IMAGE EVALUATION TEST TARGET (MT-3) V // // V '^0 4 w. 1.0 I.I 1.25 I- |2j8 IIM 1.8 1.4 IIIIII.6 V] ^a i^ ^ *^ , o *;. / /A Photographic Sciences Corporation S ,v 4? iV \\ ^u'i d^colordes, tachet6es ou piqudes I I Coloured maps/ Cartes geographicjues en couleur □ Pag« -i^tached/ Pa' . ' itachdes D Coloured inl< (i.e. other than blue or black)/ Encre de couleur (i.e. autre que bleue ou noire) / ShoiA/through/ Transparence □ Coloured plates and/or illustrations/ Planches et/ou illustrations en couleur D Quality of print varies/ Qualit^ in6gale de ('impression □ Bound with other material/ Relid avec d'autres documents D Includes supplementary material/ Comprend du materiel supplementaire D D Tight binding may cause shadows or distortion along interior margin/ La reliure serree peut causer de I'ombre ou de la distortion le long de la marge intdrieure Blank leaves added during restoration may appear within the text. 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TORONTO; COIT, CLARK & CO., PRINTERS, COLBORNE STREET. 1874. To 172-1 c. 7- E,,i.,„larc,m»„8lo irt „r Ih. P.,U,„„nt of C.n,„la, In ,!,,> ,„,„„, ,|,„„..„j ...iW ,..»,1„,1 ai„l .,,v„tj..r„„r, l,y Itootn A. UA«,,n„,, 1„ n, om™ of to 10 niS EXCELLENCY THE HONOUEAIiLE JOHN CEAWORD, Q.C. LIEUTENANT-GOVERNOR or THE PROVINCE OF ONTARIO. THIS NEW EDITION or THE MUNICIPAL MANUA IS INSCRIBED, WITH GREAT RESPECT BY HIS FORMER PUPIL, 'A >, THE EDITOR. c niEKACE TO THE THIRD EDITION. — ♦- The passing of the Consoliihted Municipsil Institutions Act hy the Loj^islatiire of the I'rovince of (^niaiio lust year, rendered it neoessury for the Kditor to issue a New Kdilion of the Municipal Manual. lie devoted his vacation of last year to the p. eparation of the Edition which is riosv submitted to the Profession and the I'ublic. He has done his best to make the notes of decided cases full and complete. A coni]>;iris<)n of this with tlie former iMlilions of the Manual will show that most of the notes have been re-written. The best use possible has been made of all decided cases bearing on the construction of the sections annotatei]. Two hundred decided cases were noted in the First Kdition, publislR'le experience in Municipal law. This, added to the knowledge accjuired in Municipal cases in which ho has been engaged in the Courts, qualities him to sonic extent to form an opinion as to the value of our Consolidated Municipal and Assessment Acts in comparison with similar Acts in force in other countries. And he hesitates not to say that the Municip.il and Assessment Acts of this Province are at present the mjst complete and most perfect codes of the kind of which he has any knowledge. VI PREFACE. If the LpRislaturo of Ontnrio could bo induced for a few Sessions to refrain from njaMf^liii}^ tlio Acts, so tliat tlioir provisions would become inoro generally and better u'ldorstood, it would bo to tho public advantage. Last 3'car the Kditor indulged tho hopo that tho book would have been in tho hiinds of subscribers before tho end of tho year. This hope, owing to causes unnecessary to bo detailed, but for which personally ho is free from blame, lias not been realized. In the meantime, the liOgislature of Ontario at its last Session passed important Acts amending both the Assessment and Municipal Acts. Tho consequence has boon that the Editor was obliged to reprint several sheets of tha Manual. Tho amend- ments made last Session have been noticed, as far as possible, either in the text of the work or the notes. Tho amending Acts will be found at the end of the Municijial and Assessment Acts respectively. The publication of the amending Acts will alford a check upon the corrections of tho Editor. Other Acts of a similar character aro at tho end of tho volume. The Editor, in the preparation of this Edition, has ha:l the assistance of F. J. Joseph, Es(| , and II. C. W. Wethey, Esq., Harristers-at-law. The former relieved the Editor from the labour of verifying the references, correcting the proofs, and passing the work through tho press. Tho latter prepared tho very full Index of Cases and fntlex of Subjects whi(;h accom- panies tho work. Hail it not been for the valuable aid received from these two gentlemen, tiio issue of the New Edition of the Manual would have been much longer delayed than it has been. & TOROSTO, EXOI.EFIELD, 5th September, 1874. PREFACE TO THE SECOND EDITION. ;se Nino ycnrs have olnpscd since the puhliontion of the First Edition of thifl work. Duriiij^ tliat jjoriod the First K(htion, which was a verj' larj^o one, has been exhanstiMl, and (Uirini:; tlio same pt-riod many alterations have been made in tiie Municipal and Assessment laws of Up|H'r Canada, and many cases decided on the construction of the Acts. ]k'sides, the Municipal and Assessment Acts, ns from time to time altered, were, during last Session of Parliament, amended and consolidated. Some of the alterations and amendments arc undoubtedly for pood. The olTico of Councilman for Cities has l)oen abolished, and the nimiber of Aldermen for each Ward increased from two to three, and these, instead of being yearly elected as heretofore , will retire from odice annually l)y rotation. There are two Councillors allowed for each Ward of an in(M)rporated Village having five Wards, one of whom also retires annually in rotation. Mayors of Cities are no longer chosen by the electors, but by members of the Council from among themselves. On the other hand, Hecve3 and Deputy Reeves are no longer chosen bj- Councillors from among them- selves, but elected by the people. There may be several Deputy Reeves, in proportion to the number of voters, there being an additional Deputy Reevo allowed for every five hundred additional voters beyond the number required for Reeve and Deputy Reeve. The property qualification of can- didates and voters in Cities, Towns and Villages, has been greatly increased. Candidates or voters who have not paid their taxes are disqualified. Pro- vision is made for nomination to offices in Cities, Towns, Incorporated Villages, Police Villages and Townships. Only one day is allowed for polling votes, and in Towns and Cities voters may vote in each Ward in which they arc rated for the necessary property qualification. Annual value, in Cities, Towns and Incorporated Villages, has been abolished, and actual value, as in Townships, made the rule of assessment. No Council is allowed, exclusive of School rates, to assess in any one j'car more than an aggregate of two cents in the dollar on actual value. If, however, in any Munici|iality, the aggregate amount of the rates necessary for the payment of current annual expenses, and the principal and interest of the debts contracted on or before the 15th August, 1800, on that day exceed the aggregate rate of two cents in the dollar on actual value, the Council may levy such further rates ai * VIU rilEFACK. may bo necessary to (lischarso nbligntions already incurred, l)i»' shall con- tract no ftutliiT debts inilil the annual rates reijuircd to bo levleil within tho Mui'.ici|nility aro recbiced within tho ng,;ri*gatc rate of iwo cents. C/Oiiuty 'iVeasiurrs, and not Sheiitrs, are now made the proiier oflicors to sell lands for arrears of taxus. Tho onus of keepiti^ ( 'Dimly roa Is in repair may, under certain circumstances, bo thrown upon adjacent Local Municipalities. IJosides, Township Municipalities may purchase wild lands from (iovern- ment, drain, and afterwards sell thcin. Other chaivj^es, of less consequence, unnecessary to be here mentioned, will lie found noticed in the proper places througlKtul the volume. The value of this Edition of tho Jfanual, as compared with the former one, will be fmuid j^ii-ntly increased, owing to the ninnlier of decided cases to which the Hditor, while annotating the Miuiicipal and Assessment Acts, has found it iH'ces>!iry to I'efer. Whilst in llu) former Kdilion refer- ence is made tf) not more than two hi'odred, in this Fidilion reference is made to more than six hundred deciiinn of tho latter will not romlcr the work the less useful to the penenil Innly of those who will rei|uire to nii)i'i vision of the wnrk wjiile passinjj; through the press, was entrusted to llenry O'lhien, Ksq,, lliirristor- at-l;iw, 11 ^;^■lll!l inaii who is already favoural)ly i\iic)wn to Mie Profession as one of the Kditors of "The I'pper Ctinila Law .Innnial" and "Tln' Local Courts (iazitle," and Ivlitor of an ahly aniinialeil Hdilion of the Division (Courts Act. 'I'hf index, whii-h is very full, will, it is hoped, he ft. i i 1 all that is necessary In the ready use of the work. Much laii^ur ha.-. Oetn l)estowed iipi)n it, and, t;o far as tho Kdilor can jud^^e, ii has been carefully compiled. Iinperlectiiins in the work, either on tho part of the Kdilor or of his ,v "dis- tant, are not to li' I'll holed to willul neglect ; hut as no such \. ork can bo made perl.i-', the Kditor must ask forhearain-e. Miicli lal).tiw liu-, heen expended on il. Mid it is hoped that it will not only lij^hten the labour of menibers ul the \.fj;:\\ I'rolt's.^^idii, IjuI have IIk- (.ll'rcL of expuuiidin;:, and inakin,:^ known ihe Miuiiciiial and Asse.-istncni law to the many, not 'nen»bers of the Profession, whose iiu.y it is to jjivc etlect to tho law, and work under it. The First Kdition of the work received a generous support, as w-dl from tho Lei^ul l'r(ifes>inn .'is tiic great Ijody of the Municipal (.'ouncillors and oflacers ol' Cppcr Canada. It is hopeil that tiiis Kdilion, to which tlie Iviitor has deviilitl iiiiich l!iiin;.;ht, will be equally well received. The delays which have occui !( il in its issue were unuvoidal)le, and to some extfut rendered necessaiy by ii'ason of l!ie Kililor's great anxit-l}' to make his work simple in its language- and rrliaMe in its exp(»iLiun of the law. I'lie work is intended not merely fir lawyers, liui. for men unac(piaioleil with the niceties of law. Most of liie nuios are therefore written in a popular style, and as free as possible Irom leg il jihraseology. IvNGLEHEi.n. TOKONTO, '2,6lu March, 18(i7. Imer ( t h f( Pi or TREFACE TO THE FIRST EDITION. In the Prospectus issued for this work it was said that the Municipal Laws of Upper Canada are in importance second to none of the laws of the Province, and that ever}' Municipal Corporation is a small Parliament, 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 exer- cised is the object of all who are in any manner concerned in the adminis- tration of Municipal atfairs. When it is considered, that in the first instance these matters arc to be determined by Municipal Councils, seidom containing Members versed 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 brietiy 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 effete or thereby rendered useless, the Editor, with tlio assistance of legal friends of greater experience than himself, in tlie first place applied himself to the work of expounding the Con.solidated Act by the light of adjudged cases. This he did patiently and assiduously, noting latent difficulties and explaining as far as possible all dilliculties of every kind that occurred to him. The result is a body of notes more elaborate than he contemplated when he began his lal)ours. 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 like kind, promiscuously scattered through the twenty-tv) vo'umes containing the Provincial Statutes. Beginning at the first Act, he selected in chronological order such Acts as from their nature a pcrbon would expect to find in a Xll PREFACE. Municipal ^^a^ual, until lie reached the last Act of the kiivl now in force. The result is a larj^e collection of Acts anJ j)arts of Acts aiMed to the end of the Coivsolidited Municipal Act. One <;;reat dillicully which the Editor cxpcrienrc single volume of moderate dinien.sion.'i. To accomplish this. Acts h.ave been abbreviated by the omission of mere formal matter. Acts of a private natui'e and so of little [)ublic utility have been in some places abridj,cd by the statement of substance oidy, and in others nothing h;'s been given except the title or heading, when expressive of the objec',. Olher Acts, sucli as those r6gulating the inspectiDU of ]>eef, Pork, As'.ies and the incor- poration of Road and oilier Companies, have, because of their gr^'at length and, comparatively S|)eaking, little general utility, bjen entirely excluded. So have the (-'onunon School and (irammar School Acts. Tlie reason of the exclusion of the latter is thai tlu-y are contr.med in "The Kducation Manual," a small work within the reach of all, and it is presumed 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 's openeil up to public view, while for convenience of reference 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 ai)plying specially to these Cilies, though published iu dilferent parts o'. the volume. To make the chronological arrangement still uure etlective, the Editor has, as a rule, in the margin of each statute wherever it is altered or alfected by a subsequent statute, maile a reference to the subse(juert statute, 'ihe olyect 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 information of all concerned, the Rules of Court governing contested Municipal Elec- tions have been added iu llie Anpuuilix and noted in the (feneral hulex like other parts of the work. In the Appendix will also be 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 Mlnicitai. Mamai,, the Editor had neither the time nor the materials to enable him to give a complete set of Municipal Forms, lie, however, did what he could towards supplying the void by preparing a form of a By-law of more general use than that of any other form of By law. His reasons for so iloing were two-fold. First, to furnish a model whereby other By-laws may be drawn ; and secondly, to furnish a form lor that rnEFACK. Xlll itiou Klec- like liu of say lition [rials iver, of a His Ireby Ithat By-law, which of all other? must essentially be correct both in form and in substance. Great responsibility rests upon those who unilortakc to prepare By-laws, on the locality or illfj^ality of which lar;j:e monieil transactions are made to depend. Sonic form most be observed; and yet a close adherence to technical nicety may in certain cases work positive injustice. Were it possible to secure for money By-laws the stam{> of legalit}', 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 advan- tage to the seller and to the buyer of Municipal Debentures. Less room would be left for speculation or trade in the fears of men or contin;j;encies of law, and more stability be imparted to the negotiation of Canadian Municipal Securities ; one consequence of which — and not the least — would be, that the market value of all such securities would be proportionably increased. The only mode likuly to attain so desirable an en03 " V. Minis, 540, 009, 010, 01 1 Anon., 59 Antliony v. Brecon Markets Co., 352, 353 Antliony v. Inhaliitants, 234 Apjieal of Sisters of Charity of Ot- tawa, Re, 524 Applegarth et al v. Graham, 48, 545 Api)legate v. Karnst, 518 Argenti v. San Francisco, 102,473 Arkwright v. Cantrell, 85 Armsworth v. South Eastern Rjiilway Co., 409, 410 Arnold v. IMaker ct al, 399 " V. Hoihrook, .399 " V. Poole, 159 Arnott V. Bradley, 249, 2()7 Arnoult v. New Orleans, 25 Arrau v. Amabel, 24 Arthur v. liokcnluun, .504 Arundel v. McCullock, 417 Ash v. People. 109, 320, .3.34, .342, .345 .Xshhrook V. Connnonwealth, 335 Ashtou V. Ellsworth, 10 Ashworth, In re, 5.50 V. Hey worth, .346 Asken v. Lon(hin, 238 Askin V. liondon District Council, 050 Asphodel and S.argant et al, Re, 85, 87 Aaprell v. Justices of Laneaster, 574 XVI TABLE OF CASKS. Atkins V. Killiy, 274 Atkinson V. .Ncwciis'tlc and (latusliuiul W.itur Wnika Co., linS .Vtkinson v. Sellers, ,S8ti Atlantii V. White. :i4'2 Attona-v-dLiKral v. I'xiwnian, 248 V. I!iantl'(u'24 V. ('ani|il.cll, :h77 V. J)akin, .VJ'J It i( T. I>(inal(lsiin, 'Al'i V. Karl i'nwis, H V. (MKlei-iLli, 289, .')24 V. KciT, 7 V. I.eit'istor, 7 V. Lii'lilioM, 2:KS " V. J^oekwodd, aO.S *' V. Mayor of Ia'ciIs, 4)S:{ " Kx ii'l Xcjican v. I5\ town iV: .Ncpwui Ivoad < 'o., 4.'>4 " V. iSe{nan Jload Co., .SiH) " V. Kewcastli!, 7 V. I'lauk Koad Co., .^)i;» V. I^idloil, 247 V. Siddani, 248 V. Silleni, ASO V. Suii.v, r)r)4. r),"> " V. Sullivan, 248 " V. 'I'oi'onto, r)24 " V. Utica Jus. Co., J.Sl V. Wiiian no, 207 " V. Woodiiouso, ,'i.SS Augusta & r^cc'ds v. (iivuvill, Jlc, 42!) AuU V. Lexington, '.I'M Aurora v. West. 2:>(;, 481 Austin V. Murray. .'{2! " V. St. -Mary's. I.and)etli. 871 " v. Siineoo,V.22, (i;}!*, l)4G, 059 Averott v. .Murrell, Mi'J Bab V. Clark, 297 Babhitt v. Savov, li')9 Hahi'ock V. IJedfnrd, ]8:{ Baclieldcr v. llcai^an. 320 Bacon v. Asliton, 182 •' v. iSoston. :{;")."), 'MW, 402 BaguoUy v. Bortliwitli, 229 Bailey v. Kairlield, 409 " V. I'liiladeiphia, Wilmington and Baltimore ivy. Co. ,420 Baird v. Hank uf \\ asliington, 128 15: 521 iker V. Clark, 412 " ami Paris. In re, ISf, .'JSC " V. I'ortiand, ICS, 407 " et al v. Saltlleet, 427 " V. Savage, 402 " V. I'tiea. loS, 47;{ " V. Windliam, l.VI ill V. Arnistroni,'. .S(i."> iltiniore V. Bouldiii, ,<04, 477 v. C.'uu'tei'y Co., ')'20, V. Kseld.aeli, 472 " V. Cill, 194 V. Itailr.iad Co., .^>19 " V. The State. 2'.tS V. White, ,S10 imford V. 'I'urnley, 'A')'2, 3").S mhury v. ( 'orjioration of, IH iiieroft V. 1 )umas, 2!I9 V. Lynnlield, l.^J ;ings V. SiKiw, 1(12 link V. Cluster, oh; link V. Cliillieothe, 194 Mayor, oKi I'etway, ()4 llailroad ( 'o., 2.'}<) Home, 4S1 " V. Su])ervisors, l.')9 " of ( 'InMiango V, Brown, .1(5 " of Michigan v. Xiles, ;50, 128. 288 " of Montreal v. Taylor. 210 " of Toronto V. I'annini.', >'A','), r>44. WA'A, 040 " of rpper Canada v. Owen, 28 anks V. I'ontiaux, 128 .tiniernian v. Yarmouth, Kc, 385 arher v. itollinson, 207 V. li.ixhury. 4111 V. Waite, r)2 arclav v. Davlinuton, In re, 70, 180. 1S7."191, .S27. ;{S0 irdwell V. .laniaii'a, 410 arker v. Commonwealth, 328 V. V. v. V. 1^ oonies. 194 " V. IMttslnUL'. ir)9 Barkley v. Howell, Be.ssee, 420 liarlow \. Norman, oOO Barnard v. I'oor, .'{02 Barnes v. Atcheson, 481 Itarnett v. Newark, 174: larns t.apU ii; I'.arrie v. Cillies, 4.S,S, 4.34 JWry V. Bowtll. ;!t)9 " V. Merchants' Exchange, 194 Barter V. Commonwealth, 29"., 297 Bartlett v, y\jnherstl)Uigh, o TABLE OF CA8RS. xvn .VJl .-.44. •28 18«. I 194 297 Baiton V. Bri^'knell. 24r> " V. Dundiw, (i09 " V. Now Orleans, 158, 3.% V. Syniousc, '.WJ, 40G Bass V. ('oluiiilms, 482 Bate V. Ottawa, 481, 483 Batenum, Kf, ")!)(» V. llaiuiltoM, 373, 40G " V. Marriott, 303 Batho V. Salter, 1.18 Batty V. Diixliury, 404 Bauiiiuii V. St. I'ancias, 361, 3GG BaxtiT V. Hesson.s, lu re, 385 Bayer v. State, 41 'J Beakiiian v. Street, Ro, 322 Beard v. Brooklyn, 473 Boardsiey v. Siiiitli, 2r)3 Beaver v. Maneiiestt^r, 420 Beoher v. Woods, 128 Beck V. Jfanseoni, (J4 Beckett V. Midland Railway Co., 470 Beck with v. Tliilhy, 2ti() Beeeher v. Derl)y Briilge Co., 409 Bcccliing, \'.x jKirte, 248 Beers V. Phd-nix (1 lass Co., 194 Bcesiiian v. I'eoria, r>G3 Belcher v. Farrar, 330 Bell V. (Vane, 414 " V. Manvers. In re, 59, 110 " V. MeClintock, 318 " V. McLean, 537, 5.38, 618, 635, 6.37, 650 Belleville v. .hidd, 128, 289 Beliefoutain Railroad Co. v. Hunter, 407 " and Indian Railway Co. v. Bailev, 317. Benedict v. tJort, 377, 4.32 Beajainin v. Andrews, 339 v. Wheeler, 414 Bonnet v. Birniinghani, 320, 519 V. Uutlalo, .304 " V. People, 320 '« V. Scutt, 320 Benson v. >icw Vork, 170 Benson et ux v. Port Hope, Lind.say &, Beaverton. Ry. Co., In re, 225 Bergen v. t'larkson, 131, 290 Berlin v. (Jrange, 517, 518, 540, 570, 615, 625 Berrymaa v. Port Burwell Harbour Co., 311 Bessey v. (Imntham, 185 Bethune v. Hughes, 345 Beurojohn v. Mayor, 314 Beverley v. Barton, 160 B Beverley v. Barlow et al, 136, 142, 016 I'.ewdley ease, 1 13 I'.iddh; V. Willanl, 83 Bidilulph V. St. (ieorge'a, Hanover, Sipiare, 371 Bigelow V. Millni.-vn et al, 166 V. Randoljih, .3.18, 401 V. Uutland, 407 V. Weston, 404 Biug V. London, 431, 469 BiggH V. .Miteliell, .3.-.7 Bilk V. Ilaveloek, l."')8 liill.s V. Kiii.son, 333 Billings V. (iloucester. In re, 177, 186, 482 " V. Worcester, 403 Birkenhead Docks v. Laird, 503 Birniinghani Churchwardens v. Shaw, 577 Biscoe, In re, 306 Bishoj) V. Cone et al, 130 " V. Kay hey, 316 Bissell V. .Tetlersonville, 4m Black V. Harrington, 541, 640, 644 " V. Sackett, 346 " V. White et .al, 191 Blackburn ciuse, 11.3, 119 " V. Parkinson, 474 Blaoklock V. Millikan, 334 lUackniore v. London & South West- ern Railway ( o. , 490 Blackpool V. Beiinitt, 264 Blackstone v. 'I'aft, 2.3 Bladen V. Philadelphia, l.')9 Blair v. Forehand, 315, 316 Blaisdell v. Portland, 402 Blake v. Midland Railway Co., 410 Blakie \. St.aj.les et al, 128 Blakly v. Dins.hile, .348 Blancliard v. Bis.^^ell, 2.), 171 Blanden v. Philadelphia, 208 Bleeelier v. P.allow, 521 Bleeker v. Meyers, 671 Bliss v. Lilley, 357 " v. U ilbrahani, 406 Block V. .Jacksonville, 299 Hlodiuer V. Stolley, 36, 166 Blooniiiigton v. Bay, 355, 406 V. Wahl, 345 Blow V. Russell, 193 Blundell V. Brettargc, 229 Blunt V. Heslop, 64 Blyth V. Birmingham Water Co., 323 Board of School Trustees and Corpo> ration of Sandwich, In re, 171 will TAnLK OF CASES. Board of School TruHtees of T()roiit(», H.', 'JCS Hoiking' V. Jones, 2(53, UC4 IJ.mIc v. Stiitc, '-'!»!) H(j(liiiiii CiLsc, 1 14 Boilwidi V. W'akclield Local Board of Ikaltli, .V.'M Fiogart V. liclK'villo, 1S3, 187, IS!/ Bogcrt V. Indiana[)iili», .SI 4, .'{-I, Bolto V. A('krf>ydr, 'J4.") " V. Now (Mlcaiis, '-'4.") Bond V. Newark, 473 " V. OvL-rsfers of I'arisli of St. (lc(pr«.'<', ll.'iiiovcr S(|uarc, T).') " V. Kclinslia, .">•_>(», .V_>l Boiiganl V. McWliiiti'v. ."iDO Boom V. I'tic'ii, 'JIM. ;{.">.'> Booth V. (;ir(l\V(.(Ml, CV.i, <>.')0 Booth V. St.ito, 377 Boothrovd, Ite. L'4() Bornu;,'li V. Sliuit/, 3()8 Borr.iwiiiaii v. .Mitcli. 11, 374, 3% Boston V. LoiTaw, 310 " V. i!i(!i;u(lson, .•{•->.3, .394 " V. SchatliT, 31'.', 313 " V. Shaw, ;i()S " V. Worthinuton. 410 " 'rurnjiikt' ( *o. v. 'i'onifrct, 130 Bosworth V. Budgiii, 1()8 " V. Ihnif, 1(>7 Boiddin V. li.iltiiiKH'o, 472 Boultuii and IV'trrhoroiigh, In re, 174, 17.'), 183 V. Kuttan, (".."l, (>.'i2 " V. York and IVel, 0ri2 Bowditeh v. \VaketieId Local Board of >lealtii, .")43 Bowman v. Bo.ston, 402 " V. Troy and l)oston Railway Co., 317 Boyilon V. Biookline, l.")8 Bradford ('asc, 114 V. Stivens, 2!K» Bradley v. ihdvvn et al, 407 V. L. & N. W. Railway Co., 224 Bradley v. Holdsworth, 510 Brady v. Insurance Co., 377 " V. .lones, 1!)3 " V. Lowell, 400 Bramstou v. Mayor of Colchester, 502, 503 Brainwell v. Pennnck, 081 Brander V. Chestertield Justices, 417 Brandt v. Craddock, 207 Railway Railway Brant and Waterloo, Tii re, 2.32, 419 420 Bra;
  • 9 Brecon V. Ivlwanls, 34."), 348 Bri'cden V. < 'ai']!, .V.IO l'>i'eghtman v. Keiner, 521 Brewster v. iiarwieli, 23 V. Newaik. 47<) Brick I'rcshytcrian Ciiurcli, Re, .322 Bridge V. < 'ai^'c, 3S!» " V. (I rami ■Junction Co., 407 Bridgeport \. HouH.'itonic ('<■.., 481 Bridg<'.s V'. (iritiin, .">I0 " V. \ortli London Railway Co.. 408 Bridgcwatei- ('a.se, 113 I'.ridgiand v. Sliapter, 348 Briggs V. a Li l; lit hoat, .325 " V. Wlii]ii.le, 1.19 Bright V. Su]iervisors, 1,58 " and Toronto, In re, 38(5 Brinknieyer v. lOvjinsville, .3.")8 Ih'ock V. 'i'oronto and Nipissing Rail- way Co., 171, 234 " District Council v. Bowen, 7, (>(■»(>. Brockville Casv. ."i."), ofJ, 57, 59 I'.rockville Klection, K". 110. 118 Ihooke V. Cam](liell, 028, 030 " V. Mitehel. 228 " V. Sliailgale, .320 Brooklvn Railroad Co. v. Railroad Co.. 375 Brougliton V. B.rantford, 100 Brown V. Belleville, (i " V. Carpenter, 310 " V. Charleston, 4(»8 " V. Tlunn, 377 " V. London and North Western Railway ( 'o., 55* " V. Marylami. 299, .3.57 " V. Niiliolsoii, 240 " V. Saniia, 0, 431 " V. 'i'aniplin, 582 " V. Watson, 409 " and "^'(.rk. In re, 188, 425 " V. McLaehlan, 3 Bruce V. Bruce, 55, 151 " V. Cromai-. 7, 0(iO Brumlitt v. Brenmer, 138, 545 Bryan v. Bates, 2(50 " V. C.-ittell, 85 Bryant v. Hill, .503, (553, 082 " and i'ittsburg, In re, 175, 201 ( TAULK OF CASES. XIX oail Buoc1on!.'li V. Motropolitan Board nf Works, 470 Bucli.uiiui V. I'liiiiU, (140 Buch.irt V. l'>raiit & ( 'arrick, In rt-, IS."), 1st; jJlU'kln'C V. I'ldWll, ,'110 \Uu-k\v V. Wri^'litsun. '2M Uiiii^,'*' V. I'lusuiis, ;{|4 liucll V. hui'liiiii^liiin, SI IJulMo V. Ilulluw.iv, 4(1"., 410, 473 " V. \\\.l.ster, 'M'2, .SU " & I.. H. R. Co. V. Urojks- Imiik, S7 " Si Liikc llindii Kaihvay Co. \ . ( loduricli, .. i ") I'.ull V. Sims. •_>;{(> Bulh'ii V. Moo.lit", .'}7(l i3ui!o.;k V. Cooiiii.k', :{:w Buln\S- V. ( 'll.lllcstull, .')1(> Biirditt V. Swciisiiii, :{'_'S, 3,")!, 3.")3 Burjicss V. I'll.', \:U Burk'i-li V. CaiDplKll. 4;}3 l>.urlti-li V. Hahs, 4.".:5 Burlington v.Miillicrt, 472 V. KilkT. 'J<»7 Burnrs v. Aeluson, 'JOS Burnett, Kx parte, l(i'_', 300 " V. Saoianicnto, 47- FJurnliani v. Boston, 4()'J V. l\'terli'.rouudi, 207 Burritt v. MarlhoroiiglC 303, 3m»,4;kS Burton V. Knif.dit, 228 Busk V. .Martin, 208 " V. Kaliin-, 114 " ct al V. S^L-a])urg, .344 Bussier v. I'ray, 1.">S Butcliors' Co. V. Bullock, 20.'), GG8 V. -Morey, 107 Butrii k V. Lowtdl, 2(>i;, 2(iS Buttcrliild V. iMjrrestur, 407 Buttle V. Mol.il.>. .".'JO Butz V. Muscatine, 208 Bycrs v. Commonwealth, 285, 330 " V. Oluey, 2«)1) C.^^s.^R and Cartwriglit, In re, 184 Caldwell V. AUon, l()2, 343, 345 Galedon v. Caledon, 140 Calkins v. Baiter, ;i20 V. Hartford, 404 Callagan v. Hallett, 158 Callaglian v. Bains ot al, 87 Callendcr v. Marsh, 4:U Camtlcu V. Mulford, 472 Cameron, In re, 040 " V. Bamhart, 652 Cameron v. Cameron, .^^7 " and Kast N ssouri, In re, l(;4, 107 V. Kerr, Be, 471 Camiihell, Hx ]iarte. In re Catheart, 2 V. KIma, COS V. Kingston, Be, 311, 340, 4X\ V. I'nik County, 23G V. Itace, 402 " V. Treudow, 220 Canada Co. v. Howard, (iOl. 004 V. .Middksex. I'.t.'., 107 " V. (txtunl. \i\i ('•■uiada Permanent Building Society V. .\gnew, (>12. O.'iS Canal I5aidv v. Supervisor.s, 104 Canal and Waller Streets. In re, 504, .".01 C.inu'iit V. .Vew Orleans, .'M2 Canning v. W'illiamstown, 400 (.'apel V.' Child, S70 Carey v. 'I'ate, .'{H2, .S.34 Carn'iichael v. Slatei', 1!)2 Carr v. .lackson, " V. Northern Biherties, 309 " V. St. Bonis, l.".S, l.")0 " V. Stringer. .S2('. Carrick v. .Ii-hnston, IVM, .iOO Cairol V. Mayor, iVe., 31.'} Carndl v. Biekwith et al, 48 " V. Berth, 187 " V. Tnscaloo.sa, 320 " V. Tyler, 1,".8 Carrollton R. B. Co. v. Winthrop, ;{o;» Cai'ron v. .Martin, 472 Carscallen v. Mmidie. (ilO Carstairs v. Tavlor, 310 Carter v. |)(.w.' l(i!t, ;H3 " V. Sullivan, .'VJ Cartwriglit v. Kingston, 550 Cashel Case, 117 Cass V. Bellows, 130 ( 'assidy v. Stoekhridgo, 407 Caswell V. Cook, .S40 " V. St. .Mary's, &o.. Road Co., 401, 40:{ Catkins v. l'>arger, .SIO Cator V. licwisham, .S70 Cattel V. Ire.son, 248 Caverley v. Lowell, 159 Cayley et al v. P'oster, 040 Ceiiti'al Bark I'-xtension, In re, 378 Chaihloek V. Wilhrahametal, 246, 274 Chamberlain v. Dover, 130 XX TABLE OF CASES. (Jhaniberlanc v. Engfiold, 404 Chaiiihers v. St. l/.ui.s, U\ 128, 288 Chiindlor v. Bradi.sli, M Chapiii V. Itailway ( '(I., 23') Chaimian v. ("ri]ii).s, HU't Cliarity HoHpital v. Stickney, 313 Charkith, In re, oJK) Charles, Kx parte, fw-t V. Duliiiagf, (519, 046 " V. Lewis, lie, 7G Charles Iliver Bridge v. Warren Hridge, lOK Charleston v. Itaptist Chureh, 107,321 Charleswortli v. Ward, .S, 072, GH2 Charleston v. Alway, r)G4, 505 Chase V. Lowell, 159 Chatham v. Houston, 258, 497 Chaiiiitler v. Ilohinson, 542 Cheatham v. .Shearn, 353 Chelteniiam Case, 114, 118 Cheney v. Shelbyville, .320 Cherokee Ins. Co. v. Justices, 516 Chicago V. Cirge, 'A')',\ Colheck et iix. v. Brantford, 401, 40r> C()ld,s]irinj;8 v. Tolland, 13 Cole V. lUake, 1!I3 " V. (heen, 138 " V. Muscatine. 4.32 " V. Nasliville, 337 *' V. Sprowi, 412 Coleman, In re, 184 " and Kerr, In re, 270, 313, ()()."), (UO Coles Connty v. Allison, G3 CoUcn V. Wiiglit, 9 CoUey V. Inhabitants, 40G Colley V. Westl)n)f)k, 40"), 400 CoUins V. (..Council BluBs, 403, 409 " V. Dorchester, 404 " V. Hatch, 1()2, lOG " V. State. 83 " V. Swindle, .")1, 2.")7 Colt et al V. Bishop of Coventry, 83 Combe v. Pitt, 92 Commercial Bank v. Cotton, 3G7 Coimnissiouera v. Bright, 23G V. (Jas Co.,42G " V. Hudson, 323 V. Mighels, 1G2 V. I'owe, 33(i V. Van Sickle, 353 of Knox County v. Aspinwall, 484 of Leith Harl)our and Dock V. Inspectors of the Poor, 5()4, 58G Commonwealth v. Alger, 298, 315 iC II II II II (( << II II 11 II II II II II II II ."• V. Dallas, I,'!."! V. Deertiehl, 415 V. Dow, .300, 31G V. Duggan, 10, 2G6 V. Kahey, 321 V. (Joodricli, 321 V. Hastings, 2GG V. Howe, 299 V. Kendall, 299 V. King, 3()4 V. Leach, .")G4 V, Leeds, 3.SG V. Mann, LV.) V. Passmore, .3t>4 V. Pittsburg, 194, 208, 239 V. Pice, .34t) V. Robertson, 374 V. Ko.vbury, 310 V. Hush, .31! v.Sodder,3l.3,.320,.374 V. Tewkesbury, 298 V. Turner, IG2, .300 V. Woelper et al, 59, 142 Conboy V. Iowa City, 174, .080 Concord v. Boscawcn, IG Cone V. Hartford, 3G8 Conger and Peterborough, Re, 183, 18.'), 4.32 Congreve v. Morgan, 404 Connehan v. Ford, 4P2 Conner V. New Albany, 170 " V. New York,'l.')9 Connerville v. Bank, 51 G Connor v. Douglass, (i38, G41 " V. McPherson, G3G, G5S Conwell V. Kmrie, 315 Cook V. Charlestown, 404 " and Humber, In r,', 58 " V. .Jones, GO."), G;6, G38 " V. Milwaukee, 403 Coolly V. (iranville, 1G2 Coombs aTid Middlesex, Re, 273 " V. I'urriugtou, 402 II II II II II i( ■ < II II II XXII TAIII.K 01' CASKS. (JoopiT V. Kd.ird of Wdikn for Wiimls- wuitli IliHtrict, ;»(»l, :{7t>, ."171 " V. (iostliiiL'. ;i(».">. ."{(Hi " V. Sbclr, il.v I'.'l " V. W.iiii.iiik.s ;{;ii (Jopo V. 'riiiiiiics, itc. Dock iuid Uail- roinl ( 'nin|i;iiiy, !"»!> (!oj)elinil.") Ooriifll V. (iiiilt'onl. !» ConiiHli V. Toronto Stroi't Uaihvay Co., 407 ('oriiiiiiiii V. I'];istcni ("oiiiilii'M I'ail- way Co., 404 Coi'iiwcll \. Mctro]Milil;iii CoiiiiiiiH- sioin IS ot .S(!\\ci's, 40;{ (!or|ioiiitioii of l?aiil(urv, (»4 Cortis V. Kent WatiT Works Co., 'JOG Cotter ami l>ailiii;itoii, In ro, KS7 " V. Doty, '_'4".. ;{;{:! " V. Siitiii'rl;iiMi, (j;{(;, (;;{s, mo, • ■)4I, MH Cotton V. Davis, 81 " V. Hamilton and Toronto Rail- way Co., .SO") " V. W.Hid, 404 Collill V. Steele, .S.'iN Coventry Case. 114, 11.") Covington v. Casey, 472 " V. Lndlow, i;U> Coweu V. West 'I'roy, 470 Cowles V. Kiddtr, :i\S Cox V. (iriliiii, .S7S " V. Westehester Turni)ike Co., 408 Ooy V. Lyons, "J.l'J Coyne v.' lirady, .SI 4 Coyne and Dunwieli, In re, 184, 188, 380 Crafter v. Metropolitan llailway Co., 40.S, 404 Cra-'j,' V. Viekshurg, '236 Crake v. Powell, .307 Cralty v. haiii,'or, 410 Crane v. liollaml, 8"> Crawford et al v. Cobourg, 2.35, CG3 Crawsliaw v. lloxhurv, 38l( Crcal V. Keokuk, 4.32 Crease et al v. Ualieoek et al, 557 Creighton v. Seott, 478 V. 'I'oledo, 473 Crejips V. Durden, 2!)5 Croft and Brook, lu re, 170, 187 Croft V. Peterborough, l(>4, 430 Cidiian V. Miinieipalitv, 47"> CroHhy V. W.irr.n, 'JW, .3.33, .351 Cross 'v. Ottawji, 207 ( 'rossley v. ('lay, 228 Croiieh V. Credit Koiieier, 237 Crowder v. 'I'inkler, .3.Vi ( 'riigei- V. Itailroiid Co., ,304 Ciil.itt V. Siiiitli, .300 Cmklielil V. iJurying iJoard, lie, 305. ,300 ( 'iiddoii V. l'",astwi(k, 107, 2i)5 Ciimniingv. Prooklyn, l.")8 " V. .\i.iyor of I'lrooklyn, 473 V. Sil.ley, tl7l Cunningliani and .Mnionte, In re, 36, l(')t; Curtis V. I'.riglit, .Wl Curtiss V. lioyt, 412 " V. he.avitt, l<»4 Cnrwon v. Salkeld, .344 ( 'usliing V. Adams, .304 ( 'usliman v. .Smith, 305 CuthiKit v. Street, 87 Cutting V. Stoiie, 13 Da KINS V. Seaman, .'")02 Dalton V. South Eastern llailway Co., 410 Daniel v. North, .3!»8 Daniels v. P.uitord, In re, 129, 143, l.w, 104, 184 " v. People, 412 Dansey v. Kieii.irdsoii, ,50 Darby v. Cosens, 5!H Dargan v. \Vaddtdl, 328, .353 Dark v. Huron and I'.iucis 273 Darlington v. ( 'omiiionwealtii, .304 l)artm(uith College v. W'oodwanl 5, 2!)8. l)artnell and (Quarter Sessions, In re, 388 Davenport (ias Co. v. Davenport, 208 " V. Iiisuranee Co., 253 " V. Kelly, 344, .34.") V. Uailr.ad Co., 518 V. Kuekman, 408 Davidson et al v. (iill, 05 Davidson and (t>uarter Sessions, In re, 388 Davidson and AVaterloo, In re, 650 Davies v. Morgan, 101 Davis v. P.angor, 401, 402, 404 " V. Cary, 503 " V. Dudley, 406 " V. Hill, 402 TAHLK OF CAHRS. XXlll Uavis V. I,a!iii>illu I Ifiiik Uimtl, 4(».'> " V. Miiiisiiii, .'CIO " V. Niw VurU, ;t7l " V. Uiiss.ll. 'JtiT' " V. s.rii.sc, ;{S(; " V. Williams, :f.TJ l);ivi.-(p|i ( 'ulli'gii V. ( 'li;iiiil)t'i's, ,'{(>, I'JH, ISS |);v\v V. MdtroiMilitiiii i'ii;uil lit' Wuriis, •Ml, :.(r.' Divwis V. Hawkins, ."IDl, il'.li l»awsiiii V. Mm ray, 471 " V. Wilkiiisuii, '_'(»7. Day V. (iiviii. .TJO, ;t74 Dc.iii V. (iiasnll, .'lUI " V. McCartv, .SI!* l)ul>lai|iii('i'i' V. I'lrcUi-r ft ill, .TH, ."iH, l)(»S, (ill! l)i;l"iil \ . < 'iiiciiiiiati, 1 '>H l)fl''raiicc; v. SiifiK-tT, .'i'JO Di^Halur V. t/iu'i ii (•!' I'.irtii!l() Di; la liayi' ami Tiiroiitu, In re, IS.'i I>cliiiiiiii>'ii V. New N'lirk, .">()'.) l»iii V. \'n'('laiitU, 7 hflllUlt V. Wclliliu'tnli, 4(»t) Dfiiiiis V. lIuL'lns I't a), ;t(tt, 4'.'."). 4.27 Itfiiiiisoii V. ilciiry, 't-H), i'A'2, fu>l iJonttiii V. .lacksKii, Iti V. liMimint V. I)rtiiiit. .'<(>.S Ik'Kussry V. Davis, 1(»'2 Dc'trnit V. ( 'nicy, I'M) DL'tmit ami Unwull Itaihvay Co. v. Salrni, 4S(» l>cvuiiU V. (iraml Tiniik Itaihvay Co., 404 I)u \'oss \'. Kiihtnoml. I'.)4, 'JoG Devoy V. New York, 15'J Dew V. I'arsnns, l.-)S Dcwuy V. Detroit, 405 " V. \Vhitf, :W)l Uc.xon V. Uiicli, TiO Dii-atur V. Kislu-r, 400 Dicki'iison V. I'V'tciiliurg, .'J04 Dii'ksnu ami (Jalt, In re, 530, 548 DiiiKs V. iVtlfv. .'{5-_' Diim.L'k v. Siitiiflil, 404 Dinj.'11'V V. l>o>.>4oii(liile ilail- roail Co., 305 " " I'alt.rsoii V. Davis, M " " Pow.ll V. Iloiison, 03'J " Kiiliinsiiri \ . ( 'Ink. '>x " Slater V. Smilli, (il'.t, (;;17 " St. .Iiilii'.n, Shrew slim\', v. Cow- ley, 350 " (lem Tiiinysou V. ^';lrll^rlllp_'h,513 " l'|.|.er V. 'Kilwar.ls, Oi!». t;3_', 04vJ " ill III Naiiiiittv. IJeail, U7 " MediU V. i.aiiutuii, 5111. .VIO, 53'-' Dulierty V. 'ruiDiiio, Ke. -Jill. .'!I3 V. Waltliaiii, 401', 401 Dolau V. IJaltiiiiore, 5'_'l Duiiatilsoii V. iioston, 40(5 Duiinalier v. State. 374 D.iiii.v.aii V. N'iiksl.iirL,', 3'J5, 333 1 >iiii'iiistel' V. I^lisoi', :H't Dornian v. .laeksunville. 4'!l,4:i'2 Doiii,'las V. i'lacerville. lOi' V. \ ir;,'iiiia City, 23!) Douglass, In re, ,3.VJ " V. ( 'oiniiioiiwe.'vlth, 377 V. i'atri.k, ]lt3 i)ipve V. Diive, 54l) Dover V. 'rwoiiililey, 14'J Dow V. liillloek, Oi i»o\viier V, Boston, 308 DovvniiiLr V. Itim.ii, 131 I »iaiiiiiiL; < 'o. ( 'ase, 5'JO Drake v. Lowell. 402 Di'eaiii.-liiirg V. .Iiiikins, 4SI Drew V. New Itiver Co., 370 Droglie.la Case, 7!>, II S, II 'J Drope ami Hamilton, In ru, 187 Drill y \'. Worcester, 402 I >iililiii ( 'ase, I 17 I liiliiuy V. (,'iio|)i'r. 130 I »ul)iiis V. Augusta, ;!30 V. Iiailloii!.'. .'i53 l)iiliuijui; Co. V. Diihiniiie and P.icitic Railwjiy Co., 4S0 V. .Miller, 342, 350 " V. Uehinaii, 5K0 V. Stout, 310 V. W loU'ii, 477 Duck V. Aililington, 204 Duckwall V. New Albany, 170 Duckwortli V. Joliiisoii, 410 DuiliiKin V. Vigar, 549 "% XXIV ;9ABLE OP Duer V. Small, ,'),')■') Dugan V. Bridge (!o., 417 l^jugdale V. Queen, .TJ7 Duigeiijui's Case, 58. Duke Marlborough's Estates.In re, 307 Duke V. Home, '.VM Duncuft V. Alln-eeht, 316 Dundas v. (iUiiigarrv, -(10 Dunham v. Ruciiester, 300, 313, 320, 345 Dunlop V. York, 304, 30.-"), 308, 428 Durant v. Jersey City, 477 Durkin v. Troy, 403 Durnesnil v. Dujiont, 3r)3 Dwight V. County Conmiissioners of Hampton, 304 Dyekman v. New York, 304 Eahl ok Eadnor v. Reeve, 576 Karl of Shre\vsl)ury v. North Stafford- shire Railway Co., 307 Earle v. Stoeker, 228 J!last Hartford v. Hartford Bridge Co., 160, 170 East Lincolnshire Railway Act, In re, 305, 300, 308 East Ijouis V. Wehrung, 320 East Nissonri v. Horseman et al, 9, 128, 120, 143, 221, 222 East Saginaw Maiuifaeturing Co. v. City of East Saginaw, 210, 521 East St. Louis v. St. Joiin, 303 East Toronto Eleetion Petition, 116, 110 East Water "Works Co. v. Leyton Sewer Authorities, 515 East Zorra V. Dou lass, 145 Eastern Railway Co., 315 Eastman v. Meredith, 310, 358, 369 Ecelesia.stieal ('onnuissionersv. Clerk- en well, 366 Edinl'ur!,'li liife Assnranee Co. v. Fer- guson.'o.'iO, 614, 640, 682 E! TABLE OP CASES. XXV D Fcrgtison v. Tiv^wick, 406 Fetterly v. Hussi'l) -- 1 Cambriilge, 6 Field V. ('oiiimoiiwcivltli, IGO " V. (Jiranl College, 134, 290 " V. Kt'iiip, 3!»-J| Filbey v. Conibe, 3'tO Fillcter v. Thippanl, .'^20 P'inley v. Pliiladelplua. 520 Finney v. Oalikosli, 47.S Firu Departinent v. Hulfeiistin, 1C9 Fisher v. Boston, S.IS '• V. Harrishurg, 295, 31)8 " V. Howard, 3St) " V. Prowse, 3l)S " V. Vauglian, 7, 163, 185, 304, 425. 427 Fitch V. I'iuckard, 1G2 Fitchhurg Itailroad f'o. v. Grand Junction Itailroad Co , 298 Fitz V. Boston, 401 Fit/gcrald v. Cli;.'n])noys, 503 Fitzgdihon v. Toi'onto, 396 Flagg V. Worcester, 3()9 Fleming v. McNaiigliton, .'?2 Fletcher V. I-hijihrasia, 163 " V. K viands, 3i9 " V. Wilkins, 564 Flower v. Adcni, 407 Floyd V. Tiunu'r, 305 Foley V. Moodie, 632 Follett V. I'cople, 416 Folsoni V. Underhill, 412 Foot V. I'rowsc, 64 Foote V. Milwaukee, 473 " V. Salem, 209 Ford and P>oon, In re, 58 " V. I'roudfoot, 618, 635, 636, 637, 640 Fordyce v. Bridges, 2 Foreman v. Canterbury, 404 Forster v. Forster, 589 Fort Ivlward Plank Road Co. v. Pavne, 397 Fort Plain Bridge Co. \. Smith, 417 Fosdick V. Perryshurg, 208 Fossett V. Bearce, 137 r„3ter, Re, 590 " V. Oxfonl, &c., Railway Co. ,'52 " V. Pritehard, 503 Fowle V. Alexandria, 337 Fowler v. Locke, 264 Fox V. Glastonbury, 408 " V. Sackett, 408 Franchon v. St. Thomas, 539, 542 Francis v. Cockrell, 310 Frank v. Sau Francisco, 252 Frankford Passenger Railroad Co. v. Philadcliihia, 26.3, 375 • F'ranklin v. South Eastern Railway Co., 410 Frascr v. Matticc et al. 632, 649 " V. Pagectal, 609. 610, 611 " V. Stormont, Dundas andGlen- garrv, 185 " V. Wett, 65S Fra/.ier v. Warlield, 325 Frederick v. Lookup, 671 Freeholders of Essex v. Barber, 320 &c. V. Strader, 416 Freeman v. Apydeyard, 516 Freemantle V. Coinj)y. of Silk Throws- ters, 167 French v. Brunswick, 402 " V. Tischemaker, 481 Frith V. Donegal, 101 Frontenac v. Bredan, 143, 150 V. Kingston, 60, 20G, 208, 223, 531 Frost V. Chester, 64 " V. Walthiim, 408 Fryer v. Bodeniiam, 544 Furman Street, Re, 13, 304 (Jaurikl v. Clarke, 85 (!all V. Cincinnati, 343 Galbreath v. Armour, 374 (iale V. South Berwick, 389 Galena v. Ainj', 252 «' V. Corwitli, 194 and Chicago Radroad Co. v. Loomis, 298 " Railroad Co. v. Appleby, 298 Gallia Co. v. Holccmib, 162 (ialway Case, 119 (Jardiner Co. v. Gardiner, 520 Garnier V. St. Ixmis, 158 Garrett v. St. Louis. 521 iii, (»."ii (Jilus V. C'ampliull. .'?!)'2 (iillospit; ut al V. Hamilton, G.'il (lihiiau V. Siichoynaii, oli) (Jilmoro V. Lewis, LIS, 'M)0 03 (jlass V. Wigniore, 205 (Jlcngarry Case, 1 14 (Jliek V. Davidson. 'A'2 (Joddard V. .lacksonville, 200, 359 (jOgj^H, V. lluntiiigtow'er, 100, 101 (Joldthwait V. iOast P>ridge\vater, 401 (loodnough V. OsUkosli, 405 (ioodiiur, In re, 555 (jloodcve V. Cincinnati, 432 (Joodman v. SaNers, 2'J8 Coodrieii v. Detroit, 'JdS, 472 (Jooselink v. ( 'anipliell, IVA'.i (Jordon V. Appeal Tax Coiii't, 510, 527 V. Laltiniorc, 510, 520, 527 (Jorliam v. Springlield, 23, 25 (Jornian v. lU'aghan, 5S3 (rosling v. X'eley et al, 103 (Joss v. Cor]ioi'ation, 325 (lougli V. Hardman, 071 flouid V. Stirling, 2.30, 2S1, 484 (loundrc V. Northampton Water Co., 128 Governor V. Meredith, 315 (Governors of Bristol Poor v. Wait, 504, 505 (Jraml Itaiiids v. Hughes, 245 Grant v. iirooklyn, 300 " V. (iilmour, 037, 040 " V. Hamilton, 253, 254 " V. Local Hoanl of Oxford, 544 " V. I'usliach, 207 " and 'i'oronto. In re, 187, 188, • 180 " V. Wilson et al, 010 Grannahan v. Haniuhal, &c., Lail- roa.l Co., 208 Gratton v. Fraser, 385 Graves v. Otis. 431 " v. Shratt\ick, 322 - Gray v. Iowa Land Co., 420 Gray ct nx v. I'ullen et al, 405 " V. Sheldon, 13 Graystock and Otawatee, Tn re, 386 (ireat Central Gas Co. v. Clarke, 502, 503 Great Western 11. Co. v. Bailie, 326, (!!0 " " "v. Firman, 550 " V. Itogcrs, 550, Oil " " "v. Kouse, 521, 550, 504, 505, 579 " " "v. West Hrom- wicli Commissioners, 474 Greaves v. (Jreat Xcjrthern Railway Co., 300 (Jrcen v. Canaan, 412 " V. Cheek, 13 " v. Clavchm, 2 " v. Danhy, 401, 403 " v. Durham, l(i7 " V. Maiks, 253 " V. Mayor of N'ew York, 473 " V. Heading, 431 " V. Savannah, 351 Greensboro' v. Mullins, 320 (ireeves v. Newfoundland (3o., 305 Gregg V. Sndth, 338 " V. University of Edinl)urgh,522 Gregory v. Adams, 417 " v. llailroad Co., 352 Grew V. lU'eed et al, 557 (!rey v. Dettrick, 071 " V. Tiu' State, 5(13 Grier v. I'lunket, 234 " V. St. Vincent, 187, 5.34, 004 (irierson and Ontario, In re, 103, ISO, 187, 105, 108, 530, ruir> (irillin v. Colenuui, 2(i7 V. New York, 405 Grillith v. Harris, 24() Grimshaw v. (irautl Trunk Railway Co., 305 (iriuham v. Willcy, 207 Griswood, IvK parte, 503 Grocers' Com])any v. Donne, 370 Groenvelt V. liurwell, 504 Grover V. Bontems, 582 (iuel])h V. Canada Co., 280, 524 Guildford Case, 114 (iuillott V. New Orleans, 326 (iuliok V. New, 1.35, 503 Guthrie v. New Haven, 412 HAciaN-o V. Perth, 414 llall'man v. San Joacjuin, 410 Hallord v. New Bedford, 358, 361 TABLE OF CASES. xxvu Hagner V. rToyliorgcr, 131 Halu V. Hougiitoii, ;].'{.") I'.lain, 47 I'.allanl, Ite, 153 Hill, llL".!, t;:5(i, (Ul, 045 Halls V Halk V Hall Hi nils, in re, '-"JS liOiidon, ("liatliaiii and Dover Jiailwav ('<>., 'MH't " V. Lowell, 4():i, 40() " V. Mauchfstcr. .T)."), 40,S, 404 " V. Walkor. r)57 Halliday v. St. Leonard's, Shoreditch. 3()9 Halloek ot al V. Wilson. I'-'V Hallowc'll and Angiista Hank v. Ham- lin. 171 [falniaii, lv\ ])arte, 2.").'? Halsted V. Mayor of New York, 0, lo!!, L'.'U Halt, In re, ">.")■") Haniiltnn v. Dennis, 184 V. Kggleton. ()r)7 Hamilton et al v. McDonald, (i3.S,G37 V. MeNiell, i:{, 14 Hannuersniith and < 'ity llailway, Directors of. v. Brand et nx, 2 Hammond v. Hendyslie. o70 V. Me Lay, KiO, 2G1 Hampshire v. Franklin, 24 Hanlon v. Ingram. Mill " V. Keoknk, 408 Hanson v. Leverage, 220 " V. ^'ern.ll^, 4S(t, 481 Harheck v. Toledo, 'Mi, ;{(I4 Harlioiirn v. Boushey, (i.So Harding V. Stokes, 114, HG " V. Townshenil, 410 Hardy v. Railway Co., (181 Hardy v. W'altham, 357 Harpel V. Portland, 233, 30G Harper v. I 'air, 370 Harrington V. Itochester, Ex parte,300 Harris v. Klliott, 42t) " v. School District, 13G " V. Intendant, 1(12 " V. Nesl.it, 170 " V. Watson, 389 Harrisoti v. Baltimore, 335 V. Bridgeman, 23 " V. (iodnian, 1(18 " V. State, 1G!I, 170 V. Williams, 8, 137 Harrokl v. Simcoe and Ontario, 5, 3!l(;, 400, 410, 417, 420, 421, 422,440 Harrold v. J^inn-oc and Teel. 411) " v. Simcoo and York, 398, 4(»0 ITarrnj) v. I^ayley. 580 Harry v. Andi:rs(in, (US Hart V. All.anv, 2!t8. ,333 " v. liruokiyn, 355. 402, 405 " V. Mayor, &e., 245, 295 " V. Me vers, (171 Hartford i5riilge v. Mast Hartford, 24 " " Co. V. Ferry Co., 1G9 Hartley and Kmilv, Ite, 72 " ' V. Mare, "208 Hartnall v. llvdt; Commissioners, 208 H art well V. Littleton, 13G Harvey v. Dewoody. 353 Harwnod V. Lowell", 409 Hasdell V. Haiieock, 159 Haslupe \-. 'Ihornc. 543 Hastings Case, 114, 117, 134 Hatch V. Mann, 158 Hatt, He, 51(1 Haven v. Hilliard, 247 Hawes V. Hiimjihrev, 247 Hawk and Ballard, "ite, SI Hawke v. Hall ex rel, l(»9 " and Wellesley, hire, 198.289 Hawkeshaw v. Dalhonsie, 273, 289 Hawkins v. Huron, Perth and Bruce. Re, 7 Hawkings v. Newman, 13G Havdeii v. Attlelmrnugh, 402 V. Noyes, 13 Hayen v. Strong, 33(1 Hayes v. I'acitie Steamshii> Co., 520 " anil Tornnto, Kx jiarte, 197 Haynes v. Ci.peland, 192, 20(1, 207, ,72, 473. 474, 523 " v. Smith, (118 " V. Thnmas, 424 " V. Washiimtnu County, 63 Hays V. State, 412 Head v. Insurance, 1G2 Hearne v. (Jarton, 248 Heath, I'^x parte, 591 " v. Jirewer, 2(14 Hedges v. Madismi, 41(> Heenlon v. Ingram, 320 Heise v. Town'Cunncil, 245, 29G, 333 Helps V. itol.lin, 230 Henderson v. Baltimore, 472 " v. Barnes, 404 v. Mayor, 135 et al V. Sherl.orne, 52, 503 Henry v. Burness, G37, 038, G39 Heublow V. Fawcett, 114 xxnu TABLK OP CASES. Henty v. I^ng Island R. Co., 372 Hepburn, Re, CAG ' ' and .Johnson, In re, 555, 556 Hereford Case, 11.3, 114 Herland v. Lowell, 1G3 Hermen, Ex parte, IGO Hersey v. Supervisors, 521 Hesketh v. Ward, 615 Heslep V. Sacramento, 159 Hewson, v. New Haven, -101, 402 Hickey v. Renfrew, 160 Hickley v. Penol)8cot, 410 Hickman v. O'Neal, 563 Hiestand v. New Orleans, 141, 159 Higgins V. Harding, 515 " V. Whitby, 481 Higley V. Bunco, 174, 175 Hildredth v. Ix)well, 370, 477 Hill V. Bateman, 24, 92 " V. Decatur, 10 " and Teeuniseth, In re, 187 " V. Figdon, 520 " V. Livingston, 416 " and Walsiagham, In re, 186, 202 Hilton V. Ankesson, 317 Himmelman v. Oliver, 476 Hinchley v. Oildersleeve, 435 Hinchnian v. Detroit, 42(5 " V. Philadelphia Passenger Railroad Co., 375 Hirous et al and Amherstburg, In re, 185 Hison V. Lowell, 401 , 402 Hitchcock V. Way, .'504 Hoag V. Durfey, 136 Hobbs V. Dance, 377 Hoboken v. Gear, 159, 160, 174 " V. Harrison, 134, 142, 290 Hodges V. Buffalo, 8, 9, 162, 234, 291 " V. Shuter, 2.36 " V. Mayor, 313 Hodgkinson v. Fernie, 229 Hodgson V. Whitl)y, 233, 305 " V. York, Peel and Ontario, 187, 425 Hoffman v. St. Louis, 431 Hogge V. Burgess, 229 Hogg V. Ward, 267 Holcomb V. Shaw et al, 545, 610, 617, 618, 626 Holcroft V. Heel, 345 Holden v. Cold Spring, 412 Holden v. Soulby, 50 Holdsworth v. Dartmouth, 239 HoU.aday v. Fusbie, 253 Holknd V. Baltimore, 472 Holloway, Ex parte, 245 Holnian v. Townseml, 406 Holmes v. Wilson, 352 Homer v. Coffey, 253 Hood v. Lynn, 9 Hooker et al v. Gurnett, 650 " V. New Haven & Northamp- ton Co., 431 Hooksett v. Amoskeog Co., 410 Hope et al v. Cunnning, 610 Hopkins v. Provincial Insurance Co., 543 " V. Swansea, 163 Horn V. Whittier, 142 Horner's Estate, In re, 308 Horton v. Ipswich, 403, 406, 408 . Horton v. Taunton, 404, 407 Houch v. Whitby, 6 Houghton's Case, 352 Hovey v. Mayo, 432 " V. Mayor, 414 How V. Plantield, 405 Howard v. North Bridgewater, 401, 402 Howe V. Crawford Co., 417 " V. Lowell, 406 " et ux V. Thompson, 639 Hoyte V. Commissioners of Taxes, 520 Hubbard v. Concord, 402, 403, 404, 406 Huddlcston v. Ruffin, 166 Hudson V. CJeary, 312 Co. V. State, 1.33 Hughes V. Parker, 131 et al V. Towers, 610 Hull V. Richmond, 401 KuUman v. Honcomp, 131 Humble v. Mitchell, 516 Humphreys v. Armstrong County, 408 Huneman v. Fire District, 357 Hunt V. Anibruster, 360 " V. Hibbs, 138, 667 " V. Pownall, 407 " V. Utica, .304, 473 Hunter v. King, 410 Huntley v. Luscombe, 248 Huron v. London, 5 " and Bruce v. McDonald et al, 272, 277 Hurrell v. Ellis, 264 V. Wink, 564 Hutchina v. Boston, 403 Hutchins v. Scott, 563 Hutchinson v. Lowndes, 248, 249 " V. Pratt, 137 Vvivt ^A m TABLE OF CASES. XXIX h^' l»^(v . ( ">1\. Hutson V. New York, 405 Hutton V. Windsor, 401 Illinois Central Eailroad Co. v. Buckner, 40G Imperial Land Co. of Marseilles, In re, 237 w. jH»ri«-v. Mariposa, 159 Iiiulibald V. Robinson, 354 Indiana Mutual Fire Ins. Co. v. Con- ner, 131 Indianapolis v. Croas, 424 " V. Mansut, 476 Indianapolis and Cincinnati Railroad Co. V. Kerchaval, 298 Indianola v. Jones, 151 Ingersoll v. Cliadwiok, 85, 143 Ingle V. Bell, 206 Insurance Co. v. Sortwell, 203 lutcndunt V. Cliandler, 102, 300 Iowa V. Foster, 159 Irvine v. Elnon, 228 Irwin V. Bradford, 398, 404, 406, 411, 422, 489 S^Isley V. Stubbs, 332 Islington Market Bill, In re, 345 .Jack v. Ontario, Simcoe and Huron Railway Union Company, 334 •Jackson v. Hyde, 404 " V. Jacob, 193 V. People, 329 Jacksonville v. Holland, 299 V. McConnell, 510 Jacobs V. Bangor, 408 James v. London and South Western Railwayed)., 590 " V. San Francisco, 409 " V. Tutney, 107 Janson and Reach, In re, 187 Janvriu v. Exeter, 390 Jaiiues V. Withey, 504 Jarvis v. Jirooke, 639, 641 " V. Jayley, 613, 639, 641, 646 Jay Cool; v. dill et al, 590 Jenkins v. J'^lgin, 177 " V. Hutchinson, 9 Jenks V. (;hicago, 476 " V. ^^/ilbraham, 407 J.'uuhigs' Case, 84 Kx parte, 417 . V. Hankeys, 247 V. Major, 193 V. Tisbury, 412 Jersey v. Quaife, 158 Jersey City v. State, 426 Johnson, Ex parte, 681 " V. Cdnimon Council, 472 " V. (rloucester, Re, 229, 305 V. Haverhill, 401 V. Hudson, 3.38 " V. Hudson River Railroad Co., 410 " V. Lexington, 516 V. Lord, 543 " V. Oregon City, 516 V. I'hiiadelpliia, 248, 263 " V. Stark Co., 236 V. Whitefield, 404 Johnston v. Reesor et al, 426, 427, 436 Jones, Re, 267 " V. Bird, 370 " V. Boston, 402 " - . Carmarthen, 158, 238 ■' V. Cincinnati, 208 " V. Jolinson, 206 " V. Loulard, 13 " V. Mayor, 481 " V. Mersey Docks Co., 522 " V. New Haven, 369 " V. People, 299 " v. Stanstead, ShclTord & Cham' l)ly Railway Co., 305 Jordeu v. Wyatt, 320 Judd V. Read, 605, 666 Judge of Perth, In re, 585 " " and J. L. Robinson, In re, 190, 569 Judgson V. liridgeport, 304 Jupp et al V. (Jrayson, 229 Justices of District of Huron v. Huron District C'ouncil, 273, 289 Justices of York and Peel, In re, 580 K.\Nh V. Baltimore, 303 Kearney v. Covington, 473 " V. London, Brighton, &c., Railv.ay Co., 404 Keating v. Simcoe, 273 Keckely v. Coimnissioners of Roads, 342 Keen v. Stuckely, 583 Keith v. Ka.ston, 402-404 " V. Lynch et aJ, i24 Keithsburg v. Frick, 482 Keller v. Hicks, 236 Kellogg V. Northamjjton, 402 Kelly V. Macarow, Re, 91, 92 ♦" V. Macklem, 635 " and Toronto, In re, 188, 344, 346 Kelsey v. Glover, 401 " V. King, 323 XXX TABLE OF CASES. Kelsey v. Wright, 04 Kemliall v. Kcnuslia, 42G Ken.lall v. King, 'i.S!) Kennedy v. Bdard uf Health, 351 V. I'lieljm, 3')"-' " V. .Sandwich, 103, 255 " V. Sow.k'ii, 333 Kerhy v. Lewis, IC'J Kerr v. Seaver, 31(5 " V. Trego, 131 Ketchuni v. Huilalo ct al, 127, 194. 342, 34,3 Keyes v. Westford, 1G2 Kidder v. I'eoria, .'JOo King V. Allan et al, 394 " V. Aniery, 14 " V. Andover, 1(50 " V. Arnold, .")(j3 " V. Ashwell, 31!, 1G6, 296 " V. Atkins, 3r)2 " V. liahb, 137, 563 " V. Bailey, 58 " V. Barber Surgeons, 165 " V. Barker, 271 " V. Barlow, 367 " V. Barnard, 134, 290 " V. Barrett, 24() " V. ISellringer, SO " V. Benn, 370 " V. ".ird, ;5«, 106 " V. Blaeknuin, 247 " V. lUaney, 247 " V. Bond, 85 " V. liower, 81, 1.57 " V. Bridgenian, 137 " V. Bridge water, 555 " V. Broughton, 400 " V. Buckle, 338 " V. Bumstcad, 59, 290 " V. Burder, 1.56 " V. Burnett, 319 " V. Burrell, 007 " V. C;anil)ridge, 370, 371 " V. Carlisle, 131, 365 " V. Cari-" 58 " -, I 50, no, 290 '■■■ . • ... .... ^:;-t7 : r in iK^g, 591 V, ' 'Mi «s" r.^ra of Excise, " X. Coii.i,. , ,:, 344 " V. Coventry, 160 " V. Croke, 7 " V. Cross, 351, 352, 365 " V. Davey, 351 " V. Davis, 503 King V. Devon, 416 (i V. Devonshire, 81 ti V. Dinipsev, 24(5 If V. Doncaster, 126, 290 (( V. Duke of liicinnond, 55, 150 >< V. Hastrington, 400 (1 V. Kecleslield, 400 ti V. Kve, 58 <( V. KVles, 58 «( V. Kavershan.. 120, 290 (( V. Flintshire, 200 ( ( V. (Jreet, 81 (( V. Crimes, 12(5 (( V. Coodcheap, 207 (( V. (irosvenor, 157 (< V. Hall, 2 (( V. Harris, 1.32 (( V. Harrison, 103, 107 (( V. Hawoi-th, 206, 207 i( V. Headlej^ 81 Heath, 503 it V. it V. Hill, 120 t{ V. Home District, 312 t( V. Hugiies, 84 a V. Hulcott, 5(54, 081 1 1 V. Incledon, 353 a V. Ireland, (574 a V. I veils, 38(5 ti V. -leilVej's, 584 it V. .lohnson, 247, 352 It V. .lones, 3(54 <( V. .lustices of (iloueostershirc, 32 ( ( V. Justices of Kent, 190, 508 <( V. .lustices of Middlesex, 502 it V. .Justices of >.'orfolk, 580 (( V. .Justices of Sutl'olk, 584 a V. Justices of West Yorkshire, 580 (t V. Langhorn, 126 tt V. Leake, 400, 411 it V. Ltiyland, 156, 157 ti V. Lindsey, 410 (( V. Jjisle, 64 1 1 V. Little, .338 (< V. Lloyd, 351, 3.54 (( V. Luc-as, 137, 5(53 a V. Liverpool, 126, 131, 400 ti V. Lyme Uigis, 290 ti V. l,yoii, 411 tt V. Madeson, 510 n V. Manchester & Salford Water Works Co., 28(5 " V. Merchant Taylors' Co., 297 (t V. Marquis of Buckingham, 416 U << V. Stone, 247 " V. Mill.T, 80, 1G5 «( V. Storr, 352 " V. Mitchell, -).-), 151 ti V. Swyer, 153 " V. Monrth Curry, 55, 150 ( i V. Tregeiiny, 64 " V. Northampton, 3!)S, 416 (( V. 1'relawney, 85 " V. Norwich, 138 ( i V. Tucker, 569 " V. Oxford, 83 ti V. Ttirnei', 338 " V. Oxfordshire, 400, 416 ( 4 V. VaiiLaiKlille, 319 " V. Oxoii, 100 22 liOnl ('(ilcla'stor ox rel v. Rewney, f)22, r>-2i Louisville V. Coinmniiwcalth, 128, 253 " V. Helming, 516 " V. Hig(loi), CA V. Hyatt. 472 V. Knlliiig Mill Co., 432 &c. Railway Co. v. Ballard, 317 Lovell V. St. Paul, 472 Low V. Dodd, 3")!( " V. Kvaiis, 270 " V. I'fttiugill, 130 Lowell V. li()st(Jii & Lowell^Railroad Co., 410 " V. Short, 410 " V. Siiinison, 3f>5 " V. SiKuiMing, 3(;r>, 402 Loyd V. Kow ^ ink, 3(>!» Lucas V. >.\w '5»'orU, 410 " V. I'itucy, 1<»4 " V. San Francisco, 472 " V. McClashaii, 248 Ludlow V. Tyler, 7 Lunibard v. Aldrioli, 171 Luinsdcn v. Cross, 5I!>, 520 LuikI v. Tviigslxiro, 404, 406 Luther v. NV^od, 484, 487 • " V. Worcester, 403 Lyndon v. Standhriilge, 286, 359 Macclesfield v. Cha])man, 342 V. I'idJey, 342, 345 Macdonald v. Red\\ind, 301 V. Itowe, 03'J Machell v. Neviiison, 131 Macintosh v. Blythe, 230 Maciilierson and Beeman, In re, IGO Macy V. IndianaiKdiH, 431, 432 Maddox V. (irahain, 230 Madison v. Kelso, 15i», IGO V. Whitney, 510, 520 ^Lagee v. State, 30 Maher V. Chicago, 475 Main v. M'("artliy, 20G Majiir V. I'ark l,ane Co., 371 Maleverer v.'S])ink, 315 Mallnch V. Anderson, 308 Mallory v. Supervisors, 158 Malone v. I'aulkuer, 471 Mauchester v. llarford, 402, 405 Manderschid v. Dubuque, 400, 412 Mangan v. Mauley V. way ( 'o. , Manning v " V ALinson v. AUerton, 407 St. Helena Caual & Rail- 417 . Faniuliarson, 590 .MaiuiinL', 55 Hope, 33^8 Mara v. Cntarid, ()59 Maraii v. Miami County, 484 Marble v. Wurcester, 40G Marcy v. Taylor. 412 Maiietta v. Fearing, IGO Markhain v. Mayor, 431 Markle v. Akroii, 10, IGG " v. Wright, 131 Marr v. N'iciiiia, 5,"), 5.37, 55G Marnitt v. Stanley, 407 Marsden v. (Joodc, lit3 Mar.sh v. Fulton County, 481, 484 Marshall v. ritniaii, r)()4, 5G5 V. Smith, .309, 3GG Martin, Ex parte, 081 Martin v. Bank, 128 " V. Brooklyn. .309 " v. Kergan, 2.30 Maryland ex rel McClellauv. Graves, ig'g Masey v. Troy, 403 Mason v. Kllswoith, 40G, 409 " V. Keeling, 310 " V. Morgan, 334, .335 Massingbei'd v Montague, G.39, 052 Master, &c., of Cumuakers, &c., v. Fell, 108 Masters, lie. 249 Mathews v. Biildulph, 206, 267 Matts v. Hawkins. .300 MauU V. Wilson, .320 May v. I'rinceton, 400 Mayiiew V. Locke, 249 V. Suttleet al, 48 Mayor, Sec, Jn re, 521 " V. Avenue Railroad Co., 2(>3 " V. Burgesses of Lyme Regis, 7 " V. Cuille. 102 " V. Hartridge, 313, 516 *' V. Horn, 142 " V. Long, 304 " V. Marriot, 403 " V. Morgan. 10, 563 " V. <>nil)iirg, 333 " V. Shef held, 405, 411 " V. Thoriie, 377 " of (Carlisle v. Blainire, 7 " of Hytlie, Re, 588 XXXIV TABLE OP CASES. Mayor of T^oiulon v. Cox, .lOO " of Nuw York V. Cuslinuui, 521 Maj's V. Cincinnati, lUli MeacliLiii V. Kailiiiiiil ('o,, 304 MejiglRT V. Couiitv, •"><).'< Moans V. Ilrndcrshott, .SOO Meart's v. Wilmington, .'{(>!) Mcdcalfi! V. Wi.ldiliil.l, l'J2 Muck V. Whitechapol iioard of Works, Moi^icr V. Van Ronnsi'laiT, 300 Mflicn V. Wcsti-ni itailn.a.l Co., 300 Mfllisli V. Hrantfonl, nir),'J(»7,234,537 Mcmiiliis V. Ijasscr, 3(!0 Morcur Co. v. Hackut, '-'30 " V. ITcwston i,t al, 127 " V. itailroad Co., 303, 373 " V. Woodgatf, 3!)0 Merriam v. Moody, 1()2 Morrill v. Hani[>don, 401 " V. I'lainliold, 150 Mersey Docks v. Cameron, 522, 504 " •' Co. V. Liverpool, 547 " " Co. V. IVnhallovv, 405 " " and Harl)oiii' lioai'd v. Overseers of HirkinlKad, 547 Metcalf (J. t. V. Keeve et al, 007 V. Ht. Lonis, 10, 330 Metcalfe v. Hetherington, 310 Meyer v. Muscatine, 230 Meyers v. lirown, 03!) V. I'erigal, 510 " and Wonnacott, In re, 581 Miami v. Waine Co., 230 Michel V. I'olice Jury, 475 Micliie and Toronto, IW, 187, 195,454, 450, 45S, 471, 475, 470, 547 Middlesex and London, l\e, 281 Middletonv. Allegliany Co., 104 V. Crofts, 502 Midland Railway Co. v. AmOergate, Nottingliani and Boston & Eastern Junction Railway Co., 2 Midland Railway Co. v. Oswin, 300, 308 Milburn V. Milburn, 193 Miles V. Chand)erlain, 245, 325, 333 " and Richmond, In re, 174, 184 Milford V. Holhrook, 303, 410 Milhan V. Sharp, 323 Miller et al v. Burch, 328 " V. Martin, 320 " V. North Fredericksburg, 411 " \. Savannah Fire Co., 357 " V. Supervisors, 84 Millin V. Fawau, 310 Mills V. Brooklyn, 30!» " V. (Ueason. 81, 194 " V. Tlioniton. .")20 " V. McKay, 010, (545 Milne v. Davidson, 10 " V. Mayor, 14 Milton-next-Sittingb(uirne Commis' sioners v. Faversliam Highway Moanl, 489, 490 Mihvard v. ('oilin, 504, 505 V. Tliateher, 85 Milwaukee v. Davis, 405, 408 " V. .Milwaukee, 24 Minot V. Lenian, 3 Mingaye v. Corbott, 013, 040 Minoi' V. L(.ndon and Nortii Western Kailway Co., 553 Minot V. (!urtis et al, 2.3 Minturn v. {..arne, 102, 109 Mitchain, Ex ])arte, 204 Mitchell V. Brown, 502, 503 " V. Foster, 73 " V. liender, 554 V. King. 193 V. Kirklaiid, .304 V. Rockland, 200, 208, 330 Milford Co. v. Brush, 8 Mitten v. Fandyne, 31() Mo))ile V. Yuille, 109, 295, 312, 325, 32(), 333 Moger ami Escott, In re, 58 Molett V. Keenan, ,304 iSlonmouth v. (Jardiner, 410 « Monongahela Bridge Co. v. Kirk, 417 Mont Carnall v. Wabash, 299 Montague v. llichardson, 530 Montgomery V. (irahani, 'tS V. Raleigli, Ue, 172, 188, 454, 455, 450, 457, 458, 459, 471, 475, 513 Montville v. Jlaughton, 142 Moor V. Newlield, 171 Moore v. Al)l)ot, 407 " V. I'^stpiesing, 395, 424, 426 " V. Crand Trunk Railw'yCo., 87 " V. Hynos, 372, 618 " V. Jarron, 382 " V. Hodsdon et al, 142 Morans v. Mayor, 351 Morden v. Porter, 248 Morell V. Tor(mto, 178, 188, 478 " V. Wilmot, 87 Morey v. Newfanc, 401 Morgan v. Dubuque, 473 " V. Mathers, 228 " V. Parry, 138, 545 TAIJLK OF CASKS. XXXV Morgan V. (^)ii('.siiol, 0,^7 Morlcy V. (iicivt Western llaihvjiy Co., -110 V. C!rucnli;il;:,li, .114 Morris v. liiinlftt, !)•_', l.">8 " Canal Cc. V. I''irilier, '23G " V. cliicMgo, .S04 " V. IVnplu, l.".l» " V. i;i)iiif, .'{I'j Morrison v. Mi;l)onalil it al, 135 Morrisse v. Uoyal Kritisli Ijank, '»03 Morse V. Uonian, 4i'J " V. Iticliniond. -U)4 Moseley V. Alston, l:U Morfos V. J'ailroad Co., .'$75 Mosey V. Troy, 4()() Mosloy V. \V;ilker, ;il2 Mott V. UeynoldH, \'M> Mottasiicil ami I'rinee Edward, In re, 170, Ih."), L'll.S Monlton V. Sanford, fOIJ Mount V. Manor Squall;, 151 Mounteanhel v. (hover, G.'J? Mount joy V. (^)ueen, .T.i4 Mou.se's Case, 315 Munieipality v. I'.ank, 521 V. Cutting, :{I2, .S51 " V. Duhois, .-512 V. Johnstoin .526 V. I'ease, 4.S.S V. Pvailroad Co., .521 Munn \. l'ittsl)urg, .SO!) Munio V. (irev, (!."{5, (544, G15 " V. Kiidd, ()4() Muntz V. St'.irge, it2 Murr)ili,an Society, 128, 288 Me(.'artliy v. ( 'liicago, .'{(55 " V. .\l'tro[ioli(an Hoard of Works, 470 V. Osiiawa, 102 McChing V. St. I'aid, 1.58 MeCuliuMi V. D.ivis, (518 .MeConil)! a V. Akron, 432 .MeCorniiuk v. Oakley, 19S. 597 MeCraeken v. San Francisco, 80, 208, 2(53 Me( 'iitehon v. Toronto, Jle, 372, ,373, 474 McPenaottv. Board of Police, 1(53 Mei)(Uialdv. Ilohinard, (544 et al V. .McDonald, 503, (533, (519, (553, (5.50 " V. McDonell, (5.S2 McDonell V. .McDonell, (5:i7 McDougall and Loho, In n-., 293 " V. l'ates(Pii, .".(57, .502 -Mcl'ltliron V. Mt ii/ics, (511 Mcllu.n V. Taylor, 1(59 McKarland v. Railroad. .375 Mc(iill v. I'eterhorougli, In re, 184 Mc(iinity v. New York, 405 Mefiouigle v. Alleghany, 478 -Mc( Jninn v. I'eii, 472 M'lntyre v. J5os,ini(HLt, 425 " v. (!reat Western Kail\\a\ Co., 49 McKay v. 15anl)ergei' et al, (564 V. Brown, .50 McKee v. McKee, .333 McKenzie v. Cani[)l)ell, 192, 315, 316. 317, .3.33 McLanchlan v. Pyixr, (541, 618 McJ^ean V. Branti'onl, (5 and Cornwall, In re, 129, 134, 157, l.M) V. Farrell, 616 " V. (ireat Western Railway Co., .31(5 " and St. Catharines, In re, 185, .349 McLellan <[. t. v. Brown, (571 V. McLellan, 581 McMahon v. Irish North Western Railway Co., 554 Mc.Master v. Newmarket, 207 McMichael v. Townsend et al, 429, 439 McMickeu v. Cincinnati, 304 ii XXXVl TAIII.E OK OAHES. McMill.in V. M.DonaM, 3 Mc.Mill.ii V. I'.nvl.y, 4H'2 MoMiiUca V. Oiinuloc, Kx rel, 188, 4.10 Mcl'lu'isdii iiiid Ufciiiaii, In vv, ItO.tJKJ Me(,)iiiiiy V. Unity Fire Innniiinoo Co., r.t7 M«S|(c(l.>n V. Now York, 473 McWliirtcr v. Kun^iir.i, .V.IO V. Corlu'tt, :\-2 McWilliam v. McAiliini, .^)13 Nash v. McCnickon, In ro, KiS, 351, 353 Naslivillc V. Althorp, 519 V. 'rilOMKVS, 5JG Nason V. lioHton, 4(>;> N(!.iv!> " lload Co. V. 15atfs, 28 Ness V. Siiltllcet, 15 Netiierton v. Ward, 373 Novill V. Kdss, 104 Neville v. Kelly, 3{t0 New Albany v. Mi^okin, 520 " and Walein llailroad To. V. 'I'ilton, '2i»8 V. Sweeny, 47-', 473 New F.ondon v. IWainard, U>2 V. MuntviU; 23 New Orleans v. Oostello, 'J'.I7 V, St. Lcuis, 314 " ▼. St. Louis (Jhurcli, ICG, 321 V. Turpin, 312 New York v. Lord, 3I.'>, .S02 V. Niehola, 32.') " V. Ordrenan, 2<»5 " V. I'entry, 'M2 " V. Shedieid, 405 V. SlaeU, 321 " llailroad (!o. v. Marvin, in re, 5'»1 Newberry V. Stejihens, 009, GIG Newliny v. Francis, 59 Newman v. Moberly, 502 Newport V. Saunders, 350 Newton V. Overseers of Moberly, 5S2 Niagara Falls Suspension Bridge Co. v. (iardener, 514, 522, 547, 553, 504, 507, 5S9 Niohol v. Mayor, 102 Nicliol V. Nashville, 481 NichoUs V. Great Western Railway Co., 407 Niehola V. Tioston, Ll.T " V. I'.ridg.port, 301 Nicoll V. New x'ork & J')rie Rftilroad Co., 127 Nightingale's Case, 312 Nightingale, In re, ,"{44 I'etit inner, &c., 340 Nolin v. M;iyor, 353 Norris v. Androsenggin KailM'ay Co., 317 " v. Mayor, kc, 25 " V. Stajps, 105 North Mem itiad v. Heinstead, 10, 24 " Norlolk Case, 119 " ^■a^moulh v. Skillings, 23 North.alKitiiM Tasc, 117, 1 i9 Northampton v. Ward, 3."i0 NoitluMii Liberties v. St. .John's Chureh, .'•.21 Noriliiiiulnil,nioys, G.59 Nottingham Case, 79 Nowcll et al v. Worcester, 239 Noyes V. Morristowu, 407 '" V. Ward, .3-55 Nurage v. i^aonjss, 304 Oaklanhv. Whi])pel, 520 Oates V. liromil, 229 O'l'.rien v. Trenton, .S9S O'Conncu- V. Pittsburgh, 431 O'Donell V. Hailev, 51G, .527 O" Flaherty v. NhJ)owell. 3, .'>02 Oliio v. Cincinnati (ias Co., 323 Ohio and Mississippi llailroad Co. v. McClelland, 298 Oldknow V. Wainwright, 81 Olinda V. Lothrop, 3()1-, 306 Oliver v. Collings, 224 " V. Worcester, 358 Olney v. H.irvey, 252 O'Neill V. Lowe'll, 403 " V. I'oli'je .lury, 170 O'Niel V. York and Feel, In re, 205 Ontario Salt Co. v. Merchants' Salt Co., 7, 348 O'lteilly (J. t. V. Allan, 122 Orfora V. Bailey, 128, 218, 288, 301 1' P V TAIJLE OF CASKS. XXXVll 24 ;is Orr V. Hiiktr, r»2() Orscr V. MtMiiitjny, '2'M Oh^iiimI v. (irci 11, 'AUrt Ottawa V. Mail V. ^77 " V. I!,vilin;vS(> Ovi.itt V. I'oimI, •_'!»!) Oui'ti V. St^iiiiii!, S'.i Owners, Jkv.., v. Albany, ,'J7S rAcliMU) V. Ni:w r.tdfoM, 104, 410 ratl'iinl aii-l Lincnlri, \lv., !'J7, 17.";, IS7 Pa«c V. l''iaiikfonl, \'t[) " V. St. Louis, n-Jl Paget V. Folcv, .1(14 Paigu V. l'M/,a".l<. rl.y. :V2r>, .'V26 " V. Heillhur;.;, lliS Paino V. Sjinitli'v. 10-. frJl Painter V. l^iverjionl ( )il( !aa Co., 370 I'alii.^tcr V. <;iavcstn TivlnKT V. Anaovor, U)'J, 40G, 407 V. Ilieks, i:{ v. New York, ir)8 " V. I'oiiltency. '.i'j'2 " V. Stuniii, 47.^ ri'.lniyra v. Morton, .•{04. 47(), 477 Paik Coniinissionrrs v. Williams, 378 Parker v. Cr.cn, 'J4S V. l.oWilI, [W.) " V. I'ittsluiri^ and Ifowo Island, 4-J7, 4'.'8 I'ark.s V. Davis, ()(i(i Pirnaliy v. Lancashire Tanal Co., .310 Parry v. ('royrin!,'}iehl, 308 Payne v. Brecon, 'J()8, '-'."O V. lion.lyear, ()'28, 038, 651 Peaehe v. Colunian, 386 Peacock v. (,^)neen, .')74 Peck V. Batavia, 40'J " V. Mu..ro, 019, 044 " T. Peterboro', 484 I'eck v. Waterloo and Seaforth Ijocal Board ..f llealtli, ;{7I Pedi / V. havicH I't al, .'i(i4, iiO.'i, fi(J7, ruH P.drick V. BaiUv. .1.')3 V. Baklcv et al, 135 IVerH v. Oxford, "l 44 IVkin V. Sni.t/.el. '.'HO Bella V. Sehoite, .378 Peuii.Hylvania Oi.-itriet Election, (53 •« Baiiro.ulCi). v.McClon- key, 410 P< nrhvn Case, 1 17 Peiithuid V. Meath, .'■)81 Pint/. V. .F.tna I ii'iiraiivio Co., 302 People V. Albany. 310 " V. Auditors of .\Layne, 158 " V Bank. IOl' " V. Bal,hrl,,r, 13) " V. Be;uil>ien, 4 1 'J " V. Bcdi'll, 134, 'J90 " V. l')owen, ;{•_*;! " V. P.ri nliaiii, 03 " V. Brcnnan, 194 " V. I'.ri-lit(>n, .'!()4 " V. Brooklin, .SOS " V. Broadway Wharf Co., 31 1 " V. Uftri.ent.T. 13, 131 " V. Collins, .30 " V. Conuiiissioners of ITigh- way, 401 " V. Cook, 131 " V. Coo:i, 482 " V. Cooper, 416 " V. (loriull. 1.37 " V. DrajHr, 298 " V. CinuiiuLiham. 319, .304 " ox rol Cunniiigliani et al, 210 " e.x rel Di'troit and Howell Railway Co. v. S.ilem, 480 " ox rel llan:\ihaii v. Metropoli- tan police I'loard. 84 " ex rel Lowe v. I'atclielor, 1.33 " ex rel Wood V. Draper ct al, 131 " ox rel Whiting v. Carrigiie, 85 " V. I-'airbury, ()4 " V. Farnham, 14 " V. (;allai,'her, 299 " V. Hawley, 299 " V. Holmes, 142 " V. Jones, 412 " V. Kerr, 375 " V. Lawrence, 159 " V. Lowber, .343 XXXVlll TABLE OF CASES. People V. Martin, 133 " V. Miiyor, 521 " V. Mitchell, 4S1, 482 " V. M()iT<;lI, '_>;{ " V. MoniH, 177, 300 " V. Mott, 137 " V. NiluH, S'JO " V. Tolicc J'.stice, 580 " V. Porter, 84 " V. Kcailroad (Jo., 162, 375 " V. Ik'ctor, &o.., 2(;3 " \. IhiJikle, 8, ()4 " V. Saratoga & lUnssolaorRail- roalo\v V. lUehardsou, 386 Perdue v. Cliinguacousy, 5^294, 370, 431 Perdue v. Ellis, 10, 300 lYn-kins v. Concord liailway Co., 404 Perriinau v. Steggall, 221) Pe;-rin Kailway Co., 378 Perry v. ()ttaw:i, 6 " V. Powell, 610 " V. Whitliy, 186, 536 Pestertielil v. Vickers, 267 Peterborough v. Burnhani, 50 V. Snuth, 332 Peters V. Iron Morriston Railroad Co., 2!)P Petersburg v. Metzker, i ')2 Peterson V. New York. .', i3 Petherl)ridge v. Ash, 58i, 582 Petheriek v. Sargent, 38!) Ptitteniberdass v. 'rhaekooseydass, 348 Pettigrew v. Kvansville, 370, 405 Petty ot al v Tooker, 5!> Philadelphia v. Piehl, 417 V. Flanigan, 208 V. (Hven, 159 Phili{)S V. Bury, 669 Phillips' Case, 58 Phiilipa V. Allen, 325, 333 " V. Eyre, 3 V. Hopwood, 504 Pliillips V. Meritt, 87 Piiillpott V. St. (xcorge's Hospital, 3 l'lii[ison V. Harvelt, 502 IMio'iiix/ille V. Phienix Iron, 410 Piekard v. Sniitli, 404 Pieniental v. San Francisco, 80, 263 Pierce v. 15artruni, 167, 312, 344 " V. Carpenter, 13 " V. Piehardson, 1.36, 137 Piorpoint v. Brewer, 5I(» Pigeon V. Bruce et al, 101 Pike V. Mi.ldleton, l.V.} Pilcher V. Staltoi-d, 499 I'ilkington v. ('ooke, 503 Pini V. Ontario 6, 273 Pindico, &c.. Tramway Co. v. Green- Avich, 544 Pijier V. Chappcll, 295, 668 Piiie and Dundas, In re, 210 Pittsburg V. (hier, 310 Planiv itoad ( 'o. v. Kaniagc, 397 " V. Itinenian, 397 "v. Thomas, 397 Piatt and Toronto, lie, 187, 188,478 I'iaxton et al v. Smith, 28 Player v. .lenkins, 342 Plumstead lioard of Works v. Ingolby et al, 610 Plunkett Township v. Crawford, 23 P<.le V. Pole, 307 Pond V. Negno et al, 166 Pool V. Bo.ston, 158, 390 }V)pe V. B;i(;kliouse, 52 " V. Whalley, 34() Pojilar Board of \V^orks v. Knight, 372 P(>j)]ien V. Holmes, 333 Port liowan High School and Wal- singham. Be, 270 Port Whitby, &c. Road Co. v. Whitby, 397 Portlane v. Bangor, 285 Portman v. Okeden, 247 Postmaster-( ieneral V. Bice, 142 Pound V. Plumstead Board of Works, 474 Pi)ussett V. Land)ton, Re, 256, 283 Pow V. BeeUner, 270 Powell V. Madison, 520 Powers V. Wood ( 'ounty, 25 Pratt V. Hillman, 360 " V. State, 13 Pray v. Nortiiern Liberties, 521 Prendergast v. Peru, 299 Presl)yteriau Church v. New York, 163; 321, 521 TABLE OF CASES. XXXIX President v. Tmlianapolis, 2oS V. Mvfi-s, 8 V. (>''Malluy, ISfi Preston V. Bacon, huS " V. (Jrcat Yannonth, 237 " and Maiiver.s, 171 Price V. IJailroad Vo., 80, '2Gc " V. .Scclcy, '_'()() •' V. 'riioiMji.siin, ,'578 Prindle v. Flctciior, 40,') Pringle v. Storniont, '2()0 V. McDnnalil, 158 Proctor V. Mauwarinu, 52 Proudfoot V. Busli, (i.")l Prousc V. < Jlt'nnv et al, 3nr> Providence v. < 'iai)}), 401, 403 Providence F^ank v. l>illings, 527 Prince v. Lewis, 345 " and Toronto, lie, 208, 2C9 Pugh V. Duiic of Leeds, 88 Pulaski Co. V. Lincoln, 234 Purdy V. Farley et al, 3!»!», 437, 439 Purnell v. WolverlianiptouNewWater Works Co., 502 Putnian v. i'ayno, 31() Ppn V. (Jreat Northern Piailway Co., 410 Queen V. Aslett, 504 (( V. Backhouse et al, 72 tt V. Bailitl's of Ii)s\vieii, 8 ti V. Barnwell, 111) a V. Barton, 245 W( V. Beiniett, 355 1 ( V. BirniinulKun "Water Works Co., i"il5 " V. Crunden, 330 " V. Currie, 2 " V. Davenport, l(i9 " V. Dayman, 588 " V. Deighton, 58, 543 " V. Derby, 582 '■ V. Derhyshire, 115 " V. Dodsworth, ( 1 " V. Dulsen, L57 " V. East London Water Works, 515 " V. Ivist Mark, 398 " V. Kllis, 71 " V. Ely, 245 " V. Exeter, .55 " ex rel Aelieson v. Donoghue, 7S " " Adamson v. Boyd, 46, 52. 53, {V2 " " Allemaing v. Zoegar, 04, 07, l(i3 " Armor v. Coste, ,''>2 " " Arnott V. Mardiant et ah ,-)0, 101, 111 " Beaty v. U'Doiudme et al', 91 Bender v. Preston, 49 " Blakelay V. Canavan, 47 " Bland t". Figu, .52 " Blasdell V. Bochester, 93, 157, 492 Boyes v Detlor, .50 " Bugg et al v. Boll, 92 " " "■ V. Smith, 52 " Bulger V. Smith et .al, 78 " Carroll v. Bcckwith et al, 58, 01, 93 '* " Chand)ers v. Attison, 48, 59, GO '•% xl TABLE OF GASES. Queeu ex rel Charles v. Lewis ct al, 58, 110 Clarke v. McMullen, HS " " Coleinaii v. U'Hare, 61, 91 " " Corbett v. Jull, 68, 71, . 74, [i'2 ■" " Coupland V. Webster, 78, 10!) " " Coyne v. Chisliolm, 75, 92 •• " Crc.zier v. Taylor, 50, no " " Davis \'. Carruthers, 52, 53 " " Davis ct al v. Wilson et al, 74, 75, 78,79, 110 «« " Dexter V. Gowan, 47, 53 " Dillon V. McNeil, 71, 110 " " Diinilas V. Niles, 75 " " I'Jvans V. Starratt, 80 '• " Featherstone v. McMo- nies, 109 " " Flanagan v. McMahon, 50 " " Flater v. Van Velsor, 48 " " Flennng v. Smith, 492 " " riuett v. (iauthier, 51 " V. Seniandie, 46, 48 " Ford V. Cottiugham, 48, 59, 60 " Forward v. McKay, 52, 53, 142 " " Forward v. Bartels, 55, 58 " " Forward v. Detlor, 53, 98 " " Freeman v. Jones, 109 " " (iardiner v. Perry, 71 " Gibbs et al v. Brani- ghau et al, 79, 110 " " Gurdiinier V. Perry et al, 71, 109 " Grason v. Bell, 92 " Hall V. Gravetal, 76 " Halsted V. Verris, 153 •* Hart V. Lindsay, 44, 84, 91 " Hartrey v. Dickey, 48 " Hawk V. Hall, 110 " Heonan v. Murry, 81, 126 " " flelliwellv. Stepheuaou, 75 Queen ex rel Hill v. Betts, 52 " Home V. Clark, 73 " Hume V. Lutz et al, 82 " Hyde V. Burnhart, 81, 126 " " Johnson v. Murney, 69 " " Johnson v. Price, 60 " Livshford V. Frizell, 46, 48, 522, 544, 546 " Laughton v. Baby, 48 " " Lawrence v. Woodruff, 98 " " Linton V. Jackson, 98 " " Loyall V. Ponton, 92 " Lutz V. Ho])kins, 69 " Lutz V. Williamson, 51, 99 " " Mack V. ManniTig, 53 " Mackley v. Coaks, 156 ". Mctcalfv. Smart, 48, 93 " Milligauv. Johnst(m, 60 " ]\litchell V. Adams, 92 " Mitchell v.llankinetal, 78 " Moor V. Miller, 51 " " Mc(!ouvrin v. Lawlor, 84, 91 " " Mc(Jregor v. Ker, 48, 62, 545, 546 " McKeon V. Hogg, 110 " •' MclAXUghlin v. Hicks et al, 103 " McLean v. Watson, 51, 93, 98 " " McManus v. Ferguson, 42, 81, 155 " McMulleu V. DeLisle, 52, 92 " *' McV'cau V. Gi-aham, 56, 58 " " Northwood V. Askin, 48 " Pailwell V. Stewart et al, 73 " Patterson V. Clarke, 51, 53 " Patterson v. Vance, 93 " Philbrick v. Smart, 48 " Piddington v. lliddell, 51, 52 " Pollard V. Prosser, 82 " " Prestonv. Preston, 65,67 ■' Kichmond v. Tegart, 60 " " Kitson V. Perry, 76 " " Hollo V. Beard, 51, 52, 110 •' " Rose V. Beach, 82 "^ TARLE OF CASES, xU r. it 10 Queen ex rcl Rosebush v. Parker, 92, 93 " " Sawers v. Stevenson, 50 " " Shaw V. Mackenzie, 47, (i'2, 92 •' Stock V. Davis, 48, 53, 59 557 " Swan'v. Kowat, 109 " Tayh)r v. C'a'sar, 55 " Tulfer V. Allan, 49, 93 " Tilt V. Cheyue, 47 Tinning v. Kdgar, 52 " Walker V. Hall, 78, 110 " Walker v. Mitchell, 75, 7t>, 110, 493 " AVliite V. Rooch, 91, 92, 93 " V. Farrcll, 330 " V. Faulkner, 386 " V. Fisher, 490 " V. Francis, 50, 51, 53 " V. Franklin, 51 " V. (! ami lie, 584 " V. (ias Co., 374 " V. Glamorganshire, 245, 398, 5G4 " V. Glossop, 24G " V. (Ihmcestershire, 84, 416 " V. (lotlnianclu.ster, 372 " V. (;<.r(l()n, 398 " V. (iorc, 157 " V. Groat Western Railway Co., 394, 395, 437 " V. Greene, 157 " V. Gregory, 543 " V. Guardians of St. Ivcb' Union, 55 " V. Haliliman.l, 250, 416 " V. Hall, 395 " V. Hammond, 543 " V. Harrald. 54 " V. Hawkius, 249 " V. Havms, 352 " V. Hereford, 591 " V. Hiorus 149 " V. Hogi^r.rt, 386 " V. H.. > es, 330 " V. Hoi , 400 '• V. Horns !. , 103 " V. Hulmo, 124, 125 " V. Humphrey, 153 " V. Hungerfo'rd, 157 " V. Hunt, 394 •' V. Hyde, '24{y " V. Iniiabitauta of Denton, 503 " V. Jackson, 248 Queen V. V. V. V. V. V. V. V. y. V. V. Jay, 366 Juhnscm, 246 Justices of Buckingham- shire, 5S2 Justices of Cheshire, 574 Justices of Denbighshire, 582 Justices of Essex, 582 Justices of Hantingdon- shir 581 V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. Justices of Kent, 581 Justices of Lincolnshire, 581 Justices of Middlesex, 574 Justices of Newcastle-upon- Tyne, 582 Justices of North Riding of Yorkshire, 574. 582 Justices of < >xfordshire, 582 Justices of Salop, 581 Justices of Surrey, 581 Kennett, 327 Kew ct al, 409 Kinglake et al, 125 Kitchener, 400 Lancashire, 272 Lane, 84 Ledgard, 77 Leeds, 77, 83, 110 Leominster, 574 Levecfiue, 285, 328 Levi, 589 Lichlield, 1 10, 239 Light, 2t)7 Lincombe, 353 Lington (Jas Co., 323 Lister, 35(> Local Government Board, 25, 555 London and North Westeru Railway Co., 547 Lords (if Treasury, 564 Lought((n, 35.'« Louth, 397, 413, 415 Mallow I'nion, 3 Mason, 387 Mawgan, 503 May, 156 Maybury, 353 Mavor of I'.xetcr, 572 Mayor of Harwich, 564,582 Mayor, «&c., of Lichfield, 564 Mayor of Liverpool, 526 Mavor, &c., of Newbury, 564 xlii TABLE OF CASES. Queen v. Ma3'or of Norwicli, HGi V. Mayor of Ol.lliaiii, 521 V. Mayoi-, &e., of Sandwich, V. IMeriouothsliire, 245 V. Meyers, ;{!)2 v. Middlesex, 593 V. Morris, 385 V. Morton et al, 84, 242 V. Munro, 2!»7, 328 V. Mutters, 354 V. MeCanii. 522 V. M'Cregor, 331 V. Neatli, 28(5 V. Newl.old, 411 V. Oldham, 50 V. Orehard. 330 V. Osier, 1G3, 187, 251, ,371 V. Overseers of Xeath, 515 V. Owens, (!4 V. Oxford and "Whitney Turn- ](ike Iloads, 410 V. I'ageL, 353 V. I'araniore, 8 V. Paris, 397 V. Peto, 515 V. Petrie, 3!»S V. Perth, 22(5, 414, 415, 430 V. Phillii.s, 430, 437 V. Plunkett, 3 ()i)aly, .^7") Otoe Co., 2m S])earinaii, 23,518,519 V. State, 518 " V. Wright, 518 Haines v. The Credit Harljour Coiu- paiiv, ~W Raleigh v. Sorrell, .S25, .S44 Rarasay v. >'onia.liell, ;{7.'5 Ramsay et al v. \\'estern District, Ranisden, Re, 25<> Itaiidell V. 'rriiiuii, lLandol])h v. R-raintree, 23 ' Rankin v. Creat Western Railway Co., 305 iias trick v. Creat Western Railway Co., 407 Ratld.urn v. Acker, .304, 476 Rawdon V. ^^'al•ll et al, 145 Rawling v. AVood, 229 ivawlius V. Ellis, 259 Rav V. Manchester, 404 Raymond v. Lowell, Hr,:,, 402, 410 RayiK's et ux v. Cruwder et ux, 039, 641) Road V. Edwards, 31 G, 335 Reed v. Belfast, 409 Reeves v. Wood Co., 248, 520 Reeves v. Toronto, 5, 3(59 Regents of University v. Williams, 81, 85 Reid V. Hamilton, 4.S0 " V. N(n-thlield, 404, 405, 408 ReifF V. Connor, Ici; Reilly v. I'iiila.lelphia, 472, 473, 475. 520 Renwick v. New York Central Rail- road Co., 408 Reoch V. Newark, 473 Resiiuhliea V. Ihiguct, 377 '' V. Sii.ukhawk, 315 Restall V. London and South Western Railway Co., ."iOS Reynolds v. Raldwin, 131 " V. Connnissionera, &c., 128 V. < Kearny, 299 V. Slircveiiort, 208, 432 V. Toronto, 343 Rhodes v. Cincinnati, 432 Ricardo v. Maidenhead Roard of Health, 590 Rice V. lM)stir, 36 " V. Keokuk, 209 " V. Montpclier, 401 Richards v. iMiticld. 402 Iticiiardson v. Royalton and Wood- .stock Turnpike Co., 417 Puchet V. Metropcditan Railway Co., 469 Ricldand County V. Lawrence County, 23 Rieliiuond v. Daniel, 519 Riddle V. Proprietors of Locks and Canals on the Mtni'imac, 401 Ridley v. Land), 365 Ridout et al v Ketchum, 644 " V. <»rr, 87 Ridsdale and l'>rush, Tn re, 605 Riggs V. .lohnson, 252 Riley V. iiochcster, 16 Ifingland V. Toronto, .364, 401, 403, 404 Itisley V. St. Louis, 304, 476, 477 Rol)l)ins V. < "liicago, 410 Roberts v. ( 'liicago, 432 " V. Humid V, 590 V. Humphries, .386 " V. Ogle, 166, 2! 19, 351 " V. Williams, 543 Rohcrtson v. \Vellington, 650, 680 Rohin Street, Re, 13.3 Robinson v. llmerson. 503 " V. Oroscourt, 168 " V. Shiehls, 614 V. St. Louis, 3."i7 v. Stratford, .383 Rochester v. I'ettinger, 345 Rochester White Lead (.'o. v. Roches- ter, 369 Rodgcrs V. McXanuira, 264 i;ne;'h V Newark, 475 Rogers, Ex jiartc, 131 Rogers V. Burlington, 194 V. Jones, 1.37, 166 Rolleston v. Cope, 47 Roman Catholic Church v. Baltimore, 163 T\onie V. Cabot, 335 Rome Railroad Co. v. Rome. 518 Rook V. Mayor of Liverpool, 546 Rose V. Stormont, 415 Rosebaugli v. Salloii, 325, 333 Pif)sewell V. Prior, 352 Ross et al v. Farewell ct al, 33 xliv TABLE OP OASES. llosa V. Fiddcn, ',\]{) Ross ot al V. .Inliiisdn ot al, 87 lloss V. Stiatliy, f.l8 " V. ^'1 Rupert V. I'altiinore, 473 Russell V. i\ew ^"^rk, 3(il, 3(>2 " V. Now York Central Railroad Co., 412 V. Shenton, 371 Rust V. Low, 317 Ryan v. Now York Central Railway Co., 31!) Ryeknuin v. Van Vottcnburg, G19, G4G ►Sakfoko v. Drew, 410 Salem v. Fitslier and MeOirr, 315 " Onlf Itailwav ( 'o., Hx parte, 480 " V. ItailroadCo., 351 SalfordOase, 113 Sal tors' Co. v. .lay, 504 Saltonstall v. ISanker, 351 Sams V. Toronto, Re, 7, 73, 184, 299, 440 Sanford v. Agusta, 409 Santo V. State, 299 Santo et al v. State of Iowa, 36 Sargant v. Toronto, (il5 Sargeant v. Allen, 334 Sarnia v. (ireat Western Railway Co., 390, 398 Savage v. Bangor, 403 Savannah V. Ciiarlton, 320 Savannah v. Hartridgo, 101, 516, 52G, 527 Scadding V. Lorant, 133 Soammon v. Chicago, 477 " V. Seannuon, 136 Scarlett an.l York, In re, ISG, 187, 428 Scivrniug v. Cryers, 296 Sccally v. McCallum, 234 Scliaei'er et ux v. Liindv, 645 Sehallerv. Caduallader, 2.">3 Schools v. Toronto, lie, 270 School District v. Atherton, 04, 136 " Trustees v. Calt, 209 " " Mount Forest v. Mt. Forest, Kc, 270 v. I'ort Hope, lie, 313 v. Sandwich, Ke, 256, 313 V. Toront ., Re, 313 " " of Sandwich v. Sand- wich, In re, 185 ''' ' "vikill Navigation Co. v. Mc- .' loiigh, 318 \a ^e V. Dowell, 395 ,ji,oiv, V. Burgess and llathurst School Trustees, 208 " V. Dickson, 87 ■ V. 1 • 354 •' V. Dale, 320 " V. ilerv.;/. Lie, 185, 332 " V. Manchester, 358 " V. reterl)orough, lie, 207, 332 Scovol V. Cleveland, 478 Scragg v. London, 522, 504, 506, 567, 578' Scu.lder V. Trenton, &c.. Falls Co., 303 Scale V. Mitchell, 503 Seaman's Hospital v. Liverpool, 246, 309 Sears v. Dennis, 406 " V. DiUingham, 247 Seeker v. I'axton, In re, ()28, G30 Seeord v. ( J reat \\'estern Railway Co. , 410 " V. Lincoln, 186, 187, 198, 536 Secretary of War v. Toronto, 522,618 Seiplo v. lOlizabeth, 148 Sells V. St. Thomas, 194, 190, 197 Sellwood V. Mount, 245 Seri'ot V. Omaha, 405 Sessions V. Newp(U-t, 401, 410 Seybert v. Pittsburg, 194 Shallcross v. Jeffersonville, 170 Shatlher v. St. Louis, 303, 304 Sharp V. Munnera, 135, 328, 330, 385, 503 Sharp V. Rowell, 3(53 " V. Speir, 321 Sharjiless v. Thiladclphia, 480 Shattuck V. Woods, 158 Shaw V. Kenuedv, 333 Shaw.v. Shaw, 522, 564, 565, 566, 567 Shea v. Lowell, 403 i H TABLE OF CASKS. xlv Shelliclil Water ^V()rk8 Co. v. Ben- nett, r)4() Sh.n Shrond v. I'hii.idelphia, 308 Sikes V. liatlield, 1.18 Sill V. Cornin.LC, 100 Simcoe v. Norfolk, Ke, r)94, 595 Simoj' V. Mai-whall, 47 Simmons v. Caiinlen, 432 " V. (Janlner, 477 Sinima v. Deni.soii, 329 Simons v. i'atchett, 8 Simpson v. Lincoln, 175 V. Iteady, 53, 503 " V. Sontli Stali'ord.sliire Water Works Co., 304 " V. Ycend, 117 Sims V. Kstatc Company, 300 Singleton V. Ivistern Counties Railway Co., 407 Sixth Avenue Railroad Co. v. Kerr, 375 Skinyiey v. Surridgc, 245 Skinner v. Usher, 20t Slater and Wells, In re, 297, 670, 681 " V. Wood, 135 Slee V. pjloiim, 04 SligoCase, 11,3, 114 Slippery, 'rottenham & FT. .1. Railway Co., ;ioo Smalley v. Blaekburu Railway Co., 305 Smith V. Acnriam Canal Co., 318 " V. Bell, 3 " etalv. Blakey, 052,050 " Smith V. Comniouw* alth, 158, l.-)'.f " County, 159 " V. Daiiey, 126, 131 " and Rupliemla, In re, 425 Smith V. Fletcher, 319 " V. (Jates, 334 " V. Huntington, 332 " V. i-aw, !:{3 " V. Lo\v(41, 40S " V. Madison, 9, .329 " V. Metropolitan (ias Co., 323 " V. Milwaidiee, 405, 473 " V. .Moure, 390 " V. .Morse 194 " V. I'rescott and Russell, 289 " V. Booney, 1.S8 " V. Sibson", 274 " V. Shaw, 545, 010, 017, 020 " V. Simpson, 3<)1 • " V. Smith, I5,S, 407 " V. State, 412 " V. Toronto, In ro, 191, 280 " V. Washington, 370 " V. Wedderhnrne, 182 '• V. Wendell, 402, 404 " V. Wiiitle, 101 Smyth, I'lx ])arte, 591 Snellv. I'.ellevine.Re, I, 164, 168, 184, 18S, 240, 248, 325, 345, 347, 348, 349, :i."iO Snider v. Frontenac, 633 Snow V. Aarhawk v. Salem, 402, 403 Spauhling v. Lowell, 102, 343 Siieak y. Powell, 520 Springer v. Bowdenham, 404, 406 Springlie]ank v. ISraekeiiridgc, 30, 288 " V. Madi.son, 51 (i V. Orleans Nav. Co., 102 " of Indiana v. Madison, 527 St. Catharines v. (Janlner, 397 St. Claire v. Davenport, 345 Stedman v. AVasley, 470 Stein v. Burden, 335 Stephenson v. Higginsoii, 2 Stetson V. Kempton, 102 Stevens v. Chicago, 171 Stewart v. Hoard I'oliee, 304 " V. Commonwealth, 377 Stewart's Estate, In re, 308 Stewart v. State, 04 " V. Supervis(n'3 Tolk Co., 480 V. Taixgart, (520, 02 1 , 024, 028, 0;}3, 640, 045, 050 " V. Wootlstock and Huron ra)adCo.,403 St. George's Church v. County of Crey et al, 294, 413, 419 St. (.ieorge's Vestry v. Sparrow, 360 Stiekney v. Maidstone, 406 Stile V. "Walls, 249 Stilk V. Myriek, 389 Stinson v. (iardiner, 402 St. John V. New York, 341, 342, 364 St. Louis V. Allen, 25 " V. Alexander, 481 V. Boffinger, 103, 336 s s TABLK OF CASES. xlvil l)f ?G4 St. LouiH V. Ficnty, 28r), .330 V. (."lumunn, 47'-', 478 " V. Ferry Co., .^)'J0 " V. (Jrovo, 'J(;4 \. .r.u'kson, :54'J, 345 V. MfCov, ;m'} V. Wfhh'cr, Hl'2, M:> •St. liouis" lliispital v. Williams, 8 " I'ulilic Schools V. St. Louis, 5'_'1 St. Luke's V. Luwis, 371 St. Mary's, Xi;\viiigton, v. Jacob's, ,3'J9 Stiiekiiig V. Statt;, 83 Stoddard v. !l, 351 Union riailroail (.'oniiiany v. Cani- liriilfj;i', .' Vcrrior v. Sandwich, 85 Vestry of IJunnondsoy v. Johnson, .%7 "' St. Pancras'v. 15attersl)y,400 Vienna v. Marr, 007 Vincent v. iSantucket, 150, 102 Vintners' Company v. I'assy, 134, 15(i, 200 N'rooman v. Shuert, 87 Wadk v. Dowling, 230 " V. I'vichman, 25 " V. Thompson ct al, 547 Wadleigh v. (iihuan, 350, 377 Wadmore v. Uoar, 514 Wainwright, l\e, 081 Waitc V. North Eastern Railway Co. , 407 Waldraven v. Memphis, 159 Waldo V. Wallace, 135, 503 ■ Waldon V. Kensselaer and Saratoga Kailroad Co., 208 Walker, In re, 300 " V. Milne, 516 Wallace v. St. Jose, 102, 208, 209 " V. New York, 355 " V, " V. Warden Ware v. Warinel Warren v. " q- V. V. Wallingford Case, 114 Waller v. .Manchester, 343 AValsli V. Southworth et :il, 274 Walton ot al v. Jarvis, 010 NV'amlsworth and Putney (ias I0 Wlpt V. Polk Curyi)ort, 162 Williams et al. Ex parte, 81 " V. Agnsta, 356 " V. Anthony Street, 3W " V. Burgess, 87 V. Carwardiuc, 390 Williams v. Clinton, 402, 407 " V. Detroit, 477 V. Ia:u. 87 V. Morlaiid, 343 •• V. I'ritchanl, 502 V. School District, 521 V. Taylor, 641 Willson V. Blackbird Creek Marsh Co., 303 Wilson et al v. Cameron, 237 v. Charleston, 408 " v. (i roves, 433 " V. Halifax, 4(»3 " V. Huron and l?ruce, 0')2 " V. Huron and Bruce, Bmk of Montreal (iarnishees, 659 " V. Huron imd Bruce, Mae- donald (Jarnishee, 659 " V. Jefferson, 416 *' V. King, 22!> " V. Middlesex, 192 " V. New Vork, 369, 4.32 " v. I'ort Hope, 223 " V. Weller, 561 Wilton v. Falmouth, 55 Wiltshire v. Bakei', 340 V. WiUet, 346 Winch V. Conservators of the Thames, 310 Winekler v. Great Western Railway Co., 407 Windham v. Portland, 23, 24 Windsor Ca.se, 113, 117, 119 Wingato v. Enniskilleu Oil Kefininj/ Co., 6 Winn V. Ijowell, •H)6 Winsliip V. Knfield, 401, 404, 407,410 Winsor v. (^>ueeii, 247 Winter v. Keown, 436, 437, 449 Wiswallv. Hall, 311 Witheiiey v. liegent's Clanal Co., 407 Woelpjjcr V. Pliila, 4:J() " V. Groy, 207 " V. IVarson, 315 Wrightup V. CJreuu.icrc, 503 \Vyi:..(.p V. Sociuty, 20!) Wyiiue V. RonalJson, 674 XiQnEs V. Bujac, 378 Yai.r v. Hampden and Berkshire Tuniyiki) Co., 405 Yarmouth v. Orriom, .^.'lO Varwond, In r»-, 537, M2 Yfttea V. Milwaukee, 299, 312, 335, .351 " V. Palmer, 590 " V. Whyte, 410 Yeatman v. Orau.lell, 520 Yokham v. Hall, '139 York V. DaviB, 317 " V. Koracht, .389 " Building So"i fy v. Maekenzie, 25r. Young V. (iye, 2.30 " V. Walter, 229 Zanesville v. Richards, 519 Zylatra v. Charlestou, 503, 595 KUon, LIST OF ACTS PUBLISHED IN THIS VOLUME, CUKONOLOCilCALLY AKKANUED. CONSOLIDATED STATUTES UPPER CANADA.. C!j{ArTER 56. " " CANADA Chapter 85. " " " Chapter 86. STATUTES 29 VICTORIA Chapter 40. STATUTES 32 VICTORIA Chapter .'^1 . Chapter 33. " " Chapter 36. " •' Chapter 41 . STATUTES 33 VICTORIA Chapter 23 . " " Chapter 27. STATUTES 34 VICTORIA Chapter 28. STATUTES 36 VICTORIA Chapter 39. " " Chapter 43. " " Chapter 46. " " Chapter 48. STATUTES 37 VICTORIA Cha)'ter 3. Chapter 4 . Chapter 15. Chapter 16. '• " Chaiter 19. . " " Chapter 20. Chapter 25. " " Chapter 31. " " Chapter 32. 713 712 716 718 721 726 513 721 726 G87 689 735 748 717 I 756 758 734 505 690 763 764 769 770 CALENDAR JANUARY. Day. 1 — Taxes or rates considered as iiuposod or levied from this day. (Sec. 18, Assessment Aet.) Sejiaration of junior and senior Counties to take ciTect on. (Sec. -4;], Muni- cipal Institutions Act.) 15— Last day for Treasurers of ]\luniei])alities indebted under the Municipal Loan Fund Acts to make returns to the I'rovinciul Treasurer of tlie aniviunt of taxable property, debts and liabilities. (Sec. '273, Municipal Act.) 30— Name and address of non-residents to l)e sent to f'lerk befon; this day. 31 — Last day for the Treasurers of all Councils to return to the ^ro^-inciaI Treasurer an account t>f the debts of the several Corporations. (See. 274, Municijial Act.) Mend)ers of Councils (other than (.'ounty Councils) are elected on tlie tirst Monday in January. (Sec. H't, Municipal Act.) Members of Councils (except Cfuinty Councils) iiold theii- ihst meeting at ] I o'clock a. m. on tlie thii'd .Monday in January, or on some day there- after. (Sec. 1(57, .Municipal Act.) Mend)ers of County Councils hold their first meetin^ at 2 o'clock j). m., or some h(uir thereafter, on the fourth Tuesday in Janmiry, or on soini' day thereafter. (/A.) County Treasurers to prepare and submit to County Councils, at their tirst meeting in January, a report, certilied by the Auditors, of tiie state of the Non-resiiltnt Land l''und. (>iee. 1()8, Assessment Aet.) I'EBllUAUY. llAV. 1 — Last day for Clerk to deliver Assessor names of i)artios re([uiring names to be entered on the roll, and lands owned Ijv tlu:ia. (See. 0, Assessme.it Act. ) Last day for Railway Companies to transmit to Clerks of Municiiialities statements of railway property. (See. 33, Assessment Aet.) Last day for County Treasurers to fuvnisli to Clerks of Local Municipali- ties list of lands in arrear for tliree 3-ears. (Sec. 1 H), Assessment Aet.) Last day for Collector tf last year to return roll. (Sec. I(l3, Assessment Act.) 15 — Last day for Assessors to begin to make their rolls. (37 \'ic. cap. 11), see. H.) The Commissioner of Crown Lands is re(iuircd in tlie month of February to transmit to ( 'oiinty Treasurers lists of granted and leased lauds. (Sec. 108, Assessment Aet. ) liv CALENDAR, Councils of Townsliips, Towns and Incorporated Villages, and Police Com- missioners in Cities, to pass By-laws as to li(iU()r, &c., during this month. . .Such I>y-laws not to be repealed for a year from 1st March. (37 Vic. cap. 32, sec. 8.) MARCH. Day. 1 — Licenses to be dated on 1st. (37 Vic. cap. 32, sec. 5.) 8 — Last day for Local Clerks to return to County Clerks the particulars men- tioned in sec. 190 of the Municipal Act. 15 — Last day for issuing of tavern and shop licenses. (37 Vic. cap. 32, sec. 5.) 31 — Last day for Clerks to transmit to Provincial Treasurer the statement required by sees. 191 and 192 of the Municipal Act. APRIL. I>AV. 1 — Clerks of Municipalities to make return to Provincial Secretary required by Municipal Act, sees. 190, 191, 192. 8 — Last day for Local Treasurers to furnish County Treasurers with the state- ment of arrears of taxes and school rates on non-resident lands after- wards occujiied. (Sec. 1 If), Assessment Act.) 30 — Lust day for completion of rolls by Assessors. (Sec. 8 of 37 Vic. cap. 19, amending sec. 49, Assessment Act.) Last day for Clerks to examine rolls for occupation of lauds returned as non-resident. (Sec. I l.S of Assessment Act. ) Last day in year next following assessment for non-residents to petition complaining of excessive valuation. J.IAY. Day. 1 — Last day for Assessors to deliver their rolls completed to Clerks of Muni- cipalities. (See. 8 of !57 \'ic. cap. 19.) Last day for County Clerks to furnish County Treasurers with lists of non- resident lands that have l)ecome occupied or incorrectly described. (Sec. 113 of Assessment Act.) County Treasure's to complete and balance their books, charging lands with arrears of taxes. (Sec. 122 of Assessment Act.) Notice of appeal to 1 j given within fourteen days after the 1st. JULY. Dav. 1 — Last day for revision of rolls l>y Courts of Revision. (Sec. 11 of 37 Vic. ca]). 19.) Last day for revision of rolls by County Ccmncils, with a view to equaliza- tion. (Sec. 71 of Assessment Act.) La^-t day for County Treasurers to return to Local Clerks an account of arrears due in ri'spoct of non-resident Lauds which have become occupied. (Sec. 113 of Assessment Act.) — Last day for service of notice of appeal from Court of Revision to Countj' .ludgo. (Sec. l()of 37 Vic. ca]). 19.) 31 — Last day for determination of appeals by County Judge. (Sub-sec. C of sec IGof 37 Vic. cap. 19.) CALENDAR. Iv Day. AUGUST. 1 — Last day for decision by County Judge in complaint of Municipality cum- Itliiiiiiug of fi[ualiziiti()n. (i^iin-scc. 8 (if koc. 71 of AssfHSiiicnt Act.) 14 — Last day for County Clerks to notify to Local ilunicipalitics tlio aniounta directed to be levied for County purposes. (Sec. 77 of Assessment Act.) SEPTEMBER. Day. 1 — Last day for jury purposes for Assessors to return their rolls. (Sec. 180 of Assessment Act. ) OCTOBER. Day. 1 — Last day for delivery by Clerks to Collectors of Collectors' rolls, unless some other day be prescribed by By-law of the Local Municipality. (Sec. 91, Assessment Act.) 30 — Last day for passing Bydaw fixing day for holding iirst election in a junioi Township. (Sec. SS, Municipal Act.) NOVEMBER. Day. 1 — Last day for transmission by Local Clerks to County Treasurer of copy of non-resident rolls. (Sec. 'J'2, Assessment Act. ) 9 — Last day for Collectors to demand taxes found due under section 123 of Assessment Act. Day. 1- 11 DECEMBER. -Last day for Council to hear and determine api^eals under section 123 Assessment Act. Last day for Clerks to transmit to Provincial Treasurer a return of numbei of resitleut ratepayers appearing on the assessment rolls. (Sec. 189 ot Municipal Act. ) 14 — Last day for Collectors to return their rolls, unless later time appointed by Council. (Sec. 103, Assessment Act. ) Last day for payment of taxes by voters in (cities, Towns. Incorporated Villages and Townships passing By-laws for the purpose. (See. 109, Municipal Act. ) 15 — Collectors, in case last mentioned, to return to Trea^nirer names of all per sous who have not paid tasea on or before 14th December. (See. 197. Municipal Act.) 20 — Treasurers in case last mentioned to transmit to Clerks the names last mentioned. (lb.) Kominatitin of candidates for the oliice of Mayor in Cities, and for Mayor. Reeve and Deputy Reeves in Towns, to take place on the last Monday in i)eceud)er, at 10 a. m. (Sec. 102, Municipal Act.) Nouunation of caiulidates for the olUces of y\ldermen in (Jitie.s, ( 'ouneilhjr!* in Towns, and of lieeves, Deputy Reeves and Councillors in Townships niul Incorporated Villages, to take place at noon on the last Monday in December. (Sec. 104, A\Iuuicipal Act ; 37 Vie. cap. Ki, sec. 3.) And in Police Villages, for nomination of Trustees, on same day. (Sec. 487, Municipal Act. ) C IN T E KTlS, Preface to Thinl Edition ^' Preface to Sw.nv.l Edition vii I'roface to First Edition xi Table of Cases xv Iji.st of Acts published in this Volume lii Calendar liii An Act respecting Municipal Institutions in the Province of Ontario .... I An Act to Amend an Act respecting Municipal Institutions in the Province of Ontario 505 An Act to Amend and Consolidate the Law respecting the Assessment of Property in the Province of Ontario 518 An Act to Amend Chapter Thirty-six of the Statutes of Ontario, entitled "An Act to Amend and Consolidate the Law respecting the Assess- ment of Property in the Province of Ontario," passed in the thirty- second year of the reign of her Majesty 087 An Act to Amend the Assessment Act of Ontario, passed in the thirty- second year of the reign of her Majesty, chaptered thirty-six 68!> An Act to Amend the Assessment I-aw 090 Rules and Forms , 690 Appendix 712 Index 793 Additions and Corrections 873 THE MUNICIPAL MANUAL. AN ACT rp:specting municipal institutions in THE PROVINCE OF ONTARIO (a). 30 V. c. 48. [Assented to 29th Marcli, 187.'!.] In order to amend and consolidate the Acts respecting Municipal Institutions ; (6) (a) It has been objected to Statutes, both Imperial and Colonial, that their sections are generally involved in a number of provisos, and lilled Avith a redundancy of words. For the lirst, tlie remedy is distinctness of siibjects, short clauses, short sentences, and the avoid- ance of tautology. For the second, the use of the present instead of the future tense, as being a more familiar style of writing, and pre- venting the frequent use of the word "shall" as a mere auxiliary, expressing the future at one time and obligation or jjcnal consequences at another. (See Cooele on Legislative Expression, 4'2; see also per Wilson, J., in Siiell and Bdkville, 30 U. C. Q. B. 81-90. ) The framers of this Act, alive to the nature of such objections, have evidently sought to supply the appropriate remedies. The use of the present instead of the future tense throughout the Act, attests the anxiety of the framers to avoid obscurity. The jiropriety of this mode of expression depends upon the principle, that in a statute as at common law, the law is at all times supposed to be speaking. The use of the future tense rests upon the principle that a statute speaks at and from the time that it becomes a law, and that so speaking, as it were pros- pectively, its provisions must be ex])rcssed in the future tense. If it be a correct rule that a law speaks at all times as ever oiierative, the correctness of framing it in the present tense cannot be denied, and this, whether the law is to be applieil to present or passing, or to past, or to future events. The effect of reading a statute thus framed is, that the Legislature is regarded as always present — pronouncing tlie law so long as the law exists — the consecpience of which is, that the law meets every event to which it is applicable, as the event arises. (See 31 Vic. cap. 1, s. 6, sub. ], Out.) (b) This Act is a consolidation of the 29 & 30 Vic. cap. 51, and of several Acts subsequently passed to amend it. References are generally made at the end of each section to the part of the original Act or Acts of which the section is a copy or consolidation. The language of the original Act is, as nearly as possible, in all cases retained. This is important; for many clauses of the former Acts THE MUNICIPAL MANUAL. [b. 1. I Interpreta- tion of words. Her Majesty, by and with tlio advice and consent of thf Leffislative Assembly of the Province of Ontario, enacts as follows : — INTERPRETATION. 1. Unless otherwise declared or indicated by the context, whenever any of the following words occur in this Act, the meanings hereinafter expressed attach to the same (c) namely : have l>een before the courts, and received a judicial interpretation. Where certain words in an Act of Parliament have received a judicial interpretation in one of the Suiwrior Courts, and the Legislature has repeated the words without alteration in a auhsetiucnt statute, the Legislature must be taken to have used them according to the meaning which a court of competent jurisdiction has given to them. (Per Sir W. M. James, L. J., in Ex parte Vamphdl in re Vathrart, Tj. R. 5 C!h, Ap. 706; see also Rackmahoiic v. Lulloobhoi/, 8 Moore, P. C 4.) The marginal note to the section of a statute, in the copy printed hy the Queen's Printer, forms no part of the statute itself, and is not bind- ing as an explanation or construction of the statute. {Olai/olt v. St. Gcony.s //us- pital, G H. L. (). 338.) Where tlie intention of the Legislature can be collecteil from the Act itself, words may he m')di(ied, altered or supplied, so as to obviate any repugnancy to or inconsistency with such intention. (Quin v. (J'Kecft'c, 10 Ir. C. L. R. 3!)3; see also Cliarlfsworlk v. Ward, 31 U. C. Q. B. !)4.) It is the most natural and genuine exposition of an Act to construe one part by another. (The Queen v. Mallow Union, 12 Ir. C. L. R. 3').) The general words of a statute are not to be so construed as to alter the previous ])olicy of the law, unless no sense or meaning can be put on the words consis- tently witii the intention of preserving the existing policy untouched. (Mhv't V, Leinan, 20 Beav. 2(59 ; see also (f Flaherty v. McDowell, () H. L. Cas. 142.) In coustruing Acts which infringe on the common law, tlie state of the law before the passing of the Act must be ascertained, to determine how far it is necessary to alter tlie law in order to carry out the object of the Act. (Swanton v. Goold et al, 9 Ir. C. L. R. 234. ) The general law of the country is not to be altered or controlled by partial legislation, made without any special reference to it. (Denton v. Lord Manners, 4 Jur. N. S. 151, afKrmed on appeal, 4 Jiir. N. S. 724; see i\\so Attorneii-Generalv. Earl Poio'ih, 1 Kay, 180.) Difficulties sometimes arise, owing to a conflict between general and particular Acts of Parliament. If the particular Act gives in itself a complete rule on the subject in hand, the expression of that rule would undoubtedly amount to an exception of the subject matter of the rule, not of the general Act. (Per Lord Westbury, in A> partt. St. Sepuh'hre^s, 33 L. J. Ch. 372 ; see also London, Chatham and Dover Railway Company v. Board of Works of Wandmoorth District, L. R. 8 C. P. 185.) In dealing with a statute which proposes merely tle, a municipal system in England and Wales. Still there were divisions of people into Parishes and Hundreds where there was no incorporation. In some cases the people of the Parishes, though not incorporated, were held liable to persons sustaining injury from acts of misfeasance. In some respects the liability of Corporations, continued or created by thia Act, for neglect of duty is identical with s, al In h, re -■l'?'' as ^-^ ;i^ ':'■ ?? im .,^'ft=i: 18, tu S. 2.] MUNICIPAL ORGAN'IZATIOX. be a Body Corporate, with the municipal boundaries of every the lia1)ility of parishes in England. (Sue the decisions of Wilson, J., in Willinijfon v. WlLion, 14 IT. C. C I'. .'{Of), and in llarrdht v. Siiiiroe and Ontario, It) U. C. C!. I*. 50-"),'], and tin; language of C'lianofUor Vaiikoughnut in the last named case in Appoal, 18 IJ. C. (J. 1*. IH; see also the decision of the (Jcjniinon I'leas in Tim (Jiaxn v. Yur/ccilk', 22 U. C. ('. 1'. 4:17, 440.) "A Corporation is an artilicial being — invisible, intangilde, and existing only in contemplation of law. Being the mere creature of law, it possesses only those j)ropertics which the ciiarter of its creation confers upon it, either expressly or as incidental to its very exis- tence. These are such as are supposed best calculated to ell'ect the object for which it was created. Among tlie mo.st imj)ortant are immortality (in the legal sense, that it nuiy be made cajtablc of inde- finite duration) and, if the ex2)ression may be allowed, individuality — pro])erties by which a perpetual suceossion of many peisons are consiilereil the same, and may act as a single individual. They enable a L'orjioration to manage its own atl'airs, aiul to hold property witlxuit the perplexing intricacies, tlie hazard(uis and eu establislied. 2i)-30 V. c. 51, s. 1. U. 0. Q. B. 502.) To supjxirt an ac'tii)n against a Municipal (Corpo- ration of the nature; suyguHtcd, altliough it is not uecusHary to show any autiiority >iii(U;r seal to tlio person or p(;rsonH wiio, under tlie siip- jtosoil instruetions of tlie Corporation, ai^tually did the wrongful act, Honietiiing nnist l»e aliown to connect tiie Corporation as a hody with the iloing of tile act. ( b'arvdl v. London, I'J U. C. (). B. •.W^. ) 'if tlio Corj>oration had a riglit t(t do thatwhicii tiiey are eiiargelead in general terms that they did the act eomj)lained of as they lawi'uUy might for reasons assigned. (brown V. Snrnia, 11 IJ. C. Q. B. 87.) The siToml power is to "contract and he contracted with." It is a principle applicable to all Corporations, that they must contract nnder seal. To this principle there are some exce])tions. One of some moment has been created with regard to Municipal Corjiora- tions. It is that such a Corporation is liable to be sued in an action of debt on simple contract for the price of goods furnished, or labour done at their rerpiest and accepted by them. (Fillcrhi v. Jiiisscll and Camhridrjc, 14 IJ. C'. (.)„ H. -i'.V.i.) Though in such a case there be no contract under seal, the law imjilies an undertaking by a Corporation to jiay for laboin- and materials employed in their service, and of which tliey have accepted and arc enjoying the l)eneiit, provided the i)ur]K>se for which the laliour and materials have been applied is one clearly within the legitiniiito object of their charter. (Barl/rtt v. AmlifrMhiirifh, 14 U. C!. (.),. B. 152 ; Fcttcrloi v. Ru-^Hdl and C«ni.l)vldr done, but is con- lined to work in fact done aiul accepted. (McLean v. lirantford, 16 U. C. Q. B. 347 ; Winijate v. The Ennl^kithn Oil llcfinini] t'om]ieav. 314, 31.5 ; Attoriwti-C'mcral v. Leicester, 9 Beav. 040. See further, notes to preceding section. (/) The proper corporate name of a Municipal Corporation ought to be used on all occasions and in all jilaces. But it has been decided that a By-hiw of a Municipal Council is valid if it appear on the face of it to have been enacted by a Municipal Body having autliority to make the By-law under the Municipal laws. {In re, H<''rkiKi V. Jfiiron, Perth and Bruce, 2 U. C. C. l\ 72; Fisher v. Vawihan, 10 U. C. Q. B. 492; In re Jiarclaij and JJarlinijton, 11 U. C Q. H. 470). Slight variances in the use of corjiorate names, ivhere substantially correct, have been hehl immaterial even in matters of contract. {Brock District v. Boinni, 7 U. C. Q. B. 471 ; The Trent and Frankford Road Company \. Marshall, 10 V. C. C. P. 33G ; Whlthj V. Harrison, 18 IJ. C. Q. B. t)(»3 ; Bruce v. Cromar, 22 U. C. Q. B. 321. See also Mai/or and Bun/esties of Li/nne Re(jis, 10 Pep. 120-122; Ma!iorofCarHsk\.BIamireeial,SV.Aiit.m; The Kimj y. Crake, C'owp. 29.) It was, however, hehl diflerently as to the intitling of a rule in a proceeiling against a Municipal Corjjoration. {In re Sams v. Toronto, 9 U. C. Q. B. 181.) The general rule to be THE MUNICIPAL MANUAL. [.sa. 5-7. Namns of proviHloiml 'orporu- InhaliitniitH of (;i)Utitii;s, towiiHliipH, III:. , and of citir.i, t'lWIlS, &('., I,i; Ini a liody roiiioratf. Corporate jiowcra to 1)1! «X(;rci.si;(l by r:)UUi;ils. »>, TIio inhahitants of ovoiy .fiiiiior County, upon a Pro- visional ('ountul lioinj^ or luivini^ hccn a]>|>oint»Ml for tliif (bounty, .shall bo ii liody (Jor])orate (;/) unilor tlio luinio of 77ie J'rovisidUfd CorpordtiDtt. of t/ieCounti/ of (naming it.) (A) 'J'J-3() V. c. 51, .s. 5. it, Tho inlial)itants of ovory (!ounty, or Union of Coun- ties oroct(Ml by proclamation into an IndojHMulont County or Union of Counties, and of ovory Towusliip or Union of Townships (>roct('d into an Inddpondent Township or Union of Towiislii|)S, and ol' every iociility ei-ected into a City, Town, or Incorporated Villaife, and of every (y'ounty or Townshi]> Hej)ai'ated from any Fncorporatod Union of Coun- ties or Townships, and of eve ry County or Townshii), or of the Counties or Townshi]>s if more than one, remaining of the union after the sepamtion, being so erected or .sepanited after this Act takes ell'ect, shall be a Body Cori)orate under this Act. (i) L't)-30 V. c. 51, s. 8. Tf, The powers of every Body Corporate under this Act shall be exercised by the Council thereof, (k) 2t)-3() V. c, 51, s. G. collected from the cases ia tliat a variation from the precise name of tho f 'orporation, when tho true name is necessarily to he eollectetl from the instniment or is sliowu l)y ])roper averments, will not invalidate a grant hy or to a (!orp()rati()n or a contract with it, .and the modern oases sliow an increased liberality on this subject. (Per ('liancellor Kent, in 2 (!om. 2!>l2; approved in AY. Louis llospilalw WiUUiins, 1!) Mo, (iO!). See further Prcsiilent v. Mi/crs. (> Serg. Ik Uawle, (I'a. ) 12 ; MU/urilComponri v. Bru.sh, 10 Ohio, ill; Pciiplv. v. Unnkle, y Johns, 147.) A Municipal Corporation lias no ]K)-\vcr tlii'opal Cfturrfi, 1 riekeiing (Mass.), .'572. See further, The Kinv If. -Of Towns ank ("ities. |)ivisi().N II I. -Of ToWNsiiii's. I)i\isioN IV. -Of ('m;NTir„s. iHVISlilS v.— PhoVISIoNAL ('i)UNTY C'tHil'Ol! ations. |)|VI-, n. Additions to Area Sec. 12. Itednetions of Area. »SVr. l-i. H, When tlin Ct'Misus rotui'UH of an ITniucorpitratcd Villiii,'o, win n ii.,|,ii with its inuiiciliatt! nei.i^lilxjurhooil, taken umh.T th(! (lii-cction ,,',\,',',|'tv' '"' of liic ( 'oiuicil or ('ouncils ot'tho County or (.'ounties iu whicli '"niiiii in.i/ tlie VilJa<^o uufl its neighbourhood aro .situate, shew tlnvt the a"' a' vniiiVr, same contain over seven hundred and tifty inhabitants, and "','' "'l'"" '' ' |il;ici- lor the case of ILxI'Jch v. Bnffah) was decided, nothing was more fru([ucnt in tin; irnitod States than for city antlmritie-s to vote largesses an<>litie, tiius subject- ing tlu'ir eimstitiKiits to luniecessary and ojipicssivc taxation. ( I'er I'ratt, .1., in f/a/fti ml v. Mtii/urof Xiw York; 'A ('nnist, 4.'^.'!; see furtlier, Jliiinlv. Lijnn, J ^Vllen (Mass.), lO.S; ('orniliy.diulfuril, 1 Ociiio, fdO; (icrri/v. Stonrliaii, 1 Allen (Mass.), 31!); (Jlaffiii v. J/njik-Jiiton, 4 Vtray, r)()2; 7'i/.-.7/ V. Ailiiins, lOCiish. '2')'2.) The action (if Municipal t'or- ])i)rationd is to l)e held strictly within the limits ]>rescrihed by the statute". (See note t to see. I'J, and note (/ to sec. 2'J'_'.) Within tliese limits they are to be favoured ])y the courts. (See SmUh v. Jfdddiiion, 7 In(L SO ; Ki//< v. Mnl'in, 8 Ih. o4, Wl.) It is sometimes su)))'o-*iil ''i;>* members (»f a Munieij)al ('(»uncil exceeding their cor- poi ,te pow.is may he hchl personally liable bn- their acts. (See '/ . mas V. Wil-^nn it al, 20 U. C. if. 15. 3H1.) P)Ut assiuning a want . pi>\ver on th part of the Council, it does not billow that the mem- liers of the ' .iicil aro personally liabK; on the contract. ( IjdM Ni^'«i!in V. Httfsriiutn, 9 C. C. C'. V. 18').) The fact of an agent entf ug into a contract without authority does not, per .sv, reinler hin luible on the contract. (Jcnklii-'^ v. llatchlnxon, 1 o Q. B. 744 ; Lcin.t V. ^\ ir/iulson, 18 Q. !'». o()3 : ('air v. Jurkson, 7 Ex. .'}82 ; Khiiis/ord V. Bnil(jut in tlie United States where, under a written constitution, constitutional ^(i\ Mill/or V. i\for) 29-30 V. c. 51, s. 10, sub. 1-4. J>, Ii' all cases whei-e an Incori)orate dissolution of a Unii)n of Townsliips, shall be applicable as if the localities .se])arated had been two Townships, and the Councils of such Village and Township or Townships shall respectively perform the like duties as by such provisions devolve u[)ou the Councils RpRUlatiniis .■IM to C'll- laiKeiru-nt ot area. Existing towii.s or villiini'F area oC wliicli cxciimIs ]ir()- )ioitioiiato limit pre- .SL'iibed. How popu- iMtioii aiiil ai', a may be reckoned. Dispositinii of proiicrty anil pay- innit of (U'lits wlici? iiii'orpo- lati'd village is scjiarated from towii- sliip. ill) Tliis suhst'ction is nhn prosjuH'tive. AVlicn tlie p) Not fcu' all purposes, but for the purpose cf " such extension onli/. which IS an exjircssion t>y no incai leans free from doubt. I'>ut, it is ajiprehcndcd, tlic design is to exchide such persons from the obli- gation to pay Town <-r X'illage taxi'S ; \\hcther tiic lar'^uage used 18 capabl'j of that construction nmst bo determined by the courts. •V 12 THE MUXrCIPAL MANUAL, [ss. 10-12. Wlion the villiL^o lil^s within two «r nil in; I'lumtit'S, Villllf,'!' to 1)0 .-inncxiMl to IlIK', of tllL'Ml l.ytlw! county coiiiicils of (ioveriiiir. In caso of t-iilMI'C of Oiiuncils to .-irt, frei'- lioliiors, &(■., ni.'iyiK-titioii (lovcrnor. Adilil lon-i to villii;,'('s liy (Jovumor. of separated Townships, tlie said Village being considc-red as the Junior Township, {q) 29-30 V.' c. 51, s. GO, sub. 7; s. 64, sub. 1. 10, Wlien the newly Incorporated Village lies within two or more Counties, the Councils of the Counties shall, ])y By- law, annex the Village to one of the Counties ; and if witliin six months after the petitions for the incorporation of the Village are pi-esented, the Councils do not agree to which County the Villiige shall be anitexed, the Wardens of the Counties shall lueuiorialize the Covei-nor in Council, setting f(jrth the grounds of difierence between the Councils ; and thereupon the Clovernor shall, by ])roclaniatioti, annex the Village to one of such Counties. (/•) 29-30 V. c. 51, s. 11. 11, Tu case the AVardcns do not, within one month next after the expii'ation of the six months, memorialize the Governor as af(jresaid, then one hundred of the freeholders and householders on the census list may petition the (}ov- ernor to settle the matter, and thereupon the Covernor shall, by proclamation, annex the lncor[)orated Village to one of the sai.l Counties. (,v) 29-30 V. c. 51, s. 12. 1*-J, In ease the Council of an Incor])orated Village petitions the Governor to add to the boundaries tliereof, (t) the Gover- ((/) See seo. 25 and notes thereto. (r) The annexation is in the first instance left to the County Councils jointly. If tliey do not pasS the necessary By-law within six moutlis from tlio time the petition for tlie incorporation is pre- sented, the Wardens are to notify tlie Jjieutcnant-( iovernor in Council thereof, and lie is tlien to cause the annexation l)y i)roelaniation. Tile word "(iovcriior" used in tliis and otlier sections of the Act i.s to he taken as meaning " 'l"he Lieutenant-I Jovernor or otlier A(hnin- istrator of the (iovernment of Ontario." (.See see. 1 suit. 10 of this Act, As to the exorcise of delegated legislative powers, sec note I to sec. 8. ) (k) This is a necessary provision, in the nature of a delegated legislative power, (.See note / to sec. 8.) The previfms section pro- vides against neglect or failure to agree on the ])art of the Counties. In either event, it is made the chity of the Wardens to memorialize the ljieutciiaut-vcrnor in ( 'ouncil. J5ut as the Wardens may neglect to do as reipiired of them, power is in that event given hy this section to one linmlred of the freeholders and householders on the census list to petition the liieutcnant-tiovernor "to settle the. matter." His decision would be linal. (Sec sec, 09 of the Assessment Act, and notes thereto.) (t) jMunieipal Councils are local governing bodies. The localities over which their jurisdiction extends ouglit to be cci'tain and well s. 13] rKDUCINO AREA OF VtLLAOES. 13 nor may, stibject to the provisions of subsootions ono to four of section eight of this Act, liy proclamation, add to the Villai^o any J>art of the localities adjacent, which, from the pnixiniity of the streets or buildings therein, or th(! probable future exigencies of the Village, it nuiy seem de3ira))lo to add thereto, {n) 2d-'M) V. c. Al', s. 13. 115, The County Council of any County or Union of Coun- ties in Ontario, may, in their discretion, iipon the ap[)licati; State v. CUmanton, 14 N. H. 407; Cold Sprinijsv. Tolland, 9 Cush. 492; Pratt v. ,SV((^', 5 Cr- 1 >. 388; Jfai/ilen V. Xoi/es, Ih. 391; Pe Furman Street, 17 Wend. 649, (Idall v. Triistiet;, lyjohns, 17"); Jones v. Soidard, 24 How, 41 ; see further note ij to sec. 13, note j to sec. 10, and note e to sec. 222.) (ii) The power to add to boundaries is one that should exist some- wliero. It is, jtroperly speaking, a legislative power. (See note / to sec. 8.) liut by this section, subject to the provi.sions of subsec. 1 to 4 of sec. 8 of the Act, it is vested in the Lieutenant-Governor in Council. (See note r to sec. 20.) (r) This is the opposite of the power of extension. It, like the power of extension, is, proj)eriy sjioaking, a legislative power. (Heo note / to see. 8.) Jiut while the hitter is vested ni the Lieutenant- Governor in Council (see see. 12, note «)> the power of contraction is by this section subject to certain checks, after mentioned, vested in the County Council. (lo) See note t to see. 12. (x) This is the number made necessary for the incorporation of a Village. (See sec. 8.) u THE MUNICIPAL MANUAL. [s3. 14, 15, privilp;(es and rights of such Village shall not thereby be (liiuiiiislied, or otherwise interfered with an re.sjiccts the remaining area thereof, (y) 2D-30 V. c. 51, s. 10, sub. 5. Onsns of t()W'\s iuid villages. Tov/n ron- tiiining over ir,,0()0 iiilial)itaiit.s may be iTt'ctiMl into a tity ; aiid vill;if,'(! con- taiiiinj; ovur 2,000 into a town. Conditions 1st. Notice to be given. DivLsioN II.— Of Towns and Citie.s. Toions and Cities, how formed and limits. Sec. 14-10. Wai'ds, and additions to Area. Sec. 17-19. Toions, how withdrawn from and re-united to jurisdiction of County. Sec. 20, 21, 14, A census of any Town or Incorporated Village may at any time be taken under the authority of a by-law of the Council thereof, (a) 29-30 V. c. 51, h. U. 15. In case it appears by the census return taken under any such by-law, or under any statute [b) that a Town con- tains over fifteen thousand inhabitants, the Town may be erected into a City ; and in case it appears by the return that an Ineorpoi'ated Village contains over two thousand inhabitants, the Village may be erected into a Town ; (e) but the change shall be made by means of and subject to the following proceedings and conditions : Firstly — The Council of the Town or Village shall, for three months after the census return, insert a notice in some newspaper published in the ToAvn or Village, or, if no news- (ij) There cannot exist in the same locality two mnnicipal bodies exercisuig similar powers. Each Municipal Council, no matter what its area, is independent, or ought to be independent, of every otlier similar Municipal Council. (See The King v. Paamore, 3 T. R. 243 : The Kbuj v. Amcry, 2 Bro. P. C. 33G; Patterson v. Sorlcti/, fip(!r be imblished tliorein, tlien the Coiincil shall, for three mouths, post up a notice in four of the most jmblic phu;e8 in the Town or Vilhii^o, aiul ius(^rt the same in a newspaper published in the County Town of the (Jounty in which the Town or Villaj^o is situate, or if there is no such news])aper, then in the newspaper published nearest to the said Town or Villatj;o, setting forth in tlie notice the intention of the Council to apply for the erection of the Town into a ( 'ity, or of the Village into a Town, and stating the limits intended to he includeil therein ; (d) Secondly— Tlio Council of tin; Town or Village shall cause 2iid. Ctusiw the census returns to be certified to the (joveruor in Council, i,';,'".'^"tuil,i under the signature of the head of the Corporation, and ami inibiii;i under the Corporate Seal, and shall also cause the publication i,n'tir(> | aforesaid to be jjroved to the Governor in Council, tluni, in iTi^'veii- the case of a Village, the Governor may, by proclamation, village may erect the Village into a Town by a name to be given thei-eto t!',w'i'iby p",'- in the proclamation ; (e) cUimation Thirdly— In case the application is foi the erection of a srd. ExIhi- Towu into a City, the Town shall also pay to the County of i"r,,aluHr, li' (il) Two things arc here to be ohserved: first, the contents of the notice ; seconil, the mode of publication. The notice shoiihl not only Bet forth tlie intention of the Council to apply for the erection of the Village into a Town, or of the Town into a City, but state the limits inteniled to be included therein. (See note t to sec. 12.) The notice should, for t'lree months after the census return, be inserted in some newspaper published in the Village or Town. If no !?uch newspaper, the notice should be posted uj) for three months in four of the most public places in the Village or Town, and inserted in a newspaper pul)lishe(l in the County Towni, or, if no such newspaper as last meutioaed, then in the newspaper published ncareM to the Village or Town. (See, as to the notice necessary in the case of the alteration of School boundaries, iV^cs.s' v. Sallflcct, l.S U. C. Q. B. 408; /.•( re Lei/y. (nark, 13U.C. Q. B. 43r>; In re Taylor v. West Williaws, ;}0 U. C;. ().. B. .S4() ; Patlermn v. Hope, 30 U. C. Q. B. 484; see fur- ther see. 'J3 1 of this Act, and notes thereto. ) (e) Two things are here made necessary: first, that the census returns should he certilied to the Lieutenant-! Jovernor in Council; second, that proof of the publication of the notice referred to in the last note sliould be adduced to the Lieutenant-(!overnor in Council. The certiticate as to the census must be not only under the seal of the Coriwration, 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 (bounty of which it forms a part. (See next subsection. ) As to the exercise of delegated legislative powers* see note I to sec. 8. 16 THE MUNICIPAL MANUAL. [ss. 1 <), 17. iiicascc.fa wliicU It Ibnns ])ait, (/) such itorfcion, if u jy, of t.lin d(!l»tH t.invil to 1)1' ,. , ,, , ' • ,' . , ^ I ,, . /. 1 ri, m.ui,; u lily, ot tlu) ("oiuity its may be just, or tho UouuCii oi tin; lowii Hhall agroc with the (Jouucil of tiio tJouuty a.s to the amount to 1)0 so })aid, and tho jx'rioils of payment with inten^st from the timo of tho t>i'('ctiou of the uinv City, or in case of dis- ai,M-cemeut the same sljall bo deu'vminod by arbiti-alion under tiiis Act; (//) and u])on the Council provini^ to the (i()venH)r in Council the jtaymcut, aijjrecmcnt or arbitration, LniVi'i'^ii t'"''^ the Cuvernor may, by proclanuition, eiH^ct the Town lily iiy pro- iuto ix City, by a namo to be given thereto in the procla- mation, {h) 2'J-'M) V. c. 51, s. 'if). |(j». The (lovernor may include in the new Town or City such |)ortions of any Townslii|) or Townsliips adjacent thereto and within the liniits nientiomnl in the aforesaid notice (/) as, from the proximity of streets or buildings, or the proba- ble future exigencies of the new Town or City, the (JovcM'nor may consider it desirable to attach thereto, (j) L"J-30 V. e. .'')1, s. IG. Wuia», t7. The Governor may divide [jj) the new Town or City into Wards, with appi'0]iriate nanu>s (/i) and boundaries, (/) but no Town shall have less than three Wards, and no 'l:ilii:Uii.>ii. Limits of Hucli nmv town 01' tity. (f) A City, for municipal purposes, becomes a Comity in itself- Hence tlie necessity for the adjustment of the County debt before a separation takes place. ((j) Sco sec. 277 and following sections. (h) Each Municipality should have a name to distinguish it from all other MunicipaUties. The power is here conferred, not only to create a new Municipality, but to give it a name. The name can oidy be changed l)y the Legislature. No Municipal Corporation has power to change its name. (See note / to sec. 4. ) (t) See note d to sec 15. (j) Municipalities being localities, must have boundaries to sepa- rate them from other similar localities (see note t to sec. ]'2), and without express legislative authority, Mimicipal Councils have no power to ac(piire lands beyond their local limits. {Xorth I/imp- /ftrad v. Bi'iiipstcail, 2 Wend. I'M ; iJvnton v. Jackson, 2 Johns, Ch. 330 ; Jri/.;/ V. RochcMm', 9 N. Y. M ; Chamhvrs v. St. Loak, 25> Mo. 5-43; ilimni v. Neio Orleans, 2 La. An. 897; Concord v. lioscawen, 17 N. H. 4Go. ) Aa to the exercise of the legislative powers, see note I to sec. 8. (jj) See note I to sec. 8. {k) See note h to sec. 15. (I) See note i to sec. 12. s. 18.] DIVISION OF WAUDS IN CITIES AND TOWNS. 17 lepa- 1 ami no Winp- lina, ll V. \tive W;ir(l in imy siicli Town or City less than fivo hundred iidml.itnnts. ' (m) 2!J-;5<) V. c. 51, h. 17. IS. Ill <^iist! two-thirds of tlic iiienibera of tho Council of n. City or Town do, in Council, (u) before the tiftoenth ilay of July in iiny yoar, (o) pass a resolution {])) atlirniin;.^ the ex])('dieiicy of a n(^w division into Wards Ixdng niadi; of tho City or Town, or of a ])art of the same, (nilitlons. Amount to 1)0 paid by tiwii to rouiily for i'!i|ii'iises of juluiiiiistni- tion of justice to bo .settled by Miireeiiiout os(>s coaso to Ixslong to such other ( 'ouiity, and shall l)eloii}» to i\w same County as the rest of the Town or City, (.s) 2\)-'A0 V. o. 51, s. 18. ^0. The Council of any Town may pass a By-law to withdraw the Town from the jurisdiction of the Council of the County within which the Town is situated, upon obtain ing the assent of tlu! electors of the Town to the; By-law in manner ])roviy arbi- tration under this Act ; and the agi'eement or award shall distinguish the amount to be anmially paid for the said ex{)enses, and for the then debt of the County, and the num- ber of years the ptiyinents for the debt are to be continued ; (ii) that the wishes of the Town or City Couucil would be complied witli l)y him. It may therefore be iiu[)()rtant that the resohitiou shouhl exphcitly state tlie changes or achlitions deemed e.\})e(lient by the C!ouneil. No published or other notice of the intended ajjplieation is recpiired. (,s) Towns and Cities, for some purposes, continue parts of the County in which situate, (see sec. 20), and this provides for the annexation, for all purposes, of tracts detached under the operation of the foregoing section. (I) 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 coiulitions in this section also contained. Tlie effect of the withdrawal is hereafter explained. (See note X to subs. 4 of this section. ) ()() The amount to be paid by the Town to the County is made up of the following items :— 1. Expenses of Administration of Justice. 2. Use of the Gaol. 3. Erection and repairs of Registry Office. 4. Books for the same, and for services for which the County ia liable, as required by any Act respecting the registration of instru- ments relating to lands. 5. The tkeu existing debt of the County. !. 20.] BEPAHATION OP T0WN8 FROM C0UKTIE3. U tlie the ■itioa bt to Itors, also (See ic up Ity 19- latru- (2.) In adjii.stini,' their award, tho arhitnitors shall, amonj? otlit'r t]uuj,'H, tako ijito coiiHuli/ratioii tlio amount previously naiil l>y tho Town, or wliicli th(^ town iiiiiy \h' tlicu lial)lo to j»av. tor till! coii,stru(!tio)i of roads or brid^fus hy tlu; County, without the. limits of tluj Town ; and also what tho County may have paid, or be- lialile to pay, for tho construction of roads or bridges within tho Town ; and they shall also ascertain iuid allow to tho Town tin; value of its interest in all County jjroperty, except roads and bridges within tho Town ; (r) (3.) When the agr"einent or award has Ixsen miule, a copy of tlie same, and of the JJy-law, duly verified by alUilavit, shall bi: transmitted to the Governor, who shall thereu])on issue his proclamation withdi-awing tho Town from the jurisdiction of the Council of tho County; (w) (1.) After th(; proclamation has been issued, the ollices of Ileeve and D(;i)uty Reeve or Deputy lie(!ves of the Town shall cease ; and no By-law of tho Council of tho County there;ifter made shall have any force in the Town, (;xcept so far as relates to the care of the Court House and Caol, and other County propcu'ty in the Town ; and the Town shall not thereafter be liable to the County for, or be obligcHl to pay to the County, or into the County Ti'easury, any money for County debts or other purposes, except such sums as may bo agreed upcjn or awarded as aforesaid ; (x) (r».) Aft(n' the la])se of five years from tho time of the agreement or award, or such shorter time as nuiy be stated in the agreement or award, a new agr(!enumt or a new award ('•) The rule laid down is a fair one. \\1)oro the Town has con- triliutcd towanla building roads or bridges out.side 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 Ciiuuty ])roperty, e.xeept roads am' l)-idges within the Town. {lo) Tliere is no time limited in any year within which the appli- cation to the Lieutenant-OoviTUor in to be maile. (x) The effects of withdrawal are here txplained. 1. The ottiees of Reeve and Dejjuty-Reeve, necessary only as representatives of the Town in the County Council, are to cease. 2. Ho By-law of the County (exct'i)t so far as relates to the care of the Court House and (iacjl, ami 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 purpoaes. Matters t'l 1)1^ rimsi llclrd iti scUliiig tliP .SiiMie. Co|iy of iir iiw.ml to III' Si'llt to tlioOovci iinr. rroclaina- tiiiii. lOlo'i't. of siiili [iro- chiiiKition. New «Rrc(; incut ai(l by tbo Town to tlio (Jomity for the oxpoiiscs of tlio administration of justico, tho uso of the (raol, orcetion and repairs of tbo lioi^istry Ofbco or Offices, and for providing l)Ooks foi- tlio same, and for s(!rvices foi- wliieli tlie (/ounty sliall l>e bal»b^, as recpiired l>y and undca' tb(^ jn'ovisions of any Act resp(;ct- ing the registration of instruments i-ehiting to hinds ; (_?/) (0.) After the witlidrawal of a Tt)\vn from tlie County, all property tli(!rct()f()re owned l)y tlie County, oxcej)t roads and bridges witliiu th(^ Town, sliidl remain the property of tho County. 29-30 V. c. 51, s. 2G, as amended by 31 V. c. 30, ss. 2 & 3. (;:) 21, Tho Council of any Town which has withdrawn from a County, or Union of Counties, (a) may, after t\w expira- tion of tivo years from such with(h'awal, pass a By-law, to be assented to by tlie electors in manner ))i'ovided for by this Act in respect of liy-laws for creating del)ts, to re-unite with such County or Union of Counties : [h) Provided that the said By-hiw shall have no efl'ect unless ratified and confirmed by the Council of the County or Union of Counties from which the said Town had previously withdrawn, within six months after the passing of the said By-law ; [c) and unless the terms and conditions which the Town shall pay, ])erform or be subject to, shall have been previously agreed upon or (?/) Most of the services mentioned are County Survices, in which the Town, though witlidrawn from tho County, must be continu- ously interested. But tlio nature ami value of the services may from year to year vary ; lienco provision is made for a settlement every five years, unless a shorter time be stated in the agreement or award last made. (z) This apidies to a Town Hall and other similar property. All real property of tho County, with the exceptions named, continue the property of the County notwithstanding the withdrawal. The only exceptions are " roads and bridges " witliin the Town. Bridges between the Town and adjoining municipalities stand oii a difl'erent footing. (a) v^'ee sec. 20. (ft) This is a new provision. 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-uuion without an Act of Parliament. (See note I to sec. 8. ) (c) 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 in the absence of mutual assent. That assent is to be signified by the passuig of By-laws by each of ths s. 22.] TOWNSHIPS. 21 sottlod in manner followinc;— tliivt is to say, (*/) l»efovo tlio AndiL-nirc said r.y-law shall l>n ronlinuiMl l»y tlits ('Miiucil of tlio ,,;Vii'i',Ti, thn County— the Ooimcils of the Town and County shall (h^tor- niiioiints ,>t 1 i, Jl i. !• 1.1 ^ \ 1 C il riy till' (lilitH of mint' l)y a^nHMUont iJih amounts oi tJie (h"l)ts ot th(! lowu TnwinuKi and ('ounty i'()S|)iit;tivt'ly which shall bi*. paid or borne by the *|',^""|,^j ,,i County after the re-union, or what amount shall be payabh; siiillbi' by a special rate to be imposed upon the ratepayers of tlie '1''^'=""""''' Towu, on and above all other County rates, and all other matter^ relating' to profxirty, assets, or advanta;.,'es conscipicut upon snclt re-union, and as all'ecting tlie County uv Town ri' .pectively ; and such otlun' terms or eouditiuns as may appi'ar just shall be settled by such agreement ; iuid iu di^tault of such agreonunit l)eing come to within three months after the [jassing of the By-law by the; Council of tli(i town, then the said matters shall be settled by ai'bitra- tion, as provided by this Act. (e) Division III. — Of TowNsnirs, Townships, hoto formeA. Sec. 22. Junior Township, tvhen it may become a separate Corpora- tion. ,S'ec. 2S, 24. Arraixjemoit of Joint Assets and Debts. Sec. 25. Adjacent Tracts, Anncrution of. Sec. 26, 27. New Townships, Union of. Sec. 28, 30. *X'Z. In case a Township be hiid out by tlie Crown in Xi.w teri'itory forminjf no part of an Incorporattid County, the ^''^^''^'iTn Covernor may l)y proclamation annex th(! Township, or two liiaits of or more of such Townships lying adjactnit to one another, to "ui'II/v'Iilav any adjacent Incorporated County, and erect the same into |'i' attiuhua an lnc\)rporated Union of Townshijjs with some other Town- i,ypr(Mia-" ship of such County. (/) ;3-l: V. c. 30, s. 17. "'•'^''^"' muiiiciiial hoilies interested. The By-law of the County, to lie o]iiiative, nuist be passed within six months after the passing of tlie By-law of the Town. The initial proeeedint' is to be had Ijy the Town. (d) 'I'lie withdrawal could only take place after certain tinancial arrangements made to the satisfaction of both parties, or, if unable to agree, l)y arbitration. (See sec. '_*().) The re-union is also made to de})end "non a settlement of the linancial matters specified. (e) See see. 277, and following sections. (./') The ordinary Municipal Divisions are Counties, Townships, Towns, and Villages. Of these the County is the major munici- pality, composed of the smaller or minor municipahties. Apart 22 THE JIUNICIPAL MANUAL. [m. 23, 24. ■Iiiiiior lllWIJHllip < oiilaliiiiiK 100 friT IkiIiIi'I'M.&I!., may 1><' M(![iiir,itfil riDiii union. It! wliat . iisrs .jiiiiiiT townNliip I'ontMiniiij.' iO fnrlmlil- ii'H, &.('., Imt li'fls tliiin IDO, tiiiiy bu Mjpiiriiti'il t'l'uiu uiiiun. *m, Wlion !i .Tiniior Townsliip of an Tncorporatod TTnion of 'I'owiisliips liiiH <»ii(' liiiiidrcd resident ficelioldcis and lioiis«li()Idors on tlio AHscssnicni Koll as last I'niMlly revised and pasKod, nurh 'I'ownsliip sliall, upon tlie tii-st day of .laniiMry next, after the pMSsini;- of tlit; prop(>r liy-i.iw in that Ix'half l)y th(! ('oiinty I'onneil, lieconu^ sepanitiid from tho Union, (y) Vide '1{)-'M) V. c. 51, r. 28. 34. Ill ("ISO a Junior Township lia.s at loast fifty, but loss than one liumh'ed resich'ut frceliohhi-s sind lioitsehohh-i's on th' hust revised Assessment lutll, and two-thirds of th(! resi- dent freeholiU-rs and housiiliohh'is of the Townsln'p petition tho Council of th(! County to so para to tho Township fi-oni the Union to which it helont^s ; and ii\ eas(^ such Coinicil considei'H tlu; Townshiii (o he so situateil, with reference to streams or ot]i(>r natural obstructions, that its inhabitants CMiinot conveniently be united with the inhabitants of an adjoining,' Township for niunii'ipal [lurposes ; such Council may, by I'y-liiw, separate tho same* fiom the Union ; {It) and the l>y law shall name the l\eturnini( Otlicer who is to hold, and tho plauo for holding, tho first election under the sjinui; (i) from the Townships, Towns, and Villages, the Coimty has no local existence. But covering as it does the smaller municipalities, it, through its Couneil, exercises certain superior powers over them. The municipal schciae re(piires that every Townsliip should belong to some ('o\nity. Tiie olijeet of this section is to annex a Township or Townships, territorially out of any County, to some adjacent County for municipal purposes. 'J'he power, which is a legislative one, has been conferretlon the Lieutenaut-tjoveriior iu Council. (See note / to sec. 8. ) ((/) When the .Junior Township attains the rocpiired popidation, the separation is to take place after tlu^ passing of the necessary Bj'-law by the County Council. This is a delegated legislative power. (See note I to sec. 8. ) (/( ) It is the rule to have at least one hundred resident freeholders and householders on the last roll, as finally revised, in order to con- stitute a separ.ate Township, and to have Townships of a less luunher of inhabitants united. The i.'xception whicli may be created by this section is Mhei-e a Township having at least iifty resident freeholders and householders is so situate, with reference to streams or other natural obstructions, that its inhabitants cannot he conveni- ently miited with the inhabitants of an adjoining 'Township. In such case, if there be a petition to the County Council from two-thirds of the resident freehohlers and househohlers of the Township, setting forth the above facts and jjraj'ing for separation, and the Council of the County considers the prayer of the petition well grounded, a By-law may be passed for the purpose, and thereby a separation be effected. This also is a legislative power. (See note I to sec. 8.) (t) A separate Returning Officer is a necessary consequence of a separation. For this rei^son the liy-law which effects the separation H. 25.] DISSOLUTION OF UNION OF TOWNSHIPS, as or in caso two-tliinls of the rrsidont frrclioIdrrM and hoiisd- litildiMs of out! or nioro Jiutior Townships jx^tition tho Ooiin- oil of tli(' Ooiinty to !•♦> Hi-panitcd from the Union to wliich thry Iii'Iom;^', iiud t(t ho attaclicd to somo othor adjoinin;^ JInnicipality, and iu case said C)onni-il con.sid(>r th(i interest ftnd couv('nii>b' V. Mornll, 21 Wend, nu:}; State v. '/f. :i\^^; Wiit'lhiim\. Portland, lb. .384; JIarrUon v. Bridijeton, i() Mass. 15 II). 7a; Lnkinv.Amt'xetal, 10 Cash. 108; Phtnbtt Towmhipw Cram- ford, 27 Pa. St. 107 ; JSTtw L-mlon v. MontvUk, 1 Root. (Conn.) 184. (l) The situation of the real property is made to govern its owner- ship. If in the Junior Townshiji, it becomes the property of the Junior Township; if in the remaining Townshi]) or TowTishi[)S, it becomes the property of such Township or Townships. This is the 24 TOE MUNICIPAL MANUAL. [s. 25. Airange- iiu'iit as to (lubts. IJow to bo, (li'tiTiiiini;i.l, ill case of (lisagree- mout. (3.) The two Corporiitions sliiill be jointly interested in the other assets of tlie Union, and the same shall be retained by the one, or sliiiU 1)(; divided betw(M'n both, or shall be otherwise disposed of, as they may agree ; (//i) (4.) The one shall pay or allow to the other, in respect of the said disposition of the real and personal ])roperty of the Union, and iu respect to the debts of the Union, such sum or sums of money as may be just ; (o) (5.) In case tie Councils of the Townships do not, Avithin three months af'^T the iirst meeting of the Council of the Junior Tow.ship, agree as to the disposition of the ])ersonal property of the Union, or as to the sum to bo paid by tho rule wliicli was held to apply, by the .Siipromc Court of New York, to the division of a Muiiiei])ality, iu tliu al)sence of ex])ress provision to the contrary. {Xortk //r)iiji.if('(td v. IfciiijiMctd, '2 \Vi}ni\. 10!); see further, Mllwaukrc v. Miluniukte, 12 Wis. \)\\.) The Kit't.- of real property as between Municipalities, in the event of a dissolution of the T^nion formerly existing, determines its ownership. But, a3 regards property otlier than real property, more ditiiculty exists. (vScc Wiiulliatn v. /'orllaiuf, 4 Mass. .S84; llartford Jiridijc v. Ea.it llartfuril, 1(; Conn. IW; s. c. 10 How. (U. S.j'ollj HainpMrev. Franklin, 10 Mass. 75.) (/w) The assets of the Union may consist c'ther of real (n- ])ersonal property, or of both. Tlie disposition of the rc;il property is pro- vided for iu the preceding si-hsections. Its sitnx determuics it.-? ownership. But a.s regards assets other than real property, its disposition is necessarily made to depend on the agreement of the Towush'ps. (n) So long ap the Townships remain united, they constitute ono Municipality, as much as tiie various Wards of a City constitute one Muiucipality ; Init wlien Uniteil Townsliijis separate, there are mat- ters which recpnre adjustment, according to what is right and fair, between the parties. It is in tiu; division and disposal of the projjerty, and in the provisions Avhich the liabilities of tlie Union may require, that on tho dissolution one may have to pay to the otlier such sum of money as may be just. This amomit is, in the first instance, if possible to be determined l>y mutual agreement. On the seiiaratiou of three Townships i;ito two Municipalities, the two Corporii' ions executed an instrument whereby one agreed to pay to the otiur a certain sum, as soon as certain non-resident rates theretofore imposed should become availa])le. It was subse([uently disci'vered that these rates hail beer illegally imi)osed, cni' that tlie suppose! fiinil would never be avail;;l)le. Its sujiposed existence had been an element iu deteniiiniug the amount to be paid. It was held that the ( 'orpora- tion to which the money was made payable was not entitled to have the agreement reformed so as to make the money pay aide by the other absolutely. {Arran v. Amabel, 17 Grant, 1(33, reversing s. c. 15 Grant, 701.) ss. 26, 27.] NEW TO\YXSHIPS. 25 one to the otlior, or as to the times of payment thereof, tho matter shall bo settled l)y arbitration under this Act ; (p) (0.) The amount so agreed upon or settled shall 1)ear Ainount intcre". from the day on whicli the Union was dissolved, j.Tiiii .simU aiu' .shall be provided for by the Council of the indebted I"'"" Township i:.. r.tlior desbts. (7) 29-30 V. c. 51, s. GO, sub. 1-G. "' '"'' ' in, rix; (jrovernor may, (qq) l)y proclamation, annex to Tin any Town^Jiip, or partly to each of nioi-(! Townshifis than one, any gore or small tract of land lying a ulja;'i-iit lies t'l to an InC()r[)orated Union of Townships, th(> ( 'ouucil of the County c" United Counties shall, by I'ly-law, unite sucji Townshii) fv>r municiual i)uri»((ses to some adjacent Incorpo- tnwii.shipi ^ 111 J 1 and how (ji) S.I far as the Act directs rovision is here mailc for asccrta.ining tlic will (>f the people to be aU'ected by the change. The power given is absolute. But as it is vesteil in the Lieutenant-tJovcrnor in C'ouncil, it is ])resume(l tliat the exercise of it will be in acconlanci' with the will of the people. By means of its exercise, the inhabitants of the tract of lanil i nnexed Mill be subjected to liabilities of the Muniei])ality of which it sliall be made a part; for tlie proxisiim is, that it "shall theneefcii'ivard, for all /lur/to.HC.'^, form part of the Trtwrislii]) to w liieh it is anneved." (See J'oivcrs v. U'oof/ Co«/(/y, 8 Uhio St, 'JS.') ; /,<(//- ton V. yi-wOr/mn.s, 12 La. An. 515; Anioiilf. v'. A^ni)Or/>n)i.'i, 1 1 Jh. 5-1; Ghrham v. Spnui/firht, 2] Maine, 5S ; .SV. Liiiii.iv. Alhn, V.^ .\Io. 400; linilrond ('i (^uetu v. Thv Local Gum-nment Board, L. R. 8 ^>. B. '2'21.) tM'j^y 26 THE Mt^NICIPAL MANUAL. [hh. 28-30. rated 'J'ownsliip or Union of Towiisliips in tl e samo County or Union of Counties. (*) 2'J-30 V. c. 51, s. 31. Townsliipg HH, in case of tliere being at any time in an Incorporated lub'd'or"'"'" ^-''^"iity or Union of Counties two or more adjacent Town- iinitiii may sliips not incorporated and not belonging to an Incorporatf^d Union of Tovvnshij)s, and in case such adjacent T(j\vnships ]iave togetlier not less than one hundred x-esident freeholders and houscliohlers witliiu the same, the Council of tlie County or Union of Counti(!s may, by By-law, form such Townships into an independent Union of Townships, {t) 2'J-30 V. c. 51, s. 32. Ill' fnnillMl Into uiilmis, ami how. Koniniity nf lown.s'.iiii.-i, huw i-<;gillatoJ. Tiiwiisliipa ill ililFfrcfiit '•HUlltiL'S. '^5). Every proclamation or By-law forming a Union of Townships shall diisignate the order of senioi'ity of the Tov/nships so uuiti'il ; and the Townshi[)s of the Union shall bo classe' 'n tin) By-law according to the relative number of freoholdci'.. vi liouseholders on the last revised Assessment Roll, (w) 2'J-30 V. c. 51, s. 31. •iO. In case the United Townships are in dith^-ent Counties, the By-law shall cease to be in force whenever the Union of the Counties is dissolved, (v) 2'J-30 V. c. 51, s. 33. I {s) There are in snnio Counties tracts of land not surveyed or laid out in Townships, and this section j'cquires the County Council of any such County to unite new 'I'ownshijis when laid out with some adjacent Townsliip or Townships, in order that tlie inhabitants may at once enjoy Municiiial rights and l)e subject to Miniicipal liabilities. (8ee note j to sec. !(>. ) This provision is made in lieu of an Act of Parliament, which would be otherwise necessary in sucii a case. (Hce note / to sec. 8. ) (<) Under this section Unions may be formed of two or more neu! Townships, instead of .anneving them to ohl Townships. Tliis can only be done wlien the joint population of resident freeliolders and liouseholders is not I'^ss in number than one hundred. The T>ower is a delegatcil legislati\e power. (See note / to sec. 8.) ((/| The onler of seniority of United Townships is to be declared in the proclamation or Hy-law, as the case may be, ami the seniority is to be governed liy population, so that the more populous Town- ship is to be tlie Senior Township. (v) No case can arise under this section, imless the Union have been made by the (!ouncil of United Counties of Townships in ditt'erent Counties of the Union. VVlien such has been done, and the (bounties afterwards liecome separated, provision is mad(! for the separation of the United Townsiiips. The fact that tlie By law is in such an event to "cease to be in force," as near .is may be restores the Townships to the situation in which they were before fhe By-law passed. (See uucea c ami d to sec. 515 of this Act.) ss. 31-33.] COUNTIES, 27 ;-:^ ■^ Division- IV. — Of Cuuntif.s, Counties, how /urmed. Sec. SI. Senioritij of. Sec. 32. Venue in Judicial Proceedings. Sec. 33. 31. Tlio (lovnrnor iiiav, l)y procLnnatidTi. foi-m into a now xrwroun- Oouiitv any w\v To\vnsliii)s n ^t within the limits of an Incor- '."'''• '",'?'., poratoil Countv, an'l may include in tho now County one or pnn imjiii- more Unincorp '-.itod Townships, or other uljacont unoriran- l',',u,'.x!'u\n ized ti'ii ' ir\ ^ilrtining tlio limits thoroof) not being witliin uniuU. an lucorjioratotl County, and m:iy annex the now County to any adjacent Incorjiorated County; or in case there is no adjacent Incorporated County, or in case the (lovernor in Council consitlers tin- i. w County, or any number of such new CoLintie.s lying adjacent to one another, and not belong- ing to any Incoi-jtoi'ated Union, so situated iliat the inhabi- tants cannot conveniently be united with tlu^ injialdtants of an adjoining I'''>i [MMited County for municii)al pui'poses, the Oovernor nvxy. by the proclamation, erect tlie new County, or new adjacent Counties, into an indept'iidtMit County or Union of Counties for the said purposes, and the proclamation shall name the new County or Counties. («) 29-30 V. c. T)], s. 35. •W. In every Union of Counties, the County in whicli Seniority of the County Court Himse and Gaol are .situate shall lie the ti(s,'ho\v' Senior County, ami the ot]u;r County or Counties of tlie ''^■^ui-'tt'l. Union shall be the Junior County or Counties thereof. (6) 29-30 V. c. 51, s. 30. 33. During the Union of Counties, all laws ajiplicable to i.^ra Counties (except as to representation in Parlianu^nt and t.'.'uion'of registration of titles) shall apply to tlie Union as if the same luuutka. fornuid but one County, (c) and in any civil judicial jiroceed- Vinut-. ing the venue shall be so laid, (fc) 29-30 V. c. 51, ss. 37 k 38. (ut seniority among I 'niteil Counties. While among the former seniority is to Ix; ileterniiueil by population, (see sec. iiii, ) among the latter it is to l)e determined by the situation of the ('ounty ('ourt House and (!aol. ('•) improvements, however, m.ay, under certain cireumatances, bo made by either County separately. (See sees. 307-401, inclusive.) ('•'•) A (leolaration laying tiie veune in tlie 1 'nited Counties of, &c., (uot uamiujj' the particular County) was, befv)ro the C. L. W A., THE MUNICIPAL MANUAL. [s. 34. Si'i'amtloti of iiiiiti'il I'lJJIiLic'S. Division V. — Of Provisional County Cohporations. Provmonal Corporations, formed hy sejjaration from Junior Cotatt//. Sec. 34' Provisional 0(ficers. Sec. 35, 36. Projiertjj may he acquired for Gaol and Court House. Sec. 37. . Their pouters not to interfere v)ith United Corporations. Sec. 3S. Arrangement of Joint Assets and Debts. Sec. 30-4-1' Officials, ivhoh appointed. Sec. J^2. Separation., when complete. Sec. J^-i, 44- Jwlicifd Pruceediiijs on Separation. Sec. 4-'^-50. Ii4. Whou tlio census returns, taken under u Statute, or under the authority of a By-hiw of the Council of any United Covmties, show tliat the Junior County of the Union contains seventeen thousand inliabitants or more, then if a majority of tlio Reeves and Deputy Reeves of sucli County do, in the montli of Fehi'uary, pass a resohi^ion affivniing tlu^ expediency of the County being separatcl fi'oin th3 Union ; and if, in the month of Fehru try in the foUowing year, a majority of the Reeves and De],uty Reevc^s transmit to the Ciovernor in Council a petition for the sopiiration, and if the Governor deems the circiimstances of the Junior iiuiiibyiiro- (j^m^^y sucli as to call for a separate establishment of Courts chuiiatiDii of J . . . '^ , il and otlier (Jounty institutions, he may, by proclamation .'■etting forth those facts, constitute the Reeves and Deputy leeves in that County a Provisional Council, and in the l». ')clamation appoint a time and place for the first meeting o; the Council, and therein name one of its membcn-s to pr. .side at the ineeting, and also therein determine the [»lace f •..■ and the name of the County Town, (d) 29-30 V. ■.;. 51, s. 3i). A]')"iiiit- lirovisii roll'" < onuiy iM-t'll^' '.'o'.KlVV liulil biiil oil special dcinurrer. (\('lson liaad Co. v. Bates, 4 IT, C. C. P. 281.) And if now porsisted in, would. pro])al)ly, bo lu'ld bad on genci'al demurrer. (See Batik of Upper L'anadd v. Owen, t2G U. C (J. B. \~A.) A writ of siininious was 3ucd out before tho separation of tht; County of Ontario from tlic United (\iunties of York and Peel, lUrecting defendant to appear in the United Counties of V'ork, Oiitario and Peel. It Vv'as not served until after the .'sepa- ration, and tbe venue in the declaration was laid in tin; three United Counties. The defendant tliereupon demurred. Ihhl, not a frivo- loua demurrer. ( I'lu.rtun it id v. Smith, 1 Prae. li.. 228.) (d) The provisions of this section are designed to prvsvent the nece.ssity of speeial legislation. (See ii;ite / to see. S. ) Special legia- latiou in such matters, as herein provitled for, ha.s not hitherto been either successful or satisfactory. (See Stats. I'J Vic. oaj). PJ, and S3. 35-37.] PROVISIONAL COUNTY COUNCILS. 2'J i Who to preside. ApV'oint- Illrllt of provisional warden and other ollicers. Term nf ulliee. J55. Tlie mombor .so iip[)oiuto(l shall preside in the Council until a Provisional Warden has h(^en elected by the Council from among the member.s thereof, (e) 29-30 V. c. 51, s. 40. liii. FiVery Provisional Council shall from time to time appoint a Provisional Warden, a Provisional Tr(\isurer, and such other Provisional ollicei's for the County as the (.-ouncil deems necessary. (/) The Provisional Warden shall hold oflice for the municipal year for which he is elected, (;/) and the Treasurer and other officers so a[)pointe(l shall hold otlice until removed by the Council. (/<) 29-30 V. c. 51, ss. 41, 42 & 43. 37. Every Provisional Council may acquire the necessary Provisional property at the County To>vn of the Juuiiu- County on which Ji'/,'iy'',,\'f „,-,.„ to erect a Court Hou.se and Gaol, and may erect a Court huidsior House and Gaol thereon, adaptetl to the wants of the County, ^o'i'„t'"^' and in conformity with any statut(ny i>r other rules and housea. regulations resj)ecting such buildings, and may pass liy-laws for .such purposes, (t) 29-30 V. c. 51, .i. 44. 20 Vic. caj). 77, as to the aepai-ation of Ilurou and Bruce; and 19 Vic. cap. ()t5, and 2.3 Vic. cap. 9."), as to the separation ,)f York and Peel.) The Reeves and Deputy Reeves of the several Municipalities withiri the Junior County are ex officio meud^ers of the l*ro visional Council. (Sec. 70.) (i) The new Council demands the appointment of a new presiding oflicer. The pro,)er oflicer to jiresicle over a ('ounty Council is the Warden of the County. Rut temporary provision is needed for the appointment of a presiding officer at the electif)n of Warden. This section makes the provision temporarily needed in such a case. The next section provides for tlie election of Wardeii and otl.er provi- sional officers. (f) The mode of appointment is not here sy)ecified, but, strictly speaking, all s\ich appointments ought to be by Rydaw. (See notes h and i to sec. 22[\. ) ( Council of th(! Union, and any money raised Ijy tho Provisional Council in the Junior Cotuity shall 1)0 ind.'|)endent of the nioni^y raised therein by the Council of tho Union, (j) 20-30 V. c. ol. .s. 4.5. lilj. After a Provisional Council has procured the neces- sary j)roj);^'i'ty, and erected thereon the pi'oper buildings for a Couit Hou.se and Caol, such Council, ;ind the Council of the Senior or reni:uuin,t( Counties, may enter into an agree- ment for the settlement of their joint liabilities and the disposition of their joint a.ssets (otluu" than r(>al estate), and for determinin.g the b:ilance or amount that may 1)0 due by the one County to the oth'n', ami the time of payment thereof; and in determining such balance tlie Senior or remaining Counties shall assume the debts of the Union, and the Junior County be charged with such part thei-eof as may be just; and the value of the real o^state, which, upon the se})aration, becomes the ))roperty of the Senior or Junior County res[H'ctively, shall also be taken into account, ami any improvement ellected by the Union which either County gets the exclusive benefit of. (k) 2'J-30 Y. c. 51, s. 46. 40, No member of the Provisional Council shall vote or take any part in the Council of the Union on any question affecting such agreement, or the negotiation therefor. (/) 2y-30 V. c. 51, a. 47. perty as may be iieccs-inri/ property for the purjjoses niuiitionod. (See Jidiik of Mh-hhjiin v. Nilca, I Doug. (Mie'h.) 4(U ; JhtrUon Cttllcge v. Executors of VhamhcrK, 3 JoiieH, Eij. (N. C.) 2iVJ; State Hank v. Bmckenrhlgt, 7 Wackf. (Ind.) »>5.) (j) Each (^oiiiicil i.s intended to govern a (liflVivnt boitrate. (See sec. 227 and following sectmus. ) (I) The reason »s plain. Though the m jmbers of the lYovjsional Couuuii are also membera uf the Council oi \ixr S(>paration. (n) L>r(n'liiiii;iti(in, (oo) separate the .Tuiiior (^1UIltv from rountii's by t!u! Senior ov reiiiaiuiui; ( 'oiiiity oi" Counties, and shall declaro lion. ^"' such separation to take efl'cct on the first day of January next after tlu; end of three months from the date of the proclamation ; and on that day tlu^ Courts and ollieers of tho Union (including Justices of the Peace) shall cease to have any juristliction in the Junior County; (p) and the real ijowdividwi. property of the Corporation of tho Union situate in the Junior County shall become the prt)perty of the ( !orporation of the Junior County, and the I'eal ]n*operty situate in the remainiiiif County or United (\)unties shall be the projterty of tlu^ (Jorporation of the remaininjf County or United Counties ; (7) and tlu^ other assets belonying to the (Joqto- ration of tho Union sliall belong to and be tlie property of th(! Senior or Junior County or Union of Counties respec- tively, as agnsed upon at the se])aration; (r) and if not otherwise disposed of by agreement or arbitration, they shall b(!long to and bo the ])roperty of the Senior County or Union of Counties ; (s) and in the case of choses in action, they (00) See note I to sec. 8. (p) A commission granted to a person to take recognizances of bail, &c., within the (lore District, M'lis held not to empower him to take recogiiizanci.'s of l)ail in tlie County of iJnuit after its separation from the Gore District. (Carter v. Sn/liran, 4 11. C. C. P. '2!»8.) lint where the conmiission was granted for the Midland District, which included the County of I'rince Edward and the United Counties of Frontenac, Lennox and Addington, it was held that the commissi(uier resident in Frontenac, Lennox and Addington, after the separation of Prince Edward, had authority still to administer affidavits, as in the United Counties. (Mr Whirtcr v. Vurbctt, 4 U.C. C. P. '20.3; see also iUirk V. JJarl(lti(i)i, 15 U. C. Q. B. 591 ; and FlcmiiHj v. McNnuijlikn, 10 U. C. Q. B. 11(4. It has been held that before the passing of Stat. t)nt. 82 Vict. cap. 30, sec. 132, subsec. 2, that the Treasurer of the Senior County had no power to sell lands situate in the Junior County for arrears of taxes due to the Union before the separation. (C. P. n. S. V. Ai/micu U. C. C. P. , June 23, 1873. ) By English Statute 2 & 3 AVm. IV. cap. 04, Sch. O. 30, Cliftcm was made a part of the Parliamentary Borough of Bristol, which is a County in itself. Except so far as that Act operated, Clifton was in the County of Cloucester. Jftld, that after the passing of the Municipal Corpora- tions Act, 5 & Wm. IV. cap. 70, ss. 7, 8, the Gloucester Justices had no longer the power to make an order diverting a footway in Clifton. 'The King v. The Justices of Gloucestershire, 4 A. & E. 089.) (ri)])crty,&c. contimiL'tl. Execution .iiiil scrvico iif inMcess in liaii'ls of hlirritr .it tiiiio of separiition. Change of vpiuH! in ai'tions.&c, after separa- tion. H TIIK MUNICIPAL MANUAL. [ss. -IT-'IO. If no spori.il opli'T iimilf, ti) bu (MiTii'd un in HL'uiui' tuuutj'. Proviso as to rriiiiiiiiil |iruceuUing!J. P'.apfl for holilin^ courts ill junior county. Procpcilings in civil cast's under tiailablu JlVOCIt'Si. records and papors to bo tninsmittod to tlio jiropoi- oHicors of such County, (w) liD-3U V. c. 51, h. 52 ; 32 V. c. 43, ». 18. 47. In (''i«o "o R^ich change be directed, all such actions, and other judicial civil proceedings, shal! l)e carricul on and tried in the Henior County; (x) but nothing in tliis Act contained sliall be con.strued to affect tlio provisions of sec- tions lifty-two, fifty-tlweo and fifty-liv(! of tlie Act of the Parliament of the Province of Canada, passed in the session held in the twenty-ninth and thii-tictli years of tlie reign of Her present Maj(!sty, and chai)tored tifty-one, so far as the same relate to criminal proceedings, (i/) 2D-30 V. c. 51, ss. 52, 53 & 55. 48. AH Courts of tlie Junior County required to bo held at a place certain, shall ))e hold in the County Town of the Junior County, (a) 29-30 V. c. 51, s. 51. 4!), Any person an-ested or held to bail under civil pro- cess, before the separation of a Junior from a Senior County, and liable to be imi)risonod, shall be so imprisoned in the Gaol of the County in which he was arrested ; and all pro- ceedings in any suit or action in which any person was so arrested or held to bail, and all })roceedings after judgment founded on the Jirrest or holding to bail, shall be carried on as if the arrest or liolding to bail had taken place in such County as a separate County ; and in case the proceedings are to be h.ad in the Junior County, all the records and papers rilutive to the case shall be transmitted to the proper officer of the Junior County, {b) 2U-30 V. c. 51, s. 5G. (w) The dissolution should not affect pending proceedings. But where it is for the couveuience of the parties that the venue should be changed to the new County, a discretionary power to order the change is here ve.sted in the Court or a Judge. The change may be by consent or witliout consent, on a proper case showai by aflidavit, (See Harrison's C. L. P. Act, sec. 85, and notes thereto. ) {x) The Senior County is that in which the Court House and Gaol. &c., are situate. (Sec. 32.) 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 chaiiguig the venue to the Junior County after its separation. (y) The old sections, so far as they relate to Criminal Procedure, are here preserved. The reason is that Criminal Procedure, under the B. N. A. .A.ct, can only be repealed by the Dominion Legislature. (Sec. 91, subsec. 27; see further, note v to sec. 304.) (a) Such as Assizes, Quarter Sessions, County Courts and Surro- gate Courts, hut not Division Courts, unless it be the Court for tlie Division in which the County Town is situate, (b) See note v to sac. i5. H8. no, 51.] 'FORMATION OB' NEW COUPOUATIONS. 35 riO, III Cii^'^ ii ilfl>t()r or other person he (in manner pro- PrivilcRcsof serihed hy hiw) luhuitteil to the (liiol limits of a Union of !i''jl,7i'ttr,i tu Countios, and tho Union ho afterwards dissolved, or one or kh'I liniits ,, ,. , 1 1 /• xi IT • 1 h.ivimI (111 ills- more ( oiinties }>('■ separated trom the Inion, sueli peison or sulutioii.ii ■ dehtor may notwithstanding travel and residi; in any portion of tho said Countios, an if no dissolution or separatioTi had taken jilaee, without eommitting a hreaeh of any bond or the eondition thereof, oi' a forfeiture of any security given for the purpose of ohtainiug the lienetit of such limits ; (c) and in case any such person, after tho dissolution of tho Union, he surrendei'od or ordered to he committed to I'losn custody, ho shall he surrendered or committed to the SheriiF of the County in which ho was arrested, and he imju-isoncd in the Gaol thereof, (r/) 2\)-30 V. c. .51, s. .57. Division VI. — Of MArrERs Consequent ufon the Formation of ^ New Corporations. I Bji-Jaios, continvance of c;x;istin(j. Sec. 51, f>2. 'I iJclits and Liabilities not affected. Sec. 52-57. %_ Officials, how affected. Sec. 58-01. •ti 51. In case any Village is Incorporated, or Village or n.v-inwsin .' Town (with or without additional area) erected into a Town tH fDiiiKitioii 'A or City, or a Township or County becomes soi)arated, tho "' "7^ '''"■,■ •' ' . .1 • I 1 11 • • . iioratiiiiis to I By-laws m force therein resi)ectively shall continue m force (ontimu! in I until repealed or altered by the Council of the new Corpo- a'i[ere"(i'b\ ration ; (e) but no such Bydaws sliall be repealed or altered i^'in'^ ii "i ^ ' ' * such coriio ration. [c] The design of this is to entitle a (lel)tor on the Gael limits of United Counties to have the benelit of sueli limits after as well as before the separation of one or more of the County or Comities from the remainder ; but the necessity for such a jirovision, in the present ahered state of the law, is not very apparent. Bonds to the limits are no longer conditioned to abide within the limits of any p.articular County or Counties, but "to observe and obey all notices, orders, or rules of Court, touching or concerning such debtor, or his answer- ing interrogatories, or his apjiearing to be examined riva voce, or his returning and being remanded into close custody," &c. (C(m. Stat. U. C cap. 24, sec. '25.) So long as the debtor is in a position to return to the proper County, and observe and obey all notices, &o., he may reside where he pleases without a breach of the condition of the limit bond. {il) While the debtor is on the limits, he may go where he pleases, 80 long as in a position to observe and obey all notices, &c. ; but if committed to close custody, he is to be rendered to the Sheriff of the Coimty, whether Junior or Senior, in which he was arrested. {(') The effect of this section is to continue existing By-laws of the Union in both the Senior and Junior Counties and Townships respec- IMAGE EVALUATION TEST TARGET (MT-3) 'V ^ // {./ <•• X ^ w? e?. &>■ w Ux 1.0 I.I 1.25 ^'■itt IIIIIM ., ^ mil 2.0 l||||m 1-4 II1I1I.6 V] o *y '¥ ^r e^ e. c). •?.*' >■• ' .■^ V ^. rf> >^ Photographic Sciences Corpomtion iV 4v fs^ v> ;v #^ <> '9) 23 WEST MAIN STREET WEBSTER, NY 14580 (716 1 872-4503 .V. % Wj; W i/x 36 THE MUNICIPAL MANUAL. [ss. 52, 53. Proviso. unless they could have b.?en or can be legally repealed or altered by the Council which passed the same. (/) 29-30 V. c. 51, ss. 21 ihwfll, 12 East. 22; The Khit!i ami t<» Conned ot the senior or remaining (.ounty or 1 ownsnip i.in.i thu oia shall issue its debentuivs or other obligations for any part 'I'l'iii'ileinali- of any debt contracted by the Union for which df^bentures ties. or other oldigation might have been, but iiad not been issmnl, liefore the di.ssolution ; and such debentures or obligations shall recite or state the liability of the Junior County or Township therefor under this Act ; and tho Junior County or Township .shall be liable therefor as if the same had been issued by the Union before the dissolu- tion. 0') 29-30 V. c. 51, s. 02. (h) This strengthens the provisions contained in the previous section for the protection of ereilitors. At one time Junior Town- ships and Junior t'ounties only, after separation, were still niado liable to existing debts. The present section extemls tlie liability to a newly erected Incorporated Village, i.e., renders it still liable for debts of the Township at the time of the incorporation of tlio Village. A Villaj'e made a Town, of efiurse remaina sul)ject to it.? debts, being in etlect the same Munioijtality advanced to a Tom'u. So if a Town be erected into a City. 'I'lie effect of this section is that a Village newly incorporated remains Iial)le to j)re-existing Township debts, and Towns and Cities respectively remain liable for the debts contracted by them while they were Incorporated Villages or Towns. The same princii)le is also, by this section, made applicable to Townships separating from a Union. (i) The effect of sec. ryl is to exempt tracts of land annexed from the debts of the Munieipahty to which they formerly belonged. The effect of this section, re.id in connection with it, is to render the .Municipality to which the annexation is made. liable to eoinpen- sate the former Municipality a reasonable proportion of the pro- existing debts. (j) In the reading of this section there are three points lo be noted. Firnt, that after the dissolution, tLo Council of the remain- THE MUNICIPAL MANUAL. [ss. 56, 57. ASBPSS- tiicntH fiir jri'ar piv- ■••-•(liiiK iliH- solution, who to belung to. Sjuvial rntoH lor (li'lits continui'd, Ami to III,' piiid over by f iPiiHiiriT of the junior iiounty. If the sum paid ovef f xcccilf thn juHtriinount, fho ex!H'8S may be recovered. Kortn of ac- tion. 56. All assessments imposed by the Cotincil of the then Cori)oration for the year next before the year in which the new Corporation is formetl by separation therefrom, shall belong to the then Coi-jjoration, and shall bo collected and paid over accordingly, and after the sejuiration all 8i)ecial rates for the payment of debts theretofore imposed upon the locality by any By-law of the former Corporation shall continue to be levied by the new Corporation ; aJid the Treasurer of the new Corporation shall i»iiy over the amount SIS received to the Treasurer of the Seiior or remaining Municipality, and the latter shall apply the money so received in the same manner as the money raised under the same Jiy-law in tlie Senior or remaining Municipality, (k) Vide 2U-30 V. c. 51, s. 03. 5T. In case the amount so paid over as in the last preceding section ])rovided, or to any creditor of the Senior or remaining Municipality, in i-espeet of a liability of the former Corporation, exceeds the sum which, by the agree- ment or award betweei t'^e Councils, the new Corporation ought to pay, the exc:ss may Ije recovered against the Senior or remaining Municipality as for money paid or as for money had and received, as the case may be. (/) 29-30 V. c. 5i, 8. 64. ing County or ToAvnship shall issue its debentures or other obliga- tions ; hut, to be otfcotual under this section, only " for any part of any ileht contracted by the Union." iSicond, that such deljentures, &c., sliall recite or state the liability of the Junior County or Township tlierefor, untler this Act : and Third, that the .Junior County or Township shall be liable thereou .is if the same had been issued by the Junior County or Township. Some doubt may arise on the third point, as to the nature of the liability, ». e., whether it is to l)e a joint and several liability or joint only. The words used, " na if the same had been issued by the Unicm before the dissolution," would indicate the former. The object of the section is to provide for the completion of securities to creditors not perfect at the time of separation. {k') 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 Jjc collected by each respective collector, as if the By-law imposing the rates hatl been made after the separation by each County or Township separately. Such is tlie effect of the By-law of the Union having force in each Municipality severally after the dissoluti(m of the Union. The duties of th^ Treasurers require careful attention. (I) The liability of the Junior County or Township respectively notwithstanding separation, is explained in the note to see. rto. The right of the Senior County or Township to rates imi)08ed before the 88. 58-GO.] PUBLIC OFFICERS. Former council and ollircrs to cxcrcne juriHdirtion over new tiiuuiripali- tiffl, kc, until now couni'ilii are urganized. 58, In ciiso any Villapfo is incorporated, or any Village or Town is erected into a Town or City, or any Township or (Jounty becomes 8e|>arated, the Council and members thereof, having authority in the locality or Municipality immediately previous, shall, until the Council for the Corporation be organized, contintie to have the same powers as before ; and all other officei-s and servants of the locality or Municipality shall, until dismissed, or until successors be ap[»ointod, continue in their res[)ectivo offices, with the same i>owers, duties, and liabilities as before. (<») 29-30 V. c. 51, s. 25. Si9. The sf>])aration of a Junior County or Townshij) from a Union of Counties or Townships, shall not in any case or in any manner whatever affect the office, duty, power or responsibility of any public officer of the Union who con- tinues a public officer of the Senior County or Township or remaining Counties or Towiishij)s after such se])aration, or the sureties of any such officer or their lialtility, further than by limiting such office, duty, power, i "sponsibility, suretyship and liability to the Senior County or Township or remaining Counties or Townships. («) 29-30 V. c. 51, s. Gl, sub. 1. 00. All such public officers shall, after such separation, Further in be tb(! oflicei-s of the Senior County or Townshii) or remain- ^',',j"''^*"* ing Counties or Townships, as if they had originally been respectively appointed jmblic officers for such Senior County or Township or for such remaining Counties or Townships only, (o) 29-30 V. c. 51, s. 61, sub. 2. Effect of Hoparation upon ]iublic omccrs and tlifir sure- ties. separation, is also explained in the note to sec. ;")(). The section under consideration provides for the reimbursement to tlie .Tunior Municipality of any sum which the Junior may have paid, exceechng the i)roportion which it, according to the adjustni'jnt with tho Senior, was bound to contribute. (w) It is necessary that there should not be any period of time without a proper governing body. When the new '.'ouncil is organ- ized, it supersedes the previous ( 'ouncil ; but until such organization, the Council and the members thereof having authority immediately previcms to tlie change, shall have continued autliority. For similar reasons olheers and servants of the Municipality continue until dismissed. (See sec. '220 anil notes tliereto.) (») The necessity for such a provision as this will be manifest upon reading Thompson (t a! v. McLean et al, 17 U. C Q. B. 495. In that case it was held (Burns, .f., dlHsentictite), that without such a provi- si(m the sureties of a Sheriii" were relieved from liability by reason of the change in the office. (o) Tliis is a consequence of the preceding section. Tho declara- tion is not only that the public officers of the Union shall, after tho 40 TWE MUNICIPAL MANUAL. [ss. Gl, G2. thsir 01. All sureties fi)r suoli juihlk; otlicors kIisiII Im nml •urutles. nMiKiiii liable, as if tli»7 luul bocuiiu! tho surotit's for hucIi public oflicei-s in res])ect only of such Boiiior {bounty or Towusliiji or of such n'maininj^ ( iniutios or Townsliips ; and all HocMirities wiiicli have bcvii ) 21)-30 V. c. 51, s. Gl, sub. 3 it 4. PART II. OF MUNICIPAL COUNCILS, HOW COMTOSEI). Trri.E I. — The MEMiu".u.-t. Title II.— Qualikication, Disqualikicatu>n, and Kxemptions. TITLE I.— THE MEMBl'US. Division L — Ls Counties. Division 11. — Is Citirs. Division ITL — In Towns. Division IV. — In Vii.i,a(ies. Division V. — In Townships. Division VI. — In Puovisional Corpohations. Division I. Councils.- -In Countirs. -Sec. G2'ti5. Counties. 0!J. The Council of every County {a) shall consist of the^ Reeves and Deputy Reeves of the Townships and Villages ■within the County, and of any Towns within the County which have not withdrawn from the jurisdiction of the separation, J)e the olficers of the Stuior County or Township or remaining Counties or Townships, but he so "as if they had origi- nally been respectively appointed public officers for auoh Senior County or Township or for sueli remaining Counties or Township.s only." (p) This section only relates to existing securities, and so is not to be read as aB'ectiug the right to require new sureties whou new sureties may in any case be properly demanded. (See note n to soc. HO. ) (a) The Council is not the Corporation, but only the governing body, and in some cases the legislative body of the Corporation. (See note k to sec. 7, uotu / to sec. 8, and uoto rk, undor his hand, ami tho Heal of tho jSlunicipiil Corporation, that such llcovt; or l)cputy iJocnc was didy elected, and has mad • and suhscrilu'd the dcelarations of office and (^ jalilication as such Ueeve or l)cputy Keiive; nor Ccrffn(iit»-t in C'as(! of a Dcsputy lU'eve, until he has also liled with the ','j!,',";,'n,V Clerk of th(? County an allirmation or declaration of the numiMiDr Clerk or other person having the lei^al custody of the last ,i'|'„'| jlLus^ revised Assessment Rolls for thci Municinality wldch he iiyi'i -rf toiii- lilf'l '*V represents, that there appear upon such Rolls the nanu-s of nrvis'iuiil at least live hundi-ed freeholders and hoiiselioldci-s in the '^l^l'l'^.^ Municipality posscssini; the same proj»erty (pialilication as voters, for the tirst Deputy Rot^ve elected for such iMunii-i- ])ality, and that no alteration reducini,' the limits of the Municipality, and the niiudier of pei-sons possessiiiLC tlu) Bunio ju'operty qualifioutiou as voters, below fivt; hundred for each additional Deputy Reeve, sitice ♦he said Rolls wen; last revised, has taken place. (/>) 2*J-.")0 V. c. o'2, s. 07. (ltd) Townships arc; cntitlfd to a curtain numhcr of Reiivta and Deputy llcevcs, in proi)i>rtion to their ))(»iiiilati(ni. (See seen. (')7, 08, ()!).) 'I'lie Itcovcs and Di^imty Itccvcs an: tlio rcprustntativca of the local MunitiiJalitius in tho County Council. 'I'lie Council of tliu County is composiMl of tlicni. Tluy arc autliorizi'd and rc(|uiri;il to elect one of their number to be tho Warden or head of the County Council. (b) Tho Clerk may reject the certihcato if not in the form rccpiired. The section is ])f>sitive that no itecve, Ac, shall take his seat. &c., imtil ho has tiled, &c. Tho certiticato made necessary is t!ie evidence of the right of the per.son jtrosenting it to a seat in tlu- County Council. The ('ounty Clerk is in the first instance made the judge of its legal suthcieney. Hut no Clerk sliould, according to hi.s o« n capri(;o or ))refercnce of any kiml, deeide in favour of and allow certain persons with defective eertilicatos to take their siats. and disallow other cc'rtilicates (juite as good. In such a ease the < 'lerk, if made a party to a contested election [irocceflings, woulil he in all prohability made to paj' costs. Ikit it iloes not follow that a Uccve or Deputy lleeve, whose certilieate is tlcfet^tive, if once .'idniitti^d hy the Clerk to sit and vote, has not the right to do so when in truth qualitied. Nor does it follow that a certiticato in all respects regular entitles the Reeve or Deputy Heeve to sit an()ra- tion, certify that ('. />., of , Esquire, was duly elected lleevo {or Deputy lleeve, as the cane 7iiai/ be) of tho said Township (Town or Villai^e, as the case maij be), and has maile nn«l sul)sci-il«!(l the declarations of office and qualitication as such Ueevo (or Deputy llocvo, a* the case may be). (riven inidor my hand and tho Seal of tho .said Corpo- ration of , at , in the said Township (Town or Village, as the case may he), this day of A.D. 18 . A. n., Township (Toion or Village) Clerk. Form of oor- nlli'atc as to iiuiiilior of fri't'liolili'rs ami housu- liohlcrn. Seal of tho ] Municipal ;• Corporation. ) 05, The certificate .secondly mentioned may bo in the following form : (<•< ) not givo tho p.irty hdldiiig it tlie riglit to sit and vote in the C'onncil. Tliat right coinud from his l)eiiig the Koevu or Dejmty Reeve, and having made tho retjuired deehirations. If the ccrtilicate were the csseneo of liis (inalilication, and not merely the evidence of it, then it might 1)0 lield tliat tho acts done l)y tlie Reeve or Deputy Roovc who (lid not noasess it, or only possesHcd a defective one, were void. But tho eertilioato merely being evideni.'o of his cpialilieation, if it turn out that he is really ([ualitied, it cannot be held that I'.s acts as a member of tho ("ounty ('ouneil are void. Nor can they be in any way impugned on account of the imperfect certificate. The statute docs not declare that tho 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 l)o binding. The section in this respect may be i)roperly considered directory and so construed. (See Tim Queen ex ret. McManus v. Fenjmon, 2 U. C. L. J. N. 8. ID.) (r) It is to be hoped that as the Legislature has at length seen fit to give a form of certificate, that the form will be closely followed. In previous Acts no form was given. The consecjuonce was a variety of forms in use, that wore often incorrect. (See the forms held bad in The Qiorii ex rel. MeManns v. Ferguson, 2 U. C. L. J. N. 8. 19.) Tho Editor, in the notes to the second edition of this work, prepared and [)ublished a form. Tho Legislature, in this Act, iias adopted the Editor's form. (cc) See uote c to sec. 64. tt 88. GG, 07.] TOWN COUNCILS. I, A. Ji., of , (tcntlomnn, C.'lork of tho Townsliip (Town or Viilago, as the ca.v indi/ lie) of , in tlio (•oimty of , do herel»y dcclaro and allii-ni .i.s follows : (1.) That I 'tn» tlio poison liaviii<,' tlio lof,'al cu.stody o' tlu! Lust n!vi.s«nl As.s('ssin('nt Roll for tho .said Town.sliip (Town or Village, us the eatie may he.) (2.) That thoro appear upon the .said roll tho nanie.s of at lea.st hundred (fire hundroil J\yr each l)cj))ity Rcevi',) frcolioldera and householdei-s in the said Town.sliip (Town or Village, nx the. case mni/ be), pos.st!.s8ing tho .same property qualifications lus voters. (3.) That no alteration reducing tho limits of tho said Municipality, and the nvuuher of persons [»ossessing tho same j)roperty (pialitlcations as voters below hundred {five hinidred for each JJejnifi/ Reeve,) since tho said roll was last revised, has tjiken place. New A. B. 13 Division II. — In CmBa. CounciU.—Sec. GG. 00. The Council of every City (d) sliall consist of the cities. Mayoi*, wlio shall he the head thereof, and throe Aldei-men for every Ward, to he elected in accordance with the pro- visions of this Act. (f'rty (lualification as voters, then a Deputy Reeve shall Im> added, and for (ivery additional live hundred names of persons possessini; the same property (jualification us voters on such roll, there shall he elected an additional Deputv Roevo. (ee) M V. c. 30, 8. G ; 3.'$ V. c. 2(i, ss. 1 it 2 ; 34 V. c. 30, s. 1. lliriir|ii>IH- tcd villiijfi'j Division IV. — In Incokpouateo Villages. Councils. — Sec. GS. ^8. The Council (/) of every Incorporated Village sliall consist of one lleove, who shall bo the head thereof, and four Counciiloi's ; anil if the; Villatfo had the name^iof five hundred frtu'liolders and houst-hoKlers on the last revised Assessnu'nt Roll, jiossessing the sanu! property tpialitication us voters, then of a Rt^eve, J-)eputy Reeve, and three Coun- cillors ; anust.'liol(lers on the last j-erUfd Anses-tnitnt lioll." liut it is ainirehcmled tliat if the names were fraudulently inserted on the Itoll, for tlie juirposte of enahliug the partieular Municipality to obtain a Deputy Reeve, the Holl would not he conclusive. (See The Qni'vn I'.r ri'l. J/art v. Lindsdj/, IS IJ.C. Q. Ji. TjI. ) Then as to additional lieputy Reeves, the provision is n t that " for each additioiuil tive hundred frichnlilcrH and hoiMhuhlcrx " there shall he a Deputy Reeve, hut that for " every additional live hundred iiamis of persons possessing the same jiropcrty ([ualitieation as voters on such Roll," tiiere sliall be an additional i)eputy Reeve. Now tliere may be women who, though not voters, have the same pro}ierty qualilication as voters. Whether women, whose names appear on the Roll, should be added for the puri)ose of ascertaining the right to a Deputy Reeve, is one of the questions which directly arise under this section. Females are not entitled, in thia country, to vote at Municipal Elections. See note b to sec. 77. (/) See note d to sec. 66. (//) Sec note t-e to .sec, 07. M. 09-71.] QUAMFKATIOVS. 46 DivisioM V. — Tn ToWNsiitrs. CounciU.—SfC. GO. 69. Tlio Council {neral vote ; hut if the TownHhip had the names of five hundred freeholders and householders on the last revised Assessment Itoll, possessing' the sanio property qualification as votcirs, then the Couneil shall consist of a Reeve, Deputy Heeve, and three (Councillors; and for every additional five hundred names of persons possessiiij,' the saJUH property (jualilication as voters on such IJoll, tliere shall he elected an additional Deputy Reeve instead of a Councillor, (j/y) liO-'JO V. c. 52, s. G6,' suh. 5. Division VI. — In Paovi.sioNAi. Corpouations. Councih.—Src. 7'K •JO. The Reeves and Deputy Reeves of the Municipali- What nevpa ties within a Junior ("ounty, f c r which a Provisional ",',^'.v,'.'^''"\ye Council is e.stal)lished, shall, ex oflirio, ho the niendjers of vrovisioiuil the Provisional Council, {h) 20-30 V. c. 51, s. G'J. '"""*"• TITLE II.— QUALIFICATION, DISQUALIFICATION, AND EXEMPTIONS. Division I.- DlVlSION II.- DlVlSlON III.- -Of Quamkication. -Ok DisguAi.iFU'ATioN. -Of E.\F.MrTioNs. Division I, — Of Qualification. In each MnninpaUty. Sec, 71. Nature of Estate to be jmssesscit. Sec. 72, Mliere no Assessment lioU prondcd for. Sec. 73. Where only one qualified person. Sec. 7Jf. I'l, The persons qualified to ho elected Mayoi-s, Alder- Qn«iinration men, Reeves, Deputy Reeves, and Councillors of any i'o«''&"c?' (g) See note d to sec. 66. (gg) See note ec to Bee. 67. (A) Sec see. 34 and following sections, as to Provisional Councils. See note k to sec. 7, note I to sec. 8, and note g to subsec. 27 of sec. 384, as to the executive and legislative powers of an ordinary Muni" cipal Council. 4t} THE MUNICIPAL MANUAL. [n. 71. Muiiiripality, (i) aro Huch ppixoiiH as rosido within hucIi Muiiici|»;ili(y, or v.ltliiii two inilos llicn'of, (/) and .ire natural lioru or natiirali//>t at the time of the eU'otioii reHideiit in an adjoining 'I'ownshijxif tlie County in which the City was terri- torially situate, though almost in the lioundary between the two Munieinalities, was not qualilled to be elected a member of the < 'ouneil of tlie City. ( Tin- Quirn r.r. irl. lihixdtll v. UorhfMvr, 7 U. C. li. J. 101 ; Th>' QiKPii ex rrl. Flfmliuj v. Smith, Ih. H(). ) Hut this sec- tion extends the jtrivileges iieyond residents of tlie particular Muni- cipality to residents witnin two miles of which the Municipality is situate. (li) Indians, beinp British subjects, are persons within tlie meaning pf this section. {The Queen ex rel. Hibb v. White, 5 I'rac, 11. 315; aee further, note / to sec. 77.) (j) See note g to sec. 77. (k) See seo. 75. (/) B. and A. were partnei \, occupying p'-emises as co-tenants under a yearly tenancy on the terms of an expired lease. Before the nomination day they dissolved p.artnership, B. leaving the business anr intuwni leasehold to sixteen hni\dred dollars; (."V) In Cities— Freehold to one thousand live hundred incltlon dolhrn, or leasehold to threo thousand dollars ; (4.) In Townships —Freehold to four hundrud dollars, or in town leasehold to eight hundreil dollars. "'' ''" And so in tho same proportions in all MunicipulitieH, in rroporty •< ca.se the property is partly freehold and partly leasehold. ilJI^j^"* 21)30 V. c. 51, Hs. 70 i lOG ; 31 V. c. 30, s. 7.' 19.) Nor can the aasosBment on realty ho supplemented J)y tho assussiiient on i>ersonalt,' ' ' '.) A laiidluril is sutliciently poHHe-ssed where liia tenant is assessed. Tfm Quern ex re/. S/idw v. Mnchuzie, 2 Cham. 11. .S(>. ) '^o a laiuUonl may put together properties, some occupied )>y his tei>anl and some hy himself, to make up tliu assessed value required hy the statute. ( The (Junn < v nl. Jhwtir v. (t'owan, 1 I'rac. R. 1()4; see further, note c to sec. 77.) As to the necessary declaration of property, see »oc. 211. («) Tiie qualification may he of an estate legal or Cfpiitahle. The estate, whether legal or ecpiitahlo, need not l)c free fnnn all encum- brances. If encumherctl, and after deducting the gross amount of the encumhrances from tho assessed value of the premises, there be still left a sufficient value in respect of which to (jualify, the (pialifi- cation, notwithstanding the encumbrances, is sufficient. ( T/ic Quien exrel. BlaMt'ijx. Canaran, 1 U.C. L. J. N..S. 188.) Where defendant, in November, 1858, conveyed the real estate, which formed the subject matter of his (pialification, to his father for a consideration vf £.S((0, for which he took his father's notes payable at distant dates, and in February, 1800, purchased the property back, returning to his father all the notes, though tlio father did not reconvey the property to the son till the 3rd October, 1860; yet the son was held to nave had at the time of the assessment an equitable estate within the meaning of the Act. (The Queen ex rel Tilt v. Cfu-i/ne, 7 U. C. L. J. 99; see further, liolleMonv. Cope, L. R. OC. P. 29'j; ,">7»(('V v. Mar.ihit/I, L. R. 8 0. P. '2«)9; Heelix v. ninin, 18 C. B. N. H. 90; 'iVehster v. Orerseem of Afihton-utuler-Li/ne, Orme's Case, L. R. 8 0. P. 281 ; Iladfield'a Case, Jb. Wi. (o) Both the proj^erty qualification and tho rating are nccesRary to give a quaUtication for onice under the section. ( The Queen ex rel. Metcalfe v. Smart, 10 U. C. Q. B. 89.) When land is rated against both the owner and occupant, or owner and tenant, tho assessor must place both names within brackets on the Roll, and should write opposite the name of the owner the letter "F.," and opjjosite the name of the occupant or tenant the letter "H." or "F." Both names should be numbered on the Roll. (.32 Vic. cap. 36, s. 26.) Tlve omis- 48 "f.casoliold' ftcllllfij. Niituro of THE MUNlCir.'.L MAXUAL. [s. 72. •JrJ. 'I'lif> torm " Icasoliolil," in tlio foro/roinfi; section, shall not iiicludo a ttTin loss than a tcMiancy tor a year, or from year to year ; (uo) ami the (jiialification of all jtersons, where a (|ualili('atiou is required under this Act, may be of an es(Mt(! cither le^al or e(^uit)»ble, or may bo composed partly of each, {p) L"J-30 V. c. 51, s. 70. sion to number them, however, docs not inv.ilidate the assessment. (Sec Tlic. Qunn rx rii. Lnrhfvrd v. Fnzdl, 9 II. V. L. .J. N. S. Ti. ) 'I'ho r.'itiiig should lie by n.'une on the lioll. ( Tin- Qitrvn ex nl. Mtfctt/fr v, SiiKirf, li Cliam. 11. 114; but see ThcQiicin ex nl. Jyauij/ilan v. iin}iy, lb. IliO. ) Where on the iNssessment Roll, under the general heading, "Names of ta.vable parties," were entered tho names of " Ker, William and Henry," for two separate parcels of land, and in tho proper columns were the letters "b\" anj)li'ii(irlh ft al v. (Iriiham, 7 U. C. C. 1*. 171, and Little v. Overseers of /'< nr'U/i, L. R. 8 C. P. 2")!).) .Judges are in general disposed to go as far as the facts will allow for the purpose of reeonciluig the mode of rating with the facts, if the person elected has really a legal quali- fication. (The (Jiurn ex rel. Northwuod v. Askin, 7 U. C. L. .f. 1.30: 7Vi.e qurrn ex rd. Ford v. Cottbujham, 1 U. (). L. .1. N. S. 214; 7/ie Qnecn ex rel. Chnwher.-^ v. Allison, Ih. 244; The Oldhnm Case, \ O'M. & H. I.")!}; see further, note in to see. 77.) Where a person elected as alderman of a city m.ade a declaration of office, inadvertently qualifying upon property in respect of which he was not entitled to qualify, but was (piaiiiled in respect of other property, his election was sustained. ( The Queen ex rel. Jfartrei/ v. J)irke!/, 1 U. C. L. J. N. S. I'.tO.) Projierty owned by a canilidate, but not mentioned on the Assessment iioll, cannot be made available. ( The Queen ex rel. Carroll v. lieckmith et al, 1 I'rac. R. 278.) An administrator, though rated in his own name for real estate belonging to the deceased, is not entitled to (pialify upon such real estate. ( The Queen ex rel. Stork v. Davis, 3 U. C. L. J. 128.) Rut the Roll, as to jjroperty qualification, is in general binding and conclusive. ( The Queen ex rel. Fluett v. Seinandie, 5 Prac. R. 19.) In the case of electors there is an express declaration to that efi'eet. (.See note >t to sec. 74.) The amount of property r.ated 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 ". Van Velsor, 5 Prac. R. 319; The Queen ex rel. Philhrick v. Smart, lb. 323. ) (oo) A person having the mere possession of a Crown lot, deter- minable at any moment, though rightly assessed under the Assess- ment Act, has no such estate in the land as will qualify him for office. (The Queen ex rel. Laeli/ord v. Frizell, 9 C. L. .J. N. S. 27; see further, Mat/hew v. Suttk et al,4E. k B. 347, 357; Whitev. Bayley etal, IOC. B. N. S. 227.) (;>) The latter part of this section is a repetition of a portion of section 71. (See note n to that section.) ss. 73-75.] DISQUALIFICATION'S. 41) tli. In co.sc of a new Townsliip erocted by proclamation, in new for which tlicro has becui no Assessment Roll, every person {;,'X"fn'^.'i^,p who, at the time of the first election, has such an interest ftsH.%ssmtiit in real pro|)erty, and to such an amount as heroinbeforo ^" ' mentioned, shall be deemed to be jmssessed of a sufficient jtroperty qualilication. (7) 29-30 V. c. 51, s. 71. 74. In case in a jNIunicipality there are not at least two j^ ^^^jy ^„^^ persons (|ualitieil to be elected for each seat in the Council, inTsnn in no (pialitication beyond the qualification of an elector shall '!"''"'"• be necessary in the persons to be elected, (r) 29-30 V. c. 51, s. 72. Division II. — Op Disqualification, Persons dUqnaliJied. — Sec. 75. 15. No Judge of any Court of civil jurisdiction, no Persons Gaoler or Keeper of a House of Correction, no ShenfF, vraii;ih V. Liirtihnni, 1*2 11. C. C. P. UK}; see further, The Qiicen ex rcl. AVnwr.s v. iS/innson, 5 U. C. L. J. 42. It i.s not ia cx])rcss terms declared that an insolvent shall ho di:;(|ualilied, (See T/ii- Kiiiij V. Cli'iliji, 5 A. & E. (Ul'.t; see also see. \-',\ of tliis Act; see further, sees. 1"),'}, 1,>1, 15!> & J()0 of this Act as to otiicr dis<]ualihca- tions.) Hy the fjUglish Act 5 & G \Vm. IV. eaj). 7(5, s. 28, no person being in holy orders, or being the rcguhir imnister of a dissenting con- gregation, ia (jualiliod to be a Councillor of a 15oi-o\'gh. IJnt it waa held that a minister ai)pointed to otticiate occasionally or temporarily to a dissenting congregation was not dis(|uahlied. ( The Queen v. Ohlhaui, 10 B. & S. iy;j.) {t) An "innkeeper" is tho owner of a house who hohls out that he will receive all travellers and sojourners who are willing to i)ay a price adeipiate to the accommodation r(.'([uired. (See Thonip-ntn v. Lacii, H li. & A. 288; Dan.^,',i v. Rh-hnrdson, 3 E. & B. 144; Ilohhr V. Sonlhi, 8 C. B. N. S. 204; Allvnx. Snuih, 12 C. B. N. S. CSS: Tim f ally. Borwkic, L. U. 7 Q. B. 711.) The disipialilication under this section is not, however, restricted to innkeepers. It extends to all saloon-keepers and shop-keepers who are licensed to sell spirituous li(luors by retail. A man may he an inidvec2)er under this section, though Avithout a license {The Qmcn c.r nl. F/ntm;j(in v. MrMdhon, 7 Li. C L. J. IT),")), and though he take out tho license in the name of another (MvKkij v. Brown, 5 L . C. b. J. 1)1) ; but if a man, being an innkeeper, in good faith transfers his license, ho ceases to he dis- (jualilied under the Act. (The Qiwcn ex ret. Cnr.icr v. Taylor, G U. C. L. J. GO; see further, Dixon v. Birch, L. It. 8 Ex. 185.) * {u) The object of this part of the section, like that of section 28 of the English Municii)al Coi^^oratiim Act of 5 & (» Wm. IV. cap. 7G, is clearly to pi-event all dealings im the part of the Council with any of its members in their private capajity, or, in other words, to pre- vent a member of tho Council, who stands in the situation of a trustee for tho public, from taking any share or benetit out of the trust fund, or in any contract in tho making of which he, as one of the Council, ought to exercise a superintendence. ( The Queen v. Frauds, 21 L. J. Q. B. 804. ) The evil contemplated being evident, and the words used general, they will be construed to extend to all eases which come within the mischief intended to be guarded against, and which can fairly be brought within the words, (th.) The words of our enact- ment are that *' uo peraou having by himself or his partner au uiterest 8. 7:>.] niSQUALlFICATIOSg. 51 ,t lieM to bo (lis(|Uiiliti('il fioin iM'injf oloctod a niomlxn' of tlie Council of iUi) t'oqiuratiuii liy rcjisoii of lii.s tu'iiig a >sliare- in any contract with or rtgat;e to the Coij)oration, containing covenants for paynioiit of money, was discjnalilied. (Thf (Jmrii i-x nl. Lit(z v. Wil/ii'iD-'Oii, 1 I'rac. It. !(4.) Jt is not necessary that the contract should })C a conliact binding on the Corporation. (77/c (jini'ii v. Frmi'-'i^, 'il L. .1. i). M. .SOI.) Where defendant, before the election, had tendered for some painting and gla/ing re(inired for the city hospital, and, his tender having l)een aceei)ted, he hail done a portion of the work, for which he h.id not hecji paid, but aftcrwardn refused to execute a written contract prepared by the City Solicitor, anil inforni.'d the Mayor of the citj' that he did not intend to go on with the work, he was notwithstanding held to be di.S(piali(ieaso from tlie Corporation, ami no such shnrelioMer on any ques- tion affecting the company, (w) 31 V. c. 30, s. 8. Di\nsio\ III. — Of Exemptions. Officiaii and Pemons exempted. — Sec. 7G. •JfC All persons over sixty years of age ; all members E.xemptions. and officers of the Legislative Assembly of Ontario, and of the Senate or House of Commons of Canada ; all persons in the civil service of the Crown ; all Judges not disfjunlitied by the last preceding section ; all Coroners ; all persons in Pri(^st's orders ; Clergymen and Ministers of the Gos})el of every denomination ; all niendun-s of the Law Society of Ontario, whether IJarristers or Students; all Attorneys and Solicitors in actual ju-actice ; all officers of Courts of Justice ; all memljers of the Medical profession, whether Physicians or Surgeons ; all Professors, Masters, Teachers and other members of any University, College or School in Ontano, and all officers and servants thereof; all Millers; and all Firemen belonging to an authorized Fire Comi)any — are after notice of (lisqiialitication, voters perversely throw away their votes, tiie candidate of the minority is entitled to the seat. But the notice should in such case ])e made to appear clear and satisfactorj'. The Queen ex r/d, Ih. '204.) Tlie notice nmst be such as to bring liome knowledge to the voters, apparently, not only of tlie fact constituting disipialiti- cation, but the law that such fact docs dis(|ualify. (The Quern v. Ten-b-.'^huri/, 18 L.T. N. S. Sfil ; s. c. L. R. 3 Q. B. (529; see further, The Queen ex rel. Dexter v. Gaumn, 1 Prac. R. 104; The Queen ex rel. DarU V. Carruthers, Ih. 114; The Queen ex rel. Furd v. Mcliac, 5 Prac. R. 309; In re E.^.sex Elerfwn, 9 U. C. L. J. '247.) (y) The law was formerly different on l)fith points. (See The Queen ex rel. Padwellv. Sleivrirt et al, '2 Prac. R. 18; The Queen ex rel. Stork V. Davis, 3 U. C. L. J. 1'28; Hie Queen v. York, 2 Q. B. 847; Sunp-^on V. Head;/, 12 M. & W. 7.3G; The Queen v. Franei.-<, 21 L. J. Q. B. .S()4 ; The Queen ex rel. Mark v. Mannimj, 4 Prac. R. 73; The Queen ex rel. Patterson v. Clarke, 5 Prac. R. 337.) {w) A distinction is made between tlie (jualilication for office and the right to vote when elected. Though the interest in the particular case'specilied is not to di8(iualify, it is to be lield sulhcient, in the case of the leaseholder, to prevent him voting "on any question affecting any lease from tiie Corporation;" and in the case of the shareholder in iin incorporated company having dealings with the Council, to prevent him voting "on any ipiestion affecting" the particular company. 54 THE MUNICIPAL JIAXUAL. [s. 77. oxomjit from hcing fleeted or a])j)ointo) in their own right or right of their wives, (c) whether resident or not, ((/) and such of (he i-esidents therein for one month next befoi-e the election as then are, or whose Avives then {ii) The last section contains the (lisqnaliiication^, and this the exemptions. The (liircrcnco lit'tween a . B. 70-1; see also T/w Qwcn v. llarrald, L. \{. 7 Q. 15. 301.) ((•) See note k to s. 71. ((/) It is to be ohservoil that residence is not essential to the right of a freehohler to vote. Hcsidence f(n' a month next before the elec- tion is, however, exjiressly n)ade necessary in the case cu a house- holder. Nice questions arise as to when a party can or cannot bo 8, 77.] QUALIFICATION OP ELECTORS. are liouseliDldors or tenants in tlio ^.Municipality ; {'') fvl} said to he jv resident of a AJiinioiiiality. A man cannot, witliin the Uioaiiing of tlie Miuiioipal laws, ho said to Ijc rcsidont in (ir<> Miuiici- IjalitiuH at tin; saniu tiim;. (Marr v. \"n iiim, 10 U. C. L. J. 'J7.">. ) A man's iLsidLncc is wiiurc liis home is situate -whore his family live. ('/'/(( K'liiij V. lith(iJj:taiit.-i iif Xiirtli. Curri/, 4 1». & C. {)'>'.).) An Dcoa- sional al)sonco fi'om his home to attend to hiisinoss in anuthor Muni- cipality, does not make liis liome less his rosidonco. ( Wli'illinni v. Tlinnm-':, 7 ^1. & *'. 1.) Whore A. had a dwelling-house at Jiowman- ville, whore his wife and family lived, hut hail a saw-mill and store and was iinstmastor in the township of Cartwright, whioh oix'asioned him freijuontly to visit that plaeo, and who, while there, used to board with one of his nioii in a house owned hy himself. Jldil, that after voting in liowmanville he had no right to vote in Cartwright. The (Jio, ,1 ,:,: nl. Tdjilur v. Cnsur, 11 U. t*. Q. B. 4G1.) Mere oolour- able residence is in no case sullioient. ( The Kin;/ v. JJu/.r of J,'ir/ii,iiiii; 77»' (Jiinn v. Exctrr, L. It. 4 (.1 B. 110; 21(1, mi, I'/ V. M,ii,iniiij, L. 11. 2 1'. & D. '1'1,\; Tai/kir v. Th,- (>/v;•.^vY';•.< of th,- i'iiris/, ,;/■ ,SV. M.iri/ AhhotI, L. \\. C. [\ 301); liuiid v. The Ovfrnc rt ot' ill,' I'ltri.-'h uf St. (li'iir,ji', J/tnior, r S'/Karf, Hi. 'A\'2; The. Qui (11 V. 'J'hi G'lKirdiitn.s uf St. /c-s Uninn, L. U. 7 Q. 1>. 4(>7 ; Wiltun V. F' 1 1 month, S Shepley, 47!*; Stc.te v. Frcsf, 4 Harrington, ')')S; Stdte V. J), Cit.siiKird, 1 Texiis, 401; see further, note lo to sec. 41 of the Assessment Act.) {*-) The persons entitled to vote by this section are " freeholders," "householders," or "tenants." Questions often arise as between father and son, or other relatives, as to the position thej' hold to each other in respect t(j the hv.inestead. •Sons ill this country often live with tlicir fathers to a ri])e age, on the pronnse or in the oxpeotation of j-oceiving the homestead " when the old man dies." After the "old man," through lajise of years (U' bodily iniirmity, is dis;.d)led from douig much if anything in the tillage of the farm, he surrenders control to the son, "as the place is to be his." V/heu thoso things hapjion, nice (piostions jirosont tluniselvos as to ■' rf (hitario has evinced a very laudable di'siro to make their oloetion laws known. If there be the same desire that the laws should be under- stood, sonie apjiropriation ought to be made for the [lublieation of cases decided under those laws. The circulation of such reports among the jirofession would bo too small to justify the publication of the reports as a matter of private enterprise. This being so, the Legislature really ought to do whatever is necessary to supply a very on no THE MUNICIPAL MANUAL. [s. 77, which electors shall bo natiiral-born or naturalized subjects necessary want. Frnm such materials as the Editor has been able to collect, he suhjoins a statement of some points decided in some of the ahove mentioned cases as to the subject in hand. The general rule is, that a persfm livnig with his father, having no interest of any kind in the liouso or land, is not entitled to be assessed either as owner, tenant or occuiiant. (Thf (Jii'-oi <:r ri'l. Mi'Vinn v. ilnihaiii, 7 U.C. L. J. 12;').) But wiieii it is proved that an agree{nent exists (vcrlial or otherwise), tliat the son should have one-third or one-half tlie crops as his own, and such agreement is hmia flilo acted on, the son is entitled to be on the Roll. { The lirork-vilh ('due, 7 U.(AL. J. N. S. '1'1\. ) So where it is proved that for some time past the owner has given up the whole management of the farin to his sou, retaining his rigiit to l)e supported from the product of the place, the son dealing with the crops as his own, and disposing of them to his own use. ( //>. ) A clearly established course of dealing or conduct for years as to man- agement and disposition of crops, and acts done by the son in the man- agement of tlie farm, held suiiicient to establish an interest in the crops in tiie son, though tiie evidence of any original agreement or bargain be not clear. (//'.) If the evidence would warrant tlie jury limling the crops (say in the year preceding the last assessment) to lie the pro- perty of the voter, the son is rightly jdaced on the lioll. (/'/.) Occu- pancy to the use and benelit of the occupant is sutfieient. (Il>.) In a milling business, where th(> agreement between the father and the s(m was, that if the son woul- take charge of the mill and manage tlie busi- ness, he should have a share of the prolits, and the son in fact solely managed tlie business, keeping possession of the mill, and iipplying a portiroperty, hut being assessed for this only and voting on it. (/''.) Where tho voter was the tenant of certain pro- perty belonging to his father-indaw, and before the expiration of his tenancy, tho father-indaw, with the consent of the voter (tlie latter being a witness to tho lease), leased tho property to aiiotluT, tho voter's lease not c.qiiriiig until November, and the new lease being made on the 28th -March, 1870, held, that after the surrender by tho lease to which he was a subscribing witness, ho 'jcased to bo a tenant on the 'J8th March, 187I', and that to entitle him to vote, he must have the , i» A. it K. C8(»; He'e iilso y/ic . !'>(); In n' Moijir w'i'J.sraft, II, . I.IS; Jnn- li< nilli'V. Wiit''.\.) A persim is not thelesHa lioiiscliiilder bec.'iiiHi! he h;ts ii portidM of liis house to lodgers. (l'/iiHi/i'-< difii', Aleoek's Uegisttiitioii ( 'ivses, "JO; hiih/i ikiii'a ('a.-:r, Ih. 114; T/ii(Jii(rn V. Diiijhtiin, ") (^. \'t. 8'.)(). ) Nil l<)d|^cr, though occupying the iirincijuil 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 nf the whole, {Tln' K'n,ij v. ICijIix, ('aid. 414.) A person occupying apartments in a jail held not to he a householdei'. (The Qiii'in I.I- ri'l. C/iiir/is'v, l,nn.-<, it I'l, 2 ('ham. 11. 171.) (/) It is to he jiiesunu'd that resident and assessed inhahitants of this Trovince are Hiiti-h suhjects till something is shown to the cojili'ary, fiom which it eau he determined that they are aliens. {Till (Jiii(i/i IX ril. Vi- ,11,11 v. Ji'iiTil/i It III, 1 i'rae. U. 2S4,) It is not suUieieiit for relator to swear that certain voters are aliens, witiiout giving particulav fr.cts to kIiow that they are aliens, and how aliens, as hy having liecn ))o>'n in a eeitain jdaee named, out of the allegiance of the liiiti-ih Ciown. (///.) A iierson horn in Xew ^'ork in ISIJO, the son of a Brit-^li su'i'jc(;t. v.lio had emigrated fron) Ireland a short time ]ireviously, ami a yeai' or two after his hirth came to Tp^ier Canadii, and ever sir.ce resided he 'o, held to he a British sulijeet within the mearing of the act. ( 'I'/n- Qr.nn I'.c irf. Mr Ti (U/ v. (•rii/nuii, 7 U. (J. L. J. 12.1.) But a p'ersou binni in the I'uited States before the Revolution, who contin\ied to reside thei'c afterwards, was held to he an alien. {I>u- ili in. I'iitlir.', B, .■)(>7. See further, Monfuonn ri/ v. (li-alinin, 31 IJ. C. Q. B. r»7.) Where the voter was bom in the United States, both liia jiarents ])eing IJi'itish-born subjects, his fatliei' and gramlfather being U. K, Loyalists, and the voter residing neai'ly all his life in Canada held entitled to vote. [The. •'i'tumioiU Case, 7 U. (J. L, J. N. S, 213.) (.'/) Full age in jualo or female is twenty-one years, and is com- puted (ui the daj' ]irecedini,' the anniversary^ of a person's birth. {Anon, 1 Salk. 44; Toihr v.^Sini.tnni, 1 P.rown P, C. 4()8,) If tliere- {(U-e one is liorn 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-(me years by nearly 48 hours, (Tonilin "Infant," 1,) Upon a (juestion of .age of a voter, the written memorandum of the clergyman who married his jiarcnts was held l)etter evidence than the nu-mory of individuals, unaccompanied by such memorandum. (The Qiueii ex rel. Forward v, Bartel.i, 7 U. C. C. P. 538.) H. ( i •] QUALIPK'ATIONS OF ELEC'TOnS. ;V.« rpHiil(>n( (ft) vitliin tlic .Miini<'l|iiility for wliioli (lio vote is Ikmiii,' ti'kt'ii l'<»r on:' muilli next Kfion' IIh- cli-cticm ; (/) .'iiid all wliicli rloctoj-s hIii'11 Imvo Itwu 8e\orMlly vmIcmI on ilir liist rfivinr*! Asscssiiiciil Ivoll lor real |iro].ci;y in Hie Miniici- jHilily, Ik'M ill (Iicir own iii;lii or tli.it ot' liicir wivfs us free liolilcrs, lioi'sclioldcrs or h'nants, (/•) iMul li.'-.vc nrcivctl no rowiinl, nor liavn iin\ ("Xpnetaiion of rcwi'rd for \ )tiii',',(/) ami aro naiiic"! or itii'poiv'.'d lo 1m! umiikmI in (li.> ^ist of eloclijrs : (ill) Hitcli raiiiii^' sliall In; ahsoliito ami liiiiil, and (/() See iioti! '/ to tliis Hoi'tiDii. (i) The iKiiiiiuiitioii is the ODmrnenoLiut nt of the election. (See note h to sec. !(••_'.) (/•I See note < t(» this section. (/) This is a new iirovi^ioii designJ'il to prevent corrupt practices at Munieipiil elections. (Sco see. I').S, ami following Hecti( the taking tht; fiatii, the vote will not he struck ott' on a scrutiny. (/''.) When a voter, i)ropei'ly assessed, who was accidentally omitted fioni the Voters' list 'or polling suh-tlivi.-,ion .No. I, where his p'-opnty lay, and entered in the voters' list for suh-division No. "J, voted without ■question in No. 1, though not on the list, vote held good. (//;.) It ia not only necessary that the freehoMer or householder slnudil lie rated as sneh, hut, at tlie time of the election, hold tlu' propeity in resnectof which he is rated \ Tin- (Jii(( d r.r />•/. I.titiw I/ti/i/.hi.<, 7 I'. ('. L. J. 1.V2 ; Aiiiiii., S U. v. L. J. 7')), and the propeity must Ik; held in the right of the elector or that of his wife, and not siii'.ply in a representative capacity as executtn-, administrator, or agent. ('/'/(« Quf'ii p.i; rcl. Sior/c v. Deris, ;^ {]. C. J-. J. 128 ; see further, note o to sec. 71.) A Municipal Council has not, of course, any power to declare a (lualilication of voters dilierent from this Act. (/n re Bdl anil Mi-nrrrs, \\ V. C. C. P. ;]!»!» ; see further, I'Ik Kiikj v. SjinH'n', 3 I5u>r. IS27; Xnri;,,,/ v. FrniwU, ,ST. 1!. 1S!I; Tlir KiiK/v. liiuiiMiOil, ii B. & Ad. GiMt ; The Klmi v. ( hilhi, 5 A. & K. ()(»!! ; Cuuiminniunllh v. Wvilptr ct ul, ;J S. & It. 29; Fittij d al v. Tvjkrr, 21 N. Y. 207.) 60 THE MU.VICIPAL MANUAL. [h8. 78, 70. In citloK, towns ami iMi'or|ioraU \illii;;"s. In iipwly i^'ei'ti'il tiiwiisliips not li:iviM;{ any a.sscs.s- nii-at lull. sliiill not ])0 qiioHtioncd cither l)y any Rctiiriiiiij,' Oflicer, or on any apiilicutioii to s(>t a.sidc any flection, (n) And in Cities, Towns. Incorporated Villa^en, and Town.slii|iH that may |»aH8 liy laws re(|iiirin;^ tliis to l>e done, the electors shall also liave paid all iMunieipal taxes diit! l»y them respectively, on or het'ore the fourteenth day of Decemher next preceding the election, (o) Vld Vil- a laiijes, such n^d pi'operty, whethei' freehold oi- lea.sehold, or partly each {]>), must have been so rated as of at h'ust tho actual value followin-,' : (7) In Ti.'wnsliipH — One hundred dollars. Li 1 ncoi'porated Villaj^es — Two hundred dollai-s. In Town.s — Threes hundred ' Quci'ti ex rcl. MiU'iiian v. Jitlni.stoii, Ih. 217, note; Th' Qiicin ex rel. ('Iidiiiltrnt v. AllUun, lb. 244 ; see further, The Qunn v. Tiojwell, L. 11. .S il B. 704. (0) The object of such a provision as the present is, in tho case of inteniling voters, to enforce payment of taxes in tlie year in which they accrue, and under any circ;umstances liofore tlie election of tlio ensuing year. In the 'J9-.S() Vic. cap. .")!, s. 7."), tiie provision was al)S()lutc, making it essential to the ([ualilication of a voter tiiat ho should have paid, on or before the si.xteenth ihiy of I^ecember next preceding the election, all Municipal taxes due l)y him. That jtortion of the s^'ction was dropped when the section was amended and rc-cnaetcd by Stat. Out. 'A\ Vic. cap. 30, s. 0. It is now restored in a nioe entitled ^o vottt if lie possesses the otiier (piulitieii- tittUH alxive mentioned, and has at the time of tlie elcetion Hiitlicient |ii'operty to liave entith'd him to vote if he hatl been ratcil for sueli property; (") and every person so ehiini- ing to voto shall name the property on which ho votes, anil the Hetiirniiii,' < Klicer, at the re<|nest of any candidate or voter, shall note the property in his poll Kook opposite lli«) voter's name; (l) and at tho first election for a newly- ereeted Village, the electors shall l>e those who woidd lie entitled to vote in the Township oi Townships in which the said villa<^o is situated, tla; Clerk or Clerks respectivtdy having furnished from the last revis<»d Assessment-roll a list of the nanu's of those so (pialified to vote, [n) liD-.'JO V. c. f) I . s. / / . 80, In Towns and (Jities, evei-y electoi' may vote in encli Ward in which ho has been rated for the; necessary property • (pialification ; hut in the case of ]\Iayor of Cities, Mayor, l\(;eve or Deputy Reeve of Towns, the elector is limited to one vote. («) 2'J-3U V. c. 51, s. 78. a portion of the Tf>wnship in which situate. The Roll of the Town or \'illage, liefore the extension, will not in such a ease enihrace all the persons entitled to vote. Some provision is needed to aatlioiize the Iteturning Ollicer to procure and to use so much of the l!oll4>f the Township as may })e \>y the extension emln-ueed within tlie limits of the Town. Such wa.s tlie old law. (!'_' Vic. cap. 81, s. 57.) It was hy inatlvertence dnn))ied l)y the 14-15 \'ic. cap. !()!>, Sell. A, Is'o. II, (See remarks of liuhiuson, C. T., in Tlu' Queen ix rrl. Carroll v. Bcckwith, 1 Prac. R. 278,) ano has not l)een revived, In tlie case of a newly-erected Village, amide jirovision is made at the end of tills section (see sec. 8()) as to the time of liolding the election. Where tlie Roil of the Township was used at tiie election without objection, an) 2U-;5() V. c. 01, s. 78, sul). 1. S'i, In case both the owner and occupant (c) of any real [)i'opnrty are rat(.'d severally l)ut not jointly therefor, both shall he deem(;d rated within this Act. {d) 20-30 V, c. 51, s. 79. Si*. Wiun any real ])ro])ertyis owned or occupied jointly by two or moi-o i ci'sons, aiiin>'c!p(diti/. Sec. 02. Whti-f E'l'dions ma]i not be held. Sec. 0-1. S."*. The electors of every Municipality (except a County) Elections i.. shall elect annually, on the first Monuay in January, (A) luuiily fo!' the nienibers of the Council of the Miuiiciiialitv, e.Keei)t taich ""■ii'i";r.i of nieiv;';i-rs as may Jiave heen elected at the munination (/) ; iininiiiiiali- and the i)ersons so electtnl shall hold ofHce until their succes- !"',?, ^l-'^'^'x''*^ soi'S are elected or appointtnl and sworn into office, and the new Council is oi',i>'anized. {J) 29-30 V.c. ' 0. 30, s. 20 ; 33 V. c. 2G, s. 3. , a. 10;) J 31 V. onice. (f/) See note e to sec. 77. (h) The time deserves attention. Where time is fixed for the holdiiiy of an election it is in gcncnal essential, though many of the detiiila as to the conduct of elections may he looked \\\)nn as only direc- tory. (See J'( )i)i-^!/tr((iiia J)i-02 ; see further, Kuitj v. Tr('()<'nmj, G Ven. Abr. 296 ; Corjio- ration of Banbury, 10 Mod. 340 ; The Kintj v. Paamore, 3 T. 11. 199 ; Foot V. Prowae, Str. 0*25; The K'uirj v. Poole, Cas. Temp. Hardw. 23; Loumnlle v. H'ujdon, 2 Met. (Ky.) 526 ; King v. LUle, Andrews, 163; McVnllv. Manufaeturinq Compami, 6 Conn. 428; Kehei/ v. Wnqht, 1 Root. 83 ; Weir v. Bmh, 4 Litt. (Ky. ) 429 ; People v. Ruiikk, 9 Johns. 147 ; Vernon Societi/ v. Jl'tlli^, 6 Cow. 23 ; Slee v. Bloom, 5 Johns. Ch. 366 ; Bank v. Pe.tw'ai/, 3 Humph. (Tenn. ) 522 ; Stewart v. State, 4 Ind. 396; Beck v. Han.-icom, 9 Fost. (N. H.) 213 ; Cocke v. Hahey, 16 Pet. 71 ; Chandler v. Bradl-.h, 23 Vt. 416 ; School JXistrkt v. Atherton, 12 Met. 105 ; Dow v. Bullock, 13 Gray, 136 ; People v. Fairbury, 51 111. 149 ; see further, The Queen v. Owen-% 2 E. & E. 86 ; Front v. Chester, 5 E. & B. 531.) (k) No provision is made as to a voters' list where the limits of a Town or Village have been so extended as to embrace a portion of the adjoining Township. (See note r to sec. 79.) {I ) The whole three months must expire. The day of the issue of the proclamation or passing of the By-law as well as th" day of the election, must be excluded from the computation of time. {See Blunt V. Heslop, 8 A. & E. 577 ; see further, note h to sec. 85.) (m) The appointment of the place by resolution would be a nullity. {The Queen ex rel. Allemaing v. Zoegcr, 1 Prac. R. 219.) (n) One Robert Gillis had a farm through which ran the division line between Wards Nos. 2 and 3. His house stood on that part of b T ac( ( ss. 88-90.1 ELECTION OP REEVES, ETC. 65 88. When in any year a Junior To\vnship of a Union has one hundrexl irsident freeholders and householders on the then last revised Assessment Roll, the Council of the County shall, by a By-law, to be passed before the thirty- firet day of October in the sfime year, (o) tix the place for holding the fii*Rt annual election of Councilloi-s in a Town- ship, and appoiiit a Returning Officer for holding the same, and otherwise provide for the due holding of the election according to law. (p) 29-30 V. e. 51, s. 91. 80. In case of the separation of a Union of Townships, the existing division into Wards, if any, shall cease, as if the same had been duly abolished by By-law, and the elections of (councillors shall bo by general vote, until the Township or Townships are divided into Electoral Divisions or Wards under the provisions of this Act. (q) 29-30 V. c. 51, s. 92. 00. Tho election in Townships and Incorj)orated Villages of Beeves, Depiity Reeves and Councillors, shall bo by general vote, except 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. (r) 29-30 V. c. 51, s. 93. the farm included in Ward No. 2, but his barn on the part in Ward No. 3. The Township Council passed a By-law that the election of Township Councillors, for "Ward No. 3," should be held at "llohert Gillis'." 