CT. OF APP.] displace the effect of the whole count. are the doubts I feel. LEWIS v. CARR. These LUSH, J.-I agree with the Lord Chief Baron, and think that the conviction should be quashed. The 32 & 33 Vict. c. 62, s. 11, subs. 15, creates the offence in these terms [His Lordship then read the enactment], and sect. 19 enacts that "in an indictment for an offence under the Act it shall be sufficient to set forth the substance of the offence charged in the words of the Act specifying the offence or as near thereto as circumstances admit, without alleging or setting forth any debt, act of bankruptcy, trading, adjudication, or any proceedings in, or order, warrant, or document of, any court acting under the Bankruptcy Act 1869." The substance of the offence charged is that the trader who commits the offence within four months of the presentation of a bankruptcy petition against him should be afterwards adjudicated a bankrupt upon that petition, that the act done while in a state of insolvency should be followed up by bankruptcy. Does this count state that? It states that before the committing of the offence hereinafter mentioned the prisoners were adjudicated bankrupts, and that afterwards, with intent to defraud their creditors, within four months before the presentation of a petition in bankruptcy against them, they did the acts charged. A man may be a bankrupt more than once, and the count may be read that after a first bankruptcy, and within four months before the presentation of a petition in bankruptcy against them, that must be taken a new petition, they did the acts charged. And as petitions in bankruptcy sometimes come to nothing, and it is not alleged in the count that there was any adjudication in bankruptcy upon this petition, why is it to be intended that there was such an adjudication. If such an intendment cannot be made the count discloses no offence. To make the offence we must alter the indictment by intending that a bankruptcy adjudication occurred afterwards. not feel justified in making these alterations in the count. After verdict we may reject all superfluous averments, and if the averment "before the commission of the offence hereinafter mentioned were struck out, no offence would be stated in the count, unless it can be intended that the presentation of a petition in bankruptcy alleged in the count was followed by an adjudication in bankruptcy. I do not think that we can fill up that omission by intendment, because a verdict of guilty has been found. Sect. 19 of the Act only makes an indictment good when it states the offence in substance. But here it does not state that the presentation of a bankruptcy petition was followed by an adjudication in bankruptcy, which is necessary to complete the offence. I do DENMAN, J.-I agree with the Lord Chief Baron and my brother Lush, J. I HUDDLESTON, B.-I concur with my brother Mellor, J. in entertaining doubts in this case. doubt whether all that is necessary after verdict to constitute the offence does not appear on the face of this count of the indictment. I am inclined to think that under sect. 24 of 14 & 15 Vict. c. 100, which says that no indictment shall be held insufficient (inter alia) for omitting to state the time at which the offence was committed in any case where time is not of the essence of the offence, nor for stating the time imperfectly, may cure the objec tion that by the words "before" and "afterwards" [CT. OF APP. in this count the time has been improperly stated. But on the point that this count is good after verdict, I am inclined to think that enough appears on the face of the indictment to show the offence substantially. I agree that the offence must be committed within four months before the presentation of a petition in bankruptcy which is followed by an adjudication in bankruptcy. But could they have been convicted upon this indictment if after having been bankrupts ten years previously they had within four months next before the presentation of a new petition in bankruptcy not followed up by an adjudication of bankruptcy against them? I think not, and if not, may we not after verdict reject the words before the commission of the offence hereinafter mentioned and the word "afterwards" as surplusage. I entertain some doubt upon this point. Conviction quashed. 66 Supreme Court of Judicature. COURT OF APPEAL. SITTINGS AT WESTMINSTER. Reported by W. APPLETON, Esq., Barrister-at-Law. Monday, June 19, 1876. Municipal Corporations Act (5 & 6 Will. 4, c. 76), 88. 