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Colonial Cases

Fu Chin-yue v. Shanghai Municipal Council, 1882

Fu Chin-yue v. Shanghai Municipal Council

Court of Consuls, Shanghai

Denny, 26 May 1882

Source: North China Herald, 2 June 1882

LAW REPORTS.

COURT OF CONSULS.

Shanghai, 26th May 1882

Before O. N. Denny, Esq., U.S. Consul General, President.

Members: R. VON KRENCKI, Esq., Acting Consul-General for Germany; P. J. HUGHES, H.B.M. Consul.

  A Court of Consuls, composed as above, assembled at the United States Consulate at 10 am on the above date, to adjudicate on a suit in Equity, in which Fu Chin-yue and others prayed the court to make an interim order to stay the intended immediate action of the Shanghai Municipal Council in respect to advertising and putting up the jinricksha licenses for tender, until the decision of the said Court be given in the matter.

  The plaintiff's petition was as follows:-

- The plaintiffs are residents in the foreign Settlement at Shanghai, and are owners of junrickshas, which are licensed to ply for hire in the said Settlement.

- The Municipal Council for the Foreign Community of Shanghai exists by virtue of the Land Regulations and Bye-laws, as finally revised and sanctioned as appears by minutes signed by the representatives of the natives interested on the 24th September, 1869, and the 21st October, 1869.

- The 34th Bye-law empowers the said Council to charge such fees in respect of licensers as may be authorized at the annual general meeting of ratepayers.

- The last annual general meeting of ratepayers was held on the 24th day of February, 1882, and at that meeting a regulation was duly passed authorising the said Council to levy a license fee of one dollar per month during the current year on every jinricksha let for hire.

- On the 20th day of April 1882, a special meeting of ratepayers convened by twenty-five electors under Article XV. of the Land Regulations was held, and a resolution was passed thereat to the effect that the licenses for jinrickshas let for hire are to be put up to public competition on terms to be stated by the Municipal Council (meaning the  said Council for the Foreign Community of Shanghai.)

- On the 20th day of May, 1882, and subsequent days the said council by advertisements in the public daily newspapers invited tenders for licenses to ply jinrickshas for hire from 1st June to 31st December, 1882.  The advertisement was as follows:-

MUNICIPAL NOTIFICATION. No. 711.

  The Municipal Council for the Foreign Settlements of Shanghai, North of the Yang-king-pang, invite tenders for licenses to ply jinrickshas for hire from 1st June to 31st December, 1882.  Tenders for fifteen hundred licenses will be received, on conditions which may be learnt on application at the Secretary's Office.  The Council reserve to themselves the right to reject any tender.  Tenders must be addressed to the Secretary of the Council, and will be received up to noon on Saturday, the 27th May, 1882

By Order, &c.

- The plaintiffs submit to this Court:-

- That the said Council has power to charge such fees only in respect of licenses for jinrickshas as have been authorised at an annual general meeting of ratepayers.

- That neither the said council nor the ratepayers have power to alter the license fees authorised as aforesaid until the next annual general meeting.

- That the ratepayers have power to authorise the Council to charge license fees only, and have no power to authorise them to raise the revenue from licenses in any other manner.

The plaintiffs therefore pray:-

- That the said Council may be enjoined or ordered to cease advertising for tenders and to refrain from any acts altering or tending to alter during the current year, the license fee authorized by the last annual general meeting of ratepayers.

- That in view of the intended immediate action of the said Council as shown by their advertisements an interim injunction or order to the same effect to be in force until after the decision of this Court may be forthwith made.

- That the Court will grant all such further and other relief to the plaintiffs as the nature of the case may require.

  The following memorandum was read by the President:-

  On this the 24th day of May, 1882, Messrs. Drummond and Latham, Council for Fu Chin-yue and others, came and presented petition to the Court of Consuls for the Foreign Community of Shanghai through the United States Consul General and Senior Consul of the Court of Consuls, praying that the Municipal Council of Shanghai be enjoined or ordered to cease advertising for tenders in the matter of jinricksha licenses and to refrain from any acts altering or tending to alter during the current year the license fee for jinrickshas authorised by the last annual general meeting of ratepayers.  Thereupon notice was given by the Senior Consul to his associates P. J. Hughes, Esq., H.B.M.'s Consul, and R. Von Krenski, Esq., Acting Consul General for Germany, convening a session of the Court of Consuls at the office of the Senior Consul at 10 o'clock on the 25th day of May, 1882 to consider what action should be taken.

  At the hour named all the members of the Court being present, and after due consideration, it is ordered that copies of the petition be served forthwith upon the Chairman and Secretary of the said Municipal Council, and that they may be directed to show cause at 10 o'clock a.m., tomorrow, the 26th inst., at the office of the senior consul, in Shanghai, why the said interim order prayed for in the petition should not be granted, and that the defendants be further notified that at the same time the day for filing their answer to said petition will be fixed by the Court    .

  Messrs. Drummond and Latham appeared for the plaintiffs, and Mr. Robinson for the defendants, of whom Mr. W. C. Ward, Chairman of the Municipal Council, appeared personally.

  Mr. Robinson, after a few introductory remarks in which he commented on this being the first occasion of any Court of the kind assembling, asked that affidavits might be filed in support of the plaintiffs' petition and urged that they should be called upon to deposit the necessary fees in Court.

 Mr. Drummond replied at some length, and said he thought there would be no necessity for any affidavits being filed, as the plaintiffs were present and might be examined upon oath or affirmation.  With regard to costs, on their behalf, he expressed his willingness to deposit such sum as the Court might think fit.

  Mr. Robinson having admitted that the questions raised by him were purely legal ones,

 The Court ruled that there was no necessity for the petition to be verified by affidavit; but as regards costs, they decreed that the sum of $100 should be deposited by the plaintiffs as security; such portion of which might not be taken up to be refunded to them after judgment had been given.

  Mr. Robinson said the next question was whether the Court had any rules of procedure on which they might act.

  The President said rules would be made as they went on, as there were none now in existence that the Court were aware of.

  Mr. Robinson contended that rules of Procedure were necessary, and produced copy of those which had been drawn up.  He objected that the Court had no jurisdiction in the matter and read extracts from para. 27 of the Land Regulations in support of his view.

  Mr. Hughes said that the Court had no cognizance of any rules of procedure.

  After some discussion on the point,

  Judge Denny made the following note that "no rules of procedure are agreed on by the Court."

  Mr. Robinson - That being so, we can only depend on Article XXVII of the land Regulations, which he reads. The Regulation is as follows:-

And be it further ordered that the executive Committee or council may sue and be sued in the name of their Secretary for the time being or in their corporate capacity or character as "Council for the Foreign Community of Shanghai," and such Committee, Council or Secretary shall have all the rights and privileges which private complainants have, to recover and enforce judgments obtained by them, and shall also incur the obligations which private defendants have in proceedings at law or suits in equity commenced against them, provided that the individual members of the Council or their Secretary shall not be personally responsible, but only the property of the Council, and all proceedings against the said Council or their Secretary shall be commenced and prosecuted before a "Court of Consuls," which shall be established at the beginning of each year by the whole body of the Treaty Consuls."

  Mr. Robinson, then referred to the constitution of the "Court of Foreign Consuls" and said that the Court could only act collectively, and that the order for such proceedings must be signed by every member of the Court.  The order issued by this Court was informal as it was only signed by one Consul the Consul-General for the United States, whereas it ought to have been signed by all members of the Court.  He submitted that this informality prevented the Court from hearing the motion.

 Judge Denny read the memorandum (which appears after the petition), with reference to the order, which was signed by "O. N. Denny for the Court of Foreign Consuls."

  Mr. Robinson, after hearing the order read, admitted that the Court was properly convened and constituted; and then he proceeded to argue that under the Land Regulation XXVII, the Court had now power to act in the way of inunction, and that the rule never contemplated conferring the power of injunction which could not, he held be enforced. The rule only gave the Court power to deal with cases in which the Municipal Council was sued or it sued for debt.

  Mr. Drummond replied to Mr. Robinson's contention that the Court under Article 27of the Land Regulations had no power to make any order in the way of an injunction.  He argued that as it was clear from the Rule that this Court had the power of equity it had also the power of injunction.  He illustrated the argument by quoting from Kerr on Injunctions (p. 505) saying that what was laid down by that authority on the subject was, he imagined, concordant with the law of the United States and other countries with respect to this principle.

  Mr. Robinson rejoined that it was not disputed that the case came under equity; but he contended that the words of the section "provided that the individual members of the Council and their Secretary shall not be personally responsible," absolutely took away the jurisdiction of the Court in this case, as it prevented the Council or its Secretary being held responsible.  He submitted that it was not intended that the Court should have such a jurisdiction as that claimed for it now.

  Mr. Drummond said that the words "the members of the Council or their Secretary shall not be personally responsible," meant that if an injunction  coupled with damages was decreed by this Court that those damages were to be paid out of the Municipal funds, not out of pocket of the Secretary or the individual members of the Council.  In combatting the reasoning of Mr. Robinson, that the Court had not the power of injunction, he said that if the Court had not this power then individuals had no means to restrain the actions of the Council when they were unjust and detrimental to their interests. It was plain that if any individual in the community was being injured by the action of the Council the only remedy before him was to seek to have the action of the Council stayed until the case between them was decided by a competent tribunal.  Unless the Court had this power and could exercise it, there was no way of checking the Council when they had commenced a course of unjust or injurious acts.

  Judge Denny, after consultation with his associates, said that the Court were of opinion that the principal functions the Court of Consuls had to perform was to hear and pass judgment on such questions as were raised by differences between members of the community and the Municipal Council and vice versa.  After alluding to the section of the Land Regulations quoted, he said it was intended that the Court of Consuls should have power to decide on questions of fact and law arising between the Municipal Council and residents in the Settlements.  They (the Court) were of opinion that the section XXVII of the Land Regulations gave the Court an equity jurisdiction, and the Court could therefore exercise power of injunction and could consider the petition from an equitable standpoint.

  Mr. Robinson - I understand then that the Court has the power to grant an injunction against the Municipal Council?  

  Judge Denny replied in the affirmative.

  Mr. Robinson expressed himself to the effect that he had nothing more to say.  He was there to listen; but whatever order the Court made he would require time to file an answer.

  Judge Denny - The Court will grant temporarily an order as applied for in the petition.

  It was agreed that the answer was to be filed at 10 a.m. on 6th June, that after filing the answer, it should be served on plaintiffs, and that time should be given to the Counsel for plaintiffs to consider the answer when he will apply to the Court to fix the date for a hearing.

  Mr. Robinson, in reply to Mr. Drummond, said he would accept service of the order for the Council.

  The session then adjourned.

  The following is a copy of the Interim Order:-

  The 28th day of May, 1882.

 Upon reading the petition herein and upon the application of W. V. Drummond, Counsel for the plaintiffs, the defendants being present by their Counsel, the Court doth order that the defendants and their agents be restrained from advertising for, and from accepting any, tender or tenders for licenses for jinrickshas, and from altering or doing any act tending to alter the license fee for jinricksha autorized by the annual general meeting of ratepayers on the 24th February 1882, until further order, or until after the hearing of this suit.

  And it is further ordered that the defendants do file their answer herein on or before the 6th day of June next, at 10 a.m.

 

North China Herald, 9 June 1882

LAW REPORTS.

COURT OF CONSULS.

Shanghai, 6th June, 1882.

Before O. N. Denny, Esq., U.S. Consul General, President'

Members: R. VON KRENCKI, Esq., Acting Consul-General for Germany; and P. J. Hughes, Esq., H.B.M.'s Consul.

FU CHIN-YUE and others v. The SHANGHAI MUNICIPAL COUNCIL.

  The Court opened at 109 a.m.

  The President excused the absence of Mr. Hughes who, having another engagement and as the proceedings were likely to be brief and informal, had thought his presence unnecessary.

  Later on, Mr. Hughes entered the Court and took his seat on the Bench.

  Mr. Drummond appeared for the plaintiffs and Mr. Robinson for the defendants.

  In pursuance with an interim order of the Court given on the 26th ult. Mr. Robinson produced the reply of the defendants and handed the same to Mr. Cheshire, the Secretary of the Court.

  The reply, which was taken as read was as follows:-

  In the Court of Foreign Consuls at Shanghai in the Empire of China.

Shanghai, 6th June.

Between FU CHIN-YUE, WAN YUE CHUN, TSUE CHUN-HO, PAO SUE-HUNG, WOO YE-KHING and YANG SHUN-FOO, Plaintiffs;

And

THE COUNCIL FOR THE FOREIGN COMMUNITY OF SHANGHAI, Defendants.

  The answer of the above named defendants sheweth:-

- That for the purpose of this suit the defendants admit the correctness of the statement contained in the 1st, 2nd, 3rd, 4th, 5th, and 6th paragraphs of the petition of the plaintiffs.

- In answer to the 7th paragraph of the said petition the defendants say that they have power to charge fees in respect of licenses for jinrickshas other than those which may have been authorised at an annual general meeting of ratepayers provided that any alteration in such license fees be duly sanctioned by the ratepayers.

  That the Ratepayers in public meeting duly assembled have power to alter the license fees authorised to be charged at an annual or any general meeting of ratepayers and that the defendants have power to carry into effect any such alteration in such license fees as the said ratepayers shall duly authorize.   That the Ratepayers have power to authorise the defendants to raise the revenue from license fees in any manner the said ratepayers may think proper and duly sanction.

- And for further answer to the  said petition of the plaintiffs the defendants say:-

  That the petition of the plaintiffs does not allege that they have been charged any other license fees for their jinrickshas than those fees which were authorized at the Annual General Meeting of ratepayers, and the  defendants say that in fact the plaintiffs have not been charged any license fees other than those so authorized.

- The defendants further say that the plaintiffs are not entitled as of right to have any licenses for jinrickshas whatever granted to them individually.

- For the reasons set forth in the 3rd and 4th paragraphs of this answer the defendants have no locus standi before this Court sufficient to justify their application to the Court for the injunction or restraining order in their said petition.

 The defendants therefore ask that the interim injunction granted by this Court on the 26th day of May, 1882, may be dissolved and that the petition of the Plaintiffs may be dismissed with costs.

Dated at Shanghai this 6th day of June, 1882.

(Signed) A. Robinson, Counsel for the Defendants.

  After a brief consultation the Court decided that the further hearing of the case should be on or after Monday, the 19th inst.

  The Court then adjourned.

