January 19, 1898.).
Mr. Francis-I did not, else I should have asked before. It was not until I was finally preparing my argument that I noticed it.
The Chief Justice fafter conferring with the Puisne Judge)-We both agree that the refusal or neglect to perform the duty-assuming the duty exists-is implied in the form of the question, but if the plaintiffs wish it we see no objection to stating it more expressly. Therefore we will insert the words "And assuming that the defendant has refused or neglected to perform such duty, is the duty one of which the Court, having regard, &c."
The Attorney-General-I can only say that I strongly object to this sudden alteration at the last moment.
The Chief Justice-Mr. Attorney, we have ruled on the point. When we have ruled on a point we cannot hear you further.
The Attorney-General-You have not heard me at any length. I certainly must protest against this point-
1
The Chief Justice-It is not correct when the Court has ruled that counsel should get up and protest against the ruling.
The Attorney-General-Would it not be sufficient to say "assuming that the Governor should refuse or neglect That would raise exactly the same point and would apply to any action of the Governor in the future.
Mr. Francis-I submit it is beyond the jurisdiction of the Court to try that question.
The Chief Justice--I do not think there is any real difference. The assumption is purely a hypothesis and will not affect the merits of
the case..
In reply to his Lordship Mr. Francis said he was afraid his arguments would last a consider- able time..
The Attorney-General-It is very probable that long before this case gets very much further we shall have a new Governor and the Praya will be a long way in front of the plain- tiffs' premises and he will have his. damages as- Bessed, as was the intention of the Government. Mr Francis-We do not believe in any intentions except when they are expressed in writing. I may say that the plaintiffs asked if the Government, intended to extend the land and the Government refused to give them any
answer.
The Attorney-General-Now we are going into the facts of the case.
CHINA OVERLAND TRADE REPORT.
the powers, whether discretionary or otherwise, which were given to him, he was bound to pro- ceed judicially. Plaintiffs contended that that discretion must be exercised not arbitrarily but in strict accordance with right and justice and established precedent; that, broadly, when any Act of Parliament-in the present case the local. Ordinance-or any act of a competent Legislature, confers authority to do any judicial or any other act which the public interest or individual right might demand it was im perative on those so authorized to exercise that authority when a case arose; that the power was given for the benefit not of him who was invested with it, but for those for whom it was exercised, and that that duty was positive and absolute and not merely dis- cretionary as to the question whether he should or should not exercise it that although the method in which the power was to be exercised and the most absolute discretion as to the result might be invested in the person on whom that power had been conferred the duty of exercising the discretion was imperative. In this case the only possible remedy, if such a duty was imposed on the defendaut, was by mandamus. Lastly, the plaintiffs contended that the Ordinance gave power or imposed an obligation on a particular person to do some particular act or duty and provided no specific remedy for non-performance, and that the Court had no more power to refuse the remedy of mandamus in this case than it had to refuse any other remedy that might be rightfully claimed. These were the points, said counsel, on which the plaintiffs relied and. which he would have to develop at considerable length.
The Chief Justice-I suppose you dis- duty? tinguish between a legal duty and a moral
The
Mr. Francis said he certainly did. power was conferred on the Government for the benefit of some members of the public. When an Act of Parliament conferred a power to be exercised by any particular person for the benefit of either the public in general or some particular persons, that Act imposed upon him the exercise of that power in a special case. How be shoald exercise it might or might not be discretionary in accordance with the prori- he should exercise it when properly applied to sious of the law that imposed the duty, but that
The Chief Justice. You had better proceed contention, absolutely imperative:
by a proper person was, according to plaintiffs' with your arguments on the points of law, Mr.submitted that no matter how wide the discre- Counsel Francis.
