am.] PUBLIC HEALTH. 9I» An Act respecting the Public Health. R. S. O. Cap. 190. I direct that the la follows, tint ia e offence, 'aid the ig the one in ?o/i«cft ■one maybe), to be jtjr one hundred Interpretation, s. 1. Municipalities and PoliceVillages: Who to be health officers of, 8. 2. Power to enter premises, s. 3. And order cleansing of, s. 4. And cleanse on default of owner or occupant, s. 5. May order medical examin- ation. 8. 6. When inhabitants of a house may be removed, ss. 6, 7. Powers of Lieutenant-Governor : Kegulation of vessels, passen- gers and cargoes, s. 8. Proclamation suspending sec- tions 2-7, S3. 9-11. Appointment of Central Board of Health, a. 12. Dissolution of Board, s. 13. Local Boards of Health : Meeting to be called to nomi- nate, 8. 14. Who may be appointed, a. 15. When meeting must be called, 8. 16. When Lieut. -Governor may ap- point Local Board, s. 17. Municipal Health Officers to act in the interim, s. 18. How Local Board of Health dissolved, a. 19. Powers of Central Board of Health : To make regulations for pre- venting infection, ss. 20, 21. To require Local Boards to carry out these regulations, a. 22. And to compel removr' of in- habitants of certain houses, a. 23. \ When and how long such regu- lations shall be in force, s. 24. Powers of Local Boardd : game as those of Municipal Health Officers, under ss. 6 and 7, s. 25. Powers if orders disobeyed, a. 26. Expenses of carrying out Act : How to be defrayed, ss. 27t 28. Proclamations and Regulations : To bo published in Gazette, ss. Vi9, 30. And laid before Legislative As- sembly, 8. 30. Certain municipal by-laws sus- pended thereby, s. 31. Penalties and prosecutions : For disobedience or neglect of orders or regulations, s. 33. For obstruction of officers, s . 32. How recoverable, s. 32. Committal of offender, s. 33. Application of penalties, s. 34. Conviction may be had through proclamation no longer m force, s. 35. No proceedings to be quashed for want of form, s. 36. Or removed by certiorari, s. 36. HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : — 920 Interpreta* tion. ••Place.*' THE MUNICIPAL MANUAL. ••Street." [R. S. 0. U i 1. In this Act, the following words and expressions shall have the meaning hereinafter assigned to them respectively, unless such meaning is repugnant to or inconsistent with the context, that is to say : — " Place " shall mean and include a City, Town, Village, Township, or any other temtorial division recognized or designated by law as a separate Municipality or municipal division, and shall also mean and include a Police Village : " Street " shall include every highway, road, square, row, lane, mews, court, alley, and passage, whether a thoroughfare or not. 36 V. c. 43, s. 36. '*'' ' SH kill,' if ^.) Who shall and may be health officers. Health officers may enter and exa.nine premises. Power to order cleansing. Powers to officers to cleanse. ^ MUNICIPAL HEALTH OFFICERS. 2. The members of the Municipal Council of every Town- shin, City, Town and incorporated A^illage, and the Tnistees of every Police Village shall be Health Officera within their respective Municipalities, under the next five sections of this Act ; but any such Council may by by-law delegate the power of its membera as such Health Officers to a committee of their own number, or to such persons, either inchuling or not including one or more of themselves, as the Council thinks best. 36 V. c. 43, s. 6. 3. The Health Officers of any Municipality or Police Vil- lage, or any two of them, may, in the day time, as often as they think necessary, enter into and upon any pi*emises in the pi '.ce for which they hold office, and examine such pre- mises. 36 V. c. 43, s. 1. 4- If upon such examination they find that the premises are in a filthy or unclean state, or that any matter or thing is there which, in their opinion, may endanger the public health, they or any two of them may order the proprietor or occupant of the premises to cleanse the same and to remove what is so found there. 36 V. c, 43, s. 2. 5. Such Health Officers, in case the proprietor or occupier of the premises neglects or refuses to obey their directions, may call to their assistance all constables and any other per- sons they think fit, and may enter on the premises and cleanF'3 the same, and remove therefrom and destroy what in their opinion it is necessary to remove or destroy for the preservation of the public health. 36 V. c 43, s. 3. id, square, row, •C, 190.] PUBLIC HEALTH. 921 Metliftal men may be authoriied by the offloers to examine. On report of medical men, pervons f nfeoted may be removed. 6. Such Health Officera or a majority of them may also by warrant under their hands, authorize any two medical practitioners to enter in and upon any house, out-house, or premises in the day time for the piirpose of making enquiry and examination with respect to the state of health of any pei-son therein ; and may also, upon tho report of such medical practitioners in writing recommending the same, cause any person found therein infected with a dangerously contagious or infectious disease to be removed to some hospi- tal or other proper place ; but no such removal shall take place unless the said medical practitioners state in their said i-epoi't that such person can be removed without danger to life, and that such removal is necessary in order to guard against the spread of such disease to the adjoining house or houses. 36 V. c. 43, s. 5. 7. Wherever a disease of a malignant and fatal character when is discovered to exist in any dwelling-house or out-bouse J," a^house* temporarily occupied as a dwelling, in a City, Town, Village, may be ^ or Township in Ontario, or within a mile thereof, and such "" house is situated in an unhealthy or crowded part of the City, Town, Village, or Township or adjoining country, or is in a filthy and neglected state, or is inhabited by too many pei-sons, the Health Officera of the Municipality or a major- ity of them may, at the e.xpense of the Municipality, compel the inhabitants of such dwelling-house or out-house to remove • therefrom, and may place them in sheds or tents, or other good shelter, in some more salubrious situation, until measures can be taken under the direction and at the expense of the Municipality, for the imn ediate cleansmg, ventilation, puri- fication, and disinfection of such dwelling-house or out-house. 36 V. c. 43, s. 4. removed. m m i'OWERS OP LIEUTENANT-GOVERNOR. 8. The Lieutenant-Governor in Council may make and declare such regulations concerning the entry or departui-e of boats or vesaek at the different poi-ts or places in Ontario, and concerning the landing of passengers or cargoes from such boats or vessels, or the receiving passengers or cargoes on board of the same, as may be thought beso calculated to pre- serve the public health. 36 V. c. 43, s, 7. 9. Whenever this Province, or any part thereof, or place therein, appears to be threatened with any formidable epi- demic, endemic, or contagious disease, the Lieutenant-Gover- 116 Lieutenants Governor may regulate vessels, in fiort, an'l andiog, of passengers and cargoes. When epidemic, etc., probap ble, Lieut.- Qovefaor rli it mi Vi 1^ .1; ■'.< f. Power to revoke, renew, and limit dura- tion of pro- clamation. unlem excepted, 922 THE MUNICIPAL MANUAL. [R. S. Q,. may nor may, by proclamatioo, to be by him from time to time FoUowing issued, by and with the advice and consent of the Executive •ectionsin Council, declare the subsequent sections of this Act to be in force in this Province, or in any part thereof or place therein, mentioned in such proclamation ; and it shall thereupon be in force accordingly. 36 V. c. 43, s. 8. 10. The Lieutenant-Governor may, in like manner, from time to time, as to all or any of the parts or places to which any such pix)clamation extends, revoke or renew any such proclamation; and subject to revocation and renewal, as aforesaid, every such proclamation shall have effect for six months, or for any shorter period in such proclamation ex- pressed. 36 V. c. 43, s. 9. Onprociama- 11. TJpon the issuing of any such proclamation, and whilst two'toTaeven *^® same is in force, sections two to seven inclusive of this suspended Act shall be suspended as to every place mentioned in such proclamation, or being within any part of this Province in- cluded thereby, unless it is by the said proclamation declared that such sections or any of them shall be continued in force. 36 V. c. 43, s. 10. 12. From time to time, after the issuing of any such pro- clamation, and whilst it is in force, the Lieutenant-Governor may, by commission under his hand and seal, appoint live or more pei-sons, to be "The Central Board of Health," and also such officers and servants as he deems necessary to assist the Board ; and the powers and duties of the said Board may be exercised and executed by any thi'ee members thereof ; and during any vacancy in the said Board, the continuing membera or member may act as if no vacancy had occurred. 36 V. c. 43, s. 11. Commission 13. Every such commission bhall, ip«oyacto, be deteiTD bed Central""* by the revocation of the proclamation under which it issued, Eoard deter- j^ ^q gH the places included in such proclamation, or by the Invocation of expiration of six months from the date of such proclamation, ^ciama- ^j. q£ ^^y. shorter period expressed in such proclamation &s that during which it is to be in force, unless such proclama- tion is renewed as to all or some of such parts and places. 36 V. c. 43, s. 12. LOCAL BOARDS OF HEALTH. Central Board of Health, ap- pointment of. Powers and duties of, how exercisod. 14. From time to time, while any such proclamation is in Meeting to nouiiuate « - r - • i ~t Local Board force, the Mayor or other head of the Municipal Corporation^ f } c. 190.] PUBLIC HEALTH. 923 Inspecting Trustee or other chief Municipal ofEcer of any and every place mentioned in such proclamation, or included thereby, may call a special meeting of the Council or of the Police Trustees of such place, over which he presides, for the J \rpose of nominating a Local Board of Health. 36 V. c. 43, 8. 13. 16. Such Municipal Corporation or Police Trustees shall Lo«i Boar* nominate not less than thi'ee persons, resident within the how* ' limits of their respective jurisdictions (or in the case of a City, «??<>'»*«*• Town or Village, within seven miles thereof), to be " The Local Board of Health" for such place. 36 V. c. 43, s. 14. 16. Such Mayor, or other head of such municipal corpora- Meetirg to tion, Inspecting Trustee, or other chief municipal officer. Board of shall call such special meeting within two days from the JJf^rat've receipt of a written requisition to that effect, signed by ten on ceruin or more inhabitants, householdera of the place, under the "•!»»'■'*-<"»■•; jurisdiction of the body over which he presides, on pain of being personally liable to the penalty hereinafter mentioned. 36 V. c. 43, s. 15. 17. If at any time while any such proclamation is in forco, when Ueut- it is cei-tified to the Lieutenant-Governor, by any ten or more Oo'e™"' inhabitant householders of any place included in such procla- Local Board.. mation, that the Mayor or other head of such Municipal Corporation, or Inspecting Trustee, or other chief municipal officer of such place, has failed to comply with such requisi- tion, within such time as aforesaid, or that such Council or Trustees have failed to nominate a Local Board, the Lieu- teuant-Goveraor in Council may forthwith appoint not less than three persons, resident within the limits of sucn place (or in the case of a City, Town or Village, within seven miles thereof), to be the Local Board of Health for such place. 36 V. c. 43, s. 16. 18. Until a Local Board of Health is appointed under the Tin appoint- provisions of the three i)receding sections, the Health Officers Sa[i*i^arci, of the Municipality shall exercise and })erform the powera, '*"*'"' authorities and duties of the Local Board, in conformity with may act as the regulations of the Central Board, and shall act in every *"'■'*'• respect as if they were a Local Board of Health appointed under the fifteenth section of this Act. 36 V. c. 43, s. 17. 19. Every nomination or appointment of a Local Board of Appoint- Health under the fifteenth or seventeenth sections of this Act S.^'whSS shall, ipso facto, be determined by the revocation as to the determined 3' i4i C.I ii h A ^24 THE MUNICIPAL MANUAL. [R. S. 0. by revoea- place within the limits of which such Local Board is author- «oinmU«ion. i^ctl to act, or as to any place in which it is included, or as to the whole Province, of the proclamation under which such Local Board was appointed, or by the expiration of six montlis fi'om the date of such proclamation, or of any shorter period expriisaed in such proclamation as .that during which it is to be in forcf, unless such proclamation is renewed as to such place, or any place in which it is included, or as to the whole Province. 36 V. c. 43, s. 18. POWERS OF CENTRAL BOARD OF HEALTH. Power of 20. The Central Board of Health, or any three or more Boar^to members thereof, may from time to time issue such regula- ""•^e 'eR"- tions IS they think fit, for the prevention, as far as possible, ureyentin. or the mitigation of such epidemic, endemic or contagious fection, &c. diseases, and may revoke, renew or alter any such regulations, or substitute such new i*egulations, as to them or any three of them appear expedient. 36 V. c. 43, s. 19. 21. The said Board may, by such regulations, provide, 1. For the frequent and effectual cleansing of streets by the Road Surveyors or Overseers of Highways and others, ^entrusted with the care and management thereof, or by the owners or occupiers of houses and tenements adjoining thereto; 2. For the cleansing, purifying, ventilating and disinfecting of houses, dwellings, railway stations, churches, buildings, and places of assembly, steamboat's, railway carriages and care, and other public conveyances, by the owners and occupiers, and persons having the care and ordering thereof; 3. For the removal of nuisances ; 4. For the speedy interment of the dead ; 5. For preventing or mitigating such epidemic, endemic or contiigious disejises, in such manner as to the said Central Board seems expedient 36 V. c. 43, s. 20. Power to 22* The said Central Board may by any such regulations Boar™to authorize and requii'e the Local Boards of Health to su|)erin- require local tend and see to the execution of any such regulations ; and ^ecute*their (where it appears that there may be default or delay in the regulations, execution thereof, by want or neglect of such Surveyors, Overseers, or othei's entrusted as aforesaid, or by reason of . poverty of occupiers or otherwise) to execute or aid in exe- Power of -Central Board as to TegulatioDS. c. 190.] PUBLIC HEALTH. 92& ciiting the same within their respective limits ; and to pro- vide for the dispensing of medicine and for affording to persons afflicted by or threatened with such epidemic, endemic, or contagious diseases, such medical aid as may be required ; and to do and provide all such acts, matters and things as are necessary for superintending or aiding in the execution of such regulations, or for executing the same as the case may require. 36 V. c. 43, s. 21. 23- The Central Board of Health may also by any such And to regulations authorize and require the Local Boards of Ht ilth, "matw of in all cases in which diseases of a malignant and fatal charac- certain ter, are discovered to exist in any dwellin^^-house, or out-house temporarily occupied as a dwelling, situate in an unliealthy or crowded locality, or being^n a neglected or tiltliy state, at the proi)er costs and charges of such Local Boards of Health to comjiel the inhabitants of any such dwelling-house or out- house, to remove therefrom and to place them in sheds or tents, or other good shelter, in some more salubrious situa- tion, \mtil measures can be taken by and under the directions of the Local Boards of Health, for the immediate cleansing, ventilation, purification and disinfection of the said dwelling- house or out-house. 36 V. c. 43, s. 22. 24- The dii'ections and regulations to be issued as afore- ''^^'f*'?"* said shall extend to all partiS or places in which this Act is, locality to for the time being, in force, under any such proclamation as J^ijjji^bie. aforesaid, unless such regulations are expressly confined to some of such parts or places, and then to such parts or places as in such directions and regulations are spcci.^ ;d, and (sub- ject to the power of revocation and alteration herein con- tained) shall continue in force so long as this Act is in force under such proclamation in the parte or places to which such regulations extend. 36 V. c. 43, s. 23. POWERS OF LOCAL BOARDS OF HEALTH. 25' The membei'S ot the said Local Boards of Health shall Members of be called Health Ofiicei-s ; and any two or more of them {^^ h«aith. acting in the execution of any such regulations' as aforesaid, officers; may exercise the like powei*s and authorities as are conferred p*"'*" ** • uix)n Health Officers by sections six and seven of this Act. 36 V. c. 43, s. 24. 26. In case the owner or occupier of any dv.-elliog or pre- Powers of mises neglects or refuses to obey the orders given by such t*^"r^^„. disobeyed. i ^1 mi ii '^'i hi 1 ^36 THE MUNICIPAL MANUAL. [R. g. Q. Healuh Officei-s, in pursuaiioe of such regulations, such Health OfKcers may call to their assiHtance all Constables and ])eace olKcerH, and such other i)er80iui a& they think fit^ and may enter into such dwelling or premises, a^id execute the same or cause to be executed therein such I'egulations, and remove therefrom and destroy whatsoever, in pursuance of such regu- lations it is necessary to remove and destroy for the preser- vation of the public health. 36 V. c. 43, s. 25. ^^r::%^-f^t ,1' K^ MISCELLANEOUS PROVISIONS. ExperiKMiof 27. The expenses incurred by the said Central Board of 1ocan)oaT4B, Health shall be defi-ayed out of any moneys appropriated dV d ^y *'^® Legislature for tlmt purpose ; and the exj)f nses in- curred by tli3 said Local Boards of Health in tJiu execution or in superintending the execution of the regulations of the Ceiitral Boai'd, shall be defrayed and provided for in the same manner and by the same means as expenses incurred by the Municipal Corporations, ht.ving jurisdiction over the respective places for which such Local Boards of Health were appointed, are by law requix'ed to be defrayed and provided for. 36 V. c. 43, s. 26. Any two 28- The Treasurer of the Municipality shall forthwith looM board ' Upon demand pay out of any moneys of the Municipality in may (^rder Jng hands the amount of any order given by the nibinbei-s of ■treaBurer to the Local Board, or any two of them, for services j)ertormed P*y- under their direction by virtue c" this Act. 36 V. c. 43, s. 27. Proclama- tioD to be 5ublish«d. iegulationa of central board invalid till con- firmed aad published. Publication to b« evi- dence of certain facts. Regalations and proclBr mation to b« laid before Legislative Assembly. 29. Every proclamation of the Lieutenant-Governor in Council under this Act shall be published in the Ontario Gazette ; and no direction or regulation of the said Central Board of Health shall have any force or effect until it has been confirmed by the Lieutenant-Governor ui Conncil, and has thereafter been published in the Ontario Gazttte. 36 V. c. 43, s. 28. 30. Such publication of any such proclamation or i-egula- tion shall be conclusive evidence of the proclamation or regu- lation so published, and of the confirmation of such regulation as aforesaid, and of the dates i hereof respectively to all intents and purposos ; and e'^'eiy such pi'oclamatlon and regulation shall fort With upon the issuing thereof be laid before the Legislative Assembly, if it is then siiting, and if €. 190.] PUBLIC HEALTH. 927 not, vithin the fourteen days next after the commencement of tJie next Se«8ion thereof. 36 V. c. 43, s. 29. [(»• 31. Upon the publication of any such regulations as afore- O" p»w» said, and whilst they continue in force, all by-laws of the reguiationa Municipal Coi-poration of any place to which such regulations ^JiJj'ilJp^ or any of them relate, made for preserving the inhabitants by-uws thereof from contagious diseases, or for any other of the pur- '*"*■ poses for which such regulations are by this Act required to be issued, shall become and be surfpended. 36 V. c. 43, s. 30. PENALTIES AND PROSECUTIONS. 32. Any person who wilfully disobeys or resists any law- Penalty tor ful order of the Health Officen, or wilfully obstructs any of'oSof* person acting under the authority or employed in the execu- offlcerd and tion of this Act either before or after the appointment of a '^*'*" * ***" Central Board of Health, or wilfully violates any regulation?; made and declared by the Lieutenant-Governor in Council or issued by the Central Board of Health under this Act, or neglects or re' uses to comply with such regulations, or with the requirements Oi this Act in any manner whatsoever, shall lou i» .lOUKh proclAiuk- tlon no longer in force. No proceed- ihK to bfl quashed for want of form, or be removable Into Supe- tiur Court, if' M r? i: 7v r it' ^ !' " " i^i J ^y |3 M Wi '( ■ An Act respecting Vaccination and Inoculation. R. S. O. Cap. 191. Hospitals, etc. : To keep vaccine matter on hand, 8. 1. And set apart a small-pox ward, 8. 3. Otherwise not to receive public moneys, as. 2, 3. Annual report ^to Legislature, 8. 4. Councils of Cities : To provitle for free vaccination, s. 5. And appoint a place therefor in every Ward, s. (i. Duties of parents : To have child vaccinated within three months afterbirth, a. 7. And exhibit it to vaccinator eight days afte; wards, s. 8. And of Vaccinator : Certificate of vaccination to It- given to parent, a. 9. And sent to City Clerk, a. 10. If child found unfit for vaccina- tion, 8. 10. If child not auaceptible of vac- cine diaease, a. 11. Feea for vaccination, s. 12. Penaltiea : For not having child vacciuatctl, a. 13. Plea of previous convictions, a. 14. For inoculating with vario matter, C. S. C. c. 39, s. 1. If ofifender a medical man, license forfeited, s, 15. But may be restored, s. 15. HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Provmce of Ontario, enacts as follows : — C.191.] VACCINATION AND INOCULATION. 920 Ing child vaccinated, Lvioua convictions, Itinc with vario ' ■ S:C. c. 39,8. 1. a medical man, Irfeited, s, 15. \ restored, s. 15. Ivice and consent Ithe Province of For the vaceiD' tion of thr poor. Foe. ilow appliedr For ftirnlih- iDK leKatly qualiflod medical practi- tioners. For the UM of tho Indians. 1. The Trustees, Governoi's, Directors, or other officers or Truste«s.ft&, persons having at any time tho control and management of j' ^^Sp 'rao- any Hospital or DisjMinsary receiving aid from the public c'ne matter funds 'of this Province, shall keep at all times in such Hospi- p^JrpoMa.*^ tal or Dispensary an adequate supply of vaccine matter for the following purposes, viz. : First, — For the vaccination, by a legally qualified medical practitioner attached to such Hospital or Dispensary, at the exiKMise of tho same, of all poor persons, and at their own expense of all other persons, who attend at such Hospital or Dispensary for that purpose, during one day in every week ; the fee to be charged for such vaccination not in any case to exceed fifty cents, and to bo used and aj)plied for the benefit of tho Hosi)ital or Dispensary ; Second. — For the purpose of furnishing, on application, to each and every legally qualified medical practitioner, such reasonable quantities of the said matter as he from time to time requires ; Third. — For the purpose of furnishing, on application, to the Superintendent-General of Indian AtTairs, or his Assistant, or to any Visiting Superintendent of Indian Affaii's, such reasonable quantities of the said matter as he may from time to time require for the use and benefit of any settlement of Indians. C. S. C. c. 30, s. 3. 2. No warrant shall hereafter issue for the payment of any sum of money granted by the Legislature to any Hospital or Dispensary, unless a certificate has been filed in the office of the Clerk of the Executive Council, sisfned by a medical officer of such Hospital or Dispensary, to the efiect that there is actually on hand in such Hospital or Dispensary a supply of vaccine matter which is expected to ^ suffioient for the l)uri)oses aforesaid from the date of ?'• ■.oixificate, or setting forth reasons and grounds in expL..d xon of any deficiency in such supply to the satisfaction of the Lieutenant-Governor in Council, nor unless nor \intil a certificate, signed as afore- said, to the effect that at no time since the date of the then last certificate in this behalf, has the demand upon such Hospital or Dispensary for such matter for the purposes aloresaid, exceeded the supply thereof on hand in such Hos- pital or Dispensary, or setting forth reasons and gi'ounds in explanation of any deficiency of such supply, to the satisfac- tion of the Lieutenant-Governor in Council, has been filed as aforesaid. C. S. C. c. 39, s. 4. 117 No warrant for the pay- ment of money to Issue to any Hospital unless it has a sufficient quantity of vaccine mat- ter on hand, Ac I, ■I ,' ni'i] I *f I ] 930 No puUio THE MUNICIPAL MANUAL. [R. 8. 0. 3> No warrant shall issue for tlie payment of any Htim of wSd'i iny* money granted by the Legislature to any HoHpital, unhsMs a i'**'ith certificate has been tiled with the Clerk of the Executive • ■mall pox Council, signed by a medical officer of such HoHpitul to the ^*"'- effect that tliere is in such Hospital a distinct und Hcpnrate ward set apart for the exclusive accommodation of patients afflicted with small pox. 24 Y. c. 24, s. 1. Annual 4. The Trustees, Governors, Directoin, or other officers or STiaWtatoro persons having for the time being the control and nian(ij,'e- Leciiiatura ment of any Hospital or Dispensary to which aid has hoeu ▼McinaUon. granted during any Session of the Logislativo AsscMiibly ot this Province, shall cause to be transmitted to the Ijieuten- ant-Governor, through the Provincial Secretary, in time to admit of copies thereof being laid before the LegiHJative Assembly, during the first fifteen days of the then next Ses- sion, a statement certified })y the proper officera of hucIi Hospital or Dispensary, shewing the number of peisons who liave applied for and received free vaccination, tlie number of persons who have applied for and received vaccination at tlieir own expense, and tiie number, amount and application of fees charged and received for vaccination. C. S. C. c. 39, s. 5. «■ P h IB SPECIAL PROVISIONS AS TO CITIES. OsrUin 5, It shall be lawful for the Council of every City now employ being or which may hereafter be in this Province, and they uoonen'to*^ are hereby re8i)ectively empowered and required, to contract vaccinate the with some legally qualified and competent nu lical practitioner ' ' or practitioners, for the period of one yimv, and so from year to year, as such contract expires, for the vaccination, at the expense of the City, of all poor persons, and, at their own expense, of all other persons, resident in such City, who come to such medical practitioner or practitioners for that puqwse. 2. It shall be a condition of every such contract, that the amount of the remuneration to be received under the same shall depend on the number of persons who, not having been previously successfully vaccinated, are successfully vaccinated by such medical practitioner or medical practitioners, respec- tively so contracting. 24 V. c. 24, s. 2 ; 40 V. c. 7, Sc/ied. A (203). City to 6. The Council of each such City shall appoint a convenient TO^mient place in each Ward of such City for the performance, at least place in each once in each month, of such vaccination, and shall takeeffeo- Remunera* tion to depend on success. C.191.] VACCINATION AND INOCULATION. 931 Tacclnttad. tual means for giving, from time to time, to all persons wam for Um resident within each such Ward, due notice of the days and P""**^ houra at which the medical practitioner or one of the medical pmctitionei's contracted with for such puri)ose will attend, once at the least in each month, at such place, to vaccinate all persons not successfully vaccinated who may then appear there, and also at the days and houra at which such medical practitioner will attend at such place to in8i)ect the progress ofsuch vaccination in the peraons so vaccinated. 24 V. c. 24,8. 3. 7. The father or mother of every child born in any such T"" j^^l**"* City, Rhall, at some such appointed time, within three calendar take children months after the birth of such child, or in the event of the ^ ^* death, illness, absence, or inability of the father and mother, then the ))er8on who has the care, nurture or custody of the child, shall at some such ap]K>inted time, within four calen- dar months after the birth of such child, take or cause to be taken, the said child to the medical practitioner in attendance at the appointed place in the Ward in which the said child is resident, according to the provisions of the preceding sections of this Act, for the purpose of being vaccinated, unless such child has been previously vaccinated by some legally qualified medical practitioner and the vaccination duly certified ; and the said medical practitioner so appointed, shall, and he is hereby required, thereupon, or as soon after as it can con- veniently and properly be done, vaccinate the said child. 24 V. c. 24, s. 4. 8. Upon the eighth day following the day on wliicli any child has been vaccinated as aforesaid, the father or mother, or other peraon having the care, nurture or custody of the said child as aforesaid, shall again take or cause to be taken the said child to the medical practitioner by whom the oper- ation was performed, or other similarly appointed medical practitioner in attendance as aforesaid, in order that such medical practitioner may ascertain by inspection the i-esult of such operation. 24 V. c. 24, s. 5. 9. Upon and immediately after the successful vaccination of any child bom in any such City, the medical practitioner *ho performed the operation shall deliver to the father or mother, or other person having the cai*e, nurture or custody «f said child as aforesaid, a certificate under his hand, accord- "ig lu the form of Schedule A. to this Act, that the said has been successfully vaccinated, and shall also transmit I And oxhibit them to the medical prao- titioner on the eighth day. '^Hi Certificate of succeisful Taccinatlon to be given. w ' 932 What to be evidence of. Ifthenhild be fouad unfit for Tsod nation. Certificate. How ]ong to be in force. Be-presenta- tion of the child to be repeated vntU Buccassful TP.ccination. Certificate. THE MUNICIPAL MANUAL. [R. gj. Q. a duplicate of the said certificate to the Clerk of the City in which the operation was performed. 2. Such certificate ;ihall, without further proof, be admis- sible as evidence of the successful vaccination of such child in any information or complaint brought against the father or mother of such child, or against the pei-son who ha.s had the care, nurture or custody of such child as aforesaid, for non-compliance with the provisions of this Act. 24 V. c 24, s. 6. 10. If any medical practitioner appointed as aforesaid is of opinion that any child brought to him as aforesaid is not in a fit and proper state to be successfully vaccinated, he shall deliver to the father or mother of such child, or the person having the care, nurture or custody, of such child as aforesaid on demand and without fee or reward, a certiticate under his hand, accorrling to the form of Schedule B to this Act, that the child is in an unfit state for successfiU vaccina- tion. 2. Such certificate, or any similar certificate of a legally qualified medical practitioner, respecting any child born as aforesaid, shall remain in force for two months from its delivery as aforesaid ; and the father or mother of the said child, or the pei*son having the care, nurtui'e or custody of the said child as aforesaid, shall, (unless they have within each succeeding period of two months obtained from a legally qualified medical practitioner a renewal of such certificate) within two months after the delivery of the said certiflcate as aforesaid, and if said child is not vaccinated at or by the ter- mination of such period of two mouths, then during each succeeding period of two months until such child has been successfully vaccinated, take or cause to be taken to the said medical practitioner, so appointed as aforesaid, such child to be vaccinated by him ; and if the said medical practitioner deems the said child to be then in a fit and proper state for such successful vaccination, he shall forthwith vaccinate it accordingly, and shall, upon or immediately after the success- ful vaccination of such child, deliver to the father or mother of such child, or the person having the cai-e, nurture or custody of such child as aforesaid, a certificate under hia hand, according to the form of Schedule A to this Act, that such child has been successfully vaccinated ; but if the said medical practitioner is of opinion that the said child is still in an unfit state for successful vaccination, then he shall again <3. 191.] VACCrNATION AND INOCULATIOX. 933 deliver to the father or mother of such child, or to the per- son having the care, nurture or custody of such child, as aforesaid, a cei tificate under his hand, according to the forni of Schedule B to this Act, that the child is still in an unfit state for successful vaccination, and the said medical practi- tioner, so long as such child remains in an unfit state for vaccination and uh vaccinated, shall at the expii'ation of every succeeding period of two months, deliver, if required, to the father or mother of such child, or to the person having the care, nurture or custody of such child, a fresh certificate under his hand, according to the form of Schedule B of thia Act. 3. The production of such certificate or of any similar cer- juject of tificate from any legally qualified medical pi'actitioner, shall certificate, be a suflficient defence against any complaint brought against the father or mother, or peraon having the care, nurture or custody of such child, for non-compliance with the provisions of this Act. 24 V. c. 24, s. 7. 11. In the event of any medical practitioner employed if the child under the provisions of this Act, or any other duly qualified Ingy^pybie medical practitioner being of opinion that any such child as of vaccine aforesaid, that has been vaccinated by him, is insusceptible of *'**"*• the vaccine disease, he shall deliver to the father or mother of such child, or to the person having, as aforesaid, the care, nurture or custody of such child, a certificate under his hand, according to the form of Schedule C to this Act ; and the production of such certificate shall be a sufficient defence against any complaint which may be brought against the father or mother, or person having the care, nurture or custody of such child, for non-compliance with the provisions of this Act. 24 V. c. 24, s. 8. 12. In all contracts to be made under the provisions of Fees under this Act, the sums contracted to be paid shall not be more ^^ ^^^ than twenty-five cents for eveiy pei-son successfully vaccinated, including all or any of the certificates required by this Act. 24 V. c. 24, s. 9. . 13. If any father or mother, or person so having as afore- penalty for said the care, nurture or custody of any such child as afore- non*coninii- said, does not cause such child to be vaccinated within the the re- periods prescribed by this Act, or does not, on the eighth day 2f thTlct! after the vaccination has been performed, take or cause to be taken such child for inspection, according to the provisions in mm ll I*. Becoveiy. Bar. Stet. e.74. jhall ETail. 934 THE MUNICIPAL MANUAL. [R. S. 0, this Act respectively contained, then such father or mother or person having the care, nurture or custody of such child as aforesaid, so offending, shall be liable t^ a penalty not ex- ceeding five dollars, i*ecoverable on summary conviction before the Police Magistrate for the City in which the offence was committed, or if there is no such officei', then before any two Justices of the Peace sitting and having jurisdiction in. such City. 2. The provisions of The Act respecting Summary Convic- tions be/ore Justices of the Peace, shall be applicable to the recovery of such penalties. 24 V. c. 24, s. 10. How far and 14. After the expiration of two months from the convic" wnT^dion ** tion of any person for an offence against this Act, in respect of any child, no plea of such conviction shall be a sufficient defence against any complaint which may then be brought against the same or any other person for non-compliance with the provisions of this Act in respect of the same child. 2. The production of a certificate in the form of Schedule A or C, under the hand of a legally qualified medical prac- titioner, shall be a sufiicient defence against any such com- plaint ; but the production of a certificate in the form of Schedule B shall not b.^ a sufficient defence, unless the vac- cination is thereby postponed to a day subsequent to that on which the complaint is brought. 24 V. c. 24 s. 11. The license 16. If any person licensed to practice Medicine, Surgery, M^raven!°° ®^' MiF UNFITNESS FOR VACCINATION. I, the undersigned, hereby certify that I am of opinion that , the child of > ^'^ . . Ward, in the City of , aged , is not now in a fit and proper stato to be successfully vaccinated, and I do hereby postpone the vaccination until the day of . Dated this day of (Signed,) ,18 . A.B. [R. S. 0. 936 THE MUNICIPAL MANUAL. SCHEDULE «C." {Sections 11 and 14.) CERTIFICATE OF INSUSCEPTIBILITY TO VACCINE DISEASE. I, the^nndersigned, hereby certify that I am of opinion that the child of , of Ward, in the City of , is insusceptible of the vaccine disease. Dated this (Signed,) day of A. B. , 18 . An Act to regulate the Means of Egress from Public Buildings. R. S. O. Cap. 192. Doors of public buildings to open outwards, s. 1. Liability of Corporation not con- forming to this Act, s. 2. Penalties, s. 3. Officers to enforce this Act, ss. 4, 5. Act not to apply to convents, &c., 8. 6. HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : — 1. In all churches, theatres, halls or other buildings here- tofore or hereafter constructed or used for holding public meetings, or for places of public resort or amusement, all the doors shall be so hinged that they may open freely outwards, . and all the gates of outer fences, if not so hinged, shall be kept open by proper fastenings during the time such build- ings are publicly used, to facilitate the egress of people, in case of alarm from fire or other cause. 29-30 V. c. 22, s. 1. ttoMtooor^ 2. Congregations possessing corporate powers, and all trus- pontedand tees holding churches or buildings used for churches under Doonof churches, &c.,tobe hung BO as to open ontwardB. ^.'^ c 192.] EGRESS FROM PUBLIC BUILDINGS. 937 truitoM holding finr onngregft- ttona under Rev. Sut. e. 210, and rectors, Ae.p holding under 3 Vic.\ c. 74, liable for neglecting the vro- Titilons of this Act. TJie Act respecting tlie property of Religious Institutions, and incumbents and churchwardens holding churches, or buildings used for churches, under the Act of the Parliament of the late Province of Upper Canada, passed in the third year of the reign of Her Majesty, Queen Victoria, chapter seventy- four, intituled "iln Act to make provision for tfie nianage- mmt of tJie Temporalities of tite United Church of England and Ireland in this Province, and for other purposes therein mentio7ied," and all other pereons holding churches or builvd- ings used for churches, under any other Act, shall be sever- ally liable as trustees for such societies or congregations, to the provisions of this Act. 29-30 V. c. 22, s. 3 (2). 3. Individuals, companies an i orporations owning or pos- indiyiduais, sessing public halls, churches or other buildings used for M'd'«»rMr»- pubiic meetings, who violate the provisions of this Act, shall I'""' ""►•e be liable to a fine not exceeding fifty dollars, recoverable on neglecting information before any two of her Majesty's Justices of the y^'i^l^j Peace, or before the Mayor or Police Magistrate of any City this Act. or Town ; one moiety of such fine shall be paid to the party laying the information, and the other moiety to the Munici- pality within which the case arises : and parties so complained against shall be liable to a further fine of five dollars for every week succeeding that in which the complaint is laid, if the necessaiy changes are not made. 29-30 V. c. 22, s. 3 (1). 4. In Cities, Towns and incorporated Villages, it shall be the duty of the High BaiM, Chief Constable, or Chief of ^J^^««.