7/('W, that the By-law must be read as meaning some part of his property in AV'ard No. 3, and that as the election was shown to have taken place in the house without the limits of the Ward, it was void. (The Queen ex rel. Preston v. Predon, 2 Cham, R. 178.) (o) The time for doing the act authorized being limited, tho act cannot be done after the day named, utdess the language used is to be construed as directory only. (Dmnson et al. v. OiU, 1 East. G4.) This would ai)pear to be a continuing jjrovision, liable to be brought into play in any year by By law passed before 31st October. (p) The By-law ought to — 1. Fix a place for holding the first annual election ; 2. Appoint a Returning Officer for holding the same ; 3. And other\viso provide for the due holding of tho election according to law. (q) See note a to sec. 80. (r) In the first place, it will be observed that Reeves and Deputy Reeves, as well as C'ouncillors, are to be elected by the people, and in the second place, that the election is to be by general vote. Before 18G0, Councillors only were elected by the people, and the Councillors then elected the Reeve and Deputy Reeve. Before 186G 5 First elec- tidii in Junior towi^ ships aftnr suparation. Existing ward divi- sions in united townsliips to cease oa dissolution of union. Elentinn of reeves, &C., in town- ships and in- corporated villages to be by gene- ral vote. I 66 THE MUNICIPAL MANUAL. [ss. 91, &2. Upon peti- tion tll(! cDunoil may Ijy by-law liivide town- ship into ■warila. He. Election of deputy reevt'H, &c., in sucli case. Eloctlons ■wJiero to be held. 01, In case a majority of the qualified electors of a To\vnslii[) on the lawt revised Assessment KoU do jx^tition the Council of the Town.ship to divide the Township into Wards, or to aholish or alter any then existing division into Wards, tlie Cotmcil shall, within one month tlnu'eafter, ])ass u >>y-hiw to give effect to such petition ; (.s) and if sucli peti- tion is for division into Wards, shall divide such Townships into Wards, having regard to the number of electors in each Ward, being as nearly equal as may be, and the number of Wards shall be four in all cases ;(<) and where the Township is divided into Wards, and is entitled to one or more Deputy Keeves, the Councillors shall, at their first meeting, elect from amongst themselves audi Deputy-lleeve or Reeves. (?t) 9*4, Every election shall be held in the Municipality to which the same relates, (a) 29-30 V. c. 51, s. 81. also, where there was an existing division of a Township or Incor- porated Village into Wards, the election was had for a particular Councillor in each Ward, and not by general vote. Tlic intention of having lleeves and Deputy lleeves elected ])y the people, is to pre- vent men by combining iji small bodies, in effect, to elect themselves to these oHices. The intention of having a general vote is to destroy the sectional strife about the expenditure of money, which often arises where each Councilhu* looks upon himself as a re])resentativo of a particular Ward and not of the whole Township. This section is in etl'cct a re-enactment of the Act of 180(5 (2!)-30 Vic. cap. 51, s. 92). It does not apjily where a Township is divided into Wards, as to wdnch see sec. 91. (s) This is a new jjrovision. It in effect 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 di\iding a Township into Wards, or abolishing that division, provided a majority of the qualified electors petition that a particular course be adopted. In the event of such a petition being presented, it is made the duty of the Council not merely to pass the required By-law, but to do so " Avithiu one month " after the i)resentation of the petition. (t) The power is here limited. There must be in all cases at least four \Vard3. 'llie number of electors in each Ward should be as nearly as possible ecpial. Population rather than geographical situa- tion is to be regarded. (») The rule is different where one Township is not divided into Wards. In such case the lleeves and Deputy Reeves, aa well as Councillors, are elected by the people. (See sec. 90. ) (ft) 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 iudepeudeut of the Townships in which situate. It is ss. 93-9G.] RETURNING OFFICERS. 67 •>J{. No eloction of TowiiRliip Councillors shall bo hold Eiortions within any City, Town or Incorporatod Villa,^'o ; (h) nor ll!{j;' ^ ^" shall any election for a Mnnicipality, or any Ward thereof, j^,^,^^^^ beheld in a tavern or in a house of public entertaunneut held in licensed to sell spirituous or fermented liquors, (c) 29-30 t^'^'^^ms *'^- V. c. 51, s. 82. Divisioy II. — Returnino Ofiicers. When Flection bi/ Divisions, who to he. When not, v:ho ex cj/icio, Sec. 05. Absence, Provision for. Sec. 00. Authority of. Sec. 07. Sec. OJf. ?>4. The Council of every Municipality in which tho election is to l)e by Wards or F^lectoral Divisions, shall from time to time, by By-law, ap})oint lleturr"' j OlUcers to held the next ensuing elections. ((^) 29-30 V. c. 51, s. 94, 05, In the case of a Municipality in which the election is not to be by Wards or Electoral Divisions, the Clei'k shall be the Returning Officer at all elections after tho first, (c) 29-30 V. c. 51. s. 95. tKJ, In case, at the time appointed for holding an elec- The absciv e tion, the person appointed to be Returning Officer has died, ntmuing or does not attend to hold the election within an hour after ,^!!'','''7,'T' 1 • • 1 • T-> • ^ <• 1 1 viucU lor. the tnue aj)pouitcd, or in case no Iveturnmg Othcer has been appointed, the electors ])resent at the place for holding the election may choose from amongst themselves a Returning RoturnlnR (iflici-rs for eU'ctioiia I'y wards or iilut'torai divisions. Returning otllccr for olfc'tidiisnot by wards (ir fln-toral divisioiia. therefore provided by the next section, that no election of Township Councillors shall be held witliin any City, Towti or Incorporated Village. (/») Sec note a to sec. 92. (e) There may be a tavern where spirituous liquors are sold, which is not licensed to sell spirituous li(iuors. It is douhtful whether or not the words "licensed to sell spirituous li([tu)rs" extend to more than the immediate antecedent house of puhhc entertainment. (See note t to sec 7o.) Contravention of the statute wouhl, it is believed, invalidate tlie election. (See Tlic {)uefn fx nl. AUiinaini} v. Zon/tT, 1 Prac. II. 219 ; The Queen ex ret. Preston v. Predon, 2 Cham. II. 178.) {d) An appointment by resolution not sufficient. ( The Queen ex rel. Allenmainn ^\ Zoeijer, 1 Prac. R. 219.) As to the general con- duct of a lleturning Officer, see note / to sec. 90. (c) ^\ here the election is to be by Wards or Electoral Divisions, the Township Councils appoint Retuniing Officers (sec. 94) ; but where there are no Wards or Electoral Divisions, it is here provided that the Clerk shaU be the Returning Officer. tB THE MUNICIPAL MANUAL. [s8. 97, 98. Returning offlcera to he coiwervators ofthopoacu ; their powers Special eon-] stobleH may bo Bwom iu. Officer, and such Returning Oflicer sliall have all the powers, and shall forthwith i)roceed to liold the election, and i)erform all the other duties of a Returning Officer. (/) 29-30 V. 0. 51, s. 97. OT. The Returning Officer shall, dunng the days of the election, or of voting of electors as to a By-law, act as a Conservator of the Peace for the City or County in which the election or voting is held ; and he, or any Justice of the Peace having jurisdiction in the Municipality in which tho election or voting is held, may cause to be arrested, Juid may sunnnarily try and punish by fine and imprisonment, or both, or may imj)rison or bind over to keep the peace, or for trial, any riotous or disorderly person, who assaults, beats, molests, or threatens any voter coming to, remaining at, or going from the election or voting ; and, when thereto re- quired, all constables and persons present at tho election or voting, shall assist the Returning Officer or Justice of the Peace, (g) Vide 29-30 V. c. 51, s. 98. I 08. Every Returning Officer or Jiistice of the Peace may ap})oint and swear in any number of Special Constables to assist in tho preservation of the peace and of order at the election or voting of electors as to a By-law ; and any persivn (/) The cases in which the electors may, under this section, Appoint a Returning Officer, are : 1 . Where the Returning Officer has died. 2. Does not attend within an hour after the time appointed. 3. Or where no Returning Officer has been appointed. A Returning Officer, so appointed, sliould not be a partizan. It is the duty of a Returning Officer to stand indifferent between the conten(Ung parties ; to have no interests to serve for either, or fop himself ; to approach his duty with the simple desire to do strict justice ; to ha ready and willuig 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. JuU, 5 Prac. R. 48.) (g) In general, the Returning Officer will act under this section t'>-.^ nva own view. But when, instead of acting on facts observed ■. s")^ or within his own knowledge, he acts on the information '.>/ » '* ~ it is suggested he should take a regular information, and J, •(> . ^T. :;ny other Magistrate would be required to do under like v.-"" "■ -■ ;es. An example would be, when the complaint is an .-■c .. on a voter coming to or returning from the election, com- miute^ .iu u distance from the poll. The main object of the section is however to empower the Returning Officer to act promptly on the spot in the hearing and determining of offences occurring at the poll ; but in point of authority he is not so restricted. a h P ia 99.] OATHS OF VOTERS. C9 lial'lf t<» servo as Constaltl'-, and rctiuired to be sworn in on a Special t'oiistablo by the Returning Officer or Justice, shall, if lie refuse to b.) 29-30 V. c. 51, a. 99. * Division III. — Oaths. //I cnsr. of Freelioldct's, Src. (UK In cnsfi of other Voters. Sec. 100. AdtnlnisteriiKj. Sec. 101. 0!>. Tli(^ only oaths or afTirinations to be rei|nired of any [{'|',[J'j,;i^^''v;^ person elaiiiiiug to Aote in respeet of a freeliold, sliall be as put t<> jicr- follows, or to'siudi ellect:— That he is of the full a.-.v of ^.'.'"^f ",7 tweutv-one years, (/) and is a iiatui'al-boi'u or natuializtnl ficiliolder. subject of iler Majesty ; (/•) tliat Ik; has not votcnl before at the election in the Towiishi]), Vilhige or Ward (as the case may be) in which he is teiulerinj,' his vote, and (if tendering his vote for ^Nliiyor, Reeve or Dejuty Iteeve) tliat ho hiis not voted before or elsewhere in the Muiiici[>ality for the election of Mayor, Reev(> or Deputy Reeve (as the case may bo) ; (/) that he has not directly or indirectly received any reward or y;ift, noi* does he expect to receive any, for the vot«> which he tenders at tin; election ; (w.) that he is a free- holder in his own riyht (or ri.^ht of his wife, as the case may require) ; (i/) and in eveiy case that he is the person named, or pur)iorting to be named, in the list of the electors; (o) (h) The ])eiialty may, it is a]))>i'elioiiileil, tlinugli not so expressed, be aiu'd for in any cnurt of ci lujjuteiit jurisdictioii, for instaacc in a Divi-sion Court. (See Bnish r/. t. v, To'jijar', IG U. C. C. 1'. 413.) (») 8ee note } Vide l!'J-;iO V. c. 51, h. lUl, sub. 8. 100. Tho ontlis or afiirniiitions to bo roMjuired of any porsoii claiiniiit^ to voto, othorwino tliiiii in rcsi^'ft of a fro(!hol(l, ('/) shall bo as follows, or to such etfect : — That he is of tilt) full nifo of twciity-ouo years, (;•) aiul is a natural- ism or natui'uli/t'il ,subj(K;t of Ifer Majesty; (s) that he haa not votod before at tlie election in tlie Township, VillaL((! or Ward (an the ao^e latiy he) in which ho is tt'iideriiii;; his vote, and (('/' tenderiitij his vote fur Mayor, Jicoe or Deputy Reeve) that ho has not voted before or olsowhero in the Municipality for the election of ^Mayoi', lleevo or ,Dc[)uty lieove [((s the Cfo^e may he) ; [t) that he has not directly or indirectly received any i-ewartl or ^'ift, nor tloes he expect to receive any, for tlie vote which he tenders at the election ; that he has been resident within th»3 Municipality foi- which the election is held for one mouth next before tiie election ; (w.) and that he is {or his tvife is) a householder or tenant Avithin such Municipality, (v) and that ho is the person named, or ])ur])ortint^ to be named, in the list of the electors; and that at tlH> time of the last iinal revision and correction of the Assessment lloU upon which the list is based, lie vras actually, truly and in ifood faith possessed to his own use and benetit as tenant or occupant of the real estate in res[>ect of which his name is entered on tlie said list ; (ic) (^or In tJie case of a new Municijjality, in tohich there has not heen any Assess)nent h'oll ; then inKtead of sweariiuj to residence for one month next hef ore the election, a)id refer ring to the list of elector's, the person offer lay to vote may he required to state 171 the oath the properly in resj>ect of ichich he claims to vote, and that he is a resident of such Municipality.) {x) 37 V. c. IG, s. 2. {p) See sec. 79. ((/) See 80C. 77. (r) See note g to sec. 77. (fi) See note/ to sec. 77. {t) See note a to sec. 80. («) See note { to soc. 77. (?>) See note e to sec. 77. (w) See note o to sec. 99. (x) See note t to sec, 79. 88. 101, 102.] NOMINATION' MEETINGS. 71 101, Sticli (latli.'^ or ntlirinutioTis .sliall 1)0 aclmiiiistorecl hy Whm anj the liftiiniiii^ ()tru'ff or Cliairiiiiui, at the ivqiifst of any aio tntie'iid- cainlitlatc, i)r liis autliorizod atrciit, and no ciKHiirics sliall bo "liuistfr^d- ma 1 1\ J- 1> • 'P i il Il'ilIllIlStioil and tor Mayor. Jieeve and Deputy lieeves lu towns, at tno of m.iyor. Hail of the Municipalitv, on the last Monday in the month ';''''^''' of l)ecenil»er, annually, at ten of the clock in the fortMioon, ruave, Ar. and the De})uty lieeves shall be designati'd as lirst, second, third, itc, according to the number to be elected, [h) 20-30 V. c. 51, s. 107. Sec. 115, 110. (a) The Kctuniing Offici!^t should, on request of either of the candiilatcs, or his agent (wiutlier such agent he or he not a duly quaHlied elector), administer the necessary oatlii? or ahiruuitions. (P< r Hagarty, J., in Tlie Queen ex rel. Gardun r v. Pivni, ,'{ V . C L. J. *»0; .see also Tlw Qiuiit v. SjialdiiKj, Car. & M. r)f)S, ) The refusal of an elector to take the oath is, if tlie I'idatoi- would otherwise have had a majca'ity, a good ground for setting aside the election. ('J'he Quioi i\r ril. Dillon V. Sli-St il, 5 IJ. (_'. ( '. P. 1.S7.) See as to prosecu- tions for false oatiis, under enactments eorres[)oiiiling to the alioVe, the following cases : T/n' Qiwi'ti v. lJo(l-( •1111 ■ x. moctiu^', or, III <'!iso ot Ins aosciu'c, tlic ( oniicil shall apimiiit a jM'i'soii to prcsidt! in his jilac(>. If thtt (Hcrk or tiit^ ]h'1-hoii 80 a|i|»oint('(l tlocH not atti-nd, tho oloftors |ti'('sout shall choosc! a Chairman or jxMson to otliciato fi'oni aniony thtun- ^fTr'iunV" '^*''^'''"' '^'"' '^""■'' ^'''■'■'^ or Cliairinan shall have all the powors i'u«\)iiu"r.'' of a Kctiiniiii;,' Ollici-r. (c) l".»-;')(» \'. i-. ol, s. KiS. 104. A meeting of the electors shall take; place for the nomination (.) In ease, liy reason of a riot or other emergency, tiie election is not commenced on the proper day, or is interrupted after heing conuneuced, provisiiin is made for an extension of the time for receiving votes. (Sees. 1 IT), I IG. ) ('•) Tlie ( 'ouncil slnudd jmivide for the ahsciiee of tlie Clerk, if .at all apprehended or expected. Should they fail to do so, the electors I)rescnt nuiy clioose a ( 'haii'uum. Shoulil the electors do so, it ia Buhmitted the C'iuiirnian so clioMin Wduid liavc a riglit to conduct the nomination to its terndnation, notu itiistauding tlie prest nee in the meantime of the Clerk, or a person ajipointed hy the t'ouncil as his Buhstitute. The jjroeeedings at the meeting, if not jircsided over by the ollicer or person assigned, would in all prohahility lie helil abso- lutely void. " It cannot be a mere matter of procedure or form, that there should be no person jiresiiling at the meeting in wliom is vested the authority for conducting the election aud for maintaining peace and order, to wlioni the Legislature has entrusted the counting of votes and certifying the result. In the aliseucc of any such peisoii, 1 do not see how a poll can be taken, or the result legally ascertained. " (/'(/• iJrajter, C. J., In re J/arfliii and Eniilii, 'lit U. C. C^). I}. 15.) "The liCgislature says, and, 1 uuist take it, for very good reasons, that the election is to lie conducted by a paiticular otficcr, aud then Riiotlu'r )ierson goes and condm^ts it. Even if I liad a discretion, 1 should nut exercise it in sujiporting such aprai:tice. It is very much 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 M'as good because it was made just as well as if it had been made liy the liarrister. Or if a cause was to lie 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." [I'tr Cromjjton, J., in The (Jncen v. Bac/ch')usr> et al, ]'2 L. T. N. 8. 57!) ; see further, Picbrinij v. Janu'i^, L. K. 8 C. P. 485).) As to tho geuend conduct of a Ileturning ( )tHcer, see mite / to sec. 96. (d) Nomination. See note h to sec. lOlJ. 8S. 10r», 1<)(').] NOMINATIOM OK CASDinATKH. Tn(.'f»riK)riit('(l Villa^^os, at tiooii oi\ tlic lust Moiiiluy in Docoin- IxM- iiiimiiillv, ('') lit siicli idiici" tlici-fiii, iiml in ( "itit-s iiutl Towns iit Hiicli pliit'fs in ciidi Ward tlnTcofiiH shall tVoni time to tiini- l>f tixi'il Ity liy-law; aniltln' |)c|iiity JJtH^vcH sluill lio (J<'si;,'iial('il us lirst, second, tliird or i'oiiitli. accordini,' to tlio JHinil'ci' til lie fleeted ; I'l'nvided that in 'I'liunsliiiis divided intii Wards, th<' nouiinal inn of candidates for tli<' oliice of Keeve shall l)e held at ten ot' the clock in the foreiiiion, at .such place in siwli 'rdwiiship as shall from time totime he lixtul by Jly-law. And the ( 'lerk shall preside^ at tho iiicotini,' for the nomination of camlidates for the oliie(. of l{et'\ (( ; and that tlie nomination of candidates for tli<> oilicc' of (.'onncillor to ho elected in each Ward shall take phu'c at noon, at such place in the Township, ni- in each Ward, as shall lie lixeil hy l]y- law. (J') 'M y. c. Id, s. ;?. lO."*. In ( 'it ies and Towns, and Townships diviiled into Pnsidiiis Wards, the Councils thereof respectiscly shall, hy theii-said By-law, nain(! tlu< licturning OiHcer for each ^\ard. who, and in other Municipalities the Cjeik, shall respectively preside at the meeting for the nomination of candidates, of which the Clei'k or other UeturninL( < HHcer shall ^dvo at least six days' notice; (y) and in case of tlui ahsenco of such pn'sidiiiii olllc<'r, the nieetinj;^ may choose their Chairman, (/i) l'i, At the said meetings, the person or persons to till Nnmirmtion each otlico shall be pi'oposed and seconded si'rititli)i,; {!) and iM'(|'s'i'm:idt-iit if no other caiididate but one for any particular otlico is pro- tiiereto. (»') Sco niite j to sec. 85. (/) Ihi-ldw. 8eo note d to sec. 94. (g) At letxKt six dai/s' notice. This rnoanH six full days, (hire Sams V. Toronfi), l» U. C. i). B. 181.) Wiicre .h statute says n tliini,' sliall be ildiic so many days, or so inaay d;iys at least, ittfoi-e a giv(;ii event, tlie day of the thiu^' (Ioik; and tliat of tlii' event must Imtli 1)C excluded. ( 'J lir Qhi'( n v. Slirupslurf, 8 A. & I']. 173 ; Mitrhi-.ll v. Fusifr, 9 l) (T. C. b. J. 114.) The election ia oommeuced when the Keturuiug Ullicer receives the nomiiiatiou o£ 74 THE MUNICIPAL MANUAL. [hs. 107, 108. poMcil, tlio f'lci'k or otlior Cliairiiiiin s]i;ill, afl:'r tho la|i.so of one lioiir fmiii (lie t iiiii' tixt'd I'm- lioliliiii,' tli(! nicctiiii,', i'Ron jirupuscil may rcsi^^n, hv.; ill ill'- fault, to W tiikrli a» 8. 109.] LIST OF VOTEnS. 76 the iinH'tiri'' sliiill, on the day fi>ll<)\viiiL' that fif tho iioiniiiiv N'lticfH of tioii, jiostuji in tho dtlico of tho Clei-k of tlio Miini('i|ia!ity inyiioiua the iiatni'H of the jn'i'sons jirojMiHctl for tho r»>s]M'ftiv(' oilires, anil till' (.'Irrk shall provide cacl) llciirnin'^ Oirncr Avith a ctsrlirii'd list nf the naiiifs of sui-h caiiili latrs, s|n'i'ifyini,' tho otViirs for wliioh tlii-v aro n'sjicctivi'ly candidate, . (n) I'ide 2'J-;ii) V. e. f)]. H. lOU, sid.. ■[; m-o. 1 11 ; 31 V. e. ;5(i, s. 'Jl. I0;>. The Clerk of the Munici|.:dity shall, h-fore the [..dl i.iMof is o|M'n<'d, delivi'r to the |{eturnin,i,' < >iriiTr foi- e\i'ry or any Ward or J'lleetoral DiviMion, a list of the names, arraiiL,'ed alphaltetieally, of all inale freeholders and householders rated u])o!i the then last revised Asse.vsnient l!oll for real projierty lyini; in that Ward or Eleetoral J)ivisioii to tho amount roijuired to ((ualify th'-m to vote at siieh election, and shall atte^^t the said list hy his solemn declai'ation in writing uiukr his hand; {/)) and in (,'ities, Towns, li)cor]j(jratt)d whii.li lie Wiis lir»t ]ii'()p()S(.'il aiid hcohuiIl'iI. 'I'IiIh jirevi.sioii in jihwo- lat'ly ncccssiuy to avoiil ciiiil'ii.siini ami ciitiiii.,'lriiiLiit. A i iiiuiiiiato priipiiMcil for "Illy (•uu iitiiue may also nsigii, witli tlic cmiSLiit ot' hia jjriijiDsur anil seiiom lor ami of tliu ulcctnrs iircsiL'ut. ('J'/i>' (Jtinii ex rcl. C(ii/ne, v. ChliliiAnt, 5 I'rao. il. JJ'JS.) (o) Ihitits arc cant as well on the ( 'liiiiriiiaii uf tiii' mcctiiij^'as on tho Clcrl; III' tlic Miiiui'ijiality, tlic ficilnriiiaiiri; nl wliicli is mucssary to the jii'diier comiiict of the cluctiuii. Jt is essoiitiai that cacii Itcturiiing Ollicci' hIioiiM have a list of the camlidatcs; hut an oiiiinsioii in ii;.;ai'il to B;mio of tiic names of the candidates docs net necessarily invalidate the election. ( The (,>iir,„ r.r. i;/. U'a/krr v. M'lL-ltill, 4 I'lac. Jt. L-'IS.) A vo(;er will) iioniiittcd diic camlidiite to retire without cx[acssing objection of any kind, and after his retiiciiient nniiiiiiatcs another candidate for the ollicc, Mill not he allowed aftirwards to insist ujion having the name of his lirat nominee catered on the poll hook.s. { The QiH'iu t'X rcl. Vujini' v. Chisluiitii, 5 I'rao. i!. .S'J8.) {p) The law reijuires the itctnrning Olhcer to he furnished with a list n it nl, Chambers, Richards, J., .S U. C. L. J. 100.) Where the Jtcturniug Otlicer was not furnished with the list, and iiotwithstaiiiling pro- ceeded with the election, held, that it was au irregularity which THE MUNICIPAL MANUAL. [ss. 110,111. PerBons in arrear for taxes iiiiiy Im from list. Pull-books.l flow kiMit. Miiniciicili- ties lint divided into wurds or t'ltictonil dividiuu.s. Vill.'igo.s and Townsliips, wliicli have passed By-laws re(jiiiring this to bo done, shall exclude from such list such jm'isoms as shall have been returued to him by the Treasurer as in default foi' not havinif paid tlicir ^luuicijial taxes respectively on or before tlm fouiteeuth day of Decendu'r preecMlin;,' the elec- tion. (7) -I'J-DO V. c. r^l/s. 100, sid). T); s. 101, sub. 5. 110, The Clei'k of s of tin; electors oll'ering to vote at the election, and shall, in each column in wliieli is entered the name of a canilidatt; voted for by a votei-, set the tigure "1" opposite tla; votca'.s name, (r) 2!)-30 V. c. 51, s. 100, sub. (■>; s. 113; t-li/e 31 V. c. 30, s. 10. 1 S i. In ease of !Munici])alities which are not divided into Wai'ds or Eleeioral I )i visions, the Clerk shall be Ruturiiing Ollicer, and shall jii'ovide himself with a similar list (jf the uam"s of electors for the Municipality, and a poll-book, and Riil)jec't(;(l the i;lu(!tion to be avoided if tlie olijeetinii wore t;ikeu by one ([luililicd to ur^^e it, altiiough it might not i/isn Uir/n render the eleetioa Miiil. { / 11 re < 'iiarli'-i v. /,i iris <■/ a/, '2 ('hdui. It. 17".) The aei[uioscencc of tlie candidates in the election being proet'e(led with under these ciremnstanees, though it might preclude 'li'iii from dis- ])uting the validity of the election on that ground, could not alVeet tlie right of a voter who was no party to sueii arrangement. {Jii). In aueli a ease, however, it would seem to be nece'ssary to show that the aliseiiee or inaceurac^y of tlie liHt prejiidieeil tin; election, or that some candidate or voter nfuseil on that ground to proeeed, and relied upon the objection. ('J'/ic Qncni ix n/. /'i/smi v. ]'< m/ ct (tl, 1 Prac. i{. '237 ; T/ir Qiwoi ex rel. WaUrr v. Mitr/,, II, 4 I'rac ll. 218.) Where tlie Heturning Ullieer used tin? origiiuil Roll instead of the li.st, having iii'st aimouneed that he concluded to do ,so, ami no tine objeeted, the ' ction was Hupjiorted. ( Tliv (Jitcrn ix rel. Hall v. (trey ct (il, \n {' . ('. • . li. 2r>7.) It would also seem that it is no objection to the list that it was not verilied as the statilte reciuirea, unlogs 8onie objection be taken before or during the election , (T/ie Queen ex re I. It'itiioi) v. Perry ct al, 1 Prac. K. 237.) (7) See note o to sec. 77. (/•) The entries in the poll-book are to be as follows: 1. The names of the candidates proposed and seconded at the nomination. 2. The names of the ol((ctors ofTering to vote at tlie election. 3. And in each column in wliich is entered tlie name uf a candi- date, the li^iure "1" opposite the voter's name. Bs. 112-114.] DECLARATION AT ELECTIONS. 77 sliall perform the like duties with respect of the wliolo Munici})iility as are ijupoHcd upon otlier Returubig Officers in respect of a Ward or Ehictoral Division, (s) New. 11/8. The Returniiif( Officer shall, on the diiy after the close of the election, return the poll-book to the Clerk of the Alunicipality, with his solemn declaration thereto annexed, that the poll-hook has been correctly kept, and contains a true record of the votes given at the polling-place for which he was Returning Officer, (t) 2U-30 V. c. 51, s. 100, sub. 7, 8s. 102, 114. 113. The Clerk of the Municipality shall add up the number of votes for each candidate for any offic(! ; and in case a poll has been taken and the poll-books returned for every Ward or Electoral Division, tlu; votes in which should be counted in order to determine the election, shall, at the town hall, or, if there be no town hall, at some other public place, at noon on the day following the return of sucJi poll- books, pul)licly declare so elected the candidate or candidates having the highest number of votes ; and shall idso put up in some conspicuous place a statement under his liand show- ing the number of votes for each candidate. (?t) Vide 29-30 V. c. 51, s. 101, sub. 9. sec. 115; 31 V. c. 30, s. 15. 114, In case two or more candidates have an equal number of votes, the Clerk of the Mmdciitality or ctlier person appomted by By-law to discharge his duties of Clerk in his absence or in«ipacity through illness, and, whether otherwise qualified or not, shall, at the time he declares the result of the poll, give a vote for one or more of such candi- dates, so as to decide the election ; and exccjpt in such case. Poll -books to bo re- turned to the cleik. Clerk to de- clare result of the elec- tion. In rertain rasea to have (XiatlUR Vote, (s) See sees. 109 and 110 and notes thereto. (t) The poll-bonk must not only bo retiirnod to tlic Clerk of the Miuiicipality on the day after the oi>.'SC of the poll, but he returned verilied. It is not, it will lie observed, made the duty of the Ueturning Officer to add up the votes for each of the candidates. Tliut, by the next section, is made the duty of the ( 'lerk. {») It wouhl seem that under this Act the duties r)f the Clerk aro simply ministerial. This being 30, it is none of his business Avhether the candidate elected is <|ualilied or not. His duty is puhliely to declare elccited the candidate or candidates having the higliest number of votes. (Prr Patt( in, J., in Tlir (Jkcch v. L'll'jnrt/, 8 A. & ]•]. rA5.) There is, apparently, no power to ctirreet the state of the poll or to put up a statement after the day limited for the purpose. In this view an amended statement oi a statement put up after the day limited might be deemed a nullity. (Sco The i^uecn v. Lecdi, 11 A. &E. 512.) -% I THE MUNICIPAL MANUAL. [s. 115. Klectioniu't loinuictiii'il or iritiT- I luptwl by riot, eti.., to )ie resumwi. no Returning Officor or Clerk of the Ivlunicii)ality shall vote a,t any election held by him. (v) Vide 29-30 Y. c. 51, s. 100, sub. 9; s. 101, sub. 10, s. 116. 1 13, In case, hy reason of riot or other emergency, an election is not comuKniced on the proper day, or is inter- rupted after being cimimonced and bi^tbre the lawful closing thereof, the Returning Oilicer shall hold or resume the election on the following day at the hour of ten o'clock in the forenoon, and continue the same from day to day, if necessary, for four days until the poll has been opened with- out 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, {(i) 29-30 V. c. 51, 8. 103. [r) Tt Would 1)0 well for the Clerk, or other person acting as Returning OHieer, to jiivy close attention to this section. \Vhether qualilled as an elector or not, he is not, except as mentioned, allowed to vote. The exception is, when two or more of the candidates have an equal number of votes. Then, whether otherwise qualified or not, he ^'.sIkiI/ give a vote for one or more (that is, when more than one i 3 to be elected) of such candidates, so as to ihcUle the election." The Court will presume that a public officer acts properly and honestly till the contrary is siiown ; and Avhere it is intended to charge any officer with unfairness or partiality, the case should Ira plainly stated and clearly made out. (The Queen ex ret. Walhr y. Hall, (> U. C. L. J. 138.) Where a Returning Officer, after closing the poll, received an affidavit from M. that his vote hail been entered by mistake for relator, on which he altered his vote in the p<>"k hours, the Keturning Officer shall not r<>turn any person as tuni( lU- cliim fact. IIT. If 1^0 return has been made for one or more Wards ifnorctimi or Electoral Divisions, in consequence of no election having been held therein, or of the election having been interrupted through riot or other cause, the Clerk shall declare the want of return for such Ward or Wards, or Electoral Divisions, and the cause thereof, (d) 29-30 V. c. 51, s. 119. 118. When a poll has been duly held in each of such When poll Wards, or Electoral Divisions, and the poll-books returned rh"kti>n(M ■ U]! votes expiration of the four days allowed, there was not a fair opportunity ""^' it •^^■'hen of voting, in consequence of which votes were lost, it is api)rchended ;j„4 wl'icro. a new election would be ordered. (See 110.) {h) "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 ])y the connnon law, for tlie common law provides that an election sliould lie free in the sense that all persons shall have an ojjportunity of coming to the poll and voting without fear or molestation." (Nottinfiham Case, 1 O'M. & H. L'45 ; see also The l^tnfford Case, lb. 234, and The Dro;iiieila Case,\Ih. 252. \c) The new election is to take place in case the election has not, within four days, been kept open twelve hours, and the Keturning Officer has not returned any person as elected, but has certified the cause of the failure. If the Returning Ollicer shoulil so far forget his duty as to return any of the candidates elected, the election would no doubt be set .aside. (The Queen ex rel. DarU et al v. \\l/.-ion et n/, 3 U. (J. L. J. Hi').) Where it was sworn that intending voters for an unsuccessful candidate were obstructed in approaching the polling place by a crowd controlled })y one of the successful candidates, and neither the fari, of tlie obstruction nor the control was uneciuivocally denied by t'..'' t candidate, the election Avas set aside. (The Queen ex rel. Gihhs e, ' v. Branhjhan et al, 3 U. V,. L. .J. 127.) The tendency of modern Ak sions is not to compel a party to pay costs, unless it be shown th.'it ne really participated in the improper conduct for which the election is set asitle. (The Queen ex rel. Davis et al v. WiUonetal, 3 U. C. L.J. 1G5.) (fl) The declaration of the Clerk as to the want of a return is to be followed by the action of the Council, as directed in section 125 o£ this Act. 80 THE MUNICIPAL MANUAL. [s8. 119, 120. to the Clerk, the Clerk sliall add up the number of votes theiein set down for each candidate for any office in respect Avhoreof the election has not been previously declared, together with the votes contained for such candidate in the poll-books previously returned for the other Wards, and shall at noon on tho next day, at the town hall, declare elected the candidate or candidates having the largest num- ber of votes polled, (e) Vide 29-30 V. c. 51, s. 121. Declftrntion lit). The pcrson or persons so elected shall make the tionofofflee. necessary declarations of office and qualification and assume office accordmgly. (/) 29-30 Y. c. 51, s. 122. Klectlon I'iO. The members elect of eveiy County Council, being coiuiei?of a ^^ ^^"^^^ ^ majority of the whole number of tlie Council when warden. full, ((/) shall, at their first meeting after the yearly elections, and after making the declaration of office and qiialification (f ) The candidate to be declared elected is the one having ' ' the gi-eatest number of votes polled," i. e., not a majority of the whole number of votes polled, but the greatest number of votes polled for any one cancUdate compared with the number of votes polled for other candidates. (See note to sub. 6, of sec. 231.) (/) Acceptance of office, when the person elected is duly qualified, is obligatory. (See sec. 218 and notes thereto.) [(j) Thus, assuming the whole number of members of the Council to be twelve, there must be seven present to constitute a quorum. ( Tke Qiifivn ex rel. Evans v. Star rail, 7 U. C. C. P. 487. ) So that an election by six in such a case, though unanimous, would be void. Acts done with less tlian a legal quorum are generally void. ( The King v, Belh riiujer, 4 T. li. 810; Th,' King v. Miller, G T. R. 2G8; The Queen ex rel. Krann v. Starratt, 7 U. C. C. P. 487 ; see also Price v. Railroad Co., 13 Ind. 58; Ferguson \. Crittenden, 1 J^ng. (Ark.) 479; Loganspcn-t V. Legg, 20 Ind. 315 ; McCracken v. San Francisco, 16 Cal. 591 ; Piemental V. San Francisco, 21 Cal. 351.) But in one case the Court, in the exercise of its discretion, refused to quash a By-law upon proof that a quorum was not present at the time of its passing. (Sutherland v. East Nissonri, 10 U. C. Q. B. G2G.) The Court will presume, till the contrary be clearly shown, that there was a Juorum present at the doing of a corporate act. (Citizens' Mutual "ire Insurance Co. v. Sortwell et al, 8 Allen, 217; see also South' worth V. Palmyra and Jackson Railroad Co. et al, 2 Mich. 287.) Qucerc, suppose seven present, in the case put of twelve members, would the vote of four be a valid election under this section ? This depends on the question whether a majority of the quorum is all that is necessary. It cannot be said that those who vote against a man elect him to office. If three vote against him and fcur for him, and the latter be sufficient, ho would be elected by four when seven are present, when an election by six, when six only are present, would not be sufficient. The question is whether, to entitle a man to the position of AVarden, he should not have the voices of, in other words, be elected by, a majority of the Council when full. So far as 8. 120.] ELECTION OP WARDEN. 81 when rpqniivd to bo taken, (h) orj^anize themselves as a Council by electing one of themselves to be Warden, (i) 29-;iO V. c. 51, s. 135. the Editor is aware the point has not yet been decided. But reading this section in connection with sec. I'J'J, it would seem that a majority of tlie (luorum is uU that is necessary. (.See Svutlivurlh v. Ptihiijjra and Jiu-Lkoii J!((ilr:i (t III, 7 C"uw. -lO'i ; HikU v. Burhbiiiliiuii, Ki Iowa, '_*S4; Jiifjoits, <(r. V. WUI'idW", dill & .Johns. (Md.j.Sli."); MiUfi v. (.ll( dsfiu, 1 1 Wis. 470.) A majority of those present, when legally assend)led, binds the rest. {T/if Kim/ v. Movduii, Cowp. 580, a.SS; 'I he Kiiuj v. DvvimMrc, 1 B. & C!. Odit'; Tlir KimJ v. Jioinr, Ih. 402; Tin Kni. & ('. 4!H! ; see also T/i('(Jiui'h ex nl. J/i/dc v. Jiinn/inrf, 7 U. C. J>. .J. 120 ; 77/'' QiKoi ex nl. Jlouan v. Murnn/, 1 U. ( '. b. .1. N. S. 104.) There is no express provision as to the time a ^Va^den shall hold office. (l*'oc note d to sec. 130.} The latter section makes provision for his resignation. (/() No Reeve or Deputy lleeve is allowed " to take his scat" until he has liled with the (_'lerk of the ('cninty (,'ouncil a eertifieate of the Clerk of the bocal Council, innlerthe Corporate seal, thatsucli Reeve or Deputy Iteeve was duly elected, and made luid subserihed the declarations of office and (jualilicatiou as such Iteeve or Deputy lleeve (see. O.S). In the case of a Deputy iteeve, a declaration as to the nuniljcr of persons on the ItoU is also re([uired. {//>.) Tlie tiling of these papers and the making of the declarations of olHcc and »lua]itications, when recjuired, are conditions ju-ecedent to the election. {//( re lliurk and Ballard, 3 \J. C. C. T. 241 ; see also Th<' (Jmoi (x r(d. McManu.'< v. I'Vnjiison, 2 U. C L. J. N. S. 2.3.) When the Iteeve or Deputy Ivceve has taken his seat, he cannot prevent the carriage of a vote by merely retiring from the Council alter a motion has licen made. (Tin' Queen ex nl. Ifrenanv. Miirrai/, 1 U. C. L. .1. N. S. 104. But see T/te People v. WhUe.<}de, 23 Wend*. 9 ; s. e. 2G Wend. 034.) When four mendjers of a Village Council, being at least a majority of the whole nund)er of the ("ouncil when full, met, and at their first meeting a resolution, naming one of them as lleeve, was put and seconded and no dissent expressed, whereui)oii the ( 'Icrk, in the hearing of all, but while two of the members were returning from the Council (,'hamber, declared the resolution carried, the Iteeve was held to be duly elected. {The Queen ex rel. J/eenan v. Jlurraj/, 1 U. C. L. J. N. 8. 104.) It is saiir,>i Council to JUL Si'c 120. Rc-iiijii'ition of Warden an I neio L'/ectioii. Sec. 130. \*l\\. If, after tho election of any person as member of a Seats to ^"■- Council, he be convicted uf feluiiy or infamous crime, or i,y .rime, become insolvent within the meanin,^' of the Insolvent Acts, |j'[fyy,)(?"''ji; or ai/|)lv for relief as an insolvent debtor, or remain in close custoilv, or assign his property f»u' the use of his creditors, or absent himself from the meetings of the Council for three mouths without being authorized l»y a nw^hition of tlie Council entered in its minutes, Ins seat in tlie Council shall there)>y become vacant, (/) and the Council shall declare the seat vacant, and order a new election, [in) 31 V. c. 30, s. 22. (/) Tho ountiiigencios which, undor tliis section, will have the offcct of vacating a seat in the Council are ; 1. licing convictt'd of felony or infamous crime. 2. IjcuDining insolvent under the meaning of the Insolvent Acts. 3. Applying for relief as an insolvent (lcl*t(tr. 4. lienuiining iu close custody under process for debt. 5. Assigning propertj- for the use of creditors. 6. Al)sence for three nioutlis from the (.Jouncil without leave by resolution entered in the minutes of the Council. To these may he added : 7. lieing convicted of an ofTence under Statute 32 Vic. cap. 32 (the Shop and Tavern Licenses Act), sec. 17. 8. Uesignation. (Sec. TJ-l.) y. Death. (Sec. Vlo.) 10. Judicial decision. (Sec. 12.'>.) 11. Acceptance of an inc(mipatible office. (See note n to sec. 124.) The Act of 18(5(5 made the "return of nulla bona .against his goods" gr(jund for vacating the seat ; but this, no doubt, has been removed at the instance of some disinterested hohler of or aspirant to oflice. So long as a property ([iialil'.cation is necessary to olHce, one would think that a return of nnlla /((,i/(/t wtjuld l)e g(»o(l evidence of the want of the (pialillcation. Jiut it is well known that some men, holding office re.puring property (lualiilcatiun in legislative and other bodies, are devoid of property when sought by the sheriff. It is an anomaly wliich, by the omission of the provision of the Act of 18GG on the point, the Legislature appears desirous to per{»etuatc. As to the meaning of the words, "shall thereljy l)e(n)me vacant," &c., see The Kinij v. Oxford, A. & E. 349 ; The Queen v. Leeds, 7 A. & E. 963. ) {m) There must be an actual vacancy before a new election can be ordered. An anticipated vacancy, or a resignation to take effect at a future time, is no ground for ordering a new election. (Lindxot/y. Lud-rft, 2{)Toxas, .)1(3; Biddlr v. Wdlard. 10 Ind. (52; I'eoplev. Wctkarll, 14 Mich. 48. See also Coll ct al v. Bi.-ihop of Corcntry, Hoi). LW; Owen V. Stainoe, Skin. 4.5; Cdover on Municipal (..'orporations, 216.) "An existing ollice without an incumltent is vacant, whether it be a new or an oKl one." (Per Stuart, J., in Storkin;; v. Slate, 7 Ind. 326 ; see also Collins v. State, 8 Ind. 344.) Where the office becomes vacant 84 THE MUNICIPAL MANUAL. [s. 121 Anymemlior l'}4. Any Miiyor or other inenilxn- of a Council may, withconsfi'iii with tho coiisont of th(i iiiiijority of thii moiiilicrs present, to of mivi'irity 1,(. entered on the niinuteH of the Couneil, resign his seat in ofcouneii. ^j^^_ Oouncil. («) 2'J-;3U V. c. 51, ,s. IDl. throiigli any other contingency tliivn dcatli, and the person wlioso seat id vacant insi.sted on iioldiug it, the pioper remedy against him is iiiti) ((vova;(/o procedure and not a writ of niandanuiH ou the Mayor to iiold a new election. (Tlii' (Jidcii v. Coniir'-;v;,sor.s LM ( *al. 08.) AVliere the jjerson elected instead of accepting office refuses ottice, ho may, under certain circumstances, i>(,u, 1 Ld. Itayd. .'iCi.'J; T/ii'QtKcii v. Lam-, 2 Ld. Uayd. 1804; see also .S7((/(' v. jurijitsuii, .SI N.J. (•2 Vroom.) 107 ; Lavis v. O/ircr, 4 Abb. Br. I'il ; Pco/ilc v. Porur, G Cal. "JO; (,'(ifc--< v. Dr/nixur (.'nnnli/, 12 Towa, 405; UiiUcd Slnfr.i v. Wri'jlit, 1 McLean, ;")()!).) In 2 Itoll. Ai). 4.")l), it is said that an Alder- man, with the assent of the Corporation, may resign his otlice in tho CJorporation, and tiiat the ( 'orporatiou may accept the resignation as of right. Where the Act which sanctions a resignation prescribes the mode, tliat mode nuist be followed. {T/ic K'uuj v. Jldijlii's, 5 B. & C. 8S() ; 7'/i(' Kill!/ V. J'ippoii, 1 Ld. Bayd. ">0.S : 7'//c' Kiiiij v. Pdjiiie, 2 Chitty, .S()7 ; The (Jia-cii v. Moiioii, 4 Q. B. M().) NVhere no parti- cular mode isspecilied, the resignation need not be in writing or other set form, ('/'/ic Kim/ v. Jx'ijipun, 1 Ld. Ilayd. .lli.S ; TIk'Qiuch v. Lniie, 2 Ld. Bayd. 1804; see J'hdIikj'.s fcxe, 12 ^lod. 402; The Qiucn V. O'luiiccsta; Holt, 4r)0 ; Hin 'Ur--<(lall v. llnznnl, 8 Hill, (N. Y.) 248; Stutc V. Allen, 21 Ind. 510; People ex rel. Hanmhan v. Metro- jMl'ihoi Police Ihxird, 2() X. Y. 810. ) A Warden may resign by ' ' verbal intimation to the Council in session," or " by letter to the County Clerk" if not in session. (Sec. 180.) Bj'^this secti/ (ha Unh'cr.sU;/ v. WlU'minx, \) ( iill and Johns. ( .\bl. );{().")). and it mattor.s not whctliur tho suconil olficu is .siipca-ior or inferior to the oliice iirst liold. (M'thoiird V. Tliitlrlicr, 'J T. \i. 87 ; hou also Titc Kin;/ v. Tri/dirni'i/, 3 Burr. 1015 ; Cniiu' v. JIo/litii{\'y\ Tli'- KiiKj V. JJ'itiil, G 1). & It. 'Mi'.i. ) If tho Iirst oHiee cannot be resigned witliout tlie consent of some [)artieu]ar l)oily. sueli as tlie Council, under this section tiui aeeeptance of an incompatible ollice, in the gift of a dili'erent body, could not ,'/•/• .sc be held to vacate the lir.st oiliee. {//>.) Olliees are incompatible where, from considerations of public [jolicy, the ineuud)ent cannot bo i)ro})erly e.\[)eeted to discharge the duties of both. (Stanlhnul v. Jfop/ym-^, <» M. & W. 1 78 ; I'ii'' A'/;/*/ v. TirMrd, 9 B. & C. 418; Pr^ifd,' ex n-l. WhUlwj v. Cirrh/iic, 2 Hill (N.Y.) <».S; Bri/d)! V. Citlh //, If) Iowa, o.SS.) 'J'he olliees of Chaudierlaiu and Trea- sure)', and niemher of the C'ouneil, are iucompatil)le. {'/'/n- (Jini-n v. S,ni//i, 4 U. C. Q. 15. :V22, anermittjd also to act as a Bank Agent. {/iK/rr-soU v. Ckadwkh, 19 U. C. Q. B. 278.) (0) See sec. 116. (p) Mere hesitation to take tlio oath until legal advice can be procured, is not to bj djeinjd a neglect or refusal within the mean- ing of this section. (In re A- 111 case such uou-eh^etiuu, ue;^d('ct or refusal as afore- said, (c) occurs ]»revious to t]u^ organization of tlu; Council for the year, (w) tho warrant for the ncnv election shall 1)0 issued hy the head or a iu(unl>er of the Council for the jiro- vious year, or by the Clerk, in like manner as provided hj the one hundred and twonty-lifth section, (x) but such neglect T'liii of •fllra of |ii!r noti tliurt:- Warraiit for new clcc- tiilllH. 789.) Tlio word "imiueiliatoly" is luoro strictly octiistrucd. (Tke Kim/ V. /fi(ntiiiijiluni/urc, u O. & 11. 5S8; The (J'Ucn v. A-ituii, 1 L. M. i&i*. 4 to sec. 12o. ho) See note i to sec. 1 20. (x) Five Councillors were elected in .Tanuai'v. At their first meet- ing, on 17th .fanuary, only one made the declaration of ([iialifi- cation ; and a douht ha\ing been raised as to tlie reinaiuing four, in cnnscipieuee of some eiiipl p^ ineut held b,v them under the ( 'orjioration, they delayed in order to consult tlie County .Judge. On tlie I9th January they met again and organized thenisclves, but on the same d.ay the lleeve for the previous year issued his warrant to elect four other (J(juneillors, who were returned ; and on the .*? I st .fanuary these four, with the man v.ho had lirst ([U.alihed, met and claimed to be the Council. lf iinvcut full number of the Council, (.y) 29-30 V. c. 51, h. 1l'7. orliouudl:''' ViH. The HcturniiiL,' Ollicer shall hold the now ehn-tion Tiim-for at fiirtlK'st within (!i,i,dit days after receiviii,:,' the warrant, (a) [',i;['""V"'* and sliall appoint a tiuu5 and [tla(;e for the noiiiiiiatiou of m^w uloc- candidates, and, in ca.se a poll he dcMnanded, shall, at least '""" for a new oK'ction. (In re Asjifiodrl nml Sarqnnt. et al, 17 U. D. Q. B. 59.3.) A maiiilaiiiuH w.'is tliureforo onlered to thot'lork to ilolivur up tliu papurs to tliu i'ouucil (irst chosun. ( ll>.) {ij) See note ij to sec. 1'20. (a) Tlie Ueturiiin^ Ollieer ia to hold the election at fiirthfAt " v;ifhi/i iiv^ht (lays 'r. R. 28H. ) In this case the statute re([uireil an annuity deed to he enrolled " irithhi twenty days of the cxecutiou," and it was read as excluding the day of execution. Lord Kenyon, in delivering judg- ment, said, '* It would he straiiung tiie words to construe the twenty days '/// inclusively. Supfiose tile direction of the Act had been to enrol the nu^niorial within ouf day after the granting of the annuity, could it i)e pretended that it )ueant the same as if it were said that it siiould he done ou tiie khiiii' day on ■which the act was done? If not, neither can it he construed inclusively where a greater ninuber of days is allowed." 'I'he same interpret.ition was put on the words "iri/hiii twenty-one days after the execution," in the case of the registry of a warrant of attorney'. ( WiHiidii.s v. IJnri/iis, !) Dowl., a44. ) Lord Denman, in delivering judgment, said, "The question in this case has l)eeii deciiled in i-m jinric Fiillmi, wh'ch is an uny a statute [lassed aftur tliat Act, and there- fore we must compute according to the general rule where there is no exjiress provision. This makes the llrst day incdusive and the last exclusive, or I'ica ccr.sit." (Srutt v. J/lrksoii, 1 I'rac. 11. .'Uili, was followed in Vrooiiian v. Ulincrl, 2 Prac. 11. 122; JJiiJ'alu ami L. H. U. Co. V. IJrookxftnnh, Ih. 12(5 ; (Janu-rnn v. Cumoron, Il>. 2.")!) ; Calhti/licDiv.lJnhirsHal, Ih. 144; Vlarhv. Waildrll, lb. 145; PltlUip.'i v.Mi-rrUf, Ih. 2;};!; <'iif/thr,i. v. Street, i) C.C. L.J. 20; In re fVe.st Toronto Eleiintn, o I'rac. II. ;JI>4. Tiie following cases, in whicli hulh days were hehl to be inclusive, were tlccided nmler the 2 (!eo. 1\^. ca|). 1, or some other statute or rule ex[)i-essly making both days inclusive: Moore v. The ilnind Trunk liailnnuj (.'o.,'2 Prac. 11. 227; Ito.i.t et nl V. Johnson et al, Ih. 2;}(); liibtnt \. Orr, Ih. 281; W'dlUuns \. Lee, 2 U. iJ. Cj. p. 1.)7 ; 2M>reU v. Wllniolf, 20 U. C. » :. P. 378. See further note u to s. 181 of the Assessment Act. But the words "from " and " until" do not admit of so rigid and well understood a rule of SH TIIK MUNKIIl'Afi MANUAL. (s. I'JO. i'oiir lit liny iiiiiiu:il or otlii'i' flfftion, tlio rlcctora fVom iiiiy ciiust' not iirovidcd lor liy (lie oiio liiinditMl iiiul 11 wuiirr 111 j>i», .1' f II I • 1 * ii 1* I J indiiiiiis of tiKt'riuli or one liiindi-( d iin,' /.ml-; '2 ('owji. 71 I, 717, Lord Man^i.ii'ltl s;>i(l, " In L'l'.'imii.itii'nl slricliu'SM and in tin- nioost pi'ii- )>riity di' s|uH'('li tli:>,t (lie l^ll■,'li^^ll laii;4ii;i.;t' ailmit.s of, tlu' miisi! of tin^ Word ' from ' tin'st ;oii tlu! cimh.l iiiitl Kiilijcct viii'!(r M iK'tluT it mIi.'II lie (■unsti'iicd hi'-lii, iMul whilst tlic gciitkiiu'ii of tlio liar wcrr arguing this i'a>i\'si'nt iinc liivl added tlie word ' iiii'liisivi- ' or ' I'M li'si\i',' tlie niattrr woidd have licrn very clear. If tliey had said 'from tlu' day of the ('ate /;/i7/'.s,'r ,' tin- term would lia\c coni- inenecd iinnK(li;>tcly. If they had said 'from the diy of the date f.i-'/r-ii-".' it world liave oonuneiu'cd tlu; iir.r/ ihxy. Hut lot us 8ee wdiethor the context and sniijecb matter in this case do not show thivt tlie coiistriictioii here should ho iiirliisirr as dciiioiistrahlv as if the \.oid ' iiu'iiisivc ' had Ikcii added. " iti in II itisini \ /',', Cami>. '_".)4 jjon' l'',lh'iiliorou;,di said, ' the date' includes ihc d.av, and from n;i, z It used to he held that ' from the day of the date' exelmlca it. Hi'.t since the case of Pi'iiii v. '/'/c Dnh'' n/' l.n'l.-i, the formal distinctions have hoen dono away, and tho rule of good sensu lias been estahli.shod thrt such words shall ho construed aci^ordin<; to the meainuv; of the ]».i.rtios wlio use them." In /stntrs- I'f al v. Tin- limjal l)i-<"i\t\iy Cn,i\;>,',,,i, L. U. ;■) Kx. •_>!)(>, Kelly, ('. H., said, " Ui'ioa lookin ; p.t the authorities hofore Pmili v. htikc of Lcci's, 2 Cowp. 711, it aj>|)L'ars that ((I'cstimis \\ itliont numhor arose as to %\ licthor upon a contract to do any ;vct or enter into an oiii;a::emcnt at or for a deriiiito term, say six or twelve months from the day of the ilate of some act done, time v.as to ho reckoned exclusive or inclusive of the la-*t day of the time, hut in that case it was olisei'Ved that it was iiiijiossihle to Lvy down any tixed ride, hut that each case must de[io;id on its own cirei'-instrnces and siihject matter. Sometimes tho til >t day, and sometimes the last was inchided. N<> settled and invaria^de rnle has '>con laid dov.n for all cases." The word " until," wliich is idso e([invocal in its meaning, w.as in this case held to be inclusive of thu last day. (aa) "At l('(i4 four days, &c.," see note ;y to s. 10,'). {h) The power to proceed under this section maybe exercised, first, in case the electors neglect or decline to elect the necessary memhera on tlie d.iy aiipointed for the election, and, secondly, in case they neglect or decline to elect the requisite number of members. h. I'Jl).] I'l'.NAI.TV roll NON-ACCKPTANCK OI' Ol'FKi;. 8;» 0(m!il oi- exceed the liiilt" of llie Ciiiiiieil wlieli coiilplet*', OJ" ifa li;ilt' of siieli iiieiiiliers ;ire ikH eleet<'(l, t lien the iiiciiiIhTS for the pieced i 111,' yciir, or thi- lii;iioii(y of such liieiidierrt (tlecteil or old Coiiiicil I'espect i\ cl y, shall appoint iis iiiiiiiy quiililied pc-rHouH us will coUHtitutu or complete) tho iiiimlier '" iiM'inliers n-cpiisite ; (<■) and the persons so appointed shall ivauity .iccept ollice and make tli(* necessary declarations, under tlio Banie penalts, in case of refusal or neglect, us if elected. Vi>/>; I'lMJO V. c. 51, s, lL",». ('•) 'riiiTo is a dill'i Tcnof iHitwccii an election aiul an ai>p(iii»tiii«;Mt. {Tin (,t>ir,i, i.r r< /. Ilnlil v. < t' I h„ia,ilnu' ,1 ,t/, .'{ I'. ( '. I,. .1 T.'t.) All elic/idii, wlictlicr by tlu^ cli'i'tniH at larj^'c er l>y tlio iiu iiilicrs uf tlio (j'euiifil, ia liy vote, and usually connists in tlu! cliuiiMj of thi! nii;iid>iTH of tlio ('(Uiiicil by till- I'li'ftors ef tlic .Miiaici|iality, or of tlic head of tlU! ('otllU'il liy the lIli'IllluM'S (if tilc ('milicil elect; liotll of which j)nieccdiii;,'H arc in j^cncral essential totlic ori^'Miii/iilioii of tlic ( '(imii'il. (Sec. I'JO ;iinl iiotcsJ An n/i/iiiiii/iiiiii/ is, pi(i])eily s|icaUiii;;, an act of tlic ( niiiuil after iL lias Ikcii oruaiii/cil. 'I'liiis; tlic ( hrk and other olliccrs arc appiiiiitcd, not ductci!, hy tlii' < 'ninu'il. (Src sec, l."SO.) Tlio section iiiidor consideration sjieaks of appoiiitiiicnts, not of olee- tioiis. It tlieri'fm c hccoincs material to (.(niHidcr precisely under what circumstances the powiT of ap|M)iiitm<'iit under the section can ! c\crcisc(l. If there nc an ciifirr failure to elect menilicrs on tlio V fixed for the purpDse, the ])owt:i' to appoint \v(Mdd of conrso !)lvo on tin; ( 'ouiieil of the jireccdiiiL; year, wliieli, luiviin,' been only organized, continues in otliec until superseded by tlio or;^;ini/a- tiou of a new ("ouncil. IJut if the failure to elect bo only />iir/ilrff, appniiit tin; rc(|ui.site number of lueiubers. If Ann than half of tin; nicnibers of the new Cmnicil have l)cen electeih then the iin^niliers of the /ircni/iiii/ year may make the roipusite aiipointmcnts. This is as tlio JOditor now understands the section. \Vords have lieen placed in it to remove a diliiciilty which he ]ioiuted out in the furnicr edition of the Manual, wlu^ii annotating tlu; section coiresjiending witli the one now under consiih'ration ; but there' is still some oliseuiity in the section as now fraiiie(l. It dcelares "that if a half of suidi members ,u(; not eleeteil, then the members for the ])rccciiiii,!j; year, '//• the majority of such nienibers eleeteil, or old Council, res|)ectively, shall ajijioint," &C. No (h)ubt the members of the preceding year may, in the ease sup- posed, make the appointments. Hut what is meant by the worils "or the majority of siicii members elected, or old ( 'ouncil ?" Is it meant tiiat either a majority of the new ( 'ouncil wlu'ii les> than half, or the old ( '(Uineil, may make the a]ipoiiitmeiits '! It is a]iprehendeil not. So to construe the section would bo to revive the dilfieulty which the section was intended to prevent. '!'he majority meant i.s the majority ecpialling or exceeding half the Council when tuU. Such a nnijority, if existing, shall make the appnintmcnts. If there be no 8U(;h majority, then the old Council shall apjinint. If this were m>t so, it would be in the jiower of the members elect, being a minority of the Council when full, to ajipoint the majority of the Council. This conseipience would not be reasonable, and in order to avoid it, the section should be interpreted as above suggested. 90 THE MUNICIPAL MANUAL. [ss. 130, 131. of vr^rilan I'i'ovlded for. V»r:incin8, Jiovr nilixl. ISO. Tlio Warden of a County may resign his office (d) bj verbal intimation to the (Joiincil wliile in session ; or by letter to the County Clerk if not in session, (e) in which cases, and in case of a vacancy by deatli or otherwise (/) tlie Chirk sliall notify all the members of the Council, and shall, if re({uircd liy a majority of the members of the County Council, call a special meeting to till such vacancy, (y) 29-30 V. c. 52, s. 150. Division VI. — Controverted Elections. How vallilif.// or riylit of J'Hec.tlon determined. Sec. 131-14^1, Writ/or /i('ii).i)i:al, iC'c. Sec. 14-2- If entire, Election invalid. Sec. IJ^S. Disclaimer. Sec. lJj,.'f-lJf.O. Costs. Sec. l.y.t, ].'>:). JJccisioii, of .fail (J e final. Sec. l')l. Juilijes maij settle Forms an I Practice. Sec. to2. Trial (if ron- IIJ|, In cosc tlie right of any Municipality to a Keove or lions or ''^" Dei»uty Reeve or lve(!ves, or in case the validity of the right to election or ap[)ointmeut of JNIayor, Warden or Reeve, or Deputy Reeve, Alderman, or of Councillor is contested, (Jf) (d) It is rciirirkiO)lii tli.at in no part of the Act is there any provi- sion as to tlic time the Wanlen shall hold oHice. Section I'iO provides for his election. 'I'liia section jirovides for his resignation. ]*>ut there is no section dechirini; liow lonii; he shall liold ofliee in the evt^nt of hi'< not resinnin:^. 'I'iiero sh(»uld Ite a IcL^islativc ])rovisiou eitlicr tiiat he should li(>hl otHce for a year from his apitointmeiit, or till tlie appointment of liis successor. It is hy see. 1120 ])ro\i(led tiiat the < 'ouncil sliall, at tlicir lirst meeting, organize themselves by electing a Warden, itc. 'I'lie inference is that the appointment is an annual one. But \vhctlier the olhce is to he hold till the appoint- ment of a successor is left in diuibt. !See note j" to sec. 85. ((') See note h to sec. 1'24. (/) See note I to sec. 1-!$. (.'/) In the lirst instance, the duty of the Clerk is simply to notify the mcniliers of the ('ouihmI of the vacancy, lie is only bound to call a s[)ccial meeting to lill the vacancy " if rcpured by a majority of the members of the (-ounty I 'ouncil." This evidently intends a majority of tlie ('ouncil when full, as to which, see note ,7 to sec. 120. (/() T^vo mattci's are stated as subjects that may be contested : 1. The r't'jht of a Municipality to a Reeve or Deputy Reeve or Reeves, which must depend on the numlier of freeholders and house- holders on the last revised Assessment Roll. (Sec. G7.) 2 Tlie ndi'/'ifi/ of the election or appointment of Mayor, Warden or Reeve or Deputy Reeve, Alderman or Councillor. 131.] CONTROVERTED ELECTIONS. 91 tlio Hunio may 1)0 trie*! in term oi* vacation by a judijo of either of the Huporiur < jxirts of Coiiiuiou Law, or tlie senior or otliciating judge of the ('oiiuty Conrt of the County in wliich the election or app nntiuent took place ; (/) and when the right of a Municipality to a Reeve or Deputy Keeve or Reeves is the matter contested, any Municipal elector in the County may V)e the relator, and when the contest is respect- ing tlie validity of any sucli election as aforesaid, ai^y candidate at the election, or any olector who gave or tendered his vote thereat, or if i-especting the validity of any such appointment, any mendier of th(> ( 'ouncil or any elector of the Wai'd, or, if there ))e no Ward, of the ]\[inu- cipality, for which the ai)j)pointmeut was made, may be the relator for the purpose, (k) 2I)-30 V. c. 51, ss. l."5() and 132. lentil the passing of the Ton. Stat. U, C. cap. .')4, there was no mode ])}' which tlic ri'jlit of a Muuici[)aHty to a lieeve or Deputy Keeve coulil ])e contested otherwise than liy an information in tiie nature of a (/kd irnrrinitn. [Tlie (Jiifcn (-./■ re/. Hart v, Lhnlsinj, 18 U. f '. Q. B. ,51.) Not until the 2)assing of tiiat Act was there any power in a summary manner to determine the validity of an apjioint- ment. {'J'/ictJiKi-n ex re I. Buitjiw <>\/)iiH(i. ) It Mould seem that a sunnaons, in the nature of a (//'o irnrniDln, is not yet the api)ropriate remedy against a person wiio '..is forfeited his seat by an act subseijuent to iiis election. (Tin ef()re the summarj' mode of trial of eontesteil elections i)re- scribed by the Munici\ial Act, the only renu.'dy was the tedious and expensive one of information in the nature of a '/iio irarran/n, and in eases where the provisions of the .Municipal Act is iiKiii|)lical>le, that rcmeily nuist still be adoi)tcd. ( Tli'(Ji«iii( r ri-/.( ' ii-nrrinito is asked for on l)ehalf of an individual, it nnist, if allowe iriirrniifn iufiu-nia- tion. {Tlic (Jii'',-)i ix ril. Wintry. /,'.,,/<■//, IS V. C (,l. K. 'J'Ji;.) 'I'iie general practice is, as mucli as po.ssibks to conline jiarties aggiicvcd to the relief to be obtained under the statute. (/.•( re Kdhf v. Macarow, 14 U. ('. C. P. 457.) (!■) The relator is the person upon whose application tlu; jurisilic- tion of the Judge is jait in mution. It is to be observe. ) It is not desirahle that the ( 'lerks of .Municii)al ( 'orporations, having the custody of the papers of tho Corporation, should he relator.s iu'/^o vnrnnito proceedings to unseat memhers of tho Councils of which they are Clerks. (The Queen ex rcl. MeMullen v. De Lisle, 8 U. C. L. J. 2!»L.) All the Judges, whether of Superior or County Court, uamod in this section, possess I 8. 132.] CONTROVERTED ELECTIONS, 93 \IVI. If within six wcoks after tlie election, or one month Timn for aftei- acceptance of otlico by th(! person eh'cte I'rae. 1!. 8.S4.) Pmt he will not be allowed to set up irregularities in the ])rocecdiHgs as such unless he show tluit tlie relatttr committe., see Appendix); and if the time Hunted be allowed to elapse without an application, the relator will not be allowed to file an information in the nature of a ijiiii irarrdiito. [The Qua a e tlie fibrin of the recfignizance ; IN TUB quken's rENcn {or ((jmmox pleas). UiTKR Canada, (Jmuity (or L'nited Coinitiesi) of . Bo it rememhored, that on tlie ilay of , in the year of our liord one thousand eight hundred and , before me , of — —, Chief Justice (or a Justiee, or a Conmiissioner for taking bail) in Her Majesty's Court of Queen's Bench (ur Common I'leas) for l'i«i»er Canada, oometh , of , and , of , and acknow- ledge themselves severally and respectively to owe to , of (Iicrc ill.'" lit III f till' iKiinc or iianir-i of the /nrfoti ifAow clicthm is conijilii'nii'il aija'ni.-:!), as follows, that is to say. tlie said — — the sura of two hundred dollars, and the said and ■ the suni of r)ne hundred dollars each, upon condition that if the said do prose- cute with eiiect the writ of siunnions in tlie nature of hikj vnirraido, to be issued on an order of iiat to be maile at tlie 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 (li. II., in the (.,'ourt of, &c., in the sum of, &c.) And I, 0. D., of, &c., the remaining surety in the recognizance hereto annexed, make oath and say as folluWB : 06 THE MUNICIPAL MANUAL. [s. 13- the nattire of a quo warranto (?•) to be issued to try the lutit- tors coiitoste. and ( ■. 1)., wore severally sworn before lac, at, ite., in the (-'cnintyof, &c., this day of , A.D. 18—. A ConimUmmer, tCr. A. (J. (r) The following may be the form of the Judge's fiat ; IN TUK QUKKN's DEXCII [ur COMMON PLEAS). Upon reading the statement of , of- , in the County of - coni]»laining oi the uncbie election and usurpation of tlie ofiieeof— — , jjy ^ [and (if Ki>, sidt'diij) tiiat tlie said (/•< Ititor or utitcr jirr.ian udui.i'il} was ("/• were) duly elected, and ought to have l)een returned to the said oUiceJ, and ninni reading the aliidavits tiled in support of the said statement ; and also upon reacbng the recognizance of the said , and sureties therein named, and the same being allowed as sulHcient ; I do order that a writ of summons do issue, calling uixin the said {t/ie imrtii irhoHv clrctlun is complained of) to show l)y what authority he {or they) the said {tlie portij ir/iose election is C()iiii>/(tiii''(f ersons /k/ »*(■'/) slu)uld not be declared duly elected, and be admitted thereto I, returnable before, &e. Dated this day of , IS—. (.s) The following may be the form of writ : UITER C.VN'ADA. Vrc'TouiA, by the Crace of Ciod, &c. To , of , (to., in the County (or United Counties) of — — . We couunand you (and each of i/oii) that you {and each of >/ou) be and appear before the Chief Justice or other Justice of our C(nut of Queen's Bench or ('ommon Pleas for Upper Canada, presiding in Chambers, at the Judges' Chambers in our City of Toronto, on the eighth day after tlie day on which ycni shall l)e served with this writ, then and there to answer and show to such Chief Justice or Justice by what aiithority you eliiim to use, exercise or enjoy the otliee of , which otlice, upon the relation of , having as he says an interest in the election to the said oHiee as a , we are informeil that you have usiu'i)ed and do still usurp [and that {if so claimed) the said {relator or part ij or jiarties mentioned) was (or were) and should have been declared duly elected and adnutted thereto], and fui'ther to do and receive all those things which our Baid Chief J ustiee or J ustice shall thereupon order couccrning the premises. Witness, the Honourable , Chief Justice of our said Court of {or other Justice in whose name the writ is tested), at Toronto, this day of -, 18 — , and in the year of our reign. To the writ must be attached a copy of the relator's statement of objections and grounds, and of the names and adiitioua of the ss. 133, 13i.] FORM OK NOTICE. mil. The Judge of tlio Sui)erior 001111, before wliom EviJcnc.! t* the writ of .suimiuous is riituriiul)!©, may order tLo evi(Lnico r'aurn of" to 1)(! used on tlio lu^ariug of tlie .suunaons, to 1)0 taken J^'j^^'i'i^y '" viva voce before the Judge of the Couuty Court, in the i.'o« by loavn prc.s{>nce of counsel for, or after notice to, all parties in- "fju'ih'*-. «^<^- tercsted, and such Judge shall return the evidenco to the Clerk of tlie Crown of the Court at Toronto, and every party shall bo eutitlod to a copy thereof, {t) Vide 35 V. c. 3(), t-s. 5 & G. 1I{4, In. case the relator alleges that ho himself or some whentiuio- other iM;rson has boon duly elected, the writ shall be to try V'^^Vi*'.?.!*! the validity, both of the election complained of, and the persons who shall have made the affidavits upon which the writ issueil. (Kulu 3.) Tho notice may Ije in the following form : IN TUE queen's bench (or COMMON PLEAS.) The Qdeen, upon the relation of , against . To and named iu the within [or annexed) writ of summons. The within (or annexed) writ of summons has been issued at my instance and relation ; and a statement oncerning the premises, whereof a copy is hereimto annexed, is liled in the office of the Clerk of the ( rown in this L'lairt (or with the Clerk in Chaml)ers at the city of Toronto), together with ailidavits sujiporting the same ; and the names and additions of the deponents to the said alhdavita are hereunder Avritten. And ycni are ser\ed \\\i\\ the said writ of summons to the intent that you do appear and answer, as herein commanded, or otherAvise judgment will l)e given against you l)y 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 jmrtij or parties, if any, al/ajid to be entUkil) therein named be declared duly elected, and will be admitted thereto iu your place.] The above mentioned deponents are : , of . of A. B. m person, or l)y C D. his Attorney. (t) There was no such provision as the above in t^ie Act of ISGG. It for the first time appeared in the Corrupt Practices Municipal Elections Act (.35 V^ic. cap. 3G, ss. 5 & G). In some cases it may be necessary for the Judge before whom the case is returnable, in order to avoid needless expense, to avail himself of this section. It author- izes a proceeding in the nature of a commission to examine witnesses. The Judge may, if he see lit, command the attendance of witnesses before him. (See sec. 141.) 98 TUE MUNICIPAL MANUAL. [s3. 135-137. allegod eloctiou of tho relator or other person, (u) 29-30 V. c. 51, s. 131, sub. 2. When BGvo- 1JJ5. In caso the grounds of objection apply equally to compliiiuud two or nioro persons elected, the relator nuiy proceed by ouo °^- writ against such persons, (y) 29-30 V. c. 51, s. 131, sub. 3. I*t6. Where more writs than one are brought to try the validity of an election, or tho right to a Reeve or Deputy Reeve or Reeves as afoi-esaid, all such writs shall bo made returnable before the Judge who is to try the first, and such Judge may give one judgment upon all, or a se[)arate judg- ment upon each one or more of them, as he thinks lit. (w) 29-30 V. c. 51, s. 131, sub. 4. Writ. whot^J IIJI'. The writ shall be issued by the Clerk of the process return day of the said Superior Courts, or by tho Deputy Clerk of tho thertxif. Cro\vn in tho County in which the election took place, (a) All to bo tried by tho »Mno judgu. (u) 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 shown, to the satisfaction of the Judge, that notice had been given of the disqualification of the suc- cessful candidate at such a time and in such a manner as must have made the electors awi^ic that if they voted fur that candidate their votes would be thrown away. (See note w to sec. 75. ) {v) It was, under the statite 12 Vic. cap. 81, sec. 146, held that a private relator had no right by a writ of summons, in the nature of a quo warranto, cither to attack the Township Council by name upon grounds which, if mentioned, must necessarily lead to a dissolution of the body, or to attack the whole Council in one proceeding, through the individual names of every member of it. {I'he Queen ex rel. Lawrence v. Woodruff, 8 U. C. Q. B. 336. ) But the law appears to have been in this respect afterwards amended (see 13 & 14 Vic. cap. 64, sch. No. 23, and 16 Vic. cap. 181, s. 27), and sec. 143 of this Act appears to be in the amended and extended form. (lo) At an election there may be several candidates ; so there may be several persons elected to office. One person may see fit to con- test the election of any successful candidate ; so another person may see fit to contest the election of another of the successful candidates. Each relator complying with this statute, may have his own separate and independent writ. In this way there may be several writa brought to try the validity of the same election. When such is tho 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 uniformity of decision. ( 7Vte Queen ex rel. Forward v. Detlor, 4 Prac. R. 198.) Where the first relation is collusive, and merely intended to protect the defendant in the enjoyment of office, it may be disre- garded. ( The Queen ex rel. McLean v. Watson, 1 U. C. L. J. N. S. 71. ) (n) If not tested on the day it was issued, it would be irregular. {The Queen ex rel. Linton v. Jackson, 2 Cham. R. 18.) But the irregularity may be waived by appearance. (lb. ) 138.] AFFIDAVIT OF SERVICE. 99 and shall be returnable before the Judge in Chambers at tho proper Court at Toronto, or before the Judge of the County Court at a ])lace named in the writ, (b) ui)on the eighth day alter service, computed exclusively of the day of service, or upon any later day named in tho writ, (c) 29-30 V. c. 51, s. 131, sub. 5. 1158. The Judge before whom tho writ is made return- able, or is returned, may, if ho thinks proper, order the (b) Although a County Court Judge may grant a fiat for tho Tvrit, it is always to be issued out of one of the Superior Courts. It is suggested that tho Hat shouhl state before what Judge the writ is to be returnable. It has been held that a County Court Judge may order tlie writ to issue returnable before a Judge of a Sui)erior Court. {The Queen ex rel. Lutz v. WiUicmson, I Prac. 11. 94.) In such case it is tlie duty of the relator to see that the proper papers are trans- mitted to Toronto, (lb.) (c) Thus, a writ served on Monday of one week would be return- able on Tuesday of the ensuing week, ' ' or upon any later day named in tho writ." The following may be the form of affidavit of service : IN THE queen's BENCH (or COMMON PLEAS). The Queen, on the relation of , against . , of , in the , maketh oath and saith, that he did, on the day of Rotnrninc olTuvr :i.iiy party. 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 wliich said copy was endorsed a -./ritten 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 .•'■Iso hereunto annexed ; and the deponent further saith, that the .ainute (or minutes) of the said service, written on the said writ of summons, was (or were) so written by this deponent within twenty-four hours after such service. Sworn at , in the County of , this day of , 18 — • Before me . Upon the return of the writ, the party or parties summoned may appear either in person or by attorney. (Rule No. 4, Appendix.) 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 ma;/ be) to answer the grounds of objection to his election which are within stated. " ( fb. ) If on the return no ajjpearance 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, maybe made on a subsequent day. (lb. ) The Judge may thereupon, on that or any subsequent day, proceed to hear and determine the matter. (Rule No. 7, Appendix. ) 100 THE MUNICIPAL MANUAL. [s. 139. Service to }n' jicrsonal, null i.s t;X- (Mni-il by issno of a writ of suinnions iit any stage of tlio procoodiiigs to iiiiik(i tli(! Jl(;tiirning Ollicor a party tlieroLo. ((/) 20-30 V. c. 51, H. 131, sub. G. 1151), Evory writ iiUvlor this section sJmll he served per- sonally (e) unless the jiarty to be served keeps out of the way to uvjid jKn'sonal service, in which caso the Judge;, {il) " Ls made returnaljlo, o?' is returneeen ordered that a writ of summons should issue , to show by wliat autliority he {or they) claims or exercises (ur claim or exercise) the office of ; and whereas it appears to our Justices of our Court of Queen's Bench {or Common Pleas), Ijcfore whom the said writ hath been made returnable {or (ta f/ir rtisr may be), that ycju were the lletuniing Officer by whom the said hath {or have) been returned as duly elected to the said ollice, 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 (Jhief Justice or other Justice of our Court of Queen's Bench {or (,'ommon Pleas) for Upper Canada, ])residing in Chandlers, at the Judges' Chambers, in our City of Toronto, on , then and there to answer such matters and things as shall then and tliere be objected against you, and furtlier to do and receive all those things which said Court or said Justice shall thereupon order concerning you iu the premises. Witness, &c. This writ must be served, with the like papers annexed, and the service thereof proved in like manner as is provided for other writs of summons, (llule G, Appendix.) TJie appearance and subsequent proceedings must also be the same. (Ih.) (e) " Personal service " of a writ has never been defined by the Legislature. Each case is left to depend on its own particular circumstances. Tlie Courts have not held it necessary to put jirocesa 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. (liar. C. L. P. A., 2nd Ed., note v to sec. IC, p. 17.) In general a copy of the writ should be left with defendant, and the original shown to him if he desire to see it. {Goijijs v. Lord Hunting- tower, per Alderson, B., 1 D. & L. 59'J. ) The copy of tlicAvrit must he left with, and not merely shown to defendant. ( Worley v. Glover, 2 Str, S77.) Though defendant refuse to take the ccpy, if the per- son serving it bring it away with him, the service will be -defective. ii3. 140, 1-U.] rowEus OF the jl'dge. lOi upon 1>oint,' .satisfiinl tlioro. f l>y allidavit or otlionvlso, may make an ci-'lcr f'»r such sulistitutiwiial servico as liu tliiuka fjt. (/) 20-30 V. c. 51, s. 131, sub. 7. 140. Tlio Judge before wlioru tlio writ is returned may Tiiojiui.-.- allow any iiersou entitled to be a relator to intervene and '"".yiU'W deiend, and may yrant a reasonable tin)(! feu* tlie imj'jiose ; simstv and any interveniuL,' party shall b(> lialile or entitled to costs ai'i at!f''i„j like any other party to the proceedings. {(/) 2l)-30 V. c. 51, 8. 131, sul». «Joks and any other records of the electi'.)n to be brought before liim, and may inquire into the facts en allidavit or allirma- j?vi,iPn ■,• tion, or by oral t(>stiitiony, or by issues framed by him, and autltiuii. sent to lie tried liy juiy liy writ of trial directed to any court named by the Judge, or by one or more of these means, as lie deems expciUcnt ; (h) subject, however, to tho {Pi'jciin V. Britr" et al, 8 Taimt. 410.) Whore tho copy was tlirust through tlio crevice f)f a door to dcfeii'lant, who had locked hiiasulf in, the service was held to he sullicieat. {Suti/li, v. Wiiitlc, Hanie.=!, 40.5.) vService upon a wife, agent or servant, is not personal service. Frith V. Lnnl Ooiw/til, 2 bowl. P. C. r)'27 ; Davlci v. Mnr/aii, 2C.& J.237; ''/o'/'/s v! LonUIuiUiiKjtowir, 1 D. & L. 5y tho grace of (Jod, of the United Kingdom of efore whom tlie sanui is pending, that the truth of such matters as aforesaid may bo found by a jury: We do, therefore, jjursuant to the statute in such case made and 2>rovided, command you, that by twelve good and lawful men of the (,'ounty of , who are in nowise akin to the said E. F., the relator in the said case, or to the said {the other jiarti/ or iiart'u's, nainiitij 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 matters 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. Witness, the Honorable , Chief Justice {or Justice) of our said Court at Toronto, this day of , in the yeai' of our 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 parti/ or parties) by their attorneys {or as the easi' maij he) and the jurors of tlie jury, by me duly sununoncd as within com- manded, also came, and being sworn to try the matters withiii mentioned on their oath, said that, &c. \Vlien the party or parties summoned has or have ap]jeared, 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 i)arties further affidavits or the production of any such evidence as the law allows. {Ih. ) None of the proceedings had in any case for trying the validity of an election, or which follow the determin- ation thereof, are to be set aside or held void on account of any irregularity or defect, which shall not, in tlie 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 sum- mons, certiorari, mandamus or other process, rule or order of Court or of any Judge thereof, acting iu the execution of the powers 142.] FORM OF JUDQMEN'T. 103 14/5. Ill ciiso tho olectiou complainod of bo adjudged juagcshnii invalid, (<) tho Judgo hUuII forthwith, hv writ, cause tho ^l?nm,tiruly . cli'i'trcl, ml- ■~ iiiit iMTHon foiiferrcil })y this Act, (iro to ho cortiliwl into tho Court fnun which <'lt'i'ti(l, or the writ of HummoiiH iasucd, to be dciilt with hkc other contempts '^'I'l'.tr"' /, , of Huch Court in other casuH. (Rule No. Mi, Ajipendix.) Tiiu fornus ' ' given may Ijc cli;vn;,'eil when neeeyaary, at the diseretiou of tho Juil^'o who trios or determines the case, to atUipt tho samo to BUch particular cjuso. (llule No. 17, A[ipendix.) It has l)een hehl that a .Judge of a County Court cannot, in deter- mining tho validity of a contested election, incidentally decidu against tho validity of a Township By daw. (The (Jucin ex rd, McLawjIdin v. IlickH el al, 5 U. C. L. J. 89.) (I) Tho following may be tho form of tho judgment: In the Queen's Bench (or Common Tleaa) the Queen on tho relation of against (and "A. ti., Returning Ollicer, made a party by the order of a Judge") iJo it remembered, that on the day c our Lord one thousand eight hundred and Chambers in the City of Toronto, before me. in the year of at tho Judgoa' Chief -Justice (or Justice) of Her Majesty's Court of (,>ueon's Bench (or Connnon Pleas) came as well the above named relator by his attorney as tho above named by his (or their) attorney and service of the writ of summons hereunto annexed, having been duly jiroved upon affidavit and upon the said day and upon other days thereafter at tho Chambers aforesaid, having hoard and read the statement and proofs of the said relator, touching and concerning the usurpation by him alleged against the said of tho othce of in the said writ of summons mentioned (and of tlic alleged misconduct of said A. H. aa Returning Ollicor at the said election) [and (if .so) tho election of (the part II or jiarlie.i named) thenito], aiul the answers and proofs of the said , and having heard the said parties by their counsel (or as the case niai/ he), and ui)f)n due consideration of all and singular the premises now, that is to say, this day of , in the year aforesaid, I do adjudge and determine : i'(;-,s/ — That tho said relator had, at the time of his making his aforesaid complaint, an interest in the election to the said office of as a . Second — That, &c. Third— That, &c. "■" 7j — That the said hath (or have) usurped, and doth {or do) still usurp the said office, and that he (or they) be removed there- from [or that the election of to the said oflice was void, and that he (or • y) be removed therefrom (rts the judijnient maij he)\. And that t said relator [or the said (nanilnw here accordingly taxed .and assessed as follow.s, th.at is to say, the cost of the said at the sum of [and tho costs of the s.aid (lohen Returnbvj Ojjicr entitled thereto) at the sum of ,] and the s.aid , in mercy, &c." (k) The following may be the form of writ for removal, &,c. Victoria, &c. To the Coriioration of (the toion, tovnship, or city of.) Whereas on tho day of in the year of our Lord one thousand eight hundred and .at the .Judges' Ch.ambers in the C'ity of Toronto, Ijofore Chief Justice (or one of tiie .Justices) of our Court of (Queen's Bench (or C'ouuuon I'leas) for Upper Cauada, s. 142.] FORM OF WRIT FOR NEW ELECTION. 105 tlic Ju(lt:;o (loterminos that no otlior povson was duly olcctod May oausp instead of tlio person removed, the JikIlco sliall, l)y tlie writ, i^o,i,'^^'^^' cause a now election to be lield. (l) 2'J-30 V. c. 51, s. 131, sub. 10. it was by the said Chief Justice (or Justice) adjudged and detcr- minoil that of had usurped, and did then usurp, tlie of lice of — — [and that was {or wore) duly elected thereto, and ought to have been returned, and was {or were) entitled in law tobo received into, and to use, exercise and enjoy the sai*l otlice,] all which lias, by the said (.'liief Justice {or JusticiO been duly eertiiied into our Court of Queen's Bench {or Connuon Pleas,) jjursuant to the statute in that behalf. Now, we being willing that speedy justice be done in this belialf, as it is reasona!)lc, eoniu'.and that the said {Uic jxrson or jtrrKons, vami'uj hint, or tin in, w/iosc )U, the said MunieiiialCorjJoration, and any Iteturn- ing Oliicer or other person or parsons, or such of you to whom the same shall of right ))elong, df), ])ursuant to and according to the statute in that behalf, cause an election to he as sjieedily held as shall lie lawful, for the election of a j'ersou {i,r persons) in the place or stead of the said avIio has ("/• have) lieen remove! as afore- said ; and that you, or such of you to wli.im the same doth •) I, A. B., do liereliy disclaim all right to the office of Township C<3uncillor (or as the case ma// le) for the Town- shi}) of (or as the case may he), and all defence of any right I have to the same. 29-30 V. c. 51, s. 131, sul). 17. 14Y. i^ucli disclaimer shall relieve the party making it from all lial)ility to costs, (.s) and when a disclaimer has been made in accordance witli eitlier of tho preceding soctions it shall operate as a resignation, [t) and tlie candidate having the next liighcst numl)er of votes sliall then become the Councilhn", or otlier officcjr as the case may be. (u) Vide 29-30 V. c. 51, s. 131, sul). 17. 148. Every person disclaiming sliall deliver a duplicate of his disclaimer to the Clerk of tlie Ciumcil, (v) and tho Clerk shall forthwith communicate the same to the Council. Vide 29-30 V. e. 51, s. 131, sub. U. 140. No co.sts shall be awarded against any person duly disclaiming, imless the Judge is satislied that sucli party 1. Tliat tlio di.sclaimor or envelapo containing the same be endorsed on the outsi'Ie thereof witli the word " tlisclain)er." 2. T]iat it bo registered at the po.st oHice where mailed. (»•) Disclaimers are of two kinds : 1. Disclaimer under sec. 144, which must he transjnitted " within one week after service of the writ." 2. Disclaimer under the section here annotated, which may he transmitted "at any time after the election," but "before the election is complained of." In tho case of the former there are no costs, unless the Judge is Batislled that the party disclaiming consented to his nomination as a candidate, or accepted the otiice. In the case of the latter there can lie no costs, as the disclaimer must be made before writ, a7id when made relieves the party " from allliabdity." (See sec. 147.) '' i) See note r to sec. 146. 1 1) See sec. 124. ('0 No proceeding in such a case is necessary to entitle " the next highcsfc" to the seat. He becomes entitled by tho fact of the disclaimer. ((') This is to apprize the Council that the party no longer clauns the seat. S. 150.] COSTS OF CONTESTED ELECTIONS. 109 consented to his nomination as r candidate, or accepted the oQicc;, in wliich case tlic costs hIuiU Ije in tlio discretion of the Judge ; (w) 29-30 V. c. 51, s. 131, sub. 15. 150, lu all cases, not otlierwise provided for, costs shall Costs gene- be in the discretion of the Judge, (x) 29-30 V. c. 51, ''''"^• 8. 131, sub. IG. (?(•) The rule is, that the costs of a contested election are in the iliscretion (-f the Judge. (Sec. !;!<'.) The excejitioii is, where a regular disclainier is made Avithin tlie time limited for the purpose, in which case no costs are to he awarded against the party wlio disclaims. If, however, the Judge be satislled tliat the party " con- sented to his nomination as a candidate, or accepted the olKee," the case comes within the rule, and not the exception. \Vhere defendant before this Act i)ersona]ly contested the election, Init on its being moved against sent in a disclaimer praying to l)e relieved from cnsts, because, having been duly elected, he A\as o))Iiged, under a penalty, to accept office, the learned Judge in Chamljcrs refused to relievo him of costs. {The (Jiuen fx rcl. Fitith'rMonv v. McJfonics, '2C'liam. 11. 1.37. ) But if the defendant disclaim in proper time, and be free from any imputation of blame, it is not lUiual to give costs against hii'i. (The QiU'cn ex rel. Cuiqilamlv. Wch.fttr, G U. C. L. J. b!(.) If the disclaimer be filed too late, clearly costs are in the discretion of the Judge. (Ex rcl. J/awkev. Hall, 2 Cham. 11. 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 disclaimer to the .Tudge in Chambers, whicli was received on the loth, and on the LSth the relator's affidavit was filed stating that defendant hail ci/usented to his cnvn nomination, and had taken his seat, &c. No proof of the grounds taken in the state- ment were ever filed, and the case was then allowed to drop. On the 27th ^'..ijril, the relator filed a further affidavit stating that afcer the disclaimer the Ileeve had ordered a new election, at which he, the relator, was duly elected, but that the defendant persisted in retaining his seat, contending that it had not Ijccome vacant l)y his disclaimer. Sir J. B. IJol^insiin, under these circumstances, refused to give judgment, as if the matter were still pending on the sum- mons, there being no proof of any of the objections taken, but held that the disclaimer covdd not nullify the election, as the parties seemed to have sui)posed ; 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 gi-ound that it was illegally ordered. {The Queen ex rel. Freeman v. Juw.-i, 1 Prac. iv. 3(tG.) 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 tho first election, and give judgment. (/''.) (x) The Judge has a discretion to withhold costs altogether from either side, if he see fit. ( The Queen ex rd. Swan v. liowat, 13 U. C. Q. B. ."40), or to distribute the costs, that is, to order each party to pay his own costs. (P>r Hagarty, J., The Queen ex rel. (lonlanier V. Perrij et al, 3 U. C. L. J. 90.) Where it was sworn that intending voters for an unsuccessful candidate were ol)structed in the approach to the polling place by a crowd under the control of no THE MUNICIPAL MANUAL. [s. 151. Judge to return liis Judgniuiit to till! roui't in term ; it Bliall be fliml. Mode of enforcing obedience. 151. Tlie decision of tlio Jiulge s" all be final, and he shall, imniediatoly after his judgment, i. ':urn the writ and judgment with all things had before him touching the same into the Court from which the writ issued, there to remain of record as a judgment of the said Court j (a) and he shall, as occasion requires, enforce such judgment by a Avrit in the nature of a writ of pex'emjjtory Alcindamus, and by writ of one of the successful candidates, and neither the fact of the obstruc- tion nor the control was unc(iuivocally denied by that candidate, the election as to him was set aside with costs. {The Queen exrel. Gibha V. Branhjhan, 3 U. C. L. J. 127.) The tendency of modern decisions is not to make a party pay costs unless it l)e shown that he himself participated in tlie impro})er conduct for which the election is set aside. (The Queen ex rel. Dads et al v. Wilaon et al, lb. 10.5; Tlve Queen ex rel. Walker v. Mitchell et al, 4 Prac. 11. 218.) But relators are not to be discouraged from bringing cases of invalid elections under notice of a Judge at the peril of liaving to lose the costs necessarily incurred. (77/e Queen ex rel. Hollo v. Beard, 1 U. C. L. J., N. S.. 12G; The Quean ex rel. Charles v. Lewis et al, 2 Cham. R. 177; The Queen ex rel. Ilaivke v. Hall, lb, 187; The Queen ex rel. Dillon v. McNeil, 5 U. C. 0. P. 137.) In one case a learned Judge refused to make a relator paj' costs, thougli unsuccessful, where it was shown he had acted in good faith in bringing forward his com- plaint. (The Queen ex rel. Crozier v. Taylor, C U. C. L. J. 60.) So where a Returning Officer, made a party to the proceedings, was shown to have acted in good faith, tliough illegally, costs were not imposed upon him. (llie Queen ex rel. Couplandy. Webster, lb. 89.) Where the Returning Officer was acquitted of blame, and relator's statement was shown not to be strictly correct, the latter was ordered to i^ay costs to the former. (The Queen ex rel. Haiolce v. Hall, 2 Cham. 11. 182.) The Master, on taxing costs to the successful party, should consider whether or not the successful l)arty produced an unne- cessary number of affidavits, or affidavits unnecessarily diffuse, and act accordingly. ( llie Queen ex rel. Walker v. Hall, G U. C. L. J. 138. ) A By-law to pay the costs of a contested election is illegal, and will be quashed with costs. (In re Bell v. Manvers, 2 U. C. C. P. 507 ; A Municipality cannot legally support such a contest, or indemnify one of the parties to a contest of the kind. (lb.) iiut the cost of litigation undertaken bona fide, and on reasonable grounds, for the assertion or defence of corporate rights, may be paid out of corporate funds. ( The Queen v. Bridtjewater, 10 A. & E. 281 ; The Queen v. Lichfield, 4 Q. B. 893; TJie Queen v. Leeds, lb. 796; The Queen v, Wanvick, 15 L. J. Q. B. 306; Attorney-General v. Whjan, 1 Kay, 268; Lewis V. Rochester, 9 C. B, N. S. 401; The Qv£en v. Tamworth, 19 L. T. N. S. 434. (a) Under the old Act, leave was given to appeal from the decision of the Judge to the full Court. { The Queen ex rd. McKeon v. Hogg, 15 U. 0. Q. B. 140.) That privilege was in the Municipal Institu- tions Act of 1858, when introduced to the Assembly, but was struck out in Committee. The object, no doubt, is eiTectually to ensure the summary relief intended. The danger is that there may be a want of uniformity of decision. 152.] FORM OP FI. FA. FOR COSTS. Ill execution for the costs •.., warded, (h) 29-30 V. c. 51, s. 131, Biib. 18. 153. The Judges of the Superior Courts of Common Law, Tiic jmigo* or a majority of them, may, by rules made in term time, ^^\l^a, &c. settle the forms of the writs of summons, Certiorari, Man- damus and execiition, (c) and may reguhito tlie })ractico resi)ecting the suing out, S(!rvice and execution of such writs, and tlie punishment for disobeying the same, or any other WTit or order of the Court or Judge, and respecting the practice generally, in hearing and determining the validity of such elections and a])pointments, and respecting tlie costs thereon ; and may from time to time rescind, alter, or add to sucli rules : but all existing rules shall remain in force until rescinded or altered as aforesaid, [d) 29-30 V. c. 51, s. 131, sub. 19. {h) Tlie power of a Judge to award costs for or against a relator, defendaut or ll'jturiiiiig Olhcer, is in general exercised only on the final determination of the case, {'live Queen ex rel. Arnott v. Marcluirit etal, 2 Cham. K. 1G7.) {c) The following may be the form of ^. fa. for cosc3 : Victoria, &c. To the Sheriff of the County {or United Counties) of , Greeting! We command you, that you 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 1)., 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 out and expended in his defence upon a certain writ of summons in the nature of a (/iio warranto, issued out of our said Court against the said C. U., upon the relation of the said A. B., for usurping the oiiiee of , in our of , in your County {or Counties) {if the Returning Officer has been made a party, add hero., "to which proceeding E. F., the Returning Officer at the election of the said C. D. to the said office, was made a party "); whei'eof the said A. B. is convicted, as in our said Court appears of record ; and tiiat you have that money before our said Court, at Toronto, inunediately after the execution hereof, to satisfy the said C. D. for his costs aforesaid, and have you then there this writ. Witness, &c. N.B. — When the Returning Officer ?ms been made a party, and is entitled to costs, the fieri facias must be framed accordingly. {d) The powers conferred are : 1. To settle the forma of the writs of summons, certiorari, manda- mus and execution. « 2. To regulate 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 112 THE MUNICIPAL MANUAL. [s. 153, Certain peisuns to) be ileciiii-'il guilty of bribery. OiviriL; money to voters), &■;, Division VII. — Corhupt Practice.^ to Fervent. lirihrrij and Uwlue Injlaencc defined. Hec. 15J-154- Certdia Payvients Ldnfid. Hec. 155. Evidence to be Vim Voce. Sec. 156. Ejfect of Conviction. Sec. 157-150. How Penalties liecoiterable. Sec. 100. lleport and Record of Convictions. Sec. 101, 102. Witnesses, how Procured, and Self -crimination no excuse. Sec. 103, 10 Jf. Proceed iny 3, lohen to he talcen. Sec. 105. Publicity to Law ajainst Corrupt Practices. Sec. 100. 15*St Tho followin;,' persons shall bo dueiucil guilty of bribery, (e) iind .shall bo puulsheJ uccurilingly : — (1.) Every person who sJiuU directly or indirectly, by himself, or by any other person on his behalf, (/) give, lend, practice generally in hearing and determining the validity of auch elections and appointments, and respecting the costs thereon. 3. To rescind, alter or add to aiich rules. But it ia declared that all existing rules are to remain in force until rescinded or altered. The existing rules which have heen in force since tlio Municipal Act of 1849 will he found in the Appendix. (e) Ih'ihery was an offence at Common Law and independently of any statute, (llie Kinr to induce any voter to vote or refrain from voting at a Muni- cipal election, or upon a By-law for raising any money or creating a dcl)t upon a Municipality or part of a jNIunici- ( T/ir Tiuinton Chxp, 1 O'M. & H. 182.) It is, in point of fact, making the ri'latiiiii hotwuen a oamlidate and hi.s agent tlie relation of master juul sen ant, and not of principal and agent. ( The. Wcntmhuitcr Va.te, //). 9.^; 'J'/ic Wiijiin (Jasi', II). 191.) A variety of cases miglit bo put, in which a prini^'nal is liable even civilly for an act of an agent whieli he never intended, and at wliich he is exceedingly displeased. (Sec The \V<'stbi(ri/ (M-sc, Ih. 54.) A well established case of bribery by an agent avoids an election, even though the agent .acted against instructions. (South (''ni/ Election, 8 C L. J. N. S. 17.) It is now, as regards elections for the Local Legislature, expressly declared that " when it is found, upon tlie report of a Judge upon an election petition, that any corrupt practice has been committed 1>y any can- didate at an election, «?• % hl'< (Kjmt, whether with or without the actual knowledge and consent of sudi candidate, the election of such candidate, if lie has been electeil, shall bo void." (3() Vic. caj). 2, s. 3, Bub. 1, Ont.) Agency is a result of law to be drawn from the facts in the case, and from the acts of individuals. ( Tlie Slhjo Vane, 1 O'M. & H. 301.) There is always a great diiference in the degrees of agency. As you go lower down, you require more distinctly to sh; Cane, 76. 17, s.c. 19L.T. N.S. 670; The Brhhiemttir Case, 1 O'M. & H. 115.) A man's wife, if she interfere in the election, is ipno facto his agent. (Cavhel Case, lb. 288.) It maybe said that an act, however tritling, is evidence of agency, and that an aggregate of isolated acts will l>y their cumulative force constitute agency. (The Bunlleij (,'a.se, Ih. 18.) Canvassing alone, and with or without a canvassing book, is evidence of agency. ( The Stalei/hr'ubie Case, lb. 08 ; The Lkhjhbl Case, lb. 25 ; The Windsor Case, 19 L. T. N. S. 613 ; The Londonderrij Case, 21 L. "T. N. S. 709.) But canvassing, independently of the canllidate, and for an independent association, rebuts the inference of agency. (The Westminster Case, \ O'M. & H. 91.) "I cannot concur in the opinion that any su])poiter 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 I'.gcnt." (Pr iii!luHnclng volurs. THE MUNICIPAL MANUAL. [s. 153, pality for any purpose whatever, (cj) or vrh(< shall comiptly do any such act as aforesaid, on account of such voter haviug voted for or refrained froin voting at any such election, or upon any such by-law ; (h) (2.) Every person who shall, directly or indirectly, by himscdf or Ijy any other person in his behalf, (/) make any gift, loan, offer, promise or agreement as aforesaid, to or for any person, in order to induce such person to procure or endeavour to procure the return of any i)erson to serve in any Municipal Council, or to p\'Ocure the ]>assing of any such {(j) This section gives a new and enlarged definitii)n of bribery. An offer is included in the delinition. (See Ihtah v. Rallimj, Sayer, 28f>; Salslonv. Norton, 3 Burr, 1235; Jfardiinj v. Stuhti, "i'M. & \V, 233; Hcnslow V. Fawcctt, 3 A. &E. 51.) "It cannot be supposed tliat an offer to bril>e is not as bad r, promise, procuromont or agreement, procuro or v"t"rg"'"'^' engage, promise or endeavour to procuro the return of any person in any Municipal election, or to procuro the passing of any such Bydaw as aforesaid, or the vote of any voter at any Municipal election, or for any such Bydaw; (/) (4.) Every person who shall advance or pay, or cause to Advnnt-ing, be paid, any mone,y to or to the use of any other person, f^.'J: 'f,',"'^"}!^ with die intent that such money, or atvy part thereof, shall &c. be expended in bribery at any Municipal election, or at any \otiiig upon a Bydaw as aforesaid, or who shall knowingly payor cause to be paid any money to any pei'son in discharge or repayment of any money wholly or in part expended in bi'ibery at any such election, or at the voting upon any auch Bydaw ; (in) (k) This sub-section is aimed at that offence wliich is known in England as " purcliasing a l)or(mgh." Of late such transactions have been very rare. An instance of it was exjtosed in 1858. The Committee in the Harwich Election, reported that (.1. W. P. was not duly elected ; that (r. W. P. entered into an engagement with J. A., through his solicitor, in accordance with the terms of which engagement the said (1. W. P. was on his ])art to j)ay certain sums of money in the event of his return, and the said J. A. was to endeavour to procure the return of the said G. W. P. for the said borough. (Clerk on Elections, 99.) In the Barnstaple Cusp, 2 P. 11. & L). 33(5, an agreement was proved in the following form : — " I will pay £400, and £1,000 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 under- standing that he should procure L.'s return. But the election was held Vf)id. The fair payment of the expenses of a member, if he will stand, does not of itself constitute an illegality imder this provision, although it constitutes a case calling for a full inquiry. (T/w Coventrii Casp, 1 O'M. & H. 97.) If the in<|uiry, according to what the learned Judge said, had shouii 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 electors of Coventry, and of advanc- ing E.'s influence as a candidate at the election, it would have been bribery, and would have avoided the election. (Per Willes, lb. 100.) {I) The transaction intended by this and the preceding sub-section is one and the same. But while the preceding sub'section makes illegal the conduct of the giver, this makes illegal the conduct of the receiver. (See note k above.) {m) The object of this subsection is to prevent the expenditure of money for purpos<.3 of bribery. If advanced or paid before the 116 THE MUNICIPAL MANUAL. [a. 153. Voti^rrocciv- (5.) Evory votor wlio Hliiill, ))oforn or dnrinfj any Mnni- 4'f,'for"v''t'', '^'I^'i' ''l<-i'tion, or the! votin;,' of iiny sucli My-law, directly or oraKrooiiiK imlircctlv, by liiiiisolf or hy aiiv other ixu'sou in lii« bcliulf, lor iiioiuiy, _ J' J i i. / -xv I 1 in:, to vote, receive, agree or contract tor any money, ;;,ait, loan or valu- ^'■'- able consideration, otiice, place or enn»loyuient, for liinisolf or any other person, for voting or agreeing to vote, or refraining or agreeing to refrain from voting at any such election, or upon any hucU By-law ; (n) election, loith intent that it shall ho cxpoiidcd in ])rihcry, it ia ilk'j^al. If knuir'nuilii \);w\ f//^/' thii iv.i 111 • 1 i- if voliiin, i>r money or valuable consnl'-ration on account ot any person iiniminK', liavin^ vottMl, or refraineil from votin<,', or havini,' induced '^^■•' *•" *"'^'' any other person to vote or to refrain from voting at any such election, or upon any such By-law ; (o) (7.) Every person who sliall hire any horses, teams, oar- riag((S or other vehichis, for the pur[K)so of conveying electors to and from the polls, and every j)orson who shall receive pay for the use of any horses, teams, carriages, or other V(.'hicles, for the purpose of conveying electors to and from any polls as afori'said. (/>) 35 V. c. 3(), a. 1. IliriiiK *lie person bribing. PiDbiibly tliuro is no man who ever was bribed but would swear that tlie briljo had not iiilhunictd his vote. {T/ii' WiMinhiHtrrCasr, U)'.\r. & If. !l.> ; see also Tlir Ctus/i, / Cd-sf, Ih. 281).) A eonditional induceiueiit of ;uiy kind to induce a voter to vote or refrain from voting is briliery. (See Siiiij)-<(in v. Vcciul, Tj. I{. 4 Q.B. 62tj.) Payment of travelling expenses to induce the voter to vote is bribery. (Dahlia disc, 1 0. ' & H. 273.) It is not deei.led that payment afterwards, without . previous promise, is bribery. (I Nort/iiil/crtiHi. Ciisi', Ih. MM.) Colourable employment of a voter is bril)ery. {P^-'iiri/n Cimc, Ih. 128.) So lavish household ex2)endituro if intended to intluence votes. (Ifnstiiiijii V(i>«', Ih. 218.) Admis- sions by a voter that he has been bribed are evidence to invalidate his vote on a scrutiny. {]Viii(/.-r Cusf, Ih. 5; Kiii;/'.i Li/nii Cmpeiisati(m for such carriage, Init M. tliouglit it was in payment for work vliich ho liad clone for I', as a carter. The candiilate knew nothing of tlic u.atter. Hchl, tliat thei-e was not properly any payment by i'. to ]M. for any purpose, the money having been given for one purpose and received for another. (In 're Brocknllc Ekdion, 32 U. C. Q. B. ].32.) But even if there had l)een such a payment, it was made after P. 'a agency had ceased, and as there was uf) previous hiring or promise to pay to wl'ich it could relate, it was held not to come under the operate of the statute. (Ih.) If such payment luul been estaldished it would have avoiiled P.'s vote l)ut not ^I.'s. (//'.) See further, the remarks of Richards, C..J., as to tlie hiring of cabs, &e., in the West Toronto Cksc, not yet reported. A caiididate is under no obligation^ legal or moral, to pay for loss of time of voters or tlieir travelling expenses. (Per Baron ^Vatson in Cooper v. S!.i•) The candidate ia not restricted to purely personal expen-x^' , but may (if there is nt) intent thereby to influence votes) hire rooma for committees and meetings, and employ men to distriljute card.i and placards, and pei*^onn siu'.ilar services. (Ea.st Toronto Case. 8 IJ. C L. J. N. S. 113.) A candidate in good faith intended thathii? election should be conducted in accordance both witli the letter and spirit of the law, and himself paid no money except for printing. Money, however, was given i)y friends of the candidate to dilt'erent persona for election purposes, who kept no accounts or vouchers of wliat they paiil. Tlie election, notwithstanding, was supported. (//'.) lu England candidates are required to pay money for election purposes througli an authorized agent, and to remler detailed accounts of the expenditure. (20 & 27 Vie. cap. 2!>, ss. 2, 3, 4.) Similar provisions now exist here as to Parliamentary elections. (See 3() Vic. cap. 2, 8S. 8, 9, 10, 11, 12, Ont. ) It is alwajs more satisfactory, on an election inquiry to have the expemliture shown by proper vouchers. (See remarks of ( 'hief Justice Ricliards on T/ie East Toronto Case, 8 U. C. L. J. N. S. 110, and T/i> We..t Toronto Case, not yet reporte.l). Where all the accounts and records of an election are intentionally ■destroyed by the respondent's agent, even if the case be stripped of 120 TUE MUNICIPAL MANUAL. [ss. 156, 157, Kvidenoe on application in uaturc of f/uo war- Penalty on <;antliilatt.>s guilty of bribery, &c. 150. Where, in an application in the nature of a qtio loarraato, any question is raised as to whether the candidate or any other voter has been j[?uilty of any viohition of sec- tions one hundred and fifty-three or one hundred and lifty- four of tliis Act, atlidavit evidence shall not be used to prove the ofi'ence, but it shall be proved by viva voce evidence taken before the Judge of any County Court, iipon a reference to him by the Judge of the Superior Court for that purpose, or upon an appointment granted by aim in cases pending in such County Court, [s) 35 V. c. 3G, s. 5. 157. Any candidate elected at any Municipal election, who shall bo found guilty by the Judge, {t) upon any trial u2)on a writ of quo vjarrauto, of any act of briljery, or a\ ith using undue influence as aforesaid, shall forfeit his seat, and shall be rendered ineligil)le as a candidate at any Mu< ipal election for two years thereafter, (u) 35 V. C. 00, ;j. ^ all other circumstances, the strongest conclusions will be drawn agtiinst the rcsi)ondei)t, and every presumption will be made against the legality of the acts concealed by such conduct. (South ilrey Election Case, lb. 17. ) Where a candidat'j puts money into the hands of an agent, .and exercises no supervision over the way in which the agent is spending the money, but accredits and trusts him and leaves him the power of spending tlic mimey, there is such an agency estahlislied as to render tlie candidate liable to tlie fullest extent, not only for vrliat the agent may do but also for what all tlie peojtle that agent emploj'^s may do, although express instructions he given that none of the money should be improperly spent. {Ih.) (.s) The Judge whose duty it is to t^-y an ordinary application in the nature of a <[iio warranto, may iniiuire into the facts either hj atlidavit or by oral testimony. (Sec sec. 141.) The exception created Ly this section is where "any question is ralsnl as to whether the candidate or any other voter has been guilty of any violation of sections 153 or 104 of this Act;" in other v.'or(ls, been guilty' of bribery or undue inliuencc within the meaning of those sections. In such a case r'lra roee evidence cilone can l)e u.-'ed. The reason no (loul)t is that to charge the candidate or a voter :uider either of the sections mentioned, is to charge him Avith an of'encc which may be either a crime or in the nature of a crime, (see ;?ec. l")?), and that it would be contrary to all precedent to iierndt a pers(>n to Ite tried for a crime on what is called in this section "affidavit c- ideuce.'" (0 See note s to sec. 156. ()() The consequences of being found guilty are twofold : 1. A forfeiture of the scat. 2. Personal incapacity, for two years thereafter, to be a candidate at a Municipal election. 1 8S. 158-1 GO.] RECOVERY OP PENAl "IE3. 121 ly person found giiilty, upon any Votn of per- validity of the election or ]5y-law ^.'/fty^'X^ 158, The vote of ever trial or incjuiry as to the of M violation of either of the one hundred and tifty-third i>ni»Ty,&c., or one hundred and fifty-fouith sections of this Act, shall be void, (y) 35 V. c 30, s. 7. 151). Any person who shall 1)0 adjudged guilty of any of Adfiitional the offences within tlie meaning of sections one hundred and ^"^'"* ^"''''' fifty-three or one hundred and tlfty-four of this Act, shall incui- ' jM'ualty of twenty dollars, and shall be dis(|ualiliod from voting at any municipal election or upon a By-law for tiu' next succeeding two years, (w) 35 V. c. 3G, s. 8. 100. The penalties imposed by section one luindi-ed and Reoovoryof fifty-nine of this Act shall be recoverable, with full costs of ^"■'"'^ *'^'*' suit, by any [kisou who will sue for the same by action of debt in the Division Court having jurisdiction where the offence was committed; (a;) and any ^>erson against whom It is lit ^;l;d that these consequences shall follow if there be bril)cry •'• .- Uie influence l)y an agent, without the knowledge or against the instruetions of tlie candidate. It nuiy he that in such a case the seat will )je lost to tlie candidate. (See noia / to see^ liili.) But it is clear tliat a man cannot be guilty by his agent of an illegal act, and be held personally responsible and be personally juuiished for tliat act, uidess lie has given the agent authority, express or implied, to do the illegal act. The law of agency has certainly, in such cases, been much extended by Committees of the House of Com- mons. But it is a clear proposition (>f law, that if a candid ite employ an agent for a perfectly legal purpose, and that agent ilo an illegal act, that act does not affect the principal per.sonally (although it may afl'oet his seat), mdess a great deal more be shown. It must 1)0 shown tluvt the principal directed the agent to do the act, or really meant he should so act. Xo man who is an agent for a legal )ui'poso can mnke his principal criminally resi»onsib]e for an illegal act, unles3 the principal ni some way authorized it. (See ;wr Lord Wensl'jydale, in Cuojicr v. Sladc, H. L. C. 703.) Besides other penalties there may be a pecuniary penalty. (.See sec. 159.) (r) The consequence of bril)ery or undue influence may be so serious as to avoid the election — that is, when the actor is the can- didate or a person for whoso acts he is res))vinsible. (Sec note f to £uc. 153.) l)r failing Ins own acting, or sueh authority to the person who .act.i, the vote of the actor shall lie under this section void. (See note ii to sec. 153.) (w) These penalties, it is presuraed, will not follow unless the illegal act be shown to l)e that of the i)arty sought to ))e personally ati'eeted, or the act of some person who was authorized by him to do it. (See noto » to fcce. 157.) The next section makes provision for the recovery of the penalties. (x) As the pecuniary penalty is only .?20, it is believed that the Division i oort would have had jurisdiction without this provision 122 THE MUNICIPAL MANUAL. [s3. lGl-163. Judge to make re- turn. Clerk to keep book Hhowin^; names of persons I «uilty of offcru'es, &c. Attendanco of witnesses. judgmont shall be rendered, shall bo ineligible, either as a candidate or Municipal votei", until the amount which he has been condemned to pay shall be fully paid and satisfied, (y) 35 V. c. 30, s. 9. 1(51. It shall bo the duty of the Judge who finds any candidate guilty of a contravention of sections one hundred and fifty -three or one hundred and fifty-four of tliia Act, or who condemns any person to pay any sum in the Division Coui-t, for any offence within the meaning of this Act, to repoi't the same forthwith to the Clerk of the Municii)ality wherein the offence has been committed, (a) 35 V. c. 3G, s. 10. 1(»^. The Clerk of every Municipality shall duly enter in a book, to be kept for that purpose, the names of all per- sons within his Municipality who shall have lieen adjudged guilty of any offence within the meaning of sections one hundred and fifty-three or one hundred and fifty-four of this Act, and of which he shall have been notified by the Judge who tried the case, (b) 35 V. c. "^G, s. 11. tiili. Any witness shall be bor.nd to ati<^nd befove the Judge of the County Court upoii being served v^ith the order of such County Court Judge directing his attend- ance (f) and upon payment of the necessary fees for such (see MedcaJfe v. WUhUfuhl, 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. 5-'G), was a proper i)recaution. (//) The payment of the amount will not remove the disability where the payment is within two years of the conviction. (See sec. l;")!). ) But the disalnlity shall continue after the two years and until the judgment is satistied. (a) The object of this provision is to prevent the person disquali- fied being placed upon the voters' list. The (Jlerk, upon receipt of the report rendered neccKsary liy this section, should enter the nii'ne in a book to be kept for that purpose, and erase the name from the list of voters of the Municipality. The former duty is imposed by the next section of this Act ; the latter, it is apprehended, is an implied duty. So far iis the Hetuniing Oliieer at an election is concerned, the list is final. (See sees. i)9 & 100.) (h) It is presumed, for reasons given in the previous note, that the Clerk should also erase the name from the list of voters of the Municipality. ('•) Tlie order should lie intituled as of the proper Court and cause, and may lie 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 retjuired to attend before mc at on the day of A, D., 187 , at the hour of 163.] ATTENDANCE OP WITNESSES. 123 attendance, {d) in tlie same manner as if he had been directed by a writ of suhpa^ua so to att(»nd, and he may bo punished for contempt, and shall be liable to all the jjenal- ties for such non-attendance in the same manner as if he had been served with such suhpceiui. (e) 35 V. c. 30, s. IG. o'clock in the noon, to be examined as a ■witness in the matter of the said Petition (or af(/rc8aid), and to attend tlie said Court until your e.vamination shall have been completed. As witness my hand, (Signed) Judge of the County Court. This is in the form of order in general use under the English Act of 18(58, for the trial of controverted elections. (Stat. Ont. 34 Vic. cap. '^, ss. M & .35.) I'nder the English Act, ccmnsel ajip^icd for an order for the attendance of one J. M. He stated tliat the tjroces.s server had used every eflbrt to serve him with a subpiena )ut without effect, thougli tiiere wa.s reason to Ijclieve he was in tlie house. The applicatinu wis granted. ( Wab rford Caxr, 2 O'M & H. 8. ) Serjeant Ballantine, in one case in proof hy a witness that T. W. was keepini; out of the way to avoid being served with a subpiena, applied to the Court for aii order for the attendance of hia wife, who had not l)een sul)pa'iiaed. But the Judge C^Iaitin, 13.) said he had no power to grant such an onlcr, unless the wife had been subp(vnaed. {Xorwi'-h Cd.-if, 1 O'M. & H. 8.) l.']>on another witness (^Irs. H., who hail )xeu suhpienaed as a witness) being called and not answering, the same learned Judge is reported to have said, "I will make an order for her to come. If witnesses will not come, I wiL immediately make an order for tliem to come." (Il>.) In one cas.', where counsel for tlie res))ondent stated that he would require the attendance of a witness who had been previously called by the petitioners, l',the learned Judge (Fitzgerald, B. ) said, "You had better write a letter to M., and he nuist be brouglit back at tlie respondent's expense." On the following day M. was called, but ilid not appear, and an order was granted for liis attendance. ( Loix/ford Case, 2 O'M. & H. 12.) In a case tried Ijefore Mowat, V. (''!, at Prescott, where it was shown tliat one of tlie hands on a steamboat, then at the wharf in the town, was a material witness, an ordi'r was made for his attendance; and upon the eajitain of the boat refusing to allow him to be served or to give any iiiformatiun about liim, an order was made for tho>attendaiiee of the captain. (South Urt.wiUe Case, August, 1872, not reported. ) ((/) When the witness, at the clo.se of his examination, asked for his expenses, the .ludge (Willes, .T. ) allow iil him liis expenses as lie had been called by himself, but intimated tliat if any other witness desired to be paid his expenses, he should make the demand before ho was sworn. (r) Qucere, shouhl the process for contempt be issued by the Judge presiding at the trial, or from the ollice of the Court in which the petition has been riled? Unless the toriiier, there would be great delay in enforcing the attendance of a, witness ordered to attend. M^^I^PSt- 124 THE MUNICIPAL MANUAL. [S. 164. Witnesses not excused from aiiHworinji on grotiiKls ot'Kelfei'iiui- nation or Iirivili'ye. Provi.so. 104, No person sliall bo excused from answering any question put to liini in any action, suit or other i>iocee(ling in any Court or before any Judge, touching or concerning any election, or Bydaw, or the conduct of any person thereat, or in relation thereto, on the ground of any privilege, or on the ground that the answer to such question will tend to criniiuato such person ;(_/) but no answer given by any person claiming to be excur^ed on the ground of privilege, or on the gnjuud that such answer will su))ject him to any penalty under this Act, shall be used in any proceeding under this Act against such person, ((j) if the Judge shall give to the witness a certificate? that he claimed the right to be excused on either of the grounds aforesaid, and made full and true answer, to the satisfaction of the Judge, (h) 35 V. c. 3G, s. 17. (/) At ooramon law, a witness is entitled to refuse to answer any qnestidn that may tend to eruninate him, not only Ijoeause the answer itself niiglit be evidence against him on a criminal charge, but l)ecause it might furnisii a link in the chain of testimony which might im])licate him in such cliarge. (See Keith v. Li/nc/i H a/, 19 (irant, 4'.)7.) Those wiio decided the common law originally thought it was unwise and unjust to make a man, however guilty, criminato himself. The oliject of this section is to make an innovation, to a certain extent, on these principles of the common law. Election Committees, Judges and Election Connnissioners must make their in(juiri( s among persons who are generally expected to ])e hostile witnesses and unwilling to tell tlie trutli, and who, if the common law were left untouched, would be always entitled to say, "I will answer no such question," and so the iiupury would l)e ])amed. Therefore the Legislature, in the section here annotated, has enacted that the temlency of the answer to expose the witness to a criminal charge should not, contrary to the general rule, bo any excuse for not answering the .piestion. (Sec ><- /• Hlacklmrn, J., in The Queen v. lilt I me, L. K. 5 C^. B. 3S.3, 384.)' (;/) The Legislature, having taJcen awa\ from the witness that common law inuaunity again-st ei'imin;iting himself, here gives him an immunity on vitrtain couditions. (lb.) ill) If the witness has reaUy complied with the conditions he ia entitlel to a c>ertifieate, and the .Fudge has no right to l■efu^e it. ( The V'f''" V. Prke < t. nl, 2'2 L. T. X. S. 12. ) The conditions are not only that he claimed the certilicate, but " made IxxWuuil true answer to the r^itiafacthm <>/ the Julife.' The ol)ligati(m intendeit to ho throwi. »ipon the pers(m wuo is ^-jJled as witness is, that he shall make full and "xue answer tf» the question put to him. 1' the evidence given ">e false there is no protection, ami the witiuws is undoubtedly liable to be pr >seeutod for perjury. (See The Qmen v. Brittle, L. \\. 1 O. C. 248. 1 A eertihcate in the following form,— "We do hereby certify that 1. 11. Hulme was sworn and exaitoned upon oath before us as suoli commissionoi-s, and, upon .suoh oxaiiuna- tion, was re<|H»red by us to answer questions the aiujwei-s to which 8S, 165, 16G.] PUULICATION OF CORRUPT PRACTICKS CLAUSES. 125 14>5. AH procooflings otlior tlian un apjilication in tlio niituro of a ([uo umrrantu against any jiorsou for any viola- tion of sections one hundred and fifty-tliroe or ono hundred and tifty-four of tliis Act, sliall bo conuiiencrd within four weeks after the Municipal election at Avhich tlio oU'enee is said to have been committed, or witliin four weeks after the day of voting upon any IJy-law as aforesaid, (i) 35 V. c. 3G, s. IH. li»0. The Clerk of every Municipality shall, prior to any election, or voting on any By-law, furnish each licturning OlHcer with at least two copies of the sections of this Act, numlxM'ed from (jiu; liundred and lifty-thice to one hundred and sixty-live inclusive, and shall also j)Ost at least ix copies thereof in consi)icuous places in each polling division in tho Municipality, {k) Vide 35 V. c. 30, s. 19. tended to criminate him, and answered all sucli qnestions ; 1)iit divers of tlic said answers to the said questions were unsatisfactory to us, and we believe were false, and false to the knowledge of him, tho Baid.J. H. H'.ilme," — is no cortilieate such as is required by the Act, and is no protection. (The Qucin v. Jfiilmr, L. 11. 5 Q. 1>. .SSO. ) A witness who has received a pardon under the (!reat Seal is not privi- leged from answering questions the replies to which may criminate him, on the ground that actions for penalties, under the Corrupt Practices Prevention Act, are pending against him. ( The Queen v. Kinjlakt et al, 22 L. T. N. S. iJlG.) (i) The time limited for a iiroceeding in the nature of a quo war- ranto \Si "six weeks after the election," or "one month after the acceptance of office." (See seo. 132.) This secti(m is intended to apxily to proceedings "other than an application in the nature of a quo loarninto" against any person for any violation of the sections mentioned. It is plain, therefore, tliat the mere fact of raising charges under the sections mentioned, in a ipin warrnnto proceeding, is no ground for shortening the ordinary time allowed for such a proceeding. But where the proceeding intended is either an action for a penalty, or an information or indictment for the criminal ofl'encOi such proceeding nuist, in the case of an election, be taken "within four weeks after the Municipal election," or, in the case of voting on a By-law, "within four weeks after the day of voting." As to com- putation of time, see note a to sec. 128. (k) The duty imposed on the Clerk is two-fold : 1. To furnish each licturning Otht er with at least two copies of the sections mentioned. 2. To post at leiiMt six copies thereof in conspicuous places in each polling division in the Municipality. 'Ihc oliject is to' bring home to the rlcctors a knowledge of the Lighly penal character of thi sections as to bribery and undue iiiHu- ence, in the hope that such knowledg' will deter them from commit- ting any such offence. The scctiim, it is presumed, is directory. (See note 7i to sec, 20 of the Assessment Act , see also note h to sec. 189 of this Act.) Liinitntion of actions. Copies of Aft to be lii;iilt(l iUld IMJStcil 11{) luiur to election. 126 THE MUNICIPAL MANUAL. [ss. 1G7, 1G8. PART IV. OF MEETINGS UF MUNICIPAL COUNCILS. Division I. — Whkv A\n where held. Divisio>f II. — Conduct oI'" Bl'siness. First iiioetinns of (lUUUcLlii. Divrsiox I. — When and wheue held. First and Suhster/uent Meetings. Sec. 167-171. I'dijment of Members for Attendance. Sec. 17'2, 173. )?lace of first nieetiug. lOT. Tho moml)ors of every Municipal Council (except County Councils) sliall hold their lii"st meeting at eleven o'clock in the forenoon, (I) on the tliird Monday of the same January in which they are elected, or on some day tliore- aftor ; {in) and the members of every County Council shall hold their first meeting at two o'clock in the afternoon, or some h(uir thereafter, {ii) on the fourth Tuesday of the same month, or on some day thereafter. (t>) Vide 29-30 V. c. 51, s. 133. 108, The members of every County Council sliall bold their first meeting at the County Hall, if there is one, or (I) Ap bjcction, that an election took place at six o'clock instead of at noon on the ilay appointed for the election, was held to be "too trivial to require serious notice." {The Queen ex rel. Ileenan v. Murray, 1 U. C. L. J. N. S. 104.) (;«.) The members of the Council are bound to know the day specially named for the first meeting. But if the meeting be held on a subsequent day, it would appear to be only reasonable, in order to jn-event surprise, that notice should be given of the subsequent day. (Tlip Kinij V. Lirerpool, 2 Burr. 731; The King v. Doncaaler, lb. 743 ;• The King v. Theodorick, 8 East. 543 ; The King v. May et al, 6 Burr. '2G82 ; The King v. Grimen, lb. 2601 ; Muagrave v. Nevinson, 1 Str. 584; KipioMon v. Shrewsbury, 2 Str. 1051 ; The King v. Hill, 4 B. & 0. 441 ;■ Snvith v. Darleii, 2 H. L. C. 789 ; see further, The King V. Faversham, 8 T. R. 352 ; The King v. Langhorn, 4 A. & E. 538.) Where two members of a Village Council, being a minority of the whole number when full, met, but, in the absence of the three remaining m mibers, were unable to proceed to business ; and on a subsequent day the three remaining membei's, without notice to the two members, met and elected one of themselves to be Reeve, the election, in the absence of proof of want of bona fides, was maintained, {The i^ueen ex rel. Hyde v. Burnhart, 7 U. C. L. J. 126.) (n.) See note I above, (o) See note m above. 20-30 V. c. 51, 83. 1G9, 170.] MEETINGS OF COUNCILS. 127 otherwise at the County Court-liouse. (p) 8. 134. 10?). The .sul)3oquont meetings of the County Council, ^IZqwut anrl all the meetings of every other CWncil, shall he held at nuctiiiffs such place, either within or without the Municipality, as eiuJIcj'i'l^ft... the Council from timo to time, by resolution on adjourning, to he entered on the minutes, or by By-law, ai)p(nutH. ('/) 29-30 V. c. 51, 8. 138. 110. The Council of any County or Township in wliich VHa- vr ftuy City, Township, or Incorporated Village lies, may hold |"nu'i.'iik'«V its sittings, keep its public oiliccs, and transact all the ^'^■ business of the Council and of its officers and servants, within such City, Town, or Incori)orated Village, (r) and may purchase and Jiold such real j)roperty therein as may be convenient for such purposes, (a) 29-30 V. c. 51, s. 139. {p) The object of stating place as well aa time of the first meeting la to prevent surprise. (Sec note m to see. 1G7. ) Subsequent meet- ings, as to time and place, may be regulated by adjournments. (Sec sec. 109.) (ij) 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 froni the County, when the proper Cotuity buildings are situate therein and are owned by the County. (See sees. 1C8 & 170.) But the language, "every otlif:r Council," is liroad en"Ugh to admit of any Municipal Council holding sittings elsewhere than within the Municipality, The section has not yet been judicially interpreted. The meetings are to be held " at such place," &c., as the Council, from time to time, by resoluUon on adjourning, to be entered on the minutes, or hy liij-lmo, appoints. 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 ])lace may l)e determined for the next meeting by resolution on adjourning, at which time there would be no opportunity of passing a By-law. In the absence of any liy-law, &c. , the next meeting would be understood as appointed to be held at the place of the last meeting. (Sec. 171.) Strictly speaking, there ought to be either a By-law fixing a permanent place, or ; resolution from time to time entered at each adjournment. (See In re Paffard and Lincoln, 24 U. 0. Q. B. IG.) (r) See note q to sec. 1G9. (a) The Statutes of Mortmain are held to be in force in Ontario. {Doe A nderaon v. Todd et al, 2 U. C. Q. B. 82 ; see also Doe dem. Vancott V. Jiead, 3 U. C. Q. B. 244 ; Jfallock et al v , WiUo7i, 7 U. C. C. P. 28; Mercer v. Hewston et al, 9 U. C. C. P. 349. But see Wtikker ▼. Htune et al, 7 H. L. C. 124.) And this being so, il -i power can only properly be exercised in the limited manner in which it is con- ferred, i. e., to purchase and ho'd such real property as may be convenient for the purposes mentioned. (See Ketjhum et al v. Buffalo et al, 14 N. Y. 356; State v. Mansfield, 3 Zab. (N. J.) 510: mcoll v. 128 TUB MUNICIPAL MANUAL. [s3. 171, 172. iiiuoliiiK!! limy 111! oitliiT (ijien 'ir il(iH(!(l. Remunorn- tiim to ciiiin- cillorH ftiiil (•ominittei;- men limitud. f^i, Tri caKf tliero may 1»o no "By-law of a Council fixinfj tlui [ilaco of iiK:(^tiiiL(, any s]n'(;ial nicctint^ of tlio (Joiiiicil sliall bo licld at Llie placo wlmro tho thou last meeting of the (Joiincil was heM, (t) atitl a special nu!oting may bo open or c1o.s(m1, as ill iho opinion of the (louncil oxprcissod by resolu- tion in wi'iting, the public intore«t requires, {u) liy-3U V. c. ni, H. 141. ll*i, Tho Council of every Township and County may ]»ass l>y-laws (ov ])ayin<,' the members of tho (Jouncil for their attendance in Ct)uneil, or any mendjor wliile attending on Committee of the Council, at ii rate not exceeding two dollars per diem, and five cents per mile necessarily travelled (to and fi'om) for such attejidance. (v) Vide '2l)-30 V. c. 51, 8. 271. 31 V. c. 30, .s. 20. mw York ,i- Eric 11 Ji. Co. , ] 2 N. Y. (2 Kern. ) 12 1 ; MrCnrtrc v. Orplmn Axijlam Suciilij, !» Cdw. 4.S7 ; Jicynuhis v. C'v}nmimoucr.H, d.r., 5 Ohio, 204; Paiijc V. Jlvinhunj, 40 Vt. 81; Davison CoUcije v. Clnimlxrs, 3. Tone?, Eij. (N. (J.)'iri\\; Louisville y. CommomccdUh, 1 Duv.all, (Ky.) 21tr); State ex rcl. Dean v. Madison, 7 Wis. 088.) Hut tho right to liold is not one that can ordinarily arise as between vendor and vendee. (See Jkdur v. Woods, 10 U. C. C. T. 20 ; Bi'lkville v. Judil, 11). H07 ; Orford v. Bailvij, 12 (Irant, 270; see also O'ouudic v. iVo/VA- ampton Water Coin/iaiij/, 7 Pa. >St. 233 ; Chamhcrs v. St. Louis, 29 Mob. 543; Lcazure v. Jiilli'iias, 7 Serg. & Rawl. 313. But see also Bank of Mirliiifan \. j\l/c.s i Doug. (Mich.) 401; The Banks v. PontiaiLc, 3 Uaud. (\'a.) 130; Martin v. Bank, 15 Ala. 587; Bnird v. Bank of W, 177. Who tn pirshl,'.. Sec. 17S-tSI. /'rfsl'/liH/ Ojficr.i' iihi// vote. Sec, lS,i. Puiciir to adjoar/i. Sec. ISo, 334, Evory Council .shall hold its ordinary mootiuj^a onliM.iry oponly, and no [lorson shall bo eNcludod oxcept tor iiiii)ropor 'i)'J'Jj' I",';;""'" Jmrthcii of proof 011 tho agent, to separate from tho aj)propriation ho has rcceivud tlmt ]i(irtiiiii wliit'h lie woiilrl lie 1i',l,','i11}' eiititletl to take (/"■/• litiriis, .)., in yvrv/ Sl-iKoitri v. Horsi'mdn, Ki IJ. (,'. (). M. .")bS) ; jiiiil it would l>o well for those who take part in the ilh'gal a])])ropri- atioii of puhlie moneys, to re)h,'et tiiat there w not only a eivil l)ut a criminal remedy (pir l!i)l)iiison, ( '. .1., in D(tuiSI.) The 'I'n'aMurer Hliunld not pay money on any or every draft and order wliieii the IJeive for tin,' tiniij lieinL,'may direet liiui to pay. 'i'lie 'rownship moneyw will proliaiily lie eonsidered a,s still in hi^ liands, nnless jiaid out (n\ ii proper legal authority, for pnrposea contemplated and authorize?.iiili: in c'lUiK.';!, IT^J. A majority of the whole number of m(>mberfs reijuii-ed b> 'r. '• to constitute the ('ouncil shall be necessary to form a (^ .•»-um. (c) 2i)-30 V. c. 51, .s. 142. 17T. Wlicn Council consists of only five mcnibers, the ooncuirent vo <^ at least three shall be n(>ces.sary to carry any rosolutio' > .• Ovlier measure. ((/) 2'J-30 V. c. 51, s. 143. I7H. The iicit'l of every Council shall ])resi(le at the meetint^s of Council, (e) and may at any time sununon a special meeting thereof, and it shall In? his duty to summon {(i) It is one of the essential qucalitica of a Court of Justice, that its jjrooec'ingf! be ])ublic, ami all parties who may ])e desirouB of lieariiig wliat is going on, if there be room in the plaee for that j)uriioHe, jiroviiled they do not iiiterrujit the proeeedings, and ja-o- vided tliere lie no otlur kind of imiiroper eonduet, have a right to be present and hear wliat is gi>iug on. (/*(■/• baylej', J., in JJiihucy v. Cuoptr, 10 H. & C. 240.) This rule is to its fullest extent to be apiilied to ordinary meetings of every Municipal Council. F>ut a special meeting may be open or closed, .-us, in the opinion of the Council, expressed by resolution in writing, the public interest requires. (Sec. 171.) (6) It ia apprehended that before appointing a presiding officer, when neceasary to do so, tlie members ought to take the neccs- Bary declarations. Such an election would, it is believe; HaynoUle SS. 179, If^O.] ABSENCE OF HEAD OF THE COUNCIL. l:U u spociiil me('tiiiuty lleevo, and in case of tho (IcatJi or ali.soncii of tlm head of a Vilhi,i,'e or Tovnshiji Council, tlu! l)ej>uty Kceve sliall preside ut tlie nicetinijs of tlie (Juuncil, and may at any time .summon a .special nieetint:; thereof; (h) but if there he more than one Deputy Keeve, the Council sli.ill determine which of them shall preside at their meeting. (/) L'U-SU V^ c. 51, .s. ll»;. IHO. Ii» tlie absence of the liead of the Council, and in the case of a Town, Village or Township, in the absence also of the Ivecve, if there be one, and also of the Dejtuty Reeve or l)e|iuty liceves, if there* be one or more, by leave of the Council, or fnnu illness, the Council may, from among V. liaJihnn, 1 IjA. An. lO'J; f''>mmi)>nri'nlfh v. Arri''(»i, ]'t Serg. i^- llawlo, l.Slt. ) liiit till' ipustion c;iiuu)t in gcnenvl be diteriiiincd ii.s a ciilliit(;ral iiKjuiry in ni\ existing suit. ( TnjtjMu \.(lrtiii,~ Hi'' ( N. U.) 2">!( ; MurhU- \. Wrhjlit, I.'i linl. r>4h' v. Car/.,,.. •; 'J4 N.'V. 80; Attunicif-d'tiK I'll! V. Utli'ii /iiaitnitm' Cu., 2 Johns, t ii. 371 ; I\'ojilr ejr ni. Wundw Oni/Hrtt (i>, If) N. Y. fi.TJ ; Pioplcw Utint /iisvrnnce Cu., l,").bihns. :r).S; ('<,iiiii>oiiir,'fil(/i v. /^/H)l-, '28 Ta. .SS!>, /A. ;}7'.l; llinjhcn V. Porker, 'iO N. H. .")8 ; Kj: /nirtr Stru/il, H) Iowa, 3(5l» ; Fany v. Fiillir, 13 Mich. 527; Updnjraf \. C'rans, 47 Pa. St. H)3; A'(;>t v. Trufo, lb. '2'.»2.) (/') It is in his discretion at any time to aunimon a special meeting; hut wl»en reijuesteil in writing to do so hj- a majority of the meml)er8 of the t'ouneil, it is ol)ligatory upon him to ilo as retiuested. All the nienil)er,s entitled to he present at a special meeting should he n.ititied to attend, and, if praetieahle, notitied also of the purpose for which the meeting is called. {Suu/tli v. Darley, 2 H. 1... t'. 7H1>; see also Ex park I'o;/n-s, 7 ("ow. r>26; Pco/il'r V. Botrhflor, 22 N. V. 128; Duvniiuj v. Rminr, 21 Wend. 178; Jiiinji'.i.i V. J'lic, 2 (iill (Md.) 2.)4; Sl„w v. ' WUe, 7 Conn. 214.) The omission to notify a member entitled to he present may he lield to invalitlato all i)roceedings at such meeting {//>.), and where the pur]>ose is si)eeitied in the notice, there is in general no jiower to transact business beside such purpose. {'Phi' Kimj v. Liverpool, 2 Burr. 735; The Kimj v. Carliile, 1 Str. 385; Macktll v. Nicimon, 2 Ld. Rayd. 1355; lier>jen v. Clarkwn, 1 Halst. N. J. 352; see fur- ther, note 7/1 to sec. 107.) (h) See notes e and/ to the preceding sectiop, (») See note 6 to sec. 175. Whrii ri'evf (T ilc|)iily rtcvc to AIpmhiit iif lieuil, &<-., I'fovidP'l foi. 132 THE MUNICIPAL MANUAL, [s. 181-183. t) This part of the section is silent as to tho duration of tho autlu)rity. Hut it i.s apprehended that the authority wrndd cease on tiie presence of the officer "who ought to preside." (See note k to see. 180.) (h) The general import of the wonls used deserves attention. Api»areutly no <|uestion can come l)efore tlie C!ouncil or meeting, on winch the presiding otiicer or Chairman is disentitled to vote. There is no exception of any kind in the enactment. The right to vote is given "on aU questions." Its exercise on any particular 2uestion, perhaps atlecting the conduct of tho presiding officer or 'hairman himself, is a matter left entirely in his own discretion. (o) An exception to this rule, recognized in the Act, is that which allows a casting vote in the election of the head of a Council. (See sec. 122.) Another is where united Counties make provision for improvements in one of tho Counties separately. (Sec. 398.) (;>) Adjourneivisi(is in. — TiiK THEAsrurn. DlVISlOV IV. — ASSKSS(»I!.S ASM) f'l)M,T:f'TOU.S. 1>IVISI(IN V. — AlUITORS AND AUDIT. J )l VIRION VI. — Va 1,1 All IKS. JjiviMuN VII. — i>bTu;.s OF, UEsrECTiN'd Oaths and Declaka- TtoNS. l>ivisioN VIII. — Sai.ahiks and Tenihk ov Ofkr'e. Division I.— The Heads. 1H4. Tlio Hoad of every County and Provisional Coi'jw- wimto ration shall l)o the Warden thereof, and of every City and t!uu',„'ii 930 ; Sriul'linn v. Loraiit, 3 H. L. C. 418 ; Smith v. Loin, 21 X. Y. 29G ; Wiirmrv. Mitinr d (tl, 11 Vt. .'{S.!; J'm/ilr r.r ril. Lotiv v. Jiatr/nlor, 22 N. V. 12S; P,opl,- V. Marfir 1 StI.I. (N. V.) 22; I/udson Co. v. St(tl(, 4 Z:il>r. 7IS; /n re liohhi .vrrri, 1 La. An. 412.) Ill tlio iiiiilst of a l';uli:imoiitary ilehatc iii">n a ijiu'stidii, any mcinlier may nuivc "that this iiouse do /c^'r ailjoiirn," not hy way of ana'udniont to tb" original (jnestion, tmt as a distinct Tiie motion for adjournincnt, in order to Bui)ersetle a iiuestion, must he simply tliat the House do ««*" adjourn. It is not allowable to move that the House do adjourn to any future time .s|)eeitied, nor to move an a!nendment to th;it effect to \\w. (pics- tion of adjournment. (/A.) Tlie ILni.se may also b(! suddenly ad journeil by notice being taken tliat tiie necessary number of meml)'.'rs to con- stitute a majority are not present; iind au adjournment caused in that manner has the etlectof :...i)erseding a (piestiim in tnc same way as a f(U'mal (|uestion to adjourn when put and carried. In either case the original (piestion is so entirely superseded, that if it has not yet been proposeil to the House l>y the Sfieaker, it is not even entered 111 tlie Votes, as tlie House wis not fully in possession of the (lues- tion before adjournment. It' amotion to adjourn be negatived, it may not 1)0 i)r()posed again witliout s.une intermediate [iroceeding; and in order to avoid any infringement of tiiis rule, it is a common practice for those who desire to avoid a decision upon the original question on that day, to move alternately that "this JLiuse do now adjourn," and "that the debate l>e now ai/, 1 Jiurr. •_';'. 7 ; J/(t-it!ii,j.i Cd.ii', 1 Mod. "J.'i; T/ia Khxjw lianmrd, Comh. 41(5. ) But by tliis Act imivision is made for the appointment of llii, juincijj.al ollicers of a .Vluniei])al Corpora- tion, and so the im]ilied power, if it exist at all, sliould h(; spariuL'ly exereiseil. (See llnlnthdi v. /furrlsov, ] Vrooiii. (N. .T.) 7.'!; U kite V. 'l\illni, '1 Duteii. (X. J.) (17; see also Pn.plv v. Jhihll, '1 Hill, (N. Y.) lUO; Fh'ld V. ilirai-d Culhjr, CA I'a. St. '2X1) Though the ])rovision9 as to Heails of Councils are liero grimped under the title "Ollicers of Municipal Corporations," there are ohvious dili'erenccs between such ollicers and suhordinato ollicers. (See In i\- McLean v. Connvnll, 'J,\ U. C (,>. H. .'{14.) (s) Kxpericnco h.as dcmonstrateil the necessity of more power and more respon.sihility in the Ivxecutive Head of our Municipal Institu- tions. Too often the duties of the Mayor oi' the Chief Executive Olficer ai'c only nominal, and to these he gives but little attention — a natural result of his want of importance and of his inability to eonti'ol the administration of .Nhuiicijial allair.?. If the olticc lie clothed with digni*";/ and real authority ; if the Mayor shall 1»e invested with the veto jiower; if he shall have the sole right to •Tjijioint ami tlu; unrestricted powtr to su.-?pend or remove sidiordi- nate otiicials or Ik ails of dep.artments; -then the citizens can justly demand of him that he shall he individually rcsi)onsihlc for the proper conduct of tlieconct;rns of the Municipality, and if gricvancea oxi.st they will know to Avhom to apj>ly for remedy, and on whom to fix the Idame. (Per .ludge Dillon, in Dillon's Municipal Corjtora- tions, p. 'J.S.) The Editor has copied the foregoing hecause, to a vt'ry great extent, he coiu'iu's in the views expressed by the learned Judge. Miiyors of our ( 'ities and Towns hav(! rcsponsihility without power, .and the result is a lax administnition of Municipal aifairs, too often combining inefUciency with extravagance ami waste. 8. 185.] IIKAPS OF COUNCILS. 135 to comnmniciite, from time to timo, to tlio ('ouncil all such ijifoniiiitioii, aiul roooinniond such moiisiircs within tlu; powers of tlic ('onucil, as may (fiid to the iiiiprovcint'iit of t]ic hiiaiu'cs, licalth, scciuity, clfaiiiiucss, comfort ami oriui- moiit of the Muuicipality. (t) Vide 2D-30 V. c. 51, s. ll';3. Division II.— The Clerk. Appointmpnt and Duties of. Sec. ISO, i.S'7. Jiccordi! (dill J'(t/H'rs vim/ he Imtpevtcil. Sec. ]SS. Jx'i'fiini oj' Sffifisfics to (loreDiiiieiit. Sec. J8'J—1'J3, (hi default, Moneys retained. Sec. 1U4- (t) Mucli of tlif liapiiiiK'ss of till.' inhiiliitiints of ,i City or 'I'own ilciiciuls upon tliu |ini(l('Ut UKUKigfiaciit of tliu liiiaiiccs, tlic t'xistiiioc of au (.'llioit-'iit polico force, tlio prcsurvivtion of licaltli, tlio jiropur rejiair of riails, ami thu oiiiaiiifiitation of tlio Municipality. 'I'he inlialiitaiits of all Muiiici|ialitics have, more or les.s, those wants in coiiinioii. liy-lawrt to seouro thine olijects aro generally jiasseil hut floliloin euforeeil ; tho oouaeijueneo is, the reverso of all that is tlesirahle in Muuieipal govoninient. It i.s liy this section niaile tho duty of Heads of Co ineils to lie rhjilnnt wuA mtlrc \\\ tho perfcu'inaneo of just such ihiiies as above suggested, 'i'ho duties in detail may be stated as follows ; -- 1. To be vigilant ..id active at all tinu a in causing the law for the governiueut of tho ( 'ity or Town to be duly executi'tl ami i>ut in foree. 2. To inspect the C'luduct of all suborilinate oliicors in the govern- mellt thereof. .'}. 'I'o cauKo, as far .is may bo in his ])ower, all negligence, carc- lessnoH.s and positive violation of duty to bo duly pi< secuted and punished. •i. To communicate from time to time to the Council all such information and rccomnieml such means as may tend to the imjirovo- mcnt of the linances, the polii'e, health, secuiity, cleanlines-<, comfort and ornaniont of the .Municiiiality. 'J'he.-(e are all executive duties : other duties, not necessary to be here pai'ticularized, are Bonietimes cast upon Heads of Corporations. (See Kill V. Smitli it uf, o (iray, I'JI ; /f< in/crsoii v. Maifor, W La. "iti."? ; tSfiitl'iril iiIy. MiniiiiKi, ITMd.H.Si ; Slulrrv. Wuml/.i Hosw. 1."); I^drhk V. iiiihliiht /o//, !)H Mass. ;i!t; Wnldnv. ]\'ii//iirr', ]-2 hid, ")l>!); Ciilh-lcx. X( ir, 14 //-. !».'{; M nsraliiir v. Sfir/,; 7 Iowa, .■>((."); E.r jxirti S/ralil, U) Iowa, IW.); .MurrisDii v. Mr I),, unlit d III, 21 Maine, .").">(»; St,ilf i.r vil. lxi>ikf'>ril v. Maiiiianl, 14 111. 41'»; CoiiiiiKDni-i'iiltli V. DiiUan, 3 N'eates (I'a. ). ;i(i(); Slnti v. Wllinniijtitii, 3 H arriiigton( Del.) •21)4. ) It is now for the first time expressly enacted in the history of Municipal legislation in this country, that the Hiad of the ( 'ouncil of a City, Town oi- N'illage may be paid .'^ueh annual or other reiiiuaeration as the ( 'ouncil may deteiniine. (See sec. 173). The Mayor of a ('ity or 'I'own is '.'■ ajFu'lo a Justice of the I'oace (sec. .'{IHl), and, where there is no Police -Magistrate, has jurisdiction to liear ami determine prosecutions fy any iiiciiilicr ]»c('H('iit. sliall n'oord tho iiaiiic ami vote of cvrry hicuiIkt votin;' on niiv uiattor suhniittcd, and shall keep tho hooks, rocords and accounts of the Council ; and shall preserve and fil<> all accounts acted upon I>y the Council, and also the oi'ij,'inals or certified copies of all I'ly laws, and of all luintites of tiie ]iroceedinns of tho Council, all which he shall so keep in his odice. or in tho place ai.i.ointcd by lU-law of tho Council. {l>) 2'J-'M) Y. c. 51, «. 152. ((f) It is inadf the duty of tlio Cdnncil to ivpiioint a Clerk, f'on- venient'e, if net (hity, Iiowovlt, Mill at all times roniKriinc iicc'Cnsary. {liiii rlij/ v. linrlon', 7 U. C. L. .T. 117.) ljiini\, are tlie (iliiccs of Clork .iiid Treasurer so inconipatililo as to inako it ilK'tial for tho same jicrsoii to hold Itotli offices? (Seo note ?* to .sec. I'Jt. ) In tluj Kni;. St;it. 'M, Wni. IV. caj). 101, s. IS, tliere is ,an eximss ]tro- liibitioii agiiin.st aniiointing tho same person to both Buch oflicoa. (Seo llnwklixjA v. Kcwinan, 4 M. & W. (J18. ) (A) The ("lork lieing .in executive oflicor of tho f'mincil, it is his duty to make all entries as (lirectod. Ho is not at lilierty, without tho previous sanction of tho Council, to exercise any discretion of ]ii.s own. His record of tho proceedings is to he "true" and " without note or comment." Tho duties of the Clerk, hero enunienited, .ire the following: 1. To record all rosolution.s, tleci.sions and other procociungs of the Council. 2. To reel >rd the name and vote of every meniher voting, if required by any memher present. 3. To keep the hooka, records and acemn.ts of tlie Council. 4. To preserve and file all aoc(Junts acteil upon hy the Council. 5. To keep the original or certified copies of all IJydaws, and of all minutes and j)roceedings of the Council. All which lu' is to keep in his office, or tho pl.'ice appointed by By-law of tlio Council. Other duties arc imposed by succeeding sections of this Act. The Clerk, vhilo in otiice, may .imend an erroiioims record. {Sciiiiiiiioii V. Sraniiiiuii, 8 l-'ost. -i'J'.t ; Ci/.ss v. /!> llairs, 11 I'ost. (N.H.) run ; lInrriK v. Sclntul Dislric/, 8 Kost. 58; (I'lh.iun v. liitilii/, 9 N.H. 11)8; Wliitntrv. Vani,'!/, \{)S. H. 21)1; ir. //rs v. Batt.ll,', 11 Mass. 477; L'lirv. Prttbvi'tH, \'l N. K. XM ; Phrox. Rlrhnnl.^oii, Ti N. H. .sot'.; rn.-tl v. h'(!iiioi ; /msYo/i Turnpike Citiiip'tii!/ V. Pomfrvt, 20 Conn. r»'.)0; liishi>)> v. Voni: <'t al, 'A N. H. TA',\; Ilixtij V. l)tu\f(>i, 1 Aiken (Vt.), 2815; Chamhu-lain v. Donr, IS Maine, 4t)(». ) The power to amend oeaies when he ceases to hold tho oflioo. {Si-hool DUtrktv. Ath, rtim, 12 Met. lO.'*; Jfurtwrl! v. Utll npjiointed under tlie liatul and seal ol" such ( 'h-rk, shall act in his stead, and the i>erson so a|i|>ointed shall, while he so acts, have all the powers of the Clerk. {<•) New. ISH, Any ]>er.son may inspect any of tlio [".irticulars vinuten, afoi'csiiid, ((/) lis well as the Assessment IJolls, votci's' lists, f^.',;.'„^|'„''*' poll books, and other documents in the possession of or iuspuotion. under the control of the ( 'lerk, (*') at all seasonable times ; {/) and tlie therefor, furnish, within a reasonable time, to any elector of the Municipality, or to any other pei-son interested in any l>y law, older or resolu- tion, or to liis attorney, r copy of such Bydaw, order or III iirii, 2 I'irk. ;}!)7 ; ^tn(<' v. Williams, LV) Miiinc, .')(;] , .'if..") ; /-'(-ssr// v. liiiur,-, •_'!• Maine, t\'l',\.) liut in a jn-iiiier case the ('ouncil niij^lit tlinet tho iiineiubnent to b« niaile. {//ii/ilihinDii v. I'rti/f, II Vt. 4()'2.) Where an anientbiient is made, an-sary, it slionM l.e made' witlt tlio sanctinn of somo 8ii]ieri((r ollicor or of the ( 'oiuieil, ami in siieli a manner as to l)o easily tlistinyuishod iVom the original text. (See I'l re v. Ji'lchardnuii, 37 N. H. .S(i().) ('•) The ( 'ouneil has .'in imj.lieil ])ower, in case of tlie temporary a1)senee of the Clerk, to a]i|ioiiit a person to discliartxe his duties. (See 7'//'' Kni;i v. Motlnr.^ill, \ Str. '.t.S ; //iif--/>his»n\-. I'vnlt, II Vt. MYl.) I5iit still the i)rovision contained in this section is pioper in not leavini; to inference a power that, under certain eireumstanees, must undoubtedly l)e used. ((/) .""'ce note c to .sec. 187. [c) These words as to the As-scssmcnt Rolls, votcrfi' li.sts, kc, were added to the Act of 18()t) Jiv .'U Vie. cap. .SO, s. 18. In other respects the .section is a re-enactment of sec. 1")M of the Act of 18(5(5, (/) It is the riyht of anj'inhaliitant of the .Munieii)ality to inspect the records, l)ooks, ami other doeunients of the ( 'orjxiration on proper occasions (7'Ar Kiiiij v. S/hIIi //, 'A T. K. 14'J; 77i» Kimj v. liahh, Ih. Tu\)\ lliirrisonw. ]\"tirKi>ns,'A\\. ki'. Kl'J ; J'oij' rsv. ,/our.^, .') 1). & R. 484) ; and it is a rii;lit which may he enforced by man- (lannis. (VVif Kim) v. Xiirnisfl,, 2 Str. \'2'2'i; Tin KUiii v. Lians, !(► Kast. 2.S."); TlieKiii;/ v. Piirnrl/, [ Wils. 24'_»; 77/-' KiiK/ v. Jin,l,i> m.tu, 'J Str. PJO.S: l\'oi>lc v. Mott, 1 ilow. I'rac. R. 247; <'i,rkhurn v.JiaiiL; y.i ba. An. 289; People v. Walktr, 9 Mich. 328; People v. Vornell, 47 iJarh. 329.) 138 THE MUNICIPAL MANUAL. [h. 189. <'lt!rk to tniiiHiiiit a yi^irly ntiirn of ratt'imyuru h> tliii I'roviiiriiil TreoHUicr. Oath of vt'iiiicatiDU, resolution, cortidod uiulcr Iii.s liiind and under tlio Corporato Seal. (aid to tin; Trtiasurer of Ontario, in case of default, (h) transmit to the Treasurer of Ontario a truo return of tho ninulxsr of resident ratepayers appearin",' on tho roviscd Assessment Roll of his Atunicipality foi- the year, and sliall accouipany sucli return with an artida\ it made heforo a Justice of tho Peace verifying the samo, in tho following form : (/) T, A. II., Clerk of tli(> Municipality of tlio City (Town, Township or Village^, rj.s- the casr. iiuti/ hr), make oath and say, that the aliovci (oi* the within written, or the annexeil ret'irn, an tlw, cdxe fiKtij he) contains a truo statement of tho numher of resident rat C. B. N. S, 1 ; see also note / to sec. r»!( of tho Assess- ment Act. ) But so far as the oiHcers whoso duty it is made to do the things within a limited time, the Act may be conatnied as imper- ative, (/flint V. Jfililiy, r> H. & N. 120.} The Municipality may suiter in more ways than one if the o'Vicer neglect to perform hia duty by the (lay named. (See sec. 194.) (/) The return must lie verilied hi the form given, and when so verilicd, transmitted within the time limited. s. 100.] ANNUAL UKTUUNS. 139 Wlint such return rli.ill hlloW, IIM^. Tho Cl.M-k of every T()\viislii|). VilliiKO niul Tonvu T..„mke« shall, ill ('.K'h your, within oiio week after tlio first day 'if 'nturn to March, under a penalty ill all its liranclics. 25. Aiiioiiiit riv(!cl from (lovcnimout on account of Ad- iiiiiiistrution of .luHtico. 2G. Total net oxjtemlituro on account of Administration of Justice. 27. Total cxiiciulituro on account of Salaries, and the cxpi'iisus of Miiiiicipal (lovcniiiiciit. 28. Total uiiniltcr of sli('c|) worried liy doj,'s, and the amount |iaid therefor hy the iMimieijiality. 29. Total cxiMMidituro on all otlutr accounts. 1^0. Total ex|ieii(litiire of all lauds. 31. Total amount of ljial)ilities secured hy Dohontlircs. 32. Total amount of liialiilitics unsecured. 3.3. Total lial.ilities of all kiiid.s. 34. Tt)tal value of lieal l'ro|»city l)eloii!,'in^' to INrunicipaiity. 35. Total valiio of Stock in Incorporated Companies owned Ity Munieipality. 20. Total amount of deUts due to Municipality. 37. Total amount of arrears of taxes. 38. lialance in hands of Treasurer. 30. All oilier Propertv <*wned l>v ^runieipality. •10. Total As.sets. li'J-30 V. c. 51, s. 15(5. I!H. Tli(^ Clerk of every County shall, before the tlrst day of April in each yi'ar, {I) pn-pare and transmit to the Provincial Secretary a statement of the aforesaid ])articulars res):ectiiiL; all tin; ^luuicijialities within his County, entering each Municipality in a sejiarato line, and the ])articulars reipiired opposite to it, each in a s(>parato column, to<,'ether with the sum total of all tlu; colnmns for the whole County, and shall also make at the same time a return of the same particulars resj>ectin,i,' his County a.s a separate Municipality. 29-30 V. c. 51, s. 157. 10'*. The Clerk of every City and Town separated from a County shall, before the tirst day of April in each year, (/u) make a i-eturii to the Provincial Secretary of the same j)articulars respecting his City or Town. 29-30 V. c. 51, 8. 158. 103. The Provincial Secretary shall, as soon as may be after the commencement of every Session, lay before the (/) See note h to sec. 189. (to) See note h to see. 189. B8. 194, lOf).] TREASUTlEns OP COUNCILS. Ill TiO^inlativo Assornhly a copy of nil roturns horoiubcforo r('«iiiiri'(l to ho iiuido. (n) liU-.'lO V. c. 51, 8. IGO. I!M, 'rii" Trcasuror of tlio County hIimH rotiiin in his liiuiils liiiy iiHuii'Vs |i;iyiil»li' to any -Nl miiiiiiiilify, if it is certilicil to liiiii liy tin- Clerk of the t'ouiity tliat IIm' Cl(>i"k of MUfh Miinii'ipality lias not inadts tho ri'turn lirfoinhcforo r('<|uir<'(l ; and tho Ticasurfr of Ontario shall n'tain in hiii haiiils any moneys payalile to any Municipality, if i'> is rei-tilii'il to iiiin i>y the Proviiu-ial Secretaiy tliat th(^ Clerk of such Mnniiipality has not made th<( loturna 1' roinhcforo rocpiirod. (nn) '2[)-',iO V, c. T)!, s. la'J. Division III.— The Tueascreb. ITi/i Appaintmrnf, JJtifi'is nnd l\''mut>rr(it'u)n. Sec. 105-107. Succi'Ksm' luui/ Di'iiw MiUH'iin. Sue. ins. ti^li, HiVery Miini('i]ial Council shall apjeinl a Troasuror, ((() who may he piid either hy salaiy or u ptuveiita;,'!', (ji) and tho present Chamlx'ilains of Cities shall he iiereafter Ktyled Treasurers ; (//) and cveiy Ti't'asurer, lief'oic cnteriiiij upon the duties of his olHee, .shall ,iL,'ive such .security as tho C\)uncil directs for tho faithful perfornumco of his duties, ami especially foi- duly accountini^ for and paying,' over all moneys which may conio into his hands; (;•) and it Khali ho (/() It ia to ho ii(it(Ml thiit wliilf tiic duty of tliu Clerk, an to each return, is to inaku it on or l)(:fort; a particular day iiaintd (sec 8(os. ISII, 1!K), lid, I'.l'il, tiiu I'rovincial Secretary is reiiuired, "as soon ;'.s may ho after tho eoianieneeiiieat of every Scssinii," to lay a copy of all the returns before tho Legislativo Asscialjly. (hh) Sec note /*. to sec. 189. ((*) The oilicos of Treasurer and memhor of the Council aro incoiiipatilile. (See note n to sec. 124.) (Jiitere, arc tho olfices of Clerk and Treasurer ineoni[)atil»le ? (/''.) (/>) A resolution, empowering a person to collect taxes due to tho City, at a given rate i)er cent, on tht! amount eoUeettil, may l>o repealed or moilitiod at any tinu^ hy the < 'urpnratinu, mi the solo condition that the '/"I'poraticui sliall eimtinue lial)lt' for any coiti- pensation earned under the nsolution ])Z'eviiius to its repeal or inodilieatiim. {Iloikiitd v. NvwOrk'uns, 14 La. An. 330; see further, note/ to see. 21'J.) (7) This is more convenient th.an the distinction which hitherto existed l)etween tho two officers in name where there was no (litference it fact. (r) The Chamherlain or Treasurer is — 1. To give security. 2. The security is to be given before he enters upon the duties of bis oliice. Motleys to \i<' rrt.iilH i| It ii tiiriix Hut iiiuklo. Tnnsurrr to Im' aiilioiiitml To nwn ucourity. UJ Tur: MUNnniWL manual. [s. 195. Atinu.il the duty of every Cumicil, in v.xrh and every year, to inquire l["'["'J^)J„i. into tlu- surticneney of the security ^iven hy sucli TreuHurcr, 'Mirjuf. and report thereon, (.v) 2Q-',iO V. c. 51, s. 101. 3. 'i'ho security i.s to ho for thu fivitliful i)erfnrm;iiK'0 of his ihities, anil usi)uci;illy for (hily ;k ■oinitiiig fur ;iinl juiyiiig over all moneys whicli may come into his liamls. It is no olijection to tlie l)r)ml tliat it 'was executed 1)efor!; the ap[)ointment to otfiou was made. {N-iscx v. StroiKj, 8 l'^. C L. J. I.^; B. e. 'Jl ('. ( '. Vi. I'>. 14'.'.) If t!ie condition of the houil of a puhlic otiieer Bultstanlially comjily wiLli the re(|nirenients of the .'Statute, ( ■oiirts will fnde.ivuur to sustain the hond as ai.';\inst teelinical defences. (See Piojili V. //h//;((.s', 'J \VLiid. "JSl, //'. ()!"); A'''ijhn;iii ('oniitij v. Van C'; IjHirhm v. F.nnii. \) Wend. 'l'X.\\ /'osfnuistcr- C'l ii'Tiil v. Rice, \. H. KS; .Siijnr- vi-ior.s V. ( 'i)[liiil'ari/, 1 Mieli. .S.")I).) 'I'lie invalitlity of tlie ajipnintnient cannot he set upas a defence loan a' t ion on a Imnd where mone^-s have l)een collected. (Ili)li [' . ('. C. I'. Ill); fvdd \. l\rrii,tnl,'H\ ('.('.(,), 15. ()4'.>.) The innio»,ition of additional taxes to those assessed at the time of takiny the securitj' and tile increase of risk therchy, haslieen li'ddnot to violate a hond given for the {^'cneral perftn-mance of duties and payment of monevs. (Ihvirbii V. Barlow r.t nl, ]() U.C. C. I*. 178; s. c. 7 U. ('. L. .J. 1 \1.) IS'or is it a defence that the money received hy the Treasurer was not demanded hy the (loverninent, which wasentiHed thereto. (L'.s.nx V. J'drl; 11 I'. ('. ('. V. 47o; see further, note f to sec. 11)(>, and r,ote (I to sec. 1!>7 of this Act, and note h to sec. 174 of the Assessment Act.) It has heen hehl tliat sureties for an othcer wliose terni is limited to a year, are not liahl ; beyond the year, though the otliccr continue hy law till his successor is apiminted. {'J'/it- (JiKfri re rel. F„M V. M'rlUv, f) I'rac. II. ;?l»!); Dun-r v. TirumUii, 4'J N. II. ni); Cli iD^furd Co. v. Dtinunst, 7 tJray, 1 ; Mayor v. Horn, 'J Ilarring (Del.) 190.) (,v) This is a most important tluty, hut, it is believed, the most ncglecteil of all duties iinixi.-^t-d on ('oumils. It may be that if the Alimieipality lose the beiielit oT their security by reason of a neglect to perform this iluty on tlir part of the members of the ("ouneil, the latter could l>e made liabh- to Tuake goo,l the loss. One of the sureties of a Treasurer bein ' desirous of being relieved from his suretyship, the Treasurer ottered to the Council a new surety in his place. Ihe Council thereuixm passed a resolution apjiroving of the uow surety, and declaring tliat on the completion of the necessary bonds the withdrawing surety should he relieved. Is'o further act on the part of the Ci>uncil took place. iJut the Treasurer ami his new surety (omitting the second surety) joined in a l.>oi\d comlitioned for the due performance of the Treasurer's duties for the future, and the Treasurer executed a mortgage to the same ellect. The Clerk, on receiving these, gave uii to the Treasurer the old bond and the Treasurer doBtroyod it. Eight years afterwards a false charge was 8. 19G.] DUTII'S OF TREAr,rnERS. n." 11M5. Evory Troasuror .shall iv(i>ivo ami safely koo[) all To rcc(i\c, inoiirys l(i'loiigiii Pnivim-c a!id the lawful l\v-laws or ri'solutions of the ( 'ouncil of tlio Municipal ( 'orporation, whoso otliccr ho is, direct ; (/) di9covcrf(1 in the accoui.ts of tlie Treasurer of a date jirior tn tlieso traasactioiis, and it was held that t!.e suicties en tlie tirst Imiul^vvLro rosjioiisllili: for it. (Fmiiti nar \, Jin'hn, 17 < lr:uit, (•4.">.) (/) In an aetinn hy a Muniripal ( 'oriioiatiim airain.st tiieir'I'rea'i'irrr on Ins hund, cliarging liini with nnt lia\ ing jiaiil nvcr innneys reeei\ eil, it iqipeared tiiat tlie ( '(iriiiiratinn had a euntraet with one E. in Itiild bridu. s for them. E. \saiiting money, got tlie IJcivi' to endorse )iis note for •'*()()(), winch wa.s dibcounteil l>y defendant at the Niagara District Hank, of whieli he was agent, as well as Tieasurer of tho Munieijiality. .V few days afterwards another note for .•<4(M», maile by E. and emlorsed hy other persons -'iiie a nienih/r of tiie ( 'orjio- ration was diseounti J at tin same I'ank. Whni thise notes were jvhoiil to fail due, a meeting of the Couiieil took plaee, at ^^■hich . ll'JTS.) In an account rendered 1»y di i* ndant to tie Council, this iSijtHM) was charged as paid to K., and it was asserted the ('ouncil made sulisci|Ueiit payments to liim, assuming the account ti) he correct. Jhit, /c /'/, that assuming this to he tho case, of which there was some ([uestion, the Council, hy omitting to notice or object to this item, were not bound to jiay it. (//'.) If tho Treasurer chooses to act upon the construction which he puts u]ion or the inferences which he draws from iiure convcrsat lus among nuMnhers of the Council which may take place in his jiresence, ho does so at his own risk. He should be av.arc; that no loose conveisa- tions of any one or Jiiore mend ors of the Council can form a voucher that will acijuit him for paying jiuhlio money. (//*. 12S."), /«/-Kohins(in, C. .T.) The Treasurer should not i)a}' money on any or every draft and order whicli the Reeve for the time being may direct him to pay. The Township moneys will probably lie coiisiilered as still in his hands unless paid out on a proper legal authoiity, for purposes contemplated aial authorized liy law, at least initil he has riceived a formal acquittance and discharge from the Municipality. (East yUsDini V. Ifom-wnn ft al, 1) V. C. C. V. 191, /"/• Draper. C. J.) Nor shouM he pay money on an illegal onler or reS(dution, for an Act of I'arliamcnt should be regardetl hy him as a higher authority than the resolution or l?ydaw of a Corporation created by Act of Parliament (jwr Robinson, C. J., in ., mivh v. Bur/on/, 10 U. C. Q. B. 4Sl) ; and if a Treasurer so pay imnuy on an illegal order or reso- lution, he would be probaldy subject to criminal prosecution (per llohinson, C. J., in Eiut Xitmovri v. Jlurncman, IG U. C Q. B. 680), 144 THE MUNICIPAL MANUAL. [a. 197. but no member of tlio Council shall receive any money from such Treasurer for any work jKU'fornii'il or to be porfornicil ;((t) Ilis liability and such Treasurer shall not be lialtlo to any action at law "" ' ■ for any moneys iniid by him in accordance with any liy-luw or resolution passed by the Council of tlio ^lunicipaUty of which he is tlie Treasurer, unless when another dis[)()siti(m is expressly made of such moneys by statute, (y) 2'J-oO V. c. M, s. 102. llnif-ycaiiy IJM, Kvoiy Treasurer shall also prepare and submit to ag'sctH."^ ' ' the Council half-yearly, a correct statement of the mone\*s at the credit of the Corporation whose otHcer he is ; («) and («) It is against the policy of the; liuv that a nieni1)er of a Council, who iH a trnstec for tliu people, sliould have any contracts witii tho ( 'orporation, and so be in a position to make a prolit out of his trust. (See note a to sec. 75.) (i») The lirst part of the section makes it tlie duty of the Treasurer to pay out money in such manner .as the laws of the Province and ''tho Id in/al J}y-laws or resolutions of the Council direct.'' J«ut in order, it is presumed, to relieve tiie Treasurer fi'om tlie resi)onsil)ility of deciding wliat iiydaws or resolutions are or are not legal, it is here provided that he shall not l)e liable to any action for '•(in;/ moneys paid hy him in accordance with poiiited instead uf .sucli asses- «orp, kc. time to time aiithoinze or i*oquire, (d) and shall fill up any vacancy that occurs in tho said offices as soon as may be convenient after the same occurs ; (e) but the Council shall not apjioint as Assessor or Collector a member of tho Coun- cil ', {/) but the same pei*son may, in a City, Town or Township, be appointed Assessor or Collector for more than one Ward or Electoral Division ; and in ]Vlunieii)alities which have i)assed By-laws recjuiring tuxes to be paid on or before the fourteenth day of December, it shall be the duty of the Collectors, on the fifteenth day of December in each year, {(j) upon oath, to n^turu to the Tntasui-er the names of all persons who have not })aid their Municipal taxes on or before the fourteenth day of the said month of December. 29-30 V. c. 51, 8. 1G4. ^00. In Cities, the Council, instead of appointing As- sessors under the foregoing section, may ap[)oint an Assess- ment Commissioner, who, in conjunction with th() Mayor for the time being, shftU from time to time appoint such Assessors and Valuators as may be necessary ; and such Commissioner, Assessors and Valuators shall constitute a Board of Assessors, and shall })ossess all the i)0\vers and perform tho duties of Assessors ajipointed under the last preceding section ; (/<) and the Council shall also have power by By-law to detei'mine the number of Collectors to be (d) Hoe note r to sec. 184. (e) It was made a question whether the Council, once having appointed an Assessor, could cancel tlie ai)i)ointiiient .at their mere will and pleasure. (In iv MrPhi moii and JJrcmnn, 17 U. C. Q. 15. 99; but now, see see. 2*20 of this Act.) Tlie Council, by resolution, appointed B. Assessor, who was sworn into oHioe, and made the assessment. Tliis appointment was made by a vote of three against two. The election of one of the three Councillors was afterwards set abide, and l)y a subseciuent vote the resolution was rescinded, and a liy-Iaw passed apjioiuting a different person Assessor. Both made assessments, and in conseijueuce much confusion arose. The Court, under these circumstances, granted a (juo warrnnfo to deter- mine the validity if tlic last ai)pointment. (In re McPherson and Beivian, 17 U. C. Q. B. 99.) (/) The olBcea. are incompatil)]e. (See note n to sec. 124.) (r/) See note h to sec. 189. (/() Tliis i)rovisiou for the appointment of a Board of Assessors is new. It is restricted in its operation to Cities. The object of tho provision is to secure, as nuicli as pos.sible, etlieiency, economy and uniformity of assessment. Different men have different ideas as to value. Stmie men are gloomy and others hopeful. The temperament of the man often uuconseioualy governs the valuation; and it has II 200.] PERCENTAOE ON UNPAID TAXFS. 147 appointed and prescribe their duties, (i) and may by By-law require the payment of taxes to be made into the oilice of the Treasurer by a day to be named, and in default may in on default said By-law impose an additional percentage charge on every .''[T"^™'^"* unpaid tax or assessment, which shall be added to such additional unpaid tax or assessment, and collected by the Collectoi-s aa },',ay^ij|j^^'' if the san\e had originally been imposed and formed ])ai't of imposed. such unpaid tax or assessment ; (k) and any Couimissioner, Assessor or Collector to be appointed by any City need not been found that when Assessors in the different Wards of a City act independently of each other, property in some ^V'ar(ls is assessed higher than in others. For remedy, provision is made for the con- stitution of a Board of Assessors. The Board is made to consist of an Assessment Commissioner, A8.sessors and Valuators. The Com- missioner is aj)pointed by the City Council, and the Assessors and Valuators by the Commissioner, acting in conjunction with the Mayor. There is no limit to the number of Assessors and \\aluat()rs. As many "as may be necessary" may be appointed ; and the appoint- ments may be made "from time to time." The Commissioner, Assessors and Valuators, like other officers of the Corporation, hold office during pleasure. It is not necessary, therefore, that they should, like meml)ers of the Council, be appointed or elected annually. (/) It will be ol)served that the Collectors, like the Commissioner and Assessors, need not ))e annually appointed, and hold office during pleasure. As to bonds given by Municipal officers concerned in the collection of money, see note r to sec. 195. (/.) This provision, which is new, is intended to meet a want. In the past it has been found that many tax-payers delay the paj'ment of their taxes so long as to render it necessary for thf Council to procure accommodation at the Banks, and pay considerable amounts as interest or discount. (See sec. 303 and notes.) This was not fair to those who paid their taxes promptly. They not only lost the use of their money before the dilatory tax-payer did, but their i)roj)erty, in common with other property, became subject to bear the burden of increased taxation to meet Bank discounts and interest on advances. It may no\.', in Cities, by By-law be made the duty of all tax-payers to pay their taxes by a day named. Those in default may, under the operation of the By-law, be subjected to a percentage wliich will bo sufficic'.ifc, under any circumstances, to meet the increased Inirden arising from the payment of interest or discount on money borrowed to meet the current expenses and other obligations of the City by reason of the default to pay taxes by the day named. The effect will be to shift the burden from the general body of the ratepayers, and place it only on those whose neglect or default rendered necessary the creation of the Iturden. It is presumed that the jjereentage will be made as nearly as possible to correspond with the probable amount of the burden. If this were not the case — if the i)ercentago were made larger than necessary for such a purpose— an animal surplus would arise in excess of the estimated wants of the Corporation. This would be contrary to ail well understood principles of Municipal taxation. 148 THE MUNICIPAL MANUAL, [ss. 201, 202. be appointed anmially, but shall hold office at the pleasure of the Council ; (l) and any City availing itself of this pro- vision for the current year may extend the time for the return of the Assessment Rolls till the fifteenth day of August, and for closing the Court of Revision till the fifteenth day of September next, and for final return l)y the Judge of the County Court till the first day of October next ; (m) and all notices hei*etofore given to the City Clerk in matters relative to assessment, shall be given to the Assessment Commissioner, (jii) /801. The Collectors of the several Townships in a Junior County of a Union of Counties shall ex officio be Collectors in such Townships for the Provisional Council, (o) and the Paymenta. Collectors shall pay over to the Provisional Treasurer the money they collect under any By-law of the Provisional Council, {p) 29-30 V. c. 51, s, 167, /80/S. The money so collected shall be deemed the mo' jy of the Union, so far as necessary to make the Collectors and their sureties responsible to the Union therefor ; {q) and in Tenure of office of commission- er, asses- •ors. &c. Extension of time for return of assessment roUa, &c. Collector of provisional council. Moneys, how to be diapused of. (I) See sec. 220 and notes thereto, (in) This is a temporary y'^vision : it will expire with the current year. Its exi.stence is owing to the fact that the provision under consideration is a new one, in a new Act which was only sanctioned after the time when, under ordinary circumstances, Assessors M'ould have been abroad in the discharge of their duty. (n) The oflBce of Assessment Commissioner is one of considerable importance. Taxes should be as small as possible, collected at as little exjiense as possible, and as iiniform as possible. It is believed by those who favoui such an oflBce as here authorized that there will be more efficiency, more economy, and more uniformity than under the old system. Whether the expectations of those who entertain these views will be realized must, to a great exteni*;, depend upon the general ability and business qualities of the Com missioner, if and only when aided by an efficient staflf of subordini-.t.";. (o) The powers of a Provisional Council are not in any ■■i^Ay intended to interfere with the powers of the Council of the Unioii. (Sec. 39.) Any money raised by the Provisional Council in the Junior County is independent of any money raised therein by the Council of the Union. (Ih. ) [p) No time is limited for the pa5nnent. In the absence of a specific time the law implies a reasonable time. (q) The Corporation of the Union is, as it were, a trustee of the money for the Corporation of the Provisional Council. But as between the former and its officers, it is no defence to the latter that the Corporation of the Union ia not beneficially interested in the money. ss. 203, 204.] AUDITORS. 141 case the Corporation of the Union receives the same, such Corporation shall immediately pay the amount to the Pro- visional Treasurer, retaining the expenses of collection, (r) 29-30 V. c. 51, s. 1G8. Division V. — Auditors and Audit. Appointment ami Duties. Sec. 203, 204. Abstract of Receipts awl Expemlitarcs. Sec. 205. Publicatioii of Audit. Sec. 200. Council to Finally Aiulit. Sec. 207. County Council to Regulate awl Audit County Moneys. Sec. 208, 200. ^03. Every Council shall, at the fii-st meeting thereof. Auditors. in every year after being duly organized, (s) apj)oint two Auditora, one of whom shall he. such person -iS the Head of the Council nominates ; (t) but no one who, .t such time, or Disquaiiu- during the preceding year, is or was a member, or is or was '^nt'ynfo'" Clerk or Treasurer of the Council, (h) or who has, or during such preceding year had, directly or indirectly, alone or in conjunction with any other person, a share or interest in any contract or employment with or on behalf of the Cor- poration, (v) excejit as Auditor, (w) shall be appointed an Auditor. 29-30 V. c. 51, sec. 1G9. 204, The Auditors shall examine and report upon all Duties uf. accounts affecting the Corjjoration, or relating to any matter under its control or within I'ji jurisdiction, for the year (r) It would seem that a ilemand of some kind of the money ought to be made before commencing a suit for its recovery. (See C'aledon V. Caledoii, 12 U. C. C.P. 301.) (s) See note i to sec. 120. {t) The Council is to appoint two Auditors annually, but one of them ia to be a person nominated l)y the Head of the Oouncil. Hence it will be seen that a nomination by the Head of the Council, though not in terms an appointment, is, under this section, in effect the same. (») The offices are incompatible. (See note n to sec. 124.) The disqualitication extends to the holding of the incompatible oHlce •' during the preceding year." (See The Queen v. J Horns, 7 A. & E. 960.) (v) See note u to sec. 75. {iv) 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. 209), and in other Municipalities monthly or quarterly, ajs directed by By-laws on that behalf, [lb.) 150 TIIE MUNICIPAL MANUAL. [s. 205. ending on the 31st day of December preceding their appoint- ment, (a) 29-30 V. c. 51, s. 170. To prepare 20<>. Tlie Auditoi-s sluill prepare an ab.sti"act of the detaifcd'^" receipts, expenditures, assets and liabilities of the Corpora- atatciiient tion, and also a detailed statement of the said particulars, in of rodciDts andexi)en- such form as the Council directs, and report in duplicate on diturt'8, Ac. j^ij ^jjg accounts audited by them, and make a special report of any expenditure made contrary to law, (6) and shall file the same in the office of the Clerk of the Council within one month after their appointment ; (c) and thereafter any inha- bitant or ratepayer of the Municipality may inspect one of such diiplicate reports at all seasonable liours, and may, by himself or his agent, at his own expense, take a co})y thereof or extracts tlien^from. (c/) Vide 29-30 V. c. 51, s. 171. (rt) Negligence of the Auditors in examining and reporting upon accounts will not, under ordinary circumstances, relieve those indebted to tlie Corporation from the payment of tlieir liabilities. (See In re Eldon and Fenjuson, 6 U. C. L. J. 207.) "It seems to me to be a monstrous proposition, that an officer of the Corporation may wilfully ' >r even negligently omit to enter the receipt of moneys ; and because the Auditors have not been able to discover the omission, and the Corporation approves of the report, that when the omissions are discovered the otfi'cr may set up the audit to cover his own fraud or neglect." [Ih. 209, ;5fc Richards, J.) A surety for the due perform- ance of a Treasurer's duties is not relieved from liability by the negligence of the Auditors in proving the Treasurer's accounts. (Front fnac v. Breden, 17 TJrant, G45. ) Tlie fact of the Treasurer having become reduced in his circumstances after the auditing and passing of his accounts, and before the discovery of an error in tliem, is no bar to a suit against the surety. [Ih.) ( b) The duties of Auditors, under this section, may be thus classed : 1. To prepare an abstract of the receipts, expenditures, assets and liabilities of the Corporation. 2. To prepare a detailed statement of the said particulais, 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 contrary to law. 5. To file the reports in the office of the Clerk of the Council within one month after appointment. (c) See note h to sec. 189. (d) The right to inspect the Auditors' report is extended to "any inhabitant or ratepayer." The difference 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 The King v. North Curry, 4 B. & 0. 961.) Mere colourable residence is insufficient to constitute a person an inhabitant. ( The King v. Sargent, 5 T. R. 4G6 j The King v. Duke 88. 206-209.] AUDIT OP ACCOUNTS. l.'ll *ZiHi, The CUn-k .shull puhlisli tlie Aiiditors' ivl).stiiict and re])ort (if any), and sliall idso publish tlm dctaihul statenuMit iu such form a.s the Council directs, (c) 2U-.'30 V. c. 51, s. 173. SOT. Tlif' Council shall, upon the report of the Audi tf»i's. linally audit and allow the accounts of tlu^ Treasurer and Collectors, and all accounts chargeable against the Cor])ora- tion ; and in cuse of charges not regulated l>y law, the Council shall allow what is reasonable. {/) 2'J-3U V. c. 51, 3. 172. 308. Every County Council shall liavo the regulation and auditing of all moneys to be paid otit of the funds in the hands of the County Treasurer, (f/) 29-30 V. c. 51, s. 174. 30«^. The Coancil may also appoint in Cities and Towns an Auditor, who shall, daily or otherwise, as directtnl by the Council, examine and report and audit the accounts of the Corporation, in conformity with any regulation or By-law of the Council, (//) and in other Municipalities the Auditors shall also, monthly or cpiarterly, as directed by By-law, Clerks to puhliHli all- stractH nii iidit lliially. ir. Auilit of moiioys til Im! paid by treusuriT. Audit iif a<'i'i>\iiits in cities. In other iiiuiiicipali- ties. of Rlchmoml, G T. R. 5G0; Bruce v. Bruce, 2 B. & P. 229, n; The Kbuj V. Mitchell, 10 E.ast. 511 ; Whithorn v. Thomas, 7 M. & (i. 1; see further, note / to sec. 188.) (e) This, notwithstanding the use of the word "shall," it is appre- hended, is directory, not imperative. (See Sirib'r v. Kelh/, 7 Hill. (N. y.) 9; In Error, 2 Denio, 32.3 ; Indinnohi v. Jonen, 29 Iowa, 282; In re Mount Manor S'lunre, 2 Hill. 20; Elmen'lorf et nl v. Xtw York, 25 Wend. G93 ; see further, note h to sec. 189 of this Act, and note » to sec. 2G of the Assessment Act). (/■) Notwithstanding the use of the Avord "final" 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 notwitli- standing the allowance of the accounts upon the basis of the supposed correctness of the audit. (See note a to sec. 204. ) (g) The power of the County Council is to regulate and audit al^ moneys to be paid, &c. The word "regulate" appears to refer to an order prior to payment, as does the word "audit " refer to an act done after payment. The Council have, under section 207, a general power to finally audit and allow all tlie accounts of the Treasurer, &c. , and all accounts chargeable against the Corporation. (See note a to sec. 204.) (h) There was nothing in the old law to prevent a daily audit ; but as regards Cities and Towns, there is now in this section 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 203. As to the eti'ect of the audit, see note a to sec. 204. 152 THE MUKICIPAL MANUAL. [s. 210. Cduiity ronnrilmay apiMilnt valuntorH, their dutiuH, Ac Bqualiza- tiou uf real property. examine into and audit the accounts of the Corporation, (t) New. Division VI.— Valuators. Appointment of. Sec. 210. ^10. The Council of every County may appoint two or more Valuators, fi)r the jmrjioso of vahiing tlie real projjerty within the County, whose duty it shall bo to ascertain, in every tiftli year at furthest, the value of tlie same in the manner directed by the County Council, but such Valuators shall not exceed the [towers possessed by assessors, and the valuation so made shall l>e made the basis of (Hpuilization of the real property by the County Council for a pericjd not exceedinj^ live years, and the equalization of personal pro- perty shall be as heretofore, {k) 29-30 V. c. 51, s. 175. Division VII. — Duties of, respfx-tino Oaths and Declarations. Declarations of Office and Qualification. Sec. 211-213. Before whom made. Sec. 214.. Power to adtnitusler other Oaths aiul Declarations. Sec. 215. Record, and Deposit of. Sec. 210. Oaths respecting matters before Council. Sec. 217. (i) In rural Munjcipalities the accounts are not usually as numer- ous as in Cities anil Towns. While in the case of the latter the audit may be "daily or otherwise," in the case of other Munioiitalities it may he "monthly" or "(juarterly," as directed by By-law. {k) Before the Act of 1SG6, a County Council arrived at the value of lands, situate in the several local Municipalities of the County, merely l)y 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 18G6 was enacted. The ajjpoint- ment of County Valuators is the main feature of the remedy, and is left discretiouiiry witii the County Councils. The purpose of the appointment is "the valuing the real iJrojHjrty " in the County. The duty of the Valuators, when appointed, is to ascertain the value "in the manner directed bj' the County Council," but on this stipulation : that they (the Valuators) are not to "exceed the power.s possessed by assessors under this Act." 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 vabia- tion will be necessary every year. But in some localities real property fluctuates in value more 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. In this respect it differs from the section whicli it re-enacts. The former enactment jipplied to " the valuing of real and personal property." B. 211.] DECLARATION OP QUALIFICATION. 153 Penult// for refumnij Office, or not viakiiKj or re/uaimj to administer JJedarations. Sec. 218. SI 1. Every person elected or appointed under this Act (/) to any otVicc! rocpiiriii;^ a rpialitication of property in the incmnlu'iit, (iii) .shall, hefoi-e Ik* tivkos tiie d<'elaration of office, or enters on his d\ities, (u) make and sub.scribo a solenni declaration to the effect foUcying : I, A. B., do solemnly declare that I am a natural-horn ((>;• natui'aliz(Ml) subject of Her Majesty; (o) and have and had to my own use and benefit, in my own right {^or havo and had in right of my wif(!, «.«< the case nidi/ be), as pro])rietor (or tenant, as the case may be), at the time of my election to the ollice of , liereinafter referred to (or appointment, as the case may require), such an estate (;*) as does (pialify me to act in the office of {nainliii/ the office) for {namiiij the jihice for ichich such jtrrson has been ehcti'il or a/>j)olnfe(l), and that such estate is {the nature of the estate to be speci- fied [(/) as a)i equitable estate o/ leasehold or otherwise, as the DcclnriiUoii (if dtncc by iiTtajn f qualillca- lion. Form of. (I) " Elected or appointed." Aa to the difference, see note c to sec. l'J9. (m) This applies to members of the Council. (See sec. 71.) (n) The election of a head of the C^ouncil is "a duty," within the meaning of this section. (See In re Hawk and Ballard, 3 U. C. (J. 1*. 241.) (o) See note it to sec. 71, and note / to sec. 77. {p) See note m to sec. 71, and note e to sec. 77. ('/) It was attempted to un.seat a member of a Council on the ground that he had not, in his declaration of oHice, 8j)eciHed tlic nature of the estate ; but it was held that duch an objection could not be mjide a ground for setting aside an election \uider tlie sunnnary pro- visions of the statute. ( 'J'/ic Queen rx rcl. Huiitfil v. Firrii, U. C. L. J. N. S. 200. ) Besides, it is to l)e observed that there is no dcilara- tion in the statute to the effect tliat an omission to take the declara- tions re(iuired shall be a forfeiture of office. (See 'J'/ie Quctti v. Hanqilircij, 10 A. & E. 33;").) A refusal to take the oaths of oflice has been held equivalent to a refusal of tiie ottice. ( The Kimj and Queen V. Larwuod, Carthew, .S()(5; Exeter v. Sfnrrc, 2 Show. l.')8 ; 8. c. In Error, 3 Lev. IIG. ) L'pon tlie declarations l)cing made, the oiTicc becomes full, de facto. (The Kuk/ v. Svijer, 10 li. k V. 480; The Kimj v, Winchester, 7 A. & E. 21.").) Before the Court will entertain an ai)plication for a quo warranto, it must be made to appear that the declarations retjuired by the statutes were made. (The Queen v. Shttfer, 11 A. & E. 505; see also The Kimj v. Tate, 4 East. 337; see further, note n to sec. 218.) There is a penalty imposed by this Act for refusal to accept office, or neglect to do so, after knowledge of election or appointment. (Sec. 218.) 154 |)(:(!l(irfttiiiH of ollliro liV eertaiu util- ceni. Form of dii- I'laratioii of Auditor's declaration. i''.,riii of THE MUNICIPAL MANUAL. [ss. 212, 213. case may require, and if land the same to be designated by its local description, rents or otherwise) ; and that Huch cHtute, at tlipt tliat of Auditor, for tho pn^Hcnt year, {c) 2D-3U V. c. f)l, h. IHl. ^14. Tho Head and other mcnibors of tho Council, and the suhordinate ofticei's of every Municipality, shall niako tho (Iccliiration of otlico and (jualification Ucforc some C'o\irt, Judf,'*', Police Maj^nstrato or other Justice of the; Peat;o having' jurisdiction in the Municipality for which such Head, mendiei-s or ofHcei-s have been elected or apjminted, or hefoitj Before whom decU- ration to be made. the Clerk of tlu^ Municipality; ('/) and the Court, Judf^e Certinoato ofduclara- tiou. or other persons before whom such declarations are made, shall give tho necessary certificate of the same having been duly made and subscribed, (c) 2'J-30 V. c. 51, ss. 182 & 183 ; 0. 02, s. 117. 215, The Head of any Council, any Ahlorman, ll<>evo or Deputy Keeve, any Justice of the Peace, and tho Clerk of a Municipality, may, within the Municipality, administer any oath, affirmation or declaration under this Act, relating to the business of the place in which ho holds office, except where; otherwise specially provided, and excej»t where ho is tho party required to make the oath, affirmation or declara- tion. (/) 29-30 V. c. 51, s. 184. 310. The deponent, affirmant, or declarant .shall sub.scribo eveiy such oath, affirmation or declaration, (y) and the person (c) This is to meet the requirements of tho latter part of sec. 203. (d) The administering of the declarations of otiice is so far obliga- tory as to be enforceable by a penalty. (8ee sec. 218.) (e) Tho certificate is to the effect that the declaration has been made and subscribed — two things essentially different, but each necessary to complete the taking of the declaration. (See The (Jueen ex rel. McManus v. Ferguson, 2 U. C. L, J. N. S. 19.) (f) The authority of the officers named, is not to administer all oaths, affirmations or declarations, but only such as relate to the business of the place in which the officer administering the oath, affirmation or declaration holds office, and thus is made subject to two obvious exceptions : 1. Where otherwise si)ecially provided. 2. Where he is the party required to make tho oath, affirmation or declaration. (g) A deponent is one who makes a lawful oath ; an affirmant is one who by law is permitted to affirm when otherwise he would be required to make an oath ; and a declarant is a person who, instead of making either oath or affirmation, makes a solenm declaiatiou. Certain odl.rrs may adiiiinisUir c'crluin oatlm, &c. , witliiii mu- niciiiulity. Oath nr doflaration to ho sub- scribed and l£ept. 106 THE MUNICIPAL MANUAL. [s3. 217, 218. Heads of (V)unril may ftdminister certain oatlis, &c. Penalty for refusing to accept ofticti or adminis- ter declara- tion, da. administering it (A) sliall duly certify nnd presorve the same, and within eight days deposit tlie same in the office of the Clerk of the Munici[)ality to the affairs of which it relates, (i) 21J-30 Y. c. 51, s. 185. . • ^IT. The Head of eveiy Council, or in his absence the Chairman thereof, may administer an oath or titHrination to any person concerning any account or other matter sub- mitted to the Council, (/i) 29-30 V. c. 51, s. 3GG. 218, Eveiy qualified person duly elected or ap[)oint(>(l (I) to be a Mayor, xVlderman, lieeve or Deputy Reeve, Councillor, Police Trustee, Assessor or Collector of or in any INIuuici- pality, (?/i) who refuses such office, (u) or does not make (/() See note d to sec. 214. (i) Tlie duty of a person administering an oath, &c., of the kind authorized is twofohl : 1. To certify and preserve the same. 2. Within eight days to deposit the same in the place mentioned. As to computation of time, see note a to sec. 128. {k) Heads of Coimcils may, under section 215. administer oaths, affirmations or declarations under the Act "relating to the business of the place in which he holds office." Tliis extends the powers to oaths or affirmations "concerning niii/ account or ot/icr matter sub- mitted to tlic Council," and enables tlie Chairman of the Council, acting in the ab.sencc of the Head of tlie Cmiiicii, to adniiui.ster the last mentioned oaths or aiHrmations. The purpuse, apparently, is to authorize some oitteer to act on the spur of the moment when deemed necessary to verify accounts or other matter submitted to the CouncU. (/) It should be noticed that this section is only made obligatory upon inialified persons ; so that persons really dis(|ualified under section 75 of this Act or exempted under section 7(5, tiiough elected, would not, it is believed, be bound to take the declarations of oflTice and cpialilication. It would not be fair to compel such persons to do so. (See The Kliuj v. Leijland, 3 M. & S. 18G.) (?/i) The section only applies to particular officers n.amed and to the case of a qualified person appointed or elected, and, when elected, himself returned as elected. {The Queen exrel. Macklei/ \. Coaks, 3 E. & f>. 2-49. ) So that it would not ajjply to the case in which another was returned, though improperly. [U).) As to officers other than those named, see sec. 372, sub. 11 a. (n) The acceptance of the office, when the person returned aa elected or appointed is qualified, is obligatory. It is an offence at common law for a person to refuse to serve in an office when duly elected. (Vintner's Compamj \. Passey, 1 Burr. 231); The Queen v. May, 20 L. J. Q. B. 268.) A person so refusing may be indicted (Tlie Kiwi V. Burder, 4 T. II. 778; Vannel-er'>i LUue, I Ld. Ilayd. 490), or, in case of urgency, may be proceeded against by crimijial 8. 219.] SALARIES OP OFFICERS. 167 the doeliivations of office and qualification within twenty days after knowing of his eh'ction or appointment, (o) and n^^ Qr-" J person authorized to administer any such decUiration, enforced, wlio, upon reasonable demand, refuse.s to admini.ster the same, {]>) 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 the cast of prosecution, [q) 29-30 V. c. 51, s. 18G. Division VIII. -Salaries and Tenure of Office. Sec. 219. if not otherwise settled. Council to fix. Tenure till removal. Sec. 220. Gratuities to. Sec. 221. 2lJ>, In case the remuneration of any of the officei-s of officers. the Municipality (r) has not been settled by Act of the iuformation ( TliP King v. Wootb-oio, 2 T. R. 731 ; The Kitnj v. Leyland, 3 M. & S. 180), or maiulamus [The. Kin;/ v. Whitwdl, 5 T. II. 85; The King V. Buwir, 1 B. & C. •'585), in the iliacretiou of the Court. ( The King V. dro.'i'-enor, 2 Str. 1193; The Queen v. Humjerford, 11 Mod. 1-12.) (o) Casual information is not sufficient. Before an elected officer can be visited with licavy penalties, imposed for neglecting to accept his office, lie must have regular notice of his own election, either by being actu.illy present when it is ann(junce(l, or being ajiprised of the fact by some official authority. (Per Demnan, (.'. J., in The Queen V. Preece, 5 Q. B. 97; sec also London v. Vanacre, 1 Salk. 142.) (//) It 13 believed that +^i administering of the declaration ia purely a ministerial act. out it has been held that tlie person administering it S'i far acquiesces as to disentitle himself to bo a relator in proceedings to set aside the election. (The Queen v. Greene, 2 Q. B. 4G0.) ('/) This section does not declare that the payment of the fine Bhall 1)0 in lieu of service. Mere payment of tlie tine is not any excuse for U'^'i- acceptance of the office. (See The King v. Bower, I B. & C. 585, and The Queen ex ret. BhudeH v. lioches'tcr. 7 U. C. L. J. 101 ; see also The Queen v. Dul.vn, lb. 71.) (r) Under a power to remunerate all "township ojjicer.f," it was held that Municipal Councillors had no autliority to remunerate themselves. (In re Wright and Cormcnll, 9 U. (.'. Q. B. 442; Daniels V. liurford, 10 U. C. Q. B. 478. ) And it was made a ([uestion whether tlie Warden of a County, or Mayor of a City, is to be deemed an officer, so as to be entitled to remuneration as such. (The Queen v. Qore, 5 U.C. Q.B. 357; In re McLean and Cornwall, 31 U. C. Q. B. 814.) But now, such questions are to some extent set at rest; for the Council of every Township and County may pass By-laws for paying the members of the Council for their attendance in Council (pec. 172), and so the Council of every City, Town or Incorporated 158 THE MUNICIPAL MANUAL. [S. 219. Ijegislature, (s) the Council shall settle the same ; (t) and the Council shall provide for the payment of all Municipal oflScers, wliother the remuneration is settled by statute or by Village may pass By-laws for payment to the Mayor of such annual Bum or other remuneration as the Council sees tit. {.Sec. 173.) (,'?) Where a Municii)al Council, in 1 850, i^assed a vote assigning to the Clerk of the Peace a fixed salary for that year ' ' in lieu of aU fees," it was held that this did not debar him from claiming fees allowed ]>y the Jury Act, 1.3 & 14 Vic. cap. 5."), which was passed subsequently in the same year, {Pruxjle v. McDonald, 10 U. C. Q. B. 254.) General powers to a Corporation to fix the compensation of its ofliccrs, does not authorize it to take away the fees of an oHicer 3I)ecifically fixed by their Charter or Act of Incorporation. [Carr V. A'<. Louis, 9 Mo. 190.) So, if the Legisl.iture provide that one board shall fix the remuneration of Corporation officers, it is not competent for another board to do so. {Ptople v. Auditors o/Mayne, 13 Mich. 233.) (t) Municiiial officers are not entitled to compensation unless the riglit to compensation is expressly given by statute, bydaw, resolu- tion or contract. {Jones v. Canitart/wn, 8 M. & W. G05. Thomas V. Swansea, 2 Dowl. N. S. 470; TheQueenv. Fresf, IG Q. B. 32; Sikes V. lla'field, 13 Gray, 347; Barton v. New Orleans, 10 La. An. 317; Garniiry. St. Louis, 37 Mo. 554; see also i?aA-e?- v. Utica, 19N.Y. .326; People V. Su])erviso7's. 1 Hill, 302; Cumminfi v. Brool'h/n, 11 Paige, 696; Jersei/ v. Quaif'e, 2 Dutch (N.Y. ) 03; Andrews v. United States, 2 Story (C. C), 202 ; United States v. Brown, 9 How. 487; Barton v. New Orleans, 10 La. An. 395; Smith v. Commonwealt/i, 41 Pa. St. 335; McVlung v. St. Paul, 14 Min. 420; Boi/don v. Brookline, 8 Ver. 284; /^(niijdon v. Castleton, 30 Ver. 285.) And where provision is made for their remunei'ation by salary, they have no claim for com- pensation, extra tlie salary, for services alleged to he. outside of their official duties {Andrews v. United States, 2 Story (C. C), 202 ; Palmer V. New York, 2 Sand. (X. Y.) 318; Oil more v. Lewis, 12 t)hio, 281; Bossier V. Prai/, 7 Serg. & Kawle, 447; see also People v. Super- visors, I Hill. '(N. Y.) .302; Wendrll v. Brooklyn, 29 Barb. 204; Evans V. Trenton, 4 Zabr. (\. J.) 704; but sec People y. Supervisors, 12 Wend. 257; Mallory v. Supervisijrs, 2 Cowen, 531, Ih. 533; Briijld V. Supervisors, 18 Johns. 242; White v. Polk Cuuntij, 17 Iowa, 413; Carroll v. St. Louis, 12 Mo. 444), and for tins reason it has been held that a promise to pay extra the sum fixed by By- lav/ or regulation on the subject, is not binding, tliough greater services have been rendered than could have been legally exacted {Hatch V. Mann, 15 W^end. 44; Batho \. Salter, Latch, 54; Jjane V. Sewell, 1 Chit. 175; Dew v. Parsons, lb. 295; Morris x. Jiurdett, 1 Camp. 218, 3 liilkev. JTavelock, 3 Camp. 374; Oalhujan v. Ifallrtf, 1 Caines. (N. Y.) 104; I'reston v. Bacon, 4 Conn. 471; Shattuck v. Woods, 1 Pick. 175; B ussier v. Praij, 7 Serg. & Rawle. 447; Smith V. Smith, I Bailey, 70; Carroll v. Tyler, 2 Har. & Gill. 54; JJeholt v. Cincinatti, 7 Ohio St. 237 ; PHic v. New Orleans, 19 La. An. 273), and, indeed, in the interest of the public the rule has been carried 80 far as to prevent a Municipal officer recovering a reward for a service embraced within liis official duties, such as the capture of a thief by a Constable. (Cilmore v. Lewis, 12 Ohio, 281 ; Pool v. s. 219.] APPOINTMENT OP OFFICERS. 159 Mode of :il'jioiut- By-law of the Council, find no Municipal Council sliall assume to make any appointment to office, or any arrange- ment for the discharge of the duties thereof, by tender, or to "" "t- applicants at the lowest remuneration, (u) 29-30 V. c. 51, 8. 17G. Boston, 5 Cush. 219.) Salaries, when voted, slioidd be given as Balarics, and not as acts of grace or mere rewards for merit. (//) re McLean and Cornwall, 31 V. C. Q. B. 314; /fi.--l(]> v. Sarraimnto, 2 Cal. 580; Sviltli v. ('ommonivoallh, 41 Pa. St. 33,'); Dcvoij \. Xiw York, 39 Barb. 109; Bladm v. PhUadelphia, GO Pa. St. 404; PhUa- delphUiv. Given, lb. 130.) Bydaws fixing salaries are not, per Sf, to be looked upon as contracts. (Caninwnicealth v. Bacon, Serg. & Rawle. 322; liarbrv. Plttsfiiiri/, 4 Pa St. 49; Vniversifi/v. Wa/den, 15 Ala. 055; Carrv. St. LoHi--<, 9 Mo. 190; Coninionnvn/t/i v. Mann, 5 W. & S. (Pa.) 418- Madison v. Kelso, 32 Ind. 79; Sn^it/i v. ''i)unty, 2 Par. (Pa.) 293; Conner v. New York, 1 Seld. 285; Warner v. People, 2 Denio. 272; lova v. Foster, 10 Iowa, 189; Waldracen v. Memphis, 4 Coldw. (Teini.) 431 ; Hohoken v. Gear, 3 Dutch. (N. J.) 205; but see C/inae v. Loivell, 7 Gray, 33; Carerley v. Lovell, I Allen (Mas.s.) 289; JPustnnd v. New Orleans, 14 La. An. 330.) 1'ho Corporation may indemnify its own officers in matters in wiiifli tho Corporation is interested. {Pikev. Middleton, 12N. H. 278; Jiriipjs V. Wliipjile, Vt. 95; Bancroft v. Lynnlield, 18 Pick. aliO ; BidJntt v. Saroi/, 3 Cush. 530; Nelson v. Milfonl,! Vick. 18; JIasdellv. /lancock, Sfiray, 520; Patje v. Frankford, 9 Greenl. 115; Baker v. Windham, 3 Maine, 74. ) It is otherwise where the Corporation is not interested or concerned in tlie matter involved. ( Ifalstead v. New York, 3 Comst. 430 ; Morris v. People, 3 Denio. 381 ; People v. Lavrenre, Hill. 244 ; Bank v. Supervisors, 5 Denio. 517; Merrill v. Planijteld, 45 N. H. 120; Vincent v. Nantucket, 12 Cush. 103; Pike v. Middhton, 12 N. H. 281.) An indemnity to an oflicer for lairful acts gives him no claim for compensation against the consequences of unlawful acts. (lituuLN. Mariposa, 22 U.C. (J. P. 307. ) An agreement by a Corporation wdtb one of its otHcers for an increase of the salary of an olKce retained ])y him as compensation for tlie loss of an otiice of m hich he was deprived, is not binding unless under tlie seal of the ' nrpo- ration. (The Queen v. Stamford, Q. B. 433; see also Ce v. Thames, d-c., Dock and linilroad Comjuini/, 3 Ex. 841.) So the appointment of a Corporation Solicitor should lie under the Coi'pora- tion seal. (Arnold v. Poole, 4 M. & (i. 800.) 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 solieitin'. (The Kiwjv. Sankeu, 5 A. & E. 423.) (n) The lowest tender is not alwaj-s the most satisfactory for acceptance ; and so nuieh has this been found the ease in the manage- ment of Municipal affairs, that the Legislature has been compelled to interfere, and make the tleelaration that "No Municipal Council shall assume, to make nni/ apjiointment to office, or ain/ arranyement for the discharge of the duties thereof, by tender," &c. Poor jtay, poor service, is gtmerally the rule, (iood servants are deserving of f;ood pay; and good pay to good scrvauta will, in tlie iong run, be ouud to be true economy. 'Y,y 160 THE MUNICIPAL MANUAL. [ss. 220, 221. 230. All officers appointod by a Council shall hold office until removed by the Council, (a) and shall, in addition to the duties assigned to them in this Act, i)erform all other duties required of them bv any other statute, or by the By- laws of the Council. {!>) "SO-IJO V. c. 51, s. 177. 1i*ii. Any Municipal Council, other than a Provisional Council, may grant to any officer who has been in the ser- irtaiu cases yice of the Municii)ality for at least twenty years, and who has, while in such service, V)ecome incapable through old age of efficiently discharging the duties of his office, a sum not exceeding his aggn^gate salary or other remuneration for the last three years of his service, as a gratuity, upon his removal Tiintire of office. initios A gratuity may l)e given in or resignation. (c) New. (a) This section applies to all officers appointed by the Council, no matter what their rank, condition or duties. Their tenure ia in eficct (luring the pleasure of the Council. The declaration that they are to hold oHice "until removed by the Council," impliedly autho- rises tlie Council to remove them at any time— in other words, at the pleasure of the Council. Unless, at all events, there he an appointment at a yearly salary under the corporate seal, or other appointment from which a yearly hiring must be inferred, there will be no holding except during the pleasure of the Council. (See In re Macplicrson and Bccman, 17 U. C. Q. B. 99; Bcverlei/ v. Barton, 10 U. C. C. P. 178; BroiKjhtonv. Brantford. 19 U. C. C. P. 434; see furtlier, Hammond v. McLay, '28 U. C. Q. B. 463.) A person, there- fore, wlio enters into the employment of a Municipal Corporation, must be taken to do so with the fullest knowledge of his depen- dence on the pleasure either of the present or every future Council. (Jlickcij V. Jicn/rew, 20 U. C. C. P. 429. ) In such a case it is in the power of the Council to remove without notice or hearing. (See Ba<]i)\^ Caw, 11 Coke, 98(/*); The.Khitjv. Coventry, 1 Ld. Rayd. 391; Oaskina' Case, 8 T. 11. 209 ; The Kimj v. Oxon, 2 Salk. 428 ; The Khitj V. Mayor, Ac, 1 Lev. 291 ; The Kimjv. Andover, 1 Ld. Ilayd. 710; Field v. Commonwealth, 32 Pa. St, 478; Ex parte Jfennen, 13 Pet. U. S. 230 ; Hohoken v. Gear, 3 Dutch. 265 ; Madison v. Kelso, 32 Ind. 79; Stadler v. Detroit, 13 Mich. 346.) (b) This provision is made for a twofold purpose : 1. To prevent the discharge of sureties by the imposition of addi- tional duties. (See note r to sec. 195.) 2. To prevent claims being made or sustained for extra pay. (See note t to sec. 219.) (c) As Municipal officers hold office until removed (sec. 220), a removal may be had for any cause, or without cause. (See note a to sec- 220.) If the power of removal were only for cause, old age would not be good cause. (Bac. Abr. Corp. E. 9; Hazard's Case, 2 RoUe, 11.) But as the holding is different, an old servant might be dismissed simply because old and worn out in the service. Ia such a case, before the passing of the present Act, there was no power to grant a gratuity. (See note r to sec. 219.) The policy of enabling Municipal Corporations to make gratuities to servants is a 222.] JUUISDICTION OF COUN'CILS. Kil |i- PAJIT VI. GEXEKAl- riUn'ISloXS AIM'IJCABLE TO ALL ML'MCll'ALrriKS. Trrr.E I. — (!i:neu.\l .IriiisiuciiDN of Councils. Tiri.K II. - IlKSJ'KCriNO liY-I,.V\\H. Trn.K IIL — Hespixtinu Finance. Tni.K IV. .\KIilTI!ATIOS. Title V. — DKiiKMinKs an'u othki! Instutiments. Title VI. — Ai>MiM.sriiATiuN of JusTiCE asd JuinciAL i'U<)CEi;i>IN(i.S. TITLE I.-(JENERAL JURISDICTION OF COUNCILS. Division I.- -Nattke and Extknt. Coufiixul- to J/"' ■ 'ipaJ.ity. Sec. 222. (jleneyal J^e(julfiti(nin. Sec. 22-3. Muji not ijni/U MoiHipoUcs. Sec. 22Jf.. Except as to F(:rri(!<. Sec. 2.'.'). 2*»*J. Tlic jiii-isiliotiou of every Council ('/) sliiU bo con- ,Tumdii-t;.>!, fined to the Municipality tlio Council ri'prc.sent;-!, oxcept "'^ <""'"•'' dou1)ti'ul Olio. This section is meroly cKperi mental, ami the power iutcinloil to be confeiTcd by it can only be exorcised in the case of an otliccr — 1. Who lias been in the service of tlie Municipaht}' for at least twenty years ; 2. And will) has, while in such service, ijoconie incapable, through old iige, of ellicieiitly diseliargi.ig the (hities of the otiice. Service for any period less than twenty years, or incapacity from any other cause than old age, gives no riglit to the e.\ercise of tlie poM'or. Tlie amount of tlie gratuity, whicii is to Ije paid in liulk, must lie a sum "not exceeding his aggregate s:dary, or other remu- ueratiipii, fur the la:^t three veais. ' The gratuity is only to be paid on removal or resignation, j, he decision as to a gratuity, when made under the circuuistances and within the limits preserihed, will not he subject to be reviewed liy any Court, (/o: Th.- (Jicfii v. ShikIicicIi, 2Q.118'.).'), s. e. liiJ-Jrror, KKJ. B. 'AYA.) There is adistinetion between a gratuity and annuity. ISeedWAso// v. Eti.- ; Juiu-'i v. £(ist Jm/hi Co. 11 C. B. Sol ; Marr/iant v. Lir Cunsn-ran'-// Bwinl, L. II. y Ex. 290. {d) The word "jurisdiction" is here used in the sense of power. Munici])al (Corporations are tiic ereatuies of tlie Legi'^lature. "They can exercise no powers but tiioso wliieh are eoiifei'red upon them by the Act uniler which tliey are constitutetl, (U- such as are necessary to the exercise of their corporate powers, the performance of their corporate duties, and the accomplishment of the inirpose of their association. Tdiis principle is derived from the nature of ( 'orpora- tions, tlie mode in which they are organi/A'd, and in which their ati'airs must bo conducted. In aggregate Cor^iorations, as a general II 102 THE MUNICIPAL MANUAL. [s. 900 wliore authority beyond the sume is expressly given, (e) and nilc, tlie act and will of the luajnrity is dotiiiiMl in law tlic act and ■will nf tliu whole, or as the act of one ( 'orpoiatu liody ; tlic conae- qiicnco is that a minority must })o bound not only without but against their consent. Such an oblif;ation may extend to every onerous duty, to pay money to an nidimiteil amount, to peiform servici's, to suncnder lands and the like. It is olivioiis, therefore, that if this liahility were to extend to niiHiiiitdl and hidijiniti' olijeeta, the citi/en, by heini; a uivmher of a ('orporation, '■night lie de[irived of his mowt \alual)le pirsoual rights and lil)erties. 'i'lie security against this danger is in a steady adiierenco to the princijile .stated, viz., th.at Corporations can only exercise their power over their respective meiid)e)H for tiie accomplishment of limite/urd, 17 I'iek. 2~'A; Vuinnuniu'i'itiik v. Tunur, 1 ('e.sli. 41(.S; Coul/i/ v. lUraiivilli', lOCusli. 50; Mi-rriam \. M()o.'{; Lul'tuiitte V. Cox, 5 lud. ,S8; Miiifuriiv. Liii-kc, 2.'5 How. 43"); J'ttiitv. S/uutflcj/, 5 Kansas, r>2i'); Viiict'iit \. Xtmtiirht, 12 Cash. 103; Voiiniiix^ionci'.t V. Mii/hch, 7 Ohio St. 10!»; (.'ti/rm Co. v. lful<-n„il; Ih. 2.S2 ; F'llch v. Piurl.'iinl, 4 Seam. 7S ; (V/A/*'v// v. Alton, o.S 111. 41t) ; Tni.- I'ort. (Ala.)27!>; St^itc Bmiky. Or/ntus JS'aiK Co., ,3 La. An. 2iJ4; Ihitd v. Iti.'nirdiiri- Co., 2 (Jraneh. 1(58; 7> Jtu-^tt'i/ v. Dnris, V^i La. An. 4(58; Pcojilc v. Bank, I Doug. (Mich.) 282; Cit'ij Coiinrllv. Plank- h'oa; Ex part" BnriK tt,,'M) Ahi. 4{'>i ; LiCoiitciil.rv. Jiiirfhlo,:V,i^.\'.XV,i; People V. J.'cllnnul Co., 12 Midi. ;{«!•; /'< t>i:iir/or V. yitHlr, ,'! Ala. 1:^7; //arris v. Jntciidavt, 28 Ala. 577; Intcndant v. Chandlir, Ala. SOU; Clark v. Dan-nport, 14 Iowa, 41*5; Xiclwlv. Mai/or, urpo3C3 by the County Council ; but the right of a Township Council to tax 8. 000 ] JUniSDK'TIOK or COUNCILS. 163 the powers of tlio ('oiiucil sliiiU be cxcivisod }>y I')y-liiw (/') yrhi'M not otlicrwise authorizoJ or 2)i"ovitled tbi\ {(j) L"J 30 V. c. 51, s. IIM). itself in aid of the County is limited. It would seem that a Town- ship) Cnunoil has no i'i<,'ht voluiitafily to pasy a l>\-law iiii|pui-i!i;,' a ■ i;] r. C. (.>. B. I'.vd, rate in aid of a Cnuntv raU [F/i /<■/„,■ V. Kin>h r_'!t.) So tlie ii;^'ht of a Townshi|t ( ouiicil to pass a iw 111 au I of the cost of a sehodldiouse ordered by tlie County Conned is douhtfid. [Kcnncdii v. Snndirh'h, !) V. C. Q. B. 320.) A Town- shi]> llydaw was i(uashei-V,\.\\ or Ili/e-hiw may he delined as heing the law of the iuliahitauts of some Corporate place or district, as ilistinguished fmni tlie general laA\- of the Province in whicli the Municiiiality if situate. A Bydaw is a rule obligatory over a jiartieuhir distrir-t, not being at variance with the general laMs, and being reasonat>ly adapted to the pur[ioses of the Cor|>ora- tion. {do.'^liini V. \'r/,i/ it III, HI L. J. (). J5. N. S. lii").) A Bydaw has the same force, within the limits of the Munieip.-dity, and v.ith respect to the persons upon whom it law fully ooci-ates, as an Act of I'arlianieiit has upon the i)eo])le at large. {IIi>/ikiii/< v. .S'HV'//wfi, 4 M. & W. G'21; see also T/i<' Qii'-'it v. Usln; 32 U. C. (,>. H. o24; Hiilamlv. Loirell, .3 Allen, 4(17 ; Pn-.^tniicnan Church v. Xi ic Yurk, 5 Cow. il.SS; St. Loali v. B<)(}'uu/tr, 19 Mo. 18; Mr])triiwtt v. Ilnurd of PnHc, -) Abb. Pr. 422; Tai/lor v. CunwIrUl, 22 .Mo. lOo; Jjukvr V. /'ortliiiiJ, 10 Am. Law Beg. N. 8. o,"!).) The Courts, upon gener.d principles, reeogeize judicially what Municipal ( 'ouneils are comiicteut to do, and hold that it is not nocessary for them to recite in a Bydaw all that is re([uisite to show that they luiA'e proceeded regularly in jiassing it. (G'rier.-«m v. Ontario, 9 U. C. tj. B. 02.'1; FiKhrr V. ViKiijhan, \0 Vi . C. Q. B. 492; see further. The K'ui'j v. Hiirrt.^iDi, 3 Burr. 1328; Roinan ditholic Chiinh y. Balliiiiorr, (i GiU (Md.), 394; Sliu/riyfitiit v. Xew York, 7 Cow. 588.) (;/) It is a common belief tliat a Municiiial boily can ilo by resolu- tion whateN'cr may he done by By-law. Nothing can be more erroneous, or uiurc tend to the insecurity of Municipal govern- 164 TUE MUNICIPAL MANUAL. [s. 223. Gem^rnl 'oci- fDiiko rogu- ticitlly |iioviy this Act, and not (Contrary to law, for liitiuii«; govci-nin;^ llie id'ocofdiiigs of tlii^ Council, the cuniltict of its Til iv|ioai, members, the appointing or callini^ of K])ecial meetiuji^'s of the liy-lii'w's. ' Council, and i^encrally such othci' reLfulatioiis as the ^ood of tlifc inhahitauts of the Municipality re(iuires, (i) and may incut. (See 7'/ii' (Jin < n rj- rcl. All( inn'uKj v. ZnKjir, 1 I'nu;. It. 219.) Tliu general luineiple known to the eomnidn law is that a C'orjiO- latiou can oiily act through its seal, and the exi)re,HS declaration of the Legislature here is that "the jiowers of the (.'muieil .■'/utU be exercised l>y iJydaw v.'hen not ol/nriciir authorized or pro- vided for." Hut auiont; peoiile generally, and anmng tliat class eo!iii"i.-ing Muiucipal ('nuneils jKirtieularly, there is a (hslike of fornudity, and, in CDnsfnuenee, thi' ten fre([Uent alianddiniient of Bydaws foi' mere ui'ders or re.solutiims. ZSow, the [TDceedings of a Munieifial (^ouneil that may Ijc lawfully had by order or resolution, are comparatively few and unimp-ortant. A Bydaw should not be disp'jnsed with iude.-;s in a vury clear case. In faet, wlienever a Municipal Council is in doubt whether it can . 0(17.) An order or resolution duly signed and scaled is viitiiiUy a By-law; but many orders and resolutions jiass by mere vote, witliout being thus authenticated. 1'lie Mun:ei]>al lulcs of proceeding generally rcnuire more formal steps to be taivcn in passing a Bydaw than in a(h)pting an iirder or resolution. ' Muni- cipal Corporations, hovv'ever, may become liable as wrong-doers for things done bv direction of the Councils without 15y-la\vs. {Cruff v. P,'hrh„rnii;//>^nV.C.C.F. 80; Kcrill y. mm, 22U.C.C.P. 487.) "The power to makc^ By-law,s necessarily supjxiscs the power to enforce them by pecuniary penalties, comiietcnt and proportionable to the oti'ence. (See sec. ;^7'-, suit. 11.) In construing a l>y-law, iSic, the Ciuo't will look at the wliole of it, to ascertain its meaning, and construt! one [);irt vicii ..Tiother or otlier parts, so as, if possible, to give full cfVect to the wliole. (In re Caiiwron and Eiitit Si'^ixunri, 13 U. C. Q. B. 1110.) (h) The word "regnlati(ms" maj'' be used in a general sense as laws, or in a particular sense as informal resolutions. (See J)i rr Snitll and Bcll>nlli-, 30 U. C. Q. B. 81.) It is not clear iu which sense the word is here used. (() The regulations may be for the following juirftoses : 1. The governing of tlie proceedings of the Council. 2. The c(mdnct of its members. 3. Appoiutijjg special meetings of the Council. 8. 223.] POWERS OF COUNCILS TO MAKE KECiULATIONS. 165 4. For calling such mcetiugs. Anil generally audi other regulations as the good of the inhabitants requires. Pruvi'lcfl the regulations be not contrary to law. It is a principle applicable to every regulation of a Municipal Corporation, first, that it be not contrary to the .Nhmicipal A.;t.s or law authorizing the formatiDU of tiie C'orporatiim, and, secondly, that it be not contrary to the general law of the land. Fir.4— The regulations of the Municipal Council must not be incon- sistent with the Municipal Acts, for these Acts create it an artilicial being, iiuj^art to it its power, designate its object, and prescribe its mode of oi)cration : they are in short the constitution of the Corpo- ration. Hence all laws in contravention of them arc void. "The true test of all By-laws," says Mr. Justice "Wilniot, "is the inten- tion of the Crown in granting the charter, and the ajiparent good of the Corporation." ('J'/h' Kiiitj v. S/inirrr, 'A Burr. 1888.) So of a Municipal Council ; it may be said that the true test of a By-law is tlie intention of the Legislature in incorporating tlie Council, and the apparent good of the Municipality afleetcd. ^Ir. Justice Yates, in tlie same case, said, "Corporations cannot make By-laws contrary to their constitution. If they do so, they act without authority." (Ih. at p. 1839; but see "The Case of Corp(frati(ms,"4 Co. 11. 