tion invested in any person in matters relating Mr. Francis said he was afraid his argn- to the public in general or to any section of the ments would extend to some considerable public, the Court would always, if the discretion length. He proposed first of all to indicate had been abused, investigate it and set it right. very shortly his contentious on both points. Plaintiffs were the holders of the Crown First as to the construction of the Or- land, Marine Lot No. 184, and the provisions in dinance he submitted that the rule laid down the Crown lease would be absolutely meaning in "Maxwell on Statutes," page 49, must be less unless it was applied. He and his learned friend greatly Government to give the plaintiff's compensation the intention of the differed as to the interpretation to be put upou in respect of the Praya Reclamation works. the words of section 7 and therefore the duty The power to assess the compensation did not of placing an interpretation upon them was un- rest with the Governor but with the Surveyor- fortunately in this case imposed upon their General. Of course counsel know that the Lordships. It was contended on the part of Praya Reclamation works were really a public the defendant that that sub-section of the necessity, but it was a reclamation in the inter- Ordinance, read in conjunction with the whole ests and for the benefit of Marine lot-holders of the Ordinance, imposed no duty on His and no-one else, and it was only for the benefit Excellency the Governor in respect of claims of those bolders that the powers were given. axising out of the process of the Iraya Re- It was the intention of the Legislature that no clamation Works, and that as there was no injury should be inflicted on any private person duty imposed upon him by law therefore this in cousequence of the works, and the Ordinance Court had no power or no jurisdiction to make had provided that compensation should be paid any order against him requiring him to give in case of persons injur. In carrying out effect to his obligation as imposed by that sec- these works plaintiffs had lost some of their tion. The contention on behalf of the plaintiff's rights; their property had been relegated to the was that the Ordinance clearly deprived them position of a Marine Lot in a back street. Pro- of all other remedies in respect of any loss or visions were made in the Ordinance for com- depreciation they might suffer in regard to their property arising out of the Praya Re-by the works. The amount was estimated after pensating, owners or perseas injuriously affected clamation works except what were provided by investigation and detailed reports and that the Ordinance itself. The plaintiff's submitted amount was included in the estimates and that the Ordinance clearly empowered the authorized to be paid under the Ordinance for Governor to give compensation to all persons all losses and injuries suffered by any persons injuriously affected by the works. Plaintiffs whose wharves or piers or rights were in any contended that if that was so the duty was way disturbed. Couns. I then went very length necessarily imposed on him in every fit andily into an analysis of the Ordinance, which proper case of exercising that power. If he he said was about as stupidly framed as an Or- was empowered to give compensation it was dinance could be. an indisputable requirement of justice that he should hear both sides, giving each an oppor- tunity of hearing what was urged against the other, or in other words; before he could rise
The Faisue Judge-I may be wrong, but I always thought that the Ordinance was framed for the benefit of the colony and not for the benefit of the Marine lot-holders.
37
Mr. Francis said primarily the Ordinance was passed for the benefit of the colony, but Council and the public meetings would show the reports of the meetings of the Legislative that the Ordinance was really passed for the benefit ofthe Marine lot-holders and that the Go- The public of the colony bad to spend nothing. vernment bad to spend nothing on the works. except in respect of lots of land on the old ernment. The whole cost of reclaiming the Praya which were actually owned by the Gor- buildable land, of constructing the sea walls and drains the whole work from beginning to end was paid out of the pockets of the Marine lot-holders who signed an agreement and not out of any other pocket whatsoever. Plaintiff's asked for a mandamus, which would make the Governor investigate their case and make an award. The result of the award was of course beyond the control of the Court.
The Chief Justice-Yon contend that the Court can enforce the Governor to make an award?
Mr. Francis submitted that the Court could. order an investigation, although in-the-end the award might be that plaintiffs had suffered no injury at all.
The Chief Justice-It seems to me that the plaintiffs are fighting for a shadow.
belief that if the matter were properly inquired Mr. FrancisWe have the most implicit into there would be no difficulty whatever..in granting compensation, and it would be found we were fighting for something substantial.
Counsel had not concluded his arguments. when the Court adjourned.
HONGKONG SANITARY BOARD,
A meeting of the Sanitary Board was held May (Captain Superintendent of Police) pre- on 13th January at the offices. Hon. F. H. sided and there were also present-Hon. R. D. Ormsby (Director of Public Works), Dr. Clark (Medical Officer of Health), Mr. N. J. Ede, and Mr. H. McCallum (Secretary).
MINUTES.
read and confirmed.
The minutes of the previous meeting were
rate was 18.7 per thousand per annum, as MORTALITY RETURNS. For the week ended 1st January the death against 15.8 for the corresponding period of last year: For the week ended 8th January the rate week of last year. was 18.3, as against 20.9 for the corresponding
THE OBSTRUCTION OF PRIVATE LANES. renewal of a lease of property in Lan Kwai An application having been made for the Fong Lane, the Medical Officer of Health wrote objecting to the-application being granted as the property obstructed the entrance to the favour of the renewal, as tliere was enough light lane. The Director of Public Works was in and air in the lane and very little obstruction.
A discussion ensued.
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afraid the Director of Public Works is not aware The MEDICAL OFFICER OF HEALTH-I am that for the past eighteen months this Board has been strenuously fighting for the passage. through the Legislative Council of a by-law prohibiting the obstraction of private streets and lanes. That by-law has quite recently been passed. The opposition to the by-law came not unnaturally perhaps from property owners and their representatives and the sole argument against the by-law was, I believe, that the pro- perty owners would, in future, be deprived of the rentals which they might derive from such buildings built at the entrance to these streets and lanes. The arguments of the Board on the
detrimental to the health of the people living other hand, in favour of the by-law, were that the buildings obstructed light and air and were in such streets. In this particular case it is not a property ov ner but the Government who will tion to the lane, and if the Board were to derive the benefit of the rental from the obstruc- recommend that this application be granted it will certainly have the appearance of stultifying its action during the past eighteen months, for it would certainly lend weight to the assumption that although the Board objects to property and lanes there is no objection to the Government owners deriving rents from obstruction to streets themselves doing so. That can hardly be deemed a wise policy for this Board to adopt with regard
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