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Act '62, s. 37. shall apply to the case of the exemptions conferred by
38. No justice of the peace shall act as such in any of justices. matter in which he has already acted as a member of
the highway board, and in which the decision of such board is appealed against (s),
(s) This section is virtually repealed by 27 & 28 Vict. c. 101, s. 46, so far as relates to any justice who is merely an ex officio member of a highway board, and acting as a justice at any petty or special or general quarter sessions.
Power to alter highway districts.
39. Any highway district formed under this Act may from time to time be altered by the addition of any parishes (t) in the same or in any adjoining county, or the subtraction (u) therefrom of any parishes (w), and new highway districts may be formed by the union of any existing highway districts, in the same or in any adjoining county, or any parishes forming part of any existing highway districts, or any highway district may be dissolved; but any such alteration of existing districts, or formation of new districts, or dissolution of any district, shall be made by provisional and final orders of the justices; and all the provisions of this Act with respect to the formation of highway districts and provisional and final orders of justices, and the notices to be given of and previously to the making of such orders, and all other proceedings relating to the formation of highway districts, shall, in so far as the same are applicable, extend to such alteration of existing or formation of new districts, or dissolution of districts, as is mentioned in this section; and in addition thereto provision shall be made, if necessary, in any orders of justices made under this section for the adjustment of any matters of account arising between parishes or parts of districts
of the exercise of the powers given by Act '02, s. 30. this section. Where any parish is added to or any district united with any district in another county, the final order of the justices of the county in which such parish or district is situate shall not be confirmed by them until they shall have received the approval (x) of their provisional order for such addition or union from the justices of the county in which the district is situate to or with which such addition or union is to be made. Where any highway district is dissolved, or where any parish is excluded from any highway district, the highways in such district or parish shall be maintained, and the provisions of the Principal Act in relation to the election of surveyors and to all other matters shall apply to the said highways, in the same manner as if such highways had never been included within the limits of a highway district (y).
(t) Quære whether this section applies to “annexing” the outlying part of a parish under sect. 33, ante. It would seem not, as the word “parishes,” it is presumed, is confined to entire parishes, and does not include part of a parish.
(u) See Reg. v. JJ. of Cumberland, 42 J. P. 361, as to the part which an ex-officio member of a highway board may take in opposing an order for separation.
(w) By 27 & 28 Vict. c. 101, s. 14, this section is extended to the “separation ” of any townships, &c., separately maintaining their own highways, and consolidated by any previous order of justices, and to an alteration in the number of waywardens of any parish. Parishes, therefore, are to be “ subtracted,” and consolidated townships, &c., “ separated,” from the district. As to the costs of parishes applying to be removed, see 27 & 28 Vict. c. 101, s. 15.
(w) This approval must be testified by provisional and final. orders of the justices. See 27 & 28 Vict. c. 101, s. 14.
(y) Where an alteration is made in part only of a highway district, the residue of the district is not affected thereby, but continues subject to the Highway Acts in the same manner as. if no such alteration had been made (27 & 28 Vict. c. 101, s. 17).
in case of failure of board to hold first meeting.
Act '62, s. 40. 40. If any highway board make default in holding
shall not thereupon become disqualified from acting,
order so made shall be deemed to be an order capable of being removed into the Court of Queen's Bench, in pursuance of the Act 12 & 13 Vict. c. 45, and may be enforced accordingly (a), and the costs of any application to the court of quarter sessions in pursuance of this section shall be defrayed out of the district fund of the board.
(z) This refers to sect. 6(5), repealed by 27 & 28 Vict. c. 101, 8. 10, which makes other provisions in lieu of that sub-section. As the latter Act is to be construed as one with the former (27 & 28 Vict. c. 101, s. 2), this provision applies to the failure to hold the first meeting under the latter Act, in the same manner as before such repeal it applied to the failure to hold the meeting pursuant to the former Act.
(a) The removal will be by order of the court or judge at chambers, under 12 & 13 Vict. c. 45, s. 18, and 36 & 37 Vict. c. 66, ss. 16, 34. See Foot's Commentary on the Quarter Sessions Procedure Act, p. 67, where both the procedure and practice are explained.
41. (6) Any parish or part of a parish included in adopi Local a highway district may adopt the Local Government Government Act in the same manner and under the same circum
stances in and under which it might have adopted the same if it had not been included in such district; and upon such adoption being made such parish or part of a parish shall cease to form part of such district, subject nevertheless to the payment of any contribution that may at the time of such adoption be due from such parish or part of a parish to the highway board.
(6) This section is virtually repealed by the repeal of 21 & 22 Act’62, s.41. Vict. c. 98, by 38 & 39 Vict. c. 55, s. 343, and the consequent abolition of the power of adopting the Local Government Act (see also 38 & 39 Vict. c. 55, s. 5). In Denver v. Kingston Highway Board, 35 J.P. 696, the board were held liable for the cost of repairs executed during the period between the passing of the resolution to adopt the Local Government Act, and the date of its taking effect under 21 & 22 Vict. c. 98, s. 20.
APPLICATION OF PRINCIPAL Act.
42. The following regulations shall be observed of Principal with respect to the construction of the Principal Act Act and this and this Act:1. This Act shall be construed as one with the Princi
pal Act so far as is consistent with the provi
sions of this Act (c):
is enacted that a surveyor may be appointed
trict formed under this Act:
is enacted that the surveyor or surveyors at the
under this Act:
the Principal Act, providing for the formation
Act'62, s. 42.
not apply to any parish within any district
formed under this Act: 5. The penalty imposed by sect. 20 of the Principal
Act on the surveyor for neglect of duty shall not apply to a highway board constituted under
this Act: 6. Any summons or notice, or any writ or any pro
ceeding, at law or in equity, requiring to be served upon (c) the board, may be served by the same being left at or transmitted through the post in a pre-paid letter directed to the office of the board, or being given personally to the district surveyor or clerk of the
board : 7. The 35th section of the Principal Act, whereby
it is provided that the ratepayers of any parish may divide amongst themselves the carriage of materials in manner therein mentioned, shall not apply to any parish within any district
formed under this Act: 8. The 39th, 40th, 43rd, 44th and 45th sections of
the Principal Act relating to the accounts of surveyors, shall not apply to the highway board of any district formed under this
Act. (c) Consequently property which was exempt from the pay. ment of bighway rates under 5 & 6 Will. 4, c. 50, s. 33, still continues exempt when the parish is included in a highway district (see Reg. v. Heath, L. R. 1 Q. B. 218, 30 J. P. 82, and Carter v. Wareham, 30 J. P. 341).
(d) As to service of notices, &c., issued by the board, see 27 & 28 Vict. c. 101, s. 26.
Relative duties of outgoing surveyors and highway board,
43. On the formation of a highway district the following regulations shall be enacted with respect to the surveyors and the highway board :
1. No surveyor shall be appointed under the Prin.