^ Police, to enforce the provisions of this Act, and such ofiicers ^mw. neglecting the performance of such duties shall be liable to a fine not exceeding fifty dollars, recoverable in the manner and before the Justice of the Peace, and payable to the parties mentioned in the third section of this Act. 29-30 V. c. 22, s. 6. 5- County and Township Municipalities may, by by-law, appoint an officer to enforce the provisions of this Act. 29-30 Officer to V.c.22,s. 7. If*"" 6. This Act shall not be construed to apply to convents or private chapels connected therewith. 29-30 V. c. 22, s. 8. JJ,°'c^,*Pft!j [See c^so Rev. Stat. c. 174, s. 454 (11).] 118 It! '• 1 .■■.if 938 THE MUNICIPAL MANUAL. [R. 8. 0, \ An Act to require the Owners of Threshing and other Machines to guard against Accidents. R. S. 0. Cap. 193. Mschinery 'to be protected by guards, s. 1. Penalty for infringement of this Act, ss. 2, 3. Application of penalties, s. 4. liimitation of prosecutions, s. 5. Defects of form in convictions, i 0. Certain machines to be 80 pro- tected as to ftrerent njury to persons near them. HER MAJESTY, by and with the advice and conser.c of the Legislative Asseuibly of the Pi'ovince of Ontario, enacts as follows : — 1. All persons owning or i-unning any threshing machine, wood-sawing or other machine, which is connected to a horse- power by means of a tumbling rod or line of shafting, shall cause each of the knuckles, couplings or joints and jacks of such tumbling rod or line of shafting to be safely boxed or secured while running, with wood, leather or metal covering in such manner as to prevent injury to persons passing over or near such tumbling rod, and the knuckles, couplings or joints and jacks thereof; and shall cause all oiling cups attached to arbors or journals to which driving belts ar3 attached, to be furnished with tubes of tin or other material, which shall extend above the belts in such manner as shall prevent damage from oiling when the machine is in motion ; and shall further cause a driver's platform to be placed on any horae-power used for driving machinery, of such size a» to cover the geaiing constituting said horse-power, and in such manner as to prevent accident arising to any pereon from contact with said gearing. 37 V. c. 12, s. 1. Penalty for 2. Any person or persons owning or running any thresh- ucewitb ing> wood-sawing or other machine, connected to a hoi-se- ^'l^'®"" 0^ power by means of a. tumbling rod or line of shafting, who 'n 0. 193.] ACCIDENTS FROM MACHINERY. 939 neglect or refuse to comply with the provisions of this Act, shall on suromaiy conviction, on information or complaint before one or more Justices of the Peace, be liable to a fine of not less than one dollar nor more than twenty dollars, over and above the costs of prosecution, and in default of payment of such fine and costs, the offender shall be impri- soned in the nearest Common Gaol for a period of not less than two or more than twenty days, at the discretion of such Justice or Justices of the Peace. 37 V. c. 12, s. 2. 3. No action shall be maintained, nor shall any legal No aotion liability exist for services rendered by or with any machine, ^nSSredtf such as is mentioned in the first section of this Act, when it pro»i«ion« of is made to appear that the said section has not been complied not com^M with. 37 V. c. 12, s. 3. *»»»». 4. All fines imposed and collected under this Act shall be DinKMiuon paid, one half to the complainant or prosecutor, and the other o'™"" hall to the Treasurer of the School Section in which the offence was committed, for the use of the Pu]>Uc School in such Section. 37 V. c. 12, s. 4, part. 6. All proceedings against any pers»>n for any violation of Proceedings the firet section of this Act shall be commenced within thirty mem;^™ days after the commission of the offence. 37 V. c. 12, s. 4, ^twn thirty jxirt. 6. No conviction under this Act shall be annulled or convictiona vacated for any defect in the form thereof, or for any omission j'^^'^^ ^ or informality in any summons or other j)roceeding under this Act, so long as no substantial injustice results therefrom. 37 V. c. 12, s. 5. ►-♦- -940 THE MUNICIPAL MANUAL. [R S. 0. An Act to impose a Tax on Do^d i.nd ibr the Pi ^tection of Sheep. R. S. 0. Cap. 194. Tax on Dogs : To be levied annually, s. 1. Unlesb dispensed with by County by-law, s. 2. But may he restored in nny Township by by-law, a. 2. Duties of Assessors, s. 3. Duties of owners of dogs, s. 4. Duties of Collectors, ss. 5, 6. Non-tax pivying dogs may be ordered to be destroyed, s. 6. Moneys collected to form a fund for paying damages to sheep, s. 7. Unless County Council other- wise declares by by-law, s. 8. Which may be repealed and re- enacted. 8. 9. Protection of Sheep : Dogs pursuing sheep may be destroyed, s. 10. General issue by statute plead- able in such case, s. 11. Dogs accustomed to worry sheep may be destroyed. Proce- dure, 8S. 12, 14. Besides civil remedy for dam- ages, s. 15. By action or summary proceed- ings, s. 16. Proof of defendant's knowledge unnecessary, s. 16. Dogs worrying sheep to be des- troyed on notice to owner, 8. 17. When Municipal Council to pay for damage to sheep, as. 18, 19. Claim thenceforth to belong to the Municipality, s. 20. No claim if sheep running at large, s. 21. Civil remedy for damages when dog tax dispensed with, s. 22. Fees to magistrates under this Act, 8. 23. ■jri ER MAJESTY, by and with the advice and consent of JtX the Legislative Assembly of the Province of Ontario, enacts as follow.s : — Annual tax on dogs. TAX ON DOGS. 1. Subject to the provisions of the next section, there shall be levied annually, in every Municipality in Ontario, ujwn the owner of each dog therein, an annual tax of one dollar for each dog, and two dollars for each bitch. 33 V. c. 31, & 2. 0. 194.] TAX ON DOGS. 941. ummary proceed- 2. Ir cnsL *lio Council jf any County or Union of Counties Unie* dii- deems it tulvisable to dispense with the levy of the said tax, KyOouniy** ;♦, shall 1)0 lawful for suc^ Council to declare by by-law that »>y-iaw. thb ' which has worried and injured or destroyed any sheep, the be ordered to Justice of the Peace may make an order for the killing of and owmt such dog (describing the same according to the tenor of the ^"'^ description given in the complaint and in the evidence) within three days, and in default thereof may in his discetion im- . lK)se a fine upon such person, hot exceeding twenty dollais with costs ; and all penalties inij)Osecl under this section shall be applied to the use of the Municipality in which the defen- dant resides. 27 V. c. 20, s. 4. 15. No conviction under this Act shall be a bar to any ConTiction action by the owner or possessor, as aforesaid, of any sheep actio" jbr for the recovery of damages for the injury done to such damages, sheep, in respect of which such conviction is had. 27 V. c. 20,a5. \ % t I .11 m :-il •M THE MUNICIPAL MANUAL. [R. S. 0. XiUnt of liability of owner or kNiwr of 4og. Rot. 8tat. 0.74. 16. The owner of any sheep or lamb killed or iiijmx'il by any dog Hhall be entitled to recover the duiimge ocouHioiKMl thereby from the owner or keo|)er of Huch dog, by an action for dumageH or by Huinmary proceedings before a Jiistito of the Peace, on information or complaint before such Justieo who is hereby authorized to hear and deteiinino Hiich com- plaint, and proceed thereon in cho manner provided by The Act respecting Summary Convictions be/ore Justices of the J*eace, in respect to proceedings therein mentioned ; and Hiit-li aggrieved party shall be entitled so to recover on such action or proceedings, whether the owner or keeper of sucli dog knew or did not know that it wjis vicious or uccustomed to worry sheep. 27 V. c. 20, s. G ; 32 V. c. 31, s. 7. 17. The owner or keei)er of any dog or dogs, to whom notice is given of any injury done l)y his dog or dogs to any sheep or lamb, or of his dog or dogs having chased or worried any sheep or lamb, shall, within forty-eight hours after such notice, cause such dog or dogs to be killed ; and for every neglect so to do he shall forfeit a sum of two dollars and fifty cents for every such dog, and a further sum of one dollar and twenty-five cents for each such dog for every forty-eiglit hours thereafter, until the same is killed— if it is jtroved to the satisfaction of the Justice of the Peace before whom pro- ceedings aro taken for the recovery of such penalties, that such dog or dogs has or have worried or otherwise injured such sheep or lamb : but no such penalties shall be enforced in case it appears to the satisfaction of such Justice of the Peace that it was not in the j»ower of such owner or keeper to kill such dog or dogs. 32 V, c. 31, s. 12. Provision for jg. Jn case the owner of any sheep or lamb so killed or there in a injured proceeds against the owner or keej)er of the dog that but^di'streM Committed the injury, before a Justice of the Peace, as nro- insufflcient. vided by this Act, and is unable on the conviction ui the offender, to levy the amount ordered to be paid, for want of sufficient distress to levy the same, then the Council of the Municipality in which the offender resided at the time of the injury shall order their Treasurer to pay to the aggrieved party the amount ordered to be paid by the Justice under such conviction, saving and excepting the costs of the pro- ceedings before such Justice and before the Council. 32 V. c. 31, s. 9. Piovirionfor 19. The owner of any sheep or Iamb killed or injured by ^hich'owiier 8wy ^^ogj *^6 owner or keeper of which is not known, may,. Dogi known to worry ■heup to be killed by owner. Panalty. Proviro. Proviso. c. 194.] PROTECTION OF SHEEP. 045 After com> peniatlon paid by munici- pality, clainii to belong to them. Proviso. within throo months, ai)|>ly to tlie Council of tbo Muniul- nrjox not |)ality in which such shooj) or lamb wiis ao killed or injured, *"*"'"• for componHutiou for the ii\jury ; and if such Council (any membor of which shall be comiHstuut to adniiniHtor an oatu or oaths in examining {mrties in the premiscH) in Hatisfiod that the aggrieved ixirty has made diligent search and inquiry to ascei'tain the owner or keejMsr of such dog, and that such ovmer or keeper cannot be found, they shall award to the aggrieved party for comitenstttion a sum not exceeding two- thirds of the amount of the damage sustained by him ; and the Treasurer of such Munici))ality shall pay over to him the amount so awarded. 32 Y. c. 31, s. 8. 20. After the owner of such sheep or lamb has received from the Municipality any money under either of the pre- ceding sections, his claim shall thenceforth belong to such Municipality ; and they may enforce the s^ame against the offending party for their own benefit, by any means or form of proceeding that the aggrieved party was entitled to take for that puq)Ose, but in case such Municipality recovers from the offender more than they had paid to the aggi-ieved party, besides their costs, they shall pay over the excess to such aggrieved party for his own use. 32 V. c. 31, s. 10. 21. The owner of any sheep or lamb killed or injured Cases wher» while running at large upon any highway or unenclosed land, sjieep, eta, shall have no claim under this Act to obtain comi)ensation p"g"uon!° from any Municipality. 32 V. c. 31, s. 15. 22. If the Council of any County or Union of Counties, Liability of Sy by-law, decides to dispense with the levy of the aforesaid shwjpTwner* tax in the Municipalities within its jurisdiction, the owner of w''^™ *•« any sheep or lamb to the contrary may notwithstanding sue the owner or keeper of any dog or dogs for the damage or injury done by the said dog or dogs to the said sheej) or lamb ; and the same shall be recovered in the way and manner pro- vided by section sixteen of this Act. 32 V. c. 31, s. 14. 23. L ery Justice of the Peace shall be entitled to charge 'cos and such fees .n cases of prosecutions or ordei"s under this Act as justiw's. ^ it is lawful for him to charge in other cases within his juris- diction ; and he shall make the returns usual in cases of con- viction, and also a return in each case to the Clerk of the Municipality, whose duty it shall be to enter the same in a book to be kept for that purpose. 32 V. o. 31, s. 16. 119 / 1l t'i f] J '. 04r, TirK MVSWIVAl. MA.Vr Af,. [R. 8. o. An Act respect lnj( PouikIh, IJ. H. O. C'Ai'. 106. Act to li'i ill ffircfi iinlrnH hiijkt Hf:(l(!(1 hy iriiiiiicijiril liy Inw, H, I. T I to 1)1! fiirMJHhod to [ioiind-kt;«!|> . lieation of HiirpliiH, h IS. If (lania^;eK disputed, h. \'.). Fence viewr:rH to arhitrate, h. -K), And f:ertify award to puiind- krif'per, n. 21. I'onaltieH : I'or net;Ieetin({ to feed \-n pounded anim.'dH, h. li'J, l''or ne.;,dect of duty hy frTK;«- viewerH, h. 'I'.i. Ffow to he rer:overed, «. til. Application of, h, 2^>. Act ifiny hfl )>ii|M'rfi)»l>i,v liiwd under Il«ly of fJio I'r«viii(;«! of Ontario, (jn/ict^ iiM J'olloWH : -- 1. Until vari(!«l or fitlmr proviHionH an? rriinl^; fiy Ky Ijiwh ]Mi,.SH«;(l nndcr tin* aiiUif)rity of H'rrtion fcM.- )iiir»y thy Hiu;h unirnal, iiltJioii^li tliii U'.ui-A^ «;ii(;|(>Hiii^ tilt; |ii'*' i»r»ivio(i«ly ri'plcvic*!, t,!i«! I'oiind k»'ci»«T kIihII iiii wii»t [KHiis'l any liorM«i, l>iiH, ox, row, n]tt'V]i, n<>ni, pij^, or otJu-r iroiKiiiri'iml. nif.fwi, ^»^«'H(! or Hiiy (jf.lit^r |»oii|f,ry, (liHtraincM tr»r iin law fully iniiniii;^ af. Ifir^o, or for t,r<'".[((mKiri;.j «rifl (l'K«r l»y any |»«!rHOfi ntHiflcnt- within Ihm (Iivi«ion who Juim diMfrairicfl tfif Ham*; ; or if the. owrif.r of any j^»«;h«! or ol.lirr |ioiilt,iy nfiiMi-N or t\fp^\<;i:\H U» VwHry, jtinvciit f,h«! muu-. from J.rcH|»(iHMin>( »iri liiw ru'ij^lihoiirH' ]>ri;- luwM uiii'V a tt', in wiit.inj^ Iimh lif«!n h«;rv#r(| upon liini of their t,r«-HjiiiHM, fimn tho ow»i»r of mirli poultry may Ixr l»roiii,'lit, hfl'oro any .limtic*! of t.li»! I'«m»'#; an .'{<> V. r. ", I C^h 4. Win'.n III*! common pound of tli»i Muni';i[»alit.y or phw ♦! wh(;ri« ••'imtnori l>'Mirioundin({ the animal Hhall, at the time (tf kih-Ii im ixtiinding, dcftoHit jioundaj^c fecH, if Huch me demanded, and within t.wenty-foiir hoiirH thereaft.«ir deliver to the round- keeper d.iplif!at.y the I'oiind keeper) in the form followiti;^, r»r in ADidH to the ;Hamf; effect : " I (or we nn tin- ratr nifii/ /><■) do tieretiy aj^ree that f, (or we.) will |iay to ttie, 'iwner of tlie (iIihi riling flir nniiind) l»y tne (A. I>. ^thiH :li the. m.'ikI owner rn.'iy he put in '.vixe tin: (liMtreHH tiy trie the flaid A. 15. proven to l»e dlej^al, or in enwe the 'laiid for dftnia;^iiii(l- rri.hR«nim*l Uln kind. U i 1? 948 THE MUNICIPAL MANUAL. [P. S. 0. by a resident of the Municipality for straying within his prc- miaes, such person, instead of delivering the animal to a Pound-keeper, may retain the animal in his own |)OM8osHion provided he makes no claim for damages done by the animal, and duly gives the notices hereinafter in that case requiied of him. 29-30 V. c. 51, s. 355 (5). If the owner 7. If the Owner is known to him, he shall forthwitli m\i\ la known. , ,• /. 1 • . 1 , ." . to the owner notice m wntmg ot having taken up the annuiil 29-30 V. c. 51, s. 355 (6). If unknown, notice to clerk of mu- nicipality. Duty of clerk thereon. If the aniinaiR arc worth $10 or OTer. Notice of ■ale. When faiej may Iks made. If animal in not Im- poundi'u, but rctalnud- 8. If the owner is unknown to the person taking up and retaining possession of the animal, such jiei-son shall, within forty-eight hours, deliver to the Clerk of the Mnnicipjility a notice in writing of having taken uj) the animal, and con- taining u description of the colour, age and natural ?nd artificial marks of the animal, as near »is may be. 29-30 V. c. 51, s. 355 (7). 9. The Clerk, on receiving such notice, shall forthwitli enter a copy thfireof in a book to be kept by him for thai purpose, and shall post the notice he receives, or copy tlif-n-of, in some conspicuous place on or near the door of hin ollicc, and continue the same so posted for at least one week, imle>.s the animal is sooner claimed by the owner. 29-30 V. c. 51, s. 355 (8). 10. If the animal or any number of animals taken up at the same time is or are of the value of ten dollai-s or iiion.-, the distrainer shall cause a copy of the notice to l»e pnldishcd in a neM'spajKir in the County, if one is publLslied tlxTfiii and if not, then in a newBpH|)er published in an iidjoiniri},' County, and to be continu(!d therein once a week for three successive weeks. 29-30 V. c. 51, s 355 (9). 11. In case an animal is impounded, notices ff)r the 'erRon who impounds or confines, or causes to be imjunrnded or confined, any animal in any common pound or in any open or close pound, or in any enclosed place, shall daily fui-nish the animal with good and sffFicient food, water and sJKiltnr, during the whole time that such animal continues impounded or confined. 29-30 V. c. 51,8. 355 (13). 15. Every such person who furnishes the animal with food, water and shelter, may recov(!r tho value tliere("f from the owner of the animal, and also a reasonable allowance for his time, trouble and attendance in the pr(!mi.ses. 2'J-30 V. c. 51, s. 355 (14). 16. The value or allowance as aforesaid may be recovered, ■with costs, by sunmiary proceeding be^' i-e any Justice of the Peace within whose jurisdiction the animal v/ms imjiomided, in like manner as fines, [)enalties or foi-feitures for the V)reach of any by-law of the MunicijKility may by law be recovered and (inforced Vjy a single Justice of the Peace ; and tlie Jtistico shall ascertain and determine the aniount of such value and aHowance wh«m not otherwise fixctd by law, adlutring, so far UK fii>])lieable, to th«! tariff of l'oundkeep(!rs' fccH and chaj'ges eHtahlished by the l)y-laws of the Municipality. 2'J-30 V. c. 51, 8. 355 (15). 17. The Pound-keeper, or ))erson so entitled to |)iocced, may, instt-ad of such summary [)roceeding, enforce the I'emu- ntTation to which he is entitled in manuci hevfiinaftor men- tioned. 29-30 V. c. 51, 8. 355 (IG). Konper to feed Im- pounded cattle. And may recover the vaiao. In what maimer Nuch value may be recovered. other mo|>uU!H ro- SkrillnKtuch oiiiaiiU, how det«rtDlDOiO V. c. 51, s. SoS (21). 22. In case any Potmd-kee])er or pco'scm who impounds or contin(!s, or causes to he inij)ounded or confined, any animal as id'oresaid, refus«!s or neglects to find, providis and supply the animal with good and suHicient food, wjit;> (22;. 23. Any Fence-viewer neghtcting his duty iis arhitrator as aforesaid, shall incur a penalty of two dollais, to l)f! recovered for the use of th(» Municipality, hy summary piocciedings Ix^fore a Justice of the I'eace >ipon the com|»laiiit of 'he. party af,'i,'ri«!vcd, or the Treiusurer of the Municipality. 29 30 V. c.'r,l,s. 355 (20). 24. Every fine and penalty imposed hy this Act may he recovered and enforced, with costs, l»y summary con . iction, before any Justice of the I'eace ffir the County, ■ )f the Municipality in which the ofi'ence was committf iid, in defimlt of payment, the (;(h'i)der may ho commit to the Common Uaol, House of Correction, or I^ock-up iluuso of such County or Municipality, there to he impriso for any titne, in the discretion of the convicting and ■ nmitting Justice, not exceeding fourtec^n days, uidtiss hi I'mc, and |Hiii!ilty, and costs, inclu in which the oU'ence was committed, and the other moiety th'v<'oi, with I'rocoeillnjfii whttro fori<;e- vioworii (lu- the iKKKlity of a funco. Ual)illty of poiind- kenpnr rcfua- in({ to foci nnltnal Impouiiduii. I'nnalty for no|{l«rt of duty hy foncfl- ▼luwon. I{r!('f)V('rv an.l onf irco- incnt of pciialticA. Tinpr1w)n- iiiiiiit in il«f.uilt f,( piiyinfiiit. Application of pennltics. 962 TIIK MTTXICIPAL MANUAL. [R, H. 0. full cfwfu, to thft pfifHon wlio informal and i»ro»M!Cut(d for the wirrf), r»r to Huch oth«r fKjrHon jih to the JuMtioo mcctiih proTicr 29-30 V. c. 61, 8. 356 (25). An Act respecting the investigation of Accidents by P'ire. R. H. O. Cap. 198. When invoHtigation to Ikj hold, H. I. I'owftr of f Jorrtner oh to evidence, M. 2. Ah to ompundling a jury, m. 3. Ah t** ftttcndiitHjo of witiKiHHCM, H. 4. Art to jiirf)rH, K. /). 'I"h«80 poworH are in jyMitirm to thoHc ftlrf!a«ly vented in (.'orrmor, h. fj. Allowance to (-'oroncr, h. 7. |{y whom j)iiyahli!, h. H. iVfiuiifiipality, when iiahle ff.r, H. 0. C'oatH of ndjruirnmontH, when allowed, h. 10. Coroner to in'inire into ••it) origin of flro» Such Inquiry not to talr- taln (rlruum- stanocii. HER MAJESTY, by and with tho fidvico and oonHont of tho L»!^nHlativc AsHcniMy of th)0 tho duty of tho Of)ronor to inotitnt^j an inquiry into tho cauw; or origin of any fin; or fircH by which any Iiouho or othftr building liaH boon whf»lly or jiartly con- Huniod, nor Hhnll Kuch inquiry b(f had, until it has first f«!en rnado t^) n}»f»oar to Huch ('orojior that thcro is HiaHon tr» bclicvo that «uch fii-e wjw tho rcHult of culpable or nc»n in accordfiner; witli tho tiu;t,H. (',. H. (j. c. HH, 8. 4. 4. f f any person simimoned to appear ' t"'. >, any Coroner noting under this Act, jh-^IccAh or refuHcH '<< appear at tin; time, imil place Hpecifuid in the, Huirimc)nH, <;r if any hucIi per- son, appearing in obedience to any Kuch HiimmoriH, refiiHCH to J*e examined or to answer any (pieHtiona put to him in the c/nvHi', f)f luH examination, the (Jorr»ner may enforce tho atti>u any hucIi intpdry, does not, after biitig f)peidy cnlled thre*' times, appear and hcvvc. as hik'Ii jurfjr, tli(; Coronei- may iin|K.Hc ij|>oii the, pi-rson ko making defdult sueli finf; us he thirik>i fit, not exceediri;^' four flollars ; arnl sueli Cf)r()ner shall uinke out ««kI sign a c»'ilificate,cf)ntairiing the name, resirhaice, tmde or CHlling f)f nueh pers/jn, together with the jirnount of tlie (in(! im prised, and the cause of such tint-, and shall tjansmit tho certificate! it) the C'lerk of the PiwMJe in the l>istrict or ('onnty in which such defaulter rpsides, on or iK'f'ore tin; first 'lay of the (General Hessions of t,li«- Peace the,n next coisuing for such District/ or fJounty, and «iiiall cause a fa>py of such certificate to Ik; served nf«»»n the ri«>rsr»n so fined, by leaving it at his residence, within a nasHoiiatde time after such inquest ; 120 Rvl'IntiM to hi taken on OKth. Jury rtiay tio <'m|iitnu llahlo. In what fa«fl only footJi of an wljoiini- rncnt Mhall be allowed. and all finoH and foiffjittirfiH ho cortifio*! ))y Kiicli Coronor hIihII bo <-HtrcnU',(\, lHvi«;d and applif^d in likn manner, and Hiiliji!ct tr) Jikf! j)ow»!)'H, })i-riviKionH and pmialtinH in all n-HpfMits, hh if tli(!y had Itctsn part of tin; (im;H ini[K)H(:d at huoIi (ifjiicnd HdHh'lOUH, C. S. C. c. 8ft, H. 0. 6. Nothinj( hnrffin containfMJ Hhall niTc.ct any powf-r l>v law vfiMtcd in any (^oroiHir for coni|>(dliii^ any |>*)ihoii to attend aiMJ act aM a juror, or to apfM!ar and ,'^ivf» cvUIcuca', Jxrfor*; liiiri on any inrpuiHt or otlif^r proco«ding, or for iMinisliinf,' ariv |»er- Hon for oont«!nipt of CJoiii't in not ho attending atnl acting or ap[K.'a.rinj{ and j^ivin^ «!vid<;n(;(; liahle for any such expense unless the inv(!sti^ation u r(!«piired hy an instrument under th\m:ui oC tJif! fiJ!;^iHl)itiv(5 AHH(!mlJy of tlio Province oi" Oiitari<*, cimctH Its follows : — 1. [f tilt! workiiij( ni' liny oil well \h r<:Uiv(h'.(\ or iiiimcl Ity thf; \V!it,«T (ixistiiij^ in or flowing into miy ahaiidoiKMJ oil w«;ll ill tlio vicinity of tins w<;ll ho injnn^d, it Hhall and may Ims lawful for tlio owmtr of such wrtll ho injiirctd to a|»|)ly to til" .Municipal C(»uncil of the Municipality in which Huch aliiindiincd well Ih situated, for the jiurpone of hein*; al- lowed hy HUch (.'ouncil to either fill up sii(;li aliandoned w(;ll 'ir in Honie other effectual way to sliut off the water flowing lli(;n;in. 2. The f/'ouncil shall, uf^or. such appli(!a,tion i)ein;4 rnade in writing l»y tln! person injured or aggrieved hriefly netting forth the grievance, order some Kngineer or other competent [HPHoti to (ixamine the said ahandon(;d w(dl, and after such 'xaiiiination U> report to the HJiid (Council in writing whether in liis opinion the person (complaining is injured as alleged, "till wlifrther th(! said abandoned well should he filled up, or till; water llf)wing therein shut off in some otli(;r aiid what iiwniier. .'{."> V. c. 39, H. 1. 2. In ciuse the said Engineer or otlier competent ]>(Tson r''|iort,H to tlie Council that in his opinion tlu; siiid !ib(indf)n(id *f!ll w> complained of 8houM be filled up, or that the wat(!r Ownorn .if w(;ll InjiirtHl may Bpnly U> Muni(!i|>al (Joiiiiclln to nil ii|> n))An- (liitiuil Weill. I 'o worn f)f Oil; (.''lUIicil. r<;p'irt< u, WmII ihriiild Iw filled u|>, <■ ''^ .-y ' '906 THE MUNICIPAL MANUAL. [R S. 0. ownan thanofto tw hotlflod. flowing therein Hhould lie Hhut off in some other way, tlio Clerk of the Council shall mail to the owner or ownera of such abandoned well, or to some one of such owtKfrs, or to his or their agent in charge of the premises where such uhaii- doned well is situate, a copy of such rejMjrt, with a notice in writing, signed by said Clerk, stating that tmlcHH snid uhau- doned well is filled up or the water flowing therein is cflectu- ally shut off in accordance with the opinion contained in the said report, that the pei-son complaining will proceed to do the work as provided in the next sectiou. 35 V. c. 39, s. 2. Ouea when- 3* If the said abandoned well is not filled up, or tlio wat In case of dispute between owners respecting such pro- Disputes portion, the following proceedings shall be adopted : owii!^m%ow 1. Either owner may notify (Form 1) the other owner or tJb« settled, the occujmnt of the lani of the owner so to be notified, that owner or (a) By 41 Vict. c. 10, s. 1, it is enacted that, "The axpreasion 'occupied lands' shall not include so much of the lot, jjan-el, or fami as is unenclosed, although a part of such lot, parcel, or farm is euulosed, and in actual use and occupation." <*•, f -% 23 WIST MAIN STREET WEBSTER, N.Y. 14SS0 (716) 873-4S03 C^ '''' i c im 958 THE MUNICIPAL MANUAL. [R. S. 0. occupant of he will, not less than one week fft)m the servicQ of such notice fmnd°'"^ cause three Fence-viewei-s of the locality to arbitrate in the .». ,1 ),*»"* ,;| M' 'J M' J i' 1 '. I f I And to fence- Tiewers. What to contain. premises, 2 Such owners so notifying shall also notify (Form 2) the Fence-viewers, not less than one week before their services are reqiiired. 3. The notices in both cases shall be in writing, signed by the pei"son notifying, and shall specify the time and place of meeting for tlie arbitration, and may be served by leaving the same at the place of abode of such owner or occupant, ^ with some grown-iip person residing thereat ; or in case of .such lands being untenanted, by leaving such notice with any agent of such owner. wher. Judge 4. The owners notified may, within the week, object to fence-'"'"'' ^"7 ♦^'^ ^^^ ^^ ^^^ Fence- viewers notified, and in case of disa- Tiuwers. greement, the Judge hereinafter mentioned shall name the Fence-viewers who are to arbitrate. 37 V. c. 25, s. 3. 4. An occupant, not the owner of land notified in the manner above mentioned, shall immediately notify the owner; and if he neglects so to do, shall be liable for all damage caused to the owner by such neglect. 37 V. c. 25, s. 9. 5. The Fence-viewei's shall examine the premises, and if required by either party, they shall hear evidence, and are authorized to examine the parties and their witnesses on oath, and any one of them may administer an oath or affirmation as in Courts of Law. 37 V. c. 2.1, s. 4. 6. The Fence-viewers shall make an award (Form 3) in writing signed by any two of diem, respecting the njattersso in dispute ; which award shall specify the locality, quantity, descrii)tion and the lowest price of the fence it orders to be made, and the time within which the work shall be done, and shall state by which of the said parties the costs of the pro- ceedings shall be })aid, or whether either party shall pay some proi)ortion of such costs. 2. In making such award, the Fence-viewers shall regard the nature of the fences in use in the locality, the pecuniary circumstances of the persons between whom they arbitrate, and generally the suitableness of the fence ordered to the wants of each party. 3. Where, from the formation of the ground, by reason of streams or other causes, it is found impossible to locate the Duty and liability of occupants as to notifying owners. Duties and powers of fence- Tiewers. Award of fence- Tiewers. Contents. Character of fence. Location of fence. c. 198.] LINE FENCES. 969 fence upon the line betweefi the parties, it shall be lawful for the Fence-viewers to locate the said fence either wholly or partially on the land of either of the said jjarties, where to them it seems to be most convenient ; but such location shall not in any way affect the title to the land. 4. If necessary, the Fence-viewers may employ a Provin- Empioy- cial Land Surveyor, and have the locality described by metes ™rveyor. and bounds. 37 V. c. 25, s. 5. 7. The award shall be deposited in the office of the Clerk Deposit of of the Council of the Municipality in which the lands arc *"*' " situate, and shall be an ofKcial document, and may be criven . . ' . , , 1- V i.-x: 1 Award may m evidence m any legal proceeduig by certihed copy, as are be evidence, other otficial documents ; and notice of its being made shall Notification be given to all parties interested. 37 V. c. 25, s. G. of award. 8. The award maybe enforced as follows ; —The person Award, how desiring to enforce it shall serve upon the owner or occupai>t *"* ° ' of the '.djoining lands a notice in writing, requiring him to obey the award, and if the award is not obeyed within one month after service of such notice, the person so desiring to enforce it may do the work which the award directs, and may immediately recover its value and the costs from the owner by action in any Division Court having jurisdiction in the locality ; but the J udge of such Division Court may, on ap[)lication of either party, extend the time for making such fence to such time as he may think just. 37 V, c. 25, s. 7. 9. The award shall constitute a lien and charge upon the Award to be lands respecting Avhich it is made, when it is registered in the i^m^dg''if *"* Registry Office of the County, or other Registration Division registered. in which the lands are. 2. Such registration may be in duplicate or by copy, ])roved "ow by affidavit of a witness to the original, or otherwise, as in '"'''"' *' the case of any deed which is within the meaning of " The R^.^^***" Registry Act." 37 V. c. 25, s. 8. 10. The Fence-viewers shall be entitled to receive two Fees to fence- dollars each for every day's work under this Act. Provincial ylyo^lind'" Land Surveyors and witnesses shall be entitled to the same witnesses, compensation as if they were subpfunaed in any Division Court. 37 V. c. 25, s. 10. 11. Any person dissatisfied with the award made may Appeals, appeal therefrom to the Judge of the County Court of the 960 THE MUNICIPAL MANUAL. [R. S. 0. I ■•i- Jl f »- 1: 'i Notino of appeal. To clerk. Notice of hearing. County in which the lands are situate, and tlie proceedin"s on such appeal (jhall be as follows : — 1. The ai)pellant shall serve upon the Fence-viewers, and all parties interested, a notice in writing of his intention to appeal within one week from the time he has been notified of the award : which notice may be served as other notices mentioned. in this Act. 2. The appellant shall also deliver a copy of such notice to the Clerk of the Division Coui't of the Division in which the land lies, and the Clei*k shall immediately notify the Judge of such appeal, whereupon the Judge shall appoint a time for the hearing thereof, and, if he thinks fit, order such simi of money to be paid by the appellant to the said Clerk us will be a sufficient indemnity against costs of the appeal. 3. The Judge shall order the time and place for the hear- ing of the appeal, and communicate the same to the Clerk, who shall notify the Fence-viewers and all parties interested, in the manner hereinbefore provided for the service of other notices under this Act. 4. The Judge shall hear and determine the appeal, and set aside, alter, or affirm the award, correcting any error tliereiii, and he may examine parties and witnesses on oath, and, if he so pleases, may inspect the premises ; and may order pay- ment of costs by either party, and fix the amount of such costs. 5. His decision shall be final ; and the award as so altered or confirmed, shall be dealt with in all i-espects as it would have been if it had not been appealed from. G. The practice and the proceedings on the appeal, including the fees payable for subpoenas and the conduct money of witnesses, shall be the same, as nearly as may be, as in the case of a suit in the Division Court. 37 V. c. 25, s. 11 ; 40 V. c. 7, Sched. A (202) ; 40 V. c. 8, s. 58. Registration 12. Any agreement in writing (Form 4) between owners uiente?^ respecting such line fence may be filed or registered and en- forced as if it'was an award of Fence-viewers. 37 V. c. 25, s. 12, Ownorof 13. The Owner of the whole or pai't of a division or line fence"\vhich fence which forms part of the fence enclosing the occupied or fonns part improved land of nnother person, shall not take down or ro- of anotlier ^ i. t? i. ^ person's land move any part 01 such lence, Powers of the Judge. Decision of .7udge to be final. I? 1^1 198.] LINE FENCES. 961 (a) Without giving at least six months previous notice of not to his intention to the owner or occupier of such adjacent enclo- wMpVupon* nure ; notice, &o. (b) Nor unless such last mentioned owner or occupier after demand made upon him in writing by the owner of such fence, refuses to pay therefor the sum, to be determined as * provided in the sixth section of this Act ; (c) Nor if such owxier or occupier will pay to the owner of such fence or of any part thereof, such sum as the Fence- viewers may award to be paid therefor under the sixth section of this Act. 40 V. c. 29, s. 1. 2. The provisions of this Act relating to the mode of deter- Provisions of mining disputes between the owner of occupied adjoining ^ppjy*'to*° lands j the manner of enforcing awards and appeals there- cwei under from ; and the schedules of forms attached hereto, and all ^^^ section, other provisions of this Act, so far as applicable, shall apply to proceedings under this section. 40 V. c. 29, s. 2. 14. If any tree is tlirown down, by accident or otherwise. Provision, across a line or division fence, or in any way in and upon the ^^thrown** property adjoining that upon which such tree stood, thereby down • 1 111 1 111 ftOTOBB ft llQO causmg damage to the crop upon such property or to such fence, fence, it shall be the duty of the propx'ietor or occupant of the premises on which such tree theretofore stood, to remove the same foi-thwith, and also forthwith to repair the fence, and otherwise to make good any damage caused by the falling of such tree. 2. On his neglect or refusal so to do for fox'ty-eight hours When in- after notice in writing to remove the same, the injured party m^ remove may remove the same, or cause the same to be removed, in ^^• the most convenient and inexpensive manner, and may make good the fence so damaged, and may retain such tree to remunerate him for such removal, and may also recover any further amount of damages beyond the value of such tree from the party liable to pay it under this Act. ' 3. For the purpose of such removal the owner of such tree Entry to may enter into and upon such adjoining premises for the re- """to*i» a* moval of the same without being a trespasser, avoiding any trespass, &c. unnecessary spoil or waste in so doing. 4. All disputes arising between paities relative to this Fence- section, and for the collection and recovery of all or any sums dedde" ** of money becoming due thereunder, shall be adjusted by disputes. 121 ■ 1 962 Formi. THE MUNICIPAL MANUAL. [R. S. 0. three Fence-viewers of the Municipality, two of whom shall agree. 29-30 V. c. 51, s. 355 (28). 16. The forms in the Schedule hereto are to guide the parties, being varied according to circumstances. 37 V, c. 25, 8. 13. . a > 'i I SCHEDULE OF FORMS. FORM 1. {Section 3.) NOTICE TO OPPOSITE PARTY. Take notice, that Mr. _ , Mr. ^ , and Mr. , three fence-viewers of this locality, will attend on the day of , 18 , at the hour of , to view and arbitrate upon the line fence in dispute between our properties, being Lots {or parts of Lots) One and Two in the Concession of the Township of , in the County of . Dated this To C. D., Owner of Lot 2. day of , 18 , A.B., Owner of Lot 1. FORM 2. {Section 3.) NOTICE TO FENCE- VIEWERS. Take notice, that I require you to attend at on the day of , A.D. 18 , at o'clock A.M., to view and arbitrate on the line fence between my property and that of Mr. One and Two in the , in the County of Dated this , being Lots (or parts of Lots) Nos. Concession of the Township of day of ■ , 18 . A. B., Owner of Lot 1. > } 0. 198.] LINE FENCES. FORM 3. {Section '6.) AWAKD. We, the fence-viewers of {name of the locality), having been nomin- ated to view and arbitrate upon the line fence between by {name and description of otoner who notified) and {name and description of owner notified), which fence is to be made and main- tained between {describe properties), and having examined the premises and duly acted according to " The Line Fences Act,*' do award as follows : That part of the said line which commences at and ends at {describe the points) shall be fenced, and the fence, maintained by the said , and that part thereof which commences at , and ends at (describe the points), shall be fenced, and the fence maintained by the said . The fence shall be of the following descrip- tion {stcUe the kind of fence, height, material, d-c. ), and shall cost at least per ronl. The work shall be commenced within days, aud completed within days from this date, and the costs shall be paid by {state by xohom paid ; if by both, in what proportion). 963- Dated this day of , A.D. 18 . {Signatures of fence.-vieieers.) FORM 4. {Section 12.) AGREEMENT. We and , oMmers respectively of Lots {or parts of Lots) One and Ttoo in the Concession of the Township of , in the County of , do agree that the line fence which divides our said properties shall be made and main* tained by us as follows : {follow the samjeform as award.) Dated this day of , A.D. 18 . {Signatures ofpartie8.\ 11^ m ■^.: f ■i: ' t J ;■; ''' : f -1 M THE MUNICIPAL MANUAL. [R. S. 0. r . An Act respecting Ditching Water- courses. R. S. 0. Cap. 199. d';;, ^?:| Short Title, s. 1. Application of Act, a. 2. Ihity of adjoining owners as to ditches, s. 3. Proceedings in case of dispute, s.4. Notice to owner, s. 4 (1). Notice to Fence- viewers, s. 4 (2). Occupant to notify owner, s. 5. Duty 01 Fence-viewers, s. 6. Award : — What to contain, a 7. To be filed with Clerk, s. 8. To be a lien on land, s. 9. How enforced, b. 10. Fees payable on, s. 11. Appeals from, s. 12. Act ap^ies to Municipal Corpora- tions, a. 13. Subsequent parties, s. 14. Agreement may be registered, s. 15. Forms, s. 16. HER MAJESTY, by and' with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : — Short title. 1. This Act may Courses Act" be cited as " The Ditches and Water Certain Acts 2. This Act shall not affect the Acts relating to Municipal by*tMB*Art Institutions or the Acts respecting Drainage, as this Act is intended to apply to individual, and not to public or local interests, rights, or liabilities. 38 V. c. 26, s. 2. 3. In case of owners occupying adjoining or adjacent (a) lands which would be benefited by making a ditch or drain, or by deepening or widening a ditch or drain already made in a water-course, or by making, deepening or widening a natural ditch or drain for the purpose of taking offsui'plus water from swamps or low miry land, in order to enable the owners or occupiers thereof to cultivate the same, such several owners shall open and make, deepen or widen a just and fair propor- tion of such ditch or drain, according to their several interests (a) Printed as amended by 41 Vict. c. 12, s. 3. See p. 977. Owners to construct ditclies in certain proportions. «. 199.] DITCHES AND WATER-COtTRSES. 965 in the constniction of the same ; and such ditches or drains shall be kept and maintained so opened, deepened or widened, by the said owners re8i)ectively, and their successora in such ownership, in such proportions as they have been so opened, deepened or widened, unless in consequence of altered circum- stances the Fence-viewers hereinafter named otherwise direct, which they are hereby empowered to do upon application of any painty interested, in the same form and manner as is here- inafter prescribed in respect of the original opening, deepen- ing or widening ; and in case the Fence-viewers find no reason for such application, all costs caused thereby shall be borne by the applicant. 38 V. c. 26, s. 3. 4. In case of dispute between ownera respecting such pro- Dinputegto portion, the following proceedings shall be adopted : — to fence- viewera. 