631
$
26
power of saying what if any compensation should be allowed. (See judgment of Lord Marnaghten in the Mayor and Councillors of Pietermaritzburg v. Natal Land Colonization Co., 13 Appeal Cases, 478; and Lyon v. Fishmongers' Co., Eng. and I. Appeals.) Rule discharged with costs.
Mr. Justice Clarke said :—I agree that this application should be dismissed on the two-fold grounds—(1) that the case, apart from the Ordinance, is not one for an injunction, and (2) that the words complained of are authorized by an Act of the Legislature. It may be that a Crown lessee, holding an ordinary Crown lease for 999 years with a frontage to the harbour, has a right of access from the harbour to his property with which the Crown would, apart from legislative authority, have no right to interfere by virtue of any property in the foreshore, and I think that it would make no difference that there was, if I may use the expression, an intermediate frontage on a public road. In such a case the access to the two highways, land and water, might be an element of value in the lease entering into the consideration of the parties when the premium was fixed and the rent reserved such access, and to take away such access or diminish it or render it more distant might and probably would be an injury to the permanent value of the lease, whether with reference to the occupation or sale of the property. But it has been pointed out—it should, I think, have appeared in the affidavits in support of the application—that the lease was granted for the special and limited purposes of a City Hall, and that it could not be let, sublet, mortgaged, or otherwise assigned or parted with. These restrictions seem to me to go to the root of the plaintiff's application. The lease has no market value at all, and whatever the purposes of a City Hall may be it is not shown that they could not be equally well served if the access to the sea were farther distant than it is at present. The plaintiff has therefore in my opinion failed to make out such a case of irreparable injury, or indeed of actual injury, as would warrant the Court in granting an injunction. On the other point it is not disputed that the works are within the terms of the Ordinance, but it is suggested that the Ordinance is ultra vires because it affects the position of a Crown lessee. It is said that the Crown having virtually all the legislative power in its hands cannot by an Act of the Legislature derogate from a lease which it has granted in its executive capacity. As was pointed out during the argument, if this were so, the power of the Local Legislature to provide for public improvement and sanitation would be materially crippled. To take a few examples only; no new law could be made for the construction and upkeep of private drains and watercourses; many provisions of the Public Health Ordinance would be void; no building Ordinances would be possible, and no tramway or railway enterprise could be undertaken except by the Government.
It is necessary, however, to go beyond the argumentum ab inconvenienti, which perhaps has small place in a Court of law, and see what the powers expressed to be conferred on the Legislature are and whether there is an authority for limiting them in the way suggested. In the charter of the Colony, Her Majesty, in the exercise of an unquestioned prerogative, has provided that the Governor by and with the advice and consent of the Legislative Council may make laws for the peace, order, and good government of the colony, and has reserved to herself only a power of disallowance of laws so made and a power of independent legislation with the advice and consent of the Privy Council. Besides the two restrictions expressly reserved in the charter, there is of course also the restrictive power of the Imperial Parliament, the statutes of which may extend to all or any parts of Her Majesty's dominions. It is clear that if no other restrictions are to be imported into the powers of the Hongkong Legislature it would be for that body, and not for the Court, to decide whether a particular Ordinance advances the objects of the "peace, order, and good government" of the colony (see Riel v. the Queen, L.R, 10 App., Ca. 675, when it was said that there was not the least colour for the contention that that could be a question for the Court. With the policy of the
all
27
Ordinance or the adequacy of the compensation clause in it the Court can have no concern, the competency of the Legislature to pass it is the only question, and it is on this question of competency that the plaintiff's counsel has sought to distinguish between legislative bodies which are representative and those which are unrepresentative, and between Legislatures established by Act of Parliament and those founded on Royal Charter. It seems to me that the highest authorities ignore and preclude any such distinction. Phillips v. Eyre, L.R. 62, B. 1, bears upon the power of a Legislature established by charter. There the Governor of Jamaica had consented to an Act by the local Legislature indemnifying him against any act done in good faith in the suppression of a rebellion which had broken out in the island. It was held that this Act was a bar to an action brought in England for false imprisonment and assault committed in the suppression of the rebellion, notwithstanding that it was urged that the Crown by its charter could not confer on the Colonial Legislature a power to deprive a subject of his previously existing rights. In giving the judgment