The Queen v. The Local Government Board, App. In Ex parte Death (9) it was held that an order to discommune made by a ViceChancellor of the University of Cambridge was not a judicial act which the Superior Courts could restrain by prohibition. [BRETT, L.J., referred to Cooper v. The Wandsworth Board of Works (10). That case was not an application for a prohibition, and only decided that the district board could not demolish a building under the powers given by 18 & 19 Vict. c. 120. s. 76, without giving the party guilty of the omission of an act required by the statute an opportunity of being heard. The protection given to subjects is that the act of a body which exceeds its powers is null and void. The Queen v. The Local Government Board (11) was also referred to. In order to entitle the appellants to a prohibition it must be shewn that every matter complained of in the memorial is beyond the jurisdiction of the board, because if any one of the matters is within the jurisdiction, no prohibition will lieThe South Eastern Railway Company v. The Railway Commissioners (12). Next, until a notice of demand for payment has been made, there is no appeal. Upon the hearing of the appeal on that point, the whole of the matters previously done can be gone into in order to see whether the order is right or wrong. An appeal can be brought after notice of the decision by which a party is, or deems himself to be, aggrieved. Where the notice is given under section 150, non constat that the work ever will be executed and the charge incurred, because a discretion is left to the local authority, under the words "if they shall think fit," as to whether they will execute it or not. Until the local authority determine, and this is an absolutely discretionary act, to do the work, it cannot be said that the person to whom notice has been given to do it himself has been aggrieved. Notice given by the local authority to do the work is not a notice of (9) 18 Q.B. Rep. 647; 21 Law J. Rep. Q.B. 337. (10) 14 Com. B. Rep. N.S. 180; 32 Law J. Rep. C.P. 185. (11) Law Rep. 2 Q.B. 316 (Ir.). (12) 50 Law J. Rep. Q.B. 201; Law Rep. 6 Q.B. D. 586. a decision by which a person is aggrieved; consequently it is not a notice of a decision which entitles them to recover the expenses incurred either in a summary manner or as private improvement expenses. The surveyor has power only to make the apportionment-Grece v. Hunt (13); mere notice thereof is not sufficient, there must also be a notice of demand of payment. Upon the hearing of the memorial the Local Government Board can enquire into any matters which shew that the sum apportioned is inequitable. Section 268 (1) applies only to the decision of the local authority, and that must be the decision which fixes and determines the liability of the owner, for that is the time when he is aggrieved; a memorial can then be addressed within twenty-one days to the Local Government Board, who may deal with it as they think equitable. A. L. Smith, for G. Taylor.-The true construction of section 268 is that the decision of the local authority by which Taylor is aggrieved is the decision which makes him liable to pay a sum of money. When notice of demand of payment has been given, then an appeal lies, if brought within twenty-one days from the date of the notice. Lawrence replied. BAGGALLAY, L.J. (14)-The question in this appeal arises under the Public Health Act, 1875, which makes provision for other matters besides paving streets. The three sections to which our attention has been called are sections 150, 257 and 268. The last two sections have a more general application than section 150, which has reference to the paving of streets in towns. The question in this case arises with reference to the paving of certain streets within the district of the Penarth Local Board. Notice to pave the street, under section 150, was given by the local board to Taylor, and under that section, if the notice is not complied with, power is conferred upon the local authority, if they think fit, to execute the works. That is (13) 46 Law J. Rep. M.C. 202; Law Rep. 2 Q.B. D. 389. (14) Lord Coleridge, C.J., was present during part of the argument, but not when the argument was concluded and judgment was de livered. The Queen v. The Local Government Board, App. the second step-namely, the local board may execute the works, and then are empowered to recover in a summary manner from the owners in default the expenses incurred by them in so doing, or may by order declare the expenses so incurred to be private improvement expenses. Moreover, there is a further provision (section 257) that the local board, instead of demanding payment in one whole sum, may by order declare any such expenses to be payable by certain annual instalments. The Local Board of Penarth gave notice to Taylor, under section 150, that they required the street in question to be paved within twenty-one days from the date of the notice. Taylor did not execute the works, and the local board, in the exercise of the authority given to them by that section, gave instructions for the work to be executed. The work was executed, and the aggregate expenses to be paid by Taylor having been ascertained, notice of demand of payment was given to Taylor. Within twenty-one days from the notice being given Taylor appealed by memorial to the Local Government Board, and the case now is that he has no right to appeal. Section 257 makes provision that after the expenses have been incurred an apportionment of the aggregate amount of such expenses, payable by the owner, is to be made by the urban authority, and that such apportionment is to be binding upon the owner unless within three months from the service of notice of the amount settled by the surveyor to be due from such owner he shall by written notice dispute the same. The owner, therefore, after he has received notice of apportionment, has three months within which to dispute the matter; but if he does not do so, then the amount of apportionment is binding upon him. Then comes section 268, under which any person who feels aggrieved by the decision of the local authority, in any case in which the board are empowered to recover expenses incurred in a summary manner or to declare the expenses to be private improvement expenses, may within twenty days from the notice of such decision address a memorial to the Local Government Board stating the grounds of his complaint. In this case, after the works had been exe cuted and the apportionment ascertained, a demand was made upon Taylor for the payment of the sum of money apportioned; and then for the