458
[December 8, 1900.
of the works is taken away by the Ordinance, and, to take the particular case now before the Court, that a non-assenting Crown lessee has no right of direct recourse to the Court in re- spect of any depreciation in value which may be occasioned to his lot by the execution of the works. But it is argued that, while this is so, and such a lessee is therefore left without his ordinary remedy, he is provided with a special remedy for redress of his wrongs. This special remedy, it is said, consists in the establishment of a procedure by way of or analogous to arbitration by which his loss may be inquired into and compensation for it awarded. The Governor, it is said, is constituted arbitrator in such a case and the duty is laid on him of inquiring into the case of the aggrieved lessee and of awarding him compensation for his loss and damage. It was very properly admitted In the next place it may be pointed out that by the Attorney-General that, if the Governor is if the Court were to hold that it has jurisdiction indeed an arbitrator under the Ordinance, some to inquire into the Governor's proceedings in of the things which are stated to have been dealing with the case of a non-assenting lessee, done by the Acting Governor cannot be sup- it would be going a long way to defeat the mani- ported, and the Court will be justified in inter-fest intention of the Legislature by assuming in. fering in the exercise of its general jurisdiction directly a jurisdiction the direct exercise of over subordinate tribunals. But the question which the Legislature has forbidden in very is, Is it really true that the Governor is con- stituted by the Ordinance an arbitrator, in the ordinary sense of that word, for the purpose of inquiring into the claims of injured lessees and of assessing and awarding compensation in respect of their loss and damage? It seems to me that this question must be answered in the negative. I will state shortly the reasons which have led me to form this opinion.
THE HONGKONG WEEKLY PRESS AND
reluctant to make too heavy calls on the Trea- and Mr. William Danby, M.I.C.E., were ap- sury for the benefit of aggrieved lessees.
pointed valuers, with Chief Justice Fielding Two other observations of a similar purport Clarke as umpire, for the purpose of estimating suggest themselves. In the first place I am the cost of the removal and re-erection of inclined to think that the words used in section wharves and piers and of preparing a table of 7 (vi.), namely, that a non-assenting lessee compensation in respect of them. No provision shall have no claim to any compensation in was made for the appearance of parties con- respect of any depreciation of his lot by reason cerned before the valuers or the umpire, of the works, are so clear and absolute in their and I am informed that, as a matter of signification as to extinguish not only the right fact, the parties did not so appear and were of obtaining compensation by the direct award not heard It was enacted that the table of a court of justice but also the right of ob of compensation was to be published, and taining it by the award of an arbitrator or in that if any objections were made to the pay- any other way. The right is wholly taken away,ment of any sums mentioned in it or if any and there is substituted for it the chance of ob. difficulties arose in connexion with such pay- taining compensation by the grace of the Gov.ment, the sums in question were to be paid into ernor. Compensation is to be recovered, if at the Supreme Court and the Court was to exercise all, not ex debito justitiæ but ex gratiâ,
summary jurisdiction for the settlement of such objections and difficulties. For this purpose the Court was invested with power to summon before it all persons concerned and to hear and determine their claims. It appears therefore that even where the right to compensation was absolute and formed part of the compact on which the scheme of the reclamation works was founded, the Legislature was desirous of avoiding as far as possible the delay and expense of legal and quasi-legal proceedings.
A good deal of stress was laid by Mr. Francis, counsel for the plaintiffs, on the use of the word" award" in section 7 (vi.) It was said that the word is a term of art and imports a quasi-judicial inquiry and determination and that it must be taken that the Legislature employed it in this technical sense, which is also its ordinary sense. It is true that this is the primary signification of the word, but it is equally true that the word is often used in a more general sense as meaning "to allow; to allot; to yield." It appears to me that an examination of the whole of the context shows that in section 7 (vi.) the word "award" is used in the general and not in the special or technical sense. It will be noticed from the passage quoted above that Russell, C. J., in his jugment speaks of "an equitable allotment or [que of] compensation for injury."
There are,
in my opinion, several serious difficulties in the way of holding that section 7 (vi.) of the Ordinance establishes a proced- tre by way of arbitration, with the Governor as arbitrator, for awarding of compensation in cases such as the one now before the Court.
clear and definite terms.
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So much for the construction of section 7 (vi.) both in itself and in the light of the other In conclusion I may say that, although I am provisions of the Ordinance, apart from section of opinion that the plaintiffs have failed to 8. But it is urged on behalf of the plaintiffs establish their claim to relief at the hands of that the language of this latter section lends this Court, I fully indorse the language used by considerable support to the view put for Fielding Clarke, J., at the end of his judgment ward for the plaintiffs as to the proper in Ryrie v. The Attorney General supra:— construction of section 7 (ri.). Section 8" Such a power of legislation must of necessity reads as follows:-"8. Except as in this Ordin- include the power to modify, alter, and even ance provided, no marine lot-holder or other destroy, existing rights, although of course the person shall be entitled as against the Crown to greatest care should be exercised that no injury any damages or compensation for the deprecia- be inflicted without adequate compensation." tion or injurious affecting of his property or Although the legal right is taken away, yet it business caused by, or resulting either directly cannot but be a point of honour with the or indirectly from, any of the said works." It Governor to pay full regard to the moral is said that the effect of this language is to con- right. And where such a right is alleged, vey a clear implication that section 7 (vi)" pro- I have no hesitation in saying that the claim- vides that a non-assenting lessee "shall bo ant ought to be allowed a full opportunity of entitled as against the Crown to damages or setting forth the grounds on which his alleged compensation for the depreciation or injurious right rests and also of knowing and answering affecting of his property or business" by the any facts and reasons which may be put forward works. But, in my opinion, the language of in opposition to it. this enactment can receive its proper construc-
The result of the views which I have now tion without making it refer to section 7 (vi.) | expressed is that the issue of law which has and so, as I think, straining the language of been argued before me must be decided ad- that enactment to a sense which it was not in-versely to the plaintiffs and that judgment must be entered for the defendant, with his costs of suit.
