15.-Your Petitioners respectfully submit that the aforesaid Bye-Law 3 is in breach of the contract contained in the said grant of the Opium Farm to your Petitioners. The operative part of the said grant is in these terms:-
LL
In consideration of the yearly payment of $286,000 ... and of the due performance of the conditions and stipulations contained in the said private contract" (none of which are material in the present connection) and in pursuance of the said Ordinance" (Ord. 21 of 1891) and such conditions and regulations as are regulated and determined or may be regulated and determined as provided by the said Ordinance, I the said Governor do give and grant unto the said Man Fook Co. the sole right and privilege of preparing opium, and also the privilege of collecting dross and of preparing and dealing in dross opium and also the privilege of keeping divans for the smoking of opium during the term hereinafter expressed"--viz., until March, 1898, in conformity with and subject to the said Ordinance and the said conditions and regulations in that behalf provided and so as that the said company,
shall and lawfully may have and enjoy the whole profit, benefit, commodity and advantage from time to time during the said term coming, growing, accruing and arising by reason of the said privileges,” and your Petitioners submit that on a fair and reasonable construction of this grant they are entitled to all the privileges of the Opium Farm as they existed at the date of the grant, subject only to the conditions and regulations, and powers to make conditions and regulations expressly reserved therein, and that the insertion of the express right to impose new conditions and regulations under the Prepared Opium Ordinance, 1891, during the term created by the grant, impliedly excludes the right to impose new conditions and regulations under another Ordinance, which was equally well known to both the contracting parties at the time when the grant was made.
16. Before the passing of these Bye-laws, the Colonial Government had made no Bye-laws or regulations regulating the numbers using the Opium Divans, though they had the power to make such regulations since 1887.
17.-Your Petitioners respectfully submit that the rights of a tenant under a Crown lease are in no way analogous to the rights of the Opium Farmer under the aforesaid grant, as was suggested by the learned Attorney-General at the meeting of the Legislative Council on May 3rd. To take one point of difference only, there is no reservation in a Crown lease of a power in the Crown to make conditions and regulations under one named Ordinance during the continuance of the term to the implied exclusion of rules and regulations made under all other Ordinances.
18.-Your Petitioners further respectfully state that so far from not inflicting even apparent hardship upon them, this Bye-law will cause them very real loss. It has been calculated that during the hours from 12 midnight to 5 a.m. there is an average of 2,850 persons, exclusive of attendants, using the Opium Divans, an average of 23.55 per Divan, while under this Bye-law not more than 10 persons can be accommodated in any one house on the average. The consumption of dross opium will be reduced 40%, from about 30,000 taels per month to about 18,000 taels; that the loss that will fall on the Dross Farmer will amount to at least $2,000 a month, from the decrease of the consumption of Dross Opium, from the fewer number of licences taken out for the keeping of divans, and for collecting dross, preparing dross and from the decrease in the duties payable on imported dross; and many of the Divan keepers, especially those who more particularly depend on night business, will be obliged to close their Divans and all will be seriously affected by the diminution of their profits, as compared to their establishment charges, which must remain the same.
19.-Your Petitioners submit that the profits they have been making from smokers who use the divans between 12 and 5 are not in any sense "illegal gains": that there was no law before the passing of these Bye-laws which prevented them from carrying on their business by night as by day: that admitting that overcrowding, as defined by the Sanitary Board, did take place on these premises between 12 and 5 a.m., it
Page 5
20 p.m.
was not nearly as great as the overcrowding in the same premises between 7 and 12, and if their business is alleged to be illegal on account of insanitary overcrowding, it cannot be said to be more illegal between 12 and 5 than between 7 and 12.
20.--If it is alleged that their profits were illegal because men came to these houses not to smoke but to sleep, to use them as common lodging houses, then your Petitioners distinctly deny the allegation. The coolies who frequent these houses at night do not come there for the purpose of sleeping, but of smoking opium. Most opium smokers sleep, more or less, after smoking opium, and many of the men in these houses between 12 and 5 sleep a considerable portion of the time they spend in the house, but it is a sleep consequent on the smoking of opium. The only charge made in the divans is for weight of opium smoked, viz., at the rate of 30 cents per 5 candareens, so it is not profitable to allow a customer to sleep for any great length of time after smoking. Some men do in fact stay in the divans all night, but they are inveterate smokers who smoke and doze the whole night through; the great majority do not remain more than an hour or two.