first time he moved against the proceedings which had been. adopted by the local board, and addressed a memorial to the Local Government Board, in which he stated two substantial grounds of complaint, namely, that the local board had executed more works than were necessary, and that the total expenses incurred were excessive. After the memorial by way of appeal had been presented, a rule nisi was obtained to prohibit the Local Government Board from taking any further proceedings with reference to that appeal. That application was resisted, partly on the ground that no prohibition will lie as against the Local Government Board, and also that, even assuming that prohibition will lie, there are no grounds for interfering in this case. I am of opinion that we ought not to interfere, and that there are no grounds for prohibiting the Local Government Board from entertaining the appeal. It was contended by the appellants that there were three decisions of the local authority from which an ap peal might have been brought. The first decision was to flag and pave the street; the second, that the local authority would themselves execute the works; and the third decision was when the urban authority demanded that payment should be made in a summary manner instead of declaring the expenses to be private improvement expenses. I cannot take the view that the first two matters were decisions. I am unable to see on what grounds it can be said that any decisions were come to by the urban authority until it was determined that the amount should be levied from the particular owner in a summary manner. There was no decision except that the local board called upon Taylor to pave the street, and that was a thing which he was not bound to do. The urban authority also are not bound to do the works; but they can do them" if they think fit." These, therefore, are not decisions under section 268, from which an appeal can be brought. The next stage of the proceedings is when the works have been completed; and here there is no decision by the local authority, but solely a The Queen v. The Local Government Board, App. notice which the surveyor was authorised to give of the execution of the works and the amount of apportionment payable by Taylor. Here also I cannot find any decision on the part of the local authority from which an appeal could have been brought within twenty-one days under section 268. But the three months having expired from the notice given by the surveyor, the apportionment became binding upon Taylor, and then an election could be exercised on the part of the local authority as to whether the money should be recovered in a summary manner or should, by order, be declared to be private improvement expenses. At any rate that matter was a decision which was communicated to Taylor by the notice of the 21st of December demanding payment of the amount apportioned within fourteen days. The notice demanding payment was notice of a decision, and within twenty-one days from the receipt of that notice Taylor had a right to appeal to the Local Government Board if he thought himself aggrieved. Moreover, having regard to the provisions of section 268 that the Local Government Board may make such order as to them may seem equitable, I think that the question as to the aggregate amount of expenses incurred and the apportionment of the amount assessed might be enquired into. But the Local Government Board are not bound to travel beyond the grounds of complaint contained in the memorial. BRETT, L.J.-I agree with the decision of the Divisional Court that a writ of prohibition should not issue; but I do not agree with the grounds upon which that decision is based. Taylor had three different notices served upon him. The first notice was that given on the 4th of May by the Penarth Local Board that they were dissatisfied with the state of the street, and required him to pave it within twentyone days. I am inclined to think that that notice expresses a decision by the local board, for they must have decided that the street required to be paved. Taylor, therefore, had notice of this decision, and a demand was made by the local board that he should pave the street. On the 21st of September Taylor received a second notice, which was given by the surveyor, that VOL. 52.-M.C. the local board had expended a certain sum upon the works which Taylor had declined to execute, and that he, the surveyor, bad apportioned a part of that sum, which was to be paid by Taylor, at 2527. 108. 9d. But Taylor had received no notice that the local board had decided to expend that sum. The board had no authority to decide the amount of the apportionment, for the surveyor only had power to make the apportionment, and the notice which he gave was a notice that he had done his duty. On the 20th of December a third notice was given, signed by the collector, who seems to give the notice as the servant of the local board, and I think that that is a notice by the local board that they have decided to raise the sum expended in a summary manner. But at a period within twenty-one days after that last notice Taylor sent in a memorial by way of appeal to the Local Government Board, to the effect that it was not equitable to make him pay the sum demanded, on the grounds that the works themselves were unnecessary and that the costs of executing them were unreasonable. The memorial does not contain any complaint that the apportionment as between Taylor and the other owners was wrong; and I think it should be taken that the appellants have reason to suppose, as between Taylor and the Local Government Board, that upon this memorial the board are prepared to consider the two grounds of complaint set forth-namely, whether the works were unnecessary and the sum expended unreasonable, in order to determine whether it was equitable to call upon Taylor to pay this sum. Upon this state of facts the appellants asked for a prohibition against the Local Government Board proceeding any further in the matter. It was said that the claim for a prohibition ought to have been confined to two matters, and that supposing Taylor had a right to question the whole work as being unnecessary, and had a right to a prohibition as to the other grounds, yet because the rule for a prohibition asks for too much it ought not to be granted. If the Court below refused the rule upon that ground I am unable to agree with the decision. Where a party, in his rule for a prohibition, asks for more than he ought C The Queen v. The Local Government Board, App. to ask for, the Court ought, if part of the request turns out to be more than