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Colonial Cases

English Municipal Council v. Fierz and Bachmann, 1865

[taxation]

 

English Municipal Council v. Fierz and Bachmann

French Consular Tribunal, Shanghai
1865
Source: The North-China Herald, 30 December 1865

 

THE ENGLISH MUNICIPAL COUNCIL versus MESSRS. FIERZ & BACHMANN.

THE following is a translation of the Judgment given by the French Consul General in the case of the English Municipal Council versus Messrs. Fierz & Bachmann.

Napoleon III, by the Grace of God and the will of the Nation Emperor of thr French, to all whom it may concern, Greeting.

The Consular tribunal composed of Vic. Brenier de Montmorand, Consul General for France, President, M. Maignun Champromain, of the French Post Office; and A. Phillippe, acting agent for the Comptoir d'Escompte de Paris at Shanghai, as assessors, judging in accordance with the terms of Article II of the loi du Juillet, 1852, in the cause of the English Municipal Council represented by Mr. Probst, one of its members, plaintiffs, and Messrs. Fierz & Bachmann, merchants, under French protection in the English settlement, defendants.

STATEMENT OF THE CASE.

The English Municipal Council claim from Messrs. Fierz & Bachmann payment of the following taxes:-

House tax for quarter ending June 30th, 1865Tls. 31.25

Do.  Do. 10.00

Do.  Sept. 30th, 1865  31.25

Do.  Dec. 31st, 1865  31.25

Special Rate 66.00

Wharfage due from July 1st to Sept. 30th, 1865  69.90

Do.April 1st to June 30th, 1865 42.64

The English Municipal Council in its despatch of the 29th of November last declared that after having in vain addressed several demands for payment to Messrs. Fierz & Bachmann, no other alternative was left to them but to have recourse to the Consular tribunal, to obtain payment of th4 above specified taxes.  Mr. Probst, the representative of the English Municipal Council beings forward in support of the demands of the Council versus Messrs. Fierz & Bachmann a letter dated July 5th 1864, and signed by the three Consuls whose governments have treaties with China, namely, Rutherford Alcock, English Consul; P. Murphy, U.S. Consul, and B. Edan, Acting-Consul for France.

Mr. Probst further brings forward in support of the claim if the Municipal Council the preamble at Page 14 of certain Regulations generally known under the title of the Shanghai Land Regulations and also Article X, which is as follows:-

It being expedient and necessary that some provision be made for the making of roads, cleansing, lighting and draining the settlement generally, and establishing a watch or police force, the foreign Consuls shall at the beginning of each year convene a meeting of the Renters of land within the said limits, to devise means of raising the requisite funds for these purposes; and at each meeting it shall be competent to th4 said Renters to declare an assessment in the form of a rate to be made on the said land or buildings, and in the form of wharfage dues on all goods landed at any place within the said limits, &c., &c.

Finally the Plaintiffs rest their claim upon the resolution passed by the Land renters at meetings held at the British consulate on Nov. 30th 1863 and April 15th and 25th 1865, by which it was laid down that a house tax should be imposed on all rented houses on the English settlement.  The Plaintiffs also assert that at the said meetings a larger number than one-third of the Land Renters was present.

On the other hand, M. Fierz who appears for the Defendants pleads that at the time when he rented the house which he now occupies, a tax of 1 ½ per cent was levied, but this was raised subsequently to 7 ½ per cent including a special rate of 2 ½ per cent levied in order to pay off the outstanding debts of the English Municipality.  He likewise pleads that the Wharfage Dues have been doubled, and he has no assurance that next years the taxes may not be raised to 25 per cent or 30 per cent under the same authority as has now raised them to 7 ½ per cent.  The Defendants further deny the right of the Land Renters to levy taxes on householders, when these latter had no voice at the said meetings of Nov. 30th 1863 and 25th April 1865.  They therefore deny that the resolutions so passed were either legal or binding.  M. Fierz, however, states that while the taxes were moderate he paid them, but that this perfectly voluntary act on his part cannot be regarded as a precedent in favour of the Municipal Council.

