2. Concessum, that the estimate for a rate required by sect. 98 of that Act may be both for prospective and retrospective expenses, at least if the latter were within the six months limited by sect. 89.

3. Quære, whether a district-rate under that Act is rendered void when the estimate on which it is founded, as required by sect. 98, does not show with sufficient distinctness the sums required for each of the purposes in respect of which the rate was made?

SPECIAL case stated by the Quarter Sessions of the county of Nottingham.

The parish of Worksop, in the county of Nottingham, was duly formed in 1852 into a non-corporate district for the purposes of The Public Health Act, 1848, and the provisions of The Local Government Act, 1858, have been duly applied thereto. There is a Local Board of Health elected by the owners of property and rate-payers within the district. Alfred Brodhurst, a rate-payer within the district, is the appellant, and the Local Board of Health are the respondents. On the 7th June, 1862, the Local Board gave public notice of their intention to make a general district rate. The rate was in fact intended to be made to raise money for the payment partly of future charges and expenses, and partly of. charges and expenses incurred within six months before the making of the rate. An estimate of the money required for the purposes in re-. spect of which the rate was to be made was prepared and approved *by the Local Board before proceeding to make the rate. This estimate was entered in the rate-book as follows:

"21 & 22 Vict.

cap. 98.

Purposes.

[*952 Estimate of the money required for the purposes in respect of which the general district rate hereafter set forth is to be made.

Salaries of officers.

Rents, rates, and collector's poundage

Watering the public streets and expenses of fire-engine
Printing, stationery, advertising, and postage,
Election expenses. Filling in and covering old sewers
and drains, and cleansing sewers and outfall.
Law charges, surveyor's instruments, and incidental

expenses

The rateable value of the property assessable for the above rate

30,184 19 2

Sixpence.

The amount of the rate necessary to be made for such purposes upon each pound of such value The above estimate has been submitted to the Local Board and ap

proved of by them.

As witness my hand, this 2d day of June, 1862.

(Signed) ROBERT WHITE,

Clerk of the said Board."

The rate-book and the minute-book of the Board, containing the details of actual expenditure upon which the calculations of the estimate were based, were duly *kept in the office of the Board open to public

inspection. The rate was declared made by a resolution of the [*953 Board passed at a Board Meeting, on the 16th June, 1862, and entered

upon the minutes of that meeting, which were signed in due course by the chairman at the next meeting of the Board.

The resolution was as follows:

"The clerk produced general district rate at sixpence in the pound amounting to 4287. 158. 11 d., and the recoverable arrears amounting to 391. 198. 3d.; and it was moved by Mr. Worth and seconded by Mr. Marlin, and unanimously resolved, that the rate now produced be and the same is declared made, and that the clerk do cause notice of the making thereof to be given as required by law."

The rate was set forth in the rate-book under this heading :

"An assessment for a general district rate made by the Local Board of Health for the district of Worksop for defraying such expenses as are by The Public Health Act, 1848, and The Local Government Act, 1858, chargeable upon that rate, this 16th day of June, 1862, after the rate of sixpence in the pound, upon the several occupiers and other parties liable by law to be assessed thereto, to commence and be payable on the 17th day of June, 1862."

No seal or signature of the Board was affixed to the rate in the ratebook.

The making of the rate was duly published.

Alfred Brodhurst appealed against the rate on several grounds, and the appeal was heard at the Quarter Sessions held on the 20th October, 1862. The material objections to the rate urged at the trial were these::

First. That the Local Board of Health had no power, *under *954] the 89th section of the Public Health Act, 1848, to make one and the same rate for the payment of future expenses and of expenses previously incurred.

Second. That the estimate of the money required for the purposes in respect of which the rate was to be made did not show the several sums required for each of such purposes with the particularity required by the 98th section of The Public Health Act, 1848.

Third. That the rate was void under the 149th section of The Public Health Act, 1848, for want of the seal of the Local Board and the signature of five of its members to the rate in the rate-book.

The Quarter Sessions held that the Local Board had power to make one and the same rate for future and past expenditure: that the purposes in respect of which the rate was to be made were set forth in the estimate with sufficient particularity: but that the rate was void for want of the seal of The Board and the signature of five of its members. And they quashed the rate subject to the opinion of this Court to be taken by consent of both parties upon all the three above grounds of objection.

The case was argued for the first time in Easter Term, 1864, April 23d, before COCKBURN, C. J., and SHEE, J.