77, 78.) As transcending the Municipal Acts, By-Laws creating a new ottice, imposing an oath of oflice where none is required by the Acts, giving a vote to a class of persons not entitled to vote ])y law, qualifying persons to be candidates not qualified by the Acts, giving a casting vote to an officer not entitled to it by the Acts, restricting or extend- ing the right of admission or eligibility to office, altering the pre- scribed mode of election, or imposing new or additional tests or qualifications either on members or voters, woidd be void. (See Angell & Ames on Corporations, .345 ; see also 'f/ic Khuj v. Mi/lo; 6T. II. 277; 7'/i>' Khuj v. liarhcr Si(r.) The case was decided on the ground that the legislative power of the Corporation over this subject was delegated to it for the ijood of the, C'Uij, and IM' THE MUNICIPAL MANUAL. [«. 224. repeal, alter and amend its T3y-la\vs, save as Ly this Act restncted. (k) 29-00 V. c. ni, s. 191. GraiitinK 'ii*Z4, No Council shall have the power to give any |)erson priK'tlT ^^^ exclusive right of exercising within the Municipality any that the Ry-law passed was 1)C to regarded as if passed ])y the Legis- lature; that no person is entitled to use his property so as to injure anotlier, and that no covenant could ^'ivo him jiower so to (hi, even though made with tiie Corporation; since, as tending to eontr(d and emharrass tiie exercise of its important powers as a iDcal Lcifislitturey the covenant, when it came in competition witli them, must give way or was repealed. (//^.) The legislative power of a Corporation is not only restricted l)y tlie statute law, but hy the general principles and policy of the common law. Indeed, whenever a Uy-law seeks to alter a well-settled and fundanumtal jjrincipleof the cimimou law, or to establish a rule interfering with the rights or endangering the security of individuals or the public, a statute or other special autho- rity emanating fnmi the creating power must be shown to legalize it, either expressly or l)y implication. It is upon this jjrinciplc that, though many By-laws passed by the ancient Municipal Corjiorationa in England for the rcijulntiun of trade have been adjudged good, yet many were adjudged void as in rvstrdint of trade and an oppression of the subject. (See sec. 224 and notes ; see further, Co/fins v. Jfatchy 18 Ohio, 523; JMiertN wOijIc, 30 111. 459; Adaim v. Mayur, 29neo. 66; SUl V. Corninq, 1 E. P. Smith, (N.Y.)297; Clnchmad v. (hctjnney 10 Ohio, 192; Wood v. lirookbjn, 14 Barb. 425; Markle v. Akron, 14 Ohio, 580; IladdlcKton v. Ihijj'in, G Ohio St. 004; lioyers v. Jones, 1 Wend. 237; Marhttax. Fcarinij, 4 Ohio, 427.) (k) It need hardly be mentioned that the Municipal body which has power to make has power to repeal By-laws; it being of the very nature of legislative jiower that, l)y timely changes in the rule it prescril)es, it shoukl lie enabled to meet tiie exigencies of the occasion. {T/ie Klmj v. Bird, 13 East. 3t)7; Bloomer v. St(dle.y, 5 McLean, 158.) llepeals cannot be made to operate retrospectively to tiie prejudice of vested rights. [The Kimj v. As/iu\l/, 12 Ivast. 22 ; Slate v. Citi/ Chrk, 7 Ohio St. 355 ; Sfod'dnrd v. Oilwaii, 22 Vt. 5GS; Pond v. Xcijus et al, 3 Mass. 230; Man/land ex rcl. MciUUan V. iirarex, 19 Md. 351; BUjcloww. Il'dlniaii vt al, 37 Maine, 52; Beiff v. Conner, 5 F]ng. (Ark.) 241; Roadln Aiujiista, 17 Pa. St. 71); unless for the purjiose of abating an actual nuisance, or something of that character. {Xew Orleans v. St.. Loui-'i Clnirrli, 1 1 La. An. 244; Musijrove V. Catholic Clitirrh, 10 La. An. 431.) The power does not extend to all By-laws. There are certain By-laws, such as those authorizing the issue of debentures, &c., upon the faith of which third persons act and cliange their circumstances, and from which the Alunici- pality in general derives an immediate hcnelit — these being in the nature of securities, rather than ordinary regulations, cannot be repealed until the loan or debt arising thereout or dependent there- upon is satislied. (Sec. 254.) Hence it is that in the section here annotated the power given is to repeal, alter or amend By-laws, is general, "save as is by this Act restricted." See further, In re Cunnmjhum v. Almonte,''l\ U. C. C. P. 459.) 6. 224.] CREATION OF MONOPOLIES. rade or calling, (l) or to impose a special tax on any pei-son (/) Monopolies arc odious to the law. A nioiK)poly is when tho sale of any mcrehandizo or commodity is restrained to one or to a certain number (11 Co. 80), and has three inseparable oouseciuents — the increase of tlie price, the ba/ Cuioicll v. yl//rf'/(.s', 4 Strob. S. Car. 241 ; Chnrhnloii v. Bapll-it Churcli, Ih. 800; l\una v. Calhoun, 29 111. .S17; -SV. I'aid V. Cuitlti't; 12 Minn. 41 ; see further, note to sub. 14 of see. 372.) It is sometimes difiicult to determine when a By-law is in restraint of trade, and when it is a mere regulation of tr.ade. The former is illegal ; the latter legal. The following have been held to be mere regulations and so valid : That no butcher or other person should, within the walls of the city, slaughter any beast, &c., to forfeit, &c. (Pli'rre v. liartruin, Cowji. '209.) That no butcher or other person ehould keep any swine within the walls of the city, upon pain, &c. (H>.) That no commoner shouhl keep any sheej) in the bounds below the weir, under the pain, &c. {Jidhis v. Tittin'ii, C!ro. (Jar. 497.) That none of the C!ompany of Silk Throwsters should have above such a number of sjjiuillcs in one week. {Firemindlf v. The Company of S'Ulc Throwfitcrfi, 1 Lev. 229. ) And/xrCur. " This is not a monopoly, but a restraint of a monopoly, that none might ingross the whole trade, being rather to provide for an eipiality of trade, according to what is convenient au8; Firv Prpar/nti >it v. HelfriisUhi, lb. i;«>; A.-^k v. Pvnph, 11 Mich. Ml; Cltilrrr-t v. Peo}ili\ lb., 4,"}. ) Hy-lawa requiring a liconso fee so heavy as to amount to a proiuhition are to ho considered in restraint of trade. MohUf V. YtiilU', W Ala. i;}7.) (o) Tho import of these words deserves special attenti^hit, 24 Ala. 398; Conner v. Xew AUmny, 1 Blaekf. (Ind,) 43; Cit>i v. Fer>-i) Co. 27 Ind. 100; ShaUcro.i.s v. Jefer^-ioncille, 20 Ind. 193; DtirkiraU v. New Athnny, 2") Ind. 283; /farrison v. State, 9 Mo. 526.) By-laws as to Ferries r&iuire the sanction of the Governor in Council. (See note to to sub. 4 of sec. 383.) (r) See note k to sec. 7. (.s) ' ' Ferries between a Province and any British or foreign coun- iry, or l)etween two Provinces," are subject to the exclusive legisla- tive authority of the Parliament of Canada. (B. N. Act. s. 91, sub. 13.) ((7) Tlie formalities prescribed in this section are indispensable. The liy-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 Brou/ce, if U. C, Q. B. 209; see also, In re Mottaslied and ss. 227, 228.] PROOF OF BY-LAWS. 171 %*i7. A coj)y of uuy By-law written or printod without Proof or. erasure or interlineation, and under the seal of the Corpora- tion, and certified to be a true copy by the Clerk, and by any inem])er of tlie Council, sliall l)e deemed authentic, and be recc(i\ed in e^itlence in any Court of Justice witliout proof of the seal or si) unless it is specially pleaded or alleged that tlie seal, or one or both, of the signa- tures have been forged. 2t)-3U V. o. 51, s. 193. 228. The facts required by this Act to be recited in any J|?.',',^J^'" , By-hiw which requires the approval of the (iovernor in asstntof thr Goveruor. Prince Edward, .SO U. C Q. B. 74.) Signature under this section would seem to })e as essential as seal. (See lihuichitrd v. Biss, //, 11 Ohio St. t»(); see also, Sfafc v. Xcirari; 1 Dutch N. J. IW.).) Where the head of tlu; Corporation, either from caprice orol).stinacy, refuses to do his duty in passing a By-law which is re(iuired for the heneiit of his township or a part of it, it would seem that the remaining members of the Council would bo justified in recpiiring another member of the Council to take the chair, and do that which the bead of the Council perversely refuses to do. iPrcftan ainl Mann rs, 21 U. t". Q. B. (i'JO; see further, Jirork v. Toronto and Xijiiii'tng BaUicai/ Co. 17 (irant, 42").) No action can ])e sustained, as for a breach of duty, against the head of a Munici2)al Corporation for not applying the seal to make a contract between the ( 'orporatiini and the i)laintitt', founded up' n a refusal, which, if there had been a previous contract, would (lave constituted a breach of it. Tliero cannot be a remedy against the head of the Corporation e(iuivalent to a remedy on the contract against tlie Corjioration itself, had the contract been duly made, so as to make a valid contract where there is none. {Fair v. Moore, 3 U. O. C. P. 484.) By-laws of J'olico Conmiissioners need not be sealed. (See sec. 3.%.) [J)) In the absence of some provision of this kind, it Mould in general be necessary, in order to prove a By-law, to produce and prove the original By-law. (Sec Ji'e Tfietford, 12 Vin. Abr. 00; Ltimhard V. Aldrlch, 8 N. H. 31; Sterenn v. Clilrnrfo, 48 111. 408; Moor V. Xewji'ld, 4 (ireenl. 44; Halkncell and Aiu/u.sta Bank v. Hamlin, 14 Mass. 178.) A eoi^y is, under this section, made evidence in any Court of Justice witliout proof of seal or signatures when 1. Without erasure or interlineation. 2. Under the seal («f the Corporation. 3. And certihed 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 oidy necessary to produce a copy, eci tilled under tlie hand of the ( 'I,:rk alone, and u ler the Corporate seal, together with an atlidavit of the party applying, that the copy was received from tiic Clerk. (Sec. 240.) The latter section is framed for a special purpoi^o, while the section here annotated is meant to provide generally for all cases, [Per Draper, C. J., in fn re The Hoard of iichoul Tninlces and Cor- poration of /Sandwich, 23 U. C. Q. B. 030.) 172 THE MUNICIPAL MANUAL. [S. 229. Council, shall, before receivinj^ such a])proval, be verified by solemn decluration, by the liead of the Council, and by the Treasurer and Clerk thereof, and by such other pei-sons and on sucli other evidence as, to the Governor in Council, satis- factoi'ily jiroves the facts so recited ; (c) or in case of the death or absence of any such IVIunicijial officer, upon the declaration of any other member of the Council whose declaration the Governor in Council may accept. 29-30 V. c. 51, s. 197. OpiKXiitlon to by-lawH, Division II. — Objections bv Ratkpaykks. When and how made. Sec. 229. When Successful. Sec. 230. 3^9. In case any person rated on the Assessment Roll of any Municipality, or of any locality therein, objects to the })assing of a By-law, the passing of which is to bo pre- ceded by the application of a certain number of the ratable inhabitants of such Municipality or place, (fZ) he shall, on {r.) This section applies only to By-laws requiring "the approval of the Governor in Coimcil." 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, tho Chamberlain or Treasurer, and tlie Clerk of the Council. 3. And by such other pi-r.iom and on such other evidence as, to the Governor in Council, satisfactorily pi'oves the facts recited. The Lieutenant-Governor acts, as it were, judicially in the matter. (See note n to sec. 120 of the Assessment Act.) (d) The right to object does not extend to tlie passing of all By-lawB, but only such as are "to ])e 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 peti- tioning the Council." The person 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 oljtaincd upon incorrect Btatements. 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 re.naining signatures do not amount to the number nor represent the amount of property necessary to the passing of tha law. In re Monfijomer;/ and lialeijli, 21 U. C. C. P. .394, where the appli- cation was to quasii a drainage By-law, Gwynne, J., said, " We are ss. 230, 2?,\.] VOTING ON BY-LAWS. 173 petitioning the Council, bo at liberty to attend in person, or Knw to b by cminsel or attornev, before the Council at the tiiiu> at m;iile which llie By-law is intended to be consiclereer nor represent the amount of property necessary to tin; passin c. Dl. s^ltained wichout fraui, 233. Firehuhlers. Sec. 232. Leasclwlders. Sec, 233. Oath of Freehohhr. SW. 2SJ^. Oath of Leaseltoldcr. Sec. 23o. C'oa /icil maid pa-si^ ichen carried. Sec. 236. *Ztii, lu case a By-law requires the assent of the electors ruiuiiT u^ _ _ . - . . nssfiitof th<' not jjrcpared to say, that if a Municipal Cennoil, in violntion of the ',||',,',i,','',V oli- ap)iaic;nt fact tliat a snllicicut nuHil>(.'r to put Ihi; ('iiiuiril in nmtidn taiiiiug thf had not putitioiicd, snch fact Ijiang niadt: appaicnt in the inaiuicr s^mif- indicated in sections I'.t-t and liT) isanic as '2'2U and '2',V<) of tiiis Act' oi the Municipal Institutions Act, should nevertheless ja'Dceud to pass a Byd;u\' imposing rates, that such a ]5y-law C(add he sustaind upon a motion, sho\\ing these facts, mii'le to qua-^h it. liut in the aliscnce of ail siiggt'stion of fraud anil all opposition to t'u; Hy law when hcfore the t'ouncil, iqion the ground taken, I tliink that a liy law which recites that a sulJieient luuuher had [i(.titioned should tie taken to l)e true, ludess, at least, the recital he clearly estahlished to be glaringly untrue, so as to afl'ord a iircsninption of fraud in tlie iiro- ceediugs of the L'ouncil." (.See further, note c to see, '2'MK) (e) The By-law should in every case he passed sulisc([uently to and conseciuent u|>on the presentation of the retpiired i»etitiou praying 174 THE MUNICIPAL MANUAL. [S. 231. of a Mnuicipality boforo tlio final passing tlipveof, (/) the following,' proceedings sluill ho taken for asciirtaining such assent, ((/) ejjccept in case.s otlierwise provided for : Tiling ami (1.) The Council shall by the By-law fix the day, hour liig'^^sbaii^ be ^'^^ place for taking the votes of tlie electors tliereon, at fixed by by- every phice in the ^Iunicii)ality at which the elections of tlie in!'niber:s of the Council or Councils therein are held, and shall also name a Returning Officer to take the votes at every such place, (h) and such day shall not bo less than three nor more than Jiv(! weeks after tlu; first publication of the pro[)osed By-law as herein providc;d for; (i) Vide '2'J-^O V. c. 51, s. 19G, sub. 1. Propospd (2.) The Council shall, before the final ])assing of the' imbUyiieii.^ proposed By-law, publish a copy thereof in soine public newspajHT piiljlished within the Municipality, or if there is no such newspa[)er, in some public newsj>aper })ul)li.shed neai'cst the Municipality, or in the County Town, the publi- cation to bo continued in at least one number of such paper the particular T\y-law to he passed, and after tlic fullest opiiortuuity given to every ratepayer to he affeeted })y the By-law to olijeet to its beiug jiassed. {I\r Uwyuiie, J., In re Morrdland Toronto, 'J2 IJ.C. C. 1\ 3liG ; see further, uote d to sec. 229.) (/) B3'-laws for creating debts not payable ia the same Miuiieipal year are hei'o iiotaljly iuteuded. (See sec. 24S and notes thereto.) (//) If thb proceedings pirscrilied })e not taken, or be not duly taken, the By-law may l)e lield invalid. (Sue liarnttt v. Ner pul)li;ii is required to bo ni!iy No. G), and direeting a rate to be levied for tlie pay- ment of the interest tliereon, liut making distinct provisions for meeting tlie principal out of tlie prolits of the sty-law', and not a mere sup]>kment to No. C, and should, tlierefore, have lieea publisl'ed before the pas.sing, and have contained the usual recitals and enactments rey-la\v No. (> Avas bad, though not moved against, for it was m>t published liefoixliaud in the form in m hich it ultimately passed. (In re Urijant and J'i/tsljurji, 13 I'. C. Q. B. Ml; but see /mr Spragge, ('.', in lirock v. T. (u'i,l N. R. Co., 17 i))sn)i y. Liifulit, \',i {'.('. V. V. 48.) All that the section hei'o annotated re([uircs i.s publication " ia Konie newspaper [)ublisiied, weekly or of tenci', in the Municipality," in conjunction Mitli the posting of the .'ly-law at "f(uu' or more of the most public places in the Municipality." Where the statute simply rc<[iiired the By-law to lie pronndgated, it was held sutlicicnt to pul)lish it in the newsjiaper in which the l>y-laws of the t'itj- were usuidly published. (^ ('/,'/ CoiDirll v. Triirhihit, 1 Nott & MeC. (South Car. ), iJlJ7.) It is not necessary that the By-law slmuld be, before jinblieation, signed and sealed, as rcipiiredniy see. -iiifi of this Act. The word "By-law" is used in the statute not merely to designate an instrument containing all that is stilted in see. '-"Jfi, but the same instrument Mhitli ia still in the hands of the Council and under cmsiileration. (Paffunl a ml Lincihi, "J-i L'. C. i.). B. Iti. ) ' Where the statute provided for alternate modes of publication, and cmjiowered the Corporation to determine Mliich mode should be adopted, it was held that publication in the mode (Ureeted by the Clerk, Avithout the intervention of the Corporation, was iusutiieient. (Uhjlij V. Bunrv., 10 Conn, 4.'}G, lb. '^i'^^.) It is not, of course, for the Court, oi. api'lieation, summarilj' to set aside a By-law for defective pu))i)„atiou. In such a case tlie Court Mill exercise iia diaeretiou, v.\d set aside or refuse to set aside the l>y-law, acconliug to circumstances. (JioiilUm and P(l< rlniruii'jh, Iti U. 0. Q. B. 3bU ; In re fiibsoit v. Bruce, 20 U. C. Q. B. 398.) 176 THK MUNICIPAL MANUAL. [S. 231. Notice. >'oll. Veiififil poll tpook In III.: lotuiiiccl. CIi;tk1.osnm up iiiiil dr- irljire ri-.siiU. placosh) tho Municipulity; (k) 29-30 V. c. 51, h. 19G, suh. 2- 37 V. c. 16, s. G. (3.) Appended to eacli copy so publislied and posted, shall be a notice signed by tho Clerk of the Council, stating that sucli copy is a true co])y of a proposed By law which will be taken into considei'ation by th(! Council after one month from the iirst jtublication in tlie ru'ws[iaper, stating the date of the first publication, and that at the hour, day and place or places lherci]i fixed tor taking the votes of the eh'ctors, the pulls will be held; (I) Vide 29-30 V. c. 51, s. 19G, sub. 3. (1.) At such (lay and hour a poll shrdl be taken, and all J ''uc'-'i thereat, and for the j)ur]iose thereof, shall be cout-ii :' lie same niannei", as nearly as may be, as at a Muaic!i/ai election; (m) 29-30 V. c. 51, s. 190, sub. 4. (5 ) Every I? '-turning Officer shall, on the diiy after the closing of .' e p .eturn his poll l)ook vei'iiied by solemn declaration muii^ Ivs Iv ,id, to the Clerk of the local .Muni- ci})ality in which th*; j)oll was taken, and in ca.se of a By-law of a County Council, tho Clerk of the local i\[uuici|»ality shall forthwith return to the Clerk of the County Council every poll book .so delivered to him; («) 29-30 V. c. 51, s. 196, sub. 5. (6.) The Clerk of the (.'oiincil which j)roposed the By-law shall add up tho number of votes for and against the same, and shall certify to the Council under his hand whether the {/:) It is to be observed that puljlication in tlie nowspai)er3 is not alone muilu sulliciout. i'ostiiig of tlie Hy-law at four or more of the most pulilic places in the Aliuuoipality is also re({uired. ( / ) The notice may be iu tlus form : Take notice, that the above is a trric copy of a proposed By-law, wliicli wiii be talteu into consideration by the (.'oiuicil nf tliis Muni- cipality after one mouth finm the first jinUlication in the (wimiiuj the ncwxpapcr), the tlate of which first puhlication was {Mdtlmj ifw day of the ivccl; iinDtfh ami ijcar], and tliat the votes of the electors of tlie said Municipality will he taken thereon at (namiiKj the place or j)laccit), ou (namlmi the day, dec), at (namim/ the hour). 1). C, Clerk. {)ii) See sec. 104. (;;) 'fhis Act is defective iu not making provision for the case of a poll hook lost, stolen or destroyed before it readies the Clerk of the Municipality. (See Con. vStat. Can. cap. 6, s. 08, as to I'arliamen- tary I'ilcctiona.) In tlie case of tlie trial of a controverted election, it has l)eeu held tliat secondary evidence miglit he received as to tlie contents of a lost poll hook. (Louiiford ('ttHe, F. & ¥, '222 ; see also Cardiijan Case, bar. & Aust. 269 ; Water/ord Case, 1 Pech. 240.) s. 232.] WHO MAY VOTE ON BY-LAWS. 177 majority liave approved or disapproved of the By-law, (o) and shall keep the same with the poll book among the records of his office, (p) 20-30 V. c. 51, s. 19G, sub. G. *Zl\^, Any person shall be entitled to vote on any By- FreohoMcrs law requinng the assent of the electors, who is a male rate- vdu' "n^ payer, and at the time of tender of the vote of the full ago by-laws. of twenty-oue years, and a natural born or naturalized (o) " The majority " here meant is apparently the majority of those wlio attended the meeting of the electors, .and not an al)solute majority of all the electora. But the dicta of learned judges on tlie point are not thoroughly consistent. In Jill/'ni. Any ratei)ayer offeiing to vote in respect of a leasehold on any such By-law, may be requii'od by the Returning Officer, or any ratepayer entitled to vote on any such By-law, (y) to make tlie following oath or affirmation, or any pai't thereof, or to the effect thereof, before his vote is recorded: — {z) That he is of the full age of twenty-one years, and is a natural born or naturalized subject of Her Majesty ; that he is a resident within the Municipality for "which the vote is taken for one month next before the vote ; that he (^ or his wife, as the case may require), is a leaseholder ■within the municipality, and the lease extends for the period of time within which the debt to be contracted, or the money to be raised, by the By-law then submitted to the ratepayers, is made payable, and that the lessee has cove- nanted in such lease to pay all Municipal taxes ; that he has not before voted on the By-law in the Township or Ward (as the case may be) in which he is voting ; that he is, according to law, entitled to vote on the said By-law ; that he has not directly or indirectly received any reward or gift, nor does he expect to receive any, for the vote which he tenders ; that he is the person named, or purporting to be named, in the list of electors (or in case of a new Munici- pality in which there has not been any Assessment Roll, then, instead of swearing to residence for one month next before the vote, and of referring to being named on the list of electors, the person offering to vote may be required to name in the oath the p)'operty in respect of which he claims to vote, and that he is a resident of such Municipality,) and no inquiries shall be made of any voter, except Avith respect to the facts specified in such oath or affirmation. 29-30 V. c. 51, ss. 77, 101, sub. 8 ; 31V. c. 30, ss. 9, 46 k 47. (y) See note w to preceding section. (2) See sec. 100, and notea thereto. ss. 236, 237.] publication of by-laws. 181 /S30. Any Ry-liiw which shall ho carriod hy a rnaiority of By-law the duly (lualilifd electors voting,' thereon, (ft) .shall, (/>) within Vntrrs t.'Vr nix weeks thereafter, bo passed hy the (Juuncil whieh sub- pus^od by mitted the same, (c) o4 V. c. 60, s. 10. Division IV. — Confihmation of. By Publication. Sec. 237. Notice. Sec. 2,iS. Consequent Vcdidity Sec. 239. 225'). Kvery promidgation of a By-law {d) shall consist PiomuiRa- in the puMicatiou, through the public press, of a true copy by-'la'ws. of the By-law, and of the siguature attesting its autlienticity, with a notice appended thereto of the time limiteil by law for a})plioations to the Courts to cpiasli the same or any part thereof; and the publication afoi'esaiil shall be in a pul)lic newspa])er published witliin the Municipality; or if there bo no such newspaper, then in tho jjuljlic news- paper ])ublishcd nearest the Municipality, or in tho County Town ; (e) and the publication shall, for the purpose afore- said, be continued in at least one number of such paper each week for three successive weeks, {g) Vide 2D-30 V. c. 51, s. 200; 37 V. c. IG, s. 7. (a) See note o to sec. 231. (6) This is obligatory. (Before 34 Vic. cap. 30, a. 10, it was in the discretion of the Municipal Council to pass or not to i)a3s a Hy-law approved by the elootors. The exercise of the legislative power of the Council was in all cases, before that statute, discretionary. In certain cases it coidd not be exercised without the diri.ct ai)proval of tho electors ; but in no case was it exercisable at the sole will of the electors. (c) As to computation of time, see note a to sec. 128. (d) Promulgation ordinarily means publication ; but it ia intended by this Act to give peculiar effect to a promulgated By-law. The notice a))pendcd to the By-law as published gives tlie time within which a; •i)licati(jn 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 form either in the By-law itself or in the time or manner of pass- ing the same, a valid By-law. (Sec. 239.) (e) See note i to sec. 231. {g) A By-law requiring the assent of tho electors must be pub- lished in aome newspaper published within the Municipality ; and if no such newspaper, in some public newspaper published nearest the Municipahty, or in the County Town. (See sec. 231, sub. 2.) 182 TUE MUNICIPAL MANUAL. [s8. 238, 239. Nfitirfi to be J'iVtIl Fcjiui of surli riotirc. 2^8, Tlio notion to be )»y)[)Oii(le(l to ovcry copy of the- By-liiw for tlio purpuse ufuiusuid, shall bo to tho eflect following: (h) " NoTrrR. — The above is a ti'ue copy of a By-law jiassed by tho Municipiil (,\)un('il of tho Township of A, in tho County of Ji, ono of tlio Unitod ( Vnmtioa of J3, C and I) {or as (he case may he), on the day of , 18 , and {u'here the approi'dl of the, Liciitoiant-Uovcrnor in Coitiiril i:t hi/ Invf rrqidred to r/irr rjfccf, to nac/i Jiy lain) ap]>vov('d l)y His Excellency the Li(!Utenant-(h)vernor in Council, on the day of , 18 ; and all persons are hereby vec pared to take notice, that any one desirous of applyini^ to have such By-law or any part thereof cpiashed, must make his applica- tion for that purpose to one of Ifer Majesty's Superior Courts of Conunon Law at Toronto, during tho term of the said Superior Courts next after the special jjromul- gation thereof by ilie ])ublication of this notice in three consecutive numbers of the following newspapers, vi/.. : (Jiere name the iieii^xpapcra la vhi'ih the jn'f'Ilcatiun is to be made) or he will be too latt^ to Ijo heard in that behalf; and take notice, that such term commences on the day of next. (/) " a. If., Township Cleric." Vide 29-30 V. c. 51, ss. 202 & 203. ^3f). In case no application to quash any By-law be made within the term next after the third ])ublication of tinioiiinito(i, such By-htw and notice as aforesaid, 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 tho same If not moved ag.'iinst within the Prnmulgation, xiTulcr this section, is made to consist of pnljlication "througli tho public pnjss." Tliis .afterwards is delined as being publication in a (i. e. an;/) public newspaper published ivifliin the Muiiieipality. Jf none sueh, tlien in t/ic i)ublic newspaper published nearest the Municipality, or iu the County Town. (fi) Wliero an Act of Parliament expnjssly provides that a thing is to be done in a given form, that form should be strictly followed. ( Warren V. Lore, 7 Dowl. 1'. C. ()U2 ; Codriiuifuii. v. Curie wis, 9 Dowl. P. C. 968.) But where the direction is that the form given, or one "to the same eifcct" or to "the effect following," shall be followed, similar strictness is not re(piired. [Baron v. Ashton, 5 Dowl. P. C. 94; Smith v. Wedderburne, 4 L». & L. 290.) (i) In the case of a By-law imposing a r.ate, the application to quash cannot be entertained after the next term of the Superior Courts of Common Law after pronmlgation. (See sec. 242. ) H. 240.] QUASIIINO DY-LAWS. IH.'l ordaiiiM, jn-oscribos or diivcts aiiytliiiicj -svitliin tlit* proper competence of the ( 'ouikmI to (ndiiiii, presoiilio or din^ct, .shall, iiot\vitlistiiii. Q. 11 .'Uit.) NV'here a freeliolder of a Township, thoiigli not a resident, applied to quash a By-law, and it was o})jected that, l)eing a non- resident, he could not do so; it was held tliat, as a freeholder of the Townshij), he had an intm-^t in all the By-laws passed by the Town- ship (Jouncil sufficient to enable him to move to ([uash any of its By-laws. (In re l)e la llniie v. Toronto, '2 U. i)li»!.s to oitlier of tlio Superior C'oui'ts of Couuiion Law, (r;) and i)roducos to tlie Court a copy of tlie By-liiw, order or resolution, ((/) certifiod undcn- tlie hand of the Clerk and under the corporate seal, (e) and shows by 621.) Acfjuiescence of the applicant cannot he properly used against him on an application to (piash a By-law proved contrary to law, wlien other interests, l)oth ])nliHc and })rivate, than tlii>rfe of tl\3 applicant- are aH'ecte, s. I!t4. (See In rr ])nnhl.-< and Burfonl, 10 IL C. Q. B. 47.S; In re Cayar and Varhrrhj/d, 12 V. V. Q. B.'H41.) "Begu- latiou.s" for a pid)lic market, ay-law ho sjient {In r<; T< rry and Ila/ilinic.nd, la IJ. C. C^. B. 380), or expressly repealed {In re Mcdill and Pi'tcrhoronijh, \) IJ. C. Q. P>. r)()2), the rule will he dis- chargech (//;.) But where the repeal is after application to (piash the l>y-law, and so a tacit acknowledgment of the illegality of tlie By-law, t!ic Mtnncipality will he ordered to pay the co.sts of the application. {In re tU)iine and Diinwirli, 9 U. C. Q. B. 30!); hire. Co/nnan, !) U. C. 0. P. 146 ; see further, Patterson and Hope, 31 U. C. Q. B. 360.) {e) It is not nccessarj' that the copy should he sealed with wax. An impression made in ink witli a wooden hhuik in tlie place of a seal would seem to be a suliicient seal {The Qmen v. St. Paul, Covent Garden, 7 Q. B. 232; see also Ilantllton v. JJennis, 12 (irant, 325), especially if sworn on tlie implication that such is tlie seal of the Corporation. {In re Kimjliorn and Khii/ston, 26 C C. (). P>. 133; see also In re Miles and Itic/nnond, 28 U. C. Q. B. 333; see further, Ontario Siilt Co. v. Merehants Salt Co., 18 (Jrant, 551.) Where the seal of the Corporation, thougli not mentioned in the Clerk's certifi- cate, was on the same page with tlie certiticate, immediately al)ovc it and ojiposite to tiie signature of the Reeve and Clerk, the By-law was held to he sullicieiitly comjilied with, {liaker v. Paris, 10 U. C. <^>. B. 621.) The Court will discharge a rule to V . (!. Q. 1». .S'J. ) Where the copy of the By-law put in, not being certified as the Act directs, could not be read, but tho same was set out at lenytli in atlidavits tiled, the deponent swearing that a r>y-law was passed by the Town Council in words following (setting out the By-law), the materials before the Court were held sulficient. In re ScluHil Trnst(('.'i (if Sninhnch and Sunihrh-h, 2.3 V . C. (,). B. (J.S'.).) It will be oliserved that tlie statute is silent as to the right of the ( 'lerk to charge foes for the certified copy or seal, while t!ie statute 111 \'ie. cap. 81, s. 155, maile it the duty of the Clerk oidy to give the co])y "uj>on payment of his fees therefor." (See In re TDU-nsJi'ip Clerk of Euphra.sid, 12 U. C. (}. B. <)22.) (/) The aftidavit ought to be entitled of the Court to which the motion is made (Fr. B. 4.i8.) It neeil not be intituled '"I'ho (j)ueen v. The Municipal (Jouncil of," &;o., but may be "In the matter ofW'. S. C, ami the Municipal Council of," &e. [In re t'omji r and Pc/crhuroiiiili, 8 II. C. (,>. B. .'UK.) Atlidavits in answer nnist. it is apprehended, be entitled in the same way as the rule is whicli they are produced to oppose. (See Tap])ing on .Mandamus, 4\S.) " in tho matter of A. li., a]ipellaut, and C. J)., respondent," held unobjectionable. {In re McLxin and St. Catharines, 27 U. C. (,». B. 0();{.j (,7) The procedure pointed out by this section is j)lain and sim[ple. And yet it is often disrcjarded, and something more ditlicult adopted in substitution. This seems strange. (See ji< r Ilichards, V. .J., in Mottashid and Prince I-Jdn-ard, IM) V. C. (). B. 77.) Where deponent swore that the co])y produced was received by one T. fi-om tiu' ( 'lerk of the Council, and by T. was di'livcred to the (h'ponent, the allidavit was held sullicicnt. In re Ilshvr ami VaiKj/ian, 10 C. C. i). ii. 4<)2.) But where the a})plicant awore that ho receiveil tho copy of the By-law from the Clerk of the Council through 11. J. F., his attoriu^y, the suiliciiincy of the alliilavit was doubted, {/n re Motht^iliid '•<•>•(■// and Cranthani, 11 U. C. Q. B. 15G.) But the Court will not. with- out sufliciont cause shown on afhda^^t, dispense with the production of the copy of liy-law, eertilied as tho section re([uire3. {In j't Bvcharl and lira n't, (3 U. C. C. 1". 131.) 186 THE MUNICIPAL MANUAL. [s. 240. and tliat the applicant is resident or interested as aforesaid, (/i) the Court, after at least four days' service (t) on the Corporation of a rule to show cause in tliis behalf, (_;) may quash the By-law, order or resolution, (k) in whole or in part, (/(.) 8ce note a to thik, section. (I) The meaning is that the Ci)rporation shall have four full days at least to answer the rule. (See note ij to sec. J 0.1.) The time under the old Act was at least riij/it days. AVhcre, under the old Act, the nde nisi was olitained near the end of the term, and made returnahle eight days after service, ami defendants appeared during the following term and olijected that tiie rule should have l)een to show cause on a ilay certain, lu;ld tliat the objection, even if good, was waived by appearance. (Ptrnjw Whithi/, 13 U. C. Q. B. 5G4.) (j) The service is to he "on the Corporation," and, therefore, where tlie motion was to (juash a Bydaw for taking stock in a rail- way company, on the return of the rule, and though the Corporation did, not show cause, the Court declined to hear counsel for the rail- way company. (In ri' /ii/limjs (iml Gloiiccs/i'i; 10 IJ. C. C^. B. 21',i.) In a subseipient case, where tlie Corporation declined to show cause, the (Jourt refused to hear counsel for some of the rate[)ayers of the (Jorporati(m. (In re Wehh (uvl Vttrnionf/i, Q. P>. H. T. IStiO. See further. In re MeKinnon and Cakdonhi, W.i U. C. Q. B. 502.) (k) A superintending power of a judicial character is necessary to be exercised in order to keep Municipal l)0(lies, as well as corporate bodies of all other kinds, witiiin legal and reasonable limits in the exercise of their powers. There has always been such a power where the English law has prevailed ; without it great oppression might l)e exercised and grent confusion created. It is a description of control from which any Court to wliom it is conunitted would rather be relieved. In the nature of things the Supreme Legislature could not exercise such a control so as to meet the exigency of each case; it is, howev^er, in their power to vest the authority where they think best. As tlie law stands, it can oidy be sunnnarily exercised in the Superior Connnon Law Courts. These, while they retain it, uuist exercise it in each case under the same ser.se of respon- sibility as they discharge their other duties. (Per Ilobinson, C. J., in In re BarcUvj and Dar/in; In re Scarlett and York, 14 U. C. C. P. 1»)1 ; In re Secord and Lincoln, 24 U. C. Q. B. 142); or where the Bydaw, order or I'esolution is shown to have been passed under circumstances which, bj"^ the express terms of the statute, make it illegal. (In re Laifi rtij and \V. 268); in other Wdrds, tho statute coiifovH an autliority witli a discretion to a))stain from its exercise. {Per J)ra[)er, C J., in hi )•" Micliic, and Toronto. 11 U. C. C P. .S8(5; see also Buciart and IhllcvUle, 6 U. C. C. P. 428) ; and where tlie P.y-law is legal on its face, and a great length of time has heen allowed to elapse unexplained, between the passing of the Bydaw and tlie motion, the Court A\ ill abstain from tlie exercise of its discretio?iary power (In re Hill and 'JWinnsi-f/i, (5 U. U. C. P. 2i)7 ; Jn re Colin- and Darllnnlon, 11 U. C. C. P. 265; In re Grant and Toronto, Vl U. C. 0. P. ;r>7; In re Leddinf/Zaun and Binlinrh, '2!» U. C. Q. 15. 2m)\ espcjcially if it be shown that work has been done under the P>ydaAV, money expended thereu)ider, or that the IJydaw has been otherwise so acted upon that its repeal Mould cause lunch inconvenience (In re IIod,is;,n and. York. Pcvl and Ontario. l.S IJ. C. (,». P.. 268; In re lanxon and liearji, ]!( U. C. Q. P>. aill ; In re Mldih' avd Toronto. 11 U. C. C. P. 379; In re iScarlM and York, 14 U. C. C. P. 161; In re Drope and Hamilton, 2o IJ. C. Q. 13. :]6:{; In re Piatt and Toronto, ,3,3 U. C. Q. B. 53 ; In re McK'innon and CalidonUi, 33 U. C. Q. 15. 502) ; and where a party conq)laiiiingof a Bydaw per- mits a term (if the Courts of Comnuui Law to elapse m ithout moving to ouash it, tlic (Vmrt of Chancery will refuse to interfere by injunc- tion to ivstrain the Municijiality from jiroceediiig to enforce the provisions of the By-law. (Carroll v. Perth, JO (iraiit, 64; tlrier v. St. Vinci nt, 12(;rant, :VM); s. c. 13peal to tho Court 187 MM IIM 188 THE MUNICIPAL MANUAL. [s. 241. tion, award costs for or against the Corporation, (l) 29-30 V. c. 51, H. 198. Tini(> within It-it, No application to quash any such By-law, order or n't ion ''must resolution, in whole or in j)art, shall be entertained })y any tifi maile. Court unless sucli application shall be made to such Court within one year from the ])assing of such By-law, order or Exrcptiou. resolution, (m) except in the case of a By-law requii'ing the of Appeal only lay where the By-law waa fpiashod and wholly qua.shoil. ((Jon. Stat. U. C cap. i;}, 8ec. 28.) But it is now cuacteul that an appeal shall lie in all cases in which a rule nisi to (pKi.sh a By-law, in ii.'/ioIh or in part, has either been discharged or made absolute. (34 Vic. cap. 1], sec. 2.) (/) Tlie Court awards costs "for or arfaiiist the Corporation" according "to the result of the application." (See Broint diul York, 9 U. C. (|^. B. 4.'),S. ) But the rule is not imperative. AVhere it was shown that the applicant himself was a petitioner for the particular resolution moved against, costs were refuseil him though the reso- lution was (plashed. {In re Morel/ and Toronto, 22 U. C. C. V. 323.) Where a Municipal Corporation, on being served with a rule nisi, repealed the By-law complained of, the Court, notwithstanding, o})Iiged them to pay the costs of the application. {In ri' Cuyne and Dunirich, 9 U. C. Q. B. 301).) Where Munici])al Councils act with an anxious desire to coinply with the provisions of the Act, and with a view to the promotion of the public benelit, ajiplications made in the interest of private individuals to tpiash a liy-law, if unsuccessful, should be visited with costs to be paid to the Municipality. {Per Gwynne, ■!., In re Muntijoniary and liahii/h, 21 U. C. C. P. 397, 398.) Where, however, it appears that the Corporation by its defective Bv-law induced the application, costs will be refused to them. jfe Piatt. V. Toronto, 33 U. C. Q. B. 53.) If the Corporation do not, when called upon, show cause to the rule, though the rule be dj.scharged, no costs will be given to them. (Kclhi and Toronto, 23 U. C. (I. B. 42;').) Where the a]>plicant only partially succeeds, it ia not usual to give him costs. {PiUterfion and Onii, 18 U. C. Q. B. 189 ; Ex re!: Mr Mullen and Caradoc, 22 U. C. C. P. 3o6. ) The Court may apportion the costs between the pai'ties according to the result. {SneM and Bellerille, 30 U. C. Q. B. 94.) (7?i) This is a limitation of the power conferred on the Superior Courts of Common Law l)y the jtreceding section. The application under this section must be maile " witliin one year after the passing of the By-law," &c. If not so made, it shall not be entertaineil. (See Smith V. lioimey, 12 U. C. Q. B. (JGl, as to the meaning of similar words. ) It is in the discretion ot the C'ourt to require great prompt- ness of a}tplication, and to refuse to quash a By-law even though the application l)e made within the year. (See remarks of Richards, C. J., in Taylor and West Williams, 3P U. C. Q. B. 348.) It was at all times in the diacreti(m of the Court to refuse to accede to an application to (puish a By-law when great inconvenience would arise from the ipxashing. {In re Grunt and Toronto, 12 U. C. C. P. 30?.) In the ciuse of a By-law imposing a rate and speciivlly i)romulgatcd, the application is not to be entertained after the term next after the S3. 242-241.] QUASHING BY-LAWS. 189 assent of electors or ratepayers, wlieu siicli By-law lias not been submitted to, or lias not received the assent of such electors or ratepayers, and in such case an ap})lication to quasli such By-law may bo made at any time. (/<) 29-30 V. c. .^1, s. 198. ^4''3, In case a By-law by which a rate is imposed has been jn-omulgated in the manner heroin specified, (o) no application to quush the By-law shall be entertaiiuHl (p) after the next Term of tlio Superior (Jourts of Common Law after the p ' ^mulgation. (q) 29-30 V. c. .51, s. 199. ^4!S. Any By-law, the passage of which has been pro- cured tlu'ough or by means of any violation of the provisions of sections om^ hundred and tifty-three and one hundred and fifty-four of this Act, (>•) shall Ijo liablo to be quashed uj)on any a[>plication to be made in conformity with the provisions hereinbefore contained. (,s) 30 V. c. 3G, s. 13. ^44. Before determining any application for the quashing of a By-law, upon the ground that any of the provisions of Timu alter wliith by- law cannot lu' iiuashed, if ]in)niul- Kaled. QnashLng liy-lawa obtained by bribery, &i'. Prorpthirti in such case. third pablicatiou of the By-law. (See sec. 239.) Certain By-laws may bu i|uashod in vacation. (8eo sec. '2i4:. ) («) If a Bydaw rcvjiiire the assent of the electors or ratepayers to render it valid, and no such assent be obtained, tlie By-law will be held void (see note ;/ to sec, -.SI); and in sucli a case the applica- tion to quash the By-law "may be made at any time." (0) See sec. 237 and 238. {p) See note m to sec. 241. (7) The inconvenience of quashing a By-law imposing a rate, after it has ))een acted ui)on for months, is generally more than ecpial to the inconvenience of allowing a liy-law, though technically defective, to exist. The effect of this section will be important, in curing tech- nical defects in By-laws imposing rates. The limitation ai)plies to By-laws which have been specially promulgated, and eonmiences at tlic time of such promulgation (per Draper, C. J., in Boijart V. Belli'dllc, (') U. C. O. P. 42.")); and where tlic By-law imposes a rate, it would 1)e well for the applicant moving against it more than a Term after its passing, to show that it lias not been specially pro- mulgated. (Iti re Grant and Toronto, 12 U. C. (.'. P. 'Xu; but see also remarks of Draper, C. J., in Boijart v. Bet/crillr, G U. 0. 0. V. 425.) If the By-law moved against be one recpiiring the assent of electors or ratepayers, and it be shown that such By-law was not submitted to the electors or ratepayers, the a])plication to quash it may be made at any time. (See note 71 to sec. 241.) (r) That is, by means of "corrupt practices." (.s) The procedure following is new. It will be observed that the party applying is not delayed till term for the purpose of making uis a2)plicatiou. 190 THE MUNICIPAL MANUAL. [s. 244. Costs. the said one hundred and fifty-tliird and one hundred and fifty-fourtli sections of this Act liave 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 probable grounds exist for a motion to quash such Bydaw, the Judge may make an order for an inquiry, to 1)0 held upon such notice to the })arties affected, as the Judge may direct concerning the said grounds, before the Judge of the County Court of the County in which the Munici})ality which passed the By-law is situate, and require that upon such iiupiiry, all witnesses, both against and in support of such By-law, be orally examined and cross-examined upon oath before said County Court Jiulge ; and the said County Court Judge shall thereupon return the evidence so taken before him to the Clerk of the Crown and Pleas at Toi-onto ;(<) and after the return of said evidence, and upon reading the same, any Judge of the said Superior Courts may, upon notice to such of the parties concerned as he shall think proper, proceed to hear and determine the question ; (u) and if the grounds therefor shall aj)pear to him to be satis- factorily estal)lished, it shall be competent to him to make an order for quashing said By-law, (v) and may order the costs attending said proceedings to be paid by the parties or any of them who shall have supported said By-law ; and if it shall appear that the apiilication to quash said By-law OTight to be dismissed, the said Judge may so order, and in liis discretion award costs, to be jiaid by the persons a})plyiiig to quash said By-law. (lo) 35 V. c. 3G, s. H. {t) This section provides for an " incjuiry," and afterwards for "a hearing and dctorniination." The in(iuii'y is to be held l)efore the Judge of the County Court, and the hearing and determination before any Judge of one of the Superior Courts of Law; but before an incpiiry can be ordered, "probable grounds" for a motion to quash the By-law must be shown to the Superior Court Judge to whom tiie applicatioii is made. On such incpiiry all witnesses, both against and in support of tlie By-law, shall be orally examined and cross-examined before the County Judge; but apparently no express provision is made for compelling the iittendance of witnesses on the inquiry; in all probability their attendance may be compelled by Bubpcena issued out of the Court in which the application is pending. (m) As to what is a hearing and determination, see The King v. Justhei^ of Kent, 9 B. & C. 283, and In re Judge of Perth and Bohinson, 12 «J. C. C. r. 252. (m) This is the only case in which a By-law of a Municipality can be quashed in vacation. (See sec. 240 and notes thereto. ) (iv) See note I to sec. 240. ss. 245, 24G.1 ILLEGAL BY-LAWS, 191 245. After an ordf>r has been made by a Judge directing st.iyof pro- an inquiry, and after a copy of such order has been left with [iTby^aw" the Clerk of the Corporation of which the By-law is in question, all further proceedings ui)on the By-law shall be stayed imtil after the disposal of the application in respect of whicli the inquiry has been directed, («) but if the matter be not prosecuted to the satisfaction of the Judge, he may remove the stay of proceedings. 35 V. c. 2G, s. 15. 1^40. In case a By-law, order or resolution be illegal in Mnnicipali- whole or part, (b) and in case anything has been done under Ik^'ic^ip it, (c) which, by reason of such ilhi^ality, "ives any i)erson m'tadone ' \ / > J o J' o .. 1 under illegal ■ by-liiw, (a) A stay of proceedings on an application to qiiasli a By-law is a novelty. No provision is matle for it on an ordinary application to quash a By-law. It is not stated in what manner the stay of ])ro- ceeilings under this section is to be enforced. The ordinary mode of enforcing a rule of the Queen's Bench or t'onunon I'leas, is by attach- ment, in the nature of contenq)t. But tlie power to award process of contempt for the disobedience of a judge's order, in the absence of express legislative authority, is doubtful. (See In re Allen, 31 U. C. Q. B. 458.) (h) It is not necessary that the illegality .should appear on tlio face of the By-law in order to bring into operation the provisions of this section. If, for example, in the case of a road, it be run tlirough an orchard contrary to the statute, tliere can be no ipiestion about the By-law being illegal. . In such a case the party nuist apply and have the By-law quashed, before he can sue for anything done under the By-law. There may be cases where parties might maintain actions without taking that course; Init it is apprehended the effect of the 8ectit)n is to deprive parties of any action whatever against any one, so long as the By-law has neither been quashed nor repealed, when- ever it is made to appear that what is complained of was done under aBy-law. {lilarkv. W liite ct al. , 18 U.C. Q.B. 371 ; Smithy. Tunnto, 7 U. C. L. .J. 23!).) Whenever the By-law be quashed or repealed, the action must be brought against the Corporation alone, anil not against the person acting under it. [Bhicky. W It lie eta I., 18 U. V. Q. B. 371.) The quashing or repeal of the By-law is not to be regarded as taking the defence from parties acting under the By-law while in force; for all proceedings had under it while in force, if legalized liy it, may, notwithstanding its "-epeal or being quashed, be justified under it. (Per Macaulay, C. J., in Barclay v. Darlbujton, 5 U. C. C. P. 438.) (o) Are these words to be held to mean only anything done in the execution of the By-law, or for the puri)osc of carrying it out; or are they not to be construed to mean also anything done in reliance on the legality of the By-law, as, entering ujiou land which, if the By-law be valid, is a public highway, l)ut which, if the By-law be not valid, leaves the parties exposed to be treated as trespassers ? Unless the latter construction be adopted, the Act will in this resi^ect fail in many cases of the effect whicli must have been intended. (Per Robinson, 0. J., in Black v. White et al., lb U, C. Q. B. 309.) 192 THE MUNICIPAL MANUAL. [s. 247. Notice of !'otiou. Tender of aiiii'iuls. a right of action, (d) no sucli action shall bo brought until one month has elapsed after the Jiy-law, order or resolution has been (gnashed or repealed, nor nntil one month's notice in writing, of the intention to bring such action, has been given to the Corporation, (e) and every such a(!tion shall be brought against the Corpoi-ation alone, and not against any person acting under the By-law, order or resolution. (/) 29-30 V. c. 51, s. 2U5. 347, In case tho Corporation tenders amends to the plaintiff or his attorney, (t/) if such tender be pleaded and {(l) 'J'lie right of .ictiou iutendeil is a right of action for the rocDVcry of clmnages, in which it may 1)0 important to tender amends. It does not therefore apply to actions of re])levin, when brought merely to try the right to the property replevied. ( Wilson v. J//cZ- dlesex, 18 U.'O. Q. B. .S-iS; ilnipu'.s v. Co'pi-land et id, 18 U.C. 0. P. 150.) ((') The section declares that no action shall bo brought initil the By-law, &c., has been quashed or re})ealed for one calendar month, and tl.'is, as already mentioned, precludes the bringing of the action while vhe By-law, &c., subsists (see Cdnnif/iiw! x. Sla/ci; 9 U. 0. C. F. 4'2.S); but it does not follow that the Statutes of liimitations only begin to run from the time of (piashing or repealing. It is clear that actions may be brought (though only against the Corpo- ration) fo'. things done ixnder the illegal By-law, &.C., that is things done in pursuance of, or in execution of it, or under its authority while in force. The right of aeticm may l)e held to vest the moment the thing is done, and, if so, every statute limiting a right of action of tlie particular kind would begin to run forthwith. \Vere it not BO, very stale matters miglit be made grounds of action against Municipal Councils, and which (in the case of individuals) would be outlawed. (/) It appears, therefore, that if anything has been done under a By-law, &c., which, being illegal, gives any person a right of action — 1. The action shall be brought against the Corporation that passed the By-law, &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, &c. , is quashed or rei)ealed. 3. Before bringing it, one calendar month's notice in writing of the intention to bring it must first be given to the Corporation. 4. Whether notice of action can Ijc given before the By-law, &c. , is quashed or repealed is a question, but material only in case the time for bringing the action is limited, and the time about to expire. (See McKemie v. Kingston, 13 U. C. Q. B. G34.) (g) The law as to tender is not much understood by the general public. 1 . Definition. — A tender in this section means the offering of money in satisfaction of a cause of action arising out of sometliiug done under a By-law, order or resolution, quashed or repealed. 247.] BY-LAWS CREATING DEBTS. 193 a in V, of • » lie re. lal py (if traversed) provetl, (h) and if no more than the amount tendered is recovered, the phiintifF sliall liave no costs, but costs shall be taxed to the defendant, and set oft' against the vex'dict, and the balance due to either i>arty shall be recovered as in ordinary cases, (i) 29-30 V. c. 51, s. 206. Divisiox VI. — By-laws Creating Debts. Requisite formalities. Sec. 248-250. Assent of Electors, when required. Sec. 251. When Special Council Meeting sufficient. Sec. 251, 252. When repealable mul lohen not. Sec. 253, 254' Illegal repeal to be ignored. Sec. 255. Purchase of Public Works. Sec. 256. Pates to he imposed therefor'. Sec. 257. 2. How made. — A tender mu3t be unqualified and unconditional. {Mitchell V. King, 6 C. & P. 2.37 ; Jennimjs v. Major, 8 C. & P. 61 ; Strong V. Harceij, .S Bing. 304.) Whether conditional or not, is a question for tlie jury. (Marsden v. Goode, 2 C. & K. 1.3.3; Milburn V. Milhurn, 4 U. C Q. B. 179.) Strictly speaking, the tender ought to be of specie ; but a tender in bank notes, if not objected to on the ground of being notes, will be good. {Blow v. Bussell, 1 C & P. 365. ) The precise sum intended, or more, must be tendered, without requiring change. (Brady v. Jones, 2D. & R. 305. ) The money ought to be actually produced (Krauti v. Arnold, 7 Moo. 59; Leather- dale V. Sweepntone, 3 C. & P. .342 ; Thompson v. Hamilton, 5 U. C. 0. S. Ill); but this may be dispensed with by the party to whom the tender is made, as, where defendant said he had the money in his pocket, and plaintiff said, "You need not give yourself the trouble of offering it, for I will not take it." (DoK/lass v. Patrick, 3 T. R. 684 ; Jackson v. Jacob, 3 Bing. N. C. 869. ) A receipt for the money cannr be insisted upon. (Cole v. Blake, 1 Peake, 238. ) 3. To whom made. — Under this section the amends may be ten dered "to the plaintiff or his attorney." A tender, strictly speak- ing, ought to be made before the writ is sued out, and if made to the plaintiff himself would be more satisfactory than if made to his at- torney. But if the attorney is authorized to settle the business, and writes to defendants previous to suing out the writ warning them of the action unless they pay him the money or the like, the tender may clearly be made to the attorney. (Sellon, Pr. I. 315.) The attorney must, under any circumstances, be one employed in the particular action, and not merely one generally employed by plaintiff. (lb.) (h) It is not enacted that the tender may be given in evidence under the general issue, and it is ap[)rehended that it ought to be specially pleaded. (i) The object of the tender is to prevent useless litigation. The tender admits a cause of action, but limits the amount of damages arising therefrom. The party tendering in effect says, "I admit you have a right to bring this action, but I do not admit that you 13 194 THE MUNICIPAL MANUAL. [s. 248, J3y-la\vs for ••(jntr.'u'tiiig (IcIttH. S4S. Evpry such Council may, uiulor tho fornialitios ro(|uin'(l by law, pass I>y-la\vs for contracting debts by borrowing money or otherwise, and for levying rates for payment of such debts on the ratable property of the ISIuni- cipality, for any purpose within the jurisdiction of the Council, (/•) Init no such By-law shall be valiy-law, if not for creating a del)t for the purchase take (.irert. ^f i)id)lic works, {7n) shall name a day in tho financial year arc entitled to any tlamages beyond the amount tendered." If plain- till' declines the tender, and I'eeovers no more than tlie anionnt ten- dered, lie loses liis costs, and, worse still, is coni])elle(l to pay the costs of defendant, which may ]>e set oH' against his verdict. (/.') The power here conferred is under the formalities required by law: 1. To pa,ss By daws for contracting debts by borrowing money or othei'wise. 2. And for levying rates for tho payment of such debts on the ratable property of the Municipality, for any purpose within the jurisdiction of the '..'onneil. In ordinary trading. Corporations have clearly an implied jiower to borrow money for the purposes of their business, and to give securities for the re])ayment of the same {('loiis v. IjcarUt, "if) N. Y. 9; Biirri/x. Mrrchan'tsi Exrhantjc, 1 Sandf. ("h. 280; Bccr.-iy. Ph manner be i)aid in thirty vears at furthest water work* from the day on which the By-law takes effect ; (o) (3.) The By-law shall settle an equal special rate per to provide* annum, in addition to all othei- rates, to be levied iu each yuariyate. year for paying tho debt and interest ; (^>) IS Ex- tlie Itts- ■237; att. le to Ition Jsssly It in Itute St. |Md. Y. I) (/i) It seoniH tliat tho Legislature inteiiil that in the body of every By-law shall he stated a day on which tho same is to take ell'eot. The (kite on which a By-law is to tako eti'ect does not necessarily form a part thereof, though it may 1)0 the ])ractice of some otlieer of the ( 'oi'[ioratiou to mark the day of its passing on it. " Tlie Legisla- ture, iiowever, meant tliat it shouM not lie necessary to refer to anything jxtrinsic^ to the liy-laM" for tiic [mrpose of learning when it would or had come into operation. 'I'lio purchaser of a debenture, for instance, wouhl rc([uireto see that it and the By-law under which it was issued wore legal, aud might, on tliat account, recpure to see when tiie By-law took etlect." (/V;- Draper, ('. .1., f/i re Mirhi<> dud Toronto, iTlJ. (J. C. P. 384.) Tiie day nauKjd in the By-law for it to take effect nuist be in tho same linancial year in Avhicii tlie liy-iaw is passed. It is not intended that the Municipal Council siiali liavo power to postpone the operation of such a By-law to the next or any subse(juent year. (o) The power to contract a debt payable at a future period, and to secure its payment at tliat pisriod by the ratejiayers tiien living, is bumdcd on the ])rinci])le that the object for wiiich the doht is contracted is one Avhicli Mill lienelit future ratepayei's as well as those living at the time tho delit is contracted. 'I'iiis is (piito con- sistent witii the policy of Municipal law, as explained in note A to sec. ^")8. But, unless proviiidation tiiercof." (lb. 21)2.) Therefore a By-law providing for jjayment of tho debt created, as per tho following scheilulo — 1852 . . .£0 1 Oi in the pound £'M\ 3 11^ 1853. . . . 4i " " 111 18 4i 1854 ... 00 4f " " 118 1 2 1855. . . .00 4;i " " 119 1 7i ♦« " 155 11 11^ 1850 43 £815 17 li —was held bad. ( In re Sells and St. Thoma.% 3 U. C. C. P. 288. ) But it is now by statute provided that the Municijial Council may, in its discretion, make the principal of the debt reiiayable by annual instal- ments (sec. 250), in which case, however, the instalments are of such amounts that the aggregate amount payable for prim interest in any year shall i)o i aiiioiiiit of tlit! (U'l>t whifli Hueli now 13y-law is iiitciiihid to t-roatii, and, in some brief and <,'('U('ral terms, tlic olijcet for whicli it is to be crcatcil ; (2) The total amount ictjiiired Ijv this Act to Ix? I'aised annually hy special rate for paying the new debt and inton^st ; {'<\) The amount of the whole ratahh' pr(i[)eity of the Municipality according to tlici last i'(!vised, or revised and etpialized assessment rolls; (I) 11)0 iiniount of the existing dcht of the Municipality, showing the interest and princi])al sej>aiMtely and Imw much (if any) [trincipal or interest is in arreai's ; and (.")) Thcunnual sjiecial I'ate in the dollar for paying th2G, sub. 1-6. H(, 9 U. ('. (). H. .")7-.) Til tile iilisciice of aiiytliing to the coiitrnry, tlie Court will iiiteiiil that the ( 'ouiieil has aeteil aeeoniiiig to law. i/l>.) 1'lie ( 'ouiieil is eiiipoweieil to aiiply sarplun iiinniio and other surplus funds to the payment of the debt. (See. 'J(il). ) (s) As to which sec sec. 249. (as) It was at oiu" tinio held that the omission of a prescribed recital did not invalidate tlie By-law; that the statute was direetory and not imperative. (See In re Scll.f and St. Tliumas, ,'} LT. C.C'.P. 291; sec, however, note (', bi/ra. ) {() The By-law should describe the debts and their amounts. (See Cauiula Co. v. Jilit/y-law recited that the amount of the whole ratahle property of the Townshij), according to the last assessment retiu'iis, was £ll-t,7."i(), and tiiat it would re(|uiie the annual rate; of 2r,d. in tlie pound as a special rate for ])ayment, &c., and then enacted that a 8j)ecial rate of 2^d. sliould he levied to pay the jniii- cipal and interest of the loan to be raised under tlie F>y-law, and that the proceeds of such special rate should be applied solely to the payment, &c., until the same be fully paid and s.atisiied; J/cId, that the i-ecital as to the amount of ratahle jiropcity and the assess- ment returns was sutHeient, and that it suHieieiitly a]i|)earcd that tint the amount was to be raised in each jear. {In re ( \nniriiit oiid E -I Xissonri, 1.3 U. C. Q. B. 190.) In one part Of the J5y-Liw the Reeve was empowered to issue debentures for such sums as should he from time to time required for the ])urposes mentioned, but not to exceed in the whole £10,001). In suhseipient clauses a special rate was imposed to pay "the said sum of £10,000," and the a]ipli- cation of "the said sum of £10,001) " was pointed out. The debentures V ore directed to be made payable ' ' within twenty yeara of the time 198 THE MUNICIPAL MANUAL. [s. 249. %49, If the By-law is for a work payable by local assess- ment (a) it shall recite; : — (aa) (1) The amount of the debt which such By law is intended to create, and, in soi>io l>rief anil f^eneral terms, the object for wliich it is. to be created ; (2) The total amount rec^iiired by this Act to be raised annually by special I'ate for paying the debt and interest under the By-law; (3) Tlie vahu! of the whole real pro])erty ratable under the By-law as ascertained and finally deter- mined as aforesaid ; (4) The annual s])ecial rate in the dollar or pen* foot frontage, or otherwise, as the case may be, foi- paying the interest and creating a yearly sinking fund for paying the principal of the debt, or for discharging instalments of ])rincipal, according to the foregoing provisions of this Act ; (or ix case the debt is pai/ahh under the, pro- . visions of .,cction two hundred and fiftij for paying the instal- ments of princi])al and interest, as they respectively become (5)Tliatd('bt piiy'ible ;) (5) Tliat the debt is created on the security of ^'■''';'*^,';'^ ."" the .special rate settled by the By-law, and on that security special rate. only. (6) Vide 29-30 V. c. 51, s. 303, sub. 5. ny-l.iw for a work p.iy- able l)y local iis.sossnu'nt must, recite : (1) Amount and object of debt ; (2) Amount to 1)0 raised annually ; (a) Value of real jiro- perty rat- able ; (4) Special rate for interest and siukint; fund, &c. that this By-l.uv shall conic into oi)eration." Held, that the amount of the loan, and tlie time when the debentures were to be made payable, Avas stated with suffieient certainty. {Ih.) Where a By-law jirovided that the site of an old town-hall should be disposed of, and any nu>ney altove the proceeds of the hall re(juired for the erection of a new one, should '>e kvicd on the ratable property in the Municipality, but did lujt lix tlie amount or the rate to be levied, this part of the By daw was held bad. (//( n- llawke and WvHcthy, 13 U. C. Q. B. 036.) When eri'ors in computation only are shown in a Bydaw, thougli exteiisi'.c, tlie (.'ourt will lean strongly to sup- port it, especially when it has been aetc' upon. (Scrord anil Lincoln, '2-1 U. C. Q. B. H'-'; (Irh'mw and Onta.:-., 9 U. C. Q. B. 023.) Not only the rate must be mentioned in iiie By-law, but the amount to be raised tiiereby (sec Ti/li'c ami Waterloo, !) U. C Q. B 572), and also the purpose or object for which it is required. [Ih.) Thus, "to pay off two debentures iield by William Allan, for erecting the court- house in said district" (//*. p. 588), or "for tlie purpose of li(jui(lating the sum of £1,501) due to theOore Bank, and tlie sum of .£5110 due by the nistriet to Alexander Drysdale, Ksciuire." (Ih.) Besides, the By- law must recite the amount of the whole ratable property of the Municipality, according to the last revised or revised and ecjualized assessment rolls. (See McConnkk v. Oakhij, 17 U. C. Q. B. 345.) (a) The general rule is to raise money required for Municipal pur- poses by rate on all the ratable property of the Municipality. One of the exceptions is where the money is needed for expenditure in a local i'uprovement asked for by the local ratepayers, or a certain proportion of the local ratepayers to be thereby benelited. (ISee further, sec. 4()4 and notes thereto.) (aa) See note ss to sec. "18. (6) See note t to sec. 248. s. 250.] BY-LAWS CIIEATIXG DEBTS. \w "Z^O. In any case of i)a.ssiji<' a Bv-law for coi.tractiu<' a >''i'i''.'l'iii debt, by boiTowuii,' luoucy foi- any purpose, (c) the ^[uniripal hkiv iii:iUr Council may in its discretion niakt; the ]»rincipal of such |.''J",7,l'bi',. debt rej)ayabk! by annual instalments during tli<^ currency I'v-'fi'iuai .".f the period (not exceeding thirty years if the debt is for Hhi'iifi'Ints. (jas or water Avorks, and not exceediu'f twenty vc-avh if the debt is for any other purpose) within whicli the di'bt is to be discharged ; such instalments to be of such amounts that the aggregate amount paya1)le for principal and interest in any year shall be e(iual, as nearly as may be, to what is payabl(! for principal and ii'tevest during each of the other years of sncli i)eriod ; and may issue the debentures of t1 Municipal Coi-pnration for the amounts, aiid payable at tJ .. times, corresponding %vith such instalments, together with intei'cst, annually or semi annually, as may be set foi-th and provided in such By-law. ('/) Such By-law shall set forth \^itby-iiiw tlie annual special rate to be raised in each year during the sii-iiistanut period of the currency of the debt, which shall l)e sudicient according to the amcuut (^f ratable proptu'ty appearing by the last revised or re\ioid and e(piali/.e(l Assessment Bolls, before the passiu'' of the Bv-law to discharjic the several instalments of principal and the interest accruing due on said debt, as the said instalments and interest l)ecome respectively payable, according to the terms of said By- (c) See note k to sec. 248. ((/) The ordinary mode is to provii' the acciunulation and invest- ment of the Siidiing l''und. Hut still there is the limitation tliat the instalments shall he "of s\i.:h amoiuits tliat tlie aitgrej^'ate amount payal)Ie for principal and interest in any year sliall he i'eiises. law;,(e) and in cases within this section, it sl'^1 not be necessary that any jirovision be made for the creation of a sinking fund. (/) New. ^51. Every By-law (except for diuinage, as provided for under the four hundred and forty-seventh section of this Act, or for a work payable entirely by local assessment) [g) for raising upon the credit of the Municipality any money not required for its ordinary expenditure, and not payable within the same Municipal year, shall, before the final pass- ing thereof, receive the absent of the electors of the Muni- cipality in the manner provided for in the two hundred and thirty-first section of this Act ; {h) except that in Counties the County Council may raise by By-law or By-laws, with (e) See note h to sec. 13 of the Assessment Act, and note i to sec. 14 of tlic same Act. (/) For reasons already explained in note d to this section. ((j) See sec. 249. (h) "I incline to think that any appropriation of moneys for other than ordinary pi-rposes, whether payable within the jear or not, re(piire3 the express sanction of the ratepayers. I am led to this conclusion from the exception in regard to County Councils." (Per Spragge, V.C., in Edinburgh Life Aaiiurance Co. v. St. Catharines, 10 (irant, \iSS. See further, note h to sec. 258.) By an Act of thv. Legislature the Town of St. Catharines was authorized to issue debentures to the amount of £45,248, for the licpiidation of which a special rate was directed to be levied, the proceeds of wliich were directed to be invested and form a sinking fund for this purpose. By tiie same Act the Town was prohibited from passing any By-law to create any new debt extending beyond the year in which the By- law was passed, except for the construction of water works, until the del)t was reduced to £25, ()()(). The special rate authorized to be imposed ha») the same is pnssed at a meeting of the i,'|'„'siiedallv Council snecially called for the purpose of considering the <;i'it'i ami same, (n) and held not less than three months after a co{)y in,,ntiis";incr of such By-law as the same is ultimataly passed, (o) together ""t'^^'. *"• 379. ) If it had been sliown that any Act of the Corporation would have had the etl'ect of incurring a liahiLuy payable in a futiu'e year, the injunction would liiive been retained to tlie hearing. (///.) {i) It will be observed that tlio exception only extends to the raising of any sum or sums, not exceeding in any one year l!?'20,000 "over and above the sums re(iuired for ordinary expeniHturc." 'J'he general I'ule would ajipear to he that a By-law of any Muiiici]ial Council, to raise money not i-equired for ordinary expenditure, must be submitted to the electors. (See preceding note.) To tliat rule an exeejjtion i.s created in favour of a County Municipality lunlur the circumstances here stated, and subject to the restrictions contained in the next section. It is not necessary for a County, when passing a liy-law ai;tliorizing the issue f)f debentures for tlie sole purpose of exchanging or redeeming outstanding debentures of the County, to comply with the formalities of sec. "248 of this Act. (See 33 Vic. cap. 'J(), B. 17.) (k) Sec note h to sec. 251. (I) In other words, shall be illegal. As to setting aside a By-law for illegality, see sec. 'JIO and notes thereto. (in) The requisites to the validity of the By-law appear to be — 1. Tliat it be passed at a meeting specially called for the purpose of considering the same. 2. Such meeting to be held not less than three months after a copy of tlie By-law as the same is ultimately passed, together with a notice of the day appointed for tiie meeting, luis l>eeu published. 3. Such pulilication to be in some news[iai)er issued weekly or ofteaer witiiin the County, or, if there be no such pul)lic newspaper, then in a i)ublic newspaper ])ul)lishcd nearest to tlie County, and iu eitliir c) which said notice may be to the effect follow- ing Fuiiii 111 iiutico. i'l) FOKM OF NOTICE. When ]iiiit only of iMoiKiy niis- rd, liy-law m:iy bo iv- pi'itlt'il as to rcsitlno. I'l-uviso. The a})0ve is a true copy of a proposed By-hiw to be taken into consideration by the Municii)ality of the County (or United Counties) of at in the said County (or United Counties), on the day of 1*^ , 'i-t tlie hour of o'clock in the noon, at which time and place the members of the Council are hereby requir.'il to attend for the puri)ose aforesaid. 2y-30 V. c. 51, s. 228; 37 V. c. IG, s. 8. G. II., Clerk. *Z!ili» When part only of a sum of money provided for by a By-law has been raised, the (jouncil may repeal the By-law jis to any part of the r(>sidue, and as to a pro])or- tionate part of the special rate im})osed therefor, (r) pro- vided the re})ealing By-law recites the facts on which it is founded, and is a})[)ointed to take effect on the thii'tylirst day of Decembei' in the year of its [)assing, and does not affect any rates due or penalties incurred before that day, and p)-ovided the By-law is first .apj)roved by the Governor in Council. 29-30 V. c. 51, s. 234. . ip) See note j to sec. 231. (q) See note h to sec. 238. {)■) It is an erroneous impression, when onue n Municipal Council has (leti'iinined to contract a loan, in order to aid, for exanijile, in advancing a public work, tiiat the wliolu matter of the By-law passed for tliat object is entirely out i>f their control, and not merely such parts of it as are necessary for securing those v,-ho have advanced money luider its provisions. (In re Hill and ]\'al,s'uii//iaiii, 9 U. C. Q. 1?."310.) No By-law passed under this section can take eflcct — 1 . Unless it recite the facts on which it is founded. 2. Unless it he appointed to take cifect ou the 31st December in the year of its passing. 3. Unless it be approved by the Lieutenaut-(ioveruor in Council. 4. Nor if it affect any rates due, or penalties incurred, before the day it takes efl'ect. ss. 254, 255.] carrying out by-laws for paying dkbts. 203 ^54. After a dobt has boon contracted, tlio Council shall not, until the dobt and interest have been paid, ro])('al the By-law under which the debt was contracted, or any By-law for paying the del)t or the interest thereon, or for ])rovi(ling therefor a rate or additional rate, or approiiriating theieto the surplus income ot any work or of any stock or interest therein, or money from any other source ; and the Council shall not 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 herein authorized, (s) and shall not ap])ly to any other put])Ose any money of the Coi'iwration which, not having been })reviously otherwise appruj)riated by any }iy- law or resolution, has been directed to be a2>plied to such payment, (t) 2t)-30 V. c. 51, s. 235. ^55. I^o officer of the Munici])ality shall neglect or refuse to cai-ry into effect a By-law for paying a debt under colour of a By-law illegally attempting to r(^})eal such first mentioned By-law, or to alter the same so as to diminish the amount to be levied under it. (tt) 29-30 V. e. 51, s. 207. (.s) The provisions of this section are necessary for the security of creilitors. It is enacted, first, that no (^'ouncil shall either repeal a By-law under which a (lel)t was contracted, or, secondly, alter a By- law providing the rate so as to diminish the amount to be levied under the Bj'-law, &c. The By-law, however, may, under certain cir- cum.stances, be in part repealed, pursuant to sec. 25"). So the rate may, under cei'tain circumstances, be reduced, pursuant to sees. '2G0 «& 2G1. (/) This reipiires the sinking fund to be left uutouclied, and pro- hibits the Council ^vithdrawing any money transferred thereto, or otherwise applying any funds that have been appropriated thereto, (Wee note h to sec. l.'")l.) {tt) The object of this section is, to compel Municipal Corporations and their officers to keej) faith with creditors. When the latter advance money upon the security of a By-law for its repayment in whole or in part, within a specified period at a specilied rate, any By-law attempting to repeal sucli mentioned By-law or altering the same, so as to diminish the amount to be levied under it, would 1)6 a fraud, whether so designed or not. (But see sec. 'ir^li, it ficq.) Besides, it is the duty of the Treasurer of every Municipality to see that the money collected under such By-law is properly aiii)lied to the payment of interest and ])rincipalof debentures issued under the By-law. (Sec. 29(i.) The 207th section of 2!) & IM) Vic. cap. CA, pro- vided that an officer guilty of such neglect as specilied in this section shouM he guilty of a misdemeanor, and be punished by line or impri- sonment, or both, at the discretion of the Court whose duty it might be to p.iss sentence ui)on him. This being matter relating to crime and criminal procedure, and so within the exclusive jurisdiction of the Dominion Legislature, is omitted from the section here annotated. (See note v to sec. 304. ) Until debt ]iaiil, cer- t.iiii liy-lawii caiindt be reiiuiiled, nor altered. Exceptions. No ofTlner to iu'i,'U'ct, &c., til carry out by-law for )iayiiifiiit umlircolour (if illegal by-luw. 204 THE MUNICIPAL MANUAL. [s. 256. Municipal 1i^\i. Any Council mwy contract a dobt to llor Majesty. maypur- "^ ^''" pui'oliase of any of tli^; piU)lic roads, liarljours, hi-id^cs, chaso publii; l)iiildiuLi;s or other public works in Ontario, wrietlior bclong- an'd noil tract i'l,^ to this Province or to the Dominion of Canada, or of debts witli any cliiini in respect of such works, (a) and may execute sucli bonds, deeds, covenants, and otlier securities to Her Majesty, as the Council may deem fit, for the payininit of the [)rice of any such puV)lic work, or claim already sold or transfei'red, or which may be sold or ti'ausfi'rred, or agreed to be sold or transferred to the Muuici})al Corjvjration, and for securing the })crformance and observance of all or any of the conditions of sale or transfer ; and may also p iss all {«) The statute 12 Vic. c:ip. 5, sec. 1'2, autliorized the (lovernor in (.ouneil to contract M'ith any Miuiiciiial t'ouncil or other local Corporation, for tlie transfer to them of any of the public roads, harbours, bridges, &c., wliieli it might be more convenient to place luider the management of such local autliorities. \'>y statute 14 ami 15 Vic. cap. 124, any Municipal t'()r])oration in LJpitur Canada might contract a debt to Her Majesty in the purchase of any roads, I'tc, and the ^Iunicii)ality might enter into, make or execute all or any bonds, deeds, covenants or other securities to Her Majesty, which such Municipality might deem lit, for the payment of the amount of i)urchase money of any such work, and for scoiring the per- fornumce of any conditions of sale ; and might also pass all By- laws for any of the purposes ; and such bydaws, debts, Ijonds, deeds, covenants or (jtlicr securities were to be binding and valid on such Municipality to all intents and purposes, though no special or other rate per annum should be settled or imposed, to ])e levied as provided under the 177th section of the Municipal Corporations Act of 1849. But by section 2, the Corporation was nevertheless autho- rized, in any Jiydaw for the creation of sucli debt, or for making or executing any such bonds, deeds or other securities, as aforesaid, to Her Majesty, or in any other Bydaw by the Corjjoration, to impose a special rate per annum of such amount as the ^lunicipality might deem expedient, for payment and discharge of such debts, bonds, covenants or other securities, or some part thereof ; and every such Bydaw should he valid and binding on tlie Corporation, though the rate settled or imposed should be less than was recpuired \>y the 177th section of the Municipal Corporations Act for i8t'J ; and all provisions of that Act (except in so far as they were inconsistent with the Act then being passed) were to apply and extend to every such Bydaw, and the moneys to be raised tiiereby, as fully as they would extend to any Bydaw enacted by any such Munici[)ality for the creation of any debt or raising any loan, as provided in said 177th section, and to the moneys tiiereby raised. By statute IG V^ic. cap. 181, s. .39, it was enacted that none of tlie provisions of the 4th or Kith sections of the Municipal Corporations Amendment Act of 1851, should affect or apply to any Bydaw passed or to be passed l)y any Municipality in Upper Canada for any of the purposes mentioned in 14 & 1.') V'^ic. cap. 124, or to any debt^, bomls, deeils, covenants or other securities contracted, made or executed to Her ^bljesty, under the provisions of that Act, or for any of the purposes therein men- tioned. By statute 18 Vic. cap. 133, it was enacted, in effect, that s 257.] DEBTS TO TIIK CROWX. 205 necessary By-laws for any of tlio j)Ui'})osos afoivsaiil ; (h) and AitiiouKh no all sucli Ily-laws, debts, bonds, deeds, co\enants and othfr r.ti'ieramiual securities shall be valid although no special or other annual i^'tt; settled, rate lias been settled or ini[)os(ul to be levied in each year, as jirovided l)y sections two hundnul and forty-eight to two hundred and'llfty of this Act. (c) Vide 2'J-3U V. c. 51, s. 2l'!», sub. 1. *Z7>7, The Council may, in any By-law to be passed ^ov R.itcsmay the cremation of any such debt, {le ])roperty within the Municipality, for th(! payment and discharge of sucli debts, bonds, deeds, covenants or other securities, or some i)art thereof, and the By-laws shall be valid, although the rate settled or inijjosed thereby be less thnn is re(piire(l liy the sections last mentioned ; and the said sections shall, so far as aitplicable, apply and extend to every such By-law, and the moneys raised or to be raised thereby, as fully in every respect as s\ich ])rovisions would extend oi- sipply to any By- law enacted by any Council for tlie creation of any debt aa pi'ovided in the said sections, or to the moneys raised or to be raised thereby. (/) 29-30 V. c. 51, s. 22!), sub. 2. no By-law, to ])o passcil for raising nionuy upon the credit of any City, Town, 'rownship or \'illage Coritoratioii, should have foree or cG'eet until the apiiroval of tlie Municii)al eketnis should have been obtained. All these provisions were lupealed ny the Mnnieipal Institutions Act of 1;S.")8; and see. 22(3 of (.'on. Stat. U. C. cap. ol (of wliicli sec. *2"29 of '2'J & ;^0 \'ie. cap. ol was a rc-enaetnient), was in cll'eet substituted for them. The fair result would seem to ho that none of the seetion^3 '248 to '2')0 of this Act, relating to J'>y-lawg creating debts, extend to F'.y-Ln\s made for tlie purelu^se of public worlcH, exeejtt in the manner and to the exteiit pointed out in the second }iaragrai)h of the section here annotated, and that such l>y- laws would, at all events if passeil by a County, be valid, although not containing any special rate, and although not assented to ))y the ratepayers. (Sec In re O'XtH and I'ur/c and Peel, 15 U. C. C. P. 24'J.) (6) See note u to sec. .304:. (c) See note a to this section. {d) See note a to this section. (e) Sec note a to sec. 253. ■(/) Sec note / to sec. 248. 206 THE MUNICIPAL MANUAL. [s. 258. Yearly rates to bo levied, sufticicnt to pay all debts imyahle within the year. Aggregate rate limited to two eeiits iu the dollar. Division VII. — By-law.s Respecting Yearly Rates. Aniou7it and Limit of Rata. Sec. 25 S. Poirer to Exempt. Sec. '2-'>0. lieduction of Sjipcial Rate. Sec. 200, Formalities in Jiij-laio, therefor. Sec. 261. 258, The Council of every Municipul Corporation, and of (ivery Provisional Corporation, sliall assess and levy on tlic whole ratahlo pi'0])('rty within its jurisdiction, {;/) a sufficient sum in each year to pay all valid del)ts of tlu; Cor- poration, whether of princii)al or interest, falling duo within the year ; (A) but no such Council shall assess and levy in (;/) Tlio asseasmcnt is to be on "the irlin/i' ratalilo property, &c," An assessment, therefore, on a [)ortion of the ratable property, such as wild lands, would bo invalid. (See sec. 8 of the Asseusment Act and notes there to. ) (/() The power given is to assess and lo\'j'', &c., a suflicient sum in eacli year to pay all rdlld debts falling due within l/tc ijear. It is not easy to dcliue what is meant by " a valid (lel)t. " It may l)e tleseribed as a debt whieh tlie Corporation is legally liable to pay, and the i)ay- mejit of whieh may l)e enforced ))y process of law. The woi-d " debt " must be taken as used in its most comprehensive sense, "as some- thing due from one to another." (Ac Spragge, (". J., in WiUcir and Clinton, IS Orant, o.")!). ) Tlien the assessment is to be to pay all \alid debts " falling due intliin t/ic i/inr." 'I'he general rule is tliat Muni- cipal bodies ought n)t, in one year, to levy a rate to pay del)ts due in a past year. The ratepayers of a locality should not be re(|uired to pay for the bcnelits whieh the ratepayers of a pi'evious year en- joyed. Each year's debts sliould be jiaid by that year's assessments, unless in tiiose exjiressly authorized cases where a ileviation is allowed by statute. (I'lr A. \\'i!son, J., in Iltiipu-a v. ('o/n /itml eta/, 18 V. C. ('. P. lt)7.) After a lapse of years the ratepayers woidd be a totally ditierent body from that whieh it was a few years prc'viously. "Purchasers, availing themselves of their right of inspecting the annual reports of the Auditors of the liabilities of the ratable property in the City, have ac(iuired jirojierty wliich, in the absence of any such liability a[)peariiig as that wliicli is now asserted, they may fairly claim to hold disehargeil of any such liabilitj' as tliat now sought to jji' im]iosed upon it. To charge the present owners of real jji-operty with tiiis lialiility ■wouhl seem to par- take of the character of a fraud iii)on them, &c." (/'ry (iwynne, J., in Frontciiarx. KiiujMoii, "20 II. C. C. I', (i t. ) 'J'lic general inconvenience of retrospective rates has in I'Ingland ])een long known and recognized in the ("ourts of Law, on the gi-ouiul that succeeding ratejiayers ought not to be made to jiay for .services of wiiich tlieirpreileccssors have liad the benelit. (Sec Tlic Kiinj v. llairortli, \'l Ji^ast, oSi); CortU V. K< nt Watenrork/i Co., 7 B. & C. ,S14; T/ie Kim/ v. Friutnliire, 5 n. & Al. 7(51; Woods: v. /.Vet/, 2 M. & W. 777; Joi'ir.^ v. Johnson, 5 lOx. 8l5'J; s. c. in Error, 7 Ex. 4r>2,) One object of the law, as ratei'ayers lluctuate, is to protect present inlialiitants from })cing burtheued with the expenses of their predecessors. ( The King v. S. 258.] BY-LAWS RKSl'RCTIN'O YEARLY RAT^S. any one year more tliiui an n^'grogato rate of two cents in '207 Wanll H ill, Dong. IIG; The Khuj V. Gunilrfienp, (i T. 11. IM; A/tiinifji-dciicnil V. IViijd)), 18 Jurist, -',('.(.) As a rule, money rociuircd for Miiiiiciicil imrjxison miglit tn Ik; niiscil, as tlic law directs, befuieliaml, instead of being in any jnanner or by any per.son .advancted, in tlie expectation of reintV)nrsenient by tiie .Sinnieiiiality. (See 'J'/ic Kin;/ v. Ihiwurlh, VI East, ooti; 'l'ligations already inciwred, hut shall contract no further deltts until the animal I'ates reijuinul to be levied within such ]\runicip:ility are reduced within tho aggregate rate afonssaid : (k) Provided that this shall not affect any special provisions to tho contrary contained in any special Act now or hereafter in force. (/) 'Id-'M) X. c. 51, s. 225. JJ50. Every ^Municipal Council shall have the power of exempting any manufacturing establishment, in whole or in part, {711) from taxation for any jx'riod not longer than ten Prnviwon when Hiich n.'iKri'Kut'j lint HUlH- cietit to pay (Irbts piiya- lilf witliii. the year. Proviso P.iWcr ti) cxiMiiiit far tinit's from taxation. power to aid Corporations notwithstanding the two cent limitation, 80 (IcclaroH in tlio jjarticular Act of Incorpoi'ation. (See sec. 5 of 30 Vie. cap. 97, Ont., as an example.) (/•) The rule established by this section is, that no Mnnicipal Council shall assess and levy in any one year more than an ai,'gregate rate of two cents in the dollar on the actual value, exclusive of school rates. To this rule there are, in and by tho section, two exceptions created : 1. A Municii)ality in which the aggregate amount of the rates necessary for the jiayment of riimnt (niini<(l i.rjuiixes, and the interest and the principal of the debts contracted by such Munici- pality at the time of the ])a8sing of the Act, shall exceed the aggre- gate rate of two cents in the dollar. 2. A Municipality authorized to exceed the rate of two cents in the dollar by si)ecial provision to that eflect contained in any special Act now or hereafter in force. In the case of either excerption, it is made the duty of the ^funi- cipality to levy such further rates as may be necessary to discharge obligations already incurred, but such Municipality is not to contract any further debts until the annual rates are reduced within the aggregate of two cents. (/) It is of course in the power of the Local Legislature to permit the limit to be exceeded either generallj' or for particular purposes. (See Aiiici/ v. All('iili<'»>/, -^ How. (U. S.) .S()4; WnUacc v. Son Jone, 29 Cal. 180; Wii'nroop v. Sorhtii, 10 lown, nSS; ir,rv v. Kird-iiL; 15 Jowa, 5(59; (lihhon v. Railroad Co. .SG Ala. 410; Fuote v. Salem, 14 Allen, 87.) It has done so notably in Acts for the aid of local railway enterprises. (vi) The object of this section is to enable Municipal Councils to encourage manufacturing estabUshmeuts within their limits. The 14 210 TIIK MUNICIPAL MANUAL. [a. 2G0. yoars, and to rfMunv tliis lixtuii] tioii for a fuilhor period not excoodiiif^ ton years. (/<) UU V. c. 2G, 8. 15. When the /SOO. In case in any i)articiilar year, one or more of the by'byTw''' following Hoiirces of revennc!, namely: (1.) The Hum raised limy lie ),y {]\,> sixH'iiil rat(! iiiiitoseil for the pavmeiit of a (h'lit, and by-liiw. collected tor any particular year; and (J.) llie .sum on liand from previous years ; und (3.) Any sum derived for such particular year from th(! suri)luH income of any woi'k, flection is not in terms restricted to ui'w manufacturing ost;il)lishmont.<(. It autlioi'i/A,'H tlie I'Xuniption to l»e inaile as to '(/'// niaiiuiacturing estal)!inhiiiunt, in wlinic or in jiart, apparontly cxtemliny to old aa ■WX'll aM now L'staKlislinuuits. NV'lietlu'r tliu introiluetion oC thu wonlw ■ •'' iv: '.iiiwio iii' ill j>,vi'u cuii'KiO.^ tilu » yorjioraiioil lo lUScrilllUiatu lit favour of new nianufaeturoa as again.st old ones of the same class or kind, remains to bo y-law exempting new maniifaetures as against old manufactures in the same line of hnsiness was void. (In re I'lrh-aml /)u,i(ltion, and it cannot he necessary either for tile j)roper stimulus of the trmlf, though it may stimulate .\. very W(jndcrfully in tliat tr.idt;, but then only at the expense of 15." (//>. p. 407; see further, sec. 2'2tand notes thereto.) The general rule is, that the burden of taxation should fall e(pially, and f(U' this reascm statutes exempting particular persona or jiarticular property from taxation are ei)astrue, and llinhof Mnutrcitl v. y'a///or, 1.5 U. C.C.I'. ll>7.) It isa(iucstion whether the J>ydawc;ui be repealed within the jieriod of exemption mentioneil therein, after its terras have been accepted and acted upon by the persons in whose favour it is passed. In other words, the (piestion is whether the By-law is to l)e 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 PJiid SaI<> to tlio .siiikiii<» fuiitl of tli(! (lcl)t ; ami (1.) Any sum (Icrivcd from tlio ti'inporiuy invcstmont of tlu* siiikinj,' fund of tlio dcht, or of any part of it, and cariMcil to tlio credit of tin- s|n'ciiil ratts and siukini,' fund act'ounts r('s[)('otivt'ly, amount to moro than tli(f annual sum required to Ito raisod as a special rato to pay tJH! interest and tlio instalnuMit of tlio dnht for tho particular year, ami leave a surplus to (lie credit of such accounts, or either of them, (o) then the Council may pass a By-law re(lucin,<; tho total amount to l>e levied under tho oriijinal Uy law for the following- year to a sum not less than the tlitlereneu Ix'twiniu such last mentioned sui'pius, and tho aiiiiiuirHUUi winch the original Bydaw nanuHl and recjuinjd to ho raised as a special rat(!. 2\)-'M) V. c. 51, s. '2'M). ?5IH. The Bydaw shall not he valid (jf) uuKjss it recites: (1.) Tho amount of tlu; sp.ecial rate imposed hy tho origi- (rt) Hiivint,' l>e apiiriivtd of by tb,' (iovor.ior. Aiiticijia- tory iippro- priaticus may bo made . What 'uiiil.s may be so appropri- ated. nal Bylaw; (r/) (2.) Tlic balance of such rate for the particular year or on hand from forinoi- years ; (?•) (3.) The sur2)lus iuLumc of the woi-k, share or inti^roi.t tliereiu received for such year; and (,s) (4.) TIio ainouut clei'ived for such year from any temporaiy investment of the sinking fi nd; (t) Noi- unless the By-law names the re(luced amount in the dollar to be levied under the original By-law ; [k) Nor unless the By-law^ Ijc afterwards approved by the Governor in Council. 29-30 V. c. 51, s. 237. Division VIII. — Anttcipatory Arrr.oriiiATiON.s. Whru n)i(f how mwle. Sec. ',^l).2, 203. J>j Senior for Junior Jfnnici/xiltti;. Sec. ;?6'.^. ^0*4. In case any Council desires to make an antici]»atory approi)riation for the next ensuing year in lieu of the s[)ecial rate for such year, in respect of any deljt, the Council may do so, by Bydaw. (iie, it ought iiever to he eueourageib In the case of ajipropriations to the siiikiiiLj fund account cif a debt, it cannot he legally doin'. (See Edin1)urijli U/c A-^siinnii'c Co. v. .S7. ('ii/lii-riins, l(((irant, ',i~d.) (li) TJie sources to lie one or other of the foregoing. (;■) When the sur[ilus, tliouyh not equal to the product of the entire rate for a year, is considerahle, a l>y-hiw may lie passed for the pro- poitioiiahle rii/tirtiin) of the rate (si'c. "JliO) ; hut when the surjibis is sullicieut to meet the sinking fuinl aiijiroiiriation and interest for a year, a By-law may he ])assed to the etfect that for that year the original rate he not Icckd. (ii) See note I to sec. 2r)2. {k) This section bears the rime relation to sec. 2G2 that sec. 2fil bear.s to sec. 2()(». The one is for the reduction of the special rate for a year, the other for the entiri' cessation of it. (/) ■ ce sec. 248, sub. G, aud notes thereto. 214 THE MUNICIPAL MANUAL. [sH. 2G4, 2G5. Tlie amount j)aiil : ThiJaniiUiil ainoMut for siukiiig fund ; The ainoniit for sinking fund ill lia'i'l: The aniiiuiit requirt'd fur interest ; And that it is resurvi'd, By-law to lif! apiinivi'd liy Govcnrjr. Antiiipa- tory iipiiro- priatiim nii separiilii'U of iiiiuiiri- pulitifs. (2.) The fimount, if any. alreiieci.(d Itate, AitiiUcntloa of. Sec. JOO, 207. Sni'j)li(n on Sj/ecin/ /'idc, I nnslnuid, of. Sec. 208, (ieiierdi Snrj/'ns, A/>j>/lcaf!nit of. Sec. 200-271. Unmiihorhrd Ajtp'icotion, L!ahilift/ /(,/•. Sec. 272. Yecirlij lictarns to d'orerniniiit. Sec. 2/ J, 27 Jf.. ^05. The Council of every IMunicipal Corporation shall keep in its books tAvo separate accounts, one for the s|)ecial Two siifci^I .•l(',;!olints (o Iiu k.|.l : 1, of till' SpC- c},\\ i-:iti's ; '-', (if til.' siniiukiiijj fmul. {()) 'I'wo iiccmnits are niciitiiiHi.cl : the sjieeial rate aeceunt, and the sinking fund or instalnient.s account. Tlie amount of all rates collected and received ))y the Treasurer will appear in the lii'.st, and from it be transferred to the seeoiul all such yums as form portions of the siidviui; finut or instahiuuts fuiu' aeeouiit. The lirster .sjieeial rate avemnit will constitute the interest account as well as tlie general aecount, and the sums rtcjuired for interest \v\]\ he retained therein until disliursed, and then l>e ehargeil thereto, 'lliu sums transferred on account of principal to tJ-c second or siidiinji fund or instalments account, will or course be also eliarged against the first or special rate account, and when transferred he erey-Iaw creating a debt, itc, im pa.ssod, tile ratable property is ascertained irreupcctiix' of amj future ipcnasr, &c. (Sec sub. f) to sec. 'J48.) ^m 216 Tin: MUNICIPAL MANUAL. [s. 267 tho sinking fuml account, or in jKiymcnt of principal of .such debt. (7) 2'J-:50 V. c. 51, s. 231. Application J>01. The (lovernor in Council may, bv order, direct tluit of ludiicys »/ ' V '^ wiUicoiisuni such part of tlie jiroduce of the special rate levied, anil at UiCoiim'ir' ^''^'' eriulit of the silikintf fund account or of tliti special rate account as afoi-esaid, instead of being so invested as lu-rein- after provided, (r) shall, from time to time as the same shall accrue, bo applied to the payment or redenij>tion, at .such value as the said Council can agi-ee for, of any part of such debtor of any of the debentures re|iresenting or constituting such debt, oi- any j>;trt of it, tliougli not then payabl(>, to be Sf^lected as ]irovideS ct .s('. ) J n any view, therefore, there may he an accumulation of mon(^y in the nature of surplus to the credit of the fund in advance of viiiat is required to pay the annual obligation tinder the By daw. Instead of investing the Ham;\ i)rovision is by this scetinu ma;iyiri;f tlie (h-lit iiy reason of no part thevoof beinjf yet payabh), (/) the Council shall, from time to time, invest in (jlovernment sticurities, or t)therwiso, us the (■overnor in C'ouncil may direct. (//) 2\}-'M) V. c. 51, 8. 232. /«00. Kvery such Council may appropriate to the pay- ment of any debt the suiplus income derived fi-om any public or Corjioration work, or from any share or interest therein, after paying the annual expenses thereof, oi- any unappro- priated money in the Ti-easuiy, or .my money raised by additional rate, (r) and any money so approjiriated sliali bo carried to the credit of the sinkinii; fund of the debt, or in paymcmt of any instalment accruing duo. [w) 29-30 V. 0. 51, .'••. 233. !^)0. Fi'om and after tlie passing of this Act, any ]\[uni- ci}»al Corporation having surplus moneys dt>rived from the Upper Canada Muniei[)alities Fund, or from any other source, other than from any distribution of the provincial suqdus, ((() may, by By-law, set such surjilus ajiart for educational purposes, and invest the same, as well as any Surplus lu.iy lie iuvt'sted ill nTlaiii Council may njiply otlicr funds to- wiuils such dubts. Cfftain uiducya may lir set iii)art I'lir cdui.'a- ti.iiuil luir- llOSl'S. Investment of siuue. (0 Sou note .s to sec. '2G7. ((') 'I'lie power conferred so far is simply to invest in fiovornmcut Becuritics. This, it is apprehended, may l)e made \\ itliout any order in Council. IJut if an investment otherwise tlian in ( Joveinnient securities, or sueli seoui'ities hereinafter speeially nientioni 1, it i3 presumed tliat an order in Coune'i will be leipiiied. ((•) Tlie rate for tlie payment of a del)t tn'eated by Piy-law is Ciileuhited aecordinjj; to the existing value of tlie taxaMe ])rnperty of the Muiiieipality. irrespeeti\c id' income t'roni publie works or other increase. (See. 'J-iS, suh. 4.) lint by this seetion the ("oiineil of the Munieiiiality is empowered to sujipl.'meiit the proeeeds nf tho rate liy the ai)pr(H)riatioii thereto of the foih)\viiig moneys : 1. The sinplus ineonie derived from any ])ul>lie or ( 'orpMfation work, or from any share or interest therein, after paying the amiiial exiienses thereof. 2. Any niiai>p'.'o])riated niDiiey in tlie 'I'reasury. 3. Any money raised by adiUtional rate. (iv) See note .v to sec. 2G7. ('») The original of this seetion was, by tiio Act (iinini()ii. Muiiieipiil delieiiUn'es, or in llrst iiu)rt;.(a<,fes on nal estate, held and use(l for farinint,' purposes, ami liein;^' the first lien on such real estate, and from tinio to time, as sneli secui'ities matuic, may invest in other like sri/.ed by law, as m;iy be directtiil l)y such By-law, (/>) or liy oilier Uyd^iws Proviso as to passed for that purpose; l'i-o\ ided always, that any sum so in\('st,(Ml shall not exceed two-thirds of th<' value of the I'eal estate on which it is secured, nccordiiii; to the last revised and corrected Assessment KoU at the time it is so in- vested, (c) 2'J-;j() V. c. 51, s. 272; Ml Y. c. :}0, s. 27; 32 V. c. l.'J, s. 21. investment. Loans to school trustees. Ji'JI. Any ]\r',ini''ipal (V)r])oration haviuLC surplus money.s set a])art for educational |iiirposes, may by jJydaw invest the same in a loan oi' loans to any Hoard oi' Hoards of Sehnol Trustees within the limits of the iVIunicipality, for such term or terms, and at such rate or rates of intei'est as may bo agreed upon by and between the jtarties to such loan or loans respecti\ely and set forth in such By-law, (e) ov may {/*) Tlie power is to set np.irt tlic surplus for educational purposes and to invest tlie same. 'I'lie investnieuts may be — ■ 1. ]n public .securities of the Doniiuiuu ; 2. Municipal tlebcntiu'es ; .S. Fii'.st mortgages on real estate, held and used for farming purposes. In tlie tvcnt of tht^ mortpiaRor making default, the Municipal roi'poration may, notw !litt;vniluig the provisions of the .Statute of Mortmain, li.ive a di'crcc of foreclosure. (Orfuril x. Ba'ihji, I'itirant, 27<>. i There is ])rol>abiyno serious danger of Munieipahties holding lanils s<' ac((uire(l to any alarmill^ extent. {Ih.) If it should l)ceome a serious evil, tlie Le^'islatuP' cm cure it at any time by eompelhng a sale of tbt; latuls s<> acquired. (//'.) (r) This proviso is directed against pos.-sible aliuse;!, and intended to secure safety of investment. The direction that the sum invested is not T<» exceed two-thirds of the value of the real est ite on which it is sc ured. juionling to the hist rcvi-cd and oi\irectud Assessment INiU at tlie time the money is invested, is deserving of careful attention. Municipal Councillors are ti-^istees for the ratepayers, and if they disrej;aril the safei;uard of tlim section, tiny are uiado civill> respuusd)le to make gooil the loss. (See sec. 272.) [c) It «hiudd be noted that the first part "f this section only applies to a Corporation "having surplus »n>\«c>s set ajmrt for cducatio> U purposes."' The first p.art ia a of the .\i'f of lS. Rtifore section 27-^ <>f tht' .Vet i^f IStUv wKk'^ was t.tkin from Bee. 4 of Stat. 27 Vic. caj). 17, each Vo\m ' '. ' v i grant to ss. 272. 273.1 .municfpal loan fund RETrnNs. 219 si'irtiulis. by Bv-liiw ^Tiiiit any jiortioii of such iiiDiicys or dIIht ijoncriil am tn i fimtls by way of ,t,Mi"t to aiil |)()or Hcliool Sections \vitliiii thft Muuici[)a]ity. ( /') 2'J-:')0 V. o. ')l, .s. 275. *ZTi'i, N^" iiu'iiibii- of ;niy ^ruiiii'i|ial ( '(M'jioratioii slial' N take jKiit in or in any \\a_\ be a pai'ty to tbe imcsliucnt of any sucii nioncvs as arc mentioned in (bis .\e(, liv or on i''i'y i lilt iiiticru f roi'linr.-l- til>ll to 111' lii\( striiciit. behalf of tlie ( 'orporation of wbieli lie is a iiiemlni-, otlnr- wise than as is anthoi'izeil by this Aet, or by the eli'venth section of the Act respeetiiiLT (lei-iry llesei'ves, or by any other !;i\v in that Ix^half made and ]iro\ ided ; (;/) and any i.i.aiUiy d such ptrsoii so doiiiLj sIimII be held ]» tsonally liable fi,r any '"^•''■ loss sustained by such ('ori»orat ion. (//) I'li/f 'J!)-3()\'.c. "il, 8. 'Jl I. '■w^»», I'Ik' Treasurer of ev( ry [Municipality for which any Mmiiiiii.ili sum of nionev lias b-en I'aisi'd on (he credit of the Consoli- dated ]\Iunici|ial Lo,;n I'lind. shall, so louf tics iijilcl.t- t\ to tmiiii- aiiv such stnii, or < 'f (hi' intercNt thereon. I'etnaius unpaid by stieh part of I ipal lo.in 1 1- 1 * . . the Tru.stecs of any Sclifiol Suction, on their ap])lieation, authority to borrow any sums y the section here annotateil, the Municipal ( Hrporation may m t ■fbrely give anthority to Schotd Tru.stees to borrow, but itself lend money to the School Trustees within tlie limits of the Municipality, "for such term or terms and at such rate or rates of interest as may be agreed uiion, &e., and set forth in such by daw." (Sec In re Dohi'ftyaiul Toronto, lM U. C (,». V>. -tOil.) (/) The latter part of tliis section is new. It is not, like tlu' th'st part of the section, restricted to moneys set apart for educatioii.il purposes. The grant may be of sucli last mentioned moneys, "or i>th(r general fnnds," lij- way of gift to aid poor School Sections within the .Munieipalitj'. (<;/) The members of the Muniei]>al Council are agents for the pcojile whom they represent, with a limiteil authority in I'egard to the bor- rowing (M- lending nf money, as well as otiiei- m.itti'is. 'I'liey arc also trustees for the people, and. Ik ing so. are not allnwcd tu make a Erolit out of the trust fund, >r deal «itli it other\\ise than directed y the Legislature. (See h« c. S'27, and notes tliereto.) (h) The Act uf 180(5 alsn provided tliat a ])erso!i iiflending against the section should lu' guilty of a misdeineanur. This portion of tiio section, for the reason that since Confedeiation crime and criminal law appertain exclusivi Iv ro tt. Ik'.miniou Legislature, is here omitted. (See note v t»> »«.i. 304.) I'llllcl to iiiakt'.Miinu.il ii'turns to I'ldvinrial 'I'ltasuror, 220 TIIR MUNICIPAL MANUAL. [h. 274. Penalty fur (Icraiill. Kvcry ooun' nil to iiiuke ft yearly report of statu of debts to Qovoruor, ie. What su-li report must show. Municipality, transmit to the Troiisuror of Ontario, on or before the fifti-cntli day of .laiiuaiy in every year, (/) a return, eertilied on the. oath of the Treasurei' bctforc some Justice of the Peace, containing' the amount of taxable ])roperty in the i\rnnici|iiility aecor.liui,' to the then last Assessment lioll or Ikolls, a trnr. account of all the debts and iialiiliti<'S of the ^Miinicipidity for (ivery pur|)0se, for the then last year ; and such further information and particulars with re^'ard to the liabiliti<>s anJ. Sec. J70. 1i7**. Jii ("aso one-third of t\w niciiib(>r.s of any Council, or wh.m a thirty dulv (lualiticil electors of the Municiiialitv, (i>) itctitiou <'_;"."f"^s'o" tor a C oniiiiission to issue under tlu" (rreat Seal, to nu[uu'e may issue, into the huancial ali'airs of the Corjioration and things con- nected tliennvith, (t») and if sutiicient canse be shown, tho Governor in Council may issue a commission accordingly ; and the Commissioner or the Conunissioners, or sncli one or more of them as the Commission i:mpij\s-(n's to act, shall have the same power to summon witnesses, enforce their (n) The Act of 1S(5G only provi. .'i(>7. ) Impiiries into other than financial matters are authorized l)y auotlii.i section of this Act {sec. 370). If it be alleged and proved that the Councillors whu.se duty it is to give all necessary and reasonable information, maliciously con- spirivi to withholtl int'orn:ation. aud contrived and intended to cause expense and flamage tci the ( 'or[ior;i.ti(jn, by iiicreaf;iiig the costs and expenses of the Commission, ami throw npou the Corjioration any 222 THE MUNICII'AL MANUAL. [s. 270. of SUI.'ll I't'l iiiissidiis liroviilc'l fur attomlimco, and coin]M'l them to luodiicr' (Incuinonts and to Lfivc evidence, as any ( 'tiiiit lias in civil eases, (oo) 21>-.")(J V. c. .Il, s. 21:5; :U V. e. M), s. 1.'). ^Tt 'l'l'<' <'\|i!'nsi'S Id III' allowed for exeeiitinLf tlie Coin- inission shall l>,' d itermined and cortiliod by tint Treasurer (A' Ontario, and shall (li"necl"i)rtli lieeoiiie a delit due to tlio Conuidssioner or ( 'oinniissionei-s hy the ('i)r[)oi'ation, and shall l»e i»iiyal)l(' within threo months after demand theniof made by the (l)niniissioner, or by any one of the Coinmis- sioners, at the oIKl-o of the Treasurer of tin; Uoi'jioration. (j)) j'j-;ju V. 0. r.i, s. 211. Tri'Li; IV. -AUIilTRATiONS. DrVISTON 1. — .Vri'itlNT.MKST OK AlUU I'l: ATOItS. Division II. — I'ltocKouuK. J)ivisii(N I. - Arr,)iNTMi;NT ok AiaaTJiATou.s, J/oin (i/i/)(>!ufeil. See. 277-281. Failitn: of jiuriii-s to Kppo'tnl. Sec. 282. Jii's/jcrtiiiJ/ Jioiiih, /)f((iiiti,<('c. S(',c. 28 J, 28 Jf. Where seccral liUeretits. Sec. 285, 280. Aautnl, inhiiii to be made. Sec. 287. Certain, jirrsoiis (Usijaalijied. Sec. 288. costs (sec. 270], anil it be eliargeil ami proved that the Couneillors, ill purHuaiieo of such coiitrivaace and iiitiiitioii, ini^^c'iiiiilueted them- selves to tlie damage of tiie t'oriioratioii, an aetioii <>a the ease may bo maintained against them at the suit of the Corporation for the reeovei'v of damages ( //). ) ; and in such an aetioii, wiiere it was shown that tlie Ch.'rk alisented himself and kt^pt haek the l)ooks, &e., in eoiliision witli th',' defendaMts, and tiiat, in eoiiseijuenee, the costs of the ( 'ommissioa, whieli otherwise would not iiave exeee led -C7"> or .i;iO(), were increased toil.'V-'S, it was held that the; sum of C'i.'iO damages was not e'xcessive. {Eiist Xi'<-(uiirl v. lliirniiuin it a/, IS U. C Q. H. .Si.) Tliere is nothing in the section to prevent the (Corporation from suing for money due them. {P) The expense's are tr. be drternuncd by the Treasurer of Ontario. No apjieal of any kind is jirovided for. \\''hen determined, the account may be certilied. When certified, the amount of it hecomea a dei)t due by the Municipality to the ('ommissioner or Commission- ers, payable '^within three e.ilenilar months after deniand, &c." A right of action arises on the p vrt of the Commis.^ioners to recover the money by action at law, after the amount has been determined, 89.277-279.] Al'l'OINTMKNT (>V AnillTHATOHS. 22;i ^31. ''Ii" ii|»|i'»ilit!ii"lil of ;ill Arli!tl;it')l'.s ^.ll;llI hn in Ai.piunt- writiiiL,' uiii|>T ill- li mils of t!i" iiit|M)iiitiirs, (n) or, in imh(> of l'^' bi''*,',,'',7J. ii ('oi'|iii'iitio!i, niKJiT til" ( 'I'lpMiMti' Stvil, iinil autln'iiticiiti'il ill like iiiiuiiicr as a \\y law. (A) 1".»-3U V. v. ')], h. ;i.")."3, sul). H. ?»JS, 'Hi'^ Arltitr.itors oil ^'liilfofa Mimifipil ('oriiora- Coiiin-il or tloli sliall l)i> a]ii)iiiiil('(l l)y (Ik; ( ouiicil tlicn'oj, or by tlin m.iy appdiui lic'i'l tli'-rcof, if aiitlioriz<"i liy a J>y-la\v of tlic (Jouncil. ('•) ''i' '■oii'uia- 2'j-;;ii V. c. ;>i. s. X)-.), sui.. ik ^'""' *^SiJ. Ill cast's where arliiLratioii is (lirc;i.'tr>il Iiy this Act, Mmio of either party may a)i|M)iiit one Arltitrator, ami ,i,'i\(' notieo !|l.'|','j.'"^'"^ thereof ill wriliii;^' to tiie otlx-r party, and therein oalliiii,' an.l lon- u[i()ii siieli party to ap|ioiut an Ailiitrator on hehalf of the aiijitr'aiuim party to whom sneli notice is i,'ivoii ; ('/) a notice to the ccrtilifil jiiiil ilcmaii.l d. 'J'hi; aiinanit ItLiiit; payiiblc witliin tliree uioiithH aftiT (kiu.inil tlionnif, kc, tin; (JommisHiniiurH are not oMigod to A\ait for iiayiiu lit till tlu- aniomit lias hciii raised by rates or other coutiii'^i'iKiy. (S'jo Froiihiinr v. Kiiin^lon, ."{O I'.C (J. I>. "(SI.) (>ioii a rule of ( 'cairt, and the ydaw (h'iegatiiig tlie apiiointnient to the hea'l of tlie Couneih (See see. 'US.) JUit the Municipal Council may so act as to l>e cstopj)cd from taking formal objections to the mode of apjiointnieiit. (Sec III re Kli/oii aii'l Fi r(ji(s(/n, (\ C. C. Iv. .1. -07; and \\"ilii itiid Port lliijii', 10 U. C. (^). I«. 40.").) The appointment, ^^ hen jiroperly authorized, should not only be under the seal of the Coriioration, but be signeil by the head of the Corporatifiu and by the Clerk of the Corporation. Such is the mode of aMtlu-nticatiiig a jiydaw. (See sec. l!'J(3. ) ('•) As a rule, an Arbitrator, to represent a Muineipal Council, must be ajipointed by that Council; the exception is wlien the Council, by Bydaw, deputes that power to the; head of the Council. (See note b to preceding section.) (d) The notice must bo in writing. It sliould state the object of the arbitration, name the Arbitrator appointed by the party giving IMAGE EVALUATION TEST TARGET (MT-3) y A {/ , ^ ^Iw ///// ^' «, y. 1.0 I.I '-IM ilM - m 12.2 2.0 1.8 1.25 1.4 1.6 -* 6" — ► s 4 /a >> ^3 c^ir ■> '^ V >^ Photographic Sciences Corporation ^ ali(i('s are interested, each of them shall appoint an Arhiinitor ; and in such cas' , if there be an rcpiality of Ajhitrators, tlie Arbi- trators so appointed shall a]>])oint another Arbitrator ; (gr) or in (l(f'-i>t at the CApiration of twenty-one days after sach Arbitra, ...i have been appointed, the Lieutenant-Ciovernor the jiotice, n' , \11 upon the other party to name liis Arbitrator. It whoiill li <; •ess :iiiointment, (<) or if any of said Arbitrators refuse or neglect to act, (u) the Judge of the County Court of the County in which the property is situated, on the application of either party, shall nominate as an Arbitrator a tit , person resident without the limits of the Municipality in which the pro])erty in question is situate, to act for the party failing to appoint or as such third Arbitrator, or in the stead of tlio Arbitrator refusing or neglecting to act, (v) and such Arbitrators shall forthwith (0) Where several persons are interested (as in the oj)ening of a new road, &c. ), there may be an arbitration under this Act as to each person interested, or, in the option of the Council, an arbitration aa to all, and the claims of all be de^^rmincd by one award, In the latter case, instead of seven days only allowed by subsection 7, twenty-one days are given. {p) See note d to sec. 279. iq) See note c to sec. 278. (r) As to computation of time, see note a fo sec. 128. (a) See sea 285. (0 As to computation of time, see note a to eec. 128. (u) "Any of the Arbitraf'ors. " This may be taken to refer to the refusal or neglect of any Arbitrator mentioned in any of the preced- ing sections, from section 277, to act, for in none of them is there any such provision made for the neglect or refusal of an Arbitrator to act. (v) Thoush not so directed, it would be convenient that the nomi- nation shomd be in writing. (See note / to sec. 280.) M: 228 Time for making award. THE MUKICIPAL MANUAL. [ss. 287-289. proceed to hear and deiennine the matters referred to them. Vide 29-30 V. c. 51, 8. 353, sub. 7. ?}8Tt In any of the cases herein j)rovided for, (a) the Arbitmtors Hliall make their award within one month after the appointment of the third Arbitrator, (b) Viile 29-30 V. c. 51, s. 353, sub. 6. Personn /S88. No member, oflBcor, or person in the em[)loyment ft'om'acting ^^ '^^y ^-Corporation which is concerned or interested in any BH arbitra- arl)itration, (c) nor any pei-son .so interested sliall be ap- pointt'd or act as an Arbitrator in any case of arbitration under this Act. VUle 32 V. c. 43, a. 1 2 ; 35 V. c. 20, s. 1 1. Division II. — Procedure. Oath of Arbitrator. Sec. 289. .; Proceed in(/8. Sec. 290. Coats, power over. Sec. 291. Majority to Decide. Sec. 292. Evidence, where filed. Sec. 293. Award, when adoption by liy-laio required. Sec. 294- Award, how made, a. id Jurisdiction of Courts. Sec. 295. Ari)itrators ^80. Every ArT)itrator, before proceeding to try the to bo sworn, matter of the arbiti-ation, shall take and subscribe the following oath {d) (or in case of those who by law affirm, (a) See see. 277, ft scq. (h) From the time the Arbitrator has made the award his authority ceases. He cannot afterwards make any correction or alteration, even of manifest errors. (Irvine v. EInon, 8 East. 54; Ward v. Dean, 3 B. & A<1. 234; Re Hall v. Hinds, 2 M. & U. 847; Brooke v. Mitchell, OM. & W. 473.) (c) An Arbitrator should be impartial. If corrupt conduct on the part ot an Arbitrator be shown his award will be set aside. (Sec Titlenmn v. Peat, 3 Atk. r)2'.) ; Eark v. Stocker, 2 Vern. 251; Burton v. Knbjht, Ih. .TH; Morf/an v. Mather, 2 V^es. 15; Emery v. Wase, 5 Ves. >j40; Loitxtlale v. Littledah; 2 V'es. 451; Clarke, v. Stocken, 2 Bing. (N. C.) G51.) But mere suspicion of misconduct is not enough. (Crossleij v. CUiij, 5 C. B. 581: see also Anon, 2 Vern, 100; Goodman v. flayers, 2 J. & W. 249.) In order that there sliould not be even suspicion as to Municipal awards, it is here declared that "no member, officer, or person in the employment of any Corporation which is concerned or interested in any arl)itration, nor any person so interested shall be appointed to act as an Arbitrator." (See In re Elliot and South Devon Railway Co. 2 De G. & Sm. 17.) (d) The oath is not only to be taken by every Arbitrator, but to be taken by him " before proceedino to try the matter of the arhitra- Hon." The oath, besides, ia aut unly to be taken but subscribed. 8. 290.] MEKTINOS OF AUHITRATOKS 229 make anruuicip,ilities inti-rested, and one shall, in case it be respecting driiinngf^ works as iifoi'e- said, be tilecl with th(> llegistj'ar of Deeds for the County in which the hinds artected are situate. (/) Vile 35 V. c. 20, s. 14. When taken and svibjcribeil, it is to be tiled with tlic papers of the reference. (e) As to coinimtation <-; time, see note a to sec. 128. (_/') There is no expresb direction in this statute that the Ar])i- trators shall give to tlu; lartios notice of their meotinys and an opportunity of heini^ heard ; but this is essential, at least to tliis extent, that whether there has Iteen a foruKil notice or not, it sliould appe:ir that the parties at least had knn\vliilg(! of the nui tiuga and an ojiportunity of being heanl and proiUieing evidence before the Arbitrators. [In re ,h>hnnim and (JlonceMei', 12 U. C. Q. B. l.'J.l.) (.7) An Arbitrator is in general, whether of the legal profession or not, the judge of law as well as fact (see Jiiiip ct til v. (•rii;/sitii, 1 C. M. & K. h'lli; Yuiiixj V. Walt'i; <> \'es. 3<>4, P>rrl,iinii v. S/i-ijijiill, 9 Bing. ()7l*; ('h(// v. Twoulow, 1 Price, 81 ; M'if.suii v. K'nnj,2V.&. M. (589; Ihi'lw F< njii-'oni, 4<), S. .S92), ami this being so, the Court will lie rehu't:int to set aside tlie award unless for mistake apparent on the face of it [llii'iifi' v. /hn-'iis.s, ;\ 1|. i^ N. 2!).S ; llnilijkhi^oii v. F< riiU', :U*. M. N. S. 189; /iti'jiulf,/ v. n<,r/lnnf/,, 4 b. T.' N. S. 2-1.'.), and, unles'< empowered to set it asid", will not in general remit it l);\ck to the Arl)itrator for recor.sideration. ( //o;/;/r v. ihirij'^fi, .1 H. & N. 2!>3 ; Lntfi V. W'ti'lhri'hjr, 7 T. ('. b. d. 207.) But as to certain awards, inquiry may bo liad as to the merits. (See sees. 294 & 29."). ) (/() In all cases the awanl is to be in writing. If it verc not fr>r this very ])roper provision, an award by word of mouth might bo held sutfieient. (Iftuiton v. Ltriniliji', Carthew, 20(5; /'dirliiKj v. Wood, Barnes, ,'J4; Gates \. Brom'il, 1 Salk. 7i5 ; Bluuddlw BnUanjIi, 17 Ves. 2:12, 249. ) (i) The original, in all probabihty, would be received aa evidence on its mere i^roduction, and if so, a copy thereof may be received 230 THE MUNICIPAL MANUAL. [sH. 291, 292. Costs. Mi^oritj tol decide. !391. The Arbitrators shall liavo power to award tlio pay- ment l)y any of the parties to the other of tlie costs of the arbitration, or of any poi-tion thereof, (k) aiul may eitlier direct the payment of a fixed siun, (f) or that such (tosts should be taxed on either the scale of SujMjrior Courts of Common Law, or of the County (/ourts, in which ca.so such costs shall b(} taxed by the ofiicc^r in tlie County of the proper Court, without any further order, (in) and the amount shall be payable one week after such taxation, (n) Revision by the principal officer at Toronto may be hiwl upon one week's notice, and an appeal to a Judge in the usual manner, (o) Neio. *i91i. In case of a difference between the Arbitrators, the decision of the majority of them sliall be couclusive. (y>) 33 V. c. 2G, s. 13j 35 V. c. 26, s. 15. without proof of the original. (Sec Warren v. Dealippen, 33 U. 0. Q. B. m.) (k) Power is given to the Arbitrators to award as lo costs ; but they are under no obligation to do so. They m.ay, if they see lit, be silent as to costs. (See Marlctiit»i'i*. »'«»* or profess to authorize any entry or use to be made of the jly hy'-iaw property before an award has been made, exce}»t for the withmacer- purpose of survey, or in case the liy-law did give or i)rofess to give such authority, but the Arbitrators find that such authority had not been acted upon, tlu; uwai-d shall not be binding on the Corporation unless it is adopted by By-law Oroundb of dt'i'isinn, Ac. to be Htated iu writing. 370), and full opportunity should be given to the minority of the Arbitrators, if so disposed, to join in the award. (lb.) (q) See sec. 294 and notes thereto. (r) ^V^lich may he in this form : " It is hereby agreed that section 29.3 of the Act respecting Municipal Institutions in the Province of Ontario shall apply to any award made touching or concerning the premises aforesaid. ' {n) The duties of the Arbitrators, where this section applies, are to — 1. Take full notes of the oral evidence given on the reference. 2. File the same, immediately after the making of the award, Avith the Clerk of the Council, for the inspection of all parties interested. 3. File in like manner all documentary eviilence, or a copy thereof. 4. In case they proceed partly on a view or any knowle«lge or skill possessed by themselves or by any of them, put in writing a statement thereof sufficiently full to allow the (Jourt to form a judg- ment of the weight M'hich should be attached thereto. But it does not follow that the award will be set aside for non- compliance with the provisions of this section, (la re Northurnher- landand Durham and Cobourg, 20 U. C. Q. B. 283.) 232 TUB MITVICIPAL MANUAL. [8. 295. Awani to \m made by at luoHi two arbitrators, and Hubjt'i'l to Mu|ivi'lur CourtH. Powors of thu ootirls tn such mattoru. within Hix wooks nftcv tlie milking of tho awiml ; (f) and if tiio Hain(» is not ho lulopttnl, the ori>,'inaI By law shall be (leomi'd to bo rojxfalfHl, and thi^ propci'ty shall stand as if no such liy-law had Iuhmi niado, and the ('()r|H)ration shidl pay tho costs of tin* ai-iiitration. 2!)-;U) V. c. r»l, s. '^'^'^, sub. 12. /S!)5. Evciy awai'd niado under this Act shall be in writing (//) uiid(M' tho hands of all or two of the Ai'bitnitor.s, and shall b(> subject to the jurisdiction of any of tin' Superior Courts of Law mission, wiietiier by deed or instnunent, not under seal, may be made a ride of one of the Sui)erior Courts of Law or lv|uity in Cjjper Canada, on the application of any partj' thereto, unless such agreement or suhinis- su)n contain wonls purporting that the jtarties mtend that it slnadd vol be made a rule of Court," X'c. This provision is now in sid)8tancc re-enacted in sec. 17<» of Con. Stat. I'. C'. ea|). 22, C. L. I*. Act. Tho etl'eet of the clause here annotated is to place .submissions under this section on the same footing as any of the foregoing roi'f)i>riif Dchvntnrcn. Sec. 200. licylstcrol Debentures. Sec. .lOO-oOd. No iHHiu', umfer -^lOO. Sec. .lOJ^. ^04». All del)entures and other instrunu^ntH duly noi.rnture», autliorizod to be executed on behalf of a Municipal ('ov- j""' ihoney collncted uiiilor MxcU By-law in projM'i'ly appliod to tho payiiu'iit of tho interest and principal of Huch dulMjnturcH. (o) U'J-3() V. c. 51,8. 213. pervcrBcly r«fu8c t<) diHchargo his duty in this respect, n H} -law may lie ptissod providing for tliu Higiiing (»f tho di-liL-iitures by Hi>mo person m his stead, and tliu dchuiiturus ho Higmnl will lie valid. {Jiruck V. Toronto «t NipiMsimj liitilwaii Co., 17 Orant, 4'J.').) (h) It has been held that a dehenture issued by a Miiiiieipal Council, under its corporate seal, and 8igne ; Wrh.^li'r ; Clark v. IWIc Countij, Ih. U48; HaUcad v. Mtiyor, <{v. ;{ Comat. (N. Y.) 4:}(>; /fohja v. 'Hiiifh/o, 2 Denio. 110; lioom v. Uthut, 2 Harb. 104; Aiillioiii/ v. lu/i'i'utunts, 1 Mete. '284), and may tile a bill in Kcpiity for the cancellation of securities illegally issued. {PiiliiMki Cniinf;/ v. L'lnrolii, 4 Kng. (.\rk.) 3'20; TriiMltcM, ,tr. v. Clicrrii, 8 Ohio St. .'»ti4. See further, note m to sec. 300.) A person negotiating the sale of a Municipal debenture is not answerable that tlie Municipality will pay the amount secured by tho debenture. {Sridlfi/v. MrC. ) (See further, note m to sec. 300. ) (c) The latter part of this section, like section 2<'>.5, is intended for the protection of creditors. The duty of tho 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 tliat «luty. If the By-law authorize the loan for a special purpose only, the Treasurer could not, M'ithout disregarding his plain duty, apply the money to any other purpose, {(ilricr v. Plunket, 15 (Jrant, 152.) But where the misapplication had been actually made before the filing of a bill by a ratcp.ayer complaining of the misapplication, and the same had been made in good faith in discharge of a legal liability of the Municipality, and the Council of the Township approved of and adopted the payment, a bill by a ratepayer to compel the Treasurer to repay the amount and ijersonally bear the loss, was dismissed. (lb.) M. 297, 298,] DEBENTORES DEFECTIVE IN FOKM. 236 In rrrUin C.IHCH, ill). iM'iiturri valid wltk- oiit niri»>- riittiiti'Al.Ac nfhfntiin* viih'l imt- witlist.itul- lu furro. /S97i Any sections onc! to live, both inehisive, of Hcction two iiuudred and forty-seven, or in accordance with section * o hui.dred and fifty, (/) and has received the assent of iIk" el'rt<»'a where ii<'c<' iiry, and that no successful application liir. oen (") See Bee. 471 and notes thereto. (/) TIiIh \h (in exeti)ti(in to tlie f^eiu'ral rule, wliicli retinirif dnbon- turcH of a Municipal ( 'oriioration to l)e Healed witii the sial of tlio Corporation and signeil f)y the liead thereof. (See. "JIKJ.) W'liy hucIi an e.Xfiejttion .should l)e either ereatey tin; Kditor in Ids preface to the first edition of this work. It w.-vs, to reiiiiirc all money By-laws to he approved by some competent j)ulilic functionary, and when so approved th, t the debentures shoidd not ho liahk- to ho impeached on the ground of informality, or want of technical accu- racy, or otherwise. (() It ij believed that section 248 and section 2.')1 are here intended. The debentures arc only made binding on the ( 'orporation when these provisions of the sections are complied with. (Sec 'J'nifit und /.onn Compnnjf v. Ifamiltoii, 7 U. C. C. P. 103; AikjUii v. Kim/xtoii, 16 U. C. Q. B. 121 ; Crawford v. Cobounj, 21 U. C'. Q. B. 113; see fur- ther, note 6 to sec. 296.) THE MUNICIPAL MANUAL. [sH. 299, 300. Form of debenture. Mcxio of transfer may J)o Jiri;scril)cd. inadn to qimsli tlio samo within the next tfrm after the pro- uml,^^lti()n thereof. (/.•) Vi>l,' .3."> V. c. 26, h. 22. /S«)0. Kvcry (lehenture issued uiulei- the sections of this Act, nuinbercd four Inuxh-ed and sixty-three, four luindred and sixty-four, and foui hundr<'d and sixty-five, inclusive, sliall Itcar on its fac(! th(> words '• Local Inii»rovenient Dt^heil- tur<^," and shall contain a reference, by date and nunilier, to the I'.y-law under which it is issiuMl. (f) 29-30 V. c. 51, H. 301. 1500, Any debentures to l>e issiu'd by any ^Iuniei])al Council may contain a j)rovision in the lollowiii;;' words; "This debentun^, or any intei'ost therein, shall not, ((/'fer ?) Debentures in the United States arc held to l)c negotiable. They are ilesigui'd for the raising of money for some particular purpose mentioned in the l>y-l;vw authorizing the same. I'idcsa negotiable, that purpose would bo defeated. They pass from liand to Irind as other negotiable securities. (See Mifcn- Coiinfi/ v. Har/.-rf, 1 Wall. 83; Mri/n- v. MnsnUun; Ih. 384; (Idprlcp v. I)i(liiii/iii', Jh. IT'J; Miiiiiil v. ]l'a'ui(' Coiinl;/, 2 Black. 7--; CiKiiiin V. HitUfoiiil Co., 8 <'ray, ~u'); Clitpit v. ('((lar Coimtii, 5 bnva, 15 ; Cntiif V. \'"irl:. V. RaUroad Co., '!{ How. T)?.") ; Hank v. liall- rod'/ Co., 4 Diier. 480; Coiiiiii'imIoih r.iv. Brii/lif, bS Ind. 0.3 ; Aurora V. IIV.,/, 22 Ind. 197; J)< I'/.ss v. nh-hmoml', 18(iratt. 338; St,ik v. MailUmi, 7 Wis. ()88; Miit) dcclari'd that a debenture, made ])ayal>le to any person or order, shoidd, afti'r the cudorsatiou thereof iu blank, by such person, be transferable by s. 300.] TRANSFER OF DEBENTURES. except by entry by the Trca.surer or his Deputy in the Debenture Registry Book of tlio said (Jorporatioii at the town (or village) of ," (n) or to the like effect, (o) Nev). 237 delivery from the time of thceiulorsivtion. The section has iif)tl)een re-enacted in this Act, iirol)a)>ly for the reastm that it migiit he held unconstitutional, asrelatinj^tti hills of exchange an \'ic. caj). 12, 8. '2), and tliat such transfer shall vest the property of sudi bonds or de])entures in the holder thereof to enable him to maintain an action in his own name. (//».) Such was in ell'ect tlie provision oi sec. 214 of the Municipal Act of 18(U). The fact tliat a debenture was, when duly signed and sealed, feloniously stolen from the Corjioration and transferred to the plaintiil", a hoint JuU' huhh'r, for value, was held to afl'ord no defence. ( 7V((.s^ .(• Lwm 'C,>. v. Ifmiii/tou, 7 l'. ('. ('. 1'. {)8.) Holders for value, without notice of the ccpiities Ijetween the original parties, are not bound by such e(|uities. {/n re Jvipcria/ JaukI Co. of M(ir.itilli.f, L. It. 11 Vai- 478.) Where a Corporation issues del)entures, knowing they may be assigned, the Corporation may be estopped as against the assignee from setting up, that the debentures were illegally issued. ( \V(-I>I> el (tl v. Il< me Bail, L. K. "> (^. H. (j-12.) By an Act of l*arlia)uent commissioners were appointed who wero to expend money in improving a Town. They were auihorized to levy rates on the Town and to borrow money on the security of tho ;ate8, giving bonds for the mcniey so borrowed, of which i'lOO at tho least should be chosen 1)y lot ami paiil otf every year. Interest on the br)nds had been duly paid and, except in two years, i'lOU had been pai I oH' every year, but more than £15,0(10 remained on the security of the bonds. //'/'/, that holders of such bonds to the aniomit of £SO0 were not entitled to the immediate payment out of rates oi- to a receiver of the rates. (/V<.sY(*« v. (Jreut Vitniiouth, L. R. 7 Ch. App. (Joo ; see further, Crouch v. Crvd'it Foiu-'ur, L. 11. 8 Q. B. 374 ; note h to sec. 21)0, sec. 21)8 and notes thereto, and note h to sec. 472. ) (h) The design of this section is so far to control the negotiability of the debenture as to enable the Municipal ( 'ori)oratioii at any time and at all times to have a knowledge of the holder of it. Tliis is in the tirst instance cileeted by a ileclaration 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 transfer of the debenture can be made, except by entry by the Trea- surer or his Deputy in the Debenture Registry bo(»k. 'i'he provision is analogous to that against transfer of pro})erty in a ship, except in a particular mode, aftei certificate of ownership granted. (.See Sherwinid v. Cokman, 6 II. C Q. B. 014; Urstr v. Mmintfuiii, 9 U. C. Q. B. 382; Chisholm v. Putti'Ty 11 U. C. C. P. 105; WiUo'ii H al v. Cameron, 22 U. C. C. P. 198.) The eliect of the provisitm will be to a great extent to impede and restra' the negotiability of tho deben- tures to which it relates. . ,; , . (o) Or to the like effect. — See note h to sec. 238. 238 THE MUNICIPAL MANUAL. [ss. 301-303. Debenture registry book. 301. The Treasurer of every Municipality iastiing any debentures containing the provision in the la.st section men- tioned, shall open and keep a Debenture Registry Book, in which he shall enter a copy of all certiticates of ownership of debentui'es, which he may give, and also every suVjsecpient transfer of any such debenture, (p) Such entry shall Jiot be made except xxpon the written authority of the person last entered in such book as the owner of such debenture, or of his executors or administrators, or of his or their lawful attorney, which authority shall be retained by the said trea- surer and duly filed, (q) New. lii^'i. After such certificate of ownership has been en- dorsed as aforesaid, such debenture shall only be transftirable by entry, &c. by entry, by the Treasurer of the Municipality or hia Deputy, in such Debenture Registry Book from time to time as transfers of such debenture are authorized by the then owner thereof, or his lawful attorney, (r) Neio. Council may 30*1. The Council of every Municipality may authorize the'iwr'rmv- ^^^ head, with the Treasurer thereof, under the seal of the ing of sums Corporation, to borrow from any person or bank such sums renrex- as may be required to meet the then current expenditure of pensea. ^]^q Corporation until .^uch 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 be given in security therefor, (t) ricgistered ilfbt.'Uturos traiisfmred ip) See note n to sec. 300. iq) No provision is made for the payment of any fees to the Trea- surer for *^he services directed. The rule is, that a public officer is not entitled to payment for duties imposed upon him by statute in tlie absence of an express provision for such payment. (See Jones v. Carmarthen, 8 M. & \V. 805; Askin v. London, 1 U. C. Q. B. 292.) (r) See note ?i to sec. 300. («) It is doubtful whether, in the absence of an express authority to borrow money, a Municipal Corporation has the power to borrow even to meet current expenditure. (See note k to sec. 248. ) The power to give a promissory note for money borrowed was alao a sub- }ect of doubt. (See Attorney-Oeneral v. Lichfield, 13 Sim. 547; see urther, note m to sec. 304. ) In the past, some Municipalities have assumed to borrow money from banks, and to give promissory notes for payment ; but the Legislature, to remove all doubt, has in express language conferred the power, subject to certain reasonable limita- tions. (See further, note u to sec. 304.) (t) The power 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 only 304.] MINIMUM AMOUNT OP DEBENTURE. 239 304t No Council shall, unless specially authorized so to Without do, make or give any bond, bill, note, debenture or other timrUy,"no undertaking,', for the payment of a less amount than one J'o''y By- law reijuire the payment of taxes to be made into the otKce of the Treasurer ))y a day named, and in default may impose an additional perce'itage charge apparently for the purpose of meeting interest on money i borrowed under this section t>y reason of the delay in pay- ment of taxes. (See note k to sec. 2(X).) («) It has been said that the power to execute bonds, deeds and covenants is inseparable from the existence of all Corporations, public and private. (See CommomuealtJi v. Pittshury, 41 Pa. St. 278; see also JJoinjloss v. Virginia Citi/, 5 Nevada, 147.) "Generally speaking, all Corporations are bound by a covenant under their corpo- rate seal, properly affixed, which is the legal mode of expressine the will of the entire hotly, and are bound as much as an intlividu^ by his own deed But where a Corporation is created Ijy an Act of ParUamunt, fur j)artieular jmrjiotoK ivith Kj/ecial pojvers, then indeed another question arises, their deed, though under their corporate seal and that regularly affixed, does not bind them if it appear, l>y the express provisions of the statute creating the Corpo- ration, or by necessary or reasonable inference from its ena. tments, that the deed was vltra vire,s ; that is, that the Legislature meant that such a deed should not be made." (/"er Parke, B., in •S'. Y. Baihcaij Co. v. U. N. EaihcayCo., 9 Ex. .55, 84; adopted by Martin, B., in Payne v. Brecon, 3 H. &. N. 579; see also Ilohkworth v. Dartmouth, 11 A. & E. 490; 7'fte Queen v. Lic/ijield, 4 Q. B. 893; Pallister v. Gravesend, 9 C. B. 774 ; Nowell et al v, Worceater, 9 Ex. 457; Kendall y. King, 17 C. B. 483.) The power to make bonds, bills, notes, debentures and other undertakings for the security of money borrowed is here expressly recognized and restricted to this extent, that the power shall not be exercised " for the payment of a less amount than |100," and with the emphatic declaration that anv ■uch security issued in contravention of the Act "shall be void. An exception is created by sec. 471| sub. 3. 240 THE MUNICIPAL MANUAL. [s. 304. intended to prohibit Municipal Councils acting as bankers, or issuing notes to circulate as those of a bank, (v) Vide 29-30 V. c. 51, 8. 218. TITLE VI. — RESPECTING THR ADMINISTRATION OF JUSTICE AND JUDICIAL PROCEEDINGS. -Coroners and Justices of the Peace. -Penalties. -Witnesses and Jurors. -Convictions unuer By-Laws. -Executions aoainst Municu-al Corporations. -Costs in "Manijamis." VII. — Contracts alike void in Equity and in Law. Police Office and Police Ma(;istkate. Board of Commissioners of Police and Police Force, Division I. Division II. Division in. Division IV. Division V. Division VI. Division VII. Division VIII. Division IX. (v) Banking, Criminal Law, and Criminal Procedure Law, are all Bubjecta which, under the B. N. A. Act, appertain exclusively to the I)omini(m Legislature. (B. N. A. Act, s. 91, sul). 1.1 & 27.) The Act of 186G was pas.sed by tiic Legislature of the late Province of Canada, before Confederation, .and therefore at a time when no question of its constitutionality could bo properly raised against it. The sections 218 and 219 of the Act to some extent relate to Crime, if not to Banking, and so tlie Legislature of Ontario lias very pro- perlj' said that " nothing herein contained sliall be construed to affect or repeal" so mucliof them "as is intended to prohil)it Muni- cipal Councils acting as haidicrs or issuing notes to circulate as tliose of a bank." In other instances the Legislature has seen lit, after declaring that nothing herein contained shall l)e taken or construed to afit'ect or repeal similar sections, to set forth the wliole section in words at length. (See sees. 307, 309.) The sections 218 and 219 of the Act of 180() arc in like manner subjoined for purposes of refer- ence. The reference to section 220, in the text, is a mistake. That section relates to matters over wliich the Legislature of Ontario has no jurisdiction, and is in truth re-enacted by section 224 of this Act. restrictions upon councils. 218. No Council shall act as bankers, or issue any bond, bill, note, debenture or other undertaking, of any kind or in any fonn, in the nature of a l)ank bill or "ote, or intended to fonn a circulating medium, or to supply the place of specie, or to pass as money ; nor, unless specially authorized so to do, shall any Council make or give any bond, bill, note, debenture or other umiertaking, for the payment of a less amount than one huntlred dobars; and any l)ond, bill, note, debenture or other undertaking, issued in contravention of this sec- tion, shall be void. 219. In case any person issues or makes, or assists in issuing or making, or knowingly utters or tenders in payment or exchange, any bond, bill, note, debenture or undertaking, of any kind or ni any form, in the nature of a bank bill or note, intended to form a circu- lating medium, or to supply the place of specie, or to pass as money, contrary to this Act, such person shall be guilty of a misdemeanor. S3. 305, 306.] JUSTICES of the peace. 241 Division X.— Court Housk, Gaols and other Places of Im- PRISONMKNT. Division XI. — Invkstuja i loxs a.s to Malfe.v.sancf, ok Corporatk Okkickhs. Division XII. — Wukn Mayor may call out " Posse Oomitatus." Division I.— Coronf.rs a>u Justice.s of tue Peace. Coroners. Sec. 305. Justices of the Peace — toho are Ex-offlcio. Sec. 30G, 307. Jurisdiction ofCoinit;/, C'if;/ (( n<1 7\)wii,/i(sfiees. Sec. 30S-313. Quafijicatioii of certain Justices. Sec. 31. 'f. 305. Onn or iiior(! Coronors iiiay l><* appointed for any Appoint- Incori .orated City or Town, [a) Vide 2U-;30 V. c. 01, s. 298. ""roL™. 300. Tlie licad of every Council, tlio Police INIagistrato Cortain pe»- of every City and Town, and Reeve of every Town, Town- ^^^^^l^" shij) and Incorpomted Villa<^e, shall, f',>" (;//<".•/(>, be Justices of ti'cs of tli« the Peace for the whole County, or Union of Counties, in ^"""^^" which their respective JMunicipalities lie, {b) and Aldermen in Cities shall ho Justices of the Peace in and for such Citie.s. (c) 32 V. c. G, s. 11. (rt) It ia not said hy whom tho a[)pouitment is to 1)o niado, but it is understood ))y the I'lxeeutivo. (See uote <•<■ to see. ',Y,\-. ] Tlie otiico of Coroner is of e(jual aiitiiiuity with that of SheritV. (Mirror, eap. 1, 8. ,3.) The authority of a Coroner is judicial aud ministerial ; judi- cial whore one comes to a violent deatli, or a lumwe or building is destroyed by lire in a City, Town or Village, in which case lie is to take iu([uest (4 Inst. 271 ; Con. Stat. Can. cap. 88) ; nunistirUil where tlie Coroner executes the Queen's writs on exception to the SheritF, as by Ins being a party to a suit, or of kin to either of the jtarties, &c. '(//'. ) See further, Boys on the Ottice and Duties of C(U'oncrs, p. 6. ('*) The ordinary rule is that the jurisdiction of a local otlieer 13 not to be extended beyond tlic Municipality of wliidi he is an oHicer. But as many of the crinnnals wlio find their way into Cities and Towns are from lairal Munici|>alities, an«l as some of tliose who escape from("itles and Towu-s liud their way into rural Municipaliticjs, in order to avoid the l)acking of warrants in such cases, it lias been deemed projier to make tlie otHcers in tliis section mentioned not simply "(V jffirlo Justices of the Peace,'' but 'xoj/i'v'o .lustices of the Peace " for the irhob' County or Union of Counties in wliich tiieir respective Municiijalities lie." (c) The declaration is not, as in the former part of the section, that the otHcers named shall bo i-.i; nJfi>'!o .lustices of the Peace, but that " Aldermen in Cities .s//f(// //c Jusfirrs of t/ir Pmrc in hik/ for such Vitlis." It was formerly provided tiiat before any AMerman shouhl act in the cap.aeity of a Justice of tlie Peace for tlie City or County, he should take the same oath of (lualitication and in the same manner as is by law re([uired by .lustices of the Peace. (31 Vie. cap. HO, s. 38.) This was an addition to sec. 357 of the Municipal Act of 1806, which contained uo such provision ; and, in 16 THE MUNICIPAL MANUAL. [ss. 307-309. Police magi- strate ex p/Bciojiistii'o ofUiui'uaco. Where there is a poli'jc inaKisti'iite, other .jus- tii^CM of till' peace not to act. JurisclintidH of polico magistral cs anil mayors over certain offencus. 301. Kvory Police Magistnito shall who ex qffin'o 1»o a Justice! of the Peace for tlio City or Town for which he holds office. (^0 32 V. c. G, s. 11. IJOS, No other Justice of the Peace shall admit to bail, or discliarge a jnisouer, or adjudicate upon, or otherwise act ill any case fur any Towi or City when; tiuM-e is a Police Magistrate, (f) exce])t in the case of the illness, absence, or at the request of the Police Magistrate. 32 V. c. G, s. 11. •MKK The Police Magistrate, {/) or, when thei-e is no Police Magistrate, the Mayor of a Town or City (y) shall conso(iuence, it was held that a warrant of foinmitinent signed l)y an Aldurnian wJio had not .so (|ualil'Kiil was invalid to uphoM tlic ilctcntion of thu prisoner conlined uniU;r it. ( T/ic Qiuth v. liu;//)-, 4 Trac. IL. 'J,')l); s. c. -4 U.C). \j.J. N.S, "i.")!).) It is now providcil tliat no Aldornian, &c., aftor taking the oatlis or making the ileelaration as Buch, shall be reiiuired to have any property qiialitieation or to take any further oath to enable him to act aa a Justice of the 1' aee. (See. 314.) {(I) The authority of Justices of tlie Peace appointed by the Crown is limited to the locality spccilied in their conmiissions. It is in no case attached to tiie person, so as to be capal)le of being exercised elsewhere than within those limits. A Justice of the Peace, for the time that he shall make his abode or be out of the County where he is in eoTnmission, cannot intermeddle or take any recognizance or any examination, or otherwise exercise Ids authority in any matter that shall hap[>en witnin the County where he is in commission. Neither can he cause one to be brought before him out of the County where he is in commission, " for being out of the County where he is in commission, he is but as a private man." (See Paley on Convic- tions, .5 Ed. IS.) A Police Magistrate has generally, as reg.ards the City or Town of which he is an officer, the same jurisdiction as Justices of the Poace have in their several Counties, and his pro- ceedings should be coniUicted in the same manner as if he were a commissioned Justice of the Peace. He is not only ex officio a Justice of the I'eace for the City or Town for which he holds office, but as well for the County or Union of Counties in which the City or Towv is situate. (Sec. 306. ) ((') The intention of this section, read in connection with the ( ^ ceding section, of which it really forms a part, is that iu a C it; o' Town having a Police Magistrate, the Police Magistrate, uniti prevented from acting by illness or aljsence, shall, in respect of offences committed iu the City or Town, be the only Magistrate entitled to act as such. But nothing in this section contained can be held to exclude the right of a Stipendiary Magistrate to act in extradition cases in such City or Town. (The Quten v. Morton et el, 19 U. 0. C. P. 1.) (/ ) See note d to sec. 307. (flf) Although the Mayor is ex officio a Justice of the Peace (sec. 30C), he is only entitled to act aa BUch where there is no Police Magiatraite, 88. 310, 311.] JURISDICTION OF JUSTICES OF THE PEACE. 243 havo jurisdiction, in addition to his other powers, to try and det-'nuine all prosecutions for oHcnces against the JJy-hiws of the Town or ('ity, and for penalties for refusing to accept oih 'c therein, or to make the necessaiy declarations of qualification and office. (A) 2U-:J0 V. c. 51, s. 212. 15 H). Kvery Justice of the Peace for a Conn tj'' (/) sliall Jurisdiction have jurisdiction in all cases arisinfj under any By-law of ',J,„'iJ.r J^yf anv ^Iiiiiicipalily in such County, where there is ao Police '^"■'*- Magistrate. (A) ' 29-30 V. c. 51, s. 'M)L lit 1. In case an offence is conunitted against a By-law of jurisdiotion a Council, for the prosecution of which oU'ence no other ".'.('.i'.'i^'jfy""' provision is made, (/) any Justict^ of the Peace, having iHuvided jurisdiction in th(! locality where the olleudt^' resides or ^^' where the ollence wtus committed, whether the Justice is a member of the Council or not, may try and d(!termiue any pro.secution for the ollence, 2'J-oO V. c. 51, s. 2U8. or in case of the illness or abseuco of the rolicc Magistrate, or by his request (sec. .SOS). {h) The jurisdiction is to try and determine — 1. All prosecutions for offences against the By-laws of the Town or City. 2. All prosecutions for penalties for refusing to accept office therein, or to make the necessary (Icclarationa of qualilication and olliee. (t) See note d to sec. 307. {k) The meaning of this section is not free from doubt. The language used is very comprehensive. Evrij Justice of the Peace for a County shall have jurisdiction in all cum'h arising xmder any By-law of a«)/ Municipality in such County where there is no Police Magistrate. This is broad enougii to give jurisdiction to County Justices, in the cases mentioned, over oS'cnccs against By-laws com- mitted in Cities and Towns, provided there be no Police Magistrate in such Cities and Towns. (See sec. 312.) (I) The Corporation of any C'ounty, Township, City, Town or Incorporated Village, may jjass By-laws for intlictiug nhnomihlc fine* and penalties not exceeding $5t), exclusive of costs, for breach of any , of the By-laws of the Corporation, and for inflicting rvasonahle puniahmeut or imprisonvient, with or without hard labour, for any period not exceeding 21 days, for breach of any of the By-laws of the Corporation, in case of the non-payment of the tine inflicted for any such breach, and there being no distress out of which the line can be levied, with certain speciiied exceptions. (Sec. 372.) The jurisdiction of the Justice is made to depend either on the locality where the offender resides or where the offence was committed. A Justice having jurisdiction in either locality may not only try but determine the prosecution. The authority of a Justice, who is so by virtue of his office as Mayor, Reeve, &c. , is limited to the County in which his Municipality ia situate, and the authority of a Justice of the Peace 244 THE MUNICIPAL MANUAL. [sS. 312-315. Jurisdiction of county Justines in uartain towns. When cer- tain ci>m- rniAslons of peuKU to Qaalifloa- tion of (M'P- taiii uilluial.s. Rcnovory and enforce- ment of ponaltius. 313. Notliinj? liorc'in contained sliall intorforo witli the jurisdictidnof Justicos of the Pcaco, for tlic (!ounty in which a Town liavinj^ no Polico Ma^istnitc^ is situate, over oflences comnnttcd in the Town. {»i) 2'J-3U V. c. al, s. 301. 313. Wlicn a Town has hcon eroi-tocl into a City, (/?) and tlio Council of tlit^ City (Udy or;,'anized, every foiiniiission of tl»o j)oac(f tlieretofore issued for tlie Town shall cease, (o) 29-3U V. c. 51, 359. 314. No Warden, Mayor, "Reeve, Alderman, or Police Mii;,'istrate, (y>) after taking the oaths or niakin;^ the de- chirations as such, shall Itt^ re(|uired to have any |tid|ierty qualilication, or to take any further oath to enalJl<^ him to act as a Justice of the Peace. (7) 29-30 V. c. 51, s. 358. Division II. — rENALTiES. Recovery and AppUcation (hereof. Sec. Sh'), 316. Where Offence CKjaiu.st Jiy-hucs. Sec, 'JI7-JI0. 315. Every fine and penalty imposed by or under the autho! ity of this Act (r) may, unless where other pro\ision appointoil by commission from the Crown is limited to the County tliurein specilloil. (See note •) he recovored and enforced, with ritsts, (/) liy smniMary i-onvictioii, licfon; ;iiiy Justico of tlu! Pciicc! for till' County or of the ^MuMicipality in which the offence was committed; (n) and in defnuit of payment, irnprUon- the otfemh'r may Ite committed to the common 'Mol, house of '!", '■!" , correction, or h)CK-up hoMSt> of sneli (V)untyor Munici|»ality, paynHui. iln'iv to he impiisoni-d for any time, in the disciction of liio convictinji Justice, not o.xceedin;^', nnh'ss where other provi- sion is specially made, thii'ty days, unless stich fine and pci'.alty, and costs, including the costs of the committal, bo sooner paid, (y) 2!)-30 V. c. 51, s. Sof), sub. 23. JJIO. When not otherwise provided, every ])ecuniary Ai-piicatioi penalty recovei-ed before any Justice of the Peace under " '"""' for broach of any of the tV-laws of the Council (fee. 372, suh. 13), in case of uon-iiayiucnt of \iv liiu; iiitlictnl for any .sucli lireacli, and there lioing no ilistress foiuid out of wliitli sucli line can l>e levied, exeeiit for l»reaeli of any iiy-law or l>y-la\v.s in Cities, and the sup- preHsion of houses of ill-fame, for wliicli tin- iinpi'isonnient may he tor any period not exceeding six montlis, in ease of the non-payment of the costs ami tines inliieted, and there being no sullicient distress. (•s) AVliere jjower i.s given to enforce payment of a i)enalty in a particular mode, tlie j)o\ver to enforce in any other mode is impliedly excluded. [Kirh v. Xotrill, I T. 1!. 118, l'_'r>; /fitrf v. Miii/m; -t; J//A.< v. Vliuiiilxrlitlii, 17 Wis. 44(5; Bultc v. ^V(.(t> Orhuii.'i, 10 La. An. 3-1 ; Uraud liapids v. Jltiij/ian, 15 Mich. 54.) (0 Before the 18 Ceo. Til. cap. 19, was passed in England, there was no i/cii' I'd/ power enabling a convicting Justice to award cKsts. Special provisions to that eflect «ere, howevei-, inserted in particular Acts. (Sec Sk'iiKjIcii v. Siirri'/'ji', 11 M. & W. 503; Il'/v/// v. To/.'c, 12 Q. K 492, 5I(».) The Justice cannot delegate to ai'iotlier the power to ascertain the cost.s. f T/n' Kiin/v. Sf. }fiirif.'i, XDtlhujhum, 13 East. 57 n ; Sdltraod v. Moniit, 1 (,). B. 72() ; Lwh v. Srlliniml, lb. 73G ; Till' Q'wcn v. Chirk, 5 (^. Ij. SS7. ) The amount of costs should be specilied in the conviction, {^lintt v. Arhrojiil, 28 L. J. Mag. ( "as. 207 ; Bee also Tltc (Jitcm v. E/i/, 5 E. & \i. 489; see further, Tumi v. Nrwmini, 15 M. & W. 0t5, G53 ; Wni>/ v. Tab, 12 Q. B. 492, 509; Till' (^iiccit V. It'liniiuriiaii-'lilri', 19 L.J. Mag. Cas. 172; Tin- <^>iiii n v. Mvnomtlixltirc, 1 I). & M. 121 ; Th" Qiirm v. ]VrMiiiorr/„,i>l, 1 D. & L. 178; Ex juirti- /rolloiiyi;/, 1 Dowl. 2(). ) Where tlie Justices left blanks for the amount of coats, it was hehl to lie an irregularity Itut not an excess of jiu'isdiction, so as to render them liable to be sued. {Holt V. Ackroijd, 28 L. J. Mag. Cas. 207; The (Juvcii v. Ely, 5 E. & B. 489.) (m) See note b to sec. 306. ((') It has been held that where corporal punishment is sulistituted for the penalty in the event of non-payment, the pnnishnient is not to extend to the non-payment of the costs, f The Queen v. Barton, 13 Q. B. 389; see also Barton v. Bricknell, lb. 393.) 246 THE MUNICIPAL MANUAL. [s. 317. this Act, fihiiU bo j)iii(l and distrihuted in tlio following ' muniKn"; («) ojio moiety to the City, Town, Villai,'** or Town- s'lij) in wliicli the oftenco was coniuiittod, and tho other nioicty thereof, with full cohIs, to the person who iiiforniod anl prosecuted for the snnie, (/y) or to sueli other person as to the JuHtieo may seem proper, (c) 29-30 Y. c. 51, b. 355, sub. 2.'). ETidcnce IMl. The .T\istice or otlxT (luthoiity before whom a prosecution is had for an oU'enco against a iNlunicipal Hy- ((() If tin- Htiittite uml'T wliii'li tlu^ cnnvictinn t;i';cs jtlacc ajijiliea the iK'iiilty with nrtiiinty, it in suliiciiiit fiH' tlie .histiee to award the penalty to lie }paiil and ajiplied acoerding to law. ('V\>i l^im.! v. Btin-ilt, I SalU. .'W.'i; 7'Ac Kinq v. Sfnlc, H Kast. 7u'.^\ Tin Kiii'i v. T/iimipsnii, •-' T. i;. 18; Th<- (.inrni v. /f>/>lr, '2\ L. .1. Ma^'. <'.is.'<.»4; Ji'< Hoi,lliro>i,l, 1.-) .M. & W. I ; '/'A. Q,t>;n v. i'rhl'mi^l, 7 Iv & I'.. ^.')3; Tit" Qiiii'ii V. Jo'iiiioii, 8 C^. B. 102; aee alHo '/'/n' Qiii'< ii v. p, 4 H. & Al. «)1(J; Jinjivii v. Ni<'l„,l.^„ii, '^ (J. I J. N. S. 4tiS; ,s' mir u'h Jfi,s/>!f>t/ V. Llrrr/in,,', 4 Ex. 180; ir/vj// v. A'V/s I K. & K. -JTii.) If thuru 1)0 any material variance httwuen the conviction and the statute as to the aitpropriation of the penalty, the conviction will be bad. ((Irqlilh v. Ilu-rl% '1 .M. & \V. •^•^:^■,'(•|lf(,l, !<>,■!: \. WiH.idhnm et (il,~}{'. U. (W."). ) It is (hielarey section .'ill) of tliis Act, which app:i,rently ajiplies to all convictions for otlenci'S .against l>ydaw.s under the Act, tiiat when the penalty has l)ccn levied," one moiety thereof s/ni// go to the informer or prosecutor, and the other )noiety to tlie Municipal ( 'or- poration," unless "the prosecution i.-i hrought in the name of the (.'orporation, in which c:ise the whole of the pecuuiiuy penalty shall be paid to tho Corporation." {!)) Tt is tho policy of the Law under penal statutes to give a portion of tho penalty, generally one-half, to the inl'ormer. JIncu this large projtortion seldt)m has its cfVect. " 'J'he moiety of the informer's share of the penalty should be preserved to him. Under the Uy-law as it stands, he gets no share ; and it maj' the energies of a clas.s of people who are sn}ipn.!cd by the L'"^'islaturi: to be nece.-sary, and to do good service, if tho reward which stimulates tliem to action is taki'U away." (Per Wilson, J., In re tSiicll v. Bcllirillf', 30 U. C. Q. B. 81, 80.) (r) Tn this case, supiK)sing tho .Tuatice to have the jmwer, notwith- standing tho provisions of sec. 81!l, to make the selection, the .Justice should on the face of the conviction make the selection. Whore the statute gives a discretion, either as to the anuuint of the penalty or its application, the .Justice must, on the face of the conviction, show in what numner tho discretion has been exercised. ( '/7i< King V. Dim I )■-■<■ I/, *J T. \i. {1(5; T/ic Khui v. St/iti'imts, ] Jvist. KSl* ; He Booth roijil', If) M. & W. 1 ; The Klinj \\ Stall', 8 I':ast. n.JS, 'uH; The Khuf v. SiiiUh, 5 M. & 8. 1.S.3; The Qiiroi v. Johnson, 8 Q. B. 102; Wl-o'i v. ToL-e, 12 Q. B. 4i)2 ; see also The Kin{ht ho .irmud, fnm) the UHcof tlirso Woi'<1h, tliat tho JuMtH'o hIioiiIiI not lie ut lilicrty to t'.xainiiic uny witnowa to wliotii ho iiiij^ht tliiiik jh'Mut to j^'ive orodit. I>ut, acciirding to tho int«Tiirotatinii luit upuii s.' nilar wnrds in tlio ou- stitiitiou of tlio St.ituto of Kr.iiula, 'Jit Car. *_, o.ip. 3, hoc. 5, rml hie. witiio.s.s is oijuivalciit to I'diiijiihnt witiioHs. ,//(tt/v.i v. J/iiiii/ihrrii, 9 I'iok. ;{.">l»; I/m-'U v. Illllhu-d, 'J.'J I'i. k. 10; Amunj v. J-'< //oii\^, 5 Mass. ■_•!!(; Siitrs v. hl'Hii'jIiinn, V2 M.i^s. 'i.SS ; .larnian on Wills, Snl I'M. S'J. ) So that ^'.iicli witiics.-iis only (;;vn l)o propi-ily oMunim d who aro ooinpotoiit witiKssts in a ('mirr, of .liistiii. \\'licii jk cii- niaiy intorest anioiintrd to .-i dis(|ii.ilio,ifion, tlio informer, wlion entitk'd to a portion of tho penalty, was inoonipotint lioth on tho ground of iiit(reHt and on tho ground of IninL; a jiarty ontorod on the rocord. {Tlir KUkj v. Ti'hi, I Str. 3 Mi; fhr K'mij v. ,S7.(/;r, 2 \A. I!ayd. 1.")^'); Thi' Kin;/ V. Ufdii'i/, Andr. 'JIO; '/'/n Kimj v. P'lirri/, III. 18; Till' Kiii/■'rocoeding, nuitler or (|uest!on li'f,,n'. aii'l Jii ''x-i' nr .li'-l'if ' of tin P I'I-' , Miiyor or Police .Nlagivli.ite. in any matter cogniz.ihle hy such Justice or Jn4ices. Mayor or J'oliee Magistrate, iiul lirlm/ a iwhii*', tho party opposing or dii'endiiig. or the wife or liusiiand of such party oppo!^ing or defending, shall bo coiiipi'l/ III a,nd''(jiiip(llit't/;ooption:;, is the fact th.it In.' is a party to tho record. One of those is that no person shall he eompeiluhje to answer any ([uestioti tending to ciiniin ito himself r v. T/ic (JiU'/n, 7 I>. & S. -I'.IO, L. K. I't^. P.. .390; 10 Cox, 1>7(»; Alli,rii'ii-rniUty and CUHtS. 148 THE MDNICIPAL MANUAL. [8. 317. Biifli part of *]w penalty or piiiiislinKMit imposod l»y the By-law as ho Hliall think Ht, ( /') with thi^ co.sts of prosccu- □awleriml. tioii, (if) aiul may, hy warrant, under tlio liand and seal of th«! Jiistico or other authority, or in case two or nioro JuHticcH act together therein, then under the liaisd and seal of ou« of tlioni, (/<) cauHo any such poc'uniaiy penalty and costs, or eosts otdy, if not forthwith paid, to l»e levied Ity distress and sale of the goods and chattuls of the olleuder. (i) 2'J-.U) V. c. 01, H. 2(J'J. {Pir Tliireii Martin, in saau; case, |». 1)0. ) Wlieit; tliL- prfRtH'ding Ih eon- dwctiMl with a view iiml for tlie piuiiosu ef nhtaiiiing niih'css for tlio vielatioa of a private ri;^lit ouly, tin' inoi'i'i'iliug is a civil oiiu ; t)ut, on the other hanil, where tlie proeeedin;; is direeteil for tiie punislinient of aa oU'euee wliieli militates against the guaiTal uitereHtsof theeom- nuuiity, ami for the ])unishiiieiit of the infraetion of Honie pal)Uc tlaty, such in'oceeding is a (;iiiniual proeeecliiig. (/'(/'Sir Alexandor (!oekl)aiii, ni argniu'' same ease, p. Sll.) It is not iin easy matter to draw a hne, and so he al)le to deeide on which side of it uaeli case should he placed, lleference may l)e made to the following cases: Atlonii ii-(l(ii( fill V. Jioii'niiiii, *J iJ. & I'. ."».'}■_', \i.\ Attonii ii-di iiirnl v. SUldtini, I (". & J. •!•!{) ; h\r />,irlr li,,rl,;ii30; l!(irkhitm V. liliiik, 1» Q. H. (i'.H ; Cnhlxtt v. Sluii'iii'tii, *J Vj\. ihVA; I'J.r /xirtf K'jiiiiiiilitii, '1 10. & li. 717; '/Vc- (Jmen V. T/i(iiiiit.suii, 1() t^. H. 8.'{'2 ; '/'//'■ (Jinrn v. Jurksoi), (> Cox, TrJ.') ; The Qiinii V. WInltnbr, I Den. .Si(» ; llo'i- v. WoutI, ',\\ L. J. Mag. ('as. 15; Hwri'ii'i/ V. Sjioiiinr, ',^ B. it S. ',i'2'.}: Allnnn ji-di lond v. Siil/iran, 32 L. J. kx. 1)2; ICiisluHn Ciisr, I'i A. & K. Gl;'); Ciitlil v. Jrc^oii, K B. & K. !)1; Moiuhii V. J'uiiir, 7 C. B. N. S. U41; Jliornc v. Uarton, 2 E. & K. Gli; Parbr v. (.'rm,, 2 B. & S. 2!)i) In ir Liicns and Mr(.'/. 11.) The power of the Corporation to delegate to the Justice the iixing of the amount was also doubted. ( Ih. ) But as a knowledge of the circumstances of each particular case is essential for the exercise of discretion both as to fine and imprisonment, and as tins knowledge can only be obtained by the Justice before whom the ollVnder is brought, it has been deemed right expressly to provide that the Justice shall awaril "the whole or .s(((7t part of the penalty or punislunent imjjosed by tiie Bydaw as ha nhall think Jit." (In re JSnellaml BdkcUh; 30 LT. C. Q. B. 81.) (. -1. Till' f;utt tliiit the ceiivictinii uiidi r this ncctiou in to \n' fellowi'd \ty ;i pi'cmiiiiry jiciialty, (.'iifiprt\'al»lc l>y distress, is an additional reason lor lioldiii^ tliat tliis scetioa ilous not coiitciiipl'uo oases (if oriinc. (Sue note < to this sectifin.) (/•) Tlic power of iiii|irisoniiieiit may l»ceitiiiT as the direct punish- ment for an otl'i'iicc or as tin; means of enforcing' payment of a pecuniary jicnalty. in tliu former, the jirovision would savour of crime (sje note c to sec. .'ilT); in the latter, of procedure other tliau criminal procedure. (///.) Hero the power of ('ommitment is con- tin;^ent on "there heing no distress fouml out of which the jienaity can 1)0 lovied." The cominitinent, thcri'fon.', ought not to ho issui'd till the fact that there is no «ulHcicnt distn^ss is asecrtaimd. ( '/7/e Qiii'i'ii V. /fiiir/:liit, Fort. -7-, j> ; s. o. II Mod. ,')4. ) t'onvictions under the Dominion Fishery Act, 31 \ ic. cap. <)0, are peculiar in allowing imprisonmont if the line be not furt/nriflt paid. (See Aniolt v. Bntdli/, U3 I.'. 0. C. 1'. 1.) {I) The coinnuttment must ho in writing. {Mdtjhi'in v. Lorb', 2 Marsh, .S77.) It should ho drawn uj) forthwith after the oomiiiit- ment is ordered. (/>'( Mit'. ) Detention of tho party without a written warrant cannot 1)0 justiliod further than necessary to make out the warrant. (Jfuh-liiitson v. Ldinidc^. 4 B. & Ad. 118.) But the dotontion of the party till the return of the warrant of distress may, it seems, be by parol. (.SVifc v. WulLs, 7 East. o;^3.) (?») It appears that section ,310 and this section are to some extent in contlict. Both sections apply to con v^ictions for ofl'ences against Bydaws ; both assume to make regulations for the distribution of penalties recovered under such convictions. This section makes an absolute and exact distribution ; the former leaves the distribution to some extent in the power of the convicting Justice. It enables ^m THE MUNTICIPAL MANUAL. [ss. 320-322. Who may bo Ralopayprs, memijors, Ofliccl'H, &(•., of CDi'iioi'a- tion coiiii)c- tent wit- nesses- may be challengL'd as jurors. Compelling WitlU'SHCS to attend, &u. DivtsioN III. — Witnesses AND JuiioRH. Informer, C ompete.nt, Sec. 320. Rate.puycrs, Jfetabei's, 0//icei's, d'c, of Corporations at Wit- nesses. See. o,U. Liable ti> clmUemje *J'J. In prosecuting under any By-law, or for the breach ofauv By-law, witnesses maybe coini>;dled to attend aiK ^ly M' give evidence, in the same manner and by the same process the Justice, ;is ti> duo moiety, tn order it to l>e paid " to tlie person who iiiforiDJil iuni proseeuted, or to hueli o'lr r jursou as t() tlie .fus- tice may sjeiu proper." The safer rule would be to act under the section here an uotated, whenever the two are found to be in eontliet. {») This renu»v'cs all ground for su})posing that the informant or cnmnlainant is, by i-easoii of poouniary interest, dis(ptaliiied, but leaves the ([uestion as to the competency of the person <'omplaincd against to he a witness untoueheil. (See note r to bee. I) 1 7.) (n)i) As to what matters are civil and what criminal, see note e to sec. 317. (o) The Evidence Act, Con. Stat. U. 0. cap. 32, long before the passing ot the Act from whieii this seeiion is taken, had removed any such disqiialilicatiou as is liere supposed to exist. (See note c to sec. 317.) (/)) If this means anythin :,•. it means tliat the fact of the person called as a juror being a ratepayer of the Cori)oratiou — that is, a party to the civil proceeding in which ho is called -shall be a per- empt(^ry ground of challenge. Before this Act, sueli a person " was liable to chillengo" for cause. The object of this Act must be to make the challenge good as a peremptory challenge. The only exception to the challenge is where the Corporation " is a County. " 323.] CONVICTIOXS UNDER BY-LAWS. 251 as witnesses are compellod to attend and f,'ivo evidence 'in summary procot'din^fs before Justices of the Peace, in case :ried summarily imder the statutes now in force, (7) or which may be hereafte)- enacted. L'U-30 V. e. ol, s. 303. Division IV. — Convictions undku Bv-laws. Form of. Sec. 3^J. ♦{33. Tt sliall not ho necessary, in any conviction made under any By-law of any ^lunicipal (Joi-poration, to set out the information, ajtpeai'ance or non-api)earance of tlie de- fendant, or the evidence or By-law under Avhieh the convic- tion isiiiade, (/•) lint all sueli convictions maybe in the form given ill tlui following schedule : (.s) Province of Ontario, 'j Be it rciucmbercd, that on the County of , ' day of A.D. at in To wit. ) the County of , A. B. is cou- \ncted before t])j undersigned, one of ITer Majesty's Justices Fiinii of ('Miivict.io;i umlir liy- l.iws. Schedule. (7) ff it. be nuidu to appear to any •lu.stici' of tlie I'racc liy tlio oath or alllriiKitiou of any credible person, that any [k rson v\itliin tlio juiisiliction of siieli .histiec is likely to give niatoiial e\iil(.ni'e on behalf of the pro^veittor or eoni))lainanl: or defendant, anil \\\\\ not vohuitarily appear at the time and |ilae:_' a[)pointed for tlic hearing of the information or complaint, the Juatiee wliall issue ids summons to such person, under his hand and si'al, n(|uiring him to be and appear at €i time and jilaee mentioned in sueh .sunnnons, before tho Jastiee, or before sueh otiier .lutiee or Jnstiees of the I'eaee Uw tho territorial division, as may tlien Ite tin re to t> stify v liat he kn(i\\-3 conejrning ilu' iniormatiou ci" ■■mn[>Iaiiit. ((.'on. Slat. Can. eap. 10.'), sec. 1(). ) If the person sunnnoiied ne','leet or rifuse to appear at tho time and place ajipointed by the summons, and no just excuse be ofl'ered for sueh neglect or refusal, then (after proof upon oath or aliirmation of the summons In.vin^j; been serveil upon such pel sou either personally or liy leaving; tiie same for him with .'-ome ])erson at his last or most usual jilaee of idiode) the .fust:iee or .justices before whom surh person should ha\e a]i)ieari'd, nray issue a warrant under his or their han-is and seals, to l)ring and have sueh person at a time and place to l)e therein mentioncil before the Justice who issued tho sunnnons, or before sueh other Justice or .Justices of the l*eaee for the s.ime territorial division as may be then thereto testify as aff)re- said. (l!i. sec. 17.) The warrant may, if neei ssary, be backed, in order to its being executed out of the jiu'isdictiou of the Justice who issued it. (111.) (/•) The la v was formerlv otlun-wisc. ( The Queen v. Jfosn, H. T. 3 Vie. U. & H. Dig. Convicticm, 4.) {■1) The conviction should show tho Bydaw to have been passed by the Council of the jiarticular Municijiality. ( 7'A. (J/noi v, Oshr, 32 IT. C. Q. n. :v:,l. ) The omission of the ali' ties. (0 As to award and distributiou of the penalty, see sec. .310 and notes tlicreto. {a) A Municipal Corporation being liable to l)e sued (see note d to Bee. 2), is liable to the couseciuence of a suit, viz., execution. Aa the assets of the C\)r[)oration are not tlie property of the nieniliers of tlie Council, but of tlie people whom they represent, the form of I'roceeiliug by execution again.st such a Corporation must, under certain circumstances, differ from that of proceeding by execution against an individual. If it were no* for the provisions hero made as to execution, it would seem that the judgment creditor's principal remedy would he by writ of mandamus. (Co// v. Liiom^, 17 Iowa, 1; Sitp< rrl-iors v. Uiiilid S/nf-s, 4 Wall. 435; ilahnia v. Aimi, a Wall, 70.'); Olni'H v. llarrcii, T)!) 111. 453; Frank v. San Frand'scn, 21 tial. 6(>8 ; Srlia[f'<'r v. Cailwalhuhr, .36 I'a. St. 12(1; Van Jfoll'man v. Quinrij, 4 Wall. 535; Jfit/^is v. Johnson Co., G Wall. IGG; Wrher v. Lnc Co., lb. 210; Unikd States v. Keokuk, lb. 514; Slate v. IIiuj, 44 Mo. 116; B. 324.] EXECUTIONS AGAINST CORPORATIONS. 263 to levy the amount thereof hy rate, (h) and the proceedings thereon shall then be the following : (c) (1.) The Sheriff shall deliver a copy of the writ and Shoriffto endor.-onient to tlie Treasiiri'r, or leave such coi)y at the ofwdtanS' office or dwelling-house of that officer, with a statement in st;'tcment writing of tlie Sheriff's fees, and of the amount required to treasurer. satisfy such execution, ((/) including in such amount the State v. Bi'Jolf, 20 Wis. 79; Staff v. Mthrauhr, Ih. 87; Sntittcrw. MailUov, !;■) Win. 30; Sdtb' v. ]Vil- /I ■•■.■< and Bat/iiirst, 1!» U. C. Q. B. 28.) The-o is certainly no right, indepen- dently of statute, in the creditor to resort for p;.yment to the private property of the inhabitants. ( /fonii-r v. < 'oij'i ij, 2,) M iss. (3 Cush. ) 434; see also Bi-ardsh ij v. Smith, IG Conn. 3GS. ) (h) The writ inn>i (not must) be indorsed with a direction to the Sherifi' to levy the amount by rate. Tiie writ may also, it is appre- hended, be indorseil, as in the case fif writs of execution against individuals, cither to levy of goods or lands {ur as the c^.sy mai/ In-) of tlie Corporation, in whicli event a rate woidd not be contemplated, and probably would not bo necessary. (See ('hh-aijo v. Ifa-s/ii/, 2.") 111. 595; see also JJiard-'^i'iij v. Smith, 10 Conn. 308; Jlonurv. Co^'ii/, 25 Miss. 3 Cush. 4.34.) (c) If the writ be indorsed by rate, the proceedings .shall bo as directed. {d) The Sheriff is to deliver — 1. A rnpn of the irrlt and iniloracmont to the Chamberlain or Treasurer, or leave such copy at the olKco or dwelling-house of that officer. 2. With a stall mrnt in vrlllng of the SherilT's fees and of the amount required to satisfy such execution, including in sucli amount the 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 against Municipal Corporations, unless he actually malce tlie monej'. {(•'rant V. J/anilllon, 2 IJ. C L. J. N. S. 2(52.) Wlicre a scttleme.it is obtained by means of the pressure of the Sheriff, he is entitled ti) be paid reasonal)le componsaticin for the services performed, althmigli no special fee be assigned for such service in any statute or table of costs, (Jb.) If the Sheriff make the money, it w(udd seem tliat he is enti- tled to poundage, though he may under this ocction have levied a rate to collect the amount. (lb. ) 254 THE MUNICIPAL MANUAL. [s. 324. If ehim not intprest oalculiitod to some day as near as is convenient to till! diiy of the service ; (2.) In case the amount, with interest thereon from the bPhtrnokby *^''^y '"''ntionod in the statement, be not paid to the Sheriff sberitr. within one month after tlie sei'vice, the Sheriii" shall examine the Assessment liolls of the (.'orj)oration, and shall, in like manner as I'ates are struck for <,'i'ucral Municipal purposes, strike a rati; suMieient in the dollar to cover the amount due on tlie execution, ('') with such addition to tlu; same as the SherilT deems sullicicMit to cover the interest, his own fees and ilw Collcctoi"'.s percenta^^e, up to the time when sucli rate will pro'uably be avail;ible ; siieriff'a (3.) The Shd-iff shall thereu])on issue a precept or pre- ''.'„Vu.i'toi" cejits, under his hand ami senl of oifice, din^cled to the Col- *c., t ) levy lector or res[)('ctive Collectors of the Corporation, and shall annex to every pi'ecept the roll of such rate, and shall by . such prec(!pt, after reletting the writ, and that the Corpora- tion had neglected to satisfy the same, and referring to the roll annexed to the precept, command the Collector or Col- lectors Avithin their respective jurisdictions, (/) to levy such rate at the time and in the manner by law required in respect of the general annual rates ; Rate Rolls. (+.) In case, at the time for levying the annual rates next after the I'eceipt of such })recept, the Collectors have a general rate roll deli\<'red to them for such year, they shall adtl a cohnun thereto, beaded, *' Execution rate in A. B. vs. The Township" (or, as the case nmi/ be, adding a similar column (r) Tt is the duty of the Sheriff to strike a rate "sufficient," &c. No provision exists for the striking of a second rate, in the event of tlie i'wiit provin;; insuliieient. If tiie amount levied should be more than sutlicient, provision is made for the dis})osition of the surplus. (8ul). n.) It woidd aiijtear to be necessary, where there are in the hands of the Sheriff at the same time several MTits of execution against the same Corporation, to strike a rate for each particular writ. (See amnt v. Hamilton, 2 U. 0. L. J. N. S. 262.) (./') The fird thing for the sheriff to do is, to deliver a copy of the writ, indorsement and statenifnit, in the iirst sub-section mentioned. The wcond, after the ex[)iration of a month, to examine the Assess- ment Rolls of the ( 'orporatiou and strike a rate, &c. , as in the second Bubsectiou directed. The third, to issue a precept such as in the subsection here anno- tated mentioned. If the Corporation withhold the Assessment Holla from the Sheriff, his remedy would be to apply to the Court by man- damus, to compel them to submit the Rolls to him. (See Orant r. , Hamilton, 2 U. 0. L. J. N. S. 2G2.) ss. 325, 320.] COSTS IN MANDAMUS, 256 for eovlt execution \f mmr than one), and shall insort thoroln the iuiiount hy such pivcf])t nMniircd to he Icvicil u])i)n ouch pers^oii rt'sppctivcly, aiul sliall levy tho amount of such oxocu- tion rat(^ as afoivsiiiil, and shall, wilhiii the time thoy arc hy law n'(iuii-(>d to niak<' the returns of the ^'(Mi(>ral annual rato, return to the Slu'i-it!" (7) the pi'cccpt with the amount levied thereon, after deducting their percentage; (.'».) The Sheriff shall, after satisfying the execution and Surplus all fees thereon, (//) pay any surplus, Avithiu tea days after receiving the same, to theTreasiirer, for the general purposes of th.' Corporation. 2'J-3() V. c. 51, s. 224, suh. 1-5. IVi^, Tlie Clerk, Assessors and Collectors of tho Corpora- tion siiall, for all purposes connected with carrying into ellect, or jK'rmitting or assisting the Slicritf to carry into ellect, the pro^isions of this Act with respect to such executions, be deenxMl to be officers of the Court out of which the writ issued, and as such shall bo amenabh^ to the Court, (i) and may be [)rocceded against by attachment, mandamus or othei'- wise, in order to compel them to j)erform the (hities hereby imposed upou them. 29-30 V. c. 51, s. 224, sub. G. ri.Tk. ii.ssi'ssors jiiul coUec- ims to be iiffUu:rs of tilt- court finiii whiuh writ issues. an- V. Division- VI. — Costs in Mand/mus. *{^(>i Ujion any a])plication for, or other proceedings Costs upon upon, a writ of mandauuis for or against a Municipal Cor- '"=^""'"""*- poration, the Courts may, in their e jjunislied by process of attaehmeut for contempt iu disobeying its rules or orders. (See 2 Chit., Archd. 1710, 12 Ed.) {k) At Common Law, when a rule 71m for a mandamus is dis- charged, tlie C'ourts give costs or not to the person opposing it, according to their discretion, in each case. (Kcniwiti/ v. Sandwich, 9 U. C. Q. B. 320, 331.) The discretion is now expressly conferred ' ' for or against " the Corporation by this section, wliich is a re-enact- ment of section 223 of the Municipal Institutions Act of 1866. In a case decided under tho last mentioned Act, the Court said, "The 256 THE MUNICIPAL MANUAL. fLs. 327. Di\a9ioN VII. — CoKTEAcra voin alike is Equity and Law. Contracts *5^Tt -In ciiso a iiioinlx'r of tlio Coinicil of any Munici- wUh tho"^"^^ pality, (hither in liis own namo or in tlio naino of aiioth(5r, Corporation j^^^j (.itluir alone or jointly with another, enters into a con- law if void tract of any kind, or makes a i>urclia,s(! or sahi in which the la equity. Corporation is a I)ai-ty intercstinl, and Avliich is on that account void or voi• Jiurns, J., in The i^neni v. JlaldUfuind, 'JO U. C. (I \\. '•>H2.) In K'numtr v. IJold'nimud (.SO U. C. Q. B. .SOS), the Court dischargeil a rule iit4 for a similar purpose, with costs. But in ]V< ■•y-law which was subse- (piently passed, the Court of Chancery held him to be a trustee for the City of the prolit he ,a,i (OCrant, 1), and afterwards upheld by the I'rivy Council. .So where a memljcr of a Municii)al Corporation agreed with another party to take a contract from the Corporation for the execution of certain Asurks in his name, the prolits whereof were to be divided between the parties, it was held that such a con- tract was in contravention of the Miuiicii)al law, and the Court of Chancery refused to enforce the agreeuu'nt for a partnership. (('nUhiH V. Sirinillf, (irant, '2S'2.) A bill will lie, by some of the iniiabitants of a Municipality alleging an illegal misapplication of Municipal funds by the Mayor, Avhich the ( Ouiuiil, though re(piest(!d, refused to interfere with. (.See Paterson v. Bour^f, 4 (irant, 170.) (771) In au action at law, the declaration alleged that defendant, as agent of the plaiutiti's, umlertook to expend certain moneys for them in certain roads and bridges ; that he falsely and fraiululently repre- sented to them that he had caused work to be done; and, in collusion with the persons alleged to have done the work, and by drawing false orders in their favour containing such rei)resentations, caused a certain sum to be drawn out of the plaintiffs' treasury, whereas n 258 THE MUNICIPAL MANUAL. [s. 328. Police offlcea in cities and towns. DivLsioN VIII. — Police Office .\.nd To lice Maoistuate. Who to Preside in Police Office. Sec. o^S. Clerk of. Sec. S2i). Mdijistrate, Appointment and Solar ij of. Sec. 330,331. Tenure of OJfice. Sec. 332. ♦W8, The Council of every Town and City shall establish therein a Police Office •,{n) and the Police Ma;,'istrate, or in hia absence, or Avhere or when there is no Police Ma<,'ia- trate, 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 necessary for the disposal of the business l)rought before him as a Justice of the Peace ; bat any Justice of the the work luid not ])ceu done and the plaintiffs lost the money. Common money counts were added. It apjjeared at the trial that the Corporation, by a resolution, directed that !$3()() sliould be granted to each C!ouneillor, defendant being one, to be expended on the roads ; and, l)y another resolution, that .§100 should be placed to the credit of each Councillor, to be exi^ended by them on the roails and bridges in their respective divisions. This was in accord- ance with an established practice, by which the Councillors super- intended the laying out of moneys in their respective divisions. Defendant granted several orders on the Treasurer to different persons for work alleged to be done, whicli orders were paid, and it after- wards ai)pearc(l that the work, though contracted for, had not been done. There was no evidence of fraud or collusion on the part of the defendant, or any gain to himself, except a charge to the Corpo- ration of commission 9 of ; the Peace Imviufj jurisdiction in a Town or (*ity niuy, .it the request uf tho ^[ayur thereof, act in liis .stead at the polico ofHce. { p) Except in cases of ur;L,'ent necessity, no attoiid- anco is required on Sunday, Christmas Day, or(!ood Friday, or any day appointed by proclamation for u Public Fast, Tlianks;,fivin<^ or Holiday, or on any day set apart by tlin Council as a Civic Holiday. (7) Vide L"J-3U V. c. 51, s. 3(J7. iVii}. The Clerk of the Council of every City or Town, or n.rk ..r such other person as the Council of the City or Town may a',',',i his '" appoint for that puri»oso, shall be the Clerk of the Police iii't''--* Otiicc thei'cof, and i»erforni tlus same duties and receive the same emoluments as Clerks of Justices of the Peact; ; (/•) and in case the said Clerk is i)aid by a fixed salary, the .said l•V'!^ '"■ *' . ... s'lliirv emoluments shall be paiil l)y them or him to tin; i\runicii)ality, and form part of its funds, and such Clerk shall be the ofUcer of and under the Police ^Magistrate. («) Vide 2U-30 V. c. 51, H. 37-t. (/)) No Justice of the Peace for a City or Town whore there is a Police Magistrate, i.s cinpowereil to act " in or for such City or Town, except in tlie case of the ilhiess, absence, or at the re([uest of tl>e Police Magistrate." (Sec. ;^(>8.) 'riiis jiart of the section ap]>lieH to the case of a Town or City where tliere is no IVtlice Magistrate, anil the Mayor is entitled to act as such. (See. .S(K).) (7) The statute -!) Car. 2, cap. 7, a. (>, prohibits the execution of any process, warrant, &c., on the Lord's Day, except in cases of treasiin, felony, or hreach of the peace. It is a matter of public policy that no proceedings of the nature described in the statute should be had on a Sunday, and that they cannot be made good by any assent or waiver by the l)arty illegally arrested. (The Kin'i v. Miijirs, IT. U. "ilj,"); /.V Hmnsiln}, '^ I). & b. 74S ; Ex parti' '/■Jjuliitoi'i, //>. 754.) 'J'lie statute autlmrizes arrest nn a Sunday for iii'lirfult/,' /■' offences, (/.'xir/ins v. Hlli-s lO M. & W. 172.) It is presumed that the L'olice or otlii.'r Magistrate, whose attendance may be required on a holiday, is himself to judge whether the case be one of " lugent 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 f)f the i^ord's Day in Upper Canada. " (Con. Stat. U. C. cap. 104, s. 1.) {)•) The appointment of Police Clerks rests with the Municipal Councils. The Clerk of each ( Council is to act (v ojlirlo in the absence of any other apjjointment. Whetliei- he acts I'.r niHrh) or is appointed to act, if in the receipt of a lixetl salary as Clerk of the ( 'oiuicil, the fees appertaining to his olhce as Clerk, eitiier of the Police or Recorder's Court, are to be paid by him to the Municipality and form part of its funds. (s) Where a Municipal Council, in 1850, passed a vote assigning to the Clerk of the Peace a lixeil salary "in lieu of all fees," and .subsequently the Jury Act (13 & 14 Vie. cap. 55) was passed, it was* held that the resolution would not debar him from claiming fees allowed by the statutes for preparing jury books for the following L'OO 111 wlint ciiaca ]]i)lir(! tn lid iil>- jMiiiited. Salaries of polici! iiia;;!- stratcs ill citieH. In towiiH. I'dliic niat;ist.i'atr.s may be ap- [■nilltl'il ill tiiwns iil'iiiit mure than fiOOUinlialiit ants, on certain enll- Uitiiiiis. THE MUNICIPAL MANUAL. [ss. 330, 331. •{•10. All Cities, !iii4.) 'I'lic Court saiil, " 'fliu t'ouucil may, in tlicir discretion, revise tlicir regulation of his salary in consenueneo of the change made iu hi« .) The office of Police Magistrate is, by the Bection here annotated, held only "during pleasure." (See Hammond v. McLay, 28 U. C. Q. B. 463.) 2G2 THE MUNICIPAL MANUAL. [h. 333. Konrrl of riiiiiDilri- HlonorH of Jiollce In citicH mill Idwiim; of whom cum- JiOSUll. I'owcrsaH t( witncssuH. ^l\lt. In evory City tlinre is horoby coiiHtituU^d a Board of CoiiiinisHionors of Police, and in every Town having a Police Magi.stnite, the C.Vnincil may constitute a lik(« JJoanl, («) and Kucli Board siiall consist of the Mayor, the .Iud;{c of the (Jounty Court of the County in whicli the City or Town is situate, and the Police Magistrate; and in case the oiYwe of County Judge or that of Police Afagistrate he vacant, the Council of the City shall, and the Council of tin; Town may appoint a peraon resident thei'oin to be a member of the Board, or two jx'rsons so resident to bo members thereof, as the case may recjuire, during such vacancy; ( /') and such ' ComniissionerH shall liave power to .. amnion and examine witn(!sses on oath, {(j) in all matters connected with the administration of their duties; (h) Provided always, that the Council of any such Town may at any time, by By-law, dissolve and j)ut an end to the Board, and thereafter the Council shall have and exercise all the powers and duties previously had or exercised by the Board. 32 V. c. G, s. 1.5; 37 V. c. IG, 8. 10. (p) Of late it has been deemed expedient to witlidraw jKirticidar miuiiuipal functions from the Councils of certain Municipalities, and to vest such functions in Boards appointed wholly or in part inde- 1)endently of the people. It has )>cen found that < ouncillors chosen >y the people, and directly responsible to the [xjople for their conduct, are not the best custodians of power to be exercised against some of the people for the welfare of the whole people. Matters of Police have for this reason been withdrawn and vested in a Board of Com- missioners of Police, created as provided in this section. (/ ) The intention is, that tlie Board, when full, shall consist of three persons, and that it shall at all times be full. The Board i» made to consist of — 1. The Mayor. 2. The Judge of the County Court. 3. And the Police Magistrate. The only qualification required of tliem is that they be residents of the Municipality. Two of the Board constitute a qiioinim. (Sec. 334.) {g) This is an imperfect provision. The power is to "summon and examine witnesses on oath." But no provision is made for the com- pulsory attendance of witnesses, or for the punishment of refractory witnesses when in attendance. Had the provision been that the Commissioners should have "the same power to summon witnesses, enforce their attendance, and compel them to produce documents and to give evidence, as any Court nas in civil cases" (see sec. 275) ; or that, for the jjurpose of the inquiry, the Board should " have all the powers of Commissioners under the Statute of Ontario respect- ing inquiries concerning public matters " (see sec. 370), the section would have been more complete. (A) Their duties under this Act are — S8. 334, 335.] LICENSING CAM, ETC. 203 •{34* A majoritv of tlif> noanl slmll constituto a qnonini, Mninrity i,. 11 P ' • • I II I • 1 1 ft I'llllHtltlltc nnd tlio acts ot a uiajonty hIirII no coiisidci-cd nets ot tlio n ((iionim. Board. (0 'Jl)-30 V. c. 51. h. ;}l)r>. llllii* Tlio Board of ( 'mtnissioiicrs of Police shall in I,il■.■nsin^; Cities rci-'uiatci and liconso tho kwiu^'h of livery stuldes and ''^';7 of liorscs, cali.H, cai'riai^es, oinuiliuscH and other vcliicle.s used laiw, &V for hire, (k) and shall establish the rates of fare to be taken 1. To regiilato iiml liceiiHe tlio owners of livery stiiMeB iiiul of horaos, calia, uariiageH, oiniiiliuni'H ami other veiiicKa used for hire, 2. To cstabliBh tho rates of faro to he taktMi. 3. To proviile for enforcing payment of suuii rates. (Sec sec. 335.) 4. To ajipoint nienihers of the rolieo l''oiee. (Seo. 310.) 5. To make regulations for tho govennnent of tho Force, &o. (8ec. .341.) Besides, under Stat. 37 Vic. eaj*. 32. s. 0, they may jias.s By-laws — 1. For delining the fomlitions and (lualilications reciuisite for grant- ing tavern and otlier licenses for tlie sale of spirituous liiiuors, Ike. 2. F(»r declaring the terms aiiil conditions recjuireil to he complied with by applicants. 3. For ileclariug the security to ))e given hy applicant for a shop license. 4. For limiting the nnmlier of tavern and shop licenses, &c. 5. For exempting a limited nund»er of persous from the uecesaity of having all the tavern accounuodation recjuired. 6. For regulatini; the hinises or jdaces to be licensed, &c. 7. Fi)r detenninniif the sums to be paid, &c. 8. For appointing Insj)ectors of Licenses. 9. For defining tho duties, remnueration, &c., of such Inspectors. ((■) No provision is made either for tlic appointment of Chairman — though a I'hairnnin is intended (see sec. 3.3<)) — or for a casting vote in the event of a tie. (See People v. Kcrtor, <(r., 48 liarb. 603.) Acta (lone when less than a legal quorum is ])resent arc void. (Price v. lin'ilroivt Co., 13 hid. .')8 ; Lixjimsjxirt v. Leijij, 20 In I. 315; Fenjiiso)! V. C/iiffi Ill/en CoDiifi/, 1 I'hig. (Ark.)47!b Mr(Jriirk('ii v. San Fnnn-'iKco, IG C'al. 591; Piinental v. San Fraiu-Uro, 21 C'al. 351 ; Inxuniure Co. V. Surtwdl, 8 Allen, 217 ; sec further, note ij to see. 120.) (k) Power to a City Council to make such ordinances "respecting streets, carriages, waggons, carts, drays, &c.," as to them shouhl seem expedient ami necessary, was held to authorize an ordinance requiring all persons who drive for hire any cart, dray, wagj^on, or omnibus, within the City, to take out a license ami to re(iuire the vehicle to be numbered, or im faUure to do so to pay a tine. {City Council V. Pe/)per, 1 Rich. (S. C. ) Law, 3(54 ; see further, iii^rkiinj v. Jones, L. R. G Q. B. 2!).) Under a similar ordinance tlie imposition of an annual cliarge on each car of a street railway company was sustained. (Frankford Rnilmiij Co. v. P/uLide/pliia, 58 Pa. St. 110; Johit-son v. PhikuUlplda, 60 Pa. St. 445; but see Mai/or, fiuiltie«, *<■. IIow rr- cuvered. fisli shall be deemed authentic, and be received in evidence in any Court of Justice without proof of any such sitjuature, unless it is specially pleaded or alleged that the signature to any such original By-law has been forged, (o) 32 V. c. 32, s. 39. Iili7. In all cases where the Board of Commissioners of Police are authorized to make By-laws, either \inder this or any other Act or law, they shall have power in and by sucli By-laws to attach penalties for the infraction thereof, (ou) to be recovered and enforced by summary proceedings before the Police Magistrate of the City for which the same may be ])assed, or, in his absence, before any Justice of the Peace having jurisdicti'^n therein, in the manner and to the extent that By-laws of City Councils may be enforced under the authority of this Act ; (p) and the convictions in such pro- ceedings may be in the form herein set forth, (q) 32 V. c. 32, s. 38. • J5:W. The Council of every City shall appoint (r) a High ^jh^^ Bailiff, (s) but may provide by By-law that the othces of High Bailiff and Chief Constable shall be held by the same person. 29-30 V. c. 51, s. 389. (o) This is in effect a transcript of a similar provision made as to the admission in evidence of ordinary Municipal By-laws. (See sec. 227, and notes thereto.) (oo) See sec. 315, and notes thereto.) (jo) See sec. 308 et seq. [q) See note h to sec. 238. (r) The appointment of High BaiHfiT rests with the Municipal Council, whereas the appointment of Constables rests with the Board of Police Connnissioners. (Sec. 340. ) (s) A.ConstaV)le is an officer of great antiquity. (Rac. Ab. Constable, A.) Tlie office was originally instituted for the better preservation of tlie i)eacc. (//*. C) A Constable is the proper officer to a. Iu.stice of tlie I'eace, and so is bound to execute warrant.s. (Ih. I). ) If a Constable be sued for anytliing done in ihe execution of liis office, he%iul all who assist him may plead the general issue, and give the special nuitter in evidence. (//*.) There may be one or more Con- stables for each Ward of a City or Town (sec. 344), or as many Constables or other officers and assistants as the (^ouncil may deem necessary. (Sec. 339.) Tiie Chief Constable is the Constable appointed to ' on 'v. md so. lay 1 13, lay I a lay to bo absolutely required. 29-30 V. c. 51, s. 39G ; 37 Vic. c. IG, 8. 11. 340i Tho members of such Police Force shall be appointed arrest any other person found eounnitting any indictable offence in the niglit. ('A'2 & S,'} Vic. cap. 'ii), a. 4.) Any Peace OHieor may, without a warrant, take into custody any person whom he iinds lying or loitering in any higiiway, yard, or other place during the niglit, and whom he has goo, 248 ; s. c. Ld. Rayd. 12!>(), 1301.) In ordinary cases, to justify an arrest by a Police Oliicer even for a misdemeanor, it is necessary that he should have the warrant with liim at the time. (The (^iK-cn v. Chupiiuin, 12 (.'ox, C (.). 4.) It is no part of a Police Constable's duty as such to assist the occupier of a house in t mttm^mitivnmivwAcr (Tlu (juern \. lioxlniffih, 12 Cox, C. C. 8), yet le may lawfully do so. (ll>.) If a private individual state facts to a Constable, who thereupon, upon his own responsil)ility, arrests a person, or if he procure a Magistrate to issue a warrant for taVi'ig a person, the impri.sonment is not his act, ami he may show this under the plea of not guilty. (Barhcrv. HoUbi.-^oti , 1 C. & M. 330; Stonrhouse v. EllhU, T. II. 315 ; Brandt v. Craddock, 27 L. J. Ex. 314 ; Or'udtamv. WUlcy, 4 H. & N. 49G. ) A Constable is justified in arresting without a warrant ujion a reasonable suspicion of a felony having been committed and of the person being guilty of it, although no feh)ny has in fact been conmiitted, and whether the reaai/, G B. & C. 035; J/o;/;/ v. Wanl, 3 H. & ^'. 417.) But a Constable is not in ^'cneral justilied hi arresting a j)erson who frequents a highway with nitent to commit a felony (7^*; Tinmon, L. II. 5 I'Jx. 257 ; see also In re June.-i, 7 Px. 580), or in arresting a i)erson for a mlxdenieanor without a warrant (Matkewx v. Biddidph, 3 M. & U. 300 ; Griffin v. Coleman, 4 H. & N. 265 ; see sec. 345), unless there be a l)reach of the peace in his presence (jf'i»iO?/ty v. Simpmn, 1 0. M. & R. 757; Dere.cmirt v. Corlmhky, 5 El. & B. 188), or danger of a renewal of it. {The Queen v. Liy/d, 27 L. J. Mag. Cas. 1 ; The Queen v. Walker, 23 L. J. Mag. Cas. I2:i ; see also, Pexterjield v. Vickem, 3 Coldw. (Tenn. ) 205 ; see further, sees. 345 and 309 of this Act, and notes thereto. ) It would seem that a Constable, having a warrant to arrest, is not bound to accept a tender of the tine aud ooata. See Arnott v, Bradley, 23 U. C. C. P. 1.) Apjioiiit- IIR'Ut (if iiu'iiihers thei'udf. 2GH THE MUNICIPAL MANUAL. [ss. 341, 342. Oath of t)ffl(;e. Hoaid to make policn icgulations. <'i)nstaWe3 to be suli- ji'i;t to the i(oaroard had no power to iix the salaries or remuneration of the members of the Force (//( re J'riiKr and 'J'oroufo, 25 U. ('.. Q. B. 17')), but the law is now altered. (See sec. 34.3. ) The mendjcr.s of the Force are in all things made subjcci; to the government of the Board. (See sees. 341 and 342. ) Until the organization of the Board they may be suspended by the Police Magistrate or Mayor. (Sec. 340. ) («) The taking of the oath is obligatory, ami it must not only he taken but subscribed. An assault upon a ( 'onstable in the discharge of his duty would seem to l)e indictable, although he never took the oath of olHce. (Biittrickv. Lowell, 1 Allen, 172; JIUchellv. Jiur.kluiid, 52 Maine, 118.) {tat) The object of Police regulations is to render "the Force eflicient in the discharge of all its duties." Power to the Board from time to time to make such regulations " as they maj' deem expedient for the (/onniDieiit of the l''orce," involves the power to make regulations to secure efficiency ; and such ought to be the regulations, luiless the Board "deem it expedient" that the Force should not he eliicient in the discharge oi its duties. So power to make regulations for the elhcieney of the Force involves power to make regulations against "neglect" and "abuse." Much of this section is needless : the first part of it involves the second, and the second is therefore unnecessary. (a) "The Constables." By this is meant the members of the Police Force, authorized by section 339, and appointed under section 3. 343.] EXPENSES OF POLICE. '269 and bo subject to the govenniient of the ]?o;u'(l, (h) and shall be charged witli the special duties of ])i'espi'ving tlie ])eace, Duties of preventing ro]»beries and otlier fi^lonies and niisdenuvinors, and apprehending offenders, and slwdl have geiu'rally all the powers and ])rivil('ges, and be lial)le to all the 8, pi. 74, 7") ; lb. 377, pi. 90 ; Angell & Ames on Corporations, ss. 702 & 706; 3Bh Com. 110.) (m) The power of appointment of the High Bailiff is vested in the Council of the City, (Sec. 338.) The power of suspension from duty is thei'efore properly vested, by this section, in the same body. 272 THE MUNICIPAL MANUAL. [sH. 347, 348. Incapacity of sunh offlcor to act. Salary to cejisc. 341. During tlie siispensioii of such ofticer he shall not be ciipivblo of acting in his ofiicc, except by the written per- mission of the INliiyor cr Police iVFiigistriite who susp(Muled him, (ii) nor during such sus])ousion shiill ho bo entitled to any «ulary or reniuneratiou. (o) 29-30 V. c. 51, s. 393. Division X. — Couut Hocses, frAor,s and other Places ok Imi'1:is().nmknt. Erection and care of. See. oJf.8-3G6, Who to be confined in, and Expense of Prisoners. Sec. 357, County tMH. Every Countv Council mav pass By-laws for erect- Council may • • • ' • • /- 1 1 1 1 / « i t r e passijy-laws ""igi improving or repairing a Court House, (jiun, House of hiin?iu?ira"*^^ Coi-rcction, and House of Industry, [a) upon land I)oing the proj)erty of the Municipality, and shall pi'cserve and keep the same in re[)air, and provide the food, fuel and other sup- plies required for the same. 20-30 V. c. 51, s. 401. buildings. (n) Sec note k to sec. 346. ((>) When restored, liis restoration can only take effect " after tho period of his suspension has expired." The susi)ension is tiierofore a deprivation of otHce for some certain period. JJuring tiiat period anotlier may ])e appointed to tlie ottice. (8ee see. ,j4(). ) Tliat other, if a})poiuteH from a County, (b) is situate, sliall also be the Caol, ij,'j,'' 'ji^^'^""' Coui't ITouso and House of (Correction of the Town or City, Hui-aratcd and sJiaii, in the ca.se of such City, continue to he so until the Council of the City otherwise directs ; (c) and the Sliei-itJ", Gaoler and Keeper of the Gaol and House of Correction .shall )'eceive and safely keep, until duly discliargt^l, all persoiLS coniniittcd the)'i;to hy any cuiupeteut authority of the Town or City. ( U. C. Q, J). 574.) In case the Inspectcu' of Prisons shall at any time iind that the Ct)mmon (iaol in any County or City is out of repaii*, or lias become unsafe or unlit for the conllncment of prisoners, or that the same does not all'ord sutiieient space or room for the prisoners usually contined therein, the County may now be comi)elled by mandannis to make the necessary repairs. (31 Vic. cap. "Jl, ss. 15, 10, Out.) A similar provision might, with advantage to the public, be enaeted as to Court Houses. The Legislature has not as yet shown as umch concern for the health of Jmlgcs as of prisoners. (Seo note d to sec. 359.) (!)) Where a City or Town is separated for all purposes from the County in which situate, this section would be inapjdiealde. (r) It is declared, first, tint the Caol, &c., of the Ccmnty in whicli a Town or City is situate, shall also be the Caol, &c., of the T(»\vu or City; and, secondly, in the case of a Cit;/, continue to be so until the Council of the City otherwise directs. It is apparently only the Council of a City, and not of a Town, that has power to direct the erection of a separate gaol, &c. (See sec. 350. ) (d) If the committal be for a certain time, unless a fine and costs or a fine or costs be sooner paid, the Sheriff', Gaoler or Keeper to whom the warrant is directed should be careful not to detain the 18 274 THE MUNICIPAL MANUAL. [ss. 350-353. City coun- cils limy ervr.t, &(',, ct'rtiiiii piililji: biiililiiiUH. lionk-ill) lioiinoM may l)e(:stiil)lisli- I'll hyciiiiiity I'uutibil. A constablo to bo ])lactiil iu cliai'iic 111'. Lock-up bounes. tt50. Tlio Council of ovoiy City may oroct, preserve, improve iiiul providt; for tlie proper k<'t']>in<^ of a Court House, (Jaol, House of Correction and Mous(! of Industry u))Oii lands Ijoing the j)roperty of tlie JVInnicipality, (e) an-;50 V. c. 51, a. 405. IWI. Tlie Council of every County may ostalilisli and maiutiun a Loi.'k-u[» House or Loek-up Houses within the County, (ly) and may ostalilisli and pro\ i(h; for the salary or fees to be jiaid to the Constable to be placed iu charge of every such Lock-u[> House, and may direct the jiayment of the salary out of the funds of the County. 2D-3U V. c. 51, s. 407. Itii'li. Every Lock-up House shall bo placed in the charge of a Constable specially ajipoiuted for that purpose, (A) by the Magistrates of the County at a ( General Ses.sions of the Peace therefor. 29-30 V. c. 51, s. 408. *^^'*i. The Council of eveiy City, Township, Town, and lucorporattnl Village (i) may, by By-laws, establish, maintain prisoner after piayinent or tender of tlic money. (Sec Smith v. Slhson, 1 Wils. ir)3 ; Clnuldork v. WUhraham, 5 O. B. G45, GuO; and Wahh v. Soiithwurtk ct at, G Ex. ITjO.) {(') The Gfiol, Court-liouso and House of Correction of tlic County in whieli a City is situate is to be the (iaol, Court House and House of Correction of the City, till the latter Municipality otherwise direct. (/) See sec. 349; also note a to soc. 348. ig) The powers are — 1. To esta))lish and maintain a Lock-up House or Lock-up Houses within the County ; 2. To establish and provide for the salary or fees to bo paid to the Constable in charge ; 3. To direct the paynnent of the salary out of the County funds. A "Lock-up House" is a place for the temporary conluienient of a prisoner, or of a prisoner committed for a short space of time. (Sec. 3G7.) The Caol is for the whole County, but iu eacli County or Union of Counties there can be only one Caol, and that situate in the County Town. But there may be several Lock-up Houses, and situate where most convenient. Councils of Couiifies only are by this section authorized to establish Lock-iip Houses. (See sees. .353, 354, as to Cities, Townships, Towns and Incorporated Villages. ) {h) WHiile the Uaol is to be placed in care of the Sheriff (sec. 358), each Lock-up House is to be placed in charge of a Constable specially appointed for that purpose by Quarter Sessions. Such Constables may be paid either by salary or fees. (Sec. 35L) (i) Countiea have the power mider a different section. (Sec. 35L) •ss, 354, 355.] industrial farms, etc. 275 351.) and ro4. Two or more Municipai- *es may unite to cstahlisli and maintain a Lock-up House, [vi) 2'J-.'50 V. c. 51, s. 412. «S55, The Council of every County, City, or Town sepa- rated IVom a County may ac(piire an estate in landtnl property for an Industrial Farm, and may estiU)]ish a House of Industry and a House of Kefuife, and [)rovide by J)y-law for the erection and i-epair thei-eof, and for thea]H)oin(:ment, payment and duties of Insixsctors, Keepers, ^Matrons and other servMiL& for the su[ierintt.'ndeuce, care and manaj^e- ment of such Houses of Industrv" or Refui'e, and in liko manner make rules and regulations (not re])ugnant to law) for the government of the same ; («) Provided always, that (Jc) The i)ersons who may, inidcr the operations of this section, he conihied ia Lock-up Houses are the foUowing: 1. Those .sentenced 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 ofl'encc ; 3. Those deteuned for transmission to the Common Gaol or House of Correction. See further, sec. 3G7. In none of the cases mentioned should the detainer in the Lock-up of i)ersons other than tliose mentioned Ixi longer than menticmed, or for any other purpose tlian mentioned. Excess in any of these particulars may su})ject the persons ooncenied to an action •of trespass. (See Atkins v. Kilby, 11 A. & E. 777.) (I) Sec sec. 351 and notes thereto. (jh) The power to unite in estahlishing and maintaining a Look-up House, it is apprehended, includes the power to make a valid agree- ment as t(j the terms which each shall contri))ute towards its establishment and maintenance. The Keeper of a County Lock-up may he paid either by salary or fees. (See note tj to sec. 351.) (n; The powers under this section are — L To establish a House of Industry and House of Refuge ; 2. To provide by By-law for the erection and repair thereof ; .Idint lork- f-aiKl may lie ;in|iiiri'il fur iniliis- tiiiil f.irins, lidllSC llf iinliistry, 270 THE MUNICIPAL MANUAL. [s. 357, Sul). 1. Proviso, n.M ti) unlliil (ir contigiiiiUH countlus. Inspectors to kt'cp .iiiil rniidcr lu'- (iOUllt.l of cxpuusus, Siii. By-laws niny 1)0 pilHSCll CStablisliili;,' worklmiisis and houses of corrci;- tiou. nny two or inoro Unit»i(l Counties, or any two or more contij^'uouH (JountioH, or any C.ity and ono or more Counties, or any Town or ono or nioi'e (bounties, may a<^i'e(* to liav(^ only one Ifouso of riuliiKtry or lli't"iij,'o for sucii lJnit(' up the sanio in the manner herein providtMl. {o) Vide 20-30 V. c. 51, s. il3; 31 V. c 30, m. 42. *S5i»i Tilt! InsjM'ctor shall \ivv\> an ac(,'ouut of the i-harges of erecting, k(!eping, ujiliolding and maintaining the House of Tnctivoly pass By-law8 : (1.) For erecting and establishing within tho City or Town, or on such Industrial Farui, or on any ground held by tho Corporation for pul)lic exhi])itions, a Workhouse or Ifouso of Concction, and for regulating tho governmeut thei'(>of ; (r) 3. To provide by Uy-law for the appointiueut and ilutios of Inspcc- tora, Kee])ors, Matrons and other sorvauta ; 4. To make by By-law rules and regulations for tlio government of the same. At first the powers were only permissive (Con. Stat. U. C cap. 54, ss. 4ir)-419); then compulsory (2!) & 30 Vie. cap. 51, s. 41.S); ami now again permissive. As tlie names ine so eonuaitted is left to the determination of the (,'oiuieil l»y bydaw. (/) ^Municipal Councils cannot in yencral actpiirc projjiu'ty for any \>ur[)ose without the linnts of the Munieipabty. Here the i)o\\( r is to erect and cstaldish a Workhouse "within or without" tiie City or Town. P)Ut for all the purposes of the section the proj)frty is, for obvious reasons, to he decnu'd to he within the ( 'ity or 'J'own .uid the jurisdiction thereof. (See note j to sec. 1 (i, and note r to sec. '222. ) (n) Some disputes having hitherto existed between Sheritl's and Municipal Ciuuicils, arising out of a real t>v supposed contiict oi' jurisdiction as to fjourt Houses and (i.iols (si.'c Huron ami llriu-e v. MitciloiKi/d, 7 U. C. ('. I'. 278), tlie ()l)juct of this and the three following sections is, so far as language can dn so, to remove all cause of dispute. Though it is by sec. IMS enacted that the Coiaity Council may pass By-laws for erecting, im])roving, and repairing the Oaol, &c., and shall preserve and keep it in repair, and provide tho fuel, food, and f)ther supplies rcciuircd, it is here enacted that tiio Sheriff shall have the (■(«/•(' of tho Gaol, tiaol oflices and yaruiit.v I'niuicil to liiivc; c'.'iro (if UllUl't 278 THE MUNICIPAL MANUAL. [sS. 3G0, 3G1. City gaols to 1)0 »Ti,'lll'ltl3il by liy-liiws of city uouncil. Upon sepa- ration of union of conntifM, Kanl anil court houso teKUl ttions to (jontinuo. noctetl therewith, whether the same forms a separate biiikl- ing or is connected witli the Gaol, and shall have the appointment of the Keepers thereof, whose duty it shall be to attend to tlie proper lighting, heating, and cleaning thereof ; (c) and shall from time to time provide all Jieces- sary ant] proper accommodation, fne), light, and furniture for the Courts of Justice other than the Di^-'':-.ion Courts, and for all ofhcers connected with such Coiircs. [d) 29-30 V. c. 51, s. 419. »{00. In any City not being a separate County for all purposes, (/•) but ha\"iug a Caol or Court House separate from the C'ounty Gaol or Court House, the care of such City Gaol or Court House shall l)e regulated by the By-laws of the City Council. (/) 29-30 V. c. 51, s. 420. •{Olt In case of a separation of a Union of Counties, all rules and regidations, and all matters and things in any Act ((•) While the care of the < !aol is entrusted to the Sheriff, the care of the Court House is entrusted to tlic County Council. It is, however, expressly dechired tliat tlie Council "shall from time to time provide all necessary and jjroper accommodation for the Courts of Justice (otlier than Division Coiu'ts) and for (ill officers connected ivith mtch Courts." See see. 3G2, as to Division Courts. {il) fJaols have, at all times, been considered of universal concern to the puliUc, and are still consi the control, in preference to that of any other Municipal body, cannot, be questioned. (Sec note m to sec. 363. ) SS. 3C)2, 3G3.] MAINTENANCE OF COURT HOUSES. 27i) of Pavliiiment for the regulation of, or relating to Court Houses or Gaols in force at the time of the sei)aration, (,'/) shall extend to the Court House and Gaol of the Junior County, (h) 29-30 V. c. 51, s. 40G. 34>/«, The Municipality in which a Division Court is held Division shall furnish a Court Koom and other necessary acconnnoda- r!!llu,l',,','ia. tion for lioldin'' said Court, not in connection with any *'""• hotel, (i) liiiii. Cities and Towns separated from Counties (/.;) shall, Exi.cnses of as parts of their respective Counties for judicial purposes, (/) [^'/,',y!,,','XTn bear and pay their just share or pro[)ortion of all chargi^s cistMifciticii and expenses from time to time as the same may be incurred, svparitttd" of erecting, building and rei)airing and maintaining the [("i" '"""■ Court House and Gaol of their resj)ective Counties ; (in) and in case the Council of the City or Town separate as afore- said, and the Council of the County in which such (.!ity or Town is situate for judicial pur})08es, cannot by agreement from time to time settle and det(;rnune the amount to bo so payable by such City or Town respectively, then tlie same (g) See note d to sec. 359. (h) See sec. 34 and following sections, (l) For some reason tlie ('ounty Council, though hound to provide all necessary and proper iicconunodation for (,'ourts of Justice, are not bound to Hud accommodation for Division Courts. (Sec. 35!).) The duty, in c(msequence, lias devolved cliictly uiion speculative tavern-kcei)crs, who were only too glad to provide the accoiumoda- tion, so as to increase tlieir traffic, to the great scany the ( 'ountics in w liich such Cities and Towns are situate, like the inhabitants of other local Municipalities, sucii as Townsliips and \'illagcs in a County, use the Court House and ( iaol of the CV>unty in common. Tliis being so, it is only fair tliat all should bear a just share or proportion of all charges and expenses from time to time incurrotl in and about erecting and maintaining the Court House and ( iaol. Tiie obligation is certainh' a mond one, but it has tieen found tliat moral obligations are not strong enough to compel Muiiicii»al Corjifirations to be just to each other. (See note n to sec. 304. ) The result is that the Legislature has here to some extent converted the moral into a legal obligation. 280 THE MUNICIPAL MANUAL. [s. 364. shall bn determined by arbitration, according to the provi- sions of the Act. (ji) 304. While a City or Town uses the Coui't House, Gaol or flouso of Correction of the County, tlio City or Town of oourt shall jiay to the County such compensation thcrcvlbr, iuul for the ciire and maintenance of prisoners, as may be nnitually agi'ced upon, (a) or be setthid by arbiti'ation under this Act. (b) 29-30 V. c. 51, sec. 403. Compensa- tion by city or town for us< house (n) See note b to sec. 364. («) In consequence of the separation of the City of Toronto from the County of York for jiidieial piu-poses, a deed was exeeuted between tlie respeetive Corporations, in which the City covenanted to pay the County a certain annual sum for the use of the Court House. The dec;l also contained other agreements as to the use of the Ciaf)l. Tliis airaugement was to ccmtinue in force luitil twelve months' notice to determine it should be given. By the LaM" Jleform Act, wluch came into force in Felnuary, 18()9, the City was reunited to the County for judicial purposes, and on the 21st March, 1809, the City gave the County the stipulated notice as to intended discon- tinuance of the use of the ( Jaol, stating that, as to the C!ourt House, the action of the Legislature had virtually terminated the provision respecting it, and that no further paj'ment would therefore be made. Held, tliat the contention of tlie City was correct; that it had lieen released from its co\-enant to pay by the operation of the Law I'eform Act ; and that there was no legal liability on the part of the ('ity even for an aliquot ])ortion of the half-year's rent which would have become due on the 21st March following. (Turonto v. York, 21 U. C. C. P. Do.) And it was afterwards held, in a subsccpient suit l)etwcen the same parties, that in the absence of express legislation, the City was not l)ound to pay the County any compensation whatever for the use of the Court House. (22 U. C. C. P. 514.) Hagarty, C.J., said, " The City makes no special use of "tlie (-ourt House ajjartfrom the County of York. It can hold uo Courts of its own. Its user is the same in a larger degree as the user by the Town of ISTewmarket or the Village of Yorkville. Unless there be some express p.rovision in Lhe sLatuLe law, I do not see how there can be any special liability created'' {Ih. olT); and again, "the City is now to all judicial intents and pui-poses a part of the Comity of York, lixcept as part of sucli County, in common with other Muniei])alit!es tluoughout the County, it makes no use of the Court House, and, in the absence of express enactment proviiling therefor, I tliiidc our jutlgment must be for the det'endants." (Ih. .^78.) It is ])resuuied that the previous section (sec. 8u3) is the legislation thus invoked. (h) Arbitrators were appointed l)y articles of agreement, dated 28th I)ecend»er, 185."), to settle certain ditfereuces recited as pending between the ( 'ity of London ami the County of Middlesex, respect- ing the eompens.ition to l)e paid by the City to the Comity for the use of the County Court House and (iaol, and concerning certain iinaucial matters then depending between the respective ^lunici- palities. On the same day they awarded, hrst, that the stock held by the County in certain railways shoidd be divided in the propor- 365.] MAINTEXANX'E OF COURT HOUSES. 2HI 3(>5i In case, after the Iii])SO of five year.s from such wUfu the compoiisation haviii<^ l>een so agreed upon or awarded, or f,"J|'iJ'„"/,s,v having been settled by Statute, and wlietlier before or after »'"» '"-'>" *>« the piissing of this Act, (c) it a])peai's veas()na})lo to the e',! '' Governor in Council, ui)on the a})plication of either jiarty, that the amount of the coni})eiisatiou should bo reconsidered, he may, by an Order in Council, direct that the then existin^j arrangement shall cease after a time named in the order, and after such time the Coiuicils shall settle anew, by agreement or by Arbitration under this Act, the amount to be paid tion of one-iifth to bo transferred to the City, the remaining four- tifths still to belong to the County; secondly, that the City slionld pay tlie County :l!L',(J7o on acooiuit of the County roads, and should keep such roads in repair witliin the City limits; thirdly, that tlie City shouhl pay the County 1"1,!K)() in full of its portion of the County debt; fourthly, that in future each of the ^lunicipalitiea should pay the expense of all prisoners coniniittod to the County Gaol by each of them rcspL'ctively, and that the portion of such expense incurred 1)y the City should be paiil over by them in January of each year; fifthly, tliat in future the City shouM jiay to the ('ounly one-third of all incidental expenses connected with the Court House and (Jaol, including rc})airs and insurance, together with one-third of all expenses eonnected with the administration of justice not paid by f 'overnmcnt, — sucli payment to be made in the mouth of Janu;iiy in each year; sixthly, that the City slioidd pay to the County the sun;s mentioned in the tirst, second and third clauses of the award, witli interest, in twelve numtlis from the 1st of January, ISoO, except tliat the City Council should pay it,, share of the railway stock at the time the County de})entures given there- for should bcL-onie i)aj'able; se\ enthly, that the award slmuld take effect on the 1st January, IS-'i,"), and renuun in force till the 1st January, IStiO. Jfc/i/, that tiie giving to the award a retrospective ell'ect— to the 1st January, ISo,"), luing the time when bondon was declarcil a City — u'as luit ol)ji.ciiouaMe, hut projier; that the arbitrators had authority to give time for jjaymeut, as in the sixth clause; that the Umiting the continuance of the award till 1st January, 18(.)0, was inconsistent with the I'J Vic. caj). 