21.-If this were a grant by a private individual to a private individual, and the grantor had thus diminished his grantee's enjoyment of the privileges granted, by the imposition of conditions, the power to impose which was not expressly or impliedly reserved in the grant, the grantee would have a good right of action against the grantor, and could recover damages to the full amount of the injury done to him; and it is humbly submitted that the Government should not be permitted to do an act in their Legislative capacity, which if done in their executive capacity would clearly expose them to an action for damages.
22.--But notwithstanding the strong equitable claims of your Petitioners, the Colonial Government has refused them compensation in any form, or to postpone the operation of these Bye-laws until March next, when they could make equitable terms with the incoming Opium Farmer, but have insisted on putting these Bye-laws into force as from 1st June next, and on exacting the full tale of $286,000 per annum. Your Petitioners therefore humbly submit that, since the practice of keeping the Opium Divans open to all comers during the night was not illegal at the time of the grant to them, and was one on the continuance of which they were entitled to calculate, and did in fact calculate in making their tender of $286,000 per annum for the Opium Farm, they and their licensees should be granted adequate compensation for the loss inflicted on them by these Bye-laws.
Your Petitioners therefore humbly pray :-
1. That the Colonial Government be directed to postpone the operation of the Bye-laws made under sub-sections 4, 12 and 13 of Section 13 of Ordinance 24 of 1887, dated the 11th day of March, and approved the 3rd day of May, 1897, until March 1st, 1898, and pay your Petitioners and their licensees and sub-licensees adequate compensation for the damage caused them by the said Bye-laws during the time, if any, during which they shall have been in operation.
or 2.-That the Colonial Government be directed to hold an enquiry as to the damages sustained by your Petitioners and their licensees and sub-licensees owing to the operation of the said Bye-laws, and pay your Petitioners such damages as they may be found to have sustained in consequence thereof.
And your Petitioners will ever pray, &c.
Dated
May 1897.
Man Fook Company
4
15.-Your Petitioners respectfully submit that the aforesaid Bye-Law 3 is in breach of the contract contained in the said grant of the Opium Farm to your Petitioners. The operative part of the said grant is in these terms:-
LL
In consideration of the yearly payment of $286,000 ... and of the due per- formance of the conditions and stipulations contained in the said private contract" (none of which are material in the present connection) and in pursuance of the said Ordinance" (Ord. 21 of 1891) and such conditions and regulations as are regulated and determined or may be regulated and determined as provided by the said Ordinance, I the said Governor do give and grant unto the said Man Fook Co. the sole right and privilege of preparing opium, and also the privilege of collecting dross and of preparing and dealing in dross opium and also the privilege of keeping divaus for the smoking of opium during the term hereinafter expressed"--viz., until March, 1898, in conformity with and subject to the said Ordinance and the said conditions and regulations in that behalf provided and so as that the said company,
shall and lawfully may have and enjoy the whole profit, benefit, commodity and advantage from time to time during the sail term coming, growing, accruing and arising by reason of the said privileges,” and your Petitioners submit that on a fair and reasonable construction of this grant they are entitled to all the privileges of the Opium Farin as they existed at the date of the grant, subject only to the conditions and regulations, and powers to make conditions and regulations expressly reserved therein, and that the insertion of the express right to impose new conditions and regulations under the Prepared Opium Ordinance, 1891, during the term created by the grant, impliedly excludes the right to impose new conditions and regulations under another Ordinance, which was equally well known to both the contracting parties at the time when the grant was made.
16. Before the passing of these Byelaws, the Colonial Government had made no Byelaws or regulations regulating the numbers using the Opium Divans, though they had the power to make such regulations since 1887.