 

North China Herald, 23 June 1882


LAW REPORTS.
COURT OF FOREIGN CONSULS.
Shanghai, 19th June, 1882
Before O. N. DENNY, U.S. Consul General, President; P. J. HUGHES, Esq., H.B.M.'s Consul; R. VON KRENCKI, Esq., Acting Consul-General for Germany.
FU CHUN-YUE and others v. The MUNICIPAL COUNCIL.
  Mr. W. V. DRUMMOND appeared for the plaintiffs.
  Mr. A. ROBINSON appeared for the defendants, Mr. W. CV. WARD, the Chairman of the Council, being present.
  This case has previously been before the Court, and today was fixed for it to be heard.
  Mr. DRUMMOND, in opening the proceedings, said - May it please your Honours, I presume that perhaps the best course will be to commence by reading the petition and answer.  I mentioned to my learned friend on the first occasion on which we were here that I wished to amend the petition by adding a few words to one of the claims, but in consequence of the preliminary objects which he made at the time on other grounds that matter was not gone into; therefore I would now formally ask that the Court grant me permission to add a few words to the fourth paragraph of the petition, and I presume my learned friend has no objection.
  Mr. Robinson - I have no objection.
  Mr. Drummond - I only wish to add a few words.  The words I wish to add are, after the words "license fee of $1" in last line of the fourth paragraph, the words "per month during the current year."
  Mr. Denny - Have you any objection, Mr. Robinson?
  Mr. Robinson - No, none whatever.
  Mr. Denny - The fourth paragraph of the petition will be so amended.
  Mr. DRUMMOND then read the petition and answer which have already been published in our columns.  The learned Counsel then went on to argue as follows:-
  There are the only pleadings in the case now under consideration by your Honours.  The case itself, I think I may say fortunately for all concerned, is one which will prove to be short and extremely simple, so far as both the facts and the law are concerned. I propose to deal with the matters involved in the following order, giving such observations as I proceed as appear to me to be necessary, - first, with regard to the Court; second, with regard to the law; third with regard to the facts; and lastly with regard to the  relief.
  First as to the Court. The Court exists wholly and solely by Article XXVII of the Land Regulations.  It is the first time that this Court has ever been called into existence, and therefore it is necessary to refer, perhaps, though a very few words may be sufficient, to the constitution and nature of the Court.  The Article I have mentioned, Article XXVII, is the one which creates the Court, and which also lays down the nature of the proceedings which can and may be brought before this Court is called "The Court of Foreign Consuls," and the Article lays down,
"That the executive Committee or Council may sue and be sued in the name of their Secretary for the time being or in their corporate capacity of character as "Council for the Foreign Community of Shanghai," and such Committee, Council or Secretary shall have all the rights and privileges which private complainants have, to recover and enforce judgments obtained by them, and shall also incur the obligation which private defendants have in proceedings at law or suits in equity commenced against them, provided that the individual members of the Council or their Secretary shall not be personally responsible, but only the property of the Council, and all proceedings against the  said Council or their Secretary shall be commenced and prosecuted before a "Court of Foreign Consuls," which shall be established at the beginning of each year by the whole body of Treaty Consuls."
That is the basis of the constitution of this Court before which this case is being heard.  It will be noticed there that the court being composed of, or selected from, the whole body of Treaty Consuls, it becomes a necessity that the Court itself should be an international or cosmopolitan body - that is a necessity from the actual language of the Regulation itself. That being so, there is no attempt in this section to lay down that the law of any particular country or state shall be adopted or followed by this Court. The Court may therefore be described in language which used in other times to be applied to the Court of Chancery in England, namely that they were Courts of Equity and Good Conscience, equity being at that time used in its broad, ordinary, and every-day sense of justice.  Since that time equity had grown up in to a body of law until now it contains almost if not quite as much technicality as law itself.  
  The phrase, therefore, which most aptly applies to this Court, and to the consideration by which it will be influenced, is that it is a Court of good conscience.,  There is no law of any special country, either as to practice or principle, which is binding on this Court; therefore the sole guidance, I submit, which the Court should adopt in giving a decision on this matter, and in settling all other cases of this nature, is what appears to it in  its goods conscience to be just and right.
  With regard to the law which is to be administered by this Court, if such it can be called, if it depends upon any law - I use the word law only in the sense in which I have just sketched it, the general principle of justice which will guide the Court, and from the necessity sand desirability of using some short and simple word or phrase to embody the whole of the meaning, and so far I have used the word law simply and entirely for the sake of  convenience - the primary law that therefore has to be looked at in deciding this case is contained in the Land regulations, the same collection of Articles under which the Court itself exists, and under which the defendants themselves exist as a body. The three Articles which more or less touch upon this case are Articles IX, XV and XXVII.  In addition to these three Articles Bye-law XXXIV is one that has an equally strong if not a still stronger bearing and if of very great importance in the decision of the settlement of this matter.  Article IX has but a slight bearing on this case.  I refer to it simply because it contains these words "to impose and levy rates and issue licenses, for the purposes mentioned in the Bye-laws." That is all that it is necessary for me to refer to in that Article.  Article XV is one that has a more important bearing on the case.
  Mr. DENNY - There seems to be some difference between certain publications of the Land Regulations; all the copies don't agree.  The copy published in 1873 differs from that published in 1879, - the wording is not always exactly the same, and the sections or paragraphs are not numbered the same.  In referring to the Land Regulations, therefore, it might be advisable for you to mention what publication you use, the 1873 edition, or the 1879 edition.
    Mr. DRUMMOND - Both the editions were published with the authority of the Municipal Council; at least they issued them.  The copy which I have is an old copy; it is a good many years old, 1873 I believe, but I have had it interleave and al changes that have taken place have been incorporated.  Articles and Bye-laws that have been repealed have been crossed out and new ones that have been duly passed, approved and sanctioned have been put in.
  Mr. Denny - I mention the fact that there is a difference between the sections and Articles in the two publications; the numbers are not the same, so in referring to the Articles and paragraphs unless you give the date of the publication we shall get confused.
  Mr. DRUMMOND - Articles IX, XV and XXVII are the same in both publications; the only difference is in regard to Bye-law XXXIV.  Bye-law XXXIV in the 1879 edition is a different Bye-law to Bye-law XXXIV in the 18763 edition.   That Bye-law was repealed and the alteration sent to Peking and it was duly sanctioned.
  Mr. HUGHES - I think that was in 1872.
  Mr. ROBINSON - Yes, on the 6th May, 1872, the new Bye-law was passed.
  Mr. DRUMMOND - I have here, in the North-China Herald, the report of a meeting of the Council held on the 16th of November, 1874, and it contains a notification from the Ministers from which it appears that the new Bye-law has been duly approved by them and is declared to be in force.
  Mr. ROBINSON - I would suggest to the Court that we should have a clear understanding as to what the Regulations are.  The copy of the Regulations bound in blue I know nothing about.  The copy we have here was printed in 1873, and that is the one we rely upon. So far as the Council is concerned that copy is authentic, and to save time we are prepared to admit them.
  Mr. DENNY - I have two copies, one printed in 1873 and the other in 1879.
  Mr. ROBINSON- We do not know anything about the copy printed in 1879, and it does not say the Council published it.  The one published in 1873 is sanctioned by the Council.
  Mr. HUGHES - And the Bye-law under which Mr. Drummond is going to proceed was passed in May 1872.
  Mr. ROBINSON - Yes, the 6th May, 1872.
  Mr. DRUMMOND - And I do not understand that there is any contention on the part of my learned friend that this Bye-law is not in force; in fact I think it is admitted to be in force at the present time.
  Mr. ROBINSON - I am willing to admit that it is in force, that it is the Bye-law now, and that the previous one has been repealed.
  Mr. DRUMMOND - That is all we want - the Council to admit that the Bye-law is now in force.  In the recent publication, the 1879 one, the Council has adopted the course of omitting useless Articles and Bye-laws, those that had been repealed, and they simply published those in force, including the new Bye-law XXXIV.
  Mr. ROBINSON - The Council, I don't think, have published anything.
  Mr. DRUMMOND - The Bye-laws state that they are printed and issued to the Ratepayers on the authority of the Municipal Council - they are issued from the Council's offices to the ratepayers.
  Mr. ROBINSON - We know nothing about the blue copy (the 1879 publication.) I am instructed that it was not printed by the Council.
  Mr. DRUMMOND - But it states that it was,  However, I think your Honours will find that there is very little difference, if any at all, and the Bye-law on which the case is based is the Bye-law my leaned friend has admitted to be in force.
  Mr. ROBINSON - The Bye-law I admit is printed at page 46a in the edition of 1873.
  Mr. DENNY - The Bye-law had better be read, and we can then see that the difference is.
  Mr. DRUMMOND - I will read it from my amended copy of the Bye-laws., He then read as follows:-
No person shall open or keep a house of Public Entertainment, Music Hall, Theatre, Circus, Billiard, Bowling or Dancing Saloon, or Shop or Store for the sale of Wines, Spirits, Beer, Intoxicating Drugs, Butchers' Meat, Poultry or Game, Slaughter House or Livery Stables,  or sell or vend any Wines, Spirits, Beer, Intoxicating Drugs, Butchers' Meat, Poultry or Game, or ply, let or use for hire, any boat, horse or public vehicle, within such limits, without a License first obtained from the Council, and in the case of Foreigners counter-signed by the Consul of the nationality to which such person belongs.  
  In respect of such licenses, the Council may impose such conditions and exact such security as the nature of the particular case may require, and charge such fees in respect thereof as may be authorized at the Annual General Meeting of ratepayers.  And any such person offending against or infringing the provisions of this Bye-law shall be liable for every offence to a fine not exceeding One Hundred Dollars.
 Mr. DENNY - That is the one I have in the Bye-laws printed in the 1879 edition of the Land Regulations.  Will you now read, Mr. Drummond, the old Bye-law, the one referred to by Mr. Robinson as printed in 1873.
  Mr. DRUMMOND - I understand your Honour wants to have read the old Bye-law that has been repealed.  It would be better to have it read as I am going to point out the difference between the two - the difference, I think, has an important bearing on the present case, and I place some reliance upon it.
  Mr. DENNY - Do you object, Mr. Robinson? Are you going to contest which is the Bye-law in force?
  Mr. ROBINSON - I admit that the Bye-law just read by my friend is the correct one.
  Mr. DRUMMOND - My learned friend admits that the Bye-law I have read is the correct one, that it is, in fact, the Bye-law now in force.
  Mr. ROBINSON - I admit it your Honour.
  Mr. DENNY -The Bye-law is admitted - the one I have in the 1879 edition.
 Mr. DRUMMOND - there is now no further question as to that.  I have already referred to the IX Article.  The next one I will refer to is Article XV, under which special meetings of Ratepayers are held; it is th Article which gives the authority for holding special meetings, and the meeting which passed the resolution of the special meeting out of which the present case arose was one that was held under Article XV of the Land Regulations.  
  There are some phrases there, and there is one which possibly may be relied upon by my learned friend by and by, as supporting his position in the matter.  Article XV of the Land Regulations says -
  Mr. DENNY - What publication are you reading from?
  Mr. DRUMMOND - The same as before.  This Article is the same in both editions of the Land Regulations.  I am reading from the XV Article of the Land Regulations and the first part of it is as follows:-
Be it further ordered that it shall be competent for the Foreign Consuls, collectively or singly, when it may appear to them needful for the electors, provided not less than twenty-five agree in writing to do so, to call a public meeting at any time, giving ten days notice of the same, setting forth the business upon which it is convened, for the consideration of any matter or thing connected with the Municipality.
  And all resolutions passed by a majority at any such public meeting including proxies for absent owners of Land, on all such matters as aforesaid, shall be valid and binding upon the whole of the said electors, if not less than one-third of the electors are present or represented.
And a little further on the same Article says:-
  In all cases in which electors in public meeting assembled, as herein provided, decide upon any matter of a Municipal nature, not already enumerated, and affecting the general interest, such decision shall first be repotted by the Chairman to the consuls for their concurrence and approval, and unless such approval be given, such resolution shall not be valid and binding.
  The only observation I have to make at this moment at any rate with regard to that Article is that the decision which is there referred to must, I submit, be a decision within the powers and in accordance with the terms of the Land Regulations themselves and the Bye-laws as a whole - it must be a decision within those powers.  If it be said that the meaning of that is that any decision can be arrived at, that the Ratepayers in public meeting assembled may choose, consider and pass what they like, and that there is no limit to their powers in that respect, then I submit that the whole body of the Land Regulations and Bye-law become useless and invalid.
  My view is that one single sentence such as that, giving the Ratepayers absolute power in all things, giving them power to meet, discuss, and to pass what they like, would be quite sufficient to set aside the whole body of law which now governs these Settlements - just one short simple sentence that they can meet and pass any resolution they liked would be quite sufficient to do away with the present government of the Settlements. There would be no necessity for Regulations defining the course of procedure and for limiting their powers, and no necessity for an Bye-laws created with such high sanction as these are; they could make their own rules and Bye-laws for every day working, but these Bye-laws have the same high sanction and the same authority as the very Land Regulations themselves.
  It cannot be argued, I say, with any semblance of reason that the Ratepayers have such powers as I have sketched under Article XV. If it can, then I say that all this body of Land Regulations and Bye-laws, all this body of law which has been carefully revised and sanctioned by the high authority of the Ministers at Peking, is completely useless; all the Land Regulations and Bye-laws are completely useless if this XVth Article can be held to have such extravagant meaning, the ratepayers could simply meet and pass a few law for themselves.  
  The only other reference I have to make so far at least as the Land Regulations are concered is to Bye-law XXXIV, and that has been already referred to.  The Bye-law itself is what I have read, and it has been admitted by my learned friend to be the Bye-law in force. I wish to draw the attention of the Court to the fact that the language of the Bye-law now in force differs in one most essential point from the language of the Bye-law that was previously in force.  The language of the Bye-law which was previously in force I will now read:
No Foreigner or Chinese shall vend spirits or liquors, or intoxicating drugs of any kind or description, or open a house of Public Entertainment, Shop., Store, Music Hall, Theatre, Circus, Billiard, Bowling or Dancing Saloon, within such limits, or ply, let, or use for hire, any boat, horse or public vehicle, without a License first obtained from the Council and in the case of foreigners,  countersigned by the Consul of the nationality to which the applicant belongs, and without giving good and sufficient security for the maintenance of order in such establishment; and in respect of such Licenses, the council may charge on such scale as may be authorized at the meetings held under the authority of these regulations.
Annually-
For every Wine and Spirit Shop or Store
For every Beer Shop
For a House of Entertainment, Hotel or Tavern
For every night open -
Music Hall
Theatre
Circus
Billiard, Bowling, or Dancing Saloon.
  And any person opening or keeping or holding any such House of Public Entertainment, Shop, Store, Music Hall, Theatre, Circus, Billiard, Bowling, or Dancing Saloons, without having first obtained the License of the council, shall over and above the cost of the License and Summons, be liable to a penalty or fine not exceeding fifty dollars ($50.)
  I ask the careful attention of the Court to the language of this Bye-law.  I wish to draw special attention to the fact that under the old Bye-laws it would appear to have been legal to have considered this matter at a special meeting just as much as it would at the annual meeting, the words used in the Bye-law being "at the meetings held under the authority of these regulations."  Undoubtedly that sanctions and includes not only the annual general meetings, but also special meetings under Article XV., and the Bye-laws authorize the Council to levy such fees as may from time to time be authorised at any of these meetings; but the new Bye-law, which the Council now works under has been drawn up in a different form, with the view, apparently, as the language itself shows, to carefully limit the power of charging these particular fees to the annual general meeting of ratepayers only. That to my mind is most important in the consideration of this case by your Honours.
 Now I take it that the language of the Bye-law itself shows that it was never intended to have the meeting to refer to any other meetings than the annual general meeting.  If it is to be said that meaning was never intended to be given to the Bye-law, but that the words "the annual general meeting of Ratepayers" were merely used inadvertently, or were intended to give all the meetings of the Ratepayers, then I say that is a meeting that cannot be raised or supported in the face of the fact that the Council had the power before this Bye-law which was passed in 1872, but as soon as it was passed the power was limited.  The Council themselves got a fresh Bye-law passed by the Ratepayers, and it was duly approved by the Consuls and Ministers, and under this New Bye-law they have reduced their power from all meetings, the annual meeting and special meeting - to one meeting alone, the annual general meeting.
  That is a very significant fact as far as this particular case is concerned, -----------

 

North China Herald, 23 June 1882  &c.


