322
the
unnecessary, Sir Henry Berkeley had referred to the clause as being a dead letter but when the Legislature had imposed duties upon Governor in-Council of an exceptional nature- he might say without precedent-constituting it a court of appeal clothing him with legal jurisdiction, it was unnecessry to say that the Governor-in-Council would ignore the opinion of the Court which it had a-ked or that an official of the Government would not act upon it. If parties having appeared desired a mandamus or prohibition against any of the parties concerned they had the remedy which the law gave them. The object of the clause | was to ensure that the Governor-in-Council | should have the highest possible advice on any point of law and speaking for himself, ha con- sidered the amendment absolutely unnecessary.
Hon. Sic HENRY BERKALLT said that if the Attorney General was of the opinion-which he would n t dispute that parties would continue to have after the passing of that Ordinance the right to bring any action for mandamas, or injunction, the amendment might be allowed to drop, and he would move amendment at a later stage safeguarding the rights of parties to bring actions for mandamus or injunction under the ordinary course.
an
The ATTORNEY-GENERAL replied that he had no objection to that.
Hon. Sir HENRY BERKELEY added nothing herein contained shall exempt any person from bringing an ac'ion or any other proceeding for mandamus or prohibition."
The ATTORNEY-GENEAL Baid that must not be taken as interfering with sections 87 and 89, It must not be taken as limiting the right of appeal.
Hoo. Sir HENRY BERKELEY said he did not wish to do that. The Legislature should leave nothing in doubt and that was why he moved this further amendment. He wished it to be olear that that Bill did not take away the rights of the individual to go to the Court for a man- damus prohibition or injunction and that the only thing that shall be taken from him is the right to bring an action to recover damages against the officers protected by the Bill.
Hon. Mr. POLLOCK in reply to the Attorney General, said that the persons whose disoration was referred to in the Bill included more than the Building Authority. It referred to the Sanitary Board and any other person who had power given to him under that Ordinance. He did not consider that his argument had been met as to the absurdity of referring the matter back to the Governor-in-Council from the Supreme Court, and he was afraid he must ask for a division upon his amendment.
Hon. Sir HENRY BERKELEY saggested that the Attorney-General should consider that when the Bill became law there would be erected in the Colony a new tribunal acting outside com- mon law in pursuance of statutory powers conferred upon it. With all respect to the Executive Council, he was bound to say that that court would be a court of inferior jurisdio- tion. The Supreme Court was the High Court exercising jarisdiction over all inferior courts, and that being so, he thought it would be well to allow the statutory court to decide the matters brought before it.
The ATTORNEY-GENERAL said that the proposal was to authorise the Governor-ia- Council to obtain the decision of the Supreme Court, and it was presumed by the amendment that the Governor-in-Council having asked for it might not act upon it and that the Court had no right to issus a mandamus to enforce obedience. All he could say was that he would regard the appeal to the Governor-in-Counc'l
futile if such a course were to follow.
Hon Mr. POLLOCK said that was a reason for accepting his proposal.
Hon. Sir Henry BercelEY said that when it came to determining the rights of inhabitants the only proper tribunal which we have and if it was said that they would provide a safeguard that the Governor-in-Council would give their decision in accordance with law he thought they should go further and require the Governor-in-Council when an opinion has been stated to act upon it.
The ATTORNEY GENERAL asked if the speaker could give a precedent for that.
Hon. Sir HENRY BERKELEY replied that there was no precedent for the decision of a point of law by the Executive Council.
[June 18, 1908.
The ATTORNEY GENERAL said he did not think so.
THE HONGKONG WEEKLY PRESS AND
The COLONIAL SECRETARY said he thought | fides could be established they still proceed they were getting away from the first principles. against him. He bad heard that if the One of the first principles was to render the Building Authority acted bonafide they still procedure in dealing with plans and everything bring an action against him personally, though connected with buildings as easy and speedy as not in his official c›pacity. possible. That was one reason why the Go- vernment was not able to accept the principle of referring those matters to the upreme Court. No doubt legal men thonght that the only Не proper tribunal was the Supreme Court. had heard it stated that there was no love for the suggested procedure. The existing procedure for appeal to the Governor-in- Council, which has given considerable satis- faction has been modified, sud in order to amplify it provisions have been inserted giving the appellant power to ask the Governor-in-Council to seek the advice of the Supreme Court on the points of law raised. It seemed to him that the procedure in the clause was simpler, cheaper, more expenditious, and more efficacious than the procedure suggested by the amendment.
Hon. Mr. STEWART, said it seemed to him that the objection to embody the principle of the amendment in the Bill was a sentimental one. Hon. Sir HENRY BERKELEY said that the action of the Executive Connoil as a tribunal was liable to the review of the Supreme Court. His EXCELLENCY said that the Governor-in-
Council might be compelled to state a case for the Supreme Court where the law was in dispate. The Governor-in-Council was not constituted as a legal tribunal, and legal points would be referred to the Supreme Court. Clearly the meaning of the section was that in such a case the judgment of the Supreme Court would be operative.