1. Either owner may notify (Form 1) the other owner or Notice to the occupant of the land of the owner so to be notified, that oTCup'e?^of he will, not less than one week from the service of such luijoining notice, cause three Fence-viewers of the locality to arbitrate *" in the premises. 2. Such owner so notifying shall also notify (Form 2) the And to fence- their services viewers. rence-viewei-s not less than one week before are required. 3. The notices in both cases shall be in writing, signed by Contente of the pei*son notifying, and shall specify the time and place of meeting for the arbitration, and may be served by leaving the same at the place of abode of such owner or occupant, with some grown-up person residing thereat, or in case of a non resident, by leaving such notice with any agent of such owner. 4. The owner notified may, within the week, object to any when Judge or all of the Fence- viewers notified ; and in case of disagi-ee- fence-'''"*"' ment the Judge {b) hereinafter mentioned shall name the viewerB. Fence-viewers who are to arbitrate. 38 V. c. 26, s. 4. 5. Where the lands are situate in different municipalities Selection of the said fence viewers shall be selected" as follows : two from e^*^he?r' the fence viewers of the municipality in which the land of'andadjoinB the other owner or occupant so notified is situate, and the munidpaU- third from the fence viewers of the municipality in which *'•■• (b) The Judge of the County Court of the County wherein the land of the owner to be notified lies. See 41 Vict. c. 12, s. 2. See p. 976. I I: J' m In Mi !1 3 IV,- 906 THE MUNICIPAL MANUAL. [R. S. 0. OooupkDti to notify ownttri. Duties of fenco- viewori. Award H. Contents of. Wliat to be oonsidored. Estimatea oxoocded. Supplemen- tary award. Fence- viewers may order open- ing of ditch across another per- son's land. tho land of the party K'^ing the noticci in Hituato. In caw! of a disagrooinent uh provkltHl in HultKoctiou ionr of thiH Huctioii the county judge may appoint the venco viewei'H iudifl'orontly from 'either or both inunicii)alitioH. (c) 6> An occupant not tho owner of land notified in th(! man- ner above mentioned, Hhall immediately notify the owner ; and if ho ncgUiotH ho to do, Hhall be liable for all damage caused to tho owner by such neglect. 38 V. c. 26, 8. 12.- 6. The Fence-viewers shall examine the premises, and if required by either party, they shall luiar evidence, and arc authorized to examine the parties and their witnesses on oath, and any one of them may administer an oath or atlirmutiou as in Courts of Ljiw. 38 V. c. 26, s. 5. 7. The Fence-viewers shall make an award (Foriri 3) in writing, signed by any two of them, respecting tho matters so in dispute, which award shall specify the locality, (juality, and description and cost of tho ditch or drain it onhjrs to be made, and the time within which the work shall be done ; and shall state by which of the said parties the costs of the IH'oceedings shall bo paid, or whether either party shall j)ay some proportion of such costs. 2. In making such award the Fence-viewers shall regard tho nature of tlie ditches or drains in use in tho^ locality, and generally tho suitableness of the ditch or drain ordered to the wants of the parties ; and the Ftnice-viewera may, if they think necessary, emjjloy a Provincial Land Surveyor for the ])urpose of taking levels, or of making a plan for the' parties to follow in making tho ditch or drain, or for other purposes. 3. If the expense of the ditch or drain exceeds the expense as estimated by the Fence-viewers, the same Fence-viewers may be again notified in the same manner herein provided, and shall attend, and, if they see tit, make a supi)lementary awai'd respecting such expense whicli award shall have the same effect, and may be dealt with in all resjKJcts as if it were part of the tii-st award. 38 V. c. 26, s. 6. 4. If it appeal's to the Fence-viewers that the owner or occupier of any tract of land is not sufficiently interested in the opening up the ditch or water-course to make him liable to jjerform any part thereof, and at the same time that it is (c) This sub-section was added by 41.Vict. c. 12, a. 1. See p. 976. ;i a 199.] DITCHES AND WATEK-<;0UH8EH. 967 nficoHHary fur tho othet* party tliat hucIi ditch hIiouUI bo con- tinueil ucroflH hucU tract, tb«y iiiuy award tho Hanio to l)c doiio at the cxpcnHo of such other [larty ; and aftciiho, without iHtitig a troHpuHHcr. 40 V. c. 8, 8. 59. 8. Tho award and any plan niado as al)ovo provided for, DoponUof Bhall bo deposited in the olHco of the Clerk of tho Munici- jrw.Ii^'.'* pality (on the Award to be lands respecting which it is made when it is registered in the *^Uj° "^ *''• Registry Ollice of tho County or other Kegistrution Division in which the lands aro. 2. Such registration may bo in duplicate or by copy, Reuintration proved by affidavit of a witness to tho original, or otherwise, "'•*"'*• as in tho case of any instrument which is within the meaning i"'- Stat, c, of " The lieijistry AcC 38 V. c. 2G, s. 9. "^• 10. The award may be enforced as follows : — The jjcrson Enforcing desiring to enforce it, provided the work is not done within *'"^''' the time specified by tho award, may do tho work which tho award directs, and may immediately recover its value and the costs from the owner by action in any Division Court having jurisdiction in the locality ; but the Judge of such Division Court may, on application of either party, extend the time for making such ditch to such time as he may think just. 38 V. c. 20, s. 8. 11. The Fence-viewers shall bo entitled to receive two Feuco- dollars for every day's work under this Act. Provinciiil wUnog^J'"** Land Surveyors and witnesses shall bo entitled to the same foes, compensation as if they were subpa'iiaed in any Division Court. 38 V. c. 20, s. 13. . 12. Any person dissatisfied with the award made may Appeal, appeal therefrom to the Judge of the County Court of the County (e) in which the lands aro situate ; and the proceed- ings on such appeal shall be as follows : — {(.t) The Clerk of the Municipality wherein the land of the owner to be notified lies. See 41 Vict. c. 12, s. 2. See p. 976. (e) See note b to sec. 4, sub. 4 of this Act. f:> H ft. ! if 31 . Vt ^il II I 968 Kotlc« of. THE MUNICIPAL MANUAL. [R. S. 0. 1. The appellant shall serve upon the Pence-viewers and r11 parties interested, a notice in writing of his intention to ap- peal, within one week ft-om the time he has been notified of the award, which notice shall be served as other notices men- tioned in this Act. To Clerk. Powen of Judge, 2. The apijellant shall also deliver a copy of such notice to the Clerk ofthe Division Court of the Division (/) in which the land or a portion thereof lies, and the Clerk shall immediately And Judge, notify the Judge of such api>eal, whereupon the Judge shall appoint a titne for the hearing thereof, and, if he thinks fit, order such sum of money to be paid by the appellant to the said Clerk as will be a ^sufficient indemnity against costs of the appeal. Notice of 3' The Judge shall order the time and place for the hear- heering. i^g of the appeal, and communicate the same to the Clerk, who shall notify the Fence-viewers and all parties interested, in the manner hereinbefore provided for the service of other notices under this Act. 4. The Judge shall hear and determine the aj^peal, and set aside, alter, or affirm the award, correcting any error therein, and he may examine parties and witnesses on oath, and, if he so pleases, inspect the premises, and he may order payment of costs by either party, and fix the amount of such costs. No appeal. 5. His decision shall be final ; and the award, as so altered or confirmed, shall be dealt with in all respects as it would have been if it had not been appealed from. 38 V. c. 26, s. 14. Liabilities of 13. In cosB any Municipal Corporation would be bene- oorporatfons. ^*^<^ ^7 ^^^^ construction of such ditch or dmin, such Corpor- ation shall be in the same position as an individual owner ■under this Act 38 V. c. 26, s. 10. 40 V. c. 8, s. 60. 14. In case any person during or after the construction of the ditches or drains herein provided for, desires to avail himself of such ditches or drains for the purpose of draining other lands than those contemplated by the original proceed- ings, he may avail himself of the provisions of this Act, as if he were or had been a party to such original proceedings ; (/) The Clerk of the Division Court of the Divisicn wherein the land of the owner to be notified lies. 41 Vict. c. 12, s. 2. See p. 976. PeraouB desiring to use ditches or drains after con- struction. ^ 199.] DITCHES AND WATRR-OOUR8E8. 969 but no person Hhall make use of the ditches or drains con- Ktnicteil under the provisions of this Act unlesH under ngi'«e- ment or award pursuant to its provisions as to use of the land of others, as to enlargement of the original ditch or drain, so as to contain additional water therein, and as to the time for the completion of such enlargement. 38 V. c. 26, 8. 11. 16. Any agreement in writing (Form 4), between owners ^"rj®?,?",** resiMJcting such ditch, may be filed or registered, and enforced mnj h» as if it was an award of the Fence- viewoiu 38 V. c 8. 15. Qg regiitored » andenforcedt 16. The forms in the Schedule hereto are to guide the Forms, parties, being vai'ied according to circumstances. 38 Y. Ci 26, s. 16. SCHEDULE OF FORMS. FORM 1. « {iSect'ion 4.) KOTICE TO OPPOSrrK PARTY. Take notice, that Mr. , Mr. , and Mr. , three fence- viewers of this locality, will attend on the day of , A.D., 18 , at the hour of , to view, our properties, being Lots {or parts of Lots) One and Ttoo in the Cfoncession and Township of , in the County of , and arbitrate respecting the ditch in dispute upon our said Lots. Dated this day of ,18 . A. B., ToC. D., Owner of lot 2 {or as the case may he.) Owner of Lot 1. FORM 2. {Section 4.) NOTICE TO FENCE-VIEWERS. Take notice, that I require you to attend at day of , A.D. 18 , at to view my property, and that of Mr. 122 on the o'clock , being Lots {or I' {MM '5 I' If 1 1 k mi m \ i' ti; . .', 111 970 TUB MUNICIPAL MANUAL. TiartH of TiOtn) Noa. One aii<1 'Am in tho Towiinhip of , in tho ( touiity of tratu on tliu ditch ruquirud on naid liOta, Dated this day of [R. H. 0. (/oncouHJon of th«j I ami arU- A,D. 18 . A. n., Owner of I/)t I. FORM 3. {Section 7.) AWARD. Wo, tho Fence- vioworB of {numr. o/ fhr lor.ntUp), having Ixiiiii iionii- nated to view and arl)itrate between {juivir (iiiif. ifiHcrmtion of oumt-r mho notifi'il) and (nmw and dcscriiillon (ff oiimcr jtoHfua) ujion n, ditch rocniired on the property of (varni; of nwni'r nolijicil), which ditch m to 1)0 made mid ninintainud on naid ()ropcrtv ; and havinu cxainincd tlio [)reiniHCH and duly acted according to 7/n'. Art rcujxrt.m'j /fifclurxj Wdfrr roiirwH, do award as folIowH : u\ ditch shall 1h; niado and maintained l>y the said cf»nnncncing at {xfoir pnUd of rinitvirtir.niirnf, H' J. fhm ijivr rnurse, and pohit of vvdini)). Tiic ditch shall 1)0 of tl.o following dcHcrijttion (Ht.ii.ti' kind, of d.itrh, d.(plh, wiillh, ti'C. ; if a plan han Im'vh jiKule //// /'roninriid Lund. Surnri/or, ili'urrihc conrm; kiwi of lUtrh, if rcf'.mirv. to plan). The work »hall Itc cotntnonced within 'lays, and completed within days from this date ; and tho costs shall ho paid {nlnli: hy v)htna to lit; jxiid, and \f bji tioth, in what jiroporliim) , Dated this Witness : day of , A.D. 18 . {Siynaturei of Fence- Viewers.) FORM 4. (Section 15. AOKEEMKNT. Wo and owners rcspnctively of Lots (or parts of Ijots) One and Tvm in tho Concession of the Towii- ship of in the County of , do agree that a ditch shall bo mado and maintained by ub as folhjws (fuUow name form an in award). Dated this Witness : day of , A.D. 18 , {Signatures of pariif:s.) V. 201.] .INflFXTlVOllOUS niRDB. 971 ConcoHition of iho , ami arlfl- Owncr of I/)t 1. An Act for the Protection of InseclivoiouH and other Birds beneficial to Agriculture. R. 8. O. Cap. 201. itUji), hftvhiK Ixic.ii nonii- iniil dvmnvtlon <>f ovmtr rif-r not'ifiM) u|>oii a ilitcli jiotifiol), winch iliti^li m ; niid haviti]^ exainitiwl ti'. A r.t rvmrlinij Ifilchirxj litch sliall Ix' """'•' '^'"1. incnriiig at (Mtnir point of ut of nidinu). 'I'lio 'I't*;*! ,'id of ditrh., dcplli, vndlh, I Land Siirvn/or, tlrxmhe. 'an). Th(i work Hhall Ix; cted within iW» (hUUi: l>y whuin U) he. jHiid, , A.I). 18 . \ireHof Fence- Vkwcrs.) la rcHpoctivcly of hota {or ^ ConccBBionoftheTovvn- I «lo agree that a ditoh Iws {follow mmc.form a* (Siqnalurts of partm.) To what biro killed, n. 2, Coiitiiring, etc., all otliur hirda rorhid(lun, h. .3. And traim for thorn may l>o do- Htroyed, «. .3. No»tH, young birdn and eggs pro- tected, H. 3. HirtlH ttnlawfully taken to he libe- rated, 8. 0. Eggs or birda for Rcientific pur- pOHCH, H. 0, I'enaltiea : Mow recoverable, h, 7 (1). Apjdication of. h. 7 (2). ImpriHoiiiiietit in default of [lay- ment, h. 7 (.3). Conviction not to be net aaido for informality, b. 8. HKIl MAJKHTY, by and with thf; mlvicf! and comcut of th(5 rjorted cjig<5 birdn or oth«!r doni«!Hticat(;d bird or birds generally known an cage birds, or to any bird or birds conunonly known a.s poultry. 'Mi V. c. 4.5, ss. f) &, 0. 2. It Hliall not be lawful to shoot, d(!stroy, wound or in- jure, or to attempt to shoot, destroy, kill, wound or injtn-(j any bird whatsoever, save and except eagles, falcons, hawk.s, owls, wild j)igeon8, king-fishecs, jays, crows, ravens, p-Iover and black birds, (6) and the birds especially inf;ntioned in 77ie Act, for the Protection o/ Game ari/l Fu/r-hearirtrj Aninuds : provided that rails may be shot between the first day of September anc the first day of January. 3G V. c. 45, a. 2. 3. It shod not 1)0 lawful to take, capture, buy, sell, expoHO for sale or have in possession any bird whatsoever, save the (a) 11, H. 0. c. 200 wa« repealed by 41 Vict. c. 18. Hec p. 978. (h) This Bcctiou'is printed as amended by 41 Vict. c. 22. >Seo p. 081. Not to nffect JCcv. 8ut. c. 200. CiiRe birdt and poultry. fiirda that may (>e killed. Rot. Stat, c. 200. S«IIInc( or exposing tat fV ■972 THE MUNICIPAL MANUAL. [R S. 0. f 'IW ■ale or kinds hereinbefore or hereinafter excepted, or to set, wholly wtoia binig. or ill part, any net, trap, springe, snare, cage or other machine or engine by which any bird whatsoever, save and except eagles, falcons, hawks, owls, wild pigeons, king-fishers, jays, crows and ravens might be killed and captured ; and any net, trap, springe, snare, cage or other machine or engine, set either wholly or in part for the purpose of either capturing or killing any bird or birds, save and except eagles, falcons, hawks, owls, wild pigeons, king-fishers, crows, jays and ravens, may be destroyed by any person, without such per- son incurring any liability therefor. 36 V. c. 45, s. 3. Power to . seixe nets, traps, eto. Nest, young ' or egi{ not to • 'be taken. Power to seize birds unlawfully 4. It shall not be lawful to take, injure, destroy or have in possession any nest, young or egg of any bird whatsoever, except of eagles, falcons, ha^rks, owls, wild pi;;eons, king- fishers, jays, crows and ravens. 36 V. c. 45, s. 4. 5. Any person may seize, on view, any bird unlawfully possessed, and carry the same before any Justice of the Peace, to be by him confiscated, and if alive to be liberated ; and it shall be the duty of all Market Clerks and Policemen or Constables, on the spot to seize and confiscate, and if alive, to liberate such birds. 36 V. c. 45, s. 5. Bggs or birds 6. The Commissioner of Agriculture, and all peraons sctenu^*" authorized by him to that efiect, may grant -.ritten permis- purposes. gion to any person or persons who may be desirous of obtain- ing birds or eggs for bona fide scientific purposes, to procure them for that purpose, and such person or persons shall not be liable to any penalty under this Act. 36 V. c. 45, s. 6. 7. The violation of any provision of this Act shall subject the offender to the payment of not less than one dollar, and not not more than twenty dollars with costs, on summary conviction, on information or complaint befoie one or more Justices of the Peace. 2. The whole of such fine shall be paid to the prosecutor, unless the convicting Justice or Justices have reason to believe that the prosecutor is in collusion with and ^'or the purpose of benefiting the accused, in which case the said Justice or Justices may order the disposal of the fine as in ordinary cases. 3. In default of payment of such fine and costs, the offender shall be imprisoned in the nearest Common Gaol for a period of not less than two and not nlore than twenty .Penalties. Application ot fines. Imprison- ment. c. 202.] DESTROYING OF WOLVES. 973' days, at tho discretion of such Justice or Justices of the Peace. 36 V. c. 46, s. 7. 8. No conviction under this Act shall be annulled or Conviction vacated for any defect in the form thereof, or for any omis- fo°r'wani"of sion or informality in any summons or other proceeding under 'o"°- this Act, so long as no substantial injustice results therefrom. 36 V. c. 45, s. 8. Aa Act to encourage the Destroying of Wolves. R. S. 0. Cap. 202. Bounty payable on production of wolrs head, s. 1. Magistrate to give a certificate, 8. 2. On production of which County Treasurer to pay bounty, s. 3. Provided other expenses have been first paid, s. 4. Certificate a legal tender in pay- ment of County rates, s. 5. HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : — 1. If any person produces the head of a wolf with the ears on, before any Justice of the Peace acting for any County in Ontario, and makes oath or affirmation (as the case may be), or othei'wise proves to the satisfaction of such Justice, that the wolf was killed within that County, or within one mile of an actual settlement in the County, he shall be entitled to receive from tho Treasurer of the County the sum of six dollars as a bounty for the same. C. S. U. C. c. GO, s. 1. 2. In case the Justice of the Peace before whom the head J. p. to give of the wolf is produced, is satisfied of the fact that the wolf ^'e!"'""" was killed as in the preceding section mentioned, he shall first cut off the ears thereof, and then give the person a cer- tificate that the fact of the wolf having been killed as in the When any person pro- ducingr to a J. P. the head of a wolf with th« ears on, entitled to a- reward. - , j S. 0. c. 202. 41 Vict. cc. 10, 11.] lime fences.— bridges in villages. 975 An Act to amend the Line Fences Act. 41 Vict. Cap. 10. HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows :— 1. In the Line Fences Act, being chapter one hundred and interpretar ninety-eight of the Revised Statutes of Ontario, the expression word* "occo- " occupied lands," shall not include so much of a lot, parcel p'** '««*«.•' or farm as is unenclosed, although a part of such lot, parcel or farm is enclosed and in actual use and occupation. An Act respecting Bridges in Villages. 41 Vict. Cap. 11. HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : — 1. The councils of every county and incorporated village Aisumption may pass by-laws for carrying out any arrangement between of bridgSi" them for the assumption by the village municipality of any unde' eon- bridge within its limits under the jurisdiction of the county oounty. council, and for such bridge being toll free ; and for the pay- ment by the village municipality to the county municipality of any part of the cost of the construction of such bridge ; and after the passing of such by-laws the bridge shall be and If" \*k \ii 976 THE MUNICIPAL MANUAL. [41 Vict.: remain under the exclusive jurisdiction of the village muni- cipality ; and the village municipality shall be subject to all the liabilities in the premises, which but for the transfer would have devolved on the county municipality ; and the bridge shall be and remain toll free. An Act to amend the Revised Statute respecting Ditching Water Courses. 41 Vict. Cap. 12. HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : — 1. The following shall be added to and shall form subsec- 8.'4amended' *^o^ ^^^ to section four of the Revised Statute I'especting ditching water courses. 5. Where the lands are situate in different municipalities the said fence viewers shall be selected as follows : two from Selection o{ fence-view- land^adjoins the fence viewers of the municipality in which the land of ttun\T*aii- *^® other owner or occupant so notified is situate, and the ties. third from the fence viewei-s of the municipality in which the land of the party giving the notice is situate. In case of a disagreement as provided in subsection four of this section, the County Judge may appoint the fence viewers indifferently from either or both municipalities. interpreta- 2. The Judge referred to in subsection four of section four, words 'j^dge *^*^ ^^ Section twelve of the Revised Statute ; the Clerk of the and Clerk, municipality referred to in section eight ; and the Clerk oS the Division Court refen'ed to in subsection two of section twelve, shall be respectively the Judge of the CountyCourt of the County, the Clerk of the Division Court of the Division, and the Clerk of the municipality wherein the land of the to be notified lies. il c. 13.] ASSESSMENT ACT. 977 3. Section three of the said Act is hereby amended by B.S.O. c. leo, adding after the word " adjoining" in the firat line, the words ••3»««>e«»'i«i' "or adjacent" An Act to amend the Assessment Act. 41 Vict. Cap. 13. WHEREAS doubts exist as to the right of appeal from the equalization of assessments under the provisions of the Assessment Act, where County Valuators have been appointed, and it is expedient to remove such doubts ; Therefore Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of» Ontario, enacts as follows : — 1. The right of appeal provided for by section sixty-eight Appeal in of the Revised Statutes, respecting " The Assessment Act,'* *'"„|,?' shall exist whether County Valuators have been appointed of assess- or not, and upon any such appeal the repoi-t of the Coimty "®"*' Valuators shall be open to review by the County Judge. -*-« ,* 123 978 THE MUNICIPAL MANUAL. [41 Vict. An Act to amend the law for the protection of Game and Fnr-bearing Animals. 41 Vkt, Cap. 18. • i R.8.O.C.200 ropoaled. Periods with in whiult curtain aiiiinnlf) an'I- birds luay bo •(illud. Possession during such periods bow for lawful. WHEREAS it is (ixiiodifmt tomiiond i)w. law rcHju'ctitif,' tliP pi'osorvatioii of gaino and I'ur-beaiing aniiimls in Ontiu'io ; Tliorc'foro Hor Majesty, by and with the ndvioo and rmiscmt of the Legislativo As,senil)ly of tli(! Provinco of Ontario, enacts as follows : — 1. Chapter two hundred of the Revised Statutes of Ontario^ is hereby rei)ealed. 2. Noite of the animals or })irds hereinafter inentioncid sliall be hunted, taken or killed within the j)eriods hereinafter limited : Deer, Elk, Moose, Reindeer, or Cariboo, between the fifteenth day of December and the fifteenth day of Sej)- tember in the following year ; (2) Wild Turkeys, Crouwe, Pheasants, Prairi(! Fowl or Partridge, between the first diiy of Ftibruary, and the first day of October ; (3) Quail, lietwoen the first day of January and the fir.st day of October j (4) Woodcock, between the first day of January and the first day of August ; (5) Snipe, between the first day of May and the fifteenth day of August ; (6) Waterfowl, which are known as Mallard, Grey Duck, Black Duck, Wood or Summer Duck, and all kinds of Duck known as Teal, between thi! first day of January and the first day of September ; (7) Other Ducks, Wild Swans or Geese, between the first day of May and the first day of September ; (8) Hares or Rabbits, between the first day of March and the first day of September. 3. The said animals or birds may be exposed for sale for one month, and no longer, after the beginning of the i»eriods above respectively limited for their protection, and may be had in possession for the private use of the owner and his family at any time, but in all cases the proof of the time of 18.] GAME AND KlJll-nKARINoHH(!HHion ; (1) Exce[)t iiH afoiTHnid, no pcrHon hIiiiU liavo in liis^to.sHCHsioa liny of tlic. said aninials o)- hinlH, or any part or portion of any of Hiich aniinals or hirdH, during tho poriodn in which they aro ho protoctey any p<'rHon nt any titno. 5. Nonf! of tho said ninialn oi- hirdH, oxccpt tho aniuials montionod in tho 8«!Vontli section of tliin Act, shall lie trapped, or tak(!Ji by nieanH of tiajis, notn, Hnanw, gins, l)ait<'d liiie«, or other Hiniilar contrivances, nor shall such traps, nets, snares, gins, bait(!d lines or contrivances ho H(it for thoni, or any of tlicni at any time ; and such traf)S, nets, snares, gins, haite<( lines, or contrivances may ho destroyed hy any p(!rson with- out such ]»erson thereby incurring any liability therefor. 6. None of tho contrivances wliich arc described ns batteries, sunken [»unts, snnken boats or night lights shall bo used at any time for taking or killing tho wild fowl known as Swans, (toese or Ducks, nor shall any wild Ducks be killed during tho night time, that is to say from dark until daylight. 7. No Beaver, Muskrat, Mink, Sable, Martin, Racoon, Otter, or Fisher shall be hunted, taken or killed, or had in the possession of any person between tho first day of May and the lirst day of November ; nor sliall any traps, snares, gins or other contiivances be set for them during such period, nor shall any Muskrat liouse b(! destroyed at any time, and any such traps, snai'es, gins, or other contrivances so set may be destroyed by any person without such pfii-son thereby in- curring any lialnlity therefor; provided that this section shall not apply to any person (hssti'oying any of the said animals in defence or preservation of liis property. 8. Offences against this Act shall be ]mnishod u[)on sum- mary conviction on information or complaint before a Justice of tlie Peace as follows with costs : 1. In the case of Deer, Elk, Moose, Reindeer or Cariboo, by a fine not exceeding fifty dollar.s, nor less than ten dollara for each animal. 2. In the case of birds or eggs, by a fine not exceeding twenty-five dollars nor less than five dollars for each bird or rrotcetlon of «ggH. Trappinx fnrliliMun oxooptM to cnrtain unliiiali. Power to Uedtroy train, >Vc. ItattorlPH, fee, for wild fowl! furblddon. Fiir-l)OftriDg animals, cluuu Heason. npfltructlon of trapa, &c. I'enaltios. m^ iif .' % : I 980 THE MUNICIPAL MANUAL. [41 Vict. DlKIMMltlOn of i>anaUle« CoiiflRCAtlon of KAino illoKully kllltid. 3. In tho caNo of fur-bearing nnimalH inontioDcd in the. Bovcnth section of this Act hy a, fine not exceeding twenty- five dollarft, nor less than five dollars for each animal. 4. In tho case of other breaches of tliis Act, by a fine not exceeding twenty-five dollars, nor loss than five dollars. 9. The whole of such fine shall bo paid to tho [jrosecutor unless- the convicting justice has reason to believe that tho prosecution is in collusion with and for the purpose of bene- fiting the accused, in which case tho said justice may order the disposal of the lino as in ordinary cases. 10. In all cases confiscation of game shall follow convic- tion, and tho game so confiscated shall be given to some charitable institution or i)urj)Ose at the discretion of the con- victing justice. Oamo im- H. Ij^ order to encourage persons who have heretofore broc(iiiiK not imported or hereafter import different kinds of gume with to bo killed. ^|^q desire to breed and i)reserve the same on their own lands, it is enacted that it shall not be lawful, to himt, shoot, kill, or destroy any such game without the consent of the owner of the proi)erty wherever tho same may have l)een bred. 12. It shall not be lawful for any person to kill or take any animals or birds mentioned in this Act by the \ise of poison or poisonous substances, nor to expose poison, poisoned bait or other poisoned substances in 'iny place or locality where dogs or cattle may have access to the same. Honting 1^3. No person shall at any time hunt, take, or kill any •xportatiou Deer, Elk, Moose, Reindeer or Cariboo, for the purjjose of forbidden, exporting the same out of Ontario ; and in all cases the onus of proving that any said Deer, Elk, Moose, Reindeer or Cariboo so hunted, taken or killed is not intended to be exported as aforesaid, shall be upon the person hunting, killing, or taking the same : Penalty. (1). Offences against this section shall be punished by a fine not exceeding twenty-five dollars nor less than five doUara for each animal. Owners of 14. No owner of any dog trained or accustomed to hunt tohunUeer, deer shall permit any such dog to run at large (if such dog ^ regtrain jg accustomed or is likely to resort to the woods unaccom- ciose season, panied by such owner or any of his family or other jierson) during the period hereinbefore prohibited for hunting, taking , or killing deer ; and any such owner permitting any such dog PolFonIng animals. c. 18.] GAME AND FUll-IlEARrNO ANIMALS. 981 to run at lar^o during tlio suid [toiiod hIihII, on conviction thereof, Im) liahle to tlio ixiniilty nujiitioned in sub-Hection four of section eight of this Act; and any ihuhou harbour- ing any such dog or claiming to be the owner thereof shall bo deemed to bo tho owner thereof for the purposea of this Act. 9fi2 TIIK MUNICIPAL MANUAL. [11 ViCT. C. 22. ,:# An Act to amend the Revised Statutes for the Protection of Insectivorous and other Birds beneficial to Agriculture. 41 Vkt. (Jap. 22. Prottmi.io. "TTTirERKAS it is cxpodioiit to iirncnd tlio law i»iovi(liiii( W for th(! protect!')!! of iiiH('ctivo!-o!i,s tmd otlioi- hifds refoiT(!d to in tlio Act foi* tlic |)!ot(;ctio!i in ()iitni-io of insec- tivorouH mid othor binis Vx-iioficMiil to agi'iciiltiiro ; Thei'Cifoi'o Hoi' Mnjf\sty, by and with the iidvico and consent of tins Logi.slativo Assembly of tlio rroviiic(! of Ontiirio, eniicts UH follows : — R. H. 0. c. !• l^''''J"i KrjXJTIONS, AND TAIIEF'K OF FKKS. In tho ( 'ourt of Qiuion'H Hunch and ) Coiiinion I'luaH. ( MtciiAKi.MAiiTKnM, Mm Vutdru. WilKKKAS, by ail Act passod by tho Piiiliiiiiioiit of this Province! in th(! twt.-lfth y(!iir of l£er Miijt!.sty's roi^ii (cui». 81), (.'ntitlt'd, "An Act to pi-ovido ]ty oikj gcuionil hiw for th(( (JHictioti of Arunicipiil (JorponitioiiS, and theon thereby given in tho [)remises to tho said Courts and Judges respectively ; and it being, among other things, in effect enacted, that it should and might 1)0 lawful for the Judges of Her Majesty's two Superior Courts of Common I^aw at Toronto, or the majority of them, by any rule or rules to be by them for that purpose made, from time to time in Terra time, as occasion may require, to settle tho forms of all such writs, 'A H' t '!' ^Y- 5 V '1 I, '' 1 '» 7 I- i 'i. 1 I' i 5 4 ' « ''i ^ 1' 984 THE MUNICIPAL MANUAL. [RulcH 1,2. whether of summons, certiorari, mandamus, execution, or of or for whatever other kind or pui-pose, as are authorized by the said Act. Therefore, in order to settle the said fomm and to regulate the practice and proceedings in the said Courts in the matter aforesaid, It is ORDEiiED, that the following Rules be substituted for the Rules made in Hilary Term hist, by the Jtidges of the said Court of Queen's Bench, for the trial of such olections ; and that the forms of such writs, and the practice to be observed with respect to the matters aforesaid, shivll lie as follows, that is to say : — 1. The relator entitled to complain of any election shall in person or by attorney, by written motion, apply to one of the said Courts of Queen's Bench or Common Plcfis in Term time, or to the Judge presiding in Chambers in vacation, for a writ of sum: ions in the nature of a quo warranto, which motion must, according to the statute, be made within six weeks after the election complained against or within one month after the person whoso election is questioned shall have accepted the office, and not afterwards. 2. Such motion shall be founded, first, on a written statement which shall be annexed to the motion paper, setting forth the interest which the relator has in tlie elec- tion, as candidate or voU'a; and setting forth also S[)ecifically, under distinct heads separately numbered (if there bo more than one), all such grounds of objection as he intends to urge against the validity of the election complained figainst, and in favour of the validity of the election of the relator or another or other person or persons, when he shall claim that he or they or any of them have been duly elected ; and at the foot of such statement there shall be an affidavit, made and signed by the relator, that he believes such gi-ounds t* be well founded : and, secondly, on an affidavit or affidavits of the relator, or other pei-son or persons, setting forth fully and in detail the facts and circumstances which shall siij)- port the application. The statement of the relator may be after the following form mutatis mutmvdia : STATEMENT OF THE RELATOR. IN THE queen's nENCH (or COMMON PLEAS). Tho statement and relation of , of , who, complaining that , of (here innertlnif the jiavie/t and (vld'dionH of idl, if more than one person), hath (or have) not been duly elected, and hath ;i Rule 3.] FORM OF RECOGNIZANCE. 985 Ir the following {or have) unjustly UHurperl and still doth {or do) usurp the oflico of , in the Town of {or Township of , an the cfiHf, may be), in the County {or United Counties) of , umlcr the pretence of an election held on , at , in the said County (or United Coun- ties) [and {when it is churned that the relator, or the rekitor and another, or othern, ought to luive heen returned) that (here name the, party or parties mo entitled) was {or were) duly elected thereto, and ouifht to liJivo heen returned at such election], and declaring that he the said relator hath an interest in the said election as a , states and sliows the following causes why the election of the said to the said office should Ihj declared invalid and void. [And {when HO rJnlmed) the said {naming the jKirty or jiartiex) be duly elected thereto.] First — Tliat {/or ^example) the said election was not conducted according to law, in this, that, &c. fSecond-'Vha.i the said was not duly or legally elected or rcturtied, in this, that, &c. Thiri' ITiat, &c. Signed by the relator in person, or })y C. U. his attorney. Note. — Whore the intention of thn relator in to imp<>iinli the olorfion nx altoicether void, In which event, nH the office cannot lie clalmeil for •iiy ether or otherii, the portion of the above and Ruccecdint; forms relating thnroto Rhould be omitted. 3. If tlie Court or Judge ai)plied to shall find sufficient ground for issuing a writ of summons in the nature of a r/uo vjarranto, then upon such recognizanoc y>eing onteretl into as the Act directs, and a proper nflidavit of justification made, and the sufficiency of the siireties allowed by such Court or Judge, a writ shall issue, sealed and tested as other writs of summons in cases between party and party, and attached thereto shall be a copy of the relator's statement of objections and grounds, and of the names and additions of the person who shall have made the affidavits upon which the writ was moved. The recognizance and fiat for summons, and the writ of summons in these Rules mentioned, may be in the following forms : FORM OF RECOGNIZANCE. IN'THE queen's BENf'H {or COMMON JT,EAH). Upper CAN/VDA,.Countv {or United Counties) of . Re it remem- bered, that on the (fay of , in the year of our Lord one thousand eight hundred and ■ -, before jne, — , of , (y'hief JuHtice {or a Justice, or a Commissioner for takiiig bail) in Her Majesty's Court of Queen's Bench {or Common Pleas) for Upper Canada, cometh , of , and of , and acknow- ledge themselves severally and respectively to owe to , of (here iiisertiiifi the name or nainen of the person whose election in mill plained against), as follows, that is to say, the said , the sum of fifty [)ounds, and the said and the sum of twenty- 124 ^ ?^ )■• I H ^; 'II^mH K j. ■•■' ..'■ ,' ' ;f- 'r i ■ I !i 966 THE MUNICIPAL MANUAL. [Rule 3. five pounds each, upon condition that if the said do prosecute with eflfect, the writ of summons in the nature of a quo warranto to be issued on an order or tiat to be made at the instance and upon the relation of the said , against the said , to show by what authority he {or they) the said claims or (claim) to be (here date the office 80 claimed) and why he (or they) the said should not be removed therefrom [and (where so claimed by tlie relator) why he the said relator (or the party or parties entitled) should not be declared duly elected, and be admitted to the said office] ; and if the said , do pay to the said all such costs as the said Court of (or the Judffe presiding in Chambers, at the City of Toronto, in the County of York) sl\all direct in that behalf, then this recognizance to be void, otherwise to remain in full force. Taken and acknowledged the day and year first above mentioned. Before me, , FORM OF A JUDGE'S FIAT ORDERING A WRIT TO ISSUE IN VACATION. IN THE queen's BENCH (or COMMON PLEAS.) Upon reading the statement of of in the County of _ complaining of the undue election and usurpation of the office of , by [and (if so, str'ing) that the said (relator or other person named) was (or wore) duly elected, and ought to have been returned to the said office], and upon reading the affidavits filed in support of the said statement, and also upon reading the recog- nizance of the said , and sureties therein named, and the same being allowed as sufficient, I do order that a writ of summons do issue, calling upon the said (the party whosk election is complained of ) to show by what authority he (or they) the said (the party whose election is complained of) now exercises or enjoys (or exercise and enjoy) the said office [and why '(if so claimed) he (or they) the said should not be removed therefrom, and the said (relator or other person or persons named) should not be declared duly elected, and be admitted thereto. ] Dated this day of , 1 8 — . Note.— If by Rule of Court.'the above fomi should be modified accordingly. FORM OF WRIT OF SUMMONS. " UPPER CANADA. ■Victoria, by the Grace of God, &c. To ;, of , &c. , in the County (or United Counties) of - — . We command you (and each of you) that you (and each of you) be and appear before the Chief Justice or other Justice of our Court of Queen's Bench (or Common Pleas) for Upper Canada, presiding in Chambers at the Judges' Chambers in our City of Toronto, on the eighth day after the day on which you shall be served with this writ, then and there to answer and show to such Chief Justice or Justice by what authority you claim to use, exercise or enjoy the office of , which office, upon the relation of -, having, as he says, an interest in the election to the said office as a , we are Rule 4.] SERVICE OF SUMMONS. 987 )ve mentioned. UT TO ISSUE informed that you have usurped and do still usurp [and that {if so claimed) the said (relator or party or parties mentioned) was (or were) and should have been declared duly elected and admitted thereto], and further to do and receive all those things which our said Chief Justice or Justice shall thereupon order concerning the premises. Witness the Honourable , Chief Justice of our said Court of {or other Justice in ivhone name the torit in tented), at Toronto, day of , 18 — , aiid in the year of our reign. this FORM OF NOTICE TO BE ENDORSED ON OR ANNEXED TO THE WRIT OF SUMMONS. IN THE queen's BENCH {or COMMON PLEAS.) The Queen upon the relation of , against . To and , named in the within {or annexed) writ of sum- mons. The within {or annexed) writ of summons has been issued at my instance and relation ; and a statement concerning the premises, whereof a copy is hereunto annexed, is filed in the office of the Clerk of the Crown in this Court {or with the Clerk in Chambers at the City of Toronto), together with affidavits supporting the same ; and the names and additions of the deponents to the said affidavits are hereunder wiitten. And you . -e served with the said writ of summons to the intent that you do appear and answer as therein commanded, or otherwise judgment will be given against you by your default, and your election to the therein mentioned office will be declared invalid, and you will be removed therefrom [and the said {the relator, or , the party or parties, if am/, alleijed to he entitled) therein named, be declared duly elected and will be admitted thereto in your place.] The above mentioned deponents are : C. D B. in person, or by his Attorney. )d accordingly. of of MINUTE OF THE DAY OF SERVICE TO BE WRITTEN ON THE SUMMONS. Served this -day of 18—. 4. A copy of such summons, and of the paper attached thereto, with a notice on the back of the co])y of summons, according to tlie foregoing form, may be served by any Hterate person, who shall, within twenty-four hours after such service, make a minute on the writ of the time of serv- ing the same ; and upon the return of the writ, the party or parties summoned may appear either in person or by attor- ney; and the manner of appearance shall be by endorsing m i^ ■.