  That is a very significant fact as far as this particular case is concerned, and I think it goes a long way to cover the ground that the defendants actually reply upon, namely that the plaintiffs have no power to fix fees as they propose to do at any special meeting under Article xv, but they must be bound entirely by the resolutions passed at the annual general meetings alone.  As to the law which refers to the subject of injunctions of course in reading some passage from some works in the subject I will of course to emphasize that I do not merely as to where to lay down the principles which I think the Court it convenient, wise and right to adopt more or less as a guide, and I wish it to be understood that I do not submit any one of them as binding upon this Court.  I think the Court, at least it is my opinion that the Court has the fullest power to examine the principles of law of any country, and to choose and reject any one of them it thinks fit; at the same time the Court has power to adopt and enforce any principle of law from any country where it considers that the principle is just in itself and applicable to this particular case. Therefore in citing from text books and authorities I do so to show what appear to be useful and wise principles but not as binding on this Court in any way whatever.
  In the work known as "Joyce on Injunctions," which is now one of the chief authorities in English Courts on the subject, there are some passages in the chapter on Corporations aggregate referring to the cases showing that persons or corporations are strictly limited by the Courts to the powers which are conferred to them by the Acts of Parliament, or whatever other power they may be under; they are limited and strictly tied down to the limits of the powers given them.  On page 737, Vol. 1, is the passage,
"persons interfering with the property of individuals by virtue of an Act of Parliament are strictly tied down to the limits of the powers given by the Act, and they are bound to show clearly and distinctly that they are empowered by the Act to do what they propose to do."
If that applied here, the Council must show that they are empowered to do what they propose to do by the powers they act under.  Again on the next page, page 738, there was a case of a public body exceeding its powers, being restrained.  Sir Samuel Romilly says,
"whether this was established or not, it ought (if not consented to by them) to be restrained by injunction, being the act of a public body exceeding its powers."
Then in Kerr on Injunctions, pager 505, there is this passage:
"Public functionaries or bodies, incorporated by statute for a public purpose or the promotion of a public benefit may not exceed the jurisdiction which has been entrusted to them by the legislature has pointed out, the Court will not interfere to see whether any regulation or alteration which they make is good or bad; but if, under pretence of an authority which the law does give them to a certain extent, they go beyond the line of their authority, and assume to themselves a power which the law does not give them, the Court no longer considers them as acting under the authority of their commission, but treats them as persons acting without legal authority."
On the following page of the same work there are some paragraphs showing that Corporations exceeding their powers can be, and are, restrained by injunction.  I will not read them, but simply content myself with directing the attention of the Court to them.
  The next work to which I will refer is Storey on Equity Jurisprudence, a work which is looked upon as one of the very highest possible authorities, not only in the English Courts, but in the American Courts also, being the work of an American judge and author.  Mr. Justice Storey in his chapter on injunctions, vol. 2, page 63, section 861 says,
A writ of injunction may be described as a judicial process, whereby a party is required to do a particular thing or to refrain from doing a particular thing, according to the exigency of the writ.  The most common form of injunctions is that which operates as a restraint upon the party in the exercise if his real or supposed rights; and I sometimes called the remedial writ of injunction,"
On the same page there is also the following.
It has been remarked by Mr. Eden that wherever a plaintiff appears entitled to equitable relief, if it consists in restraining the commission or the continuance of some act of the defendant, a Court of Equity administers that relief by injunction. In many cases it enforces it by means of the process of a writ of injunction, properly so called.
But he proceeds to remark: -
But as the known forms of that remedy are by no means adapted to every cause in which the Court has jurisdiction to interpose, the prohibition has in numerous cases been issued and conveyed in the shape merely of an injunction."
In the following paragraph it says that,
"the object of this process, which is most extensively used in equity proceedings, is generally preventive and protective, rather than restorative;  while in the next paragraph is the sentence that "the granting or refusal of injunctions is, however, a matter resting in the sound discretion of the Court, but injunctions are now more liberally granted than in former times."
  Section 926 is as follows:
"On the other hand, where the injury is irreparable, as where loss of health, loss of trade, destruction of the means of subsistence or permanent ruin to property, may or will ensue from the wrongful act or erection; in every such case Courts of Equity will interfere by injunction, in furtherance of justice and the violated rights of the party."
And in the next paragraph, page 121,
"an injunction will be granted against a corporation, to prevent an abuse of the power granted to them to the injury of other persons."
The same section shows that injunctions are granted against the erection of a new ferry, injurious to an old established ferry; and in favour of a turnpike corporation to secure the enjoyment of their privileges, by preventing the establishment of short by-roads to destroy their tolls. At page 126, section 927,
It is not the duty of the applicant for an injunction, except in cases of physical impossibility, to inform the Court, or for the Court to be informed, how the defendants will be able to comply with the injunction.  If the applicant makes a case it is the duty of the Court to grant the injunction, and it will be for the defendants to apply for a suspension or relaxation of the order where that becomes necessary.
Further on in section 95, page 163, Mr. Justice Storey says,
"The question that has been made, how far a Court of Equity has jurisdiction to interfere in cases of public functionaries, who are exercising special public trusts or functions.  As to this, the established doctrine now is, that so long as these functionaries strictly confine themselves within the exercise of those duties which are confided to them by the law, this Court will not interfere The Court will not interfere to see whether any alteration or regulation which they may direct is good or bad; but, if they are departing from the power which the law has vested in them, if they are assuming to themselves a power over property which the law does not give them, this Court no longer considers them as acting under authority of their commission, but treats them, whether they be a corporation or individuals merely as persons dealing with property without legal authority."
At page 169, in section 959,
"It has been already suggested, that the granting or refusing of injunctions is a matter resting in the sound discretion of a Court of Equity; and, consequently, no injunction will be granted whenever it will operate oppressively or inequitably, or contrary to the real justice of the case; or where it is not the fit and appropriate mode of redress under all the circumstances of the case; or where it will or may work an immediate mischief, or fatal injury."
I have only one more reference to Storey. At page 171, section 959b, he says:-
"It may be remarked, in conclusion upon the subject of special injunctions, that Courts of Equity constantly decline to lay down any rule which shall limit their power and discretion as to the particular cases in which such injunctions shall be granted or withheld. And there is wisdom in this course, for it is impossible to foresee all the exigencies of society which may require their aid and assistance to protect rights, or redress wrong. The jurisdiction of these courts, this operating by way of special injunction, is manifestly indispensable for the purposes of social justice in a great variety of cases, and therefore should be fostered and upheld by a steady confidence."
  The last authority to which I shall refer on the subject is on another point, namely, the construction of language.  In Brown's Legal Maxims, page 535, there is a passage on the interpretation of deeds and written instruments which gives a very terse and clear statement of the leading and fundamental rules for the interpretation of particular documents. In the case given the document was a will, but the agreement equally applied to the interpretation of any other document and is of importance in the consideration of what construction should be put on language whether it be an Act of Parliament, an Act of Congress, a will, contract, or anything else. In the case cited Baron Parke observes,
"that difficulties have arisen from confounding the testator's intention with his meaning.  Intention may mean what the testator intended to have done, whereas the only question in the construction of wills is on the meaning of the words;"
And in another case Baron Rolfe says,
"We are to ascertain by construing the will non quod voluit sed quod dixit, or that we are to ascertain quod voluit by interpreting quod dixit."
It is hard to imagine a more terse and complete statement of the principles which are now adopted by Courts in England and America, in considering documents or written papers of any kind. It is not that the Courts are to assume what the meaning is, or what parties may have intended to do; it is what the language itself plainly says.  Then on page 552 of the same author there is a reference to what is known as the "golden rule." Chief Justice Jervis there remarks that,
"if the precise words used are plain and unambiguous in our judgment, we are bound to construe them in their ordinary sense, even though it do lead, in our view of the case, to an absurdity or manifest injustice.  Words may be modified or varied, where their importance is doubtful or obscure.  But we assume the functions of legislators where we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice in an adherence the their literal meaning."
  On the following page there is this note taken from another case.
"It is a good rule, in the construction of Acts of Parliament, that the Judges are not to make the law what they think reasonable, but to expound it according to the common sense of its words."
These little passages are useful as showing in a very terse and simple shape the principles upon which the Courts in England and America act when they have to consider and decide a case which depends upon the language of a written document of any shape or kind.  Here undoubtedly I think the case must come down to the consideration of the actual meaning of the language of Bye-law XXXV.  If that is held to be so, and I think there can be no doubt that it must be so held, then the words "Annual General Meeting" mean the annual general meeting and nothing else, and does not include any special meetings whatever, and I think the contention that my learned friend has raised in his answer, and upon which the defendants' case must rest, must entirely fail.  The answer in its second paragraph states in very wide terms that any alteration in the rates of fees for licenses may be duly sanctioned by the Ratepayers.  To my mind the word duly begs the whole question. Duly sanctioned can only mean a sanction duly given, and is itself sanctioned by the authority upon which the Ratepayers themselves exist.  If it be duly sanctioned then it is in order, but if it be not duly sanctioned then the whole question is still at issue.
  The arguments which my learned friend has placed before the Court, after admitting all the facts, are extremely wide of the mark, and simply amount to saying that the Ratepayers have power to pass and act upon any resolution they please - that they can make any alteration they please at any time.  That is, I think, simply sweeping away the whole body of regulations and Bye-laws entirely, completely ignoring them, and rendering them useless. If that is a sufficient and valid answer to the defendants, then in my opinion it is useless to have any Land Regulations at all, and this Court itself is rendered a nullity or even worse.
  The petition prays for relief under three headings, and after raising the points upon which the plaintiff relies, proceeds to ask that the Council may be enjoined to refrain from any acts altering or tending to alter during the current year, the licensed fees authorized by the last annual general meeting of Ratepayers.  I therefore submit to the Court that upon the facts "state and admitted," upon the Land Regulations and Bye-laws also admitted, and upon a review of the general principles that Courts of Equity adopt in considering such cases, that the plaintiffs are clearly entitled to the order they ask for, to prevent the Council making any alteration in the Bye-laws, - in the license fees, - till the next annual general meeting of Ratepayers.  If my learned friend in his remarks has anything to say in regard to the difficulty of carrying out an injunction of this kind, or of the possible consequences that may arise from it, that the defendant may choose to avoid or disobey it, I shall not presume to say one word now, but according to the ordinary practice I suppose I shall have an opportunity of replying to any arguments of the kind he may bring forward.  It may be necessary for me to make some observations on the point then, but as I think it more than probable that he will not refer to these points I do not propose to refer to them myself at this stage of the case.
  Mr. ROBINSON - I wish to point out to the Court in the first instance, as bearing upon the subsequent remarks I shall have to maker, that although this action is nominally brought against the Municipal Council, it is practically an action against the ratepayers.  The Council can only carry pout the instructions which they  receive from the ratepayers, and if they do that, then according to the very authorities which my friend has cited, Joyce and Storey, this Court will not enquire whether they have done right or wrong; it is sufficient for this Court to know that the Municipal Council has carried out the instructions given to them by the ratepayers.  Whether the ratepayers have power to give these instructions is a matter which I will deal with afterwards.  The plaintiffs ask this Court to restrain the Municipal Council from doing that which they have been told to do by the ratepayers, and ground that upon their construction of Bye-law XXXIV.  They further allege that neither the Council nor the ratepayers can make any alteration whatever in what they do at an annual general meeting, and that they can only charge license fees authorized by an annual general meeting.   This is the contention on the part of the plaintiffs.
  The defendants have admitted all their facts, and take issue broadly, not upon any question of law or anything else, but upon the Land Regulations by which they exist, and they further say that all they have done is in strict accordance with these Land Regulations.
  For the purpose of dealing with the contention of my learned friend, I propose to speak under three heads; first, the status of the plaintiffs to come to this Court at all; second, the power of the ratepayers assembled in public meeting; and third, the minor point whether jinricksha licenses can be put up to tender.  I propose to deal with the case under those three heads.
  Now, with regard to the status of the plaintiffs.  They exist only by permission of the Municipal Council.  They come to the Council and apply for licenses, and if licenses are granted to them, then they have an existence; if they are not granted to them, they have no existence.  They have no right to say to the Council "Give me a license."  They simply exist by the permission of the Municipal Council.  The licenses endure only for a month, and at the end of any month they can be withdrawn.  The number of licenses to be granted is not fixed by the annual general meeting; it is left to the discretion of the Council, and the Council can at any time, just when it pleases them to do so, instead of issuing 1,500, reduce the number of licenses to 5oo, and so the plaintiffs may find themselves deprived of their licenses. The Court will therefore see that as plaintiffs they have really no right in themselves to a license at all; and if they have no right to a license, the possibility of being deprived of that license constitutes no injury.
  I do not propose to trouble your Honours with many quotations upon the question of when a Court should or should not interfere by way of injunction in equity.  The cases cited by my learned friend, I venture to think, have little or no application to this particular case.  He quoted instances of public functionaries travelling out of the powers given to them; but he has not shown in this case that the Council has in the slightest degree travelled out of the powers given to it by the Land Regulations; therefore, the quotations which m y friend has cited, I think, are inapplicable to this particular case.
  A principle which is certainly applicable is laid down in Mr. Storey's Principles of Equity, published in 1880.  On the subject of "injunctions to prevent a tort," at page 565, it is laid down as a general rule "that however a right exists, or is created, a violation of that right will be prohibited, subject to the limitation that the right is cognizable at law." Here, as I have endeavoured to point out, there is no right cognizable at law; the plaintiffs have no right to anything.  They have a right, when once a license is granted to them, to be charged a particular fee; but they have no right in the license at law; they are permitted to hold the license at the mere caprice of the Council, - not that I mean to say the Council are likely to be capricious, - but they have no right in the license and no right cognixxxable at law.  
"It follows therefore," says Mr. Snell, "that the restraining process of equity will apply to the whole range of rights and duties which are recognized as enforceable at law."
But the plaintiffs here cannot enforce anything; it is the will and pleasure of the Council as to whether they receive a license or not.  
"It should also be remembered," says Mr. Snell, "that though the jurisdiction in equity is in principle so extensive, it is restrained and modified by considerations of expediency and convenience, and that equity will not interfere when a breach may be completely and adequately paid for by damagers at law."
This is particularly applicable to this case.  If the plaintiffs have any right at all and have suffered damage, they can sue the council for damages, and if they can prove to the satisfaction of the Court that they have suffered damage, they can be compensated in that way, and there would be no necessity for the Court interfering by way of injunction.   Now that is a perfectly accurate statement of the rules which govern Courts in England when called upon to interfere by way of injunction.  I would also point out to the Court that in their petition the plaintiffs do not venture to allege that they have suffered any injury whatever.
  Now, it is something new for anybody to come to Court and ask for an injunction without stating that they have suffered some injury.  This is not a mere technical objection, as it would be difficult for the plaintiffs to state their injury.  They cannot state it; they have omitted it; and this is to my mind a strong reason why this Court should not interfere to prevent people from suffering an injury which they cannot themselves define.  Another thing which probably will strike the Court is that if jinricksha licenses are, according to the construction of my learned friend, to be granted to the end of the year, what are we to do with such places as theatres, saloons, circuses, and everything else?  In every one of these cases, if you will turn to the Budget, you will see that the duration of the license is fixed, and there is only one class of annual licenses, namely, houses of public entertainment.   If my learned friend's contention is correct, jinricksha licenses are not only for a month, but they are entitled to retain them for the current year.  If he be correct what becomes of the wording of the Bye-law?  
  On page 3 of the report of the meeting of the ratepayers of 24th February, 1882, the annual general meeting of the present year, I find the table of licenses then passed.  It says, "music hall, theatre, circus - for every night open." Is it to be seriously argued that these people are entitled to say "I must have these licenses all the year through, and you cannot make any changes?" I think not.
  And then coming down to jinrickshas, they are licensed at "$1 per month, payable in advance."  These are the licenses authorized to be charged.  I say that if the contention of my learned friend were to prevail, it would be open to any of the people, who hold licenses to contend that they had vested rights in their licenses during the current year, a thing which I imagine the Court will agree would throw the finances of the Settlement very much into confusion.  Upon these grounds, therefore -and these very simple grounds too, it seems to me, - I submit to you, gentlemen, that the plaintiffs themselves have no  locus standi before the court; they have not shown you that they have suffered any injury; they have not defined any injury; and therefore they cannot come to ask you for an injunction  to prevent their suffering an injury which they cannot themselves define, or which they have not chosen to define; and upon that ground alone, of the status of the plaintiffs, the Court, I think,  should refuse the prayer of their petition.
  I come now to the second branch of my argument, namely, the powers of the ratepayers assembled in public meeting; and I contend before you with the utmost confidence that the Municipal Council, far from acting with any degree of irregularity, have perfectly and strictly conformed to the Land Regulations. You may have observed that while my learned friend has been eloquent in his references to law books which have nothing to do with the Land Regulations, he has left the consideration of the Land Regulations tolerably in the dark - he has left them in the shade.  He has cited Articles IX, XV, and XXVII, but he has omitted a most material one to which I shall direct your attention.  The Article my learned friend failed to cite was Article XXV, and I shall point out to you that it has a very important bearing on this particular question. But, to come back to my contention that the Council have strictly conformed to the Land Regulations. Now, the Council are simply the executive of the ratepayers, and by Article IX the ratepayers, and  the ratepayers alone are entrusted with the power to devise ways and means.  In the middle of page 16, Article IX of the edition of 1872 of the Land Regulations, you will find these words "the Treaty Consuls shall give notice of a public meeting to be held within twenty-one days of such notice to devise ways and means of raising the requisite funfds for these purposes" (such as the construction of public works, etc.); "and it shall be competent to such meeting" (and this is the authority on which the Council acts), "duly assembled, or a majority thereof, including proxies for absent owners of land, to impose and levy rates and issue licenses for the purposes mentioned in the Bye-laws, and to declare an assessment in the form of a rate to be made on the said Land or buildings," etc.
  Then it goes on to provide for the proportion of the taxes, but this does not touch the present question.  This is the authority vested in the Ratepayers to impose license fees. When the Council are told to do that, they are a public body - a public body in the sense alluded to in the authorities quoted by my learned friend - carrying out as public functionaries, those things which they have been told to do by their superior authority.  Unless it can be argued that the ratepayers have no right to impose fees, if the Council faithfully carry out the instructions they receive from the Ratepayers, they confine themselves within the legitimate province of their authority.   It is quite true, says my learned friend, that the Ratepayers imposed this rate on the 24th February, and he maintains that on the 20th April, they cannot alter it.  That is his contention, and just think for a moment whether it can possibly be reasonable?
  Let us take these very fees.  Suppose it were proved to the satisfaction of the Council that the imposition of a dollar a month was more than these people could pay, that it practically tended to prevent the jinrickshas from plying - and the jinrickshas are admitted to be a public convenience, and are encouraged to a large extent - if you adopt his proposition, the [Council] would be debarred from yielding to the reasonable representations of these people to lower the fee, although they might be quite able to recognize its injustice. That contention I say is unreasonable, and I don't think the court will give expression to that view; and it you can alter the  fees in the sense of lowering them, it follows that the resolution passed is not final; and if it is not final, the argument that no alteration can be made falls to the ground. Another very strong confirmation of the justice of my view is to be found, I think, in Article XXV, to which my learned friend did not refer.  In Article XXV, you will find it is provided that "The Council shall administer the Municipal Funds for the public use and benefit, at their discretion, with due regard to the Budget passed, provided they do not exceed the sum voted at the Annual Meeting, or any Special Meeting called to vote expenses." Therefore, it is perfectly pain that these Regulations contemplated the possibility of the Budget passed at the annual general meeting being altered at a special meeting, and it shows that the authority of a special meeting, as exercised in this case is perfectly clear.  Now that being so, the  remarks I have made dispose pretty well of the contention of my learned friend as to the finality of the Budget passed at the annual general meeting, and it seems to me that Article XV is absolutely conclusive upon it.

