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Colonial Cases

Municipal Council for the Foreign Community v. McMurray, 1898

[land law - local government]


 

Municipal Council for the Foreign Community v. McMurray

Supreme Court for China and Japan
Hannen CJ, 14 December 1898
Source: North China Herald, 19 December, 1898


 

H.B.M.'S SUPREME COURT.

Shanghai, 14th December.

Before Sir Nicholas J. Hannen, Chief Justice.

THE MUNICIPAL COUNCIL FOR THE FOREIGN COMMUNITY v. McMURRAY.

   Judgment was given in this case recently reported, Mr. C. Dowdall representing the plaintiffs and Mr. Francis Ellis the defendant.

   His Lordship said - In this case the Municipal Council for the Foreign Community of Shanghai prays this Court to restrain the defendant and his servants from building on and otherwise obstructing a certain strip of land and for exercising any act of ownership thereon without the consent of a public meeting of the ratepayers - that the defendants be ordered to surrender the said strip of land and that he may be ordered to remove any obstructions now on the land, and for further relief.

   The plaintiffs base their claim on Regulation VI of the Shanghai Land Regulations made and sanctioned in the year 1869. The defendants dsy that the Regulation in question does not apply to the strip of land the subject of this action, - that if it does the Council have not done all that they are bound to do in order to put it in force, and that they are putting it in force unfairly against the defendant.

   The short history of the case is that a Mr. Bollard acquired the land of which the strip in question is a part from the native owner in October 1896 and registered it at the United States Consulate. In January or February1897 the defendant purchased the land from Mr. Bollard and upon his attempting to build on it, the Council demanded the free surrender of the strip of land now in question. The defendant refused to surrender the strip except upon compensation being given and he built a wall on the land now claimed. Thereupon the Council commenced the present proceedings.

   Regulation VI may be divided into two parts, the first dealing with the Settlement as it then existed, the second beginning at the words "on the admission by vote of public meeting" dealing with fresh land which it was thought might be brought within the limits of the Municipal authority. 

   We are only concerned with the first part, and this part may be divided into three portions. The first portion consisting of the nine lines ending with the words "communication in the settlement" is the main operative part of the Regulation. The second portion begins with the words "to this end" showing that the it is intended to laid down the means by which the first portion is to be carried out and the consequences which shall follow. The third portion is a proviso that no act of appropriation other than those in the first two portions mentioned shall be deemed lawful. 

   The words of the first portion which apply to the present case are: "Due provision shall be made for the extension of the lines of roads at p[resent laid down as means of communication in the Settlement." If these words stood by themselves I should have had no hesitation in deciding that the road now proposed to be made by the Municipal Council was proved in evidence not to be an extension of any line of road laid down in 1869. Regulation VI did not apply to it.  The words are very plain: they refer to the extension of the lines of road laid down in 1869. But in the second portion of this Regulation occur the words "determine what new lines of road are necessary." These words in their ordinary sense are inconsistent with the words in the first portion and I have therefore endeavoured to give such a meaning to the word "extension" as would justify in their ordinary sense the words "new lines of roads." But I have been unable to do so.

   The meaning of "extension" according to the Dictionaries is a "stretching; expansion, dilatation; continuation or prolongation; enlargement in breadth or continuation in length."  Plainly none of these words will help to justify the words "determine what new lines of road are necessary." In order to make the two portions consistent, I must read the first as though it ran "due provision shall be made for the extension" and increase of the number of "the lines of road at present laid down." By no rule for the construction of statutes or any other written documents can such an interpretation be justified and I am brought face to face with this; that the words in the first and operative part of the Regulation are not to be reconciled with those in the second. I must choose which words I will give effect to. 

   The second petition begins with the words "to this end" and is clearly therefore an explanation of the mean by which that which precedes it shall be carried out. It ought not therefore to enlarge the powers granted by the first portion.  I am therefore of opinion that the true construction of the first part of Regulation VI is that it relates to the extension of lines of roads laid down in 1869 and not to others. Upon this ground I must dismiss the plaintiffs' petition with costs. That determines the case.

   Anything I might say with regard to the other objections of the defendant would be of no effect but I think it right to say that no evidence whatever was given that the Council were putting this regulation into force unfairly against the defendant; and with regard to the other objection that the Council have not done all that they are bound to do to put this Regulation in force I would point out to the Council, in order to make themselves safe, that they had better, whether it is necessary or not, follow the procedure which the Council of 1870 adopted and act accordingly.

 

Source: North China Herald, 23 January, 1899

 

LAW REPORTS.

H.B.M.'S SUPREME COURT.

Shanghai, 18th January.

Before Sir Nicholas J. Hannen, Chief Justice.

IN RE MUNICIPAL COUNCIL FOR THE FOREIGN SETTLEMENT NORTH OF THE YANGKINGPANG v. McMURRAY.

   This was an application on behalf of the Municipal Council made by Mr. C. Dowdall for leave to appeal to Her Majesty's Privy Council from the decree of Sir Nicholas Hannen dated the 14th of December in the above matter.