■i< lii ^1 ■Hi ' 988 THE MUNICIPAL MANUAL. [Rules 5, 6. on tlie back of the relator's statement attached to the motion paper : " The within named C. D., &c., appears in person (or by attorney, as the case may be) to answer the grounds of objection to his election, which are stated within." 5. If upon the return day of the summons the party or parties, having been duly served, shall not appear, then, on proof of such service by affidavit, according to the form sub- joined, the Judge sitting in Chambers may, before rising on that day, direct an entry to be made as to such party or parties as make default, on the back of the relator's state- ment, thus : " The within named C. D (and E, F.), being duly summoned, hath (or have) not appeared to answer to the matters within objected ;" which entry shall be dated on the day of the return, and may be made on any subsequent duy, if omitted to be made on that day. FORM OF AFFIDAVIT OF SERVICE. When made personally, if service special tender the IJfSth clause of the Statute 12 Vict. cap. 81, the affidavit to be modified accordingly. (See sec. 186, of The Municipal Act.) IN THE queen's BENCH (or^COMMON PLEAS). The Queen on the relation of , against . , of , in the , maketh oath i d saith, that he did, on the day of , personally serve (the above named defendant {or defendants) with the annexed writ of summons, by delivering to him (or each of them) a true copy thereof, on which said copy was endorsed a written notice, a copy whereof is hereto annexed, and to which said copy (or copies respectively) of the said writ was annexed a written copy of a statement of the above named relator, a copy of which said copy of statement is also hereunto annexed ; and the deponent further saith, that the minute (or minutes) of the said service, written on the said writ of summons, was (or were) so writ- ten by this deponent within twenty-four hours after such service. Sworn at , in the County of , this day of , 18—. Before me, • . 6. When it shall appear to the Court or Judge that the Returning Officer should be made a party, a writ of sum- mons shall issue to him, in the following form, upon a Rule of Court to issue for that purpose, or upon the fiat of the Judge, which summons shall be served with the like papei-s annexed, and the service thereof proved in like manner as is provided for other writ of summons, as aforesaid : and the party served shall appear and enter his appearance within the same time after service, and in the same man- Rllle 7.] SUMMONS TO RETURNING OFFICERS. ner ; and in default thereof, he shall be liable to have jvidg- ment passed against him in his absence, as in the case of any other defendant making a like default, and be dealt with by attachment, execution or otherwise, as the circumstances of the case may require. FORM OF WRIT OF SUMMONS TO A RETURNING OFFICER. UPPER CANADA, Victoria, by the Grace of God, &c. Where-vs, upon the relation of , injthe Court of Queen's Bench {or Common Pleas), , it hath been ordered that a writ of sum- mons should issue to , to show by what authority he (or they) claims or exercises (or claim or exercisu) the othce of . And whereas it appears to our Justices of our Court of Queen's Bench (or Common Pleas), before whom the said writ hath been made returnable (or as t/ie case may be), that you were Lhe Returning Office by whom the said hath (or have) been returned as duly elected to the said office, and that it is proper you should be made a party to the proceeding aforesaid : These are therefore to summon you to be and appear before the Chief Justice or other Justice of our Court of Queen's Bench (or Common Pleas) for Upper Canada, i^re- siduig in Chambers, at the Judges' Chambers in our City of Toronto, on , then and there to answer such matters and things as shall then and there be objected against you, and further to do and receive all those things which said Court or said Justice shall thereupon order concerning you in the premises. Witness, &c. 7. In case of default of appearance by any party sum- moned as aforesaid, the Judge recording the same may, as to such as make default, proceed ex parte ; and as to such as shall have appeared, as is herein provided, proceed to determine the validity of the election or elections complained of, and also (if so claimed) of the election of the person or persons alleged to have been duly elected, and give judg- ment thereon ; (M he may, in his discretion, with or without any application for that purpose, and having regard to the distance of the place where the i)arty was served, or other circ\imstances, appoint a further day for the appearance of the party or parties summoned, of which an entry shall be made and signed by the Judge to the following effect, at the foot of the entry of non-appearance on the back of the relator's statement : " Whereupon a further day is given to the said (or the said and ) to appear on," &c. On which day, or as soon after as may be convenient, if no further postponement shall be in like manner granted, 989 j;ist 990 THE MUNICIPAL MANUAL. [Rules 8-12. the case may be heard and disposed of in like mannner as if the same had been detei'mined and judgment given thereon, without granting a further day for appearance. 8. At any time before the hearing, any party may have copies of the affidavits filed, on paying for the same. 9. At the hearing the relator shall not be allowed to object to the election of the party or parties complained against, or to support the election or elections of the person or f)ersons alleged to have baen duly elected, on any ground not specified in the statement on which the summons was moved ; but it shall nevertheless be in the discretion of the Judge, if he shall thmk fit, to entertain upon his own view of the case any substantial ground of objection to or in sup- port of the validity of the election of either or any of tlie parties which may appear in the evidence before him. 10. When the painty or parties summoned has or' have appeared, no more formal answer need be m..,de by him or them to the relator's case than by affidavits filed in answer ; but the Judge before whom the case shall be pending may, in his discretion, require from either or any party furtlier affidavits, or the production of any such evidence as the law alloAvs. 11. In case of disclaimer under the statute 13 & 14 Vict. cap. 64, Schedule A, No. 23, the provisions therein contained, and in sub-proviso No. 6, are to be observed. (See sec. 1 92 et seq. of The Municipal Act.) 12. In case a necessity shall appear for sending an issue to be tried by a jury, the writ for that purpose may be in the following form, and shall issue on the fiat of the Judge directing the same, and bear date on the day of its issuing : WRIT OF TRIAL. « [L.S.] Victoria, by the Grace of God, of the'United Kingdom of Great Britain and Ireland, Queen, defender of the Faith. To the Judge of the County Court of.the County of , Greeting : Whereas, upon the trial of the validity of an election of - — , chosen upon the day of , to be for the Township of (or as the case may be), in the County of , and which elec- tion hath been complained of by E. F., as the relator, alleging (n« the case may he) that he himself, or that he and C. D., &c., or that C. D. &c. , was or were duly elected, and ought to have been returned, it hath become material to ascertain whether (here stating concisehj the issues to be tried) ; and whereas it is desired by , our Chief 11 Rule 13.] FORM OF JUDGMENT. 991 L'ty may have ame. be allowed to )3 complained of the person )n any ground summons was scretion of the I his own view n to or in sup- er any of the re him. :d has or" have Lvde by him or iled in answer ; B pending may, • party further ence as the law Justice {or Justice) of our Court of Queen's Bench (or Common Pleas), before whom the same is pending, that the truth of sucli niivtters as aforesaid may be found by a jury : We do, therefore, pursuant to the statute in such cases made and provided, command you, that by twelve good and lawful men of tlie County of , who are in no wise akin to the said E. F.. the relator in the said case, or to the said (the other part;/ or parties, namiiKj him or them), and who shall he sworn truly to try the truth of the said matters, you do proceed to try the same accordingly ; and when the jury shall have given their verdict on the matters aforesaid, we command you that you do forthwith make known to our said Chief Justice (or Justice) what shall have been clone by virtue of this writ, with the finding of the jury hereon endorsed. Witness the Honotirable Court, at Toronto, this , Chief Justice (or Justice) of our said day of , in the year of our reign. FORM OF ENDORSEMENT OF VERDICT THEREON. I hereby certify that on the day of -, before me, L. M., Judge of the County Court of the County (or United Counties) of , came as well the within named relator as the M'ithin named (the other party or partiet<) by their attorneyb (or an the case may he), and the jurors of the jury, by me duly suir.moned as within com- manded, also came, and being sworn to try the matters within mentioned on their oath, said that, &c. 13. When the Judge before whom any such case shall be pending shall have determined the same, either ex pfirte in. case of default, or on hearing the parties, or partly ex jJarte and partly on hearing the parties, he shall make up and annex to the statement of the relator, and to the affidavits and other papers filed in the case, a written judgement, at- tested by his signature, and dated on the day of the same being signed, in whirb it shall be sufficient to state concisely the ground and effect of the judgment, which judgment may be at any time amended by the same Judge, in regard to any mat- ter of form. And the following may be the form of judg- ment when in favour of the relator : IN THE queen's BENCH (or COMMON PLEAS.) The Queen, on' the relation of Be it remembered, that on the against - - day of our Lord one thousand eight hundred and Chambers in the City of Toronto, before me, -, in the year of , at the Judge's Chief Justice (or Justice) of Her Majesty's Court of Queen's Bench (or Common Pleas), came as well the above named relator by , his attorney, as the above named by his (or their) attorney, and service of the writ of summons hereunto annexed having been duly proved upon affi- davit, and upon the said day and upon other days thereafter, at his Chambers aforesaid, having heard and read the statement and proofs of the said relator, touching and concerning the usurpation by him alleged against the said of the office of , in the said writ of ■'T: '«# ■ \\ m 111 992 THE MUNICIPAL MANUAL. [Rule 13. summons mentioned [and {if so) the election of {the part)/ or partifn named) thereto], and the answers and proofs of the said ; and having heard the said parties by their counsel (or tin the cane inni/ix')^ and upon due consideration of all and singular the premises, now, that is to say, this day of , in the year aforesaid, I (lo adjudge and determine : Fimt — That the said relator had, at the time of his making his aforesaid complaint, an interest in the election to the said ottico of as a . Second— That, &c. Third— That, &c. Fourth— That the said hath {or have) usurped, and doth {or do) still usurp the said office, and that he {or they) be remoyed there- from [or that the election of to the said office was void, and that he {or they) be removed therefrom {as the judymenl may be) ] : And that the said relator {or the said [naming the party or parlim whose election is affirmed, v>hen he or they are adjudged to be eutltlnl to the aaid office] was {or were) duly elected thereto, and ought to liave been retuiued, and is {or are) entitled in law to be received into, and to use, exercise and enjoy the said office ; And I do adjudge and determine that the said do not in any manner concern himself {or themselves) in or about the said office, but that he {or they) be absolutely forejudged and excluded from further using or exercising the same, under pretence of the said election [and further, that the said {naming the relator or partien whone election is affirmed) be (or be respectively) admitted to the said office in his (or their) place or jdaces : [And I do further order, adjudge and determine, that the said relator do recover against the said his costs and charges by him in and about the said relation and the prosecution thereof expended, to be taxed in the said Court. All which the said writ of summons, and the said judgment, and the statements, answers and proofs of the said relator and of the said , and all other things had before me touching the same, I do hereby certify and deliver into the said Court, according to tho form of the statute in such case made and provided. E. F., /. And the following may be the conclusion of a jiulgraert for the defendant, to follow the word affidavit, in the fore- going form : Thereupon now at this day, that is to say, on the day of aforesaid, at the Judges' Chambers at Toronto aforesaid, all and singular the relation and proofs of the said relator, and the answers and proofs of the said being seen and fully understood, I do consider and adjudge that the said office of so claimed by him (or them) the said be allowed and adjudged to him (or them) ; that the said be dismissed and discharged of and from the premises above charged upon him (or them) ; and also that he {or they) the said do recover against the said relator his (or their) costs by him (or them respectively) laid ou ■, and expended in defending himself (or themselves) in this behalf. All which, &c., (as in the judgment for the relator). When the lleturning Officer is made a party, the judgment to be modified accordingly. ;! Rules 14, 15.] FORM of writ of mandamus. 14. Wlien the judgment of the Judge in Chambers shall have been returned into Court according to the statutes, and after the end of four days after such return, and if no iiile shall have been granted to set aside or amend the judgment, the relator, or person (or persons) in whose favour the judgment, shall have been given, shall be at liberty to tax his or their costs, and the following entry shall be made under or upon the record of the judgment, after which exe- cution may issue : Afterwards, that is to say, on the day of 993 in the and year of the reign of our Lady tlic Queen, cometh the said - prayeth that his (or their) said costs, so as aforesaid adjudged to him (or them), he taxed and assessed according to the form of the statute in such case matle and provided, and the said costs of the said , in and about his (or their) prosecution (or defence) aforesaid, and [when the ]{etitrnin{i officer is a lartij of the said , in and about his defence aforesaid], so as aforesaid adjudged to him (or them), are now hero accordingly taxed and asHcased as follows, that is to say, the costs of the said at the sum of [and the costs of the said {whnn lieturnintf Officer entitled thereto), at the sum of ), and the said , in mercy, &c. 15. The writs of certiorari and mandamus which it may become necessary to issue in any such case will be in the common form of siich writs, the command therein contained being suited to the circumstances of each case, and, when api)licacable, the following form may be used : FORM OF A WHIT OF MANDAMUS. To remove the person (or persons, being less than the whole mnnher of members of any Municipal Corporation) whose election is adjmljed invalid, and to admit the person or persons adjiulijed law/ulh/ elected. Victoria, &c. To the Municipal Corporation of Whereas on the day of — — (the. Town, Toionship or City.) -, in the year of our Lord one thousand eight hundred and , at the Judges' Chambers in the City of Toronto, before , Chief Justice (ur one of the Justices) of our Court of Queen's Bench (or Common Pleas) for Upper Canada, it was by the said Chief Justice (or Justice) adjudged and determined that , of , had usurped, and did then usurp, the office of [and that was (or were) duly elected thereto, and ought to have been returned, and was (or were) entitled in law to be received into, and to use, exercise and enjoy the said office], all wliioh has hy the said Chief Justice (or Justice) been duly certified into our Court of Queen's Bench (or Common Pleas), pursuant to the statute in that behalf. Now, we, being willing that speedy justice be done in this behalf, as it is reasonable, command that the said (the perso7i or persons, naming him or them, whose election has been declared inv(dld) do not in any manner concern himself (or themselves) in or about the said office, but that he (or they) be absolutely forejudged 125 •4 994 '•I I m I- f.i' i ;' I '4i :'i THE MUNICIPAL MANUAL. [Rule 15. removed and excluded from further using or exercisinff the same, under pretence of his (or their) election thereto. * [Anil we do fur- ther command that the said {the pernon or •permm, nnmiinj hivi or them, who has or had l>een adjudijeil lawfully elected) be forthwitii admitted, received and sworn into the said otKuo, to use, exercise and enjoy the same.] And we do hereby command you, and every of you, to obey, observe and do all and every act, matter and thing that may bo necessary on the part of you or any of you in the premises, acconf- ing to the purport, true intent and meaning of tliffiio presents, and of the statutes in that behalf, and that you make known to our Court of Queen's Bench {or Common Pleas) at Toronto, on tho day of — — , how this writ shall have been executed. Witness, &o. FORM OF A WRIT OF MANDAMUS. When neither the election of the pi-rnon or persons {less than the whole number of members of the Municipal Coiporation) %oho han (or have) been returned, nor the person or jyersons claimed to he re- turned is {or are) held valid, and for a new election. ViCTOKIA, Sec. To the Municipal Corporation of , and to any Returning Officer or other person or persons to whom it shall of right belong to do any act necessary to be done, touching the election hereinafter com- manded to be held. Whereas (as in the last j)recedenl to tlie asterisk, omittinr/ the part between brackets, and then proceed asfollotoa :) And we do further com- mand that you the said Municipal Corporation, and any Returning Officer or other person or persons, or such of you to whom the same shall of right belong, that you do, pursuant to and according to the statute in that behalf, cause an olection to be as speedily held as shall be lawful, for the election of a person (or persons) in the place or steud of the said , who has {or have) been removed as afore- said ; fjtd that you, or such of you to whom the same doth of right belong, do administer to the person {or persons) who shall be so elected the oath (or oaths), if any, in that behalf by law directed ; and that you admit, or cause to be admitted, such person (or persons) so elected into the said otlice, and that you, the said Municipal Corporation, do show how thiss writ shall have been executed to our Court of Queen's Bench {or Common Pleas) at Toronto, on the day of . Witness, &c. > FORM OF A WRIT OF MANDAMUS. Directed to the Sheriff, where the elections of all the metnbers of any Municipal Corporation have been adjudged invalid, and for tlie admission of those adjudged to have been legally elected. Victoria, &c. To the Sheriff of the County {or United Counties) of , Greeting : Whereas {the same as in the first precedent of a mandamus, to the end of the words *' adjudged and determined," then say;) that the election (or elections) of aU the iriembers of the Municipal Corpoiation Rule 15.] FORM OF WRITS OF EXECUTION FOR COSTS. of , returned as eloctotl at the election (or electionfl) of members of the Bftid C()riK)rfttion held ilcHcrihinn the time or tim4'it atitl place, or places o/mtrh election [or electioHM] y/M {or were) invalid or void in law, and that (imviiiu/ them all) had usurped {proceedlmj an in the frat prece' (lent, nilopfinii the /ilnial form, to the attterink, and then an follown ;) And wo do hereby further couitnand you the said .Sheriff, that yoti do, pursuant to the statute in that behalf, admit and return and swear into, or cause the said (namimj the. perHon luljmlijed to have heen dulif elected) to ])e forthwith admitted or returned, and sworn into the snid otKco, to use, exercise and enjoy the same, and that you do and perform, or cause to bo done and performed, all and every act or acts, thing or things necessary to bo done and performed in the premises. And we licreby command and strictly enjoin all and every person and persons to whom the same shall lawfully belong, to be aiding and assisting you, and to do all and every lawful and neces- sary act to be done by him or them in the promises, according to the purport, true intent, and meaning of these presents, and of the statutes in that behalf ; and how you shall have executed this writ make known to our Court of Queen's Bench (or Common Pleas) at Toronto, on the day of next, and have then there this writ. Witness, &c. FORM OP A MANDAMUS. To the Sheriff, when the elections of all the members of any Municipal Corpwation have been adjudged invalid, and requiring others to he elected. Victoria, &c. To the Sheriff, &c. {an in the lant precedent to the asterisk, omitting the part between bracketn, and adopting the plwrnil form, then con- eluding an follows :) And that you do every act necessary to be done by you in order to the due election and admission of members of tho said Corporation, in the place and stead of the persons whose elec- tions have been so declared invalid ; and we hereby command and strictly enjoin all and every person and persons (contimiing an in the last precedent to the end). Witness, &c. The form of writs of execution for coats in any such case may be as follows : FI. FA. AGAINST DEFENDANT FOR RELATOR'S COSTS. uppercanada. Victoria, &c. To the Sheriff of the County of , Greeting : We command you, that you levy, or cause to be levied, of the goocis and chattels of C. D. , late of [add the description of the Returning Officer, witere the execution is against him\ the sum of , which hath "been lately adjudged to A. B., of , in our Court of Queen's Bench {or Common Pleas) at Toronto, according to the form of the statute in such cose made and provided, for his costs by him laid out and expended in the proseciitiug of a certain writ of sum- 006 m I ;.( )9 ■ 1. ;;i I i TV I ^ 111 I I' l: ^1 i H 006 TllK MUNICIPAL MANUAL. [UultiH IG, 17. inoiiH ill tliu until ru of a t/no iritrntiito, iMHiiud out of <»iir wiiil ''ourt ugiiiiiMt , lit thu rvlntion of tho Ht^id A. H., for nHiir|>iiig tliu ollicu of , in our , of , in your < 'oiinty [otlil, >rli, n tlir Jiitiiriiin;/ Ojljircr in a piirfif, to wliich procfciling the Hiii'l WiiM in;i(lo ft I'lutyl, imd whcruof tlio Miiia i'- U. [^c. J iH convji.ttd, KM ill our Bftid iJourt jipiKiftrH of record, nnd tluit you have tliiit iii.inc y liiiforo our Court of Quuuii'm BcmicIi («)• (Joniiiion I'lcax) at 'roniui,!, on tlio dftv of 'rorin, to satiHfy tlio said A. li. for lim cosIh aforesaid, and linvo you thuu tliuru this writ. WitlltHH, fiC. Fi. FA. a(;ainst the rklatou for thk defendants COSTS. Ul'l'KU (.'ANADA. VlCToUfA, kc. To tho Sheriir of the County (or United t'ouiitics) of . (iUKETINd : We connnand you, tliat you levy, or cauHe to he levied, of thu L'oodft ami ciiattcls of A. D., late of , tho sum of , whiuli hatli hitely been adjudged to C. D., of , in our Court of (^uetin'H Heiicli (or Coinmoii I'leas) at 'J'oroiito, according to tho form of the Htatutu in such case mado and provided, for his coHts by him Liiil out and expeude) Difference between arbitrations between Municipalities and indi- viduals, 291. (k) Oath of arbitrator, and when to be taken, 294, 294. (h) When authority of arbitrator ceases, 293. (y) m ; 1001 IKDEX. ■ ;:? AKBITIiATlONS— (Continued.) Fonn of oath, 294. i Time of meeting, 294. Arbitrator to be judge of law and fact, 294. (d) Persons disqualified from acting as arbitrators, 293. Only mistakes apparent on face of award invalidates, 294. {d) Award should be in writing, 294. ( ) Court will not generally remit to arbitrators for reconsideration, 294. (d) Award to be made one month after appointment of Third Arbi- trator, 293. Copies of awards respecting drainage, to be filed with Clerk and Kegistrar, 296. ^ Copy of award receivable in evidence without proof of original, 296. (/) Costs of Arbitration, 295. Arbitrators need not award as to costs, 295. {g) Court will not review discretion of arbitrators regarding costs, unless excessive, 295. (h) Grounds of decision, etc. , to be stated in writing, 296. In case of difference between arbitrators, majority to decide, 296. Notes of the evidence adduced to be taken and filed in certain arbitrations. 296. Award to be binding in certain cases, must be adopted by By-law within a certain time, 297. Award to be made by at least two arbitrators, and subject to Superior Courts, 297. Powers of the Courts on motions against awards, 297. Corrupt conduct on part of arbitrators vitiates award, 293. (z) Mere suspicion of misconduct not enough, 293. (z) Between Muicipalities respecting bridges, 499, 503. (2) See Cleek of Municipality — Line Fences. AREA. Of Towns and Villages, 15. Begulations as to enlargement of, 15. When area of Towns and Villages exceeds proportionate limit not to be enlarged, 15. How area may be reckoned, 15. Of Villages may he reduced by County Council, 19. ARMOURIES. Of the late Province of Canada, property of Dominion Govern- mdnt, 506. (t) ARMY — Officers exempt from 'taxation, 614. ARREARS OF TAXES— S'ee Sale of Land fob Taxes. ARREST. For breaches of peace not committed in presence of Magistrate or Constable, 334. (c) See Constables. ARTS, ASSOCIATIONS— By-laws to aid, 357. INEDX. 1005 ASHES. By-laws to rcgnlato removal and keeping of, 434. Regulation as to storage of, in Police Villages, 584. ASSESSMENT. Act respecting the assessment of property, 599. Property Aaaesaahle. "Gazette," meaning of, 600. " Township," meaning of, 600. " County Council " includes Provisional Council, 600. ••Town"*' and " Village," meaning of, 600. •• Ward," meaning of, 600, " Municipality "or *' Local Municipality " nof to include County, ' 600. "Land," "RealProperty " and "Real Estate," Meaning of, 601. " Personal Property," meaning of, 602. " Personal Estate, meaning of, 602. " Property, " meaning of, 604. Unoccupied lands to do called " lands of non-residents," 604. Exceptions, 604. Niagara Suspension Bridge Realty, 601. (c) t Harbours not land, 602. (c) Real Estate of Railway Companies deemed property of Residents, 605. Railway i)roperty liable to taxation in municipality where situate, 605. (p) Rolling Stock personal property, 606. (»*) Taxes to be levied equally upon ratable property, 606. By-laws for tax on wild lands alone, illegal, 607. (j ) " " non-residents alone, illegal, 607. (j) Distinction between tax and assessment, 607. {j ) Power of taxation restricted to property within Municipality, 607. (j) Steamers, property of non-residents coming to Municipality, 608. ij) All property liable unless exempted, 608. Provisions for exemptions to be strictly construed, 608. (6) Illegal exemption does not avoid By-law, 609. (6) Exemptions. Property belonging to Her Majesty, 609. Indian lands unoccupied or occupied officially, 609. When occupied by person in unofficial capacity, 610. Places of worship, 611. Church yards, 611. Burial grounds, 611. Public Educational Institutions, 611. Universities, Oil. Colleges, 611. High Schools, 611. Public School Houses, 612. Town, City, or Township Hall, 612. Court Houses, 612. Gaols, 612. Houses of Correction, 612. Lock-up Houses, 612. R-fff'- ( ^'■'.' m ir^i li'S: lllfl ''^V 15 t^ ■ ^ H ■ % Wt V K a 1 ' 1 1 s 1 ll i|( ra ^ ffi ', 1 ' ' i W ^ 1 1 j 1 ■! ill , '1 rv ; t j il ■^■- 'i w. { i 1 't i> ' " w ' ''' Ik • ' 'i kK i W^. i ! ' 1006 ASSESSMENT— ('CoH^Jnwed j INDEX. Public Hospitals, 012. Public Roads, &c., 612. Municipal ^operty, 613, 61.3. (i) Provincial Penitentiary, 613. Central Prison, 613. Provincial Reformatory, 613. Industrial Farms, 613. Poor Houses, 613. Orphan Asylums, 613. Scientific Institutions, 613. Mechanics' Institutes, 613. Governcr-Generals' Income, 613. Personal Property, 614. Lieutenant-Governors' Income, 6)3. Imperial, Naval or Military officer's property, 614. " pay. 614. Pensions under $200, 015. Grain, etc., in transitu, 615. Farmers' Incomes, 615. Merchants' Incomes, 615. Mechanics' Incomes, 615. Personal property secured by mortgage or Provincial or Muni- cipal Debentures, 616. Bank Stocks, 616. Railroad Stock, 617. Building Society Stock, 617. Personal property owned out of Province, 617. Personal property equal to debts due, 617. Personalty under $100, 617. Income under $400, 617. No provision for deductioii of losses, 618. («) Income of Dominion Government, Officials exempt from taxa- tion, 618. {zz) Minicters' salaries, when actually comiected with any church, 618 •* parsonage, 618. Rental of of Real Estate, 618. . Household effects. Books, etc., 619. Bed and bedding, and necessary wearing apparal 619. (c) Income exempted under Act may be taxable [if person wishes vote, 619. Rea-ty within but owned ont of Ontario assessable, 619. Real property governed by lex rei sitcB, 619. (e) Powers of Councils to exempt manufacturing establishments from taxation, 274. Personalty in control of agent for non resident owner assessable, 619. „^ Personal Property of Corporate Companies, 637. ' '^ Incorporate Company outside of Province with property within it, 638. (o) See Statute Labour. , i : . Mode of assessing Beal Property. Land to be assessed in municipality or ward, 624. Shops, factories and officet ':o be assessed at place of business, 624. INDEX. 1007 icial or Muni- ASSESSMENT— ('Con^H H«^ J Personal property to be assessed in wards where situated, 624. When land to bo assessed in owners name, 624. "OVner," signification of. 624. (f) Person served as owner, not appealing, bound, 625. (i) When land not occupied by the owner, but owner is known, 625. "Occupation" meaning of, 62S. (/) When owner non-resident and unknown, 626. Doubt as to the meaning of this section, 627. (m) Occupant for non-resident owner may be assessed as owner in certain cases, 627. When land may be assessed as non-resident, 627. When land assessed against owner and occupant, 627. Ratepayer only to be counted once in returns, 628. Farmers' Sons. Mode of assessing fanners' sons resident on their parents farms, 629. If father living, 6.*?0. If father dead and farm owned by mother, 6.30. OccasionpJ absence f.om farm not material, 630. If more than one son resident, 630. If value of farm insufficient for both, father to be assessed. 630. Farmers' Sons may require name to be entered upon Assessment Roll as joint owner, 630. •' Owner," meaning of, 631. " Farm," meaning of, 631. "Son," meaning of, 631. "Election," meaning of, 631. " To vote," meaning of, 631. "Father" includes stepfather, 631. Non-resident lands. Assessment of, 625. Unoccupied landb to be called lands of non-residents, 604. Form of notice requiring to be assessed, 779. When occupied, occupant may be assessed, 627. To be inserted in roll separately, G3o, When not known to be sub-divided into lota, 636. When known to be sub-divided into lots, 636. Duty of assessors, 636. (k) Appeal as *;o, 679. Rule when land sub-divided, '^7". Mode of Assesai ig Personal Property. Income from trade or profession, 637. Personal property of corporate companies not to be assessed, 637. Incorporated Company outside of ^Province, with property within it, exempt, 638. (o) Gas works, manufacturies, railways, etc., only assessable on income, 638. Personal property of partnership, how and when to be assessed, 638. Partnerships having several places of business, 639, 639. {g) 1008 ASSESSMENT— rCo»»/inMed. ; INDEX. Where persons carrying on trades, etc. , to be assessed for personal property, 640. Where the party has two or more places of business, 041. When the party has no place of buuiness, 641. Salaries, etc., to be assessed at the place where earned, 642. Non-resident's personalty, when it miy be assessed against agent thereof, 642. Joint owners possessors, separate assessment of, 642. Parties assessed as trustees, etc., to have their representative character attached to their names, 643. Efjua '.iation o/ Assessments. By-laws for the appointment of valuators, 355. Appointment of valuators, 197. Powers and duties of valuators, 197. Voluatois' valuation to \ j the basis c' equalization, 197. Annual examination of Assessment Rolls, by Municipal Councils, and for what purpose, 080. Court not to interfere as to reasonableness of valuations, 082. Appeals by local municipalities, 682, 977. Appeal not to be adjourned beyond Ist August, after notice of appeal, 083. Eflfectof neglect of Clerk of municipality to furnish copy of Roll, 684. Valuators to attest their report on oath, 684. Apportionment of County rates, how to be based, 084, Case of new municipalities, 085. New as well as old municipalities liable to contribute to County rate, 085. (k) County Council to apportion sums required for County purposes, 686. ' Sum levied may be for County purposes, or for purposes of particular locality, 086. (I) County Clerk to certify amounts to Clerks of local municipality, 686. Act not to affect provisions for rates to raise interest on County Debentures, 687. OtJier Matters. Penalties for tearing down notices, etc., required by Assessment Act, 778. Recovery of fines and forfeitures, 778. Application of penalties, 779. Railway companies to furnish certain statements to Clerks of Municipalities, 634, 635. Clerk to communicate it to assessor, 635. Statement need not be in any particular form, 635. (g) Statute labour, and exemption therefrom, 687. "When tenants may deduct taxes from rent, 631. If lease contains no provision as to taxes, 631. (v) Persons in representative character, 622. (a) How property to be estimated, 632. No defence to action for taxes that property erronously rated, 632. (V) INDEX. 1009 ASSESSMENT— rCo« ,1 \m ■ i ^ '* 1 1010 INDEX. AHSESSORS AND COMMISMlv,iS'Ell.S-f'CoH/;HHr(;;. Uuiler Act to iinpoito tax on tlogs, and for tho protection of Bhoep, 041. ASSESSMENT ROLL. Certificates an to to bo fumisheil by Clerk, 03. if'ee, 06. Wuon to be talten as finally revised, 0(5. V/hat it should contain, 621, 022, 023. VVlien to bo completed, 647. '!> whom to be «lelivercd, 640. Time for taking the assessment and revising the rolls iu Cities, G50. To be binding as finally passed, 060. ASSIZE OF BREAD—By-laws to regulate, 422. ATTORNEYS— Exempt from serving in Municipal Councils, 60. AUCTIONEERS. By-laws to license, etc., 403. Sales on public streets, 408. (p) Wlien licensed not to be deemed agents of Corporation, ' 408. (p) Licensed itinerant, held to be hawkers, 400. (r) Powers of Townships and Villages in Districts of Algoma, Mus* koka, Parry Sound, Nipissing and Thunder Bay to license, 875. AUDITORS AND AUDIT. Two auditors to bo appointed by Council at first meeting, 103. One to be nominated by head of Council, 103. Who disqualified for office, 103. Corporation contractors not eligible, 104. Duties of, 104. How classed, 104. ((/) Same individual may be reappointed, 104. Negligence of in reporting accounts not to relieve Corporation from liabilities, 104. (/) To prepare abstract and detailed statement of receipts and expen- ditures, 104. To be filed with Clerk of Council, 105. Clerk shall publish abstracts and statements, 105. Council to audit " finally, " 105. Meaning of, " finally," 105. (it). County Council to aiidit moneys paid by Treasurer, 105. Daily audit, etc., of accounts in cities, 106. Monthly or quarterly audit in other Municipalities, 106. Appointment of Auditonj in City of Toronto, 106. Monthly audit in City of Toronto, 106. Query, whether accounts of School Boards and Police Boards can be audited, 106. {q) Declaration of office by auditors, 100. Form of, 100. Before whom to be made, 100. By-laws to appoint Board of Audit, 460, 461. ' AWARD — See Arbitration. INDKX. 1011 protection of ,u Cities, 650. ice Boards con BAGATELLE TABLES— By-lftws to license, rogulftto, etc, 382. BALLOT BOXES. Clerk of Municipnlity to furnish, 89. How made, 89. To be clolivored to Deputy Roturuiuj^ Officer tw d cUya before election, 80. After election to bo returned to ( U rk, 89. Penalty on Clerk fniliiie to furniiih Hiillot Boxes, 80. Deputy Keturning OHicer, if not furnished with, may procure same, 80. To bo exhibited before voting commcncjs, 09. Oflfences with.respect to, 110. See Clerk of Municipality— Elections. BALLOT PAPERS. To be printed, 90. ' Contents and form of, 90. Wh'jther inaccuracies in would avoid election, 90. (;>) Different sets of to bo printed, 00. In Cities, 01. In Towns, 01. In Townships divided into Wards, 01. Clerk to furnish Deputy Returning Officers with, 01, Form of, M. Deputy Kutuming Officer to sign name on, 100. Delivery of paper to voter, 100. Marking of by Voter, 101. Not to be ta'xon from polling place by Voter, 102. Returning Officer to verify initials on before depositing in box, 102 Proceedings in case Voter incapable of marking, 103. Proceedings where ballot paper cannot be used, 104. What not to be counted, 105. What considered matter of identification, 106. (v) Objections to be noted by Deputy Returning Officer on counting same, 107. Statement to be made by Returning Officer on return of, 1 10. To be retained by Clerk of Municipality one month after election, 114. Order by County Judge to allow inspection of, 118. Production of documents by Clerk, conclusive evidence that they relate to the particular election, 115, Ofifences respecting, 116. Penalties for misconduct, regarding, 116. See By-laws — Clerk ok Municipality — Elections. BANK STOCK— Dividend on only to be assessed, 616. BANKING. Under Jurisdiction of Dominion Legislature, 305, (v) Municipal Councils not to act as bankers, 305. BABBISTERS — Exempt from serving in municipal Councils, 60. BATHING-By-law8 to regulating, 400, 1012 INDEX. BAWDYHOUSES. Keepers of deemed vagrants, 349. {p) By-laws to suppress, 397, No power to license, 397. (l) Owners may be forbidden to let houses as, 397. (0 Buildings not per se a nuisanc, 398. (Q No power to destroy, 398. {I) Evidence as to common reputation of, receivable in prosecutions for keeping, 398. (I) Keepers of, liable to imprisonment for six months, 364. BEACONS— By-laws for m-iintaining, 380. BEERHOUSES—Keepers of disorderly, subject to penalties, 819. BEGGARS— Deemed sagrants, 349. (p) BELLS — By-laws to prevent ringing, 427. BEVERAGES — By-laws to regulate vending of in streets, 418. BILLIARD TABLES. By-laws for licensing and regulating, etc. , 382. " requiring $300 license for, not prohibitory, 383. {d) " that none be kept in Tavern, good, 383. \d) Power to license does not give power to suppress, 383. (d) License fee for, not a tax, 383. {/) BILLS — Restriction upon Municipal Council as to issue of, 305. BILLS OF MORTALITY. By-laws to direct keeping, and return ot, 430. Penalty on persons guilty of default, 430. BIRDS. By-laws to prevent destruction of. 386. See Game Laws— Insectivorous Birds. BLASPHEFOUS LANGUAGE— By-laws to prevent, 397. BLIND — By-laws to found Institutions for the, 359. ■,.^^]r „. BOARD OF AUDIT— By-laws to appoint, 460, 451. BOILERS — By-laws to prevent or regulate construction of, 433. BONDS— &e Debentures. BONUS. By-laws to give aid by way of, to manufactarers, 357. " to grant to railways, 572. BOOKS- Exempt from taxation, 619. BOOMS — By-laws to prevent and regulate, 460. BOUNDARIES. Contraction or enlargement of municipalities, 19. (A) By-laws to regulate boundaries of Municipalities, 400. Council may apply to Lieut-Governor to have survey made and boundaries fixed, 401. Costs of survey, 401. Survey otherwise than directed by statute unauthorized, 401. (c) Of Police Villages, 374. INDEX. 1013 orized, 401. (c) BOWLING ALLEYS. By-laws to prevent, regulate tod license, 398. May be suppressed by By-law relative to nuisances generally, 398. (m) Ten pin alley not per ae a nuisance, 398. (m) BRANCH RAILWAYS— By-laws to authorize, 573. BREACH OF THE PEACE. Arrest for, not committed in the presence of Magistrate or Con« stable, 334. (c) See Constables. BREAD. t By-laws for seizing, \> hen of light weight, 370. Power to seize cannot be implied from power to regulate, 370. {}) By-laws to regulate assize of, 422. " to prevent use of deleterious materials m bread, 422. " to provide for seizure and forfeiture of bread made con- trary to By-law, 4f.'2. BREWERS. Refund of amount paid for licenses, 804. May sell liquor witiiout license, 801. BRIBERY. Oflfence at Common Law, 152. {/) , What constitutes bribery, 153, 154, 155, 156. Limitation of actions for, 165. See Corrupt Practices. BRICK-MAKING— Held a nuisance, 427. (lo) BRIDGES. Laid out by private persons vested in Municipalities, 475. Government Drid/j'es abandoned vested in Municipalities, 476. (j) Originated by individuals become public, 476. (j) Municipalities hold as trustees, 477. *' cannot maintain ejectment for. 477. (j) Corporation to keep in repair, 479. Duty in England on parishes and counties, 479, {m) Similar common law obligation in this country, 479. (m) In U. S. , duty creature of Statute, 479. (hi) What is non-repair. 