principle would not extend to a case where it was practically certain that more than £50 would be payable under a contract, though there was no express stipulation for the payment of such a sum, and nothing in the express terms of the contract itself showing that more than £50 would be payable.

In Melliss v. Shirley Local Board (1885), 14 Q. B. D. 911, 54 L. J. Q. B. 408, 52 L. T. 544, the plaintiffs were employed by the defendant board to perform certain work. The plaintiffs executed part of the work, exceeding in value £50, and then required the defendant authority to seal the contract. This the authority did, thinking it for the benefit of the ratepayers that the contract should be accepted. It was held that the contract thus sealed was binding on the defendants. The case went to the Court of Appeal, and was there reversed on another ground (16 Q. B. D. 446, 55 L. J. Q. B. 143, 53 L. T. 810, 34 W. R. 187), no opinion being expressed as to whether or not the contract was in compliance with sect. 174.

SECTION IX. Bye-laws and Committees.

No. 22. SLATTERY v. NAYLOR.

(P. c. 1888.)

RULE.

A BYE-LAW to be valid must be reasonable; but where the power is exercised by a representative body, constituted for public purposes only, the bye-law will be supported if judged to be reasonable in a broad sense; that is to say, if it is such as may be presumed to have been made upon a fair consideration of the purpose for which the power is given.

Slattery v. Naylor.1

[On appeal from the Supreme Court of New South Wales.]

13 App. Cas. 446-454 (s. c. 57 L. J. P. C. 73; 59 L. T. 41; 36 W. R. 897).

Law of New South Wales. - Municipalities Act, 1867, s. 153. - Validity [446] of Bye-law. - Unreasonableness.

Held, that a bye-law made in pursuance of sect. 153 of the Municipalities Act, 1867, empowering municipal councils to make bye-laws for regulating the

1 Present: Lord HOBHOUSE, Lord HERSCHELL, Lord MACNAGHTEN, Sir BARNES PEACOCK, and Sir RICHARD COUCH.

No. 22. Slattery v. Naylor, 13 App. Cas. 446, 447.

interment of the dead is not ultra vires, by reason of its prohibiting interment altogether in a particular cemetery, and thereby destroying the private property of the owners of burial-places therein.

Quare, whether and under what circumstances bye-laws can be set aside as unreasonable.

Appeal from a judgment of the Supreme Court (Nov. 23, 1885) affirming a conviction by a justice of the peace for the colony sitting at New Town, near Sydney.

The facts and proceedings are stated in the judgment of their Lordships.

*

Sir Horace Davey, Q. C., and Leverson, for the appellant, contended that the conviction was wrong. Both Courts below deemed themselves to be bound by the decisions in Ex parte Flack, 1 N. S. Wales L. R. 27, and Brooks v. Selwyn, 3 N. S. Wales L. R. 256, although two of the Judges expressed dissatisfaction with them. Reference was made to the Municipalities Act (31 Vict., No. 2), ss. 117, 118, and 153. Power was given under sect. 153 to make byelaws regulating the interment of the dead; but that re[*447] lated to public cemeteries, as mentioned in the two former sections, and did not extend to private cemeteries. The cemetery in question was a private one existing at the date of the Act. Further, the bye-law was ultra vires as prohibiting burials altogether in the cemetery in question, and thereby destroying private rights, viz., of those who possessed burial-places therein. Reference was made to Western Counties Railway Company v. Windsor and Annapolis Railway Company, 7 App. Cas. 178, and the cases there cited; Wortley v. The Nottingham Local Board, 21 L. T. (N. S.) 582; Heap v. The Burnley Union, 12 Q. B. D. 617; Wanstead Local Board of Health v. Wooster, 38 J. P. 21. Further, the bye-law was unreasonable. It fixed unreasonable limits within which no burials may take place; the district in which the cemetery was situated was not populous, and the bye-law was more extensive than was required for the protection of the public. Reference was made to Queen v. Wood, 5 E. & B. 49; The Master and Company of Frame-work Knitters v. Green, 1 Ld. Raym. 113.

Jeune, Q. C., and C. E. Jones, for the respondent, contended that the conviction was right. The bye-law was not ultra vires, because regulation included prohibition where the circumstances justified it, that is, where prohibition was necessary or incidental to regulation. The Burnley Union case cited on the other side dealt with

a superficial nuisance merely, and did not apply to this case, while it was contended that the Wanstead case was in favour of the respondent. As to unreasonableness, the English Burial Acts from 1850 to 1854 imposed a limit of either two hundred or one hundred yards in a populous country where land was not easily obtained. Credit must be given to the judgment of the local council as to the requirements of its municipality, more particularly when abundant opportunity has been given and neglected for opposing it, either before the town council, whose meetings are public, or by petitions to the executive government, or to the Legislature.

Sir H. Davey replied.

