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Act '62, s. 10.

trict at the meeting and time and in the manner and subject to the same qualification and the same power of appointment in the justices in the event of no election taking place, or in the event of a vacancy, at, in, and subject to which a person or persons to serve the office of surveyor would have been chosen or appointed

if this Act had not passed (d): The justices shall in their provisional order make

provision for the election of a waywarden or waywardens in places where no surveyor or surveyors were elected previously to the place forming part

of a highway district (e): A waywarden shall continne to act until his suc

cessor is appointed, and shall be re-eligible.

(a) This applies to every township or hamlet, &c., within the parish maintaining its own highways, unless combined by an order under sect. 7 (See Reg. v. JJ. of Yorkshire, W. R., 29 J.P. 440; 34 L. J. m, 227, note (h), ante, p. 85, and Ex parte Kay, 29 J. P. 259.)

(6) In Reg. v. Cooper, L. R. 5 Q. B. 457 ; 35 J. P. 37, the election was held to be incomplete in consequence of a failure to take the poll arising from a notice, made in mistake, that one of the candidates declined to stand.

(c) Before taking his seat, a waywarden must produce a certificate of having been duly elected, &c., signed by the chairman of vestry, &c., and he may sit for more places than one, but is only entitled to one vote (27 & 28 Vict. c. 101, s. 19). He is prohibited from contracting for the repair of roads, or for any other work to be executed within his own district (26 & 27 Vict. c. 61, s. 1); but may contract for the supply or cartage of materials, with the license of two justices (27 & 28 Vict. c. 101, s. 20), and with the consent of the inhabitants, in vestry, he may appoint a paid collector of highway rates (Id. s. 31). He continues in office till the 30th of April, in the year following that in which he was elected, and on that day his successor comes into office (41 & 42 Vict. c. 77, s. 11).

(d) These matters are provided for by 5 & 6 Will. 4, c. 50, ss. 6, 7, 11.

(e) By 27 & 28 Vict. c. 101, s. 10, where, previously to the passing of the provisional order forming a highway district, no surveyors or waywardens have been elected within any highway parish in that district, and where the mode of electing a way. Act '02, s. 10.warden or waywardens in such parish is not provided for by this Act, or the Highway Act, 1862, the justices shall by their provisional and final orders constituting the district, or by any subsequent provisional and final orders, make provisions for the annual election of a waywarden or waywardens for such parish.

quences of

board.

CONSEQUENCES OF FORMATION OF HIGHWAY

DISTRICT (f). 11. At and after the first meeting in any highway Copsea district of the board of such district the following establishconsequences shall ensue:

higaways All such property, real and personal (g), including

all interests, easements, and rights in, to, and out
of property, real and personal, and including
things in action, as belong to or are vested in, or
would but for this Act have belonged to or been
vested in, any surveyor or surveyors of any
parish forming part of the district, shall pass to
and vest in the highway board of that district for
all the estate and interest of such surveyor or sur-
veyors as aforesaid, but subject to all debts and

liabilities affecting the same :
All debts and liabilities incurred in respect of any

property transferred to the highway board may be
enforced against the board to the extent of the

property transferred :
All such powers (h), rights, duties, liabilities, capa-

cities, and incapacities (i) (except the power of
making, assessing, and levying highway rates), as
are vested in or attached to, or would but for this
Act have become vested in or attached to, any
surveyor or surveyors of any parish forming part
of the district, shall vest in and attach to the
highway board (k):

Act’62, s. 11.

All property by this Act transferred to the board

shall be held by them upon trust for the several parishes or places now maintaining their own highways within their district to which such property belongs, or for the benefit of which it was held previously to the formation of the district.

(f) As to the consequences of a rural sanitary authority exer. cising the powers of a highway board, see 41 & 42 Vict. c. 77 s. 5.

(9) This includes all books, papers, writings and accounts, materials, tools and implements, &c., mentioned in 5 & 6 Will. 4, c. 50, ss. 41, 42.

(k) This section, combined with the 17th section, infra, enables a highway board to license a gas company to open the highway and lay down gas pipes; and to recover the sum agreed to be paid for the grant of such license (Edgeware Highway Board v. Harrow Gas Company, L. R. 10 Q. B. 92, 38 J. P. 806).

