Sect. 10 (1).

any

conferred by or in pursuance of statute and appear to relate to matters arising within the county, and to be of an administrative character: also

(b.) Any such powers, duties, and liabilities arising within the county, of any commissioners of sewers, conservators, or other public body, corporate or unincorporate (not being the corporation of a municipal borough or an urban or rural authority, or a school board, and not being a board of guardians), as are conferred by or in pursuance of any statute;

and such Order shall make such exceptions and modifications as appear to be expedient, and also such provisions as appear necessary or proper for carrying into effect such transfer, and for that purpose may transfer any power vested in Her Majesty in Council: As to the making of Provisional Orders, see s. 87, post.

Without attempting to give an exhaustive list of the powers of Government Departments which might be transferred, the following are the principal of such powers and duties :--

Privy Council.-Powers (now transferred to the Board of Agriculture) under the Diseases of Animals Act, the Destructive Insects Act, etc.

Secretary of State.-Powers under the Artizans Dwellings Acts, Burial Acts, etc. Board of Trade.-Powers under the Pier and Harbour Acts, the Fishery Acts, Electric Lighting Act, Gas and Waterworks Acts, Merchant Shipping Acts, Tramway Acts, etc.

Local Government Board.-Powers under the Public Health Acts, Baths and Washhouses Acts, Artizans Dwellings Acts, Highway Acts, Rivers Pollution Act, etc.

Education Department.-Powers under the Education Acts.

The powers transferred must be such as are conferred by or in pursuance of a statute, and must be of an administrative (i.e. as distinguished from a judicial) character.

The statutory powers of public bodies, other than those expressly excepted, may also be transferred by Provisional Order. The most important of these are the powers of commissioners of sewers or drainage boards under the Acts relating to the drainage of land.

(2.) Provided that before any such Order is made the draft thereof shall be approved, if it relates to the powers, duties, or liabilities of a Secretary of State, or the Board of Trade, or any other Government Department, by such Secretary of State, Board, or department, and approved, if it affects the powers, duties, or liabilities of any commissioners, conservators, or body, corporate or unincorporate, by such commissioners, conservators, or body; and every such Provisional Order shall be of no effect until it is confirmed by Parliament.

This provision renders it necessary that the draft of the Order should be perused and approved by the department or body whose powers are to be transferred, and it makes such approval in effect a condition precedent to the Order.

(3.) If any such powers, duties, or liabilities as are referred to Sect. 10 (3). in any Provisional Order under this section arise within two or more counties, they may be transferred to the county councils of such two or more counties jointly, and may be exercised and discharged by a joint committee of such councils.

As to the appointment and powers of joint committees, see s. 81, post.

(4.) The Act of Parliament confirming any Provisional Order made under this section shall be a public general Act.

This provision enables an Order to be made altering the general law in the district to which it relates. It has also the effect of preventing its being treated for purposes of construction as a private or local Act.

main roads

41 & 42 Vict

c. 77.

11.-(1.) Every road in a county, which is for the time being a Entire mainmain road within the meaning of the Highways and Locomotives tenance of (Amendment) Act, 1878, inclusive of every bridge carrying by county such road if repairable by the highway authority shall, after council. the appointed day, be wholly maintained and repaired by the council of the county in which the road is situate, and such council, for the purpose of the maintenance, repair, improvement, and enlargement of, and other dealing with such road, shall have the same powers and be subject to the same duties as a highway board, and may further exercise any powers vested in the council for the purpose of the maintenance and repair of bridges, and the enactments relating to highways and bridges shall apply accordingly; and the county council shall have the same powers as a highway board for preventing and removing obstructions, and for asserting the right of the public to the use and enjoyment of the roadside wastes; and the execution. of this section shall be a general county purpose, and the costs thereof shall be charged to the general county account.

Highways, etc., Act, 1878: Main Roads.-The chief provisions of the Highway Act, 1878 (41 & 42 Vict. c. 77), relating to main roads are ss. 13—17. These so far as they are unrepealed are here set out in full.

Section 13. "For the purposes of this Act and subject to its provisions, any road which has, within the period between the thirty-first day of December, one thousand eight hundred and seventy, and the date of the passing of this Act, ceased to be a turnpike road, and any road which, being at the time of the passing of this Act a turnpike road, may afterwards cease to be such, shall be deemed to be a main road."

[The remainder of this section is repealed by the Statute Law Revision Act, 1894, having been rendered obsolete by the provisions in the text.] Section 14. "The following areas shall be deemed to be highway areas for the purpose of this Act; (that is to say,)

"(1) Urban sanitary districts;

"(2) Highway districts;

"(3) Highway parishes not included within any highway district or any

urban sanitary district.

Sect. 11 (1).

NOTE.

[The expression "urban sanitary districts" as defined by the Act of 1878, did not include quarter sessions boroughs; but these are now included by virtue of ss. 35 (4) and 38 (3), post].

