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7. In September, 1896, the Sanitary Board passed certain byelaws, under the Public Health Ordinance, 1887, regulating Opium Divans, which, as they directly affected the opium business, were submitted to your Petitioners. Your Petitioners wrote a letter to the Colonial Secretary protesting against certain of the said Bye-laws, and in consequence these byelaws were amended in certain particulars and a fresh set passed in December, 1896, and again submitted to your Petitioners. Your Petitioners then presented a petition to H. E. the Governor, in which with reference to Byelaw 4, which limited the number who were to be permitted to pass the night in opium divans, they stated
"With regard to Byelaw 4, this, if enforced, will entirely disorganize the business as at present carried on. The Opium Divans are frequented by large numbers of persons who call in during the night either after leaving their work or before setting out to commence work, and undoubtedly at certain times (but not for the whole night) there are much larger numbers of visitors present than the small number permitted by the provisions of the Public Health Ordinance with regard to overcrowding of dwelling houses. If therefore the numbers permitted are reduced as proposed, the licensees, in view of their reduced business, will be unable to pay to your Petitioners the amounts they have agreed to pay in respect of the said Divans; and either the payments must be largely reduced or they will stop business altogether, and undoubtedly evasions of the law will be attempted, and the business will be harassed by continual police prosecutions.
"But quite apart from the above details, your Petitioners most respectfully protest against any new conditions or regulations being imposed upon them in the management of the Opium Divan business, during the continuance of their present grant of the Opium Farm.
"The conditions under which the divans have been and are now carried on have been the same for the last 30 years. They are under the eyes of the Government and were well known to them at the time of the grant of the present Opium Farm to your Petitioners, and it is respectfully submitted that if it was intended to change the conditions under which the said Divans should be permitted to be carried on, it should have been done before the farm was granted to your Petitioners and not afterwards.
"The tender of your Petitioners for the said farm and the price to be paid therefor was calculated according to the profits which it was found by experience could be earned from the said farm, including the said Divan business as then and heretofore carried on, and it was certainly never contemplated by your Petitioners, nor we submit is it equitable that the conditions of the grant should be varied during the pendency of the contract between the Government and your Petitioners.
"It is a fundamental principle of the law that 'a person may not derogate from his own grant' and it is respectfully submitted that this applies as well and equally to contracts between the Government and private persons, as to contracts between private persons alone. Your Petitioners humbly submit that the new regulations sought to be imposed are a variation from and are inconsistent with the terms of the said grant to them of the privileges of the Opium Farm.
"Your Petitioners therefore respectfully inform your Excellency that if the proposed regulations be enforced, they will be unable to carry on the business of the Opium Divans on the terms of your Excellency's grant, dated the 27th February, 1895.
"Your Petitioners therefore humbly pray your Excellency to consent to one of the following alternatives, viz.:
"(1) That the coming into force of the proposed Byelaws should be postponed until the expiry of the present grant of the Opium Farm to your petitioners, viz., the 28th February, 1898, when the Government can make such terms with the new Farmer as appear to them requisite.
or '(2) That the Government should resume that portion of the privileges of the Opium Farm mentioned in sections 16 and 17 of the Prepared Opium Ordinance, and known as the 'Dross Farm' and the Divan Farm,' and allow your Petitioners a corresponding reduction in the monthly sums payable by them in respect of the said Opium Farm and that it should give your Petitioners' licensee reasonable compensation for any damages suffered by him in consequence thereof."
These allegations, arguments and requests your Petitioners now repeat with reference to Byelaw 3 passed by the Legislative Council on May 3rd, 1897.
8. In answer to this petition, your petitioners received a letter dated 31st March, 1897, from the Hon. Colonial Secretary, in which they were informed that their petition had been carefully considered and the Byelaws had been carefully revised with a view to prevent the infliction of any apparent hardship upon them; but that it was necessary to consider the public health, and the granting of the Opium Farm in no way implied that the Sanitary Board should be precluded from making Byelaws in pursuance of the powers conferred upon it under the Public Health Ordinance of 1887, which was in force when the contract was made.
9. Your Petitioners, however, found on perusing the final draft of the Byelaws that so far from the apparent hardship being removed in regard to the limitation of the numbers allowed in the Opium Divans, the Byelaw with respect to overcrowding had been repassed with a mere alteration in the wording, which did not affect the sense thereof.
10. This final draft of the Byelaws was appointed to come before the Legislative Council for approval on May 3rd, 1897. Your Petitioners thereupon in accordance with Order 52 of the Standing Rules and Orders of the Legislative Council, which runs, "In any case where individual rights or interests of property may be peculiarly affected by any Bill, all parties interested may, upon petition for that purpose and on motion made, seconded and carried, be heard in council or in committee thereof either in person or by counsel;" presented a petition to be heard by counsel,-- copy of which petition is herewith enclosed.
11. At the meeting of the Legislative Council, on the 3rd May last, a motion was made by the Hon. T. H. Whitehead, and seconded by the Hon. C. P. Chater, that your petitioners be heard by Counsel, and was supported by the whole of the unofficial members. The said motion, however, was opposed by the Government, and was over-ruled, solely by the weight of the official vote, on the extremely technical ground that the alteration of the law in question was being effected by a Byelaw and not by a Bill, and that therefore persons interested could not be heard in opposition thereto. A newspaper report of the proceedings is herewith enclosed.
12. If the learned Attorney-General's interpretation of the Standing Order 52 is correct, and the right of parties to be heard in person or by Counsel when their interests are peculiarly affected by proposed legislation, is strictly confined to cases where the proposed legislation is in the form of an Ordinance, then your Petitioners respectfully submit that great hardship may thereby be inflicted on inhabitants of this Colony. For under many Ordinances in force the Colonial Government have power to make Byelaws which may most injuriously affect private interests and property, and the persons affected may well be unable effectively to bring their grievances to the notice of the Government.
13. The Legislative Council having refused to hear your Petitioners' case, the bye-laws in question were passed without discussion and without Hon. members being in possession of your Petitioners' arguments.
14. The only one of these bye-laws of which your Petitioners complain, is No. 3, which has been substituted for the 4th in the original draft, and which runs as follows :-
"The keeper of an Opium Smoking Divan shall not permit his premises to be occupied between the hours of midnight and 5 a.m. by a greater number of persons than such as will allow for each adult, not less than 30 square feet of habitable floor space or superficial area, and 400 cubic feet of clear and unobstructed air space."
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