(i) By sect. 43 (3), infra, the board, for all the purposes of the Principal Act, except that of levying highway rates, are deemed to be the successor in office of the surveyor of every parish within the district. But by 27 & 28 Vict. c. 101 s. 20, the 46th section of that Act, 5 & 6 Will. 4 c. 50 (as to contracts for purchasing, getting, and carrying materials, &c.), is not to apply to the highway board of, or to any parish within, any highway district.

(k) But the outgoing surveyor's powers continue so far as relates to the recovery of any outstanding rate (R. v. Bluffield, 29, J. P. 245). It may also be mentioned that any agreement or contract made or entered into pursuant to the Highway Acts for or relating to the making, maintaining, or repairing of highways is subject to a 6d. stamp (33 & 34 Vict. c. 97 s.

and sched).

APPOINTMENT OF OFFICERS.

Power to highway board to appoint officers.

12. The highway board of a district shall, at their first meeting or at some adjournment thereof, by writing under their seal (1) appoint a treasurer, clerk, and district surveyor (m); they may also at any meeting, if they think fit, appoint an assistant surveyor; they may from time to time remove any of such officers, and appoint others in the room of such as may be so removed, or as may die or resign; they may also, act '62, s. 12. out of any moneysin their hands, pay such salaries as they think reasonable to the clerk and district and assistant surveyor, and to the treasurer, if they think necessary : Provided that before the treasurer enter upon his office the board shall take sufficient security (n) from him for the due performance of the duties of his office; but no appointment, except the first, to any of the offices specified in this section, shall be made unless notice in writing has been sent to every member of the

board (0).

66

an

(1) By 27 & 28 Vict. c. 101, s. 30, the appointment of any officer of the board may be made by a minute of the board, signed by the chairman and countersigned by the clerk of the board, and any appointment so made is as valid as if it were made under the seal of the board.

Nothing is said about stamp duty. But as the Stamp Act, 1870 (33 & 34 Vict. c. 97, s. 3 and sched), only imposes a duty on

Admission and appointment or grant by any writing,it would seem that an appointment made merely by a minute of the board, and not by any separate written instrument delivered to the officer, is not subject to stamp duty at all. This does not, however, apply to the treasurer's security, which will be chargeable as a bond not specifically charged with any duty, or as a deed not described in the schedule, according to the nature of the security.

(m) Two or more boards may unite in appointing and paying the salary of a district surveyor (41 & 42 Vict. c. 77, s. 6).

(n) According to R. v. Patterson, 4 B. & Ad. 9, it seems that the taking security is not a condition precedent to the treasurer's enjoyment of the office, or to his liability to account for moneys received by virtue of his office, but that the appointment is complete without such security being given.

(0) If the board make default in appointing either a treasurer, clerk, or district surveyor, within three months after the day fixed for the first meeting, or after a vacancy, the quarter sessions may appoint, and fix the salary to be paid (27 & 28 Vict. c. 101, s. 45).

13. Not more than one office of treasurer, clerk, and Two Offices district or assistant surveyor of the same highway held by the

not to

same person.

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Act ’62, s. 13. board shall be held by the same person, or by persons

in partnership with each other, or by persons in the relation of employer and clerk, agent, or servant, one of the other, or of the partner of either of them; and if any person accepts or holds the office of treasurer, clerk, or district or assistant surveyor, contrary to this provision, he shall be liable to a penalty not exceeding £50 (p).

(p) There is a similar provision in 9 & 10 Vict. c. 95, s. 28, against conjoining the offices of clerk, treasurer, and bailiff of a county court, and the same penalty attached to the offence by sect. 30. As to the general principle regulating the effect of appointments to incompatible offices, see R. v. Patterson, 4 B. & Ad. 9.

Duties of treasurer.

14. The treasurer of each highway board shall receive, and hold to the account of such board, all moneys paid to or for the use of such board, and shall make payments thereout under orders of such board, and shall once in every three months, on or at such days or times as the board may direct, or oftener if required by the board, make up an account of all moneys received and paid by him, and deliver the same to the clerk of the board.

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Duties of clerk.

15. The clerk of every highway board shall in person, or by such deputy (9) as may be allowed by such board, attend all meetings of the board, and shall conduct the correspondence thereof, and enter and keep in books to be provided for the purpose, notes, minutes, or copies, as the case may require, of the meetings, acts, orders, resolutions, proceedings, and correspondence of such board, and shall keep all books, papers, and documents committed to his charge, and shall perform all such other duties as the board may direct.

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