Attorney General v Eastlake
| Jurisdiction | England & Wales |
| Judgment Date | 29 April 1853 |
| Date | 29 April 1853 |
| Court | High Court of Chancery |
English Reports Citation: 68 E.R. 1249
HIGH COURT OF CHANCERY
S. C. 2 Eq. R. 145; 17 Jur. 801; 1 W. R. 323. See Beaumont v. Oliveira, 1869, L. R. 4 Ch. 314; Attorney-General v. West Hartlepool Imporvement Commissioners, 1870, L. R. 10 Eq. 156; In re St. Bride's (Fleet Street) Parish Estate, 1877, 35 Ch. D. 147, n;[1877], W. N. 95; Elias v. Griffith, 1878-79, 8 Ch. D. 525; 4 App. Cas. 454; Attorney-General v. Mayor, &c., of Dartmouth, 1883, 48 L. T. 934; In re St. Botoloph Without Bishopsgate Parish Estates, 1887, 35 Ch. D. 150; Smith v. Kerr [1900], 2 Ch. 520; [1902], 1 Ch. 774.
[205] attorney-general v. eastlake. April 29, 1853. [S. C. 2 Eq. E. 145; 17 Jur. 801; 1 W. R. 323. See Beaumont v. Oliveira, 1869, L. R. 4 Ch. 314; Attorney-General v. West Hartlepool Improvement Commissioners, 1870, L. R. 10 Eq. 156; In re St. Bride's (Fleet Street) Parish Estate, 1877, 35 Ch. D. 147, n.; [1877], W. N. 95; Elias v. Griffith, 1878-79, 8 Ch. D. 525; 4 App. Cas. 454; Attorney-General v. Mayor, &c., of Dartmouth, 1883, 48 L. T. 934; In re St. Botoloph Without Bishopsgate Parish Estates, 1887, 35 Ch. D. 150; Smith v. Kerr [1900], 2 Ch. 520; [1902], 1 Ch. 774.] Commissioners having, before the passing of the Municipal Corporation Act (5 & 6 Will. 4, c. 76), been empowered by a local Act of Parliament to levy rates not exceeding 2s. in the pound in any one year, for paving, lighting, watching and improving the streets of a town, were, by the Municipal Corporation Act, relieved of the duty of watching, and were by the effect of the same Act prevented from levying rates of more than Is. 3d. in the pound in any year. Held, that although, if the powers of the commissioners had been sought to be affected by a Private Act, they might have applied funds raised by them under their Act in opposing such intended Private Act, yet they could not apply any such funds in soliciting a new Act to obviate the consequences of the Public General Act, or to extend the powers originally given to them by their local Act. By a local Act certain commissioners were authorised to levy rates for paving, lighting, watching, widening and improving streets in a town. Held, that, as the object was beneficial, not only to the inhabitants subjected to the rate, but also to all other persons having occasion to visit or pass through the town, the purpose was public and charitable within the meaning of the Statute of Charitable Uses. The question whether funds are dedicated to a charitable use within the statute 43 Eliz. c. 4, depends, not on the source from which the funds are derived, but on the purpose to which they are to be applied. Cases (as of waste) in which delay in applying for an injunction may not be deemed to preclude the parties aggrieved from obtaining that relief upon an interlocutory application. The information which was filed at the relation of two of the ratepayers of the town of Plymouth against the Clerk of Commissioners appointed under a local Act, and against such of the Commissioners themselves as formed a majority in passing certain resolutions of the body which were complained of, stated the material parts of the Act in question (5 Geo. 4, c. xxii., local and personal), intituled "An Act for Better Paving, Lighting, Cleansing, Watching [206] and Improving the Town and Borough of Plymouth in the County of Devon, and for Regulating the Police thereof, and for Removing and Preventing Nuisances and Annoyances therein." The preamble of the Act, after reciting several previous local Acts, proceeds, " And whereas, since the time of passing the said Acts, the said town of Plymouth has considerably increased in extent and population, and is still increasing; and whereas the powers and provisions of the said recited Acts have been found inadequate for the several purposes thereby intended : and whereas the towns of Stonehouse and Devonport, and His Majesty's Dockyard, Gun Wharf, Royal Naval Hospital, Royal Marine Barracks, and other public establishments are situate in the immediate vicinity of Plymouth westward, on which account and to facilitate access to the market in the said town of Plymouth it would be of great importance to have safe and convenient thoroughfares in the said town of Plymouth from east to west: and whereas it would be also of great general advantage and convenience to the inhabitants of the said town of Plymouth, and to the public, if certain narrow and incommodious streets and other public passages and V.-C. xiii.