*The judgment of their Lordships was delivered by Lord HOBHOUSE:

[* 448]

The sole question in this case is whether a bye-law under which the appellant has been convicted and fined is valid or invalid. The bye-law was passed by the municipal council of the borough of Petersham on the 2nd of December, 1864, under the provisions of the Municipalities Act, 1867. The respondent is the inspector of nuisances for the borough. The appellant appealed to the Supreme Court, and the convicting magistrate stated a case, which contains the facts on which the decision of that Court was passed. It affirmed the decision of the magistrate, and their Lordships are now asked to decide that the affirmance was wrong.

The material portion of the bye-law is in the following terms: "No corpse shall be interred in any existing cemetery now open for burials within the distance of one hundred yards from any public building, place of worship, school-room, dwelling-house, public pathway, street, road, or place whatsoever within the borough."

A similar provision was made with respect to cemeteries afterwards opened.

Sect. 153 of the Municipalities Act provides that the council may from time to time make bye-laws for (among other things) regulating the interment of the dead. The bye-law was published in the "New South Wales Government Gazette " of the 19th of January, 1885, where it is stated to have been confirmed by His Excellency the Governor, with the advice of the executive council.

On the 27th of June, 1885, the appellant interred the corpse of his wife in his own family burial-place in the Roman Catholic cemetery in Petersham. This cemetery had, from the year 1862

No. 22. Slattery v. Naylor, 13 App. Cas. 448, 449.

onwards, been used for the interment of members of the Roman Catholic faith; and in the year 1879 the appellant purchased a portion of it as a permanent burial-place for members of his family. No part of the cemetery is distant more than one hundred yards from a place of worship, school-room, dwelling-house, public street, road, or place within the borough. It is admitted that the place is not a populous one.

[* 449]

*The Supreme Court was unanimous in its decision. But of the three Judges, only the Chief Justice, Sir JAMES MARTIN, agreed with the decision on principle. The other two, Justices FAUCETT and INNES, would have decided the other way if they had not thought themselves bound by two previous decisions. on similar bye-laws of other municipalities under the same statute. Under these circumstances the case was a proper one for appeal to Her Majesty in council.

The appellant takes three objections to the validity of the byelaw: first, that it is ultra vires because it destroys private property; secondly, that it is ultra vires because the council have only power of regulating interments, whereas in the cemetery in question they have wholly prohibited them; and, thirdly, that it is unreasonable. These objections must be judged by reference to the provisions of the Municipalities Act, the material sections being those numbered 153 and 158. The former gives to the council the power of making bye-laws to provide for the health of the municipality, as well as to regulate the interment of the dead.

In support of the first objection, their Lordships have been referred to cases in which Acts of the Legislature would, according to their full literal meaning, operate to take away private property without compensation; and in which Courts of justice have, on account of the extreme improbability that the Legislature should have intended such a thing, sought for some secondary meaning to satisfy its expressions, such as was the case of the Western Counties Railway Company v. Windsor and Annapolis Railway Company, 7 App. Cas. 178, before this board. But a statute cannot be so construed if it shows an intention to override the private rights in question. The object of the present statute is to establish regulations for the common advantage of persons who have come to live in the same community, in a great number of matters affecting their daily life, and that cannot be done except by interference with many actions and many modes of enjoying property, which,

No. 22. Slattery v. Naylor, 13 App. Cas. 449, 450.

but for such regulations, would be lawful and innocent. It is difficult to see how the council can make efficient bye-laws for such objects as preventing fires, preventing and regulating places of amusement, regulating the killing of cattle and [* 450] sale of butcher's meat, preventing bathing, providing

for the general health, not to mention others, unless they have substantial powers of restraining people, both in their freedom of action and in their enjoyment of property.

The interment of the dead is just one of those affairs in which it would be likely to occur that no regulation would meet the case except one which wholly prevented the desired or accustomed use of the property. It may well be that a plot of ground, having been originally far from habitations, and suitably used as the burying-place of a family or a religious society, has been reached by the growing town, and has so become unsuitable for the purpose. In such a case a power to regulate would be nugatory unless it involved a power to stop the burials altogether. Their Lordships hold that the bye-law in question is not ultra vires, because in certain circumstances it may have, as in Mr. Slattery's case it unfortunately has, the effect of taking away an enjoyment of property for which alone that property was acquired and has been used.

The considerations applicable to the second objection have, to a great extent, been anticipated by the answer to the first. It is true that, in regulating the interment of the dead, the bye-law makes the cemetery useless for its former purpose. This, it is argued, is not regulation but prohibition, and it is pointed out that, with regard to several objects of the bye-laws, prevention and suppression are expressly allowed by the Act, whereas in the case of interment only regulation is allowed. One illustration of regulation proper, as distinct from prohibition, was found in another bye-law laying down rules as to the number of corpses in a grave and their depth below the surface. Now if, at the passing of the bye-law, a grave was already so full that it could not, consistently with the bye-law, receive another corpse, the bye-law would amount to a complete prohibition of burial, although the owner of the grave may have contemplated that in death he should be laid by those whom he loved best in life.

To regulate the place of burial is certainly one of the most important points in regulating burials for the health of a com