£15,000

Nelson Evening Mail, Volume LVI, 12 April 1922, Page 4

£15,000

CAWTHRON TRUSTEES’ CASE FOR OPINION AS SUBMITTED 'it) Sill W. II EDWARDS Appended is the case for opinion as set out by the Cawthron Trustees for submission to Sir Bassett Edwards for his opinion, together with letter handing case for opinion and the opinion itself to the Hospital Hoard at the request of that body:— We beg to acknowledge receipt of yours of the 29th ult., conveying the resolution passed by your Board and we are instructed to say in reply mat the Trustees are pleased to give the Board an opportunity to peruse the case for opinion as submitted to Sir Bassett Edwards and his opinion thereon. We therefore beg to hand you herewith case and opinion for which wo shall be glad if you will give to I error a receipt making those documents returnable on demand. We wish to draw particular aitentiou to the following points First, it will be noted that the date ou which ease was submitted to counsel i as tlth September and the state n mi of facts must be regarded as at that date; Second, The supplementary statement of facts and the opinion loth iefor to your refusal to supply us with a copy* of the Board’s reply to the let ter from the Hon. G. W. llrssoil to the Board, dated 20th duly, 19. 7. Tills was correct as at 23rd December, 1921, but on the following day, when our offices were practically closed for the Christmas vacation you e.-.iiei at our offices and submitted to us the Board’s reply to the Minister, of which we then took a copy. As the Beard s reply was to the effect .indicated by the newspaper report, to which we had already referred, we did not consider it necessary to send forward a copy-'of-this letter to counsel. The Trustees• desire us to say that whilst they consider that the em ffised case for opinion substantially >ets forth the positioned the Board in iillation to the sum of £15,000 handed to it by Mr Cawthron, yet they desire to ascertain the position exactly, and with that object in view we have been instructed to forward to Sir Bassett Edwards the statement made by the Chairman of your Board at its meeting on' Wednesday last with the request that he should state whether his opinion is altered in any way by the Board’s own statement of the case.

As SiiK Bassett Edwards leaves for England on the ,10th inst, it is'by no means certain that we shall get a re-ply,-.but'if we do you will be advised thereof in due course.

We must draw your attention, to tlie fact that the documents herewith are tho originals. We assume that your Chairma n will desire to peruse those before tho meeting on Wednesday next and there would be insufficient time to type copies in view of the voluminous nature of these documents. Wo shall therefore be grateful if you will give these documents safe custody whilst in your possession and return them to us as soon as possible after tlie next meeting of your Board. (Sgd.) ROUT & MILNER. CASE FOR OPINION

(1) On 6th January, 1914, Mr Cawthrou wrote to the Nelson Hospital and Charitable Aid Board as follows: For some time past I. have been of tho opinion that a new general hospital is urgently needed, towards that end I have learned that any donation that I may make will bo entitled to a Government subsidy of twenty-four shillings in the pound, so as your Board to please have plans prepared for a modern substautial building of greatest capacity and with an up-to-date operating* theatre, the whole fb cost with any necessary new furnUuij the sum of £33,000 (thirty-three thousand pounds), of which I can find the basis sum of £15,000 Ar.om thousand pounds) early next month to enable you to claim the £U-,9>. I U v subsidy. The building 1 should liku to sec would be a two-storied bulling *>i ferfo-coherete or reinforced concrete, faced withered brick, etc., similar to the Nelson Institute, wil h long frontages to the norto ana west with broad balcony ve wail the whole length and width. I should also like the pin is lc be shown to all medical,poo 1 ’ H would look at them. ' ) (Sgd.) , THOMAS CAWTFIRON.

' (2) On 16th January, 1914, the Board wrote to Mr Cawthron, a,; follows ; j I have Jthe honour 'to ackmevk-dge I- tbe receipt of yohr letter of liie'irh 1 oust., in which you offer ■ tbe huge I sum of £15,000 for building a .v w public hospital for this district, i The Chairmali idulyKs a .ced letter before the. Board at is meeting held yesterday, when the members expressed' their high approdiV- | tion at the publib spirit and genl erosity displayed by you in making i this magnificent gift, and I was" (li- ' rected to forward you the following i copy of a resolution passed by tbe Board, viz,— ' ■<’ * “That this Board accept with grateful thanks the splendid donation of £15,000 offered by Mr Thos. Cawthron, which, with the Govern- , mont subsidy of 24/- in thb £, yv J 1 provide the handsome sum of £33,000 with which to erect a new and i up-to-date hospital for Nelson. In accepting this generous and liberal gift the Board desires to assure Mr Cawthron that as far as possible the stipulations and suggestions contained in his letter will he strictly adhered to, also that plans of tho proposed structure will be obtained at the earliest date ’and submitted for his approval.” (SgcL) S. BLOMFIELD. (3) On 17tli February,’ 1914, Mr Cawthron wrote to the Board as follows: v Following up.niy letter to you of the 6th January last I now have pleasure in handing you herewith my cheque for the £15.000 (fifteen, thousand pounds) and I shall be glad to know that you have received the promised subsidy from the Government, failing which’ from any cause 1 expect the within named £15,000 to be refunded to me. I also trust and expect that you will have all the main buildings of the new hospital two stories in height with thick Avails’ of concrete substantially reinforced Avith steel bands and faced Avith hard'red brick, etc., on front of north-east, southeast and north-west of same similar to the Institute building. ■ (Sgd.) THOMAS qAWTHBON. (4) During the year or two years following, tile Board obtained plans for the new* hospital, which Avere pr<s pared by their own architect and ex-