28, 52, and 53 Borough · Alderman's contract with council-Disqualification-Action for penalties. By sect. 28 of the 5 & 6 Will. 4, c. 76, it is enacted that no person shall be qualified to be elected, or to be a councillor or an alderman of one of the boroughs named in the schedule to the Act during such time as he shall have either directly or indirectly any share or interest in any contract or employment with, by, or on behalf of the council of the borough. By sect. 53, if any person shall act as mayor, aldermin, or councillor, for any borough after he shall cease to be qualified according to the provisions of the Act, or after he shall become disqualified to hold any such office, he shall for every such offence forfeit the sum of 50l., such sum to be recovered, &c. The defendant was a burgess and an alderman of the borough of Macclesfield. On six different occasions, between the 19th of June and the 31st of Dec. 1874, goods were supplied from the de fendant's shop to the town council according to the orders of the council, who subsequently paid for the goods. The defendant subsequently, on the 19th of June, 1875, and afterwards, acted five times as an alderman of the borough. The plaintiff sued the defendant to recover the penalties under sect. 53 of the Municipal Cor poration Act. for his having so acted. Held (affirming the decision of the Exchequer Division below), that the defendant, under sect. 28, he was disqualified from being an alderman of the borough only so long as his interest in the contract with the council continued, and he did not cease to be qualified, or become disqualified CT. OF APP.] Mayor, &c., of Worcester v. ASSESSMENT COMMITTEE OF DROITWICH UNION. [Ct. of App. after that interest had determined, and therefore that he was not liable. THIS was an appeal from the decision of the Exchequer Division. The plaintiff brought his action under sect. 53 of the Municipal Corporation Act (5 & 6 Will. 4, c. 76), to recover penalties against the defendant for having acted as an alderman of the borough of Macclesfield. At the trial before Lord Coleridge, C.J., at the Chester Summer Assizes 1875, the learned judge thought that the case came within the mischief contemplated by the Act, and a verdict was entered for the plaintiff, execution having, however, stayed to enable the defendant to move. A rule nisi calling upon the plaintiff to show cause why the verdict should not be set aside, and & new trial granted on the ground of misdirection, was accordingly obtained in the Exchequer Division for the defendant, and made absolute. The plaintiff now appealed. The case in the court below will be found fully reported ante p. 156; 34 L. T. Rep. N.S. 390. J. Brown, Q.C. (4. Williams with him), for the plaintiff.-The office of alderman was vacated when the defendant took the contract with the council. It cannot be resumed when the contract has terminated. The defendant by acting as alderman after taking the contract has brought himself within the words of the 33rd section, and the mischief contemplated by the Act. Reg. v. Francis (18 Q. B. 526; 21 L. J. 304, Q. B.) is a decision upon this 28th section, but it only decided that a quo warranto might be applied for notwithstanding more than 12 months had elapsed from the time of the election. The court did not say more than that the disqualification continued during the existence of the contract. That case is not in point here. M'Intyre, Q.C. for the defendant.-The disqualification continues only during the continuance of the contract; otherwise the burgess would be disqualified from acting as alderman for ever. Sect. 28 is aimed at continuous contracts. In sect. 52, where it is intended that a man shall "become disqualified and cease to hold the office," it says so in terms. It cannot be intended that that section should apply to a burgess taking contracts with the council, or it would have said 80. Nicholson v. Fields (31 L. J. 233, Ex.; 7 H. & N. 810) is in point. He also referred to Burn's Justice of the Peace, vol. 3, p. 121; 18 Geo. 2, c. 20, s. 1. J. Brown, QC. replied. JAMES, L.J.-I am of opinion that the judgment of the Court of Exchequer in this case must be affirmed. I think it is clear that some limitation to the period during which, under sect. 53, a man is liable to the fine for acting as alderman or councillor after he has ceased to be qualified, must be implied from the words of the section. Otherwise a person once disqualified could never again be elected, or re-elected, and act without incurring the penalty, although his disqualification might be removed. Under sect. 28 it is provided that no person shall be qualified "to be elected " or to be a councillor or alderman "during such time" as he shall be interested in a contract with the council. I do not think, under this section, that the limitation of disqualification is confined to the election only. Applying that limitation to the rest of the section the result is that the defen. dant was not capable of being a councillor or alderman" during such time" as he was engaged in business contracts with the council. Then we must apply the same construction to the 53rd section as we have done to the 28th, and it follows that the defendant was only disqualified from being an alderman during the continuance of his contract with the council, and as he is not asserted to have acted during that time, but afterwards, he is not liable to the penalty for acting after the disqualification had ceased. MELLISH, L.J.-I am of the same opinion. BAGGALLAY, J.A.