North China Herald, 23 June 1882

LAW REPORTS.
COURT OF FOREIGN CONSULS.
Shanghai, 19th June, 1882
Before O. N. DENNY, U.S. Consul General, President; P. J. HUGHES, Esq., H.B.M.'s Consul; R. VON KRENCKI, Esq., Acting Consul-General for Germany.
FU CHUN-YUE and others v. The MUNICIPAL COUNCIL.
  Mr. W. V. DRUMMOND appeared for the plaintiffs.
  Mr. A. ROBINSON appeared for the defendants, Mr. W. CV. WARD, the Chairman of the Council, being present.
  This case has previously been before the Court, and today was fixed for it to be heard.
  Mr. DRUMMOND, in opening the proceedings, said - May it please your Honours, I presume that perhaps the best course will be to commence by reading the petition and answer.  I mentioned to my learned friend on the first occasion on which we were here that I wished to amend the petition by adding a few words to one of the claims, but in consequence of the preliminary objects which he made at the time on other grounds that matter was not gone into; therefore I would now formally ask that the Court grant me permission to add a few words to the fourth paragraph of the petition, and I presume my learned friend has no objection.
  Mr. Robinson - I have no objection.
  Mr. Drummond - I only wish to add a few words.  The words I wish to add are, after the words "license fee of $1" in last line of the fourth paragraph, the words "per month during the current year."
  Mr. Denny - Have you any objection, Mr. Robinson?
  Mr. Robinson - No, none whatever.
  Mr. Denny - The fourth paragraph of the petition will be so amended.
  Mr. DRUMMOND then read the petition and answer which have already been published in our columns.  The learned Counsel then went on to argue as follows:-
  There are the only pleadings in the case now under consideration by your Honours.  The case itself, I think I may say fortunately for all concerned, is one which will prove to be short and extremely simple, so far as both the facts and the law are concerned. I propose to deal with the matters involved in the following order, giving such observations as I proceed as appear to me to be necessary, - first, with regard to the Court; second, with regard to the law; third with regard to the facts; and lastly with regard to the  relief.
  First as to the Court. The Court exists wholly and solely by Article XXVII of the Land Regulations.  It is the first time that this Court has ever been called into existence, and therefore it is necessary to refer, perhaps, though a very few words may be sufficient, to the constitution and nature of the Court.  The Article I have mentioned, Article XXVII, is the one which creates the Court, and which also lays down the nature of the proceedings which can and may be brought before this Court is called "The Court of Foreign Consuls," and the Article lays down,
"That the executive Committee or Council may sue and be sued in the name of their Secretary for the time being or in their corporate capacity of character as "Council for the Foreign Community of Shanghai," and such Committee, Council or Secretary shall have all the rights and privileges which private complainants have, to recover and enforce judgments obtained by them, and shall also incur the obligation which private defendants have in proceedings at law or suits in equity commenced against them, provided that the individual members of the Council or their Secretary shall not be personally responsible, but only the property of the Council, and all proceedings against the  said Council or their Secretary shall be commenced and prosecuted before a "Court of Foreign Consuls," which shall be established at the beginning of each year by the whole body of Treaty Consuls."
That is the basis of the constitution of this Court before which this case is being heard.  It will be noticed there that the court being composed of, or selected from, the whole body of Treaty Consuls, it becomes a necessity that the Court itself should be an international or cosmopolitan body - that is a necessity from the actual language of the Regulation itself. That being so, there is no attempt in this section to lay down that the law of any particular country or state shall be adopted or followed by this Court. The Court may therefore be described in language which used in other times to be applied to the Court of Chancery in England, namely that they were Courts of Equity and Good Conscience, equity being at that time used in its broad, ordinary, and every-day sense of justice.  Since that time equity had grown up in to a body of law until now it contains almost if not quite as much technicality as law itself.  
  The phrase, therefore, which most aptly applies to this Court, and to the consideration by which it will be influenced, is that it is a Court of good conscience.,  There is no law of any special country, either as to practice or principle, which is binding on this Court; therefore the sole guidance, I submit, which the Court should adopt in giving a decision on this matter, and in settling all other cases of this nature, is what appears to it in  its goods conscience to be just and right.
  With regard to the law which is to be administered by this Court, if such it can be called, if it depends upon any law - I use the word law only in the sense in which I have just sketched it, the general principle of justice which will guide the Court, and from the necessity sand desirability of using some short and simple word or phrase to embody the whole of the meaning, and so far I have used the word law simply and entirely for the sake of  convenience - the primary law that therefore has to be looked at in deciding this case is contained in the Land regulations, the same collection of Articles under which the Court itself exists, and under which the defendants themselves exist as a body. The three Articles which more or less touch upon this case are Articles IX, XV and XXVII.  In addition to these three Articles Bye-law XXXIV is one that has an equally strong if not a still stronger bearing and if of very great importance in the decision of the settlement of this matter.  Article IX has but a slight bearing on this case.  I refer to it simply because it contains these words "to impose and levy rates and issue licenses, for the purposes mentioned in the Bye-laws." That is all that it is necessary for me to refer to in that Article.  Article XV is one that has a more important bearing on the case.
  Mr. DENNY - There seems to be some difference between certain publications of the Land Regulations; all the copies don't agree.  The copy published in 1873 differs from that published in 1879, - the wording is not always exactly the same, and the sections or paragraphs are not numbered the same.  In referring to the Land Regulations, therefore, it might be advisable for you to mention what publication you use, the 1873 edition, or the 1879 edition.
    Mr. DRUMMOND - Both the editions were published with the authority of the Municipal Council; at least they issued them.  The copy which I have is an old copy; it is a good many years old, 1873 I believe, but I have had it interleave and al changes that have taken place have been incorporated.  Articles and Bye-laws that have been repealed have been crossed out and new ones that have been duly passed, approved and sanctioned have been put in.
  Mr. Denny - I mention the fact that there is a difference between the sections and Articles in the two publications; the numbers are not the same, so in referring to the Articles and paragraphs unless you give the date of the publication we shall get confused.
  Mr. DRUMMOND - Articles IX, XV and XXVII are the same in both publications; the only difference is in regard to Bye-law XXXIV.  Bye-law XXXIV in the 1879 edition is a different Bye-law to Bye-law XXXIV in the 18763 edition.   That Bye-law was repealed and the alteration sent to Peking and it was duly sanctioned.
  Mr. HUGHES - I think that was in 1872.
  Mr. ROBINSON - Yes, on the 6th May, 1872, the new Bye-law was passed.
  Mr. DRUMMOND - I have here, in the North-China Herald, the report of a meeting of the Council held on the 16th of November, 1874, and it contains a notification from the Ministers from which it appears that the new Bye-law has been duly approved by them and is declared to be in force.
  Mr. ROBINSON - I would suggest to the Court that we should have a clear understanding as to what the Regulations are.  The copy of the Regulations bound in blue I know nothing about.  The copy we have here was printed in 1873, and that is the one we rely upon. So far as the Council is concerned that copy is authentic, and to save time we are prepared to admit them.
  Mr. DENNY - I have two copies, one printed in 1873 and the other in 1879.
  Mr. ROBINSON- We do not know anything about the copy printed in 1879, and it does not say the Council published it.  The one published in 1873 is sanctioned by the Council.
  Mr. HUGHES - And the Bye-law under which Mr. Drummond is going to proceed was passed in May 1872.
  Mr. ROBINSON - Yes, the 6th May, 1872.
  Mr. DRUMMOND - And I do not understand that there is any contention on the part of my learned friend that this Bye-law is not in force; in fact I think it is admitted to be in force at the present time.
  Mr. ROBINSON - I am willing to admit that it is in force, that it is the Bye-law now, and that the previous one has been repealed.
  Mr. DRUMMOND - That is all we want - the Council to admit that the Bye-law is now in force.  In the recent publication, the 1879 one, the Council has adopted the course of omitting useless Articles and Bye-laws, those that had been repealed, and they simply published those in force, including the new Bye-law XXXIV.
  Mr. ROBINSON - The Council, I don't think, have published anything.
  Mr. DRUMMOND     - The Bye-laws state that they are printed and issued to the Ratepayers on the authority of the Municipal Council - they are issued from the Council's offices to the ratepayers.
  Mr. ROBINSON - We know nothing about the blue copy (the 1879 publication.) I am instructed that it was not printed by the Council.
  Mr. DRUMMOND - But it states that it was,  However, I think your Honours will find that there is very little difference, if any at all, and the Bye-law on which the case is based is the Bye-law my leaned friend has admitted to be in force.
  Mr. ROBINSON - The Bye-law I admit is printed at page 46a in the edition of 1873.
  Mr. DENNY - The Bye-law had better be read, and we can then see that the difference is.
  Mr. DRUMMOND - I will read it from my amended copy of the Bye-laws. He then read as follows:-
No person shall open or keep a house of Public Entertainment, Music Hall, Theatre, Circus, Billiard, Bowling or Dancing Saloon, or Shop or Store for the sale of Wines, Spirits, Beer, Intoxicating Drugs, Butchers' Meat, Poultry or Game, Slaughter House or Livery Stables,  or sell or vend any Wines, Spirits, Beer, Intoxicating Drugs, Butchers' Meat, Poultry or Game, or ply, let or use for hire, any boat, horse or public vehicle, within such limits, without a License first obtained from the Council, and in the case of Foreigners counter-signed by the Consul of the nationality to which such person belongs.  
  In respect of such licenses, the Council may impose such conditions and exact such security as the nature of the particular case may require, and charge such fees in respect thereof as may be authorized at the Annual General Meeting of ratepayers.  And any such person offending against or infringing the provisions of this Bye-law shall be liable for every offence to a fine not exceeding One Hundred Dollars.
 Mr. DENNY - That is the one I have in the Bye-laws printed in the 1879 edition of the Land Regulations.  Will you now read, Mr. Drummond, the old Bye-law, the one referred to by Mr. Robinson as printed in 1873.
  Mr. DRUMMOND - I understand your Honour wants to have read the old Bye-law that has been repealed.  It would be better to have it read as I am going to point out the difference between the two - the difference, I think, has an important bearing on the present case, and I place some reliance upon it.
  Mr. DENNY - Do you object, Mr. Robinson? Are you going to contest which is the Bye-law in force?
  Mr. ROBINSON - I admit that the Bye-law just read by my friend is the correct one.
  Mr. DRUMMOND - My learned friend admits that the Bye-law I have read is the correct one, that it is, in fact, the Bye-law now in force.
  Mr. ROBINSON - I admit it your Honour.
  Mr. DENNY -The Bye-law is admitted - the one I have in the 1879 edition.
 Mr. DRUMMOND - there is now no further question as to that.  I have already referred to the IX Article.  The next one I will refer to is Article XV, under which special meetings of Ratepayers are held; it is the Article which gives the authority for holding special meetings, and the meeting which passed the resolution of the special meeting out of which the present case arose was one that was held under Article XV of the Land Regulations.  
  There are some phrases there, and there is one which possibly may be relied upon by my learned friend by and by, as supporting his position in the matter.  Article XV of the Land Regulations says -
  Mr. DENNY - What publication are you reading from?
  Mr. DRUMMOND - The same as before.  This Article is the same in both editions of the Land Regulations.  I am reading from the XV Article of the Land Regulations and the first part of it is as follows:-
Be it further ordered that it shall be competent for the Foreign Consuls, collectively or singly, when it may appear to them needful for the electors, provided not less than twenty-five agree in writing to do so, to call a public meeting at any time, giving ten days notice of the same, setting forth the business upon which it is convened, for the consideration of any matter or thing connected with the Municipality.
  And all resolutions passed by a majority at any such public meeting including proxies for absent owners of Land, on all such matters as aforesaid, shall be valid and binding upon the whole of the said electors, if not less than one-third of the electors are present or represented.
And a little further on the same Article says:-
  In all cases in which electors in public meeting assembled, as herein provided, decide upon any matter of a Municipal nature, not already enumerated, and affecting the general interest, such decision shall first be repotted by the Chairman to the consuls for their concurrence and approval, and unless such approval be given, such resolution shall not be valid and binding.
  The only observation I have to make at this moment at any rate with regard to that Article is that the decision which is there referred to must, I submit, be a decision within the powers and in accordance with the terms of the Land Regulations themselves and the Bye-laws as a whole - it must be a decision within those powers.  If it be said that the meaning of that is that any decision can be arrived at, that the Ratepayers in public meeting assembled may choose, consider and pass what they like, and that there is no limit to their powers in that respect, then I submit that the whole body of the Land Regulations and Bye-law become useless and invalid.
  My view is that one single sentence such as that, giving the Ratepayers absolute power in all things, giving them power to meet, discuss, and to pass what they like, would be quite sufficient to set aside the whole body of law which now governs these Settlements - just one short simple sentence that they can meet and pass any resolution they liked would be quite sufficient to do away with the present government of the Settlements. There would be no necessity for Regulations defining the course of procedure and for limiting their powers, and no necessity for an Bye-laws created with such high sanction as these are; they could make their own rules and Bye-laws for every day working, but these Bye-laws have the same high sanction and the same authority as the very Land Regulations themselves.
  It cannot be argued, I say, with any semblance of reason that the Ratepayers have such powers as I have sketched under Article XV. If it can, then I say that all this body of Land Regulations and Bye-laws, all this body of law which has been carefully revised and sanctioned by the high authority of the Ministers at Peking, is completely useless; all the Land Regulations and Bye-laws are completely useless if this XVth Article can be held to have such extravagant meaning, the ratepayers could simply meet and pass a few law for themselves.  
  The only other reference I have to make so far at least as the Land Regulations are concerned is to Bye-law XXXIV, and that has been already referred to.  The Bye-law itself is what I have read, and it has been admitted by my learned friend to be the Bye-law in force. I wish to draw the attention of the Court to the fact that the language of the Bye-law now in force differs in one most essential point from the language of the Bye-law that was previously in force.  The language of the Bye-law which was previously in force I will now read:
No Foreigner or Chinese shall vend spirits or liquors, or intoxicating drugs of any kind or description, or open a house of Public Entertainment, Shop, Store, Music Hall, Theatre, Circus, Billiard, Bowling or Dancing Saloon, within such limits, or ply, let, or use for hire, any boat, horse or public vehicle, without a License first obtained from the Council and in the case of foreigners,  countersigned by the Consul of the nationality to which the applicant belongs, and without giving good and sufficient security for the maintenance of order in such establishment; and in respect of such Licenses, the council may charge on such scale as may be authorized at the meetings held under the authority of these regulations.
Annually-
For every Wine and Spirit Shop or Store
For every Beer Shop
For a House of Entertainment, Hotel or Tavern
For every night open -
Music Hall
Theatre
Circus
Billiard, Bowling, or Dancing Saloon.
  And any person opening or keeping or holding any such House of Public Entertainment, Shop, Store, Music Hall, Theatre, Circus, Billiard, Bowling, or Dancing Saloons, without having first obtained the License of the council, shall over and above the cost of the License and Summons, be liable to a penalty or fine not exceeding fifty dollars ($50.)
  I ask the careful attention of the Court to the language of this Bye-law.  I wish to draw special attention to the fact that under the old Bye-laws it would appear to have been legal to have considered this matter at a special meeting just as much as it would at the annual meeting, the words used in the Bye-law being "at the meetings held under the authority of these regulations."  Undoubtedly that sanctions and includes not only the annual general meetings, but also special meetings under Article XV., and the Bye-laws authorize the Council to levy such fees as may from time to time be authorised at any of these meetings; but the new Bye-law, which the Council now works under has been drawn up in a different form, with the view, apparently, as the language itself shows, to carefully limit the power of charging these particular fees to the annual general meeting of ratepayers only. That to my mind is most important in the consideration of this case by your Honours.
 Now I take it that the language of the Bye-law itself shows that it was never intended to have the meeting to refer to any other meetings than the annual general meeting.  If it is to be said that meaning was never intended to be given to the Bye-law, but that the words "the annual general meeting of Ratepayers" were merely used inadvertently, or were intended to give all the meetings of the Ratepayers, then I say that is a meeting that cannot be raised or supported in the face of the fact that the Council had the power before this Bye-law which was passed in 1872, but as soon as it was passed the power was limited.  The Council themselves got a fresh Bye-law passed by the Ratepayers, and it was duly approved by the Consuls and Ministers, and under this New Bye-law they have reduced their power from all meetings, the annual meeting and special meeting - to one meeting alone, the annual general meeting.