amined by, the officers of the Public Health Department. ’They also had monthly discussions in a vailt endeavour to arrive at same decision upon tho plans and an to the commencement of tlie work. (5) When the gift was made by Mr 'Cawthron tho Government refused to pay over forthwith the subsidy of £IB,OOO, but as the result of nego- ’ tiations during 1914 and 1915 the Mm- > Ester of Public Health ou the 28th * February, 1910, made an offer to the 1 Board which he reaffirmed on 26th I July, 1917, in a loiter, copy whereof: 1 is as follows: ; 1 have to acknowledge receipt of your letter of tho 24th inst., con- ‘ firming the information given to mo I at tho recent deputation from your > Board which interviewed mo’regard- . ' log the proposed erection of a new ■ public hospital in Nelson. In accordance with my promise to, i the deputation I now re-affirm the. offer which I made to the Nelson Hospital Board in my letter dated. * 28th February, 1916, and which 1,, quote homuuier,— - 1. That,the Board will be ex-, pected to proceed with the ereo- , tion of the hospital and pay for , the cost out of its own funds i long as those funds last, , i 2. That, after the Board’s ? funds have been exhausted, the Government will be prepared to' make payment to the amount of' £IB,OOO. * .V 3. In view of the largo stibsidy; i that is being granted to Hie Board » upon the Cawtbron gift, any fur-, 1 ther expenditure for the hbs.pital outside the sum provided by Mr . Cawthron’s gift plus the Govern-; i fnent Subsidy, should, in my opinion, be borne entirely by the rate- ; payers of the district. * i shall be glad to have the Board’s, i acceptance of these terms in due ! course, so that no further delay may ' take ''place in a commencement be- “ ing made with the work, (Sgd,) G. W. BUSSELL. (6) Mr Cawthron died on,Bth Octo her, 1915. , i (7) On 3rd September, 1917, the; s Trustees wrote to the. Board as fol- . lows:— > ' . ' [ At the last meeting of the Trnsi tees the following resolution .was [ passed,— 'A;/; i “That the Trustees are: of the , opinion that if the work of .building > a new hospital is not put in hand ; with as little delay as possible, that... ’ they will feel it their duty to apply to the Hospital Board for a refund' . of the £15,000,, together with all accumulated interest on the raid amount.” ! ‘ , , (Sgd.) , AY. ROUT <fc SONS, Ltd. (8) On 18th September, 1917, the , Board replied a'S 'fbllows I—--1 beg ■to acknowledge receipt ,oi: your- letter of the 3rd’ inst. convey- | mg copy of resolution, re Mr Cawtliron’s gift of £15,000 for new lios--1 pital, passed by the Trustees of tho ' Cawthrcjn Estate. ; (Sgd.) s. blomfield; >"■ (9) Since 1916 or 1917’the Boardhto ■ done nothing in connection with tho erection of tho new hospital, except ■ to have’'occasional discussion regard- ’ ling, plans, increased costs oF building, etc. (10) The Board is at present doing nothing in connection with the proposed erection of tho hospital.' (11) Practically the whole of Mr Cawthron’s estate, is, held by the Trustees upon & chli’ltable trust, .which is being carried info effect in the form of the Cawthron Institute, (12) The . Board has had this sum of £15,000 ou fixed deposit with the bank at either 3J per cent, or 4 per cent, since; some time in 1914.-' ■ *■ In addition, tft.,tho above provable facts we may add the following particulars- which: may be of lesser evidentiary value, but will somewhat illumine the position:— \- (13) Alter Mr CaWthron’s gift was made on 17th February, 1814, a fairly early commencement was made with the plans for the new hospital, but whilst they were iii course of partial completion and afterwards there .wt.s : divided opinion in the Board as to whether the commencement of the work should be'delayed'.until the Gov-., erhment actually paid over , the sdl)-. , sidy of £IB,OOO or whether the Bqaid could safely trust - the ' lib pay the subsidy of 24/-"in; the £ :if the Board started the work without the subsidy being in hand. ,We believe that these negotiations; oh. the financial aspect proceeded with the • Government from early-in 1914 unf.il July, 1917. In!August, 1914, war broke'out and from that date the cost of erecting the hoispital steadily .advanced and this xuade.afurther reason why the Board postponed the erection of the hospital. s; •During the years 19M-16 there was strongly in - evidence a spirit of obstruction in. a section' of the Hospital Board, who were inclined to question the wisdom of taking advantage of Mr Cawthron’s gift. Their attitude was that a ,tiew up-to-date hospital would mean higher rates on account .of the increased cost of maintenance. .We think;the deliy in commencing the hospital was partly due to this and partly to thq expressed convictions of other members of the Board that it was bad-policy to commence such ah extensive expea- ' diture, without having., the money i,ctiidliy in hand. V Between 1914 and 1919 the: question of tho hospital and its early constriction was made a feature in ebch Hospital Board election. Some light is thrown upon the position in 1917 by a letter written to the local newspaper by Mr T. A. H. Field, ex-M.P., copy of which is attached'hereto. We do not suggest that the last low paragraphs contain very relevant facts but the situation has aeveloped in rather a complex manner, and'an. a.matter of local politics, and we feel that it is prudent, at any' rate, to pli.ee the position before you as fully as possible, as ascertain amount of atmosphere has developed apart from the bare facts which we have set out 'earlier herein. Our instructions are to obtain an opinion on the following points- , 1. Whether the Trustees have, a right of action against the Board to obtain'ii refund of the sum of £lO,000. apd /. bv the accrued interest thereon. 2. Whether their right, of action (if any) is barred by the Statute, of Limitations. 3. In the event of your opinion being—(a) That tho clam’ of she Trustees must be a successful,'or (b) that the i claim of, the Trustees: might probably bo successful.. Do. vou advise that it is their duty in either base-to'take action against tho Board? (Sgd.) , ROUT & MILNER., Copy of letter in Evening Mail 21st April,* 1917. ' ’ i THE.. NEW. HOSPITAL Sir,—-I again wish to emphasise .the critical position of the new hospital.