81, sec. 1*(H) (so far as material the same as sec. ;-!(55 of this Act), and j endered the award bad as to the fourth and tifth clauses, res2)ecting the Court House and (laol; that tlie fourth clause of the award was also bad, because it autho- rized a ratable division of tlu; expenses, instead of awarding the payment of an annual sum {-■■■ons, or pests of society. They arc the sul)ject in a more extended form of legislation under an Act of the J)oininion Legislature. (.'{'2 k ',V,i Vie. cap. 28.) It declares that the following persons sliall l)e deemed vagrants — loose, idle ov disorderly persons — and be liable to be proceeded against as such: 1. All idle persons avUo, not having visible means of supporting themselves, live without employment. 2. All ijcrsojis who, ))eing able to work, and thereby or by other means u) maintain themselves and families, wilfully refuse or neglect to do so. 3. All persons openly exposing in any street, road, public place or highway any indecent exhibition, or openly or indecently expos- ing their persons. 4. All persons who, without a certificate, signed within six months by a Priest, Clergyman or Minister of the < Jospel, or two Justices of the I'eace residing in the Municipality where the alms are being asked, that he or she is a deserving ol)ject of charity, wander about and beg, or who go about from door to door, or pLice themselves in the streets, highways, passages or public places to beg or receive alni!^ 5. All persons loitering in the streets ov highways and obstructing passengers by standing across the foot[)aths, or by using insulting language, or in any other way, o'. tearing down or defacing signs, breaking windows, breaking doors or door-plates, or the waUi of 370.] MISCONDUCT OF COUNTY OFFICERS. 285 Divisiox XI. — Investioation-s as to Malfea.sance of CoRror.ATE OFFlCKltS. ^10. Ill case tlio Council of any Municipality at any investiga- tinie passes a resolution rcquestin;,' the .ru(l,u;o of tlio County 1.',',',",^^^ Court of tlie County in "wliich tlif INFunirijiality is situated, to .jlI'l,^^; of invcstigat(! any matter to Ik; mentioned in the res(jlution, (7) lil'-iVtvalwn and relatiu;' to a supiioscd malfeasance, breach of trust, or ''V '"""ty <=• ^ •■ ' oUlccrs. houses, roads or g.irdens, destroying fences, causing .a disturlianoo in the streets ox' liiglnvays l)y screaming, swearing or singing, or being drunk, (U* impeding or ineonunoding peaoea1)l<; passengers. 0. All ciiniinou prostitutes or night walkers wandering in the iields, puldic streets or highways, lanes, or places of pu})lic meeting or gatliering of people, not giving a sut who do, for the most jiart, support themselves by gaming or crime, or by the avails of prostitution. The prineipal Vagrant Aet in llngland is 5 (ieo. TV. cap. 8.S. The decisions luider it will l)e found in i'aley on Convictions, (iS.^, OStJ, 5th Ivl. Its provisions liave been extended i)y the I'hig. Stat. HI k '.V2 Vic. ca}). 52, and enforced by the Hug. S:at. 'M & ii') \'ie. cap. ll'i, intituled "An Act for the more eflect'.;al Prevention of ("rime." Althougli vagrants may be proceeded agj-.inst criminally under the general law, it would seem that under a power "to regidate the Police of the (Jity " Bydaws nuiy be i)assed for arresting ami thiing vagrants, so long as the 1>3 -laws are not in eonilict with the general law. (See St. Lou'm v. JJiiii:., ] 1 Mo. ()1 ; Sidle v. t'uwnii, 21) ^lo. 330 ; Shafcry. jriiDumi, 17 ^id. 331; BijcrtiY. Conunoiuciall/i, 42 Pa. St. 89.) Sucli By-laws are looked upon as mere L'oliec regidations rather than laws against crime. (See Adf/hic A^tlt's C'«.vr, 11 Maine, 208; Porlhtml v. BitiKjor, 42 Maine, 41(3.) The welfare of the citizens does not depend so much on the existence of laws against vagrants as ill the proper enforcement of them. These laws are as much disre- garded liy the P(diee as by the thriftless and vicious class against whom they are enacted. (7) Provision is made by sec. 275 for an in(|uiry, under certain circumstances, into "the linaneial affairs of the Corporation and things connected therewith." Tliis section contemiilates a much wider range of impiiry. The matters as to -which inipiiry may be made under this section are — 1. "Supposed malfeasance, breach of trust, or other misconduct" on the part of any mem])er of the Council or ofliccr of the Corpora- tion, or of any person liaving a contract therewith, in relation to the duties or obligations of the member, oliiccr or other person to the Municipality. 2. "Any matter" connected with the good government of the Municipality, or the conduct of any part of tlio public business thereof. 286 THE MUNICIPAL MANUAL, [s. 370. other misconduct (r) on the i»,irt of any member of tho Council or officer of tlio CoriJoratiou, or of any person Lavinj^ a contract tlierewith, in relation to the duties or obligations of the member, officer or other person, to the Munici[)ality, or in case the Council of any jVIunicijjality sees fit to csiuse incpiiry to be made into or concernini,' any matter connected with tho good government of the iMunici- pality, or tho conduct of any part of tlui public business thereof, (,•>•) and if the Council at any time passes a resolu- tion re(pu'sting tho said Judge to make tho iiupiiry, the Judge to Judge sliall incpiire into the same, and shall for that i)urpose undor'sY''" have all the powers of Comniissioners under tlio statute of Vic. caj). 6, Ontario respecting inquiries concerning public matters and official notices, (f) and the Judge shall, with all convenient Out. The inquiry, in any case, is to be made 1>y the County Judge, on a resolution re(£uesting him to make the incjuiry. The subject matter of the in(|uiry should be mentioned in the resolution. The fluty of the County Judge tf) make the ini|uiry, on the passing of a proper resolution, is imperative. Having made the inc^uiry, it is also his duty, with all convenient speed, to report to the Council — 1. The result of theincpury; and,' 2. Tho <;vidence taken thereon. in Apparently no provision is made for the expenses of the inquiry, as the case of in(piiries into the linances of the Corporation. (8ec. 270. ) (r) "Or other misconduct." What is here meant, no doubt, is misconduct in the nature of malfeasance or l)reach of trust of some kind, appertaining to the duties of the otKce. According to the general construction of statutes, where general words fi)lk)W i)arti- cular words, tiiey are to be construed cju.'fdcin goicris with the parti- cular words which have preceded them, and are to be hehl to be of the Bame nature. (Tin' Kliii) v. Manclicxtcr and Safford WatcrWurlcH Co., 1 B. & C. (J3(t; T/ie Kbuj v. Modni, 2 B. & C. 220; Lijudon v. Standhridqe, 2 H. & N. 40; Tlw Quvm v. Nmth, L. H. G Q. B. 707; The Queen v. Cleworth, 9 L. T. N. S. 082.) (s) The design of this part is to embrace cases not falling within the preceding part of the secticm, and, as it were, to widen the field of im^uiry. The phrases, "any matter connected with tho good government of the Miuiicipality, " and "the conduct of any part of the public business thereof," are as general as can well be made. They are taken from the statute 31 Vic. cap. 0, Ont., to which refer- ence is made in the next note. [t) Commissioners so appt)inted have the power of summoning before them any party as witnesses, and of requiring them to give evidence on oath, orally or in writing (or on solemn affirmation, if they are parties entitled to affirm in civil matters), and to produce such documents and things as such Commissioners think requisite to the full investigation of the matters into which they are appointed 371.] POSSE COMITATUS. 287 ximi speed, report to the Council tlio result of the inquiiy and the evidence taken thereon, (m) 2'J-30 V. c. 51, a. 380 ; 32 V. c. G, s. 12. Division XII. — When Mayor jlvy tall out "Posse Comitatus." mi. TJio Mayor of any City or Town may call out tlie Mayor may j)osse CO inif a tn.'^ to anfovco thii law within his IVrunicipalitv '■"" ""^ should exigencies rcMpiin; it, (v) but only under the same tutus. circumstances in which tlu; SherilF of a County may now by law do so. 29-30 V. c. 51, s. 3G5. to cxaiuine (,31 Vic. cap. G, sec. 1); and the C'omniiHsioner.s have the same pnwer to enforce the attciidance of such witnesses, ami to compel tlieni to give evidence, as i.s vested in any court of law in civil cases. {I/i. sec. 2.) The words in the last mentioned section to the eliect that " any wilfully false statement made by any such witness on oath or solemn afHrmatif)n shall ])e a misdemeanor punish- able in the same manner as wilful and corrujit i)erjnry," have been repealed by Stat. < )nt. 32 Vie. cap. 27, sec. ■'{, as being beyond the competence of the local legislature. (See note *' to sec. 304. ) But they are the same as previously used in Con. Stat. Can. cap. I.S, s. 1, sub. 2, which is still in force. No partj', in sucii an iucpiiry, can he com- pelled to answer any cpicstion by his answer to whicli he might render himself liable to a criminal iirosecution. (See sec. 2 of 31 Vie. cap. (>, and sec. 1, sub. 2 of Con. Stat. Can. cap. 13, and note/ to sec. l{)+.) In this respect there is a marked ditference between inipiiriea here authorized and election inquiries. (See sec. 1(>4.) Witnesses, it is apprehended, would not bo entitled to compensation for loss of time. (See note o to sec. 275.) (m) See note q to sec. 370. (y) " Po.s.sr Co)nit(Um," or power of the County, includes the aid of and attendance of every person al)ove the a"c of fifteen within the County. Fe- sons able to travel are re([uireil to be assistant in this service. It is useil M'hen a riot is committed, a possession is kept on a forcildc entry, or any force (u* rescue made, contrary to the Queen's writ or in opposition to the execution of justice. The power is usually summoned by the Sheriff. But Avitli respect to writs that issue in the iirst instance to arrest in civil suits, the Sheriff is not bound to take the /jonfie to assist him in tlie execution of them ; though he may do so if ho pleases, on forcible resistance to the execution of the process. Sheriil's, &c., are to be assisting Justices of the Peace in suppressing riots, &c., and raise the j/a.s.tc by charging any mnnber of men to attend iov that purpose, who may take with them such weapons as shall l)c necessary, and they may justify the beating and even killing such rioters as resist or refuse to surrender; and persons refusing to assist in the y;o.s--.r may be fuied and imprisoned. It is lawful for a j)eace officer to assemble a competent number of people and sufficient power to suppress rebels, rioters, &c. ; but there must be great caution, lest under a pretence of keeping the peace, the peace officer cause a breach of it ; and Sheriffs, &c., are punishable for using heedless violence or alarming the country in these eases without just ground. (See Watson's Office of Sheriff, 2nd Ed. 2, 73, 193.) 288 THE MUNICIPAL MANUAL. [s. 372, Hub. 1. Councils may make by-laws- For tilitaiiiliij; in-oiifi-ty, iciil and In;r.«onal,&n. PAllT VII. GENERAL POWEK.S i)F MUNICIPAL COUNCILS. CocxTiES, To\VN-siiir.-», CrnE.s, Towns and lN('i)iii'()itATi;i) Vri.r,A(iKs. CofM'IES, ClTlRS, Towns and iNOUKI'OliATED VlLLA(lES. ToWNsiin's, Cu'iES, Towns and Incoiu-o- i;.vTKi> Vn.i,A(iKs. ColNTlKS, CiTIKS, ANT) Sf.PAKATF.D ToWNf, CniKs, Towns and Incohi'okatkd Villaues. t!irii;s AND Towns. TuuNsjDi's, Towns, and iNcoiiroKATKu Vil- I,A(iKS. Towns and Incorporated Villages. CoUNTIKS ONLY. 'J\)WNSlltl'S ONLY. TO Hkuiways and Bridges. TO \VoiiKS paid for BY LoCAL RaTES. TO Railways. Division I. — Powers of Counties, Townships, Cities, Towns AND InC'URPOKATED VILLAGES. I{l*i, The Council of every County, Township, City, Town and IncorporatcLl Vilhigo (z) may [)iiss By-law^s : Obkdiuay Fropbrty. (1.) For obtainini^ such real and personal property as may ho rP(|uir(!d for the use of tlio Corporation, (a) and for erect- ing, improving and maintaining a hall, and any other house.s Division I. -Of Division IL- -Of Division III. -Of Division IV. -Ok Division V. —Of Division VI. —Ok Division VII. —Of DlVl-^ION VITI. —Of Division IX. —Of Division X. —Of Division XL —As Division XII. —As Division XIII. —As (2) It is to be observed tliat this section applies to all Municipal Corporations. («) The right of a Municipal Corporation to acquire property imiepeudently of statute is by no means free from doubt. (See note 6" to sec. 170.) liut in order that there sliould be no doul)t as to the right of tlie Corporation to acquire property for corporate piuqioses express power is here conferred. It is not to be extended to the acquirement of land for speculation or prolit. ( Bankof ^llrliiijan v. Kill'--', 1 Doug. (Mieh.) 4(11; Ddrimn CoUnje v. ChamhciW Executors, 3 Jones, Eq. X. C. 1253-208; Stdta Bank v. Br(icki;nrh/(jc, 7 Blaekf. (Ind.) 3;)5; Mcdirteey. Orphiin Suchdj, t) Cow. 437; Chainhi'isv. St. Loui.-i, 2'.} Mo. 543.) But the acquirement of wet lands, with a view to their improvement and sale, is expressly authorized. ()Sub. 15-18 of this section.) In the event of the Corporation lending money on mortgage of realty, if default be made in the payment of the mort- gage money, the Corporation is entitled to a decree of foreclosi'.re, notwithstanding the Statutes of Mortmain, and is not restrictecl to a decree for sale of the land (Orford v. Bailey, 12 Grant, 270) ; and it would also seem that a Municipal Corporation may give time to a debtor and take a mortgage on reai estate to secure its payment. 8. 372, sub. 2.] APPOINTMENT OF CERTAIN OFKICEIIS. '2H*J and buildings requirod by and bi'lng upon tlio land of tlio Koi ..MaIii Corporation, (b) and f(jr disposing of such pro[M'rty when no (',v'i|"!i,',V'^^ longer required, (r) 29-30 V. c. 51, s. 240, sub. 1. iicTminai), Appointing certain Officers. (2.) For appointing (fZ) such Pound-keepers, Fence-viewers, Mnyiipj.uitii Overseers of Highways, Koad Surveyors, Road ConuniM- (piiiiirs (See IkUpville v. Judd, 10 U. C. C. P. 397.) The livying out, uix.n a map of an intended town, of siiuarcB or other open s])!iees fur public recreation or anuisenient, or for any other pulilic purpose, renders them as sacred to sucli purpose as the streets themselves (per Spragge, V. C, in (Juelph v. The Canada (.'ompanij, 4 (!rant, 0/34); and if an aheiiatiou to a ditlereut ])urj)ose, by a pursou prctemliiig to have tlie riglit to alienate, be attempted, tlie ( 'ourt of Cliiiiiecry will interfere by iujuuetiou to restrain it. (JI'.J So if tlie Municipal Corporation itsulf Ite a trustee of land for a public purpose, and witliout authority attempt to alienate it, in ))reac)i of the trust for which it is hehl, the ('ourt of Chancery would interfere l)y injunc- tion to restrain the alienation, or, if actually made, would order a reconveyance. ( At(ormii-(iener/ fhr Huron Dlstr'u-t v. Huron Cu/tnril, 5 U. C. Q. B. r»74. ) It is undecided whether, if a Municipal Council neglects to repair the .steps leading to a (Jourt Houss, and an individual in conseipience thereof falls and loses his life, an acti(tn will lie against the Corporation, at the suit of the represrutatives, under Con. Stat. (Jan. cap. 7S. (llawkeshmr v. Dnlhonsk, 7 \J. C. Q. B. oOO. ) A By-law jiassed l»y the Municipal Council of Prescott ami Russell, to tax the Countj^ of liussell alone for the erection of a registry oliice for the use of the Uiiitej, 13 U. C. Q. B. 030.) [d) It is not here expressed in what manner, that is, whether under corporate seal or otherwise, the otlicers in this section named are to be appointed. The bill of 1858, when introduced to the House of Assembly, had the words "under the corpoi'ate seal;" but tliesc words were, for some reason, afterwards struck out in committee. It has always been a recognized qualification of the principle which requires the uae of the seal, that there arc certain small matters of 19 liUO THE MUNICIPAL MANUAL, [h. 372, Sllb. 2 Hionf'i'H, VMliiiitors, ami .such other ofticors as aro nocossary ill t]i(f aflairs of tli<' ( 'Orponition, or i'nv (virryiiijL; into ('({'(ict tlm provisions of any Act of tlio L('<^i.slature, («) or for tlu- removal of Hiieli olliccrs ; ( /') lait notliiii:,' in tliis Act shall prevent any nieiiiUer of a (Corporation from aetiiij,' as ( 'oiii- inissiomr, Supei'intenih>nt or OvorsiH'r overatiy road or woi-k undertaken ami carried on, in jiart or in wIh)1(>, at the ex))ens(,' of the Muiiifiiiaiity ; and it shall he lawful for said ^lunici- pality to ])ay any such meiuher of tli(! Corporation aetii.*,' as sucli Connnissiouer, Superintendent or Overseer, (f/) 2l)-3() V. c. 51, s. 2-iG, sub. 2 ; 31 V. c. 30, s. 2.5. such freciuent occurrence in the course of comhicting affairs by a ('(H'lKifatiDa, tliat it appoai.s ti) l)c of ncccsHity that ('(irpiuatioii.i Hh(ailil 1)1! ailoweil to traiisat't thciu witlmut K"'"o tliroiigli the I'or- iiiality of a wcuKmI iiistriiinciit. Tho hirini,' of Mrrvaiits to jici-f.irm their onlinary (lutits has fvoin a very early period ))een one of thesf exceptions. ( /'nini.-i v. T/ir ('iwdif llitrlnmr urr. '2;!.") ; JldntuiijH C(uc, 1 Mod. 24; 7'//'.' Klni) v. liariHtnl, ('onil). 410; /[(jhohii v. llarr'iMit, 1 Vrooin. (N. J.) 7'ti Wluto v. Titllniati, 2 Jhiteh. (N. ,J.)(i7; People V. Uidvll, 2 Hill (X. Y.) l!))',; Field v. Ulrard n.llvui', 04 Pa. St. 2S3. ) But where an Act makes provision for the a[ipointment ot principal ofiiccas nam.'d, and other nee(\ssary otiieers, tlie stitiitu naist, so far as possible, be followed, and no appointments be made in contravention of it or otherwise, as directed by it. ( Tlw Kimj v. W^'iiHitmih, 7 Mod. .S73; The Kimi v. Huiuitvnil, 2 15. & Ad. G!)".); '77(. KUiijw. Spriierr, li Burr. 1827; t/i< Khuf v. C/u/f;), 5 A. & K. i)W: Stadlcr V. Detroit, \',\ Mieli. 31G; Vu.tini \\ AiKjii.st'i, ;^8(!eo. 542 (/) Wonls authorizing the ap])ointmeiit of any j)abli.' f ■^'' -ry include the power of removing him, reai>pointing him. 'aiug another in his stead, in the discretion of the authorit ..mi the powerof appointment is vested. (.Stat. Out. .31 ^"ie. eaji. . .sub. 2."). i But the power of reiiioval cannot, unless ex[)ressly delega, 1 . !>e e.xi . cised by a portion merely oi' the Corporation, but by the Corpora' ou as a corporate bodv acting d\dy and regularly. (Lon/ Briti-r'^ L't-\ 2Str. 81!); The KiiKj v. Lijm" Unji.-^ (Fmic's Cas<-), Doug. 149; The KiiK/ Y. Ric/iardwii, 1 Buit. 017; '/'Ac King v. Doncaatcr, Say. .SS; TheKiim V. Taiilor, 3 Salk. 231 ; The Kiiuj v. Forr.sham, 8 T. R. 3.")(i ; Stale V. 'Jerwij C'iV//, 1 Dutch, (N. J.) oM.) (y) If it were not for some provision of this kind, the contract, as it were, between the Corporation and the member to act as a Com- I. 37:2, 8llb. 5.] AID TO MANUKACTUUEa. 291 (3.) For regulating the remuneration, foes, clmrgcB and May nx dutiefl of Hucli ulBcorH, (h) and the securitioH to be given for '"""""* Hei'Uritii'H. the performance of Huch duties, (i) 2\)-'M) V. c. 51, b. 210, Bub. 3. Aiding Agricultural and other Societies. (4.) For granting money or land {k) in aid of the Agri- Mny kTimt cultural Association of Ontario, or of any duly organized "uitlimr' AgricMiltural or Horticiiltural Society in Ontario, or of the ii"^" ii'-h- Board of Arts and Manufactures for Ontario, or of any inc()r])orated Mechanics' Institute within the Municipality. L'y-3U V. c. 51, 8. 24G, Bub. 4. Aiding Manvfacturing Establiahmentet. (5.) For granting aid by way of bonuB for the promotion May^ivo of manufactures within the limits, by granting such sum or of i.IlMirt' Bums of money to such j)erson or body corporate, and in manmuc- respect of such branch of industry as the said Municipality may determine upon ; and to pay such sum, either in one Bum or in an annual or other periodical payments, with or without interest, and RuVtject to such terms, conditions and restrictions as the said Municipality nuiy deem expedient, missionor, &c., would be void both at law and in equity. (See sec. 327 and uotea thereto. ) (h) It is the duty of the Council to provide for the payment of all Municipal olKctrs, whether the rtmunerfltion ib settled by statute or by By-law of the C'oancil. (See note t to sec. 219.) (f) See note r to sec. 1%. (k) Municipal Corjioratioiisi have no power to grant the money of the ratepayers for purposes othci- than tlK^ae expressly aiithorized, or for such purposes as are necessary to carry out powers expressly conferred upon them or existing by necessary inttnduunt. To such an extent has this very proper limitation been carried in the United States, that the power of a Corporation to grant money for the oeleliration of their national birthday, 4th July, has been denied, {Hodtfs v.Biqfalo,2 Denio 110; see also J'dsh v . Ailanis,lOCi\i>h.252.) The powers here conferred are to grant money or land in aid — 1. Of the Agricultural Association of Ontario ; 2. Of any duly organized Agricultural or Horticultural Society in Ontaiio ; 3. Of the Board of Arts and Manufactures for Ontario ; 4. Of any Incorporated Mechanics' Institute within the Munici- p„,ity. The land intended to be granted is, it is apprehended, land hold otherwise than for corporate purposes, and so not clothed with a trust for the u>e of the public. (See note a to this section. ) 2rif any r ;ad, bridge oi- liarbour within or near the Municipality. under and sulject to th<^ respective statutes in that iK-liidf. {o) 29-3U Y. c. 51, s. 333, sub. 8 ; 37 V^ c. IG, s. 14. [1] A Municipal Council has power to f xdmpt any manufactiu'ing eitablishniciit, in whole nr in part, froin^taxati'in for ;niy pcrioil uot longer tlian ton years, and to renew the exemption ii)V a further period of ten yeara. (Sec. 2")!).) The object \:< to encourage manu- facturing cstalilishnients within tlie JiniitH of the Municipality. (See note m to t?ec. 2.")!>. ) Tliis suh.section conteni[ilates tlie gr.anting of money )jy way of bonus for like purposes. (See A Ikn v. hihnhitdntf of Jay, I'J Am. i^aw l!tg. N. S. 481. ."»S Maine, .Appendix, r)00c/.s'('/; (Joiiiiinrcial NiitiohnlUiuik y. I'it;/ vf /nla, '2 Dillon, C. Ct. Kep. iiaS. ) Whether tliJ money is iutendeil as an abtsolute gift or lied to the i)r()i:noti(>n of the industry for which it is designed. But iu this Anew tlie latt nart of the clause, authorizing tlio Municipality "to take secu'-,,- hiv the c(un})liiuice vitli the terms and conditions niion which .such aid may be given," would be unneces^sary. \\'hatever the Legislature nieam, its meaning i.s not very clearly expressed. (?/?) See sec. 2;$1, et seq. (h) See note I mpnt. (o) Any Municipal Council having juriadiction within the locality thr(nigh or along the l)ouudary of which any such road passes, ;»//i/ xnh.icriht far, hald, i<( II avd tvint.^fcr Muck in any C(Uii[iany forinefl under the general Act (Con. Stat. IT. C. cap. 4(t), or any former Act pasHcd for the like purpoBc, and may from time to time direct tlu' Mayor, Reeve, Warden or other chief ollice;- of the Municipality, on i)elialf thereof, to su])9cribe for such stock in the name of the Municipality, and to act for and on behalf of the Municipality iu all matters relating to such stock, and the exercise of tlie rights of the Municipality as a stockholder; and the Mayor, Reeve, AVnideii or other chief ollicer shall, 'vhether otherwise (pialihed or not, be deemed a stockholder in the company, and may vote and act as such, subject to any rules and orders iu relation to his authority made in tJiat behalf s. 372, sub. 8.] LOCAL CENSUS. 293 l,iiral Aiding Indigent Persons and Charities. (7.) For aiding in maintaining any indigent person belong- May aid ing to or found in the Municipality at any Workhouse, porson^^nd H fpital or Institution for the Insane, Deaf and Dumb, charitiea. Bhnd or other public institvition of a like character ; or grant- ing aid to any charitable institution or out-of-door relief to the resident poor, (p) Vide 29-30 V. c. 51, ss. 279 & 299, sub. 11; 31 V. c. 30, s. 28. Census. (8.) For taking a census of the inhabitants, or of the resident male freeholders and householders in the ^lunici- pality. (q) 29-30 V. c. 51, s. 240, sub. 5. by the By-laws of the Municipal Council or otherwise, and may vote according to his discretion in cases not provided for by the Muni- cipality. (Jb. sec. O.S. ) The Municii)al Council may pay all the instal- ments upon the stock they subscribe for and ae(iuire, out of any moneys belonging to the Alunicipality, and wiiich are not speci.ally appropriated to any other purpose, and may apply the moneys arising from the dividends or prolits on the stock, or from the sale thereof, to any purjiose to wliich unappropriated moneys belonging to the Municipality may be lawfully applied. {Ifi. sec. (54.) 8o the Muni- cipal Council of any locality through or along tlic boun(lar3' of which any such road passes, may, out of any moneys belonging to the Municipality, and not appropriated to any other purpose, Icml money to the company authorized to make the road, upon such terms and conditions as maybe agreed on l)etwecn the c Municipal Councils what particular cases of distress call for public relief. (Per Robinson, C. J., In re McDoiojall and Lobo, 21 U. C. Q. B. 82; s. c. 7 U. C L. J. 316.) ('/) The B. N. A. Act provides for a decennial census (sec. 8), and the Dominion Legislature has made provision for the taking of the 294 THE MU^-1C1PAL MANUAL. [s. 372, Sub. 10. To rcRulate driving on roads ami bridges. OiKMiiiiK or stcjuiiin;; up dniiiis and water- courses, &c. Driving on Roads and Bridges. (9.) For regulating the driving and riding of liorsos and other cattle on highways and public bridges, and for pre- venting racing, immoderate or dangerous driving or riding thereon, (r) 29-30 V. c. 51, s. 29G, sub. 2G ; s. 333, sub. 3 ; s. 344, sub. 2. (10.) For opening, making, preserving, improving, i*epair- ing, widening, altering, diverting, stopi)ing up and pulling down drains, sewers or water-courses, within the jurisdiction of the Council, (s) and for entering upon, breaking up, taking or using any land in any way necessary or convenient for the said purposes, subject to the restrictions in this Act contained, {t) 29 30 V. c. 51, s. 333, sub. 1. decennial census. (3.S Vic. cap. 21 ; 34 Vic. cap. 18.) But it may bo that the Miuiicipal Council desire to have a census more fre(jueutly, or to check the census of the particuhir locality made by the Domi- nion authorities; in either of whii h events, pf)\vcr is here conferred for taking the reij^uisite census. Tlie census is to Ije of the inhabi- tants or of the resident male freeholders and householders in the Municipality. (r) No person is allowed to race with or drive f uriouslj^ any horso or otlier animal upon any highway. (Con. 8tat. U. C. cap. 5(j, s. 5.) 8o every person who has the superintendence and management of any Ijridge exceeding tliirty feet in length, is allowed to put up a notice thereon forbidding jwrsons riiling or di'iving on or over it at a faster rate than a walk {Ih. sec. 8) ; and persons violating any of the provisions of the statute are subject to penalties wjiich the statute imposes. (lb. sees. C, 10, 11.) (.f) It has lieen held under former statutes that a Municipal Council has no right to bring down water in any (piantity upon the land of an individual, and leave the ^\ater to stagnate there, witiiout showing tiiat it could not otiierwise liave been got rid of, and witiiout showing that it wiis not in the power of the Council to lead the water away from the plaiutifi's land after the Council had comlucted it there. (See Bromn v. Sariiia, 1 1 U. C. Q. B. 87; Perdue ami Vlomjua- cuusi/, 25 U. C. Q. B. 01; J^'owe v. RocheMer, 29 U. C. Q. B. ;")!)(>.) (t) By the 373rd section it is proviiled that every Council shall make to the owiiers or occupiers of, or other persons interested in, real pro- perty entered ui)on, taken or used by the Corporation in the exercise of any of its powers, or injuriously aU'ected by the exercise of its powers, due compensation for any damages (including cost of fencing when reipiircd) necessarily resulting from the exercise of such powers, beyond any advantage which the claimant may derive from the con- templated work. It is clear, therefore, that no Municipal Corpora- tion has a legal right to say they may trespass a little upon tlie pro- perty of a priv.ite person, doing no unnecessary danuige, unless they show it was necessary ajid convenient for them for the purposes of the road, street or other work. Besides, it should be slmwn that there was a By-law authorizing the work. ^aSV. (Iinrije'n C/turrk v. Count 1/ of Qn'tj et al, 21 U. C. Q. B. 2G5.) Unless a By-law were s. 372, sub. 11.] FINES. 2 J) 5 Fin,s and Penalties. (11.) For iuflicting reasonable fines and penalties («) not I'lmsMini |i('Ililltirs foi shown, tlie t'orpnration would be l(»>kt'(l upon as trespassers; and to orduty. answer, under sueli eircumstances, that tliey tres])a3aed a little, doing no unnecessary damage, would be no answer at all. (/'*.) (u) It was at one time supposed that, under power to a Corporation to impose a reasonable line nl ; linrtn- v. t'omna,nwialth, 3 Pa. (Ben. ^V \V.) 2r.3; ZiilMrit V. C/iitrlc-ifvn, I Bay. S.C. 382. ) The tine or penalty should be imposed on the person who violates the 15y-law, anil not, if an unau- thorized trader, on the person with whom he e eals. (Ciiddon v. Kdst- wirL; 1 Salk. 1rr, 1 Stia. 409; Willc. on Corp. 155 Bl. 309.) What is reasonable within the limits prescribed, must depend on circumstances. (Mohili' v. }'ers(m uses in liis trade of a goldsmith, wouhl be unreason- able. (Willc. on Corp. 154, Bl. 30S; see also A'^ric York'w Ordrmnii, 12 Johns. 122.) Tlio Corporation cannot multiply one oll'ence into many, and punish for each. (See C/vyz/^s v. J}(ird Yorl.- V. Onlnnnn, 12 Johns. 122.) But a By-law Iixing (me penalty for the tirst ofi'ence, and a larger one for the secoml, ami a still larger one for every subsequent offence, does not appear to be bad. {Butchers' Co. v. liallod; 3 B. & V. 434.) Where the penalty is fixed 296 THE MUNICIPAL MANUAL. [s. 372, Sub. 13. exceeding fifty dollars exclusive of costs — (v) (a) Upon any person for the non-performance of his duties who has been elected or appointed to any office in the Cor- poration, (w) and who neglects or refuses to accept such office, unless good cause be shown therefor, or to take the declaration of office, and (x) afterwards neglects the duties thereof ; (?/) and (b) For breach of any of the By-laws of the Corporation, (z) 29-30 V. c. 51, s- 246, sub. 6; 34 V. c. 30, s. 3. (12.) For collecting such penalties and costs by distress and sale of tlie goods and chattels of the oiFender. (a) 29-30 V. c. 51, s. 240, sub. 7. iiuprisoii (13.) For inflicting reasonable punishment by imprison- jiUowtMi, and uicnt, with Or witliout hiivd labour, either in a Lock-up time of. House in some Town or Village in the Township, or in the (^olli-rtiiig penalties iiuii costs. by a By-law, it cannot be changed by any authority inferior to that which fixed it. ( The King v. Aehwell, 12 East. 29 j Scarnimj v. Crijers, 3 Leon. 7.) (v) The limitation is fifty dollars, exclusive of costs. This is the maximum. The Corporation may fix a less but cannot fix a greater fine or penalty for infraction of a By-law. It cannot do indirectly that which it is not allowed directly to do. It cannot, by multiplying into many that which is in reality only one offence, and annexing a penalty to each, evade the statute. (See preceding note. ) But where each transaction is really a distinct offence, and may be so declared, and the punishment for each is within the comi)etence of the Corpo- ration, the fines would not })e illegal though in the aggi-egate exceeding fifty dollars, exclusive of costs, (lli'tsf v. Town Connc'd, Rich. (S. C.) Law. 404; see also Chicafjo v. Quimhy, 38 lU. 274.) (lu) P^very qualified person duly elected or appointed to be a Manor, Aldcrmnn, Reeve or Depatij Reeve, Councillor, Police Tradee, Assensor or Collector, who refuses to accept office, is subject to a penalty of not more than eighty dollars nor less than eiglit dollars. (Sec. 218.) Tliis section must ])c taken to apply to officers other than those for which the Act has made exjjrcss provision. ix) As to what is "neglect," " refusal " or " good cause " for not accepting, see notes to sec. 218. (y) This section, in providing sunmiarily for the punishment of persons neglecting the duties of office after accepting oflice, goes beyonil the provisions of section 218, to which reference is aliove anade. (2) See note u to stib. 11, o£ this section. (rt) The power to enforce the payment of fines by distress and sale is one that must be expressly conferred. ( WhUe v. Tallman, 2 Dutch. (N. J.) 07; Jl'n/en v. Clarkson, 1 Halst. (N. J.) 352; see also Ckrk V. Tucket, 3 Lev. 281; Lee v. Wallis, 1 Ken. Cas. 292; Adley y. Reaves, 2 Maule & Sel. 60.) S. 372, sub. 14.] TEMPERANCE LAWS. 297 lie County Gaol or House of Correction, for any period not exceeding twenty-o le days, for breach of any of the By- laws of the Council, in case of non-payment of the tine inflicted for any such breach, and there being no distress found out of wiiicli such fine can be levied, {b) except for breach of any By-law or By-laws in Cities, and the suj)pres- sion of houses of ill-fame, for which the imprisonment may be for any period not exceeding six months, in case of the non-payment of the costs and fines inflicted, and there being no sufficient distress as aforesaid, (c) 29-30 V. c. 51, s. 246, sub. 8. Temperdnce Laws. (14.) For prohibiting the sale of intoxicating liquors and Enforcing the issue of licenses therefor, according to tlio provisions t*'"?*""*"'"* and limitations contained in the Temperance Act of 18G4, 27-28 V. c. 18. (d) New. (h) There is no power conferred to provide in the first instance for imprisonment. Tlie power is to impose the imprisonment in case of non-payment of the tine indicted, and there being no distress found out of which such fine can be levied. (See note k to sec. 318.) It is not usual to provide that a Municipal Corporation shall have power to impi'ison in the first instance for non-payment of a fine. (See London v. Wooil, 12 Mod. 68(>; Clark's dm, 5 Co. G4; Bah v. Clerk, Moore, 411; T/ie Kuuj v. Merchant Taylorn' Co. 2 Lev. 200; Chilton v. Railwan Co. 10 M. & W. 212; Barter \. Commonwealth, 3 Pa. Pen. & W. 203; New Orleans v. Costdlo, 14 La. An. 37; Burlington V. Kellar, 18 Iowa, 59.) (c) The ordinany limit of imprisonment in def-ailt of payment of fine, or distress for same, is twenty-one days. Unless there be some misprint in this section, there are two exceptions : 1. Breach of any By-law or By-laws in Cities ; 2. And the suppression of houses of ill-fame. For such, the imprisonment may be for any period not exceeding six months in case of non-payment, &c. It may be that the Legislature only intended one exception, viz., By-laws for the suppressum of houses of ill-fame in Cities. But in this case the words " and the suppression " should lie read "fur the suppression," in which case tliere would be no difiiculty. In all pro- bability this is wiiat is intended. A conviction under Con. Stat. (Jan. cap. U)'), for keeping a house of ill-fame or being an inmate of such a house, adjudicating that the accused sliould pay a line of fifty dollars forthwitli and be imprisoned for three months unless the fhio be sooner paid, was hehl to bo illegal. (In re Slater and, Well.-<, U. C. L. J. 21; The Queen v. Munro, 24 U. C. Q. B. 44; see further, The Queen V. Mice, L. II. 1 Crown Cases, 21.) {d) The Court of Queen's Bench intimated recently that many, if not most, of the provisions of the 27 & 28 Vic. cap. 18, referring to the granting of licenses and the preventing H'e issuing of licenses, 298 THE MUNICIPAL MANUAL. [s. 372, Sub. 15. Purch: sing Wet Lands. I'lirciiasi^ (if (15.) For purcliasing froi.i the Government or any Corpo- flliiii"" ^ ration or person, at a jiricc (in case of Crown Lands, to be (iiiViTIlllU'Ilt and for prosecuting and punishing parties for violating the laws made on those subjects, art superseded, if not repealed, l)y the provisions of the Statutes of Ontario, 32 Vic. cap. ',12. (In re. MotUinhi'd and Prince Edward, 30 U. C. Q. B. 74.) This section, which assumes to enable Municipal Councils of Counties, Townshijis, Cities, Towns and Incorporated Villages to pass By-laws prohibiting ti)e sale of into.\icating licpiors, accurduKj to ilte iirori.'^ioii.-i and UuiliaiionH: con- tabicd in that Act, may, if constitutional, be held to revive and restore the provisions of the Act, though in contlict with ti < subse- quent statute. AVhat the Court suggested in In re Mottanl'.ed and Prince Edn'ard was, that the Legislature should repeal those sectiona of the Act of 1804 which are inconsistent witii tlie Act of 18G9. The Legislature, instead of repealing them, luis apparently given new life to them. When the '27 & 28 Vic. cap. 18, was i)assed, there waa no doubt of the power of the Legislature to pass it. It was passed before Confederation. But now that the power to pass laws for the regulation of trade and commerce is vested exclusively in the Parliament of the Dominion, there may be some doubt as to the constitutional power of the Local Legislature either itself to pasa what is commonly called a prohibitory liquor law or to authorize Municipal bodies to do so. There is a great difference between a regulation and a i)rohibition. That which in the one case is lawful, mh inndo, in the otlier is illegal. Tlie question is whether a pro- hibitory By-law is not more tlian a Police regulation. "By the general Police poweis of tiie State, persons and property arc subjected to all kinds of restraints and burdens in order to secure the general comfort, health and prosperity of the State." (Per Kedlield, C. J., in T/iorpp v. Ihdland <{• Jjiirlinfffon Pailroad Co., 27 Vt. lilO.) It is much easier to perceive and realize the existence and sources of this power tlian to mark its ])oundaries or prescribe limits to its exercise. (Common weallh v. Abjcr, 7 Cusli. 84; see also Coinmonicealfh v. Tcichhuri/, 11 Met. oo; JIart v. Alhanii, 9 Wend. 571; New Albany and Sah'in llailruad Co. v. Tilton, 12 Ind. 3; IndianapoVm and Cincinnati Railroad- Co. v. Kcrcharal, Ifi Ind. 84; Baltimore v. The State, 15 Md. 380; Pfo/)?(' v. 7>ra;«')-, 25 Barb. 374; Ohio and Missis- sippi liailroad Co. v. McClelland, 25 111. 140.) In the United States the exclusive power "to regulate commerce witli foreign nations and among the several States and with the Indian tribes "' is with Congress. (Story on Const, s. 105G. ) ('hief Justice Marshall, in Dartmouth Collee/e v. Woodward, 4 Wheat. 518, 629, said that "the framers of the Constitution did not intend to restrain the States in the regidation of their civil institutions adapted for internal govern- ment, and that the instrument they have given us is not to be so construed." (See also Su>;dani v. Moore, 8 Barb. 358; Waldonv. Hen.'ieslaer and Saratoga Railroad Co., lb. 390; Galena and Chicago Railroad Co. v. Looniis, 13111. 548 ; Fitchburr) Railroad Co. v. Grand Junction Railway Co., 1 Allen, 552; Peters v. Iron Morriston Railroad Co., 33 Mo. 107; Grannahan v. Hannibal, Ac, Railroad Co., 30 Mo. 540; Veazie v. Mayo, 45 Me. 560 ; Indianapolis, ct-c. Railroad Co. V. Kcrcheval, 10 Ind. 84; Galena, cfcc, Railroad Co. v. Appleby, 8. 372, sub. 15.] puucnASiXG wet lands. fixed upon by tlie Governor in Council, and Avliich price the Governor in Council is hereby authorized to iix), all the wot lands at the disposal of the Crown or such Coq)oration or 299 28 111. 283.) Laws prohibiting the sale of intoxicatiiiK liquors have, ill the United State.s, l)een again and again assaileil as being contrary to the Constitution of the United States ; but their constitutionality a])pears to have l)eeu affirmed by tiie majority of the Supreme (.'ourt of the United States, after appeals from several States, and after most able and exhaustive arguments. (Thurhir v. Mcifisa- ckii.ipttx, ') How. r)()4, r)74, r)8'.), (500, 608 ; see also Brownv. Maniland, 12 Wheat. 419; People v. Hawlni, 3 Mich. 330; Reyncld \. (rcunj, 2(5 Conn. 179; Llnroln v. Smith,' 27 \t. SSf); Sfatc' v. liolnnmn, 49 Me. 28"); Bmdt'onl v. Htewns, 10 Ciray, 379; Boilew TIk' Stale, 7 rdinaiy Police regulations, such as the State may nud^e or delegate to Municipal bodies to make, in respect to all classes of trades and employments. {Ilode v. The State, 7 Gill. 320 ; Bancroft v. Dunuis, 21 Vt. 4,"')0; The License Cases, 5 How. 504; Thomas v. Mount Vernon, 9 Ohio, 290; Clinfonrille v. Keetimj, 4 Denio, .341; City Y. Haisemhrittle, 2 McMuUen, S. C. 233; 'C«7// Council v. Ahrens, 4 Strob. (S. C.) 241.) In the last mentioned case, Evans, J. , said, ' ' I do not see how it can be supposed that the ordi- nance forbiddini' it (spirituous liquor) to be kept in certain places can be said to be an interference with the })ower of Congress to regulate trade. As well might it be said, that because gunpowder 300 THE MUNICIPAL MANUAL. [s. 372, Sub. 15. 5»orson in any sucli Tofwnship ; (e) and such lands may be sold accordingly to the Coi'i)oration of any such Township. 29-30 V. c. 51, s. 345, sub. 5. was imported and subject to duty, the State laws, wliich prohibit vcikUh's keeping it in their stores, were in violation of the C^onstitu- tion of the United States." Such a Bydaw must not be inconsistent with the laws of the Dominion regulating either Customs or Excise. (See Ex parte Jlnrrinrfton v. Rochester, 10 Wend. 547 ; People v. Morris, 13 Wend. 325.) The license of the Government to sell spirituous liquors is only an authority to sell according to law. Licences Cases, 5 How. (532 ; see also Meeker v. Van J''»iiisefaer, 15 Wend. 397.) The power ought not to he gatherey loan or otlicrwisn, or for which th<'y may an'l flrain apply any of its fuiuis not othia-wisti appropriated. ( /') 2U-30 V. c. 51.'h. 3-15, sul.. ♦'-. (17.) The (Jor{)oratioii of any such Townsliip may possess Mny hoi.i m and hold the hind so purchased, and uiay, whencycr they !,i','^.'j',"h,i'i'i. deem it ex{)edient, sell or otherwise depart with or dis])Ose of the same by j)uMio auction, in like manner as they may liy law sell or dispose of other property, and u[)on such terms and conditions, and witli such niortLTayes nj)on tlie land so -okl, or other security for tlie purchase money or any portion thei'eof, as they may think nuxst adyantageous. (y) (18.) The proceeds of tlie sale of such lands shall form Pr.)cie. 8. (10.) For causimr any tree, shruh or sapling, growinir or [icMuiati.iMs planted on any public place, scpiare, liigliway, street, lane, sIhuIk, *:c alley, or other comnmnication under its control, to lie '" i ublir. remoyed, if and when such remoyal shall be deemed ncces- lilaei's. eartli i.'* given. (Ih. s^crH. '27, 28, '2!(. ) It is the duty of tlic Municipal Councils to coUfi't tlio jinxius duo for dniin.igo. (Jh. sec. 30.) Tlie .assessment is in the nature of a rent charge, and i.s tlie lirst charge ou the land. (Ih. sec. 31.) Specnal provision is made for its colkctioii. (/'). sees. 3-, 33.) Crown lands are also expressly made subject to the assessment. {Ih. see. .34.) ilisputes :is to iKiumlarics are to ho settled iiy the Assessors. {Ih. .sec. 3;").) S(t dispuios as to drainage are to be referred to arliitration. {Ih. sec. 3t>. ) Sj.ici.al provisi(jii is made for the assessment when two or more Munieipabtius are benetitidby the drainage works. {10. sees. 37, 38, 41.) So for appeals from such assessments. {Ih. sees. 39, 40.) (/) Unless power were conferred to drain the wet lands, the ]iur- chase of which is authorized l)y tlie preceoration. Here it ia declared that the purchase ainl draining of such lands shall he one of the jMirposes for which any Township Coi|M>i-atinivision against favouritism. As to the power to foreclose mortgages taken out and sold, see Orfurd V. BaUiy, 12 Grant, 27«. {h) A^ the purchase money may be taken from any funds not otherwise appropriated, or raised by way of loan or otherwise, pay- able out of the general funds of the Municipality, it is only right that the proceeds of sale should form part of the general funds of the Muuicipahty, 302 THE MUNICIPAL MAXUAL. [s. 372, Rub. 19. sary for any purpose of [)u}>lic iinprovenifnt ; but no snob tree, shrub or sapling nhall be so removed until after one month's notice thereof shall be given to the owner of the adjoining jtrojMirty, and he be reconijiensed for his trouble in planting and [)rot<^cting the same ; nor shall siich owner, or any pathmaster or other public officer, or any other jterson, remove or cut down lace, squai'o, highway, street, road, lane, alley or otht-r couuiiuiiicati(ju ; (t) anil any Council may expend money in planting uiul [>i'eserving shade and ornamental trees upon any puMic jdace, square, high- way, street, I'oad. lane, alley or other communication within the Municipality, and may grant sums of money to any person oi- association of persons to l>e expended for the same pui'jioses. (j) 34 V. c. 31, ss. 3 ife 5. This section has been wmeaihd by aJdincf thereto subs. 26, 27, i.% 20 and 30 of s. 37!) of this Act. 37 V. c. 10, s. K). (/) The jMilicy of the Munitupal l.iw is to t'lictmrago the planting and (^'I'uwth of trees in public higliways, aqnaros ami streets, tor pur- poses of f)rnament or shade. Eacli such tree is made tlie ])roperty of the adjoiuin),' proprietor. (34 Vic. eap. 'M, 8, 1.) But no such tree is to be so planted that the same may he or beeume a nuisance in the highway, or oljstrnct the fi,ir and reasonable use of tlie same. (Ih. see. 2.) The removal, ui..ler the section lieie anmitated, is only to take place when necessary for any jmrpose of puliiie inip-rovenient. Besides, it is not to take jjlace until (jne month's notice tliereof shall ))e given to the owner ()f the adjoiuiii'' prf)perty, ond he be rtcom- pensed for Ins trouble in jjlanting and protecting the tree. It is not in the power of the owner, patliinaster, or other nliioisr or person, to cut dov.'n a tree without the exi>ress permi.ision oi the Municipal Council having the et)utrol of the public place, &c., whore the tree • s staneing so, the right to maintain tlio action exists, uidess shown to have Ixun taken away by Act of Parliament. The Imrdcn (if showing that it has l)een taken away rests upon those wlio iuti;rferc witli tin; enjoyment of the projierty of otlicrs. (See ('/oiri .< v. Shijford ih'iri' PaUi rh.i Wntir I Ko/Vms' (.'(>. \j. II. 8('h. Ap. 12.").) I'.ut social ilutics and obligations are paramount to individual rights and interests. In all eivilizid countries there is whit is called tin; power of eminent domain. By this is meant the right of tlie i)ublic to ajiTiropriate private jirojicrty for ])u]ilic uses. 'J'iiis right is generally subject to the limitation that private property shall not be taken for public use without due com- pensation. Sueh is one of the limitations in the written constitution of the United States. .Sucli is also one of the gtnerally luiderstood lind- tat'onsin the unwritten constitution of (rr(;at Britain. "It is said this is for the general benelltof the iidiabitants, &c., and it is oidy opposed by ;i few interested individuals. The usual answer to tiiis kind of argument is, that if it is Un- the gem-ral benelitof the inhabitants to take from a few interested individuals their property, let the puldic [lay the interestud individuals for thatof Mhieh they depiive tluni." (hr llichards, C.J., in liHrritt <(,i(l.Viiiih',n>!i./h, 2!) I'J. ('.(,). 1'.. lUi-]:i\ ; see furthe?-, In re matter ol' AllKtini Sim t, 11 Wend. 148; J'Juihiiri/ v. Coiimr, 3 Comst. 511; and note z to sub. It) of .see. 37t>.) 'i'iie i.egis- lature may, undm' proper restrictions, delegate this power of eminent domain for particular purposes to Municipal lie in their nature and ends. (/'i(/:-,iV,hu:]d. (lad. ) 234. ) The purposes for which private projjerty is to be aiiprojiriated should be specified in the Act delegating the power. (//( re Claihoruc, 4 La. An. 7; In re Kxcluinije Alleij, 4 La. An. 4; Eo.-3. ) Notice of some kind should he given to the party wliose i)roperty is to hj appropri- ated. (Harberk v. Toledo, 11 Ohio Ht. 219; Baltimore, \. Boiildin, 23 Md. 328 ; MeMicken. v. Cineinnati, 4 Oliio St. 304 ; Mulett v. Keenan, 22 Ala. 481; Darliwjton v. Commonwealth, 41 Pa. St. G3; Xiehoh v. Bridijeport, 23 Conn. 18!); Crinier v. Railroad Co., 12 N. Y. 190; Mip-ieh V. LaCro.m, 17 Wis. 442: Rathhun v. Aek.v, 18 Barh. 393; Rkei/ V. St. fjoaii, 34 Mo. 404; Welb'r v. Potter, 18 Ohio St. 85; Stewart v. Board of Police, 25 Miss. 47!); Palmijra v. Morton, 25 Alo. 593; Swan v. WiUiamK, 2 Mich. 427.) In the a))sence of statu- tory provision to tlie contrary, the Corporation appropriating the pro- j)crty must pay the compensation and expenses comiected tlierewith. [Morrli V. Chlcaijo, 11 111. (SM; Trusteea of lIlinoiH and Michiffem Canal v. Chieaijo, 12 111. 403 ; see also Dennis v. Jliu/hes, 8 U.C. Q.B, 444 ; Laffertij v. Stork, 3 U. C. C. V. 1. ) But a provision directing the expenses to be paid by some persons especially interested in the jjro- posed Avork, is not illegal. [Fisher v. Vaiajhan, 10 U. C. Q. B. 492.) {b) The question is, what damage will the owner sustain by reason of his property being entered iipon, taken or used (according to tlie fact) by the Corporation ? If all his projierty be taken by the contemplated work, he should receive pay for tlie value of his land. (In re Furman Street, 17 Wend. G50; William and Anthonij Streets, 19 Wend. G78.) If part only be taken, the (juestion arises, how much tlie remaining part will lie l)enelited by the contemplated work ; and that, whatever it may be, ought to lie deducted from the value of the part taken. (Meaehainv. Railroad Co., 4 Cush. 291; Dickenson v. Fdchhunj, 13 (iray, 54G; Upton v. Railroad Co., 8 Cush. 600 ; Farewell v. Cambridije, II (rray, 413; Robbinsv. Railroad Co., 6 Wis. G36; Dwiyht v. County Commissioners of Hampden, 11 Cush. 201 ; Howard v. Proindence, 6 Rh. Is. 514. ) " The compensation, under the statute, is for damages resulting from the taking of the land: the award, therefore, must be taken to be for so much as the property of the claimant was thereby reduced in value." (Per Spragge, C, in Dunlop \. Yorky 16 Grant, 216-224.) This raises the question as to the title of the claimant. It is not to be assumed that the person in possession is the absolute owner of the laud. He may not have any title, an 8. 573.'] nOMPEXSATlON TO OWNM'.TtS OF LANDS. 305 n 18 ail ami any claim for such compensation, if not nnituallv acrrocfl niiTiTcnciH I 11 1 1 • It 1 • • 'l • » til IM' lldttT uixiii, sliull he (Ictt'iinined oy arbitration (c) uudor tlii.s Act. iiiinni iiy *iU-;iO V. C. al, S. :i20. arl.ilrutl.m. iriiiii^rfvct title. \. Yiirh, Iti ( ii'.ant, '_'l(i ; /nnh'iist l/iiifiihishlrc 1!. Ai:/, I Sim. N.S. L'lKt; (InKn.i v. Si irf,,iiiiilliiii(l Cit., 2.'Hi.'r. ."•.■{ ; III ri' f'ucljii III /lih-i/im/ /iunnl, l!( l>eav. l.'i.'S ; /.i/iii'inrulf. V. Siiii/lli, '_' L. T. N. S. 7!>; //all v. Loinhiii, (Vidt/iitui (iinl Dunr Ha 11 mil/ (Jo., 14 I..T. .N. S. uru ; t'uupir v. (hixiniui, l» L. T. N. S. 77; see f uithur, note a to sec. 42"). ) (<■) AVhere the statute gives a siU'cilic remedy to the owner, and the land li<^ taUeu jiossis.sion ot" under the jirovisions of the stattiti^ or with the consent of the ownei', tin; latter is restricted to the method given hy thestatute for securing (.'omiHiisation. {(.'iitliin v. Hiiiu'iltun 1111(1 Turdiito Jt'iiiliriit/ Ci,,, 14 I'. ('. t). H.Hl ; llniik'ni v. (t'rnif U'l.^hrn lia'ihrini I'll., 4 1'. ('. ( '. I'. 4();{; (iriiiis/iiiiiy v. ilninil 'rrtliih /t'liilinii/ Co., l<»'l'. ('.(,». H. 4!»;{ ; Williuiii v. limihli, nml Lal;i linn,,, Unilini,) Co., 'M IJ. V. (,>. R 147; s. c. .SI U. (.'.(,». U. ."i.SK; ./'<;»•■< v. Stiinstinil, Shrfiiril ititit (Jliiiiiililii A'liHinn/ Co., L. |{. 4 1'. ('. !tS, I'JO; McLmn V. Ci-mt IfV.'./r/vi JMhrini ('„'., 3.S U. (". (.». B. HIS.) if the land he taken without the consent of the owner, otherwise Llian aeeord- iug to tile statute, it Would seem that the owner may maintain tres[iass or ejectment fur the assertion of his rights at eonimoa law. (Dill' (I. Jl iitrli'iiisiiii V. Alitiirli' nil r, linni mul Ilominliilr jlnil- wan Co., 14 AI. & W. 087 ; SinaUcij v. Jiliirkhm-u J'uilwin/ Co., 2 n. & N. loS ; see also Floijd v. Turin i\ -'.\ Texas, 2!>.S ; Ciisln,inn V. Siiiif/i, :U Maine, '247; Sown- v. J'lnliulilphhi, ;{') I'a. St. '281.) Where the land is taken as the statute prescrihes, due eonii)ensatioii is tu he made, and the amount, if not mutually agreed uiioii, is under this section to he determincil liy arliiti'ation. 'i'lie (.'ourt set aside au •award against a .Municipal ( 'or[ioration as to damages in favour of a person through whose land a road had lieeii opened, where it appeared that no notice haii v. Wliitliii, 1 7 l^ C. (,|. 13. 230.) Where in a similar action it appeared that plaintill' named one arbitrator and the Iteeve another, ami they being unable to .agree on the third, the County .Judge ajipoiuted the thiid, and the hrst and tliird mentioned ariiitiarors made an award in favour of plaintitl' for X40 for compeusatiou for laud taken for u road, it was held that 20 300 IPHE 5IUNICIPAL MANUAL. [s. 374. How title acquircil to lauils wliL'U owiifil by eorpoi'a- tions, ten- ants in tail, Vested in trustees, Ac. If there be no party who can I'onvey, Ac. Titles to Land of Infants, <£'c , Jiow acquired. !t'74. In the case of real property which a Council has authority under this Act to enter upon, take or use without the owner's consent, {d) Cox'porations, tenants in vail or foi life, guardians, committees and trustees, shall, on behalf of themselves, their successors and heirs respectively, and on belialf of those they represent, whether infants, issue unborn, lunatic, idiots, married women or others, have i)ower to act, as well in reference to any arbitration, notice and action under this Act, as in contracting for and conveying to the Council any such real property, or in agreeing as to the amount of damages arising from the exercise by the Council of any pow(;r in respect thereof; (e) and in case there is no such person who can so act in respect to such real property, or in case any person interested in respect to any such real plaintiff waa entitled to recover. [Harjxlv. Portland, 17 U. C. Q. B. 455. ) Aftenvarda the Council colled another meeting of the arbitra- tors, Avhen all three attended, and the two lirst mentioned arbitrators made an award giving plaintiff only £3 lO*'. It was held that the second award was invalid. [lb.; see further, aec. 2S3 & 284.) (d) See noto a to sec. 373. [e) The object of this section is to enable the Corporation to get a good title to the land required, and to get that title if necessary from persons not having themselves the complete title. With this ol)ject, it is declared that Corporations, tenants in tail or for life, guardians, con.mittees and trustees, shall nave power to act, not simply on behalf of themselves, their successors and heirs respectively, Imt "on behalf of those they represent, whether infants, issue unborn, lunatic, iiliots, married women or others." It has been held, under a similar Act, that a tenant in tail, under an Act of Parliament, might sell and convey so as to bar his lieirs in tail and the remain- dermen, notwithstanding his statutory disability to bar the entail. (In re Cuvkiicld Burial Board, 19 Beav. 153.) So where land stood lim.ited to one life, with remainder to a iiusbawl and wife in fee, it WHS held that the interest of the married woman woidd pass. (Cooper v. Costlinj, 9 L. T. N. S. 77.) Where the contract was made with a person of unsound mind — not, however, found so l)y intpiisition — the money paitl was held to be paid in respect of land belonging to a Serson seized in fee and competent to sell (In re East Lineulnshlre '(lilwai/ Co., I aim. N. S. 2G0; but e Midland Bail imi/ Co. v. Ofiwin, 1 Col. C. C. 74 ; a. c, 3 R. & C. C. 4lt7. Where the laiid was in mort- gage, and the mortgagor of unsound mind, the Court, in the absence of a committee, appointed a guardian ad litem to appear for the lunat'.c. (Greivea v. (r/rc; Northern Bailwai/ Co., 23 L. T. 53; see also Lippinrott v. Snii/lh, 2 L. T. N. S. 79, 8 ^V. II, 33(> ; llall v. London, Chatham and Borer liailway Co., 14 L. T. N. S. 351 ; Slipper V. Totfenham and II. J. Bailwai/Co., L. R. 4 Lq. 112 ; Gowrnor* of St. Thonia.'i' Boi^pital v. Charlmj Cross Railway Co., 1 J. & H. 400; la re Taylor, 1 McN. & G. 210*; In re Briscoe, 2 De G. J. & S. 249; In re Walker, 7 R. & C C. 12G.) 375.] ACQUIRING LANDS HELD IN TUrST. 307 propei'ty is absent from this Province, or is unknown, or in case his residence is unknown, or he himself cannot be found, the Judije of the County Court for tlie County in which such property is situate may, on the application of the Council, a2>j)oint a person to act in respect to the same for all or any of tho said purposes. {/) 29-30 V. c. 51, s. 326. 37ot In case any party acting as aforesaid has not the Aiiiiiiratiou, absolute estate in the property, (7) the Council shall pay to rh„se immi'y him the interest only at six per centum per annum on the "inrc jiaity , X ii;is n*it till amount to be jiaid in respect of s\ich property, and shall absoiutt retain the principal to be paid to the party entitled to it whenever he claims the same, and executes a valid acquit- tance therefor, unless the C*ourt of Chancery, or other court having ef|uitable jurisdiction in such cases, do in the meantime direct the Council to pay the same to any person or into court; {h) and the Council shall not be bound to see to tlie application of any interest so paid, or of any sinn paid under the direction of such court, (t) 2D-30 V. c. 51, s. 327. (■.state in the pruiKivty. (/) The jurisdiction of the County Judge only arises in case — 1. There is no person who can so act. 2. The person interested ia aljsent from the Province, is unknown, or residence unknown, or lie liiniself cannot he found. If there be any person known who can be said, within the mean- ing of the first part of the section, to represent others, dealings should be had with him. (g) See note e to sec. 374. (h) A railway company agreed to pay a hi h" , .• ner, tenant for life, a sum of money for the benefit of him or 1 tiier the f)wner for the time being, for indenmifying him from the expense of making a new road, &c., and as a compensation hir tlie annoyance wliich he or sucli other owners might sustain in conseciuence of the construc- tion of the railway ; and the company agreed to pay a furtiier sum as tlie price of the land taken. Botli sums were j)ai(l into court. The application of the tenant for life for the al isolate payment to him of tiie livst sum was refused. The costs of tlie road, &c., were paid out of it, and the rest invested. (7iV Dnh' of Miu-llioroHijh's Extatix, l.S Jur. 7.S8; see also P,,!)' v. Puir, 2 Dr. & Sm. 4'JO, and End of tihnu'.ihuru v. Xvrfh Sdijiirils/ttrc liniliraif Co., L. W. 1 Kq. .")!i3.) ((") It was a rule in equity that a person paying money to a trustee, &c., is hound to sec to the apiihcation of the money, 'i'liis ii.is lieen found to work such hardship, tiiat as between individuals it is now enacted that a person paying money upon an exiu'ess or implied tnist is not bound to see to the ajiplieation or be answerable f(jr the niisap]ilication thereof, unless the contrary is expressly declared by tlie instrument creating the trust. (Con. Stat. U. C. ca]). 90, Bee, y.) .308 THF MUNICIPAL MANUAL. [ss. 37G, 377. Purohasf; iiiciiify su1>- j(i('t til itharKcs on liroixjHy. Moilr i)f coiniiftllint; imrforiiiiuu'i', (if certain iiiatt(!i's (li- recteil to 1m! ■ louo by •fi1i>. All sums aj^i'eed iipon, or awardorl in rospoct of such real prop(;rty, shall he sul>)('ct to tho limitations and charges to which the ]jroperty was snV>ject. {k) 2J-30 V. c. 51, s. 328. Expenses of ErcctliKj Fences, aiiy, kc, contract with incapacitated jiersons iov the purchase of land, the money is in equity to be considered as real and not as personal estate. (MUlInnd Cuimth-x ludl Willi Cn. V. (Jsirin, 8 Jnr. I3S. ) ^btney jiaid into court by a railway conipany for land taken from a ]iers(iri 'who was in a state of mental inil)ecility, and who contiiuied in tliat state until his death, Init was not the subject of a coniinissinn of lunacy, was ordered after his death not to he reinvested in or considered as land, but to be paid to his executors, {/n re rJn.it Linco/nshin- Ka'ihnay Act, 1 Sim. X. iS. 'JliO. ) Moncjy paid into court for laud taken under the compulsory powers of the i'lnglisli Act 5 & (1 Win. IV. cap. (»'.), for a I'oor Law Union, duriiiir the life of a tenant for life, who by tile failure of intermediate limitations hecame tenant in fee sim[ile, passed as real estate to liis heir. (In re Hunter's Estate, 16 Jur. 10().S. ) Where the 2)nrc1iase money of laud, taken under tho compulsory jiowers of an Act of Parliament for public ] urposes, is paiil into court subject to be reinvested in the purchase o' laii'!, free of expense to the parties bcnelieially interested, nn the i' petition, it is impresseil with real uses, and is prlniii I'nri" to be treated as real estate. (In re Sfeirurt'.'^ Kxtalr, ](> .Jur. I()()8.) If the person absolutely entitled to money for laivl has a right to elect to take it as pevsonalty, a mere acquiescence ii' its remaining invested in consols during his life, and his will, by which he lie{pieaths ]iersonal estate only, and does imt devise realty, are not .such ]iroofs of election as to pi'i^vcnt the funds deseendiii- on his death to his heirs. [III.] See further, J)iinh>j> v. Yi)r/,\ I(j (irant, 2U\. (!) The usual penalty for non-complianc > with a By-law is a line. (See sec. 87-, sub. 11.) Power to enforce tlie [)rovisioiis of a P)y-law otiiei'wise than by fine must he ex})ressly given. (See notes to sub. 11 of sec. 87-.) Hut v.'here the olqect of the IJy-law is reall}' that somebody slumld do the thing re([uired, power to jjcrmit the thing to he <]one at the expense of the ]»arty in default is a reasonable one, and is here exjiressly given. !n the case of liy-laws for the removal of snow such a power hiv for a long time exi.sted. (See sec. 384, a. 378, sul). 1.] nARnoi:i , wharves, etc. 309 in case of non-paymont tlieroof, ilie same sliull Lo rccovcvcd in like niauuer as ^Municipal rates, (ni) JVcw. Division' If. -Pcwers of Councils of Coustie.^, Citi£.-s, Towns AN J) iNCOKrORATEU VlIXAdE.S. 31 S, Tl)o f^onncil of rvcrv County. City, Town and IncDi'jjorated Village may pass By-la w.s for tlie following purposes : — Harbours, Docks, d'c. (1.) For regulating or preventing tlie encumbering, injur- ing or fouling, liy aiiiuiids, vehicles, vessels or other i leaus, of any puhlio -wJiarf, doek, slip, drain, sewrr, shore, bay, harbour, river or water ; («) Buh. 41 . ) Tlie power is now extended to all cases wherever a Muni- cipal ('orporation lias authority, 'by Dy-law or otlurunsr, to direct that "ani/ matter or thing" should be (h)ue liy " a>i!/ person or Coi'poratioii." >Sutl'oriiig a pra-ty wall of less th;ui the rotiriijite thiekucss to remain, is not ]>ir sc "a emitiiaiiiig oll'once." The more .ippr(i|iri:it3 romody is the removal ot' tlie strueture at the expense of the iiw ner, where the I'v'daw permit;-; of sueh a eoiu'se heing adopted. (See Mar.^hall v. SmUil L. K. 8 C. 1*. 41G.) (?rt) Munieipal rates may])c recovered either by aetion or distress. But in either ease there is a Roll sliowiiig the peison rated and for how mui h he is rated. This is, as it were, the judgment against him for the amount. Xo provision is here expressly made for the placing of the name of the person in default on the lloil. Whether such a power is intended ri-:uiains to be decided. The section is new. (h) All powers of Municipal (corporations over public wharves, docks, slips, Sec, nuist be derived from the Legislature. {Sin/di-rv. liorkpnrt, 6 lnd.( Porter) 237; C'lrrd'l'-m IhulnxulCo. v. Wnithn.pJ^ l.a.An. .'it).) The Legislature of Ontario has no power to make laws as to naviga- tion and shipping. (B. N. A. Act, s. !)1, sub. 10.) " Mr. Crompton presses u])on us that Acts relating to trade aid navigation have not a legal but as it were a sort of pailiamentary i leaning, hy which they are restricted so far as not to include the Mi.rdiant Seamen's Act, a)id that they form as it were a code which takes them out of the gcnei al law of the land. In some cayes that may hr possibly tru''. hut we are called upon to look to the jilain and o-.tinary meaidug of this .\ot of raiiiameiit," &e. (I'''y Pollock, V. B., in S(.ninaii\'i Jfo.tinii:! v. Liverpoof, 4 Ex. 180- 18t.) According to the plain and ordinary meaning of this subsection, " the regulating or preventing the encum- bering, injuring or fouling by animals, vehicles, vessels or other means, of any puolie wharf,'' &c. , taiinnt be lulil otherwise than matter of munieijial concern. Tin- wth'are and gi od govermncnt of a Municipality demands tliat thing-; likely to be iujiirimis t) health, and, as it were, n\iis:inces, should, under certain restrict!; ns be pre- vented, and, if they cannot be jireventcd, that they should be so regulated as to be as little hurtful to the public as consistent Avith their existence. The p;>wer is restricted to public whar\cs, &c. Whether a wharf can be said to bi' public or ])rivate depemls upon oircumstaiices J such as the purptif-es for which it wa.s built, the u.sea by-l;iw« may be luailu for Tlu! clean- lillOJS of nil, lives, ilutika, iLii. 310 THE MUNICIPAL MANUAL. [s. 378, Sub. 4. The removal of door- Bteps, Ac, obbtructing wharveii, &c. The iiinking, wharvi'.s, docks, iVc. Regulating Imi'liouvs, beacons, wli;ii-vt's, elevators, Vessels, Ac. (2.) For directing the i-emoval of door-steps, porches, railings, or other erections, or obstructions projecting into or over any wharf, dock, slip, drain, sewer, Iwy, harVioiir, river or water, or the banks or shores thereof, (o) at the expense of the proprietor or occu})ant of the property con- nected with which such projections are found ; (p) (3.) For n\aking, o])ening, jn'eserving, altering, improving and niaiiitaiiiing ])ul)lic wharves, docks, slips, shores, bays, harbours, i-ivci.s or waters and the banks thereof; ((/) (■[.) For regulating harbours; for preventing the filling up or encumbering thereof; for ei-ecting and maintaining the necessary beacons, and for erecting and renting wharves, piers and docks therein, and also tioating elevators, derricks, cranes and other machinery suitable for loading, discharging or re])airing vessels ; for regulating the -vessels, crafts and rafts arriving in any harbour; (/•) and for imposing and to which applied, the ])ln o located, and the character of the struc- ture, &c. (Dutton V. Stru.vj. 1 Black. U. S. 23.) (o) See prccedi.'g note. (p) See note / to sec. 377. (7) The preceding sections relate to the regulation, for the good of the iiublic, of ])ul)lic wharves, docks, slips, &c., but this does more. It enables the Municipal ('orpd'-ation to make, opei., preserve, alter, improve, and iiuiintain public wharves, &c. The barter of a city authorized it to establish M'harvep and public landijigs, to iix tlie rate of wharfage, and to regulate the .anchorage and mooring of all boats within the city. HchI, that the city had the power to forbid a person owning a lot abutting on the river, and on which no wharf or ])ublic lanhii v. City Council, 11 Ala. oSiJ; Uvstdu v. Lccrain, 17 How. (U. S.) 426; ComiiionwcdUh v. h'uxhurij, 9 (tray, HH-oiy; BultuHore v. White, 2 Gill. .Md. 444. ) (/•) The duty of 'hose having control of r. harbour is, so lojig as it is open tttsh,(r'"" t^wa convenient Electoral Divisions, and for establisliing jiDlIiiig i^c. places therein, iind may from time to time repeal or vary th(! same, {l>) and sudi Electoral Divisions shall be made, or varied whenever the electors in any Ward, Township, Vil- Amltown- la^e or Division exceed two hundred, and shall be madc^ and **lVi"* •■'"l^^ . , . 1 1 (' ^ • 1 villaj^'cs into varied m such a manner that the numlier ot eleetois lu tiie eiucunal di- several Electoral Divisions shall not exceed the sahl number ^'=*"^"^> ^c. of two hundred ; Vide 29-30 V. c. 51, s. 278. v. Port Burn-ell Ihtrhour Co., 17 U. C. C. P. 574; reversed, 19U.C. C. P. 376; Brrn/NiKii v. PortBimcdl Hurhonr Co., 24U.C. Q. B.,*)!.) (,s>) It is not clear that the Local Legislatiu'e can enable a Mimioi- pal C'()ri)()ratii>ii to impose hr.rliourdues, for sucii is certainly an inter- ference ivitli sliipping. (See B.N. A. Act, s. !H , sn'o. 10. ) Bnt assuming the power to exist, it cannot be exercised for pnrposcs of revenne. The power is here conferred in its lowest form, viz., to impose and collect such ri'dtomihlt harbour dues (is jikii/ scrir to hcj) tin- Imrhour in (/(loil order, mid to paij t/ie Imrlmnr nuixfer. (See /// re ('lutqihill and Khi'/yfon, 14 U. C. C' V. 28o. ) 1 f tlic wharf, &c., be the property of the city, it may be tliat the ri^ht to im]»ose and collect tolls would be held to be a mere incident of the ownersiiip of property. (See note 7 to sec. 378.) But the right to erect /uddir wharves and to demand 4olls for tiieir use would ajipcar to be a franchisi' re(|nir- ing competent legislative authority. ( Peo/ilr v. Hntddinn/ W/mrt' ( '0., 31 Cal. 33; Whorf Casr, H Bland, ("h. (.Md.) .383; Wisimll v. JLill, 3 Paige Ch. 313; Thcmpmn v. Xexv York, 11 N. Y. 11.1.) {a) Counties not embraced within this st'etion. (h) The powers here conferred are for — 1. Dividing the Municipality into twoormore Klectnrai divisions; 2. Mstablisliing I'olling Places tlicrein ; 3. Anil may from time to time to time repeal or vary tiie same. Under circumstances stated it is made obligatory to create Elec- toral Divisions. The eirctunstanccs are, wheui ver the electors in any Ward, Township, Village or Division exceed two hunilred. In such a ease it is niactly or indirectly, keep or have in their possession or on their pr(>inises any billiard or bagatelle table, or who keej> or have a billiard or bagatelle table in a house or place of public entertainment or resort, whether such billiard or bagatelle table is used or not, and for lixing the sum to be paid for a license so to have or keep such billiard or bagatelle ta])lo, and the time such license shall be in force; {d) 2'J-30 V. c. 51, s. 26-1-, sub. 1. Victuallinrf Houses, dx. (i.) For limiting the number of and I'cgulating victual- ling houses, ordinaries, and houses where fruit, oysters, clams or victuals are sold, to be eaten therein, and all other places for reception, refreshment or entertainment ot the public; (e) 20 (^en. Ill, cait. (» ; see also Cliuirh (/.L v. Jilchitrd.s, G U. C. Q. B. 502.) la .some instances power was given to aupprcis such a use of billiard tables. (See The Kin§ v. Home Diitri't, i Q. B. O. S. 9 ; seo further, I'eujjk v. Scrytant, 8 Cow. 139.) The power here c aiferrei is only to licuniif, rcijtdate and govern. Power tti license or regulate docs not confer power to sujjprcss. (See Yates V. JIUwatdcc-, 10 Wall. •i[)7 ; seo further, note x to sub. 18 of this section.) (r« It was held that under a general power in pass Hy-lawa "for the if'eAl'bvhi-j of the City," there w.i - po\v< >■ to reguliito restaurants and othei' places of public resort. {State v. Freetaan, H8 N. H. 426; see als^^ State v. Clad; 8 Fost. (N. 11.^ \7&; Alorris v. A'ume', 10 Geo. 532; Hmnon v. iieary, 4 Kh. la. -48o.) (/) Exacting payment of a fee for a license to be aJlowc \ to follow a particular vocatu>u within a Mumcip..ility is not the impositi'm of a tax. {CUn v. Vluteh, G Iowa, ,Vk>; MohVev. Yuilk, 3 Ala 137; Boston V. S-ha^er, 9 I'iok. 415: sec also (^mcinyiatt v. Brij^' i, 15 Ohio, 025; New Orkam v. Turpiii, 13 \a, .^Va. o6; MunieiiKditij v. 8. 379, sub. 7.] CEMETERIES. siy Schools. (6) For oLtiiininij suoli roul iirn])orty .as may 1)0 roquirod for tlio ovcctioii of Pnl)lio Sclioul lioaso.s tliei-eou, ami for other Public School ])urj)OSC3, {ij) lUid for tho disposal tlicrcof when 110 longer required ; (A) and for pi'ovidini,' for tho o.stablishineut and support of Pul)lic Schools according to law; (i) 29-;]0 V. c. ul, s. L'dlt, sub. 2. Ccmetei'ies. (70 For accepting or ]iurchasing land for public C'enioto- riea, ..s well within as without tho ]\Iunici}iality, but not within auy City, Town or Incorporated A'^illage, and for lay- ing out, ini}»i'oving and managing i\.^ same; but no land shall be acc(!pte(l or purchas(>d for such pui-jjose excej)t by a By-law declaring in express terms that the land is ajjpro- priated for a public Cemetc^ry and for no other jjurpose; and thereu|iou such land, although without the jMuiiicipality, shall become part tliereof, and shall cease to be a part of tho Municipality to which it formerly belonged ; and such By- Acqniring 1,111(1 for JlllllllO Arqniring Lui.l for ctiuutonci, &u. Proviso. Duhoiy, 10 Inn. An. 5(5; C/uirifi/ IFin^ji'itdl v. Stlrknr)/, 2 La. An. .')50; Carrol v. Mai/or, ie." (Boston V. Srhajfcr, 9 Pick. 419 ; but sec Coinniunirmlth v. Stotldcr, 2 Cush. .5(52, 527. ) But power merely "to make Bydaws rclc.tire to hucksters, grocers, and victualling shops " is not sullicient to enable the Municipality to exact money for a license. (Sue Diinhum v. Roch('-:t,'r, 5 Cow. 4(52; (.'oiinnonir^'aUh v. Staddvr, 2 Cush. atiJ ; Mays V. C'lnrhinall, 1 Oliio St. 2(58.) The power of regulating, when con- ferred to its fullest extent, must nut be so exercised as to onfcr monop!)lies. (See sec. 224, and notes thereto; sec further, note x to Bub. IS of sec. 379.) ((j) See note a to sub. 1 of sec. .'572. (/i) See note c to same. (i) Towaiship Councils may grant to School Trustees authority to borrow laum'y. (Li re Srhool Trit/) and for declaring in the conveyance the terms on which such portion shall be held ; 29-30 V. c. T)!, s. 209, sub. 4. Cruelty to Animals. (9.) For preventing cruelty to animals, (I) iind for pre- venting the destruction of birds, the By-laws for these ( j) As a rule, the jurisiliction of every Council is couliued to the Municipality the (!()iuicil rei)resunts. (See note,/ to see. IG. ) Here an authority beyond the limits of the Municipality is given. That authority is to accept or purchase land for public cemeteries, as well within as iinthont tiio Municipality. The acceptance or i)ureliase is to be by By-law, declaring in express terms that the land is apnro- priated for a public cemetery, iIo«m. "cattle," UHod in the recent Hnglish statute 28 k 2'.) Vic. caj). (iO, sec. 1, has been held to include horses and marcs. ( Wrujlil v. I'liir- son, L. Jl. 4 (^). ]j. r)S2. ) A heijuest for founding and ujilioldiny an institution for studying and curing maladies of <(uadru]>eds or ])ird8 useful to man is .a good charitable legacy. (Ciiiiir.'iit;/ of Ldiit/oii V. Yarroir, 'J.S Ueav. 1.")!); 2 .Iiir. (\. S.) 112;"), alHrmed on apjjcal; 1 De Vr. & J. 72; .S .hir. (X. S.) 421.) (//) It is a principle applicable to every By-law that it he not con- trary to any statute in that l)ehalf. (See note i to sec. 22."?.) (»/) The power is not merely to "regulate," but to "restrain" the running at large of dogs. This i lay be read in connection ".vith the next subsection, which provides "for killing dogs" running at large contrary to tlie By-laws. It will be observcsecti(»n innuediately follows oiu; which enables Corporations to pass Hy-laws for preventing cruelty to aidmals. 'I'he killing of tlogs, un'J, .siili. 7. Fences. (12.) For sottlint; tlio lifi<,'lit luid description of lawful FenceH. fenms ; {i>) 2l)-30 V. c. ol, s. 2(i!), Hub. 8. I)'irisii))t Fences. {]'-\) For iv;,'u latino' the liciylit, c.vtcnt and dosoriiitioTi of Pivision lawful division fiMices, (. 1!. 'JKJ. ) his {(>) Sec note )ii to sid). 10 of tins section (//) An owner or oeeupior of hinds, tiiouuli liouinl to take cai'c tliat is cattle ilo not wandi^r from liis own laud and stray upon tlie hands iAinv. iii>''ii iiiii.: itiinin of another, is not l>y the eomnion law under any oMiyation to put up or maintain a fence.) H'lllim v. A iih ■•'■■. 14. 27 1- ; Kr-(». ) Such an olilii,'atiou can only he fonmhid upon presci'iiitivc statutory ol)liiiation, hydaw, agreement or covenant. (//».) If the oliliu'ation to fence exist, it is in general almolutt; - the act of (iod or )•/.< iiiiijur only excipted. It is no defence, therefore, in sucli .a case that the defenilant liad no notice of the want of repair. {Lmtrinee v. JinLiiis. L. 1!.>S(,>. IJ. 'J74.) it is provided l.y ( 'on. Stat. l". <'. ca)!. ."iT, that each of the parties occupying ailjoining tracts of land shall make, kec]i up and repair a just jjroportion of the division or line fence on the line dividing such tracts, and equally on either side thereof. (Sec. 1.) If there he a duty to fence, the neglect of it deprives the person upon whom tlie duty di^volves of the right to complain of injuries suH'ci'ed liy his animals {('InriniKifi, II. A- l>. IhiilriKul Co. v. ]Viii( rom. 4 ( >hio St. 424), or h\' the entry of animals on his lanil for want of a sutiieicnt fcuce. ( Yorkx. I)(irU,'\\ N. H. 241 ; see also Uii.-'tw Loir, C.Mass. HO.) Where the Legislature imposeil a penalty of .SlOO upon railways f(jr every uiouth'sdelay in i»erforming the duty of maintaining and. keej)ing legal and .sulheient fences, it -was held that the neglect of the ( 'oi'pfj- ratiou to perform the duty rendered them lial)le to reindmrse any person sutVerinu' injury therehy. {XorrU wAnilra.-icix/jlu Rii'ilro nl ( 'o., 3!) Maine U. 27.'h) So it has hei'ii held, that any one who \oluntarily sutlers his cow to go at large in the puhlic streets of a City, contrary to its I4y-law3, with no one to take charge of her, and thus to stray upon a railroad track at the time when the cars are passing, cannot recover against tiie comiiany without j>roof f)f gross negligenct^ on their part. (lioieiiiiin v. Truji mul lii>>!tt,it /'(li/rixiil C'o.,'M Harli. ."iHi; see also Bi Uifuntfi'nic (unl ImliinKt I'dllrmul Co. v. JidiJc;/, 1 1 ( >iiio St. 'MH; LoiiiiriUe, dr. liailruad Co. v. Ballard, 2 Met. (Ky. ) 177.) (q) See preceding note. n '^ IMAGE EVALUATION TEST TARGET (MT-3) // V fe i WJ>< . ^ ^K0 ///// i/x V. 1.0 I.I 1.25 ■■■''' IM 112.5 lU m ,4 IM M 1.8 1-4 IIIIII.6 V] <^ /a "m ^ /; y >^ Photographic Sciences Corporation 23 wen MAIN STREET WEBSTER, NY 14580 (716) 872-4503 i/.x ^ 318 THE MUNICIPAL MANUAL. [s. 379, Sub. 15. Provision until by- laws made. Water ■■ourses. Pnvriition of grov>,U» ol' tiiistk'S riin! wcedii. thereof shall be apportioned ; and for dii-ecting that any amount so apportioned shall be recovered in the same manner as penalties not otherwise provided for may be recovered under this Act; (r) but until such By-laws be made, the Act res|M*cting line fences and water cour.ses shall continue appli. cable to the Municipality; (s) 29-30 V. c. 51, s. 2G9, sub. 9. Water Courses. (14.) For compelling the owners of lands through which SLi\y o[)en drain or v/ater course passes, to erect and keep up ^'ater gates where fences cross such drain or water course, ^ ior j)re venting persons obstructing any drain or water course ; (t) New. Weeds. ! V ) ^ov preventing the growth of Canada tliistles and otl.. I ".I'ds detrimental to husbandry, and compelling the destvucion thereof; for the appointment of an Inspector, with power to enforce the provisions of such By-law, for regulating his duties, and for determining the amount ot remuneration, fees or charges he is to receive for the per- formance of such duties; (m) 29-30 V. c, 51, s. 2G9, sub. 10; 37 V. c. 16, 8. 15. (r) The powers here confcrre ; Fahn v. Rekhart, 8 Wise. 255 ; Clark v. Foot, 8 Johns. 421 ; Hanlon v. Iiujram, 8 Iowa, 81 ; AverUt v. Murrdl, 4 Joues (N. C), 330 THE MUNICIPAL MANL'AL. [s. 370, Bllb. 18. publUt hIiowh and liiuiiiiiiiiK Humf. Killl'K till- iiii'ructioii. rmvisii. E.iliih'Uloiis, SItoxns, d'c. (18.^ For prcvontiiiuj or rcgulatitii,' aiul licensing' exhi])i- tiDiis of wax work, mona^cru's, circus, ritHu<^, and other such like siiows ustially exhihiti'il liy showint'ii, ami for rr(|iiiriiijj[ the |iiiyiiient of lieeiise fees foi' aiithorizint( the same, not exceedin;,' one laiiuli'etl dollars for every such license, and for imposing lines upon persons inlViuLdnf,' such liy-laws, and for levyini; the .sii^'e liy disti'ess and sale of th<^ j^'oods iind chattels of such showman, or l)clon;.dni,' to or use d in such exhil)ition, whether owned by such showman or not, or for the imprisonment of such otfendersfoi-any t-iiu not exceediii<» one mouth; (j;) Provided always, that it shall not bo lawful 8'2;i ; Milln-w Miirlh), 11 -Mo. HOS ; /),• Frniirr v. S'j>nn;r, '2 iy the coiimioii law un action lies ayaiiist the party !>y whoau lu-gligoncc or tliat of his servants a tire arises on liis jn'omiHcs ami daniaujos the ]ii'ojicrtv of anotlier. {Fillitir v. /'liiji/iKnl, II (j. 15. 'M~ \ slo also lianinnl \. y' III-, '1\ I'ick. HTS ; MnnHw \\"tl.<(,ii, '_' Harrington, 413.) One wlio |)in'[>ose!y si^ts lire to anything ajMin liis own [irenii.ses is liound to use or(Unary care to avoid damage tiiereliy to the i)ro[)erty of another. (Sratt V. llttiv, H) Maine, .S'Jti. ) Tlie harden of |)roof iu tliis, as in other cases of neghf^enee, ajij'i'ars to rest on the iihiintilf. (Tiinrtdhit V. L'nsi'hrao/,; 11 .Met. 4(10; Jinrluhhr v. /Incjun, 18 Maine. '.\'2 ; ('ii//,hi.'< v. Juirijii; 44 ilarli. 4:24; Jtmldn v. H //c'/, 4 (halt. l.")l ; Imtsee TubcrcUv. Stamp, 1 tSalk. 13; llanhnw liKjrmn. 3 Iowa, «1.) The power here given is for regulating — 1. Thi t'nii'-< during which stuniiis, wood, leg?, trees, hni.sh, straw, shavings or refuse may be set on lire or burned iu the open air ; 2. And for prescribing jnirduHuiiK to be observed darimj .si(c7t times; 3. And for preventing lircs being kindled at ofin r times. The kindling t>f a lire, in a Municipality wheie such a I'ly-IfiAV exists, at a time other than that prescribed by the llydaw, or in disregard of the jirecautiuns made necessary by the By daw, would be strong if not conclusive evideuce of negligence. {j) In the United States a distinetii:n has been maile in the use of the words "regulate" and "license," as used in reference to useful trades and cin[iloyments, and as used in reference to anuisements, exiiibitii)ns, &c. As to the former, there is no right to use tlie lieeusc us a mode of taxation with a view to revenue and [n rhaps prohibition ; but as regards the latter, more extensive powers may be exercised under the very same words. [Ash v. l\ro' v. Miil/iiis, 1.'; Ala. (N.S.)34; Ci/i/ Council y. Alirvn-*, 4 .Strob, -241 ; Stntt' v. Ilulnrl.'i, 1 1 ( iill. &.rohns. rm;'rortluntlv. O'Xiill, 1 Ire. UI8 ; Jiiiiit'tf v. BiDninijhiim, 31 I'a. 8t. 15; Cominumaalth v. iSto)t/ y. S/ti'll'i/- villi', 18 ind. 84 ; Botiutt v. Pt<,j,l,', 30 111. 381); >!arainiter Canada, or of any County, Klectond Division, or Townshij) Agricultural Society, either on the grounds of sucli Society or within the distance of three hundred yards from such grounds; (//) 2y-30 V. c. 51, s. 209, sub. 11. Graves. (19.) For preventing the violation of Cemeteries, graves, tombs, tombstones or vaidts where the dead are interred ; (j;) 29-30 V. cai>. 51, s. 209, sub. 12. I.ircnsM not to hf Krant(!d fur ocrtaiB tiiiiea and places. Protfctinf gravel. 1 1 Mich. 43. ) Tlie same words in (Ufferent statutes may have different meanings — l)roa(l or narrow, according tt) tlie suhject matter of legislation an of sec. 379.) It has been held that a statute authorizing a Municipality to Eiss laws for the good g<)Vernment of a City, does not authorize a y-law rcfiuiring the proprietor of a circus, theatre or other exhibi- tion licensed by the (Corporation, to pay a Police Otticer $2 for each night's attendance upon such place of amusement for the jjurijose of enforcing order. ( Wdlers v. Lvich, 3 Ark. 1 10.) (y) The general power conferred in the first part of the subsection is to prevent, regulate or license. This intends a discretion to bo exercised under all circumstt.nces and in all places. Ihit the latter part of the subsection takes away the discretionary power under the circuiiistances stated. In no case is it to be exercised "on the tlays of the exhibiticm of the Agricultural Association of Upper Canada, or of any County, Electoral Division or Township Agricultural Society, either on the grounds of such Society or within the distance of 300 yards from such grounds." (z) The proper interment of the dead is a matter that deeply concerns the health of the living, and is therefore a proper subject for Municipal control. {Boqartv. Jmlitind/nilis. 13 Ind. 1.34; Xhw York V. Slack; 3 Wheel. Or. C. 237; Pirxhi/tn-i'tn Church v. New York, 5 Cow. 538; Coateii v. Kciv York, 7 Cow. 580 ; Coiniin/iiwcalth V. Faheij, 5 Cush. 408; New Orleam v. St. Louin Church, 11 La. An. 244; Commonwealth v. Cooilric/i, 13 Allen, 54G; see also, Charlcnton V. Baptist Church, 4 Strob. (S. C.) .30(5, 309; J/iwr/rwiv v. Catholic Church, 10 La. An. 431; An-itinv. Murray, IG Pick. 121.) It has been held in the United States that buriala are not matters of 21 8S3 THE HUNICIPAI' MANUAL, [s. 379, Sub. 21. ISacourag- Ina planting of certain trees, &u. Ornamantal trees. Shade Treet. " • (20.) For allowing to any person who shall plant any fruit ti-ees, or any trees, shrubs or saplings, suitable for affording shade on any highway within the Municipality, («) in abatement of statute labour or out of the general fund, a sura of not less than twenty-five cents for every tree so planted ; Injuries to Propt.ty and Notices. (21.) For preventing the injuring or destroying of trees or shrubs planted or preserved for shade or ornament ; (6) ecclesiastical cognizance; that the right to 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 sepulture at pleasure, ami tliat if the place of burial be taken for public use, the next of kiu may claim indemnity for the expense o'' removing and suitably interring the remains. (In re BvtKiiuin S' ;t, 4 Bradf. (N. Y. ) .")().■<- 532; see also Boijarl v. liidiannpoHs, 13 Ind. \M ; In re Brick Prts- bi/terianV/inrch, 3Edw. Ch. Rep. (N. Y.) 155.) It has been held that it is an indictable offence to take up a dead body even for the purpose of dissection. (Joramon decency requires that such a practice sliould bo prevented. The bare idea of it makes nature revolt. It is an offence against decency to take c person's dead body with intent to sell or dispose of it for gain or proht. It has been held that to sell the dead body of a cajjital convict for the purpose of dissection, wiiero dissection was no part of the sentence, is a misdemeanor, and indict- able at common law. ( 1 Kussell on Crimes, 4th Ed. G2i). ) (a) The policy of the Municipal law is to encourage the planting of trues on public highways; and in furtherance of this policy, pro- vision is here made for the passing of a By-law allowing a sum of not less that '25 cents for every tree planted on a highway, provided it be nuUabk for affonihuj Hluuk'. If the trees are not suitable for sh;ide, the power cannot be exercised. (See notes to sub. 19 of sec. 37-.) Shade trees planted by a land-owner between a carriage path and a sidewalk are not to be deemed a nuisance. {Graven v. HhatlucJ:, 35 N. H. 258.) (b) 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, ait nhall he iwi'd/ul to the good of tlw. Cili/" — that the City had power to pass a By-law imposing a penalty upon any person who should inulilate or fA-.s/ro// any ornamental tree planted in the streets, lanes or other public places of the City. (Sld'.e v. Merrill, 37 Maine, 329.) Whatever doubt there might be as to the power under a statute so general as that quoted, there can bo none under the sub- section here annotated, which is "for preveMhuj the iiijuriinj or dentrojfinij " 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 be necessary to show that the injury or destruction was either wanton or malicious. If any person unlawfully and maliciously cuts, breaks, barks, roots up, or otherwise destroys or damages the whole or any part of any tree, sapUng or shrub, or any underwood re- s. 379, sub. 24.] o.vs am) water. 323 and the defacing of private or other ]>roperty l>y printiM! or other notices; (c) Vide 2'J-3(> V. c. ni, s. ^iVJ, suJ). 13. ('22.) For preventinj; the j)\illiiig down or (It-fjiciiii,' of Sijtnii. sigulioanls, ('/) and of jtriiitrd or written notices hiwfully atli.ved; (c) VU,' L'iK.'JO V. c. HI. s. 201), sub. 11. 0(18 (Hid Wdter Companies. (23.) For authorizing any eoi'porat(! gas or water company Autii'irizinj? in- to lay down pipes or coivhiits for the conveyanee of water or wlii.rcm gas iiiider streets or public sipifircs, ( /') subject to such regula- i'''"!'*^*" tions as the Council soe.s lit; 20-30 V. e. Hl.s. 2('iil, sub. 15. pipes. Ac. (24.) For acquiring .stock in, oi- lending nionev to, any 'l':'''-i''« such company ; anunil, gruiKn, nrcliaril or iivcnuu, nr in any ^'roiunl ai'ijnininjx or liiluniring to iiny (Iv.cllin;^ Ihtiisi', tliu ofl'endcr, &o., is guilty of a iiiiHikniiannr. (<'iin. Stat, t'au. cap. 915, sec. -1 ; .7-) (c\ No one has a ri^'ht to iyjuro tlai jtrojicrty of nnotliur with .-i view to Lfain or otherwise. Posting: ii]> jiiiiiranls a^'ainst liousc walls, itc, may lie a ilifaci incut thereof, and .«o a lc>.'al injury. 'Ilicolijcct 111 tiii.s rtiii)soctioii is to authori/.o the jiassing of by-laws to prevent such injuries. ('/) The pulling (Iowa cr defacement of sign])oard.sis an ainn»einul.lic sipiare^. {Ellis V. Shrtjiriil (;,ts Co., '2H I.. .T. (,). n. 42; Th, um , n v. L<.nl;sccalso Till (JiH,n\\Cfiarlistn,rlli. UU/. j-i. I'ol'i; T/:t fjunn V. Troiii, <) Cox. (('. ('.) ISO; li,,.t,.ii \. /:ir/Hir'!.-;,, 1.*! Allen. I4(), ll)(» ; Sl'ife V. Cinrinnnti Hits Co., JlS . >hio .St. *_'(>'_' ; Ml'/ion v. Sfmrp, lo !'.arl). XW^: Siiiilhw Mrs \. Ilnil.fon, 2 licas. (N. J.) 420.) A t'ity Council has no power, in the alisence of express leL'isl.ition authorizing it, to grant the exclusive right or monopoly, cither as t(» gas -atcr. {/Jli/thv. Biniiitijltfuu iValirCo., 11 i'^x. 7S1.) 324 THE MUNICIPAL MAKUAL. [s. 379, 8ul). 26. I'roviuo. Huad of ciirporatlon tiil)eii"liit'u- tiiriiicor- taiii caauH. liiiiiiiilnrii'ii ■ if niuiiici- |>:illtie». Wfl^lits and iiK'asurvs. by the company ; Proviil'id tlio By-law is coiiBoiited to by the electors, Jis heroir before provided : (7) in such casi' tho head of any ( -orpomtiou holding stock in any such conijtany to tin) nniouiit of ten thousand dollars shall be »!.*;»;///< to a Director of the company, in addition to tho other Directors thereof, (h) and shall also })0 entitled to vote on such stock at any election of Directors ; 2y-30 V. c. 51, s. 26\), sub. 16; 8. 270. KsUihlish iw] liowttdariea. (25.) For procuring th<^ necessary estinmtes. and making the proper application fur ascortaining ami establishing the boundary lines of the Municipality, (/) according to law, (j) in (liise the sanu? has not been done ; and for erecting and providing for the preservation of tho dumble luonuinents required to be erected for evidencing the same ; 2U-3U V. c. 51, s. 2(19, sub. 1. Inspection of tt'eiijhts and Medsurca. (jj) (20.) For appointing Inspect.jrs to regulate weights and mc'Uiures, (k) according to the lawful standard; (/) 29-liO V. c. 51, 8. 283, sub. l". (;/) The powers arc^ 1. To acquire stock ; 2. To Icntl money ; 3. To guarantee the'payraeut of money borrowed, or of debenturca issued formoney Inirrowod. In any such case, the By-law is only valid when assented to by tho electors. (h) Although the Municipal Corporation may either acquire stock, lend money, or guarantee money borrowed by a gas or water com- pany, it is only when it ac(juiris stock to the amount of at least Ij^lU.OOO that the head of the Corporation budomes au ex-ojiciu director. (•) .See note t to sec. 12. (.7) See sec. .S80. ijj) liy 37 Vic. c. 10, sec. 10, the following subsecticms, 26, 27, 28, 29 and 30, of this section were repealed, an. sec. li), these to he deposited with District Inspectors. (/I>. sec. 4.) Provi- sion wivs afterwards made, allowing tlie Municipahty of any City, Town, or Incorporated Vilhige aii[)ointing an Inspector of \Veighta and Measures, to adjust weights and measures for the use of such City, Town, or Incorjiorated Village, )>y the standard M'eiglits and measures in tlio posseasiou of tho District or County Inspector. (12 Vic. cap. 8o, 8. 12.) (»i) It is necessary that weights and measures should 1)C " accord- ing to the lawful stanihird," and in aid of this enactment power ia given for visiting "all places where weights and measures of any descriptiou are used." (n) The power to seize, forfeit and destroy tho property of an- other is an extreme power, and only to be exercised when exjiressly conferred. (Donoi'iin v. Vi'-t^hurij, 29 Miss. (7 CuHh.)247 ; Milm v. Cliamherlain, 17 Wis. 446 ; (Jincinixtd v. liuckimihaiii, 10 Ohio, 257; Ro.i<-f>ai((fh V. Safin, Ih. 32 ; PliUliim v. Alhn, 41 Pa. St. 481 ; Mobile V. y'uille, ,S Ala. 137.) That such a power may he expressly conferred by the Legislature is now beyond ilouht. (8eo note »« to sub. 10 of sec. 379.) (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 puri)0se, was held valid. (//( re Snc/l (ml Rdhvllh; 30 U. C. Q. \\. 81.) Hy-laws reiiuiring tho weighing or measurement of goods liefore sale are a valid exercise of Municipal power, and are not illegal as in restraint of trade. {Ralrhih V. SorrcU, I Jones (N. C.) 49 ; Stokes v. New York, 14 Wend. 87; Paiiie v. Fazackerli/, 36 Barb. .392; New York v. Xickol^, 4 Hill. (N. Y.) 209; Yaks v. Milwaukee, 12 Wis. 673; Tinkhani v. TajM-ott, 17 N.Y. 147; Chicago v. Quimhi/, 38 III. 274; Jiri'f/s v. A Li'i/it Boat, 7 Allen, 287 ; Fraz'ier v. Warfehl, 13 Md. 279.) So tho establish- ment of public weighing scales for hay. (Gos3 v. Corporation, 4 Sneed. (Tenn.) 62; Yates v. Milwaukee, 12 Wis. 673.) Upon the conviction of a railway company under the English statute 5 & 6. wn 9t4 THE MUNICIPAL MANUAL, [s, 379, 8ub. 30. 8.iring (•^^•) '''or sf'iziii^ and forfeiting broad or other articlcH i.rtad.ftr. ^},p,i ^f ligi,^ ^eiglit or slioi-t nu'UHUi-emeiit; (p) I Wm. TV. cap. 0.3, s. 28, for having in thoir poflH«'HBit)n a wci(/llin^ machinu wliicli, n)Min examination thoroof, duly niaa28. ) Scales having shot placet within a ball, which shot may be removed at jdeasure, renders the scale an imi>roper instrument of adjustment within the meaning of tliat statute, {('itrr v. Stniii/rr, L. K. 3 Q. B. 4:i^.) A sinnig balance unjust to the Miffrr is not within the statute, which is for tho )rotectiou oC the public when purchasing. (livookc v. iShudi/dtr, L. i. 8 1^. B. 3r>2.) {p) The assize of bread has from the earliest times been deemed icccs- sary. (See Hum's. Fustice, Title "lirwid.") The power to seize, as for- feited, bread or other property for light weight or short nuasurenunt is one that cannot be inferred from a mere jiower to regulate. (See note n to sub. 28 of sec. 379.) It is here in e.\(ircss terms conferred. Power " to regulate everything which relates to bakers " was held to give authority to piovifle for a forfeiture of bread baked contrary to the provisicm of a By-law. (Mohiliv. Ytiille, 3 Ala. 137.) So a I'.y- law, providing a forfeiture for the use of the City Workhouse of l)rtad so baked, was held legal. (GnUlottc v. Ni w OrlaiM, 12 La. An. 432; J'iKje V. Fazakcrlij, .30 Harb. 392. ) The sale of bread is now in JMigland regulated l>y (5 & 7 Wm. IV. cap. 37. In it there was an exception of brejul which, when the Act was passed, was known under tho dcnoiuinaticm of French or fancy bread. When this fancy brc.id became afterwards bread in ordinary and common use, and was so solil, it M.is held that the exception had ceased. (Thi' (Jwvu v. Wood. L. R. 4 Q. B. 55!). ) "The object of the Legislature in passing tho Act was to liberate the trade from the restrictions of the Assize Act, and leave the baker at liberty to make bread of any size and shape he pleased, and to charge liis own price for it ; but in order to protect the cust(mier from imposition, it re([uired the baker to sell by weight. He is no longer at liberty to sell at so much a lo.if ; he must sell at so much per pouml, and tlie customer is to be 8upi)lied with so many pounds of bread, unless he chooses to have an 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 conunon article of consumption, the baker must sell it aa Buch. It is obvious i!\at if wl'at is now ordinary bread is to be treated aa exceptional and an :.,iUcle of luxury, because it was so at the date of the Act, the enactment will become a dead letter. " {Pfr Lush, J., lb. 562.) In another case, under the same Act, Cockbum, C.J., 8. 370, Bub. 32.] INDECEVT WRITINGS. 327 Public Morals, (31.) For prevonting the salo or gift of intoxicating drink Bnin of to a child, ai)i)roiitico or wrviint, without the consent of a Ii"ri",i'*{^""' paront, niastor, or legal protector ; (y) 29-30 V. o. 52, s. i:iiiidr«n.*«. 284, Hub. 1. (.32.) For provonting the posting of indecent pliu-ards, indprmt writings or pictiin-s, or tin; writing of inihwcnt words, or the i''-*^"'***'*'- making of inilfccnt pictures or drawingK, on wails or fences in Ktrects or pulilic }»hiceH ; (r) 21)-30 V. c. 52, h. 281, sub. 2. said, " Wo think, whea a customer aslis for broad by wei^lit, thr^t cluarly is a casi; in wliiuii, wliotlier tlio Imkcr clioor^ua to give him ordinary bread or faney lircwb the baker is hound to sell by weiglil. We by no nuaiiH say tlie )>aker w.is bound to weiyh in the jtieseiieo of the eustonier, ))ut he was hound to wei^^h tlie l)read at some tiino or other l)efore he soM it, and to sell it liy wi'i;.;Iit instead of liy tlio denomination of iiouseiiold bread, fancy bread, or any other d(Uiouii- nation." ( 77i< (Juxii v. Kininlt, I.. U.,4 Q. li. .It).") .i(j7; »ee furtlicr, The Aerated Bread Co. v. d'retjy, I.. 11. 8 Q. M. 35.').) (7) The I'.ydaw may be passed to prevent the />nle or t/!// of intoxi- catiuf^ drink to the ehvsses mentioned, unloHS under tile eircumstaiices dirceted, that is, to a eliihl, aiijirentiee or servant, with the consent of the parent, master or legiU protector, ami not otherwise. (.See note o to see. 3SH». ) It was hehl that a Municipal Corporation, in the absence of exprtms legislation, had no jiower to pass such a liy- law as here authorized. (/« n /{nrr/ai/ (iml JhirliiKjfmi, 12 U. (J. Q. 1{. 81).) Hut express provision was afterwards m.ide on tlie feiib- ject. (See In re lioxx iniil York ,i- /Vr/. 14 V. ('.<'. l". 171.) Tlioni^li idiots and insane jtersons are not mentioiieil in the section, a I'.y-law preventing sales to such persons would not be bad. (Ih.) So long as such a Hylaw is not repugnant to the laws of the Province or of the Dominion, there would appear to be no objection to it. (//'.) (r) The things which may be prevented by By-law, under this subsection, are the following : 1. The posting of indecent placards, writings or pictures ; 2. The writing of indecent words ; 3. The making of indecent pictures or drawings ; On walls or fences in streets or jiul>lic places. A thing may be saiil to be "imlecent" when otl'ensivc to modesty or delicacy. It is a misdemeanor to procure indecent prints with intent to publish them. {Dio/dale v. 'Hie (Jiie^n, 1 El. & H. 4:?.").) But to preserve and keep them in possession is no offence. (//'.) The sale of an obscene print to a person in private — he having in the lirst instance requestetl that such prints should bo shown to him, his object being to prosecute the seller — is a sutHcieut publication to sustain tiie charge. ( The Qimn v. Varlile, 1 Uox C. C. 221> ; sea further, note z to sub. 3d of this section. ) S28 THE MUNICIPAL MANUAL. [». 379, 8Ub. Sf). ▼lot', drank- •anoint, &c. Lm vrdnoM. KxhiblUonf, (33.) For preventing vice, (lninkonr«^sH, profano Hwmring, obscono, hliusphoinouH or grossly insulting liingimgo, and other inimomlity and indecency; («) 33 V. o. 20, s. 4. (34.) For HupproHsing di.sordorly houses and houses of ill- fame ; (C) 29-30 V. c. f)!, s. 284, sub. 4. (35.) For provonting or roguluting nnd licensing exhibi- tions held or kept for hii-o or piotit, bowling ull(!y.s, and («) Colleuting crowils in the streets by using violent ami indecent language to tho-se poHMing in the street, tliereliy oliKtnu-ting their free passage, is an imlictiiblo nuisance. (Harkrr v. L'ummonwtalth, 19 Pa. St. 412.) (<) I'ower to make By-laws relative to nui.sauces has been held to confer autliority to nniiose lu-naltics on bawily hoiiHes, and on persons owning houses used, with their knowledge, for such pur- poses. {^fl•Am.'- V. CUtrk; 3.1 Conn. 91 ; see also Eh/ v. Super- visors, 3(» N. Y. '_»1>7; .S7i((/V/- v. Mnmnia, 17 M<1. 331. ) Here the power conferred is to make hy-laws for ".iiipprctsiiiff disorderly housea and lumses of ill-faine." This, by implication, confers the right to use means neeoHsary to that end. (i'li'ildrinH v. Mdijor, .{r., 3 Sneed. (Tenn.)347.) Kornidding owners of houses from letting or renting for sueli a purpose is lawful. (ll>.) But though destruction of the house would be a means of suppressing it (see note >/t to sub. 10 of 8. 379), it would seem that power to demolish is not to be inferred from th • i)ower to suj.press. (Wtlch v. Stowcll, '2 Doug. (Mich.) 33'2. ) 'I'he httUiliiiij in which a particular trade is carried on, or the hon-fc whicii m.ay be kept in a disorderly numner or used for uidaw- ful purposes, is not yx/' »■ a nuisance, it is the misuse or abuse of it that constitutes tiio nuisance. (liardllt v. aSivchhoh, 17 Tex. 489; Danjunv. WaddtU, 9 Ire, (Law) 244.) The propn-lij in the tenement is therefore protected against destruction. (Millrr 'l al V. Jiurrh, 32 Te.x. 208; s. c. 5 Am. K. 242; Welck v. Stowdl, 2 J)oug. (Mich.) 323; see also, A7// v. Siip('rrif<(>r/<,'Mj^. Y. 297.) A house which is only a nuisance because occupied by one who carries on a business that is a nuisance, cannot be destroyed. {Clark v. Si/raciise, 13 Barb. 32. ) In prosecutions for keeping bawily houses, evidence may be given as to the common reputation of the defendants. (Slatf v. jfcDuitrll, Dudley (S. C ) 340. ) Where defemlants, as master and mistress, resided in a house to which men and women resorted for the purpose of pros- titution, but no indecency or disorderly conduct was perceptible from the exterior of the house, it was held, notwithstanding, that defen- dants were rightly convicted of keeping o house of ill-fame. ( T/if Queen V. Jfice ft al, L. R. 1 C. C. 21.) A conviction for that the defendant did on, &c., in the City of Toronto keep a common disorderly bawdy house on Queen street, in the same City, a place of resort for both men and women of lewd character for the purposes f)f prosecution, was held to be sufficient. ( The Queen v. Muiiro, 24 U. C. Q. B. 44.) But a conviction under Dominion Act, 32 & 33 Vic. cap. 28, for that defendant was in the night-time of 24th February, 1870, a common prostitute, wandering on the public streets of Ottawa ; and not giving a satisfactory account of herself, contrary to the statute, was held bad for not snowing sufficiently that she was asked before, or at the time of beiiig taken, to give an account of herself, and did not satis- factorily do 80. (The Queen v. Levecque, 30 U. C. Q. B. 509.) 379, Hill.. 38.] VAORAKTS. 329 other places of amuHcmeut; (u) 29-30 V. c, 01, s. 284, Bub. G. . (30.) For HU|ti»rosHinr v, Allium, !t Jlilj >.. Y.) 12J • 'rliikf V. C'diii/'litl/, 4 K. I). .Smith .")70). Hut t!>i' eontrary to 'I'll''- J '(>i>l<' V. Sinirinif, 8 Cow. l.'JK. (.See also, i/n (v<.. i v. I'mp/e, 9 Mieh. Ill ; Siiiitn'v. Mmtiinn, 7 hul. 8(i.) It iiiiH Im'i ii held that a ten pin alley is not /«/• w a nuisam^e. {Sln/i' v. //nil, ',i'2 N. .1. l.'iH.) Where the power to the Corporation is to determine whetiiei howling alleys shall be allowed, and if so, under what restrietioiis, a Mylaw rc<|uiring them to be elosed at a eertain hour was lield valid. {State V. J/di/, 'i!> Maine 4.">7 ; see also Slnli' v. Fn.nuin, HH N. H. 4'_'ti. ) Tlie power by this subsection eonferred is not only to regulate ami (See 8. 379, sub. IS, ant license, but prevent exhibitions held or kept for hire or protit, bowling ~D, Bub. IS, and is apprehende authorize the Corporation to demolish the houses so used. (.See note alleys, and other places of amusement, notes thereto. ) ()•) I'ower to supj)7rss gambling houses does not, it is apprehended, u.sed. I to sub. 34 of this beetion. ) All common gaming houses are nui- sances in the eye of the law, being detrimental t(» the public, as they promote cheating and other corrupt practices, and entice numltera of persons to idleness, whose time might be «»tlierwise employed for the good of the community. (1 Hawke, P. C. cap. 3'i, s. 4.) (ic) As to the power to seize and destroi/ private property, when necessary in the public interest, see note n to sul). 28 of this section. (.»•) The power is to prevent horse-racing. A former Municipal Act was to "prevent or regulate." Horse-racing is not under all circum- stances illegal. (Oliphanton Horses, 3 etl.41'2.) No j)er8on is, however, permitted l)y the law to run a horse at a race unless it is his own, nor to enter more \'\i\n ,sec. 1.) rs'oparty can recover a wager on a horse race that is illegal within the statute. [Sheldon V, Law, 3 Q. B. O. S. 85. ) The projjrietor of a racecourse is not responsible for the "purse," unless uium clear proof of an exjness understanding to that eflfect. ((Jatea v. Tiummj, 3 U. C. Q. B. 295.) Nor has the winner a right to recover back his "entrance money," because the purse has not been paid over to him. (lb. See further, Simim v. Denison, 28 U. C. Q. B. 323.) (y) Notwithstanding there be provision by the general law against vagrants (32 & 33 Vic. cap. 28), it is still iu the power of a Municipal 330 THE MUNICIPAL MANUAL. [s. 380. Indecent exposure Pathing. Placing landmarks and m; 1 Edw. VI. cap. 3; 3 & 4 Edw. NT. cap. KJ; 14Eliz c.vp. .''.; 18 Eliz. cap. 3; ."•") Eliz. cap, 7; 13 &. 14 Ca.-. 2, cap. 12, sec. 23; 12 Anne. st. 2. cap. 23; 13 (leo. II. cap. 24; 17 Geo. JI. caj). r». ) The last mentioned Act (17 eing in a position to see it, is not an indictable offence. {The Queen v. IVehh, 1 Denn. C. C. 3:J8 ; The Queen v. Watwn, 2 Cox. C. C. 376 ; T/h> Queen v. Farre'l, 9 Cox, C. 0. 446.) A party was indicted for an indecent exposure in an onniibus, several passengers being therein. Held, a public place. (The Queen V. Jfuhnen, 3 C. & K. 360,, 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 placo within the meaning of th"3 allega- tion. (The Queen v. Orchard, 3 Cox, C. C. 248.) (j:) A^Tiatever place becomes the abode of civilized men, there the laws of decency must be enforced. (The Qucn v. Crunden, 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 may have been usual for men to bathe in great numbers at the place. (lb. ) 3. QQ 0.] LAND MARKS. 331 place durable monuments at the front or rear of any conces- sion or range or part thereof in tlio Municipality, or at the front or rear angles of the lots therein, (a) the Council may apply to the (Jovernor in the manner provided for in the .sixth to the tenth sections of the (Jonsolidatetl Statute for Cmi. stiit. Upper Cani>,da rcsi)etting tlie survey of lands, praying hiui ^ ' '' *'• <-o ca'.sc a survey of such concession or range, or such part Ihereof, to he made, and such momnneuis to he }ilacfd under the authority of the .('ommissionc^r of (.'rown Lands, (h) and the jiei-son or persons making the survey .shall accvird- ingly plant stones or other durable monunKmts at the front or at the rear of such concession or range, or such prirt thereof as afoi-esaid, or at the fi-ont and re.ir angles of e\ cry lot therein (as the case may be), and the limiLs of each lot so ascertained and mai'ked shall I'C the true limits thereof ;(c) and the costs of tlie survey sliall be defrayed in the manner prescribed by the said statute. {,!) 29-30 V. c. 51, s. 2(;8. ((') Til tlio abst'iicc of such .an .'unilicatidii Jiiul sucli .a resolation as tht^ statute rc(|uirc'S to .iutli<>ii:L; an a]iiilic;iti(iii to tlio (Governor to cniso tlii3 Mirvev to bo laa'lo, tlio survey wotild bo liclil wliolly uiiauthoiizod. '{Voo^.- v. lV,"l>a„ti, 14 U. C. C. V. lHyi.) 'I'lie Court, li()\ve\ ei', will presi'iue that evoiytliiug v iiich was douo was rigliLly done, uuLil tlio ooutraiy appear. (/A.) ^Vllc^e it was shown that the ap|ilioaLioii was la.ulc, not Ijy ouodialf tlio resideiit land- holders to 1)0 fi iootod by tlio survoy, but liy ton froohoMors, over half of v/lioni liad no deods for tlioir laiids, ami tiiat cloven or twelve frooho'.iors who v.ould be a Hoc id by tlio sui'voy wore not i)artios to the ap^ilicaLioiK the Kurvoy was Iiold to lio miautlioii/od. (10. See furthoi-, T/,e Qw-a v. Mrl/m/or, 19 U. C. C. P. 09.) (It) The sJ :i'/i sectioii of Con. Stat. U. C. cap. 9'.i, recites tliat in several of the 'JViwiis'iijij in Upper Canada, some of tlie cciucossion lines, or parts of the concession linos, were not run in the ori;,'inal survey pen'onned umler couipeteut antiiority ; that the surveys of some concessioii linos or paits of eoncession lines have been ol>lite- ratod, and that, owing to the want of such lines, the inhabitants of such eoncossions are sn'ijocl to soi ions iiieonvonioiicc, aiul for roinedy provided that the CouiiLv Council of the County in whioli any Township in Uppoi- l.'auad.v is situate, may, on the ai»[)lication of onedialf the resident hmdholdois in any concession (or may without such a])p]ication), M.ikc ui»plicatiou to the tioveinor, requesting hiia to cause ui'y such Jiiie to he surveyed and marked b.> perinaiieiit stone bomnlaiie-., uniler the direction and oi'der of the ( ^omuiissioncr of Crown Lands. (i") If the survey p'occod otheru'iso than as (brccted by the statute, the survev will be ntiauthori;^ed. (Tanner v. }ii.i.^ill, 'Jl U. C. Q. B. 5,->;;.) ' (f?) All expenses incurred in pc-foruiing any surveyor placing any monument or boundary u.ider the provision of Con. Stat. U. (J. cap. 93, must be paid by the County Treasurer to the person or persona 332 THE MUNICIPAL MANUAL. [s, 381, Sub. 1. Cruelty to kuiraaln. Providing |)ounilti. 381. The Council of every Townshii), City, Town and Incorporated Village, (c) may also pass By-laws (not incon- sistent with the Consolidated Statute of Canada relating to cruelty to animals); {/) Providing Pounds, d'C. (1.) For providing sufficient yards and enclosures for the safe-keeping of such animals as it may be the duty of the Pound-kee})er to impound; (g) employed in such survey, on the certificate and order of the Com- missioner of Crown LandH. (Con. Stat. U. C. cap. 93, s. 10.) The Council may 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 the i)roprietor8 of tlie laud 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 retpiired for any other purposes authorized by law may be levied. {Ih. sec. 9.) A By-law to levy the amount "from the patented and leased lands" is bad. (/« re tScott and Peterborowjh, 25 U. C. Q. B. 453 ; In re Scott ami Hivvey, 26 U. C. Q. B. 32 ; In re Scott and Peterborough, lb. 36; PeterboroiKjh v. Smith, lb. 40.) (e) Counties not included. (/) The Consolidated Statute of Canada, cap. 90, intituled "An Act respecting Cruelty to Animals," has been repealed by Dominion Act 32 & 33 Vic. cap. 36, Sch. B, but is re-enacted by Dominion Act 32 & 33 Vic. cap. 27, so that this reference is inaccurate. Besides, it is needless. For a subordinate legislative body, such as a Municipal C!orporation cannot have any imjuied power to make By- laws inconsistent with constitutional Acts of the Legislature, either of the Dominion or of the Province. (See note i to sec. 223.) {(f) The Pound is the custody of the law. ( Woolei/ v. Groton, 2 Cush. 305. ) The Pounfl-keeper is bound to take and keep whatever is brought to him, at the peril of the persons who liring it. If wrongfully taken, theij (not he) are answerable. It would he 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 distrair.or, or without the consent of the party impounding. The replevin lies against him who takes, or him who commands the taking: the Bailiflf who seizes and the party who directs the seizure may both be sued. But the situation of a Pound-keeper is not that of a Bailiff or servant. He is a public officer, discharging a puldic duty, and this as much in the keeping as in the receiving. ( WardcU v. Chi^holm, 9 U. C. C. P. 125; see further, Clarke v. Durham, E. T. 3 Vic, R. & H. Dig., Trespass, II. IG; Cnreij v. Tate, 6 O. S. 147; Meyv. Slubbn, 5 Mass. 280; Smith v. Iluntimjlon, 3 N. H. 76.) Being a public officer, discharging a public duty, lie is entitled to notice of action under Con. Stat. U. C. cap. 126. (Davis v. Williamfi, 13 U. C. C. P. 365.) In the declaration, it must be averred that he acted maliciously and without reasonable or probable cause. {Ih.) The law would be different if the Pound-keeper voluntarily parts with fl. 381, sub. 2.] IMPOUNDING ANIMALS. 333 (2.) For restrainiiiL' or rejjruhitiii'' the running at large or Animals ^ ' . I, Y, '',''.,. /.. !• running at trespiusaing oi any animals, and providing for impounding Lirge. them; and for causing them to be sold in case tliey are not claimed within a reasonable time, (/«) or in case the damages, fines and expenses are not paid according to law ; the legal control of the animals inijxnmdod, or imitounda them in an ; other place than that prescrilHjd by law. (Bill»i v. Kiiuon, 1 Fost. (N. H. ) 448.) Breach of a pound and liberating an animal therein confined was held t(t be no violation of a Bydaw prohibiting " .any person from opposing or interrupting any City officer in the execu- tion of the ordiuauces of the City.' (Mayor, etc., v. Oinburtj, 22 Geo. 67.) (h) The powers are : 1. For rtslraining or regulalinj the running at large of any animals ; 2. For impouiuliiuj them ; 3. For causing them to be sold in case they are not claimed within a reasonable time, or in case the damages, fines and expenses are not paid according to law. This subsecticm applies in tenna to all animals. (See sec. 379, sub. 1), and notes thereto.) As to dogs, special provision ii made for their destruction when running at large. (See sec. 37'J sub. 10, and notes thereto.) The e\'il3 to l)e apprehended frc 1 cattle, swine, or poultry running at large are mere injuries to riivate property and to the neatness and good order of the City or ' Town. It would not be either reasonable or necessary to allow the destruction of valuable domestic animals in order to prevent the risk of such injuries. Impoimding till the damage is paid is the more natural remedy, whicli 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 purposes of preventing the public nuisance. Nevertheless, the Legislature may by law sanction the more vigorous course of allowing a forfeiture and sale of the animal. (iVr Robinson, C. J., in McKenzie v. Camphdl, 1 U. C. Q. B. 250.) It is in the power of the Corix^ration to enforce the i)rovisions of the Bydaw by the imposition of a fine on the owners of the animals running at large. But if the power had been restricted to the imposition of fines, that would not have given tlie power to impound, forfeit or sell. (Miles v. Chamherlain, 17 Wis. 44^5 ; Ileise V. Town Cuiinril, 6 Rich. (S. C.) 404; .'-fofnl^'. v. Yuille, 3 Ala. 137 ; ■ White V. Tallman, 2 Dutch. (N. J.) 67.) The power to impound and sell should, before it can be legally exercised, be as it is iu this section expressly given. (Cutler v. Doty, 5 Ohio, 394; Keunfdy v. SouHkn, 1 McMulI. (S. C.) 328 ; but see Crosby v. Warren, 1 Rich. (S. C.) .'J85 ; MeKee v. AfcKee, 8 B. Mon. 433.) The Bydaw should provide for notice, either actual or constructive, jjrior to the sale. (Donovan v. VickHburg, 29 Miss. (7 CJush. ) 247 ; Rvsthaugh v. Saffin, 10 Ohio, 32 ; GineintuUi v. Buckinyfiani, lb. 2,57, 262 ; Shaw v. Ken- iifidy, N. C. Term R. 158 ; Goosdink v. Campbell, 4 Iowa, 296 ; Willin V. Legris, 45 111. 289 ; Bulluck v. Geomble, lb. 218 ; Poppen v. Holmes, 44 111. 360; Hart v. Albany, 9 Wend. 571 ; Phillips v. :VM THE MUNICIPAL MANUAL. [s. 381, Bub. 3. Aippraislng /3 \ Joj. appraismc: the damages (i) to be itiiid by the I lie damages. ^ ' o* ■ i • i i r x • x owners ot aiunials imi)()unae(l i(jr trespassing conti'ury to the hiAvs of Ontario or of the Municipality ; Allen, 41 Penn. St. 681 ; White v. Tallmnn, 2 Dutch. (N. J.) 67). The i)i)wers of s;vle coiiferrce. should be strictly followed by all concernfil in tlie s.ale. {Vlurk V. Lewis, 'Ao 111. 417; Hoiindu v. Sletnon, 4") Maine, f)!M) ; (Jihnore V. HoU, 4 I'ick. 2r)8 ; linnndu v. Mansji,l,l, :iS Maine, 586. Thus, sale made only twenty minutes before tlii' exjjiratiou of the time re(iuired by law was held illegal. Smif/i v. (jaUx, 21 Pick. Sf).) Ahridgment, for any })eriod, of the reijuircd notice, avoids the sale. (('lark v. Liwi.^, ^'t ill. 417.) Al.so held, that actual knowledge by the owner of tlie bea.sts of the iuipoumling thereof, was not cijuivalent to the written uoti.ee requiretl by the statute. Cujfin V. Field, 7 (Jush. 355.) Uide.ss there be a Lgal sale, the })ound-keeper may he held to have forfeited tlie protection of the statute. SimjeaHt v. A/leii, 29 U. 0. (l K ;i84.) It has heen held that a master is liahle for the acts of hi.s farm servant in impounding cattle in his absence, the servant acting within the scope of his authority. (Spajfonl v. Hahlile, M.S. Kaster Term, 7 \Vm. IV.; R. & H. Dig. 294.) In trespass against two defendant.^ for seizing and taking cattle, one defendant justilied a.s }'()iind-kei.i)er ; ami because the cattle were in the close of A., wrongfully trespassing in said close, and eating grass and corn therein, A. took the said cattle and delivered them to the di^fendant as a pound-keeper within ins jurisdiction, and the defendant impoimded and afterwards sold them according to law ; and the other defendant jutitilied the seizure and the sale by the pound-keeper, as in the other plea, and that the defendant bought the cattle as the highest hiddei' ; to both of whicli pleas there was a general denuirrrer. I/e/tl, that the ]ilea by tlie })Ound-keeper was bad, as it ilid not sliow that lie ri'ceiveil the cattle from a jierson within liin ilieiifhin, or that tlie clc'^e i/vi.v no nitnnte, and that the plea of the purchaser was good, as ho ctmld not bo held liahle to the plaintiff iu trespass. (CItir/ce v. Durliain. et nl, M.S. Easter Term, H Vic. R. & H. Dig. 4S1.) In a jilea of j^uitiiication by a ]»ound-keeper for taking a })ig, when the ju.stitication was that the ]iig, contrary to Township regulations, broke through a lawful fence, it was held necessary to allege that the fence was within that Township, and to show the close m which the {)ig was trcsjiassing at the time. (Citrei/ v. Tiicdly allow others nut named to do so, contrary to the common law. (Jae/c V. The Ontario, Simcoc and Huron Jlailruad Union Cunqmny, 14 i;. C. Q. B. 328.) (i) An action of trespass will lie by the owner of a farm into which a neighbour's ]»igs may break, enter, and do damage, against the owner of the pigs, unless he can excuse the act for defect of feimes or upon aoiiit^ other ground that ought to be sj)ecially \>leadcil. (Blaeklork v. Millikan, 3 U. t!. ('. I*. 34.) So trespass is maintain- able against the owner of a bull which Ijroke into the plaintitl's farm and there killed his mare, though the owner of the bull wa.'* not present at the time or aware of the fact. (Ma.^on v. Morgan, 24 IT. C. (},. W. 32S.) If a horse, through the neglect of the owner ill- not kee2)ing his fences properly repaired, stray out of the field iu 382.] PUBLIC UEALTU. 335 (4.) For determining the eonii»ens!ition to ])e allowed for services rendered, in currying out the provisions of any Act, (k) with resjiect to aniuiids iunxnuided or distrained and detained in the j)OS3ession of the distrainor. 2'J-30 V. c. 51, s. 351, sub. 1-4. Puhlic Health. *i8^. The menihoi*a of every Township, City, Town and Incori)orat(Ml Village (Council shall be Health otiicers within their resi)ectiv(! Miuiici[)alities, under the ('onsolidated Statute for Upl»er Canada, respecting the pul)lic health, and under any Act passed after this Act takes effect for the like i)urpo3e. (0 l^nt any such Council may by By-law whicli it is foediiiLj, into the JicM of an afljoiuing proprietor, and there get among hi.-i horses ami kicks ojie in sueh a way as to caiiso its deatli, siieh owner is liable in trespass for tlio injury which his horse has (hme. (Lfo v. Rlh'ji, V2 L. T. N. S. 388.) Wlicthcr at common law the owner of a tlog is answerable in trespass for every unauthorized entry of tlio animal into the land of anotiicr, as in the case of pigs, an ox, or a horse, ia doubtful. {/{< ad v. E'/inanl.i, 17 C. B. N. vS. 24."). ) An action on the case lies against one who keeps a mischievous animal of any kind in respect of any damage done by sucli animal, where it can Ivj shown that the owner knew of the mischievous propensity of the animal. (Thomd'i v. Mori v. linrdvtt, !) Q. B. 101.) If the owner, ujnin being told f)f the mischief done, oilers to settle, this is some evi .Jones, ( Law. ) 1 34 ; /fazen v. Stroixj, 2 Vt. 427 ; WUkinaun v. A Ihann, 8 F«>st. 9. ) Such a Board would have power to make quarantine regulations. {Duboia v. AiKjuda, Dudley ((Jeo.) 30 ; St. Loiiix v. McVoij, 18 Mo. 288; St. Lou'iH V. BoJfiiKjcr, 19 Mo. 13; Mctaii/e v. St. LouU', 11 Mo. 103; Mitchvll V. Rockland, 41 Maine, 3G3; s. c, 45 Maine, 490.) Health officers may enter and examine any premises (.30 Vic. cap. '3, s. 1 ), may order the cleansing of the same (lb. sec. 2), and may destn whatever, in their opinion, is necessary to destroy for the preservation of the public health (lb. sec. 3) ; may, under certain circumstances, remove inhabitants from their dwelling houses (lb. sec. 4), and remove per- sons infected with a dangerously contagious or infectious disease (lb. sec. 5). The Lieutenant-Governor may, for purposes of health, under the Public Health Act, regulate the entry and departure of boats and vessels (lb. sec. 7), and may by proclamation declare cer- tain rigoi'ous sections of the Act in force in any locality, to be men- tioned in the proclamation (lb. sec. 8), and may revoke or renew the proclamation (lb. sec. 9). On the issue of the proclamatior, the first live sections of the Act, unless declared to the contrary in the proclamation, are suspended (lb. sec. 10), and live or more persons may be appointed a Central Board of Health (//*. sec. 11). The revocation of the proclamation revokes the Board so appointed (lb. sees. 12, IS). A Local Board of Health may also be appointed (lb. sees. 13, 14) 1)y tlic Municipal Corporation or Police Trustees (lb. sec. 14), at a special meeting (lb. sec. 15) ; on failure of which the Lieutenant-(!overnor may appoint the Local Board (!b. sec. \"i). Until such appointment, the ordmary Health offi<;ers of tl'c '■" ^.iii'Or pality are entitled to act (//). sec. 17). The Centrti'i - ■' h empowered to make regulations to prevent the spread '. . .^Aon {lb. sees. 19, 20, 23), and require the Local Board to cxt; ••.'. b.em (lb. sec. 21), and to remove inmates of infected houses (/o, i'/i', and otherwise enforce the regulations (lb. sec. 25). The expanses of the Central Board are to be defrayed by the Government, and of the Local Boards by the Municipalities (lb. sec. 20). On orders of the Local Board (lb. sec. 27), the proclamation, regulations, &c., arc to be published in the Ontario Gazette (//*. sec. 28), and the ( Jazette is made conclusive evidence of the i)roclamation, &c. (lb. see. 29). Thereupon inconsistent By-laws of the Municipality are suspended (lb. sec. 30). Wilful disobedience of regulations, &c., is made penal (lb. sees. 31, 32). The penalties to be paid to the Treasurer of the Municipality (lb. sec. 33), and may be prosecuted notwithstanding the repeal of the proclamation (76. sec. 34). No proceeding under 8. 383, sub. 2.] AUCTIONEERS. 337 1!? ,r;:on hem Division IV. — Powkbs or Cocncils ov Coitntiks, Citiks akd Separated Towns. 383i Tlie Council of every County, City and Town ny-iaws separated from tlie County for municipal purposes, (n) may ',u^J'for_ pass By-laws for the following puri>osos : Engineers — Inspectors. (1.) For appointing, in addition to other officers, (o) one Anminting or more Engineers, and also one or more Insi^ctors of the f"if.'Xtors, House of Industry, also one or more Surgeons of the Gaol k»"1 sur- and other institutions under the charge of the Miuiicii)ality, ''"'""*'' and for the i-emoval of such officei-s ; 29-30 V. c. 51, a. 28G, sub. 1. , Auctioneers. (2.) For licensing, regulating and governing Auctioneers Auctioncern. and other persons selling or putting up for sale goods, wares, merchandise oi- effects by public auction; (jj) and for fixing the Act is to be vacated, quashed or set aside for want of form, or be removed or removable by certiorari or other process whatsoever {Ih. sec. 35). (n) Incorporated Villages not mclnded. (o) The officers whose appointment is authorized are one or more — 1. Engineers; 2. Inspectors of the House of Industry, Surgeons of the Gaol and other institutions under the charge of the Municipality. While it is believed that at common law Corporations have power to appoint such afficers as the nature of their constitution requires, the implied power, if existing at all, should 1)e sparingly exorcised. (See note r to sec. 184. Power to appoint involves power to pay and to remove from office. (Ih.) (p) Power to regulate the conduct of particular trades or callings involves the power to hcense, but this power must not be so exer- cised as to create a tax or a monopoly. (See note / to sub. 5 of sec. 379.) A person licensed by a City Corporation to carry on any par- ticular trade or business, is in no sense the agent or servant of the Corporation, so as to render the latter responsible for his acts. (Fotole v. Alexandria, 3 Peters, 398; but see Cole v. Nashville, 4 Sneed. (Tenn.) 162.) The granting or refusing of a license is substantially the exercise of a judicial function. (Duke v. Rome, 20 Ga. 635.) The powers here conferred are to license, regulate and govern — 1. Auctioneers; 2. OtJier persons seUing or putting up for sale goods, &c., by public auction. In order to a sale by auction, within Eng. Stat. 50 Geo. III. cap. 41, s. 7, there must be an outcry, &c. (See Allen v. Sparkhall, 1 B. & Al. 100. ) A City Council may prevent sales by auction on the pubUc streets of the city. ( Wliile v. Kent, 11 Ohio St. 550; see alao Shelton V. Mobile, 30 Ala. 540.) 22 338 THE MUNICIPAL MANUAL. [s. 383, Sub. 3. Licensim ers, Ac. the sum to be paid for every such license, and the time it shall be in force; (q) 29-30 V. c. 51, s. 286, sub. 2. Ilaxvkera and Pedlara. sensing, (3.) For licensing, regulating and governing Hawkers or ■'pediarg, 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 boat, vessel or other craft, or otherwise carrying goods, wares or merchandise for sale, (r) and for fixing the sum to be paid for a license for exercising such calling within the County, City or Town, and the time the license shall be in [q) Apparently no limit is given to the amount that may be exacted for the i^ayment of the license, but it must be reasonable. (See sub. 13, of sec. 372, and notes thereto.) (r) A single act of selling does not make a man a hawker, so as to require a license. (The Kiny v. Little, 1 Burr. 609; 2Vte Kimj v. Buckle, 4 East. 346; Johnson v. Hudson, 11 East. 180.) A licensed auctioneer, going from place to place and selling goods, was held to be a hawker. (The King v. Turner, 4 B. & Al. 510.) In order to constitute r. person a hawker, it ia not necessary that he should go to more towns than one and there sell goods. (Manson v. Hope, 6 L. T. N. S. 326; s. c. 2 B. & S. 498.) A person not having goods with him, but merely going about to solicit orders for goods, to be supplied from and by his master, was held not to be a hawker. ( The Kiny v. McKnUjht, 10 B. & C. 734 ; see also Eng. Stat. 24 & 25 Vic. caj). 21.) A cabinetmaker residing at Leicester and having a shop there, who sent goods to a place called Ashby-de-la-Zouch in a cart, which he accompanied on foot part of the way, and tlien went to Ashby-de-la-Zouch by the mail, where he employed an auctioneer for the sale of the goods, was held to be a trading person travelling from town to town, within the statute 50 Geo. III. cap. 41, s. 7. (Attorney -General v. Woolhouse, 1 Y. & J. 463; see also Attorney- General \. Tongue, 12 Price, 51.) Twelve ladies, of whom respon- dent was one, having purchased materials and made them up into articles of wearing apparel, each in turn for one month carried these articles about, in a basket called a missionary basket, from house to house for sale. The ladies did not find the money to purchase the materials, but the money derived from the sales was appUed towards the purchase, and the profits of the sale were devoted to a village school and religious purposes. Held, that respondent did not come within the definition of a pedlar, as used in section 3 of the Pedlars' Actofl871. (Cregfgrv. -S/rtiiA, L. R.,8Q. B. 302.) It was held neces- sary, to justify an arrest under our old Hawkers and PeiUars Act 58 Geo. III. cap. 5, for pedling without a license, that the person should be found trading at the tmae of the arrest. (See Ociatt v. Bell, 1 U. C. Q. B. IS. ) It was also held necessary to the validity of a conviction for pedling goods without a license, that the description of goods should be specified in the conviction. (Tfie King v. Selway, 8. 383, sub. 4.] PERRIES. 339' force ; («) and for providing the Clerk of the Municipality with licenses in this and the previous section mentioned, for sale to parties ajjplying for the same in the Townsliij) under such regulations as may be prescribed in such By-law; (fN but no duty shall be imposed for liawking or peddling any goods, wares or merchandise the growth, i)roduco or manu- facture of this Province, not being licpiors within the mean- ing of the law relating to taverns or tavern licenses ; (u) 32 ^^"^'"'=*' V. c. 43, 8. 19. Ferries. (4.) For licensing or regulating Ferries between any two places within the Municipality, and establishing the rates of ferr..vge to be taken thereon ; (v) but no such By-law as to Ferrie.s shall have efiect until assented to by the Governor in Council ; (w) but until the Council pass a By-law regu- lating such Ferries, and in the cases of Ferries not between two places in the same Municii)ality, the Governor by order in Council may from time to time regulate such Ferries i" oviso as to liutiuii on inanufuc- turi.'H of tbU Licensing, &('.. with assent of Governor. Ferrios, 4f. Provision for particu- lar uaaei. 2 Chit. R. 522 ; The Kin;/ v. Smith, 3 Burr. 1475. ) To entitle a party to exemption from penalties on the ground that the place where the hawker exposed his wares for sale was a public market, it must be shown that it was a legally established market, and not merely a market de facto. {Bctijnmin v. Andrews, 5 C. B. N. S. 299 ; see fur- ther, Bum's Justice, Title, "Hawkers and Pedlars.") (») See note q to sub. 2 of this section. (t) Money exacted for an illegal license may be recovered back in an action for money had and received. (Lincoln v. Worcester, 8 Cush. 55.) («) This is a Provincial exemption in favour of home production. A man may, without a license, hawk or ])eddle goods, wares and merchandise the growth, produce or manufacture, of this Province not being liquor. If the goods, &c., be the growth, produce or manufacture of an adjoining Province, the exemption does not apply. (v) See sec. 225, and notes thereto. (to) This apparently recjuires anjj By-law, as to ferries, to be approved by tlie Governor m Council. The powers conferred are for 1. Licensing and regulating ferries between any two places in the Municipality. 2. Establishing the rates of ferriage to be taken thereon. Had the words been, "but no such By-law as last mentioned shall have effect until, "&c., there could have been no doubt that the only By-laws requiring executive consent are those establishing the rates of ferriage. The words, however, are, "but no such By-law aa to fer- ries" (apparently intending all By-laws as to ferries before autho- rized) aball have effect until, &c. This would seem to make it essential to the validity of all By-laws under the section, that they receive the assent of the Lieutenaut-Goveroor in Council.. 340 THE MUNICIPAL MANUAL. [fl. 383, Sub. 7. Acquiring 11(1 respectively, and establish the rates to bo taken thereon, in accorilance with tlio statutes in force relating to Ferries ; (x) Vide 29-30 V. c. 51, H. 286, sub. 4. ' Lands /or Ifir/h Schools. . (5.) For obtaining in such part of the County, or of any Hi'irli '"' ^^^y *^^' Town separated within the County, as the wants of ScliooU, &o. the j)eople may most refjuiro, the real property requisite for erecting High School Houses thereon, and for other High School purposes, and for jircserviiig, improving ajid repair- ing such School Houses, (y) and for disposing oi such pro- perty when no longer required; (z) 29-30 V. c. 51, b. 288, sub. 1. Aiding Iligh Schools. (6.) For making provisions in aid of such High Schools as may bo deemed expedient; (a) 29-30 V. c. 51, s. 288, sub. 2. Supporting Pupils at University and High Schools. (7.) For making a pei-manent i)rovisiou for defraying the expense of the attendance at the Univei-sity of Toronto, and (ic) The power of a Municipal Council is local. It can only be applied to tlie regulation of ferries iviihin the Municipality. In the case of ferries not between two places in the same Municipality, the authority to regulate, &c., is vested in the Governor in Council exclusively. (y) In 1807, an appropriation was made by the Legislature for the support of a public school "in each and every district" of Upper Canada, to be kept in places named. (47 Geo. 3, capi G.) This Act was repealed in 185,3 by an Act intituled, "An Act to amend the law relating to Grammar Schools. " (IG Vic. cap. 18G, sec. 17.) The latter enacted that the Grammar Schools then existing should be continued at the places where they were respectively held, but authorized the Board of Trustees of each such school to change the places. (lb. sec. 15.) As to Grammar Schools established after l4th June, 1853, the places may be changed by the County Council of the County Avithin which the school is established. (i>) See note c to sub. 1 of sec. 372. (a) The Council of each County, City, Township, Town, or Incor- f»orated Village is authorized by Con. Stat. U. 0. cap. 63, sec. 16, rom time to time to levy and collect, by assessment, such sum or sums of money as it may deem expedient to purchase the site or Bites, or to rent, build, repair, furnish, warm and keep in order a Gr.immar School House or Houses, for providing the salary of the teacher 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 Grammar School and Counties of York and Peel, 13 U. 0. 0. P. 423.) But now, see 34 Vic. cap. 33 (Ont.), ss. 36, 37, 38, 39 & 40; In re Trustees of Port Rowan High School, 23 U> 0. 0. P. 11.) Aiding High Bchoou. Supporting r'ertaiulligh School ])uplls nt University of Toronto, and U. C. College, &c. 8. 383, sub. 10.] PinLIC FAIRS. 841 at tlio Uppor Ciinadii College iiiul Royal OrAiumar School there, of such of tho pupils of thu public High Schools of tlio County us aro uuahlo to incur tho (iximmxhc, hut iiro desirous of, and, in tho opinion of tho rcspct^tivt? masters of such nij(h Schools, ])()ssess competent attainments Ibr competing for any scholarship, exhil)ition, <»'• other Himilar piize otlei-ed by such University or College ; (6' L'D-30 V. e. 51, s. 1'88, sub. 3. (8.) For making sijiiilar prov;-,ion for the attendance at any High School, for like purposes, of ]»upils of Common Schools of the County; (f) 2U-30 V. c. 01, s. L'88, sub. \. (9 ) For endowing such fidlowships, scholarshi])S or exhi- bitions, and other similar ])rizes in th(^ Universily of Toronto, and in the Upper Canada College and Royal (liammar School there, for competition among the pui)ils of the Pul)lic High Schools in the County, as tho Council deem ex|)edient for the encouragement of learning amongst tho youth thereof; (d) 29-30 V. c. 51, s. 288, sub. 5. Public Fairs. (10.) For authorizing, on petition of at least fifty qualified electors of the Municipality, the holding of public Fairs at one or more of tho most public and convenient places (p) not separated from the Municipality for municipal ])urpose3 ; (rt.) The purpose for which such Fairs may be held shall be restricted to the sale, barter and exchange of cattle, horses, sheep, pigs (/) and articles of agricultural produc- tion or requirement ; {It) The provision to be made may be a permanent one. But it must not be for attendance at any other institution than that of the University of Toronto and Upper Canada College and Royal Gram- mar School. (c) None are entitled to receive tlio benefit of the provision imless those who are themselves "unable to incur the expense." (See foregoing subsection. ) (d) Fellowships, Scholarships, or Exhibitions endowed under this clause, are to be for competition among the pupils of tho public High Schools of the County. (e) The place selected should not be a public afreet. ( Wnrtmnnv. Philadelphia, 33 Pa. St. 202-210 ; .S'^. John v. J!^etv Vod; 3 Bosw. (N.Y.) 483; State v. Mobile, 5 Port. 279; Commonwealth v. Hush, 14 Pa. St. 186; Commonwealth v. Bowman, 3 Pa. St. 202, 206.) (/) The grant of a fair does not of itself imply a right in the grantee to prevent persons from selling marketable articles in their Biinilur pru- vitinii for nltl'lnlllIHM nt IliKh tjuliuuli*. Ktiilowln;; lillc)\vi,liiii« ill L'liiver- Hity of Ton III to uuil L.C. Collet'" Authoriziug tim holding, Ac, of pub- lif fairs, and »aiue. sa THE MUNICIPAL MANUAL. [g. 384, Sub. I. Pnbllo nntlco of by-law By-lftws iiiuy bo made for— Egtnblish ing, &c , (b.) The riy-law to authori/o the oHtaltlishmont of any such fair, Hhall eHtablish niloH and rogulatiouH for the govcniiiinnt of the Haiiu>, and ajtpoint a pcrwoii whosfi (hity it 8hall b(; to have thoni carried out, (y) uiid uhall also tix the fooH to be paid liiiu by poi-Hons attending the said fail'; (/♦) (c.) The Council authorizing the establiHliment of a public fair kIuUI, imniodiately afUu* tlio passing of a By-law for that •niuo'"*'''"" P»''P^'^"' iji^o public notice of the sume, (t) 31: V. c. 21, sub. 1-4. Division V.— Vowers of Councils ok Titie.^, Towns and Incoupokated VlLI.AOjy. 384. The Council of every City, Town and Tncori)oratcd Village (a) may i)as8 By-laws for the following purposes: Water. (1.) For establishing, jirotecting and regulating puViJic public wdu, wells, reservoirs and other conveniences for the supply of reservoirs, Ac. private shops on market days. {Macclesfield v. C'haptnan, 12 M. & W. 18). A i)er80ti who, at such a fair, exposes goods for sale has a rJL'ht to occupy the soil with baHketa necessary and proper for containing the goods. (Tuwnend v. Wvodruf, 5 Ex. 506.) {(/) The regulation of fairs and markets in England by By-law has long been a subject of Municipal control. (Player v. JenkiiiK, ] Sid. 284; Pierce v. Bartrum, Cown. 270; The Kiinj v. Culterill, 1 15. & Ad. (J?. See also i]/(w/<'(/ v. Walker, 7 B. &, C. 40; Maecle.-*lleld v. Pedleii, 4 V,. k Ad. .S!)7. ) So in the Unitec: States, CiiiniuKdi v. Unrk- imjhaiii, 10 Ohio, 257; Wnrtman v. PhUadeljihia, .'{.S I'a. St. 202; LeClairev. Davenport, 13 Iowa, 210; Wlule v. Kent, 11 Ohio St. 550; Ash v. People, 11 Mich. 347; St. John v. Neiv York; C Duer. 315; St. Louis V. Jackson, 25 Mo. 37; St. Louis v. Wehvr, 44 Mo. 547; Canijot V. New Orleans, 1(1 La. An. 21; Niijhfin(jale's Cn.te, 11 Pick. \G8; Jiiifalov. Webster, 10 Wend. 1(H); Yates v.' Milwaukee, 12 Wis. 673; Ketchum v. Buffalo, 14 N. Y. .356; Municipality \. Cuftinn, 4 La. An. 335; State v. Lieber, 11 Iowa, 407; Dnbu(pie\. Miller, lb. 583; St. Paul v. Coulter, 12 Minn. 41 ; AtlaiUa V. White, 33 (ieo. 229; see further, note d to sub. 3 of sec. 384.) (A) The grant of a fair, merely with all the liberties and powers usually appertaining to such right, does not give a right to take tolls. (E(jremont v. Saul, 6 A. & E. 924.) A grant of a fair with an express grant of toll passes reasimable toll, though no toll be specified. (Stamford v. Pawlctt, 1 C. & J. 57.) A toll of one penny for every pig is not necessarily an unreasonable toll. ( WriijIU v. BrulMer, 4 B. & Ad. 116.) (*) The mode of giving public notice is not specified, but publica- tion in some widely circulated newspaper in the locality would no doubt in this case be sufficient. (See Keckely v. Comnilssiomra of Roads, 4 McCord, (S. Car.) 257.) (a) Counties not included. 8. 384, Bub. 2.] MARKETS. 343 watt)r, and for making roaHonahlo cliargoH for tlio use theroof, and fur preventing tlie wiwting and fouling of puWlic water ;(6) 29-30 V. c, 51, H. 2 Kx. IJ.")."}. ) Water as it issues from a well or spring is not to be considered as produce of the soil. (Ruci' V. Ward, 4 V.. & H. 702.) A Corpuration was empowered by statute to erect a reservoir near a river, and on conipleti(tn to divert the waters of the river, discharging down the river seventy-live cubic feet of water per stcond for twelve hours of every working day. The Corporation began, but was prevented by the nature of tho § round from completnig the reservoir. They diverted the water, and ischarged down the river more than its natural (low but less than the (piantity re(iuired l)y the statute. llild, that riparian pro- f)rietora could at common law recover for any damage sustained )y the diversion of the water, l)ut could not recover for failure to comply with the statutory requirement. ( Waller v. Manchester, 6H. &W. 667.) (r) Power to establish a market authorizes, as a necessary inci- dent, the acquirement of land on which to erect market buildings. {Ketchumv. Buffalo, 14 N. Y. .356; Caldwell v. Alton, .33 111. 416; People V. Lowher, 28 Barb. iS^. ) So it is inciSnme of the subsequent subsections expressly emiiowcr MiTnieipal Councils to restrict the sale of commodities therein mentioned to the place established as a market place. From this it might be argued that, except as to the commodities mentioned, the power to restrict the sale to the market place docs not exist. On the other hand, in some of the English statutes exemptions are made in favour of the sale in the owner's shop of certain commodities specified. From this it might be argued that, except as to these, there was power to restrict sales to the market place. The general question is sur- rounded with difficulties. ' ' The lixing of the place and times at which markets shall be held and kept open, and the j)rohibition to sell at other places and times, is among the most onlinary regulations of a C!ity or Town Police, and would naturally be included in the general power to pass By-laws relative to the public markets. If the Corporation had not the i)ower in question, it is dillicult to see what useful purpose could be effected, or what object was intended, by the grant of the power to pass laws relative to i)ublic markets. The mere regulation of the building and of the stalls of those who might choose to go there instead of elsewhere to sell their market provision, would be an idle and useless power, and of no moment toward the good government of the village." (Pir Ciir. in JiuHh et al v. Svahnnj, 8 Johns. 418; see also Pkrce \. Bart nun, Cowp. 209.) The same doctrine is maintained in Davenport v. Kelbi, 7 Iowa, 102 ; Ihifalo V. Wvbdi-r, 10 Wend. 100; hire NiqhtUtijah', 11 Pick. 108; Ualdnh V. Sorrdl, 1 Jones (N. Car.) 49; Stob's v. New York, 14 Wend. 87; Le.Claire v. Davenport, 13 Iowa, 210.) Such ordinances are sus- tained on the ground that they are not in restraint of trade, but in regulation of it. ( Ife/wiorov. (Smar^, 11 Rich. (S. Car.) Law, 551; see s. 384, sub. 3.] MARKETS. 345 rations or appropriations heretofore made in any such Municipality, sliall continue to be vested in the Corporation hereof j 29-30 V. c. 51, s. 200, sub. 7. also St. Louis v. Jackson, 25 Mo. .37. ) But it has been held, by equally good authority, that the jiower to regulate markets can only extend totlie market limits, and that these limits cannot I'j matle to extend tliroughout the city. {Caldwell v. Alton, Xi 111. 41 (5; see also Dunhitm v. ./{oclnstt't; f) Cowj). 402; Slulton v. Mohilc, \M) Ala. .540; St. Louis V. Wi'hbvr, 44 Mo. 547 ; Le Claire v. /Jarenport, ]'.i Iowa, 210; Davevjwrt y. Kellif, 7 Iowa, 102; Ask v. People, II Mich. .S47.) So under an ordinance "to erect market houses, establish markets and market places, and provide for the government and regulation thereof," it was held that the (Council had no power to lix upon one market place and prohibit all persons at all hours of the day from selling fresh meat elsewhere, (lilooiniuijton v. Walil, 4fi 111. 489; see also Bethune v. Huijhes, 28 (ieo. 500 ; St. Paid v. Laidler, 2 Minn. I'JO; St. Louis v." Webber, 44 Mo. 547; .S'^ Paul v. Coulter, 12 Minn. 41; Ii'oc/tester v. PettiiKjer, 17 Wend. 205.) A By daw enacting '■' that no butcher or other person shall cut up or expose for sale ary fresh meat in any part of the city, cxcei)t in the shops and stalls in the public markets, or at such places as the Standing CVnumittees on Public Markets may aj)point," was hehl good by our Court of Queen's Bench, {hi re Kelhj and Toronto, 28 IJ. 0. Q. B. 425.) This, in the same Court, was afterwards atfirmed in Fmnell and Guelph, 24 U. C. (^ B. 2.38, aiul treated as settled in that Court. {Snell and Bellerille, .30 V. (!. (I B. 91.) The rule in the last case was in part discharged and in part made absolute; and although leave to appeal was given, inasmuch as the Bydaw was iu)t (juashed, no apjjeal could be had. (Con. Stat. U. C. cap. 1.3, sec. 28.) The hiw of appeal has, in this particular, been since amended and extended. (.34 Vic. cap. 11, Ont. ) lu J!Jng)and and Ireland most of the markets are franchises, extending over the whole or grcr ' • ])art of the towns in which situate. {Cork V. Sliinku-in, Smith & Bat. .3!I5.) And as the erection of a new market xh prima faeie injurious to an old one, there is, in the case of a market by proscription, the right to jjrevent the erection of a new market "within the connnon law distance of the old market." {In re Islinijfon Market Hill, .3 C. & V. 513.) And in such cases there is the right, so long as there is room in the market for the sale of articles ordinarily sold there, to 2)revent sales elsewhere. {Prince v. Liwi.^, 5 B. & C. .30.3.) A rigiit, by custom, to exclude persons from selling mai'ketable articles in their shops on market days without the limits of the market, has therefore been held valid. {Maceles- field v. Pedleij, 4 B. & Ad. 397.) A sale, by sample, on a market day near to but without the limits of the market, has, however, been held not to be a disturbance of the market, unless done designedly and with the intention to evade payment of toll. {Brecon v. Edwards, I H. & C. 51.) If the grantee of a market under letters pattnt from the Crown, sutlers another to erect a market in his neighbourhood, and use it for the sjj.ace of twenty-three years without interrupti(m, he is, by such use, barred of his action for disturbance of the market: {Holcroft v. Heel, 1 B. & P. 400.) A market held in the same town with an old market, if hold ujjon the same day, is a disturbance by intendment of law {Dorchester v. Elisor, L. R. 346 THE MUNICIPAL MANUAL. [s. 384, Sub. 4. itegulating (4.) For preventing or regulating the sale by retail in str"etsf&c. t^i6 public streets, or vacant lots adjacent thereto, (e) of any 4 Ex. 335) ; but if held on a different d.ay, is only evidence of disturbance. (//>.) Some of the decisions under English Market Acts may be here noticed. By a Market Act every person wlio shall sell or expose for sale at any place witliin thelimitsof the Act (other than in tlie existing marketplace, or the market house or marketplaces to be established under the Act, or in his ov,n\ dwelling liouse, or in any shop attached to and being part of a dwelling liouse) any article in respect of which tolls are by the Act authorized to be taken, other than eggs, butter and fruit, was subjected to a penalty. Held, that a vessel moored to a wharf was not a shop within the meaning of the exemption. (Wi!(.'.) If a certain noxious trade is already established in a place remote from habita- tion and public roads, and persons afterwards come and build houses within reach of its noxious eflfects, or if a pulilic road be made so near to it that the carrying on of the trade becomes a nuisance to the persons using the road, in those cases the party would be entitled to contintie his trade, because his trade was legal before the erection of the houses in the one case, and the making of tlie road in the other. {Per Abbott, C. J. , in The KIikj v. Croi^s, 2 C. & P. 484. ) But if the man so situated increase the nuisance by the manner or extent to which he carries on the trade, he is liable to indictment. ( The Kiiii) v. Watts, M. & M. 281; The King Y. Neville, 1 Peake, 92.) In countries, how- ever, where great works are carried on, which are the means of developing national wealth persons must not stand on extreme rights, (liamford v. Tarnley, 3 B. & S. 62, GG ; Tippiny v. St. Helens Smeltinq Co., 4B. & S. G08; s. c. 11 H. L. C. G42; Gaunt v. Fynney, L. R. 8Ch. App. 8; Harrison v. Good, L. R. 11 Eq. 338.) 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 also Gregory v. Pailroad Co., 40 N. Y. 273.) Bu* . private individual cannot justify damag- ing the property of another on the ground that it is a public rmisance unless it do him a special and particular injury. (Dimes v. Petley, 15 Q. B. 27G. ) A distinction must be drawn between a house which is a nuisance per se, and one that is only a nuisance by reason of its use or abuse. In the latter case there is no legal right to destroy the property. (See note t to sub. 34 of sec. 379. ) In several parts of Englaiul public slaughter houses are established, under a provision that ' ' no person shall slaugliter any cattle or dress any carcass for sale as food for man, in any place within the limits other than a slaughter house." It was held that the enactment only applied to the slaughtering of beasts intended by the person slaughtering the same for sale for human food. (Elias v. Nightingale, 8 E. & B. 698; see further, Anthony v. Brecon Markets Co., L. It. 2 Ex. 167; reversed, L. R. 7 Ex. 399. ) An indictment will lie for a public nuisance, but an indictment will not lie for a private nuisance. (The King v. Atkins, 3 Burr. 1706.) That which is not of public concern is a mere civil injury. (The King v. Storr, 3 Burr. 1698 ; The King v. Johnson I Wils. 325. ) The non-repair of a private road, even by a public body, is not indictable. ( The King v. Richards, 8 T. R. 634 ; The King V. Trafford, 1 1: . & Ad. 874.) The writ quod permittat lay at common law to prostrate a public nuisance (Palmer v. Poultney, 2 Salk. 458); and after judgment on an indictment for a nuisance, a writ of prostra- tion may still be issued. ( The King v. Neivdigate, Comb. 10 ; Hough- to7i's Case, Sir T.Boyd, 215; Vin.Abr. "Nuisance," A. lb. "Chemin;" Fitz. Nat. Brev. 124; The Queen v. Haynes, 7 Ir. L. R. 2.) An action on the case will lie for the continuance of a nuisance after recovery for its erection. {Rosewell v. Prior, 1 Salk. 46tf. ) Though an indict- ment for a nuisance is in form a criminal, it is in substance a civil proceeding, remedial in its object. (The King v. Sadler, 4 C. & P. 218 ; Holmes v. Wilson, 10 A. & E. 503 ; In re Douglass, 3 Q. B. 825; Thompson v. Gibson, 7 M. & W. 456; The Queen v. Chorley, 15. s. 384, sub. 18.] NUISANCES. 353 (ICi.) For preventing or regulating the construction of ^"^y privy vaults; (v) 29-30 V. c. oh .s. 21)0, sub. 21. """' ' (17.) For preventing or re<;ulatin;j the erection or con- slaughter tinuanco of slaughter houses, gas works, tanneries, (listilloi-ies or other nianufaotorie.s or trades which may prove to be nuisances; (to) 29-30 V. c. 51, s. 296, sub. 23. (18.) For preventing the ringing of bells, blowing of yyfggj,"^'"^' 12Q.B. 515; The Kiiifjv. liimell, 3 E. & B. 942; The Queen v. Lowjhhm, 3 Smith, 575; 7%(; Queen v, IAnromhv,2 Chit. 214.) Upon an indict- ment for a continuing nuisance — .such as a wall across a highway — the proper jutlgmunt is tliat it lie al)atcil ( The Kimj v. Stead, 8 T. R. 142; The KiiKj v. Yorkshire, 7 T. il. 4.'>7) ; and when the Court is satisfied before judgment tliat a nuisance has been abated, the judgment need not ))o pronounced. ( The Klnt, 3 F. & F. 29.) The practico followed is to respite judgment until it be seen whether or not the nuisance is abated, and if not to inliiet a heavy line to eompel the abatement. (ll>.) There may ))e an indictment for tlic continuance of a nuisance ( The Qifjen v. ^Lii/hnri/, 4 F. & F. 90), and in such a case tlie former judgment is conclusive that the locus in i/no was a highway, and that the erection up(m it wa.s a nuisance. (//>.) This being so, upon proof of tlie continuance of tlie nuisance, the jury must iind the defendant guilty. (Jb.) (v) See sub. 49 to this section, and notes thereto. (w) There is no doubt that certain manufactories or trades may be public nuisances. The diiticulty is to define them. Much de- pends upon location, use, and otlier surrounding circumstances. (Al'lrich V. Howard, 7 Kli. Is. 87; Burditt v. Swenson, 17 Tex. 489; Danjan v. Waddell,0 Ire. Law, 2ti; Kirkman v. Handy, 11 Humph. 400; Coker v. Birije, 10 Geo. 3.30; Tijijutit] v. St. Helens Smelt in j Co., 4 B. & S. 60S.) Slaughter houses (see The Kinrj v. Watts, 2 C. & r. 480; miiasv. Nii/htingale, 8 E. & B. 098; Anthoni/ v. Brecon Markets Co., L. R. 2 Ex. 107; s. c. L. R. 7 Ex. 399; Dubois v. liudlowj, 10 Bosw. (N.Y.) 700); gas works [Ckveland \. Gas Liijht Co., 20 N. J. Eq. 201); tanneries and ilistilleries are here instanced. To these may be added, in populous places, a pig-sty {Coniinissioners V. ]'an Sickle, Bright, I'a. Rep. 69); In-ick-making ( Wanstead v. Hill, 13 0. B. N. S. 479; Bamford v. Turnley, 3 B. & S. 02); a planing mill {Rhodes v. Dunbar, 57 Pa. St. 274); powder house {Cheatham v. Shearn, 1 Swan. (Tenn.) 213; Durnesiiilv. Duponf, 18 B. Mon. 800); a dangerous building {Nolin v. Major, 4 Yerg. (Tenn. ) 163; Harvey v. Deiooody, 18 Ark. 252) ; spirit of sulphur or oil of vitriol works {The Kiwj V. White, 1 Burr. 333.) The jmwer conferred by this section is to pass By-laws for "preventing" or "regulating" 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 resolution of the Council," was held to be void, because it permitted favouritism by the CouucU, and might be used in restraint of trade or used to grant a monopoly. (In re Nash and McCracken, 33 U. C. Q. B. 181.) 23 ;i54 THE MUNICIPAL MANUAL, [s. 381, Sub. 19, Fiiiii;; or horns, sliouting and other unuRnal noises in streets and puhlic places; (x) 29-30 V. c. 51, s. 290, sub. 24. (19.) For preventing or refjnhitini,' the firing of guns or otlicr firci-ivrins, iind the firing or setting off of liiv-bidls. squiliH, cnickers or fireworks, iind for i)reveuting eli!iriv!iri«'s and otlier like disturbances of tlie pet..e ; (i/) 29-30 V. c. 51, 8. 29G, sub, 25. {x) Hinging of hflls, ])l()wing of bonis, and other nniLvml nniccs, are hori; tvciiteil jih imiwanecH. They may or may not Ik; muHances, according to circiiinHtancua. It is in the power, lioAvever, of the Corporation at any time to treat all such, when in Htreots and public places, aH nuiHiUK.'ia, and prevent them. It is ditlicult to dcjscriho, thoiudi easy to imagine, such "an iir"Hiial noise" as would be ;i nuisance. Some exan)ples may, however, be udveii. The noise of a tinsmith in eari'yiiig on his trade, if in a nei;,hhonrhoo(l where there is a niunl>er of olliciis, and of suHicient Tiiagnitude to prevent the occupants fi'om following their lawful busjncss, will, if it atlect a, considerable number of inhabitants, be (b-eined a public luuaance. ( Tlie, f^i»!l V. Lldi/d, 4 Esp. ;20(). ) Knocking at a door or ringing a doord)ell at night, where the noise is so great as to disturb not only the owner of the house and his family, but his neighbours, may be "wilful and wanton " within the meaning of Eng. Stat. 10 it 1 1 Vic. cap. 8i(, s. 28, although the man who was guilty of it hail been instructed to deliver papers at the house. {(Jlnrkr v. llniiii'inx, 11 C. ]i. N. 8. 5-44.) A cirous, the performances in which wire to Iw carried on for eight weeks near the plaintiff's house, and tlie perfor- mances, which took ]dace every evening, lasted from about half-past seven till half-past ten o'clock. The noise of the music and shouting in the circus covdd be distinctlv heard all over the house, and was so loud that it couM })e heard a])ove the conversation in the dining room, though the windows ami shutters were closed. This was held to ho a nuisance. (Inchbahl v. Jioh'msou, L. It. 4 Ch. App. .388.) If a man builds a rolling mill close to inhabited cottages, so th.at the vibration produced by the hammers cracks the walls of the cottages, and the noise of the mill causes them to become and remain nninhal>ited, the rolling mill will be a nuisance. {Srutt v. Firth, 4 F, & F. 349; s. c. 10 L. T. N. S. 240.) (y) A shooting ground near a public highway, where persons come to shoot with rilies at pigeons, targets, &c. , may be a nuisance. ( The King v, Moore, 3 B. «it Ad. 184.) So, by means of powder, working stone quarries near to public streets and dwelling houses. (Thf Queen v. Mutters, 10 Cox, 6.) Fog signals were held to be within tie term fire-works, as used in Eng. Stat. 23 & 24 Vic. cap. 139. . A schoolmaster who permitted an infant pupil under his care to make use of Hre-works, was held responsible in an action for the mischief which ensued. (The King y. Ford, 1 Stark. 421.) A. mar()|)er si'uwalk". tlierofor ; (a) Vih; 2\)-'M) V. c. r)l, h. liOO, .suh. 2(5. /iitpurtuninij Tra rfllrrs. (22.) For pre vent in;.; [)(;rsons in streets or [)ul)lic [iliiceH imiKirtun- tVoia importuning otiiers to travel in or employ any vessel iJ.'Ifg'"^*''" or vehicle, or go to any tavern or l)Oiir(ling house, (/>) or for regulating jiorsons so emjtloyed ; 2'J-30 V. c. 51, s. 2'JG, sub. 27. ruhlic Health. (23.) For providing for the healtli of tlio Municipality, PnMii (c) and against th(^ .s])reading of contagious or infectious dis- "*' cases; 2'J-30 V. c. 51, s. 21)0, sub. 2H. was too voinotcly tho caii.se of the death to reader A. amcnabh^ in a charge of niaiiHhmgher. (The (Jio'iit v. Bniiulf, 4 Jur. X. S. 108S ; s. e. l^ell, Ij. C. 1.) A defendant sued for tire-AVorks cannot, under ajilea of never indebted, ol)ject that the sale of lire-works is illegal. {Fcnwk/cv. Laijcock, 1 Q. B'. 414.) (c) "Vacant lots of land" are here intended, tliough not so expressed, aud which in Cities and Towns are often made receptacles of nui- sances. Hence the power to direct them " to be properly enclosed." (n) A sidewalk is that portion of a Inghway winch pedestrians have a lawful right to nse. (JJurnii v. Bosfon, 3 Cash. 174 ; Ji/noin- inrjton V. Jim/, 42 111. 50.3 ; WaJlace v. Xew York, 2 Hill, 440 ; Htillx. Mnnclu'dcr, 40 N. H. 110 ; Bowder and other combustible or dangerou.s materials ; (/) {(I) See sub. 7 to sec. 370, and notes thereto. {e) " Jiills of mortality" is tlio connuon pliraao to denote statistics of the (lead. The duty to keep such statiniics and to nialcc ii.tiirna therefrom may, it i» presumed, be impoHcd on any one in chaiyo of a pidilic cemetery of any kind within the Alunieiiiality. Tlie duty may, under this suhaectioji, be enforced by the ordinary mode of line or penalty. The line or penalty must bo reasonable. (iSoe sub. 13 to sec. 372. ) (/) The i^owers here conferred are — 1. For regulating the kee])ing and trannjiorting of gunpowder and other c(nubu8til)lo or dangerous materials; 2. For regulating and providing for tlie support, ])y fees, of maga- zines for storing gunpowder l)elonging to private parties; 3. For compelling persona to store tlierein ; 4. For acquiring lan. c. 51, 8. 2'JG, sul). 32. Preventinij Fires. (27.) For appointing Fire Wanh'ns, (;/) Fire Engineers rtro rompu and Firemen, and jjronioting, estaltlishing ami regulating "''^='' *' '■ Fire (Joinpanies, Hook and Ladder (/oni])anies and Projierty- saviug Companies; 2'J-3() V. c. 51, s. 29G, sul). 33. carrier and licensed cannan, n.s a temporary halting place in their transit, it was held that there was no unlawful haviuL,' er koei)ing of gunpowder within the meaning of the Htatute. ( lilijijs v. Mitchell, 2 B. & 8. 5'J3. ) A convietion, under the statute, awarding a forfoituro of gunpowder, umst show that tlio person to whom it is ay law with the ])erformance of a duty j)urely ministerial in its character (Scott v. Manchester, 1 H. & N. 59 ; Jirinhneyer v. Ecanxv'dk, 29 Ind. 187 ; Western College of Medicine v. Ckvehuid, 12 Ohio St. .375 ; see furtlier, note of tliis section.) Tliese laws, though to some extent intriugiug man's natural riglits, are jet tor th'; [iul)lic good. In ilwldartl v. Jurksdurillc, lo 111. .")S1(, Scales, .1., said, " We have a natiu'al right to labour or to rest ; yet we are forbiildeu to liecome idlers, v.'igrants or Vi-gabuuds. \\'e have a luitural right to kill anil destroy our animals; yet cruelty to them is forbiilden. We have a natural right to save away our property or destnjy it; yet we may not gaml)le it oil. So iu relation to stiiriug gunpovviler iu Cities, exlubitiug lireworks, &e. The acts are iinioccnt in tiiLiii- .-iclves ; but their dangerous tendency to the comuunuty iu tlu: par- ticular place re(juires the right of the owner tj become subordinate to the puldic good." (/:) 'J'he importance of having chimneys, flues, flrc-]ilaces, etoves, ovens, &c., safely constructed, in thickly-pojiulated ph'.ces, so as to prevent lire and its spread, cainiot !)e over-estimated, lleuee the Legislature, in this subsection, not only proviiles, as iu jireviuus subsections, for the "preventing"' or "regulating," but for "rii/iur- inj." (See note in to sub. 10 of sec. 879.) (0 It is important that responsible persons should be a]>poiuted for the cleaning of clunnieys, aiul tliat such persf>ns shoidil have all proper a])pliances. Hitherto, iu Cities and Towni, men have been employed to perform the onsible for themiscouduet of such person* (note ;/ to sub. 27 of this section), greater care should be exercised iu the se' jction and appointment of them. (iti) Many lires are said to be "accideutrd" which arc the result of neglect to keep ashes in lire-j>roof utensils; and yet regulations for the safi Keeping of ashes are seldom made, auil, when ui.L'le, I'arely enforced. Ashes may, niuler certain English statutes, lie i-euioved as rubbish. (See Filfx'ii v. Voinhc, '1 .M. & W. ()77; Luw v. iJ^xtd, 1 Ex. 84."); Lyndon v. Standhndi/e, 'i H. & N. 45.) (n) Itegulations as to party-walls must be strictly followed. If a person, under colour of such regulations, do injury to his neighbour, he ia liablo to be sued. (Pratt v. Hitlman, 4 B. & C. 2\i'J: .ee also 360 THE MUNICIPAL MANUAL, [s. 384, Sull. 37. Scuttles, ladiiei'H, ilc, to lidUSUS. Ouariliiig l)iiildiii,i,'s agaiiust lire. Fire buckets (35.) For compelling the owner.s and occupants of houses to have scuttles in the roof thereof, with approaches; (o) or stall's or ladders leading to the roof; vide 29-30 V. c. 51, s. 29(5, sub. 41. (36.) For causing buildings and yards to be put in other respects into a safe condition to guard against fire or other d:'.ngerous risk or accident; (p) 29-30 V. c. 51, s. 296, sub. 42. (37.) For requiring the inhabitants to provide so many fire buckets in such luaiiner and time as may be proscribed; (q) The Queen v. Pona/or'l, 1 D. & L. IKi. ) No man has a right to pre- auiiiu that liis iioigh'Dour will hereafter build a house adjoining to hia, ami erect lialf of his outside wall on his iieiglibour'a ground in conse- quence of such pi-esuniption. {Btrluiv v. yurman, 2 W. Bl. 959.) An cxtei'nal wall cannot ije said to lie a party- wall. {Shns v. Estate Viimptmii, 14 L. T. N. S. 55.) A party- wall is a thing which belongs to two persons as part owners, or divides two buihlings one from anotlier. ( Wrsion v. Arnold, L. R. 8 Ch. Ap. 10S4.) The English stati.ite 1-i (.leo. III. cap. 78, was held not to make party-walls conunoii j^roperty. (Mnttft v. Ifdwidns, 5 Taunt. 20.) Jf one pro- prietor adiled to the height of such a party-wall, and the other jjulled down the addition, the lirst might maintain tresjiass for iiulling down so much of it as stood on the half of the wall which was erected on his own soil. (/'>.) The property in a wall, tliough erected at joint expense, follows the property of the land whereon it stands. (//>.) Power to pass ordinances "to authorize the erec- tion of party-walls, &c., and to regulate them," has been held to include tiie powi'r to autliorize their erection upon the apjilication of eitiier (jwiier, and without the consent of the other. (Hunt v. AiiiJirunto; 17 N. J. Ei£. 208.) It has been held that the owner who pulls down a party-wall, under the authority of the Metropolitan lUiildiiig Act, 18 & 19 Vic. cap. 122, is not bound to protect, by boarding or otherwise, the rooms of the adjacent owner left exposed to tlie weather. {Thoiiipfion v. Ilill, L. It. 5 C. V. 504.) As to the mcajiing of the woivl "owner" in such an Act, see Wheeler v. Gray, 4 (J. B. X. S. 584; s. c. G C. B. N. S. 006; and Tubb v. Good, L. R. 5 Q. B. 443. (u) The prevention of lire is the first thing of importance ; access to it, in the event of lire, is next in importance. The previous sub- sections are of the lirst class; this, of the second. It enables Municij)al Councils to pass regulations comiHlliny oMTiers and occu- parits of houses to have scuttles in the roof, stairs, ladders, &c. ip) The previous sulisections deal with details. Many things under their o])ciatin is made for guarils against fire. But in order that the power may be as extensive as necessary, a general power is here conferred for causing buildings and yards to l)e put "in other resjjects" into a safe condition against fire, and not only against fire, but "other dangerous risk or accident." (See note r to sec, 370.) (7) The powers here conferred are— • 1. For recpuring the inhabitants to provide fire buckets ; % 3. 384, sub. 39.] FIKES. 361 % and for regulating the examination of them, and the use of them at fires; 29-30 V. c. 51, s. 29G, sub. 43. (38.) For authorizing ap])ointed officf^rs to enter at all insff'tinM reasonable times upon any property, subject to tlie regula- tions of the Council, in order to ascertain whetlier such regulations are obeyed, or to enforce or carry into eflect the same; (r) 29-30 V. c. 51, s. 29G, sub. 44. (39.) For making regulations for suppressing fires, aTid !f'^J.',yi,if,I','*j,j for pulling down or demolishing adjacent houses or other tire. erections, (s) Avheu necessary, to prevent the s[»readiug of fire; 29-30 V. c. 51, s. 296, sub. 45. 2. For regulating the examination of iirc buckets ; 3. And the use of tlieni at lirca. No exi)laiiatioii is given aa to what is "a iirc bucket." Bucket ia the term ajjplietl to a vessel couuuouly used to draw water (uit of a well. (r) This ia an important subsection. It does not follow that because people are retjuired to do certain things, even for their o^\!^ s.ifety, that tliey will do as required. Negligent people have existed at all times, anil v/ill continue to exist as long as time itself. Supervision ia necessary. The power, therefore, conferred by this subsection is for authorizing appointed otHcers to enter, at ;'.ll iranonahL- (iiiu's, upon any property, suhject to the regidations of the Council, " in order to ascertain whether such regulations are obeyed. " but the more impor- tant part follows — -that which enables the otncer "to enforce or carr'/ into pjl't-rt thr same" The enforcement might be by prof ■ nition and fine; l)ut the words " carry into effect the saTue" apjiear to imiicate a specilic performance of the duty l^y the otlicer. If the regulation be that certain things shall not be, the oliicermay be held to have power to remove them; but if it be that certain things shall be, he is not likely to supjdy them without some provision for compensating him. No property should, it is apprehended, be demolished or destroyed withcnit an opportunity of some kind to the party concerned of being heard. (.See ('ooj>er v'. Th,' Board of Work.i, <\c., 14 C. H. N. S. 180; see also The Queen v. Spnrrou^ IG (J. H. N. S. 'JO'.l; Buiuiuvi v. Vtstry of.St. Pana-a.% h. li. 2Q. B. r)28 ; Smith v. Siiiip-son, L. K. (»(J. 1'. 87; see further, note m to sul). 10 of sec. 37!).) («) Rights of private propertj-^ may be made subordinate to public necessity. Tlie 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 m to sub. 10 of sec. .379.) In such a case, in the absence of an express .statutory liability, tlie owner of property 80 destroyed ia without remeily. [Doriij v. Whit', M. & M. otj ; M7nV(-v.CV/'(nV*7o«,'2}Iill(S.U.),r)71; l\(>iik\. H'iiine/iiuniiwr, I'JHow. P. K. Uep. Court App. '-'(iO; Biis.sil/ v. Xnr York; 2 Denio. 4(11 474; Taylor V. /'Ii/inouth, 8 Mete. 402 ; Hdford v. New Bedford, 1(5 ( h-ay, 297 ; Macdonald v. Jfedwirij, 13 Min. 38 ; Surocro v. Geary, 3 ( 'al. 09 ; WeKtern College v. Ckwlaml, 12 Ohio St. 375 ; Votjin v. Nnnlucket, 5 Cush. 209; Jiuggka v. Nantacktt, 11 Cush. 433 ; see further, note 'j •{(;2 THE MUNICIPAL MANUAL. [,S. 384, Sub. 41. (issislimi'c at liit\s. Kciiiiiviil lit sliow, s owned or occupied by them, and to remove and clear away all snow, ice and dirt, aixd other obstructions, from tho sidewalks, streets and alleys adjoining such premises; and also to i)rovide for the clean- ing of sidewalks and streets adjoining vacant property, the })rop{!rty of non-resitU;nts, and all other persons («) who, for )f this section.) If there l)e ;i remedy ^^ven hy the statute or at coimnon law, existing ])eeauso of exces.s, tlie fact tliat tlie owner was warneil does not att'eet liia right of recovery. (New Yurk v. Pcntz, 24- Wend. (iGH ; see also Pt'iitz v. yEfiia ln.inr. 1.) The contrary has been lield iu the United States. (Shlphi/ V. Fij'ti/ Aiersons sullering snow and ice to accumulate upon an awning placed by them over a sidewalk, if the awning be insufficient to hold tlie snow and ice, and it in con- seipience give way and injure a passer-by, arc liable to damages. Mil/onl V. Holhrvok, 1) Allen, 17). It would seem that, prhif fticie, the occupants of the building, aiul luit the owners, out of occupation, are tiie proper persons; to be sued iu such an action. (Ktrhi/ v. Boijlxton Marktt AMOc'mfion, 14 Gray, 249.) lUitif the roof l)e under the control of the landlord, and not of the tenant, the fornur would be liable. [Hhiploj v. Fifty Af^{«iciat<\i, 101 Mass. '2r>l ; s. c. 3 Am. Itep. 346.) It would also seem that the accumulation of snow and ice on a sidewalk, in the absence, at all events, of a public regulation on the subject, would not render the adjoining projjrietor lialde to an action for an accident arising therefrom. (See Slupli' r;. S. S7i» ; Sharp v. row,:/l, l.^t. 7 C. V. 203.) The City of IJoston, under the {xjwer "to make neetBnl and salutary By-laws," passed a By-law re(|uiring the tenant or occupant, or, in case there shall be no tenant, the owners of buildings bordering on certain streets, to clear snow from the sidewalks adjoining their respective buildings, &c. It was held valid. (Lfoddtirt, Pvtltlnnir, iLr., 16 Pick. 504; Union Ji'dilrodd Co. v. Cdnihrii/'jc, 11 Allen, 2S7; Kirhy V. BoijlMon Marki't At-.^oc.iation, 14 (iray, '252.) Such a By-law is regarded by the Court "as a I'olice regulation, reipiiring a duty to lie [lerformed, highly salutary and advantageous to the citizens of a populous and closely built City, imposed upon them because they are so situated as that they can most promptly and conveniently perform it; and it is laid not upon a few, but upon a numerous class, and equally upon all who are within the description composing the class, and who connnonly derive a peculiar beneiit from the duty recjuired." {Uuildart, Petitioner, y-].aw, I.! ' 'lough the ('ity autluirities liad negluetcd to appoint any c hose duty it was to enforce the provisions of t)ic F)y-law ; I' I'ae removal of snow and ice. {Jiimjland x. Toronto, '23 \u. U. (.'. W 9.S.) Gait, J., nonsuited the plaintiff at the trial, and Gywnne, J. (the Chief Justice being absent), dcHvered the judgment -t lap Courl, vhich appeared to indicate that no action wouh the airaiiif-:. Mu \-il Corporation for alleged non-repair, uidess the alleged nou repair he '..ich as to amount to an indictable nuisance. (See further, sec. 409, and notes thereto. ) (v:) This charging must, it is apprehended, he done by the City Clerk when making up the Collector's Roll. The intention is to make the cost of the removal of snow and ice from sidewalks^ &c., a charge against the premises in front of which snow or ice, being negligently allowed to accumulate, is removed by the City authorities. (x) The jtrimajB' object of the street ia for the free passage of the public, and an^huig Avhich, trit/iout necetiMty, impedes tliat free passage is a nuisance. ( The King v. /i'!<6w //, G PJast. 430. ) The right of any one man lawfully to use the street is subject to the right of any other man to make a corresponding use. Thus the carriage and delivery of goods, &c., is the legitimate use of a street, and may result in the temporary o})struction of public transit. "No man has a right to throw wood or stones into the street at jdeasure. But, inasmuch as fuel is necessary, a man may throw wood into the street for the purpose of having it carried into his house, and it may lie there a reasonable time. So, because building is necessary, stones, bricks, lime, sand and other materials may be placed on the street, provided it l)e done in the most convenient manner." (Coimnonwcaltk v. Pansmore, 1 Serg. & II. 217; approved in People V. Cunnimiham, 1 Denio. (N. Y.) 524; Clark v. Fni, 8 Ohio, 358-374; 'St. John v. New York, 3 Bosw. (N. Y.) 483; Woodw Mears, 12 Ind. 515; O' Linda v. Lothrop, 21 Pick. 292.) "A cart or waggim may he unloaded at a gateway, but this must be done with promptness. So as to the repairing of a house : the public must submit to the inconvenience occasioned necessarily in repairing the house ; but if this inconvenience is prolonged for an unreasonable time, the public have a right to complain, " Per Lord Ellenborough, in The King v. Jones, 3 Camp, 231 ; see also Tfiorpe V. Brumjitt, L. R. 8 Ch. Ap. 050.) A man has no right to eke out the inconvenience of his own premises by taking the public highway into his timber yard (lb.) or stone yard. ) (Cu.thing V. Adams, 18 Pick. 110; Commonwealth v. King, 13 Mete. 115. A B. 384, B\lb. 43.] DOOR-STEPS, PORCHES, 366 (43.) For directing the removal of door-ste])S, porches, Rcmovalof I'ailings or other erections or obstructions pi'ojecting into or &( . over any road or other public couiiuunication, (y) at tlie highway is not to he used as a stahle-yard. {The Kiivj v. Cro8s, 3 Caini.. 22G ; 3ee alao Ridlf)/ v. Lamh, 10 L'. C. Q. 15. 35 1.) But a stage coach may set down or take up passengers in tlie sti'eet, this being necessary for pubhc convenience, hut it must he (h)ne in a reasonable time. (/6.) vSo long as the alleged ol)struetion is for the jmblic con- venience, there can he no reasouaVde gnmnd of complaint. ( 77/c King V. If'/.-oiell, (5 H. & C. 5()G; l)ut see '/'Ac Kiivj v. Ward, 4 A. &E. 3S4.) A railway company lias no right to turn a highway into a yard for cars. ( F«/\s v. Gnind Trunk llailway Co., Ii3 U. V. (.'. P. 114.) A man has no right ti) occupy one side of a street before liis ware- houses, in loading a.;d unloading his waggons, for several hours at a time, both day and night, so that no carriage can pass on that side of the street, although there be room for two carriages to pass on the opposite side of the street. (The Kimj v. A'miscU, G East. 427.) If a man does anything or pernuts anything on his prenuses in view of the public, and crowds of jjersons are thereby attracted by it, to the inconvenience of the public, that thing he cannot be allowed to do. Mr. Very, the well-known confectioner in Regent Street, London, had a daughter who attended to Ins shop, ane strictly observed. (Lowell v. Simpson, 10 Allen, 88 ; see further, note n to sub. 54 of tliia section. ) (ij) Owners or occupiers of houses abutting on streets have a right to make a reasonable use of the street. Wareliouses with doors and windows opening upon the street, and shutters projecting on the same when open, in the absence of a statute or By-law to the con- 3fi0 THE MUNICIPAL MANUAL. [s. 384, suh. 43. expense of tlie proprietor or occupant of the property con- nected with whkh .such projection.s are found; 20-30 V. c. 51, s. 340, sub. 4. trary, held not xuireasonable. {Undcnvond v, Cdrnr,/, 1 Cush. 28."); Gcrmrd v. Cookr, 2 H. & I'. N. II. 100; O'Unda'v. Lothrop, L'l Pick. 2'.)2. ) So openings comnnniicating with underground iijiart- nients, so long as not dangerou.s. {Bacon v. liimlim, .*i Cusli. 17-1.) Louvll V. Spi, L. 11. 2 Q. B. r)28 ; Ecch'shi.^tkal C'oniuiixsioncrs v. Clerb-nn-cll, 4 L. T. N. S. 591} ; s. c. 'i Du Or. ¥. & J. 088 ; Thr Qui'.en v. oard stopped building and refused to proceed ; lidf, tliat he Avas bound to rebuihl in confor- mity with the plan, modilicd so as to meet the requirements of the Acts. (Ctdntt v. Smith, 1 1 L. T. N. S. 2!)8.) By-laws were made by the Local Board of Sunderland, under the English I'ublic Health Act, 1848, 's. 115, and the Local ( iovernment Act, s. 34, )>y one of whicii (Ino. 12) all party walls except iu houses of one storey, wci'c rc(piired. under a penalty of 40s., to be nine inches at least in thickness, and by another of Avhicli {No. 42) it was provided "that in case any otl'enee under any of the foregoing By-laws shall continue, the persfin otl'ending shall be liable to a further penalty not exceeding 40s. for each day during which such oii'ence shall continue after Avritten iif>tico of the ol fence has been given by the Local Board to the olfender." A person liaving been convicted and lined for an otlence against the B3f-law No. 12, in building a party-wall four and a half inches in thickness instead of nine inches, was afterwards convicted upon an information charging him, under Bydaw No. 42, with conthutimj the offence, and again lined. Held, that suffering the party-wall to remain unaltered was not a continuing offence within By-law No. 42, or if it was, that the By-law was unreasonable, — the appropriate remedy Iteing the removal of the structure by the Board, as authorized by sec. .34 of the Local Government Act, 1858. {Mar.shall v. S)nith, L. R. 8 C. P. 41 G.) By sec. 75 of the Metropolitan Local Manage- ment Amendment Act, the erection, without the consent of the Metropolitan Board of Works, of any building, &c. , in any street, &c. , beyond the general line of buildings, is prohibited ; and it is enacted that for any infringement of that provision, the Vestry or Board may summon the ofi'ender before a Justice, who may order the demolition by the building, and make an order as to costs ; and that on default of the owner, the Vestry or Board may enter and demoliah it. And sec. 107 enacts that " no peraon shall be liable for the pay- ment of any penalty or forfeiture under the recited Acts, or thai; Ad>, 8. 384, sub. 45.] NUMnKHixa houses akd streets. 867 Nnmherimj Ileuses aiid Lots. (44.) For nurnl)eriiig the houses and lots aloiii^ tho streets of tho Municipality, and for atlixing the numbers to the houKeH, buililings or other erections along the streets, (a) and for cliarging tlie owner or occupant of ench hous(; or lor with tho cx|)ense incident to the numbering of the same ; 29-30 V. c. 51, s. 21)0, sid). 48. (45.) For keeping (and every sudi Council is here)>y refpiired to make and keep) {!>) a record of tlu; Ktre(>ts and numbers of tho houses and lots nund tercel thereon respec- tively, and entering thereon, and e^'ory such Council is hereby re(nui'ed to ent(>r thereon ii division of the sti'eers, Avith boundaries and distances for puldic in.spectio)i; 2'J-;>'> V. c. 51, s. 290, sub. 4'J. NiiriilM'riiiK liciiisrs, «i . liccnnl nf strt-fts, U'IIIiIhiIS, for any ofl'cnoo made cognizalilo before a Justice, unless tliu complaint respeutiiig such otR-uce have been made before such JuMti'..-e witlii]) six months nc xt after the eninmis.sion or (lif^covory nf sueli offence. ' Ifehl, that the limitation olaus^e a^'plied only to the case of ]jeeuiiiary penalties or forfeitures, and not to olVmiees under see. 7'>. ( ViKtnjxf Jie7-)nii)i(/.-'' streets, roiuls iind otlier public connnunicjitionH, and for giving n.'uncs tliciroto, (c) and ulHxing such names at the corners thereof ou eitlier public or private property; 29-30 V^. 0. 51, s. 340, sub. 5. Levels of Cellars. (47.) For ascertaining and conn)elling owners, tenants ing lovels of .^11,^ oeotipants to finiiish the Councils with tla; levels of the 'clliirs, Ac. ,, ' - , ... , cellars ]i(;retoiore dug or constructed, or whutli may n(!reaiter bo dug or constructed along the streets of the Municipality ; {(1) such levels to be with reference to a line fixed by the Bydaws; 29-30 V. c. 51, s. 29G, sub. 50. IlilllllMg St M els A Ascertain- (c) The powers are — 1. For surveying, .settling and marking the hoiuidary line of streets, &o. (see note y to Miib. 43 of tliis section) ; all and For giving names thereto (see note b to sub. 45 of this section) ; 3. Affixing such names at the corners thereof, " on eitlier public or pririitc property." The general rule is that there can be no interference with ]irivato property without the making of due compensation (see .see. .'ITS, and notes tlureto) ; but thu interfurenec hure sanctitined is of so trivial a character, that the jtermission is given without any provision as to compensation. {(i) It has been held that authority to a iMunicipal Corporation "to repair and keep in order its streets," enabled the Corporation, without special power, to construct drains and sewers. (Finlur v. /larris/mnj, '2 Grant (Pa.), '291; Cone v. Hartford, '28 Conn. 3(33; Bee also Borough v. Short-:, (51 Fa. St. S!)'); Slroudv. Ffuladrl/ihid, Ih. liiT^; State V. Jn-mi/ City, 1 Vrom. (N. J.) 148; State y. Ji'miij City, 3 Dutch. (N. J.) 493; State v. Jersey C it y, 5 lb. 441.) So it haa been decided in Massachusetts, that authority "to make needful and salutary liydaws," or authority "to make regulations for the public health," in the absence of more specitie power, would enable a City Corporation to construct a common sewer, and subject the owners of land abutting, and who use the sewer, to contribution for expendi- ture (Botiton v. Shnv; 1 Mete. 130) ; and it was held that the assessment in respect thereto was valid, although the greater part of one lot assessed was lower than the bottom of the sewer, as it might and probably would be graded so as to receive as much benefit as other lots. {DoWrwr v. Boston, 7 Cush, 277; see also Wright v. Boston, 9 Cush. 233 ; People v. Brooklyn, 6 Barb. 209 ; Patton V. Springfield, 99 Mass. 627.) But in order that there may be miiformity, power is by this subsection given to pass By- laws for ascertaining and compelling owners, tenants and occupants to furnish the Councils with the level of the cellars heretofore dug or constructed, or which may hereafter he dug or constructed along the streets of the Municipality. A Municipal Corporation is not iiahle to a civil action for neglecting to paaa a By-law and proAdde 8. 384, sub. 48.] erection of buildings. 3H'.) (48.) Foi* conipolliiif^ to ho dcpositod with an ofllrci*, to ho named in the i*y-lii\v, Ix't'oro coiiiiiuuiclng the eivctiou of any for some j)Iaii of (b-ainiiig the Municipahty or some part tliorcof (Milhi V. liiuvhhiv, ,TJ N. V. 48!h Wil-^on' \. ^^, m Yurh. 1 Doiiio. hWi); Child V. liostmi, \ AUoii, 41 ; ('U;i Cnnnrll v. aVuin; WW Ala. IHJ; ('('/•/• V. NorlJicni lAln'iiiiH, W'y I'eiiii. St. 3-i) ; nor tor any want of t'llioicncy in the plan adopted. (L'lilhl v. Jlosfoii, 4 .Mliii, 41; MilU V. Jimolchiu, WJ, N. Y. 48!>; //((/•/•// v. Low, II, 8 AIUmi, |-J7; Flaijii V. U'orcefili'i; I,'} (!ray, (501; Di'nnonf \. Jhtruil, 4 Midi. \WU; (Jarr v. Northern /lihirlic'^, W't I'cnn. St. '.\'2-l; Hee furtlu'r, note ,'/ to sub. 127 of see. .'i84. ) A Coriuu. m may he SiU4; Lamur v. New York, W Ducr, 40(3; Lloiid v. New Yurh, 1 Seld. ( N. Y. ) :i(ii); Jones v. New JIavi n,',iiV(nin. 1 ; J'ar/.'rv. Jjowell, 1 KJray,^^ ">.'!; Wilson w.NeinVork, 1 Denio. oi).'); LiKinnsporlv. Wriitht, LT) Ind. .H'J; Miirtinx. Brookli/n, 1 Hill, 54;"); Mellin v. HVn/c/vj Unilroad Co., 4 (Jray, 31)1; Mills v. Bro'ikhin, 32 ]S'.Y. 48!); Child v. Boston, 4 Allen, 41; Wherhr v, Worcester, "10 Allen, olll ; Eastmnn v. Meredilh, 30 N. H. '284 ; Me'tref v. Wilmington, 1) Jred. (N. Car.) 73; Delinoiiieo v. iVcw }'(!/■/•, I .Sandf. L"_"J; Mann v. l'ittsi,iir;ih, 40 IVnn. St. 304; Memphis v. Luiisir, 9 Humph. 7.">7; Dei roil v. Core//, l( Mich. 10"); (Innd v. Ijrijokhin, 41 Barb. 381; see also /fdllidiii/v. »V<. Leonanl's, Shorediteh, II (J. li. N.S. 102; Pursonsv. Uethnal (!re"n, 17 L. T. N. S. 211.) A Municipal Corporation would act judiciously in in.sisting on having drains made under the direction of their ollicers and by their own v.oikmen and contractors, instead t)f the private proprietors, for it would not do to allow all persons to break into a main sewer and make drains at their discretion, llesideii the inconvenience, the health of the community would suflor from such a course, for the )misance occasioned by defective drainage may often give rise to a wide-spread evil, injuring many more than the persons on avIioso premises the cause of the nuisance exists. It seems a necessary policy, therefore, for such a Corporation to keep the matter in tlieir own hands. Hut then, if the Corjioration does, for such good pur- poses, prevent i)ropiiet)rs from making the di'ains they require, and oblige them to have them done by the Corporation engineer and contractors, it is manifestly just and necessary that the Corjjoratiei^ should see that the work is done as it ought to be. (Per llobinsmi, C. J., in Peeres v. Toronto, 21 17. C. (I B. 100.) "Where a drain was so unskilfully constructed by the Corporation contractors as not to carry oti' water, but to carry lilth from the main sewer into plaintilT's cellar, which for months he had endured, it was held that tie was entitled to sue the Corporation for the recovery of substan- tial dam.ages, though no By-law for the making of the drain waa proved, (fh.) So wliere the drain, though properly constructed, was not kept cleaned, wbereby it became choked up and the overflow ran into the plaintilF's premises. (Meek v. Whitechapel Board of Works, 2 F. & F. 144.) So if, in the construction of a drain by Corporation contractors, quantities of earth be thrown up and per- mitted to continue, so that in times of rain mud and water are 24 C'omprlliUj; the fiiriiisii- iiiK of Uroinid Of liliK'k iiliia r>f build- ing's to b« (jiectod. 370 THE MUNICIPAL MANUAL. [a. 381, 8ub. 48. biiildinp;, a p^ound or block plan of such buildinff, wif,h the levels of tho ctillars and basoiuciitH thonjof, (e) with reference driven on a person's preniiacs, lie is entitled to fine the Corp' tion for damages. (Farrill. v. London, 12 (I. (!. Q. B. Ii4'i; also Joni's V. Uirtl, f) B. & Al. 8'M; JJnw v. iVi-w lilrrr Co., (J. .i.) The cleansing of cellars, sinks, water-closets, privies, privy vaults, &c., is prima facie the duty of the occupant, (limsell v. Shenton, ,3 Q. B. 449. ) K the privy be in such a condition at the time of the letting as to be a nuisance, both owner and tenant are liable to bo prosecuterd Campbell, in Poplar Board of Works v. Knight, 1 E. & B. & E. 408-42!). ) A stream supplied by tlie drain- age, natural and artificial, of cultivated land, and receiving the drainage of two or three inhabited houses in its passage to the river into which it flows, wa.s held not to be a sewer within the meaning of the English Public Health Act, 1848, 11 & 12 Vic. cap. 03. ( The Queen v. Oodinancliester, L. li, 1 Q. B. 328.) In order to maJce a 8. 384, sub. 53.] transient traders. 373 purposes ; (/.•) 29-30 V. c. 51, s. 29G, sub. 54. (.^2.) For cliarging all pereons who own or occupy property which is drained into a conimon sewer, or whicli, by any By-law of the Council, is required to be drained into such sewer, with a reasonable rent for the use of the same ; (/) and for I'egulating the time or tim.es and manner in which the same is to be paid ; 29-30 Vic. c. 51, s. 29G, sub. 55. Licensing Transient Traders. (53.) For licensing, regulating and governing transient traders and o^her persons who occujjv premises in the City Muuicipiil Corponitiou liable for damage arising from a defective sewer, evidenee must uot only be given of negligence on tlie part of the Corporation in tlie management of tiie sewer, but it must bo sliown that they constructed tiie sewer, or are in some otlier manner responsible for its maintenance. (Batemaii v. JJamiUvn, 33 U. C. Q.B. 24 1.) (k) See note d to sub. 47 of this section. (/) The power is to charge not only all persons who own or occupy property which ii drained into a conimon sewer, but " vh'ich, liy any law of Wie Council, w rcijidrcd lu he dnthicd into siicli sewer," whether draineif/v)i, 2 B. & 15. GDI.) I' was also held, that imder the I''nglish Acts it was iiotalonesiiliieieiit lo justify an assessment to the sewer rate that tlie [iroperty should derive some Ixsnetit from the drainage ; but it was also necessary that there should be an occupier of tlie jiroperty assessed. {Xiave V. Weather, 3 Q. B. 984 ; Trarei/ v. Tai//or, /!>' DCd. ) A tenement in tlie King's Dockyard deriving a benelit from ])ublic sewers, and occupied by an oUiccr of the Covernnieiit paying no rent, Mas hehl subject to sewerage rate. {X(tlti rton v. Ward, 3 B. it Al. 21.) The power is to charge "a reasonable rent for the use of the sewer." An amercement on a Townshij) generally, and a distress on one of the parties liable, by Commissioners of Sewers, was held good (I!amyy paying a fixed sum in gross, in diseliargo of the annual rental. {In re MrCtUc/nm v. Toronto, 2 U. C. Q. B. r)13.) The charge i.s a personal ouc. (See note i to sub. 50 of this section. \ Ch.ir^ing n-nt tor sewers. RcK^iIntlri^ triinsirtiit tiaJira. 374 THE MUNICIPAL MANUAL. [s. 384, Sub. 64. Uflifulating tnilHc; in MtroetK, wlieuU, Ac. or Town, or Incoi'poi'ated Village, for temporary periods, (m) and whose names have not been duly entoi-ed on the Assess- ment Roll in respect of income or j)ersonal property for the then current year ; 33 V. c. 26, s. 7. User of Streets. (.54.) For regiilating the conveyance of traffic in the public streets, (n) and the width of the tires and wheels of all vehicles used for the conveyance of articles of burden, goods, waivs, or merchandize. {m) Taxes are usually imposed annually. Persons liable are generally assessed in the commencement of the year ; the taxes are afterwards imposed, and not collected till the fall of the year. Traders who live in the Municipality throughout the year* cannot well escape taxation ; but those who come into the Municipality after the Assessment Roll is completed, or leave it before the Collectors' EoU is completed 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 Ikeuse, relua, CyS Pa. 8t. 119 ; Clinton v. Railroad Co., 24 Iowa,, 455; People v. Kerr, 27 N.Y. 188; I finch man v. delphia v. Railroad Co., 3 (Irant (Pa.) 403; Commonwealth v. Central Patterson Home Railroad Co., 17 N. J. (E-J {g) The powers here conferred are for — 1. Ri'iinlalinij the erection of buildings in specified parts of the City or Town ; 2. Preccnt'iiKj the erection of toooflpn buildings or additions thereto, and wooden fences, in specilicd parts of the City or Town ; 3. Pruhibit'nuj the erection or placing of buildings other than with main walls of brick, iron or stone, and rooting of incombustible mate- rial, within delined areas of the City or Town ; , 8. 385, sub. 7.] FIRE LIMITS— POLICE. of the City or Town, and for antliorizing tlic pullinp^ down or removal, at the expenso of the owner tliereof, of any- building or erection which nniy be constmcted or placed in contravention of any By-law ; 29-30 V. c. 51, s. 2'J'J, sub. 6. PoUcc. (7.) For establishing, regulating and maintaining a Po- lice, {li) liut subject to the other provisions of this Act ou that head J 29-30 V. c. 51, s. 299, sub. 7. X i Polirp. 4. jiitthoridiifi the puUliKj domn or removal, at the expense of the owner thereof, of <(«// building or erection which maybe constructed or placed in contravention of any Liy-law. The "specilied ])arts of the City or Town" mentioned in the first part of tlie subsection, and "deiined aroa.s of the City or Town" mentioned in the latter part tliereof, mean sulistantially one and the same thing, viz., the aseertaimnent of a certain area having certain limits witiiiu which proiiibited biuldings are not to Ijc erected, and other buildings to be regulatcy-laws is iu)t very clear. (See JUai/or, iL-c. V. Tkornr, 7 i'aige, 'JGl: Citi/Coinirilv. I-J/funf, 1 MeMullen (S.(J.) 234; Ur([(Jii v. Iii.-^nra/icc Co., II Mich. 4'J.'J; Doiiijhis,^ v. I'uiiniinn- wealth, 2 Kawle, 1202; VnnderhiUw. Adams, 7 Cowen, ;M9; lh'S})ublka V. Dnquet, 2 Yeates (Pa.) 4i)3. ) Where a Municipal Corporation, under power to prevent the erection' of iraodoi buihlings, passed a By-law restraining the erection of lath-and-plaster buildings witliin certain limits, the l>y-lawas to the excess was held void. {A/tonit'i/' General v. Camphcll, ID (li'ant, 'IW.).) The power, since the last- mentioned decision, has, it will be ol)served uixin reading the subsec- tion, been extended to the prohibition of buildings '^ of her than those having main walls of brick, iron or stone, and roofing of ineond)US- tilile material." The removal of a wooden building to the proiiibited district would lie an "erection" or "placing," Avithin the meaning of such a By-law. (Wadh'Kjhx. GUiiiuii, 12 Me. 4().S ; see further, Shiel V. Snndrrlam/, G }I. "& N. 790 ; 7/o/y/>.v v. Dann; Ti. 11. 9 C. P. HO.) Ordinary repairs wcmld not, liowevcr, be (nthcr an "erection" or "placing. (Bradi/v. Insuravrc Co., 11 iSlich. 425, 469; Uoul/i v. iSVa^c, 4 Conn. Cri ; Brown v. Hinm, 27 Conn. 382; TuUk V. Htatc, 4 Conn. 68 ; Sfiwart v. Commomumlfli, 10 Watts, 307.) The power to pull (hnvii or remove a building erected or jilaced in contra- vention of the By-law, though a necessary, is a strong power (see note 711 to sub. 10 of sec. 379), and should only be exercised in cases clearly of contravention, and after notice to the [lerson offending, so as to give him an ojiportunity to show cause before the destruction of hia property. (See note e to sut). 48 of sec. 384.) It would seem that a person specially injured by the contiavention of sueli a l|v law would have an action against the wrong-doer. ( Ahlrich v. Ihiwanl, 7 Hh. Is. 199.) Suffering the ]>rohibited Imilding to remain after tine would appear not to he a continuing offence, so as to subject the ollender to second tine. The remedy in such a case would appear rather to be the demolition of the building. (See note y to sub. 43 of aec. 384.) (A) "A Police." See sec. 339, and uotea thereto. ^78 THE MUNICIPAL MANUAL. [s. 385, Sub. 11. IiiduRtrial faniij, I.,4rk», 4«'. Industrial Farm — Exhihitions. (8.) For acquiring any estate in landed pi'operty within or without the City or Town for an industrial ftirm, or for a public park, garden or walk, or for a place for exhibi- tions, {%) and for the dis[)osal thereof when no longer required for the purpose ; [k) and for accepting and taking charge of landed property, within or without the City or Town, dedi- cated for a public park, garden or walk for the use of the inhabitants of the City or Town; 29-30 V. c. 51, s. 299, sub. 8. the same. (9.) For the erection thereon of buildings and fences for the purposes of the farm, park, garden, walk or place for exhibitions, as the Council deems necessary ; (/) 29-30 V. 0. 51, s. 299, sub. 9. (10.) For the management of the farm, park, garden, walk, or place for exhibitions and buildings ; (in) 29-30 V. c. 51, s. 299, sub. 10. Charities. Almshouses, (H.) For establishing and regulating within the City or Town, or on the industrial fivrm or ground held for public (i) The power to acquire land outside the limits of the Municipality for any purpose, is not one ordinarily conferred on Municipal Corpo- rations. (See note .? to sec. 16.) The purposes here mentioned are; 1. For an industrial farm ; 2. For a public park, garden or walk ; 3. Or for a place for exhibitions. The acquirement of land for such purposes is one intended for the benefit of the public health and public welfare. (See In re Central Park Extentilon, 16 Abb. Pr. 56; Park Coniniissi.oners v. Williamt, 51 111. 57; Owner.-^, d-c. v. Alhanij, 15 Wend. 374.) Land may be so acquired for public parks, gardens or walks by purchase or by dedi- cation. The words on a plan, "Garden Square," held not neces- sarily to imply a dedication. (Pella v. Scholte, 24 Iowa, 283.) So of the words "the Park." (Perrin v. Railway Co., 36N.Y. 120; Price V. y/(o/rt;wo7j, 48Mo. 363. ) "Spencer Square." (Logansportv. Dunn, 8 Ind. 178.) "Colosseum." {Livandais v. Mnnicipalifi/, 16 La. 512; Xiqiies V. Bujar, 7 La. An. 499; Cox v. Griffin, 18 Geo. 728.) The words " Depot of O. & P. Railroad" do not show a dedication to the public. (Todd V. Jiailroad Co., 19 Ohio St. 5U.) (k) See note c to sub. 1 of sec. 372. (I) There is no limit as to the cost or character of the buildings and fences, &c. Such "as the Council deems necessary" maybe erected. (m) The manageraen*^ of the farm, park, &c., must of course be subordinate to the use ntended. The regulations for management must not bo contrary thereto but in furtherance thereof. s. 385, sub. 14.] OAS and water. 379 exhibitions, one or more almshouses or houses of refucjo for the relief of the destitute, (n) and also for aiding charitable institutions within the City or Town ; (o) 29-30 V. c. 51, s. 2i>y, sub. 11. Corporation Surveyor. (12.) For appointing any Provincial Land Surveyor to bo Corpontio n the Corporation Surveyor ; {j)) 29-30 V. c. 51, s. 300, sub. 1. ""'""y^- Gas and Water. (13.) For lighting the Municipality, {q) and for this pur- M^-iitinn pose performing any work and ])lacing any fixtures that are ^^"''' t-'"* necessary on private property; 29-30 V. c. 51, s. 300, sub. 2. (14.) For laying down gas or water pipos in any street, Layini; and opening streets for the purpose; (r) and for taking up „i'ui wat'.jr or rejjairing such pipes, and for using eveiy power and i'>P*='*- (n) " Destitute." The poor taken notice of by the English law, which is a complete system, are — 1. Poor by irapotency: as the aged or decrepit, fatherless or motherless, poor under sickness, aud persona who are idiots, luna- tics, lame, blind, &c. ; 2. Poor by casualty : such as able-bodied persons decayed or ruined by unavoidable misfortunes, or otherwise out of employment, and unable to procure employment ; 3. Poor by prodigality and debauchery ; also those called thriftless poor, as idle, slothful persons. (See further, note p to sub. 7 of sec. 372.) (o) A Municipal Corporation has no power, in the absence of express Legislative authority, to grant money in aid of .any local object outside the limits of the Municipality. (See note j to sec. 113.) (p) Municipal Corporations have an implied power to ap])oint all such officers as are necessary for corporate purposes. (See note r to see. 184.) (7) Municipal Councils are empowered to authorize any cor- porate gas or water company to lay down pipes or conduits for the conveyance of gas or water under streets or public squares. (Sec. 379, sub. 23.) This power in subordinate to the right of the public to use the streets and public scpiaresfor pul)lie jiurpo.ses, and subject to as little inconvenience to the i)ul)lic as eomi)atii)le with the exercise of the authority. (See notes to same. ) The object of this subsection is to enable the Corporations of Cities and Towns, if so disposed, themselves to erect the necessary works to light the Mujiieipality, instead of contracting with a private company. The next sul)section makes similar i)rovisii)ii for the sui)ply of water. Tho work is to be done by Commissioners. (See sub. IG. ) It is pre- sumed that any interference with private property for eitlier purj)ose would be subject to the right of the owner to claim compensation.. (See sec. 373, and notes thereto. ) (r) See preceding note. , w 380 THE MUNICIPAL MANUAL. [3. 386. Inmiefiioii of gas me- rointnis- sioiUTs fur ••ructioM •f jjiiH or water works. C'mistrac- ■tiitii (if gas iinil water works. Kstimatp to lit! pulilislicd and iioti(;e of fakiiit; poll ou iiy- ).aw. privilopfe given to any gas or water company incorporated in the Municipality as if the same we)'e s]M'ciitlly given l)y this Act, Huhject, however, to the pi'ovisions lierein coiitained as to tlie erection of gas or wat(!r works and levyuig rates therefor; 2 9-30 V. c. 51, s. 300, sub. 3. (15.) For providing for the inspection of gas meters ; (*') 29-30 V. c. 51, R. 300, sub. 8. (IG.) For providing for the appointinont of three Com- missioners for entering into contracts for the construction of gas and water works, — for stijierinteinling the construction of the same, — for maufiging the works wlinn completed, — and for ])roviiling for the election of the said ( 'ommissionera by the electors fi-oui time to time, (t) and at such pc^riotls and for such terms as the Council may api)oint by tlu; By-law authorizing the election; 21) 30 V. c. 51, s. 300, sub. U. (17.) For constructing gas and water works, and for levy- ing an annual s])ccial rate to defray the yearly interest of the expenditure tlKU-efor, and to form an equal yearly sinking fund for the payment of the principal within such time as shall not exceed thirty years, nor be less than live vears. (u) 2t)-30 V. c. 51, s. 300, sub. 4. JJ80. N^o By-law under the last subsection shall bo passed : (a) Firstly, until estimates of the inteudeil expen- (.«) This lias recently been tlie suJjjcct of an Act of the Uomiiiiou Legtslaturo. (36 Vic. cap. 18.) (t) The powers are for— 1. Providing for the appointment of three Commissioners for entering into contracts for the construction of gas or water works ; 2. SiipcrintcndiiKj the construction of the same ; 3. Managing the works when completed ; 4. Providing for tlic election of the Commissioners by the electors from time to time, &c. (?{) The By-law is made subject to a vote of the people. (Sees. 386, 387.) ((t) The requisites, under this section, to the validity of the By- law, appear to be tlie following : 1. I'ublication of estimates of the intended expenditure, for one month ; 2. rublication of the notice of the time appointed for taking a i)oll, for two months ; 3. Pul)lication of a copy of the proposed By-law as the same may be ultimately passed, and a notice of the day appointed for finally considering the sauie, for three months ; . - HS. 387, 388.] GAS AND WATER. 381 (liture have been publislied for one month, and nott(!e of the time apitoiiitod for takinif a poll of tlio electors on the pro- posed Jiy-laAv lias been i)ublislu"d for two months, and a copy of tlio proposed l>y-liiw at length as the same maybe ulti- mately jtasKcd, and a notice of the day a])pointed ibr iinally considering the same in Council, have been published for three months in some news))aper in the IMiinieipality ; or if no newspa})er is jjublislied therein, th(.'n in some newspiiper in the County in wliich the Municipalily is situate ; (b) Nor, secondly, until at a poll, held in the same manner rniitobo and at the same places, and continued for the same tim(! as '"''.'• .''"'^ ■*■ , , . iiiuinrity at eh'ctions for Councilloi's, a uiajt)i-ity of the electors (o) nnkit bo in voting at the poll vote in favour of the By-law; favour. Nor, thirdly, unless the Bv-law is passed within three y5y.].,^ t^ months after holding said poll. ((/) 29-30 V. c, 51, s. 3U0, i"^ I'^'ss'.i , _ o X \ / 1 J witliin Uirp(» HUL). O. iiiunths. . J58T. Tf tlie proposed By-law is rejected nt such poll, no if by.iaw other By-law for the same purpose shall be sulnnitted to the r^^'^t.'^J electors during the current year, (e) 2'J-'dO V. c. 51, s. 3U0, 8ub. 0. 1588. In case there be any Cas or Water Company incor- rrnvisions porated for the Municipality, the (Jouncil shall udt levy any \v hen; them gas or watcir rate until {/) such Council has by By-law lixed ^v.|t,fr' com- I'iuiy iiifor- Iifir.'itc'l for tlif inunici- 4. Ratification ef tlie By-law liy a majority of the cloetdrs ; 5. I'asaage of the Hy-law vvitliin three niontlis after iiohhng the jioU. I'^^'ay Failing theae or any of them, the By-law may be held invalid. (See note mpany incorporated in tiie Muni- cipality, the Council of tlie Municipality, before levying a gas or water rate, is by By-law to fix a price to he otfered f7.) Non-rcsidunt proprietors ftro, however, clearly subject to assesHineiit for commutation for Htatute lal)our. A non- resident who has not recinired his name to he entcn.Ml on the IloU is not entitled to be admitted to perform statute labour in respect of land owned by him. (See A.sscasnient Act, sec. 8S.) But a commu- tation tax nuist be charged against every separate lot or parcel according to its assessed value. (//».) In case any non-resident proprietor wliose name has been entered on the Assvssment Itoll, does not perform his statute labour or ])ay commutation for the same, the Overseer of Highways in whose division lie is j)laced must return him as a defaulter to the Clerk of the Municipality before the 15th August, and the C'lerk must in that case enter the com- mutation for statute labcnxr against his name in the Collector's Boll. {lb. sec. 89.) {k) The power, by the preceding subsection, is to compound "for any term not exceeding five years." This subsection applies to the amount of commutation money for each day's statute labour, in res- pect of tliu period for which the conmiutation is made. The power IS by By-law to provide that a sum of money not exceeding one dollar for each day's statute labour may or shall be paid in respect of such statute labour. There is no power to fix the amount of crimmu- tation at a higher rate than one dollar per day. (See In re Tilt and Toronto, 13 II. C. Q. B. 447.) The sum so fixed must apply equally to residents who are subject to statute labour and to non-residenta in respect of their property. (Assessment Act, sec. 85.) Where the Council of any Township by By-law directs that a sum not exceeding one dollar per day shall be paid as commutation for statute labour, the coimnutation tax may be added in a separate column in the Col- lector's Roll, and collected and accounted for like other taxes. (76. sec. 84.) Where no such By-law has been passed, the statute labour in Townships, Towns or Villages, in respect of lands of non-residents, must be commuted at the rate of fifty cents for each day's labour. {lb. sec. 80; as amended by 34 Vic. cap. 28, s. 3.) No By-law ia necessary uidess the Municipality desire to lix the commutation money at a higher rate than tifty cents a day. {Hobimson v. Stratford, 23U. C. Q. B. 99.) (i) Every male inhabitant of a To\viiship, between the agea of twenty-one and sixty, who is not otherwise exempt to any amount (and who is not exempt by law from performing statute labour), ia liable to at least one day of statute labour on the roads and highway! 334 THE MUNICIPAL MANUAL. [fl. 390, Hub. 4. Eiifoi'ciiig, r-nrwinn (1.) For cuforcinj* tlio |)(M-forniunco of statntn labour, or Utbimr. payiiiotit of a coiniinitiitiou in inomiy in lieu thereof, when not otiiorwiHo proviilucl by 'law; {m) in tlio TowiiHliip. ( Asaussmcnt Act, sec. 82. ) Ami no Council Las powLT to rcdiKir Ht.'itutu lal)0iu' rotjuircd umlor tliu laHt-iiieiitioiied 8w;ti(iTi (///,) ; iuid L'V';iy ])cr.i()ii aarfCoHcd ujioii tlio As.4u.aiaLiit lioll of a 'l'u\viislii|i ill ri^pi'ct of pinjnirty id, if his property in iisac'S8eo. r.Oil, do. do. 7(»(t 4 " Do. 700, do. do. !>00 T) " And for (ivcry $,T()() over .SIXH), or ftny fractional part over $150, one additional tlay. Hut tliu ('oiiucil of any 'J'ownslii]) has ])o\ver, l»y a liydaw operatiii;j; genuraliy ;i.iid ratal)ly, to reduce or increase tho nunil)er "f days of statute lalxmr to wiiich all tlie jiarties rateil on tin; AssLHHnieiit lloil or otiiei'wise are respeetivtdy lialile, ho tiiat the nuniher of days' lal)our to which each person is liable nliall bo in propoi'tion to the aniouiit at which he is assessed. (Il>. .sec. 8.'1.) In Touiishios wheire farm lots have been sul)divided into park or villaga lots, and tlie owiiens are not resident and have not recpiircd their names t(i l)e entered on the .Assessment lloll, the .statute laliour must be commuted by the Towusiiip ( 'lerk in making out tlie list re(piired by tile ninety-second section of the Assessment Act, Avheii such lota are uiuUir the value of .>!'_'()(l, to a rate not exceeding ouedialf per cent. in the valuation ; but the Ijouncil may direct a less sum to be imposed by a general iiy-law ail'ecting such lots. (/6.) (/«) Any person liahh; to pay the sum named in the eightieth Bcction of the Assessment Act, must pay the same to the Collector within two days after demand thereof. In case of neglect or refusal to pay the same, the CJoUcctor may levy the .same by distress. If no sulHcient distress can be found, then ujion sunnnary convic- tion, before a Justice of the I'cace of the ( 'ounty in which the local Municipality is situate, of his refusal or neglect to pay the said sum and of there being no sullicient distress, he incurs a ])enalty of five dollars with costs ; and in default of payment at such time*a3 the con yicting Justice shall order, shall be committed to the comni'in gaol of the Countj% and be there put to hard labour for any m not exceeding ten days, unless such ])enalty and costs, nd * ■ costs of the warrant of conmiitment and of conveying th , rson to gaol, be sooner paitl. (Assessment Act, sec. 87.) ay person liable to perform statute labour, under section 8: .he Act, not commuted, is required to perform the same when . liredto 'o so by the pathmastc" or other officer of the Municijiality anjjoui d. for the purpose; and in case of wilful neglect or refusal topurfo; . such statute labour after six days' notice requiring lam to ilo the same, shall incur a penalty of live dollars, and upon summary conviction before any Justice of the Peace, such Justice shall order the same, together with the costs of prosecution and distress, to be levied by distress of the offender's goods and chattels ; and in case there shall bo no sulficient distress, such offender may be committed to the common gaol of the County, and there put to hard labour for any 8. 390, sub. C] TAVEnNS and siiopa. 385 (5.) For rogulating tho mannor and thn divisions in which nrRuUtirvi Btatuto lal)aur or commutation mom^y shall 1»p parformoil or ^J'^'^'i", expended; (ji) 29-30 V. c. 51, s. 332, sub. 1-D. " ' '' Tavern and Shop Licenses, (0.) Tlo^pccting shop and tavern licenses, nnd rof^ulating ni'piJitini; the sale of spirituous, fermented or oth(T inanufacturecl tavii'rn li(pior.s, and the api»ointment of Inspectors of Licenses, as au- "^('.'""f"' ""' thorizL'd (o) by the Act respcctinj^ Tuvern antl Hhoj) Licenses, »pint8. Ac. time not exceeding ten days, inilesfl such penalty and costs, and tho coat.4 of tho warrant of commitment mid of conveying tlie person to gaol, Htiall bo sooner paid. (//'.) Ail suins and penalties recovered tnider the last section must bo j- id to tiie TreasunT of the local Municiji-dity, and fcrm part of tho itatuto lal)our fund tiien^of. (//>.) Tho warrant may, it seoms, issuo for iini)risonment without first Bummoning tho defaulter to answer, or making a formal C(>nviction. {The (Jiipen v. Morris, 21 U. C. Q. 15. 