  That is a very significant fact as far as this particular case is concerned, and I think it goes a long way to cover the ground that the defendants actually reply upon, namely that the plaintiffs have no power to fix fees as they propose to do at any special meeting under Article xv, but they must be bound entirely by the resolutions passed at the annual general meetings alone.  As to the law which refers to the subject of injunctions of course in reading some passage from some works in the subject I will of course to emphasize that I do not merely as to where to lay down the principles which I think the Court it convenient, wise and right to adopt more or less as a guide, and I wish it to be understood that I do not submit any one of them as binding upon this Court.  I think the Court, at least it is my opinion that the Court has the fullest power to examine the principles of law of any country, and to choose and reject any one of them it thinks fit; at the same time the Court has power to adopt and enforce any principle of law from any country where it considers that the principle is just in itself and applicable to this particular case. Therefore in citing from text books and authorities I do so to show what appear to be useful and wise principles but not as binding on this Court in any way whatever.
  In the work known as "Joyce on Injunctions," which is now one of the chief authorities in English Courts on the subject, there are some passages in the chapter on Corporations aggregate referring to the cases showing that persons or corporations are strictly limited by the Courts to the powers which are conferred to them by the Acts of Parliament, or whatever other power they may be under; they are limited and strictly tied down to the limits of the powers given them.  On page 737, Vol. 1, is the passage,
"persons interfering with the property of individuals by virtue of an Act of Parliament are strictly tied down to the limits of the powers given by the Act, and they are bound to show clearly and distinctly that they are empowered by the Act to do what they propose to do."
If that applied here, the Council must show that they are empowered to do what they propose to do by the powers they act under.  Again on the next page, page 738, there was a case of a public body exceeding its powers, being restrained.  Sir Samuel Romilly says,
"whether this was established or not, it ought (if not consented to by them) to be restrained by injunction, being the act of a public body exceeding its powers."
Then in Kerr on Injunctions, page 505, there is this passage:
"Public functionaries or bodies, incorporated by statute for a public purpose or the promotion of a public benefit may not exceed the jurisdiction which has been entrusted to them by the legislature has pointed out, the Court will not interfere to see whether any regulation or alteration which they make is good or bad; but if, under pretence of an authority which the law does give them to a certain extent, they go beyond the line of their authority, and assume to themselves a power which the law does not give them, the Court no longer considers them as acting under the authority of their commission, but treats them as persons acting without legal authority."
On the following page of the same work there are some paragraphs showing that Corporations exceeding their powers can be, and are, restrained by injunction.  I will not read them, but simply content myself with directing the attention of the Court to them.
  The next work to which I will refer is Storey on Equity Jurisprudence, a work which is looked upon as one of the very highest possible authorities, not only in the English Courts, but in the American Courts also, being the work of an American judge and author.  Mr. Justice Storey in his chapter on injunctions, vol. 2, page 63, section 861 says,
A writ of injunction may be described as a judicial process, whereby a party is required to do a particular thing or to refrain from doing a particular thing, according to the exigency of the writ.  The most common form of injunctions is that which operates as a restraint upon the party in the exercise if his real or supposed rights; and I sometimes called the remedial writ of injunction,"
On the same page there is also the following.
It has been remarked by Mr. Eden that wherever a plaintiff appears entitled to equitable relief, if it consists in restraining the commission or the continuance of some act of the defendant, a Court of Equity administers that relief by injunction. In many cases it enforces it by means of the process of a writ of injunction, properly so called.
But he proceeds to remark: -
But as the known forms of that remedy are by no means adapted to every cause in which the Court has jurisdiction to interpose, the prohibition has in numerous cases been issued and conveyed in the shape merely of an injunction."
In the following paragraph it says that,
"the object of this process, which is most extensively used in equity proceedings, is generally preventive and protective, rather than restorative;  while in the next paragraph is the sentence that "the granting or refusal of injunctions is, however, a matter resting in the sound discretion of the Court, but injunctions are now more liberally granted than in former times."
  Section 926 is as follows:
"On the other hand, where the injury is irreparable, as where loss of health, loss of trade, destruction of the means of subsistence or permanent ruin to property, may or will ensue from the wrongful act or erection; in every such case Courts of Equity will interfere by injunction, in furtherance of justice and the violated rights of the party."
And in the next paragraph, page 121,
"an injunction will be granted against a corporation, to prevent an abuse of the power granted to them to the injury of other persons."
The same section shows that injunctions are granted against the erection of a new ferry, injurious to an old established ferry; and in favour of a turnpike corporation to secure the enjoyment of their privileges, by preventing the establishment of short by-roads to destroy their tolls. At page 126, section 927,
It is not the duty of the applicant for an injunction, except in cases of physical impossibility, to inform the Court, or for the Court to be informed, how the defendants will be able to comply with the injunction.  If the applicant makes a case it is the duty of the Court to grant the injunction, and it will be for the defendants to apply for a suspension or relaxation of the order where that becomes necessary.
Further on in section 95, page 163, Mr. Justice Storey says,
"The question that has been made, how far a Court of Equity has jurisdiction to interfere in cases of public functionaries, who are exercising special public trusts or functions.  As to this, the established doctrine now is, that so long as these functionaries strictly confine themselves within the exercise of those duties which are confided to them by the law, this Court will not interfere The Court will not interfere to see whether any alteration or regulation which they may direct is good or bad; but, if they are departing from the power which the law has vested in them, if they are assuming to themselves a power over property which the law does not give them, this Court no longer considers them as acting under authority of their commission, but treats them, whether they be a corporation or individuals merely as persons dealing with property without legal authority."
At page 169, in section 959,
"It has been already suggested, that the granting or refusing of injunctions is a matter resting in the sound discretion of a Court of Equity; and, consequently, no injunction will be granted whenever it will operate oppressively or inequitably, or contrary to the real justice of the case; or where it is not the fit and appropriate mode of redress under all the circumstances of the case; or where it will or may work an immediate mischief, or fatal injury."
I have only one more reference to Storey. At page 171, section 959b, he says:-
"It may be remarked, in conclusion upon the subject of special injunctions, that Courts of Equity constantly decline to lay down any rule which shall limit their power and discretion as to the particular cases in which such injunctions shall be granted or withheld. And there is wisdom in this course, for it is impossible to foresee all the exigencies of society which may require their aid and assistance to protect rights, or redress wrong. The jurisdiction of these courts, this operating by way of special injunction, is manifestly indispensable for the purposes of social justice in a great variety of cases, and therefore should be fostered and upheld by a steady confidence."
  The last authority to which I shall refer on the subject is on another point, namely, the construction of language.  In Brown's Legal Maxims, page 535, there is a passage on the interpretation of deeds and written instruments which gives a very terse and clear statement of the leading and fundamental rules for the interpretation of particular documents. In the case given the document was a will, but the agreement equally applied to the interpretation of any other document and is of importance in the consideration of what construction should be put on language whether it be an Act of Parliament, an Act of Congress, a will, contract, or anything else. In the case cited Baron Parke observes,
"that difficulties have arisen from confounding the testator's intention with his meaning.  Intention may mean what the testator intended to have done, whereas the only question in the construction of wills is on the meaning of the words;"
And in another case Baron Rolfe says,
"We are to ascertain by construing the will non quod voluit sed quod dixit, or that we are to ascertain quod voluit by interpreting quod dixit."
It is hard to imagine a more terse and complete statement of the principles which are now adopted by Courts in England and America, in considering documents or written papers of any kind. It is not that the Courts are to assume what the meaning is, or what parties may have intended to do; it is what the language itself plainly says.  Then on page 552 of the same author there is a reference to what is known as the "golden rule." Chief Justice Jervis there remarks that,
"if the precise words used are plain and unambiguous in our judgment, we are bound to construe them in their ordinary sense, even though it do lead, in our view of the case, to an absurdity or manifest injustice.  Words may be modified or varied, where their importance is doubtful or obscure.  But we assume the functions of legislators where we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice in an adherence the their literal meaning."
  On the following page there is this note taken from another case.
"It is a good rule, in the construction of Acts of Parliament, that the Judges are not to make the law what they think reasonable, but to expound it according to the common sense of its words."
These little passages are useful as showing in a very terse and simple shape the principles upon which the Courts in England and America act when they have to consider and decide a case which depends upon the language of a written document of any shape or kind.  Here undoubtedly I think the case must come down to the consideration of the actual meaning of the language of Bye-law XXXV.  If that is held to be so, and I think there can be no doubt that it must be so held, then the words "Annual General Meeting" mean the annual general meeting and nothing else, and does not include any special meetings whatever, and I think the contention that my learned friend has raised in his answer, and upon which the defendants' case must rest, must entirely fail.  The answer in its second paragraph states in very wide terms that any alteration in the rates of fees for licenses may be duly sanctioned by the Ratepayers.  To my mind the word duly begs the whole question. Duly sanctioned can only mean a sanction duly given, and is itself sanctioned by the authority upon which the Ratepayers themselves exist.  If it be duly sanctioned then it is in order, but if it be not duly sanctioned then the whole question is still at issue.
  The arguments which my learned friend has placed before the Court, after admitting all the facts, are extremely wide of the mark, and simply amount to saying that the Ratepayers have power to pass and act upon any resolution they please - that they can make any alteration they please at any time.  That is, I think, simply sweeping away the whole body of regulations and Bye-laws entirely, completely ignoring them, and rendering them useless. If that is a sufficient and valid answer to the defendants, then in my opinion it is useless to have any Land Regulations at all, and this Court itself is rendered a nullity or even worse.
  The petition prays for relief under three headings, and after raising the points upon which the plaintiff relies, proceeds to ask that the Council may be enjoined to refrain from any acts altering or tending to alter during the current year, the licensed fees authorized by the last annual general meeting of Ratepayers.  I therefore submit to the Court that upon the facts "state and admitted," upon the Land Regulations and Bye-laws also admitted, and upon a review of the general principles that Courts of Equity adopt in considering such cases, that the plaintiffs are clearly entitled to the order they ask for, to prevent the Council making any alteration in the Bye-laws, - in the license fees, - till the next annual general meeting of Ratepayers.  If my learned friend in his remarks has anything to say in regard to the difficulty of carrying out an injunction of this kind, or of the possible consequences that may arise from it, that the defendant may choose to avoid or disobey it, I shall not presume to say one word now, but according to the ordinary practice I suppose I shall have an opportunity of replying to any arguments of the kind he may bring forward.  It may be necessary for me to make some observations on the point then, but as I think it more than probable that he will not refer to these points I do not propose to refer to them myself at this stage of the case.
  Mr. ROBINSON - I wish to point out to the Court in the first instance, as bearing upon the subsequent remarks I shall have to maker, that although this action is nominally brought against the Municipal Council, it is practically an action against the ratepayers.  The Council can only carry pout the instructions which they  receive from the ratepayers, and if they do that, then according to the very authorities which my friend has cited, Joyce and Storey, this Court will not enquire whether they have done right or wrong; it is sufficient for this Court to know that the Municipal Council has carried out the instructions given to them by the ratepayers.  Whether the ratepayers have power to give these instructions is a matter which I will deal with afterwards.  The plaintiffs ask this Court to restrain the Municipal Council from doing that which they have been told to do by the ratepayers, and ground that upon their construction of Bye-law XXXIV.  They further allege that neither the Council nor the ratepayers can make any alteration whatever in what they do at an annual general meeting, and that they can only charge license fees authorized by an annual general meeting.   This is the contention on the part of the plaintiffs.
  The defendants have admitted all their facts, and take issue broadly, not upon any question of law or anything else, but upon the Land Regulations by which they exist, and they further say that all they have done is in strict accordance with these Land Regulations.
  For the purpose of dealing with the contention of my learned friend, I propose to speak under three heads; first, the status of the plaintiffs to come to this Court at all; second, the power of the ratepayers assembled in public meeting; and third, the minor point whether jinricksha licenses can be put up to tender.  I propose to deal with the case under those three heads.
  Now, with regard to the status of the plaintiffs.  They exist only by permission of the Municipal Council.  They come to the Council and apply for licenses, and if licenses are granted to them, then they have an existence; if they are not granted to them, they have no existence.  They have no right to say to the Council "Give me a license."  They simply exist by the permission of the Municipal Council.  The licenses endure only for a month, and at the end of any month they can be withdrawn.  The number of licenses to be granted is not fixed by the annual general meeting; it is left to the discretion of the Council, and the Council can at any time, just when it pleases them to do so, instead of issuing 1,500, reduce the number of licenses to 500, and so the plaintiffs may find themselves deprived of their licenses. The Court will therefore see that as plaintiffs they have really no right in themselves to a license at all; and if they have no right to a license, the possibility of being deprived of that license constitutes no injury.
  I do not propose to trouble your Honours with many quotations upon the question of when a Court should or should not interfere by way of injunction in equity.  The cases cited by my learned friend, I venture to think, have little or no application to this particular case.  He quoted instances of public functionaries travelling out of the powers given to them; but he has not shown in this case that the Council has in the slightest degree travelled out of the powers given to it by the Land Regulations; therefore, the quotations which m y friend has cited, I think, are inapplicable to this particular case.
  A principle which is certainly applicable is laid down in Mr. Storey's Principles of Equity, published in 1880.  On the subject of "injunctions to prevent a tort," at page 565, it is laid down as a general rule "that however a right exists, or is created, a violation of that right will be prohibited, subject to the limitation that the right is cognizable at law." Here, as I have endeavoured to point out, there is no right cognizable at law; the plaintiffs have no right to anything.  They have a right, when once a license is granted to them, to be charged a particular fee; but they have no right in the license at law; they are permitted to hold the license at the mere caprice of the Council, - not that I mean to say the Council are likely to be capricious, - but they have no right in the license and no right cognizable at law.  
"It follows therefore," says Mr. Snell, "that the restraining process of equity will apply to the whole range of rights and duties which are recognized as enforceable at law."
But the plaintiffs here cannot enforce anything; it is the will and pleasure of the Council as to whether they receive a license or not.  
"It should also be remembered," says Mr. Snell, "that though the jurisdiction in equity is in principle so extensive, it is restrained and modified by considerations of expediency and convenience, and that equity will not interfere when a breach may be completely and adequately paid for by damagers at law."
This is particularly applicable to this case.  If the plaintiffs have any right at all and have suffered damage, they can sue the council for damages, and if they can prove to the satisfaction of the Court that they have suffered damage, they can be compensated in that way, and there would be no necessity for the Court interfering by way of injunction.   Now that is a perfectly accurate statement of the rules which govern Courts in England when called upon to interfere by way of injunction.  I would also point out to the Court that in their petition the plaintiffs do not venture to allege that they have suffered any injury whatever.