480. ( p) Question ot fact for jury, 480. (p) Non-repair may amount to nuisance, 481. (p) Duty of Corporation to provide railings for, if necessary, 482. ( p) Corporation not liable for non-repair of private bridges, 491. County bridges, 493. Bridges between Townships, 493. Bridges crossing streams 100 feet wide in Village, connecting highways, 494. Forming boundary line between Municipalities, 495. Assumed by County Coancils to be improved, 496. Counties to maintain bridge in Village 100 feet wide, 496. ' Definition of Bridge, 497. (m) "Bridge " includes necessary abutments, 497. (m) . I (I 1014 INDEX. BRIDGES— (Co7itinued.) " Bridge " never substitute for Ferry, 497. (m) At common law must have crossed water courses, 497. (m) Whether structure of a Bridge is a question for jury, 497. (m) Liabilit}' of Counties in United States for, 497. (m) Distinction between " River " and " Creek," 498. (m) Indictment against County proper remedy for non-repair of, 498. (m) Municipality liable to action for non-repair of, 499. (m) Proper remedy where Municipality is charged with non-repair of bridge, 497. (m) Action for injuries owing to defective state of bridge, 499. (m) Bridge may be a public nuisance, 499. (m) Counties to construct bridge between Municipalities, 497, 499. (n) Counties to share expense of bridge between them, 498. Differences cf Ltled by arbitration, 499. Doubt as to power of arbitrators regarding costs, 503. {z) Power of Justices in session over bridges transferred to County Councils, 503. Bridges as Provincial works vested in Her Majesty not to be interfered with by Municipalities, 504. Proclamation by Lieutenant-Governor that no longer under Government control, 504. Bridge abandoned by Government between two counties who to repair, 504, (c) No by-law to be passed as to Dominion bridge without reciting consent of Dominion, 506. By-laws for permitting companies to make, 519. " granting right to take tolls on, 520. " to aid adjoini .g Municipality to open road, etc., 525. Notice to be posted on bridges exceeding 30 feet in width, 899. Form of, 899. Penalty on persons defacing notice, 900. Fast driving over bridges forbidden, 900. Enforcement of penalties, 900. Actioi. for damages not barred, 900. Parties running traction engines on to strengthen, 906. Act reipecting bridges in Villages, 975. Assumption by Village of bridges under control of County, 975. See Highways. BRIDGE COMPANIES. Councils may, by by-law, take stock in or lend money or aid, 358. Chief Officer of Corporation may exercise rights of shareholder, 359. (o) Provisions of Rev. Stat. Ont., cap. 152, as to Municipalities hold- iiig stock in, 359. BRITISH NORTH AMERICA ACT. Banki'^g, Criminal Law and Criminal Procedure Law under control of Dominion Legislature since jpassage of, 305. Crime and Criminal Procedure under jurisdiction of Dominion Legislature, since passage of, 207. (a) Public Works, &c., declare*! by, to be property of the Dominion. 605. (i) INDEX. 1015 the Dominion. BRUSHWOOD, By-laws for regulating bnming of, 391. " to prevent obstruction of streams, etc., by, 469. BUILDINGS. By-laws to prevent erection of wooden buildings in certain limits, 453. By-laws regulating construction and mode of egrees from, 361. BUILDING SOCIETY STOCK— Exempt from Taxation, 617. BUTCHERS— By-laws to regulate, 420. BURYING GROUNDS— -See Cemeteries. BY-LAWS. » . Derivation of word, 211 (c) Meaning of, 21 1 (c) Council can do by By-law what they cannot by resolution, 211. (c) Confined to district which they aflFect, 211. (e) Must not be inconsistent' with Municipal Acta, or Common or Statute Law, 213. (e) In restraint of trade, bad, 214. (e^ What considered restraint of trade, 215. (/) Authentication of, to be under seal, 219. Unless sealed not legal By-law, 219. [a) Signed by head of Corpor.ation and Clerk, 219. Signature as essential as seal, 219 (a) Proved by copy, 220. Certified under seal and signed by Clerk — otherwise necessary to produce original By-law, 220. (6) By-laws requiring assent of Lieutenant-Governor, how authenti- cated, 220. Of Police Commissioners, 327. How authenticated and proved, 327. Justices of the Peace. ' , Jurisdiction of, under, 308. For inflicting reasonable penalty for breach of By-laws, 308. {j) Penalties imposed by, 310. How levied. 312. ■ Form of Conviction, under, 315. Registration of. By-laws since 29th March, 1873, under which roads opened on private property, 511. By-laws before that date may be registered, 512, Requiring assent of Ratepayers. Opposition to By-laws, 221. How to be made, 221. What objections can be made, 22'. By-laws requinng assent of electors, mode of obtaining same, 222, 223. If proceedings not duly taken By-law invalid, 223. (g) Time and place of voting to be fixed by By-law, 223. By-law requiring assent of electors to be published, 223. Effect of defect m publication, 224 {j) ■■'*. 1016 INDEX. BY-IAWS— (Continued. ) Need not be signed and sealed before publication, 224. ( /) Notice to be attached to published By-law, 225. Form of notice to be published, 225. (/) Ballot papers to be printed, 225. ' Form of, 225. Council to tix day for appointment of persons to attend at polling places, and for summing up votes, 225. Selection of agents for and against By-law, 226. Agent to make declaration, 226, Admission of agents to polling place, etc., 226. Appointment in absence of agent, 226. All others but officers, clerks, and electors excluded from polling place, 226. Deputy- Retviming Officers, Poll Clerk, and Agent may vote at polling place where they are employed, 227 On certificate from Clerk of Municipality, 227. Who to administer oath in such cases, 227. Deputy-Ketuming Officers to conduct the poll in Municipalities divided into Wards, 227. Clerk of Municipalitj to conduct the poll in IvTi-vnicipality not divided into Wards, 228. The Poll. Voting to be by ballot, 228. Proceedings to be as at Municipal elections, 228. Form of directions for guidance to voters, 228. Freeholders who may vote on By-law, 228. In case of new municipality when there has been no Assessment Roll, 228. Leaseholders who may vote on By-laws, 228. In case of new Municipality, where there has been no Assessment Roll, 230. Oath of freeholder voting on By-law, 230. Oath of leaseholder voting on By-law, 230. Form of statement to be made by Deputy Returning Officer of result of polling, 232. Objections to Ballot Papers, 232. To be numbered, 232. Deputy Returning Officer's duties after votes are counted, 232. Certificate and declaration of Deputy Returning Officer, and return of Voters' List and Ballot Box, 233. Deputy Returning Officers to certify as to number of votes and rejected Ballot Papers, 233. Clerk of Municipality to cast up votes and declare result, 234. Secrecy of proceedings. Maintaining secrecy of proceedings at polling, 234. Voter not to be interfered with, 234 No information to be given as to how any one voted, 234. Secrecy to be maintained at counting, 234. Voters not to be induced to disclose now they have voted, 235.^ Penalty for contravening section, 235. Statutory declaration of secrecy to be made by officers, etc, before poll, 235. I. (1) ad at polling L from polling may vote at 7 Municipalities inicipality not no Aeaeasment no AsBessment ming Officer of jounted, 232. Officer, and [r of votes and result, 234 1,234. I voted, 235.^ officers, etci. INDEX. 1017 BY-LAWS— (Continued.) Scrutiny. May be had on application to County Judj,d, 235. Notice of time of scrutiny to be given, 23G. Proceedings at, 236. Powers of Judge, 236. By-law carried by voters to be vassed by Council, 236. Passing of By-law stayed on presenting of petition, 237. Confirmation of By-laws. Promulgation of by publication, 237. \ Meaning of promulgation, 237. (p) Notice to be appendet^ to By-law published, 237. Form of notice, 238. If not moved against within time limited, to be valid, 238. Quashing By-laws. Applicant must produce copy of By-law, 240. (a) Not necessary for copy to be sealed with wax, 240. (e) Affidavits, how intituled, 241. (f) Corporation to have four full days' notice of rale io quash, 242. Power of Court to quash depends on the Statute, 243. (k) Power to quash generally only exercised when illegality appears on face of By-law, 243. (k) Exercise of power to quash, discretionary, 243. (k) Court will not interfere where 'ong time has elapsed, and By-law legal on face, 243. (k) When work done, and money expended thereunder, 243. {k) When application to Common Law Courts delayed, Court of Chancery will not interfere. 243. (k) Legality of By-laws may be questioned on application to quash conviction, 243 (k) Costs of proceedings to quash, 244, 244. (I) Application to quash must be made within one year, 245. Promptness required in applications to quash, 245 (m) Time after which By-law cannot be quashed, if promulgated, 246. Inconvenience of quashing By-law imposing rate, 246 (7) By-laws obtained oy bribery, 246. Procedure in such case, 246. Inquiry by County Judge, 246. Return of evidence, 247. Judgment, 247. Costs, 247. Attendance of witnesses how compelled 247 {<) Stay of proceedings on the By-law moved against, 247, Municipality liable for acts done under illegal By-laws, 248. Replevin cannot be brought, 248. (d) Not necessary for illegality to appear on its face, 248. Notice of action to be given before bringing action, 249. Tender of amends may oe made by municipality, 249. Definition of tender, 249, ((/). . How made, 249. (g) To whom made, 249. (.7) ' Must be specially pleaded, 250 (h). Object of tender, 250 (/i). 128 rr. !i J J -4;..-,--^.. hi: \H 1018 BY-LAWS— ('Cow/inMcrf. ) INDEX. Creating Dehtf Councils authorized to pass By-laws for, 250, May levy rates for payment of debts, 251. Power of Corporations to borrow money for business, 251. (h) Municipal Corporatio; 's limited to six per cent., 251. (k) Money borrowed for ouu purpose not applicable to another, 251. (k) Terms of, 251. To name day to take effect in same financial year, 251, Debt to be payable within twenty ^^ears, 252. If for gas or water- works within thirty years, 252. Principle on which power to contract debt payable at a future time is founded, 252 (o). To provide a yearly rate, 252. Amount of special rate, 253. Payments by unequal rates bad, 253. (p) Need not set out estimates on which it is founded, 253. (r/) Amount to be irrespective of future increase of ratable property, 254. By-law need not state rate calculated at so much in the dollar actual value, 254. (r) To recite amount and object of the debt, 254. " amount to be raised annually, 254. " the value of the ratable property, 254. " amount of existing debt, 254. " special rate for interest and sinking fund, 254. Effect of omission of recitals, 255. (u) Work payable by Local Assessment. To recite amount and object of debt, 256. *' amount to be raised annually, 256. " value of real property ratable, 256. " special rate for interest and sinking fund, 256. " that debt created on security of special rate, 256. Municipal Council may make repayments of principal by equal annual instalments, 256. What By-law must set out, 257. For raising money not for ordinary expenses must receive assent of electors, 257. Exception as to County By-law for contracting extra 'debts not exceeding in any year $20,000, 258. Such not valid unless passed at a meeting specially called and held three months after notice, 258. Form of notice, 259. When part only of the money raised, By-law may be repealed as to residue, 259. Proviso, 259. Until debt paid cannot be repealed, 260. Nor altered, 260. Exceptions, 260. Why provisions of this section necessary, 260. (s) Sinking fund required to be left untouched, 261. No Officer to neglect, etc., to carry out By-law for payment under colour of illegal By-law, 261. INDEX. 1019 BY -LAWS—f Continued. ) Municipal Councils may purchase public works, etc., and con* tract with Crown, 261, 261. (o) Although no special or other annual rate settled, 262. Rates imposed for payment of debts so contracted, 263. Flied solely to such purposes, 274. Rate for sinking funds, 274. By-laios to reduce Rates. When the rate imposed by-law may be reiiuced by By-law, 275. Recitals requisite m, 276. Reduced rate io be named, 277. By-law to be approved of by Lieutenant-Governor, 277. Anticipatory Appropriations. Anticipatory appropriations may be made, 277. What funds may be so appropriated, 277. Right of Municir^at Council to apply moneys to purposes diflFerent from onginal appropriation doubtful, 278. (o) The sources and application to be stated, 278. (o) When moneys retained sufficient, yearly rate laay be suspended for ensuing year, 278. By-law must recite original debt and object, 278. Amount paid, 279. Annual amount for Sinking Fund, 279. Amount for Sinking Fund in hand, 279. " required for interest, 279. ** that is reserved, etc., 279. By-laws to be approved by Lieutenant-Governor, 279. On separation of municipalities, 279. 1020 INDEX. f ?■ I I ' ?v ■' BY-LAWS— (ConHnued.) Respcctimj Finance. To set aphrt i^urplua derived from Ontario Muiuoipolities' Fund for Educational purposes, 282. To grant aid to poor School sections by gift, 289. Acqicirhifj or aell'my property. For obtaining property, 354. Beyond local limits, 568. (m) For erecting hall, etc. , 354. Right of Council to acquire property independent of Statute, ci"ubtful, 354. (a) ¥oc disposing of property when not required, 354. For acquiring lands for Public Schools, etc., 384. For High Schools, 410. For acquiring laud for Cemeterios within or without Municipal'ty, 384, 5G.^. (k) For selling portion of land for family vault, etc., 385. For acquiring land for industrial farms, parks, or exhibitions, 455. For acquiring land to widen highways, 479. AgrknltTid Soci'dies, Horticultural Societie', and Mechanics' Institutes. For granting money or land to, 357. Land granted must not be clothed with any trust, 357. (h) Aiding Bridge Companies. For taking stock in or aiding by bonus road companies, 358. Powers of Council, 358. (o) Assent of electors necessary, 359. Aiding Indigent, Persons and Charities, For aiding and maintaining indigent persons found in the munici- pality, 359. For aiding any charitable institution, or out-of-door relief to the resident poor, 359. Aiding Mani{facturing EstablishmeniS. To give aid by bonus to manufacturing establishments, 357. When majority of Council were members of Company aided, By-law quashed, 358. (0 Assent of electors necessary to, 358. Security required from manufacturers, 358. Appointing Officers. Collectors, 141. Poi:ndkeepers, 355, Fence Viewers, 355. Overseers of Highways, 355. , . Road Commissioners, 355. Valuators, 355. For fixing foes and securities )f such o£5cers, 357. Firemen, 431. Engineers, 407. . Inspector of Hoase of Industry, 408. Surgeons of Gaol, 408. VI ; of Statute, INDEX. - 1021 BY-LAWS- (Continued. ) Arhitralimn. Arbitrators to be appointed by, 289. Award must be adopted by By-law in certain cases, 297. Auctioneem, For licensing, regulating, etc. , 408. For fixinc sum to be paid for license, 408. B'lMariU and Batjatelle. Tables, To license and regulate use of Billiard and Bagatelle Tables, .S82. May provide that no internal communication Ijotween Billiard Room and Bar, .383. (d) That no Billiard Tables shoi'ld be kept in a Bar-room, good, .383. ((Z) Board of Audit — For appointing members of Boards of Audit, 460. Booms — For protecting Boous, 460. Boundaries — For regulating boundaries of Municipalities, 400. Census — For taking the Census, 3G0. Court Houses, Gaols, and other j^lnces of hnjwl^onment. To erfct, improve, and repair Court Houses, Gaols, etc., 335. By County Councils, 337. By City Councils, 337. To provide for erection and maintenance of Industrial Farm, Houses of Industry, etc., .3.39. To establish Work Houses, and Houses of Correction, 340. Disqualification of Electors for not ■paijivj Taxes. For disqualifying Electors in arrear for Taxes, 382. Dogs, For restraining and regulating the running at largo of, 380. For imposing tax on owners of, 387. ' For killing dogs running at large contrary to By-laws, 388. When may dogs be said to be running at large, 388. (h) Exemption from Taxation, Power to exempt manufacturing establishments in whole or in part from taxation, 274. Quaere, whether old manufacturing establishments may be exemp- ted, 274. (a) Quaeer, whether By-law may be regarded as a contract, 275. (a) Fences, For settling height of fences, etc. , 388. Ownt r ot land at common law not bound to maintain fence, 388. (?) Fc" regulating division fences and cost thereof, 389. TUl By-laws made. Act respecting line fences and ditch- ing water-courses, etc., shall apply, 390. Ferries. For licensing with assent of Lieut-Governor, ferries, etc., 410. Until By-law passed, Lieut-Governor to regulate, 410. i^'mes— For inflicting, 362, 363. P V ll I • m i 1022 INDEX. BY-LA\Y8—(C(»itinne(i ) Fire. To regtilato size and cleaning of cliiinneys, 433. By-law, that no person hut city swcup ahouUl sweep chimneya, held bad, 434. (I) To regulate removal and keeping of ashca, 434. To regulate erection of party walls, 434. To comuel owners and occupants of houses to have scuttles or ladaers to roofs, 434. To guard buildings against Fire, 435. To compel inhabitants to provide fire buckets, 435. To provide for the inspection of premises, 435. To prevent the spreadmg of Fires, 430. Power to demolish Buildings, 43(}. The powor exists at common law, 436. {x) Right of owners to compensation discussed, 430. («) To enforce assistance at Fires, 437. For appointing fire wardens, Hre engineers and firemen, 431. For establishing and regulating lire companies, hook and ladder companies, etc., 431. Prevention of tires within scope of municipal autliority, 431. (;/) For providing medals and rewards to persons distinguishing them- selves at Fires, 4.32. • For granting aid to widows and orphans of persons killed at Fiics, 432. For preventing or regulating use of fire or lights in stables, car- penters' shops, etc , 433. To prevent or regulate dangerous manufactures, 433. To prevent, remove, or regulate construction of chimneys, flues, stoves, etc., 433. Oas and xvater. For establishing Public Wells, Reservoirs, etc., 414. For lighting municipality with gas, 450. For laying down gas and water pipes, 457. For appointing Commissioners for the erection of Gas or Water- works, 457. For constructing Gas and Waterworks, 457. Estimate to be published and notice of voting on By-law, 458. Poll to be held and majority must be in favour, 458. By-law to be passed within three months after poll, 458. If By-law rejected, not to be re-subn'^itted during year, 458. Where Gas and Water Company in municipality, offer to be made to purchase, 459. Reqiiisites for validity of By-law, 458. (a) Oas and Water Companies. For preventing and regulating the construction of Gas Works, 427. For authorizing Gas and Water Companies to lay down pipes, etc., .395. Sanction of Legislature or municipality always necessary to authorize, 395. (/). For taking stock in Gas and Water Companies, 396. («) To be assented to Electors, 396. Head of Corporation to be Director, 396. fl INDEX. 1025 e scuttles or '}aa or Water- BY -LAWS— (Contin iwd. ) Oraven. For protecting graves, etc., 393 («) they 391. Burying of dead subject for inunicipiil control, 393. Qunpnmlcr. For regulating the keeping and transporting of gunpowder, 430. etc,, 433. Hawkera and PedUtrx. For licensing Hawkers and Podliirs, etc., 408. For tixing sum to be paid for liconso, by, 409. Ilarbonm, Docks, etc. To regulate cleanliness, etc, of wharves, docks, etc., 378. To remove door-steps, etc. , obstructing wharves, etc. , 370. To make harbours, docks, etc., 379. When Municipal Corporations are riparian ovaers, have implied power to erect, .379. (;>) To regulate liarbours, beacons, wharves, elevators, etc., 380. To regulate vessel, etc., 380. To regulate harbour dues, 380. Highways and BruIijcK. For preventing throwing of dirt, etc., into streets, 390. For regulating the burnuig of stumps, trees, brush, etc, For driving u])on sidewalks, 428. For opening or stopping up roads, etc., 513. Power to alter level of street discudsed, 515. (a) For raising money by toll, 517. For making regulations as to dangerous places, 518. For comijelling removal of snow, ice, and dirt from sidewalks, streets, etc., 4,37. To prevent obstruction and fouling of, 439. To direct removal of doorsteps, etc., or oth«r obstruction in high- way, 441. What deemed obstructions, 441. For numbering houses and lots, 442. For keeping record of streets, nnn.bors, etc., 443. For marking boundaries of and naming streets, 443. i'o ascertain the levels of cellars, f-tc. , 444. To compel the furnishiug of grr .d or block plans of buildings to be erected, 44G. To regulate traffic in sti .. 450. To assume possession of hignways out of municipality for public avenue, 479. To acquire land to increase width to 100 feet, 479. To assume jurisdiction over township roads, 493. For preservation or selling of trees, stone, etc., on road allow- ances, 518. For granting privileges to road or bridge companies, 519. For granting the right to take tolls, 520. For searching for and taking material for roads, etc., 521. For stopping up and selling a road allowance, 521. Until By-law passed, allowances, public highways, etc., can- not be sold or conveyed, 522. (m) in f^ 1024 INIfEX. BY-LAWS— (Continued.) NucoBsary to doprivo pcraon of rSovoriunont road ollowanoo not U80(l OM roiul, 523. Notice of such Hy-law to bo given, 620. Objoct of notico, 526. (r) For aiding aayment of the expenses, 511. For proviiMng double tracks in sihw roads, 5.3.3. For aiding the mnking of roa35. For stopping up and sale of rond allowance by Townahii), 535. What neceasnry Uw validity of, 53.'). For ordering trees to be cut down on each side of road, 536. For setting apart footpaths on highway, 53(5. For the sale of mineral rights under roails, 537 Cmnty By-laws for Road Improvements. To levy local rates for special improvements, 568. Proceedings to obtain By-law for such improvements, 569. Petition requisite, 569. Notice to be posted up and published for three weeks, 509. Imprisonment — For inflicting punishment by, 364. Importuning Travellers — For preventing importuning travellers, 429. Industrial Farms, Exhibitions, etc. For acquiring land for industrial farm, park, and exhibitions, 455. For erectingouildings on such land, 455. For managing such industrial farm, 455. For establishing alms-houses or houses of refuge, 456. For appointing corporation surveyor, 456. Injuries to Property, and notices. For preventing defacing of property by notices, etc. , 395. For preventing pulling down of sign -boards, etc., 395. INDRX. 1025 BY-LAW^— (Continuftl. ) * Intellhjenre Offlda, ' * For licuiiHitig iiitvlliK^^ncc nflicoi, 4^2. For thu rugulation of Huoh otKcuB, 4^2. For litniting tho diirfttion of any «uch liconsoR, 452. For prohihitiiiu tho kooping of without licuiiHua, 4r)2. ' For tixing thuTuoa for liuunaeH, 403. IntcrmentM, For rogulnting the interment of tho (lend, 430. For directing, keeping, and returning of billH of ntortality, 430. Llccrij SfnhlfH, TeamHtirn, etc. For regulating and liccnmng livery stabltis, etc., 4G0, 461. For regulating wheels, etc., 4(51. For (ixuig rates of fare, 4(12. For rewarding apprehension of horse stealers, 402. Local Improvements. For ascertaining tho real property to bo benefited by in Cities and Towns, flrjl). For ussessing and levying upon real property benefited by cer- tain pulilie works undertaken on a petition, etc., 5(50. For regulating tlie time and manner of making assessments, 5(52. For cflecting improvements with private funds, .')G3. For lighting, watering, and sweeping streets, r)(i(J. By-laws to «leline area in municipalities which should bo watered, 507. Markets. For ostablishin" markets, 415. Power to estaljiish markets authorizes ncquirement of land for, 415. ((•) For regulating markets, 415. Power of municipalities to restrain sale of eommodoties elsewhere, than in, 415. [d) Power to regulate markets can only extend io market limits, 416.(c2) To regulate vending in streets, 418. Difference l)ctween restraint and regulation, 418. (/) For regulating buying and selling of articles or animals exposed for sale, 419. For regulating sale of grain, butchers' meat, farm produce, small ware, etc., 419. For preventing forestalling or regrating of market, grains, wood^ meat, iish, etc., 420. For regulating hucksters, etc. , 420. How far such By-law may go, 421. (n) For regulating, measuring, or weighing of lime, shingles, laths, cordwood, coal, etc., 421. Such By-law not illegal as in restraint of trade, 421. (o) For imposing penalties for light weight or short count or short measurement, 422. For regulating vehicles used in market vending, 422. 129 m m Pi. 1026 BY-LAWS— (Continued.) INDEX. • Such By-law does not authorize tax on scows, railway cars rafts, etc., bringing goods to market, 422. (q) For regulating assize of bread, 422. For sale of meat distrained for rent of stall after six hours' notice 422. For seizing and destroying tainted meat, fish, poultry, etc. Nuisances. To prevent and abate public nuisances, 424. For preventing or regulating the construction of privy vaults 426. For preventing or regulating the construction of slaughter houses, gas works, tanneries, distilleries, etc., 427. To prevent ringing of bells, blowing of horns, etc., 427. For preventing or regulating firing oflF of guns, 428. Ptnalties — For inflicting and collecting, 362, 363. Police — lor establishing and maintaining a police, 454. Police Commissii^ners. Of Town Council to dissolve Board of Police Commissioners, 325. Pounds. For providing pounds, 402. For restraining and regulating animals running at large, 403. Power CO impound and sell must be expressly given, 403. (h) By-law should provide for notice prior to sale, 4Q3. (h) By-law enacting certain animals shall not run abroad, does not authorize others to do so, 404. (h) For appraising the damages by animals impounded, 404. Public Fairs. For authorizing holding of public fairs, 412. Public notice of By-law establishing same, 413. Grant of fair does not give right to take toll 413. (/i) Public Health — For providing for health of municipality, 429. Public Morals. For preventing sale of intoxicating drink to children, apprentices and servants, 396. Without express legislation no power to pass such By-laws, 396. (») For preventing posting up of indecent placards, 397. Indecency, what is, 397. {j) List of things that may be prevented under this heading, 397. U) To prevent the writing of indecent words on walls, etc., 397- For preventing indecent exposure and indecent exhibition, 400. To prevent the making of indecent pictures, 397. To prevent vice pjid drunkenness, 397. To prevent profane swearing, 897. So prevent obscene and blasphemous language, 397. INDEX. 1027 msaionerB, BY-LAWS— f Continued.) To suppress disorderly houses and houses of ill-fame, 397. For preventing, regulating, and licensing exhibitions held for hire or profit, 398. For preventing, regulating, and licensing Bowling Alleys, etc., 398. For suppressing gambling houses, 399. Not to destroy, 399. (n) For seizing and destroying faro banks, rouge et noir, roulette tables, etc., 399. For preventing horse racing, 399. For restraining and punishnig vagrants, mendicants, etc., 399. Those drunk on highway, etc., 399. For regulating bathing, etc., 400. Public Shorn. For preventing, regulating and licensing public shows, 392. Fines for infraction By-law, 392. Licenses cannot be granted to, on grounds of Provincial Exhibition, etc., upon the day of its being held, 393. Eailwaya To take stock in certain railways or guarantee debentures, 571. Formalities required in By-law, 571. (ft) For guaranteeing the payment of debentures, 572. For issuing debentures, etc. , 572. For granting bonuses to railway companies, 572. Should nave assent of electors before bonus granted, 572. (e) For fixing form of debentures, 573. Subscriptions, etc., to be confirmed by assent of electors, 573. Powers of Council, 573. {/) For authorizing branch railways, tram and other railways along highways, 573. Schools. For acquiring land for Public Schools, etc., 384. For acquiring lands for High Schools, 410. For aiding mgh Schools, 411. For supporting High School pupils at Toronto University and U. C. College, 411. For making provision for attendance at High Schools of pupils of Public Schools, 411. For endowing Fellowships at Toronto University, Upper Canada CoUege, 412. Sewerage and Drainage. '' To regulate construction of cellars, sinks, water closets, etc., and draining of same, 447. To fill in hollow places, drains, etc. , 448. To make all other necessary regulations for drainage, 448. To charge reuu for sewers, 449. Shade Trees. For encoura^ng planting of certain trees, etc., 394. For preventmg injury to ornamental trees, 394. 1028 INDEX. -1 BY-LAWS— (Continued.) Snow, Ice and Dirt. To compel removal of snow, ice, and dirt from loof and side- walks, 437. To clean sidewalks, streets, etc., 437. Statute Labour. For empowering any person voluntarily to commute for, 465. For fixing number of days of, 467. For enforcing performance of, 467. For regulating the manner of performing, 468. Streams. For deepening streams, etc, drainage, etc., 540. Examination by engineer, previous to passing of, 540. Plans and estimates to be prepared by, 541. For borrowing requisite funds, etc., 542. Not necessary to name day when it shall take effect, 542. (e) For levying rate for payment, 542. Necessity of providing in By-law for special rates sufiicient to include sinking fund, 543. (/) Person assessed paying assessment before debentures issued, eflfect of , 543. For providing how assessment to be paid, 544. For ascertainmg property liable to rate, 544. Form of By-law, 546. Amendment of By-law if assessment altered on appeal, 549. Before final passing By-law to be published, 549. Notice as to when and how proc edings to quash to be taken, 549. Copy of By-law and notice to be posted up, 549. If no application to quash in time specified by law, invalid not- withstandingdefects, 549. Power to amend By-law when no sufficient means provided for i completing work, 550. Debentures not invalid though not in accordance with By-law, 550. For preventing obstructions of streams, 390, 469. For levying the expenses for, 469. For imposing penalties on parties causing obstruction, 470. Taxes. Requiring payment of, by a certain day, 191. Imposing per centage charge on unpaid taxes, 191. Thistles — For preventing growth of thistles, weeds, etc., 390. Transient Traders — To regulate and license transient traders, 450. Vacant Lots — For causing vacant lots to be properly enclosed, 428. . Victualling Houses, etc. To limit number of, and regulate, etc., 383. For licensing and fixing fee for same, 383. Exacting payment of license — not a tax, 383. (/) For regulating ordinaries, 383. For regulating houses where fruit, oysters, clams, etc., sold, 383. For licensing and fixing fee for same, ^83. "I INDEX. 1029^ B'^-LAWS— (Continued.) Wards and Polling t^ub-divisions. " For dividing Townships into wards, 7-t. '• '* Cities and Towns into polling sub-divisions, 381. " " Township8andVillagesiutopoUiugsub-division8,381. Water Courses. For compelling erection of water gates, where fences cross water courses, 3^0. For preventing obstruction of water courses, 390, 469. Wet Lands. To purchase; 364. To raise money by lands therefor, 365. Wooden Buildings or Fences. ' For regulating the erection of buildings, 453. For preventing the erection of wooden fences and buildings within fire limits, 453. Removal of wooden buildings would be an erection, 454. {g} Without special authority power of Council to remove doubt- ful, 454. (g) See Clerk of Municipality — Council — Debentures — Drainage — Penalties. CABINET MAKERS' SHOPS. By-laws to prevent or regulate use of fires and lights in, 433. CABS. Board of Police Commissioners to license, 326, To regulate, 326. By-laws to license, 460, 461. CANADA THISTLES.— .ifee Thistles. . CARRIAGES. Hiring of, for election purposes, bribery, 158. Board of Police Commissioners to license, 326. By-laws to license and regulate, 460. See Highways. CELLARS. . By-laws for ascertaining level of cellars, etc., 444. " to regulate lonstruction of, 447. " manner of draining, 447. CEMETERIES. By-laws to prevent violation of, 393. ' "to acquire lands for, 384. *• to sell such land, 385. Exempt from taxation, 611. Not per se nuisances, 385. {k) CENSUS. :^-laws as to, 360. Under British North America Act, 360. {r)> CENTRAL PRISON— Exempt from taxation, 612.- 1030 INDEX. 1^ ?! i! mn 1 1; CEREALS — In tratmtii, exempt from taxation, 615. CESSPOOLS— By-laws for filling up, cleaning, etc., 448. CHARCOAI FURNACES— Regulations enforced by Police Trustees as to, 584, CHARITABLE INSTITUTIONS— By-laws to aid, 456. CHARIVARIES— By-laws to prevent, 428. CHEMISTS. May sell liquor without license, 811. Subject to restrictions, 812. CHIEF CONSTABLE. Disqualified as member of Council, 56. May be High Bailiif in cities, 328. Until Board of Police organized. Mayor may suspend from office, 334. Council may dismiss, 335. CHILDREN. By-laws to prevent sale of liquor to, 396. In absence of express legislation, no power to pass such By-Law, 396. (*) CHIMNEYS. By-laws to regulate size and cleaning of, 433. " to prevent or regulate construction of, 433. Police trus tees to enforce regulations as to, 583. By-law that no person but city sweeps should sweep chimneys held bad, 433. (/) CHOLERA HOSPITAL— May be rented by Board of Health, 406. (m) CHURCHES— By-laws regulating egress from, 361, CHURCH YARDS— Exempt from taxation, 611. CIRCUSES. By-laws regulating, 392. Not to be licensed for the day of Agricultural Fair on the grounds of, 39.3. When held to be a nuisance, 428, (x) CITIES. . Erection of Towns into, 20. May acquire highways, 479. (m) Power of, to acquire land beyond the limits, 22 (a) 558. See Towns. CITY CLERK— 5'ee Clfrk of Municipality. CITY HALL— Exempt from Taxation, 611. CIVIL SERVICE, Members of, exempt from serving in Municipal Councils, 60. CLAMS. By-laws to limit nnmber of houses for selling, and regulate, 383. To fix license fee for same, 383. n INDEX. - 1031 CLERGYMEN. Exempt from serving in Municipal Councils, 60. How far exempt from taxation, 618. Parsonage, of, how far exempt from taxation, 648. CLERK OF MUNICIPALITY. Council shall appoint, 179. Absence of, provision for, 180. Qusere whether officers of Clerk and Treasurer incompatible, 179. To record all resolutions, decisions, and other proceedings of Councils, 179. To record the name and vote of every member voting if reijuired by any member present, 179. To keep the books, records, and accounts of the Council, 179. To amend erroneous record SO. (b) Successors cannot amend, * o J. (6) Cannot exercise his own discretion in keeping records, 179. (6) To preserve and file all accounts acted upon by Council, 179. To keep the originals or certified copies of all By-laws and of all minutes and proceedings of the Council, 179. j To keep minutes, assessment rolls, etc. , open for inspection, 181. To furnish copies, 181. Fees, 181. ' Inspection may be enforced by mandamus, 181. (c) Qutere as to disposition of fees, 181. (h) Can only charge Council by acts in scope of general authority, 180. (b) To transmit yearly return of ratepayers to Provincial Treasurer, 181. Oath of verification to be made by, 182. Township Clerk to make yearly returns to County Clerk, 182. What such returns shall show, 182, 183. County Clerk to make a return to the Provincial Secretary, 184. Treasurer to transmit to, annual list of persons in default for taxes, 189. Notices relative to assessment required to be given to municipali- ties, except cities, 192. In cities, to be given to Assessment Commissioner. 192. Not eligible as auditor, 183. Abstract and detailed statement of receipts and expenses, pre- pared by auditors, to be filed, with, 194. To publish abstracts and statements, 195. Declaration of office to be made by, 199. Form of, 199. May administer certain declarations and oaths, 200. Oaths, declaration, etc., to be deposited with, 200. Disqualified from being Councillor, 56. Canuot be candidate for office, 89. To be deemed officer of Court from which execution against Cor- poration issues, 319. To be Clerk of Police Court, unless other is appointed, 323. To be supplied with licences for sale to hawkers and pedlars, 409. To give notice for applicant for By-law affecting roads in pay- ment of expenses, 511. A. r ,■•¥. 1032 INDEX. fii}^- CLERK OF MUNICIPALITY— CCo« vacancy in Police Villages to be filed with, 580. Writing appointing Inspecting Trustees'to be filed with, 580. Duties as to Elections. Reeves and Deputy Reeves to file certificate of election and qualifi- cation with, 47. May reject certificate if informal, 47. (c) To furnish voters' list from last revised assessment roll, 76. To act as Returning Officers for elections, not by wards or polling sub-divisions, 76. To preside at annual meeting of electors for electing Mayor, Reeve, Deputy Reeve, 83. To tranimit to Township Clerk By-law lengthening time between nomination and polling in remote townships, 85. To give six days notice of nomination meeting if Returning Officer, 85. If only one candidate for office, to declare him elected, 86. If more than one candidate for office, to adjourn proceedings, 86, Notice of persons proposed to be* posted up by, 87. To furnish ballot boxes, 89. To have the custody of ballot boxes, 89. Penalty for failure to furnish ballot boxes, 89. To procure ballot papers to be printed, 90. To furnish Deputy Returning Officers with ballot papers, 91. To see that compartment provided for voters to mark votes, 92. To furnish Deputy Returning Oificera with directions for voters guidance, 92. For first election in new municipality. Clerk to provide Deputy Returning Officers with poll book, 93. Clerk of enlarged town to extract from voters in territory added, voters entitled to vote, 92. Extracts to be signed by Clerk, 93. In municipality where separate assessment roll to deliver voters' list to Deputy Returning Officers, 93. To exclude persons in arrears for taxes from list, 94. Delivery of copy of voters' list and defaulters' list to Deputy Returning Officer, 95. To give certificate of dates of return and final revision of assess- ment roll, 95. What fee entitled to, 96. To be Deputy Returning Officer in municipalities not divided into wards, 96. To give Deputy Returning Officers and Agents certificate enabling them to vote where employed, 97. Declined ballot papers to be transmitted to, 103. Cancelled ballot papers to be transmitted to, 104. Declaration by Returning Officer as to ballot papers, etc., may be made before, 109. Packets containing ballot papers, etc. , may be delivered to, 109. To determine disputes as to ballot papers between Deputy Returning Officer and Agents, 111. INDEX. 1033 CLERK OP MUNICIPALITY-H'Con«nM€rfJ To cast up votes and to declare who elected, 111. No power to decide a3 to qualification of candidates, 111. {h) No power to amend statement after once put up, 111. (») To have casting vote in certain oases, 112. Declaration of election, duty of respecting, 113. To retain ballot papers one month after election, 1 1 4. To destroy ballot papers in presence of witnesses, 114. Ballot papers in custody of, inspected on order of Judge, 114. Production of documents by an order of Judge or Court, conclu- sive evidence that they relate to the particular election, 115. Endorsement by on packet of ballot papera ; conclusive evidence of statement in endorsement, 1 15. Offences with respect to ballot papers, etc., 116. Imprisonment, 116. Money penalty, 116. To maintain secrecy of proceedings, 117. Regulations as to, 117. Penalty for contravening, 117. Resignation of Warden to be signified to, 123. To call special meeting to fill vacancy if required, 124. To issue warrant to fill vacancy in Council in absence of head, 124. To appoint place for nomination of candidates, 126. To post up notice of poll in public )lac) I win M ' • !M CLERK OF MUNICIPALITY— rC'o/.i*H««dJ To transmit nssessmont roll to Court of Revision on drainage appeals, 646. To post up notices of drainage By-law and how procaeuings to quash to be taken, 549. Duties retpeding Arlntratiotia, To sif I appointment of arbitrator, 288. Cor ■ aw \rd with respect to mauicinal matters to Le filed with ! fc" yAea, 29-r. Note' of evidence, etc., adduced before arbitrators to bo filed vritih, in certain cases, 296. DuUi .n Aav • -nent iiiatte.ra. To recoi\v; U' tice in writing from owner of unoccupied lands, stating resitlenco, etc. , G04. To make up and deliver to assessor list of persons requiring their name to be entered on roll. To communicate to assessor statement transmitted by railway company describing value of propertj', 634. Assessment roll to be delivereil to, 649. To be Clerk of Court of Revision, 656. Notice of appeal from assessment to be given to, 659. To give notice of appeal by posting up list, 660. To advertise sittings of Court of Revision, 660. To leave a list of complaints with Assessor, 661. To prepare notice to person complained against, 661. To cause notice to be served at residence of person assessed, 662. How absentees served, 662. WTien notice to be completed, 662. Majr require assistance in making services, 66.3. Notice of appeal from Court of Revision to be served upon, 670. To notify parties appealed against of day of hearing appeal, 672. List of appellants, etc. , to be posted up by, 672. , To be Clerk of Court of Appeal, 673. To make out Collectors' rolls, their form, contents, etc., 692. To make out rolls of lands of non-residents whose names not in assessment roll, 695. County Treasurer to furnish Clerks with annual copies of lists of land granted by Crown, 709. County Treasurer, to furnish Clerk with lists of lands three years in arrears for taxes, 709. To keep lists in office open to inspection, notify occupants, etc., 710. To certify lands which have become occupied, 712. To keep Usts in offices open to inspection of lauds in arrear for taxes, 710. To give copies to assessors, 710. Notify occupants, etc., 710. To certify lands which have become occupied, 712. (o) To examine assessment roll, and ascertain whether any lot is entered upon roll as occupied, or incorrectly described, 712. To furnish County Treasurer with list of land incorrectly described, 712. To insert amount due on such lands on Collector's roll, 712. INDEX. 