Welsby and Cave, for the appellant. The 89th section of The Public Health Act, 1848, 11 & 12 Vict. c. 63, enacts "That the Local Board of Health may make and levy the said special and general district rates, or any or either of them, prospectively, in order to raise money for the payment of future charges and expenses, or retrospectively in order to raise money for the payment of charges and expenses which may have been incurred at any time within six months *before the making of the rate; &c." And sect. 98 enacts, "That the Local Board

*955]

of Health, before proceeding to make any general or special district rate or private improvement rate under this Act, shall cause an estimate to be prepared of the money required for the purposes in respect of which the rate is to be made, showing the several sums required for each of such purposes, the rateable value of the property assessable, and the amount of rate which for those purposes it is necessary to make upon each pound of such value; and the estimate so made shall forthwith, after being approved of by the said Local Board, be entered in the ratebook, and be kept at their office, open to public inspection during officehours thereat." The rate here professes to be a general district rate under sect. 87, which enacts, "That the treasurer shall keep a separate account, to be called 'the district fund account,' and the moneys carried to such account under the directions of this Act shall be applied by the Local Board of Health in defraying such of the expenses incurred or to be incurred by the said Local Board in carrying this Act into execution, and not otherwise expressly provided for, as they may think proper; and the said Local Board shall from time to time, when and as often as ocaasion may require, make and levy, in addition to any other rate, a rate or rates to be called 'general district rates,' for defraying such expenses as are charged upon that rate by this Act, and such other expenses of executing this Act in any district as are not provided for by any other rate, or defrayed out of the said district fund account." But it must be a special district rate under sect. 86, and such rates are abolished by The Local Government Act, 1858, 21 & 22 Vict. c. 98, s. 54. [CockBURN, C. J.-Then this would come under the latter part of sect. 87 of the first Act, which provides for the expenses of exe[*956 cuting the Act which are not provided for by any other rate.] Perhaps The first point may be given up. But on the second the present estimate does not show with sufficient distinctness the several purposes for which the rate is made. The statute has placed great power in the hands of the Board, the exercise of which ought to be carefully watched, as much jobbing would ensue if a rate could be made for a lump sum without specifying for what purposes. [They also urged the necessity of the seal of the Local Board to the rate, under sect. 149, which enacts, "That whenever the consent, sanction, or approval or authority of the General Board of Health is required by the provisions of this Act, the same shall be in writing under their seal and the hands of two or more members thereof; and whenever the consent, sanction, approval, or authority of the Local Board of Health is so required the same shall (in the case of a non-corporate district) be in writing under their seal and the hands of five or more of them, or (in case of a corporate district) under their common seal."]

80.

Bovill (F. Lushington with him), for the respondents.-The Board under this statute are empowered to make general rates affecting a whole district, special rates affecting a portion of it, and private improvement rates affecting particular individuals, and it is sufficient if they specify the amounts they require for each of those purposes. If the other side are right the Board would have to specify how much they required for every individual drain and every individual water closet. But, in any view of this point, the statute being only in the affirmative is simply *directory, Dwarris on Statutes, p. 606, 2d ed., and [*957 does not render the rate invalid if these con litions are not com

plied with. A rate made under this Act not published as required by sect. 103 is not void: Le Feuvre v. Miller, 8 E. & B. 321 (E. C. L. R. vol. 92). [COCKBURN, C. J.-A poor-rate is not valid until publication.] That is by force of the language of stat. 17 G. 2, c. 3, and the Parochial Assessments Act, 6 & 7 W. 4, c. 96; Reg. v. The Eastern Counties Railway Company, 5 E. & B. 974 (E. C. L. R. vol. 85). [COCKBURN, C. J.-What remedy then has the ratepayer who is called on to pay a rate made without a proper previous estimate?] The Board might be indicted for a conspiracy to evade the statute. [THE COURT referred to Reg. v. The Inhabitants of Fordham, 11 A. & E. 73 (E. C. L. R. vol. 39.] A contract entered into by the Local Board under sect. 85 is not invalid because a previous estimate by a surveyor, as required by that section, was not obtained: Nowell v. The Mayor, &c., of Worcester, 9 Exch. 457. [He also cited Rex v. The Justices of Leicester, 7 B. & C. 6 (E. C. L. R. vol. 14), and on proceeding to argue the question as to the necessity of the seal of the Local Board, &c., was stopped by the Court.]