392; but see note I to sub. 48 of sec. liHi.) A IJydaw directing that the Overseers of Highways elioulil bring aiiy jtorson refusitig or neglecting to j)erform statute labour l)efore the Ueeve of the Munici[)ality or nearest Justice fif tho Peace, who, ui)on conviction, should impofie a line of five shillingrt for e.'ich day's neglect, witii costs, and adjudge that the ))ayment of such lino sliould not relieve theperson lined from the performance of the labour, was held good, {/n re SUxldart anil Wilherforre, Grattiin and Fniscr, Ify U. ('. Q. B. 103.) So a Jiydaw enacting that any , person liable to perform statute labour, who after being *'^- payment thereof. (5) 29-30 V. c. 51, s. 296, sab. 31 ; vide 31 V. 0. 30, s. 33. Division IX. — Exclusive Powers of Councils of Coj. "ies. 39f^. The Council of every County (t) may make By-laws : ny-uwi Protecting Booms. made for— (1.) For protecting and regulating of booms on any stream protecting or river, for the safe-keeping of timber, saw-logs and staves, ^'^^^t- within the Municipality, {u) 29-30 V. c. 51, s. 344, sub. 4. Jioard of Audit, Criminal Justice, d'c. *S9S. Every County Council shall appoint, at its first cnnnty meeting in each year, two persons, not more than one of *"'|^':^'sof But it is not indictable at common law to compound a prosecution for such an offence, where the same is triable before a J ustice of tho Peace. {The Queen v. Mason, 17 U. C. C. P. 534.) It is the duty of the Council of every County, Township, Town and Incorporated Village, and of the Commissioners of Police in each City, in tlio month of February in each year, to appoint an ofticer or officers for the Municipality to enforce the observance of the Tavern and Shop Licenses Acts, and for the observance and enforcement of any By-law of the Municipality with respect ta Tavern and Shop Licenses, and to fix and define the duties, poAvers and privileges of the officer or oflScers so appointed, the remuneration he or they shall receive, and the security to be given for the efficient discharge of the duties of the office. (Stat. 37 Vic. cap. 32, 3. 54.) (p) Commissioners of Police in Cities have similar powers to those here conferred upon Councils of Towns and Incorporated VUlages. (See sec. 335.) ((/) See note k to sec. 335. (r) Sec note I to same. (fl) See note m to same. (t) Rcstrictod to Counlica. (u) The right to float timber, saw-logs and staves over rivers and other streams, is .m ordinary right of navigation, and is recognized by statute. (See LiUle v. In^e et al, 3 U. C. C. P. 528. ) Such timber 18 usually for the time kept in booms, and the protection and regula- tion of booms becomies therefore a matter of municipal concern. 388 THE MUNICIPAL MANUAL. [s. 395. I'ayment of luembers of board. Regulating AQd licens- iuf' live: •Utiles, «c, jry ,4c whom shall belong to such Council, be members of the Board of Audit, (a) for aiiditing and approving accounts and demands preferred against the County, the appioving and auditing whereof, previous to the 19th day of December, 18G8, belonged to the " General Sessions." 32 V. c, 6, s, 9, sub. 2 ; 33 V. c. 8, s. 2. S94. The Council may pay the persons appointed by them to serve on the said Board of Audit, any tmm. not exceeding two dollars each per day for their attendance at such audit, (i) and five cents for each mile necessarily travelled in respect thereof, in going to and from such audit. 33 V. c. 8, s. 3. Livery Horses, &c. 395i The Council of every County having County gravel or macadamized roads within its jurisdiction and under its immediate control, such roads being kept up and repaired by municipal taxation, and upon which no toll is collected, (c) shall have power to pass a By-law or By-laws authorizing the regulating and licensing of the owners of livery stables, and of horses, cabs, can-iages, omnibuses, and all other vehicles used or kept for hire ; {d) and for issuing and regulating (a) It would be very inconvenient for the Conncil to pay the accounts mentioneil in this section to the several officers before audit by the Government auditors, and fmal allowance by the Government; for then occasions might be constantly arising for reclaiming from the officers any sums that the Goverimient County Auditors or the Provincial Treasurer may have rejected. (Per Robinson, C. J., in Lamblon v. Po«.se«, 21 U. C. Q. B. 472, 484; s. c, 22 U. C. Q. B. 412 ; see also In re Davidson and Quarter Sessions, 24 U. C. Q. B. G6; In re Dartnell and Quarter Sessions, 20 U. C. Q. B, 430 ; In re, Treasurer, d^c, of Lincoln, 34 U. C. Q. B. 1.) {b) As to compensation of public officers, see note t to sec. 219. (c) This section does not extend to the Council of eveiy County- It is restricted to a County " having County gravel or macadamized roads within its jurisdiction and under its immediate control, such roads being kept up and repaired by Municipal taxation, and upon which no toll is collected." (d ) The powers conferred are for — 1. Regulating and licensing of the owners of livery stables, and of horses, cabs, carriages, omnibuses, and all other vehicles used or kept for hire ; 2. Issuing and regulating teamsters' licenses ; 3. Regulating the width of tire used on such vehicles ; 4. Establishing the rate of fare that may be collected or taken by the owners or drivers ; • 6. Enforcing the payment of such licenses ; i G. Regulating rates of tares for the conveyance of goods or pas- aengers; , 8. 396.] HORSE STEALING, 389 teamsters' licenses ; (e) for regixlating the width of tire used Wheei«. on such vehicles ; (y* ) for establishing the rates of fare that j^^^^, ^f may be collected or taken by the owners or drivers j (g) for fare, enforcing the payment of such licenses ; (h) regulating rates of fares for the conveyance of goods or passengers ; and for enforcing the width of tire that may be used on such vehicles, when travelling on the aforesaid County gi'avel or macadamized roads. (J) 31 V. c. 30, s. 45. Horse Thieves. 396. The Council of every County shall provide by By- npwani for law, that a sum not less than twenty dollai-s shall be payable apprehen- as a reward to any person or persons who shall piirsue and persons apprehend, or cause to be apprehended, any person or per- iJlJJ.su^B"^aJ. sons guilty of stealing any horse or mai'e within the said iug. County, (k) and such reward shall bo paid out of the funds 7. Enforcing the width of tire, &c. See note k to sec. 335. (<») It is presumeil teamsters teaming for hire only are here in- tended. (See note k to sec. 335. ) (/) See sub. 54 to sec. 384, and notes thereto. (g) See note I to see. 335. (h) See note 7«. to sec. 335. {j] See note m to sec. 335. {k) One of the objects of Municipal government is the protection of property. In furtherance of this object, it has been held in some of the States of the Union that a Municipal Corporation may ofl'er a reward for the detection of offenders against the property of another. Thus in cases of arson. (York v. Fohcht, 23 Pa. St. 391; Crawshaw V. Roxhury, 7 Gray, 374.) Jut in other States the power to offer rewards for the detection oi criminals, in the absence of express legislation, has been denied. {Galev. South Berwick, 51 Me. 174; see also Lee v. Fleminr/nburg, 7 Dana. ( Ky. ) 28. ) The power in this section is restricted to rewards for the pursuit and apprehension of a person or persons guilty of stealing any horse or mare within the County. The reward is not to be "le.ts than twenty dollars." This is the minimum ; so the Council may make the reward as much more as they think 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 be paid On conviction of the thief, and on the order of the Judge before whom the conviction is obtained. Any jjerson performing the service, who, without such reward, is not bound to perform the service, and placing himself in the position dc8cribe()/ ; Planh Jload Co. V. Thomas, 20 Pcnn. St. 91; Benedict v. Voit, W IJarb. 451); Plank Uoad Co. V. llamaf/t, UO Penn. St. 'J5 ; Plank Jioail Co. v. Jiimman, lb. yO. ) It is now settled that the roads of joint-stock conii)anies are not included. "(.S'^. Catharines v. Gardner, 20 V. C. ('. I'. 107) B. c. in appeal, 21 U. C. C. V. I'JO; sec also Port Whilhi/, ,lr. liwd Co, V. Whitby, 18U.C.Q. 13.40; The\hiccn\. lirown and Street, l.SU.(U'.P. 356), unless purcliased or otherwise legally ac(iuired by the Munici- palities in which situate. (Tl^c Queen v. Paris, 12 U. C. C P. 445; The Queen v. LoiUh, 13 II. C. C. P. 015; see also Tutten v. Jlalliijan, lb. 507.) If any such company j)ermit or allow their road to remain out of repair for the period of nine months nfter thb time fixed by arbitrators for repair of the same, the company shall forfeit all right to their road, and the Municipal C'ouncil of the County through which such road or any part thereof passes, may enter upon and take possession of the same, and exercise tiio same jurisdiction over the same as tho road company owning the road were entitled to do under the Joint-stock Companies Act and tho amendments thereto. (Stat. 35 Vic. cap. 33, s. 5, sub. 3, Unt. ) In case tho Municipal (Jouncil of the ('ounty do not think lit, within the period of one month after tho expiration of the nine months, to assume by By-law such road for the purposes of repairing tho same and levying tolls thereon, the iMunicipal Council of any Municii>ality which would, under the provisions of tlie Municijial Institutions Act in force in the Province of Ontario, be required to maintain and keep such road in repair as a common any l!y-law of tho Muni('i[);il (Council. {/!>.) So jjrovision is made for tlio vesting in the Municipalities of joint-stoek eonipimy roads, after sales tliereof to pureliaaers who make default in putting aueh roads in a j)ropcr Btate of repair. (Sec Stats, Ont. .'il Vie, eap. 'M, s. II; 'M Vie. eapa. 41 & 4*2.) Ilo.'ids or l)ridges hiid out hy Uovernnient aiul after- wards al)andoned .appear to l)e pul)lic roads, lUider the contnd of tlie loeal Municipalities in wlioae limits situate. (Irwln v. lirndfurd, 22 IT. C. ('. I'. 18; s. e. in appeal, 421.) " lOaeh Municipality, as tho law stands, can alone, in my judgment, lie made res])onsil)le for tho maintenaneo and repair of so much of such a tiridge .as lies within its borders, as in tho case of a road similarly placed, unless where the ro.ad or bridge is assumed by the('ounty."(/'erV.aidSf. Murifs, Xcviivjtnn, v. Jarobs, |j. 11. 7 Q. B. 5:1.) There may he a dedication to tho publie of a right of way, such as a footjjath aero.ss a field, auhjeetto the right of the owner of tlio soil to plough it up in due course of husbandry, and destroy all trace of it for the time. (Mtrcrr v. Woodijatu, L. 11. f» g. B. '21) ; Arnold v. liltdvr Hal., L 11. G g. IJ. 43;{ ; Aniuldv. llolhruok, L. it. 8 Q. B. %.) If a highway be out of repair or other- wise, the pnblic have a right to jtass on another line, and ff>r this purpose to go on adjoining laiul (t\trrh'k v. Joliiisfan, 'Jli 11. C (j. B. 05); hut such a doetrint!, if still the law, is not .applieablo to a restrieted dedication of a highway. {I'cr (Jockburn, C. J., in Arnold v. JIulbrook, L. B. 8Q. B. yadoo.) {I) A concession or other I'oad, talrv and /lelit possession of by an individual in lieu of a street, road or highway laid out by him, with- out eompensation therefor, is exempted from the operation of this section. In ease any one in possession of a concession road or sido line has laid out and oi)ened a road or street in place thereof, and for which no compensation has been made to the owner, the owner, if his lantls adjoin, is entitled thereto in lieu of tho road laid out. (Sec. 420.) The Miuiicipal Council is also authorized, under certain circumstances, to convey the portion of roail to the person so entitled. [lb.) If they are to exercise a discretion as to the conveying, and refuse to do so when they ought, the positive cirect of the enactment, which declares that the person in possession of the original allowance "shall be entitled thereto," maybe destroyed, uidess tho Courts have power to compel the Municipality to convey, or unless tho . enactment itself gives them a title thereto. 'i"hc fact that this section vests the other road allowances in the Corporation and excepts those taken and held by individuals in lieu of a road laid out without compensation therefor, goes to sustain the view that such allowances are vested in those who have taken such possession of them. (Per Richards, C. J., in liurrltl and Marlborouijii, '29 C. (J. Q. B. 119-132; but see Furdy v. Farley, 10 U. C. Q. B. 545.) A Municipal Council may sell any work or macadamized or toll road which they have constructed or purchased, or any stock held in any road or other company, and apply the proceeds of such sale to the payment of existing debts contracted for the construction of the same, or for Buch stock, or if no debt exists for such work, road or stock, then to the general purposes of the Municipality or otherwise as they may determine. (Con. Stat. U. C. cap. 49, s. 09.) (m) The powers of each Council are genenally restricted to the locality over which the Council governs (see note j to sec. 16) ; but 400 THE MUNICIPAL MANUAL. [s. 409. owners of the land adjacent to such highway or road, such land as may be required on either side of such liigliway or road, to increase the width thox-cof to the extent of one hun(h'ed feet or less, subject to tlie provisions of section number three hundred and seventy-three of this Act. (n) 29-30 V. 0. 51, a. 3:59. Liability for Repairs, Repairing 40!). Evcry public road, strcct, bridge and highw.\y shall of imblic \^Q l<;e[)t in repair by the C'orporation ; (o) and on default of the Cor])oration so to keep in repair, the Corporation shall, for iome purposes, in the interest of the general Welfare or because of the publio necessities, power is given to ac(piire land in au adjoin- ing Municipality. 'JMiis section is one in which a power of such a character is conferred. The power is to acquire and assume posses- fiion of and control over any public highway or road in an adjacent Municipality. Thejtowor is to be exercised for the purpose of using Buch highway or road " for a public avenue or walk." it cannot, of course, be of any avail uidess exercised " by and with the consent " of the adjacent Municipality. Such consent is to be signiiied by the passing of a By-law for the purpose. (n) In other words, only on payment for or compensation to the owners for the land so taken. (8ee sec. 373, and notes thereto.) {()) The duty is to keep every public road, street, bridge and high- way in repair. In l''iigland an ol)ligation to keej) highways in rcjiair rests at conunou law on the parishes and counties. (The Kbujv, Brou()hion, 5 Burr. '2700; The Kim/ v. Pendcrryn, 2 T. R. 513; 'The Queen v. Scott, 2 Ld. llayd. 922; The Kinq v. Liverpool, 3 !:asfc. 86; The King v. Oxfordshire, 4 lb & C. 191; 'The Kim) v. JWle-^/iehl, 1 B. & Al. 348 ; The King v. Eastrinqton, 5 A. & E. 765 ; The 'Kinq v. Leake, [>K & Ad. 469-482; The Queen v. Horlerj, 8 L. T. N. S. 382; see also the Queen v Kilehoier, L. 11. 2 C. C. 88.) It would seem that in this country there is a similar common law obligation. { Welllnqton v. Wibon, 14 IT. C. C. P. 304 ; Harrold v. Simcoe, 1(5 IJ. C. C. P. 43; s. c, 18 U. 0. C. P. 9; The Queen v. Yorkiille, 22 U. 0. C. P. 431.) "Ap.art from section 337 (s.amc as sec. 409), which imposes the burden of repairing the roads within the resi)cctive Municipalities in which they are situated, the common law duty would api)ly to all such bodies to repair the roads which are within their jurisdiction, and for whic'* uhey can raise the funds required for the purpose. " (Per '\\ '-^on, J., in WeUimjlon v. Wilson, '4U. C. C. P. 304.) " We arc of opinion, for the reasons hereafter gi 'en and upon the authority of decided cases, that there is a clear common biw liability resting on the defendants both civilly anray, 541 ; see furtlier, noto m to sec. 413.) Then, what is repair? It is inipos.:>il)lo to give a delinition wiiicli will apply to all cases. In general terms non-n ))air may bo said to be any delect in a hi.;hway which renders it uns.vfe for ordinary travel. (See Jllxon V. Loa-dl, liuJray, T)'.!; liarwr v. Jlurhrr;/, 11 AUen, .S18 -.'fJO; Jlewison V. Keuj llaren, 34 Coim. l.'JO- 14'J.) In ileterminingtlie ques- tion of non-rei)air, tlie nature of tho country, tlie character of its roads, au I the care usually e.xercisoil by Municii)alities in reference to «ucli ruads, must all l)e taken into account, {//nil v. Jiirlnnond, 2 Wood & ^\. 337. ) A new side lino or concession line, opened in a Towri hi ,) thinly scattered, could scarcely be cxpecteil tolie fnund in as ])erleet a condition as an old highway in a well settled 'IN^wnship. (/^rr Kol)inson, C. J., in Colheel: el ux. v. liraii'/ord, L'l U. C. Q. 15. 270; see furtlier, 7'/ie Que.en v. Board of Ciiardiaus, X-c, 8 L. 'I'. N. S. 383.) It must be a question of fact altogether for a juiy to say whether tho place alleged to be i:el/ v. St. Mark's /'lanf: /load Co. , 28 IJ. 0. Q. B. 2-l-7-2r)i.) The season of the year, the jihvce of the acciilent, Ihe hour of the day or night, the manner and nature of the accident, must all bo taken into consideration in determining the question. (See Rlnqland v. Toronto, 23 U. C. 0. P. 98 ; 1/ niton v. U'lnd-ior, U. ('. Q. P.. H. T. 1874; Creenv. /)anb\i, 12 Vt. 338; Pke r. Montptlicr, 19 ^'t. 470; Cassedyw iSlockhri't'/e, 21 \'t. 391 ; Se.-i.-iions v. Kewporf, 2J Vt. 9: Kelseijy. (tlorer. If) Vt.' 708; J/n'/i' v Hampden, 20 Me. 2.34; Providence \. Cl(tp/>, 17 How. ( U.H. ) 101 ; / ■'? v. JSo.'iton, 4 < ush. 305 ; Jolinsnnx. Haverhill, 'S') N. H. 74; WinsJiipv. Eiijleld, 42N.1L 197.) The cause of the accident may be either structural defect or inert matter left eitlier iijion or over the v^iil. {Davis v. Bangor, 42 Me. 5'22.) In gener.il, it must l)e such a defect as to render tiie ("orpcra- tionliaiilo to an indictment for nuisance, {//o'vard v. Jiridqeirater, IG Pick. 189; J/e-mV/v. //,(w/n/^?;, 20 Me. 2.34; /.'(■//,'//«/('/ V. 7'o»-o;i^o, 23 IJ.C. C. P. 93 ; but see O'oldlhirait v. Past /iridtji'irater, 5 ({ray, 01. ) In tho Aetof KSOOitwaa, inthesectionwhichgave tho rightof action, declared that "the default of the Corporation so to keeji in re})air shall he .a misdemeanor." The corre3])o:idiiig words in this section arc, ".3hall, bosidea being subject to any puiiishmont provided bylaw," be civilly, &c. The cha/ige of ln,ugi;age is not owing to any change of intention on the part of the Logi -1 iture, but to the constitutional dillicult}' that the local LegieKture has no power to create criminal oflences. (Seo note i' to sec. 3(1.) Hut it is not every nuisance which ohstrncts, hinders or delays travellers on a highway, that constituten non- repair of the highway. (Per < 'arpenter, .1 . . in flcwison v. Keir //avert, 34 tJonn. 140.) The traveller may be obstructed by a concourse of people, by a crov,-d of carriages ; hia horse may be frightened by the 20 MS 'J'HE MUNICIPAL MANUAL. [S. 409. diHcharge of gun-!, the explosion of fireworks, hy the falling of a Bigiil^oarJ insccuifjly fastened, 1 y military muaic, by tlie presence of wild animals, and yet the highvray not be in any legal sense out nf repair. (Hixon v. Lowell, \'A (ivay, i^i) ; Davis v. Bamjor, 42 Me. r)'22 : Fretick V. BrnnsvAck, 21 Me. 2U; Taylor v. Peckham, 8 llh. Is. 34!( ; 8. c, Tf Am. Rep. 578; Jones v. Boston, 104 Mas6. 7o; s. c, G Am. Rep. 194; see further, note x to sub. 42 of sec. 384.) "Any object in, upon or near the travelled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of travelling tliereon, or which, from its nature and ])o8ition, would be likely to produce that result, would generally constitute a defect in the 1 ii-':- way." [Per Carpenter, J., in Ihicison v. Xtw Hacen, 34 Conn. l-4<)./ in England it is held that the public are to l)e restricted to the use of the travelled Avay. "Although tht" highway be of varying and une(pial width between fences on each nide, the right of pasaage or way, prima facie, and unless there be evidence to the contrary, extemls to the whole sj)ace between the fences, and the public are entitled to the use of the entire of it as the highway, and are not confined to the parts which may be metalled or kept in repair for the more convenient use of carriages or ioot passengers, " {Per Martin, B., in T/ie Queen v. The United Kim/dom Teleijraph Co., 3 F. & F. 74; see also Con. Stat. U. C. cap. 49, s. 104, and TutiU v. West Ham Local Board of Health, L. R. 8 C. P. 447.) A different rule prevails in the United States. (Tisdalew Norton, 8 Met. 388; Smith v. Wendell, 7 Cush. 498; Shepherdonv. Colerain, 13 Met. 5;"); Kellogg v. Northampton, 4 Gray, 6;'); s. c, 8 Gray, 504; Howard v. North Bridgewater, 16 Rick. 189; Haydenv. Aitleborough, 7 Gray, 338; Coggswell v. Lexington, 4 Cush. 307; Sparhawh \. Salem, 1 Allen, 30; Richards v. Enfield, 13 Gray, .'544; tioicell V. Lowell, 7 Gray, 100; Keith v. Easton, 2 Alleii, S.'ii ; Campbell v. Jia--e, 7 Cush. 408. ) The duty to keep the road in repair extends as mucli to sidewalks for the use of pedestrians as to the travelled way for the use of carriages. (Bacon v. Boston, 3 Cush. 174: Lowellv. SimHlding,iCnsh. 277; Diuk^w Lowell, ISMet. 292; Hart V. BrooJcltjn, 3(5 Barb. 22G; Kirby v. Bo;ilfton Mar/ctt Associa- tion, 14 Gray, 249; Manchester v. Hartford, 30Con-.i. 118; Hubbard V. C'o7ico?-(/, 3.")N. H. .^14.) Soto street crossings, (Ua-jmondv. LoweV, GCush. 524;C'oo»j65v. Purrington, 42Me. 332; B.ihrv. Savage, 45N. Y. 191.) But it is not a duty to plank from each man's house across a ditch to the street, and keep such ])lank8 in rejtair. (McCarthy v. Oahawa, 19 U. C. Q. B. Jio. ) Corporations of 'I'owniships may pass By-laws setting apart so nui'di of any highway as they deem neces- sary for the ])ur))oses of a footpath, and I'revent persons travelling thereon on horseback or in vclmles. (Sec. 4-H, sub. 4; but see Peck V. Batavia, 32 Barb. G34.) vShould a railing or other harrier b^' necessary to tlie safety of passengers, it may be held to be the duty of the Corporation to provide the same. { Williams v. Clinton, 28 ("onn. 2G4; Tolland v. Wellington, 26 Conn. 578; Palmer v. Andovcr, 2 Cush. GOO; Rowdl v. Loivell, 7 Gray, 100; Jones v. Wallham, 4 (]uah. 299; Alger \. Lowell, 3 Allen, 402; Burnhan:, v. Boston, 10 AUen, 290, Stinson v. Gardiner, 42 Me. 248; Dohcrty v. Wallham, 4 Gray, 596; Davis v. Hill,4\ N. H. 329; Hayden v. Aitleborough, 7 (iray, 338; Btf^dell v. Portland, 39 Me. 113; Loker v. Damon, 17 Pick. 284; Drury \. Worcester, 2! Rick. '14; State v. (7or/ii'i//e, 43 Me. 427, Bowman v. Boston, 5 Cush. i; Kellogg v. Northampton, 8 9. 409.] REPAIRING ROADS. 4or. 30" ; 344; (iray, 504.) But the duty is not an absolute one. {IVibon v. Hal'ifa.c, L. U. 3 Ex. 114; aeu idso Cunt well v. Metropolitan Vom- iiiuvoneraof SexH'rs, 10 Ex. 771; V rafter y. Mitropolitun RnUway Co., L. It. I C. P. 'md;Sparhawh v. Ai^/;;, 1 Allen, 30; Marphj v. (7/o/(- cesler, 105 Mass. 470; Nehraakaw. CaiupM.l/lMlMik. oOO; Chlra. ) Allowing snow to lie on a niacadaniized road doe.s not, as a general rule, come under the idea of allowing a road to be out of repair. (Stunart v. Wooddock and J/urun Jioivl Co., 15 U. C. {^. B. 427.) There is no such thing as an alisolntc right against Hi-j act of r.t even in the case of snow o'' ice, it is for a jury to say, under the particular circum.stancea of the place, season, &c., if the iion-renioval was non-repair. {(.'(inweU v. ,\'t. Man/'s, ii-c. Road Co., 2S U. C. Q. B. '->47.) In I'rovldenrc v. Cuipp, 17 How. (U. S. ) 1(51, the Court held that after a fall of snow it was the duty of the City to n^a ordinary care and diligence to restorer tlie walk to a reasonably safe and convenient state, and that it was for the jury to lind whi'tiier it was in such state or not. Mr. Justice Nelson, iu delivering judgni nt, said, "The juat rule of responsibility, and the one we think prc-cribed by the statute, whctiier the obstruction bo by snow or any other material, is tlie removal or abatement necessary, no as to render the highway, street or sidewalk at all times safe .lud convenient, regard being had to its localitv and uses." Ciiee Jlorton V. Ipsirk-h, l'2'Cusli. \^^; l.ohr x. lirool-lhi", 13 I'ick. .343; Hall v. Lou-ell, lOCush 'JGO; Am. Law Reg. (N.S.).383; PronV/cnce v. Clapp, 17How. (U.S.) IGl; Gree)t. V. Danhii, 12 Vt. 33S; Tri]>p v. Li/mnn, 37 Me. 250; Savaijey. JJamjor, 40 Me. 170 ; Huhhard v. Concord, 35 N. H. .52 ; Tb. 74 ; 'llall v. Man- chester, 40 N. H. 410; Billimj.'^y. Worcester, 102 Mass. 320; s. c, 3 Am. Rep. 4(!0.) The mere fact that a iiighway is slippery from ice upon it, so that a person may be liable to sliji and fall upon it while using ordinary cari, if the way is properly and well constracted,. and there is no such accumulation of ic; or snow as to constitute an obsttuc- tion, and nothing in the constructitn or shape of the way which occasions any special liability to formation ov accumulation of ice upon it. is not a defect or want of repair which will authorize a jury to find that it i.3 not safe or convenient for travellers, &c. {Stanton V. Sprbi'jfitld, 12 Allen, 506.) The doctrine jf this case; hr.s been affinned in John.<, 9 MJ. ICO ; Street v. Ilohjoke, 105 Mass. 82; s. c. 7 Am. Rep. rm.\ "In the case before u.s the question was wlietlii'r there was such evidence of non-repair that the jury might reasonably .and pr()i>erJy conclude tliat there was negligence in tlie Corporation not havin,; had removed the piece of frozen snow or ice complained of, and that, without any want of reasonable and ordinary care upon the part of the plaintitl', the accident could and did happen, fcc. (I'cr (xwyn)\e, .J., in Illmjland v. Toronto, '-'3 U. C. ('. I'. KM). Jn .actiona for sli])ping on a sidewalk, evidence that othera had met witl) accidents lit the same place was Iveld inadmib^siblc. [llubtiard v. Voncord, 3.") N. H. o'J; VoU'ina v. Don'hcstar, G Cus)>. .SDO; Aldrkh V. Pelhain, I (iray, r>10.) The following may be mentioned as a few from the many cases as to wliat have been held to be i>artioular defects or want of repair: — A pile ol atones [Forinnanv. Canlcybury, L. it. G Q. B. 214; BifH'lowY. [Veston, 3 Pick. 287; Smiihv. WewMI. 7 Cush. 49S ; sticks of timber, logs, Sic. [Hprimjer v. Bowdoinham, 7 Me. 442 ; Snow v. Adams, 1 Cush. 443 ; Johnson v. WhUcJicld, 1 S Me. 286 ; Davis v. Bangor, 42 Me. .')22); jiosts {Soulc v. Grand Trunk Ra'd- way Co., 21 TJ. C. C. P. 308 ; Coij'jsivdl v. Lexington, 4 Cush. 307; sou further, Jlay v. Manchester, 4G -N H. 59) ; holes or excavations {Rccd V. Northjield, 13 Pick. i)4 ; Congrcve v. Morgan, 5 JJuer, 495 ; Dohcrty V. >faWui )7i, 4 'J ray, 5<)G; Willardv. Kewbury, 22 Vt. 458; Batty y. Duxbi ry, 2t Vt. 155; Murphy v. Gloucester. 105 Mass. 470; Ghenn v. Prov'' wtoLcn, lb. 313) ; loose planks, projections, or other inequalities of Burfrtce {Irwin v. Bridford, 22 U. C. C. P. 19, 421 ; Hall v. Man- chester, 40 N.K. 410; Winn v. Lowell, 1 Allen, 177; liai/niond v. Loicclt, 6Cush.524; Iiubbarilv.Concord,35'i^.U.5'2; Smithv. WendelllCmh. 498 ; Lacon v. Page, 48 111. 499). Any object upon or near the travelled ■way, which in its ni\turc is calculated t j frighten 1101.308 of ordinary gentleness, may be iicld, under some 'circumstances, to constitute a defect in the way itself. {Morse v. Richmond, 41 Vt. 435; Cham- berlain v. Engfield, 43 N. H. 356 ; Winship v. Enfield, 42 N. H. 197. Lund V. Tyngshoro', 11 Cush. 5G3; Dimock v. Sujfield, 30 Conn. 129; but sec Horton v. Taunton, 97 Mass. 20G; Kingsbury \. Bed- ham, 13 Allen, 18G ; Cook v. Charlestown, lb. 190, n. ; Keith v. EaMon, 2 Allen, 552; see also Corby v. i/i//, 4 C. B. N. S. 55G; Pickard v. Stnith, 10 C. B. N. S. 470 ; Soule v. Grand Trunk Ji. Co., 21 U. C. C. P. 308; Vars v. Grand Trunk P. Co., 23 U. C. C. p. 143.) The onus is on the plaintiff to give affirmative evidtince of negligence. {Lester v. Pittsford, 7 Vt. 158; Perkins v, Concord. Railway Co., 44 N. H. 223.) The jury are not to infer a. defect on a highway at a particular time and place merely from the fact that an injury was sustained at that time and place. {Church V. Cherryfield, 33 Me. 4G0; Shev an v. Kortright, 52 Barb. 267; Collins V. Dorchester, GCush. 39G; PaciartZ v. New Bedford, 9 Alleu. 200; Calkins V. Hartford, 33 Conn. 57; but see Kearney v. London, Brighton, d-c. Railway Co., L, R. 5Q. B. 411 ; s. c. L. R. 6 Q. B. 759.) If the evidence is as consistent with the absence a« with the presence of negligence, the plaintiti' is not entitled to rejover. (Deverill v. Qrar.d Trunk Railway Co., 25 U. C. Q. B. SI/; see ako Cottony. Wood, 8 C. B. N. S. 568; Toomey v. .London, Brighton, ^-c. Railway Co., 3 C. B. N. H. 146; Cornman v. Eastern Counties Railway Co., 4 H. & N. 781 ; Crafter v. Metropolitan Railway Co., L. R. 1 C. P. SCO ; Jackson v. Hyde, 28 U. C. Q. B. 294 ; Henderson v. Barnes, 32 U. C. Q. B. 176.) Negligence ia want of care, A corporate body 409.] REPAIRING liOADS. 405 never can either take care rtr neglect to take care except througli its servants. If such a body, hy its servants, have the nieaiia of know- ledge that a highway is unfit for travel, ami are negligently ignorant of it3 Btate, they arc guilty of negligence. (See Jttrsey Dock II. Co. T. I'enf allow, 7 H. & N. iV-'iJ ; a. c. L. R. 1 H. L. Cases, 93 ; see also Thompson v. AWth Ea.^tei-n liailwai/ Co., 3 L. T. N. S. 618; Stib- marine Telegraph Co. v. Dickson, 15 C. B. N. S. llS\i.) It ia no defence that they appointed a proper Overseer of Highways and gavo him means and authority to keep the road in good order. The Municipal Corporation arc, as it were, themselves the overseei-s of the highway, and on this prinei])lc bound to keep it in repair. Tliey have noi only the duty thrown expressly iqion them of keeping higliwaya in repair, but have all necessary powers given to them for enabling them to perform that duty. Tlie Corporation must at tueir peril answer for th'j conscfjucnces of the duty not being performed. The negligence of their ulhcers or servants is no answer. [Per Robinson, C. J., in Colbcck v. Bmntford, 21 L'. C. Q. B. 276.) Nor is it any excuse that tlio alleged defect arose from the necessary repairs of the highway ; for in such a case there should bo a light or other sigtial to warn travellers of existing danger in the use of tlie way. (Bhifa'o V. HalloKai), 3 Sold. 41»3; Ilulsoii v. Xno }'or/:, 1» >'. Y. 163; Storrc< '^ Utica, 17 N. Y. 101; Jlilwnidrc v. Dari'<, (5 Wis. 377; Siail/i V. MilwanJccf, 18 Wis. 83; Petthircw v. Emmnllc, 2.") Wis. 223. ) \N'here .1 statutory obligation is imjjosed on a person, he is liable for any injury that arises to other.i in consequence of its having been negli- gantly ])cnformed, and tiiis v.liether it was performed ))y himself or by a contractor employed ])y him. (O'rcnj cl ux. v. Pullni d ai., 5 B. & 8. 970; s.c. , in errcr, P>. 980.) If the defect arise otliciwiso than from faulty structure, and from some act other than the direct con- duct of the defendants or tlieir scrvrvUtB, an; Crijlhi v. Xrw York, 9 N.\'. 456; Varid>ike v. Ctnchinlti, 1 Dcsncy, ;">.32 ; JfcGtJiiti/v. jVao York, 5 Duer, 674 ; 'iturt v. JJrookli/n, 36 Barb. 22(5 ; D'-nrn v." DdroU, 1 .") M ich. 307 ; Prir.fl'e v. Fletcher, 39 Vfc. 257; Ya/e v. llttnipden and Jieik.^Jure Turn- pike Co., 18 Pick. 357; Dari^y. Linnoillr Plank Hand Co., 27 Vt. (502; (Joodnouijhv. Oshkosh, 24 Wis. .')49 ; s.c, 1 Am. Rep. 202; CuUti/v. We.u'hrook, 57 Me. 181 ; s. c, 2 Am. Kep. .30 ; Wfisodterg v. A))pli t(m, 26 \\'i3. 50 ; s. c, 7 Ami, ilep. 30.) Notice may be inferred from tlio notoriety of the defect, and from its contiuuiuic:'' for such a length of time as to load to the presumption that the proper otlicers of the Municipality did in fact know, or with ])rojier care or diligence might have known, of the fact. "TJiis latter is sufiiijcnt, because this degree of care and diligence they are Imund to exercise; and tlicrcforu if, iu point of fact, they do not know of such defect, when by ordinary an In some States of the Union existence of the defect for twenty-four hours (Brady Y. Lowell, 3 Cush. 121), or express notice {Tripp v. Jjynian, 37 Me. 250), is necessary by statute before there can be any right of action against the Corporation. [p) The action is local, and must be brought in the C'ounty wliere the road is situate. (Firyuson v. HovHck, 25 IJ. C. Q. B. 547; Irir'm V. Bradford, 22 L'. C. C'. P. 18.) In such an action it must be niad<; t.> appear that the alleged defect was the direct and proximate cause of tl>r injury. (Adams v. Carlisle, 21 Pick. 14G; May v. Princeton, li Viet. 442; Hoi man \. Townsend, \^ ^Ict. "191 \ Lundw. Tynijsh(/)'o\ 1 1 Cush. 563: Ilortouv. Ipyowich, 12 Cush. 4-S8; Mnrhl^ V. Worcester, 4 (iray, 3!)5 ; TuttU v. Ifolyoke, 6 Gray, 417; Sdckney V. Maidst'ine, 30 Yt. 738; Sears v. Dennis, 1(»5 Mass. 310; Mander- Kchid V. Dabuifw, 29 lo>va, 73.) The obligation to keep in repair id only as against such accidents as are likely to and actually do occur in using a highway f<>r the purpose (tf travel. (Per Barrett, J., in Sykes v. Pawlet, 43 'Vt. 446; s. c., 5 Am. Rep. 29(1 ) If thi^ violence of the horse, acting without guidano or discretion, V^e the imaiediate cause of tlic inimy, th<> CorporiiHou is not liable. (liitss V. Wilbrahaxu 8 Allen, 5G4; Illinois Ventral Jiadroad Co. v. Buckner, 28 Ml. 299; Murdo''!. v. ^yarwick, 4 Gray, 178; lh'nnftt\. Wfllinyton, 15 Mo. 27; P-i^mer v. Amioi^ i\ 'J Cush. GOO; see als,) Marblf v. Worcesltr, 4 (Jray, 395 ; Da>is v. lh< tley, 4 Allen, 557 ; Moiilton V. Sanford, 51 M<' 127. > \Vhei"e % horse, by rea-son of fright, disease or vieu>i«ness, and through no fault of the Corporation, becomos ai-lually uncontroUabhi, so i it his driver cannot stop or direi^t his course, and i« this conditio >u comes upon a defect in the highway, by 'whieK »;i injury is occasioned, the Corporation is not li.xWe, uult«» it be Juadc to appear that it w )uld 409.] RKPAIRING IIOADS. 101 have occurred even if the horse had been under control. (TUnsy. Northhridije, 97 Mass. iJ58. ) So where a liorse in a state of friglit, l)y his uncontrollable force, backed a waggon and liiniself over an embankment. {Ilorton v. Taunton, Ih. '20G; Sykts v. Pcurlif, 43 V't. 4-10; s. c., 5 Am. Rep. 295.) So if the injury bo attributable to any unskilfulness or want of care on the part of the driver, there can bo no recovery. [Flower v. Adam, 2 Taunt. 314; Cassfdy v. Stockbridge, 21 V^t. 391; Peovia Bridi/c As.iocidtion v. Loomii, '20 111. 23'); Alifcr V. Lowell, 3 Allen, 402; 'Stnart v. Machias Port, 48 Me. 477; Cohhv. Shuidhh, 14 Me. 198; Marriott v. Stanley, 1 M. & (J. MB.) " I believe I told the jury that if they thought the plaintilT'a running against the second heap of rubl)is!i was owing to his not being able to manage his horse, thoy should llnd for the dcfemlnnt. But is not this too remote to affect the defemlant in this action ? >lcro is a heap of rubbisli ; the dust arises "rom it ; the horse runs towards a waggon, and the driver, without necessity, tliat is, without the neces- sity of turning his horse so violently as he did, j)ulls him that way. I rather think it is either accident or inaltility of the driver." (I'er Mansfield, C. J., in Flower v. Adam, 2Taunt. 317.) " Tlie immediate and proximate cause is the unskilfulness of the driver." (Per Law- rence, J., in same case.) So if the accident really and R>d)stantially arose by reason of some defect in the plaintilf's waggon, harness, &c. [Jenksv. Wilbraham, 11 Gray, 142; JS'oyes v. ?Ji)rri.sloirn, 1 Vt. 307; Allen V. Hancock, 1(5 Yt. 230; nhjelow v. Putland, 4 Cush. 247; Moore X. Abbot, 32 Me. 40; Farrar v. Greene, /b. r)74; sec al.so Clark V. Barringlon, 41 N. H. 44; Tucker v. Ilennccker, P). 317; Winship v. Enjicld, 42 N. H. 197; Palmer v. Andover, 2 Cush. GOO; Hunt v. Pownall, 9 Vt. 411.) So if it be shoMii that the plaintiff in any manner, by his own want of care, directly contrilmted to the happening of the accident. (Butter field v. Fi>rre.. & K. 719 ; Baker v. Portland, 08 Me. 199; s. 0., 4 Am. Rep". 274; Tufy. Warman, 2 C. B. N. S. 74<); s, c, 5 C. B. N. S. 573; Witherley v. RegrnCs Canal Co., 12 C. B. N. S. 2; Bradley v. Broiun et al., 32 'U. C. Q. B. 403.) The rule operates also in the case of children of tender ago. {Manrjan v. At/erton, L. R. 1 Ex. 239 ; Singleton v. Eastern Cennilies Railway Co.,"! C. B. N. S. 287.) The question of contributory negligence arises when both parties .are substantially at fault, and when the fault of each ct)ntributes to the disaster. {Per Cleasby, B., in Gee v. Metro]>oHtan Railway Co., L. R. 8 Q. B. 177. ) If there be no dispute as to the fact, the question of con- tributory negligence becomes a question of law, and the Court may properly nonsuit. ( Wincklery. Great Western R'iilwayCo., 18 L'.C.C.P. 'i.W, 202; Nirholls v. Great Western Railway Co., 27 U.C. Q. B. 382; Rastrick V. Great Western Railway Co., Ih. 390; see also Bridges v. The X'lrth Londm Railway Co., L. R. Q. B. 'Sll ; Belljontaine Rail- road Co. y. Hunter, 33 In'd. 335; a. c, 5 Am. Hep. 201 ; Adams y. Lancashire ami Yorkshire lUiVwtvi Co., L. R. 4 C. 1*. 739; Gee v. Metnipulitan Railway Co., L. R. 8 Q. B. 177; Cornish v. Toronto Street Railn-ay Co., V . C. C. P. M. T. 1873.) It is not such negligence as to prevent r recovery, tliat (he traveller did not know the road, and yet proi'ceded on a dark night. ( WiUitims v. Clinton, 28 Conn. 204.) So driving in a vii>lent storm through the streets of a city with which the driver w*' wiacquauiud, was held not of itself to be such negli- 408 THE MUNICIPAL MANUAL. [3. 409. I.lmltatlon tif ;icliuMh. pei*sou by reason of such default, (q) but tlie action must be gonce as to prevent recovery by him for injuries sustained tlirough tlefcct in the Ktreet. (MUwtiuhve v. DavU, Wis. 377.) Beinf; blind, lialt or deaf i.i not pT sc it be taken as evidence of conti-il)utory negligence. All persons, however blind, halt or deaf, have a right to act on the asnumption that the highway is reasonably safe. ( Daven- port V. Itarknvm, 07 N. Y. TjliS; licnwkk v. New York Central JiaUro'xd Co., :!(> N. Y. 133.) "The streets and sidewalks are for the benefit of all conditions of people ; and all h.ave the right, in using tlmm, to assume tliat thoy are in good condition, and to regu- late their conduct upon that assumption. A person may Avalk or drive in the darknos". of the night, relying upon the belief that the (Jorporatiou has jjerformed its ort v. Jiuchman, 37 N. Y. 57.3.) It is not, however, too much to aak of persons of defective sight greater care than is required of persons free from such indrmity. ( Winn v. Lowell, 1 Allen, 177; see also Bridrfes v. Xnrth London Railway Co., L. R. 6 Q. ii. 377, 397.) No person is requireil to have ^'i^i'fect vision, or to be vigilant in the discovery of defects which ought not to exist. [TJiornpf^on v. Bridgcwater, 7 Tick. 188.) No ])crson is in fault in neglectiug t(» obs'Tve and avniil a defect not so plain and obvious as to be necos- sarily observable by one in tho possession of onlinarv faculties, travel- liag at an ordinary pace. {Cou: v. Wesfcficstcr Turnpike Co., 33 Barb. 414; Frost V. WaUfiam, 12 Allen, 85.) The fa.J that the traveller knew the dxuigcr, or was familiar with the road, is a cLrcuDastaneo to b?- considered in determining t!ie question whether the plaintitV con- tributed by his own want of care to the accident. {Clnj/nrd^i v. North field, 13 rick 94; lIuiHjAreys Jht'tlrk, 12. Q B. 439; Heed. v. V. Armstrong Count J/, 56 Penn. St. 204; Smith v. Lowell, (5 Allen, 39; Snowx. Iloitmtonic Bnilroad Co., 8 Allen. 441 ; Fro-it v. Wal- tham, 12 Allen, 85; Clark v. Lorkport, 49 Barb. 5S(); Whiitaker v. WeM BoiileMon, 97 ilnss. 273; Fo.c v. Sacketf, 10 Allen, 535.) Such knowledge in some cases has been held sutJicient to raise a ]jrcsump- tion of negligence on plaintiiY's p.art, so as to require evidence to negative the presumption. Fox v. Glnsteahury, 29 Conn. 204 ; Folsom V. f/'»(/(??7i;//, 3(5 Vt. 5S0; Wibionv. Charle.'^town, 8 Allen, 137; Jacobs V. Bangor, 10 Me. 187; Jlanlonv. Keokuk, 7 Iowa, 477; Brown v. Ji'fferi^on, 10 Iowa, 3"9; Smith v. Lowell, f) Allen, 39; WiUm v. Charlestown, 8 Allen, 137; Ilortonv. Ipswich, 12 Cush. 43L. ; James V. San Francisco G Cal. 528.) Contributory negligence is not an answer to an indictment for manslaughter, in Avhich the Queen, as representing tlie nation, is plaintiti". (The Queen v. Kewetai, 12 Cox. C. C. 355.) ((/) The question of the measure of damages is one that has pro- duced more diliiculty than perhaps any other branch of the law. 409. S. 409.] DAMAGES FOIl ACCIDENTS OX llOADS. brouglit witliiu thrco moutlis after the damages have been 409 (Per Wili'c, B., in i)ly eipmlly to imimals, goodfct and paBsonr,'crs. l.)amaj;cB in such a case must be left to the connnon sense of the jurj', assisted l)y the presiding . fudge. "' {Per Mellor, J., in Fair v. Low/on and yortli Western Rn'diraii Co., L'l L.T. ]!ep. 32(3; see also Cullini^ v. CounrU lUnp, .TJ Iowa, 3'J4, 7 Am. il(:l>. •_'()(); C/iicago v. Lmiejlasa, 4 Am. JJep. (iOS; Cliiouio v. Martin, 49 11). '211.) "it would be most unjust if, whenever an acciilcnt occurs, juries were to visit the unfortunate cause of it with tlie utmost finiount that tliey thinlc an e(iui\al(jnt fiir tlie nuschicf done. . . . Scarcely any sum would eom})c:i?;itc a labnurin,!:^ man for the loss of a limb ; yet you An not, in such a ease, give him enough to maintain him for life." (/-*('/• Parke, B., in A un.stcorth v. Suuth J'Javtcrn RnHwuj Co., 1 1 Jur. 700, cited in 18 Q. B. 104.) " U is very true that cases sometimes occur in which a jury, being over-anxious to fully com- pensate a party, give damages so great as to induce the Couit to interfere. In the great majority of cases, lu«wever, I am satisfied with tlie common sense views upon which they act." (Per Cockburn, O.J., in Fair V. London and North Wenfern Jiaihray Co., 21 L. T. Hop. 327.) The rule i.s that the damages should be such as to fur- nish a rei'.nonabln, coinpenrntion for the injury sustained. (('hiray tlie accident; second, the injury he sustains in his jierson, or his physical capacity for enjoying life. When they come to the conni- iloration of pecuniary loss, they have to take into account not only his jircscnt losp, Init his incapacity to earn a future improved income. Then as to the second ground; r.iidoulitcdly healtli is tlie greatest cf all plr,-sical blessings, and to say that when it is utterly shattered no compensation is to be made for it, is really jierfectly extravagant. (Pfr Cooklnirn, C. J., hi Fair \. London and North Western Poilwaii Co., 21 L. T. N. H. .727.) There is no limitation by this statute .-^.s to the amount, or the tlenicnts for consideration in estimating the amount. In Maine a person can recover only for '" bodily injury " or "damairo to propertv." (Week.-: x. Shirlei/, 33 Me. 271; Verrill V. ^Ptnot, .31 Me. 2!)S); Jfnson v. E!l;} ; JJdUon V. South Eastern IMlwai/ Co., 4 C. H. N. S. 'Jl}(5 ; Pijm. v. (hrat Xorthcrn liaUivmi Co., 2 B. & S. 7r>'J; s. e. 4 li. & S.' S'JIi; .SV<-(j»vi( V. (/;•('«< Wcdfrn Railmiii Co., 15 I J. C". Q. U. (iin-, .l/.y;7''y/ v. (In'nt Wi'Mern /tailirai/ Co., 1(5 U. ('. i^. B. T)!)!; PenrMijIrnnhi liaUroad Co. V. MdHoshni, '2;]'l'enn. St. .">-'») ; <,>»;« v. ilfo';;r, 1.") N. Y. 4.32; Lura.'i V. New York, 21 l'arl>. 24.1; Hmford v. Drew, ',\ Duor. (i27 ; >V(>«/e V. jVtfr York Jiallrodd, 24 Conn. STo; Jioiclei/ v. London and North Wentirn Jiailwiuj Co., L. K. 8 Ex. 221 ; Johmon v. Jlndtson Hiver Railroad Co., <> Ducr. G.^l, G48. 'i'hc Corpora- tion cannot claim to have deducted the amount of an aceiilcut ])oliey {flardimj v. Townnhcnd, 4,'i Vt. 53(5; s. c. 5 Am. ILcp. ;U)4; Al.tUorf V. Wolfe, 2 Hilton (N. Y.), 344, atlirmcd 22 N. Y. I»t55; sec also Yates \. 117////^, 4 Bing. (N. C.)272; Hunter v. Kiruj, 4 B. &, Al. 2()i)) ; but has a remedy over against the private person whf) so used the highway as to cause tlie defect. (Chicaijo v. JM)iHs, 2 Black. 418; Rohhins v. Chicar/o, 4 Wallace, (557; Phienixvillev. Pluenix Iron ''cj., 45 LVnn. St. 135; Raymond v. Lowell, 6 Cush. 524; kS'c.«io)w V. Newport, 23 Vt. 9 ; Pochard v. New Bedford, 9 Allen, 200. ) If tliere be fault not only on tlio part of the private person but of the (.Cor- poration, there is no remedy, as there is no compenaatiou among wrong-doers. (Chicayox. Rohhin>i, 2 Black. 418; Buffalo v. Jlollowatj, 14 Barb. 101; s. c. 7 N. Y. 493; but see Littleton v. Richardson, 34 N. H. 179 ; Boston v. ]Vorthinr/tun, 10 Gray, 49G.) In several of the New England States a recovery over is given by statute. (See Lowell v. Short, 4 Cush. 275; Milt'ord v. Ilolbrook, 9 Allen, 17; Lowell v. Boston and Lowell Railroad Co., 23 Pick. 24; Win'ihip V. Enjidd, 42 N. H. 197; Hooksctt v. Amoske.orj Co., 4-i N. H. 105; Monmouth V. Gardiner, 35 Me. 247; Patterson v. Cole- brook, 9 Foster, 94; Vcaziex. Penobscot Railroad Co., 49 yie. 119.) In the State of Maine, a person travelling on Sunday, unless io: charity or necessity, so far violates the law tliat ho cannot maintain an action for injuries sustained on that day by non-i"epair of a liighM'ay. (Hlnckleii v. Penobscot, 42 Me. 81.) No distmction, in such case, ia made between those who travel within the Corporation limits and those who travel from Townsliip to Township. ( Tillock v. Wabh, 56 Me. 100. ) .A. person walking on Sunday to make a visit of pleasure to the house of a friend, and so sustaining an injury, was held not entitled to sue. (Cratty v. Bawjor, 57 Me. 423; s. c. 2 Am. Rep. 56.) (r) The limitation as to throe months applies only to acts of omis- sion, i.e. non-repair (Rowe v. Leeds and Gre.nville, 13 U. C.C. T. 515), not to acts of commission, as the negligent placing of gravel on the sides of the road and taking no precaution to prevent persons passing along the road from running against these heaps, whereby a person so driving might run ag.ainst the heaps and be thereby injured. .) The damage wa.s not the les3 becauao he did not at tho time know its full extent, (//j. ) (,t) This proviso does not apply to vrvla laid out l>y the flovorn- inent, and afterwards abandoned to 'ne Munieipalitie.e. (Irit:'ni v. Bmilfurd, 22 IJ. C. C. P. 18. ) All the Legislature meant by it is that the merely laying out of a road or tlie building of a hridge by privato owners shall not thereby cast a erimuial and civil responsibility on the Municipality, or on the public re])rcHeiited hy them. "It is very easy to imagine eases where such a provision should most properly apply, especially in a country where such large open spaces are included in town and city limits— in some cases containing tracts of land in their original state. A landholder might, merely for his personal convenience, stake out half-a-mile of road througli lii.i land, cleared or uncleared, and declare that he dedieatetl it to tho pul>he. Such a proceeding, by itself, should not render the Muni- cipality liable. But after this is done, and for a long series of years tho public {alias the Municipality) use the roail 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 ; repairs are regularly done to it every year by the road officers out of public moneys; — it vrould then, I think, be an unparalleled state of the law if it lie in the mouth of the Munici- pality to declare that they are under no responsiljility." {I'er Hagarty, C. J., in The qlmn v. Yorkrille, 22 U. C. C. P. 4.'^1, 439.) "The adoption of a road by the parish is no more than the use of it by the public." (The Kimj v. Leake, .'5 B. & Ad. 48-1.) If the road be used hy the pul)lic, tho parish must repair it, although neither the dedication nor the u.ser has been adopted or acquiesced in by the i)arish. {Ih. 4(19; see also The Kinq v. Lyon, 5 D. & W. 497; The Queen v. Newlwld, 19 L. T. N. S. ()^A\ ; Faremanv. Canterbury, L. R. 6 Q. B. 214.) If a'Municipal Corpr>ration liave created a street as a public street, taking charge of it and regulating it as other streetft in the Municipality, they cannot be allowed, when sued for an injuiy arising out of their negligence by one f)f the public, to repudiate their liability. {Mai/or, etc. v. Sheffield, 4 Wall. 189; sec also Lncin v. Jlnid- ford, 22 U. C. i". P. 18 ; s. c. lb. 421 . ) Work done by pro})er authority to repair roads used as highways, when no evidence of their establish- ment under statute nor other evidence of acceptance is shown, haa sa, a^. v \ IMAGE EVALUATION TEST TARGET (MT-3) /. I // mP ^< fA 1.0 I.I ;miim i^ ' iiU IIP 2.0 1.8 1.25 1.4 1.6 < 6" - ► V]

    o A y^ '^ / Photographic Sciences Corporation 23 WEST MAIN bTREET WEBSTER, N.Y. 14580 (716)872-4503 k '^% >^ 412 THE MUKICIPAL MANUAL. [s. 410. JiirisiliiiUon (if (Miiiiity over r'jacl'i mill briili'i'S. What are County Roads, 410. The County Council shall have exclusivo jurisdic- tion {t) over all roads and bridges lying within any Town repeatedly, in tlie ITnited States, 1)ccn held sufTicient to authoriza tlio iiifcie'ico of aoceiitancn hy tluj constituted public autlioritiea. (Marciiw Tai/loi; 1!) ill. QU; Fol.'^omv. Uiutrrhill, 3G Vt. 5S0; Ntaie V. Atlurtxi, U; N. 11. 'J0:{; Pvople v. Joms, 6 Mich. 17G; Alvord v. Ashley, 17 111. 3GS; ('ui>imt>nwciilih v. Belding, l.T Met. 10; 6';vf« v. Caiiuan, '21> Cunii. I."; nutlirk v. Nt-.w llavni, .11 (^oun. 30S.) Though the rule is not uiiifumily reoo;:;ni,',ed in the United States, it ia ln'Iieved t!iat t'le •'■•!) .'Ut aad prevailing current of authorities su]ip<>rt it. {CurtU.i V ' . v:', 1!» Cn-.Hi. ir.4 1 (iy ; Balrrv. Clark. 4 N. 11. 380 ; StaU Xudd, 3 iM.st." 3:27; Cole. v. S'proid, 35 Me. ifil ; Prople v. Urnubkn, 'J Dou^'. 1!.?J '.H« State, v. CulUn, 3 Vt. MO; J/arcy v. Taylor, 19 111. 631; i?(»,'. ■. Stale, 10 Ind. 451; Morse v. A'awwo, 32 Vt. 600; Iloldam V. C r, ..•.■«./, 21 N. Y. 474 ; Gin/iine v. ;/(»)/; Dan\eU v.J\opk,2l ' 'a. -i'.Vj ; JI()!da)iev. CvldS/>rhig,2HBa,r]). 11)3; Jennirnj^ v. Tiilitini, 5 (in.,-, 73; RunncU v. j.Vi'ir York Cauiral Jiniiroad Co., '2G Barb. 4.30; //<(//.< v. *S7ri/f', 8 Ind. 425; State v. Hill, 10 Ind. 219; Smith v. /SVnV, 3 Zabr. 130; State v. Sartor, 2 Stro. GO; .SVa.'e v. Atherton, IG N. H. 202.) It i;( doubtless within tlie )>ower of Muni- cipal Councils to c'o.sc up or by proper action refuse to accept Jiijihwavs catablislicd by dedication; so that it is inipossil.do for landow iicrs to force u])on the public roads not neces.sary for public convenience. >Such as are necessai'y the public ought to repair. (Per lieck, J., in Matuirschid v. Dabuquc, 2iJ Iowa, 73; 8. c, 4 Ain. Rep. 19G.) (C) It is by section 405 enacted that the i>oU and freehold of every l.'igliway or road, altered, amended or laid out according to law, shall he vested in Her Mn jeaty, her heirs and successors. It is by section 407 enacted that erern P'd>'i<' road, .if reef, bridge or other highway (not saying soil or freelmld), in a Citj', Township, Town or Incorpo- rated Village, shall bo vested in the Municipality, subject to any rights in thf .vtil which the individuals who laid out such road, street, bridge or highway reserved. It is, by the section here annotated, enacted that the County Council shall have exeJunive jurisdiction over the roads and bridges )nenti()ned, which may include i-oads and bridges such as mentioned in sections 405 and 407. The Editor endeavoured, in note g to secti(»n 405, to reconcile sections 405 and 407. It is now necessary to reconcile tUo eectiou under couaidera- tion with those c^ctions. The section under consideration, it will be observed, omits all reference to " the soil and freeliold," as provided for in sections 405 and 407, and omits the use of the word "vest," as used in the latter section. I*^^ simply declares that as to the roads and ])ridge., ijitended, the County (Council (not Corporation) shall have exclusive jurisdic- Hon. The reasini which probably led the Legislature to confer the exclusive jurisdiction upon Counties over County roads and bridges, without vesting the soil or property of them in the Counties, was, that the Ct»unty has no i)eculiar or exclusive locality constituting the County, apart from the separate Municipalities which compoao it ; . 410.] COUNTY KOADS. 413 all 405 attor 'iOll, .vl'tc- or Village of the County, and which the Coum^il hv By-law assumes, with the assent of such Town or Village Rlunici- pality, asaCounty road or hridjrc, until the J'.y-law has been a-id it might seem inconsistent, after vostinR evcrv public roatl, Btrcet, briftj^e or other highway, iu a Cily, Tuwusliij), Vown or Incor- j)orater VilLiije of tlic County which the County Council, with Die assat of sucl« i'.cvn or Village .Municii)ulitv, assumes as a County road. (See 7'tr .luhn Wiiaon, J., in The Queen v. Louth, lA U. C. C. I'. Cdo G18.) The section hero annotated, belore the amendment of \.\nt session npi)li< il only to roads or briil;;;cr, within Towiiphips. (/'u- Dunis, J., in .S''. (.Ii-vrgva Church V. (''ri;/, '21 \'. C. Q. H. '-'(Jo.) Ah to those, tlicre was power to assume them with or without tlie ass.nt of the I'owii'hip Muni- cipality. The section is now .-.o aiamdeil as to omit 'i'i>w!iHhi]j.s, and to pi'ovido for tlie aeaunii)t!{ui of roaus and bri(l;,'e.i in To.v is or Villa;,'e3 as County I'oads or bridges, with the assent of the Town or Villa^'c Municipality. The exclusive jurisdiction is conferred as to the ' ''owing roada and bridges : 1. All roads and bridges lying v'l/i'm an)' To\n) or Village of thj County, (ind whii'li the Council of the County, with the assent of the local .Municipality, assumes as a County road or bridp-. 2. All bridges across streams sejiarating two Townshi[« iu the County. 3. All bridges crossing rivers over one hundred feet in width, within the limits of any Incorporated \'illage in the ('ounty, and connecting any highway leading through the Coiuity. (See note c to see. 41*2.) 4. Every roatl or bridge dinding diiTcrcnt Townships, ahlHngh •ucli road or bridge may so deviate as in somo places to lie whj'ily or in part within one Township. It is not necessary that the road between Townships should '^onsist of original allowances only. Such a road may be .acquired by pur- chase or dedication, as in other cases ; an)y liy-law, any road -I' bridge within a Township as a County road or bridge, the Council shall, with as little delay as i-easonably may be, and at the expense of the County, cause the road to be planked, gravell(>d or macadamized, or the bridge to bo built in a good and .substantial manner ; (6) and further. («) Held not applioable to ro.ids ac(iuire(l by the C(>uiity Council by purchase. (7V/c V"«'" v. Ptrth, V. C. C. P. M. T., 18?2.) The dociHion of the CJoniinon l'le;vs in The Quren v. Perth, tijough followeil, waa not conli.^Uy acciuiesfcd in by the Queen's licnoh in Ifarkinq v. Perth, U. C;. Q. B. E. T., 1873. Tho latter case Ijas been appealed to the Court of Error anil Appeal. (i') Sec note s to sec. 410. (a) By Township boundary line, here mentioned, is intended a road which forms tlio boundary line of a Township or boundary line between Townships. Such a ro.ad may also be the boundary Une of a County or a boundary line between Counties. In either event tho County Council may do one of two things — assume, make and maintain it, or grant money from time to time for the purpose of m.aking or maintaining it. (6) Power is often conferred on Municipal Councils without the imposition of a duty, in which case the exercise of the power is discretionaryi (See In re Weston (J ram mar School, 13 U. C. C. P. 4*23; Bdl v. Crane, L. R. 8 Q. li. 481; Hovey v. Mayor, 43 Me. 322: Benjamin v. Wheeler, 8 CJr.ky, 413.) But here the power is subordi- nate to the imiKisition of duty, viz., the Council shall, with a« little delay as possible, &c. (See note b to sub. 46 to sec. 384, " It would seem to be reasonable, when a County Council assumes, by By-law, tho exclusive jurisdiction over any road or bridge lying entirely within a Township as a County road or bridge, that the Council ihould be compelled to improve , 8.413.] nRIDGE.S nniWEEN* MI*NICIPALITIE,«(. 415 the County Council shall causo to be built iiiul maintained ^<:'ii»t<;ti- in like manner all bruti^cs on any river or stream over one tain iii,.i){.ii hundred feet in width within the limits of any Incorimrated '"*'""*•"•'■ Village in the County, nooossary to eonnect any public high- way leading through the County, (r) .37 V. c. lt», s. 19. 413. It shall be the duty of County Councils to erect nnligation of repairing a road or l)ridge 80 assumed on the h)eal Munici{)alitics. (//). h'Xl). "To east the burden upon the special locality, and to make it provide for the whole general advantage, where it has no power or juri.sdietion, and its only privilege is to pay under the dictation of another power, would bo as onerous and unreasonable an obligation as can be well con- ceived," &c. (y'tr Wilson, .1., //;. M7.) Nor has the County, in the absence of express legislation, any power to east upon the local Municipalities the obligation to keep in re{)air a Township roail pur- chased by the County. Tin- (Juroi v. Luiif/i, ]',i V. C. C. I', (ilf); The (Jucenv. Perth, U. C. C. 1'., M. T., 1872; but see siil). o of Bee. 440.) It remains to be observed that the oldigation under this section is cast on tlie County only as regards Township roads assumed as County roads, although the power to asfunie roads in Towns and Villages, with tlie assent of such Towns and \'illages, is now conferred on County Councils. (See note t to a. 410.) (c) The latter part of this section was an addition made to sec, .142 of 20 & 30 Vic. cap. .'»1 . It was added by Stat. (Out. ) U Vic. cap, 30, s. 8. Hefore tlie addition, the County Council could only assume as County roads such roads or li " Iges as were within Townships, and were under no obligatiou to keep in repair any bridge within an lncorj)or.ited Village. Where such a bridge is across a river over one hundred feet in width, and is necessary to connect the parts of any public highw.ay leading through tlie County, the obligation to build and maintain it is abscdutely cast on the County; jiud very properly so, for a bridge so .situated is really a jtart ()f the County road, which by statute is within tlie exclusive juri.sdietion of the County. (Sec. 411 ; see further, sec. 413, and notes thereto.) (ni) A bridge is defined as being any structure of wood, stone, brick or iron, raised over a river, pond or lake for the p.a.ssage of men and animals. (See The (^uccn v. Derlrytihire, 2 (J. H. 74r» ; State v. Gorham, 37 Me. 451 ; Suc.w:r v. Slrnder, 3 Harris (N. J. ), 108. ) The word "bridge" may embrace under its meaning such abutments as are necessary to make the structure accessible and useful. (The King v. West Hiding of York, 7 East. 590; Bard we It v. Jamaica, 15 Vt. 438; Tolland v. Wellington, 26 Conn. 578; CommonweaUh v. 416 THE MUXiriPAL MAKUAt. [s. 413. hridgo nvoi' a rivorformiinf or crn.s.sincf .iboiindarvlinobrtwepn two C'oiiitirs or a ('(Uintv iiiifl » ('ity, sncli l>ri(l;in slmll hn erected and maintained \>y the Councils of the Counties or Drei'fiilil, Allen, 440.) .\ liridgo is Raid to bo .1 mere 8ul)atitutc fur a ferry. (/Vr Savage, v '...'., in J'<('i>lf \'. Sariitinjn cml /,V/;.w At^j- J'(ulrj)^f, Ih. '213; I'l'iijib' v. Cudot r, (5 Hdl. TiKJ); and at coniriion law it wa.s iudispensalile to the legal oliaraeter of the bridge rejiainiMe ly tiio Couatv, tliat it should i»o rfhuwa to eros.s a stream or wati:rcMurie. ('/'//'' kliKj V. Oj-/or,l.>:iy>r,\ I 1). & Ad. '2S'J; Tin; Ki.i;/ v. Sal'>p, 1.'! lJa.it. !(.">; Til)' Kinjw Liiidmii, 14 Ivast. .'JIT; The Kinijv. XortitHHiidon, 2 M. & S. 'Jl)2 ) Hut tlicHo words were held tl. & S. 12()"J; T/ie Ki'tr/v. ,'/v/iu',< of Jiwl-lnij/iniii, 4 Vamp. \H'J; Tlic Khnjy. Dcron, Ky. & M. 14 J; T/ie Queen v. l)i rh!J.^hirc,2Q. J{. 74") 7.')t». ) Wliethor the pa'tieularstruc turo is a briilge or not, if th*;re bo reasonal)lc evi\',i; Slatf V. Canlcrlmrij, 8 Fost. (N. H.) 195; ^SVa^*- v. JJoscaweii, :i2 N. II. .'Wl) ; and in some on Counties ( ir»/.<')/i v. JvjI'crmn, 1.3 luva, ISl ; Freeholders, it-c. v. Siradcr, 3 Harrison, 108). The c nnmcn h.w obligation seems to prevail in Ontario, witli this qualification, that it is cast upon the local Municipality f>r the County accord- ing to tlie nature of the structure, position of the bridge, and other surrounding circumstances, (ifarrold v. Simrou and Onhi- rio, 16 U. C. C. P. 4.3; s. c, in appeal, 18 U. C. C. P. !) ; The Queen v. Vorkdlle, 22 U. C. C. P. 431.) It is hero by this .'•cctinn expressly declared to be the duty of County Councils to erect and maintain bridges over rivers J'ornihfj or croS'timj l)ound!uy lima between two Nfunicipalities in the County, cxoejiting the c.ase of a City or separated Town. (In re Kinnear and Ilaldlmand, 30 V!. C. Q. B. 398. ) The Municipal Council has a discretion as to tlio placo where the bridge should be erected, and must be allowed to some extent to judge of the necessity of such an erection, (lb. ; see also In re Westcott el al. and Peterborough, 33 U. C. Q. B. 280. ) In such a case there can be no mandamus. (lb.; see also State v. Supervisors, 10 Wis. GI3.) Indictment would appear to bo the proper remedy in all cases where a Municipality is charged with the non-repair of a road or bridge. (2'Ae Queen v. Commissionfrs of Llandilo lioads, 2 T. K. 232; The Queen v. Oxford and Whitney Turnpike lioads, \2 A. & E. 427; The Queen v. Haldimand, 20 U. C. Q. B. 674; The Queen ^i^ s. 413.] BRIDGES BETWKKS MUXICIPAMTIES. 41 County and City rcsppctivoly ;(») and in case the Councils of such (Jounty nnd City, or tlio Councils of s\ich Counties fail to iiijreo on thn rospnctivo portions of the cxponso to lio horno by tlin several Municipalities, it sliall he th(! duty of each Council to appoint ArbitratorH, an provided l»y this Act, to V. Brown and Street, 13 V. C. C. 1'. 3r>G; l)ut sec Ifouv v. Crau-ford County, 47 Venn. St. .'{(M ; Thmt v. Mhldl,t»u-n, S ('onn. 1'43; .'iruiuler V. Vhtxtm-fuld Jiistirea, ^\ CaW (\'a. )r)4H; /'in/ilfi v. Super- visur..) A iktsoii .sustaining spoci.il injury, owing to tlie (lefcctivo .state of a liritigc, may sue the Muniei- palitv on whom rests the duty to repair, {/larmlil v. Simroe anil Ontario, lii IT. ('.('. ]'. 43; b. c. 18 U. ('. ('. l>. !»; lUrhnniMn V. liuiiailon and Wooddofk Turnpikf Co., V't. 4!M5; (Jrfijorti v. Adtum, 14 (iray, 'J42; Duijan v. lir'ul'je Co., '11 I'cnn. .St. 303; I'atti rso.' V. KaM liriihjc in lUljai't, 40 Me. 40t.) A bridge n>ay ho 80 constructed over a navigalde river, in the almence of kgi.slativo authority, as to he a puMio nuisance. ( 77«' Kimi v. Went Jiidlnij of YorMiire, '2 East. 342; Ax parte Jennings, <} I'nnn. 518; Arinidil v. AlcCitlloe/i, 10 Mass. 70; Lanximjy. Smith, 4 Wench l)-'24; Thomas V. Ldand, 24 Wond. 05; Philadelphia v. Field, 58 Pa. .St. 320.) But because it may ho a n.iisaneo to those navigating tlie rive r, it does not follow that tliose who do not navigate it can coniplain. ( Fort Plain Iiri) 2l)-30 V. c. 51, s. 341. sub. 12 ; 34 V. c. 30. s. 13; 37 V. c. IG, h. 19. Towtiship Roads, and Maintaining. 414. AH Township boundary lines (7) not assumed by tho County (Council shall bo opened, maintained and iiii proved by tho Township Councils. 29-30 V. c. 51, s. .'Ml. hub. 1. / 415. Townshii* boundary linos forming also the County boundary lines, (r) and not assumed or nminUdued by the roapeclivo ('ounties iutenisted, shall bo iiiuintuinod by tin; respective Townships bordering on the same. 29-30 V. c. 51, s. 341, sub. 7 Roads tender Joint Jurisdiction, J . ,. . 416. In case a road lies wholly or partly between u diction ovor Couuty, Town, City, Township or Incorporated Village, and 'io«!u" '"^ adjoining County or Counties, Town, City, Township, or (o) See sec. 279, (t seq. (p) "Shall be final." See notes to sec. 61 of tho Assessment Act. (q) By "Township boundary line " is probably meant a road fonn- ing a lownahip boundary. This (if not assumed by the Oounty Council) is to })c opened, maintained and improved by the Townblii]! Councils. All roads dividing different Townships are under tlic exclusive jurisdiction of the County Council, whether assumed hy By-law or not. (Sec. 410.) If this section is to be looked upon as e.\tcnding to roads dividing different Townships and so forming a boundary to each, the words "exclusive jurisdiction," as used in sec. 410, are not to be deemed to include any obligation on the County to open, maintain or improve the roads. The object of the section is, as much a*? possible, to relieve Counties of the burden of kcei>ing roads in repair, and throw that burden upon the local Municipalities adjacent thereto. The wisdom of such a policy is doubtful. To cast the burden upon a particular locality of keeping in repair a County road, used by the whole Coimty, seems unfair and unreason- able. (See remarks of Adam Wilson, J., in Rose and Stormonl, 22 U. C. Q. B. 537 ; see further, note ?» to sec. 413.) (r) Roads forming Township boundary lines, when not formiiii: County l)oundary lines, are to be opened, maintained and improved by the Township Councils ; but when forming County boimdary lines they are, unless assumed by the Counties, tu be under the operation of this section, maintained "by the respective Township; bordering on the same." Between the two sections there appeari* to be some distinction without much difference. A different policy prevails as to bridges fonning a boundary line between two Countieu. (See sec. 413.) H. 416.] IIOADS UNDER JOINT JL'UISDICTION. ily Iiuvirporate*! Village, {») tho (!ouncil.< of the MunioipaUtlos between which tho road li«.s Hhall have joint juristlictioii over thu Hamn, (^) although the roaJ luuy so thniatc as iu {a) Tn ciisc a roail lies whulhj or partly lntiiYm a founty, &c., ami nn aining ('oimty, &c. A mail Hituato win illy xrithin n, ( ity. Town, TtiW!i8hip or lncoq)orate(l Vilia^u, is voHtoil in the locjil Muiiici- palitioa. (Sec. 407.) "When, thcicf»)re, tho ilcfend.autj a.>4Kert that tho road in qiication ia a County roml, iirnj)erly con.stituttil sikIi under the jfrovisioiis of the atatute, Ihcy are assertin;.,' that to l»e the co-sc which wo nee couUl not ('c." {Per Hums, .T., in .SV. (Jennjf's Church V. Urty ct al., '21 IJ. ( '. i}. 15. 'J(m 2GS.) Wlien \h a mad t<". he Kaid to lio wholly heXwvtn a County, I'vC. and .".ii ailjoining County, kc.'t l>oc8 the word "between " inc.'^n that the road Htjiarates tho two Municipalities, sf» that a traveller mi^dit go along it being in neither tme Municipality nor the other ? Such was the interpretation given to tho .'Wth section of 12 Vic. cap. HI, in WooU v. Winlworth and llamiUon, (5 U. C C. P. J 01. Ami such appears to be tho interpretation of this Bf^ction. (/Vr Drajjcr, C. J., in Iturrold v. Hiinr.ov and Peel, 18 U. C. C. P. 10.) "When you speak of something lying between two other j)laces or thing.-*, you nuan, in tho accurate use of language, something lying between the boundaries or limits of tho other two places or things something dividing them," &c. (Per Vankoughnet, C , //». 1 r>. ) When i.s a road to b" said to be partly iKjtwcen two Municipalities? This questirm can be best answered by a decidee applied to the road or bridge in regard to tolls or otherwise. {In re Urant and Waterloo, li) IJ. <;. Q. 15. 450; see further, note t to sec. 410.) But the words "duties" and " liabUities," used in aec. 418, may be held to give a more e.\tended meaning to them. If they mean more, so as to render the Corporation liable for neglect to repair, the obligation must be proved as laid. ( Wood v, WenixooHh and Hamilton; G U. C. C. V. 101.) That the words do mean more wonld appear to follow from the deciaion in IlarnAd v. York and Ontario, 16 U. C. C. P. 43; s. c. 18 U. C. C. P. 9, if that case betaken as determining the liabiliticii. und-.r the statute, of the OorporatioDB there aued. 420 THE MUNICIPAL MANLTAL. [sH. 4 1 7- no. Moth conn- rilR lllllst iroticiir ill by-law* rtjipecting Uiuiii. Arliitratinn if ilicy ilo nut cuiiuur. (.'ertnin powers of .lustioi 8 in MesHiiiii.4 tl'llUHfelTlid U) cmiiity eouacllit. some places to bo whoUy or in part within ono or oithor of them, (u) aitd tiin said road shall include a bndi^o foniiin;; part of tho road, (w) 33 V. c. liO, s. 8. 41 Yf No By-law of the Council of any ono of such Muni- ciimliticH, with rcsjwct to any such last mentioned roatl or bridge, (w) slmll have any force until a By-law hiis hor-i) passed in siuuhir tonna, sw nearly as may be, by tho otlirr Council or (Councils havin<» joint jurisdiction in tho prc- roises. (.r) 33 V. c. 2«j, a. U. 418. In ciise tho other Council or Councils, for six months after notice of the Jiy-law, (y) omit to |»jwrovLsion8 of this Act. (;) 33 V. c. 2G, 8. 10. Transfer of Powers of Juslicea in Sessions. 410. All pow(!r3, duties and liabilities which, at any time before tho first day of January, one thousand eiyiit hundred and lifty, belongin<^ to the Magistrati^s in Quarter Sessions, with respect to any particular road or bridrje in a County, and not conferred or imposed upon any other Muni (u) See note a to thia section. (w) Much dilliculty was created owin^ to tho language useil in the section aa formerly framed (21) & ISO Vic. cap. 51, s. 329). It w;i» held, when tho words uaed were '* In case a road or hridgo lies," &c., that each was a nominative case, and that the Act did not apjily to tlit- case of a bridge ^ or hm/ij; pari of a roatl. (In re Brant ami Waterloo, 19 U. C. Q. iT. 450; see ilitferences of opinion on the point between tlie late Chancellor and the President of the Court of Appeal, in llarrold v. Hiitcoe atul OiUario, 18 U. C. C. P. 10 17.) The original Act was in thia respect lirst amended by 33 Vic. cap. 20, as. 1 & 8, by striking out the words "or bridge." (See Beaver v. Mancliester, 26 L. J. y. B. 311.) {w) i. f. a road lying wholly or partly between a County, Town, City, Township or Incorporated Village, and an adjIl, sljall hdoni; to tlm Council of tlio (\»»inty^ or ill ctiHo tho roiul or hriil<;»' lies in two or nio)o {counties, to tho Councils of sutOi (.'ounties ; («) Mui tlio ne^flcot ami disi)b(?ili('Uci) of any re;;;ulations or direction.s niadn hy such Oounoil or Councils, Khali suhjoct th«! oHt-ndors to tho Kaniu ppnaltics and otiicr consfqunncos as tlui noghict or ilisoho- dicneo of tho liko r(>^uhition.s of the Maf^istratos wouhJ ha^'o flubjected them to. L'li-JU) V. c. 51.8. 343. lioads UHiler Jionrd of WorkA not affccte'l. 4!jO. No Council shall intcrh.TO with any puhlic road or "'"»■'*. *•' . hridf^o vasted a.s a Provincial work in \h'X Majesty, or in < lal work* any public Dcpartmrnt or Hoard, {b) and tho (jrovernor shall il^J'ji'" |iy order in Council have tho same powers as to such road Ji'^'y. *■■ . ivnd hridf^e as are l»y this Act conferred on Municipal Coun- int.rftrc(i»m.i biid;i^o under tho control of the Con)uii.s.sioner of Public (j',',v,.n,or m \A'orks, to bo no lonyer under his control ; id) and in that ♦>'r'a, -K)? and 4i(> have already conferred or iniiioscrl every road and bridge upon some Miuiicipality, excepting those (jovern- jneut works specially exempted under section 4'JO. The section iiiuler consideration was, it is presumed, inserted ex uhiindauti cuufela, and not because there waii any case or special property iipon wliich it can reallv operate. [Per Adam Wilson, J., in llarrola v. JSbncoe aud OtUar'io, Hi U. V,. C. P. 50, fjl.) (/;) Every public road, with few exceptions, is vcste to sec. 412.) The Corporation in which a public road is vested is not only empowered to keep it in repair, but is bound to il in tlio prooliimation, tlio roiid or liriail or bridjjo Hhall theiu'cforth ho controUod and kept in repair hv tho Council of the Municipality. (/•> 2\)-'M) V. c. 51, 8. 318' Nor Roads on Dominion Lamh. 4181. No r!ouncil shall pa»H any IJy-law; {/) (1) for stop ping up or alttu'ing the din>ction or aligiuiient of any 8triw»t, i-tiintiTfiTiMi ini^„ Qp tliorouj^'hfare made or laid out l>y Hev Majesty's Ordnance, or the Principal Secjvtary of State, in whom the Ordnance Estates hocfiino V((Hti'd under the statute of the Province of Canada, [lassed in tho nineteenth year of Her Majesty's reign, chajiter forty-five, or the C'onsolirlatcd Sta tute of Oanadii, chapter twenty-four, respecting th(» ( >rdiinnce and Admiralty laiuls, or by tho Dominion of ('antulu ; {ij) or liavc used the road as a ro.atl vt'stcd in thcni. ( frmn v. liradford, •_>•-» IT. C. C. 1'. 18; 8. 0., lb. 4l>I.) (f ) Suppo! e tho pulilic way to be a liridgc, and that bridge cmssiiig a stream wliich ia a boundary line Ijctwetn two founties, but not in either of them, on wliom devolves the obligation to keep such a bridge in repair after it ecases to be under the control of the Coin- laissioners of Pul)iie Works ? In linrrohl v. Sinirof arnl (hiturl) 1() U. C. C. W 43; 8. c, 18 U. C. C. P. 1), the obhgation wa? helil to rest on the Corporations of the two Counties. " 1 think that. looking at the (piestion before us, we may properly give to the won! 'between,' the popular rather than the more limited, though jiossihly more rigidly correct sense; ami that when a liridge is constructed over navigable waters, ami coimects two opposite shores lyint; in diJlorent Counties, we should hold such a bridge to be between such two Counties, ami that they are jointly answerable for its mainten.uice, even though the Counties, as respectively containing the 'J'ownships between the shores of which tho current flows, reach to the middle of the water, and are di^-ided only by the invisible, untraceahlo line called viidiuin Jiluin. m/uie." (Per Draper, C. J., in Hnrrold v. Sinicoc etal., I8U. ('. C. P. 13.) (/) The power to legislate as to Municipal institutions in the Pro vince is by the B. N. A. Act, s. 92, sub. 8, vested in the Legislature of each Province. But whether a pubHc work be vested in Her Majesty as representing the Province, or the Dominion (see Atturve;/- lieneral v. Harris, 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 consent of the Queen. The previous section (sec. 420) makes such a declaration, in reference to Provincial works, vested in Her Majesty. This has reference to Dominion works and Dominion ])roperty. («) The object of this jiart of the section is to protect roads. Sec, laid out through Ordnance lands. The Ordnance Transfer Act of 1850 divided Ordnance lauds into two schedules; the tirat achedulo s. 122.] IIOADS THAT ARE NOT TO UK CLOSKD. 42;i (2) for oponing any Huc-h coniiiuniioatioit tlirough any IaiuIh hold by tlio I)oiiiini()ii oi' Ciumilii ; or (IJ) (//) inti-rtrriiij^ with wuh.mt i\nv hrultif*. whiirF, dock, (iiiiiv or other work v(.Ht('«l in tht* ' ■••"" m "f Dominion oi ( imadii ; (») or (4) iMtcni-riii);,' wit)i any Ifiiid &c., iind ni.i re.scrvod for military purjtoHCH, or with the integrity of th»' IIi'|,t'"t^!'|T»." [inhlic dofiuicoH, without thn coiusont of tho (iovt'rnincnt of v.iiu'. tlu; Dominion of ('uiiudii ; (j) and a \\y law for any of tho purposes aforesaid kIiuU ho void unloH.s it rocite.s Hiich con- sent, (k) Viile 2D-30 V. c. 51, h. .Hi). UixuIh Necessary /or K tho i'''iuii..n,v Quarter Sessions, or any Munieipal Coum'il, or ''tlicrwiso i.,iiiij;r..H, loj^ally established, whereby any person will 1. excluded *" from injirrosK and c|,n'ess to and from his lands or plae oi rcbidenco over such road, (1) unhsa the (.'ouneil, in addition rontii'il iiiii to I'losc riiii'l compriBing all laiuls vested in one of llcr Majesty's Principal Srrrc- taries of Statu, ami the Hecoinl such huuU as an! rciiivt.Htt'tl in the (.'rown for tlie public uses of the Pniviuuc. (Sue Cou. Stat. C. cap. 'M. ) (It) See itruceding note. (») Tho following public works, ])olr)ngiiig to the late Province of Canada, are by tlu! IJ. N. A. Act declared to l)o the i»roperty of the Duminioii of Canaila: 1. Canals, with lands and water power connected therewith ; 2. Public Harljouis; 3. Lighthouses and Piers ; 4. Steamboats, Dredges and Public Vessels; 5. Rivers and Lake lmj)r<>vemiiits; G. Railways and Railwr.y Stocks, Mortgages and other Debts duo liy Railway (Jonijianies; 7. Military Roads; 8. Custom Houses, Post Ollices, and all other Public P.iiildings, except such as the Government of Canada ajipropriate for tlio use of the Provincial liOgislature.s and (iovernnients; 9. J'roperty transferred by tlie Im]tiTial (lovernmeut, and known as Ordnance Property (see note ;/ t<> this section) ; 10. Armouries, Drill Sheds, Military Clothing and Munitions of War, and Lands set a art for public general pur]ioaea. (R. N. A. Act, a. 108, sch. 3.) ( j) No Council has power to pass any such P)y-law as mentioned without iho consent of the (lovernment of tho I>iin>ini<>n of Can.ida: in other words, tho proper Council has the jiower with the consent. The consent being essential to a v.alid exercise of the power, it is declared that tho By-law shall bu void uidess it recite such consent. {k) See preceding note. (l) The power of a Municipal Council to close up a liighway is •ubject to certain limitations. One of these, under this section, ia 4-'4 THE MUNICIPAL MANUAL. [s. 423. wiaih <,t n'i4j-law8 affccliug Public Roads. j,n"'i.'ii!'r.'r 4->.|. No (.'ouiicil shall pass a Hy-law for stopping up. alter- I,';',':'';""-' in<.', widciiiiii', divertini' or si'lliiigany original allowaiuu' for iiitriiatil t.. road, (/>) or tor establisJiiug, opeimig, sto[»piiig up, ait(.'rm<^, ^uMs on the face of it kIiow tlio wiiltli of the road {In re .'^mith owl Enphr- mhi, S U. ('. y. 1». '2'22t, and i^lioidd, it seems, -wlK'n it autlmrizes a , vond t!u'(»n^'h ii man's laiil, show wliero it enters and wl.at eimrse it takes. (J).ii-ili V. Ifiuilu-i ct a/., //>. 4i4. ) All I5y-la\vs autlioriz- ing new roads sliould, cither l>y reciting tlio wliolc des(.Ti])tioM of tlio road given in the survey or report, or hy describing it fidly, H-liethcr sucli Uyduws refer to the report or not, make it plain to to evfiy one that sees the Hy-laws wliere the road is to run and how wid.j it is to 1)0, and should not leave the information to he gleaned from docununts not referred to in tlie By daws as annexed and not in fact annexed. (//( re. Brown ami York, Ih. o'.Ki; M<:lntijri' w UostUHjittt, 11 U. C. Q. 13. 4(Jt). ) The sanu; strictness does not of course ap]ilv to a By daw closing up an old road. {Fii'ared that on tli;; ground it was defined hy fences on each side, and had been travelled for eight j'ears, the Court refused to quash the By-law. [Il'idj.-i'jn v. YurL\ Peil and Ouf'trh), 13 V. (.-. (j. 15. l2(5S.) The public are prima facU- entitled to the use of tho entire width as a highway. (See note p to sec. 400.) (o) The standard width is sixty-six feet; but, with the consent of the Municipality, an owner of land may lay out a road of less width. The consent ougiit to be evidenced by some ollicial aotof the Council as a body —such as a By-law or resolution. (;.') The deidaratiy-lavv until, &c., enaides the ('.juncil to pass the i>y-law sid)ject to the condition!! impascd. The jiowers here iiiferentially conferred are /or — [. Stopping up; , L'. Altering; 3. Widening; 4. Diverting ; or, 5. Selling — Any orujinal allowance for road; J ml for — 1. Kstabli^hing; 2. Opening; 3. Stop])ing up ; 4. Altering; f». Widening ; C. Diverting; or, 7). Selling— Any ofh'r public highway, road, street or lane. These; powers are directly conferred by sec. 425, sub. i. It was at (uie time supp'ised that a M'nieipal Council could not in any ease legally close up or vacate a roao, except f Whurt. 2,'); Bniletj v. Philadelphia, Wilminrjton and BallUnorf Railroad Co., 4 Harring. (Del.), 389; Hlnchmanx. Detroit, 9 Mich. 103.) It has l)cen hv\A that a Municipal Corporation, under power "to locate and establish streets and alleys, aud vacate the same," liad power to shut up or vacate streets, .and that such a power, when exercised ivith a duo regard to individual rights, is not to l)e restrained at the instance of property owners claiming that the streets be for ever kept open as dedicated to the public. (Gra'j v. Iowa Land Co., 20 Iowa, 387; distinguished from Warren v. I^yonti, 22 Iowa, Sol.) If no other disposition were made of the .stopped-Mp road, the soil and freehold would be and become the .soil and freehold of the owner of the soil relieved of the easement in favour of the puldic. (Barclay v. Howell'a Lessee, 6 Pet. 498, ("13; J f arris v. Elliott, 10 Pet. 25.) The conveying away the land to another, where the Corporation has authority to do so, is a distinct matter altogether, and not necessary to the extinction of the public right of way. (Johnston v. Neesor et at., 10 U. C. Q. B. 101.) Counties have, in certain cases, power to stop up highways .and convey the right of w.ay (sec. 440) ; and TownshijjS in certain cases, subject to tho confirmation of the County Council (.Sees. 424, 441, sub. 2.) ('/) It ought to be observed th.at notice is requisite, not only before a Council shall pass a By-Law, for stopjiing np, .altering, widening, iliverting or selling any original allowance," but " for establishing. openimj, stopping up, altering, widening, diverting or selling any «. 424, sub, 1.] NOTICE OF BY-LAWS AFFECTIXa ROADS. 42T (\.) Until writtrn or iirintod iiotircs of tlio intendo*! Bv- K'^'i'; t- ''• law l);ivi' 1)0(311 pohtod ii[) oik; month previously in six of tlio most ])ul)lic places in the iiiiiiuMliiite iu*i;^'lil)()iirIioo(i of such original allowance for road, street or other higliwiiy, road, (r) other public highway, rnad, strc(?t, or lane." I'^ndet the ohl Acts it was hi;l(l that iio iioticu was iiecossary lufore passuig a Jiy-law to open .) Astostoi)ping up, &c., it is not necessary for the Coun- cil to do more than close or abohsli the highway l)y their enactment. They are not rcijuired to fence it in, or to place any piiy;-ieal ol),struc- tion in tlie way of persons passing. Tiiey onl}- put an omi to the rigiit of using it, and conscipiently to all ol)ligation on the p;irt of any peison to respect it as a highway. (Johutilon v. Hevcor et al. , 1 (( U. ( '. Q. B. 101 . ) (;•) The Court, on an application to quash a By-law, will assume that the Council have acted regularly in their preliminary proceed- ings till the contrary be shown. {Jn re Luffrli/ ilnd Wtnlvurth lur.l Jlallon, 8 II. C. Q. B. 23-J ; iw.sAr/- v. Vawjfmn,' lU V. C. Q. B. 4y- i:iw, ventured to go no further than tile an athdavit of a ])erson v,\m said he iiad no recollection of seeing any^ notice, without asserting his Ijelief that due notice had not been given, or taking any means whatever to ascertain whether or not the notices were i)ut up, the Court refused to interfere. (/'/,,•/«'>• v. Vaiuj/inn, 10 U. C. (Ji. B. 4lC_'.) .S.) where applicant did not positively negative any notice s having lieon put up, the Court refused to interfere, although the Muu.eipal Council did not prove that six notices wer, put up. (Parb r v. I'ittshuriih and Huwe J.s/nud, 8 U. C. C. I'. 517; see also In re li'ibr et ul. and Sattjleet, ,31 U. C. Q. B. 38(5.) It is m^t necess.-iry that such notices should he framed with such particularity as to recpiire recourse to be ha« TIIR MUNICIPAL MANUAL. [s. 12}, 8ub. 4. .mil I'nWisli- ""l ill ucws- j.a[icr. ParliiM prc- jililii'ijlllv air.Mit.'.l to I'l' liwinl. < 1't1< l.> J'.iV.) Ill,' iiKtiue*, on (■ayiia'iit of street or lane, and also for perniittiiig subways for cattle under any highway ; {«) , - (2.) And puhlishod wookly for at Irast four sucoossivo wcnks in .sonm nowsimpcr (if any thoro ho) |»u))li.sh('il in the Municipality ; or if tln'ro Ito no such niiWspajKM', thou in a nowspiiin'r i)ul)lish(!d in some noighbouring ]\[unicij)ality; (/) and, in either case, in the County Town, if any such there he; (3.) Nor nutil the Council has heiiril, in jiprson or liy counsel or attorney, any one whose land might 1)0 pi-cjudi cially alfccted thereby, and who putitions to bo so heard ; (m) (4.) And the Clerk shall give such notices, at the reipjost of the ap])licant for the By-law, upon payment of the reason- of the lly-law ; tliat on the cnutniry thoy imported on the face of tliciii tliat it oo'.dd not liave buoii given, bi't-auso the liy-law was passed within a mouth aftjr the Municipal Act of Ibi'J came into ojieration. {LitfiHi/ v. Stoc/:, .'{ U. C. C. P. 1.) (n) This enabling clatue appears to have been thrust in here Ijy a sort of " leaj) in the dark." Jb is ipiite foreign to the suljsectinn of which it is maile to form an awkward part; hut, read by itself, is quite intelligihle. Tlie i)ower i.s to jierniit suliways to be made fur t'attle. A subway is a way or passage under a highway. IJeing designed merely bu" the use of cattle, jicdestrians v>"ould not have a right to use such a way for ordinary travel, so as to hold the ("orjio- ration resiiinisiblo f to sec. WJ. ) (t) It will ])e o1)served that the statute does not fix any number of jnstjitions of the By-law in a newsjtaper, l)ut tlie imhlieation weekly for a ti.ved period, viz., "at least four successive weeks." If, tliere- fore, the tin d puhlieatioa be on a Saturday, that week would expire tni the bdlowing Friday, and so for each successive week. A notice first pul)li8he(l <»n Thursruary, was held not to be a publication b>r "four consecutive weeks."' (/« re Cw and Ph-brlii'i, L'l V. s in opjxisitioii until making an ap])lieatioii to the Court tocpiashthe liy-law, his rule was discharged. (Parki'r v. P'ilt'ihnrening an ordinary r.iail on the jiotitionera (Laffi rhj V. Slock, '^ 11. ( !. tJ. P. 1.); hut a I'.y-law directing' tlic occu[)auts of an original allowance for road to open tiie same at their own exjiensc held not to he illegal, (hi re Mcyfl'-!i. 158.) \Vhere it is the clear duty of a Muhieijial Council to make a road, the (Jourt may grant a niandannis to coMi]»el tlie per- formance of that duty. (In re Aiujnsta (iiul Iji-i-d-i and (InnvUli , 12 U. (.'. Q. l». ^i'1'1.) The Council, in opening a road, unut act by liy-law. (The (Juecn v. J^aiikin, 10 U. C. g. B. 30-1.) (a) It is hy section 424 enacted tlvat no Counril shall pass a By-law for stopping up, altering, widening, diverting or selling ani/ or'njindl atlowanc: for road, or for establishing, opening, stnjiping up, altering, widening, diverting or selling any otfirr public highwa}-, mad, r,trcct or land, until, &c. This subsection cxpres.sly empowers the Council of every (bounty, Township, City, Town or Incorporated Village — in other words, every Council — to pass By-laws for the following pur' poses : (1.) Opening; (2.) Making; (3.) Preserving ; (4.) Improving ; (5.) Rcj)airing ; (G.) Widening; (7.) Altering; (8.) Diverting; (•J. ) Stopping up ; Roads, streets, squares, alleys, lanes, bridges or other public com- municationa. Each of these words convey a distinct idea and a distinct power, Us it were, growing out of and becoming necessary in conse({uence of the preceding power. It is of little use to open a street imless it be made, little use in making it unless to be presercvd, little use in preserving it with growth of population unless improved, little use improving it unless to be kept in repair; and necessary, perhaps, owing to change of circumstances, to widen, alter or divert it, or, in the public interest, proper to stop it up. As to the meaning of similar words, see Welch v. Nash, 8 East. 394; Ofi Ponthieu v. Pennyfeathcr, 5 Taunt. 034 ; The Queen v. IShiles, 1 430 THE MUNICIPAL MANUAL. [s. 425, SUb. 1 . for entering upon, breaking up, taking or using any land in Q. B. 919; Wrlyht v. Frant, 4 B. & S. 118; The Queen v. PhiUiu>, L. R. 1 Q. B. 618. Municipal (vOri»nration3 are einpoweroil not only to change tho (lirection of existing road^, l)ut tu opun new roads (see note 7 to ace. 424); and, subject to certain limitations, cnii»owcred to atop up , ' ! exidting roads without uubstitutinjp' new roads (see note />to sec. •I'Jli; and are obliged, under i>enaltie3 civil and criminal, to keep all exist- ing roads in repair (ace sec. 409). 'l"he statute 12 Vic. caj). 81, s. (U), empowered Municipal Cor- porations to pas« I'.y-laws not only for opening, making, jireservin;.', improving, repairing, witlening, altering and diverting streets, but for kvclliiKj, raimuj and hwerhnj thorn, and omitted in any uiaiuier to jtrovide for payment of compensation to pt^rsons whose laud was injuriously atl'ected by tlie exercise of these powers ; and no it was held that such persons could not at law maintain actions for damages arising to their property from a change of 1 ovol in the streets. Croft V. Petcrboroufjh, f) U. C. C. P. iif); JMd v. Hamilton, lb. 2G9; The. (Jwen v. Perth, 14 IJ. 0. Q. B. 156.) No such ords are used in this section. (See, however, sec. 42!>, and sec. 441, f b. 1. ) 'I'he ell'ect of the omission of levelling, raising and lowering from the enumerated powers conferred on a Municipal Corporation under this section, has not been before the Courts for decision. Whether power to widen, alter, divert and repair streets would not include power to change the level of streets, is the ([ueation. Macaulay, C J., in Croft V. Pi'ttrborough, r> U. C. C. 1'., 45, said, "I am at present disposed to think it vithin the general and incidental powers of the defendants to maintain, rejjair and improve the public streets of the town placed umler their eliargc, and in doing so to raise or lower them as may bo found necessary, judicious or convenient for the public use, not exceeding what is reasonably rec^uisite and proper, and doing no unnecessary injury to the property of others, but usuig due care and precaution to avoi'"l' their discretion in the exercise of their legislative jiowers, it vol-.' .> otherwise." In Reid v. Hamilton, 5 U. C. C. P. 287, he said, present impression is, that whenever the acts to be done c,^ tii Municipality will invade private riglits, inhich may be so ihoa! ■ legally through the medium of By-laws, and for which, if not legni- iz&d by the statutes creating or the powers conferred upon the Corporation, the jjarty injured may maintain an action against the wrong-doer, a Bydaw is essential to enable the Municipality U> justify the act, unleas it can be shown to be repair of a highway, &c." The Council of a City, Town or Incorporated Village has power to pass Bydaws for ascertaining and compelling owners, tenants and occupants to furnish the Councils with the levels of their cellars, such levels to be with reference to aline fixed by the By-law .j (aeo. 384, sub. 47); and before commencing the erection of Any new H. 425, sub. 1.] GENERAL POWERS AS TO ROADS. any way necessary or convenient for the said purposes, sub- let builcliug, to deposit a plan of tho l)uilding, witli the levels of the collars and biwements thereof, {/b. sub. 48. ) Hut nn power now exists in express terms to change the level of a street to the prejudice of owners of land abutting thereon. The general rule is, that when private riglits are interfered with for the public advantage, compen- sation is given. (.Sue sec. .'573, and notes thereto.) In a recent ea.<'e, where a person was conipKaining of an injury to lii:i property by reason of a change in the level of the street, Kelly, C. f>., said, " i cannot but observe, in a case like this, that whenever it iipptars that the case is one in which it is pl.iin that very serious injury r.)ay have been done to the premises oi the party claiming compensation, I think that we must put a liberal construction upon the Acts of Parliament before us in determining the points raised. Unless it is perfectly clear that the language of the different Acts is not suf- ficiently ample or extensive U) embrace the case in question, we ought to hold that a party whose property is injuriously affected , and to a very great extent by the operations of a public body, shall be entitled in a court of law to compensation." {The Quern \. St. Luke's, L. K. 7 Q- B- 148-153 ; sec further, Bir]g v. London, L. Jl, ' 15 Va\. 37G.) This is in accordance with the decisions of our courts in several cases, where tlie complaint was that the plaintiff's land was flooded by municipal corporations, in their efforts to drain, and 80 keep in repair, public highways vested in them. (Brown v. Samia, 11 U. C. Q. B. 87; I'erdue v. Chingnacousy, 25 U. C. Q. B. • 61 ; Rowe v. Rochester, 29 U. C. Q. B. 590; Stonehouse. v. Enmskilkn, 32 U. C . Q. B. 5G2 ; Rowe v. Rochester, 22 U. C. C. P. 31 9. ) In the laBt mentioned case, Hagarty, G. J., said, "No power is conferred upon them (the corporation) to do any such injurious act. No provision ia made for componsating any person injured by this perfonnance of their statutable duties. In the absence of any such power, it seems to us impossible to accede to the defendants' argument. It may be quite possible that the defendants have the right to raise or lower thr. level of this road, and that no remedy is given to persons injured or inconvenienced thereby. But it is a totally different matter when the acts complained of amount to an interference with the natural flow of the water, or to the gathering of scattered waters into one course, and causing them to flow upon adjoining lands. The question, however, seems not open to discussion unless a Court of Error interjjoae." (lb. 320.) In Callender v. Marsh, 1 Pick. 417, it was said that those who purchase house lots bor- dering upon streets are supposetl to calculate the chance "f such elevations and reductions as tho increasing population of the city may require, &c. This case has been approved in the courts of every State of the Union except one. (Per Randal, C. J., in Dorman v. Jacksonville, 7 Am. Rep. 253. ) In the United States, therefore, it in generally held that a municipal corporation is not responsible, unlchs expressly so declared by statute, for mere consequential damagcH resulting from a change of grade in a street where there is no negli- gence in the doing of the work. (Oreen v. Reading, 9 Watts, 382 ; O'Connor v, Pittsburgh, 18 Penn. St. 187; Raddifs Executors \. Brooklyn, 4 Comst. (N. Y.) 195; Graves v. Otis, 2HilI, 466; Hoffman ■ V. St. Louis, 15 Mo. 651; Macy v. Indianapolis, 17 Ind. 267; Mark- ham v. Mayor, 23 Oa. 402; Ilooker v. New Haven and Northampton 432 THE MUNICIPAL MANUAL. [s. 425, sul). 2, Rfti.sinpT ni"Ui'y by toll, joct to the restrictions in tliis Ant containpil ; (b) nnd for provonting and roniovint,' any obstruction upon any roaiia or hriilge.s witliiu its juiiadiction ; (c) 2i)-30 V. c. 51, a. 333, Bub. 1 ; 31 V. c. 30, s. 4. ToUi 8. (2.) For raising money by toll, on any bridgo, road or Co. 14 Conn. 1 16 ; Ituvty v. Matjo, 4.3 Me. 322 ; Crml v. Krokuk, 4 Grccno (lowii), 47; llitviLkL v. Uoit, 3 liivrb. 4.>9; Wihon v. Xvw York, I Deniii. ii'Jj; Slhtmoiui v. Camden, 20 Ark. 270; s. c. 7 A\:\. Kep. 020.) If the power be exorcised in an unreaaonable manner, or wantonly and mabeinurtly, the rule is dill'erent. (liulirrti v. CkicMjo, 20 111. 24;); Uudolplu- v. Xew Orl>'rpro9cr- or grai yl, on any allowance (u- appropriations for a jaiblic t,.',!jg"g'tonc road ; (_/') but this shall bo subject to the pr<»visions of the «^;'•• Act i>assed in the thirty-fourth year of l[er 3Iajesty's reign. fiao. shall n real exer- ise of )in the taken >f due is net ;e. It y may ing no •y anti ' {Tht Q. B. looked 8, that be uo ((/) It is a principle of l.i^^' tliat taxes and tolls aro nut to bo inipo-sed liy uny latitude of construction given to an Act of Parliament. Tlio uutliority for them nuist be clear and express. (J'er llobinson, ( '. J., iu W'iUuii V. (;r<,ri.-<, 17 U. C. Q,. li. 4l!», 4*_>t.) The amount of tolls iiutliorized by thU subsection appears subject to limitation left to the discretion . ) The power to rcgiilate suchjdaces is there- fore essential to the i)rotection of the oorporatioii, as well as the safety of the travelling public. (/) The right of a municipal corporation to sell timber growing ami standing on a road aUowance, so as to vest a property in the trees in the vendee was at one time doubted. (Cochrdii v. J^inlop, 'A U. ('. 0. 1'. 440.) But express power to sell includes the power to pass the prr)perty, ami also gives the right to recover the value of trees wrongfully taken from a road allowance. (liurkUih v. Hilis, '21 r, ('. Q. H. 7'2.) If there were no such provision, the property in trees growing on original road allowances wouhl undoubt- edly be in the Crown as the o^v^ler of the soil. The leading object of tlie reservation of road allowances, however, was not to grow timber trees upbeU, 18 U. C. C. P. 457, ) In the absence of legislation, the Crown has no right, without the consent of the municipality, to sell stand- ing timber on road allowances. {Barrie v. GiUku, 20 U. C. C. P. 369; 8. c. on appeal, 21 U. C. C. P. 213.) 28 434 THE MUNICIPAL MAN L'AL. [h. 42r), sul). 5. cliaptored nineteen, relative to Government road allowrtnces and tlio grantin*,' of Crown tinjUcr liconscb; ('"' making and keeping in repair any road or highway belong- rials fur ing to any such Municipality ; and tho right of entry upon '"'"^''' *'^' such lands, as well as the price or damage to be paid to any person for such materials, shall, if not agreed upon by the parties concerned, bo settled by arbitration in the manner provided by this Act ; (/) 29-30 V. c. 51, s. 333, sub. 10. served a written notice upon the head of the Municipality in the jurisdiction of which such road i» intended to pans or be con- structed. (Con. tStat. U. ('. cap. 49, sec. 10.) If the Municii)al Council pass a By-law prohibiting, varying or altering any such intended lino of road, the By-law shall liavo the same force and etfect, and be ol ligatory ujwn all jiersons and upon tho Company, if the Company proceed in the construction of the road, as much as if the provisions tliereof Were part of the said Act. (lb.) But if no By-law be passed within thirty days after service of the notice, then the Company may proceed with the intended road, without being lii^ble to any inter- ruption or opposition from any source whatever. {lb. sec. 11.) No such road, however, shall, under any circumstances, be constructed or pass within the limits of any City, Incorporated Town or Village, except by permission, under a By-law, of the City, Town or Village, passed for the purpose, (lb, sec. 0.) (i) A grant for a terra of yeara is authorized for a consideration stated. The grant is to be of tho rates fixed by By-law to bo levied, &c. The term is not to be more than 21 years, and the considera- tion, or part consideration, is to be that of planking, gravelling or macadamizing the road, &c., or of building a bridge, &c. The right of the lessee to give in his own name for tolls is douljtful. ( White- side x. Bdlchambcr, '21 U. C. ('. P. '241; Hinckley yf. Gilderdeeve, 19 Grant, 212.) As to tJie ratj of tolls, see note d to sub. 2 of aec. 426. ik) See note m to 8«c. 413. [l] This is an exercise of eminent domain, and so is made expressly subject to the payment of compensation. (See sec. 373, and notes thereto. ) The right is to pass By-laws for searching for and taking such timber, gravel, stone or other material or materials as may bo 430 THE ML'KICIl'AL MANUAL. [«. 420. WUfti tlio CoiiiK'll may Ht'ip <'!' '"■ veil II roail aIIuwuiicu. WliL'Ti a ruail \H Slll'Stl- llltcil UlT Ml oi'iKioul al- IdWUIK'i', (,'iiiiil»'lisn- tioii til pi'i- Kiiu wliiiae laml in takfii will) iiwiit liiml i>ri|i,'iii!il iiiljiiiiiliig routl. SvUiiiij Old lioiid A/lowancea. (H.) For Hollini; tlio oi-ij^iiml roiul nllowanco to the imrticH iioxt luljoining whoso liuuls tlio Hiuiio Is Hitiiutrd, when a public rond Iuih hocii oponod iu lion of th(j oritjinal road allowanco, and for tjjo Hit(» or litio of which conipcnsutiori has Uwu paid, and for Holliiig iu liko uiuuucr to tho owiiors ol' auy adjoiuiu^ laud, a uy road lo;i(ally stopped up or altiTcd by tlio Council ; and iu caso hucIi parties rospcctively rcfiiso to l)('C()inlo, tlmii for thc! sale thoroof to any other peifiou for tho Huino or a greater prico. ^//t) '2U-'M) V. c. ;")!, h, 333, 8ub. G. 458C In caso any ono in possosslou of a concession rniul or side lino liius laid out aiul ojKsned a roatl or street in pjnco thereof without receiving compensation tluu'efor, or in case mrismr;/ for inakiiiff and keeping in repair any road or hiuliway belonging to tlio Munieipality. Jlut tlic right of entry, oh Moll ii8 price or damage to be jiaid to any person for Bueh luateiials, is eitlicr to be agreed upon or aettlud by arbitration. (iSec see. 21\) et ncq.) {in) ^Vherc a public road has l)cen opei.ed through private property, in lieu of an original allowance for road, for which coinpeiisation hiw been paid, the original allowanco may be sold " to the imrtkn next adjoining whose laiuls tho same is situatisd." Tlic allowance may adjoin on each side tlie lands of ditfcrent jiarties, and it then l)ecoiii(js a (luostion wlietlier the Council is bound to sell to each one half of the allowance, or may sell the whole to (jue. Similar authority ia conferred as to "lanyroad legally stopped up and altered by tho Council." If the parties entitled to prciiinption refuse to purchase, then, and only then, is the Council authorized to sell to any otiur person. The statute does not rciiuire the C ■ori)oration to do more than close or stoji up the road allowance. Thi>y arc not required to fence it in or place any physical obstruction in tho way of persona using it. They only put an end to the right of using it, and cuuse- (jueutly to all obligatitm on the part of any person to resjieet it as a highway. The selling of the road allowance is one thing ; the stop- ping up of a roail allowance is an entirely different thing. The sale IS by no means necessary to the extinction of the public easement. (Johmton v. Kcesor et al, 10 U. 0. Q. B. 101.) The stoppuig up an original allowance for road is a distinct thing from selling and con- veying it, and requires to be distinctly and directly provided for. Uiitil a By-law has been passed to stop up the allowances they still continue public highways, and cannot bo sold or conveyed. (Per Robinson, C. J., in In re Choate and Hope, 16 U. C. Q. B. 428.) Where it is contended by a private individual that a road allowance has been legally stopped up and conveyed to him, he must show that all the proceedings made necessary in that behalf have been taken by the Corijoration. { WiiUa- v. Kcown tt al, 22 U. C. Q. B. 341.) 8. A2i\.] JONVKYINd OM) FIOAD ALI.OWAXCKS. 437 u iii'NV or ti'iivcllcd |)\iMic n»;ir of the land ajt|»ro- oviatc'i as a piildic i-ond in |dari> of sufli oriirinal allow aiiot*, tlic owner, it' iiis lands adjoin tlio conccssidn road, sidf liuf, or oriu;inal allowunco, shall ho ontith'd thfreto, in licj of tho road Mil laid out, (ii) and tin* ( 'ouncil of tlio M\iidfi|iality, upon the roport, in writini,', of its Kurvcyor oi- of a dt'juity jirovincial land surveyor, that such nmv or travelled I'oad is Kuiricient for the pur|toseH of a jMildie JiijLjhwuy, (o) may coa- vey the saiviili'3 for two rast's : lirrtt, wliiTo a jht- Boi) in /iii/tsi.ttiitii iif a (vincuHsiuii rnful i>r side liai; Ii:i8 /i i iiiii'/f lnu\ (int and DiHMicil II mail, \c., in pliico tliLTcof ; Heooiully, wlicit; ii now or travolU.'d road lias lioua laid out and ()ii(;ii<.'il Ity, it \h concuived, //<<■ pn>it<)' (iiit/iori/i/, in liru of an original allowance for road. ki'. In cith'ir of tlicau cases, if no coin]>L'n8atio!i lias 1h;i'ii paid to tlie owner of tlio land, and if his land.^ adjoin thu coni't^'ssioa road, side lim-, or original allowanci', ho sliail ho i iititlean thought not; llagarty, .J., in same ca.so, guarded himself from expressing any oi)ini!.'), oOS; Bee also T/tc (Juciii v. (t'lrdt Wc.i/irn Rniliniji Coiiijxdtif, ',i'2 U. C. Q. H. ;")()6.) The surveyor's report should l)c express that the new and travelled road is sufficient for the i)urposcs of a puhlic highway; and in the report he should state the widtn of the now road and the line to 1)0 nui. (T/i'' Khi'i v. Sniidrrioii, 'A O. S. 101^; Piinhiv. Farh'i/, 10 U. C. Q. B. 545; sec further. The Qui en v. I'/ii/'/ips, L. R. 1 Q. B. G48.) (p) While it is declared that certain persona shall he entitled to the old road aUowance, it is declared that the Council mni/ (not Bliall) convey, &o. The (juostion arises v.'hcther or not the jNIunici- pal Council can refuse a conveyance to the persons cntitletl. The section certainly contemplates that the Municipal Council may convey, and it is .apprehended that the conveyance, if made at all, . must he to the persons entitled aiul when entitled. If the Munici])al Council is to exercise its discretion as to conveying, and refuse to do 60 when it ought, tho positive effect of the enactment, which declares ConTnylnK of r.iiirirr mail allow- Hii' r. 438 THE MUNICIPAL MANUAL. [s. 427. C'liifiensa- tioii to piirty wliusi- land is liiki 11 who liocs in)t own land adjdiliing ori).'iual loail. Originil allowanees lor roads \vlii;n to bu drtiniH'd li'^'ally iKis- sessed till a liydaw is jiaased fur iipeuiiiK tlicm. and when any such orij^inal road allowance is, in the ojjiiiion of the Council, useless to the })ublic, and lies between lands owned by different parties, the Municipal ('ouncil may, subject to the conditi(jns aforesaid, sell and convey a part thereof to each of such i»arties as may seem just aiKl retuson- able; (7) and in case compensation was not paid for the new road, and the jjci-sou thi'OU(,di whose land the same passes does not own the land adjoining th<'. original road allowance, the amount received from the purchaser of the correspond- ing })art of the road allowance, when sold, shall be paid to the person who at the time of the sah; owns the land through which the new road passes, (r) 29-3U V. c. 51, s. 334. Possession of I'liopened Road Allowances. 4S7. Ill t'">'Se a person be in ])assossion of any part of a Government allowance for road laid out adjoining his lot and enclosed by a lawful fence, and which has not been opened for pul)lic use by reason of another road being used in lieu thereof, or be in possession of any Governmeiit allow- ance for road parallel or near to which a road has beei; estaV)lished by law in lieu thei-eof, such person shall be deemed legally poss(^ssed thereof, t'.s against any jtrivate person, («) until a By-law has boon passed for opening such that certain persons "sliall l)o entitled tliereto," wouldbe destroyed, iniless the (\(Ui'ts luive jjowcr to compel the Miniieipality to cuiivey, or unless the enaetnient itself gives them a title thereto. (In re Burritt v. Marlburuwih, 21) U.C. Q. ii. U'J.) (7) See note la to sub. 8 of sec. 425. (/■) If the person from wlioin the land for the new road is taken has not land adjoining the old road allowance, the allowance wouhl be of little or no use to him. For this reason it is provided that in such case the allowance shall be sohl, ami the proceeds paid to the person whose land is taken for the new road. (ls) This section provides for the security of, first, a person in pos- session of any part of a (jrovernment allowance for road, &c., not opened for use "by reason of another yom\ ImtKj used in lieu thereof;' and secondly, a person in possession of any Government aliowanco for road parallel or near to which "a road luis been established bij law, in lieu thereof," &c. A person so eireumstaneed is to be deemed legally possessed as against any ''primte person," but not as against the Ci'own ; and he is to be deemed so possessed "until a By daw has been passed for opening such allowance," &c. So that as well .against private persons as Municipal Councils, until a By-law is passed for opening, &c., he is to be deemed legally possessed. By an Act of 1810, all allowances for roads laid out by public authority were declared, whether opened or not, used or not, "public high- ways" (50 tJco. III. cap. 1, sec. 12); but for the security of persona in posseaaion of them when not used, it was iu 184G enacted that uq S. 428.] OPENING GOVERNMENT ALLOWANCES FOR KOADS. 439 allowance for road by tlie Council having jurisdiction over the Si,...^. {() 2U-30 V. c. 51, s. 33o. iVoiice of By-law fur Openinj such Allowances. 4?»H. No such By-huv shall bo passed until notice in ^, ., ^ writing has been given to the person in j)ossession, at least iy hiw'to be eight days before the meeting of the Council, that an appli- cation will be made for opening such allovv^ance. («) 2'J-30 V. c. 51, s. 33G. ,'iveu. allowance for road in possession of a private person shoidil bo opened unless upon notice to liim, and tlic passing ot" an order of the jiroper Municipal authority, (i) V^ic. cap. S. ) liotli these enactments are lure in substance reenactcd. A person in possession of a road allowance where a new road has been opened or is used in lieu of it, to save himself from all disturbance, ought to acquire a legal title thereto, pursuant to sec. 42tj of this Act. (See Pardij v. Farky, 10 U. 0. y. B. 545.) (0 A Municipal Corporation has a clear right to open an original allowance for road, and in doing so they must, at their peril, be C(irrect as to its true position. The By daw should really describe the houndaries of the allowance, if there be any uncertainty as to the true bouiidary. (Mc Mullen and Carw/oc, 22 U. C. C. P. 35G. ) "If the limits assigned be not the true limits of the side road as originally surveyed, the Council has no jurisdiction to enact and declare that they .shall be; and whether the declaratory eiiactnient have any validity or iiot, a i>erson bona jidt contesting the true site of the road lias, 1 think, reason to complain of such a clause being inserted in the By-law, as calculated to expose him to ditHeulties at any rate, if not to prejudice him in the conduct of any litigation wliich he may institute for the purpose of 1 giug the point in difference up for judicial intpury. But in enacting that the original alktwance shall be opened, although describing that road by metes and Ijouuds, I do not see that the applicant can be prejudiced; for in any litigation arising upon the point, it would, I apprehend, in such a case be necc'ssary to establish that the metes and hounds assum^'d to be, are, iu fact, the true limits of the original allowance. The first clause of the by-law will liave therefore to be ciuashed," &c. (/VrCwynne, .1., Ih. 3G(), 301.^ A By-law enacting that "every persim or persons having enclosed or occupying any part or parts of said (piarter town line (an original allowance for road) shall be retjuircd, on or before the first day of November ne.vt, to give up possession and oj)cn tho Banio for the use of the public travel ; the same to be made by gratu- itous or statute labour," &c., was held to be valid. [In re JfcMk/iael ami Tuwnscnd, 33 U. C. Q. B. 158.) And ]ier Morri.son, J., "Tho By-law is in effect a notification to such ])arties (parties in posses- Hion) that after the day named the road alli.wance will be opened for the use of tho public, when the Council will take the steps for that purpose. It is inartificially expressed, but can do no liarm ; and we 8ee no ground for quashing the By-law." (lb. 104.) («) There must be a notice in writing, which must be given to tho person in possession at least eight days before the meeting of the 440 THE MUNICIPAL MANUAL. [s3. 429-431. I!y-laws to ,'iile — liivided by a stream, is a good example of a work that may be executed at " ioint exi»enso " and for " joint benefit." (See IlarroUt v. Simcoc audOntario, !(} U. C. C. V. 43, 8. c. 18 U. C. C. F. 9 ; .sec further, sec. 413 and notes thereto.) , , S3. 432, 433.] UEPAiR of TOW.VSHIP nOAD.S. 441 cil, in the same wuy a.s otlior Townsliij) roads, ]>y mutual agreement as to tlie share to bo hoi-ne l)y each, it sliall be cumix'tent for one or more of .such Councils to a]i]>ly to the County Council to enforce joint action on all Townshij) Councils interested. («) 2\)':H) V. e. 51, s. 341, sub. 2. 4'S'''ii In cases where all tlie ToAvushin Councils inter- ifn'.ithtj ested neglect or refuse to open u]) and r(^])air such liiics of la'ii. "' road in a manner simihir to the other local roads, it shall lie coni]>etent for a majority of the rate]»aycrs resident on the lots bordering on eitlier or both sides of such line to })etition the County Council to enforce? the ojxMung up or i'ej)air of sucli lines of road by the Township Councils interested, [b) 2D-30 V. c. 51, s. 341, sub. 3. 4*1*1. A County Council receiving sucli petition, eitlier Jl',",',-],^.'*^ from Township Councils or from mtepayers, as in the pre- <.'i>um'ii»<.ri ceding section mentioned, may (;•) consider and act n]>on '"^ the same at the session at which the jietition is presented, (t/) 29-30 V. c. 51, s. 341, sub. 4; 33 V. c. 2G, .s. IG. (a) The roads liere intended are " To\vnslii]> lionnd.ny lines." Apparently the iutuution is to ombracc roud.s dividing 'J'()wnf*hi])s ; otherwise there wouhl bo no necessity for ;i provihion .is " to the sliare to be borne by each " in respeet of the obligation to open, re]iair aiiy a reference to see. 4',i'2, ■which gives certain powers to the ratepayers bordering "on eitlier or /k/ZIi sides of sueli line." The County Couneil is, in relation to such Townships, as it were, made the arbiter. Power is given to the County Council, cm tlio application of any Tuwnshi)) interested, "to entfirce joint action" on all interested. The ajjplieation slumld be hy petition. (/>) 'J'lic preceding seetion supjxises at least one of the Tmvnships interested sed to do what is reijuired of it. Hut if all interested fail to perform tlie duty cast upon them, a majority of tlie .rate- payers resident on the lots bordering on either or both sides of such line may petition the dnuieil to enforce the opening u]i or repair of such line by the To\vnshi[) ( 'ouneils interested. 'J"he time and jnodo of so doing are provided for by the next seetion. ('■) "May" is permissive. (Seo note h to sec. 412.) The original section, 29 and .'10 Vic. cap. ,')!, sec. 341, sub. 4, provideil that "//■ uli'ill he the dufii" of a (Joujity Council receiving, ite. The ehango :n language is designed to remove the duty, and leave the power to fict .as one of simple discretion. (See S.'l \'ic. ca^). 20, sec. Hi.) {(I) The action may be either by directing the expenditure of money, or the doing of statute labour, or both, as may seem neces- sary "to make the said bnea of road equal to other local roada." (■"ieo sec. 434.) 442 THE MUNICIPAL MANUAL. [ss, 434-436, Amount &(". t ) bu fiir- iiishud Ity ta 'h towii- kllip. Cdniiiiissinu- CIS to rri- t(.ri't! (nli'i- of i:()Uiity f(iu:iiil iis to rioviso. SiiTin dcicr- luiiu'il iiiioii til 1m; Jiaiil lij t'JiVlislli'iS. 4154, The County Council may (e) d'.^tai'mine upon tho amount which each Township Council interested sliall bo re([uii'eil to fipply for tho opening or repairing of such Unas of road, or to dli'ect the expenditure of a certain projjortion of statute hil)0ur, or both, as may seem necessary to make the said lines of road equal to other local roads. (/ ) 2'J-30 V. c. 51, s. 341, sub. 4; 33 V. c. 20, s. 10. 4ri5. It shall bo the duty of the County Council to appoint a Commissioner or Commissioners to execute and enforce their orders or Bydaws relative to such roads; Pro- vided always, that if the representatives of any or all of the Townships interested shall intimate to the Council or to tho Commissioner or Commissioners so appointed, their intention to execute the work themselves, then such Commissioner or Commissioners shall delay proceedings for a re.isoualde time; (ij) but if the work be not proceeded with during the favourable season by the Township otHcers, then the Commissioners shall undertake and tinisli it themselves, 29-30 Y. c. 51, s. 341, sub. 5. 4S0. Any sum of money so determined upon by the County Council as the ])oi-tion to be paid by the respective To\vnshi[)s, shall be paid by tho County Treasurer on the order of the Commissioner or Commissioners, and the amount retained out of iiny money in his hands belonging to (e) See note c to sec. 433. (/) Tlic powers of tho County Council are, to — 1. Determine tho amount which each Township Coimcil interested shall bo required to apply, &c. 2. Direct the expenditure of a certain proportion of statute labour. 3. Or both. Any different form of determination would be unauthorized and void. (,7) The mere order or direction of the County Council, without powers to enforce it agahist the Townships interested, would he of little avail. Power is tlierefore given to County Councils to ap])oint a Couiniissioner or Comniissionurs "to execute and enforce their orders or By-laws relative t > such roads." This is, as it were, in tcrrorcin ; for it is also provided tliat if the representatives (probaldy meaning Reeves or Deputy Reeves) of any or all of the Townshii)3 interested shall intimate to the Council or to tho Commissioner or Commissioners their intention to execute the work themselves, then the Commissioner or Commissioners may delay their proceeding. But tho delay is only to l)e for " a reasonable time." If the work bo not proceeded with during "the fa vcmrable season" by the Town- ship officers, then the Commissioners shall undertake it, and finish it themselves. ss. 437, 438.] repair of township roads. 443 such Township ; but if there be not at any time before tlio striking of a county rate any such moneys b( domain,!.,' to such To\vnshi[) in the Treasurer's liands, an aiUlitional rate shall he levied by the County Council against such Township, sulHcient to cover such advancea. (A) 2U-30 V. c. 51, s. 341, sub. G. 4*ST. Whenever the .several Townships interested in the ^viun Uw. wliole or part of any County boundary line road are unable townsiiiiiri mutually to agree as to their joint action in opening or J,'j'j',5^[^|t'*"^ maintaining such line I'oad, or portion thereof, one or more ajjue. of Huch Township Councils may apply to the AVardcns of tlie bordering Counties to determine jointly the amount WanMis u. which each Township shall ])e required to expend either in uirs. money or statute labour, or both, and the mode of expendi- ture on such road;(i") the Conty Judge of the County in Om-ity which the Township lirst making the application is situate •''"'''"■' *"' shall, in all cases, be the third arbitrator when such Wardens are unable to agree, (j) 29-30 V. c. 51, s. 341, sub. 8. 4:58. It shall be the duty of the Wardens of the Counties ^',^;:,'i|^"fV'^ interested to meet within twenty-one days from the time of receiving such apfjlication for the determination of the matter in dispute; the Warden of the County in which tho Township first making the application is situated shall be the convener of the meeting ; and it shall be his duty to ^vho to von- notify the Warden of the other County and (iounty Jiulge of tlie time and })lace of meeting, within eight days of the time (li) Where Commissioners do the work, some provision is necessary for ])iiynient. It is therefore i)rovided that tlie money shall ho jjaid liy the (.!ouuty Treasurer, "on the order of the Ci>mmissioiier or Commissioners." When so paid, ihc money is to he retained l)y the County Treasurer out of any money in his hands belonyini^ to the township. If none, then tlie County Council may levy against such township a rate "sultieieiit to cover such advances." (/) The County Council is, as it wore, made the arlntrator between Townships in the same County. (See iu)te a to sec. 4.S1.) hut where tlie Townsliips are of different Counties, the AVardeiis of the Counties are by this subsection made the arl)iters. Their jx) vcr aa Rucii arbiters is "to determine jointly tlie amount wliicli each Town- ship shall be refpurci to superintend such work; and it shall bo the duty of tho Townshii) Treasurer to \>n.y tho ordci's of such (Joniinissioners to the extent of the sum ap]X)rtioncd to each ; and ])atli- niristers controlliuLj the statutt! laI)our 'on the lots adjoiniiii:; such lino, ou tlie poi'tion of such line to be optuiod or lopaired, shall obey the orders of such CJonnnissioner or Commissioners in porfoi-miuiij the statute labour unexpended. 2!)-30 V. c.f)!, s. 341, sub. K). (k) In order that time may not be iinnocessarily lost, it i.s made tho duty of the Wardens to meet "within twenty-one days" from the time of receiving the ajiplieatiou. (See note n to sec. 128.) The initiative rests \i\Hm the Warden of the ( 'ounty in which tiie Town- slii]) tliat lirst made tlie application is situate. Ho is tlie convener of the meeting. It is made liis iect to the sole iurisdiction and t'"' /'I'lJ^ '" control of the Council, and not Ixnng within the limits of any casus. Village, Town or City within or adjoining the County ; (/>) liut the By-law for this ]iurj)ose nhall be .subject to the four hundred and twenty-fourth section of thi.s Act; (q) 2\)-','A) V. c. 51, s. 344, sub. 1. Opening and Altering Iioads. (2.) For opening, making, preserving, improving, re[)air- optninj^.&c. ing, widening, altering, diverting and stopping up roiula, ,v'it'(|f,\f,r' streets, srpuires, alleys, lanes, bridges or other public com- iiftwi'.u ninuications, running or being within one or more Town- muui','ii,i>:i- ships, or between two or more Townshijts of the County, or '-''^■^• niiy bridge recpiircd to bo built or r.iado across any river over two hundred feet in width within any IncorpoiMt(>d Village in the Coiuity connecting any pu])lic highway h-ad- iug through the County, and which is in continuation of a County road, or between the County and any adjoining County or City or separated Town, or on th(! boiuids of any Town or Incorporatetl Village within tho boundaries of the County, as the interests of tho inhabitants of the County, in tlie opinion of the C/Ouncil, require to be so opened, made, preserved and improved, (;•) and for entering upon, (h) Sec note h to sec. 412. (o) Tliu stopiiing up of a highwaj' h one thing, and the sale of it auuther. The sale is in no way estsoiitial to the etfcctive btoppiug uj» of uiie highway. The power is to pass 15y-la\\:i f^a* stopping up, -ji' btopping up and sale, <^o. (See note ;/i to see. -il-'O. ) (;*) The powers conferred, so far as Counties arc conccrncil, are limited to au origin.al allowance for roa')>n/iijii!, (f'tr. (4.) For cn'-'i^^tbi" to any Town, Townsln'p or Incorporated FJ oitenint; or making any new road or bridge in the Town, 1"'''JoL"- Townsliip or Village, in eases wlifre the Council deems the County at large suHiciently interested in the work to justify [j,"",7'."!',7- such assistance, hut not suiiicicntlv interested to justify the tiinH..ii()i.ii . , •! • I • ii ' X ' '^ / \ iniiiiiciiKili- Couneil m at once assuniing the same as a county worK, (lo) ,,,,„ ,,p,.t)iii- and also for yuaranteeing the debentures of any Municii)ality '"'"'^ '" . ». I •/ Jin';il mufit' witliin the Co(uity, as the Council may deem expedient ; [x) ciimiitii-*. 20-aO V. c. f)l, s.^J44, sub. G. ((•) If the |)roj)netor liiinsclf cut the trees they l)ccmnG liis pro- perty. They are his property as owiMiC nf tlie laud. (See note,/' t<» sec. 42,").) Hut if he in;ike default, the ])y-I.iw may authorize the trees eitlier to be used f'lr Muuieiiial pufjioses or sold to defray the exjiense.s of carrying the Hydaw into etl'ect. (vSee latter jiart ot note ■III to suli. 10 of see. ',il\).) Further expense, if any, to be paid cmt of County funds. {to) The ordinary powers of a County C!oiineil arc, so far as roanc(l, improvoil and inaintainod hy such hjcal iMunici[tality. (y) * Poivcni of Tou'ushlp (.'ouiiciln. 441, The Council of (ivvry Township nia^ pans By- laws : (a) Aiding Comities. (l.) For granting to any adjoining (,*ounty aid in making, ojHJuing, maintaining, widening, raising, lowering or other- wise inii)roving any highway, road, streot, bridge or com- munication lying between the Township and any otlicr Municipality, {h) and for granting like aid to the County ia which the Townsliip lies, in respect of any higiiway, road, street, bridge or communication within the Township assumed by the County as a County work, or agreed to bo so assumed on condition of such grant, (c) -l'J-3() V. c. 51, s. 3-15, sub. 1. Closimj Road Allowances, (2.) For the stopjnng up and sale of any original allow- ance for road or any part thereof within the ^Municipality, and for fixing and declaring therein the terms upon which (//) Tills is a new i)rovision, rendered necessary in all proljiihility hy tlio decision in //) /v I,',).-if ami Storiiwiif, '2'2 U. V. i}. B. ')'M. Soo note li to see. -112. Hut the necubsity for such a provision caunot lic said to have arisen from any language used by tiie Judges in tluit ease. On the contrary, t!ie language used is simply opposed to tlio lioliey of such a provision. (a) " Mill/ pass By-laws," etc. (Sec note b to see. 412.) {h) The powers of a Township Coimcil imder this sectit)n are ior passing J>y-Iaws to aid any adjoining Township in — 1. Making; i 2. ()"p(;niu<^; 3. Maintaining; Any highway, road, street, bridge 4. Widening; - or connnuiiicatiou lyiTig hehfi'in 5. liaising ; the 'J'ownship and other Muui- G. Lowering; cii)ality. 7. Or otherwise improving ; J See generally as to tliese powers, note p to sec. 424. The description of aid "by loan or otherwise " is not specified here as in sub. 4 to sec. 440. (c) The power is not to aid the County in respect of an;/ local highway, &c., assumed by the County as a County work, but only when in the case of a highway it assumed "on condition of such grant ;" 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 wliich it was assumed. S. 411, sul). 3.] TIlKEa OnSTRlTTINCi IIIKIIWAYS. 449 liridye Miiui- tlio siUiic is to \»' solil ami cDiivcvtMl ; (y tlu^ Municii»al Corporation. (Suo notu p to sec. 40!).) Notliing would 1)0 more likely to render .such wulkn unlit and un.«afe for the j)urpo.ses of llieir di'HJgu than to allow jiei-sons to travel thereon on liorHehaek or in vehielew. Ilenei; tlu: express power to prevent the latter mode of travel hy imposition oi penalties. It is apprehended that Corporation.^ of '^ownship.^, like other local Muni- cipal Corporations, would have an inij)lied power to do all that is here authorized. (?h) The freehold of a road, notwithstanding the dedication of the right of way to the public, renuiins in the owner of the soil. If the road were laid out by the Crown, the soil and freehold would remain still the projierty of the Crown. (See note in six of the most puhlio phu ■; in tiio iiniucdiatc^ ncifjjliliorhood of such road for at h'ast our mouth pi-cvious to the time fixed for cousiih'rin^ such I'.y law ; (//) I'lovidcd also, that the deed of conveyance to the punihaH*'!* or i)urchasei'H, P''"^'*" under said lly law, shall contain a proviso protcctinj^ the road for public! travel, and pri'ventiuLj any uses of the granted rij^dits interfering with public travel, (o) 31 V. c. :5<>, s. ;{7. Suhi of Jioadu in VUhi(jrn or Ifmntets. 44*(. Ill <"e^<' the trustees of any Police Village, or fifteen wiim mails of the iidialiitant householders of any other Unincorpoi'attMl ji" r"ii'i'.vii- Village or Handet consisting of not less than twenty dwell- cc itiiiniijun- ing houses standing witliin an area of two hundred acres, J,'jI,'!,I".',7 ,''!, petition the Council of the Township in. which the N'illage moM, &(■. iiy or Hand(it is situate, and in case th(> petition of such eyuncils.' Unincoqiorated Village or Handet. not being a Police Village, is acicompauied by a certiticate from the Registrar of the County within which th<^ Township lii-s, that a plan of the Village or Hamlet has boon duly deposit(Ml in his otHco according to the registry laws, (y;) the Council may ill tliu Cease of Htandiug timber, the removal of which ia necessary to the eujoyaient of tlic public eiisenient, sucli a power HJiould exist. (Sue note,/" to sul>. 4 of sec. 42.").) Hut that reiwou haa no appliciv- tiou whatever to tlie sale of miuerala found ntnkr roads. («) See sub. I of sec. 4'24, and notes tliereto. ((>) Tlie right of the public to the use of tlie highway as a high- way is p.'iraniount to any right to remove minerals. The latter right therefore nuist }>e so exercised as not to interfere with tiie former. Th'! Municipal Corporation is liable to be sued by any person sus- taining (hunages hy reason of defect in tiie iiigiiway, and may, in Bonie cases, without any contract, liave its remedy over against the person who caused the ilefect. (See note 7 to sec. 40!).) ip) Tlie power of the Townsliip Cinincil to act under thi.s section only arises — b In crse the trustees of any Police Village, or ilfteen of the iuliabitant 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 l)eing a Police Village, is accompanied by a certilicato from the Registrar of the County within which the Township lies, that a jjlau of the Village or Hamlet has been duly deposited in his office according to the registry laws. Whenever any land or original town or township lot has been surveyed or subdivided into town or viUage lots or other lots, so 452 THE MUNICIPAL MANUAL, [ss. 444, 445. pass a By-law (jf) to stop uj), soil and convoy, or othorwise deal with any original allowance for road lying within the limits of tho Village or Hand(!t, as the same sliall be laid down on the ])lan, l)ut subject to all tlie restrictions con- tained in this As. Sec. 409-470. 441. lu case tlie niiijority in number of the ownoi-s, as shown by the hist i-evisod assessment roll to be resident on ily-iaws^'for the proi)erty to be benefited in any part of any Township, xtTi-iins'lc- ^^^7' Town or Inoor[)omted Village, do petition the Council araiiiage,&c. for the dee[)ening of any stream, creek or water-course, or for draining of the property (describing it), («) the Council may procure an exauunation to be made by an Engineer or Provincial Land Surveyor, of the stream, creek or water- Jlunioipal I'imiu'ils Kxamina- tion by fiigiiiuer. such an investigation respecting such roads or Hues, &c., as are material to the exercise of the jurisdiction which tlie Councils possess. The section is founded on sec. 12G of the ohl Act \'2 Vic. cap. 81. (rt) This part of the section is ineftect the same as sec. 2 of statute 36 Vic. cap. 39, Ont. There are several proceedings under it necessary l)cff)rc the jiassing of any By daw. The first proceeding necessaryis that here authorized — viz., a petition from " the majority in lunnljcr of the owners, as shown by the last revised asset-sment roll to be resident on the property to he benelited in (unj /icirt of any Township," &c. It has not yet been ileeided vliat innjurUii is Bufficient to jirocurc the action of the Council. " Four concessions in a ToM'nshi}) may he interested in dillercnt degrees in a work which would drain all the lands in those concessions ; hut it might he of more imijortance to the owners of the lands in un<' of those conces- sions than tt)all the owners of the lands in the other three to procure the construction 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." (/Vr (Jwvnne, J., In re Monfer or Sui'veyor, and an *=>*t'""^'-'*- assessment to bo made ))y such Engineer or Hurveyor of the real property to benefited by such deepening or drainage, stating as nearly as maybe, in the opinion of such Engineer or Surveyoi-, tlie proportion of benefit to be derived by such deepening or drainage by every roail and lot, or portion of lot; (b) and if the Council be of opinion that the deepening of such stream, creek or water-cour.se, or the draining of the locality described, or a i)ortion thereof, would be desirable, the Council may jwuss By-laws — (c) (1.) For providing for the deepening of the stream, creek Fm- tlocpcn- or water-coui-se, or the draining of the locality; (of) am'idniin'-^ . ago. (h) On receipt of the requisite petition, the Council may, in its discretion, refuse to proceed further. (See note A to sec. 412.) But if the Council y-hiw; 1)ut if of a negative ojiinion, tliere is no power to compel the (louncil to do so. (See note li to sec. 412.) {(1) Tiiis jKirt of the section is in effect the same as sub. I of sec. 2 of IMi Vic. cap .S9. The i)urposes for which such a F.y-law may be passed are for the deei)eniiig of anv stream, evcek or water-eour.se, or the draining of the locality. The effect of deepening a particular stream, creek or water-course may be more effectually to drain the locality, but there may be localities requiring drainage in the immeiliate vicinity of which there is no stream, creek or water- course. In either event it is contemplated that a By-law may b6 asked and passed. (Sec note u to sec. 402, as to streams, creeka and water-courses.) 45G THE MUNICIPAL MANUAL, [s. 4-1:7, Sllb. 3. For borrow- /2.) For boiTOwiiij', Oil tlie credit of tlie M\inicii)ality, the fuuds, &c. funds necessary for the work, and for issuing the debentures of the Municipality to tlie requisite amount, in sums of not less than one hundred dolhirs each, and payable within fifteen years from date, with interest at a rate of not less than five per centum i)er annum ; (c) For lovvin" (^•) ^'^^' ^^^^^^^^^^n '-^^^^^ ^^^^ji^g) "1 ^^1^ Same manner as taxes r.ito for i.ay- are levied, upon the real property to be benefited by the ''^'^' deepening or draining, a special rate sufiicicnit for the pay- ment of the }>rincipal and interest of the de})entures, and for so assessing and levying the same, as other taxes are levied, by an assessment and rate on the real jiroperty so benefited (including roads held by joint stock comi)anies or piivate individuals), as nearly as may be to the benefit deri\ed by each lot, or portion of lot, and road in the locality: (/') {e) Tlie amount borrowed is to be payable within fifteen j'cars from the date of the By-law, and yit no provision is made for requiring the By-law on the face of it to show the (Late of its passing. It is necessary to tlie validity of an ordinary By-law to raise money on the credit of tlie Municijiality, that it shouhl name a (hiy in tlie financial year in which tlie same is passed wlien the l>y-law sliall take effect. (Sec. '248, sub. 1.) This section, however, does not require that such a day should be named in the By-Law. (/Vr (iwyiine, J., In re Montiiomcry niid Ihthiiih, 21 IT. C. V. l\ 397.) But even in the case of an ordinary money B3'-Liw tlie Court of ('omnion I'leas refused, after the issue of deheiitnres, to (juash the By-law on the ground of the omission. (In ?•(■ Mh'hii' awl Toronto, 11 V. C. C. P. .S71».) Draper, C. J., said— " ( have felt a good deal of doubt whether the Legislature did not inteml that in the body of every By-law shall be stated a day upon which it is to take ellect. The date on which a By-law is ]>asseil does not necessarily form a part thereof, though it may be the practice for some officer of the Cor])oration to mark the day of its passing thereu])on. And I think the Legislature meant that it should not be necessary to refer to anything extrinsic to the Bj'-law, for the I)urpose of learning when it would or had come into ojjcration. The purchaser of a debenture, for instance, would refjuire to see that it and the By-law under which it was issued were legal, and might on that account recpiire to see when the By-law took effect." (/) This part of the secticm is in effect the same as sub. 2 of sec. 2 of 32 Vic. caj). 43. A By-law enacted that the drain should be made in aeconlanceM'ith the surveyand levels taken by theEngineer; that there should be raised, levied and collected off the lots and parts of lots in the Township to be benefited by making such drain, the sum of .|2,G9(); that the sum of §2, GOG should be divided into three equal annual payments, bearing interest at the rate of eight per cent, per annum, first payment to be made in 1871, and to continue in each year till the whole shouLl be jtaid, for the purpose of paying one part of the cost of said drainage, and the cost incidental thereto assessed upon the lands aforesaid j and the Collector should iu each S. 447, sub, 3.] DEEPENING STREAMS AND DKAINAGE. 4J>7 Provided always, that any person whose property has been rr^visn. assessed for such deepening or drainage may pay the amount of such assessment, less tin; interest, at any time l>efore the debentures are issued, in which ciise the amount of deben- tures shall be proportionably reduced ; (_r/) And provided rroviso. further, tliat any agreement on tlie part of any tenant to pay the rates or taxes of the demised property, shall not vear place the same upon tlie ( "ollector's rate against eaeli lot or part of lot "as set forth in the annexed seliedide," to l)e collected ami 2)ai(l over to the Treasurer, as other taxes wei'c collected and jiaid over, to form a sinking fund to meet the payment of debentures. It then provided for payment by tlie Trea.snrtjr of the Munici])ality of the sum of i^'MM) assessed on roads and roail allowances. It then provided for the issue of delicntures for !?'J,(iiM), at a rate of interest not e.v needing eight per cent, per annum, in sums of not les.s than Sl(^> each, payable in three years from hlth December, ISTO; and, lastly, that if the amount to be collected from sucli assessment .';]i()uld, by reason of the lands Ijcing non-resident, or otlierwise, fall short of the sum rcydaw was sustained as against the ohjectifin. (In re MontijiiiiKrn nml Unlihjli, '21 U. C. ('. V. ."58].) " l^]ion a careful consideration of the section, we do think the objection is not insurmountable." (Pi r (Jwyiine, J., //'. ;]'.).").) Tlie learned Judge, after using the language (]Uoted, made a critical examination of the section, leading to a particular construction, but which examination is too long for insertion here, and then concluded : "This section of the IJydaw is, we think, open to this construction, and being so construed seems to be free from the objection taken."' ^'otwithstanding, it is recommended that such a liydaw be not made a jirecedent under this Act. It is inserted here not as a guide, but as a warning against its use, or the use of any KydaAV at all like it. TIh! Legislature has very wisely, provided a form of Bydaw which shall (iniifdfi'i mutumll-i) lie used. (See sec. d-18. ) (;/) This is a new and usefid provision. It is in effect an authority for the payment of a debt in advance' ; and as an inducement there is a rebate of interest. But it is to be observed that the privilege can only be exereisi d "before the debentures are issued." After the issue of the debentures the debt for the \shole amount is contracted, ami it rests with the purchaser, who thereby becomes the creditor of the Municipality, to say whether he will accept pay- ment of f uy of the debentures before maturity, and, if so, on what terms as to rebate of interest or otherwise. 458 THE MUNICIPAL MANUAL. [s. 447, Sub. 5. For provid- ing liow assessment be i)ai(l. For asccr- lainins the proju'i-ty liable to the rate. 32 V. (Ont) c. 30. apply to or include the charges or assessments for draining under this section, unless such agreement shall in express terms mention or refer to such charges or assessments, and as payable in respect of drainage works; but in cases of contracts of purchase or of leases giving the lessee a right of purcJiase, tlie said cliarges or assessments shall be iulded to the price, and shall be ])aid (as the case may be) by the purchaser, or by the lessee in case ho exercises such right of purchase ; (Ji) (4.) For regulating the times and manner in wliich the assessuiijut shtdl be paid ; (t) (o ■ 'letermining what real property will be benefited b_y C "Hi iiig or draining, and the propoi'tion in which the . .soc.sir.uiit should be made on the various portions of land.-; so beiieiitrd, (/r) and subject in every case ofconipliiiut, hj •, ;io o\.'ner o- "-vson interested in any property assessed, whether ol jV<'V'Ui!ir'.;e, 'iv of undercharge of any other pro- perty assessed, or t'lat property that should be assessed luus been Avrongfully omitted to be assessed, to proceedings for trial of such comjilitint, and ap]ieal therefrom, in like manner as nearly as may be as on ])roce(>dings for the trial of com- plaints, as set forth in the sixtieth, sixty-tirst, sixty-third, sixty-tifth, sixty-sixth, sixty-seventh, sixty-eighth, sixty- (A) The purpose of the By-law is to improve the fi'cohold. The money to lie raised luider the By-law is not so mueh a tax as the consideration for the improved drainage. This l)einf;f so, the obliga- tion to pay is tlirown u^xin the owner of the freehold, and not upou the tenant, who lias merely covenanted or agreed in the ordinary form to pay taxes. t)ne exception, however, is where, l)y the lease, he has expressly agreed to pay eharges in respect to drainage works. Another is where tlie lease contains a contract of i>urehase, in which case such eharges shall l)e added to the price to be paid by the^pur- cliaser. If it were not for this express exeniption, it niigiit be lield that ordinary tenants under a covenant to pay taxes would be bound to pay tiie drainage rate. (See In re Mlchie and 7^oronto, 1 1 U. C. C. P. 37!).) (j) This part of the section is iu effect the same as sub. 3 of sec. 2, S2 Vic. cap 43, Ont. (/>•) This part of the secti(m is in effect the same as sub. 4 of sc!c. 2 of 32 Vic. cap 43, Ont. It was held not to be necessary for tlie By-law to specify the mode of ascertaining and determining tiic property to be benefited. (In ra Moiitijuinvri/ and Haldyh, 21 U. C. C. r. 381.) Held also, that a schedule annexed to the P>y-law, showing the benefit to l)e derived by each lot from the drainage to be performed under the By-law, which schedule was declared to be part of the By-law, sufficiently indicated that the lands so assessed were assessed as tlie only lands within the Municipality regarded as beueiited by the proposed work. (See note /, page 450. ) s. 448.] FORM OF DRAINAGE BY-LAW. 459 ninth and seventieth sections of "The Assessment Act of 1S69;"{1) (G.) Trial of siicli compliiints shall he had in the fii"st court of instance by and before a (Jourt of Revision, wliich the {!. lave" Council shall, from time to time, as occasion may require, I'limnry hold, on some day not earlier than twenty nor later than ''^'"'* thirty days from the day on which the By-law shall be first published, notice of which shall be published with the By-law during the first three weeks of its ])ublication; and such Court shall be constituted and liavo the })owers r(>ferred to in sections laimbered from fifty-one to fifty-eight, both inclusive, of the said Assossment Act; and in case of ajjjjoal Appeal to to the Judffe, iunior or acting Judije of the County (Jourt, County he shall have tlie same powers and (hities, and the (/lerljs of the Munici])ality and Division Court respectively sliall have the same })owers and duties, as nearly as may be, as con- tained in sections nun)bered from sixty-three to seventy, both inclusive, of such Act. {m) 35 V. c. 2(.i, ss. 1 and 2. 448, Such By-law shall {^mutatis mutandis) be in the form or to the efiect following: — {71) A By-law to provide for draining parts of (or for the Form of hy- deepening of in, as the case may h,e) the Township of ''^^^• , and for borrowing, on the credit of the Munici})ality, the sum of for comi)leting the same, (y) Provisionally adopted the day of A. D. (P) (I) See notes to sees. 60, 61, 63, 65, 66, 67, 68, 69 and 70 of the Assessment Act. (m) " The object of the Act, as it appears to me, is to make the appeal to the Council, if not apjjcaled from to the Comity Judge and the decision of the County Coiut Judge, if the ai)peal should be carried to him, as linal and conclusive as the decision of the Court of Revision and the of County Court Judge respectively are under tlie Assessment Act, which is an Act that may 1)e said to l>e in pari materia with the Municipal Institutions Act, of which 32 Vic. cap. 43 (the former Drainage Amendment Act) is but a part. |Juch a mode of decision upon the several matters being i>ri)vided by the Act, seems to conclude the idea that these matters can he oiiened upon a motion to quash the By-law, and we are of opinion that they cannot. " (Per (iwynne, J., In re Mont- yoimry and Balciyh, L'l U. C. C. P. 393. ) Tliis part of the section is in effect the same as sec. 3 of 36 Vic. cap. 39, Out. (n) The words are .shall be (not Jiini/ be) in the fortii or to the effect following. (See note h to sec. 238.) (0) See note d to sub. 1 of sec. 447. (p) See note e to sub. 2 of sec. 447. 460 THE MUNICIPAL MANUAL. [s. 448. Wliereas a majority in number of the owners, as shown hy th(! last revised assv>ssment roll to be resident on the property hereinafter sei forth, to be benefited by the drainiige (or deepening;, as the case may be), have petitioned the Council of the said Township of , praying that ((/) [here set out the purjiort of the i)etition, descrihiiKj (jeneralhj the in'opertij to he henejitcd); (qq) And whereas, thereui)on the said Council procured an examination to be made by , being a person competent for such jiurpose, of the said locality proi)osed to be drained {or tlie said stream, creek or wa.tcr-coui'se proi)osed to Ijc deepened, as the case inai/ be), and lias also procured i)lans and estimates of the work to be made by the said , and an assessment to be made by him of the real propei'ty to be benefited by such drainage (or deepening, as the case may be), stating, as nearly as he can, the proportion of benefit ■which, in his opinion, will be derived in consecpienceof such drainage (or dee})ening, as the case may be), by every road and lot or poi'tion of lot; the said assessment so made, and the report of the said in respect thereof, and of the said drainage (or deei)ening, as the case may he), being as follows : (here set out the rej>oi't and assessment of the Emji- neer or Surveyor employed); (r) And whereas the said Council ai'e of opinion that the drainage of the locality described (or the deepening of such stream, creek or water-course, as the case may be) is de- sirable; (s) Be it therefore enacted by the said Municipal Council of the said Townshi[) of , pui-siuxnt to the provisions of an Act of the Legislature of Ontario passed in the thirty-sixth year of Her Majesty's reign, chaptered forty- eight. 1st. That the said report, plans and estimates be adopted, and the said drain (or deepening, as the case may be), and the works connected therewith, be made and constructed in accordance therewith. ♦ 2nd. That the Reeve of the said Township may borrow on the credit of the Corporation of the said Township of (t) (q) See note ss to sub. 6 of sec. 248. (qq) See note rt to sec. 447. (r) See note ?> to sec. 447. .. .' (s) See note c to sec. 447. (<) See note e to sub. 2 of sec. 447. 448.] FORM OF DUAINAGE BY-LAW. 461 the Htiiii of , boins' tlio funds nocossarv for the work, and may issue dobonturt's of t\w Corporation to that anionnt, in sums of not less tlian one hunih't^d dollars ejich, and payable within years from the date tluMvof, with interest at the i-atc of per centum per annum; that is to say, in (insert the vinnner <\f ixiipihent, iiihether In annual ])a>/)iu'uf 8 or othprin'sc); such debentures to be payable at , and to hav(; attached to them cou})ons for the payment of interest, (k) 3r(l. That for tlie purpose of payintf the sum of (four hundred and sp.centjj-Jice dolfdr^), beiui,' the amount chari;(Ml against the said lands so to Ijc benelited as aforesaid, otlu^r than lands (or roads, or lands and roads) belonging to the Municipality, and to cover interest therc^on for years, at the rate of (Jive) per cent. i)er ann'.im, the following special I'ates, over and above all other rates, shall be assessed and levied (in the same manner and at the same time as taxes are levied) u})on th(! undermentioned lots and parts of lots; and the amount of the said special rates and interest assessed as aforesaid against each lot or part of lot respec- tively shall be divided into ecpial juii'ts, and one such part shall be assessed and levied as aforesaid, in each year, for yeai's after the tinal passing of this By-law, during Avhich the said debentures have to run. (v) Conces- sion. Lot or Part of Lot, 5 S W i 8 9 S h and N i 10 200 100 50 ,100 200 150 Chargeable to Municipality for roada (or lands, or roads and lands), To Cover IliitiTcst for . 1(10) years iit lirovemeut. Lr,^ j,[.,. ,.^.„t Acres. Valuo of Im I Annuiil Total As.se.ssiiieiif. Special iluriiigeacli Rate, I year for (1(1) years. i? cts. 75 00 50 00 30 00 80 00 150 OO 90 00 475 00 120 00 595 00 4th. For the purpose of paying the sum of one hundred and twenty dollars, being the total amount assessed as aforesaid (m) See sub. G of sec. 248, and notes thereto. (v) See note/ to sub. 3 of sec. 447. 4G2 THE MUNICIPAL MANUAL. [ss. 449, 450. AiiieiKlitiPut of by-l:iw. Hcforc final IPiissiii};, liy- law 111 ill' publisliLil. Also nntiro as to wlicii ftiid how in'o- (loediiigs lo qimsli to bo taken. Copy of by- law and notices ti lie posteu Ul). If no a.]i\iU- or anuiiin, a spcciil rat(! of in the dollar shall, over and ahove all otlair rates, he levied (in the same manner and at the same ti»ne as taxes are levied ) ui)on the whole ratable ])rojK;rty in the siiid Town- ship of , in each year, for the pei'iod of years after th(! date of tlui iiual jiassiu;,' of this liy-law, during whioh the said debentures have to run. In the event of the assessment being altered by the Coui't of Jlevision or Judges, the By-law shall, before being finally passed, be amended so as to correspond with such alteration by the Court of Ecivision or Judge (o?* as the case may be), 440. Before the final passing of the By-law it shall bo publisluul once or oftfiuer in every four weeks in some; news- paper in the Municipality ; or, if no newspa[)er be ])ublished thei'ein, then in some newspaper published in the neare'st Municipality in which a newspaper is pul)lished, ['*. "When tho dooiKMiin,',' and draiiiage do not extend win'ii i.m.i-., hevond th(^ limits of the Municipalilv in which thev are ^^'■- iuml- cojnmenced, l)ut, m tho opinion ot tla^ hngiiu'er or tMii'veyor inmiicipHlity _; .._____ ' 'l'"y ''I' ((/) Thif? is ;i iiiosfc tixtraenliniirv eaactinciit. Tt is in effect tlu; tli(iiij;h saiuo iiH siH,'. r» of Mil \'ic. cnji. IV.), Out. In tlu; case of an iinliiiivry "''".'*^.""* IJy-liiw, if tli(! ajijihcatidU to (juasli he not nuule within tlie tiiuu in 'sll(ii'r',iiiiii-' that iKliidf hmitcd (.seu note /* to .sec. 4 lit), the Coiirt Avill not uiiiulity. entertain it. Hut tlio valichty of the Hy-law is subject to be inci- dentally (lucstinncil in any suit or proceeihng that in.ay afterwards arise in reference to it. (See note .s to see. 404.) Here it is l)rovir J'unn, eitlier iii the Hy- law itself or in the time or manner of passing" it, ])0 "a rt/(V/ /y//- I'tin," In other words, that which by reason of some substantial (lefeut, is utterly void when passed, afterwards becomes a v;ilid Hy- law ill consequimco of the neglect of some jierscn interested, within ten days after the passing of the Hydaw to give notice of his intention to make ajjidication to (juash the J>y-law. This is certainly a vigorous api)lication of the uiaxim, " V'oiilaiitVitin H nun (himuinl'dins jura Kiihrcnluiif." The section has not even the (jualifyiiig wiu'ds "So far as tlio same ordains, i)rcscribes or directs anything n'flli'm the projicr rdnipcU'iicc of (he. C'oiuici/,'' iiseil in see. '2'.VJ. (See note j to that section.) Hut it remains to be decided whether tlie omission of those words, eitlicr designedly or aceiilcntallj', is to be held to confer a power snh viodo to jjass a By daw clearly beyond the compe- tence of the Council. ((') Apparently, the Engineer or tSurveyor emplf)yed by the Coun- cil is, in the lirst instance, to judge of the necessity of continuing the deepening or drainage beyond the limits of the Muiuci[)ality. If he think it necessary ho may continue the survey and levels into the adjoining Municijiality, " undlhu finds fall enough to curry the water beyond the limits of the Municipality in wliicli tlie deepening or drainage was commenced." No Municipality, and no ofliccr of any 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. (See iK^te a to sub. 1 of sec. 4'J;).) This section is in effect the same as sec. G of 30 Vic. cap. 39, Out. 4CA TIIE'MUNinrAL MANUAL. [h. 4:.n. afoiTSiiid, lionofit IiiiuIh in iiii niljoiiiiii'^ Miuii('i|mlitv, (tr greatly improve any road lyiiif,' vvitliiii any Municipality, or Ih'Iwccii two or nioi'c ATiinicipalities, ( /') tlicu tlis^ I'ln^^'inccr or Siir\<'yor aforesaid tsiiall eliai'jL(e tli<' lauds to Im so hene- lited, and the t'oi'poiation, person or company whoso roiid or roads are improved, with such proj>ortion of tlio costs of th(! works as la; may deem just; and the amount so eharjj;c(l for roads, or agreed np(.n by thc^ arltitrators, sliall lie paid out of th(( general finulsof such iMunici]»ality or company. {0. Tho Council of such lasfc-montioned INI unicipality shall, within four months from, tho delivery to the head of the ( 'orporation of tho rei)ort of tho Engineer or Surveyor, as provided in tho next preceding section, (o) pass a IJy-law or By-laws to raise such sunx as may bo nameil in the report, (p) or, in case of an appeal, for such sum as may bo determined by the arbitrators, in tho same mann(!r and Avithout such other provisions as would have been [jroper as if a majority (() /. e., tho Engineer or Surveyor appointed hy the Council to examine the creek, stream or water-course proposed to be deepened, or tlie locaUty proposed to be drained. ^ee note c to sec. 447. ) This section is the same as sec. 9 of 36 Vic. cap. 39, Out. (j) See note h to sec. 453. {k) See note / to sec. 452. (K-) This section is the same as sec. 10 of 36 Vic. cap. 39, Ont. (/) See note h to sec. 453. {m) Two things are to be observed: 1. What is to be served. 2. Upon whom service is to bo effected. 1. Tlic service is to be of a copy of the report, plans and specifica- tions of tlio Engineer or Surveyor, so far as they affect the adjoining Municipahty. This is to be done when necessary. 2. The service is to be on the head of tho Municipahty. This is sufficient. It is not like the service of the notice under sec. 449, wliich must be on tho head of the Municipahty and the Clerk. (n) See note m to sec. 447. (o) This section is the same aa sec. 11 of 36 Vic. cap. 39, Ont. (p) See note j/ to sec. 453. 30 ' . Plana, kc. Connnll (if inuniripality wlicicin work bt'guri to niitify liiuiii('ii>nlit,v ti) be bcni!- Munioijml- ity so iiiiti- lied Hhnll ]iro(.'ecil to riiiHC llCCtK- Hary lunouiiti). 466 THE MUNICIPAL MANUAL. [s. 457. But such municipal' ity may appeal. of the o^vnf3l■s resident on the lands to be taxed had peti- tioned, as provided in the fonr hnnth-ed and forty-seventh section of tliis Act. (q) 35 V. c. 2G, s. 10. 451. Tlie Council of the Municipality into which the deepening or drainage is to 1)0 continued, or whose lands, road or roads ai-e to be benefited without the doejiening or drainage being carried within its limits, (r) may, within twenty days from the day on wliich the re[)ort was served on tlie head of the Mumci[)ality, (s-) appeal thtTefroni; (i) Procaedings [y^ which case they shall serve tlie head of the Corporation from which they received the report with a wi*itten notice of appeal. Such notice shall state the ground of appeal, the name of an Engineer or other person as their arbitrator, (u) and calling upon such Corporation to appoint an arltitrator in the matter on their behalf within ten days after the ser- vice of such notice, (v) 35 V. c. 20, s. 11. (q) The obligation to pay for deepening or drainage may arise citlier when a majority of owners in the particular Municipality petition luider section '147, and a By-law is thereupon passed, or when such a petition and Hiich a By-law is passed in an adjoining Municipality, and under the operation of which land in tlie particular Municipality is likely to be 1)eueiited thercljj', and has 1)cen so charged by the lOngiueer or Surveyor. This section provides for tlie latter alternative. (r) The first part of this section is in cfTect the same as section 12 of 30 Vic. cap. M'.), Out. (s) As to comimtation of time, see note a to sec. 128. (t) Tlie appeal can oidy be had within the time and in the manner herein directed. The right of api)eal is given, as it were, only on certain condititms. The light can only be exercised within twenty days from the day on wliicli the report was Her\ed on the head of the Municipality. The mode of its excrcLse is by service within that time of a Avritteu notice of appeal. Such notice must state — 1. The ground of the ap[ieal ; 2. The name of the I'higineer or other person appcjintod arbitrator for the Municipality appealing ; diid 3. Call upon the other Municijialitj' within ten days after service to appoint an aibitrator on their behalf. (See sec. 01, sub. 1, of the Assessment Act, and notes thereto.) («) See notes a and b to sec. 277, and note il to sec. 279. ((') Sec. 12 of 30 Vic. cap. .30, proceeds : "And in default thereof it shall be lawful for the Council of tlie Municipality .appealing there- from to .appoint such second arliitrator, and the two arbitrators bo appointed shall forthwith appoint a third arbitrator in tlie matter : Provided alw.ays tliat in no case shall tlie Engineer or Surveyor afore- said employed to make surveys, plans and spccilications, or a member or officer of any Council concerned, be appointed or act as arbitra- tor." It is then by sec. 13 of the same Act declared : "That if, after the arbitrators have been appointed aa aforesaid, they fail or ss. 458, 459.] apportioning cost of drainage. 467 manner [iiily on twenty liuail of thill that fbitrator ngthcre- rators bo matter : ,-or afore- incinber arl'itra- 'That if, ■y fail or 4,'»8. The art )itva tors shall bo appointed by the parties in uianner lievcinbefore pi'ovidcd by the sections of this Act, with reference to arbitration, and shall proceed as therein directed; (lo) Provided always, that in no case shall the Engineer or Surveyor eini)loyed to make surveys, jtlans and speciiications be appointed or act as arbitrator, (x) Vide 35 V. c. 20, ss. 11-15. 450. After such deepening or drainage is full}' made and completetl, it shall be the duty of each Municipality, in the |)roi)ortion deterniined by the Engineer or Arljitrators (ds the case may de^, or until otherwise determined by the Engineer or Arbitrators, under the same formalities, as nearly as may I)e, as provided in the preceding sections, to preserve, maintain and keep in j'epair the same within its own limits, either at the expense of the jNIunicipality, or parties more immediately interested, or at the joint ex[)ense of such parties and the Munici[)ality, as to the Council, upon the report of the Engineer or Surveyor, may seem just ; (a) neglect for tlio space of six days to appoint a third arbitrator, the Jiulgo of tlio Comity Conrt of the County in which the Municipality appealing is situated shall, within four ''.lys after a rc(|uest, in writing, made upon him by either of the two arbitratoi's ajipoiutod as above, appoint the third arbitrator." So "each arbitrator, ])el'oro proceeding to try the matter of the arbitration, shall take and sub- scribe the following oath (or, in case of those who aiiirm, make and sul>scril)e the following ahirmation) before any Justice of the I'eace, which oath or alHruiation shall be fded with the award : "I, A. B., do swear {or affirm) that I will well and truly try the matter referred to me by the parties, and a true and impartial award make in the premises, according to the evidence and my skill and knowletlge. So help me God." (Sec. 14.) "The arbitrators shall, within twenty days after the api)ointment of the third arbitrator, meet at such place as they may agree upon, and shall then hear and determine the matter hi disjiute, and make their award in triplicate, vvhich shall 1)e binding on all parties; and one cojty thereof shall 1)0 liled with the Clerk of each of the Munici[)alities interested, and artics more iiimiediately Arbitrators shall lie ap- liuiutcil, ii'. Each niuiu- ciimlity lo coulribiito lu iiutiutuih- iiig siii.'h ik't'inning or druiiiiigi! iu iiru|Kir- tiii;us tixcd by cnyiuL'cr. 468 THE MUNICIPAL MANUAL. [s. 460, Provision for CMe of neg- lect, Ac. Liability for damage. When works not extcndui-l Itejond limits of luuuicipality commencing same, &c. or not bene- fit any otlicr municipal- ity, works to be maintain- ed by niuni- cijialitycoui- jnenciug same. Proviso. and any such Municipality neglecting or refusing to do so, upon reasonable notice in writing being given by any party interested therein, shall be compelled, by mandamus to be issued by any Court of competent jurisdiction, to make from time to time the necessary repaii-s to preserve and maintain the same, (b) and shall be liable to pecuniary damage to any person who, or whoso [)roperty shall be injuriously afiected by reason of such neglect or refusal, (c) 35 V. c. 2G, s. 16, 400. In any case wherein, after such deepening or drainage is fully made and completed, the same has not l^ecn continued into any other Municipality than that in Avhich the same was commenced, or wherein the lands or roads of any such other Municipality ai*e not benefited by such deepening or drainage, ((/) it shall be the duty of the Muni- cipality making sucli deepening and drainage to preserve, maintain and keep in repair the same at the expense of tlie lots, parts of lots and roads, as the case may be, as agroed iipon and shown in the By-law when tinuUy passed; {e) Provided always, that the Council may, from time to time, change such assessment on the report of an Engineer or Surveyor appointed l)y them to examine and report on such drain, deepening and repairs, (/) subject to the like rights of appeal as the persons charged would have in the case of an original assessment. (^) Vide 35 V. c. 20, s. 16. interested, or at the joint expense of both. The seetion is the same as the lirst part of sec. 1 7 of 86 Vic. cap. 39, Out. (h) Mandamus is not the most appropriate remedy to compel a Municipal Corporation to keep a highway in repair. Indictment is the Common Law mode of procedure in such a case. (See note oto sec. 4()J. ) But in the case of a drain the reason for the preference of an indictment fails. Hence the remedy l)y mandainns is, under this section, the ex])ress remedy. It cannot be invoked unless there be a neglect or refusal on the part of the opposing Municipality, after reasonable notice in writing given by any party interested therein. (c) See note o to sec. 409. (d) See note h to sec. 453. (e) See sec. 448. (/) This section, so far, is the same as the latter part of sec. 1 7 of 36 Vic. cap. 39, Ont. The power is from "time to time" to change the assessment. But this can only be done on the report of an Engineer or Surveyor appointed to examine .and report on the drain, deepening or repairs. Notice of such change should of course be given to the parties concerned, so that they may, if dissatisfied or aggrieved, appeal therefrom. {ff) This part of the section is not retained in sec. 17 of 36 Vic. cap. 39, Out. Provision is made by the last mentioned Act for the 460. SS. 461, 462.] DAMAGE DONE BY DRAINAGE WORKS. sec. 17 of to change )ort of aw the Jrain, course l)c iatislied or 401. Should a di'ain already constructed, or hereafter consti'ucted, by a Municipality, be used as an outlet, or otherwise, by another Municipality, company or individual, such ^Municipality, com})any or individual using the same as an outlet, or otherwise, (y) may be assessed for the construc- tion and maintenance thereof, in such proportion and amount as shall be ascertained by the Engineer, Surveyor or arbitra- tors under the formalities provided iu the preceding sections, 35 V. c. 26, s. 17. 40^. Should any dispute arise between individuals, or between individuals and a Munici[)ality, or company, or between a company and Municijiality, or between Munici- palities, as to damages alleged to have bean done to the property of any Municipality, individual or company in the construction of drainage woi-ks, (h) or consequent thereon, (i) sale of the debentures to the Provincial Government. (Sees. 19, 20, 21, 22 ami 24. ) After investment l)y tlie (Jovernment, the deben- tures are to bo deemed valid to all intents and purposes. (See. 2.3.) Special provision is made for tlie collection of the amount of such debentures when purchased l)y the Government. (Sec. 25.) And the Act is made applicable to certain drainage By daws passed before the Act took effect. (Sec. 2(5. ) (;/) The construction of a drain costs money; where such a drain is constructed by a Municipal Corporation, tliose whose Lann is benefited thereby are called upon to pay towards the cost of con- struction and maintenance. (Sec. 447-') If such a drain be used by another Municipality, company or individual as an outlet, or other- wse, it is only just that such M\inicipality, company or individual should be assessed a proportionate part for construction and maintenance. The proportionate part is, in the first instance, to be ascertained by the Engineer or Surveyor, subject to appeal, as proWded in the preceding sections. It only remains to be noticed that this section is, on the f.ace of it, applicable " to a drain already constructed," as well as to drains hereafter to be constructed. This section is the same as sec. 18 of 3G Vic. cap. 39, Ont. (/() The oi'dinary mode of redress for damages alleged to have been done to property iu the construction of puVdic works, or arising therefrom, in the absence of legislative provision to the contrary, is an action. But where the Legislature has provided a si)ecial mode of determining such matters, that mode and no other is the one to be followed. (See Vestry of tSt. Pancran v. Battcmbury, 2 C. B. N. S. 477.) (i) Comcqaent thereon. It has been recently held that a party owning a house in which he carried on an inn, was not entitled to be comjiensated for the indirect injury to his trade resulting from the diversion of trattic caused by an unauthorized act of lowering the roadway, but only for direct structural injury occasioned by the unauthorized interference with his cellar. (B'kjiJ v. Lumlun. L. R. 15 Ecj. 370; bui see liichet v. Metropolitan liailway Co., L. 11. 2 469 Case of a drain bein^ \is(!(l by iinothrr inuuiupal- ity. Disputes .IS to damage done by works to be referred to arbitratiun. 470 THE MUNICIPAL MANUAL. [S. 4G3. Drains into .idjoining lots or across liifchways, &c. then the Municipality, company or indivichial complaining may refer tlie matter to ai'bitration, as provided in this Act; (k) and the award so made shall bo binding on all parties. (I) 403. In case any person should find it necessary to con- tinue an under-drain into an adjoining lot or lots, or across or along any public highway, for the purpose of an outlet thereto, and in case the owner of such adjoining lot or lots, or the Council of the Municipality, refuse to continue such drain to an outlet, or to join in the cost of the continuation of such drain, then the firstly-mentioned person shall be at liberty to continue his said drain to an outlet through such adjoining lot or lots, or across or along such highway ; (to) and in case of any dispute as to the i)roportion of cost to be borne by the owner of any adjoining lot or Municipality, the same shall be determined by the fence viewers, in the same manner as disputes within the Fence Viewei's' Act, excepting (m7n) as to the amount of sucli award, which shall be finally decided by the fence viewers, irrespective of the provisions of section fourteen of said Fence Viewers' Act, (?i) and their award shall be final, (mi) 37 V. c. 16, s. 20. H. L. 175; Buccleiu/hv. MitrnpnUtan Board of Works, L. R. 5 H. L. C. 418; Bi'rb'tt v. Midland Brty liuiu'litcd by ("iTtnin imb- lic works iindtTtakon on a petition, &c. 4 Vic. MS.S., ''Fence Viewers," 213; Short v. Parmer ct al, 24: U. C. Q. B. CuVA.) The Court has no power summarily to set aside their award. (/« rf ('(iinvnm (iiul K. ');{;!.) liut if the award he from any cause had, it will not he a defence for anything done under it. (Mnloiic \. Fanlkmn-, 11 U. (!. Q. B. 11(); Mnrrnij v. Dawmn, 17 C. P. TiSS; Miirrai/ v. Bainmii, 19 0. P. MI 4; Dawson v. Mnrrd//, 21) U. C. Q. 1>. 4('A; see further, sec. ()2 of the Assessment Act, and notes thereto.) (o) The 29 & .SO Vic. cap. ")!, sec. 301, was, as originally framed, restricted to Cities. It was hy statute 31 Vic. caj). 3(), sec. 35, (hit., extended to '{'owns, and afterwards hy the 34 Vic. cap. 30, sec. 10, Ont., extended to Incorjxiratcd Villages. (2i) Discretionary. (See note h to sec. 412.) (q) The powers coiiferreil are to pass By-laws for the following purposes : 1. For providmg the means of ascertninirirj and diterm'tnhm what real projierty will he immediately henehted, &c. 2. For asri-rtaliiitKj and ilifiriuinbuj the proportions in which the assessment is to l)e made, &c. Siihji'ct in every case to an appeal to the .Tudge of the County Court. Neither of the Superior Courts of Law will entortaui an a])[)lica- tion to set aside a liy-law on a matter of fact, wiiich, according to this Act, or a By-law passed under it, should he ascertained and determined l)y an otlieer of the Corporation, in the ahaenee of fraud or corrupt conduct l)eing imputed to such officer. (See In n- Mirhlf- and Toronto, 11 U. C. C. P. 371); see also. In, re Montgomery and liakhjh, ^1 0. p. 381.) 472 THE MUNICIPAL MANUAL. [s. 4G4, Sub. 2. highway therein, (r) on the petition of at least two-thirds in nixrnber and one-lialf in vahie of such real property, of the owners of such I'eal property, (») a special rate, sufficient to (r) The local improvemeuts contemplated are- 1. Making, ) 2. Enlarging, > any common sewer. 3. Prolonging, ) 1. Opening, 2. Widening, 3. Prolonging, 4. ' Altering, b. Macadamizing, C. (trading, 7. Levelling, 8. Paving, 9. Planking, ctni/ street, lane, alley, public way, place, sidewalk, or any bridge forming part of a highway thereon. (s) The power to pass the By-law is here made dependent on the fact of there being a })etition of at least two-third.s in nundjer and one-lialf in value of the real property to be immediately lienefited. Besides, it is expressly declared tliatno such local improvement sliall be undertaken by the C'ouncil, otlierwise tlian on the jietition of two-tliirds in number and one-half in Aalue of tlie owners of the real propei-ty to be directly benefited thereby. (See. 4V)'}.) The want of a petition .sigue adieu, f) Bush. (Ky.) ,")()S; Burnett V. Sacramento, 12 C'al. 70; McG'ninn v. Peri, 10 La. An. .Sl>3; Litch- Jieldv. I'c/vio;;, 41 N. Y. 123; St. Louis v. Clemens, 30 Mo. 407; Louisville V. Ihiatt, 2 B. Mon. 177; Jfaynes v. Copeland, 18 U. C. C. P. liJO. ) And a Court of Ivpiity would grant an injunction against enft)rcing such a rate. {Holland v. Baltimore, 11 Md. 180; liouldin V. Baltimore, 1.") Md. 18. ) Those who sign and present the petition may be estoi)ped from afterwards cjuestioning the sufficiency of the petition as regards nund)ers. (UurVnajton v. Cilherf, 31 Iowa, 3r)0; s. e. 7 Am. Hep. 143. ) The doing of the work by the Municii)al Council or the adop- tion of it by the Council does not /xr se oblige the proprietors to pay for it. (lieilhi V. Philadelphia, 00 Penn. St. 407, distinguislied from Citi/y. Wistar, i 1 Casey 427, and Cifi/ v. Burnin, 1 4 Wriglit ( Pa. ) 430. ) the Corporation may, notwithstanding, by the terms of tlie contract, render itself liable to tlie contractor for the wliole anu)unt. {2iew AUHun/v. Sweenji, 13 Ind. 245; Luras v. San Francisco, 7 Cal. 403; Lorellv. St. Paul, 10 Minn. 200.) The Corporation may so contract as to make the contractor look to the assessment for his [)ay ; and although the assessment be void, he would not in such a case have any riglit to sue the City for Ine contract price. (Leaniurorth y. Rankin, 2 Kansas, 3.")7 ; Sniift v. Willianishnnj, 24 Barb. 427 ; Good- rich V. Detroit, 12 Mich. 279; Johnson v. Common Council, IG lud. S. 464, Bub. 3.] BY-LAWS FOR LOCAL IMPROVEMEXTS. 473 include a sinking fund, for the repayniout of dobonturos, which sucli Councils are herc])y authorized to issue in such cases respectively, on the security of such rates respectively, to provide funds for such improvements, and for so assessing and levying the same, by an annual rate in the dollar on the real property so benefited, according to the value thereof, exclusive of im])rovements ; (t) 2'J-30 V. c. 51, a. 301, sub. 2; 34 V. c. 30, s. 11. (3.) For regulating the time or times and manner in which the assessments to be levied under this sectioii are to be paid, (u) and for arranging the terms on which parties 227; New Alhnnji \. Swcpui/, 1.3 1ml. 245. See further, Kiarncji \, Covhhjton, 1 Met. (Ky. ) 'i'.Vd ; Smith v. Mihrnubc, 18 Wis. 03 ; Fiimoj V. O-ihkonh, 11). 309; Chtcatjov. Ptapli', 48111. 410; Ritpjiirtx. Hulti- more, 23 Mil. 184; Hunt v. Utim, 18 N. Y. 442.) If tlie Corponition agree with the contractor to collect the assessments, afailure todo so would remler the Corporation liahle. (^f<»^;/y tlio Council, (unless as provided in the; next section,) except under a By-law pas.sed in pursuance of the fourth sul)section of the preceding section, otherwise tlian on Uie ))etition of two-thij"ds in number and one-half in valiKi of tlie owners of the real prf)[)erty to be dirc'tly bcuelited thereby — (a) the lumdjer of such owners, and the rate of 1805 rated at .'?12,,')i'>4, cnactod that tliero shouM be raised from tlio said proprietors twenty-two and a half cents in the (hiUar, and that the oolloctor for 18(55 shoidd collect tlio same in the usual way. It then repealed a By-law of 18(i4, author- izing the levying of the frontage rate. The work in (lucstion had heon l)egun, finished and paid for in 1S(!4, with the excep- +ion of >f{]7)i), v.jiich were paid before the passage of the By- law of 1805. There was the further fact, that the whole of plaintilF'a lu'operty at the corners of two streets was assessed, wherer . the flagging extended only over a portion of it. Held, that the iiy-law contained nothing objectionable on its face; but assuming it defective in providing for the debt of the previous year, it was merely providing in 18(>5 for a debt contracted and provided for by the By-law of 1804, but provided for imperfectly, and that the mere repeal of a defective, doubtfid or invalid rate imposed within the jurisdictif)n of the Council, for .another free from all objection, is not a violation of the rule against prospective rates. Held also, that it was no objection to the By-law that certain proi)rictors were rated for the sjiecial rate who were not on the general assessment roll, nor that the assessed value of 1804 was taken instead of that of 1805, as this did not .appear on the face of the By-law, and could l)e raised in .an action of replevin. Held .also, th.at the whole of plaintifT's property .as assessed was liable, though the flagging extended over a portion only. {Rdi/iutv. Coppland, 18 U. C. C. P. 150; see further. The Great Western J{ailwai/ Co. v. West Broviwich Coinmisi-Honei-s, 1 E. & E. 806; Blarkhurn'v. Parkinson, lb. 71; Pound v. Plum- stead Board of Works, L. R. 7 Q. B. 183 ; and note d to sec. 3 of the Assessment Act, 1809.) {v) The Court in one case intimated that the owner or occupier of property drained ])y a common sewer might legally be allowed to commute by payment of a hxed sum. {In re Mcilutchon ami Toronto, 22U. C. Q. B. 613.) {w) Where funds are provided by parties desirous of having the local improvement, of course there will be no necessity for levying or assessing the rate contemplated by the previous subsections. (a) See note s to sec. 464. s. 4GG.] PETITIONS FOR LOCAL IMPROVEMENTS, 475 3 of value of such real property having been firat ascertained, and finally detennincd in the manner and by the moans Further con- provided by By-law in that l)ohalf ; {/>) and if the contom- 'J^l|;;?' "' *" plat(!d improvement ha tho construction of a common sewer having a sectional area of more than four feet, one-third of the cost thereof shall also first bo provided for by the Coun- cil of the City, V)y I>y-la\v for l)on"o\vii>g mcmey, which every such Council is hereby authorized to pass for such purpose, or otherwise, (c) 29-30 V. c. 51, s. 302. 400. In cases where the Council of any City, Town or in ocrtain Incorporated Village shall decide to contribute at least half Jjt*,ai'iiav"i,,, of the cost of such local improvement, it shall bo lawful for tiisiMusini tlie said Council to assess and levy, in manner hereinl)eforo provided by tho four hundred and sixty-fouith and four hundred and sixty-lifth sections of this Act, from the owners of real property to be directly benefited thereby, the remain- [!)) Whore a By-law provided tliat the numljer of owners and the vahie of the real i)roperty was to l)e ascertained by the City Clerk, and lie appended to the petition, a eertideate that the total ninnber of persons assessed for property to he direetly l>ene(ite(l was twenty- three, — that sixteen names were signed to the ])etiti;)n, that tlio total value of the assessed property was .'?r)2(), 182, and tliab tho amount represented l)y the signers of tlie jietition was .S-tl'?,4!)t», the Court, on an application to (piash a By-law for local improvements, refused to go behind this eertilieate. (In re. Mir/itc (dkI Toronto, 11 U. C. C. F. 379 ; see also In )v Monfi/umcri/ and J' La. An. 2!)S; see further, Gronanv. Municipality, If). 537; Maker v. Cfiirat/o, 38 111. 2(50; Ghicafjo v. The People, 48111. 416; L'dlli/ v. Pliilailelphia, GO Pa. St. 4(57 ; Michel v. Police Jury, 9 La. An. 67 ; lieock v. Newark, 3 3 N.J. Law. 129; see also, note a to sec. 464.) 476 THE MUNICIPAL MANUAL. [s. 466. ing portion of such cost witliout potitioii tliorofor, (d) unless tho majority of such owners, ropresiMiting at least omi-half in value of such property, shall, within one month after the publication of a notice of such pro[»ose(l assessment in at least two newspapers [)ublishe(l in such City, Towiv or In- corporated Village, (c) if there be two newspapers published therein, and if there be not, then in two newsit:i[)ors pub- lished nearest the pn)[)osed work, petition the Council against such assessmoit. 34 V. c. 30, s. 12. (fZ) Where a City was authorized 1)y one section of tlio Act, on the petition of two-tliinls of the owners of abutting property, to malie certain improvements in a street, and by a sultsefpunit seetion 1)ower was conferred upon the Council to order such iniiirovementa )y a two-thirds vote of the Council, it was held that, althouj^h proceedings relative to the improvements were connnenced by peti- tion from the property holders, yet, havii^g been ordereil by a two- thirds vote of the Council, they were valid, although two-thirds of the property holders did not unite in the petition, for tJiat the two- tlurds vote of the Ccnnieil made the proceedings valid, notwith- standing any prior defects. {IniHiDiiijxjfis v. Mamur, 15 Ind. 18G0; see further, Lafatjctle, v. Forvler, 34 Ind. 140.) (e) It has been hehl that where a Municipal Corporation exorcises the power to make local imi)rovements and charge the cost thereof on the lands directly benefited thereby, that the owners of such lands, if accessible by reasonal)le diligence, are entitled to reasonal)lo notice of the meeting of the Commissioners for assessing the cost, and this although the charter be silent on the sid)ject. (Stdtc v. Jitkiij, 4 Zabr. N. J. (5(J'2. See also, Coivcn v. We.'it Troi/, 4:i Barb. 48 ; Brewtacr v. Newark; 3 Stockt Ch. J. 1 14 ; Stttte v. Jfitd-^on, 5 Dutch 475; Sfata v. Perth Amhiii/, Ih. 259; i)[i/rick v. LaeroH.se, 17 Wis. 442; liathhurn v. Arb'r, 18 Barb. 393;"7iWr7/ v. St. LoiiU,U Mo. 404 ; Pulini/ra v. Morton, 25 Mo. 5!)3 ; Waslunijton v. Mui/or, 1 Swan. Ten. 177; W/u/te v. Mni/or,&c., 2 .Swan. Ten. 3t>4; Ottawa v. Railroad Co., 25 111. 43 ; Jenk'^ v. ( hinujo, 48 111. 29(3 ; Ilhinncliuan. v. OUrer, ,34 Cal. 24(1. ) Where the By-law of a Municipal Corporation provided that the Clerk of the Council should cause a notice to be left at the place of al)ode of each of the parties assessed for such improvement, that the assessment was made and the amount thereof, and that a By-law would be passed in accordance there- with unless appealed from as provided by law, the Court, on the application of a person interested, who swore that he had no notice of the By-law until some time after it was passed, and that he first became aware of the particulars of it and of the proceedings on which it was based in February before the ap2)lieation to quash, refused to quash the By-law. (In re Mk/iie v. Toronto, II U. C. C. P. 379. Per cur.) "The sixth objection is sustained in fact, as I understand the statements. But the provision requiring notice of intenticm to pass the By-law to be given or sent to parties affected by it, is not statutory, nor is the validity of the By-law made tlependent on pro- visions contained only in By-laws. Ai.d although the relator states in his affidavit that he had no notice of the By-law 'until some time after it was passed,' and that he tirst became aware of the particu- 8S. 407, 468.] LIGIITINO STREETS. 477 407. Nothing contained in the tlireo next preceding ,,^ . . sections of this Act sliall be conKtnied to tvpply to any work tionsnot to of ordinary repair or maintenance; and every connuon J,'jj','wurkrt.' sewer made, enlarged or prolonged, and .street, lane, alley, puMic way or placv, and sidewalk thei-ein, once made, opened, widened, prolongeil, altered, maeadaniizcd, paved or phinked, under the said sections of this Act, shall thereafter be kept in a good and sulHcient state of repair at tlio expense of the City generally. (/) 2'J-30 V. c. 51, s. 306. 4h-< v. Gardener, (! llh. Is. 2.")o; BaJtlmore v. JJoit/dhi, 23 ^Id. 328.) This section proA-ides for the publication of a notice of the proposed assessment in at least two newspapers inddished in tha Cit)', Town or Incorporated Village, if there be two ; if there be not, then in two newspapers pul)lished nearest the proposed work. Where the Legislature has made the giving of notice necessary, and provided a mode for giving such notice, that mode should be strictly followed. [Simmons V. Gardner, G Rh. Is. 255 ; Sraminonv. Chicar/o, 40 111. 146 ; Bislei/ v. St. Loiux, 34 Mo. 404; Jllldreth v. Lowell,' \\ Gray .345; Williams v. Detroit, 2 Mich. 5l50; State v. Elizahelh, 1 Vroom. 365; Dnrant v. Jer.^ei/ Citi/, 1 Dutch 309; Norwich v. J lab' hard, 22 Conn. 587; State v. Jerseii Cifi/, 4 Zabr. N. J. 662; l)al,aqm V. Woo/en, 28 Iowa, 571; Palmi/rav. Morton, 25 Mo. 593.) Failure, after notice, to object to an assessment before a City Council, when it had tlie power to revise and coiTcct or annid it, and direct a new assessment, was held to be a waiver of notice. (Ottaivn v. Railroad Co. 25 111. 43; see also. State v. Jersey Citi/, 2 Dutch 444.) (/) It is the duty of every Municipal Corporation to keep every public roaii, street, bridge and highway within the Corporation in repair. (Sec. 409.) The Corporation is responsible for all damages sustained by any person by reason of such default. (/6.) (g) Discretionary. See note 6 to sec. 412. 478 THE Mt'NICIPAL MANUAL. [s. 468. reHidont in nny Ktroot, H(iimr(', iillcy or Ijino, roproaoutinc,' in vtihit! uiiivliulf of the usHcsscd real iiropcrty therein, (/) such sums iiH may bo uccos.savy foi" Hwoopinj,', watcrinj,' or li<,'litiiig tlio street, S(|iiMre, alley or laiio, by mk aii.s of a special rate on the real pioperty theri-iu, accordinjj; to the frontage thereof, (j) bnt tho (.'ouneil nmy eharge the generiil corporato funtls with tho expenditure ineun-ed in sueii making or repairing, or in such sweeping, watoring or lighting as tiforcauid; {/c) (i) Tlio power is updii tlic; ]iL'litir)]i of at least two-thinla of tlio frcjoholilurs ami liimHijlinlilurb rciidciit ia nin/ atrt'ct, Hciuare, alley or lauf, reproiL'iitiug in valuu oau-lialf of tliu aasusaed real iinipurty therein, accunling to tlio frontagu thereof, to raiso 8uch hu,.i'1 as may he neces.sary for — 1. Sweeping, ) 2. Watering or / (he street, sc|uarc, alley or lane. 8. Lighting ) It is veiy plain that what the TiCgislaturo authorizes is, that the power of tho Council to iini)()se a rate for tho purpose-; indi- cated is to ho exercised uiili/ by Hji-lnvj, and that such J>y-law shouhl in every case he passed Hul)sei[uont to and conso(iuent u[)on the presentation of the ie([uired ])etition praying the particular By-law to he passed, and after tlie fullest opportunity should lie given to evi ry ratepayer to be affected by the lly-law to object to its being passed. {Per (Jwynne, .J. in Me void. (Swann v. Curnln'rlanil, 8 Cill, Md. 150; McOonhjle v. Al/''/, 44 Pa. St. 118.) Tho By-law wiU be open to objection if it do not state the amount to be raised and levied. {In re Pldtt and Toronto 33 U. C. Q. B. 57.) But where the application to quash tin on such an oljjection was not made till all the work auth been done, tho only effect of quashing it would have bee. sage of another By-law to remedy tho defect, the Com exercise of its discreti(mary power, refused to quash the By-1, It is not necessary in such a By-law to name the day when it shah take effect. {lb. ) {j) See note s to sec. 464. (i) It is in the discretion of the Council either to charge the general corporate funds with the expenditure, or to charge only the freeholders and householders whose land fronts on the street, &c. The latter course cannot be legally adopted unless there be the petition made necessary by the former part of this section. (See preceding uotc. ) 1- .id pas- the ilh.) BS. 4G9, 470.] RATES FOR LOCAL IMPROVEMENTS. 479 ami t\w Cotmcil may also, hy P>y law, (IcHuc certain nrciis or Hcctions within the Municijiiiiity in wliicli tho strcots slimiUl be v.'iitoicil, and may inijioHe a special vata npon llu! assessed real pn)[K'rty tlieitin, accoi-dinj^ to the frontage thcreot", in order to p.iv any ('Xi»enscH ineurred in watcrinij siieh streets. (/) 29-30 V. c. 51, s. 3l(), sub. 2 ; ;J7 Y. c. 10, s. 21. 44»i^. Th(! Council oi" cvory County (w) shall have power r/>oniratcH to pass Uy-hiwH (a) I'or knying by assessment on all ratable ilnjiniv';,.'' property within any par^ieular part of one or jiai'ts of two "»i"if'' Townshi[)S to Ik; deserilicd by metes and bounds in tin' I»y- law, in addition to all other rates, a sum sulHcient to defray the exi»enses of making,', reiiaiviny t)r iiiiiirovini{ any road, bridge or other pultlie Avoik lyin4; Bunky. Runv, 18X. Y. 38; Br'nije.- peirt V. HoiiMutonur. JiaUwdij Co. 15 Conn. Al't; Mar-i/i v. Fii/fon, 10 Wall. 070; Xir/iol v. X'a.'^liritle, 9 Hump. Ten. 25-2; St. Louis V. Alexander, 23 Mo. 483; Jone.-i v. Maijor, d-f., 25 Geo. 010; Dnanes- htmjh V. Jenkins, 40 Barb. 574; French v. Te.-icheniaker, 24 Cal. filH; People V. Mitrhell, 35 N. Y. 551; Thompson v. Lee County, 3 Wall. 327; Railroad Co. v. Evansrille, 15 Ind. 395; Aurora v. \Vi-4, 9 Ind. 74; Lafayette v. Cox, 5 Ind. (Port.) 38.) The power,- supposing it to be perfectly constitutional, is of that extra Munici- pal character that no intendment will be made in favoiu" of the exercise of it in a doubtful case. {Bate v. Ottawa, 23 IJ. C. C. P. 32.) Where a Municipal Corporation passed a resolution granting 81,000 to an individual in consideration of his having advanced that amount in aid of a railway, the icsolution was t^uashed. {Ih.) ('') The aid may be — 1 . By suhscription for any number of shares in the capital stock of the Company. 2. By lendimj money to the Company. 3. By (juarantceinij the payment of any sum of money borroAved by the Company. The powers are limited, to lie exercised only in favour of such Companies, as the 14 & 15 Vic. cajt. 51, or the sections 75 to 7S of Con. Stat. Can. cap. 66, have been made applicable to by any special Act. The 8ul)Scription for stock may be conditional {Hhjijins v. Whithy, 20 U. C. Q. B. 290) ; and if the amount subscriixid be jiai.l eithi r directly to the Cf)mpany, or to the contractors of tlu^ Coini)any at their refjuest, the liability of the Municipality is thereby extin- guished. ( Woodrujf V. Ftttrborouyh, 22 U. C, Q, B. 274.) 31 482 THE MUNICIPAL MANUAL. [s. 471, Sill), 4. For pinran- teeing the ])ayi}iciit of tiebeutures. For isHuiog debentures, Bonuses. (the Hail way Clauses Consolidation Act), or e sections of the Consolidated Statute of Canada I'especting railways, numbered seventy-five to seventy-eight, have been or may be made a^jplicable by any special Act; 29-30 V. c. 51, s. 349, sub. 1. (2.) For endorsing or guaranteeing the payment of any debenture to be issued by the Company for the money by them boiTowed, and for assessing and levying from time to time upon the whole ratable property of the Municipality a sufficient sum to discharge the debt or engagement so con- tracted ; (c) 29-30 V. c. 51, s. 349, sub. 2. (3.) For issuing, for the like purpose, debentures payable at such times and for such sums respectively not less than twenty dollars, and bearing or not bearing interest, as the Municipal Council may think meet j (tZ) 29-30 V. c. 51, s. 349, sub. 3. (4.) For granting bonuses to any Railway Com])any, in aid of such railway, and for issuing debentures in tlie same manner as is in the preceding sub-section provided for raising money to meet such bonuses, (e) 34 V. c. 30, s. G. It would seem that a By-law authorizing subscription for stock, especially if it authorize the isyue of debentures, is the contracting of a debt not payable in the same municipal year, so as to demand the formalities required by sec. Ii48 of this Act. (In re. liiUin Iowa, .304, 394; Gelpcke v. Dubuque, 1 Wall. 220; People v. 'Mitchell, 35 N.Y. 551; Thompson v. Lee Count)/, 3 Wall. 327; Bass v. Columbus, 30 Geo. 845; Citi/ v. Lamsou, 9 Wall. 477.) (c) A Municipal Council may, und^r this clause, cvdorse or fjuarantee a debenture issued by the Railway Companies intended, and may assess and levy a sufficient sum to discharge the debt or engcjjetnent. An endorsement imder the clause would seem to be deemed "a debt," while a guarantee is termed an "engagement." (See Con. Stat. Can. caj). CO, sec. 75.) (d) No Council is allowed, "unless specially authorized so to do, to give any bond, bill, note, debenture or other undertaking for the payment of a less amount than one hundred dollars." (Sec. 304.) By this clause a special authority is given for the issue of debentures in aid of Hail way Companies, in sums " not less than twenty dollars." (See Con. Stat. Can. cap. 00, sec. 75.) (e) A By-law of a County Council in aid of a railway to the extent of $20,000, by way of bonus, which had not been submitted to the 472.] AID TO RAILWAYS. 483 signing or Fdrni of debentuif. iiijs and cms, at mg, antl jcription, So it itiiicd by ■iginally )wa, .S04, $.5N.Y. }nhu8, 30 80 to do, ikiug ft'i' Sec. 804.) ebentures n twenty Subsci'ii)- siiiiiu. (5.) For directing the manner and form of endorsing any debenture so issued, endorsed or guaranteed, and of countersigning the same, and by what officer or person the same shall be so signed, endorsed or countersigned respectively; (/) but no Municipal CWporation shall .sub- t'ioiis^&('., to scribe for stock or incur a debt or liability for the purposes j'«L<)ntiimc(i aforesaid, unless the By-law, before the final passing thereof, ckotors. shall receive the assent of the electors of the Municii)ality in manner provided by this Act. {g) 20-30 V. c. 51, s. 349, sub. 4. 4T^. (h) An.)/ Municipalitij or any portion of any Muni- Mmiicii,ai. dpallty tvhich may be interested in securing the construction give "id^d- wards ton- ratepayers, was quashed. (Ex rel Clement v. Wentworth, 22 U. C. railway to C. 1'. 300.) It would seem that the general intention of tlve Legis- iiHsatlirmi;;!! lature is that all assistance granted to a llailw.ay Company sliould l)e '""""'"'' with the assent of the electors before gr- nted, and that the making of direct advances from moneys actually in hanil to aid a railway is not contemplated. (Per Hagarty, C. J., in In re Bat)' and Ottawa, 23 U. C. C. P. 35. ) If assumed that a Municipal Council may grant a bonus to a railway, consisting of iuiapproi)riated moneys in hand, the Legislature meant, and have so expressed their meaning, that the bonus must be to the Railway Company, and not to some indi- vidual to repay him for advances to, or services rendered tlie Com- pany. (//>. Pf/- Hagarty, C. J., 3().) A By-law granting .ij! 1,000 to an individual in consideration of his having, at the instance of the Corporation, advanced that amount in aid of a llailway Company, Was therefore quashed. (IIj.) (/ ) The powers are, to direct — 1. The manner and/or?;* of signing or endorsing any debenture so issued, endorsed or guaranteed, and ■ f countersigning the same ; (2.) By what oilicer or person the s.»me shall be so signed, endorsed or countersigned respectively'. ((j) The words commencing "But no Municipal Corporation shall subscribe," &c., though apparently a part of sub. 5, are no more a part of that subsection than of any other of the subsections. Their true character is that of a proviso to limit a qualification u])on, or exception from, the whole section. Tliey are not a part <;/", l)ut a Iualilication upon the section. (J'er (iwynne, J., in Ex rel C/eimut v. Ventworth, 22 U. C. C. P. 304; see further, Attorncij-tJeneral v. Mayor of Leeds, L. R. 5 Ch. 583.) (h) Sections 472, 473 and 474 of this Act were repealed l;j' sec. 22 of 37 Vic. cap. 10. But it is by the same section declared that "such repeal shall not aflfect anything legally done under the said sections, or any of them, or any proceedings commenced under the said sections, or any of them, which proceedings may be contiimod as if the said sectitms had not been repealed. For this reason the sections are retained in the Manual, but placed iu itaUcs ; for the same reason the notes are also retained. 484 THE MUNICIPAL MANUAL. [s. 472. I'roviso. of a Railway, or through any part of which or near lohich the railway or works of any Railioay Company shall pass or he situated, may aid or assist such Comjxiny by loaning or guaranteeing or giving money by way of bonus or other meaiu to the Company, or issuing municipal bonds to or in aid of the Company, and otherwise, in such manner and to suxh extent as such Municipality shall think expedient ; (i) Pro- (j) The power to aid or assist ia conferred upon any Municipality, or any ■portion of a Municipality, wliicli may be interested in securing the construction of a railway, or Ihrouyh any part of which or ntar which the railway or works of any Railway Company shall j^xish or be Hituati'd. On an applic.ition for a writ of mawlamns to compel a Municipal Council to pass a By-law in aid of a railway, which had been approved by the electors, the Court discharged the rule on tlie ground that it did not appear in the papers on which the rule was moved that the proposed line of railway would, if constructed, pass through or near tlie municipality. (Peck v. Pctcrboro', 34 U. C. Q. B, M. T., 1874.) In a case in Ohio, where the Legislature authorized the County Commissioners of any County thromjh or in which a railroad might be located, to subscribe for stock, and for the purpose of paying therefor "to borrow the necessary amount of money, for which they shall issue their negotiable bonds," &c., it was held to be a defence to an action on the bonds (though hy a, bona Jlde holder) that the railroad was never " made or located " " through or in the Countj'." (Treadwcll y. Commissioners, 11 Ohio St. 183; see also. Commissioners of Knox County v. Aspinwall, 21 How. 539 ; Bissell v. Jeffersonville, 24 How. U. S. 287; see also. State v. Van Home, 7 Ohio St. 327; State v. Trustees, <0c., 8 Ohio St. 394.) If the power to issue bonds in aid of railways has not arisen by reason of an absolute compliance with conditions precedent, they are, in the United States, held to be void into whosoever hands they may come. (Marsh v. Fulton County, 10 Wall. 676; Clay v. County, 4 Bush. (Ky. ) 154.) Besides the Act authorizing town officers to borrow money upon the credit of the town, and to pay it over to a Ilailroad Corporation to be expended by it " in grading ami con- structing a railroad," taking in exchange its stock at par, it was held not to be within the power of Municipal officers to make a direct exchange of the bonds of the town, even for an equal nominal amount of stock. (Starin v. Genoa, 23 N. Y. 439; Qould v. Sterling, lb. 439.) In the last case, Selden, J., said, "The only authority given (to the town) by the Act is, to borrow upon the bonds of the town. No express power to sell the bonds is given, and no such power can, I think, be implied. To borrow money and give a l^ond or obligation for it, and to sell a bond or obligation for money, are by no means identical transactions. In the one case, the money and the bond would, of course, be equal in amount. In the othe?.' they might or might not be e(pial." Whether duch a defence would, however, be open or not as against a bona jide holder was not deter- mined. (See Woods v. Lawrence County, 1 Black. .380; Maranv. Miami Comity, 2 Black. 722; see further, note m to sec. .300.) If the aid be granted only on certain conditions, and the Company have failed as to the conditions, they cannot compel the Municipal S. 473, sub. 2.] SUBMITTING BY-LAWS. 486 vided always that such aid, loan, bonus or guarantee shall be given uw.ler a By-law for the purpose, to be pas$ed in con- formitij with the provisidns of section two hutulred and thirty- one of this Act. (j) Vide 34 V. c. 43, s. 19. 47 'i, (k) Such By-laws shall be submitted (kk) in the manner folloioing, namely : — (1.) In the case of a Comity Municipality, by the County Council on a petition of a majority of the Reeves aiul Deputy Reeves, or of two hundred resident freeholders loho may be duly qualified voters under the Municipal Act; (1) (2.) In the ease of other Municipalities and of sections of such Municip(dities, by the Councils of s}ich Mutiicijxdities, on the petition of the majority, or of fifty resident freeltolders, being duly qualified voters as aforesaid ; (in) Modoof snl>- luittins such 13y-law.s. Corporation to grant the aid. In sucli a case, if the debentures be in the hands of a trustee, the Corporation will be entitled to receive theiu back. (Luther v. Wood, 19 Grant, 348. ) (j) That is to say, subject to the apjn'oval of the electors. (See note / Municipalities or jwrtions of Municipalities wJdch form jyart of a County Municipalitij, hy the Council of such County Municipality, on the petition of fifty resident freeholders loho are duly qualified voters as aforesaid, (n) Vide 35 V. c. 60, s. 0. (h) The theory is, that the ratepayers of the several local Munici- palities, through their representatives, tax themselves. But in practice it has l)een found that what are commonly cnUed "the grouping clauses " enable the people of one Municipality to tax the people of an adjoining Municipality against their will. A. petition of lifty freeholders favourable to the aid can easily be procured from the people of the section who are favourable thereto, and the petitioners, if sufhciently cunning in selecting the boundaries of the section, may group in the scheme whole Townships, liowever opposed to it, and subject them to the burden of a del)t which they are unwilling to contract. Such a result is opposed not only to tlie hitherto well-understood policy of Municipal and other rejiresentative institutions, but to tlie plain policy of the law that no man and no Corporation shall be ma le a debtor or debtors to otliers against his or their will. It is not clear whether, under this subsection, there should be petitioners from each Municipality or portion of Munici- pality proposed to be grouped. If the number of petitioners (lifty) were to be taken as a guide to the meaning of the Legislature, it might be argued that there should^ be fifty petitioners at least from each local Municipality. In the case of a County Municipality, two hundred resident freeholders are required by the first subsection of this section. In the case of other (meaning local, such as Township, Town or Village, forming part of a County) Municiimlities, or of sections of such Municipalities, a petition of fifty resident free- holders is, by the second sixljsection, required. Then by the sub- section annotated, it is provided that "in the case of Municipalities or portions of Municipalities which form a portion of a County Municipality, on the petition of fifty resident freeholders {i/uivrc, of each Municii)ality and portion of Municipality forming part of a County Municipality?) who are didy qualified voters as aforesaid. If fifty resident freeholtlers l)e required under the second subsection for each local Municipality, and for each section of a local Munici- pality, it may be argued that the Legislature did not intend fifty resident freeholders to be sufiieient m the case of a ])ortion of a County consisting of several local Municipalities and sections of local Municipalities, i^esides, it may be argued that some petitioners are required from each local Municipality, so as prima facie to indicate the desire of the ratepayers of such Municipality, as a portion of a section, to grant tlie aid, and that fifty is the least number recpiired in the case of any Municipality. Otherwise it might l)e that residents of one local Municipality, foi^ning a proposed group, could petition and retpiire the passing of a By-law without a petitioner from any one of the other local Municipalities intended to be grouped, which could scarcely have bean intended by the Legislature in its wisdom. There is difficidty in the solution of the questi(m in either aspect, and that difficulty arises from the fact that tlie Legislature has iised either too much or too little language to make plain its intention. In a recent case, under a similar Act, Vice-Chancellor Blake ia 8. 474, sub. 2.] BY-LAWS TO AID RAILWAYS. 487 4T4. (o) Such By-laios shall provide: — (1.) For raishvj the amount so petitioned /or, repayable within twenty years by annual instalments of principal, with interest in the meantime payable yearly or half-yearly, and for the issue of debentures for such instalments and interest, (oo) and for delivery to the trustees of the debentures for the amount of such instalments with interest, at the times and on the terms specified in the petition; (p) which debentures the Municipal (Jouncils, and the Wardens, lieeves and other officers thereof, are hereby authorized to execute and issue in such case respectively ; (2.) For assessinr/ and Icvyiw/ upon all the ratable pro' perty lying within the section or sections defined by the peti- tion an annual special rate, as nearly equal as may be, sufficient for the repayment of the debentures and interest as the same become due and payable; (q) and in case the debt Provisions of siifli by- rcporteil to have said: "The only rec^uiremeiit here imijosed as to the hieality of the ratepayers is that they are 'within the i)()rtioii of the Countj'^ affected.' I cannot add to this a cLause that wouhl have the ellect of refjuiring the petition to he signed hy a cjrtain projior- tion of the lifty ratepayers from each portion of the Coui>ty." { West GwiUbnburij v. Shncoe, 20 Grant, 213.) (o) See note h to sec. 4/2. ((«)) The debt may ))e made payable either in one sum or by instalments — for at the end of the section it is provided, " In case the del)t incurred for said aiil is not rejjayable by instalments, then sutlicient to provide a sinking fund for the redemption thereof." (See note 2' to sec. 248.) The Municipal Council ought not to add any conditi(m to those imposed by the petition, nor sliould it omit one wliich the petitioners choose to im[)ose. ( Wi'-'it G will i nib iinj v. Siincut:, 20 Grant, 218.) A petition praying for the passage of a By- law granting aid to a Railway Company, to l>e charged on a specified section of the County. In the section so specified were two villages, both of which were incorpoi'ated, but not named either in the petition or the By-law. Held, no objection to the By-law. (//>.) ip) li" the essential terms on whicli the debentures were granted be not complied with by the Ilailway Company, the Municipal' Corporation may either refuse to hand over tbc debentures to the trustees, or recall them if so handed over. (See Liifln'r v. Wood, 1!) Grant, 'MS.) Such a By-law does not create any contract. Tiio Municipal Corporation is not to be considered ."s contracting with the Railway Company in consideration of the latter buihling a rail- way and stations, but as providing for a gift to the Company upon certain conditions. "The debentures being then intended to be delivered by way of gift or bonus, I know of no e taken to refer. So that the section may be read: "Every Police Village existing at the time of the passing of this Act shall continue to be a Police Village, with the boundaries established at the time of the passing of the Act." Now, the boundaries of a Village or liaudet liuctuate from day to day with the growth of houses, l)ut tlie etl'ect of this section may be to restrict i:he boundaries, notwithstanding the growth. (See The Qui'cn v. Cottle, IG Q. B. 412 ; Mi/ton-ncct-Sitfhii/lxiDie Cominin- sioitirs v. Fai'tmham liiyhwai/ Board, 10 B. & S. 548, note; see fur- ther, note c to see. 478.) (/') The wortl.^ " Unincorporated Village " as here used may be looked on as the word "Town" or "Village" used in several Enghsh A jts of Parliament to indicate a collection of houses. It is a matter of some dilHculty to givi a delinition of "Town" or "Vil- lage," when not incorporated, so as to cover all cases. In Co. Litt. it is said, that ' ' a place cannot be a Town in law unless it hath, or in times past hath had, a church, and celebration of Divine service, sacraments and burials." (115 b.) If the words "Black- smith's shop, tavern and store" were substituted for the words "a 490 THE MUNICIPAL MANUAL. [s. 478. County or Counties within Avhicli tlio Village is situate churcli," &o., the definition of Coke would not be far short of a liainlet or little village as commonly nnderstootl in this country. In The Queen v. Fixher, 8 (■'. & P. GI2, Paterson, J., said, "It is very difficult to define what is a Town in ordinary meaning. It varies from day to day hy tlie erecticm of new houses." In Elliott v. J'lonth JJemn JidUwdii Co. 2 Ex. 729, Parke, B., said, "It wouhl appear that the word Town is not to be understood in its strict legal inter- pretation as a Township having a church or a constable, but a place containing a number of houses congregated togetlier — an inhabited spot where the oecui)ation is continuous." iVlderson, B. (in tlie same case), said, " What the Avails of towns were in ancient times, that is a boundary, continuous buildings are now. ]{y continuous buildings I do not mean buildings which touch each other, but buildings so reasonably near that the inhabitants may be considered as dwelling together. Within the and)it surrounded l)y such houses is town, and when the railway passes through tliat am])it it passes through town." (lb. 730.) In the same case, Parke, B., also said, " Probably a garden attached to a house and occupied along with it should be reckoned as part of the house, in considering whether the houses are continuous." (//>. 731.) In TheQueetix. Cottle, IG Q. B. 412, 410, Russell (turney charged the jury that a town is generally "a congregation of houses," and that the jury were to say whether the spot in question was surrounded by houses so reason- ably near that " the inhabitants might be fairly said to dwell together." Ileferring to this cliarge. Lord Campbell (in the same case) said that the learned Recorder had with much felicity com- 1>rised, in a few words, all that was material in the language of the iarons of the l!]xchef(uer, as to the tlelinition of a town, in Elliott V. South Devon Rdilwai' Co. (lb. 420.) His definition was also approved of in MUtoii-next-SUtiiufborne ConDttli.siomrK v. Favernhum, 10 B. & S. 548 ; and London and South Western Railwaij Co., L. R. 4 H. L. ()10. In the last mentioned case it was held that lands near Teddington, in Middlesex, situated close to the railway station, but not continuously built upon, were held not to be lands within the town. " That definition amounts to tliis : that where there is such an amount of continuous occupancy of the ground by houses that persons may be said to be living as it were in the same town or place, continuously there — for the purj)oses of the Railw.iy Acts, and according to the popular sense of the word, and not tlie legal sense of the word, which would not give at all a sensible definition, the place may be said to. be a town. (Per Lord Hather- ley, //;. Glo. ) In anotlier case, Vice-Chaneellor Stuart said : "Four or five surveyors and the solicitor of the Company appear to have sworn that they consider Teddington a town ; but none of them state anything in support of that opinion except that tliere are in Teddington a number of shops, such as milliners, grocers, bakers, butchers and the like ; and from such reasoning they arrive at the conclusion that Teddington is a town. The fallacy of this conclu- sion, however, is made quite apparent from the maps and plans which have been referred to in the case ; and from which no man of any ordinary sense and discernment can fail to see that Teddington is anything more than what w usually and properly called a village." (Blackmore, v. London and Sovth Western liailway Co., 19 L. T. N. S. 5.) ss, 479-481.] POLICE VILLAGES TRUSTEES. 491 may, by By-law, erect the same into a Police Village, and assign thereto such limits as may seem expedient, (c) :iU-30 \. c. 51, s. 9. Division II. — Trustees, and Election TnEREOF. Existing Trustees continued. Sec. Jf.70. Trustees three in number. Sec. J^80. Qnalijication required for. Sec. ^81, 4^2. Electoi's, toho are. Sec. 483. Election, tvhere to be held. Sec. 484, 4^^- lieturniwi Officer, hoio appointed. Sec. 4S^- No Election in a Tavern. Sec. 486. Nomination, how conducted. Sec. ^. No election of Police Trustees shall be held in a tavern or in a house of pul>lic entertainment licensed to sell spirituous liquors, (q) 29-30 V. c. 51, a. 82. {(j) 111 the absence of express provision, persons resident without the limits of the Village would not be iiualitied. {The Queen <'x rel. Jila-silcU V. RocheHtcr, 7 U. C. L. J. 101 ; The Queen ex rel, Flemirn) V. Smith, Ih. 66.) - ' (h) See sec. 71, and notes thereto. (i) See sec. 72, and notes thereto. {k) See sec. 77, and notes thereto. (I) See sec. 478. (hi) See sec. 87, and notes thereto. (n) See note g to sec. 120. (o) See note c to sec. 478. {p) The County Council must name the place for holding the first election, and the Returning Officer thereof. (Sec. 484.) Both must, as to subsequent elections, be appointed under this section by the Trustees or any two of them. (q) See sec. 93, and notes thereto. 88.487-491.] ELECTION OF POLICE VILLAGE TRUSTEES. 493 4HT. A ineotiuf? of tlio electors sliall take place for the N"";lnatloii , . . ... Illl'l'tlUj^. noiiiiuiition of candidates (r) foi* the otlieeH of Polieti Trustees, in each Police Villa^'e, at noon on tlie laKt Mornlay iu Dceeiiihei', annually, at sueli ))laee therein as shall from time to time bo fixed by the Trustees. (,s; Vide 29-30 V. c. HI, 8. lUO. 48H, Tho Roturninj,' Officer (or, in his absence, a Chair- wiio to ine- man to bo cho.sen) shall jiresido at such meetinff, (t) of which **" "' the Police Trustees shall giv(? at least six days' notice. («) Vide 29-30 V. c. 51, 8. 100, sub. 1. 480. If only three candidates shall bo proposed and '/ "", ''"?'^'^' seconded, the lleturning Ollicca' or ('hairman sliall, after tho tiiauomcurri. lapse of one hour, declare such candidates duly elected, (v) 29-30 V.c. 01, 8. 100, sub. 2. 490. If more than the ivecessary number of candidates Tf moro, are proposed, tho Returning OlKcer or Chairman shall ailmaulied. adjourn the proceedings until the lirst ^Monday in January, when a poll or polls sliall bo ojjenod for the election, at nine Election. of the clock in tho morning, and shall continue open until five of the clock in the afternoon, and no longer, (w) Vide 29-30 V. c. 51, s. 100, sub. 3; 31 V. c. 30, s. 13; 33 V. c. 26, 8. 3. 491, The Returning Officer or Chairman of the meeting Notice of shall, on the day following that of the nomination, post up j'msod^'tcFbo in the office of the Clerk of the Township, if it ia situated in posted, such Police Village, and if not, then in some other public place in such Police Village, the names of the |)ersons nomi- nated at such meeting, (x) and shall, if a poll is necessary, demand in writing from the Clerk of the Township, or Clerks of the Townships, a list of the names of the male (r) See note c to sec. 102. (s) It is presumed tliat the Trustees will act by resolution. Not having any corporate seal, there can be uo sealed By-law. (t) See note c to sec. 103. (m) See note g to sec. 105. (v) See note k to sec. 106. {w) See note I to sec. 106. (x) The omission of the Returning Officer or Chairman to do as here directed would be an irregularity, and if it was such as pre- judiced a fair election woiUd void the election. ( T7ie Queen ex rel. Walker v. Mitchell, 4 Prac. R. 218.) See notes n and o to sec. 108. 494 THE MUNICIPAL MANUAL. [sS. 492495, T,lst of voters to be obtaiiieil. Clerk of t")Wii.shii> to furni.sh alplialieti- nil list of .'L'tera, List to Im altcstt'cl l)y declaration. Poll-books. freeliolclers and householders, such as is required to be fur- nished under the next section. (?