1035 CLERK OF MUNICIPA ; JTY— ('Con^i/juerfj Penalty on for nej^Iocting certain duties prescribed by the AsaeM* ment Act, 7' > To transmit By-.aw, remitting taxes on non-resident's land to Treasurer, 717. To enter land which is found not to be assessed on Collector's roll of the current year, 719. To certify valuation of land, 719. Tri certify errors to Treasurer, 720. CLERK OF COUNTY COURT. Appointment of for Junior County, when ceparated from Union, 38. CLERK ''F PEACK. J., ipointmeut of for Junior County, whtn separatv fr. Union, 38. Disqualified as member of Council, B6. To lay before Grand Jury of General Sessions ,•>». :iCw' nit uf money necessary for maintaining insane j'craouB j, . CLERK OF rOLICE OFFICE. Clerk of municipality to act as, unless aj: 'her nppointed by .Council, 323. Fees or salary of, 323. CLOSING ROADS. By-laws as to, 531, 535. See HiOHWAva. COAL — By-laws to regulate the mode of measuring or weighing, 421. COLLECTORS. Appointment of, for Cities, Towns, Townships, and Villages, 190. Members of Councils may not be, 190. May be appointed for more than one ward, 190. City Council may determine number of Collectors to be appoii-ted, 191. May require payment of taxes by certain day, 191. May impose additional percentage in default of payment, 191. Tenure of office by, 192. CoUectois of Provisional Councils, 192. Payments by, to bo made to Provisional Treasurer, 192. Demand for such money should be made before it can be recovered, 193, (q) Declaration of office by, 199. Form of, 199. Before whom to be made, 199. Precept of sheriff to, to levy rate if execution creditor not paid, 318. Duty to collect taxes in Collectors' roll, 696. No right to accept promissory notes in lieu of money, 696. (i) Not bound to give receipts. 697. (»*) To demand payment of rates, 697. Demand essential to validity of subsequent proceedings, 697. (h) Distress cannot be made for fourteen days after demand, 697* \k) 1036 INDEX. Ei -^J :\ ,j :> Ik COLLECTORS— (ToH/iH («'<;. ; When payment not tnndo, collector to levy tax by distrcsB and sale, U99. Form of warrant of distresH, (598. (n) Liable for anything done by bailitf, G98. (n) Wliat may be Beized for taxes, (iOl). (7) Proceedings in case of non-residents, 700. When collectors may distrain for rates on non-reaidont's lands, 701. May not go out of own County for purpose of distress, 701. (e) Effect of distress on prior execution, 701. {<) Public notice of sale to be given, and in what manner, 702. Errors or defects in tiie advertisement of sale, effect of, 702 (/i) May sue purchasers after sale for price of goods sold, 702. (i) Memorandum in writing on delivery of goods sold, so as to bind the sale, 702. (t) Not necessary for purchaser to shew strict comidianco by bailifl' with directicms in Act, 702. (i) Surplus, if unclaimed, to be paid to party in whose possession goods were, 702. Or to admitted claimant, 703. When right to such sur^jlus contested. Treasurer to retain it, 703. Taxes not otherwise recoverable t<> be recovered by action, 704. Day appointed by Council by which Collector is to return roll ami pay over proceeds, 704. Wlien the Collector may exercise compulsory powers, 705. (7) If Collector refuse or neglect to pay to uroper Treasurer, 705. (?•) Other persons may be employed to collect taxes when Collector makes default, 706. Amount of taxes which cannot be collected to be returned tu Treasurer, 706. Collectors to be cretlited with such amount, 707. To give bonds with sureties for performance of their duties, 762. See Assessors- -Taxes. COLLECTION OF RATES-See Collectob- Taxes. COLLECTOR'S ROLL—fi'ee Assessment— Dogs. COLLEGES— Exempt from Taxation, 611. COMMERCE- Effect of British North American Act as to, 367. (it) CLIFTON, TOWN OF— Number of taverns allowed in, 796. COMMISSION OF INQUIRY— Appointment of ae to finances, 286. COMMISSIONER OF CROWN LANDS. Annual list of land granted by Crown to be furnished by, 708. COMMISSIONER OF PUBLIC WORKS.— fi-ee Drainage. COMMITMENT —-See Penalties. COMMON SCHOOLS. Exempt from taxation, 612. By-laws to support pupils of, at High Schools. COMMUTATION OF STATUTE LABOUR— ^ec Statute Labour. ■II INDEX. 1037 COMPANIES. Dealing with Corporation ; sharohoUlors not disqualified as mem- bers, 67. iVec Railways and Railway Companies. CONFIRMING AND SAVING CLAUSES, 586. CONSTABLES. Declaration of office by, 11)0. Form of, 199. ^ Before whom to be made, 190. OlTiuo instituted for better preservation of peace, 328. {p) Not necessarily a Police officer, 328. ( p) Ml y arrest persons on view engaged in breach of peace, 329. (7) Presetii; when felony committed bound to arrest offender, 329. {q) Private persons may stay aff^rayers an 'i i -■ '\n I 81 ■ ! ' ' S II? CONTRACTS. i3y mumbers, with tho Corporation, to he void at law if void ia equity, 319. Rulu in Equity m to trust monuya, .320. (/) TruMteo cnnuot niako profit out of trust moneys for himself, 321. (m) See MUNICIl'AL CoRI'ORATIONH. CONTROVERTED ELECTIONS. Proceedinyn, Trial of right to have Reeves, etc., 128. Trial of, validity of election or appointment of members of Coun- cil, 128. Fornier mode of procedure, 129. (/) When ortlce is of^ public niituro, remedy by quo warranto 129. (e) Relator, observations as to, 129. (y) " Candidate," deHnition of, 1.30. (7) Not necessary for Relator candidate, to shew qualification to oust member, 1.30. (y) When candidate elected by acclamation in good faith, no contest allowed, 130. (//) Relator to take proceedings within six weeks, 131. Judges of Superior and County Courts have co-ordinate juris- diction, 131. Security to be given by Relator, 131, 131, (A) Proof required, 131. (i) Should be two afKdavits, 131. («) Form of statement of Relator, 1.S2, f/fc) 983. Relator cannot take any ground not in statement, 133. (it) Relator not bound to prove interest, 1.33. (k) Recognizance required from relator. 133. Form of, 133, (/) 984. Affidavit of justification with, 134. Form of, 134. (»») Judge may order writ of summons in nature of quo warranto, 134. Judge's fiat for issue of, Form of, 1.34, (h) 985. Not to issue from County Courts, 134. (n) Form of writ, 134, (o) 985. Notice to be attached to, 135, (0) 986. Evidence may be taken viva voce before County Court Judge, 136. To be returned when taken to Clerk of Crown, 136. When relator claims to be elected, 1.36. Relator not deprived of right of seat by opponent's resignation, 136. (7) Several elections may be complained of under same writ, 137, Law formerly different, 137. (r) All to be tried by same Judge, 137, Object of this, 137. («) Writ to be issued by Clerk of Process or Deputy Clerk of the Crown, 137. If not tested on day when issued, irregular, 137. (<) Returnable before Judge iu Chambers on eighth day after service, 138. INDEX. 1039 CONTROVKUTKD ELVA 'TIOXS -(Vonliimeil.) County Court Juiluo may iHauo writ rutuniahio boforo Suporior Court Judgt), I'M. it) Scrvioo i)vr8oual uiiIuhh cxouho.I 1»y Jutlge, 133. Poraoiml aurviuu, what (luuinuil. I.ls (u) Form of iitHdftvit of Borvico, 1.38, (c) 98(J. Party auiiiinoiiod inivy nppojir in i>ormm or by atturt Judge cannot incidentally deoidu valiility of Town- ship Hydaw, 142. (L-) May remove person not tluly elected, 142, May admit person elected or confirm election, 143. May cause now election, 144. Judijmeiit. Form of, 990. " conclusion of judgment for defendant, 991. " endorsement on finding of costs, 991. Judge to return hia judgment into Court, 150. Judgment may 1>e enforced by iiuindaiatiti, 151. Duclaimer hy di/enilaut. Defendant may disclaim, unless election contested for corrupt practices, 140. Fonn of disclaimer, 147. To whom to be mailed, 147. Posting and registry of, 147. Person elected may tlisclaim before election complained of, 148. Form of disclaimer, 148. To operate as resignation, 148. Who to be deemed elected upon, 148. Terminates suit, 148. (f) Duplicate disclaimer to bo delivered to Clerk of Cjuncil, 148. Coats. Judge to award costs in discretion, 149. Not usual to inflict coats on Returning Officer, li50. (c) If disclaimer to(| late, defendant to pay costs, 148. ('() Costs of persons disclaiming, 149. Decisions with reference to liability of parties to pay, 150. (c) Form oi Ji. /(I. for, 151. (e) ^^ ant of uniformity of decision in matters of, 151. Ifew Electio7i. Writ for new election to go to Sheriff, 145. Form of writ, 145. (71) * Writ for removal to Corporation, 144. Form of, 144. (>«) 1040 INDEX. ir CONTROVERTED ELECTIO^fi—( Continueil) Buka of Court. Writ for new election to Corporation, 145. Form of, 145. (n) Judges may make rules for the trial of, 152. ' J'owers conferred upon, 162. (/) Former rules to continue in force until altered, 152. . Rules of Court, 982-997. Proceedings in, 983 How motion made for writ, 983. Form of statement of relator, 983. Statement of relator in Queen's Bench or Common Pleas, 983. Form of recognizance, 984. " Judges fiat in vacation for writ, 985. " quo warranto summons, 985. " notice on writ, 98G. " minute of day of service, 986. '• attidavit of service, 987. When Returning Officer made a party, 987. Form of writ of summons to Returning Officer, 988. When no one appears Judge may proceed exjicrte or adjourn, 988. Copies of affidavits to he furnished, 988. Relator to adhere to objections in summons, 989. Form of writ of trial, 989. " endorsement of verdict, 990. " judgment, 990. Conclusion <(f judgment for defendant, 991. Form of endorsement of finding of coats, 991. Form of mandamus when election of less than all the mcmlMjrs of Council is adjudged invalid, and to admit those lawfully elected, 993. " When neitlier the persons elected nor the persons claim- ing are entitled to seats, and for new election, 994. *' To SherifiF Avhen the election of all the members have been adjudged invalid, and for the admission of those adjudged legally electe) Lavish household expenditure, li>7. (o) Receiving money, etc., after election, for voting or inducing, etc., to vote, 157. Hiring teams, 158. Persons using violence or intimidation, guilty of undue influence, 159. Elections carried by violence, void at Cf)mmon T^aw, 159. (r) llireats of eviction by landlords, ],')9. (r) Threats to suspend or refuse rites of Church, 159. (r) Discharge of servants, 159. (r) Mere attempt to intimidate voter, voids election, 160. (?•) Candidates allowed personal expenses, 160. May hire rooms, 160. (.s) Vouchers of expenses sliould be kept by, 160. («) Evidence of an application in nature quo warranto, viv.l voce, 160. Penalty on candidates guilty of bribery, etc., 161. Forfeiture of seat, 161. Personal incapacity to bo candidate for two years, 161. Additional penalty for corrupt i)ractices, 162. Recoverable in Division Court, 162. Disqualified from voting for two years, 162. No (lisqualification for bribery by agent, 161 (m) County Court Judge may order attendance of witnesses, 163. Form of order, 163, (a) Quajre, should process for contempt be issued by Judge, 164. (c) 131 1042 IMOEX. 'f0'\ w, i Vf } I' ; :ii t M' CORRUPT PRACTICES-r Conrf. ; Witnesaes not excused from answering on the ground of privi- lege, 165. Answers not to be used against him if Judge grants certificate, 165. Proceedings for penalties to be taken within four weeks from election, 165. No statutory penalty for, where the party charged has first prose- cuted a party jointly liable, 166. Copies of sections respecting corrupt practices to be posted up in polling booths, 166. Object of this, 166. (h) Judge to make return to Clerk of municipality of parties guilty of bribery, 162. Record of such names to be kept by Clerk, 163. COSTS. In contested elections. — Se-e Controverted ELEcmoNS. In arbitrations. — S<:e Arbitrations. In appeals from Court of Revision. — »See Court of Revision and Api'kal. COUNTIES. How formed by proclamation and annoxe tion and maitiionance of, .343. Reference to arbitration in case of disagreements, 344. Compensation by City or Town for use of, 344. Agreement between County and Town as to user of, should be by By-law, 345. After five years, amount of compensation may be reconsidered, 346. Exempt from taxation, 612. COURT or REVISION AND APPEAL. When Council consists of five members only, 651. When of more than five, 655. Oath to be taken by members of, 655. Quorum, 656. Who to be clerk, 656. Meetings of Court, 656. When first meeting of the Court to be held, C56. Closing of in Cities and Towns when assessment taken between 1st July and 30th September, 6.')0. Court to try all complaints, 656, 656. (//) Statutory jurisdiction of Court, 657. (.'/) May administer oaths, 658. Penalty on witnesses who refuse to attend, 658. Juriscliction in drainage matters, 546. Roll to be binding, notwithstanding errors in it, or in notice sent to persons assessed, 666. Powers of Court of Revisjon to remit or reduce taxes, 668. Who may have taxes remitted or reduced, 668. Proceedingi on the trial of compl'iintc. Notice by party aggrieved, 658. Time withm which notices of appeal to Court are to be given, 659. 1044 INDEX. *1 \" COURT OP REVISION AND AFPEAL-( Continued.) When elector thinks any person assessed at too high or low a rate, 659. Clerks to give notice of complaint by posting up list, 660. What lists shall contain, 660, (d) Order of hearing appeals, 660. Postponement, 660. Form of list of appeals, 661. The Clerk to advertise the sittings of the Court, 661. To leave a list with assessor, 661. Form of notice, 661. , Service to be at residence, 662. How absentees served, 662. When notice to be completed, 662. Clerk may require assistance^in making service, 663. Power to atljourn, 663. Proceedings on complaintLof overcharge on personal property, 663. Effect of declaration by party, 664. Proceedings in other cases, 664. Oaths of certain parties not necessary i 664. When Court to proceed, ex parte, 664. Court to ascertain whether due notice has been given, 664. («) Extension of time for complaints, 665. Business of, to be finished by 1st July, 665. Provision as to Shuniah, 665. Appeals from Court of Rvvmon. Appeal from Court of Revision, 669. Service of notice of appeals, 670. Decision of Court, when binding, 670. (e) Provision as to Shuniah, 671. Day of hearing, 672. Clerk to notify parties concerned, 672, Neglect of Clerk, or failure by him in performance of his duty, 672. {;/) Clerks of Cviurt, who to be, 673. Hearing and adjournment of Appeal, 673. AVhether new evidence may be gone into on appeal from decision of an Inferior Court, 073. (j) Assessment Roll to be produced to the' Court and amended, etc., 674. Amendments, how'certified, 675. Powers of J ucige sitting in Appeal from Court of Revision, 675. Style of proceedings, 675. Costs to be apportioned iDy Judge, and how enforced, 675. By what scale of fees costs to be taxed, 676. Decision of County Judge to be final, 676, 676. («) Copy of Roll to be transmitted to County Clerk, 679 Non-resident Appeals. Appeals with respect to non resident lands, 679. Lots sub-divided not to alfeot rolls revised and corrected, 679. R< v'oion of assessment roll in Algoma, Muskoka, Parry Sound, Nipissing, and Thunder Bay. — See Alqoma. INDEX. 1045 COURTS OF JUSTICE. Officers of, exempt from serving in Municipal Councils, 60. CRACKERS— By-laws to prevent setting off of, 428. CRANES — By-laws for erecting floating cranes, 380. CREDIBLE WITNESS— Meaning of, 310. (h) CREEKS. By-law to prevent or removing obstructions of, 469. " levy expense of removing obstructions, 4G9. " impose penalties for obstructing, 470. Removal of obstructions from, when in two Municipalitier, 470. CRIMINAL PROCEDURE, Under control of Dominion Legislature, 207. (*) CROWN LANDS— .S'ee Commissioner of Cuown Lands— Free Grants. CROWN MONEYS. Treasurer, etc, to account for and pay over Crown moneys, 776. Liability of collector extends to County Treasurer, 776. (x) Municipality responsible for, 777 . CROWN PROPERTY— -S'ee jissessment. CRUELTY TO ANIMALS— By-laws to prevent, .386. DEAD — By-laws to regulate interment of the, 430. DEAF — By-laws to found institutions for the, 339. DEBENTURES. Priority of Debentures, 273. How rates for paying them to be calculated, 274. To be applied solely to purposes for which they are i ;sued, 274. Rates for Sinking Fund, 274. To be signed and sealed by Council, 299. If head of Coimcil refuse to sign same, By-law mxybe passed authorizing other persons to sign, 299. Issued under invalid By-law, effect of, 299. (c) Persons negotiating not answerable for payment Duty of Treasurer to see that money collected applied to debentures, 300. {d) Full amount recoverable though negotiated at i six per cent, or below par, 300. Railway and bonus debentures valid without c< ' rate seal, 300. May be valid notwithstanding defect in -i.h.w, .300. Mode suggested to secure for all mone^ B) ukwa the stamp of legality, 301, Requirements of debentures under sections 551, 552 and 553, 301. Purpose of this section, 301. (/) Mode of transfer may be prescribed, fofm of provision as to, 301. Negotiable in United States, 302. (wi) Coupons negotiable in United States, though detached, ZOii. (m} No aefence to acuon on, to allege that stolen, ji>2 ()u) .'99. (/>) or By-law is rest exceeding 1046 INDEX. '/4'5)| DEBENTURES—/' Contin ited. ) Holders for value of, not bound by equities between parties, 302. (m) Registry Books for, to be kept by Tceasurer, 303. No provision made for payment to iS'easurer of fees for, 303. f") Registered debentures, how transferred, 303. Powers of Municipal Councils to borrow money to meet current expenditure, 304, 304. (0 No bond, note, or debenture to be given for less than $100, with* out special authority, 304. If so issued to bo void, 305. (u) This provision nob to affect 29-30 Vict. cap. 51, sections 218, 219, 305. (V) Registration of. Act respecting, 880. Certified copies of all By-laws under which debentures issued to be transmitted to proper Rngistrar, 880. Return to be made to Provincial Secretary, 881. Provincial Secretary to compile tables from such returns and lay them before Legislative Assembly, 881. Registrar to file such By-laws and to keep books with copif ' of returns, 882. Registrar may register name of holder of any debentures, 882. R'^gistration to be prima facie evidence, 882. I^. ode in which By-laws shall be certified, 882. By-laws, returns and books of entry in Registry Office open to inspection, 882. Fees payable under Act, 882. « Meaning of term '^ final passing" as to By-laws submitted to Lieut-Governor, 883. Act not to extend to Railway Companies or Ecclesiastical Cor- porations, 883. Penalty on Officers of Corporations neglecting their duties. "Wlien debentures not impeachable, 883. Good for full amount, though discounted at less sum, 883. Form of return to be filed with Registrar, 884. " " Provincial Sectretary, 885. See Bv-laws—Drainaqb— Railways. DEBTS.— By-laws creating— (See By-laws. DECLARATIONS. Of elections to be made by Clerk, 111. To be taken by persons elected to office requiring property quali- fication, 198. Form of, 198. Not necessary to specify nature of estate, 198. Declaration tv be made by. Retuniing Officer, 199. Deputy Returning Officer, 199. Poll Clerk, 199. . Member of Municipal Council, Assessor and Constable, 199. Mayor, Clerk, Collector, 199. Form of, 199. w' II INDEX. 1047 DEOLARATIONS-^Co« DEFACING PROPERTY— By-laws to prevent, 395. DEFAULTERS' LIST— See Voters' Lists. DEPUTY REEVE— Annual meeting for election of, 83. DEPUTY RETURNING OFFICER. Declaration of office by, 199. Form of, 199. See Elections. DEPUTY SHERIFF— Disqualified as member :" C-uncil, 56. DERRICKS— By-laws for erecting floating dev. :i( lb, 380. DESTITUTE— Who deemed under English Poor Law, 456. («) DIRECTIONS TO VOTERS. Clerk to furnish Deputy Returning Officer with, 92. To be placarded in rolling Booth, 92. DIRT. By-laws for removal of, 437. " preventing throwing into street, 391. DISCLAIMERS —/See Controverted Elections. DISORDERLY PERSONS— By-laws to restrain, 399. DISQUALIFlCATION-S-ee Municipal Councils. DISTILLERIES. When a nuisance, 427. (w) By-laws for preveMting or regulating construction of, 427. Macr soil liquors without license, 811. DIVINE SERVICE. Exemption from tolls in going to and returning from, 901. DIVISION COURTS— BaiUflfa of disq»aHfied as member of Council, 56. DOCKS. By-laws to regulate cleanline« of, 378. * ' for the removal of diioi-steps, etc. , obstructing, 379. " malung, etc., and preserving, 379. •• erecting and rairing 380. 1048 INDEX. .5' 1 i r \l\ i 5 ;> DOGS. By-laws for rostrtiining and regulating those ninning at large, .380. .fi:M. ,u " '-.Hii: killing ilogs running at large, 388. No value at common law, .387. («) Stealing of not larceny, 387. in) Entitled to less protection than other more useful family animals, 387. («) Protection of Sheep from. An Act to impose a tax on dogs and for the protection sheep, 940. Ainiual tax on, 940. Unless dispensed with by County By daw, 941. Tax restored by Township By daw, 941. Duty of assessors, 941. Duty of owners of dogs, 941. Penalty, 941. * Tax entered on Collector's Roll, 941. P.'oceedinga where Collector has failed to collect taxes from parties assesaeil for dt)gs, 942. Penalty, 94'J. Tax to form fund for damages, &c. , 942. Provision for eases in which Council maintains taxes, but does not apply proceeds thereof, 942. County Ct)uncil may repeal By law passed under Act, 942. Dogs seen worrying sheep may be kdled, 943. Plea to aotiou for killing a dog, 943. i'ersons owning dogs addicted to worrying may be summoned before J. P., 94.3. Proceedings, how regulated, 943. On conviction of fact, dog to be ordered to be destroyed and owner fined, 943. Conviction no bar to acti«>r. for dam.iges, 943. Extent of liability of owner or keeper of dog, 944. Dogs kiH)wn to worry sheep to be killed by owner, 944. Provision for cases where there is conviction, but distre cient, 944. Municipality claims to belong to them, 945. Proviso, 945. Cases where owner of sheep, etc. , has no compensation, 945. Liability of uog owner to sheep owner when tax not imposed, 945. Fees and returns by Justices, 945. DOMINION OF CANADA. List of property of late Province of Canada becoming property of, 505. (0 DOMINION LEGISLATURE. Has cognizance of Banking, Criminal Law, and Criminal Pro- ceuure Law, ,305. {v) DOOR STEPS. Bydawsforthe removal of, obstructing wharves, etc., 379. •• . •' '• streets, etc., 434. distress insuffi- Mi m > ! INDEX. 1049 arge, inals, ), 940. 8 from lut does mmoned ycd aud insuffi- )45. imposed, property lal Pro- DRAINAGE. By-laws to regulate the construction of cellars, sinks, water- cloauts, etc., and draining of same, 447, 448. " to till in hollow places, drains, etc., 448. " to make all other necessary regulations for drainage, 448. '* To charge rent for sewers, 44U. *' for opening drains, .360. Municipality not liable to civil action for neglect to provide, 444. {>l) Coqmration should have drain mode by their own officer, 445. ((/) Corporation liable for improper construction of drains, 445. (tl) Liable for not keeping drain clean, 445. (tl) Distinction between sewerage and drainage, 448. {j) By-laws for deepening streams and drainage, 540, 541. I'etitiim for, 540. » Examinatioi. l)y Engineer, .'VtO. Plans and estimates to be prepared by Engineer, 541. Assessment of property to be benefited by, 541. By-laws to borrow ru()tii8ite funds, 542. Time for re-payment, 542. (e) Necessity of naming the day on M'hich to take effect, 542. (c) By-laws to levy rate for payment, 542. I'ayment by ])cr8on assessed before issue of debentures, effect of, 543. Drainage tax payable by landlord, not tenant, 544. By-laws to provide how asseasnient to be ])aid, 544. To ascertain property lial)lo to rate, 544. Not necessary to specify mode of ascertaining property liable, 544. (/t) Petitions for draining lands, 545. Injury to low lying lands, 545. Court of Kevisicn to have primary jurisdiction in drainage matters, 545. Powers of, 540. Transmission of a8sof.amont roll to, 546. • Appeal from to County Judge, 546. Powers of Judge on appeal, 546. Variation of assessment roll on complaint or appeal, 546. Form of By-law, 54G. Amendment of By-law if assessment altered by Court of Bevision or Judge, 549. Before By-law finally passed to be published, 549. Notice as to when and how proceedings to quash By-law to be taken, 549. Copy of By-law and notice to be posted up, 549. If no application to quash made in time specified, By-law to be valid notwithstanding defects, 549. DifiFerence between drainage and other By-law in this respect, 550. (c) Power to amend By-law when no sufficient means provided for completion of work, 550. Debentitres not to be invalid, though not in accordance with By- law, 550. When work mav be extended beyond limits of municipality, 551, 555. 132 1050 INDEX. 'f' ttel m I ' . s if! \ % DRAINAGE— < CotUinued.) Engineer may continue survojr into adjoining munici'iHility, R5I. (<>) Wnen lands, etc., in adjoining municipality, nmy be charged, though works not carried into such municipality, 551. Roport aa to which municipality should bear expense, 552. Eagineer to be judse of amount to be paid, 552. Flans to be nuule, 552. OouncU of municipality, when work begins, to notify municipality to be benefited, 652 Municipality notified to raise amor.nts required, 553. Appeal of such municipality, 553. Notice of appeal to be served, 653. , What notice should state, 564. (0 Arbitrators to be appointed, 554. Engineer or surveyor making plans not to be, 554. Each municipality to share expense of repairing, etc., 054. Proportion to be fixed by Engineer, 554. Municipalitv neglecting to repair compellable by mandamus, 555. When works to be maintained by municipality commencing same, 655. When not benefiting any other municipality, 555. When municipality has paid for drainage cuinpluted, property benefited miiv pay for repairs, 555. Assessment may be charged, 556. When drain used by other municipality, 550. (h) Dispute as to damage done by works to be referred to arbitration, 556. Omission of party notified to appoint arbitrator, 200. When Legislatures provide for special mmie of determining dam- ages, that mode only is to be followed, 556. (i) Liability of municipality for unauthorized lowering of rood, 557. 0) Drains into adjoining lots or across highways, 557. Care must be taken not to make adjoining land or highway receptacle for water, 557. (»t) Disputes as to costs to be settled by fence-viewers, 557- Awanl of fence-viewers conclusive as to matters within their jurisdiction, 557. (n) Court cannot summarily set aside award, 557. Award bad is no defence for anything done under it, 557. (n) Power of municipalitv to contract to spread earth, etc., on making ditch for drainage, 558. Payment by municipality, 558. Discretion of engineer to fix amount to be paid, 558. Construction of ditch on town lines between municipalities, 558. See Clerk of Mcnicipality — Sewejrs— Water Courses- - Wet Lands. DRAINS— /See Drainage —Sewers. DREDGES. Of late Province of Canada property of Dominion Government, 605. (i) DRILL SHEDS. Of late Province of Canada property of Dominion Government, 506. (>) it INDEX. 1051 DRIVING— .•?»-« Hkjhways. irgetl, ipality . PERSONS— By-laws to rwitrain, 399. iu8, 556. tmcncing property •bitration, ning dam- ad, 557. U) higliway ithin their 557. (»») , etc., on ilities, 658. Courses- - government, iovemmentf DRUNK AND DISOIU . DRUNKENNESS. By-lftWB to i)revent, 397. No otTuiicu for man to get drunk on his own premises, 397. (k) DUMB — By-laws to found institutions for, .359. EATING HOUSES— By-laws respecting, 383. ELECTIONS. Time and place, qf holding. ' ' To 1>o held annually for members of Council of municipalities (except (bounties), 71. Term of olliuti, 72. First elections when Corporations are newly erected or extended, 72. Time ot elections, 72. Place to be Hxed by B y-law of municipality, 73. Appointment of place by resolution, a nullity, 73. (/) First elect^^ion in junior Townships after separation, 73. Existine ward divisons in united Townships to cease on dissolution of Union, 74. Of Reeves, etc. , in Townships and Incorporated Villages to be by general vote, 74. Upon petition Council may by By-law divide Townships into wards, 74. Election of Deputv Reeves, etc. , 75. Where to be held, 75. Not to be held in taverns, 95. Jteturninij Officers and Deputy Returning Officers. To be appointed by By-law, 76. Clerk of municipality to be Returning Officer for whole munici- pality when no wards or polling sub-divisions, 76. Absence of Returning Officer or Deputy Returning Officer pro- videtl for, 76. To be Conservators of the Peace, 77. Powers of, 77. Special Constables may be sworn in by, 77. To administer oaths, 82. Returning Officer for ward to preside at nomination in, 85. To be furnished by Clerk with copy of directions to voteis, 92. To post same up in polling booths, 92. Delivery of voters' list, 93. Delivery of defaulters' lists to, 95. Defaulters list to be evidence to, as to non-pajrment of taxes, 95. Clerk to perform duties of Deputy Returning Officer in munici- palities not divided into wards or polling sub-divisions, 96. Deputy Return I ' 0»Hcer may vote at polling place where employed, 98 Who to administer oatu to, 98. Duties of, at Poll, 99. To shew box empty, lock, and seal it, 99. Conduct of, on tender of vote — To ascertain name of voter, 100. IMAGE EVALUATION TEST TARGET (MT-3) {/ i:s LO 11.25 1^128 125 ^ 1^ 12.2 S 1^ ■2.0 iflft U 11.6 m. y] 7 Photographic Sciences CorpOTation 33 WfST MAIN STIEiT WCBSTH.N.Y. MSSO (716) •72-4503 •>^ ^ ;\ % ■^ k c\ /» ^ 4fS ^^ ^ ^"^ ^.V 6^ ^\> 6^ 1052 INDEX. mJECTIOliJS— (Continued.) To record residence and legal addition of each person, 100. To administer oath, if required, 100. To enter objection, if made, 100. To note refusal to take oath, 100. To sign his name on ballot paper, 100. To deliver paper to voter, 100. To explain mode of voting to voter, 100. To state in voters' list that ballot paper has been given, 101 . To verify his initials on re-delivery of ballot paper, 102. To deposit same in b.allot box, 102. To mark ballot paper for those unable to read, 103. To state in list that he marked such paper, 103. To administer declaration of inability to read, 103. May deliver another ballot paper to voter who has inad- vertently spoilt one, 103. Duty of, on counting votes, 105. To reject ballot papers that might be identified, 105. What considered mark by which voter might be identified, 106. (v) To note objections taken to ballot papers atcounting same, 107. To number objections, 107. To endorse ballot papers as rejected and rejection objected to, 107. To prepare statenuent of votes cast for candidates, etc. , 108. To sign such statement, 108. To give certificate of state of poll, 108. Duties after votes counted, 109. To make up packet containing statement of votes rejected, spoiled, unused, used unobjected, used objected, ballot papers, and voters' list, 109. To make declaration as to voters' list, 110. Returning Officer and Deputy-Returning Officer to deliver such package to Clerk of municipality, 110. Statement to be made by, on return of ballot papers, as to disposition made by them, 1 10. Dispute as to such statement, how to be settled, 110. Proceedings Prelimimiry to Poll. Annual Meeting for nomination of Mayor, Reeve, Deputy-Reeve, etc., 83. Mistake of day of election, effect of, 83. (a) What is a nomination, 83. (>uiMingH, etc., witliin, 454. I'ulliiig down ini[iroiior huilflingH, 4.')4, (7) FIRE PLAfJKH— My-lawH tf) prevent or regulate conHtruction of, 4.33. FIRE WORKH— JJy-lawH to prevent Betting ofT of, 428. FISH. IJylawH for regulating [)lace and manner of Helling and weighing, 411). •'■ to prevent forcHtalling, regrating, or monopoly of, 420. " Heize and dcHtroy tainted, 42.3. FLOUR — In tranflitu, exempt from taxation, Ct\f>. FLUES — By-law8 to prevent or regulate conHtruction of, 4.33. FODDER. By-lawH for regulating place and manner of Hclling and weigh* ing, 419. Storage of, in Police Villages, 583. FOREIGNER. AHHCHHinent of land of, within, hut owned out of Ontario, 019. FOREHTALLINO. Uy-law8 to prevent, of market grainn, wood, meat, etc., 420. FORMS. Ballot Papers. In cities, for Mayor and Alderman, 587. For Mayor, Pieeve, and Deputy Reeve, for Towns divided into wardH, 5f)7. ?'or CounoillorH, .')89. For Reeve, in Townshijm divided into wards, 589. For Councillors, MH). For Reeve, Deputy Reeve and Councillor, for Incorporated Vil- lages and Townships not divided into wards, 591. On voting for By-law, 597. At EUclioriH. Directions for guidance of voters in voting, 592, 593. Certificate as to aHsesHment roll, .595. Voters' lints to he furnished to Deputy Returning Officer, 594. Declaration of inahility to read, f/JH. Attestation clause to he annexed to declaration of inability to rend, ,595. Oath of Deputy Returning Officer, after closing of poll, 596. Statutory declaration of secrecy, 596. Voting on By-laws, ^ Ballot paper in voting on, 597. Declaration of agent supporting or opposing By-law, 597. IKDKX. 1061 ;i. I)irc(;ti(»ii for tlicj jjiiidatico of vr)t'JH, ('ortific.'itf! ftttfu;)ic(l to jiHueHHtiifrit roll, MH. O.'ith of iii):iii)><;i'H of ('oiirt of licviHioii, (i.'iri. iNoticc to jicrMoii (;oinjilairn!(l ii^niiiMt in ('ourt rif llcviMion, fJOl Stylo of pnxiocfiiii^'H in (!oiiit of li<;viHion, {'tl'u VViirnuit to IJ.iilill to diHtr.iin imKMint iluu for taxoH, (iW, AHH(;HH(»rH' CfJltilicilt"!, 711. AHHCHHIIKUlt pllpfjr, 70S. howl of lands for taxcH, "JHX (Joniplaint of oviindiargo on pciHonal property, 7HI. " ovoroliarj^i! on anirtnnt of taxablo iiicorno, 7ftl. " ov(;r(;liari4u in it.Mpcct of jicrHonal jiropurty and tax- and taxaldo inconn;, IH'I, " 1)y agont of ovcrcliarytj on [icrHonal |)rop<:rty, IH'Z. " 1)V agont of ovordiargi! on taxaldt) iiicoiiK;, ~H2. *' hy agont of ovorchargo in roHpoct of por.",f)nal projiorty alilo inconio, ~H\. Ccrlifirnff'/t of (!krkn. (Jcrtilicato hy Ch.rV. of TowiiHliij), Town or Villago, of election of lleovo or Moputy Uoovo, 4S. C'ortifioatc aH to nnnilior of freeholderH and houseliolderH, 40, Controvirf.cd /'JlrrUoni, Statement of relator, 1.32, (/.) 984. Ileeogni/anco, 1.12, (/•) y8'>. Affidavit of jnHtiliuation, Ml. (///.) Jnrlgo'a fiat, I. 34, («) ()8f). | Writ of sununoiiH, in nature f)f '/('o i/voT«n/o, 1.3;'. (o) Form of notieoH to l>e attached thereto, 1.3r>, {o) 987. Minute of day of Horvico to ho written on HiimnioiiH, 987. j AHidavit of Horvice of writ, 1.38, («) 988. Writ of HummonH making Returning OHieor party, 1.39, ((/) 989. Writ of trial, 141, {j) 99(). KndorHomont of verdict thereon, 142, (j) 991. Judgment, 142. {I) ConcluHion of judgment for defendant, 143. (/) To Im) aflded if cf)stH allowed and taxed, 144, {t) 99.3. Writ for removal of Hitting momhor, 144, (w) 99.3 Writ for now elootion, 145, (n) I4f), {o) 994. Writ to go to Sheriff if all inemherB of Council ouated, 145, {o) 995. Disclaimer hy defendant, 147. " heforv- election complained of, 148. Fi. fa. for aiats, 151, (c.) 990. Order for witnoHH to attend hofore County .Judge on trial of controverted elections, 1G3. (a) Declaraliorm and Oatlm. Oath of i>er8on claiming to vote as freeholder, 78. In new municipality where no asBossment roll, 79. Oath of householders or tenants, 79. In new municipality where no assessment roll, 80. Voters'a on income, 80. 1062 INDE FORMS -(Coiifinitrif.) FiirjiiorH' Mon, 81. Voturn in Al>{|iointe!). DehnntureH, ClauHe with reference to transference of, which may be inHcrted in, :<0I. lleturn to be tranmnitted l)y ('lerk of municipality or Hccrc- t;iry of incorjforated crimpany iHHuing debenturcH to ItegiH- trar of (Jounty in which Municipal CorporationH are or cor- porate company haH itH iirincipal office within two weeka after pttHsing f>f any By-law for the iHHUc of such debentureH, 884. lleturn to be made yearly by (Jlerk of municipality or Secretary of company t(j Provincial Secretary. 885. C'onviclioitH. Under By-lawH, 310. Under Li(juor LiceuHe Act, 859, 860. For vi<»lation of Lord's day, 918. Druinaije.. Drainage By-law, 540, .547, 548. BridiieJi and Public IliyhwaijH. Notice to be posted on bridges under R. S. 0. cap. 183, 899. Bcmd under Liquor JAc.enHK Act, By applicant for tavern license, 853. By applicant for shop license, 853. InformatioHH under the Liquor Liquor Licenne Act, Ucneral form of, 854, Neglecting to keep license exposed, 855. Neglecting to exhibit notice of license, 855. Sale without license, 855. Keeping liquor without license, 855. Sale of liquor during jjrohibited hours, 855. Allowing liquor to be drunk during prohibited hours, 865. ! I INDKX. .3 VOliMH- fConli,nif,l.) HnlL> liiilf pintH iiiidcr Hhop li(;()iiH(\ Rftrt, Hnhi iMnlvr wlioluMalu liconau, in Iuhh tlwiii wholuitalu qituiititiuit, Hii(5. Allou iiig Ii(|iior t(i 1)0 conaiiincd in ahoj), HM. Allowing li(|ii(ir Ui Ixi conHUintxl in prviniMva iimltir wliolcHalu licoiiHu, Nr>(l. Illo^al Hnlu Ity ilniKifiiitN, HM, llliignl HtiUi iindor vuhncI liconwi, 8r>0. Kuuping (liMorihirly hrMim:, Hr>7. i (art Nni ring conHtablo on duty, ((57. (/'onipromiMing nr com]Miuiiding proHccntion, HriT. H<;iiig concerned in comproiniHing a proHocution, 8t'i7. 'ranipcring with n witntmn, Ml. ItcfiiHing to ailinit iKtlicoinan, MT. Olliccr rcfiming Ut pnmccut*), 8r»7. Inforination for Huoond, third, or fourtli ofFcnco, doO, Othf.r Forum nndir Li'/uor lAci-nne. Act, SiimnionH to witnoHH, 8.10. Conviction for (irat offence, S-IO. f!onviction for tliird offence, 8Hin{iM. I'roclamation calling piihlic mectinga, 802. rroclaniation of JiiHticuH declaring meeting within protection of Act, 803. Poundn—Vitrm of agreement with pound-keei»erB, 947. V(icr'nnotU)n. Certificate of vaccination, 93.''). " unfitncHH for, O.S.'). " for in.HUHceptihility to vaccine di uaftv, 9.3C. lAnc Fitifn. Notice to o[)[>()Hito party, 9(52. Notice to fence viewer, 9()2. Award, 9fi.3. Agreement, 963. Water Courtir/t, Notice tf) opposite parties, 909. Notice to fence viewers, 9(59. Award, 970. Agreement, 970. FRANCHISE— .Sr^-e Elections— Ki.kctoks. FREE GRANT.S. Annual list of, etc., to he furnished hy CommiHBioner of Crown I^ands to Treasurer, 708. County Treaourer to furnish copies of lists to Clerks of municipalities, 709. 10f?4 INDKX. FRUIT. By-lawf) to limit nurnlxir of Iioiimuh for h<:]]]u^, and to rcjfulatc, 383. *• fix licciiHc and fc: fr>r Hf»rn»;, 3H,'{. " rogulato vending of in Mtrcct, 418. " i)n;vcnt foroHtalfing, r<;graLing or tni>n'>iiiAy of, 420. FFllJIT 'J'liKfOH— I'.y-lawH to cncoura^o planting of, ^iUi. Wl'Ai — Hy-lawK to regtdato weigliing or inoaHiiring, 421. P'L'F'NAf-'KS — I'fdicc'TruHtcoM to enforcu rcgulatioii« aH to, 583. (iAMUrdOltS -Arc vagr.%nt«, 349. (//) (iAMV.lAya HOL'SKS. r.y-lawK to HiipprcHH, .309. >iuiH,'uic«;H at ('or(iinr>fi I^w, 399. (o) Nr> power to dcHtroy hou«o under I'y-law, 390. {o) GAME LAVVH. Act for protectifjn of (ianio, 078. J'eriodH in wlii'di certain aninialn and liirdrt may ]>(; killed, 978. I'liHHi-AMDu (luring Hiich period liow far lavvfid, 078. I'roteeti'in of eggH, 970. Trapping forhidden except aH to r;ertain animalH, 070. I'ovver to dewtroy trapH, etf , 070. I'enalticH, OHO. liat^^erie.H, etc., for wild fowl forhidden, 970. ''ur-l>earing aniinalH in dose h^iHon, 970. l^eHtniction of trapH, 979. [)iHj»oHitif)n of ponaltieH, 980. (-'onfiHcatio/i of game illegally killed, 980. fian.fc imported for hreeding not to he killed, 080. TriiHonin;; aniinalH, 080. ilunting deer, etc., for exportation ff>r1jiflden, 080 OwnerH of dogH used to hunt deer to restrain them during HcaHon, 080. ('•A()LVAl — T^Hqualified aH inemoer of (jouncil, r>G. GAOLS. ProviHif/nal eounticH may acjuire lands for, 35. In default of |>ayment of fine offender may l>e impHHoned in, 310. (.'ounty (Joiincil may UMtst bydawH for erection of, 335. To he gaol of city anrl county when municipalitieH not Hoparated frjr all jiiii poHOH, 330. I)ctcntion of [)riHorierH in, 3,37. (d) City Oiuncil may erect, 337. Formerly could not be erected without authority of Parliament, 330. («) Municipal (Joq»oration now liahlc for building of, though contract not under Heal, .3.30. («) County (y'ouncil comjielled by mandamuH to make repairH on order by IiiHpector of l'ri«onH, .337. («) .Sheriff tf» have custody of, ,341. KeejKirH to be appointe)unty Council, 342, Sheriff probably to determine number of keepers,, 342. (!») INDEX. 