  Now, it is something new for anybody to come to Court and ask for an injunction without stating that they have suffered some injury.  This is not a mere technical objection, as it would be difficult for the plaintiffs to state their injury.  They cannot state it; they have omitted it; and this is to my mind a strong reason why this Court should not interfere to prevent people from suffering an injury which they cannot themselves define.  Another thing which probably will strike the Court is that if jinricksha licenses are, according to the construction of my learned friend, to be granted to the end of the year, what are we to do with such places as theatres, saloons, circuses, and everything else?  In every one of these cases, if you will turn to the Budget, you will see that the duration of the license is fixed, and there is only one class of annual licenses, namely, houses of public entertainment.   If my learned friend's contention is correct, jinricksha licenses are not only for a month, but they are entitled to retain them for the current year.  If he be correct what becomes of the wording of the Bye-law?  
  On page 3 of the report of the meeting of the ratepayers of 24th February, 1882, the annual general meeting of the present year, I find the table of licenses then passed.  It says, "music hall, theatre, circus - for every night open." Is it to be seriously argued that these people are entitled to say "I must have these licenses all the year through, and you cannot make any changes?" I think not.
  And then coming down to jinrickshas, they are licensed at "$1 per month, payable in advance."  These are the licenses authorized to be charged.  I say that if the contention of my learned friend were to prevail, it would be open to any of the people, who hold licenses to contend that they had vested rights in their licenses during the current year, a thing which I imagine the Court will agree would throw the finances of the Settlement very much into confusion.  Upon these grounds, therefore -and these very simple grounds too, it seems to me, - I submit to you, gentlemen, that the plaintiffs themselves have no  locus standi before the court; they have not shown you that they have suffered any injury; they have not defined any injury; and therefore they cannot come to ask you for an injunction  to prevent their suffering an injury which they cannot themselves define, or which they have not chosen to define; and upon that ground alone, of the status of the plaintiffs, the Court, I think,  should refuse the prayer of their petition.
  I come now to the second branch of my argument, namely, the powers of the ratepayers assembled in public meeting; and I contend before you with the utmost confidence that the Municipal Council, far from acting with any degree of irregularity, have perfectly and strictly conformed to the Land Regulations. You may have observed that while my learned friend has been eloquent in his references to law books which have nothing to do with the Land Regulations, he has left the consideration of the Land Regulations tolerably in the dark - he has left them in the shade.  He has cited Articles IX, XV, and XXVII, but he has omitted a most material one to which I shall direct your attention.  The Article my learned friend failed to cite was Article XXV, and I shall point out to you that it has a very important bearing on this particular question. But, to come back to my contention that the Council have strictly conformed to the Land Regulations. Now, the Council are simply the executive of the ratepayers, and by Article IX the ratepayers, and the ratepayers alone are entrusted with the power to devise ways and means.  In the middle of page 16, Article IX of the edition of 1872 of the Land Regulations, you will find these words,
"the Treaty Consuls shall give notice of a public meeting to be held within twenty-one days of such notice to devise ways and means of raising the requisite funds for these purposes" (such as the construction of public works, etc.); "and it shall be competent to such meeting" (and this is the authority on which the Council acts), "duly assembled, or a majority thereof, including proxies for absent owners of land, to impose and levy rates and issue licenses for the purposes mentioned in the Bye-laws, and to declare an assessment in the form of a rate to be made on the said Land or buildings," etc.
  Then it goes on to provide for the proportion of the taxes, but this does not touch the present question.  This is the authority vested in the Ratepayers to impose license fees. When the Council are told to do that, they are a public body - a public body in the sense alluded to in the authorities quoted by my learned friend - carrying out as public functionaries, those things which they have been told to do by their superior authority.  Unless it can be argued that the ratepayers have no right to impose fees, if the Council faithfully carry out the instructions they receive from the Ratepayers, they confine themselves within the legitimate province of their authority.   It is quite true, says my learned friend, that the Ratepayers imposed this rate on the 24th February, and he maintains that on the 20th April, they cannot alter it.  That is his contention, and just think for a moment whether it can possibly be reasonable?
  Let us take these very fees.  Suppose it were proved to the satisfaction of the Council that the imposition of a dollar a month was more than these people could pay, that it practically tended to prevent the jinrickshas from plying - and the jinrickshas are admitted to be a public convenience, and are encouraged to a large extent - if you adopt his proposition, the [Council] would be debarred from yielding to the reasonable representations of these people to lower the fee, although they might be quite able to recognize its injustice. That contention I say is unreasonable, and I don't think the court will give expression to that view; and it you can alter the  fees in the sense of lowering them, it follows that the resolution passed is not final; and if it is not final, the argument that no alteration can be made falls to the ground. Another very strong confirmation of the justice of my view is to be found, I think, in Article XXV, to which my learned friend did not refer.  In Article XXV, you will find it is provided that "The Council shall administer the Municipal Funds for the public use and benefit, at their discretion, with due regard to the Budget passed, provided they do not exceed the sum voted at the Annual Meeting, or any Special Meeting called to vote expenses." Therefore, it is perfectly pain that these Regulations contemplated the possibility of the Budget passed at the annual general meeting being altered at a special meeting, and it shows that the authority of a special meeting, as exercised in this case is perfectly clear.  Now that being so, the  remarks I have made dispose pretty well of the contention of my learned friend as to the finality of the Budget passed at the annual general meeting, and it seems to me that Article XV is absolutely conclusive upon it.   The Court will be able to judge, when they consider that Article, how is it possible to dispute the authority of the ratepayers to do what they have done? The fact is, the Ratepayers have done this, but the Council; and that is a cardinal point running through the whole argument.  Article XV shows the power given to the Treaty Consuls or to any twenty-five of the rate-payers to call a meeting "for the consideration of any matter or thing connected with the Municipality."  Can it be said for a moment that the question of what fees are to be charged in licenses for jinrickshas, is not a question connected with the Municipality? Nobody will contend that; it is unreasonable.  And the Article goes on to say, that "all resolutions passed by a majority at any such public meeting, including proxies for absent owners of land, on all such matters as aforesaid, shall be valid and binding upon the whole of the electors, if not less than one-third of the electors are present or represented."  
  Now, I wish the Court to notice the distinction between the special meeting and the annual general meeting.  At the annual general meeting, a bare majority carries everything; but before you can do anything at a special meeting, the Regulation provides that you shall have a certain proportion of the electors represented, so that nothing can be sprung upon the general body of the electors.  It is obviously intended to give special meetings special powers by providing for a larger proportion of voters to take part in them.  Article XV goes on to say:
 "In all cases in which electors in public meeting assembled, as herein provided, decide upon any matter of a Municipal nature not already enumerated," and then it goes on to state that the approval of the Consuls is required.  This is a matter already enumerated; the issue of license is a thing expressly referred to in the Regulation IX, and this comes plainly within the letter of Article XV, and the ratepayers assembled in public meeting are authorized to deal with any matter already enumerated.  I may here remark that it comes a little inconsistently from my learned friend to object to this construction, considering that, at this very special meeting on the 20th April, he himself proposed to alter and increase the license fees on another class of carriages ---
  Mr. DRUMMOND - Really, I must object.  A speech made at a public meeting of ratepayers, at which I happened to be present as a ratepayer, has nothing, I submit to do with the consideration of the case now before the Court, which is a Court of law.  I am here as counsel representing certain interests, and what I may have said as a ratepayer at a public meeting cannot possibly have any bearing on it.  It is not a fact proved in evidence, it is not admitted in the pleadings, and on the whole I submit that it is wholly improper to be referred to here.
 Mr. ROBINSON - The Land Regulations have been proved on evidence.  I submit I am in perfect order to read from the published official report of what took place at the meeting.  I am not speaking from mere hearsay, but from the published report, officially issued, and I find my learned friend proposed a substantive resolution to double the license fees on carriages.
  Mr. DRUMMOND - Before my learned friend proceeds I must ask the Court to allow me to have a ruling upon that.
  Mr. DENNY - It is thought that in references of that kind, by Counsel in arguing the case will confine themselves strictly to the consideration of the subject; and that any reference in their argument which does not particularly bear upon the case will make no difference to us in its termination.
  Mr. ROBINSON - Certainly mot. It would be very curious in arguing a case in this Court, which is the only Court at which we can appear, if we were to be debarred from referring to the published minutes of the proceedings by which the Council is altogether governed. It is perfectly clear that my learned friend, individually, as a ratepayer, did adopt precisely the same construction as I put on the Article, as he proposed to double the license fees on another class of carriages at the very same meeting.  Now I think I have said enough to satisfy the Court that the ratepayers have, under Article IX and XV of the Land Regulations, ample power and right to pass the resolution which they did pass at the meeting of the 20th April, and therefore, if that be so, the plaintiffs' petition must be dismissed.
  With regard to Bye-law XXXIV, upon which my friend has laid some stress, I would point out to the Court that Bye-law XXXIV, like all the other Bye-laws, is subordinate to the Regulations.  If you will turn to Article XI, you will see that the existing Bye-laws, and all the authority given by them to the Council, is vested in the Council for the time being.  It says, "and such Committee" that is the Council, "shall have power and authority from time to time to alter Bye-laws for the better enabling them to carry out the object of these Regulations, and to repeal, alter or amend any such Bye-laws, provided such other Bye-laws be not repugnant to the provisions of these Regulations." Now the Council has not repealed any Bye-law, but they have power to repeal them, and they could repeal Bye-law XXXIV tomorrow if they liked.
  Mr. Hughes - A Bye-law passed by the Council would not come into effect until approved by the Consuls.
  Mr. Robinson - You misunderstood me. I did not say "passed," but "repeal."  The Council can repeal any Bye-laws, and it does not require the sanction of the Consuls.  Any new Bye-law they propose must be approved by the Consuls, and if they did make a new one, as they probably would, they would act, as they always acted in other things, in concurrence with the representatives of all nations of which the community is composed.
  That is not the point, however, that I wish to refer to.  I wish to point out that under these Regulations the Council cannot make Bye-laws repugnant to the Regulations, and if the contention of my learned friend were to prevail, practically speaking you would be over-riding Article XV, because that Article gives express power to the ratepayers assembled in public meeting to do certain things, and according to my friend's construction of Bye-law XXXIV, they could not do so  I submit, therefore, will all confidence to you, that it is not competent for this Court to take a construction of Bye-law XXXIV, which would make it repugnant to Article XV.  In short, Bye-law XXXIV is, I submit, for the guidance of the Council, not of the ratepayers.  The Council have to be guided by the bye-laws, and not the ratepayers, and of the ratepayers have done something which does not agree with that particular Bye-law, they are competent to do it, and the Council are not responsible for it. The Council, under Article IX, is simply endeavouring to carry out instructions which are received, properly and legitimately received, from the ratepayers, assembled in  public meeting under Article XV,
  That brings me to the consideration of the scope of the jurisdiction of this Court, and I need not say that I intend to speak with the utmost respect.  I wish to ask the Court to define to its own mind what it considers its powers to be, and whether it does not consider it would be straining its powers according to the wishes of the plaintiffs.  In the memorandum prefixed to the Land Regulations, there is this statement, on page 7:-
  "And in reference relative to a provision for enabling individuals to sue the Council, the undersigned sanction provisionally, and as an experiment, subject to future modification if found expedient, the third proposition brought under consideration of the Consuls in their meeting of 13th of July, 1868, by which a Court, to be styled the 'Court of Foreign Consuls,' shall be established at the beginning of each year by the whole body of Treaty Consuls, and instructions will be given accordingly."
That is the origin of the creation of this Court, and it is with the view, as will be seen, to enable individuals to sue the Council.  Practically speaking this is a suit against the ratepayers, and it seems to me that the Court will hesitate a good deal before it will take upon itself the responsibility of interfering with what is practically the government of the Municipal finances of the place.
  The Court consists of three members of the Consular body; and are these three members supposed to have power to dictate to the ratepayers what resolutions they are to pass with regard to license fees? I think not.  I think that the Court is asked in the petition to interfere in a matter beyond its province, and to travel out of its province, and I think it will cast a very heavy responsibility upon the Court of Consuls for the current year, if you adopt such a construction as the one brought forward by my learned friend.  
  This Court has only power to enquire if the Municipal Council confine themselves within the powers entrusted to them, - whether they confine themselves to those acts which they are instructed by authority to do.  Now if they only carried out the instructions of a legally constituted meeting of ratepayers; and if you satisfy yourselves that this is so, then I respectfully submit that the Court, in the languages of the authorities quoted by my learned friend will not enquire whether they have done wisely or not.  If they have not these powers what have they power to do, and I respectfully submit that if you hold to the contrary, you particularly take control of the Municipal finances out of their hands and put it into your own.
 Mr. DENNY - Provided the ratepayers do what they have a right to do within the legal scope of their authority.
  Mr. ROBINSON - The distinction between the Council and the Ratepayers must be borne in mind and my learned friend has carefully avoided using the word ratepayers.  He sticks to the word Council.
  Mr. DRUMMOND - In order that you may not be under any apprehension on the point, I wish to state distinctly that my contention is that the Council and the ratepayers are practically synonymous.  I used the word Council for convenience; but my argument was addressed to the ratepayers as much as to the Council.
  Mr. ROBINSON - If my learned friend says the Municipal Council and the ratepayers are synonymous, I can only refer the Court to the Land Regulations which show they are two distinct bodies, with two perfectly distinct authorities. Let me ask you to test the authority here asked to be exercised, in another way.  Would it be argued for a moment, that if the ratepayers assembled at the annual general meeting imposed a fee on jinrickshas, that the Court could prevent them?  I will answer the question argumentatively and I say most distinctly that it could not.  They are expressly authorized to devise ways and means, and if they chose to impose a fee of $5 a month, could the Court interfere? I say argumentatively it could not interfere.  The authority is confided to the ratepayers.  
  Then if this Court could not alter that, what authority is there for saying you can alter a decision come to at a special meeting, upon a subject strictly within the powers of the ratepayers? I will leave that for my learned friend to answer when he replies to the Court.  I think that exhausts all that I can usefully say.  The Council relied with great confidence on the Land Regulations.  It has endeavoured to keep itself strictly within these Regulations; and I submit to you that this petition, which certainly never emanated from the minds of the plaintiffs, but rather from the ingenious mind of my learned friend, has really no good foundation at al.  I look upon it as a vexatious proceeding more than anything else, and I hope this Court will see its way to accept the construction I have put upon the Land Regulations in the broadest possible manner; and I trust the Court will see its way to dismiss the petition with costs, including costs of counsel, in order to put a stop to suits like this, which I cannot call anything else than casuistical. It is built upon a forced and strained construction of the Land Regulations; and I think an example should be made of these plaintiffs so that the defendants may not be exposed to similar vexatious proceedings.
  Mr. DRUMMOND - There are a few observations which I think necessary to make in reply to Mr. Robinson's statements. I understand my learned friend's contention is that the position of the plaintiffs, being merely owners of jinrickshas and holders of licenses subject to the discretion of the Council to give or withhold the licenses, places them out of Court; and I understand that my learned friend's contention is that the position of the plaintiffs being merely owners of jinrickshas and not entitled to licenses, but that their licenses are subject entirely the discretion of the Council, who can withhold them if they like, that this practically puts them out of Court, - that not being able to compel the Council to give them licenses, they have no right to complain at all.