/) Vile 29-30 V. c. 51, s. 100, sub 4. 49*Z. The Clerk of the Township, or Clerks ot the Town- ships, in which any Police Village is situated, shall, at latest, on the day previous to the day for opening the poll, deli'-or to the lleturiiiug (.)lhcer of such Police Village a list of the names, arranged alphabetically, of all male freeholders and householders rated upon the then last revised assess- ment roll for real property lying in the Police Village, or ttie portion thereof in tlje Municipality of such Clerk, to the amount required to (pialify them to vote at such elec- tion, and shall attest tlie said list by his solemn declaration in writing under his hand, (c) Vide 29-30 V. c. 51, s. 100, sub. 5. 4SK$. The Returning Officer shall, previous to the open- ing of the poll, procure a poll-book, and he .shall enter in such book, in separate columns, the names of the ci^ndidates proposed and seconded at the nominjition, and sliall, ojiposite to such columns, write the names of the electors offering to vote at the election, and shall, in each column in which is entered the name of a candidate voted for by a voter, set the figure " 1 " opposite the voter's name, (b) Vide 29-30 V. c. 51, s. 100, sub. 6. 4i)4, The Returning Officer shall add up the votes set down for each candidate on the poll-book, and ascertain the aggregate number of votes, and shall, on the day following the election, put up in the same place as the nominations were posted the state of the poll, with the number of votes received by each candidate, and a certificate annexed to the said statement, under his hand and seal, showing tlie suc- cessful candidates, (f) I^uZe 29-30 V. c. 51, s. 100, subs. 7 kS; 31 V. c. 30, s. 14. Castir. vote 405. In case a casting votr> is required to determine an In case of election, the Returning Oflicei , whether otherwise qualified or not, shall give a casting vote for one or more of such candidates, so as to decide the election, and except in such How kept. Summing up Votes. Declaring state of poll and candidates elected. tiea. (?/) See sec. 492. (a) See sec. 109, and notes thereto, {h) See sec. 1 10, ami notes thereto, (c) Sue seo, 113« and notes thereto. SS, 49G-500.] ELECTION OF POLICE VILLAGE TRUSTEES. 495. case the Clerk shall not vote at any such election, (d) Vide 29-30 V. c. 51, s. 100, sub. 9. 41M». The persons elected shall hold office until their successors are elected or appointed and sworn into office and hold their first meeting, (e) 33 V. c. 2G, s. 3. 497. Every Returning Oflicer shall, on the day after the close of the poll, return the poll-book to the Clerk of the ToNvnshi]) in which the ^"illage is situated, or in cast; the Village lies in sevei.il Townships, then to the Clerk of tlie County, verified under oath before such Clerk, or before any Justice of tlu! Peace for the County or unit>n of Counties in wl'icli the Village may lie^ as to the due and correct taking of the votes. (/) Vide 29-30 V. c. 51, s. 100, sub. 7j 31 V. c. 30, s. 14. 408. The various sections of this Act relating to the procf^cdings at the nomination and election of Townsliip Ti'rm of otHce. Ri'turnins oIlii'iT to rt- turii jidU- 1mm. k to ck'iU of tdWiisliip, vi'iilifil uiiUir oatli Except wliere other- wise jiro- Councillors, (if) including those relatiutj to the euestious vidid, saiuf A-c, to \m- liail ns at electiiiiiH, (xc. , of coun- tiUors, &H.-. to be put luid oaths to be administered to electors, (//) and as to the appointment of a ( hairnum or Iveturning <)fiicer, in case the person appointed be ab.sent, (?) and also the provisions res{)ecting controverted elections (z^) and for the prevention of corrupt practices, (I) shall api)ly and be acted on, unless where adifi'erent provision is herein made, in the election of Police Trustees, (m) J^^ew. 400. The Returning Officer shall liave the like powers for the ]»re.servation of the peace as are heretofore given to Returning Officers at jNlunicipal elections, h-) iVcw. 500. In the case of any vacancy in the otlice of a Police Trustee, by death or otherwise, the I'emaining Trustee or Trustees shall, by writing to be tiled with such Cli-rk as Powrrs of returning oUifers. Filling vucauciv!9. ((/) See sec. 114, ami note thereto. (f) See sec. 129, and note thereto. (/) See note t to sec. 1 12. ((/) See sec. 102 et ,ieq. (h) See sees. 99, 100. (i) See sec. 10,3. (k) See sec. 131 d seq. (I) See sec. 153 et seq. {ill) This is in accordance with the general rido that a particular provision, subsequent to a general i-rovision on the same subject, shall control tlie latter. (See note c to sec. 1.) {n) Sec sec. 97, and notes thereto. 496 T:1E MUl'ICIPAL MANUAL. [ss. 501-504. Appoint- iiifiit of in- Hpectinj,' tmslt'es. aforesaid, appoint a Trustee or Trustees to s>i )})ly the vacancy, (o) 29-30 V. c. 51, s. 30i). 501. Tlie Trustees of every Police Village, or any two of such Trustees, shall, by a writing; under their hands to bo filed with the Clerk of the Township, or in case the Village lies in several Townships with the Clerk of the County, appoint one of their number to be Inspecting Trustee, (p) 29-30 V. 0. 51, s. 308. Oaths of nf}'U'(; aiKl i|ualitica- tion. When first ineeting to bo held. Expcndi- tui-o, how providetl for. Division III. — Dl-ties of Police Trustees. Oaths of (Jjfice and Qaalifiaition. Sec. 50J. First Meetimj of. Sec. 503. Expenses nf, Iiow provhled for. Sec. 60^-507. Health Officers, IVustees to be. Sec. 608. Eeyulatioiis to he enforced by. Sec. 509. Penalties for breach, how recovered. Sec. 510. Neglect of duty by Trustees, how punishable. Sec. 511. Limitation of suits for penalties. Sec. 512. 50'J. Every Police Trustee shall take oaths of office and qualitication in the same manner and within the time pre- scriljed for Townshi}) Councillors, under like ])enalties in case of default, {q) 29-30 V. c. 51, s. 178. 5015, The Trustees of every Police Village shall hold their lirst meeting at noon on the third Monday of the same January in which thev ai'e elected, or on some day there- after at noon, (r) 29-30 V. c. 51, s. 133. 504. The Trustees, at any time previous to tie fiirt day of June, may require the Council of the Township or Towii- shii)s in which the Police Village is situated to cause *to be levied along with the other rates, upon the property lial)le to assessment in such Village, such sums as they may estimate to be required to cover the expenditures for that year, in respect of matters comiag within their duties, and to cover any balance for expenditures incurred during the year then (o) This is contrary to the ordinary rule. In the event of a vacancy in a Coiuicil, the Council orders a new election. See sec. 12,3, and notes thereto. Here tlie new Trustee is to be appointed, not elected. See sec. 129, and notes thereto. (p) The duties of the Ins])ectiug Trustee are more especially to attend to the duties of the o'.Kce, and enforce the regulations of the Police Village. (See sec. Sr-ti; sec. 509, sub. 15; sec. 510.) ('/) See sec. 218, and nrces thereto. (/•) Sec sec. 1C7, and rotes thereto. ss. 505-509.] POLICE village regulations. 49: last past, (s) such sum not to exceed one cent in the dollar on the assessed value of such pvoi)erty. (/) yeic. 505. In case the Village is situated in two oi* more Town- ships, the Trustees shall require a proportionate amount from each, according to the value of the property of the Village in each Trwnship, as shown by the last equalized assessment rolls, (u) New. 500. The Township Treasurer shall from time to time, if he ha.s moneys of the Municipnlity in his hands not other- wise appropriated, pay any order given in favour of any person by the Inspecting Trustee, or by any two of the Trustees, (v) to the extent of the amount required to be inicd as aforesaid, although the same may not have been then collected. Np.w. 50T. No Trustee shall give any siich order in favour of nny person except for work previously actually performed, )'.' in payment of some other executed contract, (w) Ncxo. 508. The Trustees of evcny Police Village shall be Health Officers within \\w. Police Village, under the Consolidated Statute for Upper Canada respecting public health, and under any other Act that may be passed foi' the like pur- pose, (x) 29-30 V. c. 51, s. 313. 50JI. The Trustees of every Police Village shall execute and enforce therein the regulations following. («) 29-30 V. c. 51, s. 3U. Whore vil- liiKc in two or more townships. Payment of orders given by trustees, &c. When order* limy 1)1' given. Trustees !■ be heiiitli otlleers. Follow! nj; regulations to be en- forced. (.«) The Police Village, for purposes of tax.atiou, is a portion of the Township or Townships in which situate. Hince, wlien the rolice Trustees require moneys to enal)le them proper, y to discharge tlieir othcial duties, they can only obtain it by applicat.on to the Township Council or Cijuncils. (See sees. .')0.'j, ;■)()(). ) In this respect they are ill the same situation as the Board of Police in Cities. (>See note rZ to sec. 343. ) [t) See note i to sec. 258. ) («) See note .s to sec. 504. (i') This is for an advance on the levy. It is the duty of the Township Treasurer, if he have unappmpriated Township nioiiey.i in hand, to make the advance. The advance is to l)e made, not to tlie Pohce Trustees, but to any person having an order signed by the Ins])ecting Trustee or any two of tlie 'fruatecs. The order cannot be properly given except for work actually done, or in pay- ment of some other executed crmtract. (w) See Chatham v. Ilomton, 27 U. C. Q. B. 550. (x) See sec. 382, and notes thereto. ((') The Pvegnlations are made by the statute. Tlie duty to enforce them is obligatory. (See sec. 511.) 32 498 TUE MUNICIPAL MANUAL. [s. 509, Sub. 7. For provid- ing ladders, Penalty. Firebuclrohibit«l. Who to Ruc lor iK'nal- t.t.s. And liefore whom. Conviction and li'vy of penalty. 1)r««c)i at 'ees. hoxise or other building at night, (p) undor a penalty of ten dollars for the first offence, and of twenty dollars for every subsequent offence; (15.) No person shall throw, or cause to be thrown, any filth or rubbish into a street, lane or public place, (q) under a penalty of one dollar, and a further penalty of two dollars for every week lie n(!glects or refuses to n.'move the same after being notified to do so by the In.'-.pticting Trustee, (?•) or some other person authorized by him. 29-30 V. c. 51, s. 314, subs. 1-15. *»10. The Inspecting Trustee, or in his absence, or when he is the party complained of, one of the other Trustees, shall sue for all penalties incurred under the Regulations of Police herein established, («) before a Ju.stice of the Peace having jurisdiction in the Village and residing therein or within five miles thereof; or if there be none such, then before any Justice of the Peace having jurisdiction in the Village ; and the Justice shall hear and determine such complaint in a summary manner, and may convict the offender, upon the oath or affirmation of a credible Avit- ness, (t) and cause the penalty, with or without costs as he may see fitting, to be levied by distress and sale of the goods of the offender, to be paid over to the path-master or path- niasteis of the division or divisions to which the Village belongs, or to such of the said path-masters as the Trustees may direct ; (u) and stich path-master or path-masters shall apply the })enal(y to thf> repair and improvement of the streets and lanes ot the V illage, under the direction of the Trustees, (v) 29-30 V. c. 61, s. 312. &II. Any Police Tru.sU'e who wilfully neglects or omits to prosecHite an i)ffender at the request t»f any resident house- holder of the Village ofibring to adduce proof of an offence against the Regulations of Police herein established, or who {/-) See s«h, 2« of seo. 384. {q) See note x to sub. 42 of sec. 384 (r) See note I above. (,<) See sec. 509. (t) Credible vntnenit. Soo note e. to hi»c. 317 (u) See Con. Stat. Can. cap. UVl (Thi Summary Con victioim \ct), (?') The i>ath-mastcr, or a«itt«^ i«th-masttT if w»orc than on^. is to receive the penalty. When he ivceivos it, U is his duty to apply it to the repair and improvement «»t the strcct»« Ac. S«t) note < to sec, 323, as to the form of couvi^^tKMi. SS. 512-514.] CONFIRMING AND SAVING CLAUSES. 601 wilfully neglects or omits to fulfil any other duty imposed on him by this Act, (w) shall incur a penalty of five dollars. 'J9-30 V. e. 51, s. 310. 512. Tlie penalties prescribed by the preceding section, or by that for the establishment of Regulations of Police, shall be sued for within ten days after the oifeuce has been connnitted or has ceased, and not subsequently, {x) 29-30 Y. c. 51, s. 311. Confinninrf and Saving Clauses. ti\*i, 6 A. & E. 8; see also, Tlie King v. Poor Law Commissioners, lb. 48. Implied repeals are not favouretl. {Trustees Birkenhead Docks v. Laird, 4 Dc G. McN. & G. 732; Purnellv. Wolverhampton Netv Water Works Co., 10 C. B. N. S. 591 ; Bramston v. Mayor of Colchester, (5 E. & B. 246 : Parry \. Croydon Commercial Gas Co. 11 C. B. N. S. 570; Great Central Gas Co. V. Clarke, lb. 814, 835, 841 ; Dav) v. Metropolitan Board of Works, 12 C. B. N. S. 161 ; and Dwarris on Statutes, 2 Ed. 533. ) Affir- mative words in a subsequent statute do not repeal the piov-isions of a former statute, unless there be some obvious inconsistency between the two enactments. {Dakins v. Seaman, 9 M. &. W. 777; Michellx. Brown, 1 E. & E. 267, 274 ; Middkton v. Croft.^, 2 Atk. 674 ; McDougall V. Pate.son, 11 C. B. 767; Stuart v. Jones, 1 E. &B. 22; Lx parte Warrington, ii De G. McN. & G. 159.) But if they be inconsistent with each other, the earlier one is to be taken as rejjealed. (0' Flaherty v. McDoioell, 6 H. L. C. 142.) So if two Acts come into force on the same day, and are repugnant, the one winch last receives the Royal Assent must be taken as virtually repealing the former. {The King v. The Justices of Middlesex, 2 B. & Ad. 818.) Where two statutes give authority to two public botiies to exercise powers which cannot co-exist, the earlier is repealed by the later statute. {Daw v. Metropolitan Board of Works, 12 C. B.N. S. 101.) So where a statute made an offence, felony, punisnable with death without clergy, and a subsequent statute inflicted a milder punish- ment on the same offence, the later statute was held to be a virtual S.515.] REPEAL OF INCONSISTENT ACTS. 003 or provision of law by them repealed, or prevent the effect of any saving clause therein, or the application of any such repeal of so much of the former statute as related to the punishment of the offence. {The Kinq v. Dai'in, 1 Leach C. 0. 271 ; see also, The Kino V. Heath, 2 East. P. C. 009 ; Ward r. Shmmni, 1 New Ses. Cas.' 162; Rohimnnr. Emermn, 4 H. & C. \^^^2•, Mitchell \. lirowv, 1 E. & E. 267; He.ndermn v. Sherhome, 2 M. &\V. 23fi ; Atturneii-(lcneral\. Lockwood, 9M. & W. 391; Pilkiu>iton v. Cooke, 16 M.& W. 615; Wrhjhtup V. Greenacre, 10 Q. B. 1.) A section which merely re- enacts a provision in a previous statute will not be considered as virtually repealing an inconsistent enactment in an Act made subse- quently to the hrst but before the last Act. (^foriK.'^e v. Ifoi/al liritiiih Bank, 1 C. B. N. S. 67). A private Act is not to be held as repealing a former private Act by implication. (Birkenhead Dockn v. Laird, 4 De G. Mc N. & (i. 732. ) Nor is a local Act, in the absence of clear indication to the contrary, to be held repealed by a subsequent Sublic Act. (Fitzfjerald v. Chanijtnei/H, 2 Johns. & H. 31; s. c. 7 ur. N. S. 1,006; Pitrnell v. Woloerh'ampton Water Wurk.i Co. 10 C. B. N. S. 576.) But a clause in a private Act, ([uite inconsistent with a clause in a subsequent pul)lic Act dealing with the same subject, must be held to be thereby repealed. (Great Central Gas Co. V. Clarke, 13 C. B. N. S. 8.S8'; Parri/ v. Croi/ilon Ga.s Co. 11 C. B. N. S. 579; affirmed on appeal, 15 C. B. N. S. 568; Brainxtonv. Mayor of Coir heMer, 6 E. & B. 246.) The general principle is that a general Act is not to be construed to repeal a particular Act, unliiss there is some express reference to the previous legislation on the subject, or unless the two Acts are necessarily inconsistent. ( Thorpe \. Adams, L. R. 6 C. P. 125; The Qiteen v. Chanipnei/.'i, L. II. 6 C. P. 384-) Where an Act is repealed, it must, except as to trans- actions which are past and closed, be considered as if it had never existed. (Ex parte Grisewood, 5 Jur. N. S. 1191 ; s. c. 4, De(l. & J. 544 ; see also per Lord Tenterden, in Siirtee.'^ v. Ellimn, 9 B. & C. 752 ; per Lord Campbell, in The Queen v 7'Ar Inliahitant.i of Benton, 18 Q. B. 770; Taylor v. Vatmttirt, 4 E. & B. 910; per Parke, B., in Sinipion v. lieadi/, 11 M. & W. 34(5; Bn/ant v. Hill 23 U. C. q. B. 96; McDonald V. McDonell, 24 U. C. Q. B. 424; but see The Queen v. Thompson, 16 Q. B. 832.) No proceedings can, in the absence of express legislation, be pursued under a rcipealed statute, although commenced before the repeal. (Miller\t ra-te, 1 AV. Bl. 451 ; see also The Kinrf v. McKenzie, Jl. & R. C. (J. 429 ; The Queen v. Man^ifan, 8 A. & E. 496; Davis v. Can/, 15 Q. B. 418; The Queen v. Thompson 16 Q. B. 832 ; Foster v. Pritchard, 2 H. & N. 151 ; Glaholm v. Barker, L. R. 1 Ch. 223.) But where an Act directs a mode of procedure to be adopted as contained in a former Act, the repeal of such .an Act does not repeal the procedure directed, which is to be considered as mcorporated in the latter Act. ( T'le Queen v. Stock, 8 A. & E. 605.) So it has been held that the repeal of a .Statute does not, without express words, take away the power of he Court to make an order as for costs of an action to which a riglit has already vested under the repealed statute. (ReMall v. London and South Western Raihray Co. L. R. 3 Ex. 141.) ".Statutes are not presumed to make any alteration in the Common Law further or otherwise than the Act does expressly declare; therefore in all general matiars the Law presumes the Act did not intend to make any alteration ; for if Par- ^^' '>(){ THE MUNICIPAL MANUAL. [s. 515. parts or Acts, or of any Act or provision of law fonn(;rly in force, to any transaction, matter or thing anterior to tho said repeal to which they would otherwise apply, (d) New. liament had had that design they would have expresseditin the Act." (A/- Trevor, J., in Arthur v. Bokm/iani, 11 Mod. 150; see also, per Lord EUenhorough in Tlu- Qucni v. AxUtt, 1 B. &. P. N. II. 7; Paijtt V. Fukif, 2 Biiig. N. C. ()7'J; SaU,-r,H Co. v. Jai/, :i Q. B. 101); 'J'riM- cott V. Merchant Tailor^H' Co. II Ex. ^j.55; Co. Litt. 115 h ; Bae. Ahr. Statute I. 4 ; 12 Rop. 21). See t'u'ther, note m to sec. 204 of the Assessment Act. ) (d) Where a repealing statute is repealed, the first statute, unless there he legislation to the contrary, is therehy revived. H'hil/i/in v. HopwQud, 10 B. & C. 3!). ) But where a contract for ensuring tickets in a lottery was heUl void by statute then made, such contract was held not t-) he set up as valid hy a repeal of the statute after the contract and before suit. (Jikihph v. Withy, I H. Bl. 65 ; approved in Jlitchrock v. Way, it A. & K. 940.) Where a statute professes to repeal absolutely a prior law, and 8ul)3titutes other provisions on the same subject, which are limited to continue only to a certain time, the prior statute is not revived after the repealing statute is spent, unless the intention of the Legislature to that etfect is expressed. ( Warren 7. t. v. Winille, 3 East. 20."). ) If an expired statute is after- wards revived in another statute, the law derives its force from the hrst statute. (Shipman, q. t. v. IIcnhcHt, 4 T. II. 109 ; see also. The Kimj V. Phipof, 2 East. P. C. 599; The Kiiuj v. Morgan, ib. 601.) [505J llIKl •d t.. iinutliur. AN ACT TO AMEND AN ACT RESPECTING MUNICIPAL INSTITUTIONS IN THE PROVINCE OF ONTARIO. (Ueino 37 Vic. c. 10.) Hkr Majesty, by and witli the advice and consent of tlie Legislative Assembly of the Province of Ontario, enacts as follows : 1 , In case any locality is, under the tenth section of the o,. y ^, 4^ Act respecting the Municipal Institutions in the Province «• ic- of Ontario, passed in the thirty-sixth year of Her Majesty's reign, and chaptered forty-eight, (U^taclied from one County {;.','.pj','J,',!^, '.','. and annexed to another, the Council of the County to whicli tiK iioiiimii the locality is annexed and the Council of the Village shall i;";! auJul^. agree Avith the Council of tlie County from whieli such locality is detached, as to the amount (if any) of the County liabilities which should be borne by the locality so detached, and the times of payment thereof; and if the Councils do not agree within three months of the separation in respect of the said matter, the same shall be determined by arbitration under the said Act, and the amount (if any) so agreed or determined shall Ijecome a debt of the County to which the locality is attached, and such locality shall, until the said amount has been paid by the proceeds of such rates, continue subject to all rates which had been, prior to the separation, imposed for the payment of County debts or for the payment of bonuses or aids, granted by sections of the County to rail- ways, or for the payment of local improvement debts ; and the Council of the County or of the Village, as the case may require, shall pass such By-laws, and take such proceedings as may be necessary for levying the said rates ; and shall, unless such Council has previously paid the amount to the Municipality sd liable, pay over the same when collected to the Municipality which is liable for the debt on account of which the rates were imposed : Provided also, that this sec- tion shall apply to any territory which may be detached from one County and atmexed to another, during the present session of the Legislature of Ontario, whether by Act of the Legislature or otherwise : and provided further, tliat in cases where the said Councils do not agree as aforesaid, the Gov- ernor in Council may before proclamation has been made, and upon the petition of a majority of the resident free- holders and householders of the said Village, and with the >'it. ^. ^ .aj IMAGE EVALUATION TEST TARGET (MT-3) /> {/ //^ n w '4i :/. ^ 1.0 I.I 1.25 12.2 12.0 U III 1.6 <9 ^ tp% /a /a a >«^ w^yw '/ Photographic Sciences Corporation s <^ ■^^ s V \\ % V «>. f^ 6^ <> 33 WEST MAIN STREET WEBSTER, N.Y 14580 (716) 873-4S03 «<'- k6 » 506 THE MUNICIPAL MANUAL. [88. 2, 3. Sec 100 ro- |H!alC(l. OathH of VottTH. Sen. 104 re- I>ealed. Nomination itttiotlngg. assent of at least two of the Councils of the Townships in which the said Village is situate, annul the incorporation of the said Village, and restore the same to its former position, as an Unincorporated Village, and the same shall thereui)on be reinstated to its former position to the same extent as if no proceedings for incorporation had ever been taken. 3. Section one hundred of tho said Act is hereby repealed, and the following is substituted in lieu thereof: 100. The oaths or affirmations to be reqiiired of any person claiming to vote otherwise than in respect of a free- hold, a' "i) ' be as follows, or to such effect : — That he is of the fu. ^ge of twenty-one years, and is a natural born or naturalized subject of Her Majesty ; that he has not voted before at '• ^ -election in the Township, Village pr Ward, {(jui t/i4' ca< 'Ut\' be,) in which he is tendering his vote, and (if tendei . -j * w vote for Mayor, Reeve or Deputy-Reeve ;) that he ha« rot voted before or elsewhere in the Munici- pality, for the election of Mayor, Reeve or Deputy-Reeve, \da the case may he ;) that he has not, directly or indii-ectly, received any reward or gift, nor does he expect .to receive any, for the vote which he tenders at the election ; that he has •>een resident within the Municipality for which the election is held for one month next before the election, and that he is {or his wife is) a householder or tenant within such Municipality, and that he is the person named or pur- porting to be named on the list of the electors, and that at the time of the last final revision and correction of the assessment roll upon which the list is based, he was actu- ally, truly, and in good faith, possessed to his own use and benefit, as tenant or occupant, of the real estate in respect of which his name is entered on the said list j {or in tfie case of a new Municipality in which there Jims not been any assessment roll, then instead of swearing to residence for one tnonth next before the election, and referring to the list qf electors, the person offering to vote may be required to state in the oath tfie property in respect of which lie claims to vote ; and that he is a resident of such Municipality.') 21. Section one hundred and four of the said Act is hereby repealed, and the following substituted in lieu th<»reof : 104. A meeting of the electors shall take place for the nomination of candidates for the offices of Aldermen in Cities, Councillors in Towns, and of Reeves, Deputy-Reeves and Councillors in Townships not divided into Wards, and Incorporated Villages, at noon, on the last Monday in 'if 88. 4-6. j PUBLICATION or BY-LAWS. 607 December, annually, at such place therein, and in Cities and Towns, at such places in each Ward thereof, as shall from time to time be fixed by By-law, and the Deputy- Reevcb shall be designated as first, second, third or fourth, according to the number to be elected ; provided that in Townships divided into Wards, the nomination of candi- dates for the office of Reeve shall be held at ten of the clock in the forenoon, at such place in such Township as shall from time to time be fixed by By-law, and the Clerk shall preside at the meeting for the nomination of candidates for the office of Reeve, and that the nomination of candidates for the office of Councillor, to 1)6 elected in each Wai-d, shall take place at noon, at such place in the Township or in each Ward as shall be fixed by By-law. 4. Section one hundred and seven of the said Act is here- by repealed, and the following substituted in lieu thereof: 107. The Council shall by By-law fix the places for holding the election, and also name the Returning Officers, who shall respectively hold the nomination for eacli Ward, and those who shall preside at the respective polling places. 5. In the event of any member of any Municipal Council forfeiting his seat at the Council or his right thereto, or of his becoming disqualified to hold his seat, or of his seat becoming vacant by disqualification or othei-wist., he sluill forthwith vacate his seat ; and in the event of his omitting to do so at any time after his election, pi*oceeding8 by quo warranto to unse^it any such member, as provided by the Raid Municipal Act for the trial of conti*ovei*ted elections, sections one hundred and thirty-one to one hundred and fifty-two, both inclusive, may be had and taken, and such sections shall, for the purpose of such proceedings, apply to any such foHeiture, disqualification or vacancy. 6. Subsection two of section two hundred and thirty-one of the said Act is hereby i-epealed, and the following sub- stituted in lieu thereof, and shall be read us suUseotion two of section two hundred and thirty-one of said Act : (2.) The Council shall, before the final jMissing of the projX)sed By-law, publish a copy thereof in some public newspaper published within the MuniciiMility, or, if there is no such newspaper, in some public new8pa|)er published nearest the Munici|)ality, or in the County Town, the publi- cation to bo continued in at least one number of such })aper each week for three successive weeks, and shall also put up a copy of the By-law at four or more of the most public places in the Municipality. 8nc. 107 re- Iiualeil. Places for hiiiiliiigelfc- tiuii8. Qnn warran- to i>riiri'('il- iiiKSonuinit- tiuK to viicutu seat. Sep. 231, 811 h. 2, re- puali'd. Dy-law rc- (liiiriiig as- sent of elec- tors to be. publisheU. 1^^ 508 THE MUKICIPAL MANUAL. [88. 7-9. Sec. 237 re- ])ealed. Promulga- tion of by- laws. t* Section two hundred and thirty-seven of the said Act is hereby repealed, and the following substituted in lieu thereof : 237. Every promulgation of a By-law shall consist in the publication, through the public press, of a true copy of the By-law, and of the signature attesting its authenticity, with 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 publicacion aforesaid shall be in a public newspaper published within the Municipality, or, if there be no such newspaper, then in the public newspajjer published nearest the Municipality, or in the County Town ; and the publication shall, for the pui'pose aforesaid, be continued in at least one number of such paper each week for three suc- ccEsive weeks. 8. Section two hundred and fifty-two of the said Act is hereby repealed, and the following substituted in lieu therei t : 252. No such By-law of a County Council for contracting any such debt or loan for an amount not exceeding in any one year twenty thousand dollars, over and above the sums required for its ordinary expenditure, shall be valid, unless the same is passed at a meeting of the Council specially called for the purpose of considering the same, and held not less than three months after a copy of such By-law, as the same is ultimately passed, together with a notice of the day appointed for such meeting, has been published in some newspaper issued weekly or ofUmer within the County, or if there be no such public newspaper, then in a public news- paper published nearest to the County, which said notice may be to the effect following : The above is a true copy of a proposed By-law to be taken into consideration by the Municipality of the County (or united Counties) of at in the said County, (or united Counties), on the day of > 18 , at the hour of o'clock in the noon, at which time and place the members of the Council are hereby required to attend for the purpose aforesaid. G. U., Clerk. Sec. 381 le- 9, Section three hundred and thirty-one of the said Act •^'"^ is hereby repealed, and the following substituted in lieu thereof: Sec. 252 re- pealtid. Certain by- laws of county council not to be valid, unless pass- ed at meet- ins specinlly called and held three months after notice, Ac. Form of notice. M. 10-12.] POLICE FORCE. 509 taken ity (or younty, 18 , which hereby lieu 331. Every other Town may, if the Governor in Council ^""[^ Beeetit to make such an ap]K)intment, have a Police Magis- iutuwus. irate ; but no such appointment shall in the first instance be made for a Town not liaving more than five thousand inhabitants, until two-thirds of the members of the Council do, in Council, pass a resolution affirming the expediency thereof; and the said Council may, by such resolution, fix the salary to be paid to such Police Mjigistrate : Provided always that every Police Magistrate appointed befoi*o the passing of this Act in a Town with a less population than five thousand shall not be aflfected by this section. 10. Section three hundred and thirty -three of the said sec. 3P9 Act is hereby repealed, and the following substituted in lieu '"''P'^''^''^ thereof : 333. In every City there is hereby constituted a Board Board of of Commissioners of Police, and in every Town having a gio'n^'oi Police Magistrate, the Council may constitute a like Board, i''''';*' '« and such Board shall consist of the Mayor, the Judge of the towug, of County Court of the County in whicn the City or Town is p^^^;^, "=""'' situate, and the Police Magistrate, and in case the office of County Judge or that of Police Magistrate be vacant, the Council of the City shall, ' ad the Council of the Town may, appoint a person resident therein to be a member of the Board, or two persons so resident to be members thereof, as the case may require, during such vacancy; and such Commissioners shall have power to summon and examine powers as to witnesses on oath in all matters connected with the admin- *''*'»««««8- istration of their duties : Provided always, that the Council of any such Town may at any time, by By-law, dissolve and put an end to the Board, and thereafter the Council shall have and exercise all powers and duties previously had or exercised by the Board. 11, Section three hundred and thirty-nine of the .said g^^ gg^ Act is hereby repealetl, and the following substituted in lieu repealed. thereof : 339. The Police Force in Cities and Towns having a _ „ , Board of Commissioners of Police, shall consist of a Chief in cities anJ Constable and as many Constables and other officers and ***"'»*• assistants as the Council from time to time deem necessary, but in Cities not less in number than the Board reports to be absolutely required. t% Section three hundred and forty-four of the said Act sec 344 is hereby repealed, and the following substituted in lieu '"P**'*^- thereof : 510 THE IIUNICIPAL MANUAL. [m. 13-16. Dissolution of pruseiit boards of ]iolice com- missiuners in towns. ConstoWe n 344. The'Couiicil of every Town not having a Board of viiiagM. Commissioners of Police shall, and the (Jounoil of etery Incorporated Village may, appoint one Chief Constable and one or more Constables for the Municipality, and the per- sons so appointed shall hold office during the pleasure of the Council. 13. Wherever in apy Town there is now a Board of Commissioners of Police constituted under said Act, the Council of said Town may, by By-law, dissolve and put aii end to said Board, and thereafter the Council shall have and exercise all powers and duties which might, under said Act, have been had or exercised by said Board, and unless and until so dissolved and put an end to, the said Board shall have and exercise all the powers and duties which, but for the passing of this Act, would have been exercised or had by said Board. 14. Subsection six of section three hunu.«d and seventy- two of the said Act is hereby repealed, and the follovring substituted in lieu thereof : (6.) For taking stocJc in or lending money, or gi anting bonuses to any incorporated Company, in respect of any road, bridge or harbour, within or near the Municipality, imder and subject to the respective statutes in that behalf. Sec. 379, 15* Subsection fifteen of 8eoti^ «' other weeds detrimental to husbandry, and compelling the weeds. destruction thereof ; for the appoinbnent of an Inspector with power to enforce the provisions of such By-law, for regulating his duties and for determining the amount of remuneration, fees or charges he is to receive for the per- formance of such duties. Sec. 379, 10. Subsections twenty-six, twenty-seven, twenty-eight, M*M ^ii M twenty-nine and thirty of section three hundred and seventy- repealed. ' " "^ "" ''' See 373 amended. Sec. 87», sub. 0, re- pealed. Aid for roads, bridges and harbours. Weigbta and measures. nine of the said Act are hereby repealed, and section three hundred and seventy-two of the said Act is hereby amended by adding thereto th.e following BUJ^^sep^ions : (20.) For appointing Inspectors to r^^atia weights and measures according to the lawful standard ; (21.) For visiting all places wherein weights and mea- sures, steel yards or weighing maohines of any description are used; 1 88. 17-19.] BOADS AXD BRIDQfS. r^U (22.) For seizing and destroying suoh as are not according to tb« standard ; (23.) For imposing and collecting penalties upon persons who are found in possession of unstamped or unjust weights, measures, steel yards or other weighing machines ; (24.) For seizing and forfeiting bread or other articles when of light weight or short measurement. 1 Yi Section four hundred and ten of the said Act is Sec. 4io h* 'eby repealed, and the following substituted in lieu thereof; '*'*'*^ " ' 410. The County Council shall have exclusive jurisdic- jurJHdiction tion over all roads and bridges lying within any Town or "' «ounty Village of the County, and which the Council by By-law over roads assumes with the assent of such Town or Village Munici- *"** i>riagf s. pality as a County road or bridge until 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 rivers over one hundred feet in width, within the limits of any Incorporated Village in the County, and connecting any highv ay leading through the County, and over every road or bridge dividing different Townships, although such road or bridge may so deviate as in some places to lie wholly or in j^art witMn one Township. tS» Section four hundred and twelve of the said Act is See 412 hereby repealed, and the following substituted in lieu '^^ thereof: 412. When a County Council assumes by By-law any road or bridge within a Township as a County road or bridge, the Council shall, with as little delay as reasonably may be, and at the expense of the County, cause tl^e road to be planked, gravelled or macadamized, or the bridge to be built in a good and substantial manner; and further, the County Council shall cause to be built and maintained in like manner all bridges on any river or stream over one hundred feet in width, within the limiis of any Incorporated Village in the County, necessary to connect any public high- way leading through the County. i9* Section four hundred and thirteen of the said Act is hereby r^iealed, and the following substituted in lieu thereof: 413. It shall be the duty of County Councils to ei'ect Bridges be- and maintain bridges over rivers, forming or crossing ^e«i> muni- boundary lines between two Municipalities (other than in '^^^ ^' the case of a City or separated Town) within the County Road8 or bridges as- sumed by county councils. Maintenance of certsia bridges in Tillages. Sec. 418 repeal«i|^ 512 THE MUNICIPAL MANUAL. [m. 20-22. ri-poaled. Drains into a(l,|oining loUnranrosa highways. and in case of a bridge over a river forming or crosHing a boundary line between two Counties, or a County and a City, such bridge shall be erected and maintained by the Councils of the Counties or County and City respectively ; and in case the Councils of such County and City, or the Councils of such (bounties fail to agree on the rospnctive portions of the expense to be borne by the several Munici- palities, it shall be the duty of etich Council to appoint arbitrator, as provided by this Act, to determine the amount to be so expended, and such award as may be made shall be final. ^0. Section four hundred and sixty-three of the said Act is hereby repealed, and the following substituted in lieu thereof : 463. In case any person should find it necessary to con- tinue an under-drain into an adjoining lot or lots, or across or along any public highway, for the purpose of an outlet thereto, and in case the owner of such adjoining lot or lots, or the Council of the Municipality, refuse to continue such drain to an outlet, or to join in the cost of the continu- ation of such drain, then the firstly-mentioned person shall be at liberty to continue his said drain to an outlet through such adjoining lot or lots, or across or along such highway; and in case of any dispute as to the proportion of cost to be borne by the owner of any adjoining lot or Municipality, the same shall be determined by the fence-viewers in the same manner as disputes within the Fence- Viewers' Act, excepting as to the amount of such award which shall be finally decided by the fence-viewers, irrespective of the provisions of section fourteen of said Fence-Viewers' Act, and theii* award shall be final. /SI. Section four hundred and sixty-eight of the said Act is hereby amended, by striking out the words " according to the frontage thereof" in the fifth and sixth lines of the said section, and inserting the same after the word ''therein," in the eighth line of the said section. /8/S. Sections four hundred and seventy-two, four hundred re' aled*^*' ^^^ seventy-three and four hundred and seventy-four of the said Act are hereby repealed, but such repeal shall not affect any thing legally done under said sections, or any of them, or any proceedings commenced under the said sections or any of them, which proceedings may be continued as if the said sections had not been repealed. Hoc. 488 amended. Sees. 472, 'li ^1 [513] 3in," in AN ACT TO AMEND AND C0N80UDATE THE LAW RE- SPECTING THE ASSESSMENT OF PROPERTY IN THE PROVINCE OF ONTARIO, (o) (32 Vic. Cap. M.) Her Majesty, by and with the advice and consent of the Ijegislative AHsembly of the Province of Ontario, enacts as follows : Preliminary Provisions. 1, This Act may be cited as " The Assessment Act of Title. 1869." (6) % In this Act the words "The Province," or " This {,"„^Xum Province," mean the Province of Ontario; the word ^^Gazette" means Official Gazette of the Province of Ontario; the word "County" includes a Union of Counties, and the word "Township" a Union of Townships, while such Union continues ; the words " Cotinty Council " include Provisional County Council; the words "Town and Village" mean respectively Incorporated Town and Village; the word "Ward," unless so expressed, does not apply to a Township Ward; the words "Municipality or Local Municipality" (a) The consolidation of the several Acts relating to the ment of property in Upper Canada, is second only in importance to the consoUoation of the several Municipal Acts by the Municipal Institutions Act just annotated. (See note 6 to sec. 1 of the Muni- cipal Institutions Act.) The value of the two Acts, bo far as the Province of Ontario is concerned, cannot be over estinuted. They are to be read in pari tnateria, {per G Wynne, J., In re Montgomery and Bakigh, 21 U. C. C. P. 3&4,) and so ought to be construed together, (The King v. Palmer, 1 Leach, 0. C. 352-355; Doe d. Tmnyaon v. Yarhoroiigh, 1 Bine. 24.) and, as it were, one statute. {McWilliam v. McAdams, I Mocq. H. L. Cas. 120; see also. Per Campbell, C. J., in Waterlow v. Dobwn, 27 L. J. Q. B. 65.) It has Dtien held that a repealed statute in part materia with an exist- ing one, may be referred to for the purpose of construing the latter. {&c-parte Copeland, 2 De G. M. «fc G. 914.) {b) The practice of describing Acts of Parliament by short titles is of modem invention, but, owing to its utility, is becoming each session of Parliament of more general apphcation. It is singular that while the Legislature have not, in the case of the Assessment Act, been vnminmul of this practice, in the Municipal Act they have quite overlooked it. But for convenience, no doubt, while one will, under legislative sanction, be known and described as " The Assessment Act of 1869," the other, vrithout l^palative saoctiim, will be equally well known and as often described as " The Mnnioi- pal Institutions Act." 33 i 514 THE MUNICIPAL MANUAL. [8.3. do not include a County, unlem there is something in the subject or context requiring a different construction, (c) Mowing of 3, The terms " Land," " Real Property," and " Real Es- "Undi,"eto. tate," respectively, include all buildings or other things erected upon or affixed to the land, and all machinery ur other things so fixed to any building as to form in law part of the realty, and all trees or underwood growing upon the land, and all mines, minerals, quarries and fossils in and under the same, (d) except mines belonging to Her Majesty. (e) See, ao to the proper Construction of an Interpretation Clause, note c to sec. 1 of the Municipal Institutious Act. (({) The LegiaUture have defined "Land," "Bed Property," and "Real Estate," for purposes of taxation, as including the following : 1, All buildinsfl or other things erected upon or affixed to the land, and maohmory or other things so fixed to any building as to form in law pai*t of the realty. 2. All trees or underwood growing upon the land. 8. All mines, minerals, c|uarries and fossils in and under the same, except mines belongmg to Her Majesty. The Legislature have not been more successful than numy person 3 have been in giving an exact and correct meaning to the words used, for while providing that all buildings, fto., upon or affixed to the land, all trees, &c., upon the land, and all mines in and under it shall be included in the word land, &c. , it has omitted the land or AoiHtself from the definition. {Per Wilson, J., in Niagara Falls Sutpension Bridge Co. v. Gardner, 29 U. C. Q. B. 194-197.) "Real Estate" does not always consist of that species of property which is very obviously land in any sense. Keys of the Mansion, and title- deeds of the freehold, and titles of honour are realty. (Jb.) The Suspension Bridge between Ontario and the State of New York, across the Niagara Falls atOhftOn, is "hmd." (/A/seealso, Tepper v. Nichols, 18 0. B. N. S. 121 ; Wodmore v. Dear, L. R. 7 C. P. 212. ) There u first about three quarters of an acre of land or soil on which the abut- ments, ko., rest; secondly, stone towers anr! toll-house, built into and upon tiie land ; and, thirdly, there is tb- 'r i(^.ge itself, consistios of iron wire and wood, suspended by and from tbe wire cables, which rest upon and pass over stone towers, and extend beyond them, and are attached to fastenings let into the soil. {Niagara Falls Suspen- non Bridge Co. v. Gardner, 29 U. 0. Q. B. 19t.) The land, atone towers and toU-house are land, red estate, and real property within the provisions of the Assessment Act. [Ih. ) The only question is as to the bridjro, which is suspended ana secured in the way just mentioned. The bridge is 'afiixed to the land' by its attachment to the cable, which is attached to posts or fiMtenines ' let into ' the land, and it is BO fixed as to form m law a part of the realty. . . . We have come to the ctmdusion that the bridge was and is land and real property within the operation and meanmg of the Assessmei^t Act, and was rightly rat«d as such by the assessor." {lb. 190.) "That the oiw tenBiaus ot t>>z bridge is out of the Frovinee and ift t s B. 4.] LAND AND HEAL PROPERTY. 515 the 4. The terms "Personal Estate" and "Personal Property," Jf^JJl^*,,"^ include all goods, chattels, shares in incorporated companies, property" interest on mortgages, dividends from bank stock, money, '^- notes, accounts and debts at their actual value, income and all other property, except land and real estate, and real pro- » foreign oountry cannot affect the quality of that part of the pro- perty which ia in this Province, nor can it make any difference in this respect that the support of that terminus, and which support it is necessary the erection should have to give it the oharaoter of a bridge, is beyond this Province ; for however 8upporte«l at that end, or whetlior supported there or not, or whether usable as a bridge or not, with or without that support, it would still as to that part within the Province be real estate, erected and attached as it is at the terminus in this Province." (lb. 199.) It has been held that the proprietors of water works, whose mains, pipes and other appar- atus were laid down in and under the surface of land were liable to be rated under 11 Geo. III. cap. 12, as occupiers of land. (The Queen v. Erut London Water Worka, 18 Q. B. 706; The Quttn r. We«t Middkaex Water Co, 28 L. J. M. C. 135; The Queen v. Birming- ham Water Work* Co. 1 B. Jt S. 84 ; but see In re Oaa Co. and Ottawa, 7 U. C. L. J. 104.) So the proprietors of land occupied by a canal and towing path, having on, and belonging to them, as incident thereto and necessary to the occupation and use thereof, certain posts for fastening vessels, stone bridges, culverts and a dry-dock. ( The Queen v. Ooeraeera of Neath. L. K. 6 Q. B. 707.) So the proprietors of a railway carried forward on arches and abutments let wUo and standing in land. (Higgina v. Harding, L. R. 8 Q. B. 7. ) The Legis- lature lukving defined what they meant by land, that meaning ought not to be extended so as to include a harbour or land covered with water. (Buffalo d: Lake Huron Railway Co. v. Ooderich, 21 U. G. Q. B. 97.) Nothins was easier than for the Legislature to have said that harbours shomd be taxed, if it was intended to be so. (Per Bams, J., Jb. 103.) So in England, it has been held that a dock or basin, of which ninety-five acres were covered with water, was property other than land, within the meaning of 3 ft 4 Wm. IV. cap. 90, sees. 33, 34. (The Queen v. Peto, 7 W. B. 686 s. o. 6 Jur. N. S. 1209.) The part covered with water may be held not to be taxable, and yet buildings and land not covered with water, used for the purpose of harbour, may be taxed. By recent EngUsh statutes (30 k 31 Vic. cap. 113, sec. 17), it is declared that the occupier of any land covered with water ''shall pay to the sewer rate in respect to his property one-fourth part only of the rate in the pound payable in respect of houses and other property." Held, as to a Company possessed of a canal, of filter beds supported on brick arches, and sometimes covered with water and at other times not, of land used for keeping saud for the filter beds, and of land having therein iron pipes, mains and service pipes, that the canal and filter-beds were land covered with watw, and assessable only at one-fourth the amount to be imposed on housea, Ac, but that tb« land used for the purpose of keeping sand, and the land occupied by iron pipes, mains and service pipes were land that ought to be assessed at the full value. (Sdst London Water Worka Co. v. Leyton Sewer Authority, L.B.6Q. B. 669.) 516 THK MUKICIPAL MANUAL. [•.4. perty as above defiaed, and except property herein exprewly exempted, (e) (e) The teruu "Penonal Estate" snd "Penonal Propsrty," for purpoeet of taxation, are made to include the following: 1. All goods, chatties, shares in incorporated companies, money, notes, accounts and debts at their actual value. 2. Income and all other property except land and real estf.te and real property as above defined, and except prraerty herein expressly exempted. See further, note d to sec. 3 of this Act. A steamboat is clearly personal property. {In re Ilatt, 7 U. C. L. J. 103.) So the interest of lessees of a road company. {In re Hej^urn, lb. 46.) So shares in incorporated companies, Ex-parte Lancaster Canal Co. 1 Doac. k Ch. 411 ; Humble r. MitfAeU, 11 A. ft E. 20S; Bradley v. Holdaworth, 3 M. ft. W. 422; Duncu/t v. Albrecht, 12 Sim. 189 ; Tempest v. Kitner, 3 0. B. 249; Pierpoint v. Bretoer, 16 M. ft W. 201 ; Freeman v. Appleyard, 7 L. T. N. 8.282; Meyers v. Perigal, 2. De O. M. ft G. 699 ; Sparling v. Parker, 9 Beav. 460; Walker v. Milne, U Beav. 607; Thornton v. Ellis, 21 L. J. Ch. 714; Entwidk v. Davis, L. R. 4 Eq. 272; TayUyr v. Linley, 2 De G. F. ft J. 84. No distinction is to be made in respect of the shares of a company whose act contains no clause declanng that the shares should be personal estate. {Edwards v. Hall, 6 De G. M. ft G. 74 ; but see Ware v. Cumherlege, 20 Beav. 603.) Bank stock, except as exempted, is included. {Madison v. iVhitney, 21 Ind. 261 ; Evans- ville V. Hall, 14 Ind. 27; King v. Madison, 17 Ind. 48; Connerville v. Bank, 16 Ind. i06; State Bank v. Madison, 3 Ind. 43; Gordon v. Baltimore., 6 Gill, (Md.) 231 ; Gordon v. Appeal Tax Court, 3 How. (U. S.) 133; Bank v. Chester, 10 Rich. Law, (8. C.) 104; State v. Charleston, 6 Rich. (S. G.) 661 ; Buhw v. Charleston, 1 Nott ft Mc- Cord, 627; Cherokee Ins. Co. v. Justices, 28 Ga. 121 ; The Bank v. Mayor, Dudley 130; see also, Mayor v. Hartridge,% Ga. 23 ; Nashville V. Thomas, 6 Coldw. (Tenn.) 600; O'Donnell v. Bailey, 24 Miss. 386; see further, note s to sub. 15 to sec. 9 of this Act.) Authority "to tax real and personal property" would not, unless expressed to the contrary in the statute, mclude money, notes, accounts, debts and choses in action. {Johnson v. Lexington, 14 B. Mon. 648-661 ; Louis- ville V. Henning, 1 Bush. (Ky.) 381 ; Bridges v. Griffin, 33 Ga. 113; but see Jacksonville v. McConnel, 12111. 138; Johnson v. Oregon City, 2 Oregon, 327.) Nor would it, unless so expressed, give power to tax income. * (Savannah v. Hartridpe, 8 Ga. 23 ; but see Ltnning v. Charleston, 1 McOord, 346.) The mtention of this Act is that all property not being land, real estate or real |>roper^, and not heiaa exempt under the Act, including choses in action and income, should be taxed as personal estate or personal propeity. (See State v. City Council, 10 Rich. Law, (8. C.) 240; City Council v. St. Philip's Church, MoM. (8. G.) Eq. 139; State v. City Council 4 Strobh. (Law,) 217; State " ' " State V. City Council, 6 Rich. Law, 561 ; Law, 254; CUy Council v. StaU, 2 Speers, (8. C.) 719.) But apparently an exception exists in the case of land covered with water, such as harbours, docks, ftc. (See note d to sec. 3 of this Act) XUV^lU. \KJ, \J.I t:^. SUIT, AMUfrC ». VI v. CUy Council, 1 MUL Ch. 40; S City Council v. Condy, 4 Rich. ,'1 ! w. 5, 6.] LANDS OF NON-RESIDENTS. 517 lecaae note 5. The term " Property," includes both real and personal yf**^'"*^".' - property as above defined. (/) * 6. Unoccupied land shall be denominate*^ " Lands of non- yn(V( uiiie, vested in any public body, or body corporate, officer or per- Her Majesty, son in trust for Her Majesty, or for the public uses of the Municipalitif v. Bank, 5 Rob. Ija. 151; Municipalitj/ v. Railroad Co. 10 Rob. \jiJk. 187; Trustees v. McConnell, 12 111. 1.38; People, v. McCreerif, 34 Cal. 433; Railroad Co. v. Alexandria, 17 Gratt. Va. 171 ; Enxt Saginaw Manufacturing Co. v. East Saijinaw, 19 Mich. 259; s. c. 2 Am. R. 82. ) Thus an exemption of certain property from taxation •' by any law of the State " is not an exemption from a street assess- ment. (In re Mayor, 00. v^ i*? ^^ «i'"^ C< .~-t n i'A^ (p) The exemptions here are : ^ . > 1. The full or half pay of auy one in any oi Her Majesty's naval or military servioes. 2. Any pension, salary, gratuity or stipend, derived by any person from Her Majesty's Imperial treasury or eUeiohere out of this ProiHnce. 3. The personal property of any person in such military and naval services on full pay, or otherwise in actual service. It would seem'Jiat the salary of a County Judge, derived as it is from the Government of the Dominion, is a salary which, though not derived from Her Majesty's Imperial treasury, is derived "elsewhere out of this Province," and so exempt. (g) While all pensions derived by any person from Her Majesty's Imperial treasury or elsewhere out of the Province are by the pre- ceding subsection exempt, none but pensions of two hundred dollars ft year or under, payable out of the public money of the Dominion or Province, are here made exempt. (See The Queen v. Mayor of ^ Liverpool^ 8 A & E. 176, as to the construction of such a provision.) (f) The Act of 1868-9 only exempted "the income of a farmer derived from his farm." This, probably, was on the cround that the farm was taxed, and so it Would be unuiir to tax both the farm and the income derived from it. But until 24th December, 1869, there was nothing to exempt the income of merchants or others, derived from capital, although the capital was taxed. Then the 33 Vic. cap. 27, sec. 2 was passed, deolarine "that subsection 14, of section nine of the ■aid Act be amended by adding the following words thereto: 'and the income of merchants, mechanics or other persons derived from capital Uahle to asseasment. ' " In the United States it was held that power ' ' to tax all real and personal estate within the coiporate limits of the city," did not confer authority to tax income. {Savannah v. Hartridge, 8 Geo. 23; but see Linning v. Charleston, 1 McCord, 345). Or to tax oapital employed in merdiandize distinct from the articles of property ^ which tM capital^ was invested. (Municipality v. Johntton, 6 Ls. An. 20.) 8. 9, sub. 16.] BANK STOCK. 527 (15.) So much of tho personal proporty of nnv person as P<™oimi IS invested in mortgago upon land, or is dne to hirn on Mocun-d by account of the sale of land, tho fee or freehold of which is p;;ffl;;iur vested in him, ov is invested in the debentures of tho Pro- iiiiinicijiui vince, or of any Municipal Corporation thorerf, and such " •'"^"'*'' debentures. ^«) (16.) The stock held by any person in any chartered bank, Bank otock. 80 long as there is a special tax on bank issues, but not the dividends thereof, (t) («) Personal proj tion hero made ii rty ia in general subject to taxation. The exemp* to 80 much of the personal property of any person as is — 1. Secured by a mortgase uj)on land, or is due to him on account of the t<..e of land, toe fee or freehold of which ia vested in him. 2. Secured by the debei. /ures of the Province, or of any Municipal Corporation thereof. The reason of the first is, that the land itself, on whicli the mort* gage security rests, is subject to taxes ; and the second rests on fiscal considerations, the object being to create a bonus in favour of (iovem- ment or Municipal debentures, so as to induce persohs having money to invest, to invest in debentures, and so keep up as much as possible the price thereof. But interest on mortgages, when forming a portion of a person's income, is apparently not exempt. (See sub. 23 of thia sectioQ. ) (t) In the United States most of the bank charters are granted by the Legislatures of the several States. These Acts of Incorporation are there looked upon as contracts between the individual stock* holders and the State. (O'DoneU v. Bailey, 24 Miss. 386.) If the State Legislature provide in the Aot of Incorporation that there shall be none but State taxes imposed on the bank, a Municipal tax would be void. (State Bank of Indiana v. Madison, 3 Ind. 43. ) But where there is no such provision in the charter of incorporation, a power to impose Municipal taxes, when conferred by Act of the 8tate Legisla- ture, may be exercised. (Providence, Bank v. Biilings, 4 Peters, 501 ; Qordori V. The Appeal Tax Court, 3 How. 133; Gordon v. Baltimore, 6 Gill (Md.) 231.) If the only power conferred were to tax "property within the limits of the city, l^at would not confer authority to tax bank stock. (Savannah v. ttartridge, 8 Geo. 23. ) But it is by sec. 4 of this Act declared that the words "personal estate" or "personal Sroperty," shall include "shares in incorporated companies, "divi- ends from bank stock," &c. If there were no other section in the Act, and if the section itself stopped at the words "dividends from bank stock," it might be argued that the only power is to tax dividends from bai£ stock, and tl^at banks are not incorporated companies whose shares may be taxed. But the section proceeds in the definition of personal estate and personal property so as to include "all other property except land and real estate as above described, and except property herein expressly exempted." This would be broad enough to cover all property not described or not exempted. Then reading that section in connection with the beginning of thit,* section, which declares that "aU land and personal property in thi|f '|' Province of Ontario shall be liable to taxation," and with the suhr 1, 528 THE MUNICIPAL MANUAL. [s. 9, 8ub. 19. Railroad stock. Uutlding NucictieM. Property owned out of the Province. Pcrnonal property e<|ual to debts due. (17.) The stock held by any person in any Eailroad Com- pany, (u) [And the shares of Building Societies : Provided always the interests and dividends derived from shares in such Building Societies shall be liable to be assessed, and Hit much of tlie personal property of any person afl is invested in any Company incorporated for the purpose of lending money on the security of real estate: provided that this sluill not exempt the interest or dividends derived from such investments.] (33 V. c. 27, s. 3.) (18.) All property, real or personal, whick is owned out of this Province, (v) (19.) So much of the personal property of any person as is equal to the just debts owed by him on account of such property, except such debts as are secured by mortgage upon his real estate, (w) or may be unpaid on account of the pur- chase money therefor. section here annotated, declaring that "the stock held by any person in any chartered bank, so long as there is a special tax on bank issues, but not the dividends thereof," the necessary inference is that bank stock, provided there be no special tax on bank issues, is taxable as much as the dividends thereof. But it is now expressly provided that "the shares held by any person in the capital stock of any incorporated or chartered bank doing business in this Province shall be exempt from assessment for Municipal or other local rates or taxes." (37 Vic. c. 19, sec. 3.) Any interest, dividends or income derived from any such shares held by any person resident in the Province, is deemed to come within and be liable to assessment" under the 35th section of this Act. {lb.) (u) The Legislature did not, in the original Assessment Act, exempt the stock of incerporated Companies from taxation, with the single exception of stock lield in Railroad Companies. Those who take stock m Railroad Companies in Canada seldom do so for the sake of investment or with the expectation of profit. Most of those who have taken railroad stock with such an expectation have hitherto been disappointed. Subscribers for stock in financial or manufacturing Companies generally stand on a very different footing. But even as to certain financial Companies, the stock is by the amendment of the section — words added in brackets — exempted, while the dividends are not. This is to prevent what otherwise would exist — a double assessment. (v) See note I to sec. 8 of this Act. (w) If what a man owes on account of his personal estate be equal to or exceed the amount of his personal estate, his personal estate is exempt from taxation. This is because it is unfair to tax a man upon that which he does not really own, and cannot be said really to own so long as he owes the price of it, and must pay such price. The exception is where the debts are secured by mortgage on his real estate. This is because the land, or rather the owner of it, must, notwithstanding the incumbrance, pay taxes on the assessed value of the land. S. 9, Mub. 23.] INCOME FROM REAL ESTATE. (20.) The net personal property of any person, provided the same bo under one hundred dollars in value, (x) (21.) The annual income of any person, provided the same does nut exceed four hundred dollars, (xx) (22.) The stipend or salary of any clergyman or minister of religion, while in actual connection with any church and doing duty as such clergyman or ministe/i*, to the extent of one thousand dollars, and the paraonago (>: dwelling house occupied by him, with the land thereto attached, to the extent of two acres and not exceeding two thousand dollars in value, (y) (33 V. c. 27, s. 4.) (23.) Rental or other income derived from real estate except interest on mortgages, (r/y) 529 Parionalty under $100. Income under t400. Minidter'K italary. RenUI of roul estate. (x) The net personal property, &c. So much of the personal pro- perty of any person as is equal to the just debts owed on account of such property is to be deducted from the value of his personal i)ro. perty. (Suo. 19 to this section.) The balance is his " nf< personal property." If the latter be under one hundred dollars in value, it is exempt from taxation. (xx) Certain incomes are privileged from taxation. Thus: the income of the Governor (Jeneral or Lieutenant (Jovemor (sub. 11) ; the full or half pay of persons in Her Majesty's naval or military services (sub. 12) ; so much of incomes as may consist of pensions, salaries, gratuities or stipends derived by any person from Her Majesty's Imperial treasury or elsewhere out of the Province {lb.) ; all Dominion or Provincial pensions of two hundred dollars or under (sub. 13); the income of a farmer derived from his farm, and th3 income of merchants or other persons derived from capital liable to assessment (sub. 14) ; the stipend or salary of any minister of religion while in actual connection with any church, and doing duty as such minister of religion, to the extent of one thousand dollars (sub. 22) ; rental or other income derived from real estate except interest on mortgages (sub. 23) ; all other incomes are subject to taxation. (See uote 7 to sec. 8 of this Act. {y) The 22ud subsection of section 9 was so broad as to exempt the stipend or salary of any minister of religion, no matter how large it was, and no matter how derived. The consequence was that several clergymen, either in no manner doing duty as such, but havmg large incomes as professors in universities, or otherwise nominally doing dnty as clergymen, but having large incomes independently of their churches, made claim to exemption, and had their incomes exempted, though much better able to pay a tax on income than many profes- sional men, business men and mechanics, who were not exempt from tax on income. This was felt to be such an injustice that the 33 Vic. cap. 27, sec. 4 was passed, repealing subsection 22 as it formerly stood, and substituting for it the section as it now stands. (yy) If the owner of land were taxed for the land according to its value, and also taxed for the rental which he received as income {rom it, he would be twice taxed. (See note t to sub. 16 of this sec.) 34 580 U"U*oliold book*, (to. How rtt«i t ( 1)0 calcu- lated. THE MUNICIPAL IIAN'ITAL. [8. 10. (24.) Household effects of whatever kind, books and wearing apparel. («) (25.) [llepealed by stat. 34 V. c. 28, s. 1.] How liatea to hr, FulimatHil. 10. In Counties and local Municipalities, the rates shall be calculated at so much in the dollar upon the actual value of all the real and personal property liable to asBOHsnient therein, (a) A person so situated was doubly taxed under the Act of 1859, and BO the law continued till 1868, when it was altcrerovided, , or on a n such a riginally the Con- Statutes ban one- iie of all indebted ;e would mn: (/) by certain ,re by that licipalitiefl ed in that receive on Sees. 1 aad d to assign borrowed dunicipali- ivestments ivestments (Sec. 5.) equired to are to be due vith ent by the )aUtius arc be payable the assess- inary and ar schools, xpenditure inture is to pal. (lb.) n the pro- itures may under the t February that date, jr the Act le building )uilding or m, a public improving )ads, or in nicipality, obligations F'ovided always, that if such rate of one-third of a cent in the dc" r upon the actual value of ratable property, according to the assessment of any year, shall produce a less sum than five cents in the dollar, on the annual value of the property in the year one thousand eight hundred and fifty-eight, such a rate shall be levied as will produce a sum equal to that produced by a rate of five cents in the dollar on the assess- ment rolls of the year one thousand eight hundred and fifty- eight. 13. The Council of every County or local Municipality Estimateiio shall eveiy year make estimates of all sums which may be t>eniaae required for the lawful purposes of the County or local Municipality, for the year in which such sums are required to be levied, (A) each Municipality making due allowance already contracted for permanent works, (sec. 12,) subject to the r.pp.oval of the LieMtenant Governor. By-laws may l)e passed fm* the application of the money to some of the foregoing purposes, (sec. 13,) and satisfactory proof must be given that the Municij)ality has completed or otherwise performed the works. (Sec. 14.) The debts may be assigned to trustees as a fund for the payment of the new debentures. (Sec. 15.) No portion of the money is to be applied otherwise than as appropriated. (Sec. 16.) The existing Municipal Loan Fund debts are also to continue as security for the payment of the new debentures. (Sec. 17.) Municipal officers are strictly bound to provide for the payment of the indel)tedneBs. (Sec. 18.) No treasurer or other officer is to pay any sum whatever out of any funds of the Municipality, until the sum then payable in respect of the new debentures bus been paid. (Sec. 19.) A warrant may be issued for the collection of the amount du^. (Sec. 20.) (h) In making yearly estimates of the sums required, it will be necessary for the Council to make due allowance in respect of the following: 1. The cost of collection ; 2. Abatement and losses which may occur in the collection ; 3. Taxes on lands of non-residents that may not be collected ; and accordingly have a margin sufficient to cover drawbacks arising from any or all of the foregoing causes. It is not necessary that the By-law should set forth the estimates on which it is founded. {Fletcher and Euphrasia, 13 TJ. C. Q. B. 12'J.) Mentioning a specific sum to be raised for specific purposes may be treated as setting forth an estimate that such sum is required for those purposes. (Per Robinson, C. J. lb. 133.) The Court will intend that proper estimates have been made, in the absence of evidence that they are wanting. (lb.) A local Municipality has not, it seems, the power to pass a By-law of its own, imposing % rate in aid of a County rate. (/6.) A By-law authorizing a levy of certain moneys for Township purposes, and double the amount required l)y the County for County purposes, is clearly bad. (lb.) "To raise moneys for those same 534 THE MUNICIPAL MANUAL. [s. 13. for the cost of collection and of the abatement and losses which may occur in the collection of the tax, and for taxes on the lands of non-residents which may not be collected. purposes 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 Townsliip Oouncil, for it is exercising a power not only not conferred upon them, but expressly conferreil upon another Municipal Corporation. The only argument offered to justify this course was that the Township Council had ascertained that, owing to the large proportion of lands held by non-residents, a aura very far short of that imposed by the County By-law would be collected by the collector on the roll ; that a considerable deficiency would remain to be made up which the Township Treasurer woidd have no funds to meet, and therefore such a By-law was necessary to supply those funds. . , . For the purposes of this argument we will assume the object and inten- tions of the Township Council to be what are stated, and that the facts on which they rely as requiring them to take this course exist (tl.'ough if our decision had to rest upon any such ground, it would have to be indispensable that all those facts should be established before us) ; but we think, assuming everything suggested, that will not sustain the By-law, ivfikh is not, on the face of it, directed to the purpose of meeting a deficiency, and does not even suggest any, if that would enable the Township Council to raise money by By-law expressly to meet it," &e." (P^r Kobinson, C. J., lb. 132. ) A By-law enacting ' ' that the sum of three pence in the pound be levied and raised on all ratable property, to raise the sum of £.S75, to defray all exjjenscs on the Township for the cun-ent year, County and Toumshij) included, 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 lialance remain, to be handed over to the credit of the Township for the ensuing year," was qunshed. ( White v. CoUingwood, 13 U. C. Q. B. 134.) Draper, J., said: "In our our opinion this By-law must be quashed altogether. As to the part imposing rates for Coimty pur- poses, it is bad, for the reason given in the preceding case. (Fletcher v. Euphrasia, 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 £37o directed to be raised ; nor yet can it be ascertained how much the rate of three pence in the pound must be reduced in order to raise that portion of £375 which the Township Council had authority to impose. There arc also other aj)parent objec- tions to this By-law which it is not necessary to advert to for the purpose of sustaining our judgment." (lb. 135.) It is now expressly enacted that every local Municipal Council, in paying over . . . its share of any County rate shall supply out of the funds of the Municipality any deficiency arising from the non-payment of the taxes, but shall not be held answerable for any deficiency from the abatements of or inability to collect the tax on personal property." (Sec. 161 of this Act. ) It has been intimated that a local Municipality has no power to add to the column headed " County Kate" an allowance for the cost of collecting the County rate and for the aliatements and losses which might occur in the collection of it, and for taxes on the lands of non-residents which might not be collected. (Grier v. St. Vincent, 12 Grant. 330; s. c. 13 Grant. 512.) Mowat, V. C, said in the last case : ' ' The poUcy of the Legislature appears to have been "^ i [b. 13. U.] BY-LAWS FOR LEVYING RATES. 535 oails and l)alance for the C. Q. B. must be unty pur- {Fldcher affords no sum of ned how duced in Council nt objec- rt to for is now ying over the funds lent of the from the roperty." uicipality llowance lents and es on the •ter V. St. said in ave been 14. The Council of every Municipality may pass one By- ny-'aws for law, or several By-laws, authorizing the levying and collect- money by ing of a rate or rates of so much in the dollar, upon the ''*'*^' assessed value of the property therein as the (Jouncil deems sufficient to raise the sums required on such estimates, (i) to guard, as far as possible, the money to be raised in the Township by its Municipal authority for Provincifil, County, school and other special purposes from the control of the Township Council, these moneys not being raised by their authority, or not going to purposes over which they had jurisdicticm. " (/?). p. 519. ) And again: "It is now suggested that the eleventh section (same as thirteenth, above) of the Assessment Act, as explained by the Interpretation Act, sanc- tions what was done here. That sectitm directs every local Munici- pality, in the estimates of the year, to make due allowance, . . . but Bays nothing aa to the column in which the allowance is to be entered. . . . I think it is sulhciently apparent . . . that it is contrary to the intention and policy of the Legislature that the Township should mix up in the ' County Kate' colunm money of which they are to have the control, with the money levied for the County." (lb. p. 520.) The Council of the County in apportioning the County rate among the local Municipalities, may, it is apprehended, make alloNf ance for the contingences mentioned in this peotion, and so avoid the difhcultifis which arose in the preceding cases. A By-law imposing a rate clearly iusutiicient to raise the amount of money required may be quashed, (See note i to sec. 14 of this Act.) (I) It is not necessary that a By-law should set forth the estimates on which it is founded. (See note li to sec. 13. ) But the rate should be such as "the Council deevM .sufficient to raise the sums required in such estimates." This must be read in connection with subsection 4 of section 248 of the Municipal Institutions Act, which requires that ' ' such special rate shall be anfficient, according to the amount of ratable property appearing by the last revised assessment rates, to discharge the debt and interest when repayable respectively," and suljsection G of the same secti(m, which requires the By-law to recite "the amount of the whole ratable property of the Municipality, according to the last revised or revised and equalized assessment rolls." In order to ascertain the amount of the rate, it is necessary for the Council to know the amount proposed to be raised, when payable, and the whole amount of the ratable property of the Muni- cipality according to the last revised or equalized assessment rates. These are required to be recited in the By-law itself, in order that the Court and others may judge of the sufficiency of the rate to raise the sum required by the estimates. But even if there be a mistake as to the amount of the ratable property, or an error as to the sufli- ciency of the rate, it does not follow that the By-law must be set aside. (Gricrson v. Ontario, 9 U. C. Q. B. G23. ) Burns, J. , said in this case : "I do not think the Legislature intended that the (!(mrt should be compelled to avoid a By-law because it could be made out by proof that some error was committed in a calculation, or something of that sort done which would in strictness be illegal." (Ih. G32. ) In this case, the County Council, in estimating the actual value of the ratable property in the Village of U.shawa for 1851, made it £61,666, whereas it should have been £92,500, and yet the Court refused to m r)36 THE MUNICIPAL MANUAL. » [ss. 15-17. If the amount col- lected fallg sliort. Kstimates may be re- duced pro- portionably. Wlieu Slims collected exceed csti- inste; ap- 7)ropri»tion of balance. 15. If the amount collected falls short of the sums required, the Council may direct the deficiency to be made up from any unappropriated fund belonging to the Munici- pality, (k) 10. If there be no unappropriated fund, the deficiency may be equally deducted from the sums estimated as re- quired, or from any one or more of them, (l) 1 T, If the sums collected exceed the estimates, the balance shall form part of the general fund of the Municipality, and set aside the By-law. (lb. ) But if the amount of the special rate be unequal or plainly insufficient and so illusory, the objection would assume a substantial character calling probably for the summary interference of the Court. (Per Draper, C. J., in Secord and Lincoln, 24 U. C; Q. B. 142, 150.) In this case the sum mentioned in the By-law was $6,434,773, whereas the amount mentioned in the rate was $6,452,655, a difference "too small to require 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. (!b.) But where it was clear and admitted that "the S^d. in the pound on the sum stated in the By-law to be the value of the ratable property withirf the Municipality would not produce such an amount as would cover the payment, which, under the By-law, is appointed to be made within the year, but considerably less," the rule was made absolute to quash the By-law. (Perry v. Whitbij, 13 U. C. Q. B. 564.) Per Robin- son, C. J., " It will be found, I think, to come short by £30." (lb. 667. ) This By-law on the face of it provided ' ' that if the rate in any one year should prove deficient, &c., such deficiency should be made up from the general fund of the Town." As to this, the Chief Justice said, " And the manner in which the By-law provides for making up the deficiency that may arise ui the payment, even if it were clearly legal, would not still cure the objection, for the statute expressly requires that the rate imposed ahall be in itself sufficient to cover it upon the basis of calculation assumed, and if not it declares that the By-law shall be void." (lb. 567.) But still it is apprehended that it is not necessary that calculations should in the case of every By-law be strictlj' correct. It is not incuml>ent on a Municipal Council to raise all that is required, and no more than is required for ordinary purposes, by one By-law. Were this the law, it would be impossible, owing to contingencies such as mentioned in sec. 13 of this Act, and other contingencies of a like kind, for any Municipal Council to comply with it. The amount collected may either fall short or exceed the sum required. If short, the deficiency may be made up from any unappropriated fund belonging to the Municipality. (Sec. 15 of this Act.) If no unappropriated fund, the deficiency may be equally deducted from the sums estimated or from any one or more of them (sec. 16 of this Act) or a second By- law passed, under the section here annotated. (Sec. 14 of this Act.) If an excess, the surplus becomes a part of the general fund of the Municipality, unless otherwise appropriated. (Sec. 17 of this Act.) (k) See note i to sec. 14 of this Act. (/) See note » to bcc. 14 of this Act. 3. 18.] COMPUTATION OF YEARLY RATES. 537 be at the disposal of the Council, unless otherwise specially appropriated ; (m) but if any portion of the amount in excess has been collected on account of a special tax upon any particular locality, the amount in excess collected on account of such special tax shall be appropriated to the special local object. (») 18. The taxes or rates imposed or levied for any year Yearly tixp« shall be considered to haye been imposed and to be due on p'uteVfrom and from the first day of January of the then current year, ^^\ January, and end with the thirty-first day of December thereof, (o) wisiuid.-rea. (m) See note i to sec. 14. (n) The preceding sections, sees. 14, 15, IG, as well as the first part of this section (17) relate more particularly to general estimates for general purposes. If any portion of the amount in excess has been collected on account of _ -pecial tax upon any particular locality, the general rule is not to apply. In such case the amount collected shall, instead of forming part of the general fund, be appropriated to the special local object and no other. (o) By Con. Stat. U. C. cap. 55, sec. 16, it was declared that the taxes or rates levied or imposed for any year shall be considered to have been imposed for the then current year commencing 1st January and ending Slst December. It was apparently enacted to remove a difficulty, such as that which presented itself in Mcllish v. Brantford, 2 U. C. C. P. 35. In re Varwood, 7 U. C. L. J. 47, Hughes, Co. J., said: "The sixteenth (same as eighteenth) section of the Consolidated Assessment Act of Upper Canada, specifics that the taxes imposed for the year shall be considered to be so imposed for the current year, commencing on 1st January and ending with Slst December, unless otherwise expressly provided for by By-law. I consider, in the absence of such a By-law, if the taxes imposed for the year are to date from Ist January to 31st December, that the property upon which rates and taxes are assessed is to be that which the rated party owns or possesses within the same period, ami no more ; and if he were a resident of the Town when the assessment was taken, or after the Ist of Jc luary, he was properly assessed as a resident, because the assessment relates back to 1 st of January in each year." In Marr v. Vienna, 10 U. C. L. J. 275, the same learned Judge said: "The facts which came out in this case show me that the decision In re Yarwood, 7 U. C. L. J. 47, was not correct in one particular. Had the appellant there been assessed as well in Yar- mouth as St. Thomas in respect of the same income, an injustice would at once have presented itself, which I am satisfied would have led me to a conclusion difi'erent to the one I arrived at, because the statute never intended a man to pay taxes twice in the same year in respect of the same property. So that I am now satisfied the six- teenth (now eighteenth) section only fixes the Municipal fiscal year to commence on Ist January and to end on 31st December in each year (unless a Municipal By-law fix it otherwise) for all purposes for which rates and taxes are to be considered to have been imposedforany current year. " In Ford v. Proudfoot, 9 (Jrant, 478 ; Corbett v. Taylor, 23 U.C.Q.B. 454, andBellY. McLean, 18 U.C.C.P. 416, it was contended 538 THE MUNICIPAL MAJfUAL. Assessors and collec- tors to be ajipointud. Mnnicipiil- ity may bo divided into assessment districts. [ss. 19,20. unless otherwise expressly provided for by the enactment or By-law under which the same are directed to be levied. (^) Appointment of Assessors and Collectors. 15). The Council of every Municipality, except Counties, shall appoint such number of Assessors and Collectors for the Municipality as tlioy may deem necessary, {q) ?J0, And they may appoint to each Assessor and Collector the assessment district or districts therein, within which he shall act, and may i)rescribe regulations for governing them in the peiformance of their duties, (r) that taxes imposed for a particular year sliould be taken, not only as imposetl, hut as due from 1st January. But the Courts refused so to inter[)ret this section. In Corhelt v. Taylor, Draper, C. J., said: "Wo do not so intrepret this section of the statute, but read it as intended (merely) to lix the fiscal year for all Municipalities for the purpose of rates and taxes, and as providing that, no matter what part of a year a By daw imposing rates and taxes may bo passed, tlie taxes shall be considered as imposed for the whole current year. The argument for the plaintiff, if pushed home, amounts to this: that on such a covenant, (against incumbrances) if entered into on 2nd January, the taxes for the current year would be in arrears on that day, if a tax or rate were imposed (at any time) within the year, and in effect the covenant would be broken as soon as made, although when entered into no tax or rate had been im- posed. " Wilson, J. , in Bdl v. McLean, 1 8 U. C. C. P. 410, said, ' ' In one sense the tax may be said to be due when it is imposed by the pas- sage of a By-law for that purpose ; but it cannot be strictly said to be due until the collector has got his roll ; nor even then, for he cannot distrain or take any compulsory proceedings to enforce pay- ment until he has called at least once on the party taxed and demanded payment, or transmitted a statement by post demanding payment if the party be not resident within the Municipality." And again, " A person who 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 which has not yet arrived. The time for its payment has gone by, but the time for its complete accrual has still to come," (p. 421.) Jt is to be observed that the section here anno- tated declares not only that the taxes, &c. , imposed or levied for any year shall not only be considered to have been imposed but "to be due" on, from and after 1st of January of the then cttrrcnf year. It remains for the Courts to decide in what sense the word "due" is used in this section. See further, sees. 107, 108 of this Act, and notes thereto. {p) It is in the power of the Municipal Council to say by the By-law from what time the tax or rate shall be taken to have been imposed, &c. If there be no direction to that effect it will be con- sidered as imposed and due from Ist January of the year in which passed. (.,Haid: "Tho term 'owner,' aa well as 'proprietor,' iHJiinliij^u- 0U8. it may mean that tho defendant had the whole leyai interuBt in the lioiise at the tinio of the wronj^ coniplaincil of, or tli.it lie was owner of tho whole or some intercHt, as diMtinjjuislied from that of the tenant in possesHion; hut in any unaut. against such owner alone if the land is unoccupied, or against the owner and occupant if such occupant bo any other person than the owner. (I) /J5. If the owner of the land be not resident, then, if the land i» occupied, it Hhall bo assessed in the name of and against the occupant and owner; but if the land be not occu- pied, and the owner has not requested to be aHsessed there- for, then it shall bo assessed as land of a non-resident, (m) 20. When land is assessed against both the owner and occupant, or owner and tenant, the n'lseBsor shall (n) place {I) If tho land bo occupied the occupant should be 'anaeBScd. If not the owner, both he and the owner Bhould be assessed. If unoc- cupied, then tho owner alone must bo assessed. Occupation here meant is not shnply possession as a child, servant or caretaker, but by a person having an interest of some kind in tho land. Tho occu- pation need not be a personal one in this sense, that the occupant should have his house on it. It wUl be enough if he have his house elsewhere in the Municipality, and so work it as to be visibly possessed of it. (Bank oj Toronto v. Fanning, 17 Grant, 514; Warnr V. Coulter, 25 U. C. Q. B. 177; sec also Fryer v. Bodenham, 19 L. T. N. S. 645. ) But merely sinkins a post in the ground or some other trifling act of that character will not be sufficient to constitute occu- pation. (Grant v. Local Board of Oxford, 19 L. 1'. N. 8. 378.) (m) Tho meaning of this section is not free from doubt. If land be occupied, no doubt it should be assessed in the name of the occu- pant. If unoccupied, and owned by a person living in the Munici- pality where he is owner, it may be assessed in his name. But if unoccupied and owned by a non-resident, it can only be assessed in his name on his request in writing. (See note g to sec. 6 of this Act. ) This section provides that if the land be occupied " it shall bo assessed in the name of and against the occupant and owner." The question is, whether this is to be done where the owner is a non-resident of the Municipality, and has not requested his name to be entered on the roll. The language of the section is broad enough to cover all owners, whether resident within or without the Municipality. But the narrower construction seems to be the correct one. Persons in the occupation of lane' in the sense that they are in exclusive occupation of any part of it, whether above or below, are liable to be rated in England for poor rate. (See Pimlico roportion3 belonging respectively to each ; (p) and if a portion of the land so situ- ated is owned by parties who are non-resident, and who have not requii'ed their names (q) to be entered on the roll, the whole of the property shall be assessed in the names given to the assessor, saving the recourse of the persons whose names are so given against the others, (r) When ten- 2^, Any occupant may deduct from his rent any taxes J "lucUaxes P^-id by him, if the Bi.me could also have been recovered from from rent, ^^^q owner or previous occupant, («) unless there be a special agreement between the occupant and the owner to the contrary. owner could still be resorted to ? Or, whj"^ should a future owner be liable when the original assessed occupant is in possession, and, of course, liable ? Either owner or occupant shall pay when both are assessed ; and future owners and occupiers are liable in every case to pay, saving their recourse against any other person." {Per Wilson, J., in Anglin v. Mints, 18 U. C. C. P. 170, 177; see further, sec. 95 of this Act and notes thereto.) The goods of the future occupant cannot ])c legally distrained and sold for the taxes imposed on the personal property of the former occupant. (Squire v. Moony, 30 U. C. Q. B. 531.) But if any portion of the tax distrained for be in respect of the realty, trespass will not lie. {lb.) (p) Where on an assessment roll 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 proper columns were the Tetters "F" and "H," and in the columns headed "Owners" and "Audress," opposite to the parcels of land, "Wm. Ker and Bros.," it was held that Wm. Ker and Henry Ker, and not " Wm. Ker and Bros. , " were the persons in whose names the properties were rated. ( The Queen ex rel McGregor v. Ker, 7 U. C. L. J. 67 ; see further, The Queen ex rel Lachford v. Frizell, 9 U. C. L. J. N. S 27.) {q) See sec. 6 of this Act, and notes thereto. (r) See notes to sec. 28 of this Act. (s) 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. {Dove V. Dove, 18 U. C. C. P. 424; see further. Rook v. Mayor of Liverpool, 17 C. B. N. S. 240; and Sheffield Water Workii Co. v. Bennett, L. R. 7 Ex. 409.) But if between the owner and the occupant there be a special agreement to the contrary, of course there will not be the nght to deduct taxes from rent. Defendant took a written agree- ment for a lease of certain premises, which lease was silent as to taxes, but verbally agreed to pay them ; no lease was ever executeti, owing to a disagreement on anotlier point. Defendant occupied the premises for four years, paying taxes for three years without > objection. When sued for rent subsequently accrued, he claimed ' . ' to set off the taxes, on the ground that au the agreement made no SS. 29, 30.] ESTIMATE OP VALUE OP PROPERTY. 547 39. The assessor shall write opposite the nam(' of any Assessor to non-resident freeholder who requires his name to be entered residents, if on the roll, as hereinbefore provided, (t) in the column ^^'J^oil*^' °" number th-ee, the letters "N. K.," and the address of such freeholder, (m) 30t Real and personal property shall be estimated at Howproptr- their actual cash value, as they would be appraised in pay- "^''■^^""ateii. ment of a just debt from a solvent debtor: (v) [Provided that Proviso, in estimating the value of mineral lands, such lands and the buildings thereo^- shall be valued and estimated at the value of other lands in the neighbourhood for agricultural pur provision for them, and could not be added to by verbal evidence, they must fall on the landlord. Held that, having voluntarily made the payments in pursuanci. of his own agreement, even if it were without consideration, he could not recover back or set off such payments. (McAnany v. Tkkell, 23 U. C. Q. B. 499.) It is not said in the Act when, or from quarter or month, the occu- pant may deduct the taxes from his rent; and under a similar enactment in England it was held that a tenant could not occupy for several years, paying taxes, and claim to deduct from his last quarter's rent tlie whole amount of taxes paid by him during the term. {Stubbs V. Parsons, 3 B. & Al. 51(5.) And our Act has in one case received a similar construction. ( Wade v. Thompson et al, 8 U. C. L. J. 22. ) An ordinary lease, under the words in the statute, con- taining a covenant "to pay taxes," covers a special rate created by a Corporation By-law, as well as other taxes. [In re Michie and Toronto, 11 U. C. C. P. 379.) (t) See sec. 6, and notes thereto. (i() The omission to do as here directed would not invalidate the asocssment so far as made. (See De Blaqiiiere v. Becker et al, 8 U. C. C. 1'. 167; see further, note «to sec. 2G.) (y) There is nothing that men so much differ about as the value of property. (See Mersey Bocks Co. v. Liverpool, L. E.. 9 (J|. B. 84; The Queen v. London d in roll separately. When not kaown.to be subdivided into lots. tively shall be held to be the statement and notice required by the forty-fifth and forty-eighth sections of this Act. (g) ^^on-Resident Lands. 34. As regards the lands of non-residents who have not required their names to be entered on the I'oU, (A) the Asses- sors shall proceed as follows : (1.) They shall insert such land in the roll, separated from the other assessments, and shall head the same as "Non- residents' Land Assessments." (i) (2.) If the land be not known to be subdivided into lots, it shall be designated by its boundaries or other intelligible description. (/) , 1. The value of all the real property of the Company, other than the roadway; 2. The actual value of land occupied by the road in the Munici- pality, according to the averagf value of land as rated on the roll for the previous year in tlie locality. The Clerk must communicate the foregoing notice to the Assessor. The Assessor must 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 his Municipality or Ward, distinguishing the value of the land occupied by the road, and the value of the other real property of the Company. It is only the land occupied by the road (not the superstructure) that is liable to assessment. (The Great Western lialhvay Co. v. Rouse, 15 U. C. Q. B. 168; London v. Great Western Railway Co. 17 U. C. Q. B. 262; Toronto v. The Great Western Railway Co. 26 U. C. Q. B. 570.) The assessment of the land must be according to the average value of land in the locality. (Great Western Railway Co. v. Ferman, 8 U. C. 0. P. 221.) (g) The statement from the Railway Company to the Municipality need not be in any particular form. (Great Western Railway Co. v. Ferman. 8 U. C. C. P. 221.) And the delivery of the statement by the Assessor to the Company of the amount at which he has assessed the real property of the Company is necessary, to enable the Company, if dissatisfied, to appeal. (London v. T'he Great Western Railway Co. 16 U. C. Q. B. 500.) The omission of the Assessor to distinguish in his notice to a Railway Company between the value of the land occu- pied by the road, and their other real property, as required by the Act, does not absolutely void the assessment. (Great Western Rail- way Co. V. Rogers, 27 U. C. Q. B. 214. ) It is only the subject of com- plaint to the Court of Revision, (s. c. 29 U. C. Q. B. 245.) (/() See sec. 6 of this Act, and notes thereto. (i) 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 g to sec. 6. ) The only remedy of the Municipality is against the land itself. (lb.) (j) If the land be not known, ck is exempted by this Act : (o) Provided always, that -'ipanies investing their means in gas works, wai--^- . ''\: . plank and gi-avel roads, manufactories, hotels, railw.v^^j aiui tramroads, harbours or other works requiring the investment of the whole or principal part of the stock in i*eai ; stiito alreal' '^ssessed for the purpose of carrying on such busine. H, tlie shareholders shall only be assessed on the income derived from such investment, (p) ■ — "• •■ r (n) This section is in its language somewhat involved. It is the first of the series of sections as to " the manner of assessing personal property." Income for the past year is to a certain extent made by the section the gauge of personal property for the current year. (See note o to sub. 12 of sec. 60.) The substance of the enactment appears to be, that a person having personal property liable to assessment exceeding in value the amount of his income for the past year, less deduction of interest on debt, he shall be assessed for the real value of such personal property; but no matter how much less in value his personal property be, in no case shall he be assessed for less than the amount of income, less interest on debt, as the net value of personal property. (See In re Yarwood, 7 U. 0. L. J. 47.) (o) This part of the section applies only to the assessment of the personal property of Incorporated Joint Stock Companies, where no investment is either required or made of the whole or principal part of the stock in real estate for the purpose of carrying on their busi- ness. In the case of such a Company, the stock, unless exempt, is taken as representing the value of the personal property of the Company for purposes of assessment. But such value is not to be charged against the Company. Each shareholder is to be assessed for the value of the stock or shares held by him as part of his personal property. As to what is personal property, see sec. 4 of this Act. ip) If the capital, or principal part of the capital stock be invested in real estate for the purpose of carrying on the business, or for any other purpose, such real estate is subject to assessment, and being so, it IS deemed fair that shareholders shall only be assessed on the income derived from the investment. The Suspension Bridge across the Niagara River, between the Province of Ontario and State of New York, owned by a Company, being real estate, was improperly 37.] PARTNERSHIP PROPERTY. 553 31. The personal property of a partnership shall be ^^^^^.^^ f assessed against the firm at the usual place of business of paruier- the partnei-ship, (q) and a partner in his individual capacity a?,|}'whe*r7 shall not be assessable for his share of any personal property to be assess- of the partnership which has already been assessed against "^ " the firm. assessed as personal estate. It was argued that it ought not to bo assessed as real estate because the shares of the shareholders are liable to taxation. But the Court refused to give effect to the argu- ment. (Niagara Falls Suspension Bridge Co. v. Gardner, 29 U. C. Q. B. 194.) Wilson, J., in delivering judgment, said : " It was also said it would be unfair to assess the briilge as real estate against the Company, because it is held by shareholders, and their shares are by the statute assessable against them respectively as i)ersonal property, and so the same property would be twice taxed and jiaid for. No 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, and may not be computed by them in the return made of their personal pro- perty. 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 argument be good, it should escape taxation altogether, . . . The 37th section of the Assessment Act (same as sec. 38 of this Act) shows that this bridge should be considered as real estate, in which case, as the principal part of the stock consists of real estate, the shareholders are liable to be only assessed on the income derived from their investment. (Ih. pp. 199, 200.) (q) It is no easy matter to say where the usual place of business of a partnership is, where the business is such that it cannot be conducted in one place, but necessarily in several places. Thus : Suppose a lumbering firm having an office in Toronto, getting out logs during the winter in different parts of the Province, floating the logs in spring in other parts of the Province, and in summer selling the logs in Quebec or at some other jioint out of the Province. The business is that of getting out logs and selling them at a profit. It is apprehended that the business ought to be said to be carried on where the principal office or head office is situate. In Tai/lvr v. The Croioland Oas Co. 11 Ex. 1, it was held that a Corporation dwells where it carries on its business. In Minor v. London and North' Western Railway Co. 1 C. B. N. S. 325, it was held that a llailway Company does not carry on its business at a receiving house or book- ing office kept by an agent. In Shields v. Great Northern Itailivay Co. 7 Jur. N. S. 631, it was held that a Railway Company does not carry on business at any place other than its principal office at which its business is managed. In Brown v. London and North- Western Railway Co. 4 B. & S. 326, it was held that this means their general business — not where they carry on a part or even a material part of their business. See further, Adams v. Great Western Railway Co. I 554 THE MUNICIPAL MANUAL. [s. 38. ab to part- 3g If a partnership has more than one place of business, having more (r) each branch Siiall be assesseci, as far as may be, in the i)iwi?ne8s locality where it is situate, for that portion of the personal locality. property of the partnership which belongs to that particular branch ; (s) and if this cannot be done, the partnership may elect at which of its jJaces of business it will be assessed for , the whole personal property, and shall be required to })ro- duce a certificate at each of the other places of business of the amount of personal property assessed against it else- where. SOL. J. Ex. 124; Mitchell v. Hender, 18Jur. 430; McMahon v. Irish North Western Railway Co. 19 W. R. 212; Ahrem v. McGillirjat, The Orand Trunk Railway Company, garnishees, 23 U. C. ('. P. 171. In Ex parte Charles, L. 11. 13 Eq. 038, where manufacturers of steel arid other articles at Sheffield, who rented three rooms in London, two of which were occupied by an agent who kept samples and solicited orders, it was held that tlie busniesa was carried on at Sheffield and not at London. In Attorney -General v. Sulky, 4 H. & N. 769, it was held that a member resident in London of a mercantile firm established at New York for the sale of goods, and M'ho made purchases in England for the firm in New York, was liable to income tax, but the decision was afterwards reversed. (5 H. & N. 711.) Cockburn, C. J., in delivering the judgment of the Court of Error, said: " The question is, whether there is a carrying on or exercise of the trade in this country. I think there is not, looking at the sense in which the term is used, and having regard to the subject matter of the statute. Wherever a merchant is established in the course of his operations, his dealings must extend over various places. He buys in one place and sells in another. But he has one principal place in which he may be said to trade, viz., where his profits come home to him. That is ivhere he exercises his trade." (5H. & N. 717.) (r) See note q to sec. 37. (.9) The words are that each branch shall be assessed, as far as may he, in the locality where it is situate, for that portion of the per- sonal property of the partnership which belongs to that particular branch. The difficulty will be to say, Jirst, whether tliere is a branch; and secondly, what portion of the personal property belongs (or appertains) to that particular branch. Everything will depend upon the nature, character and extent of the business, and the mode in which the same is conducted. In almost every ordinary mercantile business there will be considerable difficulty in applying the section. It is provided that, if this cannot be done, the partnership may elect at which of its places of business it will be assessed for the whole personal property, in which event it shall be so assessed and shall be required to produce a certificate at each place of business of the amount of personal property assessed against it elsewhere. Whether this will apply to a firm having its princii)al place of business out of the Province, is a question which must rest for the decision of the Courts. (See note q to sec. 37.) It has been held that "steam- boating" is a species of business which can only be assessed as a whole, where there is but oue boat ; and that plying between two points in different Counties, such a business is not to be understood [s. 38. 39.] LOCALITY OF ASSESSMENT. 555 39. Everj'^ person having a farm, shop, factory, office or Where par- other place of business where ho carries on a trade, pro- on trade, fession or calling, shall, for all personal j)roperty owned by *e assessed him, wheresoever situate, (t) be assessed in the Municipality forpersonul or Ward where he has such place of business, at the time i"'"'""^^ when the assessment is made, (tt) as consisting of several branches within the meaning of this section. {In re llatt, 7 U. C.L. J. 10.3.) Tlie question was raised whether the owner of a road having toll gates in different Municipalities is a , person having different places of business, but no decision was given , on the point. (In re Hepburn and Johnson, 7 U. C. L. J. 46; see further, note I to sec. 8.J (t) It is enacted that every person having — 1. A farm; 2. Shop; 3. Factory; 4. Office; 6. Or other place of business, , where he carries on a trade, profes- sion or calling. (See note r to sec. 370 of the Municipal Institutions Act.) Ilk shall, for all personal property owned by him, wheremever situate, be assessed in the Municipality or Ward where he has such place of business at the time when the assessment is made. A man may have his place of business in one Municipality and reside in another, or in one County and reside in another. So long as resident in tlie Trovince, and having oidy one place of lousiness, there might be no dithculty in assessing him at that place of business for his persoixal property wheresoever situate within the Province. But if lie have personal property out of the Province there would be great difficulty in holding that such last-mentioned property should be assessed at his place of business. Such a holding would certainly be contrary to the opinions expressed by the learned Chief Justice who delivered judgment in Attorney-Oeneral v. Sulky, 5 H. & N. 711. (See note q to sec. 37; see also In re Goodhue, 19 Grant, 306. ) In the last-mentioned case. Strong, V. C, intimated that the testator's grandchildren, domiciled without the Province of Ontario, could not be affected by any Act of the Provincial Legislature. In Duer v. Small, 4 Blatchf. 263, it was held that the statute of a State, providing that persons doing business in the State as merchants, bankers or otherwise, though not residents of the State, should be assessed on all sums invested in their business, the same as if they were residents of the State, was constitutional. (See further, note I to sec. 8.) [tt) Every person who holds any appointment or office of emolument to which an annual salary, gratuity or other compensation is attaclied, and performs the duty of such apjiointment or oHice within a Muni- cipality in which he does not reside, must be assessed in respect of the amount of such salary, gratuity or compensation at the place where he performs such duties. (37 Vic. cap. 19, sec. 6.) He is not assessable therefor at his place of residence. (Ih.) But if required, must produce a certificate of his being otherwise assessed uiicier the provisions of this section. {lb.) This does not apply to County Municipal officers, {lb.) As to the meaning of the words " office and "officer," see Tlie King v. Bridgewater, 6 A. & E. 339; The Queen V. Tlie Local Government Board, L. R. 9 Q. B. 148. 556 THE MUNICIPAL MANUAL. [ss. 40-42. When the party lias two or more |)laue8 of Imsiness. When the {tarty Las no )ilaee of busineg!). Oaio of cxecutori. 40. If he has two or more such places of business (u) in, different Municipalities or Wards, he shall be assessed at each for that portion of his personal property connected with the business carried on thereat; (v) or if this cannot be done, he shall be assessed for part of his personal pro])erty at one and part at another of his places of business, but he shall in all such cases produce a certificate at each place of business of the amount of personal property assessed against him elsewhere. 41, If any person has no place of business, he shall be assessed at his place of residence, (v)) 4/J. Personal property in the sole possession or under tlie sole control of any i)erson as trustee, guardian, executor or administrator, shall be assessed against such person alone, (a;) (tt) i. e, , Farm, shop, factory, office or other place of busineas. (See sec. 39. ) (v) See note « to sec. 38. (to) It is by sec. 21, sub. 1, trade the duty cf an Assessor to set down the names and surnames in fvM of all taxable persons resident in the Municipality who have taxable property therein. But as a Serson may be taxed at his place of business and yet not be a rcsi- ent of the Municipality, it follows that sec. 21, sub. 1, must be read as somewhat amplified. (See sec. 39. ) Unless, however, the person taxed have either a place of business or a place of residence m the Municipality he cannot be legally placed on the roll. (Cart- wright V. Kingston, 6 U. C. L. J. 189. ) Prior sections to this provide for assessment at the place or places of business. Thus, if any person resident in the Municipality have no place of business, he shall be assessed at his place of residence. The word " residence " in different statutes may have different meanings, according to the subject matter and purpose of the statutes. Where the lessees of a road running through the Village of St. Thomas, lived in the Township of Yarmouth, it was held that they could not be assessed in St. Thomas for their interest in the road. (In re Hepburn and Johnson, 7 U. C. L. J. 46. ) So where the appellant, whose residence was London, though in the Village of St. Thomas at the time of the assessment, was only temjiorariiy 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 Ashworth, 7 U. C. L. J. 47.) So where a farmer, resident of Vienna, having taken a house at Ingersoll, in another Municipality, whither the greater part of his household effects had been removed, 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 in Vienna. (Marr v. Vienna, 10 U. C. L. J. 275; see further, note d to sec. 77 of the Municipal Institutions Act ; also, note I to sec. 8, and note tt to sec. 39 of this Act.) (x) Trustees, guardians, executors and administrators are supposed to have the means of reimbursing themselves out of the estate B8. 43, 44.] TRUST PROPERTY. 557 43t In case of personal property owned or possessed by or under the control of more than one person resident in the Municipality or Ward, (a) 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) 44, When a person is assessed as trustee, guardian, execu- tor or administrator, (d) he shall be assessed as such, (e) with the addition to his name of his representative chamcter, and such assessment shall be carried out in a He|)arate line from his individual assessment, (/) and he shall be assessed for the value of the real and personal o ate held by him, whether in his individual name or in conjunction with others in such representative character, at the full value thereof, or for the Separate aHHcHsijieiil <>( joint •jwiiurs or IiuHbeiiftiiis, I'artios trustifcs, *!•. to have tliiii rt^Iirescnlii- tivo clmiiii'- tiT Rttni'ti'i! t(i tlifir IIUIIIC.'*. moneya paid for taxes. Though described on the roll in their representative capacity, it would seem that they are personally liable for the payment of taxes. "It may, no doubt, operate hardly, but not more so than the seizure of any other person's goods which may happen to be in the possession of the person assessed." {Per Robinson, C. J., in Dennitson v. Henry, 17 U. C. Q. B. 27(5.) So a person appearing upon the books of a bank as the legal holder of its shares is, upon the failure of the bank, held liable for the debts of the bank to the extent of the shares held by him, although he received and holds the shares as collateral security for a loan to a shareholder or otherwise in trust. (See Grease et al v. Babcoc.k ct at, 10 Met. 525; Grew v. Breed et al, 10 Met. 569; Adderly v. Storm, 6 Hill, 624; lioeevelt v. Brown, 11 N. Y. 148; Be Empire City Bank, 18 N. Y. 199; Hale v. Walker, 31 Iowa, 344; 7 Am. Rep. 137.) Personal property of a person not resident within the Province must be assessed in the name of and against any agent, trustee or other person who is in the control or possession thereof, and is to be deemed the individual property of such trustee, agent or other person for all objects within the Assessment Act. (37 Vic. cap. 19, sec. 5.) (a) Resident, &c. See note w to see. 41 of this Act. (b) See note x to sec. 42 of this Act. (c) This apparently intends the assessment to be separate as to each ; each to be assessed for an equal portion only. Why this should be so, it is difficult to understand. It may be in ease of the persons assessed. (See note x to sec. 42 of this Act. ) If all were jointly assessed, then each would be 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. (d) The preceding is the last of the series of sections which relate to the manner of assessing personal property. This and the subsequent sections appear to relate as much to real as to personal property. (e) See note x to sec. 42 of tlus Act. (/) An administrator, though assessed in his own name for real property belonging to the estate, cannot qualify upon it as a member of tlie Council. { The Queen ex rel. Stock v. Davis, 3 U. C. L. J. 128. ) 6B8 THE MUNICIPAL MANUAL. [ss. 45, 46. PartiruliiM resiiei'tin); real pm- purty to be (lellvcrfd to H8Hi'ng(ira in writing, liy the parties to be usgfsscd. StateraentB given by iiartics not biiidiiig on BtJBesaurs. proper proportion thoreof, if others reaident within tlio same Municipality bo joined with him in such repreaontutive character, (y) 45. It wliall be tlio (hity of every person asaosaable for reiil or [)orsonal property in any local Municipality, (A) to give all n(!cossary information to tho Asseasora, and if re- (juired by tho Assessor, or by ono of the Assessors if tlnu'o be more tiian one, ho shall deliver to him a 8tat(>ment in writ- ing, signed by such person (or by his agent, if tho person himself be absent), containing all the particulars reH{»et'ting the real or personal property assessable against such person, which arc required in tho assessment roll j and if any reasonable doubt bo entertained by the Assessor of the correctness of any information given by the party ap[>liod to, tho Assessor shall require from him such written state- ment, (i) 40. No such statement shall bind the Assessor, nor excuse him from making due enquiry to ascertain its correctness ; (k) and, notwithstanding tho statement, the Assessor may assess such person for such amount of real or personal projjerty as he believes to be just anil correct, and may omit his name or any property which he claims to own or occupy, if the {(j) It is quite plain from tho reading of this section that there ought to be no confusion between tho assesament of property belong- ing to a man in his own right, and that which he holcls in a reprc- ■entative capacity. When holding property in the latter capacity, he is to be assessed as such, and the aaaessment is to be carried out separate from his individual assessment. So if others resident within the MunicipaUty be joined with him in such representative character. {h) This would not apply to persons resident out of the Munici- pality. (See sec. 6, and notes thereto. ) (») The duty is— 1. To give all necessary information to the Assessors. 2. (If required by the Assessors or one of them) To deliver a written statement containing all the particulars respecting the real and personal property assessable against such person which are required in the assessment roll. (See sec. 21.) And 3. If any reasonable doubt be entertained by the Assessor of the correctness of any information given under No. 1, the Assessor shall require the written statement. But no such statement is binding on tho Assessor. (Sec. 46.) {k) The statement, whether written or verbal, is intended for the information of the Assessor. But he is still bound to make enquiry, or to be otherwise satisfied of its correctness. The receipt of the statement is not intended to be a substitute for but an aid to diligence by the Assessor. « S9. 47, 48.] NOTI(!E OP ASSESSMENT. 559 Assessor Ijfis roason to bolievo thr.t lit; is not entitled to bo placed on the roll or to bo assesattd fur siit'Ii property. (/) 4T. In caso any person fails to dtlivor to tho Asspssor PcnHity for the written statt;uient mentioned in the preceding sections Ht^iN"!!!*;'"* when reciuirod so to do, or knowingly stat(w unvthinu falsely "■ ninkiuu • i.1 -i-i i i. \ • 1 i. 1 1 !• •! film' Mtnte- m the written statement recjuired to hu made as aforesaid, n„nt. (in) such person shall, on complaint of tho Assessor, and upon conviction before a Justice of the Peace havintj juris- diction within the County wlir i ni tho Municipality is situale, forfeit and pay a fine of tweiiiy dollars, to be recov- ered in like manner as other penalties upon summary con- viction before a Justice of tho Peace. 4S. Every Assessor, before the completion of his roll, (n) Assesnori to shall leave for every party named thereon, resident or domi- f,7iiii'rtie8*of ciled or having a place of business within the Munici]>ality, (o) ^',yu'(u ? and shall traTismit by post to every non-resident who shall pniiitrty have required his name to be entered thereon, a; I furnished ""»'"'*"*) Court of Revision. — See note a to sec. 51 of this Act. (c) Quorum. — See note g to sec. 120 of Municipal Institutions Act. (d) Record of the proceedings thereof, &c. — See sec. 185 of Muni- cipal Institutions Act, and notes thereto. (e) Every member of the Court, before entering upon his duties, must take and subscribe before the Clerk of the Municipality the follow- ing oath (or affirmation in cases where by law affirmation is allowed) : "I do solemnly swear or affirm that I will to the best of my judgment and ability, and without fear, favour or partiality, honestly decide the appeals to the Court of Revision which shall be brought before me for trial as a member of said Court. " (37 Vic. cap. 19, sec. 9.) (/) No witness can be compelled to attend till paid or tendered compensation at the rate of fifty cents a day. (Sec. 57 of this Act. 568 THE MUNICIPAL MANUAL. [ss. 57,58. wltncBses' ^^' ^^ ^"^^ witness summoned to attend the Court who refuse of Revision as a witness, fail without good and sufficient to attend, reason to attend (having been tendered compensation for his time at the rate of fifty cents a day), he shall incur a penalty of twenty dollars, to be recoverable with costs, by and to the use of any person suing for the same, either by suit in the proper Division Court or in any way in which penalties incurred under any By-law of the Municipality may be recovered, (g) (37 V. c. 19, s. 10.) The court to 58. At the times or time appointed, (gg) the Court piaintst^^ shall meet and try all complaints (A) in I'egard to persons ((/) The duty of a witness when summoned is to attend Court. But that duty is not made compulsory unless when summoned he be paid at the rate of fifty cents a day. This is intended as compen- sation for his time. When this lias been paitl or tendered, the witness is bound to attend, or submit to a penalty '• not exceeding twenty dollars." (g/ all complaints, &c. The pr > son 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 his notice, the appeal would drop. In The Queen v. Stoke Bliss,6Q.B. 158, on an appeal from an order of Justice? to the Sessions, the appellant served a notice of countermand, but the Court, notwithstanding, made an order confirming the order of the Justices, with costs. It was held that the Court had no jurisdiction to do so. And per Patteson, J. : •'It is unfortunate that the Sessions proceeded in this manner. The order states that, no one appearing to prosecute the appeal, they con- lu:m the order of removal. That, they had no jurisdiction to do ; and we cannot separate the order for costs from, the order of confirma- tion," &c. But by this statute it is declared that "if ei^Acr party fails to appear in person or by an agent, the Court way proceed ex parte." (Sub, 14 of sec. 60 of this Act.) If the appellant appear to prosecute his appeal, and show himself to be in a position to do so, it is the duty of the C(mrt 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. (Per Morrison, J., in The Queen v. Cornwall, 25 U. C. Q. B. 292.) The appearance of the parties by their counsel for the purpose of objecting to the notice is no waiver of it. (lb. ) In the event of the Court refusing to hear a complaint when it ought to do so, a 7)ian damns vaight be obtained to compel them to do. ( 2%e King v. Justices of Kent, 9 B. &. C. 283.) In this ease, on the appearance of the appellant, a resolution was moved, seconded and carried, to the eflect that no further notice should be taken of his application for relief. The Court held that there had not been any decision. (lb.) And per u. 58.] WRON.GFUL ASSESSMENTS. 560 Lord Tentcrden, C. J. : "In this case a rate was made, and a Bum of money ordered to be paid out of that rate to Suter. Ritehio (the appellant) objected to sueh payment, and applied for relief under the sixty-third see^^^ion to the Churchwardens, &c. They resolved that they would take no notice of his application for relief. They refused, in fact, to hear the aj)peal at all. The proper course under these circumstances would have been to have applied to tliis Court for a j;m?i(to7nutf to compel them to hear this appeal." (p. 287.) It is the duty of the Court, when a jKirson appeals against an assess- ment, and apjMiars to support his appeal, to decide the cnm])laint either one way or the other. {'J'fiP Law Society of Upper (Janada v. Toronto, 25 U. C. Q. B. li>9.) Abstaining from decision is no deter- mination of the matter of appeal. {Per Draper, C. J., lb.) The person appealing is entitled to a decision on his appeal before ho can be made liable to pay any taxes in respect of the assessment against which he appeals. Until decided, the assessment is, as it were, with- drawn from the assessment roll (Ih. per Morrison, J., p. 207. ) >Some act of the Court would, it seems, be necessary Ijcfore a uecisi(m couM be said to be given. {Ih.) In re Juili/e of Perth atxlJ. L. Jiohinson, 12 U. C. C. P. 252, where, on an application clainn"ng a reduction of assessment, the Court of Revision adopted a resolution "That the application of James Lukin Robinson for a reduction of his tuxes on tho assessment be dismissed, as this Council is of opinion that the lands of complainant have not been assessed higher in any case than lands similarly situated of residents of the Municipality," it was held that this resolution was a sufficieAt act d(mc as to amount to a decision. And ;?er Draper, C. J. : "I tJiink it would amount to an entire defeat- ing of the statute, and a denial of the relief it was intended to afford, if, by refusing to entertain the petition altogether, they could pre- vent the complaint being heard. As at present advised, I should treat sucfi a refusal as a decision against the petitioner. In substance it certainly is so, only it may be said to be a decision witliout trying the case. In the present instance, tho Council have, I thiidc, by the very terms of theii- resolution, shown that they have tried the mattcr» though they hav^ done so without hearing the complainant further than by reading the statements of kis petition. They have dismissed tlie petition 'because his lands have not been assessed higher in any case than lands similarly situated of residents of the Municipality.* This is really a decision of the complaint, and imports an examina- tion into the merits. They profess to have ascertained a fact which, in their judgment, disentitles the applicant to relief under the Act."' (//>. 252.) In The Kino v. Tucker, 3 B. & C. 544, the dismissal of a complaint, on the mistaken ground tliat the Court had not jurisdiction to hear it, was, under the peculiar provision%of 3 (^eo. 4, cap. S3, sec. 2, considered such an act done by the Court as to give a right to appeal. And jyer Abbott, C. J.: "The application must be made within a certain time, notices are to be given, and the Petty Sessions must be held within thirty days. The party, tlierefore, caimot renew his application for relief if the coiuplaint is dismissed, nor can this Court issue a mandamus to the special Petty Sessions. The question then is, whether a dismissal of the complaint, not on the merits, but on a mistaken notion of law, is not, under such circumstances, to be considered as an act done against which an appeal lies by the seventh section of the Act. I think that it is, but my opinion is founded on the pecxUiar provisions and language of the Act, and must not be; 570 THE MUNICIPAL MANTJAL. [s. 59, June 16th. wrongfully placed upon or omitted from the roll, or assessed The court to at too high or too low a sum. li) JInlshits ^ busiiiuHH iiy 5<>^ AH the duties of the Court of Revision, which relate to the matters aforesaid, (k) shall be completed, and the rolls finally revised by the (*ourt, before the fifteenth day of June in every year, (l) considered as a prece9 of this Act. (t) The statutory jurisdiction of the Court is here conferred. The Court cannot exceecl it. It is one with a limited authority created for i)articular purposes, viz., to try all complaints in regard to persons — 1 . Wrongfully placed on the roll. 2. Unlawfully omitted from the roll. • 3. Assessed at too high a sum. 4. Assessed at too low a sum. See note a to sec. 51 as to the nature and extent of the juris- diction. {k) See note i to sec. 58 of this Act. (/) So far as the Court is concerned, this section would appear to l>e imperative. But so far as the public .is concerned, it maybe held to be only directory. (Sec note h to sec. 189 of the Municipal Insti- tutions Act. ) Whore an act is required to be done for the public good, and there has been a wrongful omission to do it, and a serious inconvenience will arise from its not being done, a Superior Court of law has the power of ordering it to be done under the prerogative writ of maudamm. (Per Lord Campbell, C. J., in The Qiiwn v. Jiochester, 7 K. & B. 92 1.) Of this we have a well-known instance in The King v. Sparrow, 2 Str. 1123, where Overseers of the Poor not having been appointed for a parish as the statute requires, " in Easter week or within one month after Easter," a mandamus was granted after the expiration of that time to Justices to appoint Over- seers for that Parish, and the appointment having been made was solemnly adjudged to be valid. This decision has been frequently recognized and acted upon. There can be no doubt that for the public good, and to eifectuato .the intention of the Legislature, the revision of the list (though the fifteen day of June have passed without it), if practicable, ought still to take place. (lb.) The proper course would probably be to apply for a mandamus tc the head of the CoAicil to summon the Court to meet, under the authority given him by sec. 55, with a view to hear and deter- mine the matters complained of, due notices being first given to the respective parties. (Per Morrison, J., in The Qiieen v. Cornwall, 25 U. C. Q. B. 292. ) Possibly the writ might be directed to the Court, or members composing it ; for though*-not a Corporation, they con- stitute, as it were, a standing and perpetual tribunal within the Municipality. (Per Lord Campbell, C. J., in The Queen v. Rochet er, 7 E. & B. 925.) The Court may. at its option, after the loth of June, receive and decide upon the petitior from any person asficssed for a tenement which has remained vacant during more than three months in the year for which the assessment has been made, or from any H. 60, sub. 2.] NOTICE BY COMPLAINANTS. 571 rom any 60. The proceedings for the trial of complaints shall bo Procof.iings p t, } \ ' on tnnl of as loUows : (a) comiPiaintH. (1.) Any person complaining of an error or omission in Notkoof regard to himself, as having been wrongfully inserted on or I'ypar'ty omitted from the roll, or as having been undercharged or nfe'b''''«ve) Every Assessor, before the completion of his foil, and therefore before the return of it, must leave for every party named therein, and resident or domiciled or having a place of business within the Muni- cipality, and transmit by post to every non-resident who shall have requested his name to be entered thereon and furnished his address to the Assessor, a notice of the sum at which his real and i)ersonal property has been assessed. (Sec. 48.) If, upon inspection of it, the person assessed linds, in regard to himself, an error or omission of the description mentioned in this subsection, he must, witliin four- teen days after the time fixed for the return of the roll give notice thereof in writing to the Clerk of the Municipality, that he considers himself aggrieved for any or all of the causes mentioned in this subsection. This notice is to be given within fourteen days after the first day of May, required for tlie return of the roll, or within fourteen days after the return of the roll, in case the same is not returned within the time fixed for that purpose. (37 Vic. cap. 19, sec. 12.) If the notice required by sec. 48 has not been served, the assessment might be held invalid. (London v. Great Western liailway Co. 16 U. C. Q. B. 500. ) But if the notice be served, and the party either omit to appeal within the time herein limited, or wholly omit to do so, the assessment would bind him. (McC'arrallv. Watkitw, 19 U. C. Q. B. 248. ) In the case of jjalpable errors needing correction, the Court may extend the time for making the complaints ten days further. (Sub. 4 of this section.) The Court may, as mentioned in the note to the preceding section, without notice, receive and decide upon the petition from any person assessed for a tenement which has remained vacant during more than three months in the year for which the assessment has been made ; or from any person who declares himself, from sickness or extreme poverty, unable to pay his taxes, or who, by reason of any gross and manifest error in the roll, has been overcharged more than twenty-five per cent, on the sum he ought to be charged. (Sec. 62 ; see further, as to the general juris- diction of Courts of Kevision, note a to sec. 51.) iil; 572 THE MUNICIPAL SIANUAL. [s. GO, sub. 3. i-'kik to ;rlvo tintieo by posting Up li:U. insortod on or omitted from the roll, i\ni Clerk sliall, on hia rofjuost in writing;, give notice to such jjcrson and to the Assessor, of the time wh St. / It time at ! to be plaints )f whom at least I neces- his aid bich he shall be mado in the roll, unless uii(.li2.i' a coniplniub formaUx madu according to tho above jtrovisions. (c) (4.) When it shall appoar that thoro are palpable on'ors rxtonNion of which need corivotion, tho Court may extend tiio time for ',',''|',|,,["i'nf«. making complaints ten days further, ( /') and may then meet and determine tlie additional matter complained of, and the Assessor may for such purpose be tho comphiinant. (.*).) Such list may l)e in the following form : (y) Appeals to bo'heard at tho Court of llevisiou, to bo held Form or at on the day of 18 iiuUcc lint. APPELLANT. RE.SPECTINO WHOM. MAITFK rOUPLAlHEl) OF. A. B , Self Overch;vri?o(l on land. C. I) E. F Name oniittjil. G. H J. K Not hoiirt Juk owner or occupant L. M N. Personal property undercharged Etc., etc. (6.) The Clerk shall also advertise in some newspaper Tiic oicru to mlviTtise published in the Municipality, or if there be no such paper, s'ituugs'o then in some newspaper publislied in the nearest Munici- '^o"'^'' pality in which one is published, {h) the time at Avhich the Court will hold its first sittings for the year. is required by law to make (.37 Vic. cap. 19, sec. 13); and in tho event of his failure to efl'cct any such services in time for tlic first sitting of the Court, the Court in its discretion may ajipoint an adjourned sitting for the purpose of hearing the appeals for which the services were not effected in time for the first day, and the proper services shall be made for such adjourned day. (lb. ) (e) Any alteration made otherwise than under a complaint, accord- ing to law, would be as no alteration, and so not to be regarded. (/) Ordinary complaints should be made "within fourteen days after the time fixed for the return of the roll." (Sub. 1.) But as regards ^'palpable errors which need conection," tlie Court may, under this subsection, extend the time ten days fiirther. "Palpable" strictly means perceptible by the touch — something that may be felt. But, according to the general understanding, it means some- thing easily perceived and detected — something so plain that, as it were, the perception of it immediately produces detection. If such errors appear, and are deemed of sufficient importance to be corrected, there may be an extension of time for making complaints in reference to them. (g) The Clerk must enter the appeals on the list in tho order in which they are received by him (37 Vic. cap. 19, sec. 14), and the Court must proceed with the appeals in the order, as near as may b in which they are so entered, but may grant an adjournment or postponement of a^y appeal. {lb. ) (h) The notice which the Clerk is, under this subsection, required to publish, must be published at least ten days before the sitting of the Court. (37 Vic. cap. 19, sec. 11.) i:*; 574 THfc MUNICIPAL MANUAL. [s. 60, Sub. 10. To leave a list with assessor, and prepare notice to person complained against. Form. Service to be at resi- dence. How absen- tees served. (7.) The Clerk shall also cause to be left at the residence of each Assessor, a list of all the complaints resjjecting his roll (i) (8.) The Clerk shall prepare a notice in the form follow- ing, (k) for each person with respect to whom a complaint has been made : " Take notice, that you are required to attend the Court of Revision at on the day of in the matter of the following appeal : " Appellant : ' G. H. " Subject — That you are not a bona fide owner or occu- pant {or as the case may be)." (Signed) . "X. Y. " To J. K." ' " Clerk." (9.) If the person resides or has a place of business in the local Municipality, the Clerk shall cause the notice to be left at the person's I'esidence or place of business. (/) (10.) If the person be not known, then to be left with some grown person on the assessed premises, if there be any (i) This is directed to be done in order to apprize the Assessor of the cause of complaint, so that he may attend and, if deemed proper, support the roll. When necessary, the Clerk of the Municipality may, at the cost of the Municipality, call to his aid such assistauco as may be required to effect the services which he is required by law to make. (37 Vic. cap. 19, sec. 13.) • {k) See note h to sec. 238 of the Municipal Institutions Act. Ic should be a six days' notice. (See note n, infra. ) (1) The preparation of the notice directed by the preceding sub- section would be of little worth, i;-. - s the notice, when prepared, were in some way or other commu-iuated to the person concerned. If the person intended to be notified reside or have a place of busi- ness in the Municipality, it will be sufficient if the notice be left at his residence or place of business. If a non-resident, it will be sufficient to address the notice to him through the post otBce. (Sub. 10. ) If not known, the notice may be left with some grown person on the assessed premises. (Sub. 10.) Service at the dwelling house is sufficient. ( The Queen v. Justices of North Riding of Yorkshire 7 Q. B. 154; see also, The Queen v. JuMices of Cheshire, 11 A. & E. 139. It is doubtful if service on a Sunday would be sufficient. (The Qven v. Leominster, 2 B. & S. 391.) If the last day for service fall on Sunday, service would certainly not be sufficient. (The Queen v. Justices of Middlesex, 2 Dowl. N. S. 719; Asprellv. Justices of Lancaster, 16 Jur. 1067; Peacock v. The Quevn, 4 C. B. N. S. 264; Wynne v. Ronaldson, 13 W. R. 849.) But if allowed to be sent by post, it would seem that the arrival of the notice on Sunday would not invalidate the service. {The Queen v. Leo' minster, 2 B. & S. 391.) Further, aa to "place of business" and "place of residence," see sees. 37 and 41 of this Ant, and notes thereto. Ic 8. 60, SWb. 12.] COMPLAINTS OF OVERCHARGE. such person there resident; or if the pei-son be not resident in the Municipality, then the notice to be addressed to such person through the post office, (w) (11) Every notice hereby required, whether by publica- tion, advertisement, letter or otherwise, shall be completed at least six days before the sittings of the Court, (n) (12) If the party assessed complains of an overcharge (o) (m) If the person be resident within the Municipality, tliougli not known, notice may be left with some grown-up i)erson on the assess- ed premises. But if without the Municipality, then the notice rnvt be addressed to him through the post office. (See note (f to sec. ' .) (/i) ^n elector served the Clerk of the Municipality with notik,e that several persona had been wrongfully inserted on the roil, and others omitted or assessed too high or too low, and requesting tha (^Icrk to notify them and the Assessor when the -matter would be tried by the Court of Revision. On 22nd of ilay the Court met, when it was objected, on behalf of the parties named in the notice, that only ^'iT days' notice had been given. The Court then adjourned until 30th of May, directing proper notice to be given. But the Clerk omitted to giv< the notice. The Court, in consequence, on 30th of May refused to hear the appeal, and finally passed the roll. Held, that the decision of the Court was not erroneous. ( The Queen V. Court of Jfevision of Cornwall, 2") U. C. Q. B. 286. ) Held also, that the ai)[)earance of the parties, by their counsel, for the purjjose of objecting to the sufficiencj' of the notice, was no waiver of it. (//>.) And pe7- Morrison, J. : " Upon an examination of subsections 2, 7, 8 and 10 of sec. 60, which bear on this application, we find tliat thoy are all imperative by force of the Interpretation Act, and when wn consider the object of the complaints made by tho relator, wi: can- not overlook the plain words of the statute. The Ijcgislature clearly intended that in all cases of objection by third parties, a notice of complaint must be given to the party complained against al leaM six- days before the sitting of the Court at which it is to be heard, and that such notices should be prepared and given in due time by the Clerk. . . . The language of the Act is plain and unambiguous. If the mode of proceeding provided by the statute is insufhcient, inconvenient or open to abuse, the remedy is with the Legislature. For this Court to say that five days' notice or any less num1)er is BUiiicient, would be to as.sume a legislative authority." (iSce note (j to sec. 105 of Municipal Institutions Act.) (o) Nef personal property is personal property, less certain debts- (Note X to sub. 20 of sec. 9.) No one is to be assessed for a less sum as the amount of his personal property than the amount of his income during the past year, and this withoiit deduction by reason of any indelitedness, "save such as shall equal the annual interest thereof." (Hec. 35. ) The value of personal property, less such debts as may be deducted, or amount of income without deduction for debts, if the assessment be disputed, is prima facie, determined by the decla- ration of the party complaining. If the Court be not satisfied with the declaration, it may pioceed to take evidence and " confirm, alter or amend the roll as tht evidence shall seem to warrant. " Formerly the declaration was concltinve evidence. , . ' 575 ■When notire to be com pletcd. Prooopdingn wlion jKirty assessed <'(>iii]ilainsof overcharge may be further ..mended, on appeal $o the Judge of the County Court, (s) 0^. The Coui't shall also, before or after the fifteenth day Fiirtiier of June, and with or without notice, receive and decide granted u upon the petition from any person assessed for a tenement c"".'* "'' which has remained vacant during more than three months romittin},'' in the year for which the assessment has been made, or from J|'<''f^''"'-' any person who declares himself, from sickness or extreme poverty, unable to pay the taxes, or who, by reason of any gross and manifest error in the roll as finally passed by the Court, has been overcharged more than twenty-five per cent, on the sum he ought to be charged, (t) and the Court may, subject to the provisions of any By-law in this behalf, remit or reduce the taxes due by any such person, or reject the petition ; (u) and the Council of any local Municipality where a person who at one time had been an occupant of a house, but never w^as owner or had any pretence to be owner, was assessed as owner, but paid no attention to the notice of assessment. Sir J. B. Robinson said: "But whether he was assessed on the roll as owner or as occupier, it was incumbent on him to appeal or to petition under the 26th section of 16 Vic. cap. 182, if he meant to insist that his name was wronyfully inserted on the roll. Having omitted to do so, he became liable to jiay the amount for which he stood assessed on the roll." (s) One would suppose that the position of a perfion in possession of property which is exempt from taxation ought rot to be in a better position as regards liability to assessment than the man who has no property at aU. And yet the Court of Queen's Bench, according to the early cases in that Court (Great Western Railway Co. v. Rouse, 15 U. C. Q. B. 168; London v. Great Western Railway Co. 17 U. C. Q. B. 262), appear to have decided that a person exempt from taxa- tion need not appeal; while in this case they held that a person who was not owner of the property for which he was assessed was bound to appeal, and, failing to do so, was bound to pay taxes as owner. {See note a to sec. 51, and note i to sec. 69 of this Act. ) « (t) The classes of persons entitled to avail themselves of the pro- visions of this section are three, viz. : 1. A person assessed for a tenement which has remained vacant during more than three months in the year for which the assessment has been made. 2. A person who declares himself, from sickness or extreme poverty, unable to pay the taxes. 3. A person who, by reason of any gross and manifest error in the roll as finally passed by the Court, has been overcharged more than twenty-five per cent, on the sum he ought to be charged. (u) The Court is bound to receive and decide upon the petition of a person coming within the meaning if this section. The decision may be either for the remission or reduction of the taxes, or for rejection of the petition, subject always to " provisions of any By- 580 THE MUNICIPAL MANUAL. [s. 6 Appial Iricii fouit of levisioii. may from time to irme make such By-laws, and repeal or amend the same, (v) Appeal from the Court of Jievision. mi. An appeal to the County Judge shall lie («) not only against a decision of the Court of Revision on an appeal to said Court, bub also against the omission, neglect or refusal of said Court to hoar or decide an appeal, (b) and in such case : (c) law in this behalf passed by the Municipal Ccancil. (See note h t:> sec. 58 of this Act. ) (w) "May from time to time make," &c. See note ft to sec. 412 of the Municipal Institutions Act. (a) No man can be allowed to complain of his o^vn act. Where the appellant not only attended the meeting at which the application was made of the Town funds of which he complained, but himsell' settled the form of the resolution against which he appealed, it was lield that he could not be allowed to appeal. (Harrup v. Baylcij, 6 E. «t B. 218.) "According to everj' principle of justice, he cannot com- plain of what was his own act." (Per Lord Campbell, C. J., lb. 224; see further, note ^ to sec. 131 of the Municipal Institutions Act.) In Tin: Kinij V. Justices of Norfolk, 5 B. & Ad. 990-992, Lord Denman saiil, speaking of appeals to Quarter Sessions : " It is desirable that the Court of Quarter Sessions should not vary their rules from time to time, and that they should rather lean to the hearing of appeals than to dismiss- ing them on technical grounds." But a person who, after a summary conviction, at once expresses dissatisfaction and gives a notice (if appeal, is entitled to be heard, although he paid the amount of the line — the payment having been made to prevent the distress and sale of his goods. (In re Justices of York and Peel, 13 U. C. C. P. 159.) Draper, C. J., said: "I think further, that a party should not, on any doubt- ful ground, be deprived of a right of appeal against a summary coji- viction ; and that if his conduct can fairly bear a contrary interpre- tation, it should not be construed as " waiver of this right. I am disposed to extend rather than to narrow Lord Deiunan's remark, that the Court of Quarter Sessions 'should rather lean to the hearing of appeals than to dismissing them on teclmical grounds.'" (///. 1G2, 1G3.) (h) See note h to sec. 58 of this Act. (c) Such an appeal as the present can only exist by statute, and only to the extent that the statute plainly gives the right. (Attor- ney-Oeneralv. Sillem, 10 H. L. C. 704; People v. Police JuHtic", 7 Mich. 456; Dubuque v. Eebman, 1 Iowa, 444; Conboy v. Ioy sub. 11 of sec. GO it is declared that "every notice hereby I'eiiuired .«liall be completed at least six days before the sittings of the Court." (See notes to that subsection.) In England, under a soniewjiat aualogous statute, there is a power ("It shall be lawful," &c.,) delegated by the Legislature to the Court, "if it shall ajipcar to the Court that there has not been reasonnlile lime to give or send •such notice (ten days at least), in any case to postpone the liearing of the appeal in such case, as to the said Court shall seem meet." (tJ & 7 Vic. cap. 18, sec. G4. ) In speaking of this provision, Wilde, C. J., said: " i'ostponing the consideration of the appeals to the next term, as suggested, woidd not have the efTect of relieving t!ie parties from the difficulty (the day appointed for the hearing of the appeals having been unusually early). The day appointed by 582 THE MUNICIPAL MANUAL. [s. 63, Sub. 3. Day for huiiring. CAeik to notify parties. (2.) The Judge shall notiiy the Clerk of the day ho appoints for heai'ing appeals; (e) (3.) The Clerk shall thereui)on give notice to all tlie parties appealed against in the same manner as is provided the Court for the hearing of the appeals would be still the same. Unless, therefore, the Court is prepared to act in a manner that would be wholly inconsistent with judicial gravity and decorum, by resorting to a mere subterfuge in order to get over a supposed diffi- culty, tlie objection tliat now presents itself would not be at all lessened by the lapse of time." {Adey v. Hill, 4 C. B. 38, 40.) In another case the same learned Judge said : "The attorney has had the whole time between the decision of the case by the Revising Barrister and the fourth day of the term, inclusive, to prepare and deliver his notice. He has thought fit to leave it till the last moment, when there is no time left to remedy the defect. The only power we have to extend the time is under section 64, and that applies to the notice of the respondent, and not to a case bke this." (Pctherbridcfe v. Anh, 4C. B. 74, 75; see also, Broion v. Tamplin, L. R. 8 c! P. 241.) Courts of Revision are now expressly authorized to appoint adjourned sittings for the purpose of hearing appeals, for which notices were not served in time tor the first day. (37 Vic. cap. 19, sec. 13.) The appearance of the party on whom the notice was served, for tlie purpose of objecting to the sufiiciency of the notice, is no waiver. (The Quean v. Cornwall, 25 U. 0. Q. B. 286 ; see also, Oruvcr v. Bontems, 4 C. B. 70.) The notice is to be of the intention of the party to appeal. Its object is simply to ^inform the parties con- cerned that the person decided against is dissatisfied, and intends to avail himself of the right to appeal which the statute gives him. If it substantially give this information, it will be, no matter what the form be, held sutficient. {The Queen v. Justken of Denhhilii^hirr, ^ Dow. 509; The Queen v. Justices of Oxfordshire, 4 Q. B. 177; Tlte Queen v. Westhouyldon, 5 Q. B. 300; l^he Queen v. Justices of Burl-in ' ''• ''^• containing the names of all the appellants and parties iip- pealed against, with a brief statement of the ground or cause of appeal, together with the date at which a Court ^ill be held to hear appeals ; {(j) (5.) The Clerk of the Municipality shall bo the Clerk of ciorkH.n such Court ; {h) '-*°"''*- (G.) At the Court so holden, the Judfje shall lioar the Heaiins una appeals, and may adjourn the hearing from time to time, and mcjut. defer judgment thereon at liis pleasure, («') so that all the (/) 111 Till' Quean V. The Court of Rpchion of the. Town of (Cornwall, 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 hy him in the performance of his duty, ought not to have prevented the complaints being heard, and that all that was incumbent on the relator was to make a request under sub. 2 to the Clerk. Upon an fixaniiuation of sec. GO, and its subs. 2, 7, 8 and 10, which bear on this api)lieation, we lind that they are all hiiperatliv, by force of the Interpretation Act; and when we coiis'dcr the object of the complaints made by the relati^r, we cannot overlook the plait) wonh i,f the g'alutc." The pro- vision here for the authorization of service t'oi a subseipiont day, in the event of failure of the Clerk to do what is required of him, meets the difficulty. (ij) 8ee preceding note. (/;) It is ol)ligatory upon the Clerk of the Municipality to act as Clerk of the Court. (i) It has been made a question whether any new evidence can be gone into or fresh witnesses called ou an appeal from the dcv'isiim of an inferior tribunal, in the absence of statutory provision to tliat effect. In the case of a conviction for an offence, it is said, the; party offending has due notice of the hearing, and it is his duty to bring aU his evidence to the hearing. (Keen \. Starkel;/, Cilh. R. 15"), 150; 3 Pilack. v'Jom. 455.) Superior Courts review the sentences of inferior ones, but that only, and do nf)t admit new evidence not p'-oduced below in ardei to examine the justice of a sentence that was not in any degree p:'oduced by it. (See Dickenson, Quarter Sessions, 907, note. ) In a civil bill appeal in Ireland, Richards, B., held that new evidence is inadmissible. (Gorman v. Bcaijhan, SCr. & Dix. C. C. 344; Ilichards, B., Branker's Digest, 1206.) But in 7'he Kimj v. Coinnmiiioners of EMhe, 3 M. & S. 133, it v/as held that the Commissioners of Appeals on matters of Excise could not properly reject the testimony of wit- nesses tendered for the appellant, upon an appeal to them against a conviction by the Comiuissioners of Excise, upon tlie ground that such > 581 THE MUN'ICIPAL MAN'UAL. [s. 04. appeals be detorminod before the first day of August. (37 V. c. 19, 8. 16.) (k) Api'iau 454. Ill case any non-resident, whoso liind, witliiutlic limits t.) nnn-iesi- of any City, Town, Incorporated Village or Township, has lJ|)^)t^'laIl(lH. A' tIKJ V, witnesses were not examined at the origin.al hearing. ( TJic ComminnionerH of Appeals in ExcIip, 3 M. & Sel. 133.) In diilivcniig judgment, Lord Ellenborough said : "If any inconvenience is likely to result from this determination, the Legislature must be applied to to remedy it." (Jb. 143.) In The Kintj v. Jeffreys, 1 B. & C. G04, however, where a person who had been summoned by two Justices, under 7 & 8 Wm. 3, cap. 6, sec. 1, appeared beforo them anil was ordered to pay the tithes demanded, and raised no question as to the modus, but afterwards appealed to the Sessions, and at the Sessions for the iirst time set up a the modus, it was held that the Justices of the Sessions might, in the exercise of their discretion, riglitly reject the now evidence. In The KUkj v. The Justices of iiuffolk, 1 li. & Al. G 10, where an .appeal was made to the Sessions against a rate, on four grounds specified, and the party, being still dissatisfied, made a further appeal to the General Sessions, specifying two additional grounds of appeal, Bayley, J., said: "The impression on my mind is, that he must, at the Count}/ Sessions, be confined to thu same grounds of objection that he took at the Uorourjh Sessions, for the former Court is in tlie nature of a Court of Review, and it is their duty to examine if the rate can bo suj^ported on the groimds decided upon ]jy the Court below. If that were not so, it would be open to the party at the Borough Sessions to state any illusory groiuids of appeal, and to put forth his whole strength by surprise at the County Sessions." {lb. p. 645. ) Holroyd, J. , said : "The County Sessions are to re-try the same matters which were tria^de at the Borough Sessions. In all cases of new trials or of error, ti^e Court of Appeal looks at tlie original pro- ceedings. There may, however, be fresh evidence adduced. The appeal to the County Sessions must here be confined to the ori(/inal matter of complaint only." (/ft. 646.) Paleysays: "It seems to be an universally admitted rule that, in every case of appeal to the Sessions, both parties are at liberty to examine competent witnesses on their behalf, without regard to whether they have, been examined before or not." (Paley on Convictions, 5 Ed. 369.) In England, the Legislature has at length, as suggested by Lord Ellenborough in The ^ini; v. Commissioners of Excise, 3 M. & Sel. 133, interfered in matters of excise by 7 & 8 Geo. 4, cap. 53, sec. 84, as amended by 4 & 5 Wm. 4, cap 51, sec. 24, by providing that no witnesses are to be examined on an appeal in matters of excise except those who were examined before the Justices, or tendered for examination and refused by them. (See The Queen v. Oamble, 16 M. & W. .384.) In Kirby V. The Owners of the Scindia, L. R. 1 P. C. 241, the Privy Council, as a matter of discretion, refused to receive fresh evidence upon an api)eal from an interlocutory decree of the Vice Admiralty 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 oi the County Judge to receive fresh evidence in support of tlie grounds of appeal raised in the Court of Revision, but not in support of any new or additional grounds of appeal. {Jc) See note h to sec. 189 of the Municipal Institutions Act. s. G4.] APPEALS UY N0X-IIESIDI:NT>'. ;i.^.i been or slmll l>o assossod in any revisod niul (;orr('ct('(l n.ssf;ss- meiit roll, (m) coin[)laiiirf by petition to tlii^ proper Rluiiicipal Council, at any time before the first iliiy of INlay in the year next following that in which the assessment is made, (it) sueh {-ouncil shall, at its first meeting, after one wec'k's notice to the appellant, (o) try and decide upon such complaint; (ji) and ail decisions of Municipal Councils under this Act may be aj)pealed from, tried and decided, as provided by the sixtieth section of this Act; (aG THE MUNICIPAL MANUAL. [s. 05. Apix'iils I'liniu'r .'HHUi4SlniUlts iicpf ntl'tii'lfil. As^icHamont 11)11 to lit! jiroilu('(!(l to tlio court, And amend- ed, &u. undo)- tills section of tliis Act if the coinpliiiut was tried and decided luiforo such roll was Hiially nivised and corrected, under the provisions of tlm sixtieth, sixty-first, sixty-second and sixty-third sections of this Act; (t) and this clause shall not affect the right of appeal against the assessment made prior to tlu; yeai' oik? thousand (ught hundred and sixty-six, at any time luifore the land in (picstion shall have been sold for taxes; and if such lands ;;hould, during such api)eal, bo advertised for sale, the land shall bo charged with all costs incurrtxl, but no appeal shall b(i made after the issue of a warrant l)y the 'treasurer or Chaiuborlain for the collecliou of taxes, {u) 05. At the Court to be holden by the County Judge, or acting Judge of the Court, to luiai- the appeals hereinbefore provided for, [a) the person having tlie charge of the assess- ment I'oll passed by tho Court of Revision shall ap[)ear and produce such roll, and all papers and writings in his custody connected with the matter of appeal, (b) and such roll shall be altered and amended aocordiixg to the decision of the Judge, if then given, who shall write his initials against any part of the said roll in which aTiy mistake, error or omission is corrected or supplied ; [<:) or if the said I'oll be not then produced or the decision bo not then given by the Judge, (<) If there be a previous judgment between the same parties on the same subject matter, and that once estabhshed, there would be no possibihty of going behind the judgment and examining tho grounds on which it proceeded ; for as long as it remained in force and unreversed, it would be conclusive between the parties. (Per Lord Chelmsford, in CommisHioners of the Leith Harbour v. Inspector of the Poor, L. R. 1, H. L. Sc. 17, 23.) (u) In cases here contemplated, the right of appeal exists till the issue of tho warrant for the collection of taxes. So long as the demand is in the nature of a judgment, the right to appeal exists. But when execution is, as it Avere, issued, the right of appeal is gone. (a) This section applies to all appeals that may be and are legally brought before the County Judge or acting Judge for his decision. (h) The person having the custody of tlie roll passed by the Court of Revision would, properly speaking, be the Municipal Clerk. It is made his duty, on the hearing of the appeal, not only to produce the roll, but " all papers and writinas in his custody connected vvith the matter of appeal.^' This would include all exhibits and other papers given in evidence before the Court of Revision, touching the appeal m that Court. (c) It is presumed that the alteration of the roll by the Judge, in any case where he is without jurisdiction, would be of the same and no other effect than the alteration of the roll by a stranger. [s. 05. 88.00,07.] AI'PORTIONMKNT 01' CO.STS. .-)H7 such (Icc'i.sion uiul ju(I;^iiicnt sliall Ix' rcrlilicd l)y tlui ('Ink ■^'!'',"''', ,,„ of Hio Oourt to tlio (JUu'Ic of t\w Muuicri|iiility, who sliiill ctitiiit'ii. forthwith ultor iiiitl hiiumkI tho roll accordinjj; to tho Hamo, ami shall write his uanio agaui.'^t ovi^ry hikIi alteration or corroction. ((/) 00. In all procopdings before the (V)uiity Judge or acting fouuty Judge of the Court, under or for the purpose.s of this Act, 'ii','ivf''iin'\v( i such Judije shall possc^ss all such ijowcis for coniiH-lliiig the t'><'xi"ii''' attou(Liuce of, and for the examination on oath of, all parties, whether claiming or ohjecting, or ol»j(^cted to, and all other persons whatsoever, and for the production of books, pai)ers, rolls and documents, aiui for the enforcement of his orders, decisions and juflgments, (e) as belong to or might be (!xer- cised by him, either in term time or vacation, in the samo Court, in relation to any matter or suit d(!pending in the said Court. 07. Tlio cost of any j)rocecdlng In^fore the Covirt of *^'"'*''* .*,"'" , . "^ ^ . . a|iiMiiliiiiii il Revision or Judge as aforesaid shall be paul by or api)or- iiytinjini;,'.', tioned between the parties, in such manner as the Court or ",',"(l,|''.'?i Judge shall think fit, {/) and costs ordered to be paid by ((I) It is, in the case hurc provided for, niiule the daty of tlio Clerk of the Municipcality, upon reeei})t of a certiiiuate of tlie dcnsion from the Clerk of the Court, "forthwith" to "alter and amend" tlie 'oil, and for evidence, in the event of any dispute as to the fact, " to ' write hia name against every such alteration or correction." Tlie order to amend is not the amendment. The latter, to be elJ'ectually made, should be actually made ; and this is what is contemplated in the lirst part of the section, in the jiroduction of the roll, ant' in the latter part by the certilicate to the Clerk, and alteration of the i j'l hy the Clerk. (See also sec. 09 of this Act.) ((') The powers enumerated are : 1. For compelling the attendance of, and for the examination on oath of, all parties, whether claiming or objecting, or objected to, and all other persons whatsoever. 2. For the production of hooks, papers, rolb and documents. 3. For the enforcement of orders, decisions and judgments. As to these, the Judge has the powers which belong to, or might be exercised by, him in the Division Court. (.S7 Vic. eaj). li), sec. 17.) All process or other proceedings in or about or ])y way of appea], may be entitled as follows : "'In the matter of appeal from the Court of Revision of the of . appellant, and respondent;' and the same need not bo otherwise entitled." (lb.) * (/) The ccsts chargeable, or to be awarded, in any case may be the costs of witnesses and of procuring their attendance, and none. 588 THE MUNICIPAL MANUAL. [SS. G8, 69. i;y wli;.: M-.ih- (if tV'i'- iMstS t'.> !)(• r.;l>vi-l. ■ "t'coiiiity jiidgr- t.t I.I tin-il. any party claiming or objecting, or objected to, or by any Assessor, Clerk of a Municipality, or other person, may bo enforced, when ordered by the Court, by a distre.-s warrant under the hand of the Clerk and corporate seal of the Muni- cipality; and when ordered by the Judge, byexeciition from the Count} Court of which such Judge is the Judge, in the .same manner as upon an ordinary judgment recovered in such Court, ((j) (58, The costs shall he taxed according to the schedule of fees under the Division Coui-ts Act, as in suits for the recoveiy of sums exceeding forty and not exceeding sixty dollars in the said Court, (h) ii9. The decision and judgiuent of the Judge or acting Judge shall be iiual and conclusive in every case (i) adjudi- other. (37 Vic. cap. 19, sec. 19.) And tlio same arc to be taxed according to the allowance in the Division Court for such coots. {Ih. ) In cases where execution shall issue, the cost thereof as in the like Court, and of enforcing the same, may also be collected thereunder. {lb.) in) Wiiere costs arc ordered to be paid by any party claiming or objecting, or objected to, or by any Assessor, Clei'k of a Municipality or other person, the same must be enforced by execution, to be issued as the Judge may direct, either from th6 County Court or the Di\ision Court within the County of which the Municipality or assessment district, or some part tiicreof, is situated, in the same manner as upon an ordinary judgment for costs recovered in such Coiu-t. (37 V^ic. cap. 19, sec. 18.) {h) The schedule to which reference is here made only provided for payment of costs to the Court. No provision whatever is made by it for costs to the parties for loss of time or otherwise. The costs in ii]ii)eal are to be taxed according to that schedule. It applies only to proceedings in Division Cinirts. But when execution is rcquiretl for the costs so taxed according to the Division Court's tariff, sucli execution can only be issued from the County Court. (See note ;/ to sec. 67.) («) The decision, &c., is made final and „onclusive in ercrii ca.srt adjudicated. The words do not in ii that the decisions on appeals to the County Judge shall be iinal :uid conclusive to all intents and purposes, but merely that the judgment shall be final and conclusive in the partintlar ca.ii'. The Judge, though sitting in appeal, may, it is apprehended, review his ^)vevious decisions, and overrule them if clearly demonstrated to be erroneous. (See irc'w/er v. Vr<:)vi'erf>, <{,•(;.. L. R. 8 C. P. 30G.) And the decision, &c., is only final and conclusive in the particular case adjudicated, n'lu're f/irrf ii* pinmr or jurMirfion to nJjatlkaff'. (See note r to sec. Gl.) If tliere l)e pcwer to adjudicate, the result is to bo looked at as the d(;cision or jadg- uient, regardless of the reasons given for arriving at that result. (In the matter of (he Mayor of Hi/the, 5 A. & K. 8:52; The Queen v. Bolton, I Q.'B. 0(5; Thompion v. Iwjham, 14 Q. B. 710; TheQuecnv. 69.] APPEAL FROM COUNTY JUDGE. ris<» II ranf. ippeals s anil usive iiaVi it iciii if r.-^i'n's, lal ami iircr or pcwer jadg- It. (In iwen V. uren v. Dayman, 7 E. & B. 672; Forster v. Forster, 4 B. & S. 187; Tft" Queen. V. Levi, 34 L. J. M. C. 174; Wildes v. Buii.^ell, L. II. 1 C. P. 722; Ex parte Vaughan, L. R. 2 Q. B. 114; EUonv. Jiose, L. It. 4 Q. B. 4.) If there was jurisdiction in the particular Court to atljudi- cate, anil the decision of that Court is made final or conclusive, no other Court can review the sufficiency of the reasons ; often tliere is a good judgment and bad reasons. (Ih.) In Allen \. S/i(ir]>, '2 Kx. 352-300, Parke, B., said: " Wherever a statute gives to certain persons the power of adjudicating upi.a a particular matter, their jurisdiction excludes all further inquiry. Here it is as if the statute had said that the AsseaoOr shall decide whether or no the person is a liorse dealer ; and the Assessor having done so his decision is iiiial and conclusive, unless appealed against in the manner pointed out by the Act." In Niarjara Falh Suxpf'nsion Brid'/e Co. v. Hnrilmr, 2S( U. C. Q. B. ]<)4- 200,' Wilson, .J., said: "The Judge had power to reduce the assessment made, and he has done so. But it is said he did so upon a false ground and for a bad reason; that he did t^o because the land Avas not land according to the inteipretation of the Assessment Act, and not l)ecause the assessnient was *"oo high. There is no rule of law which reipiires tlie Judge to give tlic reasons on which his judgment is founded. Ilis reasons may be bad, but his conclusion or judgment, however illogical it may be, will, never- theless, be good. We do not think it would be avz/c to say that in no case can the decision of the Court of Ilevision or of the Couiity Judge be questioned by an ac tion, altliough the statute declares that the decision of the Court shall be valid and binding on all parties if not appealed from to the County Judge, and that his decision shall be final and conclusive. If the Judge were to decide that property expressly exempted was not exempt, or that non-residents sliould be assessed personally on the roll, although they had given no notice to be so assessed, and protested against it, his decision, no doubt, would not be final. It would be void and be inquirable •"nto, in an action, for he would in such a case be acting wholly without jurisdic- tion. But iu cases where he has jurisdiction his de ..i ■i\^)n is final, thovigh it is plainly erroneous. Plere he had jurisdict.( .. vt say whetho t/f property was assessed too high or too low. This gave him authority to inquire into the nature of the property. He came to the conclusion that it was assessed too high, because the chief part of the profjcrty in question was personal and not real property. His decision that it was personal property was plainly erroneous, for it undoidjtodly UHtK and is land and real estate within the meaning of the statute, and at common law. There is not the slhjhti'nt pretence for calling it personal, yet we /m?" his decision is irreversible. The statute has declared it shall be tmal and conclusive in all cases adjudicated.'' ff this reasoning be sound, and applied to cases of exemj)tion of real and personal property, it would prove that there is jurisdiction to rate real or personal propertj' plainly exempt from taxation so long as the Judge, with or without or against reason, incrcanes or reduces the assessment. Take an exemption of real estate by reason of its '»cupation by the Crown. The Judge has power to inquire into the nature of the property. He comes to the conclusion that it is per- sonal property. He accordingly incrensea the assessment. His decision that it was personal property was plainly erroneous. But lie had jurisdiction to increase or reiluce the assessment. The result is, that projierty wliicli if real estate, and which w real estate and 5!«» THE MUNICIPAL MANUAL. [S. G9. exempt ])y law, is taxed because the Jwdge, having powf to increase or reduce, calls it personal estate and increaaen the amount. But, after all, the question really is, whethrr a person assessed for pro- l)erty exempt is not as much bount' to appeal as the person taxed for property which he does not o wn ; for in the latter case it has been held that if the party wro»!)2 THE MUNICIPAL MANUAL. L.s.7i. i •r' the aggregate valuation thereof for the wJiole Comity ;is made by the assessors, (o) (o) It is made the duty of the County Council, yearly : To examine the assessment rolls of the different TowTiships, Towns and Villages in the County for the preceding financial year, for the pur- pose of ascertaining whether the v^^iluation made by the assessors in each Township, Town or Village for the current year hears a just rela- tion to the valuation so made in all the Townships, To^vns and Villages. And for the ^?(»'/30«fi of Connfif rates, power is given to Incream or decrease the aggregate valuations of real and personal property in any Township, Town or Village, adding or deducting so much per cent, as may, in their opinion, be necessary to produce a just relation between all the valuations of real and personal property in the County. But they shall not reduce the aggi'cgate valuation thereof for the whole County, as made by assessors. Valuation of property, real or per- sonal, is, to a great extent, a matter of opinion. (>See note i' to sec. 30 of this Act. ) Some men are more sanguine than others, and there- fore more likely, looking to the future, to make a higher estimate of prest \t value than those who are less sanguine. Some men in their inquiries into a subjer'^ matter of investigation are more careless than others, and so more likely to take things for granted- than otherii. These and sin ilar considerations iriHuencing assessors acting inde- jiendently of each other, in different local Municipalities, often produce very dissimilar results even in adjoining Municipalities. But so far as the County is concerned for the purpose of County rates, a just relation is needed in order that the rate levied may bear, as nearly as possible, equally on all the local Municipalities in the County. In order to bring this about, wfien inequality is found. a power to increase or decrease the aggregate v luations of taxable property in the local Municipalities of the County, so long as the whole aggregate valuation of the County is not reduced, must be exercised by some body having authority over the whole of the local Municipalities, and that body is the County Council. The Legis- lature has not attempted absolutely to prescribe by what method of proceeding the local Municipalities shall be made to bear a jut-t relation to each other. It could hardly have succeeded in any such attempt. Much must, of necessity, be left to the judgment of those who are to conduct the ojjeration, and who, by reason of their local knowledge, arc best qualified to do so. (A^r Robinson, C. J., in Gibson v. Huron and Bruce, 20 U. C. Q. B. 119.) 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 truca and justice, and then, having selected such a standard, we may suppose them taking up each Township, Town, &c., and adjusting the valuation by such standard. In doing this, the members of the Council must, of necessity, be gov- vcrued liy their own judgment, and could not, in the nature uf things, have any rule given to them by which they could arrive u,ti 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 by some standard, then [s.7!, S. 71, sub. 2.] EQUALIZING ROLLS OF TOWNS AND VILLAGES. 593 (2.) In equalizing the rolls of the Towns and Villages, the they must ascertain and express how much i>er cent, must be athletl or deducted from the assessment in each hical Municipality, to make them all bear just relation to eacli other. This is not |.,'iven as a rule or methinl of proceeding that can guiile or assist the (.Jouncil in adjusting the relation between the dilferent local Municipalities, but as a method by whicli they are to express to the collectors the effect of the relation they have established, as leading to an addition or deduction of so much per cent, to or from the assessment of each individuiil, according as they have found the assessment that has been mailc in the particular local Municipality too high or too low, as compared with the standard l)y wliich they have resolved to abide. This direction to the collector makes his duty afterwards simple and precise. But the business of the Coimcil in e(pializing the assessments is not one that can be accomplished by any arith- metical calculation. No two bodies of men, any more than any two individuals, could be expected to arrive at the san)e conclusions, if tl)ey attempted to make the adjustment independently of each other. The Log'slature has not attempted to instruct the Council how they are to proceed in order to do equal justice. It has done the best it could in committing the duty to them on general terms of e(pializing t!ie assessments, so as to produce a just relation, but have neces- sarily left it to them, .as best they can, to work out the problem. It is a thing more easily talked of than d(jne. (Per flobinson, C. J., II). 120.) It is not for a Court of Law to interfere, as regards the reason- ableness of the valuations and the conclusions to be come to on that p valuation of the Townships. (/;) (37 V. c. 19, s. 22.) (3.) If any local Municipality shall be dissatisfied with tho action of any (Jounty Council in increasing or decreasing, or r(}fusing to increase or deci-easc;, the valuation of any Munici- jjality, the Municipality so dissatisfied may appeal from the decision of the Council to the Judge of the County Court of El. & B. 69i,) anil the act itself might be held illegal in any pro- ceeding in which its legality would come in question. (Lincoln v. Niagara, 25 U. C. Q. B. 578.) (p) While the lirst part of tlie section confers on the County Council the power to equalize, this subsection directs what Hhull. he done " in ecpiaazing." The direction is that the County is to take sixty per cent, of the amounts returned on the rolls as the valuation of Towns and Villages. One thing so far is dbvious, and that is, that the aggregate valuation for Towns and Villages is to be sixty per cent. i)f tlie amount returned on the rolls. The (question is, whether, before making such capitalization, the County Council has, undc r the preceding part of the section, p(»wer to alter the aggregate vahia- tion of the Town or \'illage. That section emjiowercd the County Council to alter the aggregate valuation of all local Municipalities. provided the a^r.vegaU' valuation of the whole County was not thereby reduced. If this subsection were read as jireviiiitiiig the County < 'ouncil at any time from altering the valuation of Town? xo'X Villages, the equalization would become, as reganls Towns and Villages, simply a cast iron rule, against which no judgment can be exercised ;uul to whi< ii there can be no (.xception. The County .ludg*! of Norfolk, in a ca.se before liim, before amendments made in this section, after much consideration adopted tiie latter interpreta- tion. (In re Shm-w and Norfolk. 5 U. C. L. J. N. S. 181.) But now all liut after this is done, S. 71, sub. 3.] APPEALS BY LOCAL MUNICIPALITIES. .')[).') the County, (7) at any time witliin ton days (r) aftor such ilocision, (a) by giving to such Judge and the Clerk of the County Council a notice in writing, under the seal of the Municipality, of such appeal; (/) and tlie County Judge sliall appoinf a day for hearing the appeal, (a) not later than ten days from the receipt of such notice of the appeal, (v) and may at such Court proceed to hear and determine the matter of appeal, or adjourn the hearing thereof from time to time: (w) Provided that the same be not adjourned or Proviso. judgment deferred beyond the first day of August next after notice of the appeal; (y) and such Judge shall equalize the whole assessment of tlie County, (z) (37 V. c. 19, s. 23.) there must still be an equalization of the values of the several Muni- cipalities, including Towns and Villages; and for the purpose of this e([uaHzation the Council may increase or reduce the valuation of any Municipality, including the reduced valuations of Towns and Villages. {'/) See note d to sec. 63 of this Act. (r) " Within ten days," &c. See note a to sec. 128 of the Municipal Institutions Act. (••s) Decision. See notes to sec. 58 of this Act. {t) See note d to sub. 1 of sec. 63 of this Act. (m) See note h to sub. 4 of sec. 63 of this Act. (y) See note e to sub. 2 of sec. 63 of this Act. (w) See note k to sub. 6 of sec. 63 of this Act. (y) See note h to sec. 189 of the Municipal Institutions Act. (z) In the event of the Judge allowing the appeal and reducing the amount of the aggregate value of assessment of the particular Muni- cipality appealing, the difference between the sum fixed by the County Council and the reduced sum allowed by the County Juilge maybe added to the aggregate valuations of the other locrl Munici- palities, or some of them, according to the evidence before him, in such a manner that the aggregate valuation of the whole County is not reduced. In Simcoe v. Norfolk, 5 U.C. L.J. N. S. 182, the learned Judge, in delivering judgment, said in conclusion: "I therefore allow the appeal of the Town of Simcoe, and equalizt. their aggrtjgate assessment for County purposes at the said sum of $303,000 (the amount roturned on the roll). This leaves the total aggregate equaliza- tion of the County at the sum of $57,000 less ; and it devolves upon me, according to the provisions of the statute, to divide and add this sum to or among the several Townships of the County, or some of them. In the absence of any evidence produced before me, and in the absence of any action of the Countj' Council, it appears to me that my proper course is to divide and add the said sum of $57,000 pro rata, according to the previous equalizivtion by the County Council, among the aev umI Townalups of the said County, thus : — 596 THE MUNICIPAL MANUAL. [ss. 72, 73. Mflort of lilork of iiiuutciiial- ity omitting tu Hiind copy of roll. Valuators to uttoHt tliuir report on oatb. 1^, If the Clerk of tlio Municipiility has ncglcctcid to transmit a certified copy of the assessment rolls, such neglect shall not prevent the County Council from equaliz- ing the valuations in the several Municipalities according to the best information obtainable, (a) and any rate impose(l according to the equalized as-sessmcnt shall be as valid as if all the asseisment rolls had been transmitted, [b) > 'J'3. In cases where valuators are appointed by the Council to value all the real and pei'sonal property within th(> County, (c) they shall attest their report by oath or affir- TOWNSHIPS. Townaend Windliaui Middlcton Houghton Walsingham , Charlotteville Woodhouse Simcoe, say $360,000 Deducted by Judge . . 57,000 $303,000 ElJUiLIZATION Addkd iiy 11 Y County Council. JUDOE. $1,140,000 $13,500 735,000 8,000 3()0,000 4,400 285,000 3,300 700,000 9,000 700,000 8,300 825,000 y,7oo 300,000 $5,165,000 $57,000 Total. $1,15355(M) 743,800 364,400 288, .300 7()y,0(H) 708,300 834,700 303*000 $5,105,000 (a) It would never do if the neglect of a Clerk of one local Muni- cipality to trandmit a certified copy of his roll were to have the elFect of delaying the entire proceedings of the County Council, with a view to equalization of assessment, especially as it is provMed that the equalization is to be made "not later than the first day of July." (Sec. 71.) The only remedy is that provided, viz., to proceed to ecjualize, notwithstanding the absence of a particular roll or rolls. (6) The Council, before imposing a County rate, must equalize the rolls as already mentioned. (Sec. 71.) If empowered to equalize in the absence of some roll or roUs, it follows that the rate imi)osed on the rolls so equalized must be deemed valid. (c) The proper valuators of property, real and personal, in the different local Municipalities, are the assessors. But as these, in the several local Municipalities, act independently of each other, and as men, perhaps, differ more widely on the value of property than other matters of opinion, the results, so far as the whole County ia concerned, are anything but equal or uniform. But before a County rate can be imposed, the valuations in the different local Munici- palities must be equalized so as to bear a just relation to each other. (Sec. 71.) Such equalization has hitherto been effected through the members of the County Council themselves using their local know- ledge in order to arrive at as correct a judgment a? possible. This section appears to be designed as an aid to them in the exercise of that judgment. It is not declared that the valuation of the County ^■■■■IH SS. 74, 75.] APPORTIONMENT OF COUNTY RAT::S. r.97 mation in tlio samo maiinor as assessors aro required to verify tlicir rolls by the one Imiidrccl and thirteenth section of this Act. ((/) 14. The Council of a County, in apportioning a County Apiiortidu- rate among the different Townships, Towns and Villages cnimty ratc^A Avithin the County, ( p) shall, in order that tlu^ same may {",'^.,j" '""' be assessed equally on the whole I'atablo pro|)crty of the County, ((/) make the amount of j>roperty returned on the assessment rolls of such Townshi]>s, Towns and Villages, or reported by the valuators as finally ntvised and e(|ualized for the preceding year, the basis upon which the; ai)poi-tioument is made, (r) Y5. If a new Municipality be erected within a County, Caa- of new so that thei'c are no assessment or valuators' rolls of the new ti"s." '^"' ' Municipality for the next preceding year, the County Council shall, by examining the rolls of the former Municipality or Municipalities of which the new Municipality then formed part, ascertain to the best of their judgment what part of the assessment of the Municipality or Municipalities had relation to the new Municipality, and what part should continue to be accounted as the assessment of the original Municipality, and their several shares of the County tax shall be apportioned between them accordingly, (s) valuators shall be binding on tlie Council, or their judgment in any way made a substitute for the judgment of the members of the County Council, on wliom devolves the duty of making the equali- zation so as to produce a just relation. (d) Probably sec. 49 of this Act is here intended. (See notes to it.) (p) See sec. 76 of this Act, and notes thereto. {({) See sec. 8 of this Act, and notes thereto. (r) It is by sec. 71 declared that the County Council, hrfnr imposiii'j any rate, and not later than the lirst day of July, .sliaU examine the rolls of the several local Municipalities, in order to equalize them for the current year, so as to l)ear a just relation to each other. Here it is declared that in a}>]>ortli))iui(/ a County rate among the different local Muuicipa'iities, the amount of property returned on the rolls or rejjorted ].y the valuators as finally revised and equalized /or the precedlmj near, AnxW lie tlic basis of apportion- ment. (See ilcCormkk v. Oakley, 17 U. C. Q. B. 345.) (s) The apportionment of a County rate must be on the basis of the rolls as finally revised and equalized for the preceding financial year. (Sec. 74.) In the case of a new Municipality erected during the current year, it is plain there can be no such roU. But in order that the direction of the statute may be, as nearly as pc isiblo under the circumstances, carried out, it is by this section made the duty of i)D8 THE MUNICIPAL MANUAL. [ss. 7C, 77. '!ounty luitiiicllsf to aiij)ortiui> sutiiH re Huired for r.dimty pur- J)UStlS. 16. When a sum is to be levied for County purposes, or by the County for tlio purposes of a particular locality, the Council of the County shall ascertain, and l)y by-law direct, what portion of such sum shall be levied in each Township, Town or Village in such County or locality, (t) 'J»|J»tyciork 'Jfl, The County Clerk shidl, boforo the lifteenth day of a'fiounts to August in each year, (u) certify to the Clerk of each Muni- locM'muni. cipality in the County the total amount which has been so oijjAlitics, ■ — the County Council, by examining the rolls of the former Munici- pality or Municipalities of which the new Municipality formed a part, to ascertain to the ))est of their judgment — 1. What part of the assessment of the Municiiiality or Munici- palities had relation to the new Muuieipality ; 2. And ivhdt pari should continue to be accounted as one assess- ment of the original Municipality, .so (w to apportion between them "'their several shares of the County tax." {t) The sum t) be levied may he either for County purposes or for the purposes ot' a particular looality in the County. If the former, the rate must be levied as nearly as possible equally on each local Municipality in the County. ( TiiUv v. Waterloo, 9 U. C. Q. B. 575. ) If the lattar, it maj' be levied in the particidar locality, without reference to other lociilities in the County. 'J'hc by-law in 2'ulee. and Waterloo enacted that the following sumS should be levied and collected in the under-mentioned Townships and Incorporated Vil- lages, viz. : Township of Arthur £34 Township of Bentinck 22 Town of Guelph 153 — and so on, enumerating twenty-four different localities, and assigning to each a certain sum, ranging from £G for the Township of Melane- tlion to £521 for the Townslnp of Waterloo, and tliat these sums should be levied and collected in the different Mu licipalities, in accordance with the statute. In giving judgment. Sir J. B. llobinsou said: "The last of the By-laws moved against is that of the 14th (»f June, 1851, which is clearly illegal; for by it the County Council assumes to rate certain Townships [ip-. Municipalities ?) for certain sums, without apeeifjdng in the fjody of the By-law for wliat purpose the money is required, or authorizing its appropriation to any pur- pose. Such a UKjde of taxing is clearly unauthorized Ijy law. For any general purpose ctf the County, all the ratable property in the County must be assessed ratably, whether in one Township or another. If the Council had a discretion to tax in this manner, they might make one Township contribute £5 and another £500 to the K..::ae County objects, even where there was no inequality in the population and wealth of the Townships. It imposes no rate per jjound, nor directs an equal rate to be assessed." (u) Before the fifteenth day of August, &c. See note h to sec. 189 of the Municipal Institutions Act. ■ ■* m. I 8,79.] STATUTE LA nor R. T);*;) cliUlitv Ill'lltlU (lireeteil to bo levied thorelii for the tli'>n curceut year for Comitv jmi-poses, or for tl)e purposes of iiiiy siu'li locality, luul tliT) (Mi'rk of tJK; Miiniripulity shiill Ciilculate and insert tlie same in tlie irollectur's roll for that ycai-. (/") 18. Nothing; in this Act contaiu(!il shall alter in r '1 i I • 1 11 1 T I 1 J ' !• iiiilitiiiv Sir- vice, on tuil pay or on actual servu;e, siiall l)e haole to pei-toriu virccMnii.t statute labour or to commute therefor ; (a) nor shall any non-commissioned officer or {)rlvat *> .a. a^ IMAGE EVALUATION TEST TARGET (MT-3) fe // y. f/. ft/ 1.0 I.I 1.25 "' IM 12 2 1 142 12.0 1.4 1.6 V] «? ^ ,^m.- .-k -(^ Hiotographic Sciences Corporation \^ ^^ ^^ \\ .1^ 23 WEST MAIN STREET WEBSTER, NY 14580 (716) 877-4503 «, 600 THE MUNICIPAL MAKI3AL. [ss. 80-82. I^.d"i!'whttt ^^* ^^6^ o*^®'' ™"'^® inhabitant of a City, Town or ratio in Village, of the age of twenty-one years and upwardi% and aiid\"iiiiaKu8* ^i^^^** sixty years of age (and not otherwise exempted by law from jiTforuiing statute labour), who has not been assessed upon the assessment roll of the City, Town or Vil- lage, or wIjoso taxes do not amount to two dollars, sluill, instead of such labour, be taxed at two dollars yearly there- for, to be levied and collected at such time, by such pei-son, and in such manner as the Council of the Municipality shall by By-law direct, (c) and which pei"^ou shall not be required to have any property qualification. p^rfm^nJ^rt!'*' ^1* ^^ i-erson shall be exempt from the tax in the last preceding sectioi) named unless he shall produce a certificate of his having v • fi 'med statute labour or paid the tax else- whero. (d) 81?. Everj? mnle inhabitant of a Township, between tlie .'iges aforesjiid, who is not otherwise assessed to any amount (and who is not exempt by law from performing statute labour), shall be liable to two days of statute labour on the roads and highways in the Township; and no Council shall have any ^pwer to reduce the statute labour i*equii-ed under this section, (e) LiHtiility of {lersons not otherwise assesaod in townsliijis. in securing the efficiency of the volunteer force. No volunteer is to be entitled to the benefit of the section unless certified by the District Stafif Officer to be " an p/^den< volunteer. " But volunteers, like others having property, are bound to perform statute labour in respect of such property, or commute for tlie same. (<•) The 7-tilr 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 the City, Town or V'illage, or whose taxes, if assessed, do not amount to two dollars, shall, instead of statute labour, be taxed two dollars yearly. The e.cc('j>tionx created by the preceding sections 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 vf>lunteer force certified by the District Staff Officer to be efficient volunteers. See further, note i to sub. 1 of sec. 390 of the Municipal Institu- tions Act. (""'"■'■ ^'^ roU, or otherwise, shall be respectively habh^, so that the tioimtdy number of days' labour to which each p(!rson is liable shall be in i)roportion to the amount at which he is assessed. (/) (2.) In Townships where farm lots have been subdivided Lotssui,- into Park or Village lots, and the owners are not resident, 'i>arkiot.s.&c. and have not required their names to be entered on the assessment roll, (rj) the statute labour shall be commuted by the Township Clerk in making out the list recpiired undei the ninety-second section of this Act, when such lots are under the value of two hundred dollars, to a ntte n^. xceed- mg one-half per centum on the valuation, (hj but the Council may direct a less rate to be imposed by a general By-law afiecting such Village lots, (t) 84. The Council of any Township [Town or Vill-vge] CouhmuI;!-^ may by By-law direct that a sum not exceeding one dollar at «i \'»t a day shall be paid as commutation of statute labour, in '^^^ which case the commutation tax shall be added in a separate column in the collector's roll, and shall be collected and accounted for like other taxes, (k) 85. Any local Municipal Council may, by a By-law C'"miimtji- passed for that purpose, fix the rate at which parti(>s may lixxi at any (/ ) See note I to sub. .S of sec. 390 of the Municipal Institutions Act. (y) See sec. 6 of this Act, and notes thereto. (h) In the ease »f non-rusident proprietors whoso names do not appear on the roll, the charge is made against the lot of lant I'X- cevdingll. V 1 r^^pjF 60 fi'i THE MUNICIPAL MANUAL. |"88. 86, 87. iriuilij-lrtW, '••'iiimiita- tioii til be .it «1. I'.iyiiii'iit 111' tfix il; lii-u "I Sllltutl' l.ili'iiir iiiiiy III- cnfiii-i't'il liy ilistii's.s 111- iiiiinismi- iiii'iit. commute tlioir statute labour, at any sum not exceeding one dollar for each day's labour, and the aum so fixed shall apply eijually to residents who are subject to statute labour, and to nou-residcuts in respect to their proj)erty. (/) 845. Wlien no such By-liiw has been passed, the statute labour in the Townshijis [Towns or Village's] in respect of lands of non-i-esideiits, sliall In; commuted at tlie rate of one dollar for each day's labour, (in) 87. Any person liable to [niy the sum named in the eightieth section, or any sum for statute lalnjur commute< or [ut yearly kieeessary jiniuoiiiug In to sub. 88. 88, 89.] STATUTE LABOUR BY NOV-RESIDENT.S. Peace afox'esaid, such Justice sliall order tho samo, tojifether with the costs of prosecution and distress, to be Kvi(fd by distress of the offender's goods and chattels, and in ca«e there shall be no suflicient distress, such oflender may be committed to tho common gaol of the County, and there put to hard labour for any time not exciiediiig ten days, unlesH such penalty and costs and the costs of the warrant of the commitment, and of conveying the said person to gaol, shall be sooner paid ; (u) anr the s;une fonn, con- entered by the collector therein, [a) on whic .. he shall set toTitH, &(;. down {b) the name in full of every person assessed, and the («) The words in brackets arc an amendment made to this section by statute 33 Vic. cap. 27, soc. (5. " Tlie Assessment Act of 1809 " placed the lands of residents and non-residents, as regards the performance of statute labour or payment of statute labour commu- tation, on the same footing. Sucli was the law before 18G(>. (Caiuxda Co. V. Howard, 9 I J. C. Q. B. (Jol.) But the Act of 18(5(> granted a privilege to non-residents which was not enjoyed by residents. The Act of 18li9 destroyed it. The Act 33 Vie. cap. 27, see. 6, to a great extent has restored the jtiivii -.^e. (a) The Clerk of every local Municipalitii shall, &c. All the direc- tions in this section are to the Clerk, and not to the ('uuncil. His authority in the matter is derived solely from the statute. With his duty, under this section, the Council of the Municipality has nothing whatever to do. The duty is a statutory obligation which the Clerk is bound to perform. (See per Mowat, V. C, in Grier v. St. Vincent, 13 (Jrant, 512, 519.) (6) The duty of the Clerk under this section is— 1. To set down the name in full of every person assessed, and the assessed value of his real and personal property and taxable income. 2. To calculate, .and ojjposite the said assessed value set down the amounts for which the party is chargeable. 3. To set down in one column, to be hea) It is the duty of the Clerk, under this section, to make out two rolls : 1. One whereon will appear On- nnnie.i of all faxalilc pnrticn, and which is to be delivered to the local collector with a view to the collection of taxes from persons liable. 2. Another whereon will appear only Idndi, and which is to he transmitted to the County Treasurer with a view to the col- lection of taxes )>y means of a sale of the hinds. The reason is, that there is no power to enter the vnni's of non- residents on any roll unless tliey require the same to be done. (See sec. 6, and notes thereto. ) (/) The non-residente' roll must show: 1. The lands of non-residonta 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 chargeable, 603 TIIR MUNICIPAL MANUAL. [88. 93, 94. DiltieM of cf)lll'(!torH. To (lemaiiil tliK ])aynir!ut borlain, a.s tlio case may be, (g) on or before the first day of November. (A) Colleclors and their Duties. 03. Tho collector, upon rocoiviiig his collection roll, shall proceed to collect the ttixes thoroiii mentioned, (t) ,"», In caso any person n(^<:flt'irts to pay his taxes for whm p«y- fourtiHMi days afLiT siifli deiiianil as aforesaid, (///) tlie ••«>!- "llJlo/jrol'"^ lector may, by liimself or by bis ugont, (/<) levy tlie same i.rtorji to domainl, in the evi-iit of change of ooennation, is la'cesBary to t-nable "»""' •"»'•■ thi! cMilKctoi to di.strain the goodn of tho siili.Hc(|iu'Mt oci'iii'iiiit. {AiKjIin V. Minis, 18 V. ('. (!. V. 170.) And jur Wilson, .1.: " Ir the colk'otor hi' ri'(|uirtMl to make a frt'«h doniaiul fourteen days before he can distrain, upon every change of ownerhliip or occupancy, ho may l)e baliled for ever. Hesiile.s, ho cannot tell wlntlier tliere has been a cliango of owneraliij) or not, thougli lie might Ix; better .iltle to know of a eliange of oeeupaney." {!/>. ITS.) IWit tlu^ perHon in possession, whetiier the person assessed or not, may be looked njion as tile person "who ought to pay tlie taxes, ' .so as to make a demand on him sultieient without showing a demand on the person assessed. (See note 7 to sec. 9") of this Act.) (/) This is a most important provision. Without it, the entry certainly would not be cviiknce of the demand in the lifetime of the collector. (See Iltiifoii v. JJiiiithtH, '24 U. (". Q. B. 273.) Hut with it, the bare fact of the entry appearing on the production of the roll is evidence of tlie/(«r^ of the demand, and, it itt believed, flif ildte of the demand. There was no such provision in the Act of ISOCi. It first appeared in the "Assessment Act of 18(59." (See further, note p to sec. 102, and note a to sec. 103 of this Act.) (m) Ah nforciitiiit. See note /fc 10 sec. 94. It would seem that the notice recjuired by sec. 49 is also a condition precedent to the right of distress, in the ease of a person whose name is on the roll. (Londun v. T/u- ilrcat Wextern liailway Co., 1(> U. C. Q. B. 500.) (h) The collectors of taxes are officers annually appointed to collect the taxes, which, in far the greater number of instances, they are able to ih) by merely calling ujtou those against whom they are charged. In cases where they may have to resort to compulsory measures, although the Legislature has enabled them to levy in ^ person and without the authority of any process, yet it was scarcely ' contemplate*! that the collectors themselves would, as a matter of course, act the part of bailiffs and auctioneers in seizing an) of tho peraun who ought to juiy the kiiiiic, (y) or of any goods Ac, for the year, tec, niul now in arrc.ir ami unpaid, and in defatdt of imyincnt of Buoh arruurH of taxes and the lawful coHtn of tlic n.iid distrega, to sell atid diHitottu of thu Haid tliHtreKM aceonlin^ to law, for the recovery of tlie said arrearn of taxis togetliur with tlio Haiti lm sts, and for your 8o doing thiH shall he your HutHcient authority. (Jiven under my haml at, &c., this day of , A. I). 187 — . E. F.. i'nll,'H„r. Of course the collector would be liable for anything tlou!! l)y the hailiti', which he had authorised the l>ailiH'todo. {('tivfuttw Jnliiistitn et at, 1 1 U. t;. (J. V. 317; s. c. 7 l-. C L. J. 'MM) Whctlicr h. would, like a sheriff, he liable for anything tlono by tiie baililt', witliout the anthority of or contrary to the direction of the warrant, is a quLstiMn which has never yet been deterniincd. The late ('hicf .lustiuo Mclean was of opinion in the aHirniative, but the late Sir John Robinson expressed grave doubts on tlie ([ucstion. (See /'/•(»■(»/• v. Paij,' el al, 18 U. V. Q. B. .S3(», .3.38.) If there be several rates, the legal separable from the illegal rates, unless the sums due in rt spcct of tho legal rates be paid or ten.) But y as to such Any goods ho ought to brained. (See ilistrosa hy a »y the sheriff a mere notice axes is not a tf under this on creditor is ion of the tax the Court of Neither the completion of ssion, or was ver, and both the party in fell, 19 Grant, S8. 98, 99.] DISTRAINING ON NON-RESIDENT LAND. fii;j 9H, The collector slmll, hy iidvertiseinent posted n)» in ''''')'''' at least three piddie phioes in the Township, Villaifoor Ward s.ilo tn be wherein the .sale of the <,'ood.s and chattels distrained is to be ^v'l^ill"',,','"/,' '"' ma(h^, ,i,dve at least six ilays' ( /') public notice of the tiiiii' and ni-r. placoof such .sale, and of tlie name of tiie person whoso pro- perty is to be sohl; (7) and at the time named in the notice, the eollectcn' or ids aiccnt shall .sell at public auction the ^oods and chattels distrained, or .so much thereof as may be neces- sary. (/<) 99, If the ])ropertT distrained lias been sold for more HurpiuR, if than the amount of the taxes and costs, and if no claim to i,> Ih' puidto _^ till' pi'.rty in wliKso pos 197.) In delivering judgment, Mowat, V. C, said: "The principal M'ssinn ilic grounil of ohjectinn to Mr. IJacou's (the purcliaser) claim was thit goods writ!, the sale was void in onuity by reason of the pruptTty havini; been in the ciisLoily of the Court through the rcoiivoi' at the time of the wale. Tht! answer to this ohjiM'tiou is, neitluir the purchasi-r nor even the bailitf was informed of this until alter the sale was eoniplcted. On the CDutrary, tliey li.id i)een exjirexsly toM, on what iniglit will seem to them to be cotiipftciit authority, lliat tlie engine and l)oilur (tiio goods and ehattuls sold) were not ati'ectcd hy tiie Chancery ])roeL't.'(l- ngs, and wcri' not in tiic possession of tlie ri'ecivor. " (/'''. 'Jd'J. ) .And again: " No (h>uht, if the Court had been applied to befon- the sale, the bailiff's i)roeeecbngs would have been lestiaiiicd and nulhlied, because the Court does not peiiiiit any interference witii projieity in the hauls of it.s olHeers without the leave of the Court. Hut sudi leave, if asked for in tlie present case, would have been grantiid at once, unless the parties were prepared with the money. 'I'lie know- ledge of that was ;trobal)ly (iiie rea.son wliy tlie plaintiff or her son did not ai)ply to tlie Court l)efor'j the sale." ilh. -O'.i.) The estah- lishmeiit in which these chatttds were, being afterwards sold by tlie order of the Court in one lot as agoing concern, it was hehl that the purchaser of such chattels at the tax sale Was entitled to a cor- responding jiart of the purchase money realized at the Chancery sale. (//..) (/) At /fa.'j' six days', &c. See note ,7 to se-;. 103 of the Municip.a' Institutions Act. (;/) Errors or defects in the advertisement of sale would no*-,, it is believed, affect the title of the ])Uiclia.ser to the goods and t h.ittels by him purchase; Ilii.^l'itt v. Hall, /!>. 48t; Lee v. //owes, 'M) V. C. (,). B. 'J'.»2; Co.inor v. Oowjla.i, 15 Ci rant, 401) ; Ciihson v. Lorell, I'Jtirant, 1!>7. \ (/() The collector, after sale, would, it is .'iiipri'liendcd, b«> in a position to sui; the purchasers for tiie price if the thing's sold. (Sec Jarrii V. C(i//.V//, 1 1 IJ. C. Q.. ii. 'IHJ.) But in order to bind the col- lector as against tlcj purchas'-r, there should probably be some mem irandum in writing on delivery of the gooils sold, so as to bind the sale. (See Miixjaiie v. Corhefl, 14 I'. V. ( T. ooT.) It is not neces- sary for the purchaser, in order to the mainVnaiice of iiis title, to show a strict and literal comjilianee b,' the bailiff with the directions of the Act. {Gibson v. Locell, I'J Gn.'nt, I'JT.) 614 THE MUNICIPAL MANUAL. [ss. 100-102. Or to admit- ted claimant. When the right to su<^h sur- plus eou- testud. Taxes not otherwist! r«c;()V(tial)lu to be rei;()V- t?rod by autiou. the surplus be made by any other pei-son, on the ground tliat the property sold belonged to him, or that he was entitled by lien or other right to the surplus, (I) such sur|)lus shall be returned to the person in whose possession the property was when the distress was made, (k) 100. If any such claim be made by the person for whose taxes tile property was distrained, (/) and the claim is admittod,. the surplus shall be paid to the claimant. (»i) 101. If the claim is contested, such surplus money shidl be j)aid over by the collector to the Treasurer or Chamber- lain of the local Municii)ality, who shall retain the same until the resptictive rights of the pai'tit^s have been deter- mined by action at law or otherwise, (u) 10!$. If the taxes payable V)y any person cannot be recovered in any special manner provided by this Act, they may be recovered with intei'est and costs, as a debt due to the local Munici]>ality ; (o) in which case the production of (i) Tlie goods and chattels of an;/ per.son in the possession f)f the Ijerson who ought to pay tlie taxes (sec. 95), or atiif goods on the and of a non-resident who has required his name to bj entered on the roll (see. 97), may he distrained and sold for taxes; but if a surplus, that suri)lus, if the gooils and chattels were really not the property of the person for wiiose taxes tliey were sold, iiuist belong to the owner of tiie goods and eliattels so sold. It is hanl tiiat any part of his goods should lie sold to i)ay the liability of another, with whom he lias no privity, but it would be still more hard if he could not claim any surplus that might be left after payment of the arrears of taxes and costs. {k) The recei])t of the surplus by the owner of the goods would not, unless accepted in satisfaction, be any condonation, so as to jirevent an action being brought to recover the value of the goods if the sale were from any cause illegal. (See Eraiiti v. Wr'ujht, '2 H. & N. r)-J7; A'ohhisou v. S/ucld.i, 15 IJ. C. C. P. 880.) (/) See note i to sec. 09 of this Act. {in) If the elr.im bedisputee ahle to .ihow, in the tirst jihice, tliat the defendant's name is on the roll (see Sari/unf v. Tiiriiiitu, 12 U. ('. ('. r. ISf); MrCnrrii'l y. Wotk'iu.-^, V.) V. (\ Q. [{. 248), and, in the next i>lai'e, tliat they have done what would ha neecssary to entitle them to distrain by warrant for tlie same tax, if the jierson sued had goods that might he seized, except perliaps tiiere would 1)6 no oeeasion to make tlie previous demand mentioned in seetion 5)4 (;((•*• I'ohinson, ("..I., in LuikIdii v. TIk I'. ('. Q. H. noj); and neither hy distress nor hy action can a ratepij'er he comj)elled to pay a tax of which such notice has not been given to him as the law has provided in the 48th section of this Act. {/!>.) By this is not meant that the jilaintill's in such an action are bound to set forth in the declaration that they have given such notice as the law requires before the assessment ••oil was linally completed — that may p.'rhaps he assumed till the conti'ary is shown — l)ut it must hj oi)en to the defendant to deny that such notici: was given, and to put plaintatl's to the proof of it. {//>.) In order to entitle the Corporation to sue a non-resident owner of lands, it must not only appear that tiie special remedies jirovided by the Act are unavailable, and that the defendant's name is on the roll, hut, besides, it must be distinctly averred ami jtroved that the owner had re([ucsted his name to be placed on the roll. (Ih rlln v. 'IrniKiP, 1 Er. & A p. -279.) (/>) Th',' former part of the seetion provides for the action, and this part for the evidence to sustain it. The jn-ixlurtiini of a copy o'" so iiiiirh of the collector's roll as relates to the taxi's payable liysiich [>erson, piir/Kirtiiiii to he ccrtilied as a true cojiy by the Clerk of the ocd Municipality, siiall lie /iriimt farii- evidence of the ilei)t. No froof of the signatiu'e of the ("lerk is appai'ently made necessary, f the eortiiieate produced purports to l>e signed hy him, it will he received on pro luction. P>ut when n^ciiived, it is only /iriiiia J'ttcif. evidence; in other words, its accuracy, or th(! facts it re[)rescnts, may be disputed and disproved. (See //o^-.V/t v. H'o/v/, 17 I'. C. C. P. IIM).) ('/) It is the duty of the collector, under this seetion, on or before • a day named or appointed for the ]Mirpose, not later than the 1st of February (.S3 Vie. cap. '27, sec. 7, < >nt. ; see also note /* to se(\ I8'J of the Municipal Institutions Act), to return his roll, and jiay over tho amount payable, specifying in a scjiarato column ou his roll how^ ml J > 616 THE MUNICIPAL MANUAL. [s. 103- such Treasurer or Chamberlain, specifying h\ a separate cohimn 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 Ti-easurer or Chamberlain that the date of the demand of payment and transmission of statenfent, and much of the whole amount is paid over on accoiuit of each separate rate. Does tlie collector at any time, anil if so, wlien, l»eeome inea[)able of exercising his functions ns collector? Snpjiose the Municipal Council does not extend the time beyond the 14Mi of December, does he on that day become /inirtiis nilirii, ? Nn douht he may receive moneys on account of taxes after that day, ]irovided he has not made his return, and no doubt his suieties would he liable for moneys so received. ( \V/iitfii/v. Harr'tKOii, 18 II. ('. (). i>. (JdC); Todd V. Fern/ct al, 20 V. C. Q. H. 04J».) I5ut whether he may exercise the cuinpvhorji /joj/vr.v with which he is ii>vested, is anotherijutstioa. The enactments which proviile for the aii]iointment of collectors (see sec. 199 of the Municipal Institutions Act, and sees. 1!1 and "Jd of this Act) contain no limitation as to the time they shall hold otlice; and it is declared by sec. '2'Jp of the Municipal Act, that all otlicerg appo nted by a (Jouncil sliall hold oilice until removed by the Council. (See Jivrcr/ei/v. Harlow vided in the interval he has not returned hia rol'. The ditrcrent provisions for the enlargement of the time for his making his return are in favour of the collector, and provisionally in favour of the ratepayers. This was the opinion of Kohin.son, ('. J., and I'urns, J. (McLean, J., diKKnitiinli), in Xnchi-rrj/ v. Sli/tJuns, 1() U. C. C,>. l>. 6."), and was in fact the duty of the collector to return his roll, or shall in any manner what- soever invalidate or otherwise atlect the liability of the collector or liis sureties, (u) 105. If t^ny of the taxes mentioned in the collector's roll remain unpaid, and the collector be not able to collect the same, he shall deliver to the (■liamborlaiu or Treasurer of his Municii)ality an account of all the taxes remaining duo on the roll; and in such account the collector shall show, oj)posite to each assessment, the reason why he could not collect the same, by inserting in each case the words "non- resiilent" or "not suHicient property to distrain," as the case may be. (a) (s) The latter part of this see! ion first appeared in the Assessment Act of 1869. As the entries tu whieh reference is made are C( in- stituted evidence on their production, tlie oath here re(|uired is intended to be a guarantee for the truthfuhiess of the entries. (t) This section is intended to give the (%)uiicil power, by reso- lution, to authorize the same collector, or any other j)erson in his steail, to continue collections which are being made, but not com- pleted, at the time appointed for tlie return of the collector's roll. The power, however, cannot be exercised after the final return of the roll by the collector, and after the lapse of several vears. {//ol- eomh V. Shmv, 22 U. C. Q. B. !>2; Smith v. 67(rtif', 8 U.'C. L. J. '2\n.) But the lanil is not thereby excused ; the arrears of taxes are a special lien on the land. (Sec. 107.) (u) See sec. 103 of this Act, and notes thereto. {a) It is the duty of the collector to return his roll by a day named or ai»pointed for the purpose. (Sec. lO.S.) It is also his duty under the section here annotated, when unable to coUict any taxes, to deliver an account of all taxes remaining due on the i^U, and in .such account he is re(iuired 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. 181.) If these remedies be of no avaU, and not tUl then, a court uf law may interfere 618 THE MUNICIPAL MANUAL. [ss. 100, 107. When thus notcdllrctrd collectors ti) be oredited with the MttUUUt Tttxea to be a lit'.u U}M)U land. ton. Upon makintj oatli b;^foro the Troiisuror or (Jliain- bc^rliiin that the .sums mentioned in such account n'liiain unpiiil, and that he has not, upon dili'^ent enquiry, Ikhmi :dile to discover sutKcient goods or cliattcls hdougiii'^ to or in posso.ssion of tho parties charged with or liabUi to pay such sums, oi' on tlio premises l»ehm".;in;j; to or in the posse-si )n of any occupant th av^of, wlua-ijon h ' could levy the siui •, or any part thereof, the c )lloctor shall be credited with tho amount not realized, (h) lOX. The taxes accrued on any land shall be a spet-ial lien on such land, liaving jinifer-.'uce ovhh" any claim, li u, privilege or incumbrance of any party e.