of the Court of Exchequer Chamber, Willes J. says (p. 20)—"We are satisfied that a confirmed Act of this local Legislature, lawfully constituted, whether in a settled or conquered colony, has, as to matters within its competence and the limits of its jurisdiction, the operation and force of sovereign legislation, though subject to be controlled by the Imperial Parliament.” Reg. v. Burah, L.R. 3 App., Ca. 889, dealt with the competence of the Indian Legislature, an unrepresentative body established by Act of Parliament. Lord Selbourne, in giving the judgment of the Privy Council, draws no distinction between the different ways of conferring legislative power. At p. 904 he says "The established Courts of justice, when a question arises whether the prescribed limits (of legislation) have been exceeded, must of necessity determine that question; and the only way in which they can properly do so is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited (in which category would, of course, be included any Act of the Imperial Parliament at variance with it), it is not for any Court of justice to enquire further, or to enlarge constructively those conditions or restrictions.” Lastly in Powell v. the Apollo Candle Co., L.R., 10 App., Ca. 282, the case of Reg. v. Burah was cited and acted upon as an authority for the extent of the powers of the New South Wales Legislature, a representative body established under an Act of the Imperial Parliament. Without referring to other cases, the three last mentioned—all of the highest authority—convince me that the same principles prevail, whether the Legislature be representative or not, and whatever may be the manner of its creation. If an Ordinance of the Legislature of Hongkong were to be deemed purely an Act of the Crown, and valid only so far as it did not derogate from other Acts of the Crown, it seems to me that there would be as much reason to say that it could not be afterwards repealed or altered by another Ordinance as to say that it could not interfere with a right which the Crown has otherwise conferred. The argument, in fact, if carried to its full length would be inconsistent with a power of legislation properly so called. Such a power must of necessity include the power to modify, alter, and even destroy, existing rights, though of course the greatest care should be exercised that no injury be inflicted without adequate compensation. I therefore think that "The Praya Reclamation Ordinance, 1889" was within the competency of the Legislature.
631
$
26
power of saying what if any compensation should be allowed. (See judgment of Lord Marnaghten in the Mayor and Councillors of Pietermaritzburg e. Natal Land Colonization Co., 13 Appeal Cases, 478; and Lyon ». Fishmongers' Co., Eng, and 1. Appeals.) Rule discharged with costs.
Mr. Justice Clarke said :—I agree that this application should be dismissed on the two-fold grounds—(1) that the case, apart from the Ordinance, is not one for an injunction, and (2) that the words complained of are authorized by an Act of the Legislature. It may be that a Crown lessee, holding an ordinary Crown lease for 999 years with a frontage to the harbour, has a right of access from the harbour to his property with which the Crown would, apart from legislative authority, have no right to interfere by virtue of any property in the foreshore, and I think that it would make no difference that there was, if I may use the expression, an inter- mediate frontage on a public road. In such a case the access to the two highways, land and water, might be an element of value in the lease entering into the consideration of the parties when the premium was fixed and the rent reserved such access, and to take away snch access or diminish it or render it more distant might and probably would be an injury to the permanent value of the lease, whether with reference to the ocenpation or sale of the property. But it has been pointed out--it should, I think, have appeared in the affidavits in support of the application-that the lease was granted for the special and limited purposes of a City Hall, and that it could not be let, sublet, mortgaged, or otherwise assigned or parted with. These restrictions seem to me to go to the root of the plaintiff's application. The lease has no market value at all, and whatever the purposes of a City Hall may be it is not shown that they could not be equally well served if the access to the sea were farther distant than it is at present. The plaintiff has therefore in my opinion failed to make out such a case of irreparable injury, or indeed of actual injury, as would warrant the Court in granting an injunction. On the other point it is not disputed that the works are within the terms of the Ordinance, but it is suggested that the Ordinance is ultra vires because it affects the position of a Crown lessee. It is said that the Crown having virtually all the legislative power in its hands cannot by an Act of the Legislature derogate from a lease which it has granted in its executive capacity. As was pointed out during the argument, if this were so, the power of the Local Legislature to provide for public improvement and sanitation would be materially crippled. To take a few examples only; no new law could be made for the construction and upkeep of private drains and watercourses; many provisions of the Public Health Ordinance would be void; no building Ordinances would be possible, and no tramway or rail- way enterprise could be undertaken except by the Government.