17.-Your Petitioners respectfully submit that the rights of a tenant under a crown lease are in no way analogous to the rights of the Opinm Farmer under the aforesaid grant, as was suggested by the learned Attorney-General at the meeting of the Legislative Council on May 3rd. To take one point of difference only, there is no reservation in a Crown lease of a power in the Crown to make conditions and regulations under one named Ordinance during the continuance of the term to the implied exclusion of rules and regulations made under all other Ordinances.
are
18.-Your Petitioners further respectfully state that so far from not inflicting even apparent hardship upon them, this Byelaw will cause them very real loss. It has been calculated that during the hours from 12 midnight to 5 a.m. there an average of 2,850 persons, exclusive of attendants, using the Opium Divans, an average of 23-55 per Divan, while under this Byelaw not more than 10 persons can be accommodated in any one house on the average. The consumption of dross opium will be reduced 40 %, from about 30,000 taels per month to about 18,000 faels: that the loss that will fall on the Dross Farmer will amount to at least $2,000 a month, from the decrease of the consumption of Dross Opium, from the fewer number of licences taken out for the keeping of divans, and for collecting dross, preparing dross and from the decrease in the duties payable on imported dross; and many of the Divan keepers, especially those who more particularly depend on night business, will be obliged to close their Divans and all will be seriously affected by the diminution of their profits, as compared to their establishment charges, which must remain the same.
19.-Your Petitioners submit that the profits they have been making from smokers who use the divans between 12 and 5 are not in any sense "illegal gains": that there was no law before the passing of these byelaws which prevented them from carrying on their business by night as by day: that admitting that overcrowding as defined by the Sanitary Board, did take place on these premises between 12 and 5 a.m., it
5 --
20
p.m.
was not nearly as great as the overcrowding in the same premises between 7 and 12, and if their business is alleged to be illegal on account of insanitary over- crowding, it cannot be said to be more illegal between 12 and 5 than between 7 and 12.
20.--If it is alleged that their profits were illegal because men came to these houses not to sinoke but to sleep, to use them as common lodging houses, then your Petitioners distinctly deny the allegation. The coolies who frequent these houses at night do not come there for the purpose of sleeping, but of smoking opium. Most opium smokers sleep, more or less, after smoking opium, and many of the men in these houses between 12 and 5 sleep a considerable portion of the time they spend in the house, but it is a sleep consequent on the smoking of opium. The only charge made in the divans is for weight of opium smoked, viz., at the rate of 30 cents per 5 candereens, so it is not profitable to allow a customer to sleep for any great length of time after smoking. Some men do in fact stay in the divans all night, but they are inveterate smokers who smoke and doze the whole night through; the great majority do not remain
more than an hour or two.
21.-If this were a grant by a private individual to a private individual, and the grantor had thus diminished his grantees enjoyment of the privileges granted, by the imposition of conditions, the power to impose which was not expressly or impliedly reserved in the grunt, the grantee would have a good right of action against the grantor, and could recover damages to the full amount of the injury done to him; and it is humbly submitted that the Government should not be permitted to do an act in their Legislative capacity, which if doue in their executive capacity would clearly expose them to an action for damages.
22.--But notwithstanding the strong equitable claims of your Petitioners, the Colonial Government has refused them compensation in any form, or to postpone the operation of these Bye-laws until March next, when they could inake equitable terms with the incoming Opium Farmer, but have insisted on putting these Bye-laws into force as from 1st June next, and on exacting the full tale of $286,000 per annum. Your Petitioners therefore humbly submit that, since the practice of keeping the Opium Divans open to all comers during the night was not illegal at the time of the grant to them, and was one on the continuance of which they were entitled to calculate, and did in fact calculate in making their tender of $286,000 per annum for the Opium Farm, they and their licensees should be granted adequate compensation for the loss inflicted on them by these Bye-laws.
Your Petitioners therefore humbly pray :-
1. That the Colonial Government be directed to postpone the operation of the Bye-laws made under sub-sections 4, 12 and 13 of Section 13 of Ordinance 24 of 1887, dated the 11th day of March, and approved the 3rd day of May, 1897, until March 1st, 1898, and pay your Petitiouers and their licensees and sub-licensees adequate compensation for the damage caused them by the said Bye-laws during the time, if any, which during they shall have been in operation.
or 2.-That the Colonial Government be directed to hold an enquiry as to the damages sustained by your Petitioners and their licensees and sub- licensees owing to the operation of the said Bye-laws, and pay your Petitioners such damages as they may be found to have sustained in consequence thereof.
And your Petitioners will ever pray, &c.
Dated
lage Meaya
1897.
A
Man Fook Compung
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