\cepfc the (jroun, and shall not require registration to preserve it. ((-•) hy maiiilniniis. {In re Qiiln and the Treasurer of thr Tui'^nnf Dumlan, 23 IJ. (!. g. B. .SOS.) (/*) This appears to intend that th'3 prop'jr course is, for tlic Muni cipal Council in tho lir.st inst imcj to ilehit thu ooUuotjr witii all th^ taxes oa his roll, and fro.u tinu to tiiuj, as he piys over moneys, credit him tiierewith, until he lin Is him self un ihle to oolleet tlie bilancj, ami then acjcjpt froai him the oith hero required, and credit him with the aiu'iunt not realized, so as to close the account. (r) The effeet of this provision will mi'ie it neejssirv tor every intending purehiser to seareh not only the Register t)diej for dee Is or c:)nveyancjs alf eeting land, but the olfiee of thj C.janty or ouber Treasurer wlio woald he ahle to give inform ition as t > t!ie tixjs, if any, due upon it. (See rem irks of Barns, J., in II>'rnii') i\' a' v. tSham, '22U. ('. Q. B. IKk) But a[)pirently it is nopirt of anatt irney or solicitor's duty, under an ordinary ret.iiner, for tiie invest gition of title, to nri'ie sueh a search. {N n.i v. Sra'lui, II} (J. C Ij. B. 4S9. ) The lien is nit only nr.vle s])eei;il, hut one hiving prefereace over any claim, lien, privilege or iucum!)rance of any pirtyexc'pt the Crown ; but even in the ease of the C'rown, if the lien hive attaehed before the Crown lieeime the owners of the l-.i'a I, tlu lien hf)lils as agiinst the Ci'owa. {/Vr Adam Wdson, J., in .V-vv/ »•;/'>/ Wary. Toronto, 22 U. C. Q. B. o')o.) Taxes due upon laid at the tim3 of sile are an incamhranee within the covenmt for ([U'et eiijoy- ment. (//(P/M'-v v. HniUh, 11 U. C. Q. B. oi; Jlarri/ v. An l-r-^iu, !3 U. C. C. P. 4:16. ) Bac where tho vendee of land suhject to taxes allows it to be sold for the taxes, ami afterwards negleets to redetm, he cannot as of right ree )ver damages to the full value of the land. {McVolUun V. l),irh, 8 U. C. Q. B. I'V).) Taxes camu)t be said to he due before they aro imjiosed by the C'ouneil. tFonl v. Proii Wool, 9 (irant, 478; Corhett v. Ta;f!or, 23 U. ('. Q. B. 454.) In the casj of residents, taxes Jiro not due till tlie collector has received his roll {/'>.), and not until the expiration of fourteen days after demand {per Wilson, J., in JJe/l v. McLean, 18 LI. C. C. P. 421); and in the case of non-residents who have required their names to he enteretl on the roll, not until one month after the collector h is returned his roll. (//».) Sewerage rate is not an incumbrance on land. {Moore v. 7///ftM, 22 U. C. Q. B. 107; see further, note o to sec. 18, and notes to sec. 128 of this Act.i m 8S. 108, 109.] CKOWN LANDS LIST. 619 Yedrljj Llsfs of Liimls (/r(i)i(r.(/ bif the Croinn. lOH, Tho (J()imiii.ssi()ii(>r of ('ii>\vii liHiids slmll, in tlio month of Febniaiy in every year, transmit to tho Troasunu- of t'VciT ( 'oMiity, a list of all the land within thd ('oiinty, locati'il as frc.' ifrunts, sold or a^^rt'cil to l»o sold Ity tho Crown, or lease I, or in respect of which a licenso of ocjii- pution issued during tlie preceding year. («/) IOJ>. The County Treasurer shall furnish to the Cl-rk of each loi'al Municijtality in the ('(Minty a co])y of the saiij lists, as fii- as regards lands in sueji Municipality, and such Clerk shall furnish tin; assessors, respectively, a stateni"ut showing what lands in the; said annual list are liahhs to as.sessnient within .such a.s.sessor's assessment district. («) Annual list nt' LllliLs ^T iiilt'd, fir., to Im' liii'iiislicd by (iiiiniiis- iif crowu liiuUs. Ciitinty trvii- siii'iTs tol'ur- iii-ili i/iipieu (if lists to ilt-iks of 111 iiiiciiml ilioa. ( /) All land in UppiT rVmula, suhjcct tn certain exceptioua, is lial)le to Muuioijial taxation. (See. !). ) Oaii of thesj exceptions is, all property vested in or held l>y Her* Majtsty. (Sul). 1.) This exception, however, is quali!i:;d liy a declaration tli-it wlieu anv Hiieli property is occupied i)y any person otherwise than in an oili.'ia! (!i laeity, the oeciip:int shall he assesr^eil in respect tluTeof, but tlic pid|)erty itself shall not lie lialile. '/'*. suh. 'J.) , Unpatented lanl, soM or aLfi'ced to lie sold to any person, or loeitjd as a free grant, so far .as the interest of tho jiurcliaser or locat' e is concerned, is made liahle to taxation. (Sec. IL'T. ) For th ; pur[i')-i.s of ass ssinjiit, tlie motive for I'ciinii'ing a return to tlic Treasurers of Countii s of lands loeiteil as free ijrauts, soM oh agreed to lie sold or leased hy the ( Vown, or in ri'spiet of which a license of oecujiation has issued, is self-eviilcnt. (Per Orajicr, ('. .)., in.V/V"'^v. Km/, 11 r.C.C. I'. L'()0.) Wiien -SVm/' v. A'«-/*/ was decided, the assessment law had not hecn extcmleil to lands " sold or aj^recd to he sold.'' 'i'hat was done liy the statute 'J7 Vic. cap. Ml, si es. 4>, 10, 11, which has hecn cmhodied in the section under consideration. (See Stri'it v. Slinroi; 12 I'. ( !. ('. I\ •_\S4 ; Sfri'<-f. v. Lninhtnn, Ut. 2!)1. ) Under tho old law, the Surveyor's general .«ehethi^ was the foundation of all suhse([uent proceedings {/)'ir Ujiiicry. E(hr(iril.i, 5 U. (". (}. H. r}\)S), and it was ncces.sary that the land sold for tax< S shouhl he stated on the list to have hecn ikserilied as granted or leased. (/.'(/« Ilil/v. On; a (). S. A',V,\.) Land not eon- tained in tho list was held not to lie taxaljle {I'crk v. Munnt, \ C. V. .Si)!}), and the list nught ho shown to ht.' erroneous, i/'rrri/ v. Poir,'ll, 8 U. ('. i). U. lT)! ; Sir.'<( v. Knit, 11 V. V.C. I', '-'.m.) Land returned in June, 1820, for assessment, was held to ho liahle for tho taxes for tho wlndo of that year. (i)»i- five copies to assessors to Qotify occupuuls, County Treasurers, Local TrmHurera, Clerks and Assessors — their J)ntiea. 1 10. The Troiisur'T of evory (Jouuty shnll furnish to the Clork of uiich Muiiici|»,ility, cx'M'iit in (Utios ami Towns, in tho County, a list of all tho lands in his MunicMpality in respect of which any taxes shall have been in arrears for thren yoai's preccdin;^ the tirst day of January in any year; ( /') and the said list shall l)o so fiii'Misliod o\\ or i>efore tho first day of Felu'uary in every year, (7) and shall he headed iu the words followinii;: "List of lands liable to be sold for arrears of taxes iu the year one tiiousaud (u;fht hundred and ;" (//) aud for the puiposes of this Act, tho taxes for the first year of the three which have ex})ired under the provisions of this Act, on any land to be sold for taxes, sludl be deemed to have been due for throe years, althou;,'h the same njiy not have been placed upon a collection roll until souivT mouth in the year later than the month of January, (i) 111. The Clerk of every Municipality in each County is herel)y r ■ luired to keep the said list, so furnished l)y the County Treasurer, on lile in his otKco, sul>jeet to the inspec- tion of any person reipiiring to see tho .same, and he sliall also d 'liver to the assessor or assessors of the Municipality, eaeli year, as soon as such assessor or assessoi-s are a|»pi)inted, a coi»y of such list ; {k) and it shall be tho duty of the (/) "In respect of wliieh any taxes shall have beoii in arrears," &c. Sue note h to sue. lliS of this Act. (.7) "O/j or he/ore tht jlntl (la;/ of Fehnianj." It is by sue. 131 declaruil that the Trea-iurur shall nob suil any Ian Is whioii have not been inchnlud in the lists furnisliuJ l)y hun to the Clerks of the several Manicipalities in the month of Fthrain/ preceding the sale. In Stcw.irf. v. Taijijart, 22 U. C. C. P. 284, 28i>, Hai,'arty, C. J., said : " Kven if we found it clearly proved (which it is noL) tiiat the list was not furnished until nfler the 1st of Kehruary, we should hold that its being furnished any time durimj Kebniavy would be sutfieient under these two sections'' (sees. 110, 131). (h) The section gives the heading that is to be on the list. It does not state in terms that the aniount of taxes in arretir siiouM be stated on the list. ( Per Hagarty, (.'. J . , in Stnourt v. Tai;i/arf, 22 17. 0. C. P. 28i).) Land described as" !» con. 8. or K h 14, N. 'or W. h U," was held to be a sutlioient description of land liable to be sold for arrears of taxes on the list. (//).) Per Hagarty, C. J.: "I see no objection to calling it North or West half. The land probably lies North-west or South-east, and nothing was shown that the descrip- tion w>iuld not sutliciently identify it." (i) See note i to sec. 128 of this Act. {k) The duty of the Clerk of the local Manicipility, in regard to the list furnished to him. pursuant to the req^uirements of the pre- ceding section, are twofold : 110,111. B.111.] LIST OP LANDS IN ARREAR FOR TAXE8. 621 I ase^sors — iiish to the Towns, in (.•il»;ility in arroirs for any year; hoforf tlie be litMilccl be sold for nulii'il and 'j, till! taxes i nnler the t.ixos, sliall tliouj^'h the I roll until aninuy. (i) I County is lied l)y the th(! iuspec- 1(1 ho shall unicijvility, > a|>ji'>iuti'(l, luty of the 1 in arrears," by sec. 131 ioii have not lerks of the iag tlie sale. C. .)., said : t the list was hold that its iioieut under list. It does ir should be yar/, •2'2lJ.O. orW. .U4," ) be sold for " I see no [»roba!)ly lies the descrip- iu regard to of the pre- asspssor or assessors to ascertain if any of the lots or parcels of hiiul contained in such list are occupied, or are incorrectly described, and to notify such occupants and also the owners thereof, if known, [whether] resident within tne Munici- pality [or not], n[)on their reK])ective assessment notices, that th(! land is liable to be sold for arreai-s of taxes, and enter in a column (to be reserved for the pur])ose) the words " occupied atnl paities notilicd," or "not occui)iod," as the case , .. 4 , ' ' . . ' l.lHtS to nr may be, and all such lists .shall be si!.;n('d by the assessor ivturmd ;ih or assessors, and returned to the Clerk with the assessment |;',til.7'wit'i'i' ' roll, to<^<'ther with a menioranduni of any error discovered diawn fn.iM therein, {I ) au-l the Clerk shall tile the same in his ollice for public u.se ; (m) and ever" such list or copy thereof shall be received in any Court as evidence in any (\'ise arising con- cernin .same Miiiuner n',u\ sulgeet to tliu same condition-s us all other tux«.'.s entered ii^>')n the collector's roll, (r) 114. If there shall not he sufficient distress upon any of the ociMi|iie(l lands in the |tr(M'edinj,' section nanieil, to satisfy the total amount of the taxes charges against the sam(>, as well for tho urreai-a as for the taxes of the current year, tiic collector sliall so return it in his i-oll to the Treasurer of the Municipality, sliowing tho amount collected, if any, und the Clrrk to In- HiTt Hiirll aiiiDUiiton riilliictor'i rolL When thore is licit millli'if'Dt ilmtrrHS on Kuuh landR. (h) St ' I '1 125 is proli.ilily hero inteiided. 'I'hc list furnished by tlic Infill Clork, under tlie )>n ceding jiart (if tliis scctiim, to tho C'diuity 'licasurer, is to ciiiiliK; tlio lattt'r to ii'|)(irt tlio arrears ami per eoiitage duo in resjieet nt non-reHideiit land .HJnce lieeoniu oceupied, witli a view ti) tiie eollection ol' taxes thereon liy distress and sale of goods and chattels of the oeeupant. ((") The arrears may he ccllocted in the same matiner, and mihjcct to tJ,c siiini- CDndUionx, as all oiln'r taxi.'S upon the colleetor's roll. It is |ii()vided tiy sec. !!"), tliat the collector may, after demand, levy the taxes with costs by «listrcss of tho goods and chattels of tho Eorson wlio o liable. Hut tho diHi- culty of restraining tho operation of the aectiiui to goods and chattels on tlu; Ian I, as in tho casi) of non-residents, is, that that is only one kind of tax, and tho Act says tho taxes shall be coUootod in tho same manner an 1 xu'ije-t to tho same conditions as ttU other taxes ont.red upon tie roll. Now, upon the roll are tiio proper taxes of the' party charge. 1, which, under sec. 94, may bo levied of any goods and chattels in his j os-iession, whcri'm-r the Kami' nuiy he j'innul ill the C'uiniti/. Tho Court of Queen's Bench, however, have placed upon similar words, as used in tho statute '27 Vic. cap. 19, from which this section is tiikm, tho na r.iw construction of restrict- ing the I'emedy as to goods and chattels on the land, as being more consistent with reason than the broader constructiim, which would work great hardships and do great injustice in individual cases (see Wa.ne v. ('uuUer, 25 U. C. t^. B. 177); and tho construction placed Upon tliLSe words by the Court is apparently sanctioned by the Legislature in the following section, which provides what the collec- tor shall do " if there shall not be sutiicient distress upon any of the occupied lands in the preceding section named," &c. m THE MUNICIPAL MANUAL. [h. 115. by loml treABtiror, •ad wlieu, amount remaitun;^ unpaid, Jiml stiitin^^ tlus roasoii why piiy- ment Ims not bmuj niado. {w) sutemert ||5 '|'|,p TivasunT of oacli l.)c;il Municipality nhull, of arrears to .,• . V , « , . , n , hBretiiruod witlnn lourtct'ii days after tho time app) furnisli tho County Treasurer with a stat I'liKo it hIiuII Ik* fouiiil Ity tlin stiitoiiicnt (lii"0(;to(| by tli County TrtMiHun-r, that the uricurH of Uixe.s iipoii tlic orcunifd lamlH of iioii-rcsidcnts, flircc'tt'd liy tin- oiii! Inniilnd and tliirt(M'iith Boctioii of tlii.s Act to l)c placed on tl»e collector's roll, or any part thereof, remain in a near, such land shall be liable to Ik; sold for such aireais and shall In* incliide(l in the next or ensuiiij; list of lands to be sold by the County TreasunT, under the pi'o\ isions of this on*? hundred and twenty ci^jihth Boction of this Act, notwithstanding^ that the sain«; may bo occupied in the yeai- when such sale takes place; and such arrears shall not again bu placed upon tiie collector's roll for collection. (ct list of tho lands which have coin(5 to bo occupied, as recpiired by th(! one hundred and foui'teenth section of this Act, and u statement of tho balances which may remain uncollect(*d on any such lots, as rec|uii'ed by the one luuidred and fifteenth section of this Act; ^c) or if any assessor or a.s8essorH shall iu>glect to examine such lands as are entered on each such list, and make returns in manner hereinbcfon! directed, {/) every officer making such default shall, on summary conviction th(!reof before any two Justices of the Peace having juris- diction in the County in which such Municipality is situated, be liable to the penalties impo.scd by sections one huiuli'cd and seventy-six, one hundred and seventy-.seven, and one hundred and seventy -eight of this Act ; all lines so imposed r.iahlllty of liuiitii Ui salt ir arrraraan not paid, and wh«ii. P. nalty on <'l), ami any distress or otlier proceeding >u the part of the local Municii);dity for the recovery of the taxes, unless in cases coming under sees, i 1 1 and 1 13 of this Act, would be illegal. (Hokoinb v. Shaw, '11 11. C. Q. li. 92; Snihh v. Shaw, 8 U. C. L. J. 297.) It would seem that tlie roll should not ouly he returned hy the collector to the local Municipality, but that the Litter should return it to the County Treasurer. (See sec. 122 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 alone. The Council of the County has no control over him so far as this duty is concerned. (See note a to sec. 90 of this Act.) In cases of n(wi- resiilent lands subseiiuently becoming occupied, he may make use of the officers of the local Municipality in oriler, if possible, to make the amount of the taxes by distress of goods and chattels on the land. (See sees. Ill and 113 of this Act, and notes thereto.) (j) It having been declared that the collection of the arrears shall, after the return of the collector's roll, belong to the Treasurer of the County alone, he anllector's roll r.H\nMieil to him, that there are any taxes unjiaid, and tho amounts so due; and he shall, on the (irst day of May in every year, complete and balance his books by entering afi[ainst eveiy parcel o^' land the arrears, if any, due at tho last settlement, and the taxes of the pn^cediuif year which remain unpaid; and he shall ascertain and enter therein tho total amount of arrears, if any, chargeable uj)on the land at that date, (p) 1^>5. Tf, at the yeai'ly settlement to be made on the fii-st day of Mtiy, it ap[»ears to the Treasun-r that any laud liable to assessment has not be?n assessed, lu^ shall report the sanu,- to the Clerk of the Municii>ality, and the Clei'k shall enter such land on the collector's roll of the current year, or on the roll of non-resideuts, as the case may l»e, as well for tho arrears omitted of tho year preceding only, if any.as for the tax of th(; current year; and the valuation of such land so entered shall be the average valuation of the three previous yeai's, if assessed for the said thre;> ycsars, but if not so assessed, the Clerk shall require the assessor or assessors for the current year to value such lands ; and it shall be the duty of the of taxf s on any particular parcel or parcels of land. But it is his duty to submit to the ileniaiid of the owner (or his agent, wliich ig the same tiling), ami to give liini a written statement of tlie aria-'ars to date, provided liis fees for searcli (tliere being no fee for eertilieate or st:itenK!nt) l)e paid or tendered, ()<)ks by t;t';isnrer. Prornodinft!! « liiT'^ any I;iiiil isfoiiDd Ji'l to have bt'cii assess cd iu any yuar. 630 THE MUNICIPAL MANUAL. [r. 124. How Innd BhAll 1)6 valued. Appenl from valuation. Treasuvpr to correct errors. As to pre- tunded receipts, &c. assessor or asspssors to value such lands when required, and certify the valuation in writing to the Clerk; (7) and the owners of such lands shall have the rijfht to appcsal to the CJouncil at its next or some siil»se(|ueut meeting after the taxes thereon have been demanded by the collector, but within fo'irteon days after such demand, which demand shall be madi' l»y the collector before the tenth day of Novemlier; and the Comicil shall hear and detciiiiiiie such appeal on some day not later than the first day of December. (?•) lf^4. The County Treasurer may correct aby clei-ical error which he hinis(;lf discovei's from time to time, or which may l)e certified to him by the Clerk of any Muni- cii)ality. (,v) 2. If any person [)roduces to the Treasurer, as evidence of i)ayment of any tax, any paper j)ur[)ortirig to be a receipt of a collector, school trustee, or other Munici[)al officer, he (7) The object of this section is to make subject to taxes laud that ought to liavc liecn apsessed, but whicli, fruui some cause, was not ass( SHed. The j,>roco(hu'e provided for the purpose is the best, under the circuinstanei s, that e(uild lie devised to meet the exigeneits of such a case. The 'I'reasuror uiaj' himself at any time correct clerical errors. (.See sec. 12-1 of tliis Aet. ) (r) The duties of the Court of Appeal arc rctpiircd to lie performed on or before the ir)th of Jiuie. (Sec. ')[). ) But here, it will be observed, the api)eal is not given to the (\»urt of Appeal, but direet to the (Council. The demand for payment of taxes nuist be made l)y the collector l)efore tlie 10th of November, and tiie appeal nuist l)e made within fourteen days after demand, or it eannot he made at all. (See as to eoiiiputation of time, note a to sec. 128 of the Muniei[)al Insti- tutions Act. ) (.s') A ratepayer fiom ISaS to 18GI inclusive, occupied as lessee a house and land ailjoining on lot 24, part of which lot, in ISoi, had been laid out liy his landlord into village lots, and a plan of the subdivisions liled in tiie llogistry Otliee. He had been regularly assessed, and had paid for the premises tiius oeeujiieJ by him, Imt the whole of lot 24 liad, during these four years, l)een returned as non-resi(ient. After the Treasurer had issued his warrant for sale to the Sheriff, lie was applied to to eorreet the alleged mistake in the rolls, so as to except the pari' occupied by tlie ratepayer al>ove mentioned from that returned, l)ut refused to do more than allow the Slierili' to deduct the amount paid by the ratepaj'er. A certi- ficate was jM'esented to the Township (Uerk for signature, to be aildressed to the Treasurer, with a view of notifying him of certain errors in tiie mode of assessment of the lot No. 24, but the Clerk declined to sign it, alleging that he did not think he would he justilied in doing so. The Court of Queen's Beneii, (ui an application for a ituDidamus, refused to interfere. (In re i^ecker and J'axlon, 22 U. C. Q. B. 118.) «» [s. 124. iiired, iind ') ami the !!il to the after the octoi", but naml .sliall fovomber; apjteal on ly cloi'ical ) timo, or my Muni- s evidence ft a receipt otHecr, he :es lauil that ise, was not best, umler xigeiicits of •rcct clerical e perforiucil ohsurved, L'ct to the laile l)y the List he iiiatle at all. (See icipal Inati- as lessee a \SrA, had Ian ot the legv.larly hiui, l>ut •eturned as ,nt for sale mistake in )ayer ahove than allow A certi- ure, to be of certain but the e would be aitplieation Paxton, 22 125.] PERCENTAGE ON ARREARS. 631 shall not be bound to accept the same until he has received a report from the Clerk of the Municipality interested, certifyinp; the correctnes.s thereof, or until he shall be other- wise satisficnl such tax has been paid. (<) 1*^5. If, fit the balance to be made oil th(» first day of Ten percent May in every year, it appears that thei'e ar<> any ai'roars loanoars**' due u])()n any parci-l of land, tlu^ Tivasm-er shall add to the yturiy. whole amount then due ten per centum thereon. («) {f) Before the Treasurer is to give any credit for taxes, he nuist be sati.s;ie(l by eviilence of the payment. The pioiluction of a paper piir/xirfiiiii to l)c a receipt fur tiie taxes is ■•mute evidiaice of ])ayment. But tiie 'I'reasurer must be satisliiMl of the genuineness of the receipt, and of the fact that the taxes really were jjaid. The receipt, even if genuine, is not conclusive cvidei'e'j of payment. (See note m to sec. 120 uf this Act.) (!() The Treasurer vuider sec. \2'2 is rctpiired to keep books, in which he shall enter all the lands on which it appears from the Clerk's return and tlie (;ollector"s rolls tliere are any taxes unpaid, and /lie amount so t/tir. He is under the same section ricjuired, on fii-st of May in every 3ear, to complete and balance his books by entering against every jjarccl of laml the arrears, if any, at the last settlement, and the taxes of the ])receding year irlikh .ciaain lOip'iid. He is by the same suction rerjuired to ascertain and cntL'r in his books the total ainoniit of arrears, if any, chargeable upon the land at that date, ^^y this section it is declared, if, at tht; balance to be made on first of May in every year, it appears that there are (uii/ arrairs due ujjon any parcel of land, he is re([uiretl to add to the whole amount then due ten per centum thereon. In GHIrspie H at v. llitnu'ton, 12 U. C. V: P. 427, it appeared that on Ist May, 1 802, tlie Ciiamlierlain of the City entered in his books against the lands of the plaintitl's the arreais of taxes chargeable thereon, at the sum of .'i^iS")") 25, matlc up as follows; Taxes for bSoit $250 00 18()0, May 1 , 10 per cent 25 00 ^— .$275 00 Arrears, May 1. 1800 275 00 Taxes for ISOO 250 00 525 00 18G1, May 1 , 10 per cent 52 50 577 50 Arrears, May 1, 1801 577 50 Taxes for 1801 200 00 777 50 1802, May 1, 10 per cent 77 75 , — 855 25 It was contended by plaintiffs that this statement was erroneous, And that the following should have been the statement : — 652 When there is distresfi apon land.1 of non-resi- dents, treafluror may author- ize colleutur to levy. THE MUNICIPAL MANUAL. [s. 126. 130. Whenever the County Treasurer is satisfied that there is distn'ss upon any hinds of non-resith'nts in arrcar for taxes, (a) he shall issue a warrant under his hand and Taxes for 1859 !?'2r.l) 00 18G0, May 1, 10 per cent •-'") 00 §275 og Arrears, May 1, I8G0 27i) (M) Taxes for 18()0 'ioO Ott 10 per cent, on ^500 50 00 575 Qo Arrears, May 1, I8G1 575 00 Taxes for 1801 200 00 10 per cent, on .<700 70 00 845 GO The Court held thc/unn'r to be tlie correct statement. Draper, C. J., in giving the judgment of the Cinu't, said (p. 429)* "The ([uestion is, if tlie t^n per CL.'nt. slrudd hj chirgjl on the gi-oss amount of arrears appearing (hie at e:ieh annual settlement, or only on the amount of taxes due for tlie several years. In other words, whetlier the amount on which tlie ten per cent, is to be calculated on 1st of May, 1802, is to include the ])recediug addition of ton per cent, made on 1st of May, 181)0 and 18G1, respectively. I tliink 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 arrcar and due uj)on the lands at the time the charge is made. In the present case tin lands were liable to satisfy a given sum on Ist of May, 1802, whicli sum inchided taxes for preceding years and ten per cent, jidtled thereto at the preceding 1st of May. To that sum, which constituted the whole amount due on the lands, the statute, as 1 reail it, directs that ten per cent, should be added." (ction ninety-live to section one hundr(>d and one of this Act, with respect to disti'csses made by col- lectors, (f) apparently altered })y the statute 13 & 14 Vic. cap. 67. (See IlaimU tmi I't (il V. Mrbomilil, 2'1 V. V. (). B, i:!(> ; McDoucU H at v. Mc- Doniilil, '1\ V. V. Q. B. 74 ; IIV<;/,n* v. McDiimiid, 12 {J.C. C. P. 4fl!).) In Alliiii y.Fl-ilx'}-, 13 r.l'.C. V. 70, Draper, C. J., said: "It appears to me inipoHsihle to hold that the collector's neglect to search for goods which with diligeiico he might have found, or to eny post, under the 4!st section can have that eH'ect." 'I'his was (juotcd a]i])roviugly hy the jjresent Chancellor in Tin- Bank at' 'J'oroiifo v. Fdinihui, 17 Orant, 517. In Stnoart v. Taij'jnrf, '22 U. C. C. P. '284, 288, Hagarty, C. J., said : "I am of opinion that if the land was assessed ami the taxes in fact unpaid, an omission hy tiie collector to levy the amount fro7n property which, hy due diligence, he might have found liahlo thereto, cannot, in the present state of the law, avoid the sale. It cannot be, in my judgniLnt, that tiie validity of the sale is to depend on the diligence or want of diligence in a collector in some prev'o'is year." In Allan y. Flxlicr, 13 U.C C. P. (53, it was, how- ever, luld that when tl e lot was occupied and the owner known, and full distress thereon, it was the duty of the assessor to enter the owner's name, and the name also of the known occupant. Instead of this, he entered the lot on the J'oll as land of a non-resident, with- out any name. The result was that during that year no otficer hut the Treasurer could receive the rates, and would be the only oilieer who could distrain, and the Court held the assessment for that j'car bad, and avoided the sale. Hav^'arty, C. J., in Sh-irarf v. Tiujuurt, 22 IJ. V. V. P. 28!>, referring to the decision f)n this point, said: "This decision M'as in 18)3, under (apparently) Hi Vic. cap. 182. The present case is very dillerent. The assessments for 18()."), IHOli and 18(57 are, I thiidv, regidar for reasons stated, in 18(58, the first year that distress is alleged to have been on the lot, Stewart was tho person assessed, and was on the resident roll, and returned as not collected on the absentee list. Therefore it seems to fall witiiiu the case ot Allan v. Flihcr, as being merely a case of neglect to search for distress or to notify the absent owner. The omission of duty ation, location ticket, certiticate of sale, or receipt for money [»-iid on such sale, has or has not been, or shall or shall not be issueilj and (ill case of sale or agreement ft)r sale by the Crown) whether any ])ayment has or has not been, or shall or shall not be made thereon, and whether any part of the purchase money is or is not overdue and unpaid ; ( /") but such ta.x.- ation shall not in any way affect the rights of Her Majesty in such lands. (;/) 1^8, Whenever a ])ortion of the tax on any land has been due foi- and in the thii'd 3'i!ar, or for mori; than three years preceding the current year, the Treasurer of the (Jounty shall, unless otherwise diiycted by a Ry-hiw of the County Council, submit to the Warden of such (Jounty a list in duplicate of all the lands liable, uiuh'r the provisions of this Act, to be sold for fcixes, with the amount of arrear.s against each lot s(^t opposite to the same, and the \Vard(Mi shall authenticate each of such lists by alHxing thereto the seal of the corporation and his signature, ami one of such lists shall his control. That control ceases as soon as, under the provisions of the 1 1 Itli and following sections of this Act, it becomes his iluty to take the steps preliminary to the amount of tlie arrears being placed upon the roll of the Township collector for the purpose of heing col- lected by him under Ivis ii.'l out of the property of the occupant. (Siii/der V. S/iihky, 21 U. C. C. P. 518, S'J'J.) {(1) Land vested in Her Majesty the Queen is, in general, exempt from taxation. (Sec. 9, sub. 1.) E5ut though not patented, if "sold or agreed to he sold," or "located as a free grant," the interest of the purchaser or looatee is Kable to taxation and sale. (Sec. 139.) (e) This was the date fixed by the Act 27 Vic. cap. 19, sec. 9, of 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, 1 1 U. C. C. P. 255. (g) See note I to sec. 139 of this Act. 12S.] SALE OF LANDS FOR TAXES. G35 bi> deposited with tlic (Mcik of tlic County, (//) Jitid tlii(ls in Con. Stat. l'. ( '. caj). ;")."), nvc. 1"J4, wort' : " Wluni'vcr a jiiiiiidii of the tax on any land ha.s he* n dnti Un- fiir i/car/i, or for such longer ]K'riod,' &c. 'I'lic statute authorizca a sale ni)on a con- tingency. '1 he taxes nuist he in arrear for the pei'iod mentioned befoie any legal sale can take ])laeo. A sale for arri'ars for a h.ss period than mentioned is tlie same as a sale where no taxes are in airear. All the jnoceedings are in such ease void. (FnVil \. I'l-uiid- ftiiif, 9 (irant, -ITS; Kdhi v. y (Irant, 478, which was decided luider that Act, the ai-rears of tax( s for non- iifiynient of which tiie land was sold wcri^ for tia^ yt ais liSr),'{-4-r)-(>-7. rile Treasurer's \\arriint for saK' was issued on t lie "J 'it h of l'\4iiu,iry, iHilS, and the sale took place on the l.Stii of .Iidy in the same year. Thiri' Were therefore live years' taxes due at the date of the warrant and of the sale. Ihit it was held that the taxes were iiot lUie for five ytavs within the meaning of the Act. Spragge, V. C., in giving judgment, said: "It is clear, from the sections to M'hich I have referred, tliat no taxes tor a year or part of ;i year are madi' payable until the collector's roll is placed in his hands, liccause until then there is no hand to receive them. Tins may he as late as the 1st day of Octo1)er. It is also clear that the year's taxes cannot he (hie in any sense until after the time for apjiealing from tho assessment roll jg expired, and tlu; Municipality has fixed tho rate which shall lie iDi])osed. This mast lie done, luuler the statute, heftn'c tlie 1st of .Xugust. It may l)e done hefore. It is (piite impossihle that it should he done so early in the year as the 'JMnl of Kehrnary, tlv date of this warrant; and taking the periods given for the diH'erent pro- ceedings, the latter part of July would he the more prohahle tmw. But it is saiil that a portiun of the year's tax is due after the 1st of January, and that (il/nr portions grow due from day toilay until tho whole is liuv., and that all the statute reipiiies is that a pur/ion shall he due for live years. J cannot accede to this view. . . . To apjdy my construction of the Act to this ease, the taxes for 18r).S — the earliest year of the arrear — were due and payahle, say, sometime betwcAi 1st of August .and 1st of Octoher in that year The 'iVea- surer's warrant was issued a little more than _/"')(»• //r^ir/w anil (i half after the earliest of these dates, and the sale took i)!ace irltldn live years; consecpiently the sale was premature." In Killi/ v. Miukhiii, 14 (irant, '2!), it was determined that there must he the full period of arrears due hefore the issue of the warrant to sell. In Ihll v. ^fc■ Lean, 18 U. C. C. P. 41(1, 428, Wihson, J., went further than the leained Chancellor, and s.aid: "I incline to think very strongly that the taxes of the preceding year, for the puri)oses of sale for arrears, are not to be considered as in arrear till after the expiry of the year 63r> THE MUNICIPAL MANUAL. [h. 128. Proviso fts arrears duo tlioroon, with liis costs: (/) Provichid nhviivs. to worrftiitrt .' » imiiod bfi- that wlion a warrant has Inizm ])hicf!(l in tlic hands of tiio foreJ,i.>. 1st yi„.,.i(}- ,„. ifii^rl, WaWW]', l)oforo tlio first diiy of JaunMrv. one tliousand fiLjht hundriul and sixty-siivcn, conmiandinL; hiin to colh'nt aiToars of tax(vs, he sliall prootuid with tlu^ ( HtH'tion thtircof und(>r tl»(! provisions of th(! A(!ts in forco hcfort; tho passing of this Act; and in every case in which sncli collection in \vlii<;li thuy ivrf> iinposeil. It is. (laly aftur tliat time tho Cnuiity Tivasurur has anytliiiii; to do with tliem. 'I'lio ii.scal year is uk' irly coi'ivspoinleut with thu calendar yuar in this rusjuiut, and the lur.- Cfi/.hi'j yj:ir's taxus are tlnne unpaid at tir.' i;n I of tliu year. J>y lixiny this (lelinitu time tho comiiutation is nia^lo easy for all jiarties, and there is nnlliing ineonsistent in holilini^ tint ta\es niaj' ho due to enal)Ie a distress or suit to l)o maintained for them at one period, an I tiiat tiioy may ho considered as due at another period for tlio purposes of a sale of the laml itself. Tiio Treasurer's hooks will certainly not show live years' arrears if any warrant for salt: he issued hy him, uidess the time Ix; eom[)uteil from the Mrst of the year after tlie i)rcccilin;^ year's taxes have lieen imjiosed." In /ii IJ v. J\IrLi'(in, the collector got his roll on tiie "Jiith of August, liS")2, and the County Treasurer issueJ his warrant on the llth August, I8,')7; so that according to tho decision in Ford v. Pmii'lfuut, and without going as far as suggestLid hy Mr. Justice Wilson, tho hve years had not expireil, and tiie sale was void. So in t'oinnr v. MrP/if'r'<'>ii, 18 Grant, 0!>7, where tho colloetoi'"s roll was not delivin'cd till after August, IS.'ili, and the Treasurer's warrant datt^d lOth .)uly, 18.">7, the sale, on tlie authoi'ity of the cases already nn^ntioned, was held invalid. When, owing to land heing j)atentod in July, taxes are charged thereon only for half a year, yet tiiis is iu oll'ect a taxation for the whole liseal year; and so long as the patent issues hefore tho asHussment is completed, taxes for tho whole of tlie year wlieiein such jiatont issues may he properly imjiosed, and the land sold therefor if unpaid. {Cu.'lcr v. Snlln'rhnrl, 18 II. ( '. C. I'. HoT. ) Besides rotlucing the period of arrears from live to throe years hefi>re the issue of tho warrant to sell, the Ljgislaturo, hy tho use ol the words *'/«;■ and in the third year," have endeavoured to avoid soiac of the dirticultios which presented themselves in the decided eases to which ' reforenco has heeu nuule. See further, sec. 18 of this Act, and notes thereto. ) (I) In //((// v. mil, "2 I<:r. & Ap, r)72, the late Chancellor Van^ koughnot said : " The Treasurer's warrant is the foundation of the Bul)se(iuoiit proceedings, irregularities in which, whore they have occurred in acts merely ministerial or executive, the Coiu'ts have gone a long way to excuse. ... I look upon the act of the Treasurer, in determining what lands are in arrear for taxes and liahle to sale, as a 7«((.st judicial act, and one which must he ])or- fornuid in accordance with the statute." So where tho statute re![uired the Treasurer, in his warrant, to distinguish between lauds patented and those under lease or license of occupation, tho warrant ' was hold to ho a nullity. (I [all v. Hill, 22 U. C. Q. B. 578; s. c. 2 Er. & Ap. 56;).) A description of the lands as "all pat^mtad " is, however, sufficient. (Brooke, v. Campbell, 12 Grant, 520. ) So where the words used were " all deeded." [Cook v, Jones, 17 Grant, 488.) Bfl. 129,130.] DUTIES OF TIIEASITIIKR. 637 is nui(l(! by salo of any Iiinds, tlic' Shorill' or IIij,'li IJuilift shall, in the event of the lands not being veileenuHl aceonling to law, eoniplote the Hiilo by ii deed of convtsyunce to the pui<'liaser. l^/c) l*J!>. The Council of a County, City or Town shall have Council m»y power to (>xt('iid the time tor the payment ot taxiis Ix'yond tor iiayimnt. the term (>f three years, by By-law passed for that purpose, (l) tlli}. It shall not be the ■• taxes, to aseertaui whether or not then; is any distr(>ss ujion runt to b«ii the land, [in) nor shall he be bound to iiKjuire into or forn\ any o|)inion of the value of the land; (a) and if any tax in The warrant hHouIiI show the iiarticular hind that is to be sold. (Tuwiiinid \. J'JI/iiif, lUlJ. C. (!. 1*. 'J 1 7.) A (ksfri|iti(in in thu warrant of a particular pieco of land as "I't. of s. pt. Ill, 1st Con. Tay. 4()acrt8, |12 ! ">," Wii.s not suliieitnt. (O'rdnt v. (n/mour, 'Jl U. i'. ('. I'. 18.) It W()\dv. sulliuient if tho identity of tin; pioci.' of land sold could beestal.lislicd. (MrDundl v. Mc'lhmtld, 24 IT. ('. Q. J'.. 74.) It mu.st 1)0 unilcr tiic seal as well as tlie si^'naturc of tho propel' otlicer, (Morijitii V. (Jticsiicl, iJO U. (J. y. 15. r).'{!l, ) 'and fouinlod on tho Trea- Burer's return, when a return was retjuired. {Doe Jicit v. llvninn.ore., 30. S. 'ZVA; .see also, Erriiiijton v. Ditmlilr, H V. ( '. C. I', ti").) A nnstako in rcpi'osentiny the taxes as due from 1st July, 18'J(l, to 1st .July, 1 28, in jilaoc of from 1st of January of these years, was iield not to hurt. [IhxSlnta v. Siiiith, !) U.C.Q. B. 058.) It was held, under tho pi ovisions of a i)articul;i,i' statute, that after a separation of Counties, the warrant slnndd go i the vSherill' of the junior (jounty to sell for arrears due l)oth (.'ountii^i. (J Joe Afoniitrt hn •11,'inaml rotloeiucil ill OIK! ynir aft(M* tlio saiil silo, (/>) Hutili salo and not rr.Jeom- tho olliiMiil filial and iiindini,' upon tlio fornuir ovvihth of tlif said lands, and upon all persons clainiin'^' hy, throiiijli or under th 'Ui, it • bnin.,' intcndi'd by this At^t that all ownr ; of land shall by roipiiiMid to piiy th" arniars of taxes due thenjoii within the period of three yo.irs, or rvli'Mu the same within one year aftjr the Treasurer's sale thereof (7) ration maile in this section to tho etfjut tliit tho 'rroivanror sliail not bu houiil ti) iu'piiro iiiti) tic form (iti;i (i/iiiiimi of tho valuo of tliu laud, Wdfj so iiuiilo l)oo:iusj of th 3 ilccisioii in If'.iiri/ v. Banicnii. (0) See note h t) soc. 128 of this Act. (p) See see. 1 iS of tills Act, and notes tliereto. (7) In CuUi'r V. Sutlicrldiil, 18 U. 0. ( !. 1'. .T)?, Wilson, J., said, at p. 390: " We siiouM reijuire ati'iet [iroof tliat tiie tax lias been lawfully made; but in |)roiii:)ting iti e.illceti.ai we sli aiM not sui'i' lund the pro- ceihirewitli too unnoecssai'y o.- uurea ;oiial>ie rig air. WcshouM see that the law is hotustly ami fairly eari'ir.l out, ami that no iiijusticie is done to the own a- or tlie i)u')lie, an I tliat the oiainis of pureli iscrs are properly maintained. A sulistantial rath'.T tlian a literal eoni- plianeu with tiu provisions of the statute will nioie e(iually, and quite fairly protect all parties." This language was (juoted with approhation by (Jliief .fustiej Uiehards wlien delivering the judg- ment of the mijorityof the.Judg.;s of tlu CJourt of Ijrror an I Ajipeal in 6'(j;i« >r V. Doiijltm, M tJrant, l").»-b>t. In Paijii''. v. (JoiMlifur, 2'6 U. (I. (l- B. 4t-j-t")l, D/apjr, C-\., in delivering the judgment of the Court, said: " rii ; pi'iin iry, itmiy he said the soL, objeet of the Legislature in autliori/.ing the sale of lands for arrears of taxes was the eoUeebion of tli3 tix. I'iie statutes were not passed to take away Ian Is from their legal owners, but to compel tliose owners wlio negleetel t> i)ay thjir tixes, and from whom payment could not be enforced by tlu otlur methods autliori/od, to p:iy by a Bale of a suMLieut portion of tluir lands." la Cook v. Juiuti, 17 Grant, 48!), tiie ])resjnt Dhmc.dlor said: "The language of Chief Justice Draper in a previous ca^e (P-i;/n': v. Gwidiicar, 2ti IJ. C. Q. B. 451,) states accurately, as t tiiiiik, th ; purpose and character of these statutes. — (He then quotjil the langai^e of the Chief Justice as above, and proceeded.) — This is the language of a learned Judge less disposed than some other J u Ig j 1 of the Courts, and less disijoscd than the majority of the Ci.irt in Ooit/i:}/' v. D )ii,ilass, to hold tax Bales not vitiated by irregularities. L think that Mr. Justice Wilson, in Cotter v. Sutherland, takes a just view of the objects and nature of these statutes." The section here annotatjl declares that tho sale and the official deed to the purchaser of any of such lauds (provided t/ie sale shall be 8. 130.] HAL''- OF LANDS FDIl TAXKg. 039 opcnlij iitnl /iiirf'i rnii'/iirtrif) sliall Ik; final ami Lliuliiig, \r bi'liliM's til liuy iiir LMiili otliir ill - I'll ii siilc, iviiil h>i to oniiiliiiii^ to prevent a f.iir coiiipititiDM, is ille, i Sueli eundiiet in ng.viint tlit) policy of the law, aH tlio law regaidn auction Hales as a jii«t ami opi'U tuetliod of Hciliii)/ property for tlie Lest (irice. It in alMo aj^ainst tlio policy of tile iiH.-ie.sHnient \a'\A, wliicli appear to liav*- Leen fianied witli iMi anxious iltHire that «iieii laml is necessarily sold for taxes, aH small a ijiiantity as pnssilile should he sold. \Vlu;r»! competition IH hou;.,dit oil oi' silenced, it is a misap|ilie:ilion of terms to call a inirehasc, under siii'h ciiciinistaiiccs, a [turchasu at auction. If tho i'rcasuiei', when Hidiiiii^ lands for taxes, aces tiiat competition tho essential clenK^it of an auction sale - ist virtually put down, it is hid duty to adjourn the sale. Tlie course proper for tho 'rrea^urer, under such eireumstancis, may he attended witii ililliciiUy ; hut tho law has a right to look for the exorcise of smiiid jiidj^inent, lii'inntiss ami discretion, as well as firmness in tlio oxecution of siudi duties. {Per S|iragt,'e, V. (!., in lliiirji v. JJitnic.'if, fS(;raiit, .S."i7.) Whcro one of tin; Siieriirs ollioors conducted the sah', at which ho knocked down, without any cmnpetition, to another ollicor of tho Sherill', a lot of I.uid wortii aliout CAM for loss tiian t7 lOs., the sale waa declari'il void. [MusH'mijhi rd v. Mi»ilii tJraiit, !>"J ; s. o. H l'. ('. L. .1, '274.) Where a lot was jiut up for sale on tho lOth of .\i)ril, when an intendiii:,' iturciiascr oll'ercd to take -!> acres ami jiay tho taxes, i)iit afterwards refused to carry out the purchaso, and iu tho July following, at an adjourned sale, tho same person purchased tho 200 acres f14.) In such a case the remedy of tho owner seoma to he to lilo a hill in ( haneery. (liinjinH v. t'niinlcr, 14 U. ( '. ( '. I', III; MrA,lU' V. Vurhij, \\{) IJ. C. t^. B. \m.) Tho section oonoludes with the declar.ation of policy on tho jiart of the iiOgislature, in theso words: " It heitig intended l>ij thin Act that all owners of lanil .shall be i-c'/iiircd to jitif/ the (irndr.'i of Uixcs due thereon within tho period of three years, or redeem tho saijio within ono year after tho Trea- surer's sale thereof." If the land sold were not, at the time of sale, •uhject to assessment and sale for taxes. (Doe Bell v. Jietiuinore, 5 ( ►. S. 4:^3; Street v. Kent, 1 1 U.C.t^. P. LT)'). ) Or, if at any time hoforo sale the taxes bo paid, tho aalo would ho invalid. [Howe et ujc. v. Th<,mi,son, M. T. G Vic. MS>S., U. & H. I>ig., Taxes, 11; lh>e liell V, /.'((/(/ «/on,;U).S. 24,S; iMi/ersv. Brown, 17 t'.C.C. V. \M)1.) Huttlio payment to ho eU'eotive must he, as against tho tax deed, proved to have been niado to some ollicor entitled to receive it at tlio tinio whiai paid, (')oe d. Sherwood et at v. Muttheson, 9 L'. ( '. t^. li. 321; JarriH v. Caijley, 11 U. C. Q. B. 282; Jarim v. Brooke, 11 U. ('. Q. B. 299,) and bo proved beyond roasonablo douljt. (Mac- (lonald V. Howe, 9 U. ('. C. 1'. 70.) If voluntarily paid, tho money cannot bo recovered back. (Austin v. S'uncoe, 22 U. C (I. B. 73; see also, Street v. Simcoe, 12 IJ. (1 C. P. 2S4; s. o. 2 Kr. & Ap. 211.) In Yokhani v. Hall, li) Cirant, 33.'), tho late (/haucoUor hehl a tax sale for more than was duo not to bo tinal and buiding under 27 Vic. oaj). 19, sec. 4, from which this section was taken. But this decision Was not very cordially approved of in Edin. Llj'tAnsur. Co. v. Ferijuaon, ?2 U. C;. Q. B. 208, where Wilson, J., said : "1 do not see why the mere adding together of the two rates, and treating them as a single charge 640 THE MUNICIPAL MANUAL. [b. 131. What Innds only tlio treasurer nhall Bell, 131 • The Treasurer shall not sell any lands which have not been included in the lists furnished by him to the chsrka of the several Munici|ialities in the month of February pro- ceding the sale, (717) nor any of the lands which have been returned to him as beinir occupied under the provisions of the one hundred and fourteenth section of this Act, (r) except the lands, the arrears for which had been j)lacod on on the v/hole lot, the sum on each half being exactly alike, and selling a part of the whoio lot as for the one rate, so long as the two half lots are owned by the some person, should . . . defeat the sale openly and fairly conductud," C e. It is competent, where the sale is openly and fairly conducted, to sell the whole lot for taxes. {Cotter V. Sutherland, 18 U. V. C. i'. 'i~)l. ) The Court will not, in such a case, presume against a sale on the supposition that too much land was sold for a small amount. (//).) Sales made after the return day of the writ to sell, are valid. (Ih. ) So where the sale has been openly and fairly conducted, it will be considered linal, although it be shown that the land, though assessed as unoccupied, was occupied. (Hank of Toronto v. Fannimj, 18 rant, 81)1. ) It is opposed to the policy of the law as recognized by the Court of (!hancery that an oHicer having such important powers and duties with reference to the sale of land for taxes as the Treasurer, should himself be allowed to become a pur- chaser at such a sale. (/« re Cameron, 14(i!rant, 012.) ButtheCcmrt of Connnon I'leas 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. Taijfjarf, 22 U. C. C. P. 284.) Thia would not, at all events, avail in Equity, where the person omitting to pay taxes ia the tenant for life, designing to acquire the reversion through his own wrong, (iitia Munro V. Ihuld, 'JO (i rant, 55. ) H is now held, not- withstanding what is said to the contrary in Ford v. Prondfoot, 9 Grant, 478, that the corporaticm of the local Municipality is not a necessary party *o a bill impeaching a tax sale. ( Black v. Harring- ton, 12 Grant 175; MilLs v. McKai/, 14 (bant, W2.) One Tripp, being owner of certain land, executed a marriage settlement under which his wife was entitled to the land for her lite. The taxes after- wards fell in arrear, and the land was sold by the Sheriff to pay them. By arrangement with the purchasers, Trii)p's widow became entitled ., their interests in the property. She sold to the defendant. In a i'lit by the assignee of Tripp's heirs to set aside this sale, defendant claimed to be a purchaser for value, without notice. The same BoUeitor acted for vendor an 1 vendee. This solicitor knew then, and befoi <:, that Trii)p had been the owner, and that he had executed a marriage settlement under which the wife was tenant for life only; but he did not know or suspect she was bound to jjay 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 not affected by constructive notice of the liability. (Munro v. Rudd, 20 Grant, 55.) (qq) See note g to sec. 110 of this Act. (r) See note t» to sec. 114 of this Act. B. 132.] ADVEETISEMENTS. 641 the collection roll of the preceding year and again returned unpaid and still in arrears, in consequence of insufficient distress being found on the lands, (s) 13*/J. The County Treasurer shall (t) prepare a copy of [j.'j'.""y^^,^ ^^ the list of lands to be sold, required by section one hundred prcparp ii«t and twenty-eight of this Act, and shall include therein, in a ^',^ il^soUi, separate column, a statement of the proportion of costs .itkI huvit- rhargeable on each lot for advertising, and for the commis- "Gazette." sions authorized by this Act to be paid to him, distinguishing lands as patented, uir.atented, or under lease or license of occuf)ation from the Crown, and shall cause such list to be published four weeks in the Ontario Gazette, and once a (») See note d to sec. 1 16 of this Act. (t) The duties of the County Treasure^, under this section, are the ft)llowing : 1 . To prepare a copy of the list of lands to be sold, required by sec, 128 of this Act. 2. To include therein, in a separate column, a statement of the proportion of costs chargeable on each lot for advertising, and for the commissions authorized by this Act to be paid him, distinguishing lands as patented, unpatented, or under lease from the Crown. 3. To cause such list to be published four weeks in the Ontario Gazette, and once a week for thirteen weeks in some news- paper published within the County, and in the case of a union of Counties, in each County of "the union, if there be 9ne published in each County, and if not in such County or Counties in the union in which a newspaper is publishecl, or if none is so published, in some other newspaper published in some adjoining County. It was, under the 13 & 14 Vic. cap. 67, held thiit the omission of the Sheriff to advertise did not affect the validity of a sale for taxes, but should be treated merely as a direction of the statute which the officer was bound to observe at his peril. {Jarris v. Caijlri/, 11 U. C. Q. B. 282; Jarvis y. Brooke, 1 1 U. C. Q. B. 299. ) Such is now unquestionably the law in the case of a sale by a Sheriff under writ of execution. (Patersoji v. Todd, 24 U. C. Q. B. 296.) But in a case decided under the 16 Vic. cap. 182, it was held tliat an adver- tisement in a local paper was equally necessary with an advertise- ment in the official Gazette, and for want of it tlie sale was held invabd. (Williams v. Taylor, 13 U. C. C. P. 219.) ^nd in a case decided under Con. Ltat. U. C. cap. 55, the Court of Queen's Bench, in referring to Williams v. Taylor, said, "If it were necessary for the decision of this r-ise, we should, as at present advised, arrive at the same conclusior ' (/Tall v. Hill, 22 U. C. Q. B. 584.) But such an irregularity was held not to void the sale in Cotter v. Sutherland, 18 U. C. C. P. 367, and afterwards in Connor v. J)ouglass, 15 (Jrant, 466, by the Court of Appeal. The law is now settled according to the decision of the Court of Appeal. (McLauchlin v. Pyper, 29 U. C. portion of the had accrued on ncnt. [III.) «•> assesseil sepa- lalf lot, which 'od against the [ibinedamouTits, », 14U.C.C.P. ll'.. 91; Blacky. \U Grunt, 534.) ji halves. The lid it continued In 18r)8 and oxt three years 35 acres, and js and the west ion of $330 on Jo. V. Ferguson ere sold for the S. 138, sub. 2.] LANDS NOT KEALIZING AMOUNT DUE, 645 first ; (d) aiul in olFering such lauds for sale it sluill not be necessary to describe particularly the portion of the lot which sliall be sold, but it shall be suilicient to say that lie will sell so nuich of the lot as shall be necessary to secure the payment of the taxes elue ; (< ) and the amount of taxes stated in the Treasurer's advertisement shall, in all cases, be held to be the correct amount due. (_/") (2.) If the Treasurer fails at such sale to sell any land for wIkh lami the. full amount of arrears of ta.xes duo, he shall, at siu;h i,','i!^f„n' .sale, adjourn the same until a day then to be publicly '""""'"' "^ named by him, not earlier than oiu* week nor later than [three months] tlujreafter, (;/) of which iidjoui-ned sale he taxes due fr six years, incliuling 1858, which was not covered by the warrant nmler which tlio ,'}.") acres were sold for that year. Held, that the sale was bail. (/!>.) After a sale foi- taxes for 185!) and f(dlowiug years, a .subsciiuent salt; *or taxc^ for 1S,")8 was held invalid. {Afills v. McKn;/, 15 ({rant, 1!)2. ) W'liere a warrant con- tained two dirt'erent entries of tlie same lot for taxes due in two successive years, and the Sheriff at one sale sold for one year's taxes and at a suhsenuciit adjourned sale soM t!ie same lot for tlie second year's taxes, l)otli sales were held void. {Sr/Ktc/'cr d ii.r. v. Linx/n, 20 U. 0. C. P. 487; see further, note q to sec. 130 of this Act.) (d) See note q to sec. 130. (e) In Kimijiist v. Li'difnrd, 12 Grant, '.V2'2, Mowat, V. G. said : "I nnist presume that the intention of the Ijcgislaturc was, tliat a sherili' should let bidders know what i»art he is selling and they are buying. This is tlic reasonable course. And I lind in tlie statute no trace whatever of an opjxtsito course having been contemplated." This case was atlirmed on appeal. (.32 IJ. G. Q. P>. 270, iintc) Now, by the statute, an opposite course is not only eontem])latcd, Init expressly authorized. Kittcjiji v. J.cdjianl was decided before this aniendmeiit on the statute. Since tlie statute, the obj(!ction was renewed, but Hagarty, G. J., in Stewart v. Tai/ijart, 22 U. (!. G. P. 2y0, said: "As to the objection that at the sale no particular 89 acres was sold, it is cured by the statute l8()8-9, sec. 11^8. " (/)• An extract from the T'reasurer's 1)ook showing the amount of taxes imposed, was held not to be suliieient evidence of the fact in an action of ejectment by a pei'stm claiming under a tax title. (Miinro V. (irei/, 12 U. G. Q. 15. 047 ; see /fall v. /////, 22 L:^. G. Q. B. 578; s. c. 2 Er. & Ap. 509.) (;/) Umler certain circumstances, the Slierift' //(((//adjourn a sale. (See note/(tosec. 130 of this Act.) But under the eireumstanees iiere stated, he .y/iall adjourn; that is, where he fails to sell an;/ land for the full amount of the arrears of taxes due. Where a person attended a tax sale and oti'ercd to take i,'venty-nine acres of the lot and pay the full amount of taxes and expenses, and he was declared tiie highest bidder, but failed to pay tiie amount, and at an adjourned sale had the .vhole lot knocked down for the same amount, the sale was held to be void. (Toud V. Werri/ el al, ir^U.C. ii. li. iili.) But the better ophiion appears, to bo that, in such a case, the legal estate, after a i- 646 THE MUNICIPAL MANUAL. [S. 139. When trea- surer sells land, the fee of which is in crown, he shiiU only Sell the in- terest of lessee, &c. shall give notice by public advertisement in the local news- paper or in one of the local papers in which the original sale was advertised, (h) and on snch day he shall sell sncli lands, unless otherwise directed by the local Municipality in which they are situate, for any sum he can realize, and shall accept such sum as full i)aynient of such arrears of taxes ;(t) but the owner of any land so sold shall not be at liberty to redeem the same except upon payment to the County Trea- surer of the full amount of taxes due, together with the expenses of sale ; (k) and the Treasurer shall account to the local Munii'iiidity for the full auiount of taxes that shall be paid (i; . c. 27, s. 8.) 1^9, ^ reasurer sells any interest in land of which the fee is in the Crown, he shall only sell the uiterest therein of the I'^s.a;'^, licensi^o or locatee, and it shall be so distinctly expressed in 1. ■ coi,. ^.xnoo to be made by the Treasurer and Warden; and suoii con\'( yanceshall give the purchaser the same rights in respect of the land as the original lessee, licensee or locatee enjoyed, (/) and shall be valid, without reqidring the assent of the Commissioner of Crown Lands. deed has been executed by the Sheriff, passes, and the sale can only be voided in Ecjuity. (Rdyiici^ ct it.c v. Croicder (4 ux, 14 U. C. (!. P. Ill ; MrJdie v. C'orbi/, 30'U. C. Q. B. 34!>.) If the inucluiscr fail immediately to pay the purchase money, it is the duty of the Trca- sunr fovtliwitli again to put up tlie property for sale. (Sec. 140.) It would seem that the Sheriii' may sue a purchaser for the amount of taxes, but in such an action it should be expressly averred that the defendant promised to pay for the land and accept a certilicate within a reasonable time. (Jarrin v. Cdi/lfi/, 11 U. C. Q. B. 282; but see 3Iini(/ai/i' v. Vurlntf, 14 U. C. C. V. 557.) (/() The sale will not be lichl invalid because of a defective notice of sale. (See note t to sec. 1 32 of tliis Act. ) (i) The power to sell at the lirst sale is only for the full amount of taxes. But at the atljourncd sale the Treasurer may sell "for any sum he can realize." Neither tlie Treasurer nor the Corporation is resjjonsiblc for the title of the land sold. {Auntiii v. Simcve, 22 U.C. Q.B.73.) (k) See sec. 148 of this Act. (?) Land vested in the Queen is exempt from taxation. (Sec 9. sub. 1.) But where land is leased, sold or agreed to be sold by the Crown, or located as a free grant, tlie interest of the purchaser or locatee is liable to taxation. (Sec. 127.) Being liable to taxation, it is liable to" sale, but the sale of course only passes the rights in resj)ect 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 person claiming under him, (Ryckman v. Van Voltcnbunjh, 6 U. (1 C. P. 385; Charles v. Dalmage, 14 U. C. Q. B. 585.) 8S. 140-142.] EFFECT OF TREASURER'S CERTIFICATE. 647 fective notice 140. If the purchaser of any parcel of laud fails imme- ^cnpur- , 1 rii 1 PI 1 cliascr falls diately to pay to tlie Ireasurer the amount ot the purcliaso to jiay money, tlie Treasurer shall forthwith again put up the pro- }u"ue!^'' perty for sale, (m) 141, The Treasurer, after selling any land for taxes, shall TrcaHurer give a certificate under his hand to the purchaser, stating (n) gho jmr" distinctly what part of the land, and what interest therein, '■.';,i'«i'r a '-tr- 1 11 / V • 1 1 1 1 1 tilicatc of have been so sold, (o) or stating that the whole lot or estate laud sold, has been so sold, and describing the same, and also stating the quantity of laud, (p) the sum for which it has been sold, and the expenses of sale, («/) and further, stating that a deed conveying the same to the purchaser or his assigns, according to the nature of the estate or interest sold, with reftn-ence to the one hundred and thirty-eighth and one hundred and thirty-ninth 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 certi- ficate, if the land be not previously redeemed, (r) 14S. The purchaser shall, on the receipt of the Ti-easurer's certificate of sale, become the owner of tii landj so far as to have all necessary rights of action and po ";n's for protecting the same from spoliation or waste, initil olio exi)iration of the term during which the land may be redeemed; but he shall not knowingly i)ermit any person to cut timber growing upon the land, or otherwise injure the land, nor shall he do so himself, but he may use the land without (m) See note g to sec. 138 of this Act. (w) The certificate must — 1. State whether the whole or part, and if part, what part of the land has been sokl. 2. State what interest therein has been sold. 3. Describe the land sohl. 4. State the quantity sold. 5. State the sum for which it was sold. 6. State the expenses of sale, including commission. (See sec. 145.) 7. State that a deed conveying the same to the purchaser or his assigns will be executed on denaand at any time after the expiration of one year from date, if land not previously redeemed. (See sec. 149. ) (o) See sec. 139 of this Act. ip) See note a to sec. 14G of this Act. iq) See note i to sec. 138 of this Act. (r) See sec. 148 of this Act. .,> . ■ • , Purchaser of landn siold for taxes to bu (Ipt'iiied owner there- of, for cer- tain imr- poscs, on reeei))t of treasurer's certificate. 643 THE MUNICIPAL MANUAL. [fiS. 143, 144. I'rovigo. detoriorating its value : (s) Provided that the pureliaser shall not bo liaV)lo for damage done without liis knowledge to the property during tlie time tlie certificate is in force. Srof J-*'^* ^''^"^^"^ *'"' *""" ^^''^ tender to the Treasurer of the nrroarH, &c. full amouut of redemption money recjuired l)y this Act, the said [)urchaser shall cease to have any furtlier right in or to the land in question, (t) 144, Every Treasurer shall bo entitled to two and one- half per centum commission upon the sums collected by him as aforesaid, (k) Treasurer's uoDimisgiou. (») The certificate confers, as it were, a ([ualilied ownership on the purchaser. He becomes the owner so far as to have .all necessary rights of action and powers for protecting the land from spoliation and Avastc. He is not knowingly to j)erniit any person to cut tinil)er growing npon the land ; nor can he himself cut timber on the land, or otherwise 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 doul)t he 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 I'csponsible for damage done without his knowledge. Under such a certificate the purchaser is entitled to the possession of the land sold, and being in possession he can avail himself of the certificate as a defence to an action of ejectment l)y the o-wuer of the land. (Vofhr v. SiUhcrhuul, 18 U. C. C. P. 357. ) So it would seem that under such a certilieate he may maintain ejectment against anj' one in jiossession under the former owner. (J h.) In McLaw'hlan v. Pupc); 29 U. V. Q. B. fi'iH, Wilson, J., said: "After the time for redemption has gone ])y, the certificate still continues in force, and the owner has lost his i)ower to redeem. 15etween that time and the giving of the deed to the ])ui'clia9er, could the purchaser take possessi(m of the land or eject the former owner by authority of the certificate, or defend his ])ossession against an action by a former owner? I think he could. Yet there is no greater right given to him l)y the statute to do any of these acts luider the cer- tificate, after the time for redemption has gone by, than while it is continuing. If the purchaser were to enter on a vacant lot for the purpose of using the laud without deteriorating its v;dae, could the owner, while ho hail 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 ttsa.'i j'nic/us, as distinguished from the_/idei coiumisnuin, or what is technically called a use as allied with trusts. (2 Bl. Com. 327. ) So it is like that kind of use of land for which an action for use and occupation will lie." (t) The rights of the purcliaser 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 reipiired by this Act," but no provision is made for communicating the fact of such tender to the purchaser. (u) The commission is "a lawful charge," within the meaning of sec. 138, so as to entitle the Treasurer to sell for it as well as the taxes in arrear. (Sec sec. 145 of this Act.) SS. 145, 14G.] DKSCUIPTIOX OF LANDS SOLD. 649 145. Wlufuovor liiiul i.s sold by u Tr(>;\sm'(>r, aceonliii'' to F"'/", *<;. , on the provisions oi the oiio JiuudriHl uiid thirty-second uiul foUov/inj,' seetious of this Act; he iniiy add the coiiiniission and costs wliich ho is liorebv aiithorizeel to diarize for the services above mentioned to the anionnt of arrears on those landfi ill I'espect of which such services have been severally perforniod, (v) and in every case lie shall <,dv(! a .statement in detail with each certitieate of sale, of the arrears and costs inciirrcid. (tr) 14:0. The Treasurer shall, in all certificates and deeds f ,7^''.'"'.''* "^ given for land sold at such sale, give a ihsscription of the iv|,'istnir's' part sold witli sutHcient certainly; and if less than a whole Ii|!s,.',.i',',t'iy„ lot, then by such a general (lescri|)tion as may enal)le a sur- if. veyor to lay oti' the piece sold on the ground, (ri) and he may {r) The commission is in the nature of pnuiidagc, to he levied over .and .aljove the amount of taxes, ami tlie Treasurer is only entitled to it when he has made the money. (Sec linrhanan v. Frank, la U. C. C. P. 19(5; s. e. 1 U. t!. L. J. N. S. 124.) (m') See note n to sec. 141 of this Act. ((f) Tlic method pi-oserilted by (> (Jeo. IV., cap. 7, sec. 13, was, to begin at the front angle of the lot on tliat side ulience the lots are numbered, .ind measure backwai'ds, taking a jji-oportioii of the width, corresponding in quantity witli tlie ]iroportinn of tlie particular Xat in regard to its length and l)readtli, according to tiie (|uaiitity required to make tiie sun\ demanded. A deed thereunder of "tliirty acres of lot, &c., to be measured according to tlie statute," was held to contain a sutHcient descri2)tion. {Fra-icr v. Mttttln' ct nl, 1 !) I*. ( '. i). B. 150; see also, Mrfiifi/rc v. (imif Wr.ffmi liiuhraii Co., 17 V. C. (.). K 118.) But a description as " twenty-live acres of lot," &c., witliout more, was lield insutiicient. {('(ti/li'i/ t-t al v. Fos/rr, '25 IT. V. (). B. 405, ) So wliere the deed under the G s or emobum^nts whatever for any services rendered by him X'olatin;.^ to the collection of arrears of taxes on lands, (c) 148, The owner of any land which may hereafter be sold for non-payment of arrears of taxes, or his heirs, executors, administrators or assigns, or any other person, (il) may at Lcdi/iird); but I have since, in tho dase of Ihothx. Oirdwood, .S2IT. 0. Q. \^. expressed my opinion that the judgment I then gave was not tlic one which 1 ought to have given, for that the west part of tiie south lialf of a lot containing (55 acres, is a defined portion of huitl, namely, the west (io acres of a i)avticular hlock of KM) acres." " West lialf " of the lot has been held good and sufKcient. {liill v. Mcl.cait., 18 U. C. C. 1*. 41G, 419.) So "tho N. or W. ^ 14," in a list under sec. 110 of this Act. {Sfcmirt v. Tuipjart, 22 U. C. C. P. 284.) Tiiis section recpiires "a description of the part sohl xcith xiiffKicnt rcrtnintii." This in tlit) same section is dolined as being "such '( iji'ncral i/'-irrip- tioii as may enable a, .Httrrci/or tu luji off th" juvcc sold on tif j/>'(niiiil." \ description by metes, hounds and courses, liaving relation to the boundaries and ccmrses of tlio original lot, wouhl l>c the best descrip- tion. It would bo prudent for the Treasurer in all cases, before making his deed, to obtain a surveyor's description of the piece sohl. This, no doubt, would be sufficient to enable the same, if not any surveyor, to lay it oil" on the ground. Such a description could be made out by an examination of the boundaries of the whole lot, and the examination, if necessary, of tho Registry Office. The Govern- ment maps may be examined where a full description cannot other- wise be obtained. Allowance is made by the section for a surveyor's fee, not to exceed .91, to be included in the Treasurer's account, and paid by the purchaser. (6) See sec. 147 of this Act. (c) It is a general principle that every fee to a public officer must have a legal origin {A.'ikin v. The London DMrict Council, I U. 0. Q. B. 292); and where a statute allows certain specitied fees to a public officer, none others are in general allowed. (See ffooker et al V. OurneU, 16 U. 0. Q. B. 180; In re Davidson and Waterloo, 22 U. C. Q. B. 405 ; see further, note t to sec. 219 of the Municipal Institutions Act. ) (d) The right to redeem is given to the owner of the land or his heirs, executors or administrators, or to any other person, whether 148.] RKDEMPTION OF LANDS. 651 any tiino witliin one y<'i>r from tlio diiy of salo, oxclusivc of that (liiy. ((') nMlcciii tlic »'stat«! sold ]»y l»ayiii;( or trmlfiiiig to tlio County Trc^asuror, {/) for tli(\ use and Ixiiclit of the claiming titlo or not. Such was the law heforo the passing of this Act- {Uoidton V. R>itlan,20. S. 3(L'; illlrhrU v. Tolnn, 7 U. V. V. V. 141.) ((') The tiiiu! for rcil(^Tn]>ti(ni is "any tinu; witliin ont' yt-ar from the day of sale, exclusive nf that day. " Wiierc; tlie sale tonk jilaec on the 7tli of ( )etol)er, IHK), paynient of the ledeinption money on the 8th of Octohcr, IS-H, was held too la* (I'l-ouilfool v. ISiik'Ii, 12 U. C. C. \\ ")2.) But payment on the Tin of Octohur, 1841, woidd have hecn sufficient. (//*.) (,/•) In .l//(0( V. l[y the jmrchaser was i?;!! T)!. In .fanuary, ]8(»l, the owner of tin; land applied to the Treasurer to know the amount of taxes then due on the lot, and wa.s told fi'M 48 for the years 18.")") to 18()() inclusive. This was paid, and a receipt was taken for the taxes for those years. The Treasurer, in March, I8()l, went to the Sheriffs oMice, and caused an entry to be made in the hook of sales, o])posite to tin; lot, that the taxes had been paid within two months after the sale, that he would pay the purchaser the redenii)tion money, and that no deed was to be given. The ])urehaser was afterwards, and before any deed was giver., told what had been done. IJut for sonui unex- plained reason, a deed was, notwithstanding, given. Tleld, iuv;did. In I'lii/iic V. (rij<)aid and thi^ ohjtH'tot' payimMit ; and Huch rocuiitt shall ho ovidouco of th(! roiluinptit)ii. (A) 141?. If tlm land be not redeomod within thn poriod so allowed for its redemption, hein<( one year exclusive of tlio day of sal(^ as aforesaid, (/) then, on the demand of the pur- chaser or liis assii^nis or other le^'al re[)reseiitative, at any time, afterwards, and on j)aynient of one dollar, (/ ) the ally, and he accopts it, tho payuiout is in e(puty an efll'octual to save the pi'()])urty as piiyinint to tlio Truaaurcr would ha\u liccn. {Came- ran v. liiinihnrt, lldraut, (Kil.) So if tlu! voiidoc vorlMlIy agrees to accept piiynicnt pcrsoaally at a diatauce from the County Town, in lieu of its l)ein.i; made to the 'rrea;ultun\. York- and I'cl, LV) IJ. C. Q. B. 21), and all rights of tlie ]iureh;iscr in regard to the land cease from the time tlie money is ])aid or tendered to tlie 'J'reasurer. (See. 14H.) Where tlie purchaser, after the time f(n' redemption is jiast, succeeds in etjuity in having tho sale avoided, he will \h'. made to do ecpiity and pay the pinvhasc money and ten per cent, thereon. (Ma.t.itnf Ifnriii) and [J. ( '. (.). B. I cease from See. 143.) ist, succeeds o do e(iuity ( Mdf.iiiiij- icrwi.sc, the are, ' ' xurh (.Sec Sinilh ncnt of one icccute (with sold. If he e suit of the r. Slarwood, ic deed may [ shall have [inded by au S. 433.) Troiisiiror shall proparo and (>xeriit»> with tli(! Warden, nml deliver to him or thern, a deed in duj)Ii«'ate of the land sold, in which (/) ileed any nnnil)er of lots m.ay he inclniled at tho rofjuest of Ihr pni'chaser, or any assiynoo of the pureliasc^r. (//t) 150, Such dee(l shall he in the f(»rni or to tlu* .same •'"i'i1' \11 doserihe the land ^•"■"*'' accordii)',' to the provisions of section oi. > hnn(h'ed juid foi-ty- si.x of this Act ; {jt) and shall lia\»i the el'"'ct of v(>slinL,' the hind in the purchaser or his heirs and a.ssigns or other luii^al re[)resentative.H, in fee simple or otlajrwiso, according to tlie (I) Tho Btatuto G (ieo. IV. cap. 7, which authorized tho sale of lands for taxes, by see. 18 directed that if the land he not redceiucd witliin twelve months from the timo of .sale, then the .Sherili/(jr Iht time Iniiiij shall, on demand of the purchaser, execute a tniiveyanco, &c. 'i'lic expression, "for the time hcing," i.s not used i this Act, anil the ((uestion was raitsed, hut not dcternuned, as to the rigiit of the Sheriir when out of ofhce to execute such a deed. {McMllliiii v. Mchonnlil, '.T. IJ. C. (I B. 454.) In lirnant v. //;//, 23 U. i). Q. H. 9G, where lands were sold under the (» (ico. IV. cap. 7, hut no deed made until after that Act was repealed, it was held that tho deed was invalid, as no provision hay reason of the statute under the authority whereof such sale was made having been repealed at and before the time of tho conveyance, or hy reason of the Sheriti' who made tho sale having gone out of olfice. (33 Vic. cap. 23, sec. /), Out.) Tho words "Treasurer" and "W^arden," as used in the section here annotated, mean the persons who at the time of tho execution of the deed may hold such otKces. (37 Vic. cap. 19, sec. 7, Out.) {m) Unless the purchaser or his assignee otherwise rerpiest or direct, tho Treasurer may execute a deed for each separate parcel of land sold, and for each such deed charge the sum of one dollar. (n) Whenever the Legislature provides a form of p fl">cd or other conveyance, that form should be as nearly as possih'o followed. (See note h to section 238 of tho Municipal Institutions Act. (o) In this section, as originally passed, there wa.s a mistaken reference to the schedule B, instead of schedule 0. The correction was made by stat. 34 Vic. cap. 28, sec. 4 (Ont. ). .. {p) The deed must «tast sold, the lot or tract of which the same forms part, anil the date of the Sherifi''s conveyance to the pur- chasei', his heirs, executors, administrators or assigns, (m) and on production of the conveyance from the Slioritf to the purchaser, his heirs, executors, administrators or assigns, such Registrar shall register any Sheriff's deed of land sold for taxes before the first day of January, one thousand eight hundred and fifty-one, and tlie mode of such registry shall be the entering on record a transcript of tuch deed of con- veyance, (v) 15S. As respects land sold for taxes since the first day of January, one thousand eight hundred and fifty-one, and prior to tho 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 execu<"iv;n of tho deed, containing the particulars in the last section mentioned; (lo) and such certificate, for the purpose of registration in the Registry Office of the proper County of any deed of lands sold for taxes since the first of January, one thousand eight On what ccr- tidcateregis- tiar.s of cuuiitios to register slieiitr's iluods of lands sold for taxes be- fore 18S1. The sheriff to liave cer- titluate of execution of conveyances since Jan. 1st, 1851, for rugistratiun. Act. So sec. 59 of the last mentioned is a transcript of sec. 57 of the first mentioned Act ; and being so, a question may arise under the last mentioned section, whether it had not the effect of extend- ing the period for the registration of all deeds at any time made before 18G8 until one year therearter, notwithstanding the provision of the Act of 1865, which required registration of all deeds before then (18th September, 1865) executed, to be registered within one year thereafter. (u) Deeds of land sold under this Act are to be registered on mere production of the duplicate. (Sec. 151.) But where the sales took place before the 1st January, 1851, a certificate under the hand and seal of office of the Sheriff is in addition required. Such certifi* cate must state : 1. The name of tho purchaser; 2. The sum paid ; 3. The number of acres, and the estate or interest sold ; 4. Tho lot or tract of land of which the same forms part ; 5. The date of the SheriflF's conveyancij to the purchaser. (r) See note < to sec. 151 of this Act. (w) See note u to last section. ' t 656 THE MUNICIPAL MANUAL. [ss. 154, 155. Treasurer to *nter In a book de- scriptions of Jands con- veyed to hundred and fifty-one, shall bo deemed a memorial thereof; and the deed sliall be registered ; and a certiticatc of the registry tlieroof sliall be granted by the Registi-ar on pro- duction to him of the deed and certificate, without further proof; (x) and the Eegistrar shall, for the registry and certificate thereof, bo entitled to seventy cents and no more, (y) 154. The Treasurer shall enter iu a book, which the County Council shall furnish, a full descrii)tion of every parcel of land conveyed by him to purchasers for arrears of axes, with an index thereto; and such book, after such him! "^"'^"^ '^ entries have been made therein, shall, tog(3ther with all copies of collectors' rolls and other documents relating to non-resident lan^, be by him kept amongst the records of the County, (a) Deed valid/ lo5. Whenever lands shall have been or may be here- parties 'if I ^^^^^' ^^Id for arrears of taxes, and the Sheriff* or Treasurer, not ques- \ as the case may bo, shall have given a deed for the same, (b) tioned with\ ^ ^ in a uertain \ ■""" ~~ ~~'~~ time. ' {ic) See note t to sec. 151 of this Act. (y) See note c to sec. 147 of this Act. (a) Entries made in such a book, as to the particulars mentioned, might, in the event of the death of the llegistrar, ho evidence of the facts therein contained. (See Smith tt al v. Blakeij, L. II. 2 .Q. B. 32G.) {h) There is a long list of cases reported in the Queen's Bench, Common Pleas, and Chancery Reports, in which sales for taxes have proved ineffectual, owing to the want of strict attention to the language of the statutes under which the sales took phace, on the part of the officers required to carry the law into execution. Such a state of things was animadverted upon l)y the i>resent Chief .! ustice of Appeal, in McDonell v. McDonald, 24 U. C. Q. B. 80. The Legislature, from time to time, has interfered to settle tax titles. (1.) In 18G3 was passed the 27 Vic. cap. 10, which in sec. 4, among other things, enacted that if any taxes in rrspect of r.ny lands sold after the passing of the Act shnll have been in arrears for five years, and the same shall not be redeemed in one year after the sale, Buch sale and the Sheriff's deed to the purchaser of the lands (pro- vided the sale was openly and fairly conducted) shall be final and binding. This was re-enacted in sec. 131 of 29 & 30 Vic. cap. 53, and corresponds with the section which is now numbered 130 of this Act. (2.) In 1865 was passed the 29 Vic. cap. 26, which in sec. 1 enacted that in all cases where lands were legally sold for taxes under 13 & 14 Vic. cap. 67, and not redeemed within the period in that behalf limited, and the purchaser, or those claiming under him, shall have gone into actual possession, such sales shall be legal and binding, &c. In all cases where the purchaser, &c., had not gone into posseaaion, 155.] TAX TITLES. such deed sliall be, to all intents and })urpose.s, valid and ) G57 one year from the passing of the Act was given for the re(lonii)tion of the land, .nid in default tiiereof the sales were declared to he legal an, paid at least eight years' taxes on the iand, pr(»vided the owner had n(jt occupied for one year between the sale hy the Sheritf and the 1st of November. Hut it was declared that the section should not apply — (a) If the taxes for non-payment whereof the lands were sold had been fully paid before the sale. (1)) If within the period limited bylaw for redemption the amount paid by the purchaser, with all interest, had Ijcen paid or tendered. (c) Where, on the ground of fraud or evil practices at the sale, a Court of E(iuity would grant relief. (d) Where the possession hail been actually changed under i)roees3 of law ov otherwise. (e) \V'here the owner, at the time of sale, was in occupation of the lauds, &c. (Sec. 7.) (f) Cases of proceedings pending at Law or in E(iuity when the Act was passed were allowed to bo carried on, as rajardi the ri(jht to conlfi, in the same manner as if the Act had not been passed. (Sec. 4.) Other provisions were made by the Act not necessary to be here mentioned, with one exception, and that is a declaration that in any case in which the title of the tax purchaser is not made valid by the Act, he shall have a lien for the purchase money paid at the sale, and interest thei-eon at the rate of ten per cent, per annum, and for the amount of all taxes paid by him since the sale with interest at the same rate, to be enforced in such manner ad the (Jourt of Chan- cery shall think proper. (Sec. 13.) The cases decided under the Act of 1863 will be found noted to sec. 130 of this Act. It was decided that the section here annotated does not ajjply ao as to make valid a deed given in pursuance of a sale for taxes where there ai-e, in fact, no taxes in arrear. (Hani'dton v. Eijijltton, 22 U. C. 0. P. 536.) (iwynne, J., in giving judgment, said: "The object of the clause relied upon was— as its language appears to me plainly to express, »nd as ia consistent with the whole tenor of the Act — to provide that when landa became liable to be mid for arrears of tajce^, 42 658 I THE MUNICIPAL MANUAL. [s. 155, ' binding, except as against tlie Crown, if the same has not fuui were sold to recover such iirroara, a deed should be given in purKuancc of sucli sale, that such deed should not be (luestioned for any irregularity or defect whatever unless within tlie prescribed period. . . The Act IV.i Vic. cap. 2,3, Ont., whieli was an Act passed for the purpose of making valid, in certain eases, invalid sales, ' under colour of the statutes for taxes in arrear,' does not eoniirm a sale under the eireunistiinces admitted to attend the sale in this ease. . Now, if this sale ))e not — ami it cleai'ly is not —made valid by an Act passed for the express purpose of making valid illegal sales 'under colour of the statutes for taxes in arrear,' how can it be said to be valid by an Act Avhich, in the given circumstances, never contemplated any sale taking place or any deed being executed? 'I'he verdict for the pjaintift' should not, I think, bo disturbed, as, in my opinion, the l.'ioth section of the Statute of Ontario, 3'2 Vic. cap. o<), upon Avhich clause alone tlie defendant relies, has no refer- ence to the ease of a deed given in pursuance of a sale v, hen all tlie taxes assessed upon the land purjiortod to be sold had been fully paid and satistied befoi'c the sale, b>ut oh/// to cases of deeds given in* pursuance of sales where .some tax u]ion the land sold was in arrear." The same Court afterwards held that the section did iu)t apply to a case where land situate in a junior (jounty, subject to taxes, ami in arrears for taxes to tiie union, was before subsection 2 of section J 32 sold and conveyed by the Treasurer of the senior County. {Oai)(i(/a Permanent Jint/'liii;/ Socicfi/ v. At/wio, C. P. K. T. 1873.) In EiHiihiin/h Life A.^.^arainy Co. v. I'Vrijii.son, 32 U. C. Q. B. 253, where, among other defects in the t;i,x deed, which was given on 17th May, 1800, there was a defective description, the Court said; "It was contended tliat by the 2!) & 30 Vic. cap. J)3, sec. 150, the Sherifl's deed given on 17tli May, 1800, was to all intents and 2)urpf)ses valid and binding on the plaintiffs, because it had not been cpiestioned by them within foxir years after the j)assing of the Act of l.lth August, 1800." (y/A 209.) But the Court added, " it appears to us that the Act just mentioned (sec. 1").') of 32 Vic. cap. 30 Ont. ), when it gave to those who were interested in such lands a period of two years after the passing of the Act to prosecute their claims, gave to those whose rights were not llicii barred by any period of prescription, the period of two years expressly allowetl to them as the new and substituti'd limitation as fixed by the former Act." (//>. 270; sec further, Connor v. McPherson, 18 (jrant, 007.) InFraxer \. W<'st,2\\].G.C P. 101, which was decided under the Act of 180i), thirdly al)ove mentioned, the Court of Common Pleaa decided that it is not incumbent under that Act for the tax ])urchaser, for the purpose of bringing himself within the protection of the Act in cases where he has paid eight years' taxes charged on the land, to prove that the taxes so paid were legally charged, but that it was sufficient to produce the Treasurer's books showing that such taxes had been charged and paid. It Avas also in the same case held thut any person claiming under the tax purchaser may avail himself of the provisions of the Act. In Mr.Adle v. Corhi/, 30 U. C. Q. B. 349, which was an action of ejectment to try the validity of a tax title, the Court, under sec. 4 of the 33 Vic. cap. 23, iletermined the objec- tion taken to the sale, in order to settle the right to costs, in the same manner as if the Act had not been passed. [s. 155. 5 lias not le given in stiiineil for prescribe*! Act passed alitl sales, b conlinn a 1 tliis euse. iiiatlo valiil alid illegal w eau it be noes, never ; executed'! rbed, as, in •io, :V2 Vic. I as no vefcr- ,vhen all the L been fully eds given in' s in arrear.'' X not apply ict to taxes, bsection '2 of nior County. E. T. 1S7;{.) :). Q. B. ^^, rrivenon 17th rtsaid: "It he Sheriff's urposes valid uestioned by ■ .-)th August, that the Act rave to those ^u'S after the those whose ,11, the period d substituted sec further, led under the iiunion Pleaa ax purchaser, )u of the Act 1 the land, to it that it was at such taxes iase held thut il himself of C. Q. B. 349, of a tax title, red the objec- 8. 156.] NON-RESIDENT LAND FUND. 659 u costs, in the been questioned before some Court of competent jnri.sdiction, by some penson interested in the land so sold, within two years after the passing of this Act, when the land was sold and a deed given by the Sheriff or Treasui-er before the passing of this Act, or within two years I'roiu the time of sale, when such sale shall take place after the passing of this Act. 1«>0. The Council may by By-law direct that all the Nonresi — • - 1 , 1 /-( , rr . c ilt'.nt land moneys rcceivecc by the County Ireasurer on account of fund, taxes on 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 sejiarate fund, to be called the " Non-llesident Land Fund" of such County, (c) [Provided that, in the absence of any such By-law, the County Ti'easui-er shall pay over to the local Ti-casurer all such moneys wlien so collected.] (d) (33 V. c. 27, s. 10.) (c) The Treasurer of the County is the person on whom the law throws the dutj' of collecting such taxes as are shown to be in arrear by the collector's rolls, received by him from the several Townships, after all efforts have failed to collect in the Townships, in consequence of the owner having been a non-resident, or there being no sufficient distress on the land. (Per McLean, C. J., in Austin V. S'niwoc, 22 U. C. Q. B. 7o. ) All money received by him on account of taxes of non-residents may either, under By-law of the County Council, be at once distributed among the several local Municipalities to which the taxes are due, or constitute a fund known as the "Non-Resident Land Fund." (Sec. 166.) Though subject, for certain purposes, to the control of the C'ounty CouncU (see Jiobert-fon v. Wclliixjton, 27 U. C. Q. B. 336), who may issue debentures on the credit of it (sees. 103 and 164), it is in no sense the money of the Council. ( W'dnon v. Huron and Bruce, Bank of Montreal (jarnishfi'n, 8 U. C. L.J. 135; «amepartien,Macdonald iiarnlahee 136; Austin v. ^imcoe, 22 U. C. Q. B. 73; Boulton v. York and Peel, 25 U. C. Q. B. 21.) The Treasurer must, when a fun.l haa been created, open an account for each local Municipality with the fund (sec. 157); and in the event of a union of local Munieijialitiea being afterwards dissolved, must open an account with each. (Sec. 158.) (d) The words placed in brackets were added to the section by stat. 33 Vic. cap. 27, sec. 10, Ont. Before the amendment was made, it was held that local Municipalities were not entitletl to recover the moneys either from the County (Mara v. Ontario, 13 (Irant, 347) or the Treasurer (Nottaicaxafja v. Boys, 21 U. C. ('. P. 106) until the passage of a By-law properly apportioning the money. It is now by the section as amended made the duty of the County Treasurer, in the absence of any such By-law, to pay over to the hical Treasurer all moneys received on account of non-resident lands in any local Municipality, when so collected. The Corporation of the County ia responsible for the due accounting of the fund by the Treasurer. (See note a to aiec. 197 of this Act.) I-- 660 THE MUNICIPAL MANUAL. [88.157-159. Treasurer to open an accKiant therefor. Munifiipal- ities uiiitud and afttT- warils, dis- united, (Su. When any union about to be dissolved. New muni- cipalities partly in one county and partly in aaother. 157. Tlie Treasurer shall, when such fund may liave been cn3atcd, open an account for each local Municipality with the said fund, (c) 158. If two or more local Municipalities, having ])een united for Municipal ])urposes, be afterwards disunited, or if a Municipality or ])art of a Municipality be afterwarda added to or detached from any County, or to or from any otlier Munici[)ality, the Treasurer shall make corresponding alterations in his books, so that arr(;ars due on account of any parcel or lot of land at the date of the alteration shall btj placed to the credit of the Municij)ality within which the land, after such alteration, is situate ; [/) and if a vinion of Counties is about to be dissolved, all the taxes on non-residents' land imposed by By-laws of the provisional Council of the junior County shall be returned to and collected by the Treasurer of \\ui united Counties, and not by tlie provisional Treasurer ; (y) and the Treasurer of the united Counties shall open an account forthwith for the junior County with the Non-Resident Land Fuiul. (/t) 150. In cases wliere a new Municipality shall be formed partly from two or more Municipalities situate in different (e) See note d to sec. 156 of this Act. (/) The Non- Resident Land Fund represents the several lots of land iu respect of which the taxes have been collected. The Muni- cipality in whicli the lots of land may be situate at the time of the distribution of the money, is to get the money. The Treasurer, in the event of a dissolution of a union of local Municipalities or other alterations, is required by this section to make corresponding alter- ations in his books, "so that arrears due on account of any parcel or lot of land at the date of the alteration shall be placed to the credit of the Municipality within which the land, after such alter- ation, is situate." () IttlJ. TJio Coiincil of the County may (7) from timo to time, by By-hiw, authorize the Warileu to issue, under the oor[)orate seal, ujjon the ercdit of the Non-U(^sident Land Fund, debentures payable not later than ei,i,dit years after the date thereof, and foi' svims not less than one hundred dollars eaeh, so that the whole of the debentures at any time issued and unpaid do not exceed two-thirds of all arrears then due and accruing tipon the lands in the County, together with such other sums as may be in the Treasui'er's hands, or otherwise invested to the credit of the said fund; (r) and all debentures issued by the County shall be in the exclusive custody of the Treasurer, who shall be responsible for their safety until their proceeds are deposited with him. (s) H54. Such debentures shall be negotiated by the Warden and Treasurer of the County, and the proceeds shall be paid into the said fund, and the interest on the said debentures, and tlie principal when due, shall l)e [)ayable out of such fund : (t) Provided always, that the ))urchaser shall not be bound to sec to the a})plication of the purchase money, or bo hold res[)onsible for the non-application thereof. 105. If at any timo there be not in the Non-Ilesident Land Fund, where such fund may have been created, money suffi- cient to pay the interest u[)on a debenture, or to redeem the same when due, such intcn-est or del)enture shall be payable out of the general County funds, (^1.1) and the payment See note /* 1;() sec. ip) See note m to sec. 160 of this Act. (7) Ma;/, &c. Permissive — not obligatory. 412 of the Municipal Institutions Act. (r) Debentures, when regularly issued, are transferable by delivery. See section 'J!)0 of the Municipal Institutions Act, and notes thereto. (.s') The Treasurer being esi)ccially and peculiarly tlie officer en- trusted witli tlic collection of the money that constitutes the fund. (See note c to sec. loG of this Act.) (/) Tlie fund is intended to meet in advance the wants of the local Municipalities, and not in any way to be a source of revenue or gain to the Corporation of the County. (See note r to sec. l.'5G of this Act.) But it is very properly liere provided, that the ijurchaser of a debenture shall not ))e liound to see to the application of the pur- chase money, or be held responsible for the non-api)lication thereof. (u) The debenture, though issued on the security of a particular fund, is in reality the promise of the County, and so the County ia 88. lGG-168.] NO\-nESIl)ENT LAND FUND. thoroof may IxMMifoi'cod in (Ik- saino Tiiamior as is bylaw pi'ovidciil in tlie case of ollici- County debiMitiirt's. (r) 1<»|(». The Counoil of the (^ountv inav fi'oin t'unv. to (iiiic ^^'ti'Ims of pass J>y-law.s aitportiomnti; tlio s\n'|>liis moneys ni tlio JNon- ii,iit laiiii llesidfMit Land Fund amonj^st tho jMunicipalitics ratably, ,'|j'"i,'i,'.,'J '"" accoi'dini^ to tho moneys ivwivcd and arrears dnr. on ae- anioiiKinuiii- count of tlie non-resident lands in oacli Muiuci]);dity ; {/«) "i"" "''*• but sueh apportionment shall always be so limited that the debentures uiipaitl shall never exceed two-thir*ls of tho whole amount to the cri-dit of the fund, (h) li»T. The Treasui'cr shall not be; entitled to nn-eive from Tnii-surprs tho i)ersou iiavinir taxes anv ))eroentai'c thereon, (c) but may i""'"''^'' receive from the fund such percoiita;:^e iipon all moneys in in*- I'ai.i. his hands, or such li.xed saliiry ((/) in lieu tliereof, as the ( 'ounty (Council may by By-law direct. 108. The County Treasurer shall i)rei)are and sul)mit to AMim.ii the County (Jouncil, at its first ses,sion in January m eacli oii'iinu i..ii.^ year, (r) a report, c(>rtilied by tho auditors, of the state of to!!;,','i".Tis. the Non-Ilesideut Land Fund. (/) bound to ailvaueo out of geiiui-al County funds money siiniciout to pay interest. (r) The ordinary mode of enforcing payment of delientui'es is by action. (See Tntsf and I.odn Cd. v, JIdinil/oii, 7 U. 0. C. P. J)8; A mjUn V. Kimisldii, 1() U. C. (i. .15. l-'l; VniwfDrd <■( al v. (.'uliouni, 2] U. 0. Q. B. 113.) {n) Tlio Legislature has entrusted the Afnuieiiial Couneil- tlie County Parliament — witli the duty of apportioiiiiii,' the surplus fiuuls among tlie Muuieipalities ratably, aeeording to the moneys received and arrears y-la\v when the nnuicy is to he [)aid over. But it is by statute made the duty of the County 'i'rcasurcr to pay over to the 'I'rea- surers of the local Municipalitit'S all such nu)neys vvlien collected. (See note d to see. !")() of this Act.) (h) This is a restriction. A Bydaw contrary to this restriction could not be s!ipi)ortod. The object of the restriction is plainly to afford security for the due payment of unpaid debentures. (e) See note c to sec. 147 of this .Act. (d) It is left in the discretion of the f'ounty Council to pay the County Treasurer either by percentage or by salary. The amount of percentage or salary is also left in the discretion of the County Council. (c) See note h to sec. 18!) of the Municipal Institutions Act. (/) This is to enable the County Council, when dealing with the fund with a view to apportionment, to do so safely and intelligently. (See note a to sec. IGG of this Act.) 664 THE MUNICIPAL MANUAL. [sH, 109-172. What it shall sliiiw. Copy to 1)0 transmittal toPr()viii(Tal Hecrotiiiy. Colloiition of taxes on lands of nnn- r«flldents iu cities pro- vidcil for. County treiisurers, &o., to keep triplicate blank re- ceipt books. 100. The .said report slmll contain (ff) an account of all the moneys received and expended dniinj,' the yeiir ending on the thirty-Hr.st of December next preeedini;, distint it is intended that he shall do so within a reason- able time after the receipt of the report. (i) The power given to a City to collect taxes authorizes the sale by the City of non-resident land. (Per Wilson, J., in McKitij v. Bamheriji'r it al, 30 U. C. Q. B. Oa, 97.) But until the passing of sec. 172 of 29 & 30 Vic. cap. r)3, of which the above was a re-enact- ment, a City had uo power to sell the land of a resident for arrears •of taxes, (lb. ) SS. 173. 174.] SECUUITY IJY TUKASUUKUS AND COLLKCTOns. 6C5 receipt of,;iiiy sum of luoiicy for tiixt'S on liuid, sliiill ddivor to tlio itai'tv iiiakiiiLf piiynifnt ono of such i-tM-cipts, and .shall deliver to the Coiuity, City or Town Clerk the seeoii jtarty makiniL; ])ayinent; tlu* lot on which jtayinent is made; the amount |iaid; tlit! date of ])aynient; aiiy enterinif on the duties of his otHce, shall enter into a hond i/„7i rc'iikc- to the Corjxjration of the Municipality for the faithful p(>r- *^'"'''- formancu of his duties, {a) 174. Sucli bond shall Ik; ,i;iven by the otHcer and two or Hmid with icient sureties, n> such sum and such manner as the Council of the Municipality by any ]>y law shall recpiiro Aililit of l)UllkK, fiC. (k) This is intended not merely as a check upon the person receiv- ing the money, Imt for tiie preservation of e'.iilenee of payiiu lit ; so that if one set of receiitts sliouM ha]ipen to be destroyed or niisiuid, thft other will he forthcoming. {I) The entries reepiired are— 1. The name of the ])arty making j)aymerit ; 2. 'I'lie lot on which the payment is made ; 3. The amount i)ai(l ; 4. The (late of the payment; 5. The number of the receipt. (m) See note // to sec. 189 of the Municipal Institutions Act. (n) Each of the ofHcers named is hj' virtue of his otiieo connected witli the receipt or (lisl)ursemeiit of money* helnnuiiig to the Corpo- ration. It is made the duty of each, "hefore entering upon the duties of his oHice," to enter into a bond to the ("oi'iioration of the Municipality for the faithful performance of his duties. ]k'sid(!s, each must, liefiu-e entering on the duties of his office, make and subscribe a declaration of othce. (See si'c. ■212 of tlie Mun. Ins. Act.) The ajipointment to the otlice necessarily precedes the obligation to give the bond or make the oath. So soon as the jicrson is appointed, it becomes his duty to do the one and the other. But the omissioii of eitlier does not pi'V xc vacate the appointment, unless conditioiually made, nor render the person appointed incompetent to discharge the other duties appertaining to his office. (See Judd v. J'ead, 6 U. C. V. r. 302; see further, note r to sec. 195 of the Municipal Institutions Act. ) , ,- . r,(]c> THE MUNIOIPAI. MANUAL. [8.175. in tliat bohiilf, and shall conform to all tho provisions of such IJy-law. ((>) ivtmiiy^ 115, rf any Troasiivc^r, Asanssor. (Jlerk or otlior oflicer Oil iif*Hi'ssors * ■ t.' ' or.^inrkH rofiistis or nej,'lci'ts to |>(uforui any 3i)r hoforf^ any Court iiifir urt shall order and adjud^'o, not exceoiling ono hundred dollars, (c*) {h) The hond sliould ho inailu to tho ( JurpDi'atioii of tlio iNTuniciimhty (sec. 17.'i), iind in tho uaiiio of tlu! ( 'orporatiuii, tiius; " 77ii ( 'ra- tlon of the (County, City, Town, Village, 'J'own.shii), or united Counties or united Townsliips, «.s th'. cds" iiini/ he) of (namiiii,' tho same). (Sec. 4 of the Mun. Ins. Act.) But it docs not follow that bonds taken in any nthor n.aine or in any other form will he void. A bond by. a collector and sureties to "tlie Treasurer of the Town of," &c., has boon held good. (.//(./'/ v. Iln,,!, (} (J. (.!. C. 1'. .Sf)'2; Toild y. I'crrii H til, 20 II. C. Q. 11 (5 10.) So whore it -was to "Tho Munioi])ality of tho Township of Whitl)y" ( W'/iithi/ v. Jfarrisitn, 18 U. C. Q. 15. (5().S, ()()!)); or, "The I'rovisional Municipal County Ccmncil of the County of bruce" (Hnin- v. Crontar, '2'2 U. C. Q. b. .S'.'j), in each case the hond was hold good. (See also, T/if Hmrh />'is/rirt Council V. JJim-ii, 7 U. C. Q. B. 471; '/'/k' Troit ami Fniiik/'ord i:\ is properly secured ; and in cases of flagrant neglect it is tpiito possible that tho mondjors themselves might he held personally responsible. (See Parks v. Dainx, 10 IJ. C. C. 1'. 229. ) Tho bond," if in general terms for accounting and jjaying over all moneys collected, will apply as Avell to moneys collected for County pui'poses as for any of the purposes mentioned in sec. 190 of this Act. (Sec sec. 192 ; see furtlier, note r to sec. 19.") of the Municipal Institutions Act.) {<•) This is a wise provision, intended to secure the due executiof of the Act by the officers mentioned, whose business it is to ' 'rt. their duty, and to do it accordingly. Either refusal or neglect is • piinisliable. The former involves .an act of the will, but the 1. does not necessarily do so. Any inquiry into the motives or th e of neglect, so far as this sectior is concerned, would be inexpedient ; it would be leaving too ranch to the lenity of a jury. But mere omission is not necessarily equivalent to neglect. Inability or superior force may excuse the non-performance of a iluty by one who is willing to do it. Nor does it follow that every non-compliance with the directions of tho Act, in its minor details, will bring the party within the penalty of this section. Neglect, however, may in general be 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 jjart of the Act may press with more severity in one class 175.] NEULFX'T OF DUTIES l»Y TIIEASUKKKS, ETC. «67 of ciisua than iiiiother; l)ut witli tluit tho Courts have ni)tliin^' to '. oniissiou to (hi some duty \v hich till! party is aide to thi, (/V /• I'atteson, .1., /A. 4(iS.) " \\'lui-e no rw ///'/joy or inatiility intervenes, oniittinji to (h) wliat ou^^lit to he done is lu'gleet. " (/V/- Williams, .1., ///. 4(1!).) "Tim defendant ha8 contravened the .Act without sliowing any lawful. excuse. This is a neglect within the Act. l'"orL,'etfuliu;ss or earelessni'ss is no such lawful excuse." (/'//• Coleridge, .1., ///.) Tlie nc;,deet may lie wliolly to ilo the duty, or to do it witliin the time limited in that liehalf. Eitlur is neglei^t within the meaning of this section. It is of tho utmost imiiortance, so far as the administration of tlie ]irovisions of the Municiiial and Assessment .Acts is conciTiied, that things should be done when dii'ccted to he done. (See /////// v. l/ilihs, f) II. & N. 123.) 'J'his section throughout, so far as neglect is concerned, aiiplies rather to cases of mere neglei.'t than of w ilful neglect. The lattir are looked upon as still more )nual. and especially provided for hy suhso- quent sections. (Sec, 177.) The words of the section are ; "If//.?/// Treasurer, Assessor, &o., refuses or neglects," &c. So the words of the next section are: "jf /(// Assessor neglects or omits to ]ierf'A.) In giving judgment, Sir John J5. Iiohiiisou said: "They (the defendants, who were magistrates, sued for not returning a conviction) cannot commit a jd'nit oU'enee and he suhject to one penalty, because iicl/likr transmitteil it." (Ih. '2M.) 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 prosecuted jointly, but severally. ( 'VV/c Queen V. Snider et al, 28 U. C. f!. 1'. 'A\M).) U is a personal penalty for a iiersonal default, (lb.) It is said that the penalty or forfeiture is to )e "upon convii^tion thereof before any Court of competent juris- diction in the County." Does this mean a civil or a criminal Court? The words of sec. 170 of the 29 & 30 Vic. cap. 53, were, " Before the Recorder's Court of the City, or before the Court of (Jeneral Quarter Sessions of the C!ounty." These words were omitted in the section here annotated, and more general words substituted, no doubt because of the constitutional ditliculty that legislation as to criminal procedure apjiertains to the Dominion Legislature exclu- sively. (See note v to see. 304 of the Municipal Institutions Act.) It is by subsection 20 of sec. G of the Interpretation Act of Ontario, declared *''it " whenever any jjeeuniary penalty or any forfeiture is imposed a any contravention of any Act, then if no other mode be prescribed for the recover}' thereof, such jienalty or forfeiture shall be recoverable with costs by civil action or proceeding at the suit of the ( rown only, or of any i)rivate party suing as well for the Crown as for himself, in any form allowed in such case by the law of this Provine before any Court having jurisdiction to the amount of the pen, ty iu cases of simple contract, upon the evidence of any I 668 THE MUNICIPAL MANUAL. [s. 176. otherasao.ss- | Tf^ If an assossor netjlects or omits to pm-form his (hities. ors may act ,, , {^ /-c A i .1 foitlioseiu tno otJiev assessor, or other assessors (it tliere be more ti!;>,n tlc'fuult. Qjjj, f^jy ^\^Q .same lociility), or one of such assessors, (d) shall, until a new appointment, perform tlie duties, and shall certify u])on his or their assessment roll the name of the delinquent assessor, and also, if ho or they know it, the canse of the delinquency; (^') and any Council may, after an one eredilile Avitness other than the plaintiff or party interested." If the forfcitiu'e were by this Act iixeil so th.it an action of deht could bo maintained, there would ))e strong gronml for the argument that the amount of the forfeiture under this section is recoverahle liy action in a Court of civil jurisiliction. But the diiliculty in tlie way of giving full effect to such an argument arises from the fact that the forfeiture is to l)e "such kiiiii as tlie Court shall order and adjudge, noc exceeding .SIOO." (See G/'e v. Wil('fii, Lutw. i.S'JO; Woo,( V. Smr/, liridg. 131); Bxfrher.s Co. v. Bullock, 3 B. &. 1'. 434; Piper V. Clmppcll, 14 M. & VV. 024; see further, (Irant on Corpora- tions, 84; note n to sub. 11 of sec. 372 of the Municipal Institutions Act, and 7 to sec. 180 of this Act.) If it could be said to be "■•ressly conferred by Act of Parliament. (See note h to sec. 202.) The (/ourt of Common Pleas recently held that, in the absence of further legislation, the omission of assessors to I'cturn the roll by Mie day limited for the purpose is not an indictable offence. ( Th'c Qiinn v. Snidir, 23 U. C. i'. P. 330.) "Such an omission — in no way criminal in itself — cannot, we tliink, be treated as a misdemeanour or any si)ecies of criminal offence, unless declai-ed to be such by competent legislative authority." {Per Hagarty, (!. J., Ih. p. 33fi.) The Lec-^dature of tlutario during its last session has declared, that "whei h pecuniary penalty or forfeiture is imposed by any Act of the I'arliament of Canada or of this Province with reference to any matter within the jui'isdiction of the liCgislature of Ontario, and the amount of the ptmalty or forfeiture is in any respect in the discretion of the tJourt or Judge, or in case the Court or Judge has the right to impose imprisonment in ae enti- tled to all the eniolunients which appertain to the office. (, 2004, Lord Mansfield said: "A f/cwm/ neglect or refusal to attend the duty of such an otlice is a reason of forfeiture; 80 a ddcrmined neglect, a tvilfid refusal." By sec. 6 of 1 W. & M. cap. 21, it is declared that "if any Clerk of the Peace shall misde- mean himself in the execution of the said oHice, and thereujjon a complaint and charge, in writing, of such misdemeanor shall be exhibited against l.im to the .lustices of the Peace in their (Jeneral Quarter Sessions, it shall be lawful for the said Justices, or the major part of them, from time to time, uj)on examination and due proof thereof, openly, in their said General Quarter Sessions, to suspend or discharge him from the said oHiee." In Wildin v. JinxHilt, L. K. 1 C. P. 722, 737, Wdks, J., said: " The law upon the subject of forfeiture of an otHeo is to be found in Com. Dig. 'Otlieer, K,' where it is laid down that an ofiiicer forfeits his whole ofHce by non- user or abuser of the ofiioe by him or his deputy. In some such sense as this, and not merely in «, criminal sense, is the word mie- demeanor used in this section (sec. 6 of 1 W. & M. cap. 21), and there can be no doubt, therefore, that an absolute and persistent 670 THE MUNICIPAL MANUAL. fs. 178. What shall be evideuca of fraudu- Ii^ut assess J: ' be paid over. (o) See note q to sec. 180 of this Act. * ip) This is a very comprehensive and important section, but in language a good deal involved. The dc^hiration ia, that All monejf assessed, levied and collected for the purpose of being paid — 1. To the Receiver-General of the Province of Canada, 2. To the Treasurer of the Pro- vince, 3. Or to any o^^her public officer, Shall hr— " Assessed, "1 ii ai j • j.u Levied s.ame persons and m the same ' manner and at the same time as taxes imposed on the same property for Ooun ty and City purposes, For the public uses of tlie Province, or for any special purpose or use mentioned in the Act under which the same is raised. I. 2. 3." 4. Collected by, And accounted fcr and paid over. And shall be — Deemed and taken to be moneys collected for the County, Town or City, ko far as to charge every collector. Chamberlain or Trea- surer with the same, and to render him and his sureties responsible tlierefor, and for every default or neglect in regard to the same, &c. (See note a to sec. 197 of this Act.) G7a THE MUNICIPAL MANUAL. [ss. 192-lM. c county treasurers Village Treasurer, and by him to the County Treasurer, and the Corporation of the Township, Town or Village shall be responsible therefor to the Corporation of the County. {ney«. lain of the County, City or Town, in virtue of his office, shall be by him duly paid over and accounted for according to law. (a) (v) The remediea are — 1. Retaining or stopping a like amount out of any moneys which would otherwise be payable to the Municipality. 2. Recovering the same by a suit or action for debt against such Municipality. 3. Issue of a warrant whenever in arrears for the space of three months. There is no limitation as to the time within which the warrant may, can or should be issued, and so the difficulty pointed out in note u has, as to this warrant, been avoided. (w) See sec. 324 of the Municipal Institutions Act, and notes thereto. (as) The liability of the collector, as declared in sec. 190, is here extended to the County Treasurer or City Chamberlain, so as to make the collection of rates, or rather the paying over the money collected, as safe and expeditious as possible. (See note a to sec. 197.) (a) The Non- Resident Land Fund is money which may be said to come into the hands of the Treasurer within the meaning of this fi80 THE MUNICIPAL MANUAL. [S8. 198-201. • Tr'aHurrr, jc .', rdHpoii- «iol(i to Cduiity, tc. a i.kU lo apply. {ioiids to :ipi'ly to Mi;liuol moneys, Ac, ( ity, &(: re- H pons il)lo for (Ifyfiiult of ciiambiir- III in, &c. 108, Tho Treasurer or Chamberlain and lii.s sureties sluill bo responsible and accountable for such moneys in like manner to the County, City or Town ; and any bond or security given by them for tho duly accounting for and pay- ing over moneys coming into his hands, belonging to tlio County, City or Town, shall bo taken to apply to all surli moneys as are mentioned in the one hundred and ninetieth section, and may be enforced against the Treasurer or Cham- berlain, or his sureties, in case of default on his i)art. (h) 190. The bond of the Treasurer or Chamboilain and his sureties shall apply to school moneys, and all ])ublic monoy.'< of tlie Province; (c) and in case of any default, Her Majesty may enforce tho responsibility of the County, City or Town by stopping a like amount out of any public money which would otherwise bo payable to the County, City or Town, or to the Treasurer or Chamberlain thereof, or by suit or action against tho Corporation, (d) SOO. Any pei-son aggrieved by the default of the Cham- berlain or Treasurer may recover from the Corjjoration of the City, County or Town, the amount due or payable tc> such person, as money had and received to his use. (e) MISCKLLANEOUS. r MiHity for ^01. If any person wilfully tears down, injures or lii'tices, &"." defaces any adveiiiaement, notice or other document, whicli is required by this Act to be posted up in a public place for the information of persons interested, (/) ho sliall, on con section, so as to make the Corporation of the County responsible for tlie clue payment and accounting of the same. (See Robertson v. IVelliiifjton, 27 U. C. Q. B. 3.36.) (b) In an action by the Corporation of a County against their Treasurer, on his bond, where it was proved that Government money charged by him as paid over to the Government was not so paid, it was held unnecessary to show a tlemancl of the Government upon him for the money in order to entitle the Corporation to recover. (Essex v. Park, 11 U. C. C. P. 473.) (c) See note b to sec. 198 of this Act. {d) See note v to sec. 194 of this Act. (e) See note a to sec. 197. {/) It is only when the person charged is proved wilfullt/ to have torn down, injured or defaced an advertisement, notice or other document, under the Act, that he can be convicted. Where the act charged can be said to have been the result of mere neglect (see note c to sec. 175 of this Act), and not of the will, there is no offence under this section. 98-201. » SS. 202, 20.'}.] APPLICATION OP PKNALTIES. C81 victiou tlieroof in a aumnmry way hoforo any Justicn of tlio P(MW having jurisdiction in tho County, City or Town, bo liiibln to a iino of twenty (lollai"«, and in default of payment, or for want of sulHcicnt disti'oss, to imprisonment not exceed- ^ int,' twenty days, {(j) ^0*i, Tho fines and forfeitures authorized to be sum- Rocovcrr of iiiarily imposed by this Act, (A) shall, when not otherwise rdlf'it'ur.d provided, be levied and collected l)y distress and sale of the ''«'••!';>■ ''"• ofl'onder's goods and chattels, under authority of a warrant of distres.s, to be issued by a Justice of the Peace of the County, City or Town; and, in default of sullicient distress, the olibnder shall be committed to the common gaol of the (/ounty, and be there kept at hard labour for a period not exceeding one month. (?') /J0I5, When not otlierwise provided, all penalties re- Ari'ii'^tiyn covered under this Act shall be paid to the Treasurer or "' i"""'^'** Chamberlain, to tho use of the IVFunicipality. (fc) {()) Direct imprisonment aa a punishment tinder this section would l)c illegal. The only punishment authorized is a fine, to bo coUteted l)y distress, and, failing distress, imprisonment not exceeding twenty days. (See note h to sec. "202 of this Act. ) (h) The authority of a Justice of the Peace summarily to try a new ofl'ence must be conferred by some statute. (As/ard v. C'andish, Saville, 134. ) The authority, when so conferred, is not to be enlarged by inference (Ex parte Martlv, B. & C. 80), not even in the ease of an obvious omission. ( UnderhUl v. Loiigridt/e, 29 L. J. M. 0. 05 ; see .ilso, y.V Waimonght, 12 L. J. Chan. 420; s. c. 1 Thil. 201.) Thus an authority summarily to settle disputes between masters and servants is not, in the absence of express legislation, to be extended to the settlement of disputes between masters and household ser- vants. (See Tfie King v. Hiilcntt, T. R. 58.'$; liranwell v. Pcnncck, 7 B. & C. 530; Ilardi/ v. Bt/lf, 9 B. & C. 003; Lancaster v. Greaves, lb. 028; Ex parte Johnson, 7 Dowl. 702; Kitchen v. Shaiv, 6 A. & E. 729; see further, note c to sec. 175 ot this Act. (i) Where a fine or pecuniary forfeiture is imposed, the object to be attained is the collection of the money. If that object can bo attained by distress of goods and chattels, it would be unlawful to imprison. The imprisonment is only authorized in default of sufH- cient distress, and then for a period not exceeding one mouth at hard labour. (See In re Slater and Wells, 9 U. C. L. J. 21.) (k) This section also applies to all penalties {qii. to all finps and forfeitures) recovered under the Act. All such, M'hen not otherwise l)rovided, must be paid to the Treasurer or Chamberlain, to the use of the Municipality. The fine authorized by sec. 175 to be imposed on an assessor or Clerk who refuses or neglects to perform any duty under tho Act, is to be forfeited "to Her Majesty." (See further, note m to sec. 319 of the Municipal Institutions Act.) iiil-. 682 THE MUNICIPAL MANUAL, [s. 204. hei'ealing clause. Chap. .').', Coll. SUt. U. C. and S04. The As.sessment Act of Upper Canada hereby re pealed, and all other Acts inconsistent with this Act are Acts aiiiuud- hereby repealed, (l) saving any rights, proceedings or thi.igs .repeaicd. legally had, acquired or done under such Acts or any of theui, and all things begun but not completed thereunder may be continued to completion as validly and with the sanie effect as if this Act had not been passed ; (m) and all bonds and covenants naado to any Municipal Corporation sliall be as valid and binding as if made or given vmder this Act, SCHEDULE A. Form of Notice hy non-resident oioner of land, requiring to he assessed therefor: — To the Clerk of the Municipality of Take notice, that I (or we) own the land hereunder men- tioned, and require to be assessed, and have my name {or our names) entered on the Assessment Roll of the Munici- pality of {or Ward of the MunicijialUi/ of ) therefor. That my (o?*our) full name (or names), place of residence, iind post office address, are as follows : A. B., of the Township of York, shoemaker, Weston Post Office {as the case may he). Description of land {he^'e ijivr such description as lolll readily lead to identification of the land). Dated the day of 18 C. D. Witness, G. H. (0 See uotca c and d to sec. 515 of the Municipal Institutions Act. (m) There is not only a saving of all rights, proceedings or things JeijaUy hail, aciiuired or clone under the repealed Acts or an}'^ ot' them, but an express declaration that "all things hmjuu hut not completed tbjreunder may be rorUinaed to completion as validly and with the same effect as if this Act had not been passed." Tho necessity tor some such provision as last mentioned was found tn /exist in nn/ant. v. Hill, 2.3 U. 0. Q. B. 9G, and McDonald v. Me- Doiiell, 24 \J. C. Q. B. 421. Its interpretation was under consider- ation in Charksioortk v. Ward, 31 U. C. Q. B. 94, H)0, and Edinburgh life Assurance Co, v. Ferguson, 32 U. C. Q. B. 253, 209. fHUl.DVLE D. C8:i ft, o Cm w CO ST, is o H 7 . S3"7" ■ ■^ > *-■ ^ ?, ■ pi Oca • n a Ill •o 0) a -!§■ S = 5 3 il"''^ 111 -PIS ■M -•^, !?•£« u « a 1) o 1=11 ■ ijjj CO ft 1 K.ltiJOllJl) MX 1 3 1 •uSoii JO -OX 1 f 53 1 ' -daans ,jo -ojj | S3 •■'m«»J" '"N 1 Tx •tioiSiini 1 §5 iios.i.kI jo Xipni!; iii mtosiiid jo (i\[ | i ! Q 1 r-l ] •s-iiinjia 1 •sSJoQ 1 ll CO anofini .s.^tjp jo o«j •pio sjun^ 09 "1 IB 'Ui'JJ stiosjoj ,. 1 o ^ l"3 p f^ s i-H TKUObMOd pllU IH3J JO OUIUA \V\"Jj c « p w Q « ° ^ a :i a »■ h 2 I—I ■.illlo.Ml OlHIiXl!} pin/ Xj.irido.iil p:uoBj')(I JO ntipiA pijoj, s •OtUOOUI 0I<1UXDX 1 -1< NtlllOJUl IIIM); 1 .131110 .C}.iail(\i(I lunosjnd jo ^n\v\ | :i3 to Hi U C u: < C > PS saaau JO -om rt o •03? ':J83J 'sajOB JO 'OiJ o Ol •dij 'asnoii '40[jo -'^x .»2 c ■» •UOlJUuSlSOp .l.ll(J(.) JO o,itinT)S '|33j;g 'IIO18S00U00 .5 1- •rionaes looqoR 1— ( Eh o: [■ CJ M W '.^ K •« G 71 < o lu.ipis.u-liox 1 -a •JIU.ttO MW lOlI 8} ont.% mrinio.) ui poiiiuii iiosjai[ U8I[AV .taUAVO JO S«0.ippll pill! ,)U1I.'>C o ■n •}uiidnooo JO >)3v . - •* JO 'japioicasnon 'jn|j[oii.i.uj E^ CO •tioiiBdnn.io e>i •XvD'i ■'I'l'" ■xv\ jnn}() JO jmidii.ijo jo ohitj{{ 1 '* 1 'noj uo -on 1 9i i;s( THE municipa:, manual. [Sch. C. SCHEDULE C. To all to lohom these Presents shall comn. We, of the of Esquire, Warden and of the of Esquire, Treasurer of the County of send greeting : — Whereas by virtue of a warrant under the hand of the Warden and seal of the said County, bearing date the day of in the year of our Lord one thousand eight liundred and commanding the Treasurer of the said County to levy upon the land here- inafter mentioned, for tlie arrears of taxes due thereon, witli his costs, the Treasurer of the said County 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 hex'einafter 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 and Treasurer of the said County, in pursuance of such sale, and the Assessment Act of 1869, and for the consideration aforesaid, do hereby grant, bargain and sell unto the said his heirs and assigns, all 'Jiat certain parcel or tract of land and |)remises containing being composed of (describe the land so that the same may he readilij identified). In witnrss whereof, we, the said Warden anu Treasurer of the said County, have hereunto set our hands and atlixed the seal of the said County this day of in the year of our Lord one thousand eight hundred and and the Clerk of the County Council hath countersi^jrnod. A. B., Wai'den. r^ j. a i i ri -r^ rn [Corporate Seal. C. D., Ireivsurcr. ^ ^ ^ Countersigned, K¥., Clerk. Sch.D.F.] DECLARATION'S RY PARTIES COMPLAINING, SCHEDULE D. Form of Declaration by party complaining in person of overcharge on personal property : — I, A. B. {set out name in full, toith place of residence, business, trade, ^n'ofession or calling), do solemnly declare that the true value of all the personal propei'ty assessable against me (or as the case may be), as trustee, guardian or executor, etc., without deducting any debts due by me in respect thereof, is [fn case debts are owed in resjject of such property) — that I am indebted on account of such personal property in the sum ot" and tl, t the tnxe amount for which I am liable to be I'atcd and assessed in respect of personal proj)erty other than income is GS') SCHEDULE E. Form of Declaration of party complaining in person of overcharge on occoiint / ar/ent of a 2)arti/ complaining of overcharge on j^^rBoiml propertif : — I, A. B. (net ou.f iimi)!' ill fufl. I'ufh place of' re/ti'h.ncr Imshiess, ira'lr, proj'i'ssion or cnlliii'j), ag'^nt tor (J. D. {jn:* out name in fall, ivith place of residence and calling of person assessed), do solemnly d^^claro that the true value of all thr personal propei'ty a.s.spKsaljlo aijjauuit the said C. D. {or as th< case may be, as trustee, guardian, or executor, ifec), is {In case there are ilehts in respect of the property, add) — th(" Baid (J. D. \H indebted on account of such pereonal propertj in the sum of and that the true amount for which the said C. D. is liable to be rated and assessed \r respect of personal propei-ty other than income is and that I have the means of knowing and do know, the exten^ and vahie of the said C. D.'s per sonal property, and debic in respect thereof. A. B. SCHEDULE H. Form of Declaration by agent of party complaining of over charge in taxable income : — I, A, B. [set out name in full, loith place of residence, business, trade, jyrofession or calling), agent for C. D. {set ord name in fidl, with places of residence and calling of persov assessed), do solemnly declare that the gross income of the said C. D., derived from all sources, not exempt from taxa tion by law, is and that I have the means of knowing, and do know, the incom'- of the said C. D. SCHEDULE L Form of Declaration by agent of party complaining of av overcharge in respect of jjersonal jn'operty and taxable income I, A. B. {set out name in full, wlch place of resld mcc.^ business, trade, profession or calling), agent for C. D. {sef out name in full, tolth place of residence and calling of persov assessed), do solemnly declare that the true value of the per Ronal property of the said C. D., other than income, is that the gross income of the said C. D ?s. 1-4.J 33 V/c, CAP. 27- C.S7 derived from all sources, not ex-^mpt by law from taxation, is and that the full amount for which the said C. D. is justly assessable in respect of both personal property and income is [If there are debtfi on n.cconnt of the j^TOjierty, add) — the said C. D. is indebted on account of such personal pro- perty in the s\im of and that I have the means of knowLng, and do know, the truth of the matters hereinbefore declared. A.K ACT TO AMEND CHAPTER THIRTY-SIX OE THE STATUTES OE ONTARIO, ENTITLED "AN ACT TO AMEND AND CONSOLIDATE THE LAW RESPECTING THE ASSESSMENT OF PROPERTY IN THE PROVINCE OF ONTARIO, " PASSED IN THE THIRTY-SECOND YEAR OF THE llEIGN OF HER MAJESTY. (33 Vic, Cap. 27.) W^HEREAS it is expedient to amend the above recited Act ; Treambie Therefore Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : — I. That sub-section twelve of section nine of the said Act *D0 amended by inserting the word " while" before the word "occupied" in the fii'st line. 2- That sub-section fourteen of section nine of said Act be amended by adding the following Avords thereto: "and the income of nieichants, mechanics or other persons, derived from capital liable to assessment." *J. That sub-section number seventeen of the said section nine be amended by adding then^to the words following: " and the shares in building societies, Provided ah\ ays the interest and dividends derived froni shares in such buildijig societies shall be liable to be assessed : and so much of the personal j-roperty of any person as is invested in any com- pany incovporatcd for the purpose of lending money on the security of real estate. Provided that this shall not exempt the interest or dividends derived fi'om- such investments." 4. Thnt subsection twenty two of said section nine be repealed, and the following substituted: "The stii)end or salary of any clergyman or minister of religion, while in Jictual connection with any church, and doing duty as such flergyman or minister to the extent of one thousand dollars, Sub-s. 12 of see. 9 amended. Bub-s. 14 of sec. 9 ameudcd. Sub-s. 17 or Bee. k> amended. Sac 9, guhn. '12, amende).! 688 THE MUNICIPAL MANUAL. [ss. !:)■$ Sec. 30 .iinendcd. Seo. 89 amended. Sec. 103 uinended, Siib-t s uli sum as full j)a>iuent of t>uch arrears of taxes; but the owner of any laud so sold shall not be at liberty to rediHjm the same, except upon payment to the (\tunty Treasurer of th' full amount of taxes due, together with the oK|k uses of sale and the Treasurer shall account to th«» lui>»l Munioipiility tor the full amount of taxes that sliall I* |:)MnI. s. 4.] 34 VIC, CAP. 28. U»9 0. That section one hundred and eleven of the said Act ^J^J'^Jj,.^, be amended by erasing the word "and" in the eleventh line, and inserting in lieu thereof the word " whether," and by inserting after the word "Municipality" in the same line the words "or not." 10. That section one hundred and fifty-six of the said ^,1I"^;„ji'.'i'| Act be amended by addlag thereto the following words: " Provided that in the absence of any such by-law the County Treasurer shall pay over to the Local Treasurer all such monii s when so collected." 11. Section one hundred and thirty-two of the said Act poc i:!2 is hereby amended by striking out the words "twonty-ninc" between the words "and" and "if" in the second and third lines thereof, and inserting instead thereof the words " twenty-eight." fii- That sub-section two of section .seventy-one of the Bee. 71. «aid Act be amended by inserting the lollowing words after a,'I^^,ij';,i. the word "shall," in the second line: increased or decreased as aforesaid." "after having so AN ACT TO AMEND THE ASSESSMENT ACT OF ONTARIO PASSED IN THE THIRTY-SECOND YEAR OF THE REIGN OF HER MAJESTY. CHAPTERED THIRTY-SIX. (34 Vic, Cap. 28.) Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : — I, That sub-section twenty-five of section nine of the Act Sub-s. 25 of passed in the thirty-second year of Her Majesty's reign, and '^ Ororciiif.}. chaptered thirty-six, be repealed. /J. That section eighty-four of the said Act be amended Scc. 84 by inserting after the word "Township," in the first line, •'""'^"'i'"'^'- the words "Town or Village." •t. That section eighty-six of the said Act bo amended Sec st> l)y inserting after the word "Townships," " Towns and '*"""^''"'' Villages." 4. That section one liundn>»i and fifty of the said Act be sec. i5o amended by erasing tlw* letter "B," in the .second line, and '""•'»'''•' inserting therefor the letter "C." 44 coo THE MUNICIPAL MANUAL. [S9. 1-4 AN ACT TO AMEND THE ASSESSMENT LAW. (37 Vic, Cap. 10.) Whereas it is cxpodiont to amend the Assessment Act of 1869, and the Act jiassed in tlie thirty-third year of Hoi Majesty's reign, chaptered twenty-seven, amending the said Act: Therefore Her JMajesty, by and with the twlvice and con Bent of the Legishitivc Assembly of the Province of Ontario, enacts as follows : in**i!ut ^'*''' ^ • "^^^ ''^^' property situate within the Province of Ontario, o\viie(ioutof and owned out of this Province, shall be liable to assessment im'a'sscss-*' ''^ ^^'^ Same manner and subject to the like exemptions a.s able. other real property inulcr the provisions of the said recited Act. Personalty 2, All personal property within the Pi'ovince in the pes agentVo'r scssion or Control of any agent or trustee for or on behalf oi' non-resident ^ny owner thereof, who is resident out of this Province. owner . assewabie. shall bo liable to assessment in the same manner and subject to the like exemption as in the case of the other personal property of the like nature under tlie said Act or of tliif-- Act, 3, The shares held by any person in the capital stock ot any incorporated or chartered bank doing business in this Province, shall be exempt from assessment for municipal oi other local rates or taxes ; but any interest, divider Is or income derived from any such shares held by any person resident in this Province, shall be deemed to come withir and to be liable to assessment under the thirty-fifth sectior of the Assessment Act of 1869. 4. In the case of real j)roperty owned by a person not resident within this Province, who has not required his^ name to be entered on the assessment roll, then if the land be 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 pui'pose of imposing and collecting taxes upon anil froni the same land under the provisions of thf Assessment Act ; but if tlie land be not occupied, and the owner has not requested to be assessed therefor, then it shall be assessed as land of a non-resident, according to the viien land provisions of the thirty-fourth section of the Assespment Act aa'ses.sed as of 1869 ; and it shall not be necessary that the name of sucL Ueiit'^'^'" non-resident or owner be inserted in the assessment roll. 17ivi(len(l.s only of liaiik Ktoek to 1)0 UHSUIiSCd. Occupant for non-resi- dent owner may be a-sse.ssed as owner in cer- tain uis«». [S9. 1-4 lW. nt Act oi Eir of Her c£ tUc saiil B and coil if Ontario. of (Ontario, assessment niptions as laid recited in the pos- m behalf of i Province, and suV)ject ler personal i or of thiF tal stock ot [less in this umicipal or ividor .Is or any person lome withii) afth section person not squired his- if tlie laiui and against the owner scting taxen ?ions of tin led, and the ■or, then it fding to the ^SF'nent Act Jime of sucli Esment roll. ss. 5-9.] OI VIC, CAP. 19. C91 Imt it shall bo sufficient to mention therein the name of the rcput;.'d owner, or the words " owner unknown," according to the assessor's knowledge or information. 5. In the case of the personal property of a person not resident Avithin this Province, it shall be a-ssessed in the name of and against any agent, trustee or other person, who is in tlio control or possession tlier^of, and shall bo deemed to be the individual proi)erty of such agent, trustee or other person, for all objects within the said Assessment Act. 0. Every person who holds any appointment or olRce of emolument to which an annual salary, gratuity or other compensation is attached, and performs the duties of such appointment or office, within a Municipality in which ho does not reside, shall be assessed in i-espect of the amount of such salary, gratuity or other compensation at tho place where he performs such duties, and he shall not l)e assess- able therefor at his place of i*csidence, but, if required, shall procure a certificate of being otherwise assessed under tho provision of this section : Provided that this section shall not apply to County Municipal Officers. Y. The words "Treasurer" and "Warden" in section one hundred and forty -nine of the said Act are declared to mean the persons who at the time of the execution of the deed in such section mentioned may hold the said offices. Whm yipr Sdii.illy (if lioli-ie.si- iliiits may III! (ISSCSSfil a;;iiiii.st tlin aj^'Miit tlit'iofur. Salaries, i- to lie nssrSHed at the place will 're earned. Sop. 149 anifiidi'il ai to woril.s trcasun'r and warden. Revision of Assessment Roll. 8. In each year every assessor shall begin to make hia Timn whfn roll not later than the fifteenth day of February, and shall i,f,';'^;";',";f,,,, complete the same on or before the thirtieth day of April ; and diUvir and on the first day of IMay he shall deliver die said com- 'iyj.};'" pleted roll to the Clerk of the Municipality, with the certifi- cates and «'iffida\its required by law attached ; and tho (Jlork shall file the same immediately upon tlia receipt, thereof. 0. Every member oi the Court of F.evision, before enter- oath of ing upon ids duties, shall take and s.ibscrihe, before the "'^,"'1"^'." ''^ Clerk of the Mnnici[)ality, the following oath (or affirmation Uevigion. in cases where by law affirmation is allowed) : " I, , do solemnly swear [or affirm] that I will, to tho "best of my judgment and ability, and without fear, favour " or partiality, honestly decide the ai»peals to the Court of " Revision which shall be brought before ma for trial as a '' member of said Court." 692 THE MITNICIPAL MANUAL. [S8. 10-14. fifa. 67 ainviiilcd. Pnnnltj to witiicsHca who rt'liiso to iittvud. When first meeting of tho C'cmit to be held. To be adver- tised by clfl'lC. Tiir;-^ v.iUiin W).ich 110- tici's of lipiMial to Mie court lire to be 5rivi;ii. Clerk mny 1 equina iis- sistftiice ill makiiifj; services. Power to adjourn. Order of heariiig ai-iiieals. I'ostpoiie- ment. 10. Section fifty-.sevcn of said Act is hereby ropoaled, itnd the following section substitutod therefor : " 57. If any person sunmioned to attend the Court of " Revision as a witness fail, without good and sutKcient " reason, to attend (Jiavinji; been tendered compensation for " his time at the rate of fifty cents a (hiy), he shall incur a " penalty of twenty dollars, to be i-ecoverable, with costs, by "and to the u.se of any person suing for the same, either by "suit in the projjcr Division Court, or in any way in whicli " penalties incurred under any by-law of tho Munici})ality " may be recovered." 11. The first sittings of tho Court of Revision shall noi 1)6 held until after the expiration of at least ten days from the ex})iry of the time within which notice of appeals may be given to the Clerk of the Municipality ; and the adver- tisement which the said ("lerk is required, by the sixth sub- section of section sixty of tho Act hereby anaended. to jaiblish, of the time at which a Court of Revision will hold its first sittings for the year, shall be publishetl at least ten days before such time ; and the final revision by tluj said Court of the said roll shall be made on or before the first day of July in each year. l!4. The notice to be given to the Clerk under sab-sections one and two of the sixtieth section of the said Act, is to bi' given within fourteen days after the first day of ]May, requii-ed for the leturn of the roll, or svithin fourteeil days after the return of the roll, in e.ise the same is not returned within the time fixed for that purpose. 1*». When necessary, tlie Clerk of the IMunieipality may. at the cost of the j\Iuiiici])ality, call to his aid such assistanct- as may bo recjuired to effect the services which he is required by law to make; and in the event of his failure to eftect any such services in time for the fir;-;t sitting of the Court, the Court, in its discretion, may appoint an adjourned sitting, for the purpo.se of hearing the aj)peals for which the services were not effected in tim(> for the first day, and tlie })roper services shall be made for such adjourned cl.sy. 14. The Clerk of tlie Court shall enter the appeals on the list in the order in whicli they are received by liiin, and the Court shall proceed with the appeals in the order, as nearly as may be, in which they are so entered, but may grant an adjournment or postponement of any app'^al. ss. 15-17.] 37 vrc, CAP. 19. 00 :> mib-sections 15. It shall not be necessiiry to hoar ui)on oath the com- jilainant or assossor, or the party coniplaiiuMl aj^aiiist, uiiloss whoro th{^ Court (Iimmus it iiL'C(>Hsary or propor, or tlio ovidont-n of tho party shall ho teudored on liis own behalf or required by the opposite party. 10. Tho sixty-tliird section of the said Act is hereby repealed, and tho following substituted therefor: — " 03. An appeal to tlio County Jiidge shall lie, not only " against a decision of tho Court of llevision on an appeal " to said Court, but also against tho omission, neglect, or " refusal of said Court to hear or decide an appeal, and in " such case — (1.) " The person appealing sliall, in person or by his " attorney or agent, serve upon the Clerk of tho Munici- " pality, within live days after the first day of July, a written " notice of his intention to appeal to the Couu>y Judge ; (2.) "Tho Judge .shall notify tho Clerk of tho day he " appoints for hearing appeals ; (3.) "The Clerk shall thereupon give notice to all the " parties appealed against in the same manner as is provided " for giving notice of comjjlaint by the sixtieth section of " this Act ; but in the event of failure by the Clerk to have "the required service in any appeal made, or to have tho " same made in proper time, the Judge may direct service " to be made for some subsequent day upon which he may "sit; (4.) "The Clerk of the Municipality shall cause a con- " spicuous notice to be posted up in his office, or the place "where the Council of tho Municipality hold their sittings, "containing the names of all the appellants and parties "appealed against, with a brief statement of the ground or " cause of appeal, together with the date at which a Court " will be held to hear appeals ; (5.) " The Clerk of the Municipality shall be the Clerk of " such Court ; (6.) "At the Court so holden, the Judge shall hear the "appeals, and may adjourn the heai-ing from time to time, " and defer judgment thereon at his pleasure, so that all the " appeals be determined before the first day of August." 11, In proceedings before the County Judge or acting Judge of the Court under the said Act, the Judge shall, with reference to the matters mentioned in the sixty-sixth Oaths of cpr- tiiiii parties not iii'oos- sary. Hoc. fi;t aiiirudod. Appoal froni luiurt of ruvision. Senico of Ililtil'O of appeal. Day for heal- ing. Clerk to notify par ties. List of ap- pellants, *c., to 1)0 posted' up by clerk Clerks of court. Hearins and adjourn- ment. Powers of judge sitting in apfieal from court of revision. IMAGE EVALUATION TEST TARGET (MT-S) 1.0 I.I m 12.5 lUH 32 ^ Ilia i 1.8 1-25 1.4 III 1.6 < 6" ► vl /I e-l^ " . oy^ ^A.'' > ^7). '/ /A Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. 14580 (;i6) 872-4503 '* a:%' al Elections as therein provided ; And whereas, by the Act of the last session of Parliament (chapter G4). entitled, " An Act for correcting certain erroi« and omis- sions in the Act of the Parliament of this Province, passed in the last session thereof, entitled, * An Act to provide by one general law for the erection of Municipal Corporations, and the establishment of Regulations of Police, in and for the several Counties, Cities, "Towns, Townships and Villages in Upper Canada,' for amending certain of the provisions of the said Act, and making some further provisions for the better accomplishment of the object thereof," the powers conferred on the said Court and Judges have been extended to the Court of Common Pleas and the Judges thereof, and additional powera have been thereby given in tlie premises to the said Courts and Judges re8t)ectively ; and it being, among other things, in effect enacted, that it should and might b^ lawful for the Judges of Her Majesty's two Supoiior Courts of Common Law 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 Term time, as occasion may require, to settle the foi'ins of all such writs, Rules 1, 2.] STATEMENT OF THE RELATOR. G97 TH Victoria. whether of summons, certiorari, mandamus, execution, or of or for whatever other kind or purpose, as are authorized by the said Act. Therefore, in order to settle the sjiid forms, and to regulate the practice and procdedings in the said Courts in the matter aforesaid. It is ORDERED, that the following Rules bo substituted for the Rules made in Hilary Term last, by the Judges of the said Court of Queen's Bench, for the trial of such elections ; and that the forms of such writs, and the practice to be observed with respect to the matters aforesaid, shall bo as follows, that is to say: — I, The relator entitled to complain of any election shall in person or by attorney, by written motion, ajjply to one of the said Courts of Queen's Bench or (Common Pleus in Term time, or to the Judge presiding in (Chambers in vacation, for a writ of summons in the nature of a quo warranto, which motion must, according to the statute, be made within six weeks after the electi*. n complained agjiinst, or within one month after the peraon whoso election is (piestioned shall have accepted the office, and not afterwards. ^, Such motion shall be founded, first, on a written statement, which shall b( annexed to the motion j)aper, setting forth the interest which the relator has in the elec- tion, as candidate or voter, and setting forth also sjiecifically, under distinct heads separately numbered (if tliere be more than one), all such grounds of objection as he intends to urge against the validity of the election complained against, ;uul in favour of the validity of the election of the relator or another or other i)erson or persons, when he shall claim that he or they or any of them hav^ been duly elected ; and at the foot of such statement there shall be an atliilavit, made and signed by tlie relator, that ho believes such grounds to be well founded : and, secondly, on an aiHdavit or affidavits of the relator, or other person or {lersons, set- ting forth fully and in detail the facts and circumstances which shall support the application. The statement of the relator may be after the following form, mutatis mutamlis: STATJiMENT OF THE RELATOR. IN THE queen's BENCH {or COMMON PLEAS). The statement and relation of , of , who, complaining -, of that , of (here inaertin'i the names and additions of all, if more tluin one person), hath (or have) uot been duly elected, and hath Vi'.)H THE MUNICIPAL MANUAL. [Rule 3. {or have) unjustly usurped antl still doth {or do) usurp the office ot — -— , in the Town of {or Towiuthip of , an the. cane may he), in the County {or UnUcd Countien) of -^ — , under the pretence (»f an election held on — — , at , in tlio said County {or United Conn- tie.s) [and {whin it «.s claitntd that the relator, or the. relator ami another, or otherx, ontjht to have been retuiiiett) thot {here name the jmrtij or parlien m entitled) was (or were) duly elected thereto, and ought to have heen returned at such election], an«l declaring that he tlic said relator hath an interoHt in the said election oa a , Atates and shows the following causes why the election of the saiil to the said otfice shouhl be declared invahd and void. [And {when HO claimed) the said — — {namiuy the party or parties) be duly elected thereto.] Firnt — That {for ejcample) the said election was not conducted according to law, in this, that, &c. Second — That the said was not duly or legally elected or rcturne<\ in this, that, &c. Third— That, &c. Signed by the relator in person, or by C. D. his attorney. NdTi:.— Where tlic inteiitiun of tlio relator is to impearli the electir is altogether vi)ii whose election i.s cumphiined of) to show by what authority he {or the;/) the said (the ptirt;/ 'vhose election in complained of') now exercises or enjoys {or exercise and enjoi/) the said otlice [and why (//' m claimed) he (or the;/) the said — — should not be removed therefrom, and the saitl {relator or otlier perxon or persons named) should not be declared duly elected, and be admitted thereto]. Dated this day of , 18 — . NoTK. — If by Uule of Court, the abovo I'orin should be moiliflt'd aocordingly. ('.'J'.» 1 '1 Ii FORM OF WRIT OF SUMMONS. tTPER TAXADA. Victoria, by the Grace of God, &e. To , of , &c., in the County {or United Conntien) of ■, We command you {and each of //oh) that you {and each of ;/on) bo and appear before the Chief Justice or other Justice of our Court of Queen's Bench {or Common Pleas) for Upper Canada, jjresiding in Chambers, at the Judges' Chambers in our (Jity of Toronto, on the eighth day after the (lay on which you shall be served with thia writ, then and there to answer and show to sudi 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 say0; an interest iu the election to the said otiice m a -, we aro 'i^:&' r(K) THE MimiClPAL MANUAL. [Rule 4. informed that you have usurped and do still usurp [and that {if so claimed) the said {relator or jmrty or parties meiUioneil) wos {or were) and should have been declared duly elected and admitted tliercto], and further to do and receive all those things which our said Chief Justice or Justice shall thereupon order cunceruiug the premises. Witness the Honourable , Chief Justice of our said Court of {or other Justice in whom name the writ in tented), at Toronto, this day of , 18 — , and in the year of our reign. FORM OF NOTICE TO BE ENDORSED ON OR ANNEXED TO THE WRIT OF SUMMONS. IN THE QUEKN'a BE.VCH (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 tiled in the oihce of the (Jlerk of the Crown in this Court (or with the Ckrk in Chamhern al tfie City of Toronto), together with alhdavits supporting the same ; and the names and additions of the dejx>nents to the said aliidavits are hereunder written. And you are served with the said writ of summons to the intent that you do appear and answer as tliereiu commanded, or otherwise judgment will be given against you by your default, and your clectier: "Tho within named ('. 1)., «ke., appears in iKji-Kon (or by attoi aey, as tho cuho may be) to answin- the ^'rounds of objection to his election, which uro stated within." ti. If upon the return day of the siimmons the party or parties, having been duly served, shall not appear, then, on proof of such service by atKdavit, accoitling to tla; form sub- joined, the Judge sitting in Chambers may, before rising on that day, direct an entry to l)e made as to such jiarty or parties as make default, on tho back of the relator's state- ment, thus: "The within named C D. (and K. F.), Ijeing duly summoned, hath (or have) not api)eared to answer to the mattera within objected;" which entry shall bi? dated on tho day of the return, and may be made on any subse- quent day, if omitted to be made on that day. FORM OF AFFIDAVIT OF SERVICE. \yiipn mndi pi-rmnallif, if tierricc spcr'nd uvder the l^th r/aittr, of Uf StatiUe I J Vic. cap. HI, (he ajjidaoit to be modijitd acmrdiixjlij. (See sec. 131, sub. 7, of the Municipal Act.) IS THE queen's bench (or COMMON PLEAS), The Queen, on the relation of , against . -, of , in the , makctli f)atli and saitli, that ho did, on the day of , personally serve the above naineil dofontlant (or defcndantx) with the annexed writ of summons, l>y delivering to him (or rack of them) a true cr)j)y tlnreof, on which sai I copy was endorsed a written notice, a copy whereof is hereto annexed, and to wliicli said copy (or rojilr.i re-:i/i:r(iri/ii) of the saiil writ was annexed a written copy of a statement of the ahove named relator, a copy of which said copy of statement is also hereunto annexed ; and the deponent further saith, tliat the minute (or »iiiii((e.i) of the said service, written on the said writ of summons, was (or wre) so writ- ten by this deponent within twenty-four liours after sucli service. Sworn at , in the County of , this day of , 18— , Before me, . C. When it shall appear to tho Court or JiidLfo tli.'it tin- Returning Officer should be made a i)arty, a writ of sntii- mons shall issue to him, in the following form, upon a Rule ofCourttoissueforthatpurpo.se, or upon tin; Hat of thf Judge, which summons shall Ix? served with the like papers annexed, and the service thereof proved in like manner a.-^ is provided for other writs 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- 7('^ THK Mt'NICll'AL MASfAL. [Uulo7. ncr; ami in dofiutlt thirnof, In hIjuII Im lia')ln to Imvn judgment pass a^jiiinst liiin in IiIh ahsonco, i\n in the ciisn of any other (l«'fen«liiiit niakini,' a like default, and bo dealt with Ity attaeliuieiit, exoiMitio:i or otiiersviso, hh the circum- stunouH of the ease may itcjuii'j. FORM OF WKIT OF SUMMONS TO A III}T[:RNING oFl'IOKIJ. trPKJl CANADA. VirroRfA, by tlie (Irnoc of (Jo«l, &c. Whereas, upon the relaticui of , in the Court of Qucen'tt Bench (or Common I'lau), , it hath buun onleretl that a writ of Bummons sliould issue to , to show by what authority hu (or theif) claims or excrci«c3 (or ehtim or exfrcl'm) the otficc of . And whereas it appears to our Justices of our Court of Queen's Beuoli (or Common I'lfu/i), bef(»re whom the said writ hath been made returnable [or an the cnne mmj be), that you were the lleturning Officer by whom the said hath (or /mrc) been returned as duly elected to the said oftice, 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 Pleaa) for Upper Canada, presiding in Chambers, at the Judges' Chambers in our City of Toronto, on , then and there to answer such matters and things OS 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. t^ In case of default of appearance by ftny 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 peMons alleged to have been duly elected, and give judg nieut thereon ; or he may, in his discretion, with or without any application for that purpose, and having regard to the distance of the place where the party was served, or other circumstances, appoint a further day for the appearance of the party or parties sumraoiied, of which an entry shall be made and signed by the Judge to the following efffect, 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," e allowtul to object to the tdection of tlio [)arty or jnirties complained against, or to support the flection or elections of the person or persons alleged to have Iwon duly eh?ct<*tl, on any ground not specified in the statement on which the summons was moveid ; but it shall nevertheless be in the discretion of the Judge, if ho shall think fit, to entertain upon his own view of the case any substantial ground of objection to or in support of the validity of the election of either or any of the parties which may apjxjur in the evidence before liini. 10» When the party or ])ai*ties summoned hjis or have appeared, no more formal answer need be made by him ot them to the relator's case than by affidavits filed in answer; but the Judge before whom the case shall bo |>ending may, in his discretion, require from either or any party further affidavits, or the production of any such evidence as the law allows. 11, In case of disclaimer under the statute 13 tk 14 Vic. cap. 64, schedule A, No. 23, the provisions therein contained, and in sub-proviso No. 6, are to be observed. (See now sec. 144 et seq. of the Municipal Institutions Act.) VHt In case a necessity shall a])pcar for sending an issue to be tried by a jury, the writ for that purjiose may be in the following form, and shall issue on the fiat of the J udgo •lirecting the same, and bear date on the day of its issuing : WRIT OP TRIAL. [L.S.] Victoria, by the Grace of God, of tho United Kingdom of (xreat Britain and Ireland, Queen, Defender of the Faith. To the Judge of the County Court of the County of , Grkbtinq : \Vhereas, upon the trial of tho validity of an election of , Ohosen upon tne day of ,'to lie for the Township of (w as the case may be), in the County of , and wliich elec- tion hath been complained of by E. F., as the relator, alleging {a« the case may be) 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 utaling concisely the issues to be tried); and whereas it 'a desired by , our Chief I 704 THE MUNiriPAL MANUAL. [iiuio m. .FuBtico (or Jiutirf) of our (.'ourt of Quocn'a Ronch (or Common Pit an), iMjfure wliom thu snino in i)eny twulvu giMMl and lawful men of the County of , who aro in ho wiBu akin to thu Haiti K. K., thu relator in tho itaid coao, or to the Maid (Ihf othir partij or fHtrtiin, namiuijhlm or them), and who Rhall Im- ■W(»rn truly to try tin; truth of tho Raid matters, you do pn^-eed to try the samu a<;corilingly ; and when tho jury shall havu given their verdiet on the matttirs aforeHaid, we oonunautl you that you do forth with make known to our Haid Chief .lustieo (or JiMtirr) what nhall have been done Ity virtue of this wi4t, with tho finding (»f the jury hereon undorsetl. Witness tho Honourahlo Court, at TonfH'fi<'i) l>y their attorneys (or an Iho canf ma;/ ltr\, iiud the jurors of tho jury, ny mo duly summoned as within com- iitanded, also came, and lieing sworn to try tho matters within mentioned on their oath, said thai, &e. ISI. When th(! Jiulpt boforo wlioin any such ca«e .shall bo pending Hhal! havo dtitoruiinod tho Baino, either ex parte, in case of (Uit'ault, or on hearing th(i parties, or i»artly ex part)', and partly on liearing tho parties, he shall make up antl annex to the .statejuent of tho relator, and to the aflidavits and other {lapel's lileil in tho case, a written judg- ment, attested by his signature, and dated on tlie day of the saiuo lieing sigiunl, in which it shall bo sufficient to state concisely tlio ground and effect of the judgment, which judgment may 1)0 at any time amended by the same Judge, in regard to any matttu" of form. And the following may be the form of judgment when in favour of the relator : IN THE (JVEKN's IIKNCU (or COMMON I'liEAS). The Queen, on the relation of , against . Be it remembered, tljat on tho day of , in tha year oi nur Lord one tliousand eight hundred and , at the Judges' Chamltera in tlie City of Toronto, i)eforo me, , Chief Justice [or Juxtki') of Her Majesty's ('ourt of Queen's llench (or Common P/i-as). came as well tho above named relator by , his attorney, as the above name»l by liis (or their) attorney, and service of tho writ of summons hereunto annexed having been duly proved upon alii- davit, and upon the said day and upon other days thereafter, at his Chambers aforesaitl, having heard and rcail the statement and proofs of the said relator, touching and concerning the usurpation by him alleged against tho said of the otlice of , in the said writ of Rulo 13.] FORM OF JUIKIMBNT IN FAVOUR OF RELATOR. vor^ ■uinmoiiH muntioiiod [niul (•/ mo) tliu oluction of (tfw j>artu ur ftartie* mimrit) tliuret' adjudifd /o /f ■ititled to thf naid o(firi'\ was {or iren) tliily elected thereto, and ight to have heen returned, and is {or ar<) entitled in law to 'k; receivo«i into, and to use. exercise and enjoy the said olfice: And I J > adjudge and dutoiiiune that the said lo not in any rornocr concern himself {or themsfhru) in or about the said oHice, but tliat he {or ii'y) be absolutely forejudged and excluded fnmi further using or exercising the same, under ](retence of the said election [and further, that the said {nainiiiij th>' niator ur /Hirli't whonr. flection is ajfinucil) be {or he nijurtiitly) admitted to the s.iid otlicc in his (r)/' //t^j'r) i)lace or places: [And I do further order, iuijudgu and determine, that the said relator tlo recover against the said hia costs and charges by liim in ane tried, preparing same 1 00 Disbursements — Postages actually paid; mileage when it is necessary to employ parties to serve writs, papers, &c. , the actual number or miles travelled to perform the service, per mile 10 (The affidavit must state the number of miles actually tra- velled, and also that the charge has been paid. ) N.B. No instructions to be allowed nor attendances to swear affidavits. Instructions for briefs as in ordinary cases. Briefs, per folio of original matter, when necessary 20 Briefs, per folio of copy, when necessary 10 COUNSEL. Fee — For argument upon the return of the writ of summons, if argued by counsel 10 00 To be increased at the discretion of the Judge, according to the importance of the case, to not exceeding 20 00 CLERKS OF THE CROWN AND FLEAS AND THEIR DEPUTIES. {As per Statute S7 it 18 Vie., cap. 5.) , For taking recognizance 60 For signing and sealing each writ 30 For each order or Rule of Court 50 For filing each paper 10 Copies of papers, per folio of 100 words 10 COMMISSIONER. For taking recognizance 60 Swearing each affidavit 20 (Signed) Wm. B. Richards, C.J. John H» Haoarty, C. J., C.P. Jos. C. Morrison, J. Adam Wilson, J. John W, Gwynne, J. Thomas Gai-t, J. Ili^ 712 APPENDIX. AN ACT RESPECTING (.'ERTAIN ROADS AND BRIDGES (C. 8. C, Cap. 85.) Her Majesty, by and with the advice and consent of the Legislative Council and Assembly of Canada, enacts as follows : Uhr of public 1, The right to use as public highway all roads, streets 'iUes and ^^^ public highways within the limits of any City or In- tovms vested corporated Town in this Province, shall be vested in the municipa- Municipal Corporation of such City or Incorporated Town "ty (except in so far as the right of property or other right in the land occupied by such highways have been expressly reserved by some private pai-ty when firat used as such roads, «treet or highway, and 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 com- pensation therefor, in lieu of such Concession or side road. 13, 14 V. c. 15, 8. 1. The corpora- %, Such roads, streets and highways, so long as they *'ai'r *4c^ ' cmain open as such, shall be maintained and kept in proper repair by and at the cost of such Corporation, whether they were originally opened and made by such Corporation, or by the Government of this Province, or of either of the iato Provinces of Upper or Lower Canada, or by any other authority or party. 1^, 14 V. c. 15, s. 1. Oonao- «l,uenoea of neglect. 3. If the Municipal Corporation of any such City or Incorporated Town fail to keep in repair any such road, street or highway within the limits thereof, such default shall be a misdemeanor, for which such Corporation shall be punished by fine in the discretion of the Court before whom the conviction is had ; and such Corporation shall be also civilly responsible for all damages sustained by any party by reason of such default, provided the action for the re- 88. 1, 2.] TRAVELLING ON PUBLIC HIGHWAYS. 713 covery of such damages bo brought within three months after the same has been sustained. 13, 14 Y. c. 15, s. 1. 4. Any public road or i^ridge made, built or repaired Government at the expense of the Province, and wjiich was, on the tenth bo'ceded to. day of August, one thousand eight hundred and fifty, under the management and control of the Commissioners of Public Works, may, by Proclamation of the Governor, issued by and with tlie advice and consent of the Executive Council, be declared to be no longer under the management and con- trol of such Commissioners. 13, 14 V. c. 15, s. 2. 5* From and after a day to be named in such Proclama- After which tion, such road or bridge shall cease to be under the manage- authllrale* ment and control of such Commissioners, and no tolls shall to repair be by them afterwards levied thereon, but such road or bridge shall be under the control of the Municipal authorities of the locality and of the road officers thereof, in like manner with other public roads and bridges therein, and shall be maintained and kept in repair under the same provisions of law. 13, 14 V. c. 15, s. 2. m AN ACT TO REGULATE TRAVELLING ON PUBLIC HIGHWAYS. (C. S. U. C, Cap. 66.) Her Majesty, by and with the advice and consent of the Legislative Council and Assembly of Canada, enacts aa follows : Wheeled Carriages or Sleighs Meeting. 1. In case any person travelling or being upon any high- Cnrriages way in charge of a vehicle drawn by one or more horses, or Slive to the one or more other animals, meets another vehicle drawn as [,^if*tij'^'^'"'* aforesaid, he shall turn out to the right from the centre of road. the road, allowing to the vehicle so met one half of the road. 18 V. c. 138, s. 2. 8. In case any person travelling or being upon any high- *^*"1"?' way in charge of a vehicle as aforesaid, or on horseback, be turn to t'he"^ overtaken by any vehicle or horseman travelling at greater "^^ht. speed, the person so overtaken shall quietly turn out to the right, and allow the said vehicle or horseman to pass. 18 V. 0. 138, s. 3. en to 714 THE MUNICIPAL MANUAL. [bs. 3-9. Penalty on drivers, &<•., tuo drunk to mmiAKe tlioir horses. If theweight 3. I^ the case of one voluele being met or overtaken by them pre- anotiior, if by reason of tlie extreme weight of the h)ucl on veats tiiU. eitlier of the vehicles so nuieting, or on the vehicle so over- taken, the driver finds it impracticable to turn out as afore- said, lie shall immediately stop, and, if necessary for the safety of the other vehicle, and if required so to do, he shall assist the person in charge thereof to pass withou' daniage. Peiudty if Driver Intoxicated. 4. In case nny person in charge of a vehicle, or of a horse or other animal used as the means of conveyance, travelling or being on any highway as aforesaid, be through drunken- ness 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. 18 V. c, 138, s. 4. liacing Prohibited. 5. No person shall race with or drive furiously any horse or other animal, or shout or use any blasphemous or indecent language upon any highway. 18 V. c. 138, s. 5. 6. In case any person so races or drives, or shouts or uses blasphemous or indecent language, he shall incur the penalties imposed by tJuis Act. 18 V. c. 138, s. 5. Sleigh Bells. Y. Every person tmvelling upon any highway with a sleigh, sled or cariole, drawn by horse or mule, shall have at least two bells attached to the harness. 18 V. c. 138, s. 7. Bridges. 8. Every person who has the superintendence and man- agement of any bridge exceeding tbii'ty feet in length, ehall cause to be put up at each end thereof, conspicuously placed, a notice legibly printed in the following form : " Any person or persons riding or driving on or over this "bridge at a faster rate than a walk, will, on conviction " thereof, be subject to a fine, as provided by law." 8 V. c. 44, 8. 3. Penalty on 9- In case any person injures, or in any way interferes Sefacing ""^i^^ ^^^^ notice, he shall incur a fine of not less than one ■uoh notice, nor more than eight dollars, to be recovered in the same manner as other penalties imposed by this Act. 8 V. c. 44, s. 4. Racing on higliways forbidden. Swearing on highways forbidden. Sleigh horses to have bells. Notice to be Dusted at the bridges to which this Act applies. 88.10-16.] THAVELLINO OX PUDLU! HIOIIWAYH. 715 Pt^nnlty for CDiitraveii- iiig tbU Act. To be cnfdiTcil by ilistri'H:!, 10. If. while such notice contiuuoH up, any i)erson rides I'nst 'iriving , *^ . OVlT liriflLIt'H or drives a horse or otlier beast of burden over sucli bridge forbiUiieu. at a pace fsister than a walk, ho shall incur the penaltitia imposed by this Act. 18 V. c. 138, a. G. Penalties. 1|. In cases not otherwise specially provided foi', if any person contravene.s this Act, and such contravention l)o duly proved by the oath of one credible witness, before an}' 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 otie dollai- nor more than twenty dollars, in the »..! jcretion of such Justice, with costs. 1!?. 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 .sigued 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. 13. In default of payment or distress, the offender shall, by warrant signed and sealed as aforesaid, be irapri.soned 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 be sooner paid. 14. No such fine or imprisonment shall be a bar to the recoveiy of damages by the injured party before any Court of competent jurisdiction. 18 V. c. 138, s. 8. 15- Every fine collected under this Act shall be paid to the Chamberlain or Treasurer of the Local Municipality or place in which the offence was committed, and shall be applied to the general purposes thereof. 18 V, c. 138, s. 9. IC. Any conviction under this Act may be appealed in the manner provided in the Act respecting appeals in cases of summary convictions. 18 V, c. 138, s. 10. Or by im- prisuument. Not to bar action of damugeg. Apiilication of peualties. Appeal. i I' :i n« AN ACT EXEMPTING CERTAIN VEHICLES, HORSEvS AND OTBER CATTLE, FROM TOLLS ON TURNPIKE ROADS. (C. 8. C, Cap. 86.) Her Majesty, by ami with the advice and consent of the Legislative Council and Assembly of Canada, enacts as follows : "•*"<">• 1. All persons going to or returning from Divine Service returning on any Sunday or obligatory holiday, in or upon and with service ox"-" *^^^"' ^^^ carriages, horses or other beasts of draught, and enipted from also their families, and servants being in or upon and with such carriages, horses or other beasts of draught, shall i)a8s toll-free through every turnpike or toll-gate on any turn- pike road through which they may have occasion to pass, whether such tum])ike road and the tolls thereon belong to the Province, or to any local or Municipal authority, or body of Trustees, or Commissioner* for local purposes, or to any incorporated or unincorporated Company, or to any other body or person. 7 V. c 14, s. 2. /J. No vehicle laden or unladen, and no horses or cattle belonging to the proprietor or occupier of any lands divided by any turnpike road, shall be liable to toll on passing through any toll-gate on such road (at whatever distance the same may be from any City or Town) for the sole pur- pose of going from one part of the lands of such proprietor or occupier to another part of the same ; Provided such vehicle, horses or cattle do not proceed more than half a mile along such turnpike road, either in going or in returning, and for farming or domestic purposes only. 7 V. c. 1 4, s. 3. Vehicles^ 4c. 3. Every vehicle laclen solely with manure, brought from luanurepas- ^^Y ^^^7 ^^ Lower Canada, or any City or Incorporated sing from Town in Upper Canada, and employed to carry the same towns ex- into the country parts for the purposes of agriculture, and i^t from tjjQ horse or horses or other beast of draught dnvwing such vehicle, shall pass toll-free through every turnpike gate or toll-gate on any turnpike road withia, twenty miles of such City or Town, as well in going fsom such City or Town as in returning thereto, if then empty. 7 V. c. 14, s. 1. Vehicles, cattle, &c., crogfiing roads when » farm divi- ded by tlio road, ex- empted from toll— when. tul This Act not 4. This Act shall not extend to any toll bridge, the tolls . which ar( 7 V. c. 14, s. 4. iiriXes^ ^ °^ which are vested in any party other than the Crown. 717 County councils iniiy pMM liy-lawK for making double trai-kB on roixlH during Blvighing 8Uiiiion. Nature of tracks. AN ACT TO PROVIDE FOR THE MAKING OF DOUBLE TRACKS IN SNOW ROADS. (38 Vic, Cap. 40.) Her Majesty, by ami with the advico rnd consent of the Legislative Assembly of the Province of <>.itario, enacta as follows : — 1, The County Council of each County in Ontario may provide by By-law for the making of a d jublo tiack, during the season of sleighing in each and every year, upon such public or leading roads within the county, wljothcr county roads or not, as such t'oimcil iJiay deem advisable. /}, Whenever a County Council shall pass such a By-law, the double track to be niiule shall be so made that teams shall be able to pass without being obliged to turn out when meeting each other. ** 3* The right hand track' jhall always be that in which a Right of team shall be required to travel ; and if any person is driving "** ' his team in the wrong track, it shall be his duty to leave the same whenever ho shall meet another team rightfully entitled to use such track. 4, A County Council may also provide by By-liiw that path-msisters appointed by Township Councils shall cause the roads on which double tracks are to be made to be kei)t open for travel within their respective Municipalities, or in the event of there being no such path-mast«rs 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 keeping open such roads within their respective Munici- palities, and to give to such persons as may be em)>loyed in so doing, certificates of having performed statute labour to the amount of the days' work done, and sucli 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 Coimcil of so much of the commutation of statute labour fund as may be necessary for the keeping open such roads as aforesaid within their respective Municipalities. 5. In the event of a Township Council neglecting or refusing to keep such roads open for travel as mentioned in the next preceding section of this Act, the County Council Dutiett and poweni of path- mas- ters or road masters. If township refuse to make tracks, county may do so and impose a raie. m 718 TUB MUNICIPAL MANUAL. [hh. 1,2. Panslty for flllHMtlH ro- uhIii); to wurk uiKler pntli- uiMten. Penalty for travellinj; oil lull hand track anil rcfosing to turu out. Interprots- tinii !>!' tlio word " team." ftluill bo entitled to ilo so, ami to iinposo upon the Townnhip BO in default a rate sufHoifnt for that j»ur|tose, anss than one dollar, nor morn than twenty dollars, over and above the costs of j)ro- Becution, and in case of non-payment, to imprisonment for a term not exceeding twenty-one days. 8, The word "team" shall be taken to mean a vehicle drawn by one horse or other animal, or a greater number of horses or other animals, as the case may be. rrcambk. Owners of land to cut down this- tles growing on their laada. Ponaltjr. Duty of overseers of highways under tliis Act. AN ACT TO PREVENT THE SPREA-DINa OF CANADA THISTLES IN UlTEll CANADA. (50 Vic, Cai-. 40.) HEn Majesty, by and with the advice and consent of the Legislative Council and Assembly of Canada, enacts aa follows ; 1, It shall be tho duty of every occupant of laud in Upper Canada, to cut or to cause to be cut dowxi all tho Canada thistles growing thereon, so often in each and every year as shall bo sufficient to prevent thorn going to seed ; and if any owner, possessor or occupier of land shall knowingly suffer any Canada thistles to grow thereon, and tho seed to ri|ten so ae 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. ^, It shall be the duty of the overseers of highways in any Municipality to see that the provisions of this Act are Rfl. 3,4.] PRF.VENTfNO TUP. SPUEAniNO OF THISTLES. 719 (^rricd ort witliin tluMr rp»i>ortivr }ii;;hwi»y divi«ions, l>y oittiii;,' or nuisinj^ to In* <'nt all tlit? ('hiwhIii tliistl«'H f^rowinf* on the liiijliwtiyM or rnjid iillowaiio'K witliiii tli«'ir nis[M>ctive flivisious, and «vcrv sin'h ov«>rsc<»r shall yivt^ notice in writinjjf to tlic owiinr, posHcHsor oi- on-iipitT of any lanoal idlowed. Penalty on sale of any seeil mixed with thistlo Si'dd. Penalty on overseer neglecting liis duty. Recc.'ery nf peualtiea. 0. Any person who shall knowingly vend any grass or other seed among v/hicli there is any seed of the (Canada thistle, shall for every such oflfuice, upon conviction, Ik? liable to a fine of not less than two nor more than ten dollars. '3', Evei^' overseer of highways or other officer who shall refuse or nogl'^ct to discharge the duties imposed on him by this Act, si, j,ti be liable to a fine of not less than ten nor more than twenty dollars. 8, Eveiy offence against the provisions of this Act shall be punished, and the penalty hereby enforced for each offence shall be recovered and levied, on conviction, before any Justice of the Peace ; and all fines imposed shall be paid into the Treasury of the Municipality in which such convic- tion takes place. 721 AN ACT TO AMEND THE ACT CHAPTER FORTY, TWENTY-NINK VICTORIA, ENTITLED "AN ACT TO PRKVi'jNT THE SPREADING OF CANADA THISTLES IN UPPER CANADA." (32 Vic, Cap. 41.) Whereas it is desirable to amend tho Act relating to the Preamble, spread of Canada tliistles in Up])er Canada: Therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : — 1. Notwithstanding anything in the said Act contained, ovomeorto it shall not be lawful for any overseer of highways to enter hiv .• autho- upon any of the duties therein imposed, without having first council. obtained authority from the Municipal Corporation of which he is an officer. 3. It shall be lawful for a,ll Municipal Corporations in M'^'cipai ■ . „, . 1-1 • ft Corporation* the Province of Ontario to authorize tho carrying out of the to carry out provisions of the said Act. ^'^ ' AN ACT TO AMEND THE ACT IMPOSING A TAX ON DOGS AND FOR THE PROTECTION OF SHEEP. (:t2 Vic, Cap. 31.) Whereas it is expedient to aii.ond the Act twenty-nine Preamble, and thirty Victoria, chapter fifty-five, entitled An Act to Amend and Consolidate the Acts to impose a Tax on Dogs, and to provide for the better Protection of Sheep in Upper Canada : Therefore, Her Majesty, by and with the advico and consent of the Legislative Assembly of the Province of Ontario, enacts as follows: — 1, The Act passed in the twenty-niuth and tliirtieth 29& 30 Vic. years of Her Majesty's reign, chapter fifty-five, entitled An ^''^^'''^• Act to Amend and Consolidate the Acts to impose a Tax on Bogs, ami to provide for the better Protection of Sheep in Upper Canada, is hereby repealed. %, There shall be levied annually, in every Municipality Annnai tax in Ontario, upon the owner of each dog therein, an annual *"' "^'" tax of one dollar for each dog, and two dollars for each bitch : Provided, however, that in case the Council of any County Proviao. 722 THE MU'I^ICIPAt MANUAt. [ss. 3^0, Duty of assessors herein. Duty of owners of dogs. Penalty. Tax entered on collec- tor's roll. Tax to form fund for damagoB, or union of Counties may deem it advisable to dispense with the levy of the said tax, it may be lawful for such Council to declare by By-law that the said tax shall not be levied in any of the Municipalities within its jurisdiction; and, im- mediately upon the said By-law having been passed, shall cause its Clerk to transmit a copy of the same to the assessor or assessors of every Municipality so within its jurisdiction. 3i The assessor or assessors of eveiy Municipality within which this Act shall not have been dispensed with, as pro- vided in the foregoing section, shall, at the time of making their annual assessment, enter on their roll opposite the name of every peraon assessed, and also opposite the name of every resident inhabitant not otherwise assessed, being the owner or keeper of any dog or dogs, the number by him or her owned or kept, in a column prepared for the purpot^e. 4. ^-tiie owner or keeper of any dog shall, when required by the assessor or assessors, deliver to him or them, in writing, the number of dogs owned or kept, whether one or more ; and for every neglect or refusal to do so, and for every false statement made in respect thereof, shall incur a penalty of five dollars, to be recovered before any Justice of the Peace for the Municipality, with costs. 5. The collector's roll shall contain the name of every l>erson entered on the assessment roll as the owner or keeper of any dog or dogs, with the tax hereby imposed, in a separate column ; and the collector shall proceed to collect the same, and at the same time and with the like authority, and make returns to the Treasurer of the Municipality, in the same manner, and subject to the same liability for paying over the same in all respects to the Treasurer, as in the case of other taxes levied in the Municipality. ^. The money so collected and paid to the Clerk or Treasurer of any Municipality shall constitute a fund for satisfying such damages as may arise in any year from doga killing or injuring sheep or lambs in such Municipality; and the residue, if any, shall form part of the assets of the Municipality for the general purposes thereof ; but the fund ehall be supplemented, when necessary, in any year to pay charges on the same, to the extent of the amount which ,may have been applied to the general purposes of the Municipality* ss. 7-10.] PROTECTION OF SHEEl'. 723 for I'.i.s.s iTi whioli owner of il'ic not known. 7, The owner of any sheep oi' Iamb killed or injured by J?**^?,"* °^. any dog shall be entitled to recover the damage occasioned owner or thereby from the owner or keeper of such dog, by summary ^y'^^'-''' °' proceedings before a Justice of the Peace, on iuforination or complaint before such Justice, who is hereby authorized to hear and determine such complaint, and proceed thereon in th'j manner provided by cha[tter one hundred and three of the Consolidated Statutes of Canada, in respect to proceed- ings therein mentioned ; and such aggrieved party shall be entitled so to recover, whether the o\fner or keeper of such dog knew or did not know that it was vicious or accustomed to worry sheep. ' 8. The owner of any sheep or lamb killed or injured by Provision any dog, the owner or keeper of which is not known, may, within three months, ap])ly to the Council of the Munici- pality in which such sheej) or lamb wa,s so killed or injured, for compensation for the injury; and if such Council (any member of which sliall be competent to administer an oath or oaths in examining ])arties in the premises) shall be satisfied that the aggrieved party has made diligent search and inquiry to ascertain the owner or keeper of such dog, and that such owner oi- keeper cannot be found, they shall award to the aggrieved party for compensation a sum not exceeding two-thirds of the amount of the damage sustained by him; and the Treasurer of su(;h Municipality shall pay over to him the amount so awarded. 9, In case the owner of any sheep or lamb so killed or Provision injured shall proceed against the owner or keeper of the dog wiiere''tiar« that committed the injury, before a Justice of the Peace, as j- '"'v"»"'-" provided by this Act, and shall be unable, on the conviction .listlvHs in- of the offender, to levy the amount ordered to be paid, for "Efficient, 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 Trea.surer 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 proceedings before such Justice and before the Council. 10. After the owner of such sheep or lamb shall have After con- received from the Municipality any money under either of {'fiij\y „ the preceding sections, his claim shall thenceforth belong to "'•'ipaiity sucii Municipality ; and they may enforce the same against beidng to the offending party for their own benefit, by any means or '•^*"'' form of proceeding tiat the aggrieved party was entitled to PrjTiw. niu- 724 THE MUNICIPAL MANUAL. [SS. 1M4. Ptnalty. Proviso. take for that purpose: Provided always, that in case such Municipality shall recover from the offender more than thoy had paid to the aggrieved party, besides their costs, they shall pay over the excess to such aggrieved party for his own use. Dogs seen 11. Any pei"son may kill any dog which he may see worrying. worrying or wounding any sheep or lamb. Dogs known 1^, The owner or keeper of any dog, to whom notice HhelpTo be shall be given of atiy injury done by his dog or dogs to any killed by sheep or lamb, or of his dog or dogs having chased or wor- ried any sheep or lamb, shall, within forty-eight hours after such notice, cause such dog or dogs to he killed; and for every neglect so to do, he shall forfeit a sura of two dollars and fifty cents for every such dog, and a further sum of oue dollar and tweuty-fivc cents for each such dog for every forty-eight hours thereafter, until the same be killed : Pro- vided that it shall be proved to the satisfaction of the Justice of the Peace before whom such suit shall be brought for the recovery of such penalties, that such dog or dogs has or have worried or otherwise injured such sheep or lamb : Provided also, that no such penalties shall be enforced in case it shall appear to the satisfaction of such Justice of the Peace that it was not in the power of such owner or keeper to kill such dog or dogs. 13. In cases where parties have been assessed for dogs, and the Township collector has failed to collect the taxes authorized by this Act, he shall report the same under oath to any Justice of the Peace, and such Justice shall, by an order under his hand and seal, to be served by any duly qualified constable, require such dogs to be destroyed by the owner or owners thereof; and if such owner or owners neglect or refuse to obey the said order, he or they shall b3 liable to the penalty, to be recovered in the same way and manner as already provided in section number seven of this Act ; and in case any collector neglects to make the afore- said report within the time required for paying over the taxes levied in the Municipality, he shall be liable to a penalty of ten dollars and costs, to be recovered in the same way and manner as already provided in section number seven of this Act. Liability of 14. If the Council of any County or union of Counties dogownerto g^ould, as already provided by By-law, decide to dispense ■heep owner . , ,' , n i p • i • i -»«-•• i- -ii-' where tax With the levy of the atoresaid tax in tne Municipality witnui not impoiied. Proviso. Prnff"'''ngs where ol- lector lias failed to collect taxes from parties assessed for dogs. Penalty. Penalty. 88. 15-18.] PROTECTION OF SHEEP. 726 Fees and returns by Juiitices. its jurisdiction, the ownoi* of any sheop or lamb to the con- trary 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 sheep or himb; and the same shall bo recovered in the way and manner provided by section seven of this Act. 15. The owner of any sheep or lamb killed or injured cases where while running at large upon any highway or unenclosed ",^^"" ?' land, shall have no claim under this Act to obtain cumpen- hasnocoin- sation from any Municii)ality. pensatiou. 16, Every Justice of the Peace shall be entitled to cliEtrge such fees in cases of prosecutions or orders under this Act as it is lawful for him to do in other cases within his juris- diction ; and he shall make the returns usual in cases of conviction, and also a return ': aach case to the Clerk of the Munici{)ality, whose duty it shall be to enter the same in a book to be kept for that purpose. * t7. In case the Council of any County or union of Counties deems it advisable that the tax by this Act estab- lished should be maintained, but that the application of the proceeds thereof by this Act provided should be dispensed with, it: shall be lawful for such Council by By-law to declare, that such application shall be dispensed with ; and thereafter, during the continuance of such By-law, the clauses of this Act numbered from six to fifteen inclusive shall have no force or effect in any of the Municipalities within the jurisdiction of such Council; and the moneys collected and paid to the Clerk or Treasurer of any such Municipality, under the remaining clauses of this Act, shall be the pro- perty of such Municipality, and shall be subject to its disposition in like manner as oti, n* local taxes. 18. The Council of any County or union of Counties shall have power, from time to time, to repeal any By law passed under the authority of this Act, and to enact or re- enact any By-law authorized by this Act. Provision for cases in which couB- cil niaiutains t:ixes, liut does not ap- ply proceed* thereof. County ooiinuil may repeal by- laws passed under Act '•W' 726 Preamble. Sales for taxes made valid if pur- chaser had continiiPAl AN ACT CONCERNING SHERIFF'S SALES FOR TAXES. (S3 Vic, Cap. 23.) Whereas many lands in the Pi-oviiice of Ontario having been liable to be assessed for taxes have been assessed and sold for taxes, and frequently in such cases the sales or the conveyances made thereon are invalid by reason of defects or irregularities caused by the public officers or the munici- palities charged with the assessing, sale or conveyance ; and the original ownieis who.se lands were sold have for the period during which the land was so assessed, and since, neglected or refused to jjay any tiixes or to redeem the lands; And whereas also, in many cases, the purchasers at ^uch sales, or those claiming under them, have entered into pos- session and continued in possession for several years and made extensive improvemcnits on the lands, and paid the taxes charged thereon, without any steps having been taken by the original owners to question the validity of such sales; and also, in other cases, after improvement so made, those who have made the same have, after many years' occuj)ation, been dispossessed by the origuial owners, or by purchasers from them, at a small and inadequate price, and it is expe- dient that a remedy be provided in thpse cases Avhere purchasers, or those claiming under them, have gone into possession and inqjroved, and also where the lands having continued vacant, the ])urchaser, or those claiming under him, have paid taxes since the sale, and it is also expedient that those claiming lands sold for taxes should assert their own rights of action or of entry or forego such rights rather than sell the same to a purchaser: Therefore Her Majesty, by and with the advice and con- sent of the Li^gislative Assembiv of the Province of Ontario, enacts as follows : — 1, In all case.^ where lands which were liable to be assessed according to the true intent and meaning of the statutes in that behalf, have, or any part thereof has, been sold and conveyed under colour of such statutes for taxes in ari-ear, and the tax purchaser at any such sale had ])rior to the first day of November, one thousand eight hundred and !-^ixty-nine, gone into and continued in occupation of the land dolil, or of any part thereof, for at least four years, and has made improvements thereon to the value of two hundred dollars, such sale shall be deemed valid, notwithstanding the taxes or the Sheriff's fees and charges for which the land s. 1, sub. 3.j sheriff's sales for taxes> 727 was sold wei'e not imposed and cliarged in due form as required or authorized by the said statutes or any of* them, or exceeded the amount hiwfully chargeable, and notwith- standing any defect in the warrant to sell, or that such warrant Wiis issued too soon, and notwithstanding any irregularity in the notices of sale, or the advertising and publishing thereof, oi in, or as to, the time and place of any such sale, or cas to any adjournment of sale, and notwith- standing that there was on such lands any property that might have been distrained, and notwithstanding that the lands have been assessed againat some person as resident or occui)ant, when they should have been assessed as non- resident lands, or were assessed as non-resident lands when they should have been assessed against the owner or occu- pant or both, and notwithstanding any informality or defect in the keeping of accounts of the taxes charged against such lands, or with which they were chargeable, and notwith- standing any other omissions, insufficiency, defects or irregu- larities whatsoever as regards the assessment or sale, or the preliminary or subsequent steps recpiii-ed to make such sale effectual in law; Provided that in Cities, Towns and incor- poi-ated Villages, buildings only shall be deemed improve- ments within this section; and that improvements com- menced after the commencement and during the pendency of any suit or action at law or in equity to dispute the validity of, or set aside such sale, shall not be included in the valua- tion of such improvements under this section; and provided also, that where the property sold has been sub-divided into lots before such sale, occupation and improvement of any lot or lots according to such sub-division, shall only make valid the sale as to the lot or lots so occxqned and improved ; Provided also, that this section shall not apply in the follow- ing cases: — (1.) If the taxes for non-payment whereof the lands were sold had been fully paid before the sale. (2.) If within the period limited by law for redemption, the amount paid by the purchaser, with all interest payable thereon, had been paid or tendered to the person entitled to receive such payment, with a view to redemption of the lands. • (3.) Where, on the groiind of fraud or evil practice by the purchaser at any such sale, a Court of Equity would gi-ant relief. In any case, however, wherein the sale or convey- jance would be made valid by this Act but for the provisions In nticn, towns and villages, liiiildingR only di'enied iniprovH- nuints. Iniprove- nients begun afU'i- action liniught not within the Ai^t. Provision wlii'u land sold was sub-divided. Sale not iiiadi! valid ir taxes paid bijforesale ; if land were redeemed ; in cases of fraud ; 728 THE MUNICIPAL MANUAL. [SS. 2-4. Sales mndc valid in casus of vaoaiit lands if tho purchaser has paid eight years' taxes and the owner not occu- pied. of this sub-section, it shall not be considered in such (>ourt that the legal estate did not pass by such sale or convoyanco so as to preclude any one claiming unr'.er such purcliaser from insisting on his having acquired the same, whenever it shall be requisite for hi? case or defence that he should have acquired the same. "h^'^^irls ('^•) Where the possession has been actually changed beeuejected. under process of law or otherwise, adversely to the tax pur- chaser, in favour of the original owner, who has, since the change, had continued possession. /8, The first section (subject to the exceptions in the sub- sections thereof) shall apply also to make the sale valid in those cases in which the tax purchaser shall not have occupied the land, or any part thereof, or, having occupied, shall not have occupied for the four years mentioned in the first section, or shall not have made Improvementa thereon to the value mentioned in such section; Provided the tax purchaser has since the sale, and prior to the tii-st day of November, one thousand eight hundred and sixty- nine, paid at least eight years' taxes charged on the said lands; and provided that the owner has not occupied the land or some part thereof for one year between the sale by the Sherifi" and the said first day of November. 3. The first section (subject to the exceptions in the sub- sections thereof) shall apply also to make a sale valid in those cases wherein any lands have been sold and conveyed under colour of any statute providing for sale of lands for taxes in arrear, and the tax purchaser has gone inio, and continued in, occupation of the lands sold, or of some part thereof, for at least four years prior to the said first day of November, in the year of our Lord one thousand eight hun- dred and sixty-nine, and has made improvements thereon to the value of two hundred dollars, notwithstanding that the land sold was not included in any return of lands described for patent, or as having boon granted, which, under any statute regarding assessment of lands, should have been made by the Surveyor-General; Provided the patent granting such lands had been .issued, and the land was occupied by the grantee, or by some person through or under whom he claimed, at least two years before the sale. 4. In all cases where proceedings are now pending at law or in equity, wherein the validity of any sale or conveyance on sale for taxes may come into question, and wherein such Balea made valid though no return by Survcyor- General, if purchaser lias im- proved and if patent issued and patentee occnpied two years before sale. CoBts in Actions poadiug; as. 5, G.] SHERIFFS SALES FOR TAXES. 729 taxation, imynient, and ten "er thereof ; disallowance of' subsu- quent costs. Application to stay pro- cuedings. sale or conveyance, being invalid, is nmilo valid by thi« Act, it shall be competent to any ])erson to carry on .such pro- ceedings and recover liis costs, if entitled thereto, in the same manner, so far a.s regards his right to costs, as if this Act had not been passed; Provided that it shall be compe- tent to any payty to such proceedings at any time to procure taxation of such costs, and on payment thereof before further costs after taxation are incurred, such jiroceedings shall cea.se; and if the amount taxed bi; tendered to the proper person before further costs are incurred, and Ik; refuse to accept it, and the ])roceedings be continued, then if the Judge before whom the same shall be tried or determined, or the taxing officer, shall be of opinion that the carrying on such proceeilings subsequent to such tender was unnecessary, he shall disallow to the party carrying on the proceedings the costs of such subsequent proceedings, and may, if and as he see lit, allow costs of such subsequent proceedings against him. In any case, also, of refusal to accept the costs so taxed, tlie party having tendered the same may apply to the Court wherein such proceedings are pending, or any Judge in Chambers, that the proceedings may be stayed, and such Court or Judge, on hearing the parties on affidavit or otherwise, may make such rule or order thereon, on such tei-ms and conditions as to payment of costs of the proceed- ings subsequent to the tender, and of the application, and otherwise, as to such Court or Judge seem fit. 5. Ift all cases where lands have been validly sold for certain taxes, or where the sale is made valid by this Act, then the ffeJ:'"jfn*„t to conveyance by the Sheriff who made the sale, or his succes- ]»• invalid, sors in office, shall not be invalid by reason of the statute sale is valid. under the authority whereof such sale was made having been repealed at and before the time of such conveyance, or by reason of the Sheriff who made the sale having gone out of office. 0. In all cases where lands have been, or hereafter may Rights of be, sold for arreai's of taxes, whether such sale be or be not ^"J;^^ to tax- valid, then so far as regards I'ights of entry adverse to any purchaser in boTui fide claim or right, whether valid or invalid, derived not^to be" mediately or immediately under such sale, the fifth section of conveyed the Consolidated Statutes of Upper Canada, chapter ninety, shall not apply, to the end and intent that hereafter in such cases the right or title of persons claiming or to claim ad- versely to any such sale shall not bo conveyed where any 730 THE MUNICIPAL MANUAL. [r8. 7-9. person i.s in occupation iulversnly to such I'ight or title, an(i Common *''"■* "' ^^^^'^ cases tlio Common Law and the second, fourth Lttw and 32 jiji(l sixth soctions of tho statute pjussod in the thirty-Hocond revived. ' y S4 tHX imirhasiT t^lcct to ri'- taiii t)iu Inii'l 111! jia Jill}; its vului'. When tlif owiirr is not tciiiuit in fi't', till' value of til'- laiiil to 111' I'liil into Clmni'iry Whonlhc licfi'iidaiit id not tinant in fi'c, the valiio nf ira- ]irovi'iiii nts, itr . to Xtc ]>aid, shall certify such fact upon the record, and thereupon tho defendant shall bo entitled to the costs of tho defence, in the same manner as if the chiimant had been non-suited on the trial, or a verdict had been rendered for the defendant ; provided the defendant, at the time of appearing, gave notice in writing to the claimant in such ejectment, or to liis attorney named on the writ, of the amount claimed, and that on pay- ment of such amount the defendant or person in possession would surrender the po.ssession to such claimant ; or that he desired to retain the land, and was ready and 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 claimant : and if on the trial it be found that such notice was not given as aforesaid, or if the Judge or jury assess for the defendant a less amount than that claimed in the notice, or find that the defendant had refused to surrender possession of the land after tender made of the amount claimed, or (where the defendant has given notice of his intention to retain the said land) that B8. 12-14.] sheriff's bales pon taxes. 73.1 tho valuo of tlio land is p-outor tlmn tlio amount monlionod in tho said notico, or tliat ho has onuttod to pay into ('ourt tho anu)\int nicntionod in the -id notico for thirty (hiyH after t\w chiiniant lias given ,i tho dofondant a writton notice that ho did not intend to contest tho valuo of th<^ land inontiotied in such notice, then in any such case tho Judge shall not certify, and tho defendant siiall not 1)C entitled to tho costs of tho defenee, hut shall pay costs to tho claimant; and upon the trial of any cause after such notico no evidonco shall 1)0 retpiired to ho produced in proof of tho title of tho claimant. 1/8, No valid contract entered into hetwoen any tax pur- chaser and original owner, in regard to any lands sold or aasunied to have been sold for arrears (jf taxes, as to pur- chase, lease, or otherwise, shall be annulled or int(;rfered with by this Act, but such contract shall remain in force, and all conse(piences thereof, at law or in equity, as' to admission of title or otherwise, as if thi.s Act had not boon passed. 1 3, Tn any case in wliich tho title of tho tax p'lrchaser is not valid, or is not made valid by this Act, or in which no remedy is otherwise provided by this Act, the tax pur- chaser shall have a lien on the lands for the purchase money paid at such sale, and interest therc(jn at the rate of ten per centum per annum, and for the amount of all taxes paid by him or them since such sale and interest thereon at the rate aforesaid, to bo enforced against the lauds in such proportions as regards the various owners, and in such manner as tho Court of Chancery think proper. 14. In tho construction of this Act, occupation by a tenant shall be deemed the occupation of the reversioner ; and the words "tax purchaser" shall apply to any person who purchased heretofore at any sale under colour of any statute authoriziTig sales of lands for taxes in arrear, and include and extend to all persons claiming through or under him; and the words "original owner" shall include and extend to any person who, at the time of such sale, was legally interested in or entitled to the land sold, or assumed to be sold, and all persons claiming through or under him. Coiitraotfl Ivitwi'on tax puicliaHcr :in>t oriKinul owner cou- tiiiut'd. Tax par- ohascr with- outarnmefiy whoHo title is iiivuliil, to have a lien I'll the land for purchase muiiuy, Ac. Construc- tion of cer- tain tonns used in tliis Act. 734 Preamble. AN ACT TO MAKE VALID CERTAIN SALES OF LAND FOR TAXES, IN JUNIOR COUNTIES, AND IN TOWNS NOT SEPARATED FROM COUNTIES. (37 Vic, Cap. 10.) Wherkas in various Towns not separated from the jurisdic- tion of the Counties in which they are situated, procotiding.s have been taken for the collection of taxes undor the pro- visions of the "Asseasment Act of Upper Canada," instead of under the " Assessment Act of 1869," and in cojisequeucp thereof, sales of lands for arrears of taxes have been made ]>y the Treasurers of the Counties instead of by tlie Treasurers of the Towns : And whereas, after the separation of Counties previously united, prooeo.iin^js in respect of arrears of taxes due upon lands in the former junior County have, in various cases, been taken in the senior County, and sales have been made by the officers of the senior County : And whereas, by reason of the irregularities aforesaid, the validity of the .said sales may be questioned, and it is expedient to make valid the said sales and other proceedings to the extent herein- after declared : Therefore Her Majesty, by and with the advice and con- sent of the Legislative Assembly of the Province of Ontario, enacts as follows : 1, Where any land situated in a Town not withdrawn from the County in which it is situated, has been heretofore sold for arrears of taxes, and a deed therefor has been, or shall be hereafter, executed by the Treasurer and Warden of the County in which the Town is situated ; or where any land situate in a junior County has been heretofore sold for arrears of taxes at a sale conducted in the senior County, after the separation of such Counties, and a deed therefor has been, or shall be hereafter, executed by the Warden and Treasurer of the senior County, every deed so executed shall be, to all intents and purposes, valid and binding, except as against the Crown, if the same has not been questioned before some Court of competent jurisdiction by some person interested in the land so sold, within two years after the passing of this Act. cjntain sales «j^ Where a sale has been made under the circumstancf-s wiioie no in the first Section of this Act set forth, and a deed to the ma'ie ^unless Purchaser has not been executed, and if within one year from iHiui rH- the day of the sale, exclusive of that day, the owner or some other person has not redeemed the land by paying or ten- Convey- ances on sales for taxes in towns not soparatt.'d, andinjunior counties, made valid ill eertain cases. deemed. ss. 1, 1] DRAINAGE I)EDEN'TCnES, 73o ES OP LAND D IN TOWNS m tlio juribdic- ^(l, proceedings under the pio- inada," instctnl in consequence e been niad(5 by le Treasurers of ion of Counties xrrears ot" ttixos lave, in various sales have been Lud whereas, by idity of the said t to make valid extent hereiu- advico and con- I ince of Ontario, not withdrawn been heretofore for has been, or er and Warden or where any •etofore sohl for senior County, a deed therefor 10 Warden and executed shall idiug, except as )een questioned by some person years after the le circumstanc(-3 id a deed to the in one year from owner or some paying or ten- dering to the Treasurer of the County, for the use and benefit of the purchaser or his legal represoiitatives, the sum paid by him, together with ten per centum thereoii, then in such case, on the demand of the purchaser or liis assigns, or other legal representative at any time afterwards, and on [)aynient of one dollar, the Treasurer of the County in wliioh the sale took place shall prepare, and with the Warden of such County execute and deliver to him or tliem a deed in dupli- cate of the la,nd so sold. 3. Nothing hereir> contained shall affect any action or suit heretofore bi-ought in any Court of Law or Equity, or make valid any :'<^ed the validity of which is or has been (piestioned in any such action or suit ; or aid in the construction of the said Assessment Act of 1800 in any question arising in any such action or suit. 4. The provisions of sections nine, ten, eleven and thirteen of the Act passed in the thhty- third year of the reign of Her Majesty, and cha[)tered twenty-thrtie, shall apply to the sales hereinbefore mentioned, as if such sales had been among those enumerated in the said ninth section. Past and pcmliiiy HC tions jiro- vliled for. This Alt not to iiiil th(! Asst'SMiniMit Act of im'J. 33 V.,r. 23, 8S. tt, 10, U, 13, to aiii)ly to the sjiies iiaiiu'il ill tliis Act. AN ACT TO AUTHORIZE THE INVESTMENT OP CERTAIN MONEYS IN DEBEN'TURES TO BE ISSUED FOR THE CONSTRUCTION OF UKAINAGE WORKS BY MUNICI- PALITIES. . (30 Vic, Cap. 89.) , Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : — . . •' . 1 , The Act passed in the thirty-fifth year of the reign of 35 Vir. c. 2«) . Her Majesty, chaptered twenty-six, intituled "An Act to rerealud. ^provide for the construction of Drainage Works, and to authorize the investment of certain moneys in delxsntures to be i,i3ued for the construction of such works," is hereby • repealed, and the Tollowing substituted therefor. % In case the majority in number of the owners as Municipal shown by the lai revised as.sessment roll to be resident on "-'"""t'ls the property to be benefited in any part of any INlunicipality, uy-iaws do petition the Council for tiie deepening of any stream, creek or water-course, or for draining of the property I (describing it), the Council may procure an examination to 736 THE MUNICIPAL MANUAL. [s. 2, sub. 3. for deepp.n- ing streams and drainage, for borrow- ing requisite fUndB, for levj'ing rate for pay- meat Landlord and tenant. Right of purubasu. be made by an engineer, or provincial land surveyor, of the stream, creek or water-course proposed to be deepened, or of the locality proposed to be drained, and may procure plans and estimates to be made of the work by such engineer or provincial land surveyor, and an assessment to be made by such engineer or surveyor of the real property to be bene- fited by such deepening or drainage, stating as nearly as may be, in the opinion of such engineer or provincial land surveyor, the proportion of benefit to be deiivcd by such deepening or drainage by every road and lot, or portion of lot : and if the Council be of opinion that the deepening of such stream, creek or water-coui'se, or the draining of the locality described, or a portion thereof, would be desirable, the Council may pass by-laws in form or to the eft'ect mi forth in Schedule A to this Act, — (1.) For providing for the deepening of the stream, creek or water-course, or the draining of the locality ; (2.) For borrowing, on the credit of the Municipality, the funds necessary for the work, and for issuing the debentures of the Municipality to the requisite amount, in sums of not less than one hundred dollars each, and payaljle within fifteen years from date, with interest at a rate of not less than five per centum per annum ; (3.) For assessing and levying in the same manner aa taxes are levied, upon the real property to be benefited bv the deepening or draining, a special rate suflicient for the payment of principal and interest of the debentures, and for so assessing and levying the same, as other taxes are levied, by an assessment and rate on the real property so benefited, (including roads held by joint stock companies or private individuals,) as nearly as may bo to the benefit derived by each lot or portion of lot and road in the locality: Provided always, that any person whoso property has been assessed for such deepening or drainage may pay the amount of such assessment, less the interest, at any time before the deben- tures are issued, in which case the amount of debentures shall be proportionally reduced ; And provided further, that any agreement on the part of any tenant to pay the rates or taxes of the demised property shall not apply to or include the chai'ges or assessments for draining under this Act, unless such agreement shall in express terms mention or refer 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 s. 2, sub. 3. 3yor, of the pened, or of •ocure plans engineer or be maue by to be bene- is nearly as vincial land ved by such )r portion of deepening of ining of the be desirable, the eft'ect set stream, creek licipality, the lie debentures I sums of not within fifteen less than five e manner as benefited by icient for the lures, and for es are levied, so benefited. es or private ,t derived by ty: Provided b;H-;n assessed uounb of such •e the deben- jf debentures 1 further, that lay the rates apply to or ng under this erms mention as payable in itracts of pur- purchasG, the ss. 3, 4.] DRAINAGE DEBENTURES. 737 said charges or assessments shall be added to the price, and . shall be paid (as the case may be) by the purchaser, or by the lessee in case he exercises such right of purchase ; " (4.) For regulating the times and manner in which the ^,g'ifj^''^ assessment shall be paid : assessment ^ be paid. (5.) For determirung what real property will be lienefited p^^. ^^^j_ by the deepening or draining, and the proportion in which laining the the assessment should be made on the various portions of {|"i',^g'i,„ ti,5 land so benefited, and subject in every case of complaint, by fite. the owner or person interested in any property assessed, whether of overcharge, or of undercharge of any other property nssesscd, or that property that should be assessed has been wrongfully omitted to be assessed, to proceedings for trial of such complaint, and appeal thez'efrom, in liko manner as nearly as may be as on proceedings for the trial of complaints, as set forth in the sixtieth, sixty-first, sixty- third, sixty-fifth, sixty-sixth, sixty-seventh, sixty-eighth, sixty-ninth and seventieth sections of "The Assessment Actofl8G9." 3. Trial of such complaints shall be had in the first Court of instance by and before a Court of Revision, which the -^PP^*!' Council shall, from time to time, as occasion may requii'e, hold on some day not earlier than twenty nor later than thirty days from the day on which the By-law shall bo first published, notice of which shall be published with the By-law during the four weeks of its publication; and such Court shall be constituted and have the powers refer- red to in sections numbered from fifty-one to fifty-eight, both inclusive, of the said Act ; and in case of appeal to the Judge, junior or acting Judge of the County Court, he shall have the sp.me powers and duties, and the clei'ks of the Appeal to Municipality and Division Court resjiectively shall have ju""g^ the same powers and duties, as nearly as may be, as con- tained in sections numbered from sixty-three to seventy, both inclusive, of the said Act. 4. Before the final passing of the By-law, it shall be pub- j^ot\r.c be- .' ^led once or oftener in every week for four weeks, in some ^"^'^ lasaiug n<. 'tnaper in the Municipality, or if no newspaper be pub- liuhed therein, then in some newspaper published in the nearest Municipality in which a newsjiaper is published, and also notices in at least four public places within such Muni- cipality, together with a notice that any one intending to apply to have such By-law, or any part thereof, quashed, 47 of by-law. • !■ ir fiS. tllte MUKICIPAL MANUAI/. [ss. 3-3<, By law to be valid though informal, if not quashed. When work may Ijc ex- tended into other muni- cipalities. When lands in an adjoin- ing munici- pality may be charged, though works not curried into such muni- ciixility. Report as to which muni- cipality dlmll pay. Pl;n», 4o. must, -within ten days after the passing thereof, serve a notice in writing upon the Reeve or other head officer, and upon the Clerk of the Municipality, of his intention to make application for that purpose to one of Her Majesty's KU}>erior Courts of Law at Toronto, during the term next ensuing the final passing of the By-law. 5, In case no such notice of intention to make applica- tion to quash a By-law be served within the time limited for that purpose in the fourth section of this Act, the By- law shall, notwithstanding any want of substance or form either in the By-law itself, or in the time or mannor of passing the same, be 'a valid By-law. 0. Whenever it is neceasaiy to continue the deepening or drainage aforesaid beyond the limits of any Municipality, the engineer or surveyor employed by the Council of such Municipality may continue the survey and levels into the adjoining Municipality, until he finds fall enough to carry the water beyond the limits of the Municij)ality in which the deepening or drainage was commenced, "3^, When the deepening and -drainage do not extend beyond the limits of the Slunicipality in which they are commenced, but, in the opinion of the engineer or surveyor aforesaid, benefit lands in an adjoining Municipality, or greatly improve any road lying within any Municipality, or between two or more Municipalities, then the engineer or surveyor aforesaid shall charge the lands to be so benefited, and the Corporation or Corporations or Company whose road or roads are improved, with such proportion of the costs of the works as he may deem just ; and the amount so charged for roads, or agi-eed upon by the arbitrators, shall be paid out of the general funds of such Municipality or Company. 8. The engineer or surveyor aforesaid shall determine and report to the Council by which he was employed, whether the deepening or drainage shall be constructed and maintained solely at the expense of such Municipality, or whether it shall be constructed and maintained at the ex- pense of both Municipalities, and in what pi'Oportion. 0. The engineer or surveyor aforesaid, wlien necessary, shall make plans and specifications of the deepening or drainage to be constructed, and charge the lands to be bene- fited by the work as provided hei*ein. ss, 10-13.] DRAINAGE DEREN-TURES. C.'oisnril of iiiuiiii'i- liality wlii'iein work not begun, to liasa by-law. 10. The Comicil of the Municniahty in wliicli the deep- f^^mmciicf 1 • • J. 1 1111 J.1 1 1 I'l'i'ud- enmg oi- drainnge is to be commoiiced, sh;ul serve the head jiaiiiy of the Council of the Municiiialitv into which the same is "■'"7",'" . 1 1 1 * 1 Work ui'^uu to he continued, or whose lands or I'oads are to be benefited to notify without the deepening or drainage; being continued, with a |"i"j,"y t,> be, cojiy of the report, i)hins and s]ieoi(ications of the engineer bouuUted. or surveyor aforesaid, when necessary, so far as they atfect such last mentioned Municii)a]ity ; and unless the sanu; is apj)ea]ed from as hereinaftiM- provided, it shall be binding on the Council of such Municipality. 11, Tlio Council of such last mentioned Municipality shall, within four months from the delivery to the Leiid of the Corporation of tlie rej)Ort of tlic engineer or surveyor, as provhled in the next preceding section, pass a By-law in the same manner as if a majority of the owners resident on the lands to be taxed had petitioned, as provided in the first section of this Act, to raise such sum as may be named in the report, or in case of an a])peal, for such sum a.s may be determined by the arbitratore. 1^, The Council of the Municipality into whicli the Council of deepening or drainage is to be continued, or whose lands, ii'"."|yjf^'!|.',|„ road or roads are to be benefited without the deepening or woiknutUf- tlrainjige being carried M'ithin its limits, may, within twenty p"!" '"ari,".'