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Colonial Cases

Municipal Council v. Reid, 1881

[local government]

Municipal Council v. Reid

United States Consular Court, Shanghai
1881
Source: The China Mail, 28 May 1881

 

IN THE U.S. COURT FOR THE CONSULAR DISTRICT OF SHANGHAI.

Shanghai, May 20.

Before O. N. DENNY, Esq., Consul-General Acting Judicially.

INTERESTING AND IMPORTANT CASE.

The Municipal Council v. F. Reid.

His Honour delivered judgment in this case to-day, as follows:-

The Municipal Council,, for the Foreign Community of Shanghai North of the Yang-king-pang, by their Secretary, bring suit against Frank Reid, a citizen of the U.S., to recover Taels 10 and cents 72 as taxes alleged to be due from the defendant as a householder within the said Municipality, for the last quarter of 1880, in the month of March 1881, and for all of the second quarter of this year.

While the defendant denied the material allegations of the complaint, yet from the evidence adduced upon the trial, it appears that these taxes were charged against him in the usual way, and in accordance with the Land Regulations which have hitherto governed in such cases, and that payment has been requested by plaintiffs and refused.  The defendant denies that the plaintiffs are a legally constituted body, and that for this reason he should not be taxed in any way upon their order for municipal purposes or otherwise; that he is a citizen of the United States, and as such only the Congress of his Government can constitutionally impose such obligations upon him.

Answering the first objection raised, the plaintiffs by their counsel rely for the legality of their action upon the Land regulations of the Settlement, submitted to the Foreign Ministers at Peking, and by them approved September 24th, 1869, and which went into effect the beginning of the following year.  The Ministers of the Treaty Powers approving the Regulations referred to, were those of the U.S. of America, Great Britain, France, Russia, and the North German Confederation.  But the defendant disputes the authority of the U.S. Minister, by that act, to make him in any way liable to the demands of such a body of the Municipal Council of Shanghai.

The United States Minister to China is the superior officer of this Consulate General, judicially as well as diplomatically, and whatever the result might be if the law bearing upon a suit of this nature was strictly construed, it is a fact, of which the Court must take judicial notice, that the Regulations alluded to were approved by the Minister for the United States acting as he believed within the scope of his Ministerial authority, and which action has been approved by the Executive Department of his Government.  Not only this, but for eleven years the validity of these Regulations has been maintained and enforced by this Court.  This, if there were no other reasons, would cause me to at least hesitate before reversing its decisions in this behalf in any ordinary case now.

In the next place the defendant claims too much for his citizenship, which says that only the State of New York, of which he is a resident, and the United States Congress have a right to levy taxes on him; for an interpretation so broad would exempt him from all taxation wherever he may choose to go outside of the United States.  Neither does the defendant make that distinction that must be made when considering the rights and duties of a citizen [crease: line missing] permanent or temporary resident of China.  Within the United States he is governed by the laws of the State wherein he resides, and by the general laws of Congress.  This is not the case, however, in China; for the laws of a State can have no bearing in protecting his tights here, or redressing his wrongs, while those of congress are only special in their application.

The right to live, and pursue the various business callings in this Empire, is secured to citizens of the United States by treaty stipulations, and for the purpose of giving force and effect to those stipulations, Congress, by special Act, has established Ministerial and Consular Courts, with both diplomatic and judicial powers, the latter being in some respects extraordinary.  Within the United States a citizen cannot be tried for the commission of a felony unless he has first been indicted by a grand jury regularly drawn.  And then he can only be tried upon such indictment by a jury of his peers, while in China he is denied both.

So, in cases at law, in the United States he is entitled to have his civil rights passed upon by a jury.  This privilege he is denied here.  There he has the right of appeal.  Here this right can only be claimed in certain circumstances.  This distinction is not referred to with the view to questioning the wisdom of it, but simply to show that it does not exist.  Again, United States vessels visiting the different ports of China are entitled to have the services of pilots to take them safely in and out of port, but there is nothing said on the Treaty as to the manner of choosing them or of what nationality they shall be.  This, however, has been provided for by the Chinese authorities acting in conjunction with the representatives of the Treaty powers; neither is there anything said in the Treaty of the United States about a tax as a license fee for being protected in this privilege, yet such a tax is demanded by the Chinese authorities and properly collected from American citizens who are engaged in that business here.  It is but a legitimate outgrowth of Treaty stipulations with this Government.

The same may be claimed with greater force for the establishment and maintenance of the municipal Government for the foreign settlement of Shanghai.  The object sought by foreign governments in concluding treaties with China was to obtain commercial advantages, and the importance and value of advantages resulting wherefrom, which have for their centre the port of Shanghai, already attest the wisdom of such agreements.  So important have these interests become that at least 2,500 foreigners of different nationalities have been drawn here to stimulate and protect them.  The magnitude and nature of these interests, and the number of foreigners residing here, would render it almost impossible for the residents to enjoy all of the privileges conceded to them by the Treaties without the aid of a recognised Municipality. For on account of the defects in the natural advantages of the port, residents occupying houses anywhere within the business portion of the Settlement could continually suffer loss and great inconvenience if these defects were not cured by local legislation; and so long as persons choose to reside within these improved boundaries, and continue to enjoy the advantages resulting from a local government which seems to be so well administered as this, it is but just that they should pay an equitable proportion of the taxes necessary for such purposes.

Judgment for plaintiffs as prayed for, with costs.

Mr. C. Dowdall appeared for the Municipal Council.

Mr. Reid, who had conducted his own case, asked in regard to the question of costs - How are they to be made up?

His Honour - The Clerk of the Court will tax the costs and submit them to me.  The costs follow the judgment, whatever the costs may be.

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