It is necessary, however, to go beyond the negumentum ab inconvenienti, which perhaps has small place in a Court of law, and see what the powers expressed to be conferred on the Legislature are and whether there is an authority for limiting them in the way suggested. In the charter of the Colony, Her Majesty, in the exercise of an anquestioned prerogative, has provided that the Governor by and with the advice and consent of the Legislative Council may make laws for the peace, order, and good government of the colony, and has reserved to herself only a power of dis- allowance of laws so made and a power of independent legislation with the advice and consent of the Privy Council. Besides the two restrictions expressly reserved in the charter, there is of course also the restrictive power of the Imperial Parlia- ment, the statutes of which may extend to all or any parts of Her Majesty's dominions. It is clear that if no other restrictions are to be imported into the powers of the Hongkong Legislature it would be for that body, and not for the Court, to decide whether a particular Ordinance advances the objects of the "peace, order, and good government" of the colony (see Riel e. the Queen, L.R, 10 App., Ca. 675, when it was said that there was not the least colour for the contention that that could be a question for the Court. With the policy of the
وو
all
27
Ordinance or the adequacy of the compensation clause in it the Court can have no concern, the competency of the Legislature to pass it is the only question, and it is on this question of competency that the plaintiff's counsel has sought to distinguish between legislative bodies which are representative and those which are unrepresentative, and between Legislatures established by Act of Parliament and those founded on Royal Charter. It seems to me that the highest authorities ignore and preclude any such distinction. Phillips &. Eyre, L.R. 62, B. 1, bears
the upon power of a Legislature established by charter. There the Governor of Jamnica had consented to an Act by the local Legislature indemnifying him against
for persons any act done in good faith in the suppression of a rebellion which had broken out in the island. It was held that this Act was a bar to an action brought in England for false imprisonment and assault committed in the suppres- sion of the rebellion, notwithstanding that it was urged that the Crown by its charter could not confer on the Colonial Legislature a power to deprive a subject of his previously existing rights. In giving the judgment of the Court of Exchequer Chamber, Willes J. says (p. 20)- We are satisfied that a confirmed Act of this loca! Legislature, lawfully constituted, whether in a settled or conquered colony, has, as to matters within its competence and the limits of its jurisdiction, the operation and force of sovereign legislation, though subject to be controlled by the Imperial Parliament.” Reg. v. Burah, L.R. 3 App., Ca. 889, dealt with the competence of the Indian Legislature, an unrepresentative boby established by Act of Parliament. Lord Selbourne, in giving the judgment of the Privy Council, draws no distinction between the different ways of conferring legislative power. At p. 904 he says "The established Courts of justice, when a question arises whether the prescribed limits (of legislation) have been exceeded, must of necessity determine that question; and the only way in which they can properly do so is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power. and if it violates uo express condition or restriction by which that power is limited (in which category would, of course, be included any Act of the Imperial Parlia- ment at variance with it), it is not for any Court of justice to enquire further, or to enlarge constructively those conditions or restrictions.” Lastly in Powell e. the Apollo Candle Co., L.R., 10 App., Ca. 282, the case of Reg. r. Burah was cited and acted upon as an authority for the extent of the powers of the New South Wales Legislature, a representative body established under an Act of the Imperial Parliament. Without referring to other cases, the three last mentioned-- all of the highest authority-convince me that the samo principles prevail, whe- ther the Legislature be representative or not, and whatever may be the manner of its creation. If an Ordinance of the Legislature of Hongkong were to be deeme purely an Act of the Crown, and valid only so far as it did not derogate from other Acts of the Crown, it seems to me that there would be as much reason to say that it could not be afterwards repealed or altered by another Ordinance as to say that it could not interfere with a right which the Crown has otherwise confer- red. The argument, in fact, if carried to its full length would be inconsistent with a power of legislation properly so called. Such a power must of necessity include the power to modify, alter, and even destroy, existing rights, though of course the greatest care should be exercised that no injury be inflicted without adequate com- pensation. I therefore think that "The Praya Reclamation Ordinance, 1889 " was within the competency of the Legislature.
No comments yet.
Private notes are available after approval.