Section 15. "Where it appears to any highway authority that any highway within their district ought to become a main road by reason of its being a medium of communication between great towns, or a thoroughfare to a railway station or otherwise, such highway authority may apply to the county authority for an order declaring such road, as to such parts as aforesaid, to be a main road; and the county authority, if of opinion that there is probable cause for the application, shall cause the road to be inspected, and if satisfied that it ought to be a main road shall make an order accordingly.

"A Copy of the order so made shall be deposited at the office of the clerk of the peace of the county, and shall be open to the inspection of persons interested at all reasonable hours; and the order so made shall not be of any validity unless and until it is confirmed by a further order of the county authority made within a period of not more than six months after the making of the firstmentioned order."

66

Section 16. where it appears to a county authority that any road within their county which has become a main road in pursuance of this Act onght to cease to be a main road and become an ordinary highway, such authority may apply to the Local Government Board for a provisional order declaring that such road has ceased to be a main road and become an ordinary highway.

"The Local Government Board, if of opinion that there is probable cause for an application under this section, shall cause the road to be inspected, and if satisfied that it . . . . ought to cease to be a main road, and become an ordinary highway, shall make a [provisional] order accordingly [to be confirmed as hereinafter mentioned].

"All expenses incurred in or incidental to the making or confirmation of any order under this section shall be defrayed by the county authority applying for such order."

[Parts of the above section were repealed by the Statute Law Revision Act, 1894 (57 & 58 Vict. c. 56), and are here omitted. The remainder of the section is amended by s. 4 of the Highways and Bridges Act, 1891 (54 & 55 Vict. c. 63), post, whereby it is provided that s. 16 of the Highways and Locomotives (Amendment) Act, 1878, shall apply to any part of a main road in any county, and so much of that section as requires that any order made thereunder shall be provisional, and shall be confirmed as in the said Act mentioned, is hereby repealed, but no such order shall be made in respect of any main road within a municipal borough without the assent of the council of the said borough having been first obtained].

Section 17. "Where a turnpike road subject to one trust extends into divers counties, such road, for the purposes of this Act, shall be treated as a separate tnrnpike road in each county through which it passes."

The following cases have been decided on the foregoing sections of the Highways and Locomotives (Amendment) Act, 1878:

A provision in Turnpike Acts coming into operation before December 31st, 1870, that turnpike trustees shall not spend money or levy toll upon certain portions of turnpike roads does not prevent such portions of the roads from being still turnpike roads on December 31st, 1870, within the meaning of s. 13 of the Highways and Locomotives (Amendment) Act, 1878. So as to an agreement under the Local Government Act, 1858 (21 & 22 Vict. c. 98), s. 41, made before December 31st, 1870, between turnpike trustees and a corporation, under which the turnpikes upon certain portions of turnpike roads were

removed, and the repair of such portions was undertaken by the corporation. Sect. 11 (1). West Riding JJ. v. Reg., 8 App. Cas. 781 ; 53 L. J. M. C. 41 ; 49 L. T. (N.s.) 786; 32 W. R. 253; 48 J. P. 228.

The corporation of the borough of Rochdale was the highway authority of the Rochdale highway area. Under ss. 47-50 of the Towns Improvement Clauses Act, 1847 (10 & 11 Vict. c. 34), the obligation to repair all public highways within the area of the "town" was imposed upon the corporation, and the turnpike trustees were forbidden to collect any toll or lay out any money on any road within that area. By a local Act of 1872 the boundaries of the borough were enlarged, and all the provisions of the Acts relating to the "town" were made applicable to the enlarged area of the borough. The effect was that further portions of turnpike roads were for the first time brought within the area of the borough, and within the operations of the Towns Improvement Clauses Act, 1847 :-Held, reversing the decision of the Court of Appeal, that these further portions, being only parts of turnpike roads, had not "ceased to be turnpike roads," and were not to be deemed to be “main roads" within s. 13 of the Highways and Locomotives (Amendment) Act, 1878, and that the county authority were not liable to pay half the expenses of their maintenance. Lancashire JJ. v. Rochdale (Mayor of ), 8 App. Cas. 494; 53 L. J. M. C. 5; 49 L. T. (N.s.) 368; 32 W. R. 65; 48 J. P. 20,

In 1855 a portion of a turnpike road was included in an improvement district under a local Act incorporating the Towns Improvement Clauses Act, 1847. Thereupon, by virtue of ss. 47-51 of the latter Act, the maintenance of this portion of the road became vested in the Improvement Commissioners, and the turnpike trustees ceased to have power to collect toll or lay out money upon it. In 1877 the turnpike trust expired. The Commissioners were the highway authority for the district, and the district was a highway area within the meaning of s. 13 of the Highways and Locomotives (Amendment) Act, 1878. It was held that notwithstanding the operation of ss. 47-51 of the Towns Improvement Clauses Act, 1847, the road only ceased to be a turnpike road and became a main road within s. 13 upon the expiration of the turnpike trust; and that as that event happened after 1870, the county authority was liable to pay to the Commissioners one half the expenses incurred by them in the maintenance of the portion of the road within their district. Lancashire JJ. v. Newton-in-Makerfield Improvement Commissioners, 11 App. Cas. 416; 55 L. T. (N.s.) 615; 35 W. R. 185; 56 L. J. M. C. 17; 51 J. P. 68.