-1 am of the same opinion. The acts provide four cases in which the alderman or councillor becomes disqualified. They are: If he shall be bankrupt or insolvent, or make a composition with his creditors, or be absent from the borough for more than six months at a time (unless in case of illness); but in the same section (the 52nd) it is provided that on payment of creditors or on return to the borough, if not otherwise disqualified, the person may be re-elected. I think that whatever may be the disqualification intended in the 28th section, if it had been intended that a person duly elected, who by entering into a contract with the council had become disqualified should be excluded from holding office until re-elected, it would have been specifically so stated, as it is in the class of cases mentioned in the 52nd. There are no such words in the 28th section, and I am of opinion that the judgment of the Exchequer Division was right and should be affirmed. June 22 and Nov. 10, 1876. (Before JAMES and MELLISH, L.JJ., BAG- THE MAYOR, &c., OF WORCESTER V. THE ASSESS- CT. OF APP.] MAYOR, &C., OF WORCESTER v. ASSESSMENT COMMITTEE OF DROITWICH UNION. [CT. OF APP. were bound to make an estimate of the sum they actually required for the maintainance of the waterworks, and could not levy a larger sum by a water rate than they were so estimated to require, (2) (affirming the decision of the Divisional Court of Appeal) that they were rateable for the relief of the poor only in respect of the profit they actually derived from the occupation of the waterworks, and not in respect of the profit which a company occupying the works solely for the purpose of profit might make. THIS was an appeal from a decision of the Divisional Court of Appeal from Inferior Courts giving judgment for the appellants upon a special case stated for the opinion of the court by consent between the parties, and by order of Blackburn, J. in pursuance of the 12 & 13 Vict. c. 45, s. 11. The special case, and the arguments and judgments in the court below will be found ante p. 140; 34 L. T. Rep. N. S. 288. For the purposes of this report the facts sufficiently appear from the head note above, and the judgments of the Court of Appeal (post). By sect. 93 of the Public Health Act 1848, (11 & 12 Vict. c. 63) it is enacted "That whenever and so long as any premises are supplied with water by the local board of health, for the purposes of domestic use, cleanliness, or drainage, they shall make and levy, in addition to any other rate, a water rate upon the occupier except as hereinafter provided, and the rate so made shall be assessed upon the net annual value of the premises ascertained in the manner herein before prescribed with respect to special and general district rate," &c. Sect. 94 provides that the water rate shall be payable in advance, and gives power to stop the water in case of non-payment of the rate. Jelf (with him H. Matthews, Q.C.), for the Droitwich Union, the respondents below.-It is immaterial whether the local board make a profit in money out of the work, or whether they make a profit at all. Ability to make a profit is the true test of the measure of the rateability under the old statute 43 Eliz. [MELLISH, L. J.—But is that so when you are rating a public body who are bound not to make any profit ?] By sect. 93 of the Public Health Act 1848, the local board are enabled to levy a water rate on the inhabitants, and by sect. 73 they are enabled to buy premises for the waterworks. It is their own fault if they do not get the rateable value out of the works. The test, as laid down in the Mersey Docks case is that the capability of owners and occupiers in the district to make profits in money or their equivalent is to be the guide in rating them to the relief of the poor. The local board are exactly in the same position as the inhabitants of Worcester, and these get substantial advantages, although not in money, out of the waterworks. This case differs from the Mersey Docks v. Jones and the Mersey Docks v. Cameron (11 H. L. Rep. 443; 20 C. B., N. S., 56), where the trustees were expressly forbidden to make any profit at all. Corporations might reduce their rates to nothing, if the contention of the other side is right. The case of the Mayor of Liverpool v. The Overseers of Wavertree (30 Justice of the Peace, 101) is distinguishable from the present, for there an express limit was placed to the profit which could be made. He also cited and referred to Reg. v. Justices of Hull, 4 E. & B. 29; and sub nom. Reg. v. Longwood, 21 L. J. 215. M. C.; 17 Q. B. 871; Mayor of Liverpool v. Overseers of West Derby, Reg. v. Mayor of Manchester, 21 L. J. 160, M. C. Powell, Q.C. and Castle for the local board, the appellants below.-The local board are not in the position of a hypothetical tenant without any restriction, for they are obliged to supply the town with water at a price. The rate is to be made beforehand to meet the board's expenses. There is no question of deducting the expenses from the rate. The position of the board is precisely that of the corporation in the Mayor of Liverpool v. The Overseers of Wavertree (ubi sup.), which is a direct authority in our favour. They referred also to The Metropolitan Board of Works v. West Ham, 23 Jelf replied. Cur adv. vult. QUAIN, J., who heard the arguments, died before judgment was delivered. The judgment of the court was delivered on 10th Nov. by MELLISH, L.J., as follows. - The question to be determined in this case is on what principle the corporation of Worcester are to be assessed to the poor rate in respect of a certain reservoir and water works situate within the