CHAP. XXXVII MUNICIPAL LEGISLATION 337 Finally, we have to see how the legislation of a municipal council is enforced. Disobedience to any by-law, regulation, or joint-regulation of a municipal council or councils, lawfully made, is deemed an offence against the Local Government Act 1890,1 and may be punished, in the absence of special provision, by fine in the discretion of the magistrate, not exceeding £20.2 3 And a by-law may also impose a penalty, or series of penalties, not exceeding £20 for any offence, or for any series. of offences which practically constitute one act.* But an offender may not be prosecuted or punished for the same offence under the Local Government Act or municipal by-law and also under the Police Offences or Health Acts.5 A document certified under the hand of a municipal clerk as a true copy of a by-law or regulation of his municipality or of a jointregulation as affecting his municipality, is prima facie evidence of the fact. 6 1 Local Government Act 1890, §§ 218, 535. 2 § 536. The penalty is recoverable before two justices (§ 537). Cf. also Police Offences Act 1890, § 99. 3 Local Government Act 1890, § 217. 4 R. v. Shuter, V. L. R. (L.) 138. 6 § 223. 5 Local Government Act 1890, § 221. CHAPTER XXXVIII MINING DISTRICT BOARDS THIRTY years ago, mining was the most important and popular industry in the colony. For some time past the popularity of the pursuit has been rapidly waning, until it is now estimated that less than 24,000 persons, of whom nearly one-sixth are Chinese, are engaged in it. But its former importance has given the subject something more than a historical interest. So much government machinery was needed to organise the goldfields in the palmy days of the "fifties," that the subject has left a broad mark, which will not for many years be effaced, upon the government of Victoria. The matter has two sides with which government is directly connected the economic and the constitutional. The economic aspect is due mainly to the old feudal rule which gave the Crown the right to claim all precious metals found within its dominions, whether on private or public land. The doctrine was firmly established on the outbreak of the gold fever in Australia, and is the key to the history of the subject from a public point of view. The Crown has acted as landlord no less than as ruler, and this fact has given the mining legislation its economic aspect. Putting aside this aspect, as not strictly within our province, and confining ourselves as much as possible to the constitutional side of the question, we proceed to sketch the mining system as a branch of local government. 1 Report of the Mining Department for the quarter ending 30th June 1890, p. 47. The precarious character of mining pursuits may be estimated from the fact that the total returns do not average £100 a year for each individual engaged in it. This sum, which takes no account of interest on fixed capital, is less than the average wage of an unskilled labourer. CHAP. XXXVIII MINING DISTRICTS 339 Mining Districts appear to date from the year 1855, when the Governor was empowered, with the advice of the Executive Council, to proclaim any goldfield as a district for the purpose of forming a local court. There was no limitation as to number, but when the power was renewed by a statute of the year 1857, the number of goldfields was limited to six, unless upon the petition of the two Houses of Legislature. By the Mining Statute of 1865 the limit was raised to seven, at which number it now remains, the present mining districts of Ballaarat, Beechworth, Sandhurst, Maryborough, Castlemaine, Ararat, and Gippsland, containing a total area of 86,760 square miles." A mining district may by proclamation be divided into any number of divisions." The district of Beechworth contains eighteen, the others various smaller numbers.7 3 The legislative body of each mining district is its Board, which consists of ten members, and to which four members are elected annually on the last Saturday in February, in place of the four senior members, who retire by rotation. These members are distributed amongst the divisions of the district by proclamation, and receive remuneration out of a fund provided by the Consolidated Revenue." Retiring members are re-eligible." Any male of the age of twenty-one years, the holder of a miner's right or business licence, and being a natural-born or naturalised subject of the Queen, resident within his division, may be elected a member of a mining board.12 The qualification for an elector is the same.13 But in each case the miner's right must have been held for at least three months.1 There is no special roll of electors, but each voter produces his miner's right or business licence, and may be called upon to answer certain questions in proof of his qualification.15 In each district there is a returning officer, appointed and removable by 118 Vic. No. 37, § 16. 3 29 Vic. No. 291, § 46. 2 21 Vic. No. 32, § 13. Report of Mining Department for quarter ending 30th June 1890, p. 47. 14 13 Ibid. A "miner's right" is a Crown permit, entitling the holder to take possession for purposes of mining and residence of a limited area of Crown land. A "business licence empowers the holder to occupy a limited area of Crown land on a goldfield for purposes of residence and business (§§ 4, 5, 11, 12). 15 §§ 96 and 97. 14 § 90. He becomes the Governor in Council.1 A member of a mining board may, by letter to the returning officer, resign his seat.2 disqualified for membership by the following events. 1. Failure to attend four consecutive meetings. 2. Insolvency. 3. Conviction of felony, perjury, or infamous offence. Each mining board must hold a meeting on the second Tuesday after a general election, and at such other times as it is convened by the chairman upon seven days' notice by advertisement in a local newspaper.* Five members form a quorum.5 At the first meeting after a general election, it elects a chairman, who holds office until the corresponding meeting of next year, unless he dies or resigns in the meantime." He has a casting, but not an ordinary vote.7 Each mining board may make by-laws, not affecting existing rights and liabilities, for the regulation of decision of disputed elections and the conduct of its own business, as well as for the settling of a large number of points arising in connection with the operation of mining and for prescribing the conduct of mining operations. It may also pass by-laws imposing rates upon land and machinery occupied or used for mining purposes. All by-laws must be signed by members concurring therein, and sent to the law-officers of the Crown, who, if they are not contrary to law, certify and publish them in the Government Gazette. Twenty-one days after publication they come into operation, and have the force of law throughout the district, or that part of it to which they are made applicable. But such by-law cannot prevent the operation of a municipal by-law, and any person, upon due notice advertised, may state his objections in writing to the law officers, who thereupon bring the matter before the Governor in Council, by whom the by-law in question may be revoked.10 The proper court in which to enforce a bylaw of a mining board is the court of the warden of the district, which has power to inflict a penalty of £10 for its breach.11 10 § 108. 8 § 106. (The provisions are too technical to be stated in detail.) 9 § 107. 2. EXECUTIVE CHAPTER XXXIX MUNICIPAL AND MINING OFFICIALS It may treat A MUNICIPAL council does much of its own executive business directly, just as the Legislative Assembly does. (subject to certain precautions) with the conductors of offensive works for their removal upon payment of compensation,1 it may register dancing saloons,2 may sell, purchase, and lease lands,3 may borrow money for permanent works or the payment of its debts, may enter into contracts for various purposes, may take land compulsorily on payment of compensation, may open, close, construct, manage, and alter streets, bridges, and other means of communication, may construct and maintain sewers and drains, may provide baths and washhouses, construct and establish markets,10 and provide places of recreation and amusement.11 All these functions, at least in their initial stages, must be performed by the council in its corporate capacity, and cannot be delegated to officials. But to conduct the routine business of the municipality, and carry its legislation into effect, certain officials are appointed by the council, some of whom are constitutional, i.e. contemplated by the general scheme of local government as essential to each municipality; the others are merely ministerial, appointed as convenience requires. The first of these is the CHAIRMAN of the Council, who, in the case of a borough, is called the "Mayor," and, of a shire, |