As to the rights of the case it is necessary to know whether the resolutions of the Land Renters' meetings relative to the imposition of House-taxes and Wharfage Dues are binding on French subjects and others who claim French protection, but who occupy tenements on the English Settlement.

Having carefully considered the arguments on both sides and consulted the laws, the Consular tribunal arrived at the following judgment:-

JUDGMENT.

Inasmuch as the Rules commonly called The Land Regulations were signed by M. Edan, then French Consul at Shanghai, those regulations are binding on all French subjects or others who claim French protection, but who live on the English Concession.  Further, the said Land Regulations give to the Land Renters when regularly called together by the Consul the right to levy taxes on land and houses, as well as the right to impose Wharfage Dues on all merchandise landed within the said Concession.  Moreover the meetings of November 30th 1863 and of the 15th and 25th April 1865 were duly attended by a sufficient number to render their resolutions binding.  It is also to be taken into consideration that Messrs. Fierz and Bachmann voluntarily rented House No. 5 in the Honan Road, situated in the English Settlement, and that by this they tacitly consented to pay the taxes assessed upon it in default of any specific agreement to the contrary between them and the owner of the said house.

Moreover the Land Renters had the right at their meetings of the 30th November 1863, and of the 15th and 25th  April 1865, to decide the rate of tax which the house  No. 5 in the Honan Road should pay, and that rate not being subject to any form whatever, the Land Renters had the right to include it in the House Tax, seeing that it is the house No. 5, Honan Road which is taxed and not Messrs. Fierz & Bachmann, and in consequence the latte4r ought either to pay the tax, or quit the building.

Considering also that all resolutions passed at the Land renters' meetings were with a view to the general interest of the community, and that the inhabitants of houses situated in the English Settlement have had the advantage of the various improvements in Municipal administration;

Considering also that according to the statement of Messrs. Fierz & Bachmann the tax annually raised upon the houses which they occupy, was only  1 ½ per cent on the Rental at which they had taken the lease of the house, and that they made the lease subject to these conditions;

Considering also that it is to the public interest that a Municipal Government be not interrupted in the performance of its functions by points of form, or matters which it has not been in its province to arrange and which do not come within its province;

Considering that although it might be desirable that the tenants should be called upon to vote and pass the estimates, this is a question which does not concern the Court:-

For these reasons, the Court orders Messrs. Fierz & Bachmann to pay to the English Municipal Council the sum of Tls. 169.75, for house tax on No. 5 Honan Road, with, however, the right to take action against the owner of the said house should the lease with Messrs. Fierz & Bachmann which they have refused to shew to the Court contain no stipulations to the contrary, or against the Land Renters who have voted the house tax in the event of their having exceeded their powers in placing a tax upon the house occupied by Messrs. Fierz & Bachmann.With regard to trhe Wharfage Dues, while admitting that it would be desirable that the Land Renters should not alone vote taxes on goods landed and shipped at the wharves in the English settlement, it would be on the other hand absurd to imagine that they alone should have to bear the expense of keeping up the jetties which are used by those who land or ship goods.

Considering further that this duty is optional, inasmuch as it need not be paid of goods are not exported or imported, and that if for purposes of trade Messrs. Fierz & Bachmann have thought it desirable to use the jetties, the dues of which they complain, although they have lately been doubled, are relatively at a minimum when the facilities for shipping and landing are taken into consideration.

For these reasons coupled with those which precede, the Court orders Messrs. Fierz & Bachmann to pay the English Municipal Council within twenty-four hours after notification of the present judgment the sum of Tls.  96, the amount of Wharfage Dues claimed by the Municipal Council according to the debit notes accompanying its letter of November 29th, without having recourse to legal proceedings against any one.

The Court further orders Messrs. Fierz & Bachmann to pay the costs of this action fixed at Fcs. 64.50, more the fees of the notification.

Given at Shanghai the twenty-second day of December 1865.

The officers whom it may concern are hereby required to enforce the decree even, if necessary, by force.

In witness whereof the President of the said Court has affixed his signature, as also have the Assessors and the Chancellor of this Consulate-General.

(Signed)  VTE. BRENIER DE MONTMORAND, President.  A. PHILLIPPE, MAIGNAN CHAMPROMAIN, Assessors.  REY, Secretary.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School