Droitwich Union, which were erected and are maintained by the corporation under the provisions of the public Health Act for the purpose of supplying the town of Worcester with water The corporation contend that "the provisions of the Public Health Act contain the only authority for the appellants to charge a water rate on consumers of water, and that such rate only is authorised by the statute as might be reasonably expected to be necessary to defray the expenses incident to the water supply, and that they have no authority by the said Act or otherwise to receive any more money from the consumers than is required to pay the abovementioned expenses. And further, that as the inhabitants have, on the faith of the existing rates, adopted the water supply of the appellants, and suffered their private resources to fall into disuse without special causes, it would be a breach of good faith to alter such rates. And that, therefore, the appellants are only rateable for the rent which a tenant from year to year would give for the land subject to the existing rates, and the same restrictions (if any) as those under which the appellants hold it, and not that which & tenant entirely unfettered might give. The respondents, on the other hand, contend that it is right to rate the appellants in respect of the waterworks in Claines (as directed by sect. 1 of the 6 & 7 Will. 4, c. 96) at what a tenant would give with liberty to raise the price of water as he might think proper, so far as not restricted by law; that there were no restrictions by law in the present case, and that the fact that appellants, in fixing their rates, looked only to the benefit of the inhabitants and ratepayers of the city of Worcester, only transfers the advantage and benefit of the property from themselves to those inhabitants and ratepayers for whom they are trustees, and that it would be unfair that the inhabitants and ratepayers of the city of Worcester should enjoy this advantage and benefit at the expense of the parish of Claines and the rest of the Droitwich Union." It has been held by the Divisional Court of Appeal that the contention of the corporation is right, and we are of opinion that their decision ought to be affirmed. There are two questions to be considered. First, are the corporation, according to the true construction of the Public Health Act, prevented from charging for the use of the water a larger sum than the sum they actually require for the maintenance and repair of the waterworks; and, secondly, if they are, can they be rated as occupiers in respect of profits, which the law does not allow them to earn. Now, with respect to the first question, we think that the corporation in making a water rate under sect. 93 of the Public Health Act are bound to make an estimate of the sum they actually require for the maintenance of the water works, and cannot legally levy a larger sum by a water rate than the sum they so require. The 94th section makes the water rate payable in advance, and enables the supply of any persons who neglects to pay it to be cut off, and we think it cannot have been intended that the corporation should charge any person more than his fair share of the sum which is required to maintain the waterworks. There is nothing in the case to prove that the 651l. which is stated to be on the average of eight years, the whole net income the corporation have derived from the waterworks was not the whole sum they required for the maintenance of the waterworks. The question then is whether, in applying the rule given by the Parochial Assessment Act, the court is to consider what rent a tenant from year to year would give for the reservoir and waterworks, who was subject to the same restrictions the corporation are subject to, or what rent a tenant from year to year would give who was subject to no such restrictions, and we are of opinion that the hypothetical tenant is to be a tenant subject to the restrictions. The case of the corporation of Liverpool, and the overseers of Wavertree, as reported in the Justice of the Peace is directly in point, and we are of opinion that case was correctly decided. Blackburn, J., there says, "The whole question turns on the rule given by the Parochial Assessment Act, which says the occupier is rateable at what a tenant from year to year will give, subject to the same restrictions as those under which the tenant holds it." This decision seems to us to he right on principle. An occupier of land is not rateable in respect of the whole profit derived from the land, but only in respect of the profit which he himself derives from the land. If there be a common in the possession of the lord of the manor, he is not rateable in respect of the profits derived by the commoners from the common, although, in rating the lands of the commoners, the fact of their lands being rendered more valuable by reason of the occupier being entitled to a right of common is taken into account. So in the present case the rent, and, therefore, the rateable value of every house in Worcester, is increased by reason of the occupier being entitled to cheap water from the waterworks of the corporation, and if the corpora.ion in respect of the reservoir and waterworks were