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of grave national danger. The regulations do not in terms suspend any restrictions; their provisions, however, are inconsistent with the observance of the formalities and conditions provided by the Defence Act, 1842, and these must, in my judgment, be held to be impliedly suspended. There is, however, no such necessity in the case of the provision for compensation, and this, in my opinion, remains unaffected.
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The result is, in my opinion, that possession of the Suppliants' hotel was taken and held by the Crown under statutory authority, the exercise of which gave the Suppliants a legal right to compensation to be assured and paid as provided for by the Defence Act, 1842. This right is in the nature of a contractual right and can, in my opinion, be enforced by means of a petition of right. The compensation is in the Act described, in the case of temporary use, as "the compensation to be paid for the possession or use of the premises, and I think this introduces the same measure as that resorted to in actions for use and occupation, that is to say, what the occupation is worth, and I do not think the Suppliants are entitled, in addition, to com pensation for loss arising from their being prevented from carrying on their business.
I think, therefore, the Suppliants are entitled to a declaration such as is claimed in paragraph 4 only of the Prayer of the Petition. They are not in a position to obtain any further order, but the Officers of the Crown would, no doubt, act on the declaration if made.
On
LORD JUSTICE DUKE: The Suppliants upon this Petition of Right are owners of a valuable block of premises in the City of London called De Keyser's Royal Hotel, who have been dispossessed of this property since May 1916 under an Order made by the Army Council directing that possession of the same should be taken for purposes of public defence. They claim from the Crown compensation for the use and occupation of the hotel upon the basis of an alleged rental value of 17,500. per annum. the part of the Crown a right is alleged to enter upon and occupy the premises without any legal obligation to pay compensation, but at the time of the entry an offer was made to pay out of public funds such a sum as should be determined by the Royal Commission on Defence of the Realm Losses to be the amount of the loss or damage actually caused to the Suppliants by reason of the occupation. Important questions of principle underlie the dispute as to the basis on which the Suppliants ought to receive compensation out of the public funds which actually led to the litigation.
The Suppliants allege in their Petition a voluntary delivery of the premises in question by them to the representatives of the Crown upon an agreement for payment by the Crown of a fair rent or other compensation. Apart from the alleged agreement they claim further that they are entitled to be paid rent or compensation by virtue of the Defence Act, 1812. The alleged agreement is traversed on behalf of the Crown. The Attorney- General alleges necessity by reason of the existence of a state of war for the occupation of the premises for the purpose of securing the public safety and the defence of the realm, and says that the possession complained of was properly and lawfully taken by virtue of Elis Majesty's royal prerogative as well as by virtue of the powers conferred by the Defence of the Realm Consolidation Act, 1914, and of the regulations made thereunder by His Majesty in Council. He says also that no rent or compensation is by law payable to the Suppliants under the Defence Act, 1842, or at all. Mr. Justice Peterson gave judgment for the Crown upon all the questions raised by the Pleadings.
The questions of difficulty in this appeal arise upon the issues other than those joined upon the alleged right of the suppliants to payment under an agreement. The prerogative powers which are claimed could only come in question in the event of the security of the kingdom being threatened by
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a foreign enemy. The alleged rights of the Crown, if they exist, have their origin before the time of legal memory and are incongruous with modern practice. The process by which the suppliants seek to enforce their alleged rights is for remedial purposes of very limited scope, the jurisdiction of the court being no greater for any practical purpose than it was in the 17th century.
For the determination of the appeal four things have to be ascertained, namely, the true state of the facts as to the alleged agreement; the rights of the Crown, if any, apart from agreement in respect of the property; the rights of the subject apart from agreement in respect of the alleged acts of the public authorities; and the jurisdiction of His Majesty's Courts to pronounce a judgment upon the suppliants' several matters of complaint.
LL
4
CC
CL
Before May 1916 negotiations had taken place between the Lands Branch of the War Office and Mr. Whinney, receiver and manager of the suppliants' business, with a view to the conclusion of an agreement between the suppliant and the Crown for the occupation of De Keysers Hotel for purposes which the Government deemed to be essential for national defence, and upon terms of payment of an agreed rental. Mr. Whinney was prepared to let the premises for a net sum of 19,000. per annum, subject to various onerous conditions, and after some inconclusive communications the advisers of the Crown determined that the premises should be acquired not by agreement but by requisition under the Defence of the Realm Regulations, and on May 1st, 1910, Mr. Cole, an officer of the Lands Branch, notified Mr. Whinney that he was instructed by the Army Council to take possession of the property under these Regulations, adding this: I enclose forms of claim for submission to the Defence of the Realm Losses Commission, Compensation, as you are probably aware, is made ex gratia, and is strictly limited to the actual monetary loss sustained." Mr. Whinney, by letters addressed to various representatives of the Crown, protested against the decision which had been taken. In particular, he wrote on May 5th: "It does not seem to me that the acquisition of this building as offices is necessary for the purpose of securing the public safety or the defence of the realm, or that such an acquisition is within the
powers conferred by the Defence of the Realm (Consolidation) Regulations, 1911. I must therefore enter a protest against the notice contained in the letter being acted upon, and you must understand that anything which I do is without prejudice to the rights of all parties interested in the hotel." Mr. Whinney also applied in the Chancery Division of the High Court for directions of a Judge. He had no course open to him other than to deliver up possession of the premises unless he was to take personal proceedings against the representatives of the Crown to restrain them from carrying their declared intention into effect, and he quite properly gave up possession under protest. Representatives of the Crown have been ever since in occupation of the hotel. On November 16th, 1910, in a letter complaining that no compensation was being paid to the suppliants by the Crown, Mr. Whinney wrote: "I would point out that it is now over six months since the hotel was commandeered." The nature of the transaction could not have been more plainly expressed. The allegation in the Petition that the premises are being occupied by the Government under an agreement between the Crown and the suppliants manifestly could not be sustained. The learned Judge who tried the case says upon this subject: "I find it impossible to come to the conclusion that, as is alleged in the Petition, possession was voluntarily delivered or that the Crown uses or occupies the hotel by the suppliants' permission. The Crown was acting or purporting to act under what is conceived to be its compulsory powers, and that act on the part of the Crown was protested against by Mr. Whinney." No other conclusion seems to me to be
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