Welsby, having been called on by the Court to reply, said he did not contend that the rate was void, but simply that it could not be enforced, and was voidable on appeal. [He cited Reg. v. The Justices of Kingston upon Thames, E. B. & E. 256 (E. C. L. R. vol. 96.]

Cur. adv. vult. The judgment of the Court was delivered, at the Sittings after Michaelmas Term, 1864, December 13th.

*COCKBURN, C. J.-This was a case on an appeal to the Court *958] of Quarter Sessions of the county of Nottingham, against a general district rate, made by the respondents, the Local Board of Health of the non-corporate district of Worksop, on the 16th June, 1862.

The objections to the rate were as follows:

First. That the estimate of the money required for the purposes in respect of which the rate was made did not show the several sums required for each of such purposes with the particularity required by the 98th section of The Public Health Act, 1848, 11 & 12 Vict. c. 63.

Second. That the respondents had no power under the 89th section to make one and the same rate for the payment of future expenses and expenses previously incurred.

Third. That the rate was void under the 149th section for want of the seal of the Board and the signature of five of its members, to the rate in the rate book.

The Court of Quarter Sessions held the first and second of these objections to be unfounded; but they held the third objection to be fatal to the rate.

We have no difficulty in holding the decision of the Sessions as to the second objection to be right. The 89th section of the Act authorizes the making of rates by the Local Board, to raise money for the payment of charges and expenses which may have been incurred within six months before the making of the rate; and it is not stated in the case before us that the expenses which this rate provided for retrospectively were of an earlier date. This being so, we see no objection to past and future expenses being provided for, so long as they are sufficiently specified in the estimate, in one and the same rate.

As regards the first head of objection, the 98th section *of the

Act provides that an estimate shall be prepared by the Board of [*959 the money required for the purposes for which the rate is made, showing the several sums required for each of such purposes, the rateable value of the property assessable, and the amount of rate which for those purposes it is necessary to make upon each pound of such value. And, by sects. 98 and 100, the estimate so made is, after approval of it by the Local Board, to be entered in the rate-book, to be open to public inspection at the office of the Board during office hours-any person being at liberty to inspect and take copies of or make extracts from it without fee or reward; and whosoever, having the custody of it, refuses to allow such inspection, or the taking of such copies or extracts, becomes for such offence liable to a penalty of 5l. An estimate was in the present instance prepared and approved, as is set forth in the case, by the Local Board, but some of the items appear to us to be open to objection, as combining incongruous items in one lump sum, in a manner inconsistent with the requirements of the Act, and tending to conceal instead of conveying the information as to the local expenditure which it was intended that the ratepayers should have. In the items-" Salaries of officers 1787. 108."-"Rents, rates, and collector's poundage 707. 188. 3d."-" Watering the public streets and expenses of fire engine 617." "Printing, stationery, advertising, and postage 407. 38. 7d."-the objects of expense mentioned have that sort of affinity to each other which in any ordinary statement of outlay would make it not improper to include them in the same class. In items thus grouped, though the exact amount already expended, or to be expended, upon any one object, is not stated, a proximate conjecture may be formed of it by comparing the sum for the whole item with the various objects for [*960 which such sum is stated to be required. As to these items, therefore, we think there is in this estimate a substantial, though not a literal, compliance with the requirements of the 98th section; but it is otherwise as respects the sixth and seventh items, viz., "Election expenses. Filling in and covering old sewers and drains, and cleansing sewers and outfall 651."-"Law charges, surveyor's instruments, and incidental expenses 747." We think the ratepayers are entitled to know the amount of election expenses and law charges as well as of salaries of officers, and of rents, rates and collector's poundage. We think election expenses and law charges should not be mixed up with expenses of a totally dif ferent character and which do not, in the smallest degree, assist in the formation of a proximate conjecture as to their amount.

While, however, we have no hesitation in saying that the estimate in question is not a sufficient compliance with the requirements of the 98th section, a very serious difficulty presents itself as to what should be held to be the consequence of the defectiveness of the estimate as respects the validity of the rate. On the one hand, it is contended that compliance with the provisions of the 98th section as regards the estimate is a condition precedent to the authority to make the rate; on the other, it is said that the enactment is directory only, and at most can only expose the Local Board to such proceedings as may be the consequence of disobedience to the directions of a statute or the non-performance of a statutory duty; but that the non-compliance with such directions in no way affects the validity of the rate. It appears to us that very