be so removed, or as may die or resign; they may also, Act '62, s. 12. out of any moneys in 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 (o). (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. an 66 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 com. plete 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). not to be 13. Not more than one office of treasurer, clerk, and Two Offices district or assistant surveyor of the same highway held by the Act '62, s. 13. board shall be held by the same person, or by persons same person. Duties of treasurer. Duties of clerk. 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. 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. 15. The clerk of every highway board shall in person, or by such deputy (q) 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. (9) This does not enable the board to appoint a deputy-clerk, Act '62 s.15. but merely authorizes the clerk to attend and conduct correspondence, &c., by deputy, provided such deputy be allowed by the board. In complaints for non-repair of highways the board may appear before the justices at petty sessions by their clerk (sect. 18, infra), and any summons, &c., required to be served upon the board, may be given personally to him (sect. 42 (6) infra). Duties of 16. The district surveyor shall act as the agent of the board in carrying into effect all the works and Surveyor. performing all the duties by this Act required to be carried into effect or to be performed by the board, and he shall in all respects conform to the orders of the board in the execution of his duties (r), and the assistant surveyor, if any, shall perform such duties as the board may require, under the direction of the district surveyor. (r) The board may appear by their district surveyor before justices at petty sessions on complaints for non-repair of highways (sect. 18, infra), and any summons, &c., required to be served upon the board, may be given personally to him (sect. 42 (6), infra). He is exempt from turnpike tolls when executing or proceeding to execute his duties (sect. 37, infra), but is liable to action for an unlawful act, although done in obedience to the orders of the board (Mill v. Hawker, L. R. 9 Ex. 309; 10 Ex. (Ex. Ch.) 92, supra, p. 91, note (y). WORKS AND DUTIES OF BOARD maintain 17. The highway board shall maintain in good Boardto repair the highways (s) within their district, and highways. shall, subject to the provisions of this Act, as respects the highways in each parish within their district, perform the same duties, have the same powers, and be liable to the same legal proceedings as the surveyor of such parish would have performed, had, and been liable to if this Act had not passed. It shall be the duty of the district surveyor to submit to the board at their first meeting in every year an estimate of the expenses likely to be incurred during the ensuing year for main H Act '62, s. 17. taining and keeping in repair the highways in each Proceedings where roads are out of repair. parish within the district of the board, and to deliver a copy of such estimate as approved or modified by the board so far as the same relates to each parish to the waywarden of such parish. (s) The board may repair any driftway or private carriage or occupation road which has been declared to be a public highway under sect. 36 (infra), and may contract to repair highways for the repair of which other parties are liable (27 & 28 Vict. c. 101, s. 22). This section, too, combined with the 11th (supra), enables the 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). The board are also liable to contribute to the repair of any turnpike road within their district under the same circumstances under which an order may be made on the parish surveyor in pursuance of 4 & 5 Vict. c. 59 (26 & 27 Vict. c. 94, s. 1). They are also liable to maintain so much as lies within their district of any highway which within seven years previous to 9th August, 1870, or since that date, has ceased to be a turnpike road (33 & 34 Vict. c. 73, s. 10). They may also, if they think fit, either repair or contribute to the repair of a turnpike road within their district, notwithstanding that no order of contribution may have been made upon them in pursuance of 26 & 27 Vict. c. 94, s. 1 (35 & 36 Vict. c. 85, s. 14). And, for the purpose of facilitating the abolition of tolls, they may agree with the trustees of any turnpike road within their district to take upon themselves the maintenance and repair of such road, or so much of it as is within their district (35 & 36 Vict. c. 85, s. 15). Moreover, where by any Annual Turnpike Acts Continuance Act it is or shall be provided that no money shall be expended in the repair of any turnpike road, such turnpike road shall be deemed to be a highway, and shall be repairable as such; and if it pass through any highway district, the cost of maintaining such highway shall be charged on the district fund (37 & 38 Vict. c. 95, s. 10.) 18. Where complaint is made to any justice of the peace that any highway within the jurisdiction of the highway board is out of repair, the justice shall issue two summonses, the one addressed to the highway .board and the other to the waywarden of the parish liable to the repair of such highway, requiring such board Aet '62, s. 1S. and waywarden to appear before the justices at some petty sessions, in the summons mentioned, to be held in the division where such highway is situate; and at such petty sessions, unless the board undertake to repair the road to the satisfaction of the justices, or unless the waywarden deny the liability (t) of the parish to repair, the justices shall direct the board to appear at some subsequent petty sessions to be then named, and shall either appoint some competent person to view the highway, and report to them on its state at such other petty sessions, or fix a day, previous to such petty sessions, at which two or more of such justices will themselves attend to view the highway. At such last-mentioned petty sessions, if the justices are satisfied either by the report of the person so appointed, or by such view as aforesaid, that the highway complained of is not in a state of complete repair, it shall be their duty to make an order on the board limiting a time for the repair of the highway complained of; and if such highway is not put in complete and effectual repair by the time limited in the order, the justices in petty sessions shall appoint some person to put the highway into repair, and shall by order direct that the expenses of making such repairs, together with a reasonable remuneration to the person appointed for superintending such repairs, and amounting to a sum specified in the order, together with the costs of the proceedings, shall be paid by the board; and any order made for the payment of such costs and expenses may be removed into the Court of Queen's Bench, in the same manner as if it were an order of general or quarter sessions, and be enforced accordingly (u). |