By a local Act passed in 1874 the limits of the borough of M. were extended. By s. 20 of that Act it was enacted that the extended area "shall be exempt from all county rates save only in respect of the purposes for which any county rates are now leviable within the existing borough." At the time of the passing of that Act general county rates were leviable within the existing borough for all purposes for which such rates could be levied in any part of the riding. It was held that the saving of such liability rendered the exemption in s. 20 inoperative; and therefore the inhabitants of the extended area of the borough were not exempt from liability to pay county rates for the maintenance of main roads under s. 13 of the Highways, etc. Act, 1878. Middlesborough Overseers v. North Riding JJ., 12 Q. B. D. 239 ; 32 W. R. 671.

The word "situate" in s. 13 means geographically situate. Over Darwen (Mayor of) v. Lancashire JJ., 15 Q. B. D. 20; 54 L. J. Q. B. 51; 52 L. T. (N.S.) 739; 48 J. P. 437.

Inasmuch as by ss. 35 (4) and 38 (3) of the Local Government Act, 1888, post, quarter sessions boroughs are urban sanitary districts within the meaning of s. 14 of the Highways, etc. Act, 1878, a question such as arose in Kent JJ. v.

NOTE.

NOTE.

Sect. 11 (1). Sandgate Local Board, 7 T. L. R. 571, can hardly occur again; it was there held that where the quarter sessions had for many years paid half the expenses of maintaining a road under the belief that it was a main road for which they were liable, and it was afterwards discovered that they were not liable by reason of the road being within a borough, an action would not lie in the name of the justices to recover the sum so paid to the highway authority.

And as rural district councils have now (under s. 25 of the Local Government Act, 1894, post), in almost all cases superseded all other highway authorities in their district, questions are not likely to arise as to what is a highway area or a highway authority within the meaning of s. 14 and other sections of the Highways, etc., Act, 1878, in a rural district, such as the question which arose in R. v. Norfolk County Council, 60 L. J. Q. B. 379; 65 L. T. (N.S.) 222; 56 J. P. 7. With that case can now be compared Isle of Wight Highway Commissioners v. Isle of Wight County Council, 72 L. T. (N.s.) 569; 59 J. P. 438; Marshland Smeeth and Fen District Commissioners v. Marshland Rural District Council, 73 L. T. (N.S.) 563; 59 J. P. 824.

A road which had ceased to be a turnpike road within the period between December 31st, 1870, and August 16th, 1878 (the date of the passing of the Highways, etc. Act, 1878), and had become a main road, there being no application for a provisional order before February 1st, 1879 (the now repealed part of s. 16 of the Act, of 1878), is not excluded from the operation of the provisions of s. 16 above set out, and the Local Government Board has, therefore, jurisdiction to make a provisional order declaring such road an ordinary highway upon an application made subsequently to February 1st, 1879. R. v. Local Government Board, 15 Q. B. D. 70; 54 L. J. M. C. 104; 54 L. T. (N.S.) 194; 49 J. P. 580.

The changes effected by the text are very important. A main road is not, except in the case provided for by the succeeding sub-sections, repairable by the highway authority at all. The duty of repairing it belongs to the county council, who, for all purposes of repairing, etc., have the powers of a highway board.

Maintenance, Repair, Improvement, etc.-They may not merely maintain the road, but they may improve and enlarge it. The questions often raised as to the meaning of maintenance are to a great extent avoided by the language of the text. See Amesbury Guardians v. Wiltshire JJ., 10 Q. B. D. 480; 52 L. J. M. C. 64 ; 31 W. R. 521 ; 47 J. P. 184; Leek Improvement Commissioners v. Staffordshire JJ., 20 Q. B. D. 794 : R. v. Essex JJ., 4 T. L. R. 676; Burnley (Mayor, etc., of) v. Lancaster County Council, 54 J. P. 279; Lancashire Road Trustees v. Fleaning, W. N. 1886, p. 180; 14 Ct. of Sess. Cas. (H. L.) 18; Warminster Local Board v. Wiltshire County Council, 25 Q. B. D. 450; 59 L. J. Q. B. 434; 62 L. T. (N.s.) 902; 38 W. R. 670; 54 J. P. 375; London (Mayor, etc., of) v. Barnes, 12 T. L. R. 135. The improvements which a highway board may make in a highway are enumerated in 27 & 28 Vict. c. 101, ss. 47, 48. They include the conversion of any main that has not been stoned into a stoned road, the widening of any road, the cutting off the corners in any road where land is required to be purchased for that purpose, the levelling roads, the making any new road, and the building or enlarging bridges, and the doing of any work in respect of highways beyond ordinary repairs essential to placing any existing highway in a proper state of repair.

For the purpose of repairing main roads the county council have the same right under this section of taking gravel for repairs from a pit as a surveyor of highways. Norfolk County Council v. Bittering Highway Surveyor, 58 J. P. 497. As to repairs where a main road is broken up for sewerage or otherwise, see sub-s. (12), post.