1065 OAOUi-fContinwd.) (ituAcT tft fiave yoarlv salary in lieu of all fcod, 342. City ga*)l regulated bv (Jity (/'ouncil, 343. Upon Hcparatioii of Linion of Countiun, gaf)l regiilationn to con- tinue, 343. Liability of f 'itioH and TownH «cparate reeoriHiderod after live years, 34G. By-la WH aj)i)oiiiting Hurgeon of, 408. GARDENS. By-laws for acquiring and preserving jiroperty for purpose of public garderiH, 4!'>!'t. For the erection of buildings thereon, 455. For the managing of same, 455. GAS. By-laws to lij^dit municipality with, 450. " to lay down gas [dpcH, 457. GAH COMF'ANIKH. By-laws to authorize the laying down t>t pipes by, .105. legislative or municiiial autliority required to authorize laying down gas pines etc., 395. ( f) Councils may take stock in, t\W). Or to lend money to, 3W. Or to guarantee money bftrrowed by, .39f». Head of to be in some cases rx ojp.ri.o director, 396. Not Ifoiind to funiish gas to all buildings on lines of main pipes, 39f;. (/.) Not liable without proof of negligence for escape of gas, 396. {/) GAS WORKS. Debts contractfjd for payable in thirty years, 252. May be a nuisance, 427. (ii>) By-laws for preventing or regulating construction of, 427. " to provide for Commissioners for erection of, 457. " for the construction of, 457. Estimate to Ixj published and notices of taking poll on By-law, 458. Poll to bo held, 458. By-law to be passed within three months, 458. If By-law rejected, not to be re-submitted during year, 458. If Gas Works Company ::i municipality, offer must be made to purchase l>efore erection of hy municipality, 469. GOVERNOR GENERAL. Income and personal property of, exempt from taxation, 614. See LiKUTENAWT-GoVKKNOK. GRAIN. By-laws to regulate vending of in ctroet, 418. " for regulating place and manner of selling and weighing, 419. " to prevent forestalling, rcgrating, etc., of, 420. Id transitu exempt from taxation, 616. 134 1066 INDEX. GRAMMAR SCHOOLS— Exempt from taxation, 611. GRATUITY— To be given to Officers of Council in cert- u cases, 206. GRAVEL — By-lawB for preserving or selling, 618. GRAVES. By-laws to prevent violation of, 393. Indictable offence for taking up dead body, 394. (z) GROCERS— By-laws to regulate purchase of dairy produce by, 421. GROUNDS. By-laws for the filling up of, 448. ' ' for assessing owner for costs of, 448. GUNPOWDER. By-laws to regulate keeping and transporting of, 430. How to be kept in Police Villages, 584. Not to be sold at night, 584. GUNS — By-laws to prevent firing off of, 428. HALLS — By-laws regulating the construction and mode of egress from, 361* HAMLETS— Sale of roads in, 538. HARBOURS. By-laws to regulate cleaniness of, 378. •' for regulating, 379. Legislature of Ontario no power to make laws as to navigation and shipping, 378, (n) To make, etc., 379. When Municipal Corporations are riparian owners, they have implied power to erect, 379. (p) To regulate harbours, beacons, wharves, elevators, etc. , 380. Duty of those controlling harbour to have such reasonably fit for public use, 380. (q) To regulate vessel, etc., 380. To regulate harbour dues, 380. • Power of Local Legislature to authorize collection of. dis- cussed, 380. (r) Power must not be exercised for revenue purposes, 380. (r) Only to keep harbour in good order, etc. , 380. (r) By-laws for the removal of obstructions from, 279. Public harbours property of Dominion Government under British North America Act, 506. (i) By-laws to impose harbour dues, 380. Not for purposes of revenue, 380, (r) Only to keep harbour in repair and pay Hatjour Master, 380. HAWKERS. By-laws to license, 408. License does not authorize agent of hawker to sell, 409. (r) Licensed itinerant auctioneers, held to be, 409. (r) Powers of Townships and Villages in districts of Algoma, Mus- koka. Parry Sound, Nipissing, and Thunder Bay, to license, 875. INDEX. 1067 HAY. By-IawB for regulating i ..oe and manner of lelling and weighing, 419. Regulations enforced by Police Trustees as to storage of, 583. HEADS OF COUNCILS. See Mayors— Municipal Councils — Reeves— Wardens. HEALTH.— -See Public Health. HIGH BAILIFF. Disqualified as Member of Council, 56. Council of every City to appoint, 328. Chief Constable may hold office of, 328. Difference between appointment of and that of Constable, .328. (o) HIGH SCHOOLS. By-laws to acquire lands for, 410. " to aid, 410. " to support High Sciiool pupils at Toronto University and U. C. College, 411. " for supporting pupils of Public Schools at, 411. " for endowing fellowships, etc., as Toronto University and U. C. College, for competition among pupils of, 412. Exempt from taxation, 611. HIGHWAYS. General Matters. By-laws to prevent throwing rubbish into, etc. , 390. Indictable offence to expose person with small-pox on, 391. {v) "Highways," definition of, 471. Road constructed by Crown Surveyor, 471. Road obstructed at one end may be deemed a highway, 473. (a) Not one closed at both ends, 473. (a) Land becomes highway by deposit of plan shewing it such, 473(a). Road on which public money expended, 473. Road on which statute labour performed, 473. Road passing through Indian lands, 474. Crown cannot deprive public of highway once dedicated to their use, 472. (a) Freehold of in Crown, 474. At Common Law, soil of highway in owner of land, 474 (y) No ejectment for portions of, 475. {g) Councils to have jurisdiction over, 475. May maintdn action for injuries to, 475. {h) Streets, etc. , in Cities, Towns, etc. , laid out by individuals vested in the municipality, 475. Streets laid out by Joint Stock Companies, not included, 476. (») How and when companies may abandon roads, 475. (>) Road for convenience of individuals, may become public road, 476. {•) 1068 INDEX. If f :■ BlQUWAYS—fConthmed.) Property of municipalities is qualified, 477. (i) Municipalities cannot bring ejectment for, 477. (i) Public using highway must conform to conditions of owner, 477. (k) \ Owner opening highway through land without defining, dedicatoi> all to public, 477. (k) Effect of obstruction, 477. {k) Wlien out of repair, public may go over adjoining land, 478. {k) By-laws to acquire and assume possession of, in adjoining munici- pality, 479. Disputes respecting roads, heads of Councils to administer oath, 513. By-laws to make regulations as to dangerous places. 518. No one can leave excavations near highway dangerous to travellers, 518. (e) By-laws for preventing any obstruction upon road and bridge, 517. " for permitting subways for cattle under highway, 517. * Right of pedestrians to use, 517. (c) Exempt from taxation, 612. Traction engines on, 905. Repair of. Liability of Corporation to keep in repair, 475, (/t) 479. In England, obligation rests on parishes and counties, 479. (p) In this country, similar common law obligation, 480. (p) In United States, duty creature of Statute," 480. (j)) Question of fact for jury, whether place out of repair dangerous, 480. (p) Circumstances to be considered in letermining question; 481. (p) Defect in, may make Corporation liable for nuisance, 481. {p) Not every nuisance, constitutes non-repair, 485. (p) In England, persons not restricted to travelled highway, 481. (p) Different rule in United States, 485. (p) Duty to keep in repair, extends to sidewalks, 482. [p) Duty of Corporation to provide railing or barrier if necessary, 482. (p) No duty to light highway with lamps, 482. (p) Snow in road does not make it out of repair, 482. (p) Liability of Corporation for ice and snow on highway, 483. (p) What deemed want of repair, 484. ( p ) Any object likely to frighten horses, defect in way itself, 484. (p) Onus on plaintiff to shew negligence, 484. ( p) Corporation liable for acts of servants, 485. (p) Notice of defect inferred from its notoriety, 486. (p) Corporation not liable if no time to repair defect, 486. {p) Jury to decide, 486. ( p) Non-repair in absence of special damage, gives no action, 487. (q) Action for non- repair, local, 487. (q) Defect must be proximate cause of injury, 487. (?) Contributory negligence of what it is, 488. (q) " "of person injured, bars action, 487. {q) '• " question of law, 488. (g) Limitation of action for non-repair of, 487. : i INDEX. 1069 HmUW AYS— (Continued.) Limitation runs from injury, 492. (a) Measure of damages, wliat should be in actions for non-repair, 489. (r) Under Lord Campbell's Act, 490. (r) Corporation not liable for non-repair of private roads, 49L What constitute'j adoption of road by municipality, 492. (0 Use of public roads in cities and towns vested in municipality, 492. Municipality liable to fine if not kept in repair, 492. County Council to have jurisdiction over county bridges, 493. County roads in local municipalities, 534. Repairs of Township Roads. How enforced, 526. If any Township fail to repair County Council may enforce, 526. Resident ratepayers may petition County Council to enforce opening up of road, 527. Duty of County Council on petition, 527. Amount to be furnished by each Township settled by County Council, 527. Powers of County Council, 528. Commissioners to enforce orders of County Councils as to such roads, 528. Provision necessary for payment of Commissioners, 528. (/i) Sums determined upon to be paid by Townships, 528. Additional rate to be levied if necessary against Townships, 528. When several Townships interested cannot agree as to cost of, 529. Wardens to be arbitrators, 529. County Judge also, 529. Meeting of Wardens, 529. Who to convene, 529. Matters to be determined, 530. County Roads. What are county roads, 493. Jurisdiction of County Councils over, 49.3, 494. (i») Boundary lines of Townships and Counties maintained by counties, 495. Roads assumed by Counties to be improved by, 496. Boundary lines not assumed by County Council maintained by Townships, 500. Township boundary lines, also county boundaries, not assumed by Counties maintained by bordering townships, 500. Joint jurisdiction of several municipalities over certain roads, 500. Does not include bridge over river between municipalities, 502. Definition of a road lying between a County, etc. , 501. (a) Both Councils must concur in By-laws respecting, 502. Arbitration if they . (i) By-lawH interfering 'with ordnance roadH, Dominion landn and bridgoH, etc., and military landH, void uu1c<>b conHentcd t) In diHputes respecting roads, heads of Councils to atlminister oaths, 513. Hy-laws to open, repair, widen, alter the road, etc., 513. Whether Council have power to cliango level of streets, 515. (a) In United States, held mnnicipalities not Iia))le for consequential damages in changing level of streets, etc., 510. (a) If power exercised maliciously, rule diflerent, 610. (a) Corporations opening road allowances must bo correct as to their true position, 5'24. (<) By-laws to dispose of original allowance for roads in certain cases, 531. By-laws for opening etc. , roada, etc., between several municipali- ties, 531. By-laws for opening roads in local municipalities, 534. By-laws for stop[iing up and sale by lownship original road allowance, 535. When roads in Police Villages and Hamlets may be stopped up, sold, etc., by Township Councils, 538. When Village is partly in each of two Townships, 539. Width of lioculn. Width of roa()7. Notico to ix) poHtod upniid piiMinhod in nuwKpapora, /310. Ncc«m«ity of notico, 509. (7) What Mort of notico nj(|iiiHitn for Opfnimj lioiuln. J{y lawH nndor which roads arc opened on private property, to be rogiMtorod, fill. Aa to By-lawH alroaivino sorvico exempt from, {K)l. Vehicles, cattle, etc., crossing roads, wlien a farm divided by tho road, exem[it, 1)02. Vehicles, etc., laden with rnantjre passing from cities and towns, exem[»ted, 002. R. H. (). c. 184, not to apply tocnrtain bridges, 902. Authority for tolls by Act of i'arliament must be oxpress and clear, 517. ('/) By laws granting right to take tolls, 520. Right of lesHce to give in his own nairio for tolls doubtful, 520. Act to exempt certain vehicles froln tolls on turnpike roads, 901 . (SVfi TuArrio.v EsotNKS. Timhcr on lioii'l A l/owfrnccn, Bydaws to preserve and sell timber, trees, etc., on roa^l allow- ance, 518. Crown lias right without legislation to sell standing timljer on roaf INDEX. 1073 mOYlWAYB-f Continued.) Drains. Drainn noroBS highwayii, payment for, how Hcttlc<1, BB7. Power of municipnlity to contract to spread earth, etc., on high- way on making ditch, 558. Local Improvementa, By-laws for aflsessini; and levying upon real property bcnofitod by improvement of road, etc., 660. If petition presented by two-thirds in num))er, and one-half in value of owners, 5(50. To regulate time and manner of making aHsossments, 562. By-laws to effect improvement when funds furnished by private parties, 56.3. Petitions dispensed with if one-half costs defrayed by municipality 5(54, County Councils may levy by By-law local rates for special im- jirovements, 5G8. Petitions for, to bo signed, 5(59.' Notice to bo posted up and published for three weeks, 569. Lighting and Waterimj. By-laws for swooping, lighting, and watering streets, etc. , 566. , " to define arua witliin which streets to be watered, 567> Travellinrj on and une of. Act to regulate travelling on public highways and bridges, 898. By-lawa to regulate driving on, 3(50. " to regulate the nse, 450. Powers of Council, 460, (n) By-laws to prevent driving on sidewalks, 428. Carriages meeting to drive to the right, giving half the road, 898. Carriages overtaken to turn to the right, 899. When the weight of one of them prevents this, 899. Penalty on drivers, etc., too drunk to man.ago their horses, 899. Racing, swearing, etc., on highways forbiaden, 899. 81eigh horses to have bells, 899. Penalty for contravening Act to regulate highways, 900. To be enforced by distress, 900. Or by imprisonment, 900. Not to bar action for damages, 900. Application of penalties, 900. Traction Engines on, 905. See By-la w.s—Drainaoe — Boad Companies — Road Commis- SIONER.S— Road Surveyors — Sidewalk.s — Streets. HOLES — By-laws to compel filling up of, 905. HOOK AND LADDER COMPANIES— By-laws to appoint, 451. HORNS — By-laws to prevent blowing of, 427. HORSES. By-laws to license and regidating livery horses, 460, 461. Hiring of, for election purposes, bribery, 158. 135 1074 INDEX. HORSE RA(JINr). ». i By-lawH to pro von ii, 390. Not utitlor nil circuriiHtaricos illcgril, 300. (/>) On HtroutH forbidden, 800. HOIISK THIKVKH. By-lftWH for rownrd of ai)|)rohoniiir)n of, 402. Ilowanl Hhall not diwiiiolify infonnor na wituou, 403. {I) HORTICUI/niUAI. HOC'IETIKH, By-lftWH tf» aid, .1.57. Property of, uxonipt from taxation, 013. HOSPITALS. Kxonipt from taxation, 012 Uy-Ia^vM to found, .350. HOUSES. Bylawd for numbering, 442. " Vt dcHtroy in caMo of flro, 430. Liability of municipality for houHen doHtroyod, 430. (a) By-la WH to iirovont t}ie erection of wo(jden buildingit in certain limitH, 45.'). By-lawH ni^anlirig tlio construction and mode of ogross from cer- tain biiildingH, ,'{G1. HOUSE OF COM.MON.S. MemberH of, exempt from nerving in Municipal Conncila, GO. HOUSE OF (JOURKCrriON. Keeper of diH(iu;ilified aH member i>t Council, 50. In default of payment of fineH, offender may bo impriaoncd in, 310 County (Joiincil may i»a8H By-lawH aa to, .'{35. Use of when (Jountieti and (yitiea not Heparated, 3'i7. City (Council mav er ,ct, .337. PorflonH tletained for transmiMaion to, to bo confmcd in lockup houHCH, 338. By lawH of C/itioH and Towns to bo poosed as to, 340. PoworH of Council, .341. (r) Who liable to be committed thereto, .341. Until erected, common gaols to bo, ,341. HOUSES OF ILL-FAME— ,S'ee Bawuv Houhks. HOUSES OF INDUSTRY. County Council may pass By-laws for erection of, 336. City County may pass By-laws for erection of, 337. I^nd may be acf|u:red for, 339. Proviso as to united or contiguous Counties, .340. Inspectors to keep and render account of expenses, etc. , 340. By-laws may ))0 passed establishing, .340. Justices may commit to, persons wlio are indigent, .348. Idle, .348. liowd, .348. Fre(|nenter8 of public houses, 348. Idiots, .340. Punishment of refractory inmates, 349. Exempt from taxation, 013. INDKX. 107& HOUSKS OV KEFUOK. liAiid may ho a(3(|iiirc(l liy Mniiicipal OonnciU for, 339. InnncctorN of, to koujt niid njixlur nccotiiit of vxpunacii, etc., 340. Hy-lnwH to untaliliMli ntnl tu^uIaUs, 450. HOUSKIfOfJ) KFKECTS -Kxomiit from taxation, 019. llOVHKWil. I H'.HH. When ontitlcd to votu at cIcctioiiH, 04. HouHuholilor ilefiiiu) IDIOTS. (y'ommitmont to lock-up, .349. liy-lawH to prevent Bale of liquor to, 397. (0 IDLE I'EUHONH. Who deemed, .348. {m) May ho committed ))y .fuMticea of Peace to House of Industry, .348. ILL-FAME, HOUSES OF ,SV^ IJawdv Hou.hks. IMMOJIALITY- Hy-lawH to prevent, 397. IMPKI.SONMENT-Uy-lawH for inflicting, .304. IMPltOVEMENTS-.SVc DiCAL Imi-hovkmbnth. INCOME. Of farmer, merchant, and mechanic, exempt from taxation, 616. Under 9400 exempt from taxation, 018. Of ministfsrM exempt from taxation, 018. Form of complaint of overcharge on amount of, 781. Form of complaint of overcharge hy agent ou amount of, 782. INCOME FRANCHISE— .Ve« Ei.ectoiw. INCORPORATED VILLAGES. When County Council may incorporate, 14. Place for firHt election and Returning OiBcer to be named in By-law, 14. To be set apart on petition of 100 resident freeholders and houae- holdera, 14. Boundaries and name to bo fixed by By-law, 14. When erected out of two counties power of Councils, 16. Lieutenant-Governor to proclaim village annexed to one County when they differ, 10. Lieutenant-Governor's dociHion final, 10 («) Boundaries of may be added toby Lieutenant-Governor, 18. No of warda in, 22. {y) Power to acc^uire lands beyond limits, 22, (u) 508. See V1LLAOE.S. 1076 INDEX. I INDECENCY. iW-Inwn U> pruviitit, 397. Whftt iH, .11J7. ij} Mimlumoaiioiir Ui procure iti'Iecont prints with intent to puMiiih thtjtii, 31>7. (J) To pHiHurv*) ami koop tlicm no ofTonce, 397. ij) INDECENT KXI'OSUKK. Hv-lnwH to provont, 4()0. Not nocuHHury t^t conntitiito ofTonco, that Gxp^muro iliould t>o in I»I(i»;« fiiMjn to pii))lir;, 4lic place, with indecent exhibition, Indict* abhj, 4(X>. (r) INDIAN LANDH. Exempt from taxation, Ci09. I'ernonH .>ccupying non ofhcially, liable, fi09. INDIGENT PEICSONH. Who deemed, .148. {I I) May >)<) committed liy JuHticeH of Peace to Ifonae of Industry, .348. Jiy-lawH to aid and maintain. .S.')9. No poor law in thin country aH in England, 301. (7) Court cannot interfere tiii belialf of individuals, 3G1. (7) INDUSTRIAL FARMS. Municipal (Council may acquire lands for, .339. May provide for erection and repair thereof, 339. May appoint InHjiectorH, KooporH, etc., for, .3.39. Land may be acijuirod liy Municipal Counciln for, 339. By-lawH to procure prot)erty for purpose of, 455. For the erection of buildings thereon, 455. For the managing of same, 455. ?]xcmpt from taxation, 013. INFANT'S LAND— Title to etc., how acquired, 375. INFECTIOUS DISEASES— Bydaws to prevent spread of, 429. INHABITANT AND RATEI'AYER-Differcnce between, 195. (i) INN — Sue LiQUOK LirENSR.'*— Tavehnh — Tavkkn Keeper. INOCULATION -.%« Vaccination. INSANE PERSONS. An Act respecting the support of flestitute insane persons, 897. Clerk of Peace to lay Ixiion) Grand .lury of General Sessions an account of money necessary for mamtaining insane persons, 897. Sum of money presented by Grand Jury to be paid by Treasurer, 897. Witnesses may be summoned before Grand Jury, 898. II INDKX. 1077 INHECTIVKFIOCH niUDS. Act ruHi)«!(;tiiig, {l7 1 . Not to ftff.ict T{. M. (). c. 2()0, 071. (/'au H{ or oxpoHin^ for (tftio or trapping Cfrtain Mnlii, 97?. I'owi^r to Niii/o iibtH, tru|>H, otc, 117 '2. NuMt f)f young or 'iggH not to Imj tiikon, J)72. I'owurto Hu'v/Ai Itir'lN iiiilawfiilly {iomhchh):*!, 072. KggN or hinlH rcoiiirutl for mjiontitiu purpiiRen, U72. r«inftItiliHhrn«!nt!4, appointment of, 330. Sef l.HtfDU liK.KNMKM. INSULTJNO [.ANfiUACiE -liylawH to prevent, 307. INTKIiLFfiKNTK OFFKJH.S. UylawH to licenHf), 4.')2. " for the regulation of, 4.')2. " for liniiting the duration of licenfieH for, 4.'>2. " to prohibit keeping open H;inie without lifctween appointment and, 127. ('/) •• Electors" includes perHona entitled for tlio time being to voto f on elections or on By-laws, 7. "Existing," meaning of, 574. (a) " Farm," meaning of, 631. " Father," inclui^s step-father, (531. " Finally," effect of word. 105. (/t) "Forthwith," meaning of, 124. (7) " Gazette," meaning of, 600. " Highway," meaning of, 7. 1078 INDEX. IT', INTERPRETATION— ('Con strued, 372. (a) 1080 INDEX. \ i;;>. ii % LAND— (Continued.) Notice to be given to party whose property is appropriated, 373. (a) DifiFerenco between, and owner of property determined by arbitration, 374. < Difference between damage and trespass, and compensation under Act, 374. (d) How title acquired by land owned by Corporations tenants iu tail, etc., 375. If there be no party to convey, County Court Judge to appoint some one, 376. Application of purchase money where party has not absolute estate in property, 377. Purchase money subject to charge on property, 377. Money paid for land obtained from person under disability, considered realty, 377. By-laws to enter on and take for sowers, 361. Comiiensation for, 361. (m) By-laws for acquiring land for parks, etc. , within or without limits of municipality, 455, 568. Acquiring Title to. Trustees, Committees, etc,, may act for lunatics, infants, etc., as owners, 375. Object of the section, 375. (/) If there be no pai ^y who can convey, 376. Cases in which jurisdiction of County Judge arises, 376. {g) Application, &c., of purchase money when party has no absolute estate, 377. Purchase money subject to charges on property, 377. See Free Grants — Indian Lands — Ordinance Lands — Wet Lands. LANDMARKS. By-laws to preserve, 400. "to establish, 401. LANES— Sfe Streets. LATHS — By-laws to regulate mod© of measuring, 421. LAW SOCIETY OF ONTARIO. Members of exempt from serving in Municipal Councils, 60. LAWNS— Assessment of, 634. LEASEHOLDERS. Who may vote'on By-laws, 228. Oath to be taken by, 231. Of Corporation over 21 years not disqualified as members of Council, 60. Not to vote in Council on questions affecting lease, 60. When tenants may deduct taxes from rent, 931. LEGISLATURE. Right of, to delegate legislative power to municipalities, 14. (Z> Members of, exempt from serving in Municipal Council, 60. '\^. INDEX. 1081 LEWDNESS. By-laws to suppress, 348. Who deemed lewd persons, 348. (n) May be committed uy Justice of Peace to House of Industry, 348. LEVELS OF CELLARS-zS-ee Cellars. LIBBARY — Public libraries exempt from taxation, 613. LICENSE COMMISSIONERS— 5ec Liquor Licen8E8. • LICENSE FUND— iSee Liquor Licenses. LICENSE INSPECTOR— -See Liquor Licenses. LIEN. License fee not a Hen, 383. (/) Taxes to be a lien on land, 707. Qucere as to sewerage rates, 708. (c) LIEUTENANT-GOVERNOR. By-laws requiring assent of, how authenticated, 220. To approve of By-laws reducing rates, 275. To approve of By-laws making anticipatory appropriations, 277. Power of to direct application of moneys, produce of special rate levied, 288. Every Council to make yearly report of state of debts to, 286. Income of, exempt from taxation, 614. To authorize issue of liquor licenses, 790. LIGHT-H. USES. Property of Dominion Government under British North America Act, 506. (i) LIGHTING STREETS— By-laws for. 456, 566. See Gas — Gas Companies. LIGHTS. In stables, shops, &c., 433, 583. In bar-rooms at prohibited hours, 838. To be carried by traction engines, 906. LIGHT WEIGHT— By-laws to impose penalties for, 422. See Bread. LIME. By-laws to regulate weighing of, 421. Regulations enforced by Police Trustees as to storage of, 689.. LIMITATIONS OF ACTIONS. In actions for non-repair, time runs from accident, 492. (r) Under Act to prevent the profanation of the Lord's Day, 917. LINE FENCES. Act to amend the Line Fences Act, 975, By-laws to p,;)point fence viewers, 355. Fix fees and. securities of fence viewers, 357. Duties of owners of adjoining lands as to fences, 967. Act respecting, 957. Disputes between owners, how settled, 967. 136 1082 INDEX. If ^■1 LmEFEHJCES.— (Continued.) Notice to owner or occupant of adjoining land, 958. And to fence viewers, 958. What to contain, 958. When Judjje to appoint fence-viewers, 958: Duty and liability of occupants as to notifying owners, 958. Duties and powers of fence-viewers, 958. Award of fence-viewers, ,958. Contents, 958. Character of fence, 958. Location of fence, 958. Employment of surveyor, 969. Deposit of award, 959. Award may be evidence, 959. Notification of award, 959. Award, how enforced, 959. Charge on lands if registered, 959. How registered, 959. Fees to fence-viewers, surveyors, and witnesses, 959. Appeal from fence viewers, 959. Notice of appeal to fence viewers, 960. To Clerk, 960. Notice of hearing, 960. . Powers of Judge, 960. , Decision of Judge final, 960. Eegistration of agreements, 960. Owner of division fence forming part of another person's land not to remove same except on notice, 961. Provision when tree thrown down across line fence, 961. When injured party may remove fence, 961. Entry to remove tree not to be a trespass, etc., 961. Interpretation of the word occupiea lands, 975. Fence-viewers to decide disputes, 961. Forms. Notice to opposite party, 962. Notice to fence- viewers, 962. Award, 963. Agreement, 963. LIQUOR LICENSES. Legisli.bure of Ontario, no power to compel brewers to take out licences, 787. (/) Act respecting the sale of spirituous or fermented liquors, 784. Interpretation. '* Liquors and liquor," meaning of, 786. *' Tavern license," meaning of, 786. " Shop license," meaning of, 787. " License by wholesale, meaning of, 787. License Commissioners. Board of License Commissioners to be appointed for each city, county, union of counties, etc., 788. Appointment of in districts not in jurisdiction of Municipal Councils, or in license districts, 850. ■.,!■ fi INDEX. 1083 LIQUOR LICENSES— fCon) LORD'S DAY. Act to prevent the profanation of, 914. No sale to take place on, 914. Ordinary work prohibited on, 914. Exception, 915. Political meetings, tippling, etc., prohibited, 915. Games and aniuaements prohibited, 915. Hunting and shooting prohibited, 915. Fishing prohibited, 915. Public bathing prohibited, 915. Sales and agreements on Sunday void, 915. Penalty ( ' ifringement of Act, 915. Application ot penalties, 915. Justices to summon accused party, 916. Commitment, 916. Form of conviction, 916, 918. Conviction and commitment not void for want of form, 916.- In default, may le/y fine, 917. Commitment, 917. Limitation of time for prosecution, 917. Where actions, etc., are to be tried, 917. Limitation of actions, 917. Defendant may plead general issue, 917. Tender of amends, etc., 917. Defendant, if successful, to have full costs, 917. Not to extend to Indians, 917. LOTS. By-laws for numbering, 442. Powers of Council under By-law, 442. i;i' INDEX. 1091 LUMBER. By-laws for regulating place aud manner of loUing and w«igb> ing, 419. LUNATIC ASYLUM— Exempt from taxation, G13. MACHINES. Act re(]uiring owners of threshing and other machines to guard against accidonts, 038. Certain machines to be so protect^: . as to prevent injury to persons near them, 038. Penalty for oon-complianco \yit)i provisions of Act, 038. No action for services rendered, if provisions of Act not complied with, 930. Disposition of fines, 930. Proceedings to be commenced within thirty days, 039. Convictions, defective in form not invalid, 039. MALFEASA.NCE OF PUBLIC 0FfICERS-5ee Municipal CocNcits. MANDAMUS. Enforcing judgment in trials of contested elections, 151. Form of writ of, 993-005. MANUFACTURES. By-laws for preventing or regulating the continuation of, " to prevent or regulate currying on of dangerou factories, 433. Municipal Councils may exempt from taxation by By-law, 274. By-laws to aid, 357. •MANURE. Vehicles laden with, passing from Cities and Towns exempt from toll, 002. MARKETS. By-laws to establish, 415. Power of municipality to acquire land for market buildings, 416. (c) 427. erous mauu- Municipality should keep in repair, 415. (c) Power of Council to restrain sole of commodities elsewhere than Ought not to be in public street, 415. (c) il1^ in, 416. (d) By-laws to restrain sale of fr«>ah meat elsewhere than in, held good, 41G. (d) Authority to establic'i is a continuing power, 418. (e) Stallage rent due for occupation of portion of soil, 423. (s) What constitutes a stall, 423. («) Actions for stallage, 423. («) Exposing food unnt for man, 423. {t) See By-laws. MATERIALS FOR ROADS AND BRIDGES. By-laws granting power to .ake, 521. 1092 INDEX. it fL i' MAYORS. Annual meeting for election of, 82. Where persons are to vote for, 97. Penalty for voting twice for, 97. Declaration of office by, 199. Form of, 199. Before whom to be made, 199. Penalties on for refusing to accept office, 201. How enforced, 202. Does not require further oath or property qualification to act as Justice of the Peace, 307. Remuneration of, 172. Remarks as to responsibilities of office, 172. (x) Have responsibility without power, 178. {s) Jurisdiction of over certain offences where no Police Magistrate, 307. • May administer certain oaths, 200. To be member of Board of Police Commissioners, 324. Power of, to call out Posse Comitatue, 352. See Controverted Elections. MECHANICS. Income of, derived from property liable to assessment, exempt from taxation, 615. MECHANICS' INSTITUTE. By-laws to aid, 357. Exempt from taxation, 613. MEDALS. By-laws to provide medals for persons distinguishing themselves at fires, 432. MEAT. By-law to regulate vending of in street, 418. " for regulating place and manner of selling and weighing, 419. " to prevent forestalling, regrating, etc. 1 of, 429. " for sale of meat distrained, 422. See Markets. MENAGERIES. » By-laws to reflate, 392. Fine for infraction, 392. MENDICANTS— By-laws to restrain and punish, 399. MERCHANTS. Income of, derived from property liable to assessment, exempt from taxation, 615. MILITARY CLOTHING— Property of Dominion Government, 606. (t) MILITARY LANDS. By-laws affecting void unless consent of Dominion Government granted, 605. ■ i I ill INDEX. 109a MILITARY AND NAVAL OFFICERS. Land occupied by, and pay, salaries, pensions, etc., exempt from taxation, 614. MILITARY ROADS— Property of Dominion Government, 605. (i) MILITARY SERVICE— Persons in exempt from statute labour, 687. MILLERS — Exempt from serving in Municipal Council, 60. MINISTERS OF GOSPEL— 5ee Clbrgymen. MINERALS— Found on roads, etc., sale of, 537. MINERAL LANDS— Assessment of, 633. MONOPOLIES. What have been deemed, 215. {/") Cannot be granted by Municipal Councils, 214, 433. {I) By-laws to prevent, of market, grains, wood, meats, etc. , 420. MORTGAGE. Money invested in exempt from taxation, 616. Interest on not exempt frf m taxation, 618. MUNICIPAL CORPORATIONS. Definition of, 8. {d) Acts done in excess of powers of, void, 8. {d) Cannot always resort to such defence, 8. (d) May sue and be sued, 9. (d) May contract and be contracted with, 9. (df) May have common seal, 10. {d) May hold and alienate real estate, II. {d) Prop'>r name should be used, 11. (/) Variation in how far material, 11. (/) Cannot change its name, 12. (/) Council, legislative and executive body of Corporation, 12. (k) Powers of, limited, 13. (k) Liable for negligent construction of sewer, 9. (d) In actions against for negligence, instructions under seal to ser- vants of, need not be shewn, 9. (d) Evidence must connect servant with, 9. {d) When may be sued on simple contract, 10. (d) Liability for breach of contract, 9. (d) When contract not under seal implication of law as to, 10. {d) Members of, cannot contract with, 319, 320. Not liable on simple executory contract, 10. (d) Person contracting with held to have notice of limit of powers of, 10. (rf) Powers of, exercisable by Council, 12. Restricted to object for which established, 13. {k) Banquets may not be givv>». by, 13. {k) Personal liability of memberj of, 13. (k) By-law must be quashed before action brought against, 248. IllegaUty need not appear on face of, 248. {b) Persons acting under By-law of, not liable to action, 248. (b) Notice and limitation of actions against, 248. 1094 INDEX. MUNICIPAL COUVORATIOmB— (Continued.) Whether Statute of Limitations runs only from quashing of By- law, 248. (e) Replevin would not lie against, 248. {d) By-law illegal, right of action for anything done under, 249. (/) Tender of amends by, 249, 249. {g) Definition of tender, 249. {g) How made, 249. {{/) To whom made, 250. (g) Must be specially pleaded, 250. (h) Object of, 250. (i) See Municipal Councils. MUNICIPAL COUNCILS. Not Corporations, but g >iveming body, 47. (a) Members of, not Corporation, but agents of, 172. {w) Members of, liable to civil and crimmal remedy for misappropria- ting funds, 172. (w) How compobtd. In Co antics, 47. Reeves and Deputy-Reeves to file certificates as to election and number of freeholders and householders, 47. Clerk may reject certificate if not in form required, 47. Power of Clerk to reject certificate and eflfect, 47. (c) Certificate only evidence of what has been done, 48, (c) Form of certificate as to election, etc., 48. Form of certificate as to number of freeholders and house- holders, 49. In Cities, 49. In Towns, 50. In Villages, 50. In Townships, 51. Qualiication of Member8. Must be British subjects, 52. Who deemed an alien, 52. (6) Indians, being British subjects, qualified, 52. (6) Legal or equitable estates sufficient, 53. {g) Effect of encumbrances on estate, 53. (g) Qualification required in Cities, 54. In Towns, 54. In Cities, 54. In Townships, 55. Qualification and rating both necessary, 53. v'*) Property not mentioned on assessment roll not available, 64. (7t) Administrator cannot qiialify on estate of deceased, 64. (h) Roll as to property qualification conclusive, 64. (A) Leasehold defined, 55. Proviso when no assessment roll, 65. If only only person in municipality qualified, 66. DiaqvaVification. Certain public officers disqualified from being membera of Coun* oil, 66. IITDEX. 1095 MUNICIPAL COUNCILS- fCon«nMcrfJ An insolvent not disqualified in express terms, 56. (n) Inn-keepers and saloon-keepers, 66. Shop-keepers selling liquor, 66. Persons having contracts with Corporation, 56. Contract need not be binding upon Co. ^oration, 57. (p) Whether contract in name of party not immaterial, 58. ( p) Agent of contractor, 59. (p) Doubtful whether sub-contractor disqualified, 59. (p) Objection to qualification to be taken at nomination, 59. {p) Notice must be clear and satisfactory, 59. (p) Shareholders in Companies dealing with Corporation not dis- qualified, 57. Lessees from Corporationo of twenty-one years not disqualified, 59. Cannot vote on questions afiFecting lease, 60. Lessor of Corporation, when lease not assigned, 80. (q) Exemptions. Who exempt from service on Municipal Councils, 60. Difference between disqualification and exemption, 60 (a) Electiom—See Elections. Meetings. Of County Councils, 167. Of other Councils, 167. Members of Councils bound to know day of first meeting, 167. No businesd before declaration of office, etc., 167. What is meant by members organizing themselves as a Council, 169. (p) Special meetings may be either open or closed, 174. Special meetings to be called by head, 174. (d) Effect of failure to notify members to attend, 174. (c) Place of subsequent meeting, 170. Place of meeting may bo in City, Town, or Village, 170. Election of Wardens. Must be majority of Council present, 168. Court will presume majority present until contrary shewn, 168. (n) Clerk to preside at election of Warden, 169. Reeve of largest municipality to have casting vote in event of equality of votes, 170. Place of first meeting, 170. JRemuneration of Members, Remuneration of Councillors limrtsd lo three dollars per day, 171. Remuneration of Mayor, 172. Remarks as to responsibility of office, 172. («) Conduct of Business. Ordinary meetings to be open, 173. Majority of meniLers to be quorum, 1/3. In Councils of five, three must concur, 173. Heads of Council to preside in Council, '.73. In event of not being allowed ma 7 take legal proceedings, 174. (d) 1096 IXDEX. h i ■1^ MUNICIPAL COVHCILS— (Continued.) If head refuse to put motion which it is his duty to put, may be voted out of chair, 174. (d) In absence of head, Reeve or Deputy Reeve to preside, or Council may appoint presiding oiidcer, 175. In casual absence of head, Council may appoint presiding officer, 175. Head of Council may vote on all questions, 175. Question negatived in case of equality of votes, 176. Meeting may be adjourned to any time, 176. What business may be transacted at adjourned meeting, 176. \ Distinction between motion to adjourn simply and motion to adjourn debate, 176. (o) Heads of Councila. Who to be, 177. Duties of, 177. To issue warrant for new Elections, 124. May administer certain oaths, 200. To sign debentures, 299. Not liable to action for not attaching seal to contract of, ID. (d)' See Mayor — Reeves — Wardens. Officers. Salaries of officers to be settled by Council, 202. See Officers of Corporation. Vacancies in Councils. Created by crime, insolvency, absence, etc., 121. Must be actual vacancy before new election can be ordered, 121. {h) Persons disqualified retaining seat removable by quo warranto, 121. (h) ResignaUon of members with consent of Council, 122. Right to resign, and power to accept resignation discii?,3cd, 122. (k) Resi^ation of Warden, how accomplished, 123. Two incompatible offices cannot be aeld together, 123. (h) Clerk to notify Council of, 124. Clerk to call special meeting to fill vacancy, if required, 125. Person elected neglecting, etc. , to take omce, 124. Refusing to make declaration of office, 124. Hesitation ito take oath till legal adiice, not refusal of office;- 124. (n) New election, to supply, 124 Mode of conducting, 124. Head of Council to issue warrant for new election, 124. Or in his absence, clerk, 124. "Forthwith," means, reasonable time, 124. (q) 'Immediately," more strictly construed, 124. (g) Term of oiHce of persona elected to fill, 125. ••Seat," meaning of word, 125. (a) If vacancy, before organization of new Council, how filled, 125. Non-election not to prevent organization of Council, 125. New election to be held eight days after warrant, 125. Whether first and last days, exclusive or inclusive, 125. (a) '^;^-. IXD£X. 1097 MUNICIPAL COVNGILS— (Continued. ) Notice to be given four days before election, 127. If election neglected, mode of appointing requisite number of Council, 127- Penalty in case of refusal or neglect, 128. General Powers of. Distinction between election and appointment, 127. (c?) Nature and extent of powers, 209. Powers of Council confined to their own municipality, 211. (c) Powers of Council exercised by By-law, 211. (c) Erroneous belief with regard to resolution and By-law of, 211. [d) General power of Council to make regulations, 212. To repeal, alter, etc.. By-laws, 214. Not By-laws for issue of debentiires, 214. (e) Purposes for which regulations may be made, 212. Regulations must not be inconsistent with the Municipal Acts, • 213. [e) Must not be inconsistent with Common Law, 213. (e) Monopolies cannot be granted by, 214. What have been deemed monopolies, 215. (/) Tax levied by, on particular occupation, bad, 210. (g) May impose fees for certificate of compliance with regulations, 217. May grant exclusive privileges as to ferries, 217. Only when express power given by Legislature, 218. (k) Eight to derogate from its grant of, 218. (k) Grant may, if necessary, be repealed or altered, 218. (it) Not to be granted to run between Provinces of Dominion or any British or Foreign country, 218. Restriction upon, as to banking, issuing bills, bonds. etc. , 405. Contracts by members of, with, void at law and in equity, 319. May purchase public works, and contract debts to Crown, 261. Rates may be imposed for the payment of debts contracted with the Crown for such works, 203. Estimates to be made annually by, 2G8, Powers of Councils in districts of Algoma, Muskoka, Parry Sound, Nipissing, and Thunder Bay. — See Algoma. See Arbitration — By-Laws— Debentures — Finance — Municipal Corporations. MUNICIPAL PROPERTY— Exempt from taxation, 612. NAVAL OFFICERS. Land occupied by, and pay, salaries, etc., exempt from taxation,, 614. Exempt from statute labour, 687. NEW CORPORATIONS. Area and population of, regulated, 14. How population reckoned, 15. How area reckoned. 15. Disposition of property, and payment of debts when created, 16. Limits of, 16. By-laws in force prior to formation of, to continue in force, 42. May be repealed by either Corporation, 429. What By-laws bind when limits of municipality extended, 42. 