The division was then taken. There voted : For the amendment-Hon. Mr. Slade, Hon. Sir Henry Berkeley, Hon. Mr. Stewart, Hoa. Pollock, Hon. Mr. Wei Yuk, and Hon. Dr. Ho Kai,
Against the amendment-His Excellency, the Harbour Master, the Registrar General, the Director of Pablic Works, the Colonial
Colonial Secretary, Treasurer, the Attorney General and the
The amendment was declared lost
On Clause 89,
Hon. Sir Henry Berkeley said he was not going to give an opinion on that, nor was All it necessary to do so for present purposes he wished to do was to
see that all the rights now possessed by the public were retained and that they should be entitled to appeal to the ordinary courts of law. His proviso was that nothing herein contained shall exempt any person from proceeding by way of mandamus, injunction or of prohibition." If the principle was accepted he was prepared to accept any alteration in it.
The ATTORNBY-GENEցL said he might accept it if the words "subject to the provisiona of section 269" were inserted at its commence.
mant.
Hon. Sir HENRY BERKELEY said the difficulty of accepting those words was due to the phraseology of section 269 which would· prevent any action being brought. To get an injunction it was necessary to bring an action.
The Hon. Mr. POLLOCK siid he considered the amendment very necessary. Suppose an important building was delayed for some months serious pecuniary loss would be involved, yet an action could not be brought against the Building Authority because he had acted bona fide. Therefore it became all the more necessary for bringing him before the court. The ATTORNEY GENERAL-You have your remedy now.
Hon. Sir HENRY BERKELEY said there should be no objection to reaffirming it in the Bill.
The COLONIAL SECRETARY said he could not
It nullified see the object of the amendment, section 269.
Hon. Sir HENRY BERKELEY — No. The ATTORNEY-GENERAL said he did not see the necessity of the amendment.
HIS EXCELLENCY-We don't wish to operate against clause 269.
Hon. Sir HENRY BERKELEY Said the peculiar Clause 86 was then passed, as also clauses 87 phras ology of 269 would prevent an action for and $8.
injunction. He did not consider the proposed clause would affect 269. It was complementary not antagonistio. He suggested "Nothing herein contained shall exempt any person from any proceeding by way of mandamus injunction or prohibition and this section shall not be constructed as affecting the provisions of section 269 of this Ordinance."
The ATTORNEY GENERAL said he had cer- tain amendments to suggest the effect of which was to take away the right to claim compensa. tion for damages for loss sustained through the action or inaction of the Building Authority,
on
the principle of giving the Building authority a like protection to that afforded to the person protected under section 269 in all cases where he acts bona fide in the exercise of the duties of his office. It would be important to bear in mind that there was no provision made for compensation to be paid by the Government to any invidual who suffered loss by the act of the Building Authority. It might be wrong: it might be right. There was the fact. The amendment which he wished to make later was to preserve certain rights to eable persons to enforce their rights in other directions than that of recovering damages against the Building Authority, This was based on
the Public Health Act of 1875, the Imperial Act, which laid down the principle that no action could be brought against an officer who acted in the exercise of his duty, and it was proposed to put the Building Authority here in the same position as a municipal employee at home.
His EXCELLENCY said that in consequence of the other section they had now
& further protection. Where anyone was in dispute with the Building Authority he could appeal to the Governor in Council. Surely that was sufficient protection.
Clause 88 was then past.
Clause 89 was deleted as it had been intro- duced into the Pharmacy Bill.
Hon, Sir HENRY BERKELEY proposed a new clause, number 99, which he understood the Attorney General would accept. Its subject was to do for the subject what clause 271 of Principal Ordinance | did for the Crown: it preserved rights, The Atttordey General had expressed the opinon with which he did not disagree, that the effect of section 269 was to prevent action being brought against any officer for acts done bonafide, but if mala-
His EXCELLENCY-I think we had better reserve this section. The Council will adjourn till Thursday next.
IMPORTS.:-
COMMERCIAL.
RICE.
HONGKONG, 12th June, 1908: Prices are ad. vancing daily large demands having come forward-
Quotations are:- Saigon, Ordinary
$5.20 to $5,30
5.35 Bound, Good quality
to 5.40 Long..
5.80 to 6.00 Siam, Field mill cleaned, No. 2... 4.85 to 4,95
Garden,
No. 1... 5.85 to 5.40 White,
5.50 to 6,55 6.50 to 6.80
"
91
21
2)
**
Fine Cargo
29
AMOY, 30th May-Since 25th April, the import has amounted to 71,204 piculs, bringing the total for the present year up to 226,053 picula. Quota- tione are (duty free):-
Shanghai, white Wuhu... Chinkiang. Penang.. Saigon, white Siam, white. Rangoon, white
.....$4.45 per picul 4,20 " no cargo $4.90 to 5.20 per picul $4.85 to 4.90
5.00 to 5.40 4.95 to 5.30
**
19
139
YOKOHAMA, May 30th-The import of rice into Yokohama from 1st January to May 28th was as follows:-Rangoon, 588, 102 piouls; Tonkin 94,853; 1,696,857 picals. Saigon 186,782; all other, 24,050-a total of The market now is dull and the latest report is "no improvement.”
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