Arnold White, C.J.
1. In this case the first point taken by Mr. Cowdell on behalf of the petitioner, as I understand it, was that the finding of the Chairman after inspection under Section 23 of Act II of 1907 that the work was otherwise than in accordance with the approved plan was wrong. In regard to this point, it seems to me, that the finding of the Chairman on this question is, subject to the right of appeal, given by Section 23, final.
2. With regard to the other point taken by Mr. Cowdell, I have felt some difficulty and that is the point on which the petition was admitted by the learned Judge who made the order of admission. Mr. Cowdell's point is that the proceedings for the recovery of penalty are premature. The history of these proceedings, as I understand them, is this: On the 4th May 1909, the Chairman issued a notice under Section 23 of the Act in question requiring the owner of the building to make such alterations as were specified in the notice with the object of bringing the work into conformity with the plans. The section entitles the owner to show cause why the alterations should not be made. If he does not show cause, he is bound to make the alterations specified in the notice. I do not think it can be said that the petition which is referred to in the order made on the 20th May (the petition itself is not before me) amounts to showing cause why the alteration, should not be made. The order says--and it is not suggested that the order is inaccurate that the owner has not removed the enclosed walls; that is to say; that he has not complied with the requirements of the notice. There is nothing in the proceedings before me to indicate that he ever attempted to show cause why such alterations should not be made. If it is to be taken that the owner showed cause, then, as it seems to me, the order of Hay 20th must be read as an order under Section 23(3) confirming the notice.
3. Then I have to consider the contentions which Mr. Cowdell raised in regard to the recovery of the penalty. That seems to be clear. The order of 20th May is an order which is contemplated under Sub-section 3 of Section 23; that is to say, it is an order confirming the notice of 4th May. That sub-section empowers the Chairman by an order in writing to confirm the notice requiring the owner of the building to make those specified alterations. Under Section 23, Sub-section (4) the owner has a right of appeal to the Municipal Council from an order passed under Sub-section (3). He has aright of appeal from the Chairman to the Council from an order confirming the notice. For the purpose of the point, I am now considering. I am assuming the owner did show cause. If he did not show cause, there is apparently no appeal from an order made under Sub-section (3). We have in this case, at any rate, an order of the 20th May, which, as it seems to me, purports to be an order confirming the notice given on the 4th May. Now the proceedings for the recovery of the penalty were instituted on the 16th June. The order imposing the penalty was made on the 14th July, that is, the order was made before the expiration of 60 days from the 30th May. But I understand the facts to be that the appeal was not presented till 16th July, that is, one day after the penalty was imposed. Mr. Cowdell has contended that the institution of the proceedings for the recovery of the penalty before the expiry of the time for appeal was illegal. He has cited no authority in support of this proposition, and I have not been able to find any. I find that Section 99 of the English Health Act provides that where a person appeals against an order in manner provided by that act, no liability to penalty shall arise until after the determination of the Appeal. Here, as I understand the facts, the owner had not appealed on the date when the penalty was imposed. In these circumstances I m not prepared to say that the proceedings were premature. It appears from the order of the 15th July, imposing the penalty, that the plea raised by the owner was that he had removed the roof and that he was willing to remove the inner walls. This seems to make it clear that at the time when the proceedings for the penalty were instituted, the inner walls had not been removed in accordance with the notice and the offence was complete.
4. I dismiss the petition.