  Mr. ROBINSON - I did not say "complain." I say they had no right to obtain a license.
  Mr. DRUMMOND- By "complain" I meant a complaint at law.  What I wish to point put to this Court is that the plaintiffs do not ask the Court to order the defendants to give them licenses. If they did so there would be some point in my learned friend's observations; but they do nothing of the kind; they simply take their chance of fair treatment from the Council; and independent of that altogether they simply ask the Court in the prayer of their petition to order the defendants to keep within their powers, and limit themselves to the amount fixed at the annual general meeting of ratepayers.  If they do so the Court has finished its work so far as this case goes, the rest is a matter for the plaintiffs and other parties afterwards.  The prayer of the petition is that the defendants be kept within their powers, not to compel them to give licenses to the plaintiffs or anybody else.  The plaintiffs do not claim to have a right to the licenses for a year or anything of the kind, that is quite outside this case; they simply say that the council - and when I use the word Council, I am quite willing to say in the same breath ratepayers - they simply contend that neither the Council nor the ratepayers have power to alter the license fee fixed at the last annual general meeting of ratepayers, and when I have said that I have said all that the plaintiffs contend for and the contention of my learned friend of the plaintiffs' locus standi is outside the real contention of the case.
  My learned friend then referred to the fact that the plaintiffs have not alleged that they have suffered any injury.  That is so.  We do not allege that we have.  The authorities I have read show that the grounds upon which injunctions are asked, are preventive or protective, not remedial or restorative.  It is to prevent an injury being done, and the first condition of tender for licenses is that the applicant must name a fee he is willing to pay, and this is entirely a different method of procedure to that authorixxxed; probably it was not contemplated at the time it was passed.  That is a sufficient answer to the statement that the plaintiffs have not stated any injury or claimed damages.  We ask to have the course of action which the Municipal Council threatens prevented and stopped, and then no damage or injury will accrue to anybody.  If we had allowed it to go on for a time, we might have sued for damages, and claimed a very large sum of money; but we took the proper step of coming to Court as soon as the injury was threatened.  There has been no loss of time or damage up to the present time; it is threatened, and we ask for an order of the Court to protect us, and I say when injury is threatened we are entitled to ask for an order to prevent it being carried out - an order for the Council to keep within their powers.  My learned friend in his speech made a point of distinguishing between the Council and the Ratepayers.  I endeavoured to avoid the word ratepayer, and made a plain statement as against the Council, because I consider the words Council and ratepayers are practically synonymous when the ratepayers give the Council powers which they themselves do not possess.  I contend that neither the Council nor the ratepayers have powers outside the Land Regulations, and the Land Regulations prevent them doing the act that the ratepayers have directed the Council to do, and which the Council under their instructions were bound to carry out.
 Mr. Robinson has referred to Article XV which contains the words "any matter or thing connected with the Municipality," and I understand my learned friend to argue that this shows that at these meetings any matter whatever, which can be in any way considered as connected with the Municipality, can be considered, gone into, and decided, and no breach of the Land Regulations or Bye-laws be committed.  If that is the case I say that all the Land Regulations and Bye-laws are perfectly useless; if such a discretion is granted, the whole of them might be boiled down to one sentence." An annual general meeting shall be held at a certain time to devise ways and means for the current year, and twenty-fiver ratepayers may at any time call a special meeting, and at that special meeting anything may be done which the ratepayers may think right to do." If a brief sentence of that kind were decided upon, it would comprise, according to my learned friend's contention, the whole of the Land Regulations necessary, or that ever will be necessary.  It amounts to this, that everything is in the discretion of the ratepayers; but "any matter or thing" must be understood as authorized by the Land Regulations and Bye-laws as they exist, and not any matter or thing not so authorized.  
  Mr. Robinson has also referred to Article XI, and to my mind he has given quite an incorrect argument based upon it.  I understand him to say that new B ye-laws can only come in to operation if they have been passed by the ratepayers and approved by the Consuls and Ministers of the Foreign Power; but that the ratepayers, independent of the Consuls or Ministers, have the power to repeal any Bye-law.  That, I think, is a contention which - he has used the word ingenuity, and I can only suppose it is based on his  inner consciousness of some imaginary authority of the kind; it appears to be so utterly - well I don't like to use the word ridiculous, but it verges upon it.  If the court will look to the previous sentences of the Article it will be seen that the only way in which a Byer-law can be repealed is by passing another Bye-law:
  "And such Committee shall have power and authority from time to time to make other Bye-laws for the better enabling them to carry out the objects of these Regulations, and to repeal, alter or amend any such Bye-laws provided such Bye-laws be not repugnant to the provisions of these Regulations," etc., so that the method of repealing a Bye-law is by passing another Bye-law.  I submit that it is perfectly clear that the ratepayers in order to repeal a Byer-law cannot do so except by the same machinery and in the same form and by the same authority as is necessary to make a Bye-law; and if any such contention be held by the defendants and their Council, I think it very necessary that the Court, in its decision eventually give an opinion on that contention, or it may afterwards lead to a great deal of confusion. An attempt to repeal Bye-laws might prove to be in valid and cause a deal of trouble.
  Lastly, as to the position of this Court.  My friend referred to the position of the Court, and said in fact that the Court has no authority in such a case as this, and that if it were to attempt to make such an order it would be taking charge of the financial arrangements of the Settlement.  I think that is the style of argument to address to a common jury, but not to a Court composed such as this is.  Whether the Court would by its decree affect the financial arrangements of the Settlement is a matter the Court in its natural dignity will not consider for a moment.  The result of the decision is not a matter with which the Court will take into consideration.  The plaintiffs make their case, and if they succeed in doing so, the judgment of the Court will follow; the Court will make its decision in the terms it thinks fit, and the result of that will not affect the Court in any shape or form.  If the Council and the ratepayers do something they are not authorised to do, and the Court compels them to go back and keep within their limits, there is no necessary derangement or taking charge of the Settlement; no considerations of that kind are necessary at all.  The Council and ratepayers will simply be told to keep within their powers, and within those limits they have successfully governed these Settlements for a great number of years, and there is no necessity for saying that if they are compelled to keep within those limits, they will fail to govern the Settlements properly, or that any difficulty or confusion will occur in any shape or form.  
  My learned friend has asked the Court to grant costs.  I confess, as I said on the first day, it is not a very gracious or creditable position for the Council to take, or to say anything in regard to the question of costs.  I still adhere to that position.  The Court directed the sum of $100 to be paid into Court.  I think that where there is a reasonable case brought, such as that a Court sits and hears it, it would have been very much better, in the first case at any rate, to have left that question entirely alone and to have left it entirely in the hands of the Court.  My friend used a strong expression on the first occasion, and termed the case as a vexatious application; now he has characterised it as a casuistical one - founded upon the ingenuity of the plaintiffs' legal adviser.  Now that is using pretty strong language.  I am not aware whether in the course of my friend's practice people are in the habit of dropping into his office and dictating their petitions; I suppose they supply him with the facts and he draws up the petition for them.  The same was done in this case, and I utterly fail to see any reason for calling it casuistical or by any other opprobious epithets. If my friend had not made an application for costs, I should certainly not have done so.  Had my friend not tried so strenuously to get the costs out of my clients, it was a matter I should have left entirely in the hands of the Court, it is a matter I should have left alone and made no application one way or the other.  Seeing the course my friend has taken I now most distinctly and most strongly ask the Court to give costs to the plaintiffs, if it grants a decree according to their application. The position of the plaintiffs and defendants are very different.  The plaintiffs come to Court to get the Council to go back within the powers which they are authorized to exercise, and if they succeed and obtain such order from this Court they are most certainly in all fairness entitled to the expenses to which they - a poor class of men - are put in order to obtain this order.  These costs are referred to in the Rule of the Court, and these rules also contemplate the granting of Counsel's fee included in the costs. As my learned friend has set the example so strongly, I must certainly ask the Court, if judgment is given in favour of the plaintiffs, the costs of Counsel should follow as a matter of course.
  Mr. ROBINSON - I wish to make one remark in the way of personal application.  My learned friend has alluded to Rule XI, and invited the Court to give an opinion on the question as to whether the Council has power to repeal Bye-laws.  I shall be very thankful if the Court will do that; but I wish to remind the Court that I said it had nothing to do with this case, and the point I quoted was to show that a Bye-law could not be repugnant to the Regulations.
  Mr. DENNY - It is agreed that the Court will take the matters submitted into consideration, and when we have come to a conclusion we will notify parties, and judgment will be rendered.
  Mr. ROBINSON - May I ask whether any progress is being made towards setting and printing the Rules of the Court?
  Mr. DENNY - We have them under consideration.
  Mr. ROBINSON - The defendants would be glad to have a copy.
  Mr. HUGHES - They will not affect this case in any way.
  Mr. ROBINSON - No, not at all.
  Mr. DENNY - We are considering the matter.
  The Court then adjourned.
  22nd June.
  The Court re-assembled at 11 a.m., and the President read the following
Judgment.
  The PRESIDENT said - I will now announce the conclusion we have reached in the case which has been under consideration. - The defendants by their answer admit the statements made in all the paragraphs of the plaintiffs' petition to be correct, except those contained in the 7th or last, which they deny by averring that they have the right under the Land Regulations and the instructions of the ratepayers in public meeting assembled to do the acts complained of; they also aver that the plaintiffs have not sufficient standing before this Court to justify their application for the relief prayed for.  Upon the petition and answer, after argument of able Counsel - Messrs. Drummond and Latham for petitioners, and A. Robinson for the defendants - the case was submitted for judgment. As the conclusion reached does not sustain the defendants' view of the case, we will refer to the argument of their able Counsel in the order presented by him.  The learned Counsel says "that the Municipal Council can only carry out the instructions given them by the ratepayers, and that when they have done this, the Court will not inquire whether they have done right or wrong." The Council are the agents of the ratepayers selected by them to act ad such from year to year, whose duty it is to administer the affairs of the Municipality in accord with the Regulations and instructions of the ratepayers given them from time to time acting within the scope of their legitimate authority; we say legitimate authority, for  certainly the Council will not claim the right to do an illegal act simply because they have been instructed to do so by the ratepayers.
  He further contends that the authority creating the Court of Consuls gives it no power to issue injunctions against the Council.  We cannot however accept this interpretation of Article XXVII of the Land Regulations which provides that, "the Executive Committee or Council may sue and be sued in the name of their Secretary or in their corporate capacity or character, and such Committee, Council, or Secretary shall have all the rights and privileges which private complainants have to recover and enforce judgments obtained by them, and shall also incur the obligations which private defendants have in proceedings at law or suits in equity commenced against them, provided they shall not be individually liable."
From the foregoing language it seems clear that this Court has equity jurisdiction as well as jurisdiction at law; for, how can the Council recover or enforce judgments obtained by them or incur the obligations which private defendants have in suits in equity commenced against them, if the court which was created to settle differences arising between the Council and private individuals has no equity jurisdiction? Having the authority, it is the duty of the court to interfere whenever it appears from the petition of a ratepayer or resident that an act is about to be done which is against equity and good conscience, or that in its nature is litigious or vexatious; for in such cases the Court will not leave the petitioner to feel the mischief or the inconvenience of the wrong and to look in vain for redress, but will interpose its authority to restrain the unjustifiable proceeding.  It is admitted that the plaintiffs are residents within the Foreign Settlement of Shanghai and are owners of jinrickshas which are licensed by the Council to ply for hire in the said Settlement.  This admission clearly gives them a sufficient standing in Court to object to the execution of a policy which not only threatens to interfere with the business which they have hitherto carried on, but threatens the peace of the community, because it is in contravention of the regulations which govern  it.  The ratepayers and Council have no other or greater power than those given them by the Land  Regulations and Bye-laws which have been approved by the Treaty Consuls, and Diplomatic Representatives, and which when once approved of remain in force until repealed by the same authority, and when the ratepayers devise the ways and means for the Council to carry on the Municipal Government, which includes among other things the fixing of license fees, they should conform to the regulations which have been adopted for their guidance.
  Bye-law XXXIV, which is in perfect accord with the Land Regulations, provides that in order that certain callings and businesses, including the running of public vehicles, may be carried on within the Settlement licenses shall first be obtained from the Council; that "in respect of such licenses the Council may impose such conditions and exact such security as the nature of the particular case may require, and charge such fees in respect thereof as may be authorized at the Annual General Meeting of ratepayers."  In pursuance of this Bye-law, the fee for jinricksha licenses was fixed at $1 at the annual general meeting of ratepayers held on the 24th day of February last, and having been son fixed the ratepayers cannot interfere with it during the year without amending Bye-law XXXIV, which would require the approval of the Ministers as well as the Consuls.  But the learned Counsel for the defendant holds that under the Bye-law in question the ratepayers have the right at any time in public meeting to lower or raise the fee in respect of licenses.  If this right were admitted, there still remains undisposed of the fact that it is the duty of the ratepayers under Bye-law XXXIV to fix the fee to be charged, and in this important respect they not only failed to fix it themselves at the special meeting. But they undertake to invite the jinricksha people, the interested parties, to fix it.  Having so failed to fix a fee to be charged, unless the Council rely upon the instructions given them at the Annual General Meeting, they have no authority at all in the premises.
  An attempt to raise revenue for Municipal purposes by putting them up to public tender is to say the least novel in the history of Municipal legislation.  While the city government of Shanghai, in its organic law, differs in some important respects from similar governments in other countries, yet there are certain fundamental principles adhered to in the administration of Municipal affairs which should be adhered to the in the administration of this Settlement, in so far as they are applicable; and not the least of these is the one which demands that all means be adopted for raising the needed revenue should have for their basis that which will secure the greatest uniformity and equality.  Fair dealing, as well as public policy demand the enforcement of this principle, and the scheme to raise the revenue by tender being utterly at variance with the rule which secures equality and uniformity as well as being in conflict with the regulations, should not be enforced.  
  We are of opinion that the regulations make it the duty of the ratepayers at the Annual General Meeting to fix license fees, and that as the fee for jinrickshas was so fixed the ratepayers have no authority to change it until the next annual meeting.  Judgment is rendered in favour of the plaintiffs accordingly, with their costs of Court in this behalf expended.
...
  Based upon the foregoing judgment it is directed that the interim order issued out of this court on the 26th day of May last retraining the defendants from taking further proceedings in the matter of jinricksha licenses until after the hearing of this suit be, and the same is hereby, made permanent.
(SIGNED) O. N. DENNY, U.S. Consul-General; P. J. HUGHES, H.B.M.'s Consul; R. VON KRENCKI, Acting Consul-General for Germany.
  Mr. ROBINSON asked if the injunction referred only to the next Annual General Meeting of the ratepayers.
  The PRESIDENT said it was so intended.
  Mr. ROBINSON said he desired to explain that he did not deny the jurisdiction of the Court in matters of equity, but only their power to issue an injunction.
  After some consultation the President said the judgment would be amended in accordance with Mr. Robinson's explanation.  It was amended accordingly and stands as above.
  The Court then adjourned sine die.
 

