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Colonial Cases

Municipal Council v. Wills’ estate, 1866



Municipal Council v. Wills' estate

Consular Court, Shanghai
Source: The North-China Herald, 3 February 1866

UNTIL the arrival of Sir Edmund Hornby and his decision in the case "The Municipal Council versus Wills' Estate," the principal difficulty which lay in the way of the various Councils was the apparent impossibility of enforcing the collection of taxes.  Those Land-renters, fortunately a minority, who refused to contribute their share to the Municipal burdens  did so on the ground that the Land Regulations were not binding, or in fact that the authority under  which they were promulgated had been exceeded by their framers. In this view they were consistently supported by the Supreme Court of Hongkong, so that in cases involving amounts large enough to render it worth while to appeal to Hongkong, the Council found it useless to bring defaulters into the Consular Court.

The Chief Judge, however, struck at the root of the mischief by declaring that the clause in the Order in Council under which the Regulations were drawn up was sufficiently liberal in its provisions to justify the Superintendent of Trade in sanctioning those Regulations, and making them binding as law upon British subjects.  In trhe same way the American Act of Congress confers similar powers on the representative of the United States, and  it may be presumed that the French Minister had also firm ground to stand upon when he follower the example of his colleagues and sanctioned the Land Regulations.

Practically, therefore, it may be stated that the Land regulations as at first drawn up and as now in force are binding on the subjects, residing in China, of all powers whose Ministers, under authority similar to that conferred on the English Minister, have signified their assent to their provisions.  Until this point was established, it was useless to attempt to draw up any more elaborate code of regulations, which would have shared the same fate as befell that first constructed by Messrs. Adcock, Murphy and Edan.

But while the sense of this inutility pressed heavily upon the minds of the members of each successive Council, every day as it passed brought with it additional proof of the necessity for some enlargement of the code which had in the early days of Shanghai proved amply sufficient for its wants.  Accordingly the first step taken in anticipation of the decision in the Wills case, was to ask for the appointment of a committee to deliberate on the form of Municipal Government best adapted to the growing requirements of this settlement.  The result of the committee's labours is now before use in the shape of a code in which the former Regulations are amplified to suit the increased importance of the port.  The most note-worthy modification is the admission of rate-payers, not being renters of land, to a voice in Municipal affairs.  Hitherto the Municipal Council had represented the land renters, but, in accordance with the well known principle that no Englishman can be taxed without his own consent or that of his representative, we question the possibility of such a tax as house tax, for example, being legally enforced directly on the person of the house occupier, in cases where such occupant is not a land renter.

The difficulty has now been cleared away by admitting to a voice in the election of the Council, all foreigners residing in the settlement whose annual payment of assessment upon real property amounts to twenty-five Taels, and by rendering eligible for election to the Council all foreigners paying an annual assessment of fifty Taels. We can imagine no system less open to criticism than this.  It equalises the rights of land owners and house renters, by collecting them under the common designation of "Ratepayers" and conferring equal privileges upon them in this capacity.  The Bye-Laws appended to the regulations define the powers of the Council over the streets, and confer upon it the right of a sanitary body.  Such Bye-Laws are of the utmost utility, as they may, as circumstances arise to render such a measure advisable, be altered and amended at the pleasure of the Council, without in any way affecting the Land Regulations under the authority of which they are compiled. The Revised Regulations themselves are in the hands of every land renter in the settlement, and we need not therefore do more than allude thus generally to their provisions.

One point, however, remands attention, and we think rectification, the want of any means of voting by proxy.  The advantages of such a mode of voting are manifold and the disadvantages few.  Indeed inasmuch as owners of property in Shanghai, without losing their interest in the settlement, are often compelled to absent themselves for longer or shorter periods, it is hardly fair to shut them out from any voice in the administration of public affairs.

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