rated at the profit which a tenant under no restriction could get from the waterworks, the [CT. OF APP. same profit would be rated twice over. If the works were transferred to a tenant, who was under no restriction as to the price he charged for water, the rateable value of the waterworks would be increased, but there would be a corresponding diminution of the rateable value of the premises supplied with the water. We may also observe that the reservoir by itself without the power of connecting the reservoir with the houses by pipes running through the streets is, probably, worth nothing, and certainly is not worth 600l. a year, and it is the same Act of Parliament which gives the power to lay the pipes, and, therefore, creates the value of the reservoir which contains the restrictions on the amount of profit, which the occupier of the reservoir can earn. Even in the case of the reservoirs of public companies established by Act of Parliament to supply towns with water, in estimating the rateable value of the reservoirs, the court only considers the amount of profi which the terms of their Act enable the company to earn, not the profits which the company might earn if Parliament had enabled the company to establish the waterworks without restriction as to the price to be charged to consumers. So also in rating a railway, or any other work made under an Act of Parliament, the calculation must always commence with the profits, which are actually earned according to the terms of the Act of Parliament, not with the profits which might be earned if the company was unlimited in its charges. It follows, therefore, that, according to the contention of the appellants, the corporation are rateable in respect of their reservoir at a higher sum than a waterworks company established by Act of Parliament would be rateable, and are rateable on an assumption, which not only is not true, but which cannot be true, namely, that a tenant is in possession of a reservoir with the monopoly of the supply of a particular town with water, and is unlimited in respect of his charges. Judgment below affirmed. Solicitors for appellants, Church, Sons, and Clarke, for Southall, Worcester. Solicitors for respondents, Tucker and Lake, for Bearcroft, Droitwich. Saturday, Nov. 4, 1876. (Before COLERIDGE, C.J., MELLISH, L.J., and BRETT, J.A.) REG. v. COLLINS. Local board-Election—Quo warranto-Scrutiny of votes-Certificate of chairman-When final Miscounting-Judicial decision-11 & 12 Vict. c. 63, s. 27-Public Health Act 1848. At an election of members for a local board of health, the chairman, acting under sect. 27 of the Public Health Act 1848, certified that seven persons, of whom the defendant was one, and had the smallest number of votes, were elected. The relator, who was a candidate, had three votes less than the defendant. Upon a scrutiny before a judge of assize without a jury, it appeared that by correction of mistakes in counting, the votes for the relator and the defendant were equal; that one vote for the relator had been mislaid and not counted at all; and that two votes for the relator which the chairman had found to be valid were in fact invalid, although no objection had been made to them at the time of their reception. Held (affirming the judgment of the Queen's Bench Division below), on a quo warranto, that mistakes made in the chairman's ministerial capacity alone could be inquired into, but that his certificate was conclusive as to all matters upon which he could, by using the means provided by the Act, come to a judicial decision, and that, therefore, the chairman's addition of the votes could, but the validity of the votes could not, be questioned. THIS was an appeal from a decision of the Queen's Bench Division making absolute a rule to enter the verdict for the relator on a quo warranto issue. The quo warranto called on the defendant to show by what title he acted as a member of a local board of health. Plea, that the defendant was duly elected, and traverse of the plea by the relator. The issue was tried before Blackburn, J., without a jury, at the Dorchester Winter Assizes 1875. A verdict was entered for the defendant, leave being reserved for the relator to have the verdict entered for him. The relator accordingly obtained a rule nisi pursuant to his leave reserved, and, upon cause being shown, the Queen's Bench Division (Mellor and Field, JJ., Blackburn, J. dissenting) made the rule absolute. From this decision the relator now appealed. The case in the court below is fully reported ante p. 173; 34 L. T. Rep. N. S. 447. The facts sufficiently appear from the head note above. By sect. 27 of the Public Health Act 1848 (11 & 12 Vict. c. 63) it is enacted: That the chairman shall on the day immediately follow. ing the day of the election, and on as many days imme. diately succeeding as may be necessary, attend at the office of the local board of health, and ascertain the validity of the votes by an examination of the rate books and such other books and documents as he may think necessary, and by examining such persons as he may see fit; and he shall cast up such of the votes as he shall find to be valid and to have been duly given. collected, or received, and ascertain the