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Mr. Francis ventured to remind his Lordship that in a previons case with relation to tho present claim there was a very strong intimation from the Court that in any settlement to be made the costs should be taken into considera- tion, good, bad pr indifferent, had been given. His Lordship What has been done with that suit? Is it withdrawn?
Mr. Francis-It is not withdrawn; it stands on the record.
Mr. Francis You heard the Attorney General for days.
His Lordship-If I remember rightly you argued it fully.
tended to bear. For a reference to the recitals in the early part of section 7 will show that it was agreed that a sum not exceeding $180,000 was to be charged to the cost of the works by way of compensation to owners and occupiers of wharves and piers along the line of the pro- posed reclamation. This sum is definitely In the first place there is no machinery of appropriated by way of compensation to arbitration provided, either by express enact this class of persons in respect of their ment or by the familiar method of incorporat-injured interests, and I presume it may ing the provisions of other statutes relating to be taken for granted that this appropriation arbitration. Nothing is said about the aggriev- formed part of the compact or arrangement by ed lessee preferring his claim for loss or damage virtue of which the works came to be executed. The Attorney General-Of course, there are within a prescribed time, to a prescribed person, The title of this class of persons to this sum two sets of costs. As regards the costs of the or in a prescribed manner. Nothing, again, is was complete, subject, of course, to a proper action against Sir William Robinson, your said about the Governor inquiring into such apportionment of it amongst the individual Lordship had only the advantage of hearing loss or damage, whether on a formal claim pre- members of the class. It is probable that some one side in that matter. You heard the full ferred or otherwise. Supposing that he does members of this class were "marine lot-argument of Mr. Francis - so inquire. the enactment is silent as to the holders;" at any rate, if they were not so, they right of the aggrieved person to appear before were other persons
within the meaning of him or to submit evidence to him in support section 8. Here then is the exception pro- of his claim. Further, an arbitration implies vided by the Ordinance" to the general rule a proceeding by two parties before an arbitrator established by the Ordinance that persons whose The Attorney General' said he had prepared or umpire, but there is here no indication as to interests are injuriously affected by the works a very elaborate argument which, he thought, who the party other than the aggrieved lessee are not to be entitled to compensation for such would have had the result of a verdict in his may or should be. Still further, the provision injurious affecting. Even if there had not favour with costs, but he never had an oppor- that the Governor may, if he thinks fit, award been this specific exception to which the open-tunity of putting before the Court his view. The the aggrieved lessee such a sum of money or ing words "of section 8 can be taken to refer, I actual facts were all on record. A mandamus such a Crown lease of new land as he may, in very much doubt whether the words in that was applied for in the previous action for the his absolute discretion, think sufficient as com- section which refer to title to compensation are
Court to order Sir William Robinson to take pensation is inconsistent with the idea of arbi-sufficiently clear and wide in their scope to con- into consideration and investigate the claim. tration, because in a proceeding by way of arbi-
His learned friend argued in favour of that. tration the award is not made if the arbitrator
He (the Attorney General) prepared an or umpire thinks fit but it must be made, nor
argument in reply, but owing to pressure of business the Court did not continue the is it made according to the absolute discretion of the arbitrator or umpire but it must be made With regard to this matter of compensation hearing, and in the meantime Sir Wil. Thereupon Mr. according to the very right of the matter. And to be made to the owners and occupiers of liam Robinson had gone. in the last place it is not likely that the Legisla-wharves and piers, it is instructive to note the Francis asked that instead of Sir William ture would be guilty of so grave a departure procedure prescribed by the Legislature for the Robinson Major-General Black's name be in- from custom and precedent as to constitute as apportionment of the sum assigned for that par-serted. His reply to that was that the Court sole arbitrator an officer who is charged with the pose. The Prays Reclamation Ordinance, 1889, could not be asked to grant a mandamus until execution of the works, whose sympathies must is silent as to the method of apportionment, the person to whom the mandamus was to be almost necessarily be with the officers engaged but provision for this purpose was made by the issued had refused to do a thing he had been in carrying out the works and against the non- Praya Wharves and Piers Ordinance, 1893. By! asked to be made to do, and Major-General assenting lessees, and who also will naturally be this Ordinance the Director of Public Works Black had never been saked to make any award.
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trol the construction of section 7 (vi.) so as to convert a mere moral claim to consideration and relief into a legal title to compensation, whether by arbitration or otherwise.
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