C. A. 1904 REX v. KENT ends of the highway was in fact up concurrently with the other notices for a period of twenty-three days. Danckwerts, K.C., and Hohler, for the respondents. First, the mandate of the surveyor was spent when the first two JUSTICES. justices refused to certify, and the proceedings should have been commenced de novo by a fresh application to the district council: Davison v. Gill. (1) Secondly, as to the time during which the notice is to remain up at the ends of the highway, if there is no such limitation as is suggested by the respondents, it follows that merely affixing the notice for five minutes would be a sufficient compliance with the requirements of the section. This, however, would entirely stultify the object of the Legislature, which, as was pointed out by Blackburn J. in Reg. v. Surrey Justices (2), was not only to secure that every one interested in the preservation of the highway should be aware of what was about to be done before it was done, but also to secure to every one who comes upon the highway the opportunity of reading the notice. There is nothing in the language of s. 85, when grammatically construed, to prevent the period of four successive weeks from applying to the publication of the notice at the ends of the highway; and, that being so, publication during four successive weeks cannot be certified until after the expiration of a period of twenty-eight days. Thirdly, there was no sufficient proof before the justices of the consent of the owners of the land through which the substituted highway was to pass, and the fact of their consent was not recited in the certificate. [They cited on this point Reg. v. Worcestershire Justices (3); Reg. v. Harvey. (4)] Lastly, the reasons given in the certificate for determining that the new highway would be more commodious were not stated to be derived from the view; they were therefore bad. [On this point they cited Reg. v. Wallace. (5)] Macmorran, K.C., was called on to reply as to the second point only. (1) (1800) 1 East, 64. (2) (1870) L. R. 5 Q. B. 466, at p. 471. (3) (1854) 3 E. & B. 477. (4) (1874) L. R. 10 Q. B. 46, 50. (5) (1879) 4 Q. B. D. 641. COLLINS M.R. This appeal turns upon a very technical point arising on the construction of s. 85 of the Highway Act, 1835, by which certain conditions are imposed upon the granting of a certificate by justices authorizing the stopping up or diverting of a highway; the only question for us to consider is whether one of the conditions there imposed has been so performed as to satisfy the requirements of the section. [The Master of the Rolls read the section.] I assume that all the other conditions were fulfilled as to which contentions were raised here or in the Court below except the particular condition which the Divisional Court held had not been fulfilled-that is, the condition as to affixing a notice "at the place and by the side of each end of the highway from whence the same is proposed to be. . . . diverted." There is no doubt that a notice was in fact put up which in its terms was in accordance with the requirements of the section; but in the notice itself a day within four weeks from its date was named as the day on which the certificate of the justices would be given, and it was contended in the Divisional Court and is contended here that unless the notice was left up for twenty-eight days the condition upon which the certificate could be given had not been complied with, and the proceedings consequently failed. This depends upon whether any provision is to be found in the section, not merely for affixing the notice, but for its maintenance for twenty-eight days; if such an obligation is to be found, the judgment appealed from is correct and must be affirmed. But when the section is carefully looked at, nothing of the kind is to be found there. The expression used is 'affix," not "affix and maintain," and no provision as to the time during which the notice is to be maintained can be grammatically extracted from the language used. I pass on to other provisions of the section. The surveyor is to insert the same notice in a newspaper published or generally circulated in the county for four successive weeks after the justices have viewed the highway-a provision which seems to have caused no difficulty to the learned judges in the Divisional Court, who thought that the requirement of the section was satisfied by the advertisement appearing four times in a weekly paper. C. A. 1904 REX V. KENT JUSTICES. C. A. 1904 REX V. KENT JUSTICES. Collins M.R. Then he is to affix a like notice on the church door on four successive Sundays after the view, which was done; at any rate, the notice was affixed to the church door and remained there for four successive Sundays. The section then provides that "the said several notices having been so published," and certain proof have been given, the justices are to give their certificate; and it is clear to me that the words "the said several notices having been so published" must mean that the notice must have been affixed at the ends of the highway (there being no provision for the time it is to remain there), and that the provisions as to the insertion of the advertisement and the affixing of the notice on the church door must have been complied with those are the requirements that cannot be dispensed with. I do not think it is possible to apply to the notice that is affixed at the ends of the highway the same conditions that are imposed by the section upon the advertisement and the affixing of the notice to the church door. We should be reading into the Act of Parliament that which is not in it if we were to hold that it was not complied with because the day mentioned