   Mr. Francis Ellis represented Mr. McMurrary.

   Mr. Dowdall read the formal application and produced a plan of the Hongkew Settlement pointing out that a great many roads would have to be given up, if the decision of the Court stood, especially as nothing in the way of cross roads seemed to have been authorised. The actual value of the land did not amount to$2,500 but the effect of the decree  as His Lordship would see if he looked at the map produced was a matter of very great importance to Shanghai.

   His Lordship - Do you apply under Section 137?

   Mr. Dowdall - Yes, which leaves the matter in the discretion of the Court.

   Mr. Ellis - I must leave the matter entirely in your Lordship's hands. Under the Order in Council, Your Lordship has discretion to grant leave in certain terms.

   His Lordship - "May give leave of appeal on terms in the manner aforesaid."

   Mr. Ellis - Aforesaid I take it refers to section 135.

   His Lordship - It does not seem to say that I have power to give leave of appeal on terms which I may name.

   Mr. Ellis - No, I do not read it that way. I carefully read the section, and it seems to be very clear that your Lordship can give leave on those terms.

   His Lordship - Yes, on those terms. Mr. Dowdall, as I say I cannot impose any terms, but would your clients be willing to make an offer? When you come to the question of importance there is no doubt in the matter; but is it fair that one individual should pay for the determination of a question which is a matter of importance to the whole community? That is what we should be doing if Mr. McMurray is made the defendant in this appeal.

   Mr. Dowdall - My clients will do whatever your Lordship considers is justice to Mr. McMurray.

   His Lordship - Of course we should be only too anxious to get a decision on the question and the Court will of course be anxious and desirous of having the case dealt with,  but to my mind it is  a question as to whether it is fair on the defendant in the case to saddle him with the costs which he must incur if he proceeds to defend this case on appeal, and with the utmost confidence we have in the Privy Council, we know what a case presented from one side is. As I have said I have no power to make terms however.

   Mr. Ellis - I take it your Lordship does not consider the plaintiffs, that is the Municipal Council, are called upon to show any grounds why they should appeal against your Lordship's judgment beyond coming before you and asking leave to appeal. 

   His Lordship - And pointing out the importance of this question. Of course they cannot argue before me that my decision ought to be reversed. They don't put that forward as a ground. But they put forward as a ground for leave to appeal that the question is a very important one and that I think is quite reasonable. 

   I should like you, Mr. Dowdall, to make an offer on the part of your clients to obviate the difficulty which is in my mind. I have here apparently absolute discretion but I cannot make any terms. If I say yes, I must make it under the Order in Council and in the same way as if it were a matter of right. On the other hand it seems to me rather hard on Mr. McMurray that he should be kept out of his costs and obliged to incur further costs after I have decided the case.

   Mr. Dowdall - I can refer you to the case of the Montreal Gas Company v. Cadieux in the Court of Appeal, in which Lord Watson was quite content to go forward on these terms. He says (appeal cases 1898, page 718)-

"Her Majesty will be advised to give the petitioners leave to appeal upon the condition of their submitting to pay the respondent his costs of appeal in any event, if their Lordships should so direct on the determination of the appeal."

   His Lordship - That is evidently upon an application for leave to appeal to the Privy Council which of course you have a right to make under any circumstances.

   Mr. Dowdall - That is a case of a private gas company who chose to appeal for a small sum, but in this case where the council managing the Settlement are concerned it is a very much more serious matter.

   His Lordship - In that case it was a question that was stated to be of general importance to gas consumers.

   Mr. Dowdall - But here we have a matter which is of importance to the whole Settlement. This opinion does not to my mind seem to create a precedent that the plaintiffs in this case should provide the costs.

   Mr. Ellis - I don't read section 137 that your Lordship shall give leave of appeal; if you do it must be on these terms.

   His Lordship - That is why I read it. I cannot realise the frame of mind in which such a decision as that was made.

   Mr. Dowdall - Might not that be left to the Privy Council?

   Mr. Ellis - My client may have to pay costs from the beginning.

   His Lordship - You may have to pay the costs in the Court below if it is found I was wrong. But in regard to the further costs, as they have no right to appeal I am forcing your client Mr. McMurray to pay the costs of the appeal to begin with, and we know attorney and client costs are higher than taxed costs, so that he is bound under any circumstances to lose something when I am not bound to order this appeal. There again Mr. McMurray may not be in a position to pay it.

   Mr. Dowdall - Do you suggest what we should do in the matter?

   His Lordship - I think if you were to offer to pay the costs of the appeal in any event up to a thousand taels I would grant your appeal.

   Mr. Dowdall - I will agree to that.

   His Lordship - I am taking that as coming from you and I have no right to impose such terms.

   Mr. Dowdall - Very well, I will obtain a deposit receipt from the Hongkong bank today.

   Mr. Ellis having accepted the terms, His Lordship made the usual entry.

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