-40 1250 ATTORNEY-GENERAL V. EASTLAKE llHARE, 207. places within the said town were widened and improved, and if proper regulations were made and established for the police and nightly watch of the said town, and also for preventing encroachments, nuisances and annoyances therein, and also for the better regulating the carters, porters and draymen within the said town." The Act then proceeds to repeal the former Acts; and it is thereby, amongst other things, enacted that certain persons therein named and their successors should be and they were thereby appointed Commissioners for carrying the Act into execution and (s. 105) that, for raising money for answering and defraying the expenses attending the obtaining of the said Act and carrying into execution the several purposes thereof, it should be lawful for the Commissioners or any seven or more of them, and they were thereby empowered, when and so [207] often as they should think necessary, at any meeting or meetings to be holden for that purpose, to order and direct a rate or rates, assessment or assessments to be made, charged or levied upon the tenants or occupiers, not exceeding two shillings in the pound in any one year on the full annual value of all houses and other buildings and erections in the town and borough of Plymouth (within certain limits therein mentioned); and that such rate or rates, assessment or assessments should be made at any time after the passing of the Act, and should be assessed and raised by such payments as the Commissioners should think fit and direct, and should when collected be paid to the treasurer for the time being of the said Commissioners. And the Act (s. 128) directed that all the monies which should be raised by virtue of the Act from and by the rates and assessments thereinbefore authorised to be assessed and levied, and all monies which should be borrowed on mortgage of the same rates and assessments, and all the monies which are therein directed to be applied to the purposes of the Act in regard to the disposal of which no specific directions are therein given, should be and the same were thereby vested in the Commissioners; and that the same should be paid, applied and disposed of by and under the order of the Commissioners in manner following (viz.), in paying and defraying the expenses of applying for or incident to the obtaining and passing of that Act, and in paying off and discharging all monies, debts and demands theretofore borrowed or otherwise incurred and remaining due and owing by virtue of the Acts thereinbefore recited, and in or for the paying and defraying the charges and expenses of providing materials for, and paving, stoning, flagging, repairing, amending, widening, fencing and improving the streets, public quays, lanes, roads, passages, market place and other public places within the said town and borough; and of the present and future tunnels, gutters, sinks, drains, sewers and watercourses in or belonging thereto; and also in providing a [208] sufficient number of lamp-posts, lamp-irons, and keeping the same in repair from time to time, and in paying and defraying the charges and expenses of lighting, watching and regulating the same streets, public quays, lanes, roads, passages, market place and other public places, in the manner thereby directed, and for paying the purchase-moneys for, and the costs, charges and expenses of and attending or incident to the purchase of any messuages, houses, buildings, walls, lands, tenements or hereditaments, or any part or parts thereof, which by that Act are authorised to be purchased; and all other costs, charges and expenses relating or incident to the execution of that Act; and the powers and authorities thereby given to the said Commissioners, and in and for paying the annual interest of the principal moneys to be borrowed on the credit of such rates and assessments by virtue of that Act, and in and for paying off the principal moneys to be borrowed as last aforesaid ; and in and for carrying the intents and purposes of that Act into full and complete execution in other respects, or in and for any of the aforesaid purposes, and for no other use, intent or purpose whatsoever. Under this Act the Commissioners proceeded to execute their powers; and they for several years carried on the purposes of the Act, and from time to time levied rates for such purposes. The powers of the Commissioners were in some degree abridged by the Municipal Corporations Act (5 & 6 Will. 4, c. 76, s. 84,(1) which (1) Sect. 84 enacts, " That, as soon as constables shall have been appointed by the watch committee for any borough, a notice, signed by the mayor of such borough specifying the day on which such constables shall begin to act, shall be fixed on the door of the town hall and every church within such borough; and on the day 11 HAKE, 209. ATTORNEY-GENERAL V. EAiSTLAKE 1251 reduced the rate to [209] be levied by them to an amount the maximum of which was not to exceed the average of the preceding seven years' expenditure for purposes other than watching. At a meeting of the Commissioners on the 27th of December 1852 a resolution was come to and passed by a majority of the Commissioners present thereat, which was as follows :-"Kesolved, that the usual and necessary petition to Parliament for the proposed Plymouth Improvement Bill, in pursuance of the Standing Orders of Parliament, be now signed." And at the same meeting the majority of the...
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