-' days from the day in which tJie reijort wa.H served on the tration . . ■ . tucrcoii head of the iMunicipality, appeal therefrom ; in whicl} case they shall serve the head .of the Corpoi'ation from which they received the re})ort with a written notice of appeal .such notice shall state the ground of aj>)>eal, the name of an engineer or other person as their arbitrator, and calling njxm such Corporation to appoint an arliitrator in the matter on their behalf, within ten days aftei- the service of «nch notice ; and in default thereof it shall be lawful for the l.'ouncil of the 31unici[):i.lity a}>))3iiJing therefrom to ai)point such second arbitrator, and the tv/o arbitrators so appointed shall forthwith apj)oint a third arbitrator in the matter ; Pi'ovided always, that in no civse shall the engi- neer or surveyor aforesaid, employed to make surveys, plans and specifications, or a member or othcer of any Council concerned, be aj)pointed or act as arbitrator. IJJ. If, after the arbitrators have been appointed as ^Pi'''^:- aforesaid, they fail or neglect for the space of six days to third aiiii- appoint a third arbitrator, the Judge of the County Court L^^^'i'/tv'^ of the County la which the JIunicipality appealing is Jud-t". 740 THE MUNICIPAL MANUAL. [ss. 14-17. Oath by ar- bitrators. Award. Decision of majority of arbitrators. < Repairs aud niaintenauce of worli af- ter comple- tion. situated shall, within four days after a request in writing made upon him by either of the two arbitrators appointed as above, appoint a third arbitrator. 14. Each arbitrator, before proceeding to try the matter of the arbitration^ shall take and subsci'ibe the following oath (or in case of those who alfirni, make and subscribe the following affirmation) before any Justice of the Peace ; which oath or affirmation shall bo filed with the award : "I, A. B., do swear (or affirm) that I will well and truly try the matter referred to me by the jnirties, and a true and impartial hw.t^'^ make in the premises according to the evi- dence a. (! n 1 ' and knowledge. So help mo God." 15, Tlic L....J1 1 lectors shall, within ten days after the a])pointmf'nt of the tliii'd arbitrator, meet at such place jus they mayii;^ret! ;'T)Ou, :';;'' shall then hear and determine the matter in dioput..), and i-uixe t^eir award in triplicate, which shall be binding on all pailie.s ; and one copy thereof shall be filed with the Clerk of each of the JNIunicipalities interested, and one shall be filed Avith the Registrar of Deeds for the County in whicli either of the Municipalities is situate. 10. In case of difference betweeti, the arbitrators, the lecision of any two of them shall be conclusive. llf. After such deepening or draijiage is fully made and completed, it shall be the duty of each Municipality, in thci pro})ortion determined by the engineer or arbitrators (as the case may be), or itntil otherwise determined by the engi- neer or arbitrators, under the same formalities, as near as may be, as jirovided in the preceding sections, to preserve, maintain and keep in repair the same within its own limits, either at the expense of the Municipality or parties more immediately interested, or at the joint expense of such pai'ties and the Municipality, as to the Council, upon the report of the engineer or surveyor, may seem just ; and any such [Municipality neglecting or refusing so to do, upon reasonable notice in writing l)eing given by any party interested therein, shall be compelled, by mandamus to be issued from any Court of competent jurisdiction, to make, from time to time, the necessary repairs to preserve and maintain the same ; and shall be liable to pecuniary damage to any person who or whose property shall be injuriously affected by reason of such neglect or refusal ; and in any case wherein, after sujh deepening or drainage ss. 18-20.] DRAINAGE DEBENTURES. 741 Case of ;i drain Ixntii; used l)y an- other niuni- ciiiality. i.s fully made and complctod, tlio sjimo lias not been con- tinued into any other Municipality than that in which the same was commenced, or wherein the lands or roads of any such other Municipality are not henefitod by such deepening or drainage, it shall be the duty of the Municipality making such deepening and drainage to preserve, maintain and keep in repair 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 award or By-law as linally passed : Prijvided always, that the Council may from time to time change such assess- ment on the report of an engineer or surveyor a))pointed by them to examine and report on such di'aiu deepening and repairs. 18, Should a drain already constructed, or hereafter con- structed by a Municipality, be used as an outlet, or other- wise, by another Municipality, Comi)any or individual, such Municipality, Company or individual using the same as an outlet or otherwise, may be assessed for tlu; construction and maintenance theveof in such proportion and amount as shall be ascertained by the engineer, surveyor or arbitrators, under the formalities provided in the preceding sections. 10, Any Township Municipality proposing to undertake Deposit works under the provisions of this Act may, after the expi- missioner of ration of the time limited for serving notice of intention to i'"'''"'- ... 1 1 -i-» 1 1 . • 1 1 woriid of co- make application to quash the J3y-laAv, deposit with the j>ies of Commissioner of Public Works autlienticated copies of the ''''"'^' *"' plans (if deemed necessary by the Commissioner), s})pcifi- cations and estimates of the works and of the l}y-law; and may apply for the sale of the debentures authorized tlieroby, such application to be in writing sealed with the seal of the Municipality, and signed by the Reeve or other head officer thereof, and to be accompanied by two affidavits, one to be made by the said Reeve or other head officer, in form or to the effect set forth in Schedule 1^ to this Act, and the other to be made by the Clerk of the Municipality, in form or to the effect set forth in Schedule C to this Act; said atlidavits to be sworn before any Justice of the Peace. 20* The Commissioner of Public Works sh;dl investigate commis- and report to the Lieutenant-Governor in Council as to the «•'"»■'■ "f • n 1 • 1 • 1 1- • l>Ul)ll(; propriety of the investments proposed in such applications, worlds to in the order of time in which they are deposited ; and such Inveatnunt. reports shall be disposed of by the Lieutenant-Goveinior in Council in the order of time in which the same are made. 742 Tin: MUNICIPAL MANUAL. [hs. 21-25. riirchriHri out of ciins. rrv. flllict uf (li'bciitiireti. I'nrnontftf;o (o llO llll- viiiiccd (in ilclicnluri.'S. Wlion (In- llClltllV(^S iiiiiiucslinn- mIiIo. Whim thn (voiuniis- sioiirr Hliiill not. n^pipi't ]H()priiMy of invcstiniiiit. Amount j>iiyiililii un- der by-law to be remit- ted to trea- surer of Ontftrio. ConRP- iiueuees of neglect. *Zi, Tlin Li(Mit('iiii.ut-Uovoruor in Council niiiy froui tinio to tiiiin ill his (listTotioii invost any surpliiH of tlio (Joiisoli- (lati'(l Rcvcmio Fund, not (sxcc .nlin^ in tlu) wlioh* iit any one tiuu) the Huui of two luindrcHl th(,usaii(l (hjlhirs, in th(! |Miichiise of iuiy (hjlxMiturcs iHsutnl uud'vr any liy-hiw so dcpositcil as aforesaid, in ros|K'(;t of wlii(;h tho (JotninisKiou(!r of Puhlic Woi'ks sliall cmtify to tho propriisty of tho iiivostnuMit. ^'!i. On any sucli invcstiucnt not more tlian oit;hty-(iv<' per centum of the par vahu; of tho debentures sliall bo advanced until after tlui (JomniisHioner of Public Works has reported that the works liav(! been iiis|)e(?ted and are (!oni- pl(!ted ; and any expenses in connection with the investii^iv- tion and inspection inaile under thi.s Act shall be deducted from the amount retained. *Zli, Afti'r any audi investmcait has been made*, tho debetitur(\s shall not be qiu^stioned, and shall bo deemed to be valid to all intents and purjioses. '^4, The Commissioner of Public Works shall not certify- to the propri(!ty of the investment in any case in which the ai^^rci^ati! a,mount of tho rates nocessaiy for the })aymcnt of the cui-rent annual expcmses of the Muiiici])ality, and the interest and principal of tlie debts contracted by tho Muni- cipality, shall excijcd tho aggregate value of three cents in tho dollar on th(! wliolo value of the ratable pr()}>erty within its jurisdiction, or in any case in which tho deben- tures to be issued under the By-law shall exceed twenty- thousand dollars. ^.■j. The amount payable in any year under any such By- law or debenturtis, for principal and interest, shall be remitted by the Treasurcsr to the Treasurer of Ontario within tho space of one month after tho same shall have become exigible, together with interest at the rate of S(;ven per centum ])er annum, during tlu; time of default in pay- ment ; and in case of the continuanco of such default, tho Council of the Municipality shall in the next ensuing year assess find levy on the whole ratable property within its jurisdiction, in the same manner in which taxes are levied for tlie geuei-al j)uri)Oses of the JNTunicipality, a suflicient sum to enable tho Treasurer, over and above the other valid debts of the Corporation falling duo within tho year, to pay over to the Treasurer of Ontario the amount in ari'ear, together Avith the interest thereon at the rate of seven per centum per annum, dux'ing the time of default in payment, SB. 20, 27.J OUAINAOE DRBENTURKS. r43 wlictlior tho aaiiin in;iy luivo bnon provioiisly rocovorcd from tho {Kirtios or liiiids oli!ir<^oiil)lo uiidcr the Uy-liiw with tlin same or not ; and tho amount ho in arrearand ititcreHt sliall bo tho first char;j;o upon all the funds of the Municipality, for whatever j)urposo or undiu' whatever I'y-law they may have b(!en raised ; and no Tren.surcr or otiuir oilicer of tho Municipality shall, after such default, pay any sum whatsoever, except for the ordiiuoy cuirent disbiu'semonts, and salaries of clerks and other (Mai)Ioye(!S of such Muni- cipality, out of any funds of tjie Municij)ality in his hands, uiitil the amount so in arrear and interest shall have been paiil to tho Treasurer of Ontario ; any him for the Crown ; and any Ileevo or Councillor wilfully or ne;^ligently omitting to see the foregoing j)rovisionH carried into etf(>ct shall also be jior- sonally and individually liable to the Ti-easurer of Ontario for tho full amount so in arrear and intei'ost, to l)e recovered with costs by tho said Treasurer of Ontario, in any suit as for money had and received for Her Majesty's behoof: Provided always, that no assessment, levy or payment made under this section shall in anywise exonei-ate tho persons or lands chai'geable under the By-law from liability to the Municipality. ; %il. Any valid By-law in regard to drainage pa.ssed between the second day of Mai'cli, in the year of our Lord one thousand eight hundr-ed and .sovetity-two, and the date of the passing of this i\ct, under the Act passed in the thirty-second year of the i-eign of Her Majesty, and chaf)tered forty-three, intitided " An Act to ameiul the Municipal Institutions Act of Upper Canada," shall, so far as regards tho investment of any surplus of the Consolidated Revenue Fund in the purchase of debentures issued under srrch By-law, stand upon the same footing as if such By- law had been passed and such debentures had been issued iind(;r the Act hereby repealed. 27. Should any dispute arise between individuals, or between individuals and a Municipality or Company, or between a Company and a Municipality, or between Muni- cipalities, as to damages alleged to have been done to the Duty nnd liability ()[ iiiiiMicipiLl tii'iiHiirrir iil'tcr de- fault. I.iuliility of rccvrs and CUUUL'llUHH. Ant tn apply to fonner by-laws. Disputeg ai to damages to be refer- red to arbi- tration. ITH" 744 THE MUNICIPAL MANUAL. [Sch. A. property of any Municipality, individual, or Company, in the construction of drainage works, or consequent thereon ; then the Municipality, Company, or individual complaining shall refer the matter to arbitration, as provided in this Act ; and the award so made shall bo binding on all parties. Continuing JJg, In case any person should find it necessary to con- dniina tinue an under-drain into an adjoining lot or lots, or across acrosa ad- qj. along any public highway, for the purpose of an outlet or highways, thereto, and in case the owner of siich adjoining lot or lots, or the Council of the Municipality, refuse to continue such drain to an outlet, or to join in the cost of the continuation of such drain ; then the firstly mentioned pei'son shall bo at liberty to continue his said drain to an outlet tlirough such adjoining lot or lots, or across or along such highway; and in case of any dispute as to the proportion of cost to be borne by the owner of such adjoining lot, or Municipality, the same shall be determined by the fence viewers in the same manner as disputes within the Fence Viewei-s' Act, and their award shall bo final. Short title. ?80. This Act may be cited as the ** Municipal Drainage Aid Act." SCHEDULE "A." " • (^Section 2.) Form op By-Law. A By-law to provide for draining parts of {or for the deep- ening of in, as the case rtuiy be) the Township of and for borrowing on the credit of the Municipality the sum of for completing the same Provisionally adopted the day of , A.D, "Whereas a majority in number of the owners, as shown by the last revised assessment roll to be resident on the property hereinafter set forth, to be benefited by the drain- age {or deepening, as the case may he), have petitioned the Council of the said Township of , praying that (Jiere set out the pwport of the petition, describing generally the property to be benejited). And whereas, thereupon the said Council procured an examination to be made by , being a person com- petent for such purpose, of the said locality pi'oposed toi be Sch. A.] DRAIXAfiE DEnENTURES. 745 drained (or tho said stream, crook oi- wator-courso ]>roposed to })0 deepened, as the case may hn), and lias also ])rocnred plans and estimates of the work to bo made by tho said , and an assessment to be made by him of the real property to be benetited by such drainage {or deepening,', as the case mai/ be), stating as nearly as ho can tho proportion of benefit whicli, in his opinion, will be derived in consequence of such drainage (or deopcMiing, as the case ma// lie), by every road and lot or portion of lot, tho said assessment so made, and tho report of the said ;• respect thereof, and of the said drainage (or deepening as tne case may he), being as follows: (here set out the report and assessment of the enyineer or other jm'soit employed). And whereas the said Council are of ojjinion that tlie draining of the locality described (or the dee[>ening of such stream, creek or water-course, as the case may be) is desirable : Be it therefore enacted by the said Municipal Council of the said Township of , pursuant to the provisions of an Act of the Legislature of Ontario, passed in the thirty-sixth year of Her Majesty's reign, chajjtered. 1st. That the said report, plans and estimates be adopted, and the said drain (or deepening, as the case may be) and the works connected therewith be made and constructed in accordance therewith. 2nd. That the Reeve of the said Township may borrow on the credit of the Corporation of the said Townshij) of the sum of , being the funds necessary f(# the work, and may issue debentures of tlie Corporation to that amount, in sumsof not less than one hundred dollars each, and payable withiii years from the date thereof, with interest at the rate of per centum per annfim, that is to say, in (insert the manner of payment, whether in equal annual payments or otherwise), such debentures to be payable at , and to have attached to them coupons for the payment of interest. 3rd. That the following special rates, over and above all other rates, shall be assessed and levied (in the same man- ner and rt the same time as avxes are levied) upon the undermentioned lands, being the lands so to be benefited as aforesaid, and shall be paid at the times and in tlie manner also undermentioned (here set out the lots ami portioTis of 746 THE MUNICIPAIi MANUAL. [Sell. B. lots, mid roads, with the amounta assessed), in maniior followiiij;,', or to tlmt ofToet : — Lot. AftiFg. I c. CONRKi)8ION. y 9 10 10 10 S.W. h, a. J and N. j, 5 G 6 8 9 10 i>00 100 60 100 200 150 Chargoiiblo to Murucii>:ility for roads- 75 00 no 00 30 00 80 00 ir)0 00 00 00 120 00 $595 00 4Ui, For tho purpose of payitijj; tho sum of , beinj,' the total amount asscvssed as afon-said against the Haid votuh (or lands, as the case may he) of the said Corporation a special rate of in the dollar shall, over and above all other lates, be levied (in the same manner and at the same time as taxes are h^vied) uj)on the whole ratal)lo propei'ty in tho said Township of , in each year, for the period of years, after the date of tho fiuiil passing of this By-law. Finally passed on tho day of A.D. SCHEDULE B. (Section 10.) Affidavit of Reevk or other Head Officer County of of Township of to wit. j of the in the County of and Province of Ontaiio, (Reeve) of the make oath and say : • ' ■ ■ day of 1. On the • ■ in the year of o\ir Lord the Municipal Council of the said Township of passed a By-law in regard to the drainage of a certain portion of the said Township, a true copy of which is now shown to me marked " A." ^. Before the said day of the said By-law, together with a Sch. B.] DRAINAGE DKBENTCUES. «'V( notico tlmfc iiiiy ouo iiitoinUn;; to !i[)i>ly to liiive stioh IJy-law, or any i»nrt tlu'ioof, quashod, imi.-.t, within ton days iiftor the pushing thcroof, sorvo a notifci in writinj; \i\nni tho lioovo or otlu'r lirad ollicor, mid upon tho ( 'h-rk of tho Municipality, uf his intention to niaictj a[)plicatioii for that purpose to one of Her Majcsty'H Huptu'ior (Jourtu of Law at Toronco, (hiring ilus t.rni n(>\t ensuing tlio iinal pissing of tlio l>y-hiw, a!!d logethi;r with a notice of the time of holding tho Court of llovision of tlio said TownMh'p, w is puhlisiied on (///VQ;/'/. I'atea of puhUcKfluu.) in tlio {innerf luune of )it;irs- jHipcr) a newHpaprr puhlislicd at in tho Township nf {if j/tihllslml in another Jiliinii'ijxd'i/t/ add : being the nearest iVInnicipality to the said Towiisliip of in whicli a newspaper is ))ui)li'-lie(l. tliere being no lunvspaper published in tin; said T(twir-.lii)) of ), a copy of wliicli new.'-pai)er containiiiLX the Buid By-law and notice is now shown i mo marked '• P.." 3. I have not been served witli any notice of intention to make application to cpiash said i'A-law, nor with any notice of intention to make application to cptash any part thereof, nor with any notice to that or the like etl'ect. 4. To tho best of my knowledge, information and bidief, no peison assessed by the said B3*-law paid the amount of liis assessment, less the interest, or any part thereof, at any time before the actual issue of the delx-ntures thereunder, which were issued on tho day of in the year of our Lord 5. The amount of tlie rates assessed, as .set forth in said By-law, have! not been altered by the Court of llevision for tlie said Township of nor by tho County J udge, nor has the said J5y-law been repeah;d or amended by the said Council of the said Townshij) of but the said By-law is to all intents and purposes the same, and as A'alid and subsisting as it was wi:en linally passed on the said day of in the year of our Lord 6. The copies of the specifications, and estimates for the said drainage now shown to mo and marked are true and authentic copies of the specifications and esti- mates made by for the said drainage, as mentioned in the said By-law. Sworn, &c. 748 THE MUNICIPAL MANUAL. [ss. 1-3. SOilEDULE C. (Section, 10.) '\' \ Affidavit of Clerk op Municipality. County of ' ) I, ■ ' towit. jof the of in tlie County of and Province of Ontario, Clerk of the Township ol make oath and say : 1. That I have not been served with any notice of inten- tion to make application to quash a certain By-law passed on the day of in the year of our Lord by the Municipal Council of the said Township of in regard to the drainage of a certain portion of the said Township, nor have I been served with any notice of intention to make application to quash any part of said By-law, nor with any notice to that or the like effect. Sworn, &c. / , • Hoalth offi- cers may fiuter and examine premises. Power to order cleaus- ing. Powers to officers to cleanse. AN ACT RESPECTING THE PUBLIC HEALTH. (30 Vic, Cap. 43.) Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows :— 1. The health officers of any Municipality or poli'^e village in Ontario, or any two of them, may, in the day time, as often as they think necessary, enter into and upon any pre- mises in the place for which they hold office, and examine such premises. ^, 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. 3. Such health officers, in case the proprietor or occupier of the premises neglect or refuse to obey their directions, may call to their assistance all constables and any other per- ss. 4-6.] PUBLIC HEALTH. 749 sons they think fit, and may enter on the premises, and cleanse the same, and remove therefrom and destroy what in their opinion it is necessary to remove or destroy for tlie preservation of the public health. 4, Whenever a disease of a malignant and fatal chai-actor When inim- is discovered to exist in any dwelling-house or out-house h,',uat- "may "^ temporarily occupied as a dwelling in a City, Town, Village ^^' rtni'.ved. or Township in Ontano, or within a mile thereof, and which house is situated in an unhealthy or crowded part of the City, Town, Village or To\vnshi[) or adjoining country, or is in a filthy aiul neglected state, or is inhabited by too many persons, the health olHcei-s of the Municijjality, or a majority of them, may, at the expense of the Municipality, com})el the inhabitants of such dwelling-house or out-house to remove therefrom, and may place tliem 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 immediate cleansing, ventilation, puri- fication and disinfection of sucli dwelling-house or out- house. 5, Such health olticers or a majority of them may also, Mciiicuimcr. by warrant under their hands, authorize nay two medical '"^'.v. ''««<'" practitioners to enter m and ui)on any -iouse, out-house or tuc oiiicers premises in the day tiiue for the purpose of making inquiry "^■■'^""""•• and examination with res[)ect to the state of health of any person therein ; and may also, upon the report of such medical practitioners in wi-iting recommending tlie same, „ "d"'.',^!"^^ ''^ cause any person found therein infected with a dangerously in.n, ikt contagious or infectious disease to be removed to some lios pital or other proper place ; but no such removal shall take ni<'v<'rt, and lllllllillg, &c., of iiadSfii- m'VH illld cnrgoea. Who a eiii- 'lemii;, a-c, liioliabU', lit.-Ou\xt- lior limy I'Dllowii!;^ ;5i'ctions in t>)I('C. Power to revoke, re- lifW, anil limit (Uu'a- !.i')n of pro- claniutiun. On proela- liiation, the first tivL' sec- tions HUS- penileil un- less except- ed. Ccnlial board of health, np- iMinitniuiit of. rowcris and duties of, how exer- I'.i.scd. Connni3.sion aiipointinji t-'.'utral t. The Lieutenant-Governor in Council may make and declare such regulations concerning the entry or departure of bo;;ts or vessels at tlie (Uflerent j)ort3 or [)laces in Ontario, and concerning the landing of passengers or- cargo(;3 from such boats or vessels, or tlie receiving jiasscngers and cargoes on board of tlie same, a.> may be thouglit best calculated to j'/reserve the public health. 8, Whenever this Province, or any part thereof, or phice therein, appears to be t]ireatoned with any forrai:lablo epidemic, endemic or cont:igions disease, tlie Lieutenant- Governor may, by proclamation to 1)0 by Isim from time t) time issued, by and with tiio advice and consent of the Executive Council, declare the subsequent sections of this Act to 1)6 in force in this Province, or in any part thereof or place therein mcmtioned in such proclamation ^ and it shall thei'eupon be in force accordingly. 1), 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 proclamation extends, revoke or renew any such proclamation ; and subject to revocation and renewal, as aforesaid, every such proclamation sliall have effect for six months, or for any shorter period in such proclamation expressed. 10, iTpon the issuing of any such proclamation, and whilst the same is in force, the first five sections of this Act shall be suspended as to every place mentioned in such proclamation, or being within any part of this Province included thereby, unless it be by the said proclamation declared that such sections or any of them shall be continued in force. . Ifi, From time^ to time after the issuhig of any such proclamation, and whilst it is in force, the LieutenaJit- Governor may, by commission under his hand and seal, appoint five or more })ersoiis 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 three members thereof ; and during any vacancy in the said Board, the continuing members or member may act as if no vacancy had occurred. 1?J, Every such commission shall, ipso facto, be deter- minetl by the revocation of the proclamation under which it issued, as to all the places included in such proclamation, or BS. 13-17.] PUBLIC Health. 751 Jloeting to n()iiiin:it(' iKiaiil (if lioaUli. by the expiration of .six niontha from tlie date of sucli pro- r!'.>.ir(l dct.r- claiiuitiou, or oi any slioiTer period expres-sed in sucli pro- ivvocatiou claiiuition as tliat during wliich it is to bo in force, unless J||;i'i'J^i'"''*" suoli proclamation be renewed as to all or some of sucli parts and places. 13, From time to time, v.liilo any such proclamation is in force, the Mayor or other head of the Municipal Corjjo- ration, inspecting trustee or other chief Munici[)al officer of any and every place mentioned in such i)roclani:ition, or included therel)y, may call a special meeting of the Council or of the police trustees of .such place, over wliich he }>re3ides, for the purpose of nominating a Local Board of Health. 14, Such Municipal Corporation or ])olice trustees .shall nominate not less tlian tiiree persons, resident within the limits of their respective jurisdictions (or in the case of a City, Town or Villr.ge, within seven miles thereoi), to be '' The Local Board of Health " for such place. 15, Such Mayor, or other head of the Municipal Corpo- ration, inspecting tnistee, or other chief Municipal otHcer, shall call such special meeting within two days from the receipt of a writtcui re(piisitioii to that effect, sigiKxl by ten or more inhabitants, householders of the place, under the jurisdiction of tho body over which ho jjresides, on pain of being personally liable to the penalty hereinafter men- tioned. 145. If fit any time while any such proclamation i.s in force. When Limit.- it is certified to the Lieutenant-Governor, by any ten or J,V;ry'';ii''i">int more inhabitant householders of any place included in such i'^"'*! 1"j;iiJ. proclamation, that the Mayor or other head of such Muni- cip.al Corporation, or inspecting trustee, or other chi(;f Muni- cipal officer of such place, has failed to comply with such requisition, within such time as aforesaid, or that sucli Council or tru.stees have fdled to nominate a Lociil Board, the Lieutenant-Governor in Council may forthwith ap})oint not less than three persons, resident within the limits of such place (or in the case of a City, Town or Village, Avithin seven miles thereof), to be the Local Board of Health for such place. 17. Until a Local Board of Health be appointed under the Till appoint- provisions of the three preceding sections, the health officei-s bo'^'rVhe^itil of the Municipality shall exercise and perform the jiowers, oflicera luay authorities and duties of the Local Board, in conformity with ^^^ "* *"*^^''" the regulations of the Central Board, and shall act in every L()c;il board of health, how a;i- pointeil. Meeting to Timiiiiiate bo.'ird of lioaltli im- ptinitive oil (;(;itain re- quisitions. 752 THE MUNICIPAL MANa^AL. [ss. 18-21. Appoint- ment of local boaril, when determined by revopu- tion of coin- missiou. Power of central lioard to jnnlte regu- lations to prcvejit iti- K'l'tiim, &c. Powers of central hoard as to ri'gulations. Power to central board to require local board to ezecuto their regu- lations, Ac, respect as if they were a Local Board of liealth appointed under the fourteenth section of this Act. 18. Every nomination or appointment of a Local Board of Health under the foui'teenth or sixteenth sections of tliis Act shall, ipso facto, be determined by the revocation as to the place within the limits of wliicli such Local Board is authorized 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 months from the date of such proclamation, or of any shorter period expressed in such proclamation as that during which it is to be in force ; unless such proclamation Uh renewed as to such place, or any place in which it is included, or as to the whole Province. \9, The Central Board of Health, or any three or more members thereof, may from time to time issue such regula- tions as they think lit, for the prevention, as far as possible, or the mitigation of such e})idemic, endemic or contagious diseases, and may revoke, renew or alter any such regula- tions, or substitute such new regulations as to them or any thi'ee of them appear expedient. 30, The said Board may, by svich regulations, provide : 1. For the frequent and effectual cleansing of streets by the I'oad surveyors or overseers of liighways and oth(^rs 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 disinfect- ing of houses, dwellings, railway stations, churches, build- ings and places of assembly, steamboats, railway carriages and cars, ami other public conveyances, by the owners and occupiers, and persons having the care and ordering thereof ; 3. For the reni">val of luiisances ; 4. For the speedy interment of the dead ; 5. For preventing or mitigating such epidemic, endemic or contagious diseases, in such manner as to the said Central Board seems expedient. %\, The said Central Board may by any such regulations authorize and recjuire the Local Boards of Health to superin- tend and see to the execution of any such regulations ; and (where it a})pears that there may be default or delay in the execution thereof, by want or neglect of such surveyoi-s, ss. 12-25.] PUBLIC HEALTH. TS3 nnd to re- move in- llliltl'S of ccrtciin hoUSL'S. overseers, or others entrusted as aforesaid, or by reason of poverty of occupiers or otherwise) to execute or aid in executing the same within their respective liniits ; and to provide for tlie dispensing of medicine and for affording to persons afflicted by or threatened with such epidemic, endemic or contagious diseases, such medical aid as may bo 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 requr^. 23. The Central Board of Healtli may also by any such regulations authorize and require the Local Boards of Health, in all cases in which diseases of a malignant and fatal character are discovei'ed to exist in any dwelling-house, or out-house temporarily occupied as a dwelluig, situate in an unhealthy or crowded locality, or being in a neglected or filthy state, at the proper costs and chai'gos of such Local Boards of Health to compel the inhabitants of any such dwelling-house or out-houso to i-eniove therefrom, and to place them in sheds or tents, or other good shelter, in some more salubrious situation, until measui-cs can be taken by and under the dii-ections of the Local Boards of Health, for the immediate cleansing, ventilation, purification and disin- fection of the said dwelling-house or out-house. 23. The du'ections and regulations to be issued as afore- said shall extend to all parts or places in which this Act shall, for the time being, be in force under any such procla- mation as aforesaid, unless such regulations be expressly confined to some of such parts or places, and then to such parts or places as in such directions and regulations shall be specified, and (subject to the power of revocation and altera- tion herein contained) shall continue in force so long as this Act shall be in force under such [)roclayation in the parts or places to which such regulations extend. 24. The members of the said Local Boards of Htalth shall be called health officers ; and any two or more of them act- ing in the execution of any .such regulations as afoi'seaid, may exercise the like powei's and authorities as are conferred upon health officers by sections four and five of this Act. 25. In caae the owner or occupier of any dwelling or Powers of premises neglect or refuse to obey the orders given by such "iiccrs if health officers, in pursuance of such regulations, such health disobeyed. officci'S may call to their assistance all constables and peace 48 R(!f(«lation8i pxtent of lo- cility to wliifli appli- cable. MfimhcrH of local boards to be health officers ; powers of. 754 THE MUNICIPAL MANUAL. [ss. 26-30. Expenses of ricntral and local boards, how de- frayed. officers and such other persons as they think fit, and may enter into such dwelling or premises, and execute the samp or cause to be executed therein such regulations, and remove therefrom and destroy whatsoever, in pursuance of such regulations, it is necessary to remove and desti'oy for the preservation of the public health. ^0, The expenses incurred by the said Central Board of Health shall be defrayed out of any moneys appropriated by the Legislature for that purpose ; and the exj)enses incurred by the said Local Boards of Health in the execution or in superintending the execution of the regulations of the Cen- tral Board, shall be defrayed and provided for in the same manner and by the same means as expenses incurred by the Municipal Corporations, having jurisdiction ovei' the respec- tive places for which such Local Boards of Health were appointed, are by law required to be defrayed and provided for. Anytwo 3T. The treasurer of the Municipality shall forthwith meinbers of upon demand pay out of any moneys of the Municij)ality in may order his hands the amount of any order given by the members of the Local Board or any two of them for se under their direction by virtue of this Act, ^8. Every proclamation of the Lieutenant-Governor in Council under this Act shall be published in the Or\tario 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 in Council, and has thereafter been published in the Ontario Gazette. •39. Such publication of any such proclamation or regu- lation sliall be conclusive evidence of the proclamation or regulation so published, and of the confirmation of such regulation as aforesaid, and of the dates thereof respectively to all intents ancf purposes ; and every such proclamation and regulation shall forthwith upon the issuing thereof be laid befbre the Legislative Assembly if it be then sitting, and if not, then withiA the fourteen days next after the commencement of the next session thereof. Onpubiica- 30. Upon the publication of any such regulations as latfons cer-^ ^foresp.id, and whilst they continue in force, all By-laws of tain niuniei- the Municipal Corporation of any place to wnich such regu- I'^asef '"^^ lations or any of them relate, made for preserving the inhabitants thereof from contagious diseases or for any toasurer to *^® Local Board or any two of them for services performed l>ay. Proclama- tion to be published, itegiilations of cuiitral board in- valid till confirmed and pub- lished. Publication to be evi- dence of certain facts. Reflations and procla- raation to be laid before legislative assembly. ss. 31-35.] PUBLIC HEALTH. m governor in other of the purposes for *'hich sucli regulations are by this Act required to be issued, shall become and be suspended. 31, Whosoever wilfully disobeys or resists any lawful Penalty for order of the health officers, or wilfully obstructs any pei-son [ul^t^ of acting under tbe authority or employed in the execution of "|'''''" '^^ . this Act, either before or after the a})pointment of a Central regulations. Board of Health, or wilfully violates any regulations made and declared by the Lieutenant-Govei-nor in Council or issued by the Central Board of Health under this Act, or neglects or refuses to comply with such regulations, or with the requirements of this Act in any matter whatsoever, shall be liable for every such offence to a penalty not exceeding twenty dollars, to be recovei-ed by any person before any two Justices or a Police Magistrate, and to be levied by distress and sale of the goods and chattels of the offender, with the costs of such distress and .sale by warrant, under the hands and seals of the Justices, or hand and seal of the Police Magistrate, before whom the same ai-e re- covered, or under tlie hands and seals of any other two Justices. 3^, If it appear to the satisfaction of such Justices or Committfti Police Magistrate, before or after the issuing of their or his °' ""''"'" ^'^' warrant, either by the confession of the offender or other- wise, that he hath not goods and chattels within his or their jurisdiction sufficient to satisfy the amount, he or they may commit him to any gaol, lock-up, or house of con-ection for any time not exceeding fourteen days, unless the amount he sooner paid, in the same manner as if a warrant of disti-ess had issued, and a return of nulla bona had been made thereon. 33, All penalties whatever, recovered under this Act, shall be paid to the treasurer of the Municipality in which such penalties have been incurred, for the use of the Muni- cipality. 34, All offences committed against this Act wliile the same is in force in this Province, or in any part thereof, shall be prosecuted, and the parties committing the .same, con- victed and punished therefor as herein provided, as well after as during the time that such proclamation or procla- mations shall be in force. 35, No order nor any other proceeding, matter or thing No "f m-.-u. . done or transacted in, or relating to the execution of this jfuashea or Act, shall be vacated, quashed or sot aside for want of foi-m, *»"* of Ponaltica to lie [layalli! to.mimi( i- I);ility, Offences may In- pi'o- Sfciitcd liot- witUstniul- ing repnal of proclama- tion. 75G THE MUNICIPAL MANUAL. [ss. 1, 2. rT"'' "n'l'" °*' ^" rfmovod or romovablo by certiorari, or other writ or iiitoHtiiiuiior process whatKocver, into any of the Sui)erior Courts in this court. — Province. 30. In this Act, the following words and expressions shall have the meanings heroinaftor assigned to them, unless such meanings be repugnant to or inconsistent with the context; that is to say, the word "place" shall mean a City, Town, Village, Township, or any other territorial division recognized or d(!signatcd by law as a separate Municipality or Municipal division, and shall also mean and include a police village ; tlie word " street " shall include every high- way, road, square, row, lane, mews, court, alley and passage, whether a thoroughfare or not. 37. Chapter fifty-nine of the Consolidated Statutes for Upper Canada is hereby repealed, and chapter thirty-eight (a., cii. ys, of the Consolidated Statutes of Canada is also repealed, so rt'puaitd. £^j. ^ ^j^g provisions thereof affect the Province of Ontario. Iiitcrprita- tiitii. "place." "street.' Con. Stat. U. C. oh. 59 Con. Stnt. Who may vote at elcc- tious to the logislative (issemlily or iiiuiiicipal couuuili). AN ACT TO EXTEND THE ELECTIVE FRANCHISE. (37 Vic, Cap. 3.) Her Majesty, by and with the advice and consent of tJie Legislative Assembly of the Province of Ontai-io, enacts as follows: 1. In addition to the persons hitherto entitled to vote at elections to the Legislative Assembly or Municipal Councils, the right of voting shall hereafter belong to every male })er- son residing at the time of the election in the local INIunici- pality in which he tenders his vote; having resided therein continuously since the completion of the last revised assess- ment roll of the Municipality; and possessing the qualifica- tions and performing the conditions required by the laws hei'etofore in force, and not subject by the said laws to any dLsqualification, except as to property : Pi'ovided that he derives an income from some trade, calling, office or profession of not less than four hundred dollars annually, and is assessed for such income in and by the last revised assessment roll of the Mimicipality. Tiie caae, of ^. Where any person has an income derived as aforesaid encomeex- ^i^idi ig entitled by law to exemption from assessment, he asgesisment. shall not bc bound to avail himselt oi such right to exemj)- tion, and, if he think fit, he may require his name to be Income trauotuse. ss. 3-6.] ELECTIVE FIIANCUISE. t5t sent of tho 0, enacts as entered in tlie assessment roll for sncli income, ami tho same shall in such case l»e liabh; to taxation like other assessable income or pi'opcrty. !{. The Clerk of tho Municij)ality, when makinj^ tho Voters' lint. alphabetical list of voters re(]uirecl by law, shall iucliule tho names of all male persons assessed for income of tlie value aforesaid. 4t The oath to be administered to persons entitled to oathto vote under this Act shall bo as follows : voter. " You swear (or solemnhj affirm) that you are tho person named [or 'purporting to he named hy the -name of ) on the list of voters now shown to you (s/iowiinj the list to voter); that at the time of the last liual revision of tho assessment roll on which this list Ls based for this Township {Citij, Toivu or Villaije, as the case may be) you were, and thenceforward have been continuously, and still are a resi- dent of thus Township (City, Town or Vilhuje, as the case may be) ; that at the time of the last revision of the assess- ment roll, upon which the voters' list used on this election is based, and for twelve months previously, you were in recei})t of an income from your trade (office, calling or pro- fession, as the case may be) of a sum of not less than four hunilred dollars ; that you are a subject of Her Majesty by birtii (or naturalization, as the case may be) ; that you are of the full age o^ twenty-one years ; that you have not before voted at this election, either at this or any other polling place ; and tha' you have not received anything,' nor has anything been promised you, either directly or indirectly, either to induce you to vote at this election, or for loss of time, travelling expenses, hire of team, or any other service connected therewith ; and that you have not, directly or indirectly, paid or promised anything to any person, either to induce him to vote or to refrain from voting : So help you God." 5. The penalties imposed on all Municipal officers mider rL-nalties. the Assessment Acts, for omitting or refusing to comply with tho law, shall be imposed on and i-ecoverable in like manner fi'om all such officers as may refuse or neglect to observe the terms of this Act. 6. This Act shall be constnied as one with the Election Construc- Law of 1868, the Assessment Act of 18G9, and the Act "'"loract. I'especting Municipal Institutions in the Province of Ontario, i» ••Jiref ^ 758 THE MUNICIPAL MANUAL. [S3. 1-3. and with any other enactments relating to tho subject matter of this Act. Tt tS come '^' "^^^^^ ^''** ^^^^^^ ^^® ^^^'^^ *^" "''^'^ ^^^^^ *^" ^^^ *^'^^y ^^ ill force. January, in the year one thousand eight hundred and Beventy-five. Assensor to make inqui- riea beforo ttSHC.HSiUg jHJrsons I'laiming to be assessed. Clerk to state in list of voters persons qualllled by income. Copies of list to be printed. Copies to be posted in clerk's office, and copies to be sent to certain per- sons. AN ACT RESPECTING VOTERS' LISTS. (37 Vic, Cap. 4.) Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : 1, To prevent tlie creation of false votes, where any person claims to be assessed, or claims that any other person should be assessed, as owner or occupant of any parcel of land, or as possessing the income which may entitle him to vote in the Municipality at an election for the Legislative Assembly, and the assessor has reason to suspect that the person so claiming, or for whom the claim is made, has not a just right to be so assessed, it shall be the duty of the assessor to make reasonable inquiries before assessing such person. ^, In the alpliabetical list or lists of persons appearing by the assessment roll to be entitled to vote in a Munici- pality or in each of its sub-divisions (as the case may be), being the list or lists required to be prepared under the seventh section of the Election Act of 1868, if the qualifica- tion is in respect of income, the Clerk shall, in the proper list, state that fact, and the place at which the voter resides in the Municipality, li. Immediately after the Clerk has made the said ali)ha" betical list, and at latest within thirty days after the tina' revision and correction of the assessment roll, the Clerk shall cause at least two hundred coj)ies of said list to be printed ; and shall cause one of such printed copies to be posted up, and to be kept posted up, in some conspicuous place in his own office ; and shall forthwith also deliver or transmit by registered letter two of such copies to each of the following persons, that is to say : Every member of the Municipal Council of the Munici- pality except the Reeve ; Every teacher of a public school in the Municipality ; 8. 4.] VOTERS LISTS. 7S9 5 appearing le Munici- Every postmaster in the Municipality; The Treasurer thereiof ; ' The Sheriff of the County; The County Judge, or each of the County Judges in case there shall be more than one County Judge in the electoral division ; The Clerk of the Peace ; 2. And the Clerk of the Municipality shall forthwith also deliver or transmit, by registered letter, ten of such copies to each of the following persons, that is to say: The member of the House of Commons and the member of the Legislative Assembly for the electoral division, respectively, in which the Municipality lies ; The unsuccessful candidate or each of the candidates (as the case may bo), for whom votes were given at the then last election of a member for the House of Commons and for the Legislative Assembly, respectively; The Reeve of the Municipality; 3. Upon each of the copies so sent to each person shall be a printed or written certificate, over the name of the Clerk, stating that «uch list is a correct list of all persons appearing by the assessment rolls of the Municipality entitled to vote at elections for members of the Legislative Assembly ; and also stating the date upon which a copy of such list was firat posted in the Clerk's office; and further, calling upon all electors to examine the said list, and, if any omissions or other errors are perceived therein, to take immediate pro- ceedings to have the said en'or corrected according to law; 4. The Sheriff shall, immediately upon the receipt of his copies, cause one of them to be jjosted in a conspicuous place in the court house; the Clerk of the Peacfe, upon receipt of his copies, shall cause one of them to be posted in a con- spicuous place in his office ; every public teacher shall in like manner post up one of his copies on the door of his school- house ; and every postmaster shall post up one of his copies in his i)ost office. 4, The Clerk shall also forth-with cause to be inserted in Bome newspaper published in the Municipality, or in aise no newspaper is published in the Municipality, then in some newspaper published in the Municipality next thereto, or in tho County Town, a notice, signed by him, stating the date of the first posting up of the said list in his office. One insertion of such notice shall be sufficient. Clerk of th« raunici- pality to transmit copies to certain per- B0U8. On each copy the clerii to certify ub to cortttln mattura. Sheriff, clerk of tlie peace, tcaclicr and postmaster to post up a copy. Clerk to publish notice of first posting up by him. :go THE MUNICIPAL MANUAfi. [s3. 5-8. Revision of ^^ 'n,n f^f^\(\ jj^t of voters blmll bo Hubjoct to revision by the (bounty Judgo, at tlic iiustanco of any votor or |»ei-son entitled to bo a voter, on tho ground of names of voters being omitted from the list, or being wrongly stated tlierein, or of names of persons being insertcul on tlie list who are not entitled to vote; and upon sueh revision tho lussessment roll shall not l)o conclusive (^viden(!(* in regard to any particular, whether tho matter on wliich the right to vote depends had or had not been brought before tho Court of RoviHion, or had or had not been determined by that Coui-t; and tho decision of tho Judge under this Act, in regard to the right of any person to vote, shall bo final so far as regards such person. Proooedings g^ A person complaining of any error in tho said list complaining shall, witliin thirty days after tho Clerk has posted the said tho'lis/ ^ ^^^^ "' ^^^^ office, and transmitted or delivered the said co])ie8, give to tho Clei-k of tho Munici])ality a written notice of his complaint and intention to apply to tho Judge in respect thereof; and the proceedings thereafter by the Clerk, Judge and parties I'espectively, and tho resjxictive powei-s and duties of the Judge, Clerk and other persons, shall be tho same, or as nearly as may be the same, as in the case of an « ' appeal from the Court of Revision; but no deposit shall be required to be made before any such complaint is heard or disposed of. List con- T. Ill case no complaint respecting such list is received cZpla^nt" ^y *^*^ ^^^^^ o^ ^^^ Municipality within thirty days after witliin 80 the first posting up of the same, the Clerk shall ajjply to flratpo^stiag. ^^^^ Judge to certifiy one of the co})ies i-eceived by the Judge as being the revised list of voters for the Municipality ; and a duplicate of the list shall be retained by the Judge; and the certified copy shall be delivei'ed to the Clerk of the Municipality, to be kept by him among the records of his office. Compelling attoudnncu of witnesses un revision of list. 8. Any party may obtain from the County Court a su poena requiring the attendance at the Court for hearin, complaints as aforesaid, at the time mentioned in such subpoena, of a witness residing or served with such subpoena, in any part of this Province ; and the witness shall obey such subpoena, provided the allowance for his expenses, according to the scale allowed in Division Com'ts, is tendered to him at the time of service; and any person complaining, or any person in respect of the insertion or HH. 9, 10.] VOTKRS LISTS. 761 Pcndlf jr oil iiiiii-.'itleinl- iiMcf of the pt rson w'lici^ii! riKlit is in qucs- tiuu. AftiT final revision, jmlHO to lunki' NtHte- iiH'iit of altcriUionM iii.'iili', anil ci'i-tify II ciirivct copy uf liiit. Who may votu. omiHsiou of whoso naino a coinjOiiiut is made, shall, if rosidt'iit within tho Municipality, upon ht-ing served with a Kuhpoena, oliey tho sanio without hein;^ tendered or paid any allowanco for his oxpens(!S. If any lierson wlioso right to l)o a voter is tho subject of in(|uiry, y of the list, and delivei- a correct copy to the Clerk of the Municipality; and the latt(!r shall foi-thwith transmit to the Clerk of tlie Peace a copy of the said corrected list, accom])anied with tho ])roper oatli or affirmation of the correctness tliereof, as directed by the said Act. And no pcsrsou shall be admitted to vote unless his name appears on the last list of voteim made, certified, and delivered to the Clerk of the Peace at least one month before the date of the writ to hold the election ; and no question of (pialification shall be raised at any such election, except to ascertain whetluu' the ])arty tendering his vote is S.ie same party intended to be designated in the alphabetical list as aforesaid. 10. Ill case of errors being found in the .said voters' list Cystaorvn- on the said revision thereof, whether such errors are in the orrorH may omission of names, the inaccurate entry of names, or the |"^' ^'."'"^[if entry of names of per.sons not entitled to vote, if it appear i»y Kuiity to the Judge that the assessor was blamable for any of the i"""'"'"- said erroi-s, the Judge shall order the assessor, either alone or jointly with any other penson, to pay all costs occasioned by the same ; and in case of errors for which the Clerk was 'u blame, the Clerk, either alone or jointly with any other person, shall be charged with the costs ; and in case of errors of the Court of Revision, the Municipality shall, either alone or jointly with any person, pay the costs, s\il)- ject to any claim which the Municipality may justly have against ti ■ guilty j)arties ; or the Judge may order the Assessor, Clerk or Municipality in any such case to pay the costs, if any pax-ty fail to recover the sajne from any other party named and ordered to pay the same ; and in all cases 762 THE MUNICIPAL MANUAL. [ss. 11-14. Persons whoso names omitted from roll and inserted on revision, liable to pay taxes. Judge's oixler. Penalty on the clerk for errors or omissions. Penalty on" aHsessor for wrongfully assessing or oraittiuj;. Colourable transfer o* jiroperty in order to I'onfer vote. not herein provided for, the costs shall ba in the discretion of the Judge. 11, If a person not assessed, or not sufficiently assessed, shall be found entitled to vote, the Municipalily shall be entitled to recover taxes from him, and to enforce payment thereof by the same means and in tlie same manner as if he had been assessed on the roll for the amount found by the Judge ; and the Judge shall make an order, setting forth the names of the persons so liable, and the sum for which each person should have been assessed, and the land or other property in respect of which the liability exists; and such order shall be transmitted to the Clerk of the Municipality, and shall have the same efiect as if the said particulars had been inserted on the roll. tH, For evc;icy name erroneously inserted in or omitted from any list of voters, or duplicate required under this Act, the Clerk offending shall pay and forfeit to any person who may sue therefor the sum of one dollar, and shall also pay to any person applying to the Judge to have any such error corrected, the costs incurred by him in respect tlxereof ; ami the payment of the penalty imposed by this section shall not relieve the Clerk from any additional penalty attaching to any -willful and wrongful act. 13. Any assessor who wilfiilly and improperly inserts any name in the assessment roll, or assesses any person at too high an amount, with intent in either case to give to any person not entitled thereto an apparent right of voting at any election, or who wilfully insert? any fictitious name in the assessment roll, or who wilfully, \,d improperly omits any name from the assessment roll, or assesses any person at too low an amoimfc, with intent in either case to deprive any person of his right to vote, shall, upon conviction there- of before a Coui't of competent jurisdiction, be liable to a fine not exceeding two hundred dollars, and to imprison- ment until the fine be paid, or to impi'isonment in the common gaol of the County or City for a period not exceeding six months, or to both such fine and imprison- ment, in the discretion of the Court. 14.' No person shall make, execute, accept or become a party to anv lease, deed or otlier instrument, or become a paity to any verbal arrangement whereby a colourable interest in any la»d, house or tenement is conferred, in order to qualify any pereon *o vote at an election j and any ss. 1-3.] DRAINAGE BY-LAWS. 763 person violating the provisions of this section, besides being liable to any other penalty pi*esciibecl in that behalf, shall pay and forfeit the sum of one hundred dollars, with costs o^ suit, +0 any person suing therefor in any Court of com- petent jurisdiction; and any person who induces or attempts to induce another to commit an offence under this section shall incur a like penalty. , ' 15. This Act shall a])plv to the assessments and voters' Acttoniniiy TO t.lM4 vwir K lists of the i)resent year as well as afterwards. list^ AN ACT RESPECTING MUNICIPAL DRAINAGE BY-LAWS. (37 Vic, Cap. 20.) Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : 1. Every Municipal Council ohall, upon the petition of Powers a.-* the majority in number of all the owners, whether resident on peUiUm or non-resident, of the property to be benefited, have the " f rt^siUcnts same authority to ptiss By-laws for the construction of residents. drainage works by local assessment, as they would liave upon the petition of the majority in number of the owners ghown by the last revised assessment roll to be resident on the property to be benefited. ^, In case any By-law already passed, or wiich may be Power to hereafter passed by the (Council of any Municipality for the ^™ 'wi,^n no construction of drainage works by assessment upon the real nuiiiciont property to be benefited thereby, and which has been acted vided for upon by the construction of such works in whole or in part, "f't/'!*i"*"k does not provide suflicient means for the completion of the works, or for the redemption of the debentures authorized to be issued thereunder as the same become payal)le, the said Council may, from time to time, amend the By-huv in * order fully to carry out the intention thereof, and of the petition on which the same was founded. «{, No debenture issued or to be issued under any By- Deheniurcs law aforesaid shall be held invalid on account of the same ""M'l,^^ '",' ,. i-i'j 1 •! iT»i valid though not being expressed in strict accordance with such By-law, not in ae- provided that the debentures a;'e for sums not in the whole ^jth'by*kw. exceeding the amount authorized by the By-law. 764 THE MUNICIPAL MANUAL. [ss. 1, 2. Investment in put'chaso of debeu- tures by Lieutenant- Governor in oouneil made valid. 4, Any investment heretofore mai]B, or which may be hereafter made by the Lieutenant-Govtrnor in Coui A, in the purchase of debentures issued under any Municipal By- law for the construction of drainage works, passed under the authority of the Municipal Law 6f Ontario, shall stand upon the same footing and be as valid and effectual as if such By-law had been passed under the authority of " The Municipal Drainage Aid Act " of 1873. liieut.-Gov. 5. The Lieutenant-Governor may, in his discretion, ad- counc'unAy ^ance the whole par value of debentures instead of eighty advance par five per centum merely of such par value, before tho com- deb^ntrrcs. pletion of the works. 36 v.. c. 39, G. Sections one to eighteen inclusive, and also sections and^sVr^'iS twenty-seven and twenty-eight of " The Municipal Drainage repealed.' Aid Act " of 1873 are hereby repealed ; and the proceeding authorized thereby shall hereafter be taken under sections numbered from four hundred and forty-seven to four hundred and sixty-three, inclusive, of tho Municipal Institutions Act of one thousand eight hundred and seventy-three. AN ACT RESPECTING LINE FENCES. (37 Vic, Cap. 25.) Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows ; Repeal of f^ Tlie Act chaptered fifty-seven of the Consolidated enactments. Statutes for Up])er Canada; the Act chaptered forty-six of the Statutes of Ontario, passed in the thirty-second year of Her ]\Ia_jesty's reign, so far as they affect line fences, and all Acts and parts of Acts respecting tlio subject provided for in this Act, are repealed. *Z, Owners of occupied adjoining lands shall make, keep up and repair a just proportion of the fence which marks the boundary between them ; or if there is no fence, they shall so make, keep up and repair the same proportion, wliich is to mark such boundary ; and owners of unoccupied lands which adjoin occupied lands, shall, upon their being occupied, be liable to the duty of keeping uj) and repairing such proportion, and in that resjjeet shall be in the same position as if their land had been occupied at tho time of Duties of owners of adjoining land.s as to fences. B8. 3-5.] LINE FENCES. 765 tobusiittled. the original fencing, and sliril be liable to the compulsory proceedings hereinafter mentioned. 3, In case of dispute between owners respecting such disputes proportion, the follo^ving proceedings shall be adopted : owners, ho ir Either OAvner may notify the other owner or the occupant of the land of the owner so to be notified, that he will, not less than one week from the service of such notice, cause three fence viewers of the locality to arbitrate in the premises. Such owners so notifying shall also notify the fence viewers, not less than one Aveek before their services are required. The notices in both cases shall be in writing, signed by the person notifying, and sliall specify the time and place of meeting for the arbitration, and may bo served by leaving the same at the place of abode of such owner or occupant, with some grown-up perscju resitling thereat; or in case of such lands being untenanted, by leaving such notice with any agent of such owner. The owi.ors notified may, within the week, object to any or all of the fence viewers notified, and in case of disagreement, the Judge hereinafter mentioned shall name the fence viewers who are to arbitrate. 4, The fence viewers shall examine the premises, and if Pities and , TiOWlTS of required by either party, they shall hear evidence, and are fonce authorized to examine the parties and their witnesses on ^"wera. oath, and any one of them may adminirster the oath or an affirmation, as in courts of law. 5, The fence viewers shall make an award in writing. Award of signed by any two of them, respecting the matters so in viewTra and dispute ; the award shall specify tl a locality, quantity, powers. description, and the lowest price of tht, ivmce it orders to be made, and the time within which the work shall be done ; and tho award shall state by which of the said [)arties the costs of the proceedings shall be })aid, or whether either party shall pay some {iroportion of sucli costs. And in mak- ing such award the fence viewers shall i-egard tho nature of the fences in use in the locality, the pecuniary circum- stances of the pei'sons between whom they arbitrate, and generally the suitableness of the fence ordered to the wants of each party; and wliere from tho formation of the ground, by reason of streams or other causes, it is found impossible to locate the fence upon the line between the [)arties, 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 parties, wliere to them it may seem to be most convenient ; rcG THE MUNICIPAL MANUAL. [S8.6-11. Deposit of awanL Award may be uvidence. Award, how enfoirml. Award to be A charge oa laiiils. if registered. How regis- tered. Duty and liability of OKOupauts as to notify- ing ownors. Tue.n to fence view- oi'.s aud v/itnessea. Appeals. but such location shall not in any way affect the title to the land. If necessary, the fence viewers may employ a provin- cial land surveyor, and have the locality described by motes and bounds, G. The award shall be deposited in the office of the Clerk of the Council of the Municipality in which the lands are situate ; it is an official document, and may bo given in evi- dence in any legal proceeding by certified copy, as are other official documents ; aud notice of its being made shall be given to all parties interested. 'i. The award may be enforced as follows :— The person desiring to enforce it must serve upon the owner or occu- pant of the .'idjoining lands a notice in writing, requiring him to obey the award, and if the award is not obeyed witliin one month after service of such notice, the person so desiring to enforce it may do the work which the award directs, and immediately recover its value and the costs from the owner by action in any Division Court having jurisdiction in the locality: Provided always, that the Judge of such Division Court may, on application of either party, extend the time for making such ft uce to such time as he may think just. 8. The award is a lien and charge upon the lands respect- ing which it is made, provided that it' is registered in the Registry Office of the County in which the lands are. Such registration may be in dujdicate or by copy, proved by affidavit of a witness to the original, or otherwise, as in the Ciise of any deed which is within the meaning of the Acts respecting registration of deeds of lands. 0. An occupant, not the owner of land, notified in the manner above mentioned, must immediately notify the owner; if he neglect so to do, ho is liable for all damage caused to the owner by sach neglect. 10> The fence viewers are entitled to I'cceive two dollars each for every day's work under this Act. Provincial Land Surveyors and witnessess are entitled to the same compen- sation as if they were subpoenaed in any Division Court. 1 1 . Any person dissatisfied with the award made may appeal therefrom to the Judge of the County Court of the County in which the lands are situate; for such appeal the proceedings shall be as follows : The appellant shall serve upon the fence viewers, and all parties interested, a notice Scb. A.] LINE FENCES. 767 in writing of his intentic to appeal, not less than one week from the time lie has been notified of the award; such notice may be served as other notices mentioned in this Act. The appellant must also deliver a copy of such notice to the Clerk of the Division Court of the Division in which the land lies, which Clerk shall immediately notify the Judge ^of such appeal, whereupon the Judge shall ajjpoiiit a time powers of for the hearing thereof, and, if he think fit, order .such sum ti'oJ"JK«- of money to be paid by the appellant to the said Clerk as shall be a suflScient indemnity against costs of the ap})eal, and the Judge shall order the time and place for the hearing 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 ; and the Judge shall hear and determine the appeal, and set aside, alter, or aflirm the award, correcting any error. He may examine parties and witnesses on oath, and, if he so })lease, may insjiect the premises ; lie may order payment of costs by either party, and fix the amount, and liis decision shall be final ; and the award, as so altei^d or confirmed, shall be dealt with in all respects as it would have been if it had not been appealed from. tH. Any agi'eement between owners respecting such lino RegistrntioD fence in writing may be filed or registered and enforced as nierftk'^ if it was an avN^ard of fence viewers. IIJ. The forms in the schedules are to guide the parties, Forms. being varied according to circumstances. 14. This Act is not to affect any proceedings under Fendini; former Acts. excepted. 15. This Act may be cited in any proceeding or docu- Short title. ment as the " Ontario Line Fences Act." SCHEDULE A. 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 one and two in the 768 Concession of the Township o.' of Dated this day of THE MUNICIPAL MANUAL. [Sch. C. , in the County 18 . To C. I)., A.B., Owner of Lot 1. Owner of Lot 2. SCHEDULE B. Notice to Fence Viewers. Take notice, tliat 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. , being lots Nos. one and two in the Concession of the Township of , the County of Dated this day of 18 . A. R, * Owner of Lot, m SCHEDULE C. Award. We, the fence viewers of the locality, having boon nomi- nated to view and arbitrate upon the line fence between by (name and description of owner ivho notified) and (name and description of oioner notified), which fence is to be made and maintained between (describe j^foperties), and having examined the premises and duly acted according to the Ontario 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 main- tained by tlie said . The fence shall be of the following description : (state the kind offence, height, mate- rial, li'c.) and shall cost at least per rod. The work shall be commenced within days, and completed within days from this date, and the costs shall be paid by (state by whom paid ; if by both, in what proportion). Dated this day of A.D. 18 . (Signatures of Fence Viewers.) GAOL ADDITIONS AND ALTERATIONS. 769 Schedule to Agreement. We and owners respectively of lots one and two in the Concession of the Township of , in the Connty of , do agree that the line fence which divides our said properties shall be made and maintained by U3 as follows: [folloio same form as in the award). Pated this day of A.D. 18 . . ' {Signatures 0/ parties.) AN ACT KESPECTINCt PUBLIC AID TOWARDS MAKING GAOL ADDITIONS AND ALTERATIONS. '■ (37 Vic, Cap. 31.) Whereas it was by the twenty-first section of the ''Prison preamble, and Asylnm Inspection Act" of the late Province of Canada, being chapter one hundred and ten of the Consolidated Statutes of Canada, j).ovided that, in order to aid the County Councils in Upper Canada in making the alterations and additions prescribed in the said Act, in the gaols of their respective Counties, that the Governor of the Province of Canada might pay from out of the Upper Canada Building Fund, to the Treasurer of each County, a sum not exceed- ing one-half of the expense of the same, and not exceeding the sum of six thousand dollars for any one County; and whereas, by an Act passed in the thirty-first year of Her Majesty's reign, and chaptered seven, the said Prison and Asylum Inspection Act was repealed; and whereas, previous to the repeal of the said recited section, various County Councils in Ontario were aided under the provisions thereof; and whereas other County Councils, which have not been so aided, have made alterations and additions to their gaols, in order to meet the requirements of the said Act and of the "Prison and Asylum Inspection Act" of Ontario, and alterations and additions are required by other gaols in this Province, in counties which have not received aid under the said section, and it is desirable to revive the said section in order to place the various Counties in Ontario on an equal footing : Therefore Her Majesty, by and with the advice and con- sent of the Legislative Assembly of the Province of Ontario, enacts as follows : 40 770 THE! MUNICIPAL MANUAL. [8.1. Aid to county councils for alterations to gaoU. Construo- Hon of pre* oeding sec- tion. Orders in council to bo submitted to the Legisliitive Assembly. i« In order to aid the County Councils in Ontaino in making the alterations and additions required by law in the gaols of their respective Counties, the Lieutenant-Governor in Council may, by order in Council, direct that oiit of the Consolidated Revenue Fund of Ontario there shall be paid to the Treasurer of each such County which has not been aided under the said " The Prison and Asylum Inspection Act " of the late Province of Canada, a sum not exceeding one-half of the expense of making such alterations or addi- tions, and not exceeding the sum of six thousand dollars for any one County. 2. The preceding section shall be construed as if the same had been on the twenty-eighth day of February, in the year of our Lord one thousand eight hundred and sixty-eight, that being the date of the repeal as aforesaid of said section twenty-one of chapter one hundred and ten of the Consoli- dated Statutes of Canada, passed to take effect in lieu of the said section so repealed ; but every such order in Council made under said preceding section shall, as soon as conve- niently may be after the making thereof, be laid before the Legislative Assembly for its ratification or rejection, and no such order shall be operative unless and until the same shall have been ratified by a resolution of said Legislative Assembly. AN ACT TO AMEND AND CONSOLIDATE THE LAW FOR THE SALE OF FERMENTED OR SPIRITUOUS LIQUORS, , . . (37 Vic, Cap. 32.) * ' Preamble. "Whereas it is expedient to amend and consolidate the Act passed in the thirty-second year of Her Majesty's reign, intituled " An Act respecting Tavern and Shop Licenses," and the Act passed in the thirty-third year of the same reign, amending the same, and tl^p Act passed in the thirty-sixth year of the same I'eign, intituled " An Act to amend the i Acts respecting Tavern and Shop Lice.ises :" Therefore Her Majesty, by and with the advice and con- sent of the Legislative Assembly of tha Province of Ontario, enacts as follows : Interpretation. words "li- 1, In this Act the word "liquors" or "liquor" shall be "liquor*."* understood to mean and comprehend all spirituous and malt 8S. 2-5.] TAVERN AND SHOP LICENSES. I i\ on as convo- liquors, and all combinations of liquoi's and drinks and drinkable liquids which are intoxicating. Licenses. 3. A "tavern license" shall be construed to mean a license Meaning of for selling, bai-tering or trafficking by retail in fermented, "uvem spii'ituous or other liquors, in quantities of less than one 'i^^t'"'*"" quart, which may bo drunk in the inn, ale or beer-house, or other house of public entertainment in which the same liquor is sold. «{. A 'ohop license" shall bo construed to mean a license Meaning of for selling, bartering or trafficking by retail in such liquors n "«„««' "'*'''' in shops, stores, or places other than inns, ale or beer-houses, or otlier houses of public entertiiinment, 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 removeil and taken away, in quantities not less than three half-pints at a time. . 4. A "license by wholesale" shall be construed to mean McuninKuf a license for selling, bartering or trafficking, by wholesale "u'lense by only, in such liquors in warehouses, stores, shops or places whuiesdle.' 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 bottled ale, porter, beer, wine or other fermented or spirituous liquor, each such sale shall be in quantities not less than one dozen Liquor ia bottles of at least three half-pints each, or two dozen liottles of at least three-fartly printed, of the several kinds Ik '•einbefore mentioned; wliich said licenses shall be signed by the Treasurer of this Province, and dated as of the tirsl day of Marcli in each yenr, and shall thence continue in force fi>r one year, until tlio first duy of March in the next cnsuiMg year, and no longer: Provided, that tavern and shop licenses may be issued between the first and tifteenth days of March in each year; and licenses by whole- sale may be issuod between the first and last days of March in each year; and all such licenses shall be deemed to have Iw^on issued on the said first day of March. FT 772 THE MUNICIPAL MANUAL. [S3. 6-0. Rerauiiera- tioii tor sui- vices. issnerof ^J, Tlie Lieiiteuiint-Govornor may, from time to time, be appoint- appoint to hold office during pleasure one fit and proper ed, hiu tluty. person, other than the Iiis])Octor of Licenses, in each County, City, Hiding or Municipality, to be called "Issuer of Licenses," whoso duty it shall be to issue licenses for the County, City, Hiding or Municipality for which ho shall be appointed, and who shall countersign evoiy license issued by him, and shall state thereon the date of such counter- signing; and every such license shall take effect in favour of the applicant thei-efor from the time of such countersign- ing, anil not before. Y. For his services in the hvst iirooeding section men- tioned, the said Issuer of Licenses shall bo entitled to retain out of the moneys received by hiui for Hcimisps tho sum of six per centum, and the residue thereof he shall pay to the Treasurer of (.Ontario, in such manner as the said Treasurer shall from time to time direct. 8. Every license shall be issued by the issuer of licenses for the County, City, Riding or jNIunicipality in which the tavern, shop, warehouse or other [)lace to which tlio license is to fvpply shall be situate, except in the case of licenses for vessels, whicli may be issued by any issuer of licenses without any cei-tilicato or any of the terms, conditions or fornialitics required in other cases : Provided always, that all licenses shall be constar'^iy and conspicuously exposed in the warehouses, shops or m the bar-room of taverns, inns, ale-houses, beer-houses or other places of })ublic entertain- ment, and in the bar-saloon or bar-cabin of vessels, under a penalty of five dollars for every day's wilful or negligent omission so to do, to be recovered with costs from the merchant, shopkeeper or tavern, inn, ale-house or l>eer- house keeper, or keeper of any other place of public enter- tainment, or master, captain or owner of the vessel so making default. D. In the respective Municipalities in which the sale of intoxicating liquors and the issue of licenses therefor is not prohibited under the provisions of the Temperance Act of 18G4, it shall be the duty of the Council of the Township, Town and Incoi'porated Village, antl of the Commissioners of Police in Cities, to pass By-laws in the month of February in each and every year, and which shall not be altered or repealed during the year from the first day of March following : liiCfllSPS, how issuc;il. Vossol li.'uiisua. Licenses to be Iteiit exiiosed. Venalty on non- exposure. Council nnd police com- missioners may make by-laws. s. 10.] TAVERX AND SHOP LICENSES. 773 to time, and proper icli County, "Issuer of uses for the lio sliall be jcnso issued ich counter- it in favour ection men- led to retain tlio sum of 1 pay to tlio id Treasurer L- of licenses n whieli the li tlio license f licenses for • of licenses onditions or Iways, that isly exposed averns, inns, ic entertain- seLs, under a negligent ;s from the ISO or beer- lublic enter- ic vessel so the sale of lerefor is not ance Act of 10 Township, )mmissioners of February )e altered or y of March 1. For defining the conditions and (uialifications renuisito firRriM'tijiB . . , . ' ,. /• 1 t:ivi'ni aiitl for granting eertihcates to obtani tavern licenses tor tiio M\«\> licnwe retail, within the Municiitality, of si)irituous, ferniented or ^^'f''"'-"*^^*' other manufactured liquors, and also shop licenses for the sale, by retail, within the Municipality, of such li(piors in shops, or places otlier than taverns, inns, ale-houses, beer- houses or places of public entertainment ; 2. For declaring the terms and conditions required to he, TtMnis and complied with by an applicant for a tavern licenso, and the ''°"'^''^'""'' security to Ik; given by him foi- observing the same; 3. For declaring the security to bo given by an applicant Sual Council •'^^'^'''ieamay / 1 • • p T? 1 • 1 • consent to or (Jommissioners oi rolice, as the case may be, i.aving nmuvaiof jurisdiction and subject to the a[>proval of the issuer of k^VpJr to licenses, endorse on auv tavern or shoi) license permission auutiier to the holder thereof, or his assigns or legal representatives, to remove from the house to which his said license applies to another house to be described in an endorsement to be liiade ])y the said inspector on the said license, ami situate within the same Municipality, and possessing all the accom- modation required by law; and sucli pei'mission, when the approval of the said issuer is endorsed on the said license, shall authorize the holder of the said license to sell the same liquors iia the house mentioned in the endorsement during tho unexpired portion of the tei'ui for which the said license was granted, in the same manner, and upon the same terms and conditions ; and any bond or security which such holder of a license may have given for any pui'pose relative to such license, shall apply to the house or place to which such removal is authorized, but such permission '^hall nok ejititle him to sell at any other than this one [)lac< . Regulations. IS^, Every person who keeps a tavern, inn, ale-liouse, beer-liouse, or other house or ])laGe of public entertainment, in res}iect of which a tavern license has duly issued and is in force, shall exhibit over the door of such tawni, uni, ale house, beer-house, or other place of jmblic en!.:r; '.Imuk':!;;, in large letters, the words " Licensed to sell w'lv"', b:'or and other spirituous or fermented iiquors," and, in default llicro- of, shall be liable to a penalty of five dollars besides osls. 30. ^o person having a shop license to sell by retail shall allow aiy li(piors sold by him or in his ])ossession, and for the sale of which a license is required, to he consumed within his shop, or within the building which such shop for.-^s part of, or which communicates by any eutranco with Tavern kocpcrs to cxliibit no- tice of liaing licensed. Penalty. Shop licenw not to au- thorize liijuor sold to h", cou- Bumedia the house. 778 TK3 MUNIC'PAL MANUAL. [sg. 21-23. Penalty. Liquor not to bo con- sumed on premises of persons having license by wholesale. Fees for lice. ^i. Proviso. By-laws for sums to be paid in addi- tion to pro- vincial duty. Proviso. 3uch shop, citlier by the purchaser ihoreof or by any otlier person not usually resident witliin such building, under n, penalty of twenty dollars besides costs. ^1. No person having a license to soil by wholesale shall allow any liquors .sold by him or in his j^ossession for sale, and for the sale or disposal of which such license is required, to be con.sumed within his warehouse or shop, or within any building which forms ])art of or is appurtenant to, or which communicates by tiny entrance with, any warehouse, shop or other premises wherein any article to be sold or disj)osod of under such license is sold by retail, or wherein there is kc;pt any broken packages of such articles. Duties Payable. 3!J. Over and above the sum which may be imposed l:)y Municipalities, as by law provided, there shall be paid for each tavern lic(>.nse, to and for the use of Her Majesty (and forming part of the Consolidated Revenue Fund of this Province), in Cities, a duty of thirty dollars ; in Towns, of twenty-five dollars; and in Townships and Incorporated Villages, of fifteen dollars; for vessels navigating the waters of this Province, of thirty dollars; for each shop lict^u.se, liy retail, in cities, of thirty dollars, in towns, of twenty-five dollars, and in Townships and Incorporated Villages, of fifteen dollars; for each license by wholesale, of fifty dollars; for each tavern license in any territory not under Municipal government, of fifty dollars ; and for each sho]> license in any such territory, of forty dollars: Provided that for each tavern license mentioned in section nine, subsection five, tl'e provincial duty shall be thirty-five dollars. 33« The sum to be paid for a tavern or shop license, in addition to the provincial duty mentioned in the last pre- ceding section, shall be such a sum a« shall be fixed by By- '.aw of the Municijjality, passed by the [>roper aiiti jrity in that behalf, and, including the provincial duty, shall be in Cities, not less than eighty dollars for taverns and for shops; in Towns, not less than si.xty dollars for taverns and for shops; and in Townships and Incorporated Villages, not less than tlurty dollars for each tavern and shop license: Provided always, that for each tavt^rn license mentioned in section nine, subse('tion five, the said sum in Cities shall not bo less than one hundred dollars, and in Towns not less than eighty dollars; but no By-law by which a greater sum than one hundred and thirty dollars ]>jr annum is intended to be ss. 24-27.] TAVERN AND SH' LICENSKS. 779 icense, i.i exacted for any tavern or shop license, or for leave to exor- cise any other calling, or to do any other thing for which a license may be recjuired, shall have any force or ell'ect, unless the By-hiw, bofoi'e the final passing thereof, shall have been duly approved by the ek^ctors of the ]\[unieipality in the manner ])rovided by the Municipal Act; and any By-law so passed shall not be Auried and n^pealed uidess the varying or repealing By-law shall have been, in like manner, sub- tnittcd to and approved of by the electors of the said Muni- cipality. Prohibitions. %A. No person shall sell by wholesale or retail any spirituous, fermented or y wholesale, under this Act, the licpior so manufactured by him, wlieu sold for consump- tion within this Province, and under which license the said liquor may be sohl by sami»l(^ or in original packages, in any Municipality, as well as in that in which it is manufi'ctureil, but so that no such sale shall be in quantities less than those prescribed in section four of thi.s Act. ^1. The said sections numbered twenty -four and twenty- fi \ 8 of this Act shall not prevent any chemist or druggist Certain by- la vs 1(1 be apiiidvcd by public vote. >.'o person siiull Sell liquors with- out license. Persons not to ktep spirituous, &e., liiiuors f(]r s.iU; un- less licunsi'd. Last t\v(i Iireriiling Beclious not to apfily to brcwers.&i.'., nor to clitraiBtH •80 THE MUNICIPAL MANUAL. [ss. 28-30. ■gaBBiB-/ All plaies when; iu- toxieatliig iiiorunig. Exceptiou. duly registered ns sucli iindsr and by virtuo of the " Pliar- maey Act of 1871," from keeping, having or selling liquors for strictly medicinal pur[)Oses, and tlien only in packages of not more than twelve ouucroduced by the vendee or ■ his agent ; nor shall an/ such licpior be j)ermitted or allowed to be drunk in any such places during the time prohibited by this Act for the sale of the same. liquors from *^^* Where a license is issued, under this Act, to autho- Khips ill iioit rize the sale of liquors upon any vesii^el navigating an f river, lake or water in tliis Province, no sale or other dis^josal of liquor shall take jjlace thereon or therefrom, to be consumed by any person other than a ])assenger on the said vessel, whilst such vessel is at any port, pier, wharf, dock, mooring, or station ; and in case any sucli sale or other disposal of Penalty. liquor shall take i)Iace, the said license shall ijjso facto be and become forfeited and absolutely void, and the captain or master in charge of such vessel, and the owner or person navigating the same, as well as the person actiuxlly selling or disposing of liquor contrary to this section, shall be severally and respectively liable to pay to the Crown, for the public uses of this Province, the sum of one hundred dollars; and any person who may sell or dispose of any liquor contrary to the provisions of this section, shall also be liable to the same penalty and punishment therefor as are hereinofter prescribed in the thirty -fourth section of this Act. Not lawful to take money for o.ortitieate, i /. xr • until license in Cities, or any of them, nor for any member of any Mum- PemiUies 30. It shall not be lawful for the Commissioners of Police BS. 31-34.] TAVERN AND SHOP LICE^SES. 781 cipal Council, nor for the Clerk, Treasurer, or any officer of such Munici|iality, either directly or iudii-ectly, to receive, take or huvo auy money whatsoever, for any certificate, matter or thing connected with or relating to any license, or the sum to bo tlic-iefor paid to the syid Municipality, or any part thereof, or to receive, take or ha\ o any note, secu- rity or j)romise for the payment .of any such nion(!y or any part tliereof, fiom any peison oi- i)crhons \\hiitKoever, until and after the Siiid license shall have been issu(xl by the issuer of licenses in the manner aforesaid; and any person or per- Bons guilty of or concerned in, or a party to any act, matter or thing contrary to the provisions of this section or of section fourteen of this Act, shall forfeit and pay to and for the use of Her Majesty ii penalty of not less than fifty Penalty, dollars, nor more than one hundred dollars, besides costs, for every such offence. 31. A:\y member of a Municipal Corporation, or^ofllcer penalty for or other person who shall, contrary to the provisions of this issuing! any ■ . ('t'Vt i I'llVlt OH A<^t, knowingly vote or issue, or cause or })rocure to bo contmiy to issued, a certificate for a tavern or .shop license, shall, iipon ""*-^'^- conviction thereof, for each offence pay a tine of not less than forty dollars, nor more than one hundred dollars, and iu default of payment of such fine, the offendei- or offenders may be imprisoned in the County gaol of tlio County in which the conviction takes place for a period not exceeding three calendar mouths. ll*i. If any officer of any Municipal Corporation shall Forfeiture of be convicted of any offence under this Act, he shall therebv ',''','','': '-f. , forfeit and vacate his office, and he shall be disqualified to iHirrrif hold any office in any Municipality in this Province for two '-""^" *^ • years tlicreafter. 33. If any member of any Municipal Council .shall bo Forfeitureof convicted of any offence under this Act, he shall thereby i',I|!j|^i,|!r „f forfeit and vacate his seat, and shall 1)C iiieligilile to bo ''"iiiHil if elected to or to sit or vote in any Muuici[)al Cutuicil for two years thereafter; and if any such person, after the forfeiture aforesaid, shall sit or vote in any Municipal Council, ho shall incur a penalty of forty dollars for eveiy day he shall so sit runaity. or vote. 34. For punishment of offences against section twenty- Penalty for eight of this Act, a ]>enalty for the first offence agiunst the tiou pnalti«»>. tlie ijoofls and chattels of the person or persons who are tlie proprietor.-! in occiipanoy, or tenants or agonts in occa]):mcy of the said i)lace or phices, who shall bo found by himself, her.self or themselves, or his, her or their servants or agents, to have contravened the enactment in the said twenty eighth section or any part thereof; for the second offence, a penalty against all such of not lesif than forty dollars with costs or twenty days' imprisonment v/^ith hard labour; for a third offence, a penalty against all such of not less than one hundred dollars with costs or iifty days' imprisonment witli hai'd labour ; and for a fourth or any after offence, a penalty against all such of not kiss than one nor more than three months' irnpi-isonment with hard lalx)ur in the common gaol of the County wherein such place or places may be ; the number of such offences to be fiscertained by the })roduction of a certilicate luider the hand of the convicting Justice, or by other satisfactory evidence to the Justice before whom the information and complaint may be made ; and it is hereby enacted that convictions for several offences may be made under this Act, although such offences may have been committed in the same day : Provided always, that the increased penalties hereii .before in this section imposed shall only be recoverable in the case of offences committed on different days. 35. Any person who shall sell or barter spirituous, fermented or manufactured licpiors of any kind, or intoxi- cating licpiors of any kind, without the license therefor by law required, shall, for the first offence, on conviction thereof, forfeit and pay a jitmalty of not less than twenty dollars besides costs and noi more than fifty dollai-s besides cost.s ; and for the second offence, on conviction thereof, such j>erson shall be iuiprisoned in the county gaol of the CiHuiTv in which the offtMice was committed, to bo kept at hard labour for a period not exceeding three calendar months ; and for the thiitl and any after offence, on conviction thereof, such person shall be imprisoned in the county gaol of the County in which th<^ offence was committed, to be ki'|i| at bard labour for a period of not less than ou« nor more t^an three calt ndar months ; and the nuviiber of convio tions may \^ ascertained by the production of a certificate under the hand (^f the convicting Justice or by other satis factory evidence. 36. The Mayor or Police M;\gistrate of a Town or City, or the Reeve of a Township or Village, wiih aay one Justice of the Peace or any two J ustices of the Pe.u'* haviivg jviris- B. 37.] TAVERN AND SHOP LICENSES. i83 diction in the To\vn.<^]up or Village, ujiou complaint mude oti oath to them or onti of them resj)ectively, that any keeper of any inn, tavern, ale-house, beer-house, or other liouse of put)lic entertainment, situated within their jurisdiction, sanctions or allows gambling or riotou.s or disordtn-ly conduct in his tavern or house, may summon the keeper of such inn, tavern, ale or beer-house to answer the complaint, and may investigate the same summarily, and either dismiss the com- plaint with costs to be paid by the complainant, or convict the keeper of having an improper or a riotous or disorderly house, as tin case may be, and annul his license, or susjiend the same for not more than sixty days, with or without costs, as in his or their discretion may seem just; and in case the keeper of any such inn. tavern, ale-house, beer- house, or place of public entertainment, shall be convicted under this section, and his license anmdled, he shall not be eligible to obtain a license for the period of two years there- after. IVi, The Judge of the County Court of the County in Power of which the Municipality is situate, wherein the license com- ast(''fnrn«?s plained of is intended to take effect, upon the complaint of impioiitTiy any person that such license has been issued contrary to any licc'iiaU'cou' of the provisions of this Act or of any By-law in force in '''^'■^'^■ the said Municipality, or that such license has been obtained by any fx"aud, or that the person licensed has been convicted on more than one occasion for any violation of the provisions of the thirty-sixth section of this Act, or has been convicted for the foui-th or any after offence under the twenty-eighth sectioii of this Act, shall summon the person to whom such licons.' issued to appear, and shall proceed to hear and deter- mine the matter of the said complaint in a sunmiary man- ner, and niay upon such hesuing, or in default of appearance of the person summoned, determine and adjudge that such Iicens(> upon any of the causes aforesaid ought to be revoked, and thereupon shall order and adjudge that such license is and stands i-evoked and cancelled accordingly, and i here- upon such license shall be and become inoperative and of none effect, and the person to w.bom such license issued, shall thereafter, during tlie full period of two years, bo dis- q^uiilitied from obtaining any further or other license under this Act; and the said order and adjudication of the said Judge shall be final and conclusive, and shall not be the subject of appeal or revision W any Court whatever; or the said Judge may, in his disaw*tou, dismiss the matter of the 784 THE MUKICIPAli MANUAL. [ss. 38-40. duties. said complaint, "with or without costs to be paid by the coni- ])lainaut. Power of^^ 3^, Tlio Judge of the County Court of tlie County in as to iiiaped- "wiiich the Miuiicipality is situate, in which any inspector or *°'^\hofr'^' '^ inspectors of licenses is or are appointed, upon com})laint made by any person that any such inspector is guilty of wil- fully neglecting to do or observe, or of wilfully doing any act, matter or thing contrary to his duty as such inspector, shall sunnnon such inspector to appear, and shall proceed to hear and determine the matter of the said complaint, and upon such hearmg, or in defavdt of appearance of the said inspector, l)eing duly summoned, may determine that such inspector is guilty of the matter complained of, and ought to be removed from his said office of inspector, and s>liall order the same accordingly, and tliereupon such person shall no longer bo inspector, and the Council or Police Com- missioners, as the case may be, in the said Municipality, shall immediately appoint another inspector in his })lace ; and the person so removed shall thereafter, for the full period of two years, be disqualified from being or becoming an inspector of licenses : and the said order and adjudication of the said Judge shall be final and conclusive, and shall not be the subject of appeal or revision hj any Cou';t Avhat- soever, or the said Judge may, in his discretion, dismiss the matter of the said complaint, with or without costs to be paid by the complainant. 3J). Any pei-son who, having violated any of the provi- sions of this Act, shall compi'oraise, compound or settle, or shall offer or attempt to compromise, compoinid or settle the offence with any person or persons, with the view of preventiiig any complaint being made in respect thereof, or if a complaint shall have been made with the view of getting rid of such complaint, or of stopping or having the same dismissed for want of prosecution, or otherwise, shall be guilty of an offence under this Act, and, on convic- tion thereof, shall be imprisoned at hard labour in the common gaol of the County in which the offence was com- mitted for the period of three calendar months. 40. Every person who shall be concerned xn, or be a party to, the compromise, composition or settlement men- tioned in the next preceding section shall be guilty of an offence under this Act, and, on conviction thereof, shall be imprisoned in the common gaol of the County in whicu the offence was committed, for the period of three calendar months. Penalty in case any person slmll compromise, compouml or settle a case. Penalty for being con- cerned in any such rompromise, 4c. SS. 41-44.] TAVKRN AND SHOP LICEN'SES. 785 Penalties or imiiiih- muiits not tcj bo rcuiittril Penalty for t:iiniH'i'ing with a witnoHS, Applicationi oC i)(.'naltit'H. 41. No Police i\[iigistrate or Justicn or Jiisticos of tLo Peace, Municipal Council or Munlcijml officer shall have any })ower or authority to»reniit or compromise any penalty or j)uuishment inflicted under this Act. 4^. Any ])erson who, on any prosecution under this Act, tampers with a witness, either before or after he or she is summoned or ai)pears as such Avitness on any trial or pro- ceeding under this Act, or by the offer of money, or by threats, or in any other way, either directly or indirectly, induces or attempts to induce any such ])erson to absent himself or herself, or to swear falsely, shall be liable to a penalty of fifty dollars for each offence. 4!$. The penalties in money under this Act, or any portion of them which may be recovered, shall be paid to the convicting Justice or .lustices in the casc^, and shall by him or them, in case any officer appointed by the Lieuttniant Governor is the prosecutor or com])laiuant, bo })aid to the Treasurer of Ontario, and in case such Provincial officer is not the prosecutor or complainant, then the same shall be paid to the Treasurer of the Municipality wherein the offence was committed; and for the recovery of the said penalties and legal costs, upon and after conviction in cases not appealable, and in cases apjjealable wlune an appeal has not been perfected according to law, it shall and may l)e lawful for any Justice or Justices to issue a warrant of distress to any constable or peace officer, against the goods and chattels of the person or persons convicted, and in case no sufficient distress be found to satisfy the said conviction, then, in cases not otherwise provided for by this Act, it shall and may be lawful for the said Justice or Justices to order that the person or persons so convicted bo imprisoned in any common gaol within the County, or gaol or lock-up house, in which such conviction ^was made, for any i)eriod not ex- ceeding tliirty days, unless the j)enalty and all costs be sooner paid. The Council of any Municipality shall set apart not less than one-third part of such fines or penalties received by the said Municipality for a fund to secure the prosecutions for infractions of this ^'^ct, and of any By-laws passed in pursuance thereof. - Proceedings and Evidence. Certain pro- 44. All prosecutions for the punishment of the several to'bb';'"fore ofiences against the i)rovisions of this Act, contained in two or moru sections numbered respectively twenty-eight, tAVonty-nine, pouiem^is 60 "''*'*^' Pennltics ami costs, 1k>w recover- able. Jlmiiripali- tirs to set apart a lliird. 786 THE MUNICIPAL MANUAL. [s. 44, Sub. 2. Conviction fur salo with- out licpuso may be ap- l>(;al(!il to county judge, and proscc^u- tidiis to be within twpnt; days. Appeal from convictions for salo with- out license. tliirfcy, tliirty-fivo and tliivty-.si.K, Avliotber the proseention bo Ml' tlxi recovery of u penalty or for i)unishmeut by imprisonment, sbull tnko place Tjcforo any two or more of Her Majesty's Justices of the Peace liaving jurisdiction in the Municij):dity in which the oflenco is committed, or in Cities and Towns Avhero there is a Police Magistrate, before tlie Police Magistrate, who, it is hereby declared, shall have authority to hear and determine the same in a summary manner according to the; jjractice and procedure, and after forms contained in and appended to the Act chaptered one liundred and three of the Consolidated Statutes of Canada, intituled. An Act respecting the duties of the Jxistices of the Peace out of Sessions in relation to summary convictions and orders, and the Act or Acts amending the same ; and on such ti'ia'is and jn'oceedings the prosecutor or complainant shall be a competent witness ; and in all cases of prose- cution for any oli'ence against the provisions of the thirty- fifth section of this Act, tho conviction or order of the said two or more Justices, or of the said Police Magistrate, as the case may be, shall be final and conclusive, and against such conviction or order there shall bo no appeal to the Court of General Sessions of the Peace, or to any othei- Court, except as hereinafter mentioned, any statute, usage, custom or law to the contrary notwithstanding; and all prosecutions in this section mentioned shall be conmienced within twenty days after the commission of the olibnce or after the cause of action arose, and not afterwards ; 2. An appeal shall lie from a conviction had under the thirty-fifth section of this Act to the Judge of the County Court of the County in which the conviction is made sitting in Chambers, without a jury, within twenty days aft^r the said conviction; (a) The Justices of the Peace or the Police Magistrate, as the case may be, shall, in all cases of complaint under the said section of this Act, reduce to writing the whole of the evidence of the witnesses examined before them or him, and shall read the same over to the 'witnesses, who shall sign the same ; (b) At the request of the person convicted, the Justices of the Peace or Police Magistrate who have or lias con- victed, upon deposit made with them or him, of the amount of the penalty and the costs, and a further sum of ten dollars, shall, within five days after the date of the said conviction, transmit by registered letter, post-paid, all the proceedings and evidence to the Clerk of the County Court ; SS. 45, 4G.] TAVERN AND SHOP LICENSES. 787 (r) Within ten duys after the (Into of the snitl ennviction, if th(^ Jiul^o of tlio County Court l>o of opinion fi'oin tho said evidence that the conviction infly bo erroneniiH, lie may grant a summons callinj^ upon tlie County Attorney and tho proHoeutor to show cause why the said conviction may not be quashed ; (d) Upon tho return of tho summons, tlio Judge may, upon hearing the parties, eitlier alJirm or quasli tlio said conviction, or if he sliall see fit may liear tlie evi(h'nce of such other witness or witnesses, or tht^ furtlu-r evidence of any witness ah-eady examined, and may then make an order alhrnung or (juashing tho said conviction as he may think just, and may order the payment of costs, and sliall lix the amount thereof; (e) Upon production of the Judge's order, tho Justices of the Peace or Police Magistrate wiio have conAicted shall issue their or his warrant for payment of such furtiier sum for costs, as tho sum deposited Avith them or liiiA is insutli- cient to pay; if the conviction be quashed, the Judge shall order a return of the money so deposited; and sliall order payment of such sum for costs as lie rnay tax and order, and unless the sum bo paid by the complainant the Justices or Police Magistrate may issue their or his warrant to levy the costs; (/) The Judge shall have as full a power to correct and amend any formal objection in the conviction as he would have to amend any proceeding in a civil cause in the County Court. 45. All prosecutions under tliis Act, other than those mentioned in tho next preceding section, whether for the recovery of a penalty or otherwise, may be brought and heard before any one or more of Her Majesty's Justices of the Peace in and for the County Avhcre the forfeiture took place, or the penalty was incurred, or the offence was com- mitted or wrong done, and in Cities and Towns in which there is a Police Magistrate, before the Police Magistrate ; and the procedure shall be that of Justices out of Sessions in relation to summary convictions and orders; and all prosecutions provided for under this section shall be com- menced within two months after the commission of the offence or the cause of action arose, and not afterwards. 40. In all cases of prosecutions for any offence against any of the provisions of this Act, other than those contained Another prnseeutions may bu bt'fdro one or more jua- ticos or a ]H)lic'e magistrate. Mode of procedure. rrosocti- tions to be commenced within two months. Appeal from convictions other than sale without license. ^>. ■n3a n^^ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 If IM illM '-• iii 12.2 1.4 1.6 -cm J>i > V Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, NY. 14580 ('/I6) 872-4503 ^ V iV \\ 9) ^ 6^ % V "^J^ '17 i % '■f 788 THE MUNICIPAL MANUAL. [s8. 47-50. in the said thirty-fifth sectiou, an appeal shall lie from any order or conviction, in the same manner and to the same extent as is provided in and by the said Act, chaptered one hundred and three of the Consolidated Statutes of Canada respecting summary convictions. Any pcrsor may ik: pro- 4Y- Any person may be prosecutor or complainant in sec'utor, "&c. prosccutioDS Under this Act; and no peraon shall bo ren- Witness dered incompetent as a witness by reason of his being inter- ested in any portion of the penalty sought to be recovered. By-laws by 48. In all cases where the Board of Police Commissionera inlssionei"' ^'^ Cities ai'e authorized to make By-laws either under this in cities niny or n*" 7 other Act or law, tliey shall have power in and by tiosaUmtiitMl s" 'y-laws to attach penalties for the infraction thereof, iiicreto, 4( . p, ^ j ^covered and enforced by summary proceedings before ti •> l^oiice Magistrate of such City for which the same may be pctised, 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 might bo enforced under tlie authority of the Municipal Institutions Act; and the con- victions in such proceedings may be in the form set forth in the said Act. How sHcli by-laws autlieii- ticattid, &c. Placen in whidi tlic sale of liquora is I)rt:suiued. Presump- tion an fo oocnpaai 49- AH By-laws of such Board of Police Commissioners shall be sufficiently authenticated by being sigiu-J by the Chairman of such Board, who shall pass the same; and a 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 justice without j)roof of any such signature, unless it is specially pleaded or alleged that the signature to any such original By-law has been forged. 50. Any house, shop, room or other place in which are proved to exist a bar, counter, beer-pump, kegs, jai*s, decan- ters, tumblei-s, glasses or any other appliances or prepara- tions similar to those usually found in taverns or shops where spii-ituous or fermented liquors are accustomed to be sold or trafficked in, shall be deemed to be a place in which spirituous, fermented or other manufactured liquors are sold under the twenty-fifth section of this Act, unless the con- trary is pi'oved by the defendant in any pi-osecution; and the occupant of such house, shop, i-oom or other place shall be taken conclusively to be the person who has, or keeps therein, such liquors for sale, barter or traffic therein. [88. 47-50. lie from any to tho same ct, chaptered . Statutes of mplainant in shall bo ren- 8 being inter- be recovered. lommissioners er under this sr in and by ,ction thereof, eediiigs before ;he same may B of the Peace I to the extent ced under the and the con- •m set forth in commissioners ^igiu'd by the 3 same; and a uid certified to oard, shall be 3 in any Court re, unless it is e to any such in which are Ts, jars, decan- jes or prepara- ^erns or shops ustomed to be place in which iquors are sold unless the con- osecutiou; and )r other place n who has, or traffic therein. 88. 51-54.] TAVERN AND SHOP LlC£a»8E8. 780 51. In Cities, Towns and Incoii3orated Villages, in all r^"^"'?"" cases where any person or persons, other than membei*s of rwlns at the family or household of tlie keeper of a licensed tavern or f i'J',',|!8^''when spaoon, is or are found frequenting or present, or gas or so i)rovcd. other light is seen burning in the bar-room .of such tavern f,l,.icu\'"'^ or sjiloon where liqiior is trafficked in, at any time during ',',V'".V''i which the sale or other disposal of liquors is j)rohibitotl by of liquor. any provision of this Act, any such fact, when proved, shall be deemed and taken as ]>rima fade evidence that a sale or other disjjosal of licjuors by the keeper of such tavern or other place has taken place contraxy to the provisions of the twenty-eighth section of this Act ; and such keeper may thereupon be convictied of an offence against said section, and shall, upon conviction, be subject to the punishment prescribed in and by the thirty-fourth section of this Act. 53. The occupant of any house, shop, room or other place Liability of in which any sale, barter or tmffic of spirituous, fermented "^cupontu. or manufactured liquoi*8, or any matter, act or thing, in contravention of any of the provisions of this Act, has tiiken place, shall be pei'sonally liable to the penalty and punish- ments prescribed in the thirty-fouilih and thirty-fifth sections of this Act, as the case may be, notwithstanding such sale, barter or traffic be made by some other person, wlio cannot be proved to have so acted under or by tho dii'ections of such occupant. • 53- In any prosecution under this Act, whenever it Proof of be- appears that the defendant has done any act or been guilty ["'^,.''H't'on*'^ of any omission in respect of which, were he not duly licensed, tiio ector of licenses, shall be deemed to be within the provisions of this Act; and when any information is given to such officer that there is cause to suspect that some person is violating any of the provisions of this Act, it shall be the duty of such officer to make diligent inquiry into the truth of such information, and enter complaint of such viola- tion before the proi)er Court, without communicating the 1 ame of the [lerson giving such information; and it shall be the duty of the County Attorney within the County in which the oflfence is committed, to attend to the prosecution of all cases committed to him by the provincial officer, 50- Any provincial officer, police officer or constable, or consiabies inspector of licenses, may, at any time, enter into any tavern, to'enter*'* ""^' ale-house, beer-house, or other liouse or place of public taverns, &c. entertaiimient, or into any shop, warehouse or other place wherein refreshments or liquors are sold or re[)uted to be sold, whether under license or not; and any peraon being therein, or having charge thereof, who refuses, or after due summons fails to admit such provincial or police officer, or constable, or insi)ector, into the same, or offijrs any obstinxc- tion to his admission thereto, shall be liable to a penalty of not less than ten dollars, nor more than fifty dollars for every such offence. 5T. It shall be the duty of every police officer, or con- stable, or inspector of licenses in each Municipality, to see that the several pi-ovisions of this Act are duly observed, and to proceetl by information, and othei'wise prosecute for the punishment of any offence against the provisions of this Act; and in case of wilful neglect or default in so doing in any case, such police officer, constable or inspector shall incur aegiecl ^^^ ^ jjenalty of ten dollars for each and every such neglect and default. OfRccrii witliiu this Act. Duties of oHiccrB and r-ciunty at- torneys on reeciving in- foniiatiou l infringe- lueut of this Act. Rinlit of Duty of con stables and otliers tt> prosecute otfcnders. S8. 58-61.] TAVERN AND 8H JP LICENSES. 791 58- Any person licensed to sell wine, beer or spirituous PrnviHioim liquors, or any keeper of any house, shop, room or other iximiiigooii- place for the sale of liquors, who sliall knowhigly harbour '/ut^'"**"' or entertain any constable belonging to any police force, or huft'er such peraon to abide or remain in his shop, room or other plivce during any jmrt of the time appointed for his l)eing on duty, unless for the purjiose of quelling any dis- turbance, or i-estoring order, or othei-wise in the execution of his duty, shall, for any of the oiFeuces aforesaid, bo de- prived of his license. Territorial Dlatricts. 59- The several provisions of this Act shall apply to the ThiH Act to territorial and unorganized districts of this Province ; auil t''nit,iriai * in any prosecution or proceeduig thereunder the tSti])eudiary '™',', "!'",, Magistrate; in any such district shall possess and exercise all districu. the powers and jurisdictions of the IMayor, Police Magisti'ate, or other convicting Justice or Justices of the Peace luider this Act ; and any monej' penalty imposed and roco\'ered shall be paid to the Treasurer of Ontario; and the lock-up of such district shall be deemed to be a gaol for the purpose of imprisonment under this Act ; and the provisions of this Act, applicable to Townshii)3, shall apply to all Munici- palities organizox. under the Acts providing for the establish- ment of Municipal institutions in various territorial districts. 00- The licenses to be issued for the sale of spirituous, issue ..r fermented or other manufactured lifiuoi-s, in any place not jj,^ within a Municipality, may be issued on such conditions withma and under such regulations as the Lieutenaut-CJovernor in paiS'ty.'" ( Jouncil may from time to time direct, subject to the pi'o- visions of this Act ; and any bond which the Li(;utenant- Govemor in Council may direct to be taken from any person obtaining a license under this Act, for any such place condi- tional for the observance of the law, ami of all regulations to be made under this section, shall be valid, and may be enforced according to its tenor. Repealmy Clause. 01. The several Acts in the recital hereof mentioutJ are 32 V..'* -i hereby repealed, but the repeal thereof shall not revive any '"' ?'\''y^i Act or j)rovisiou of law by them repealed, or prevent the ai, repnai. d eft'ect of any saving chiuse therein, or the application of any such Acts or of any provision therein formerly in force to any transaction, jnatter or thing anterior to the said re^jeal, and to which they would otherwise apply ; and any By-law lit'uiiMeb for liicc'S not wr 792 THE MUiriCIPAL MANUAL. By-law* enacted under any of the provisions of the said recited Acts uniiM their or any of them, and in force in any MunicipiiUty at the tore'nain'in ^^^^ °^ ^^^ passing of this Act, shall i-emain and continue force until in full force and eft'ect until another By-law having relation iIhsS.*"* *o *^® same subject matter shall be enacted by the proper authority in that behalf, under the provisions of this Act. INDEX ADMINISTRATION OP JUSTICE. Coroners. Appointment of, for City or Town, 241. By whom understood to be made, 241. (a) Executions nrjainst Municipal Corporations. Proceedings thereon, 252, 2.')3. How endorsed, 2.')3. (h) Creditor has no right to resort for payment to private property of inhabitants, 252. (a) Sheriff to deliver copy of writ and statement of claim to Treasurer, 253. Direction of proceedings in case of writ to bo endorsed to levy by rate, 253. (»/) When rate to be struck by Sheriff, 254. Bate to be sulliuient ; no provision fur striking a second rate, 254. (e) Sheriff's precept to Collector, &c., to levy rate, 254. Manner in which this is done, 254. (/) Rate rolls, 254. Duties of Collectors under Sheriff's precept, 255. (g) Surplus over execution, &c., to be paid over to Treasurer, 255. ClerK, Assessors and Collectors to be ol!icor8 of the Court from which writ issues, 255. Importance of this clause, 255. (i) See Coroners — Ju-stioe of Peace — Pexaltie.s. AGRICULTURAL SOCIETIES— By-law to aid, 291. Property of, when exempt from taxation, 525. ALMS-HOUSES— Exempt from taxation, 526. Establishment of, By-law for, 378. ANIMALS. Running at large. By-law to regulate, 333. By-law to appraise (lamage done by, 334. (•) See Cruelty to Animals. APPEAL. New evidence on, admissibility of, discussed, 683. Right of, discussed, 570. (r) See Drainage. APPEAL FROM COURT OF REVISION. Appeal from Court of Revision for omission to hear complaint, 693. Service of notice of appeal, 693. Day for hearing, 693. Clerk to notify parties, 693. W^WTrn^ 794 INDEX. APPEAL FROM COURT OF mWlSlOii— (continued). liiHt uf appcllaiita, kc. , to be puated up by Clerk, C03. Clerks f.f ( -oiirt, (593 Hearing and adjournment, 693. Powers of JuclguH Mittin .; iu a2>peal from Court of Ileviuon, 693. Style of proueudingtt, G'J4. Form of, «5!>4. Costs, how collected, 694. ^Vliat costs chargealtlo. 6!)4. •Schedule B to Assussuient Act, amended, aa to giving notice of appMJ, t>94. See Court of Revision. APPEAL FROiM CONVICTION FOR SELLING LIQUOR. When and how to Ix) had, 780. See Licenses — Tavkhns. APPORTIONING COUNTY RATES, 597. APPRENTICES— By-law to prevent sale of liquor to, 327. ARBITRATIONS. Mode uf appointment of Arbilratoi's, 220-223. (c) Practical difliculty as to, an. (;;i) Wliere several partien are inte' 'stcil in the same property, 226. County Judge to ;ip]>oint an arbitrator in certain cases, 227. Provi8i()n when arbitrator refuses to act, &c., 227. Nomination .should l)e iu writing, 2l27. ((') Time for making award, 22S. Cessation of autliority of arbitrator, 228. (b) Persons distjualilied from acting as arl)itrator8, 228. Corrupt conduct on the part of an arbitrator will vitiate award, 228. (e) Procedure. Oath of arbitrator, and when to be taken, 228, 228 (d) Form of oath, 229. Time of meeting, 229. Power and duty of arbitrator, 229 (/), 229 (g) Award should be in writing, 229. (h) ^ Award in case of drains to be in duplicate, and filed, 229. Proof of award, 229. (I) In case of difference between arbitrators, majority to decide, 230. Costs of arbitration, 230. Power of arbitrator to award coats, 230. {h) INDEX, 795 ritiate award, ARBITRATIONS— ('con22. (r) Miiiister'B salary, 52tf. Municipal property, .W*, 624 (i) Pensiung under $200, 626. Personal property of (Jovcmor, 526. Ilcason of tlieao exemptions, 626. (»») Personal property secured by mortgage, or Provincial or Municipal debentures, 627. (") Personal property e(|ual to debts due, 628. Personalty under 81(H), 629. Places of worship, &c., 623, 623. (e) Poor-houses, &c., 526. Property belonging to Her Majesty, 621. But occupant personally liable if occupied not ofBcially, 622. Property owned out of the Province, 628. Property of officers on full pay, 520. Exemptions, list of them, 620. (p) Provincial penitentiary, 625. Public educational institutes, S23. ( / ) Public roads, &c. , 624. Railroad stock, 628. Beutal of real estate, 629. School houses, city hall, &c., 623. List of public x)laces exempted, 623. (y) Scientific institutions, &c. , 625. Rates, how to be calculated, 530, 630. (a) Priority of existing debentures, 531, {b) Rates for, 531. Application of such rates, 631. (d) RateB.for sinking funds, 6.32. Rate of ^ cent per dollar for debt to Consolidated Municipal Loan Fund, 632. (/) Estimates of expenses to be made yearly, 533. {h) By-laws for raising money by rate, 536. (i) Procedure when amount collected falls short, 336. Estimates to be reduced proportionately, 5.36. When sums collected exceed estimate, appropriation of balance, 636. Yparly taxes to be computed from 1st January, 637. (o) Division of Municipality into assessment districts, 638. Effect of assessment against owner and occupant, 544. (n) No ratepayers shall be counted more than once in returns, 646. {oo) When land occupied by more owners than one, 546. When tenants may deduct taxes from rent, 546. If lease contam no provision for taxes, 646. («) How properly estimated, 547. (v) Proviso m estimating mineral lands, 547. What deemed vacant land, and how valued in Cities, 548. (6) When land not held for sale, but for gardens, 649. Railway Companies io furnLli certain statements to Clerks of Munici- pality, 549. Statement to be sent by Railway Company to Clerk, 649. (/) Clerk to communicate it to Assessor, 649. INDEX. 797 ,1 or Municipal pal Loan Fund, ASSESSMENT— (^fo«<.«««rf/ Nun-reaident Lands. Unocuupieil lauila t<> ho calloil loiuU of non-rosiJcnts, 517. Excoittiima to tluH, 617. ({/) llio real uutato of Railway Companies, 518. Exuuptiona, 518. (k) ProccodiiigH in case of nun-residunt lands, 550. To bu iusui'tod in a roll separatuly, 550. No action will lio for recovery of taxes against a uon-rcsidunt, 550. (») Vv'hcji not ki.own to be sub-divided into lots, 550. Object and scope of this section, 550. (j) When known to bo sub-divided into lots, 551. Duty of Assessors, 551. (k) Occupant for non-resident owiior may bo asacssod as owner in cer- tain canes, (){MK When land may bo assessed as non-resident, GOO. Manner of antie.'itiinij Pernondl Prnpcrtij. iSalaries to be assessed where earned, 691. How income from trade or profession to be assessed, 551, 652. («) Personal property of corporate companies not to be assessed, 552. (;>) Personal property of partnertihips, how and where to be assessed, 55;i Partnerships having more than one place of business, 554. (.■♦) Where persons carrying on trade, &c., to be assessed for personal property, 555. ^Vhen tlie party lias two or more places of business, 550. Wlien the party has no place of business, 550. Case of executors, &c., 550. Separate assessment of joint o\vner8 or possessors. 557, 557 (c) "Owner," signilication of, 542. (i) Parties assessed as trustees, Ac, to have their representative character attached to their names, 557. Information to be le, OIH). Dividends only of Bank stock to bo assessed, 690. When jRirsonnlty of non-residents may bo assessed ag.iinst the agent thereof, 691. Section 149 amended as to words "Treasurer" and "Warden," 091. A$»e«»menl Paper. Form of, 083. ASSESSMENT ROLL. Extension of time for retnm of, 148. When to be completed, 500. Certificate on, 6b0, 561. Whom delivered to, r)62. As finally passed, binding, 676. I^onalty for non-uonipletion in time, 671. Form of roll, contents, &o., 539, 540, 641. ASSESSOR. To be apix)inted for Cities, Towns, Townships or Villages, 145, 538. May be fur certain specitietl districts. 146. Quo tvan-anto, to try valiility of appointment, 140. (e) Not to be members of Council, 146. Some person may be Collector fur more than one ward, 146. lu Cities, Assessment Commissioner may be appointed, 146. Duties of, 146. Assessment Commissioner need not be annually appointed, 147- (i) City Council may determine the number of Collectors, 146. City C'uuncil may fix a day fur payment of taxes, 147. And may fix an additional percentage after that day, 147, 147 {k) Collectors where there is a Provisioual Council, 148. Payment over by them, 148. How such moneys disposed of, 148. Demand for money should be made before it can be recovered, 149. (r) . DiUies of. Assessment roll to be prepared, 539. {h) To note non-residents, if required, on the roll, 647. In case of omission to ao so, 547. (u) Penalty for non-i)erformance of duty, 666. (c) Municipality may be divided into assessment districts, 538. Land to be assessed in the Municipality or Ward, 542. Shops, factories or offices to be assessed at places of business, 542. (/t) When land to be assessed in owner's name, 642. "Owner," signification of, 542. («) When land not oocujpied by the owner, but owner is known, 643. {k) When owner non-resident and unknown, 644. Doubt as to meaning of this section, 644. {I). List of complaints to b« left with, 674. IKDBX. m be recovered, ASSESSOR— fco«««M(!^?;. Other AaseiBors may act for those in <1efault, 068. I'uniahment of (Uerks, AaaetMorfl, &c., making fraudulent aaneaH- lueiita, &c., (>69. Acts of uiiBcoudiict anccified, 669. (h) riiiiiflhmeuta under thia aectinn, ik)9. {k) \^liat aaall lie evidunco of fraudulout asaeaaiueut, 67U. True actual ralue of land, 670. {I) Punialunont of culpable Aaae^aura, 671. Penalty for not making and completing aaacaauient rolla by the proper time, 671, 671 {q) Punithment of. Not to imi>air any other liability, 671. Penalty for frau) .V'<; By-laws, B11ID(JES. By-law to aid, 292, 292 (o) By-law allowing Company to make bridge, 434. By-law to regulate driving on, 294. Delinition of, 415. (in) Maintenance of, hy Counties, 414, 415. Repair of, 4l)0. (u) In Towns, to belong to To"'ns after separation from County, 20. By-laws to aid in construction of, 440. By-law to allow taking stock in, 510. Mainteuanee of, in Villages, 511. Maintenance of, between Municipalities, 511. (SVc By-LAW.S — HiOUWAVS— ISTKUrilETAXION. BRITISH NORTH AMERICA ACT. Right of Ontario Legislature to delegate certain powers under, 10. (c) BRUSH— By-law as to burning, 319. Si'i' By-law.'^. BUCKET.— fe FiKE Bucket. BUILDINGS. By-law to regulate erection uf wooden, 376. {g) Pulling down, 377. {y) See By-laws. BUILDING SOCIETY STOCK— Exempt from taxation, 528. BUTCHERS— By-law to regulate purchase by, of family nocoBsarios, 348. See By-laws. INDEX. 801 BURYING GROUND— Exempt from taxation, 623. BY-LAWS, MUNICIPAL. That may he patiHed by. Cities, 274, 'ilG, 288, .^09, 311, .337, 342, 471, 480, 520. Counties, 274, 288, 300, 324, 337, 480, 508. Incorporated Viilagcs, 274, 288, 309, 311, 342, 382, 387, 471, 480. Police Commissioners, 2(>4, 20.'). Towns, 20, 274, 270, 288, .309, 311, 342, 382, 387, 471, 480. Townships, 274, 288, 311, 382, 392, 448, 480. Whether a By-law is to be looked npon as simply a local law, or aa a contract, 210. (n) Distinguished from a resolution, 17. {p) Power of Council to be exercised by, 1(53. Suggestions as to legality of, 235. (A) Altering and repealing, 165. (J) Enforcing compliance with, 508. («) How authenlkated. Indispensable formalities, 170, 170 (a) How proved. Certified copies to be given, 171, 171 (h) And to bo received in evidence, except in case of forgery, 171. W/wn reqitiriny assent of Governor, 171. iwA .1 Facts and evidence necessary before assent, 172. (c) Opposition to, by ratepayers, 172. Extent of right to object, 172. (d) What objections may be raised, 172, 173. When Council shall not pass, 173. Proceedings inhere consent of Electors required. Time and place of voting to be fixed by By-law, 173, 174. Effect of nou-couipliance with Act, 174. (y) Proposed By-law to be published, and how, 174. Together with a notice, 174. (i) ;.. What notice shall state, and form, 176. (?) Copies to be posted up in four places, 175. Poll to be opened, and how conducted, 176, 507. Poll-book to be verilied, and returned to Clerk, 176. ' Defect in Act not making provision for loss or injury of poll- book, 176. (w) Clerk to sum up and declare result, 176. Meaning of " the majority, " 177. (o) Freeholders who may vote on, 177. Proviso in case of new Municipality where there is no asseM- ment roll, 178. Leaseholders who may vote on, 178. Proviso in case of new Municipality, 179 Oath of freeholder voting on, 179. Form of, 179. Who to administer, 179. {w) Of leaseholder voting on, 180. Form of, 18C. .61 \ t* '>) «■•' ) 802 INDEX. BY-LAWS, MUmCIVAlr-fcontinued). Carried by voters, to be passed hj Council, 181. This is obligatory, 181. (6) Confirmation. ' '. ^ By promulgaticm, 21, 181, 508. Effect aiid advantage of, 181. (d) Notice to be given, 182. Form of such notice, 182. {h) Lapse of time in moving against, as to validity, 182. (t) > To raise over $20,00(), when to be valid, 200, 201, 508. Form of notice to be given, 508. Qwuhing. ' Mode of procedure, 183, 185 ({7) .- Evidence and papers to be produced, 171 (6), 184. Applicant should state that he is resident, 183. (a) Must be interested, and how far, 183. To be made to Queen's Bench or Common Pleas, 184. '-'^ Not in Practice Court, 184. (c) Copy of the By-law must be produced by applicant, 184. (rf) Not necessary to be sealed with wax, 184. (e) Affidavits, how entitled, 185. (/) Power of Courts summarily to quash illegal, 184. (b) Corporation to have four days' notice of rule to quash, 186. (•) Service of such notice, 186. (j) Powers and practice of Courts as to quashing considered, 186 {k\, 187 (k) Time within which application must be made, 188. Exception in case of By-law requiring assent of electors, 188, 189. Limitation of power conferred on superior Courts, 188. {m) Costs of proceedings to quash, 188, 188 {I) Time after which By-law cannot be quashed, if promulgated, 1 89. Inconvenience of quashing a By-law imposing a rate, 189. (7) Time within which to move against a By-law imposing a rate, 189. liy-laws obtained by bribery, procedure, &c., 189. Judge may hold an inquiry, &c., 190. {t) Hearing and determination what is, 190. (w) By-law of Municipality can be quashed in vacation, 190. (v) Costs of quashing By-law obtained by bribery, 190. Stay of proceedings on By-law moved against, 191. (a) Creating debts. Councils authorized to make By-laws for, 194. Restrictions and provisions necessary to render By-law valid, 194, {k) Power to raise money by Municipal taxation liable to abuse, 194. (I) Terms of, when to take effect. 194. Time of, for taking effect to be named, 196. (w) ' When debt to be redeemed, 195. If for gas or water works, Ac, 195. Principle on which power to contract a debt payable at a future period, is foimded, 195. (0) To provide a yearly rate, 195. Object and scope of this provision, 195, {p) Amount of special rate, 196. INDEX. 803 BY-LAWS, MUNICIPAL— f'con^iuugrf;. By-law need not necessarily set forth the estimate on which it it founded, 196. (q) Amount to be irrespective of future increase of property. Ac, 196. By-law need not state rate to be calculated at so much jx the dollar, actual value, 196. (r) . r. Illegal if not passed at a meeting specially called, and held not less than three months after notice, 201. Requisites to the validity of By-law, 201. (m) If material alteration is made between publication and passing a By-law, it is invalid, 201. (o) Form of notice for publication, 202. When part only of money raised, By-law may be repealed as to resi- due, 202. Proviso, 202. Recitals in, 197. («) Omission of recital, effect of, 197. {as) By-law should describe the debts and their amounts, 197. (t) Repayment of such By-law may be by equal annual instalments of principal, 199. Object and scope of this provision, 199. (d) " ' What By-law shall set out, 199. By-law for a work payable by local assetsment. • .-: Recitals, 198. Exceptions to rule for raising money required for Municipal pur- poses, 197. (a) For appropriation of money for other than ordinary purposes, requires express sanction of ratepayers, 200. (A) Erroneous impression with regard to \Iunicipal Council contracting a loan in order to advance a public work, 202. «,'jii;f>i .^ ' • Requisites before By-law under this section can take effect, 202. (r) Certain, cannot be repealed nor altered until debt paid, 203. Exceptions, 203. Why provisions of this section are necessary, 203. («) "v Sinking fund requires to be left untouched, 203. (<) No oflScer to neglect, &c. , to carry out By-law for payment, under colour of illegal By-law, 203. Object and scope of this section, 203. («) Municipal Councils may purcb^ise public works, &c., and contract with Crown, 204, 20o (a) Although no special or other annual rate settled, 205. By-law may be passed for proportionable reduction of the rate, • 213. (t) Rates may be imposed for the payment of debts so contracted, 205. Authorizing Municipalities takmg stock in, lending to, &c., 324. Provided electors' consent is given, 324. Head of Corporation to be a director in certain cases, 324. For loral improvement. With private funds, 474. Powers conferred on Councils, 471. (q) Appeal from assessment, 471. For local rates for special improvements, 479. Proceedings to obtain a By-law for such improvementa, 479. 804 INDEX. BY-LAWS, UVmCITAL-fcontinued). For anticipatory appropriations. To be made by By-law, 212. , What funds may be 80 appropriated, 212. Restrictions and regulations, 212, 213. Right to appropriate moneys to purpose not raised for, 213. (g) The sources and application to be stated in By-law, 213. Proviso when moneys retained sufficient, 213. By-law must recite in such case — The original debt and object, 213. The amount paid, 214. The annual amount for sinking fund, 214. '^ Amount for sinking fund in hand, 214. ' Amount required for interest, 214. And that it is reserved, 214. By-law to be approved by Oovemor, 214 ' On separation of Municipalities, 214, 214 (n) ' That may he passed for i^arious purposes. For regidating time and manner of levying assessments, 473, 473 («) For aiding Agricultural and other Societies, 291. Societies to which money may be granted, 291. {k) For appointing engineers, inspectors, gaol surgeons, &c., 337 (o), 379 h -; ■, For establishing Board of Audit, 387, 388 (a) Payment of members of Board, 388. For protecting booms, 387. ' . For aid for roads, bridges and harbours, 610, For regulating cellars, sinks, &c., 371. For ascertainmg levels of cellars, &c., 368. {d) For compelling the furnishing of ground or block plans of building* to be erected, 3G9, 370 (e), 371 (/) .rU;* For taking census, 293. Decennial census, 293, {q) For aiding indigent persons and charities, 293, 293 ( p) For establishing Alms-houses and refuge for the destitute, 378. Meaning of "Destitute," 379. (w) For establishing Workliouses in Cities and Towns, 276. For establishinc Houses of Correction, 270. For Houses of itefuge, — See House of Rbfuoe. For House of Industry, — See House of Industry. For electing and maintaining Court House, &c., 272. For preventing cruelty to animals, 332. (/ ) And to prevent destruction of birds, 314. For dividing City or Town into Wards, 311. Townships and Villages into electoral divisions, 311. Separating town, &c., confirmation of, 21. To separate united Townships, 22. Of County to have no effect in Town after separation, 19. {k) Exception, 19. {k) To withdraw Town from County, 18. Convictions under, 251. — See Convictions. For disqualifying electors in arrear for taxes, 312. For regulating and restraining dogs, 315. (m) For kiBing dogs, 317- INDEX. 805 snts, 473, 473 (u) Uni of building* BY-LAWS, MVmCIVAh-(continued). For Drainage purposes, 735. For assessing, &c., real property benefited by improving sewere, streets, &c., 471, 472 (n), 472 (s) Annual rate to be fixed, 47.3. * Petition precedent to undertaking such works, 474. May be dispensed with, 47r), 470 {d) Proviso as to sewers of over four feet sectional area, 476. Notice to oMTiers, where Council baa power to make local im- provements, 476. {e) To establish boundaries and for preserving landmarks, 324. Sections 464, 465 and 466 Municipal Institutions Act not to apply to works of ordinary repair, 477. When work extended beyond limits of Municipality, 463. When adjoining Municipality benefited, 463. Proceedings thereon, 464, 470. How drain benefiting two Municipalities kept up, 467. - . . I, -i. YoT the filling in hollow places, drains, &c., 372. For making general regulations as to sewerage, 372. ,, Meaning of, in general sense, 372. (j) For charging rent for sewers, 373. For opening or stopping up drains or water-courses, 294. («) Compensation for land taken, 294. (<) For deepening streams and drainage, petition for, 454. Examination by Engineer of plan, 454. Plana and estimates to be procured, 455. Duty of Council if drain undertaken, 455. (6) For borrowing requisite funds for, &c. , 456. (e) For levying rate for payment for, 456-458. (h) Proviso, 457. ig) For pro\'iding how assessments be paid, 458. For aacertainmg the property liable to the rate, 458. Assessments subject to appeal, 458. Court of Revision to have primary jurisdiction, 459. County Judge, appeal to, 459. (»«) Form of By-law, 459, 744. Amendment of By-law after revision by Judge, &c. , 462. By-law to be published, 462. Also notice as to when proceedings to quash to be taken, 462. Copy of By-law and notices to be posted up, 462. If no application to quash made in time. By-law to be valid, 462. For regulating Driving on Roadn and Bridges, 294. Notices to be put up and penalties imposed, 294. (r) For Exhibitiona, Shows, ) Power for regulating, 319. (vo) For preventing fires, Ac, 357. And establishing Fire Companies, 357. For procuring medals awarded to persons distinguishing themselves at fires ; aid to widows, 353. For preventing fire in stables, 358, 358 (t) For preventing or regulating fires in stables, carpenters' «hops, &c., 358. For providing for storing gunpowder, and its care, 356. Powers here conferred, 356. (/) , For regulating dangerous manufactories, 358. For regulating, &c., chimneys, stoves, &c., 359. For fixing the size and cleaning of chimneys, 359. For regulating removal of ashes, &c., 359. For regulating party walls, 359. For requiring scuttles, ladders, &c., to houses, 360. For guarding buildings against fire, 360. For procuring fire buckets, 360. Powers here conferred, 360. (q) For the inspection of premises, 360. For the preventing spreading of fire, 361. For the enforcing assistance at fires, 362. For establishing Oaa and Water Comj^anies, 379. Lighting with gas, 379. La}dng down gas or water pipes, 379. >v. Inspection of gas meters, 380. Commissioners for erection of gas or water works, 380. [t) Construction of gas and water works, 380. Estimate to be pubUshed, and notice of taking poll on Bv .,*. ;r?0 Requisites imder this section to validity of By-law, 3^ v>. Poll to be held, and majority must be in favour, 380 (a), 3S'i To be passed within three months, 381. Provisions where there is a Gas or Water Company incorporated for the Municipahty, 381. (/) Proviso as to provisions in special Acts, 382. Authorizing Gas and Water Companies to lay down pipes, &c.„ 323. (/) See Gas, For protecting Graves, 321. Preventing taking up dead bodies, 32L (z) INDEX. 807 BY-LAWS, MUNICIPAI^con«ntted;. For providing for IntermenU. Preventiou of, within Municipality, 356. For keeping Bills of Mortality, 366. Meaning of "Bills of Mortality," 356. (e) For Preservation of Public Health. i .. . Members of Council to be Health OflScers, 33S. May delegate powers by By-law, 335. , Powers of Health Officers, 336. (m) Sick person at an hotel is not a nuisance, 355, 3^5 (a) Powers of Council where public health is concerned, 343. {h) >; ii''-> 4 For reward tor apprehension of horse thieves, 389. Limitation of reward, 389. (k) :.! The power to pay is conditional, 390. (I) For keeping up foot-paths, 450. For numbering houses and lots, &c., 367. Charging owners with expense, 367. {a) For keeping record of street numbers, &c., 367. For marking boundaries and naming streets, 368. Powers conferred, 368. (c) For lighting, watering and sweeping streets, 477, 512. Application as to a whole street; whom to be made by, 478. (») ,f.-''-K >h For regulating dangerous places, 433. For acquiring land for industrial farms, parks, places for exhibitions, . • ; 378. Buildings thereon, or fences, 378. Monuments and. Landmarks. For place to mark boundaries, 330. Application to Governor under Con. Stat. U. C. cap. 93, 33) . {h) Costs of survey to be paid by County Treasurer, 331. (d) . ;. Monuments to be placed under authority of Crown Lands Depart- ment, 331. For obtaining property, real and personal, 288. Right of Corporation to acquire property independently of statute, ,;!>,, 288 (a), 289 (b) (c) For acquiring land for cemeteries, &c. , 313. Selling portion of such land for certain purposes, 314. When Municipality seized in fee simple, 314. {k) For non-resident land fund, 659. For purchasing wet lands from Government, or otherwise, by Townships, 298, 299. Municipal Corporations not in general authorized to deal in lands, 300. Raising money for purchasing and draining, 301. The Corporation may hold or dispose of such lands, 301. Proceeds of sale, 301. For Licenses. Quare as to effect of 32 "Vic. cap. 32, Ont., on 27 & 28 Vic. cap. 18, 297. (d) For licensing and regulating the use of billiard and bagatelle tables, 312. (d) For licensing, regulating and governing auctioneers, 337. (p) 808 INDBX. BY-LA WS, MVmClVAlj— (continued). For lictmsing hawkers and pedlars, &c., apd regulating same, 338. What constituttis a liavvker or pedlar, 338. (r) Proviso as to duties on manufactures of tliis Province, 339. Amount that may be exacted for payment of license, 388 (7) Licenses not to be granted for certain times and places, 321. For ferries; licensing with assent of (Jovernor, 339, 331) (w) Provision for particular cases, 33'J. For licensing, &c., victualling houses, &c., number and regulation of, 312. License and fee for same, 312. (/) For licencing, &c. , transient traders, 373. Object and scope of such provision, 374. {m) For licensing intelligence offices, and suitable persons to keep, 375. Fixing fees to be received by the keepers of office, 375. (6) Regulation of, 376. Duration of license, 376. Prohibition of, without a license, 376. Fee for the license, 376. For regulating and licensing livery stables, &c., 387, 388. Powers conferred, 388. (d) Wheels, 389. Bates of fare, 389. For regulating shop and tavern licenses, and sale of spirits, &c. , 385, 385 (o) Police Commissioners in Cities have like powers, 387. (p) For establishing markets, &c. , 343. Acqu'icment of land to erect buildings, 343. (c) Regulation of, 344, 344 ((/) ' '*"'" Old market continued, 344. For regulating vending in streets, 346 (e) For regulating sales of articles marketed, 347. Sale of grain, butchers' meat, farm produce, small ware, Ac. , 347, 347 {k) For regulating traffic in streets, width of wheels, &c., 374. Powers conferred, 374. (n) For preventing forestalling or monopoly of such things as are osually sold in markets, 348, 348 {m) For regulating hucksters, &c., 348. For providing for measuring lime, fuel and shingles, 349. For imposing penalties for light weight, 349. For regulating vehicles used in market vending, 349, 349 (v) For regulating assize of bread, &c. , 350. ' ^ For permitting sale of meat distrained in six hours, 350. For seizing and destroying tainted provisions, 350. For aiding Manufacturing Edahliahments. May give aid by way of bonus, 291. Proviso, 292. Power to exempt manufacturing establishments from taxation. 292. (I) For selling minerals, by County or Township, 450. Proviso, 450, 451 (0) Mines reserved for .tiie Crown, &c., 450. (m) INDEX. 809 ?uVi"!4 ;.. >,;• BY-IAWS, MUNICIPAL-Ccontmued;. Fw PubUc Morah, 327-330. For preventing sale of intoxicating drink to children, 327. To idiots or insane persons, 327. ('/) To apprentices anh ^'' For regulating Filth 171 Streets. ^ • Preventing throwing of dirt, &c., 319. Exposure of persons having contagious diseases, 319. («) For preventing the pulling down or defacing of signs, 323. Pulling down signs regarded as an amusement, but actors liable to be prosecuted as vagrants, 323. (d) For imposing Fines and Penalties. For neglect of duty, 295, 295 (w) • 1 ..•;'• ,.' :Mj' ,1 Of qualified person who refuses to accept office, 296. {w) (V) As to what is "neglect," "refusar* or "good cause," 296. {X) rem tftxation. Limitation of, exclusive of costs, 296. For collecting penalties and costs, 296. For inflicting imprisonment, when allowed, and time of, 296, 297 (6) Ordinary limit of imprisonment in default of payment of fine, 297. (c) For establishing, regulating and maintaining police, 377. Police Commissioners, 264. — See Poucb Commissionkks. 810 INDEX. BY-LAWS, MUSlClVAl^continued). For providing pounds. Duties of pound-keeper, and liability, 332. (g) For preventing animals running at large, 333, 333 (A) Selling animals impuundeu, 333. For appraising the damages to be paid by owners of animals tres- passing, 334. For appointing pound-keepers, fence- viewers, and other officers, 289. Without formality of sealed instrument, 289. (d) "Other othcers," what it includes, 290. («) Power of appointment includes power of removal, 290. (/) Member of Council may act as superintendent, &c., 290 {g) For regulating fees and securities of such ut&cera, 291. For aiding Railways. When head of Council to be ex officio a director, 488. Head of Council not to vote on the election of any of the private directors, &c., 448. (a) Authorizing branch railways to be made, 488. Also tram and other railways along highways, 488. For taking stock in railways, or guaranteeing debentures, 480 (a), 481. Different modes in which the aid may be given, 481. (b) For guaranteeing the payment of debentures, ac, 482 For issuing debentures, &c., 482. For granting bonuses, 482. Limitation of Council as to amount to be given in any bond, bill, note, &c., 482 (d), 483 (e) For directing form of debenture, 483. To be assented to by electors, before valid, 483. Municipalities may give aid to railways to pass through or near same, 483, 484 (i), 512. Mode of submitting such By-laws to electors, 485 (I) (m), 486 (n) Provisions of such By-laws, 487. (oo) (p) For eatahlishing Yearly JRatea. Yearly rates to be levied sufficient to pay all debts payable within the year, 206. Assessment to be on "the whole ratable property," 206. [g) Ag^egate rate limited to two cents in the dollar, 206. Dehnition of valid debt "falling due within the year," 206. (h) Limitation as to the amount of rate, cases collected, 208. (t) Provision when such aggregate not sufficient to pay debts payable within the year, 209. Exceptions to rule established in this section, 209. {k) Local Legislature has power to permit the limit to be exceeded, 209. (I) Power to exempt factories from taxation, 209. Object and scope of this section, 209. (m) When the rate imposed by By-law may be reduced by By-law, 210. Proviso in case of the existence of a surplus, 211. (o) When the rate imposed by By-law may be reduced by By-law, 210 Recitals requisite in such By-law — Reduced rate to be named, 212. By-law to be approved by Governor, 212. For raising money by rate, 535. INDEX. 811 be exceeded, BYLAWS, MVmCIVAlr~(eontinued). Schools. For acquiring land for public schools, &c., 313. For ao(|uirin^ land for nigh schools, 340. For aiding high schouls, 340. For supporting high school pupils at University of Toronto and Upper Canada CoUege, 340. For supporting common » ,ho Company describing value of property, &c., 519, 549, 560 (A) I -I <■ To receive assessment roll, 662. To be Clerk of the Court of Revision, 567, 583. . i To receive notice of complaint of overcharge of Assessor, 671. To give notice to Assessor, &c., when complaint of overcharge to be tried by Court, 572. To podt up notice of all complaints, 573. ; To advertise sittings of Court, 573. To enter appeals on list in the order received, 573 (g) (h), 692. ; When notice to be published, 573. (h) To leave list with Assessor, 574. To prepare notice to person complained against, and to cauae it to be left at residence, 574. To call in aid and assistance if necessary, 574 (»), 692, To certify roll, 676. To be served with notice of intention to appeal to County Judge, 581. To receive notification of Judge, and to notify pai+ies of day of hearing, 582, 693. To post up list of appellants from Court of Revision, 583, 593. To transmit copy of roll to County Clerk, 691. Effect of omitting to send cojjy of roll, 596. To make out collector's rolls, their forms and contents, 604, 604 (a) To make out rolls of lands of non residents, whose names are not in assessment rolls, 607. To certify roll and deliver to Collector, 607. {d) To make out two rolls, one containing names of taxable parties, and the other lands only, 607. (e) To be furnished with lists of free grants granted by Crown, 619. To be furnished with lists of lands three years in arrears for taxes, 620. To keep lists in office open to inspection, and give copies to Assessors, to notify occupants, 620, 620 (m) To certify lands which liave become occupied, 622. To examine the assessment roll, and ascertain whether any lot in list is entered upon the roll as occupied, 622. (t) . To funiish County Treasurer with Ust of land incorrectly described, 622. (t) To insert amount of arrears of taxes on Collector's roll, 623. To transmit By-law remitting taxes due on non-residents to Trea- surer, 627. To enter land which is found not to be assessed on Collector's roll of the current year, 629. To certify valuation of land, 630. To certify errors to Treasurer, 630. To receive receipt for money for taxes on land from Treasurer, 665. To file roll immediately on receipt of, 591. Revision of Assessment Roll. To swear members of Court of Revision, 691. To advertise first meeting of Court of Revision, 692. To collect dog tax, 722. To include names of persons assessed for income in alphabetical list of voters, 757. 816 ikdex. CLERK OF MUmCIVAUTY— (continued). To state in list of voters persons qualified by income, 758. To have list of voters printed and copies posted in office, 758. To send copies of voters' list to every member of Municipal Council except Reeve ; to every teacher of public scliools ; to post- masters, Treasurer and Sheriff of County, and County Judge and Clerk of the Peace, 759. To certify certain matters on each copy of voters' list, 759. To publish notice of first posting up by him, 759. To apply to Judge to certify one of the copies of voters' list if no complaint within 30 days, 760. To transmit final revision of voters' list to Clerk of the Peace, 761. In other respects. To transmit returns to Provincial Treasurer, 138. Penalty for not making returns, 138. To make annual returns to County Clerk, 139. To receive list of persons who have not paid taxes, 145. As to assessments, 150, 151. To publish Auditors' abstract, 151. To administer any oath relating to business of the place he holds office, 155. To sign notice of By-law fixing day for voting, 174, 176. To certify copy of By-law, on motion to quash, 171. (6) To sign every Bj^-law, 170. To sum up and declare result of voting on proposed By-law, 176. To have award of arbitrators filed with him, 229, 467 (v) To be clerk of police office, and his duties as such, 259. '"■'" ■^'■* To be provided with licenses for certain purposes, 339. To give notice at request of applicant for By-law affecting roads, * on payment of expenses, 428. To exact reasonable expenses attendant on such notices, 429. (v) To certify copy of duplicate original By-law for purposes of regis- tration, 453. To have tlie same powers and duties, in case of appeal to Judge of County Court, 459. To be served with a notice as to when and how proceedmgs to quash to be taken, 402. To post up in office notice of persons nominated, 493. . To furnish certified alpliabetical list of voters, 494. To receive poll-book, 495. To file writing appointing Trustee to vacancy in Police Villages, 496. To lile written appointment of inspecting Trustee of Police X'^illages, 496. To preside at meetings for nomination of Reeve, 507. To have custody of fence-viewei-s' awards, 706. To notify Judge in case of appeal against fence-viewers, 767. To deliver to issuer of licenses certificate of number of licenstB issued, 773. To grant applicant certificate stating that he is entitled to a license, 775. To refuse money for any certificate connected with licenses, 781. CLOSING ROADS— By-law as to, 446, 448. COAL— By-law to regulate weight of, 349. INDEX. Si: H'OLLECTORS. Apiioiutnu'Tit of, r>,38. Duties of, OOS. (i) To (leniaiiil jsaynKnt of rates, (508. Why ileiiiaiul is iieccssury, (JUS. (L) Kutry of (l.'itc at time of denitaml, &c., 009. (l) When piivmeut not luaile, (Jollcctors to levy thu tax by distresa antl sale, (K»!). ,«) Form of ^¥ arrant of distress, 009. {n) What may be seized for taxes, 010. (p) ' ' :': Proeeedings in ease of non-residents, Oil. When eollectors may distrain for rates on non-residents' lands, 612. Collector may not go out of his f Vniuty for purjios? of i list: ss, 61". ('') IJii'eet of a distress on jirior execution, 012. (ir) I'ublic notice of sale to be given, and in what manner, 013. Krrors or defects in the advertisement of sale, OIH. (;/) Menioranilum in writing on delivery of the goods s(dd, so as to bind the sale, 013. Surplus after Kale on distress, how disposed of, 613, 614. When tlie right to such surplus contested, Treasurer to retain it, 01-1. (n) When Collector to return his roll and pay over proeeed.s, 615. When the Ci>llector may exercise the compulsory i)owers, 015. (7) If Collector refuse or neglect to pry to proper Trea.surei, &c., 010. (r) Other persons may be employed on tlefault of Collector, 017. Object and scope fif this section, 017. (t) Account of taxes which cannot be collected to be returned to Treasurer, 017. (a) Collectors to be credited with amount of such account, 618. (I>) Taxes to be a lien upon land, 018. (c) Sewerage rate not a lien, (il8. (c) To give bond with sureties, OO.j. (n) Proceedings for compelling Cidlecturs to pay moneys collected to proper Treasurer, 07-. (t) (11) Warrant to be delivered to Sheriff, &c., where money not paid over by, 674. Importance of immediate delivery, 074. (?•) SherilF, &c., t:) execute warrant and pay money levied, 675. Duty of officer to whom writ vi delivered, 075. {ic) When Sheriff is not entitled to poundage on a writ, 675. {x) Bound to account for all moneys collected by them, 678. Exceptic)nal bonds, &c., 078. See AssK.s.sou.s — Taxes, Collection of. COLLECTION OF RATES. Taxes not otherwise recoverable to be recovered by action, 614. (0) Evidence to sustain the action, 615. (p) See CoLLECTOKs — Taxes, Collection of. COLLECTOR'S ROLL.— See Assessment— Doo.-*. COLLEGE— Exempt from taxation, 523. COMMERCE -Rkgulation of— Effect of British North America Act as to this, 298. (d) COMMISSIONER OF CROWN LANDS— To furnish lists of lands granted by Crown, 619. 52 818 INDEX. COMMISSIONER OF PUBLIC WORKS.— 5ce Drainaqi. COMMITMENT.— ) When several writs against one person, how tried, 98. (to) Writ, who to issue, and return day thereof, 98, 99 (c) Of trial ^orm of and of endorsement on, 1()'2. (h) Irregtilarity in issue, 98. (a) Is always to be issued out of Superior Courts, 99. (b) For removal, fonn of, 104. (k) Affidavit of service, form of, 99. (c) Service to be personal, unless excused by Judges, 100. Appearance of party summoneil, upon return of, 99. (c) Meaning of personal service, 100 (p), 101 (/) " ' Returning officer may be made party, 99. -> Form of writ in such case, 100. (d) Judges, duties of. May allow persons to intervene and defend, 101. Costs in such case, 101. To try summarily, 101. Or may send issue to be tried by jury, 101. Powers aa to evidence, 101. (h) Cannot incidentally decide as to validity of By-law, 103. (h) May remove or admit member, or coutirm election, 103. Judgment of, final, 110. ((t) Form of judgment, 103. (i) ' Form \.. , conclusion of, 104. (i) May order new election, 105. Writs for new election, form of, 105. {I) 106 (m) If all members ousted, 106. Sherifi' to hold new elections, 106. Object and scope of this clause, 106 (n) Form of writ in such case, 106. (ni) Disclaimer by defendant, after complaint, 107. How to be addressed, and endorsed, 107. (p) Form of, 107. To bo posted and registered, 107, 108 (7) Disclaimer before election complained of, 107. (r) Form of, 108. To operate as resignation, 108. Next candidate deemed elected in such case, 108. Duplicate to be delivered to Clerk by party disulaimifig, 108. (t») Costa in case of, 108, 109 (w) 820 INDEX, ■'">•' 'X-'. '^; f^ '. OONTrtOVERTED ELECTIONS— (continued). ''* . Costs generally, 1 09. ^\ hen discretionary with Judge, 100. (x) Judgment of Judge final, 110. (a) Mode of enforcing obedience, 110. Decisions, want of uniformity of, 110. (o) •■ Judges may make rulcjs and forms. 111. Powers conferred, what tliey are, 111. {d) Rules to remain in force until rescinded, 112. Fi. fa. for costs, form of, 111. (c) Buka of Court. As to, 0!)6-711. Proceedings in, 097. How motion made for TVTit, 697 . .. :^ Form of statement of relator, 697. Statement of the relator in the Queen's Bench (or Common Pleau), 697. When writ of 71/0 toarranto to issue, 698. * ^. Form of recognizance, 698. Form of Judge's liat, in vacation, for writ, 699. Form of quo loarranto summons, 699. Form of notice on writ, 700. Form of minute of day of service, 700. Form of writ of trial, 703. Form of endorsement of verdict thereon, 704. Form of judgment by Judge, 704. Copy of writ to be served, 700. Wlien defendant does not appear, 701. Form of affidavit of service, 701. When returning officer made a party, 701. Form t)f writ to returning officer, 702. When no one appears, Judge may proceed ex parte, or adjourn, 702, Copies of affidavits to be furnished, 703. Relator to adhere to objections in summons, 703. Answer, when defendant appears, 703. Disclaimer by defendant, 703. Issue when necessary, 703. Proceedings not to bo sot aside for irregularity, 710. See Corrupt Practices— Election.s. CONVICTION UNDER BY-LAWS. Form of, 251. What it should show, 251. (.1) Omission of date or title of By-law would not be fatal to, 251. («) CORDWOOD— By-law to regulate measure of, 349. CORPORATIONS, MUNICIPAL. / Definition of, 5. (d) ' '' May sue and be sued, 5. (d) May contract and be contracted with, 6. {d) To have a common seal, 7. (d) May hold and alienate real estate, 7. {d) Proper name ought to be used, 7. (/) Quaere, are slight variances immaterial? 7. (/) INDEX. 821 Lunon Pleau), CORPORATIONS, UVSlClVAL—fcouthuwd). Has no power to change its name, 8. (/) The Council is merely tlie legislative and executive body of, 7. (i) Council's powers are limited, 7. {k) Personal property of, not assessable, fi.lS. Limitation of actions against, for defective highways, 408, 408 (r) Liable for breach of contract, 5. ((/) Liable for negligence iu C(jnstruction of sewers, &e., 5. {(I) In action for negligence, not necessary to show instructions under seiJ to workmen, 0. ((/) But must connect workmen with Corporation, 6. {d) WJien Corporations may lie sued on sinijilc contract, C}.{d) When the law implies a contract as to, t). (d) . Not liable on executory contracts not under seal, 6. ((/) Persons dealing witli, presumed to have notice of the scopo of the authority of, 6. (d) No action lies against head of, for not affixing seal to contract, 6. (d) Powers of, to be exercised l)y Council, 8. Limited to the ol)jects for which established, 9. (k) Banrpiets illegal, J). (/:) • When meml)ers of, personally liable, 9. {k) Liability of, for acts done under illegal By-law, 191. By-law must be cpiashcd Ijefore action brought, 192. {c) Illegality need not appear on face of By-law, 191. {h) Municipality, and uftt jjcvsons acting under By-law, liable, 192. Notice and limitation of action, 192. (e) Can notice be given before By-law quashed ? 192. (e) Replevin would not lie against, li)2. ((/) Right of action in case anything be done under illegal By-law, 192. (/) Tender of amends bv ('or[)oration, 192. DeHnition of "Tender," 192. (j/) How made, 193. (,7) To whom made, 19.'1. (r/) Shoidd be specially ])leaded, 193. (h) Object of lender, 193. («) Executions .-igainst, 252. See By-laws — Executions. CORPORATION SURVEYOR.— ^^(^ Survfa'ob. ' CORONER. — See Administration of Justice— Sheriff. CORRUPT PRACTICES. Interference of Legislature to put down, 112. (r) Bribery at common law, 112. (f) Certain ])ersons deemed guilty of bribery, 1 12. Person employing agent in elections respcmsible, 112 (/), 113 (/) Giving money to voters, &c., 112. • Procuring otHce, &c., for voters, 113. Detuiition of bribery, 114. (;/) Persons corruptly influencing voters, 114, 115. Distinction between giving money before and after election, 114. (A) Payment of money to procure return of member, 114, 115 (k) Illegal eimduct of receiver of bribe, 1 15. (/) Advancing money for bribery, &c., 115. (m) Receiving money, &c., for vote, or agreeing for money to vote, 116. ;?■ 822 INDEX. CORRUPT PRACTICES-f'coyt/JnMed;. :, Deprivation of right to vote, 116. (p) • i After election, receiving money, 117. (o) Hiring teams, 117. Doubts as to illegality of, 117. (p) Violence or intimidation, use of, 118. (5) Expenses of candidates allowed, 119. ' What are allowable expenses, 1 19. (r) Affidavit evidence not allowable as to violation of sections 163, 164, Municipal Institutions Act, 120. Judge may inquire into facts, 120 (s) Penalty on candidates guilty of bribery, &c., 120. To forfeit seat, 120. («) To be ineligible as candidate for two years, 120. (m) Vote of voter found guilty, void, 121. Penalties in addition to loss of vote, &c., for offence, 121. Under sections 153 and 154, Municipal Act, 121, 121 (te) Recovery of, 121, 121 (x) Judge to make return of ofi'ence under sections 153 and 154, Municipal Institutions Act, 122, 122 (a) Clerk to keep book of names of persons guilty of bribery, 122. Clerk to erase such names from voters' lists, 122. (b) Witnesses bound to attend before Judge, 122, Fees to be paid, 122, 123 {d) Order for attendance of, form of, 122. (c) Enforcing attendance of witness, 123 (e) Self-crimination, or privilege, witness not excused from answering, 124, 124(/) Limitation of actions for violation of sections 153 and 154, Municipal Institutions Act, 12<). (i) Copies of Act to be mailed and posted up prior to, 126. Duty imposed on Clerk in this respect, 126. (k) See Controverted Elections — Elections. COSTS— Form of, in contested elections, 710, 711. See Voterh' Lists, COSTS UPON MANDAMUS.— 5-66 Mandamus. COUNCILS, MUNICIPAL. What they are, 40. (a) Members of. . How comT^c^?fid in Counties, 40. In Cities, 43. ' In Towns, 43. ^ In Incorporated Villages, 44. In Townships, 45. In Provisional Corporations, 45. Reeves and Deputy Reeves to file certificates as to election, and of numbers of freeholders and householders, 41, If certificate defective, the Clerk may reject it, 41. (6) Form of, as to election, 42. Form of, as to number of householders and freeholders, 42. Councilmen in Cities, abolition of, 43. {dd) Females not entitled to vote at Municipal elections, 44. (ee) INDEX. 823 (MJUNCILS, MUNICIPAL— ('con) Disqualifications — Certain public oflicers disqualified, 49. Inn-keepers and sal()on-keei)ers, 49, oO (t) Person or partner having interest in contract with Corpora- tion, 50. Object of this provision, 50. (?<) Does not refer to shareholder so having contract, 51. Or to Corporation lessee, 53. Exemptions — Certain ])ei'soiis exempt, 5,'>. Distinction between qualification ami right to vote, 53. (w) Difference between disqualification and exemption, 54. (a) County. May reduce area of Incorporated Villages, 13. Proviso as to, 1 3. , Independent of each other, 14. May })ass By-laws regulating their boundaries, 12. (t) Jurisdiction of, 101. "Jurisdiction," meaning of, as used here, 161. (d) Definition of "Municipality," 101. (e.) Powers of Councils confined to their own locality, 102. (e) Powers of Councils c-xercised by By-law, lOiJ, 103 (/) Erroneous belief with regard to resolution and By-law of, 163. {,g) General power of (Jouncil to make regulations, 164, To repeal, alter, &,c.. By-laws, 104. Purposes of reguhitions, 104, (i) Matters to be observed in framing rcgulaticms of, 165. (i) "Regulations," use of word, 104. (/;) Regulation of, not to be contrary to Municipal Acts, 165. (i) By-laws of, ctmtrary to statutes, void, lOf). (i) Given power to make, has power to rei)eal By-laws, 166. (k) Granting monoprdies prohibited, 106. Monopolies considered and cases collected, 167. (I) No special tax shall be iiiq)osed, 107, 108. (;/i) ^ Excei-'tion, 109. (/>) May grant exclusive privileges to ferries, 109, 169. (q) Exception, 170. Annual examination of assessment rolls by Municipal Councils, and for what purpose, 591, 592 (o) Equalizing rolls of Towns and Villages, 593. 824 INDEX. COUNCILS, MV^lCAVAJ^(rontlmu'fl). Local Municipality iiiiiy appeal, r>94. Witliin wliat tiino, r)!f5. Effoot of Jiiilgi.' allowing tlio appeal, and reducing the amount of aggn-jji.iti; assi'nHUU'nt. fit)'). (:;) Eircct of < !lerk of Municipality omitting to send c py of roll, 596. IJiMnc'iiy in such case, oiK*. (a) Valuatur.s to attest tlnii' rcpi-it on oath, fiOO. I)it1i''ulty in ;igr(1ing as to sahir of property, WO. (c) Apportiiinnu'iit of County rates, how to l)0 l)ast'(i, .VJT. Case of new Muniei]ialitii's, o'JT. I)uty of County ( 'onncil, hy examining the rolls of former Municipalities, to ascertain what ])art of .Municipality hatl riilation witii new Muiiicii>ality, '>'.<~. (.v) County < 'ounciJH to appnrtion sums ni|uired for special ])urpose9, 598. County ( !]erk to certify amounts to Clcrki of Local Municipalities, 5i)8. Of (^)unty Councils ; first meeting, when, 126. ' First meeting, where, 1"J(), 1*27 (/') Suhsecjuent meetings, 127, 127 ('/) Of t'ounties or Townsiiips may he in Cities, &c., 127. Councils may iiold and |iurciiasc real property, 127. («) Of Councils otlier than (,'ounty, 12(>. First jueeting, wlicn and wiiere, 12(5, ]2() (w) • (_)rdinary meeting to ho ojjen, 129, 180 (rt) vSpecial, may ho eitina* open or clf)sed, 128. lleninneration to (Jouncillors, &e., limited to $2 per day and mileage, 128. Distinction hotwccn Council and Corporation, 128. (i') Mayor, remuneration of, 129. Ueuuirks on onerous nature of duties of Mayor, 129. (w) OondiKt of Bun'uicss. No husiness hefore declarations of office, &c., 130, 130 (&) If special, may he open or closed, 130. (a) Quoruiu to l)e a majority of wiiolo Council, 130, 130 (c) In Councils of live, tiiree must concur, 130. Heads of Councils to preside at, 130, \'.M) (e) Maj' summon special meetings, 130. When s[)ecial meeting discretionary, when inipei'ative, 131. (/) When Koeve or Deputy to i)reslde, 131. Ahsence of head of Council provided for, 131, 1.32 {k) Temporary aljseiice of ])resiiling odicer, 132 (/), 132 {in) If a tie, motion is negatived, 132. Exception, 132. (o) Adjournment of, from time to time, 132. (p) Heads of Councils may vote, 132 (?•) Officers of Mmddpal Councils. Head of County Council, &c. , to he Warden, 1 33. Duties of heads of Councils, in detail, l.S-i, 135 (<) Heads of Cities (Mayors), their responsihilitieswithoutpower, 134. (*) Power of Corporation to appoint officers at common law, 134. (t) Finances, prudent management of, by, 135. (<) • INDKX. 825 COUNCILS, }>W'S\nVAJj—(con(hiueilJ. Clerk, apjtoititnicnt of, 130, l.SG (eualty for iion-i'oiiij)lianco, 308. (/) ^ Municii)al rates, how tiny may lie recovered, WW), (ni) See l>v-i.A\vs— CoNTUovEUTEi) Elections— Ku;cTioN.s— Interprr- TATION. COUNTIES. • How formed by proclamation, and aiincxe3'-law assume roads or bridges, 414. .Such roads to bt macad.imized and budges built by Council, 41.'). Improvements by eitiicr < 'ounty of a union, 3!H). Either County separately to carry on such improvements . \iircd, 3!»(». Reeves, itc, of the County interested alone to vote, 390 Exception. .3!H. P.aymcnt for improvements, 301. Treasurer to pay over moneys without deduction, 391. To whom to pay (jvcr, 391 (7) ' How property assessed in such cases, .391. Maintenance by, of certain bridges in Villages, 415, .511. Bridges between Munieipalitiis, 41.J, 410, oil. Arbitration in ease of di.spute aa to, 417. To be bnal, 4lS. 418 {u) I)ciiniti(m of "Bridge," 41.5. {in) Projjcr remedy ^\he^e Municipality is charged with non-repair of bridge, &c., 4iG. (/;/) Injury sustained owing to ilefcctive state of bridge, 417. (m) In case of a bridge crossing a boxunlary line, 417. (»») See Bv-LAws — Corporatioks, Municipal — Councils — Intbr- PRE'rATION. COUNTY CLERK.— /See Cij:rk of Municipality. COUNTY JUDGE. Ap])eal to, from Court of Revision, 580,* 591. May hear appeals from Court of Revision on drain.age asscssmenta, 4.59. See Controverted Elections— Court of Revision — Drainauk. 826 INDEX. COUNTY COUNCILS.— .?ffl CoirNciw. Municipal. COUNTY OFFK'IillH-Mal^oasanco by, 286. Hue CdUSCILH, Mr.MCIl'AL. COUNTY I'URl'OSKS. How inoiiuy f(tllocto(l for County purposes shall bo paid over, 677. Declaration as to, 078. (c) COUNTY TREASURER.— 6Ve Councils, Municipal— Salk oir Land for Taxkh. COURT-HOUSE AND GAOL. Erection and care of, 272. Powers and duty of County Council, 272. (a) County ( "ouiicil may pass Bydaws as to County building, 272. Ill Counties and < 'itics, &c., not seimrated, to be used for both, 273. (6) (c) CJustody of, 277. City Cioal to l>e regulated by Bydaws of City Council, 278. . Under control of Inspector of I'risons, 278. (d) Upon 8ei)aration of union of Counties, gaol and court-house regulations to continue, 287. Itight of City Council to control, 278. (/) Expenses of, in case of Cities, &c., separated from Counties, 279, 279 (m) Compensation by City or Town for use of, 280. («) (l>) When the amount of compensation may be reconsidered, 281. (c) Arl)itrators ajipointed to settle diti'erences, 280. (h) Exeuii)t from taxation, 523. See liY-hAWH. ~ COURT OF llEVISION AND APPEAL. When Council consists of five members only, 563. (a) When more than live, 5(57. ' A (luorum to be tiiree members, 567. Who to be Clerk, 5G7, 583. Meetimjs of Court, 567. - The Court to try all complaints, 5f)8. (h) Statutory jurisdiction of tlie Court, 570. (i) The Court to finish its business by June 15th, 570. » Construction of this section and of statutes generally, 570. (/) The Court may adi.iinister oaths and summon witnesses, 567. Oath to be taken Ijy each member, 567. (e) Penalty on witnesses who refuse to attend, 508. The first sitting, when legally held, 568. (f/g) Witnesses cannot be compelled to attend unless paid fifty cents a day, 567. (/) Proceedings on trial of complaints, 571. Notice by party aggriev d, 571. ' Service of notice to be at ri side ace, 574. How al)sentees served, 574, 5/5 {in) When notice to be completed, 575, 575 (n) When an elector tliinks any person assessed too high or too low, 671. Clerk to give notice of complaints by posting up list, 572. "What list should coirtain, 572. {d) Extension of time for complaints, 573. Form of notice list, 573. INDKX. 827 COURT OF REVISION AND AIM'HAI. fifty cents a (rotitinunl). C82. Tho Clerk to ulvortiso sittinpH of Court, 573, Whi'ii noin '• to b(! i)ul)li8lie(l, 'u'A. (A) To Iciivo u liHt with an iisHi'Msor, 574. Necessity of this, 574. {i) Prei)iiro iiotiei' to person complained ftgainst, 574, 682. Form of notice, 574. Proceodiiij^H on complaint of overcliargo on pcrsoniil property, Ac, 675. 575 (o) (P) Effect of clwclaration liy ])arty, 576. Proceedings in other cases, 57*). Hearing upon oatii the complainant or assessor, 576. When (Joint to proceed ex parte, 57(5. Court to a.scertain whetlar notice has hcen given, 576. (q) Thti roll, as finally pas.scid, to liind all parties, 57(5. Powers to Court of Revision to lemit or reduc^e taxes, 579. Classes of persons entitled to avail themselves of the provisions of this section, 57U. (0 Appeal from Court of Rvrimm, 5S0. () Duty of Treasurer to see that money collected under By-law is applied to debenture, 234. (<■) When valid without Corporate seal, 23r), 23;') (/) Notwithstanding defect in By-law, 23;"). Proviso that assent of electors given wiien re(iuired, &c., and sections 24S and 251 of Municipal Institutions Act complied with, 235, 235 {>.) Mode suggested ])y Editor to secure for all money By-laws the stamp of legality, 235.'(/') Form of debenture under sections 403, 404 and 405, Municipal Institu- ti) Clerk to preside at, his powers, 72. In absence of Clerk, 72. {c) Presiding olhcer in Cities and Towns, 73. Six (lays' notice to be given, 73. How time to )je ct)niputed, 73. (g) Form of proposing and seconding, 73. If no more candiclivtes than oiiieea, 73. If more, and pt)l] demanded, proceedings to be adjourned, 74. When poll to be opened, and how long continued, 74. Notice of persons proposed to be given to Clerk or chairman, 74. Clerk to give attested alphabetical list of voters to Ketumiug Ullicer, 7? Names omitted from roU or list, 75. (o) Where Iteturning Officer acts without list, 75. (p) Using roll instead of list, 75. {p) Persons in arrear for taxes may be excluded, 76. Poll books to he provided, and how kept, 76. (r) In case of Municipalities not divided into Wards, Clerk to be Re- turning Officer, 76. Poll-1)0()ks to ])e returned to Clerk, with declaration of Returning Officer, 77. Clerk to declare result of election, 77, 79. And put up .statement of result, 77. Clerk to have casting vote, and when to be given, 77. In case of ties, 7S. (v) When commenced, or interrupted by riots, to be resumed, 78. Voters to liaxe free access, 78. If election is prevented for four days, a new election ordered, 7i). ('•) And poll-book returned to head of Municipality, 79. ('/) If no return for one or more Wards, Clerk to (leclare fact, 7J>. (d) When poll completed, Clerk to declare result; where and when, 79. Declaration ancl assumption of office, 80, 80 (/) See Electors — Voteils' Lists. ELECTIVE FRANCHISE.— &'e Election. ELECTORAL DIVISIONS— By-law for dividing into, 311. ELECTORS, MUNICIPAL. Qualijicatiou of. » Income franchise as a qualification, 756, 757. Id Municipalities having assessment roU, 54. Meaning of resident, 54. {d) Meaning of householder, 55. (e) Collection of decisions on, 55, 56, 57, 68 (e) " British subject," fuU age, 57, 58 ( ■ Surplus may be invested, 217 Limitation of such investment, 217. {u) Surplus income from any woi'k may be applied toward such debts, 217. (v) Surplus may be set apart for educational purposes, 217. Investment of the same, 217. ■ ProAaso as to investment, 218, 218 (c) What the investment may be, 218 (h) Surplus may be loaned to School Trustees, 218, 218 (e) Aid from surplus to poor School Sections by gift, 219. Memljers of Corporation not to be parties to, or profit from, investment, 219. (;/) Liability for loss, 219. Annual returns of indebtedness to Municipal Loan Fund to be ma Management of, 378. Land held for, how assessed, 549. GAS. By-law for lighting with, 379. By-law for laying pipes for, 379. 838 INDEX. HAS— (continued). When rate to be levied, 381, Proviso OS to special Acts, 382. By-law for inspection of ga8 motors, 380. By-law to appoint Commissioners to superintend gas works, &c., 38(J. Such Commissioners to be elected tor constructing such works and water works, and payment for, 380. See Gas Company. HAS COMPANY. By-law to authorize laying pipes by, 323, 323 (/) By-law to authorize Municipality to take stock in, 324. Or to lend money to, 324. (*/) Or guarantee money borrowed by, 324. {g) , Electors assent required, 324. Head of Corporation in some cases to be ex-offieio Director of, 324. See Gas. (JOVERNOR GENERAL— Property and official income of, exempt from tax- ation, 525. /See Finance — Interpretation. . :< GRAIN — By-law to regulate sale of, S47. ' . '; See THISTLE.S. GRAMMAR SCHOOL— Exempt from taxation, 623. GRAVES— By-law to protect, 321. GROUND PLANS— By-law to compel plans of, 369, 370 (e) GROCERS — By-law to regulate purchase by, of family necessaries, 348. GUNPOWDER. Storage of, in Police Villages, 499. How to be sold, 499. By-law to regulate storage of, 356. GUNS— By-law to prevent letting off, 354. HAMLETS— Sale of roads in, 451. HARBOUR. Cleanliness of. By-law for, 309. Removal of obstructions in. By-law for, 310. Improvement and regulation of, 310. Dues, By-law to impose, 311. By-law to allow taking stock in, 510. HAY. Storage of, in Police Villages, 499. By-law to regulate sale, 347. HAWKERS. By-law to license, 338. Proviso, 339. HEALTH— By-law to provide for, 355. INDKX. 839 HIGH BAILIFF. AppDintment of, 265, DilFercnce between their aiipoiiitmeut and that of conetables, 2(55. (?•) Suapension of, 271. (m) *SVt' Constable. HIGH SCHOOLS. By-law to aid. 340. - To provide landa for, 340. To support pupils at 'Jniversity, &c., 340, To sui)port pupils a' ligh Schools, 341. Si-i'. By-laws. ' ' HIGHWAYS. Overseers of, By-law to appoint, 289. ' Delined, 393, 3f)4 (.0, 39') (r/) (*') (/) ' ' " Freehold of, in Crown, 396. (j/) Juriadietion over, 396. [h) Streets in Cities, Towns, &c., how vested, 396. In England, in ancient times, 394. («) Repair of, 400. (o) Repair of, in England, obligation rests on parishes, &c., 400. (o) Consequence of neglect, 406. (p) Accidents from defective ; limitation of actions, 408. , Measure of damages, question of, 408. (7) Proviso as to street laid out by private person, 410, Effect and meaning of this proviso, 411. (s) What are County roads, 412. Jurisdiction of County Councils over, 412, 412 (t) Counties may assume Township or County boundary lines, 414. Description of, 414. (n) Joint jurisdiction of several Municipalities over certain roads, 418. Defmition of a road lying httween a County, &c., 419. (s) Both Councils must concur in By-laws respecting them, 420, 420 (1/) Arbitration if they do not concur, 420. Doubt as to whether arbitrators have power to direct cost of bridge to be erected, 420. (a) Transfer of powers of Justices in Sessions to County Council, 420. Object and scope of this section, 421. (a) Roads under Board of Works not affected, 421. Roads, &c. , as Provincial works, vested in Her Majesty, ^ijid net to be interfered with, 421. Proclamation by Governor as to roads, &c., under control of Commis- sioners of Public Works, 421. Difference between power and obligation, 421. (c) Roads on Dominion lands not under Council, 422. (e) Ordnance roads, lands, &c., not to be interfered with, 422, 422 (/) Object of this section, 422. (g) By-law interfering with Dominion lands, &c. , not reciting consent, to be vi'd, 423. List of public works of late Province of Canada declared by British North American Act the property of the Dominion, 423. (!) Roads necessary for egress not to be closed, 423. Power of Council to close up highways, limited, 423. (0 Width of roads, 424, 424 {«) V 840 lyoEX. ni(imVAY»-{ continued). • Tn caso of owner of land laying out ono of Ichb width, 425. (o) Notices rf4iii«itc for, Hy-hiws ailcoting puljlic roadH, 425. C'onditionH precedent to pjvssing liy-law intended t<> alFect pub' roads, 425. Powers inferentially conferred, 425. hi) Notice to be posted up and pui)lished in newspapers, 427, 423. Necessity of notice, 42(5. (7) Corporation should preserve proof of notices, 42(5. (r) Parties prejudicially ad'ectcd, to h(! heard, 42S. Before paymg money for land for highway, investigation should bt made into the title, 428. {it) Clerk to give notice on payment of expenses, 428. lliglit of Olerk to exact reasonable expenses, 429. (r) Oeneral powers an to ronds. By-law may bo made for — Opening and stopping up roads, &c., 429, 429 (01) , , Tolls. For raising money to defray expenses of uiakiug and repairing the same, 43.3. Limitation of, 4.'J3. {d) Making regulations as to daftgcroua places, 433. ' Sale ot timber, &c;., on, 433, By-law for preservation of trees, stone, &c., 433. Right of Municipal Corporation to sell timber growing, standing or road allowance, 433. (/) Si llimj old road allowance. • . , When C!ouucil may stop up or sell a road allowance, 43(5. "Where a public road has been opened through a private proiwrty, 43G. (m) Conveying of former road allowance, 437. (o) Where adjoining projector sliall own old allowance, 430. Compensation to party whose land is taken, who does not own land adjoining original road, 43S, 438 {I) ' * By-laws to aid adjoining j\luuicii)ality to open roads, &c., 440. To aid Counties in making roads and bridges, 440. Aid may hi by loan or otherwise, 440. (x) To enter on joint works with other ^Municipalities, 440. (ij) When roads in Police Villages and Hamlets may ])e sold, lic,, by Town- ship Councils, 451. (p) When N'illagc is partly in each of two Townships, 452. Disputes concerning; power to administer oath, 453. v By-law to allow railways or tramways on, 488. tTurisdiction of County Councils over, 511. Roads or bridges assumed by County Councils to be gravelled, &c., 51 1. Use of puldic roads in Cities and Towns vested in the MuuiciiJality, 712. Cor})oration to repair, 712. Neglect, consequences of, 712. (iovernmcut roads may be ceded to, 713. ' , After wlucli municipal authorities to repair, 713. Travelling on. Carriages meeting to drive to the right, givhig half the road, 713. Carriage overtaken to turn to the right, 713. INDEX. 841 HKim\AYH—(coT,nnuf rontls. County Councils may pass By-laws for double tracks iu sleighing season, 717. Nature of tracks, 717. Right of road, 717. Duties and powers of path masters or road masters, 717. If Township refuse to make tracks. County may, and impose rate, 717. Penalty for persons refusing to -work under path masters, 718. Penalty for tBivclling on left hand track, and refusing to turn out, 718. Team, interpretation of the word, 718. j^ec Counties — Interpretation — Road Allowance— Townships- Thistles. HOLES— By-law to compel lilliug up,. 372. HORNS— Blowng of, By-law to prevent, 354. HORSES— By-law to regulate, 388. HORSE RACING— By-law to prevent, 329. HORSE THIEVES— By-law to offer reward for capture of, 389. (tc) HORTICULTURAL SOCIETY. Property of, wlien exempt from taxation, 525. By-law to aid, 291. . HOSPITALS -Exempt from taxation, 523. , - HOUSE OF CORRECTION. In Counties, 272. When Counties and Cities, >r , ..^ , , INTERPRETATION. ' " Bills of Mortality," meaning of, 356. (a) " Bridge " means a public bridge, 4. . , " Constable," moaning of, 2G8. (a) ' ' ' ' ,/ "Council" includes Provisional Council*, 3. " County " includes union of United and Provisional Counties, 3. " Cretlible %vitness," what is, 247. {») " Destitute," meaning of, 379. (k) "Electors" includes persons entitled, for the time being, to vote at elections or on By-laws, 4. " Existing," meaning of, 489. (fi) ' t " Finally," eEfcct of word, 151. (/) "Governor," the Lieutenant-Governor or administrator of the Govern - mejit of Ontario, 4. ; " High v/ay " includes public highway, 4. ■ . " Householder," what constitutes, 03. "Incorporated Village," definition of, 489. (6) ' "Inliabitant," 150. (d) " Leasehold" delined, 48. " Land" includes lauds, real estate, real property, 4. " ManiciDality" includes locality of inhabitants incorporated under thiei Act, ^3. " Next day " not to include Sundays or statutory holidays, 4. " Personal property," moaning of, 514. " Place," nioani;)g of, 750. " Property," meaning of, 517. , ' ! . ', ; , ., • " Patepayer," deliiiition of, 150. {d) " Peeve" includes Dcjnity llceve, except as Justice of the Peace, 4 " Iload" means a puljlic road, 4. "Scat," meauing of, 80. (a) .' " Shall," when directory, 151. (c) " Street," meaning of, 750. "Township" includes union of, or united Townships, S. Of statutes, rules followed in, 2, 3 (c), 502 (c) INTERPRETATION CLAUSE— Of Assessment Act, 513. INTERMENT OF DEAD— By-law to regulate, 356. INTOXICATING LIQUORS. By-law to restrain sale of, 297. Decisions as to sale of, 298 (7. (//) (i) Purchase money subject to charges on property, 308. Of infants, &c., how title aci^uired, 306. — See Infants' Landh. By-law to enter on, and take for sewers, &c. , 294. Compensation for, 294. (<) Interpolation of, 514. * (See FiiEE GrRANTs — Interpretation— Indian Lands — Ordnancr Lands. LANDMARKS. By-law to preserve, 324 By-law to establish, 331. LATHS — By-law to regulate mode of measuring of, 349. LEGISLATIVE EXPRESSION— How diatinctnoss of, is acquired, 1. (a) 846 INDEX. 1 LEGISLATIVE POWER— Right of Legialature to delegate, 10, (?) LEGISLATURE. Right of, to delegate legislative power to Municipalities, 10. {I) Ontario Lc;gi;ilature to delegate legislative power, 10. {I) LEWDNESS— 'By-law to suppress, 328. LEWD PERSONS— Commitment to lock-up, 283, 284 (n) LEVELS OF CELLARS. --9«' (Cellars, LIABILITY OF CORPORATION— For acts done undei' illegal By-law. - See Corporations, Municipal. LIBRARY — Public library exempt from taxation, 525. LICENSES — By-law appointing inspectors of, 385. LIEN. Taxes to be a lieu on land, 618. Qiuere as to sewerage rates, 618. (c) , LIEUTENANT-GOVERNOR— Official income exempt from taxation, 525, See Interpretation. LIGHTING STREETS.— /S'ee Streets. LIGHTS IN BAR-ROOMS— At prohibited hours, 789. LIGHT WEIGHT— By-law to impose penalties for, 349. LIME. By-law to regulate weighing of, 349. vStorage of, in Police Villages, 499. LINE FENCES. j' Notice to opposite party. 767. Notice to fence-viewers, 708. Award, 708. Schedule to agreement, 769 • LIQUORS. Sale of, 770. luterpretation, 770. ■ • Licenses, 771. ' , * . Issue of, 771. ' • Obtaining of, 774. Transfer of, 776. Regulations, 777. Fees ; duties payable, 778. Prohibitions, 779. Penalties, 780. , . , Proceedings and evidence, 785. ; ,. j By-law as to, 385. (o) To prevent sale of, to lunatics, &c., 327. < Officers to enforce the law, and their duties, 789. Appeal from convictions, 786.' Territorial districts. Act to apply to, 791. Repealing clause, 791. Prosecutions under Act, when begun, 787 See LICBN3E3. INDEX. g47 LIQUOR TRADE— A nuisance in some States, 298. (d) LISTS. — See Voters' Lists. LIVERY STABLES-By-law to regnlate, 387, 388. LOCAL IMPROVEMENTS. By-law for, 471-477. Wliat Works By-law not to apply to, 477. ' - - , See By-laws — Improvements. LOCAL RATES —For special improvements, 479. -. , ■ - LOCAi TREASURER. . , To pay over County moneys to County Treasurers, 67S. In case of default, 678. (<) ' Warrant to Sheriff, 679. (v) . ' How the Sheriff shall levy, 679. LOITERERS IN STREETS^Are vagrants, 284. (p) TX)CK-UP HOUSES. Existing, to continue, 282, Exempt from taxation, 523, This Act not to affect right of Justices of the Peace to confine in, under 29 and 30 Vic. cap. 51, sec. 409, 282. Classes of offenders who may be committed to, 281. (h) Expense of conveying to, and maintaining prisoners in, 283, 283 ({) 283(1^^ *° ''^''''* "^ ""''^ ^^ ^'''" '"''P- ^^' ''''''• *^* •'^^ *^^' 283' Persons whom Justices may commit to, 283 Indigent, 283. (/) * ■ Idle, 283. (m) Lewd, 284. («) Frequenters of public-houses, 284. (o) Idiots, 284. {j}) Punishment of refractory inmates, 284. LUMBER— By-law to regulate sale of, 347. LUNATICS— By-law to prevent sale of liquor to, 327. ' - LUNATIC AS YLUMS-Exempt from taxation, 525. MALFEASANCE OF OFFICE. Investigation^ by ^County Judge of charges of malfeasance by County No provision for expenses of, 286. {q) Matters to which inquiry may be made, 285 («), 286 (r) Judge to Lave powers under 31 Vic. cap. 6, Ont., 286. Power of Commissioners to summon witnesses, 286. (t) MANDAMUS. Costs upon, 255. Discretionary with Court, 255. (k) Enforcing Judge's order by, 110. Form of writ of, 706, 707. See Costs. 848 INDEX. MANUFACTORIES. Ey-Iaw to aid, 291. ,.-r-.,( ,; < ,<..': By-law to regulate dangeroua, 358. MANURE.— &e Highways. MARKETS. By-law to establish markets, 343. To regulate markets, 344. {d) Places already established, to remain, 344. To regulate sales in, 347 Permission of owner of soil required before tables set out for, 350. (•?) See By-laws — Meat — Monopoly. MATERIALS FOR ROADS AND BRIDGES— By-law granting, 435. MEAT. By-law to regulate sale of, 347. By-Lvw to sell meat distrained for rent, 350, T.iintud, By-law for destruction of, 350. See Maukets. MECHANICS' INSTITUTES. . . . By-law to aid, 291. • Exempt from taxation, 525. > MENAGERIES— By-law regulating, 320. MENDICANTS- By-law to restrain, &c., 329. MILITARY SERVICE— Persons in, exempt from statute labour, 599. MINERALS. Found on roads, &c. , sale of, 450. ' Lands, assessment of, 547, G88. MINISTERS OF RELIGION.— 5'f(' Clergymen. MONOPOLY — In articles of household consumption. By-law to prevent, 34S MORTGAGE. ' Money invested in, exempt from taxation, 527. Interest on, not exempt from taxation, 529. See A.SSESKMENT. MUNICIPAL ACT OF 1866 -Language of, generally retained, 1. (h) MUNICIPAL COUNCILS.— /S'ce Couxcils, Municipal. MUNICIPAL PROPERTY— When exempt from taxation, 524 MUNICIPAL SYSTEMS— English and Canadian systems contrasted, 4. {d) MUNICIPALITY— iS'ee Interpebtation. NAME. ,■■•::,.,,:■,' Of Corporation, 7. Efiect of variation, 7. (/) Of Municipalities, change of, 16. (h) NAMING STREETS.— /See Strbets. NAVY. — See Officers. INDEX. 841) 350. (s) 135. 599. l-cveut, 348 (.'') M. 4. (d) NEW CORPORATIONS. Area and population of, regulated, 10, 11. How population ia to be reckoned, 1 1. Disposition of property and debts when created, H. Apportioning assessment of, 597. Limits of, lb. By-laws in force prior to formation of, to continue in force, 35. Eitber Corporation may repeal them, 35 (c), 36 (/) What By-laws bind where limits are extended, 36. (;/) Debts, liabilit)' for, at time of dissolution of union, 36, 37 (h) ^^'■' ' Debts in case of an extension of limits, 37. Municipality to which annexation is made, liable to compensate, 37. (>) Debentures to issue for debts, and to bind old and new Municipalities. 37, 37 U) "■' ' ■'''■■ Assessments for year preceding dissolution, who to belong to, 38. (/•) Special rates for debts continued, payment of, 38. Proviso where the sum paid exceeds the just amount, 38. (I) •'■ '•■ Form of action for excess, 38. Council and officers of, 39. Officers and their sureties, effect of separation on^ 39. Council should be organized promptly, 39. (m) Right to new sureties not affected, and may bo properly demanded. 40, 40 (p) See Towns — Villaoe.s. NEW MUNICIPALITIES— /See Nkw OoRPORATioys. "NEXT DAY."— 5'ee Interpretation. NOISES— By-law to prevent, 353. . ' ", NOMINATION MEETINGS— Time for- /See Elections. NON-RESIDENTS. Appeal as to lands of, 584. "' '' '- ' ' • ' Rule where lanil subdivided, 585. '' .-.<','''-'' Assessment of land of, 513, 544. ,'-'■.■ ' Lands. • ■ .•:••/ Assessment of, , 550. . .: • : . , .^ .>,•./.• !■: . i ■ '» To be inserted on separate roll, 550. • How described, &c., 550, .551. Duty of assessors as to, Fyo 1 . When known to be subdivided into lots, how designated, 551. What are, 517. Exception, 517. Real property of railways to be resident lands, 518. Form of notice requiring to be assessed, 682. Where occupied, occupant may be assessed, 090. Personalty of non-resident, when assessable, 691. Land Fund, How disposed of, <>.59. Wlieu no By-law, 659. Duty of Treasurer of County to collect taxes in arrear, &c. , 659. (c) Treasurer to open an account therefor for each local Municipal.ty, 660. 64 850 INDEX. NON-RESIDENTS— ^con^JwMfr/;. Duty of Trejwurer when Municipalities united are afterwards dis- united, 6G0. (/) Duty of Treasurer when any union about to be dissolved, 660. New Municipalities partly in one'County and partly in another, 660. All arrears to form one charge upon lands subject to them, Ac, 661. Necessity for the several rates, 661. (m) Deficiencies in certain taxes to be supplied by the Municipality, 601. Money from Land Fund, how appropriated, 661. Debentures may be issued on the credit of Non-resident Land Fund, 662. Who to have charge of them, 662. By whom to be negotiated, 662. Purchaser not bound to see to application of purchase money, 662. Provision for payment of interest on such debentures, 662. Ordinary mode of enforcing payment of debentures, 663. (v) Surplus of the Non-resident Land Fund to be divided among Muni- cipalities, 663. (a) Treasurer's percentage or salary, how paid, 663. Object of this restriction, 663. (b) Annual statements of funds to be submitted to Councils, 663. Object of this provision, 663. (/) What report will show, 664. (g) Copy to be transmitted to Provincial Secretary, 664. When copy shall be sent, 664. (h) Collection of taxes on lands of non-residents in cities provided for, 664. (i) County Treasurers, &c. , to keep triplicate blank receipt books, 664. Necessity for this provision, 665. (k) Audit of books, &c., 665. ■ ' r-/. ,': .' 5fe CoLLECTOBS— Statute Labour. ...^ NOTICES— As to altering, &c., roads, 425, NUISANCES. Power to pass By-laws relating to, implies power to suppresa bawdy- houses, 328. it) ...«,,.. By-law to prevent and abate, 361. ,- . What are, 351. (u) , >, ■■ Provision as to, in Police Villages, 500. NUMBERING HOUSES.— >S'ee Houses. OATHS OF VOTERS— Amended form of, 506. OCCUPANT.— 5'ee Assessors. OBSCENE LANGUAGE— By-law to prevent, 328. OFFICERS OF MUNICIPAL COUNCIL. Not to be appointed in certain ways, 159, 159 (u) > Poor pay, poor service, 159. {«) Tenure of office, 160, 160 (a) Duties of officers, 160, 160 (b) A gratuity may be given in certain cases, 160. (c) Clerk. — See Clerk of Municipality. INDEX. 851 OFFICERS OP MUNICIPAL COVSClL-fcontinued). Treasurer. To be appointed, 141. (o) Chamberlains hereafter called Treasurers, 141. {q) To give security, 141. ; I '; Sufficiency of bonds, 142, (r) SufBciency of annual inquiry as to, 142. Importance of this duty, 142. {») To receive, take care of, and disburse moneys, 143, 143 (t) His liability limited, 144. , Half-yearly statement of assets, 144. Should keep separate account!! for his own and Corporation money, 144. («) Security by Treasurers and Collectors, 666. Duty of officers, 665. (o) Bond with sureties, 665. By whom made, 666. (b) See Treasurer. * OFFICERS OF NAVY OR ARMY— Exemptions from taxation, 526. OMNIBUSES— By-law to regulate, 387, 388. ONTARIO LEGISLATURE— Powers of, 10. (/) OPENING ROADS— By-law as to, 445, 448. (See Highways. . ■ > . ,i .r • ORDNANCE LANDS— Not under Council, 422. ORNAMENTAL TREES.— /See'Ev-LA W3— Treks. / ORPHAN ASYLUMS— Exempt from taxation, 625. OVENS.— -See Chimneys. OVERCHA'^GE— Form of complaints of, 685. . ... ' , [ OWNER. — 5'ec Assessors. • ' •'--■ * OYSTERS — By-law respecting houses where sold, 312. PALINGS— Removal of. By-law for, 310. PARSONAGE— Exemption from taxation, 529. PARTNERSHIP — Personal property of, assessment of, 653. PARTY WALLS— By-law to enforce erection of, 359. PAYMENT OVER OF TAXES.— ySee County Purposes- Provikcial Taxjw. PEDLARS. By-law to license, 338. Proviso, 339. PENALTIES. Recovery and enforcement of, 244. By-law without a penalty woidd be nugatory, 244, (r) Imprisonment in default of payment, 245. Power to enforce payment of, 245. («) Power of Justices to award costs, 245. (0 in 9 85 INDEX. PENALTIES— ('co»|i. PENSIONERS. »•"' ' Exemptions from taxation in fiwour of, 526. Under $200 exempt from taxation, 526. See ASSKS.SMENT. PERSONAL PROPERTY. Meaning of, 514. ' - ■ - ' ' Under §100 exempt from taxation, 629. • ?, ;''|'i''i.i How assessed, 551. I or»a of complaint of overcharge, 685. • By agent, 080. See Assessment, ■ PETTY CHAPMEN. By-law to license, 338- Proviso, 339. PLACE OP BUSINESS. Assessment at, 554, 555, 556. Where party has none, 556. PLACES OF WORSHIP— Exempt from taxation, 523. POLICE. Appointment of members thereoT to be by Police Commissioners, 221^ Right of, to arrest without warrant, 267. (««) Oath of office, 268. Taking of oath is obligatory, 268. (m) Commissioners to make police regulations, 268, 268 (««} Constables to be subject to the Bcrrd, 268. Meaning of the word "Constable," 268. (o) Duties of, 269. t i! A /-I INDEX. 853 for trf8i)a8s,' TOUCE--( continued). Reinunuration and contingent expenses, 209. lit medy in case Council neglect to appropriate or pay as rctjuired, 269. (d) Details of expenditure, 269. (c) By-law to establish and maintain, 377. See CoNHTABLB— Hion Baiuff. i'OLIOE COMMISSIONERS. By-laws of, 288. Board of. Of whom composed, 262, 262 (c), 262 (/) Of whom composed in Cities and Towns, 509. Powers of Board as to witnesses, 2G2, 509. May be dissolved by Council, 510. No provision made for compulsory attendance of witnesaea, 2G2. (y) Duties of, under this Act, 202, (li) _' Majority to constitute a quorum, 263. No provision made for appointment of Chainnan, 263. (t) Licensing livery stables, cabs, and vehicles, 263. {h) And establish rates of carriage, 264. By-laws to be passed for these purposes, 264. How such By-laws authenticated and proved, 264. Mode of authenticating an ordinary Municipal By-law, 264. (n) May be enforced by jjenalties, &c., 205. How recovered, 265. , j >; ;,. i . j-.j, ,;■; To appoint Police force, 268. Constitution and number of the force, 266. {««) In Cities and Towns what to consist of, 509. See Police. ,. ^ POLICE MAGISTRATE. ' < „ ; , ■ In Cities and Towns, 258. ,. •/ Persons who may preside over Police Court, 258. (n) ', Days when Police Court' may be closed, 259. Prohibition of execution of warrant on the Lord's day, 259. (g) Clerk of Police Office, his duties, 259. ,„ By whom appointed, 259. (r) Fees or salary of, 259. ^ In what cases Police Magistrate to be appointed, 260. : i ' Presumption that salary is in lieu of fees, 260, [v) y Salaries of, in Cities, 260, 260 (u) In Towns, 260, 260 (m) Police Magistrates in Tf)wn8 of not more than 6,000 inhabitants, 260. Police Magistrates already appointed not affected, 261. ■;-,: > Tenure of office, 261. Appointment to be made in the name of the Queen, 261. (ce) Magistrates in Towns, appointment of, 509. See Arrest — Justice of the Peace— Police. POLICE TRUSTEES. ^Qualifications of, in Police Villages, 492. Oaths of office and qualification, 496. When first meeting to be held, 496. Expenditure of Village, how provided for by, 496. Police Village, for purposes of taxation, is part of Township, 497. («) G' 854 INDEX. POLICE TRUSTEES— frow^wMr'rf;. Wliere Village in two or more Townships, 497. Payment of orders given by Trustees, ko., or inspecting Trustee, 497- Duty of Township Treasurers with regard to surplus moneys, 497. {u) Orders may be given only for work done, 497. Trustees to be Health Officers, 497. Trustees to enforce regulations — For providing ladders, &c., 498. , .^, I, ! ' Fire buckets, 498. As to furnaces, &c. , 498. Stove pipes, Ac, 498. Lights in stables, &c., 498. Chimneys, 498. " Securing fire carried through streets, &c. , 498, 499. Hay, straw, Sec, storage of, 499. Ashes, storage of, 499. Lime, storage of, 499. Charcoal furnaces, .499. Penalties for infringement of regulations, 498, 499. Gunpowder, how to be kept, and penalty, 499. Not to be sold at night, 499. ^ Nuisances, certain, prohibited, 500. /Sef POLICIC VlLLAQKS. '• POLICE VILLAGES. Existing Police Villages continued, 489. Indication and construction of the word "existing," 489. (a) New Police ViUages, how erected, 489. Definition of "Incorporated Village," 489. (b) Present Trustees of, continued, 491. "^ Number of Trustees in such Villages to be three, 491. Qualification of Trustees, 491. Persons not resident in limits of the Village not qualified, 492 (<;) When not six qualified as Trustees, provision, 492. Qualiucation of electors, 492. Place for holding first election, 492. Place for holding subsequent elections. Sec. , 492. County Council must name place for holding first election, and the Returning Officer thereof, 492. No elections to be in taverns, 492. Nomination meeting, when held, 493. Who to preside, 493. If no more candidates than officers, 493. If more candidates than officers, 493. Duration of election, 493. Notice of persons proposed, to be posted by Returning Office i , 493 x) List of voters to be obtained, 494. Clerk of Township to furnish alphabetical list of voters attested, 494. Poll-books to be procured by Returning Officer, 494. ri How kept, 494. Summing up of votes by Returning Officer, 494. Declaring state of poll and candidates elected, 494. Casting vote, in case of ties, by Returning Officer, 494. Term of office of Trustees, 495. IKnRX. 855 POLICE VILLAGES-fcontinued). Returning Officer to return poll-book to Clerk of Township under , oath, 495. *^ Proceedinga at elections &c. , of CounciUors, &c. , to bo followed, 495. Powers of Returning Officers, 495. Filling vaccancies Ijy remaining Trustees, 495. Appointment of inspecting Trustees, 490 Duties of, 490. {p) Who to sue for penalties, Ac., for contravention of Act. 500. Before whom, 500. Conviction ami levy of penalty, 500. Path-master to receive the penalty, 600. (u) Penalty for breach of duty by Trustees, 500. When prosecutions to be commenced, 501 Set EiECTiONS— Police Tkustees. POOR-HOUSES— Exempt from taxation, .525. POPULATION-For Villages, Towns and Cities, 13 (x), 14 (c) tSee Census. ' POP ;HES— By-law for removal of, 310, 365 (y) POSSE COMITATUS. .. , , When Mayor may call out, 287. . • r • ,• What it includes, 287. (v) • r POUNDS. • - " ' :/■'".; ' '--^ By-law to provide, 332. (g) . , . . Selling animals impounded, 333. See. By-laws. < ■ ,, POUND-KEEPERS-By-law to appoint, 289. ' ' ' PREMISES- By-law for inspection of, 361. ■ ; ■ PRISONERS— Detention of, 273. (rf) ' PRIVIES— By-law to regulate, 371. (.7) ' !,- '.'V PRIVY VAULTS-By-law to regulate, 353. ' ' ' "' " " ^" ^ ' ' ' ' " PROPERTY "-Meaning of, 517. 4 ; ! PROSTITUTES-Are vagrants, 285. (p) PROVINCIAL PENITENTIARY-Exempt from taxation, 625. ^^^''^^SZ^Yuntmr^^^-^''''''' "" '"^ ^'^^^'^^^^ ^ t« Non-resident PROVINCIAL TAXES. t,> Payment of money collected for the Province 677 Declaration, 677. (p) " PROVISIONAL COUNTIES. How and when separation of a junior Couty eflFected, 28. , 1 lace of meeting and presiding officer appointed, 28. County Town to be settled, 28. These^provisions designed to prevent necessity of special legislation, 856 INDEX, PROVISIONAL COVSTIES-(co)iti)uie ' "REAL PROPERTY "-Meaning of, 514. See Land. REEVE-Of Town, office to cease when Town withdrawn from County, 19 U) bee Ele"tion— Intekpretation. REGISTRATIOi'^. Of By-laws for opening roads, 452. Of deed of land sold for taxes, 654. See By-laws— Salk of Land for Taxes. REGRATING— By-law to prevent, 348. 858 INDEX. REMISSION— Of taxes. 579. See Assessment. RENTAL OF REAL ESTATE—Exemption from taxation, 529. See Assessment. REPAIR OF HIGHWAYS, 400. (o) See Highways. REPEALING CLAUSES, 501, 502. RESOLUTION— Diflfert from a By-law, 17. (p)' RETURNING OFFICER— In Police ViUagca, 492. Generally — See Elections, REVISION.— iJee Court of Revision. RIVER^Cleanliness of, By-law for, 309. ROADS. By-law to aid construction of, 440. In Towns, to belong to Town after separation from County, 20. Driving on. By-law to regulate, 294. ja ; Repair of, 400. (o) By-law to allow taking stock in, 510. ; -^ Arbitration as io—Se". Arbitkation. See Highways — Interpretation — Township Roads. ROADS AND BRIDGES— Jurisdiction of County over, 413. ROAD ALLOWANCE. '• Possession of unopened, 438. («) Municipal Corporation, in opening a road allowance, muat be correct as to its true position, 439. (t) By-law for opening, notice of, 439. Notice must be in writing to the person in possession, at least eight days before the meeting of the Council, 439. (u) — See Highway3. Conveyance of old, 437. •' When old allowance owned by adjoining proprietors, 436. By-law to close, 445. Sale of old, 436. ROAD COMMISSIONERS. By-law to appoint, 289. By-law to aid, 292, 292 (o) ii.'.;i By-laws permitting Commissioners to make roads, 434. ROAD SURVEYOR— By-law to appoint, 289. ROOFS— Removal of snow from, By-law as to, 362, 363 (u) ROULETTE TABLES— By-law to seize and destroy, 329. ROUGE ET NOIR— By-law to seize and destroy, 329. RUNM ERS — By-law to regulate purchase by, of family necessaries, 348. RULES OF COURT— For the trial of contested elections, and tariff of fees, 696-711. SALE OF ANIMALS, &c., MARKETED- -By-law to regulate, 347. INDEX. 859 correct as SALE OF LAND FOR TAXES. Preliminaries before sale. County Treasurers to furnish Loeal Clerks with lists of lands three years in arrears for taxes, 620. Local Clerks to keep the lists in their offices for inspection, 620. ^ To give copies to Assessors, 620. Duty of Clerk of Local Municipality in regard to lists, 620. (k) Assessor to see if lots occupied, 621. And return lists to Clerk, 621. Lists to be returned as to Towns and Cities withdrawn from Counties, 621. , Duty of Assessor on receipt of copy of list, 621, 621 (l) Assessor's certificate on such list, 622. Form of, 622. ; Local Clerks to certify lands which have become occupied, 622. (t) County Treasurer to certify taxes due on them, 622. Clerk to insert such amount in Collector's roll, 623. (v) When there is not sufficient distress on such lands, 623, 624 (tv) Statement of ai'-ears to be returned by Local Treasurer, and when, 624. The return must contain a description of the lots of lands, &c, 624. (<■) Liability of lands to sale if arrears are not paid, and when, 625, 625 (d) Penalty on Clerks and Assessors neglecting duties as to lands in arrear, 625. How penalty to be levied, 626. Amount of fines, &c., 626. (gr) After such return, local officers not to receive taxes, 626. Collection of arrears. Then to belong to Treasurer of County only, 626 (i), 627 (k) Treasurer of County to receive payment of arrears on lauds of non- residents, 626. (j) Receipts which he may give, and what they should specify, 620. ( j) Municipalities may remit taxes due ou non-resident lands, 027. '• Part of tax not to be received, 026. The whole amoimt to be paid at once, uidess the land is subdivided, 627, 628 (n) If demanded. Treasurer to give a written statement of arrears, 628. Charge for statement, 628. Demand must be made by owner or agent, 628. (o) Lands on which taxes unpaid to be entereil in certain books by Treasurer, 629. Duties of Treasurer where land not assessed, 629. How land sliall be valued, 630. {q) Appeal from valuation, 630. Treasurer to correct clerical errors, 630. (s) Production of pretended receipts, &c., 630. ,. Receipt, even if genuine, is not conclusive evidence of payment. 631. (t) Ten per cent, added to arrears yearly, 631. How calculated, 631. (u) ^ When there is distress upon lands of non-residents. Treasurer may authorize a levy, 032. It is not the duty of Treasurer to search for a distress on lands, 632. (a) Duty of County Treasurer as to distress, 632 (a), 633 (c) Of I 8G0 INDEX. I .SALE OF LAND PX)R TAXES— (conlini Penalty on Overseer neglecting his duty, 720 llecovery of penalties, 720. Overseer to have authority from Council, 721 Municipal Corporation to carry out Act, 72). ' TIME, COMPUTATION OF. ♦' Within eight days," 87. (a) " Within six weeks," 93. (I) TITLES TO^LAND-Owned by infants, &c., how acquired by Corporation, 306. TOLLS. " r By-law granting, 435. ,« r-* -.f,.? On Highways, 432. ^ ' : Jv • -; /Sfee Highways. , • . ; TOWN. Erection of, into City, when, 14 SSti^fveTif " '' "'"' '^"'"^^ '''''' '^ "*^^' ''■ How and when notice shall be published, 15. (d) What notice shall state, 15. Proof to Governor, 15. Proclamation by Governor of new Municipality, 15, 16 Certificate^as to census must be under signature of head of Corporation, Existing debts to be adjusted, 15. Adjustment of County debt, necessity for, 16. (/) Differences to be determined by arbitration, 16 Aame may be changed by Legislature only, 16 (h) Lmits of, 16. J' \ f No power to acquire land beyond their local limits, 16. (j) Erection of Villages mto, 14. ^'" Census of, how and when taken, 14, 14 {a).-See Census. Erec^aon of Villages into, and Umits of, 16. Extension of, 17. (r) When^land added of another County, thenceforth to belong to Town, May be withdrawn from County by By-law 18 Conditions and terms, 18. («) ' 66 ■ iJ 8G6 INDEX. TOWN- -(continued). ^Vhen withdrawn from County, differences to be settled byarbitration, 19. ('opy of agreement or award to be sent to Cloveruor, verilied, 19. Proclamation by Governor, ellect of, 19. Is'eW agreement with County five years after withdrawal, 19. Troperty after witlidrawal, 20. Separation from County not to take effect till confinned by By-law of Town and County, 21. May acquire highways, 399. (ni) TOWN HALL— Exempt from taxation, 523. TOWNSHIPS. How formed, 21. New Townships, beyond limits of incorporated County, may be attached by proclamation, 21. Separation of uniteitrati(»n, 19. r, verilied, 19. Irawal, 19. ned by By-law of , may be attached 22. i'j) )w separated, 22. ship by County event of, 23 (/t), roperty, or both, , 25. (p) (I le, 25. (r) ») J. ■ h<.U; H ■ : y 6. County Council, County, 441 (d), Buch roads, 442. INDEX. 807 T(»VV\SinP nOA\)H~(eontuiiml). Sums (ktonniuod upon to bo paid by Townships, 442. Provi.siou iicoi^.ssary for piiyinoiit (if Coiiiinissioners, 4-t3. {h) When tliu scvc ral Townships interested cannot agree, 443. Arl)itrfitors Ijctwecn TdWnahip in the same and dilTurent Counties 443. (0 Wardens to be Arbitrators, 443. County Jud^'es also to l>e Arbitrators, 41.'*. (j) Meeting of Wardens to be withui 21 days after application, 443. ^Vho to convene, 443. W'liat the Wardens and County Judges shall determine, &c., 444. iiimitation of time given to notify Warden of time of meeting, 444. {I:) Duties of Arbitrators, 444. (m) Boundary lines not assumed by County Council, 418. Meaning of Townsiiip line, 418. {7) Townshij) boundaries being also County boundarie.'?, 418. J)if!'erent policy prevails as to bridges, 418. (»•) iSVe Hkihw.vvs. TIIAMWAVS— By-laws to authorize, 488. TRANSTEXT TRADERS-By-law to license, 373. TRAVETJd':ilS— By-law to prevent hotel, &c., runners ipiportuning, 355. TBEASUBER. To prepare an annual list of persons in default for taxes, 145. Provi.'io on dismissal from office, 145, 145 {e) To give a bond with sureties, 6(55. {a) Penalty for non-performance of duty, 660. (c) To account for Crown moneys, 679. '.. Bound to account for moneys collected by them, 678. Penalty for fraudulent assessment, 6()9. {h) Responsible to Coimty, &c., 679 (a), 680 Bonds to apply, 680. Bonds to ai)ply to school moneys, &c. , 680. City, &c., responsible for defaiilt of Chamberlain (Treasurer), &c., (iSO. Notiics. Penalty for tei'.ring down, &c., 680. Illegality of direct imprisonment, &c., 681. {o u»; Erection of, into Towns, 14, 14 (a), 16 Sale of roads in, 451. ' i Liability of, detached from one County and annexed to another, 503 VEGETABLES-By-law to regulate sale of, 347. VENDING IN STREETS-By-Iaw to prevent, 346 VESSELS. By-law to regulate, in harbour, 3)0 By-law to regulate such as have articles exposed for sale 349 See Incorporatkd Villages. ' ^^■ VOLUNTEERS-Whea exempt from statute labour, 699. See Assessment. VOTERS' LISTS. Who may vote, 761. , Assessor to make enquiries, Ac, 768 Clerk to state in voters' list persons qualified by income 758 Copies to be posted in Clerk's office, &c., 758 Certain persons who must post up copies, 758, 759 Clerk to publish notice of ifrst posting up by him. 759 In case of complaints of error in the list, 760 Compelling attendance of witnesses on revision of list 760 Penalty on non-attendance of the person whose 4ht is questioned 761 Costs^.ccasioned by errors may be^rdered to be pTd br^m^^ttSl; '"TLttTur m ''"'**^' '""^ "" ^"^ '''''^'' - vision, liable Penalty on Clerk for errors or omissions, 762 Penalty on Assessor for wrongfully assessing' or omitHn,, 7fi«> Colourable transfer of propert^^ iu order to confer voe 762 Act to apply to this year's list, 763. WARDEN. No provision as to time he shall hold office, 81 {a) seai ii T '' ^^^'=*^«° *° b« fi^^d bete member takes hi. Casting vote in case of tie, 82, 82 (k) Resignation of office by, 90. How vacancy filled, duty of Clerk 90 I I'v 870 INDEX. WARDS. Division of Cities and Towns into, 16. Division into, by Governor, how many allowable, 1(J. None in Incorporated Villages, 17. (in) New division of, in Towns and Cities, 17. Councillors, mxmber of, neceasar}' to pass a resolution, 17. (h) Time to t'ivide expressly limited, 17. (o) Change of; without disturbing remaining wards, 17. iq) By-law for dividing into, 311. - .■■■■■:, WARRANT. For sale of lands- WATER. -See Sale of Land for Taxk.s. By-law to regulate supply of, 342, , By-law to lay pipes for, 379. When rate for, to be levied, 38 1 . , WATER COMPANY. ' By-law to authorize laying pipes by, 323, 323 (/) By-law to authorize Municipality to take stock in, 324. * Or lend money to, 324. (,7) Or guarantee money borrowed by, 324. (g) Electors assenb to such By-law required, 324. Head of Corporation in some cases ex officio director of, 324. WATER-COURSES. By-law for deepening, 454. By-law as to, 318. . , • By-law to prevent obstruction of, 392. ,1 Expense of, 393. ' Penalties, 393. See Drainage. WATER WORKS. By-law for construction of, requisites of construction, 380. I .J Poll to be had before passed ; to be passed in three months, 381. See Gas. WAX-WORK SHOWS— By-law regulating, 320. WEEDS— Destruction of. By-law as to, 318. Seo Thistles. WEIGHTS AND MEASURES. By-law as to appointing Inspector of, 324. As to inspecting, 325. For seizing false, , line 3, erase the word "the" and substitute "some." Page 186, at the end of note j, add "see further, In re McKinr^-on and Caledonia, 33 U. C. Q. B. 502." i ■< ADDITIONS AND CORRECTIONS. Pags 194, note I, Jor "resolutions,'.' used in the third and fifth lines, Kti7tst.itute " restrictions." Page 242, note e, at the end, add " nor to prevent fi County Magistrate taking a recognizance in an election case. In re Hamilton, 10 Can. L. J. N. S. 170." Page 278, note d. at the end, add " A public officer suffering loss througli the failure of the Municipal Council to provide him proper office accommodation, has an action against the Municipal Corporation. Lees V. Garleton, U \J. C. Q. B. 40'.)." Page 288, note, line 16, after " Orfordv. Bailey, l^Grant, 276," add "see further. Brown v. McNah, 20 Grant, 179." Page 319, note w, line 13, after the vrord "footing," add "see Bnrhanari V. Young, 23 0. P. 101 ; aWson v. Korth Grey R. Co., 33 U. C. Q. 1' 128." Page 343, note b, at the ml for "6 M. & W. 607," suhstit>fie "6 H. & N 607." Note c, line 6, after "17 N. Y. 449," add " Attorney- General v. Gamhridgc, L. R. 6 fl. L. C. 303." ■v3f'U>.H" 94 7638 4 and fifth lines, Dunty Magistrate amilton, 10 Ciin. ing loss througti iin proper office pal Corporation. ,276," add "see " see Buchanan R Co., 33 U. 0. it'ite "0 H. & N nii"t/- General v. '* (f»r.T