number of such votes for each candidate. And the candidates to the number to be elected, who being duly qualified, shall have obtained the greatest number of votes, shall be deemed to be elected and shall be certified as such by the said chairman under his hand; and to each person so elected the said chairman shall send or deliver notice of such election; and the said chairman shall also cause to be made a list containing the names of the candidates together with (in case of a contest) the number of votes given for each and the names of the persons elected; and shall sign and certify the same, and shall deliver such list, together with the nomination and voting paper which he shall have received to the local board of health at their first or next meeting (as the case may be), who shall cause the same to be deposited in their office, and the same shall during office hours thereat be kept open to public inspection, together with all other documents relating to the election, for six months after the election shall have taken place, without fee or reward; and the said chairman shall cause such lists to be printed and copies thereof to be affixed at the usual places for affixing notices for parochial business within the parts for which the election shall have been made. The whole of this Act is now repealed by 38 & 39 Vict. c. 55, but the provisions of sect. 27, as to the duties of the returning officer at elections are reenacted in the new Act (Schedule 2, ss. 51 & 54), in precisely the same terms as in sect. 27, with the insertion of the following clause between the words Such votes for each candidate," and "and the candidates." Any candidate may himself attend, or may appoint any [CT. OF APP. agent to attend the examination and casting up of the votes; any candidate or agent so attending who obstructs or in any way interferes with the examination and casting up of the votes, may, by order of the returning officer, be forthwith removed from the place appointed for that purpose, and shall not be permitted to return. Cole, Q.C. (with him Pinder), for the defendant. -The question is, whether the certificate of the chairman, the presiding officer at elections of local boards of health, is conclusive, or whether it can be afterwards questioned; and, if so, in what manner? Blackburn, J., in the court below, gives reasons, which are conclusive, to show that the Legislature did not intend, by the enactments in sect. 27 of the Public Health Act 1848, to make the chairman's certificate final. The Act provides that the voting and nomination papers should be kept open for the inspection of the public for six months, the object being to give the public an opportunity of examining the voting papers to ascertain whether the votes were valid. If no scrutiny can be held, why should the voting papers be kept open at all? Reg. v. Morgan (25 L. T. Rep. N. S. 930; L. Rep. 7 Q. B. 26), should have been cited in the court below in addition to the cases there mentioned. In that case a quo warranto went, where a chairman had wrongly held that a nomination, under sect. 24, was bad. Under that section a chairman can clearly hold a judicial inquiry into whether a nomination is valid or not. [BRETT, J.-The chairman is to come to a decision after using the means of inquiry provided by the Act. That is arriving at a judicial, or, at all even:s, a quasi judicial decision.] It is submitted that there is no distinction between what a chairman does judicially or what he does ministerially for this purpose. The two capacities cannot be separated. It would be impossible to ascertain how the chairman arrived at his result; whether by miscounting or improper rejection of votes. Kingdon, Q.C. (with him H. C. Bennett), for the relator, were not called on. Lord COLERIDGE, C.J.-In this case we are asked to reconsider the question decided in the judg ments of the court below, and it is suggested that the judgment of Mr. Justice Blackburn should be followed, and that of my brothers Mellor and Field over-ruled. The effect of the judgment of the majority of the court below appears to be this: that where, on an election of a local board, the returning officer has made an error in his ministerial capacity, the mistake may be inquired into by means of a quo warranto; but where the mistake has occurred otherwise, the certificate of the returning officer is final, and the mistake cannot afterwards be inquired into. I am of opinion that the latter view is the correct one. The statute is the Public Health Act 1848, and the important section is the 27th. [His Lordship here read the section (ubi sup.)] Now, by this section the chairman is to ascertain the validity of the votes, and he is to come to a conclusion on their validity or invalidity by the process and means which the Act affords. It might occur to some minds that other means and a better process could have been provided, but, taking the section as it stands, the Legislature has determined that the chairman may come to a decision whether the votes are valid or not, by examining the rate book and witnesses, &c., and that the decision cannot be questioned in so far as it is judicial. I am of opinion that, as has been pointed out by my brother Brett, a judi |