North China Herald, 23 June 1882

FEW residents were surprised by the judgment pronounced yesterday by Mr. Denny, as President of the Court of Foreign Consuls, in the case of the jinricksha license case. When the interim injunction was granted by the Court, on the 26th May last, restraining the Municipal Council from doing anything which would alter the license-fee on jinrickshas, the consuls gave a sufficient indication of their leanings in the case to prepare the public for their ultimate decision.  The case was made by the Court to rest solely on the terms of Bye-law 34 of the Municipal regulations; and there we think the Consuls committed a capital error of judgment. The terms of that bye-law so far as it applied to the case before the Court, are that the council in respect of such licenses may impose such conditions and exact such security as the nature of the particular case may require, and charge such fees in respect thereof as may be authorixxxed at the Annual General Meeting of Ratepayers.

  The Consuls held that the Ratepayers having fixe the jinricksha license at $1 at the annual general meeting on the 24th of February last could not interfere with it during the year without amending Bye-law No. 34, and this in the opinion of the Court they could not do without the approval of Ministers as well as the consuls; and, it might have been added, the Chinese authorities.  Now though we admit that it is highly desirable that the Council should make their Budget once and for all, and receive for it the sanction of the ratepayers at the annual meeting, and though we consider that only very serious circumstances should be allowed to abrogate such a salutary arrangement, we think the Consuls committed a serious error in straining the letter of Bye-law No. 34 so as to shut out the Council from modifying their financial arrangements in any way, by resolutions sanctioned at special meetings of the land-renters.   Many things might occur in the course of a year to render it absolutely necessary for the Municipal Council to have larger funds for the public use than those assigned to them at the annual meeting.  An accident, or something unforeseen, might compel the Council to raise considerable sums of money promptly, either by increasing the taxation, or by borrowing.  Other communities have been obliged to do so.

  But according to the ruling of the Court of Consuls the Municipality of Shanghai would be obliged to wait until in the course of nature, and by permission of a bye-law, the time for the annual meeting of ratepayers had come round. Such a ruling may be in the terms of the Bye-law, but it is absurd.  We do not believe it was ever intended to restrict the power of the ratepayers in this way in the management of their own affairs.  

  A Court of equity and conscience should, we think have considered the broad effect of their decision.  Article IX of the Regulations seems to us to give the ratepayers the requisite power to deal with the finances of the municipality at legally convened meetings of themselves, as well as with any other part of the affairs of the public.  It is however passed over in silence in the judgment of the Consuls, that body having chosen to be entirely guided by Bye-law No.34 It is however passed over in silence in the judgment of the Consuls, that body having chosen to be entirely guided by Bye-law No.34, on the ground that it was in perfect accord with the land regulations, though, we venture to say, few will be inclined to support this opinion after perusing the latter document and the Bye-law.  It appears to us, too, that the Consuls should have given more consideration than it did to the question of the right of the jinricksha proprietors to appear before it.  Even admitting that all residents, foreigners and Chinese, have a right of appeal to the Court of Consuls, it is surely incumbent on them to show in a case like the present that the claim they made had an actual foundation. Unless they could prove that the proposed action of the Municipal Council was unjust to them that an actual or implied bargain for one year was about to be broken, and that thereby their interests would suffer, we do not see that they had any claim to be heard in this Court at all.

  All Courts at home are very careful not to permit any unfair interference with vested rights; as when roads and railways have been constructed on the understanding that certain privileges would be maintained for the benefit of their proprietors.  But no Court that we know of in any part of the world has ever held that the proprietors of public vehicles or those engaged in a similar business had a right to be protected by the law against the losses which might be incurred in the course of their business.

 Running jinrickshas in Shanghai is as much a matter of speculation as running a theatre or a line of omnibuses in London, and like everything else by which money is to be made has certain business rules connected with it. Among those which affect the jinricksha trade here, are the uncertainty as to their owners receiving licenses from the Council, and, until yesterday the amount which the public would charge for these.  There was no bargain of any kind between the Council and the jinricksha proprietors that $1, or any sum, should be the monthly license fee, and the decision of the Court has simply relieved the former from the diminution of their profits for a time arising from a business contingency.

  Plain men will not see the equity of a decision given in favour of people who having received no injury beyond such as all traders are subject to in the course of business, had therefore no legal standing in the Court.  

  It is a matter of great regret that the Court based its decision on a narrow interpretation of Bye-law No., 34.  In our opinion they have, by so doing, struck a blow at the Municipal Government of which the residents here had so much reason to be proud. There are aspects of the jinricksha question in Shanghai to which we may refer when we learn the course which the Municipal Council decide upon taking; for we take it for granted, that something will be done. The interference of official and other Chinese in the affairs of the settlement has been too frequent during this and last year, and in this latest instance, although their claim has been sanctioned by the Court of Consuls, the public will be dissatisfied if the present jinricksha owners are allowed to reap the benefit of yesterday's decision. Meanwhile the Council would do well to make a searching enquiry to ascertain who are the real owners of the jinrickshas.

Note

On the Court of Consuls, see Court of Consuls Rules, 1882.

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