138 nl; 1098 INDEX. m f I}' NEW CORPORATIONS— rCoH^HMerf. ) Liability for debts at timo of dissolution, 42, 42. {k) Debts in coso of extension of limits, 43. Adjustment of liabilities, 43. Debentures to issue for debts and to bind old and now municipali- ties, 44, 44. (o) RAte for year preceding separation, to whom to belong, 44. (/)) Special rates for debts continued, and to be paid to Ireasurer of Junior County, 44. If sum paid exceeds first amount, excess may be recovered, 45. Form of action, 46. Former Council and officers to exercise jurisdiction until now Councils organized, 45. Officers and sureties, effect of separation on, 45. Council should be organized without delay, 45. (r) After dissolution public officers of union to be officers of Junior County, 46. • Sureties to remain unaffected, 46. Rights to new sureties unaffected, 46. See Algoma — Towns— Villager. NEGLIGENCE. Liability of municipalities for, 9, {il) 484. {p) Onus on plaintiff to show, 484. (p) Want of ordinary care true measure of liability for, 485. (p) Liability of municipality for nogligenc'e of their servants, 485. (p) What is evidence of, 485. {p) NIGHT WALKERS— Deemed vagrants, 349. {p) NIPISSING— 5ce Algoma. NOISES — By-laws for preventing in streets or public places, 427. NOMINATION— 5-^6 Elections. NON-RESIDENTS— 5'fe Assessment— Thistles NON-RESIDENT LAND FUND. How disposed of, 755. When no By-law, 755. Duty of Treasurer of Counties to collect taxes in arrears, 755. (c) Treasurer to open an account therefor for each local municipality. 756. Duty of Treasurer when municipalities united are afterwards disunited, 756. {g) New municipalities partly in one County and partly in another, 757. All arrears to form one charge upon lands subject to them, 757. Necessity of the several rates, 757. (m) Deficiency in certain taxes to be supplied by municipality, 757. Money from non-resident land fund, how appropriated, 758. Debentures may be issued on credit of non-resident land fund, 758. Who to have charge of them, 758. By whom to be negotiated. 768 Purchaser not bound to see to application of purchase money, 769. Provision for payment of such debentures, 759. Ordinary mode of enforcing payment, by debentures, 759. INDEX. 1099 tali- irof 45. new iinior >) 85. (p) 755. (c) iipality. r wards ier,757. 1, 757. f. V57. 38. |ncl,758. ley, 759. NON-RESIDENT LAND FUN D-fCftH What it shall show, 7()0. Treasurer to keep triplicate receipt books, 761. Audit of, 761. Copy to bo transmitted to Provincial Secretary, 761, When copy shall be sent, 761. (A) NOTICES. By-laws to prevent the posting up of printed notices, 395. ** to prevent defacing notices lawfully atHxcd, 395. On bridges, 899. Posting up directions ' < voters, 92. Of appeal to Court of tie vision, 661. Of appeal from Court of licvision, 670. NUISANCES. By laws to prevent and abate pul)lic nuisances, 424. Public and pri /ate nuisances, distinction between, 424. («) Nuisance defmed, 424. («) Resolution of Council no defence to action for nuisance, 425. («) Power to abate nuisance necessarily incident to Corporations 425. (u) No power to destroy house not nuisance per se, 425. («) Indictment lies for public not private nuisance, 426, (w). Non-repair of private road not indictable, 426. («) Action on the case lies for continuance of nuisances, 426. («) Abatement — proper judgment to indictment for nuisance, 426. (h) What manufactures and trades have been deemed, 427, (w) Shooting ground near highway may be, 428. (y) By-law that no person shall ke(U) slaughter house within City without special resolution of Council, bad, 424. (w) By-laws for preventing or regulating the construction of privy vaults, 426. " for preventing or regtilating the constniction of slaughter houses, gas works, tanneries, distilleries, etc., 427. " to prevent rmgingof bells, blowing of horns, etc., 427. '* for preventing or regulating firing off guns, 428. To collect a crowd on the ;?treet by violent language is an indict- able nuisance, .397. {k) Sale of spirituous liquors has been held in United States to be a nuisance, 368. See By-Laws— Police Villages. NUMBERING HOUSES— By-laws for numbering houses, 442. NUMBERING LOTS— By-laws for, 442. OATHS. Heads of Council may administer certain, 200. See Declarations — Elections— Fohms. OBSCENE LANGUAGE— By-laws to prevent, 397. 1100 INDEX. W' I OFFICERS OF CORPORATION. Declarations of office, 199. Not necessary that appointment shoulil bo under seal, .355. {tl) Salaries of, if not hxed by the Legislature, to be settled by Council, 202. Not entitled to compensation unless right to compensation given by statute, by-law, or resolution, etc., 203. (c) No claim for compensation extra the salary, 20.3. (c) Promise to pay extra the sum tixed by By-law not binding, 203. (c) Salaries of, not acts of grace, 203. (c) By-laws fixing salaries not contracts, 204. (c) Corporations may indemnify in matters in which interested, 204. (c) Not when corporations are not interested or concerned in matters involved, 204. (c) Appointment of officers not to be by tender, 204. {k) A gratuity may be given in certain cases to, 206. Corporations may accept security of certain companies for their officers, 20(i. Provisions resnecting such security to apply, 206. Existing bonds may oe cancelled, 207. Embezzlement by, how punishable, 207. Effect of separation of municiiJJilities on officers and their sureties, 45, 40. Penalty for neglecting their duties under the act for the registra- tion of municipal debentures, 883. Malfeasance of Officers of. Investigation, 350. To be conducted by. County Judge, 350. No provision for expenses of, 350. Matters as to which enquiries may be made, 350. Judge to have powers mentioned in Revised Statutes, c. 17, 351. Power to summon witnesses, 351, (<) Judge to make report to Council, 351. Evidence taken must be reduced to writing, 352, (w) See Assessors — Clkrk of Municipality — Collectors — High Bailiff — Treasurer. OFFICERS OF ARMY OR NAVY- Exemptions from taxation, 614. OIL WELLS. Act respecting abandoned oil wells, 955. Owners of well injured may apply to Municipal Councils to fill up abandoned well, 955. Powers of Councils, 955. If Engineer reports well should be filled up, owners thereof to be notified, 956. Cases where c Jiplainaut may fill up, 956. OMNIBUSES. Board of Police Commissioners to license, 326. By-laws to license and regulate, 460, 461. ONTARIO MUNICIPALITIES FUND. Surplus moneys of may be set apart for educational purposes, 252. INDEX. 1101 OPENING ROADS— .^c? HionwAYS. ORDINARIES— By-Hws to regulate, etc., 383. ORDNANCE LANDS. By-laws affecting void unless consent of Dominion Ooveroment recited, 505. ORNAMENTAL TREES— .?ee Tkees. ORPHANS — By-laws to provide for, of persons killed in fires, 432. ORPHAN ASYLUMS— Exempt from taxation, 613. OUT-DOOR RELIEF— By-laws to grant to poor, 359. OVENS— By-laws to prevent or regulate construction of, 433. OVERSEERS OF HIGHWAYS. By-laws to appoint, .355. To fix fees and securities of, 357. OYSTERS. Houses for selling ; By-law to limit number of and regulate, 383. To fix license and fee for same, 383. PADDOCKS- Assessment of, 634. PALINGS— By-laws for removal of, 379. PARKS. By-laws to procure property for purpose of public park, 455. For the erection of buildings thereon, 455.* For the managing of same, 455. Assessment of, 634. Power to acquire lands for public uses, 568, PARRY SOUND. Act relating to, 869. See Alooma. ' ,i PARSONAGES— Exempt from taxation, 618. ; . PARTNERSHIP— Personal property of, assessment of, 638, 639. PARTY WALLS. By-laws to regulate and to enforce erection of, 434. What is a party wall, 434. {n) PATH-MASTERS— Duties of as to snow roads, 904. PEDLARS. By-laws to license, 408. License personal, does not authorize agents of to sell, 4^9. (r) Who are, 409. (}•) PENALTIES. On candidates guilty of bribery, etc., 161. Forfeiture of seat, 161. Disqualification for two years, 161. Fine for intimidation, etc., at elections, 162. How recoverable, 162. 1102 INDEX. FEN ALTlEH-f Continued. ) Disquivlilication for two j'Oftrs from voting, 102. No statutory penalty for corru^tt practicos whoro party charged has first prosocutod party luiblo, 1()6. By-laws made by Police (Jommissiouura, may bo enforced by, 328. How recovered, 328. Recovery and enforcement of, 309. By-law without, is nugatory, 309. (a), 362. (to) Where power to enforce given in particular way, no other can be adopted, 307. {h) Imprisonment in default of payment, 303. Power of Justices to award coats, 309. (f ) Where corporal punishment substituted for, not to extend to non- payment of costs, 310. (/) Imposed by By-laws, 310. Award of with costs, 310. Conviction for, must be on evidence of cedible witness, 310. Effect under old law, of ^^art of penalty going to informer, 310. {h) Defendant under Municipal Act, Liquor License Act and Assess- ment Act, competent as witnesses, 311. (h) Distinction between civil and criminal prosecution, 311. (//) Power of municipality to impose sliding penalty, 312. (J) To be levied by warrant, 312. Warrant to be in writing, 312. (k) Muni iipal Corporation, no power to regulate criminal procedure, 312. (/) Commitment in default of distress, 312. Commitipent should not be issued till fact of no distress ascer- tained, 312. {m) Justice who commits without enquiring as to distress, liable to action of trespass, 312. (m) Commitment should be in writing, 3l3. Detention of party till return of warrant of distress, may be by » parol, 313. Application of, 313. Powei's of Corporations as to, considered, 362. {w). Council may pass By-law for inflicting fine not exceeding $50, 362. For neglect of duty, 363. For breach of By-laws, 363. May be collected by distress and sale of goods of oflFender, 363. Power to enforce by distress, must be expressly conferred, 363. (b) To Police By-laws, 328. On officers neglecting their duties under the Act respecting the Registration of Debentures, 883. See Liquor Licenses— Police Villages— Thistles. PENITENTIARY— Exemption from taxation, 612. PENSIONS. Under $200 exempt from taxation, 615. Of officers in army and navy exempt from taxation, 614. PERSONAL PROPERTY. By-laws to obt.ain may be passed by Municipal Council, 354, See Assessment. INDEX. 1103 PETTY CHAPMEN. By-laws to license, 408. To provide Clerk of nmiiicipiility with licenses for, 409. PHYSICIANS— Exempt from serving in Municipal Councils, 00. PICTURES. By-laws to prevent posting up of indecent placards, writings, or pictures, SOT- PIERS. By-laws for maintaining .380. Of late Pnjviuce of Canada property of Dominion Government, 605. (j) PITS — By-laws for making regulations as to, 518. PLACARDS. By-laws to prevent posting up of indecent placards, writings, or pictures, 397. PLACES OF WORSHIP— Exempt from taxation, Gil. PLANS. By-laws to compel furnishing of ground ot block plans of buildings to be erected, 440. PLEASURE GROUNDS. Assessment of, 634. See Pakks. POLICE. By-laws to establish and maintain, 454. Police offices to be established in Cities or Towns, 322. Of whom composed, 329. As many as Council deem necessary, 329. Not less in number than Board reports required, 3.^0. {'/) Officer of, can only execute powers conferred by statute, 329, When invested with powers of Peace Officer, can arrest certain persons on view, 329. (7) May arrest persons breaking the peace, 329. (7) Present when felony committed may arrest, 329. (7) Private persons may stay affrayers and hand over to, 329. (7) Right of to break open doors without warrant to arrest person breaking the peace, 3.30. (7) No part of the duty of, to assist person to put out intruder, 330, (q) May arrest without warrant on reasonable suspicion of felony committed, 330. (7) Remuneration and contingent expenses of, 332. "Vhenno Police Commissioners, Council to appoint, 333. i^rrests by for breaches of peace not committed in their presence, 333. Until Board of Police organized Mayor, etc., may suspend from office, 334. Incapacity of officer suspended to act, 335. Salary to cease, 335. See Police Commissioners— Police Magistrate — Police VILLA0E3. 1104 INDEX, \' I' POLICE COMMISST'^NEIIS. Board of. Judge of County Court, Mayor and Police Magiatrato to composo, in cities, 324. Power of to summon witnesses, 325. No j)owcr to compel attenbility of pound-keeper refusing to feed animal impounded, 951. Penalty for neglect of duty by fence -viewers, 951. Recovery and enforcement of penalties, 951. Imprisonment in default of payment, 951. Application of penalties, 951. What animals may be impounded, 947. When the common pouuci is not safe, 947. Statement of demand to be made to pound-keeper, 947. Form of agreement with pound-keeper, 947. If the animal is of a certain kind, 947. If the owner is known, 947. If uiiknown, notice to Clerk of municipality, 947. Duty of Clerk thereon, 947. If animals are worth $10 or over, 948. Notice of sale, 948. When sale may be made, 948. If animal is not impounded but retained, 948. Notice of sale unless redeemed, 949. POUND-KEEPERS. By-laws to appoint, 355. " ' to fix fees and securities of, 357. To keep whatever brought to him at peril of party bringing, 402. {g) No* bailififs or servants, 402. {y) Entitled to notice of action, 402. (g) ' . If cattle wrongfully taken, poundkeeper not liable, 402. (g) POWDER MAGAZINES— By-laws to acquire land for erection of, 431. PRECIPICES — By-laws for making regulations as to, 518. '^iii PRINTS. Misdemeanor to procure indecent print with intent to publish, 397. U) 1108 INDEX. r'' a 1^ ^ n PRIESTS — Exempt from serving in municipal Councils, 60. PRISONERS — Expense of conveyance of, to and from lock np. 347. PRIVIES. By-laws to regulate construction of, 447. ■I 1 T PUBLIC HEALTH-(^Con tion of Act, 893. PUjJLTC TARK—See Parks. ' ■ PUBLIC ROADS- See HianwAYS. PUBLIC SCHOOL HOUSES. Exempt from taxation, 611. By-laws to acquire land for, 384. PUBLIC VESSELS. Of late Province of Canada property of Dominion Government, 505. (i) PUBLIC WORKS— Declared to be Dominion property, 505. (i) UALIFICATION OF MEMBERS OF COUNCILS. Villages, 54. Towns, 54. Cities, 54, Townships, 55. QUALIFICATION OF ELECTORS— S-fe Electors. QUASHING BY-LAWS— -S-ee By-laws. QUO WARRANTO PROCEEDINGS. To try validity of election, 135. Form of, 135. (o) Evidence to be used in return of writ may be taken viva voce by leave of Judge, 136. Service to be personal unless excused by Judge, 138. Returning Officer or Deputy Returning Officer party to, 139. Judge to removf person not duly elected, admit persons, elected or confirm election, 139. If disqualified member retains seat to be resorted to, 122. See Controverted Elections. RACING— By-laws to provide rewards for persons distinguishing themselves at fires, 432. Powers of municipality to offer reward for arrest of criminal, 462. (k) Person may sue for reward, 463. {k) If duty of person to arrest, no claim to reward, 463. (k) RIOTS. Election inttjvrapted by, to be tfcoumed, 112. If election prevented for four days, ^toli book to be returned and ufcw election ordered, 112. RIVERS. By -laws to regulate cleanliness of, S78. " for the removal of -^loorstepa, etc., obstructing, 379. *' for improving, fctc. , 379. Distinction i>etween "river" and "creok," 498. (m) Ri^or 'mprcvoments of late Province of Canada property of Dominion Govemmentj 506. (") m^k INDEX. 1115 tin. IS. Iielves linaly and [ty of EOAD COMPANIES. Ciuncils may by By-laws take stock in, or lend money, or grant, aid to, 358. Chief officer of corporation may exercise rights of shareholder, 359 (o) Provisions of, R. S. 0., c. 152, as to municipalities hoP' ig stock in, 350. (o) By-laws aiding requires assent of electors, 359. " granting privileges to, 519. ROAD COMMISSIONERS. By-laws to appoint, 355. To fix fees and securities of. 357. ROAD ST^RVEYORS. By-laws to appoint, 355. To fix fees and securities of, 357. Roors. By-laws as to removal of snow from, 437, tiiS. ROUGE ET NOIR TABLES— By-laws S seize and destroy, 399. ROULETTE TABI ES— By-laws to seizo and destroy, 399. RUBBISH. By-laws to prevent the throwing of into streets, 390. Penalty in Police Villages, for throwing into street, 686. RULES OF COURT. For the trial of contested elections and tariff of fees, 982. SALARIES. Remuneration of Municipal Councillors, 202. (o) By-laws fixing salaries not contracts, 204. (c) See JvIayors— Officers of Corporation. SALE OF LAND FOR TAXES. Preliviinarks before Sale. County Treasurer to furnish Local Clerks with lists of lands three years in arrears for taxes, 709. Local Clerks to keep the liets in their offices for inspection, 710. To give copies to assessors, 710. To not''y occupants, etc., 710. Duty of Clerk of Municipality in regard to list, 710. (k) Form of, 711. Lists to be evidence, 711. Assessors certificate in such list, 711. Local Clerks to certify lands which have become occupied, 712. Duties of Clerks under this section, 712. (a) County Treasurer to certify taxes due on them, 712. Clerk to insert such amount on Collector's roll, 712. When there is not sufficient distress on such lands, 713, 713. («) Statement of arrears to be made by Local Treasurer, and when, 713. The return must contain a description of the lots of land, etc.. 714. (c) 1116 INDEX. it '1 • SALE OF LAND KOIJ TAXES— (Continued.) Liability of Iniid to anlu if nrrcnrfl nrc not paid, and whon, 714. Pcnnlty on Clurks iiitd nauussorH nu^lucting dutiua, 710. How penalty to bu luviod, 715. Amount of lines, oto., 715. (;/) After return of CoUeetor's roll to County Troasuror, local oflicerH not t<» receive taxes, 71''>, Treasurer of County to receive p.iyniont of arrears on land of non-residents, 71<>. (') Receipts whicl. lie may give, and what they should specify, 716. {i) The whole amount to bo paid at onoo, unless the land is sub- divided, 717. If domande«l, Treasurer to give written statement aa to arroare, • 718. Lands on which taxes unpaid to be ontorod in certain books by Tr<>a8urer, 718. Duties of Treasurer when land not assessed, 719. How land shall be valued, 71*.). Appeal from valuation, 7-0. Treasurer to correct clerical errors, 7?0. What deemed clerical errors, 7-0. {s) Production of pretended receipts, G'JO. (k) Receipts not conclusive evidence of payment, 721 (t) Ten per cent, added to arrears yearly, 7-1. How calculated, 721. (») Vrhen there is distress upon lands of non-residents Treasurer may authorize collector to levy, 722. It is not duty ot Treasurer to search for distress ou land, 72?. (a) Duty of Treasurer as to distress, 722; (<») From what period unpatented lands shall be liable to taxation,724. Rights of the Crown on such lands saved, 724. WTien laud to bo sold for taxes, 724, 725. (A) To submit to Wanlen list of lands in which arrears for taxes i r three years duo, 725. Arrears due for three years to be levied by warrant of Warden to Treasurer, 725. Warrant the foundation of the sale, 726. Council may extend time for p.ayment, 727 Treasurer's duty on receiving warrant to sell, 727. What lands only the Treasurer shall sell, 728. County Treasurer to prepare list of lands to be sold, and adver- tized in Oazette, 728. Proceeduigs when lands in junior County separated from Union, 729. Doubt as to proper officer, 729. (t) What advertisement shall contain, 730. Time of sale, 730. Notice to be posted up, 730. In case of omission, 730. {to) Expenses to he added to arrears, 731. Proceedings at Sale. Adjourning sole if no bidders, 731. Mode in wnioh lands shall be sold by the Treasurer, 731. Mode of sale discussed, 731. (c) INDEX. 1117 SALE OF LAND FOR TA.XF.fi~( Continued.) When land dooH not soil for full amount of taxes, 733. CiroiiinstancoH under which Hhcriflf nmy adjourn sale, 733. {g) Kiilo not invalid for defuctivc notice of sale, 733. T.oaHiiror to hoU interest of lunsoe, etc,, in Crown lands, 734. l^nd vested in Queen exempt from taxes, 734. (I) If purchaser fails to nay purchase money land to be put up again. 734. Certyieate of Sale — Trenaurers' Fmh. Treasurer selling to give purchase r a cortiflcate of land sold, 73i> Htatoment of certificate, 736. (n) Purchaser how far deemed owner when certificate granted, 735, 735. W Eflfect of tender of arrears, 736. Treasurer's commission, 73fi. Definition of commission, 7<^. (u) Fees, etc., on sale of land, 737. Kxpenses of search in register's office for description, etc. , 737. Description of lanay for improvcmontn, unlosB purchaser olocts tu rutniu land on paying valuu, 7r)0. If taxes paid before sale, section not to apply, 7C0. If land were redeemed, •* " 700. In cases of fraud, ** " 760. When the owner is not tenant in fee, value of land to be paid into Chancery, 760. When the defendant is not tenant in foe, the value of improve- ments to be paid into Chancery, 751. Any other person interested may pay in value oasessed if defen- dant does not, 751. The payer to have a lien for such proportion as exceeds hit interest, 751. How the owner can obtain the value of the land paid in, 751. How the value of improvcuicnts, etc., paid into court, can be obtained, 752. Provision as to costs in cases where the value of the lands and improvements, etc., only in question, 752. Tax purchaser, whoso title is invalid to have a lien on the land for purchase money, 75.1. Contracts between tax purchaser and original owner continued, 754. Sees. 157, 166, not to apply where owner has occupied since sale, 754. Certain other Acts remedial to purchaser continued, 754. Construction of words, "tax purchaser," "original owner," 764, 765. Sale of l.^nd for taxes in Algoma, Muskoka, Parry Sound Nipis- sing, and Taunder Bay. — .S'ee Alqoma. See Thkasuber. SALOON-KEEPER.S— DisqualiKed as memhers of Councils, 66. SAND — By-laws for preserving or selling, 518. SAPLINGS — By-laws to regulate the planting of, on highways, 366. SCHOOLS— (Sefi High Schools— Public Schools. SCHOOL SECTIONS-^Municipalities may give aid to, 284. SCHOOL TEACHERS— Exempt from serving in Municipal Councils, 60. SCHOOL TRUSTEES. Municipal Corporations may make loans to, 283. Township Councils may grant to School Trustees authority to borrow money, 384. (i) Cities, towns, etc., must supply money required by, 384 (») SCHOLARSHIPS. By-laws for endowing at Toronto University and Upper Canada College, 412. SCIENTIFIC INSTITUTIONS— Property of , exempt from taxation, 613. INDEX. 1119 II II II SCUTTLES IN ROOF— By-lft,vs to compel owners to have, 434. SEED— See Thihtlks. SENATE— Mombors of, exempt from serving in Municipal Council, 60. SEPARATION OF NEW MUNICIPALITIES-IS. SERVANTS— By-laws to prevent sale of liciuor to, 306. SEWERS. By-laws for onening, etc. , 360. for filling up or donning, 448. to resulate cleanlinoHS of, 378. for the removal of (lO(>r8te[)8, etc., obstructing, 379. for construction of, 447. Municipality not liable to civil action for neglect to provide. 444. () and owner for damage done by, 437. (m) (C for removal of, 438. ^i — «- SNOW ROADS. By-laws for making double tracks in snow roads, 533. Act respecting double tracks in, 903. See Highways. SPECIAL CONSTABLES. May be sworn in by Deputy Returning Officer, 177. INDEX. 1121 SPECIAL IMPROVEMENTS— 5^ee Local Improvements. SPIRITUOUS LIQUORS. Powers of Councils in Algoma, Muskol^a, Parry Sound, Nipissing, and Thunder Bay to regulate tavern licenses, 875. Constitutionality of Municipal Councils to restrain sale of dis* "ussed, 368. {k) Sale of has been held a nuisance in United States, 368. (k) Whether municipalities can prohibit sale of, 369. (k) By-laws regulating sale of, legal, 369. {k) Must not bo inconsistent with Dominion laws regulating customs and excise, 369. {k) By-laws prohibiting the sale of or gift, to servants, apprentices, and children, 396. By-laws prohibiting the sale of to idiots, 397. (t) See Liquor Licenses. SQUARES. By-laws to regulate the planting of trees and saplings on, 366. ** to prevent obstructing and fouling of, 440. Exempt from taxation, 612. SQUIBS — By-laws to prevent setting off of, 428. STABLES. By-laws to prevent or regulate use of fires and lights in, 433. Police Trustees to enforce regulations as to lights in,* 583. STATUTES— Rules followed in interpretation of, 6, (c), 7. (c) STATUTE LABOUR. By-laws to fix number of days of Statute labour, 466. Who liable to do Statute labour, 467. (/) AVho not liable to do Statute labour, 465. («) Officers and soldiers of army exempt from, 465, (i) 688. Volunteers exempt from, 465, (i) 687. Persons between 21 and 60, in Cities, Towns and Villages, liable to, 688. By-laws to enforce payment of Statute labour, 467. Power of collectors in case of non-payment of, 468. (m) , For regulating the performance of, 468. Where to be performed, 688. Liabilities of persons in Townships not otherwise assessed, 688. Rates of service in case of person assessed, 689. Council may reduce or increase number of days proportionately, 689. Lots sub-divided as park lots, etc. , 689. Proprietors non-resi By-laws to enforce, 367. Constitutionality of Municipal Councils to enforce discussed, 368. (it) Has been held in the United States that Councils could declare the sale of spirituous liquor a nuisance, 368. (k) By-laws regulating sale perfectly legal, 369. (k) Looked upon as police regulation, 369. (k) Such By-law must not be inconsistent with Dominion laws regulating custom or excise, 369. {k) See Liquor Licenses. TENANTS— /See Leaseholders. TENDER. Definition of, 249. (,7) How made, 249. (.7) • To whom made, 250. (g) Ought to be specially pleaded, 250. (h) Object of tender, 250. (h) THEATRES. By-laws regulating egress from, 361. Act to regulate the means of egress from public buildings, 936. THISTLES. . Act to prevent the spreading of Canada thistles, 911. Occupants of lands to cut down thistles growing on their lands, 91 L Overseers of highways to have authority Trom Council, 911. Duty of, 911. To notify owners, 912. And enter on land in default, 912. Proviso as to land sowed with grain, 912. As to non-resident lands, 912. Clerks of municipalities to warn Station Masters to cut down thistles on railways, 912. Overseers to enter in default, 912. Account of expenses to be kept by overseers, 912. To be delivered to owners of non-resident lands, 912. If owner refuses to pay, 913. Council to reimburse owner, 913. Expense in case of non-resident lands, 913. Appeal allowed, 913. How expenses recovered by municipality, 913. Penalty on sale of any seed, mixed with thistle seed, 913. Penalty on overseer neglecting his duty, 913. Recovery of penalties, t>13. All Councils may authorize carrjring out of this Act, 914. INDEX, 1125 THUNDER BAY, DISTRICT OF— Act relating to, 869. See Alooma. TIME, COMPUTATION OF— 124, (q) 125, (a) 131. (h) TIMBER. By-laws to prevent obstruction of streams, etc., by, 469. Right of Council to sell timber growing on road allowance, once donated, 518. By-laws for preserving or selling, 518. TIRES. By-laws to regulate width of, 4C2. Width of wheels to traction engines, 905. TITLE TO LAND— 5'ee Land— Sale op Land fof. Taxes. TOLLS— S Highways. TOMBS— By-laws to prevent the violation of, 393. TORONTO, CITY OF— Appointment of Auditors by, 196. TOWNS. Definition of, 575. {b) Census of, taken at any time, 20. Erection of into City, 20. When population over 15,000, 20. Notice to be given, 20. Erection of Village into, when population over 2,000, 20. How and when notice shall be published, 21. (o) What notice shall state, 21. Census returns to be certified and publication of the notice proved, 21. Certificate must be under signature of head of Corporation, 21. Village made Town by proclamation of Lieutenant-Governor, 121. Existing debts to be adjusted, 21. Town made City by proclamation, 22. Name only changed by Legislature, 22. (s) limits of new City or Town, 22. Power to acquire lands beyond limits, 22, (k) 568. Division of new City or Town into Wards by Lieutenant-Gover- nor, 22. New division of Wards in Cities and Towns, by two-third vote of Council, 23. Must be two-thirds of whole number of Councillors, 23. (a) No By-law necessary, 23. (c) Extension of Towns, 23. Where land attached to town belonged to another County, 24. Town may be withdrawn from jurisdiction of County by By-la«r 24 Amount to be paid by town to county for expenses of Adminis< tration of Justice, settled by agreement or arbitration, 24. Of what items amount made up, 24. (h) Matters to be considered in settling same, 24. Copy of agreement or award to be sent to Lieutenant- Governor, 25. 1126 INDEX. TOWNS— (Contimted. J Lieutenant-Governor's proclamation withdrawing Town from jurisdiction of County, 25. Effect of such proclamation, 25. New agreement or award after five years, 25. Property of County after withdrawal, to remain property of County, except roads and bridges in Towns, 26. Town after five years from withc&awal, may pass by-laws for reunion with County, 26. By-law to be inefiEectual until ratified by the Council of the County, 26. Before ratification, amount of debts of Town and County respectively determined, 27. When elector shall vote in, 96. TOWN HALL— Exempt from taxation, 611. TOWNSHIPS. New Townships beyond limits of incorporated Couuty may be attached by proclamation, 27. Every Township muut belong to some County, 28. («i) Junior Townships of between 50 and 100 freeholders, when and how separated from union, 28. Attached to adjoining municipality, 29. A separate Returning Officer, a necessary consequence of separ- ation, 29. (rf) Disposition of property upon dissolution of Township unions, 26. Real property, 29. / Other assets of Corporation, 30. Debts, arrangements as to, 30. In case of disagreement to be settled by arbitration, 30. Power of Corporation when Act silent as to division, 31. {g) Amount to be paid, shall bear interest, 31. Six per cent. , unless agreement to contrary, 31. {k) New townships within limits of incorporated Counties to be united to adjacent Townships, and how, 31. This proviso in lieu of Act of Parliament, 31. {I) Seniority of such Townships in Union of Township, how regu- lated, 32. Townships in dififerent Counties, 32. By-laws of County to aid Township roads, 533. " to aid in purchasing wet lands, 364. First election in junior Townships after separation, 73. Existing Ward divisions in United Townships to cease on disso- lution of Unions, 73. . Election of Reeves, Deputy Reeves, and Councillors, to be by general vote, 74. Upon petition, Council by By-law may divide Townships into Wards, 74. Election of Deputy Reeve in such case, 75. Where electors shall vote in, 97. TOWNSHIP HALL— Exempt from taxation, 611. TOWNSHIP ROADS— fi-ec HioHWAYa. INDEX. 1127 TRACTION ENGINES. Act to authorize and resulate the use of on highways, 905. Traction engines on highways, 905.' Weight, 906. Speed, 905. Width of wheels, 906. Horsemen or vehicles meeting or passing engine to stop, 906. Lights to be carried after dark, 906. In Citwa and Towns, Running through a City, Town, etc., 906. May be excluded from certain streets, 906. But not altogether from passing through municipality, 906. Bridges to be strengthened. Parties ininning engines to strengthen bridges, etc., 906. Owners of different engines to contrbute, 906. Special provision as to toll roads, 907. Owners of toll roads to strengthen bridges, etc., 907 If they do not, owners of engines may do the work to be reimbursed out of tolls, 907. Work to be done to satisfaction of Engineer, 907. Tolls. Collection of, 907. Provision for ai'bitration, 907. PencUtie t. Pen Uties for contravening Act, 908. To ije enforced by distress, 908. Or' imprisonment, 908. Application of fines, 908. Recovery of damages, 908. TRADES. By-laws for preventing or regulating the continuation ' certam trades considered nuisance,3,,427. By-laws to prevent or regulate carrying on of dangerous trades, 433. TRAMWAYS. By-laws to authorize companies to construct along highways, 574. TRANSIENT TRADERS— By-laws to license and regulate, 450. TRAVELLERS — By-laws to prevent the importuning of, 429. TREASURER. • Disqualified as member of Council, 56. Appointment of by Council, 185. By Provisional Council, 35. Should not be bank agent, 123. (k) Office of, and member of Council incompatible, 185. {p) No power to bind Corporations by acceptance of order for school teachers' salaries, 185. (o) Personal representatives of, liable to be sued in respect of his default, 185. {p) 1128 INDEX. 1(A ,ppointment 'u>- 1,180.(2) TREASURER— ('^on'»«"f'^- ) To give eecurity, 185. • Annual enquiry as to sufficiency of, 186. No objection to hond th.it executed befor^ office, 186. (q) Different dofenctb t(> action on bond discusF Liability of security, discussed, 189. (a) To give bonds before entering on office, 762. Bonds to be given by, witli two or more 8i..!icient securities; 76i>. . To whom bond sht uld be given, discussed, 762. {h) Entitle* to reimbursement for moneys legitimately expended, 188. (a) Not liable for any money paid by him under By-laws, 188. Half yearly statement of assets by, 188. Moneys of municipality should be kept distinct from private funds of, 188. (o) Annual list of persons in default for taxes to be made out by, 189. Upon dismissal of, successor may draw money, 189. Not to affect right of municipality against securities of dismissed Treasurer, 189. (d) County Council to audit moneys paid by Treasurer, 195. Not eligible as auditor, 193. Treasurer of municipalities indebted to municipal loan fund to make annual returns to Pro"incial Treasurer, 285. Duty to see that money collected under By-la^ applied to pay- ment of interest and princijjal of debentures, 299. Duty of, to keep a debenture registry book, .303. May be authorized by By-law to borrow sums to pay current expenses, 304. Sheriff to deliver copy of writ and statement of claim to, in exe- cutions against municipalities, 317. Sheriff to pay surplus after deducting amount of execution to, 319. To make up voters' and defaulters' list, 88. To furnish copies of lists of free grants to Clerks of municipali- ties, 709. Penalty on for failing to perform duty, and how enforced, 763. Mere omission to perform duty, not necessarily neglect, 763. (c) Punishment of, for making fraudulent assessments, 766. Acts of misconduct specified, 766. (h) At Common Law, ofccflrs acting contrary to duty of oflSce, forfeit same, (766. (h) What punishment may be inflicted, 767- {k) What shall be deemed evidence of fraudulent assessment, 767. Difficulty in determining value of property, 767. (0 Bound to account for all moneys collected by him, 775. (r) Local Treasurer to pay over County moneys to County Treasurer, 776. Mode of enforcing such payment, 776. Warrant to Sheriff, 776. How the Sheriff to levy, 776. To account for and pay over Crown moneys, 777. Municipality responsible for such moneys, 777. Bonds to apply, 777. INDEX. 1129 surer, II II II II TBKiiSUR'ER— (Continued.) Bonds to apply to school moneys, etc., 777. Liability of municipality for default of Treasu' ?-*, - ;8. See Non-Rksidknt Lanu Fund — OrricEBS ^v Coafobatiun —Sale of Land tor Taxes. TREES. By-laws to regulate the planting of, 366. for regulating burning of, 391. to prevent the injuring of, 394. to prevent obstruction of streams, etc., by, 469. for preserving or selling, 518. for ordering to be cut down on each side of road, 356. TRUSTEES. Assessment of, for trust property, 643. See Police Vill' -es. UNION OF TOWNSHIPS- ee ynships. UNION OF COUNTIES- e Cu lES. UNIVERSITY BUILDT ' S- Tlxempt from taxation, 611. UNIVERSITY OF TOKON' >. By-laws to supr % pupils of High Schools at, 411. for enc dcholarships, etc., in, 411. UPPER CANADA COLLEGE. By-laws to support pupils of High School at, 411. " for endowing scholarships, in, 412. VACANT LAND. Assessment of, 633. By-laws to enclose, 428. "for filling up, cleaning, etc., 448. For assessing owners of, costs of, 448. VACCINATION. Act respecting, 928. Trustees, etc., of hospitals to keep vaccine matter for certain pnr- poses, 929. For the vaccination of the poor, 929. Fee, 929. How applied, 929. For furnishing legally qualified medical practitioners with, 929. For the use of the Indians, 929. No money granted to any hospital unless sufficient quantity of vaccine matter on hand, 929. Annual statement to be laid before Legislature respecting vacci- nation, 930. Certain Cities may employ medical practitioners to vaccinate citizens, etc., 930. Remuneration to depend on success, 930. City to appoint convenient place in each ward for the pur- pose, 931. 142 1130 INDEX. 1 VACCINATION— ('CorKiHued. ; Parents, etc. , bound to take children to be vaccinated, and ex- hibit them to medical practitioner on eighth day, 031. Certificate of auccesaful vaccination to l)e giv«:u, 031. What to he evidence of, 032. If child found unfit for vaccination, 032. Certificate, 0.32. How long to be in force, 032. Re>presentation of child repeated till ciuccessful Tacciuation, 032. Certificate, 032. Effect of, 032. If child insusceptible of vaccine disease, 033. Fees, 033. Penalty for non-compliance with requirements of Act, 033. Recovery, 033. How far and when plea of conviction shall avail, 034. Penalty against persons inoculating with variolous matton, 035. Forms under Act, 035. VAGRANTS. Who deemeti, 340, {p) All idle persons, 340. ( p) Persons refusing to work, 340. {p) Persons indecently exposing their persons, 340. {p) Be^fgars, 340. (■?) , Loiterers in streets, etc. , 340. {p) - * Common prostitutes, etc., 340. ( p) Keepers of bawdy houses, 340. (;>) Persons supporting themselves by gaming, crime, or prostitntion, 340. (p) By-law to restrain and punish^ 300. iijicient Statutes with respect to, 300. {q) ^ VALUATORS. Appointment of, 107. By-laws to appoint. 3''^5. See AssKssMENT. VEGETABLES. By-laws to regulate vending of, in street, 418. " for regulating place and manner of selling and weighing, 410. " to prevent forestalling, regrating, or monopoly of, 42fy. VEHICLES. By-laws to prevent the encumbering of wharves, etc., by, 378. " to prevent obstmction of streets by, 430. " for regulating, used in market vending, 421. Fo.' imposing duties thereon, 421. Not on railway cars, etc., bringing goods to market, etc., 422. (9) See Cabs— Highways— LiVKRY Stables— Tsams. VENDING IN STREET— By-laws to reguUte, 408, 418. INDEX. 1131 [ex- tion, ittora, tntionf ighing, 378. etc., VESSELS. By-IawB to prevont the oncumbering of harbours, etc., by, 378. ' ' for. regulating in hArbours, 380. " for regulating veasela uaeil in market vending, 421. Licenninfj to sell liquor, 790. Sale of liquor in port prohibited, 814. VICE— By-laws to prevent, 397. VICTUALLING HOUSES. By-laws to limit number of and regulate, 383. " to license and tix fee for^same, 383. VILLAGES. When population 750, may be incorporated, 14. Area of limited, 15. Regulations as to enlargement of area. 16. Area of existing, exce< ling limit not to he enlarged, 15. Population and area of, how reckoned, 15. DiapoHition of property and payment of debts when separated from Township, 16. When Village lies within two or more (lilounties, Village to be annoxod to one of them by County Council or Governor; 16. In case of failuve of Council to act, freeholders may petition Lieutenant-Governor, 16. Liability of territory detached from one County and annexed to other, 17. Arbitration, if no agreement in three months, 17. Addition to Villages by Lieutenant-Governor, 18. Area of may be reduced by County Council, 19. New limit to be defined, 19. Population not to be redmed below 750, 19. Municipal rights not to be abridged, 19. Census of. may be taken, 29. Erection of into Town when 2000 inhabitants, 20. Notice be given, 20. Census returns to be certified and publication of notice proved, 21. Villiige made Town by proclamation, 21. Liability of, detached from one County and annexed to another. Election of Reeves, etc., to be by general vote, 74. Where electois shall vote in, 97. See Incorporated Villages— Police Villaoks. VOLUNTEERS— When exempt from statute labour, 687. VOTERS' LISTS AND DEFAULTERS' LIST. To be made up by Treasurer, 88. To be made for each polling sub-division, 88. Certified copies to be furnished by applicants, 88. Proper list to be used at elections, 92. For first election in new municipality, 93. To be used where additional territory added to City, Town, etc., 93. To be furnished by Clerk of Municipality to Deputy Returning Officer, 95. Object of furnishing list to Deputy Returning Officer, 94. (tv) 1132 INDEX. .. VOTERS' LISTS AND DEFAULTERS' UST-( Continued.) List fumishod should be alphabetical, 04. (w) Election avoided when proceeded with without list, 04 (w) Persons in arrears for taxes excludeil from voters' list, 04. Copies of, may be obtained from Clerk of Peace, 06. Defaulters list to be evidence to Deputy Returning Officers at to payment of taxes, 06. Persons in default fo. non-pajrment of taxes not to vote, 68. Electors must be named in voters' list to be entitled to vote, 69. When new territory added to City, etc., or now City, etc., erected with added territory, and no voters' list including such new territory, 70. To be stated in voters list when ballot papers given, 101. WAR, MUNITIONS OF— Property of Dominion Government, 606. (0 WARDEN. Resignation of provided for, 123. Validity of election or appointment of, how tried, 128. Election of, 168. Must be by majority of Council present, 168. Clerk to preside at, 160. Reeve of largest municipality to have casting vote in event of equolity of votes, 170. May administer certain oatli.