in the notice as that on which the justices' certificate would be lodged with the clerk of the peace was within twenty-eight days of the date of the notice itself. With the greatest respect for the opinion of the learned judges in the Court below, I think that we have no alternative but to differ from them, and to hold that it is not a condition precedent to the validity of the justices' certificate that the notice affixed at the ends of the highway proposed to be diverted shall have been kept affixed for four weeks. STIRLING L.J. I am of the same opinion and for the same reasons; but as we are differing from the view taken by three learned judges for whose opinion I entertain the highest respect, I will state shortly the grounds of my decision. The question is whether the proper procedure has been pursued in proceedings taken to obtain the sanction of justices to the diversion of a highway. Under s. 84 of the Highway Act, 1835, there must be a view of the highway by two justices, and s. 85 deals with what is to happen after the view. If C. A. 1904 REX v. KENT JUSTICES. upon the view it appears that the highway may be diverted so as to make it nearer or more commodious to the public, and if the owner of the land gives his written consent, the justices. are to give certain directions to the surveyor with which I will deal in a moment, and after these directions have been given and certain notices published the justices are to give their Stirling L J. certificate, which is to embody certain matters specified in the section. The question before us really is at what date the justices may, after having viewed the highway, resume their consideration of the matter and proceed to give their certificate: any limit as to the time must be a limit imposed by the statute. The justices are to direct the surveyor to do three things: first, to affix a notice at the points of diversion of the highway; secondly, to insert the same notice in a local newspaper; and, thirdly, to affix a like notice on the church door. It is quite clear that the notice must be inserted in one newspaper : whether that must be a daily or weekly one is not stated, but I think that insertion in a weekly paper is a compliance with the section; that insertion is to be for the four successive weeks next after the view; the affixing of the notice on the church door is also to be for four successive Sundays. As far as these two requirements are concerned, neither of them involves the suspension for twenty-eight days of the proceedings for obtaining the justices' certificate; such a suspension is not necessarily the result of insertion of a notice for four weeks in a weekly newspaper, or of its publication on the church door on four successive Sundays, both of which may be accomplished within a less period of time. It is contended, however, that the provision which requires the notice to be affixed at each end of the proposed diversion also requires it to remain there for a period of four successive weeks from the date of the view; but does the section impose any such obligation? I am unable to see that any such requirement is to be extracted from the ordinary grammatical construction of the language used. The only requirement is that the notice must be affixed at the points of diversion, and then the section goes on to require the insertion of the notice in a newspaper for four C. A. 1904 REX V. KENT JUSTICES. successive weeks; it is contended for the appellants that the provision as to the four successive weeks is to be read also with the provision for affixing the notice at the highway. That is certainly not the grammatical meaning of the words; one does not affix a notice for four weeks, but once for all; Stirling L.J. besides, the section does not say that the notice is to remain affixed for four weeks, and although I agree that the terms or conditions on which the jurisdiction to divert a highway is conferred by Act of Parliament must be strictly complied with, we are not justified in subjecting the exercise of that jurisdiction to terms not imposed by the statute. I think, therefore, that the justices cannot resume consideration of the proposed diversion until the period of time allowing of the insertion of proper advertisements and of proper publication of the notice on the church door has expired, but that no definite limit of time is imposed for the retention of the notice at the side of the highway. It is to be presumed that the justices were satisfied by proper proof of the publication of the notice, and that the publication extended over a period of more than three weeks; but there is no reason in the nature of things why the publication of the notice should continue for four weeks. MATHEW L.J. I am of the same opinion. It is clear that the respondents have no merits, and that the objection is purely technical; but it is said that the diversion of a highway involves the taking away of a public right, and that the statute must be construed strictly against the parties who obtain, and justices who give, a certificate for the diversion. The object of the Act, however, is to enable persons to provide a better road for the use of the public, and where this would be the result of a diversion I think that the certificate of the justices ought, if possible, to be upheld in the public interest. I think that the technical objection which it is sought to read into the section is wholly untenable. Nothing in the Act of Parliament requires the notice at the side of the highway to be maintained for four weeks-a requirement which could not in practice be complied with. I am satisfied that the requirement is met by the putting up of the notice, and that its remaining for the |