he wanted, to mould the rule so as to give him that to which he is entitled. It was said on behalf of the appellants that there were three successive decisions given by the Penarth Local Board, within the meaning of section 268, from each of which, as they arose, Taylor had a right to appeal; but that as no appeal had been brought in time against the first two decisions he could only appeal against the third, and upon that appeal only one question could be raised, and that was on a point upon which no complaint had been made. It was asserted by the SolicitorGeneral that, assuming there were three successive decisions against which there is an appeal, and that Taylor is properly debarred as regards the first two, and that it would be an excess of jurisdiction to entertain an appeal against those two questions, yet the Local Government Board is not a body to whom prohibition would lie. It is not necessary, and I am sorry we do not consider it our duty, to decide whether that contention is true or not. If Lord Coleridge had been present I should have pressed for the opinion of the Court; but in his absence we ought not to give a decision upon a question of such importance. My view is that the Court should not be chary of exercising the power to prohibit; and that where the Legislature has entrusted to persons other than the Superior Courts power to impose obligations upon individuals, the Courts ought to exercise, as widely as possible, the power to control these bodies of persons when they exceed the powers given to them by Act of Parliament. The next question is whether, if prohibition will lie against the Local Government Board, a case has been made out for interfering. Now that raises a question as to the construction of this statute, and also as to what matters may be enquired into by the Local Government Board. That which is called an appeal is given by section 268; and that in some sense it is an appeal is obvious. I do not agree with the Solicitor-General that the headings in an Act of Parliament are not to be considered as part of the Act itself; for I think that they may be used for the pur pose of construing the Act. I take it, therefore, that an appeal is given by section 268. With regard to many things done, and with regard to the matter now before us, it was said that the appeal given is not an appeal against judicial decisions, and that the proceedings of the Penarth Local Board are not judicial; but I have a strong opinion that they are. When this memorial is presented, it is the duty of the Local Government Board to hear the party who has presented it. It is also obvious that the local authority are entitled to be heard, because the Local Government Board must transmit a copy of the memorial to the local authority. I doubt whether the Local Government Board are bound to hear the parties orally, but they are bound to let the party know the grounds of the answer given by the local board, in order that he may give an answer. The decision mentioned in section 268 is the decision by which the person deems himself aggrieved; it is a decision by which the local authority are empowered to recover in a summary manner any expenses incurred by them. We must therefore consider in what cases the local authority are entitled to recover the expenses in a summary manner. By section 150 the local authority may give notice to the owners to do certain works, but after that notice has been given, and even if they resolve to do the work, they are not in a position to recover anything in a summary manner. Then, after the works have been executed, the next act is to be done not by the local authority but by the surveyor, who is to apportion the sum which has been expended as between the different owners, and who is to say, assuming such a sum has been expended, what is the fair proportion to be paid by the owners. The local authority cannot determine that matter, but it is the surveyor who is to give notice to the persons with regard to whom the apportionment has been made, and such notice is given for the purpose of allowing those persons to complain to the local authority. Nothing, however, is to happen upon that notice alone; but if the apportionment is disputed within three months, then the local authority are to appoint an arbitrator to settle it; the apportionment, if not dis The Queen v. The Local Government Board, App. puted within the three months, is binding on the owner. The complaint as to the apportionment has nothing to do with the question whether the amount of the expenses incurred was right or not, but only with the question whether the sum apportioned to be paid by the owner is the right sum. It seems to me, therefore, that so far there is no ground for an appeal under section 268; for even if the apportionment is not disputed the local authority are not in a position to recover anything by summary process or to treat it as improvement expenses. Then what must they do to put themselves in that position? It is strange that the Act does not say what they are to do. By section 150 these expenses may be recovered in a summary manner; and then by section 257 it is provided that in all summary proceedings by a local authority for the recovery of expenses incurred by them in works of private improvement, the time within which such proceedings may be taken shall be reckoned from the date of the service of notice of demand. Now that is the only enactment with regard to the necessity of giving a notice of demand, and the necessary inference is that notice of demand must be given by the local authority, and that until the notice is given the local authority is not entitled to recover anything by summary process. It seems to me that only after that notice of demand is there an appeal given by section 268. There is only one appeal, namely, when the local authority demand payment of the sum apportioned, and then the appeal arises, because it is not until then that the case can be said to be one in which the local authority can recover any expenses in a summary manner. The appeal must be made by memorial addressed to the Local Government Board within twentyone days after notice of demand has been given. Into what may the Local Government Board enquire upon that appeal? It is said the only question is whether the Local Government Board think it equitable that the local authority recover the expenses incurred in a summary manner, or declare them to be private improvement expenses. It would be a narrow construction to put upon the statute to hold that no appeal could be brought as to whether works ought to have been ordered If |