The Hpn. Mr'Rhodes, who was then Minister of Internal Affairs, in the Reform Ministry, promised a subsidy to Nelson of £18,001) on Mr Cawthron’s gift of £15,000 for a new Hospital. It was absolutely unexampled that a gift of £IB,OOO should he made to any single hospital, even in peace time, but some of the .members of the Board appeared to have wanted to make trouble out of the fact that the ,£IB,OOO was not paid over to the 'Board in one lump sura. 1 believe tins would have been illegal, and it would have been unbusinesslike, as tho. Board could have placed the £lB,000 on deposit and nob built the new Hospital for years. In fact, the Board stated to the Minister they would be satisfied with the interest on tho £IB,OOO. When the National Ministry came into office, and the Hoit. Gb W. Russell became Minister of Internal Affairs, the same tactics were pursued by the Board. Mr Russell wrote to the Board as follows: “In view of-the splendid gift of the late Mr Cawthvon, the then Govern* ment determined on a subsidy 7 of 24/in the £, and this decision will be adhered to, notwithstanding the fact that since the Government agreed to give this huge subsidy to the people of Nelson, which it was not compelled to give by Jaw, the Empire lias become involved in tho greatest war in history, and millions of pounds are being spent by New Zealand in defence of tho Empire. I cannot help expressing ray surprise that your Board, instead of appreciating tho assistance which has been given to it tu this matter, is adopting a tone which is greatly to ho regretted, and appears to think that'in some way the Government is seeking to evade its honourable obligations. I can assure you that if any other Board ih New Zealand had a similar gilt being subsided at the maximum rale which the Minister of Finance is allowed to ' grant. In the interview which I had with your Board I stated that the ptoper course appeared to be lor tho Board to proceed to expend its own money, namely, the gift of Mr Cawthron, on the hospital. When this money is expended, the Government will bo prepared to shoulder its responsibility to the amount of £IB,OOO, aid the ratepayers of the Nelson Hospital district will bo in the extremely fortunate position of having large buildings erected to the amount of £33,000, of which £1.8,000 will have been provided by the people of New Zealand without one penny of taxes being/ levied upon the hospital district for the purchase, My final answer to the Board is as follows: ~ “l. That the Board will be expected to proceed with the erection of the hospital, and pay for the cost out of its own funds so long as those funds laS “2. That, ’after the Board’s funds have been exhausted the Government will be prepared to make payment to the amount of £IB,OOO. ' “3. In view of the'large subsidy that is being granted to. the Board ttpOn’ the Cawthron gift, any further expenditure for the hospital outside the sum provided by Mr Cawthron s gift plus the Government subsidy should, in my opinion, be borne entirely'by the ratepayers of the hospital district.” , A , The-Board'refused the Minister s offer and the following discussion took place,on May 20, 1W0:“The Chairman (Mr Baigent) said that ho could not see that the letters could be dealt ‘With, as the Board had not yet received the plans,, Bio Board’s request for alternate prograss payments had apparently upset the Minister, but he did not think tho Board should stay its hand. '“Mr'Moult said the Board had refused the Minister’s offer and the Minister now intended to hold up the matter. The Board was to blame. The Government had guaranteed—- “ The Chairman: What was the guarantee? . , ~ , “Mr Hoult: That when the Board spent £15,000 the Government would pay £IB,OOO. What greater guarantee'would’the Board have? the Board bad made a mistake, and it would be ft.loss to Nelson and the people generally, “The Chairman: No; no. “Mr'Lock-said that there was no question whatever that the Board had been scurrjly treated by the Government. Mr Cawthron gave the £Io,OUU o s n‘ the uridefstanding that tile subsidy ’forthcoming when the kmbunt was paid in, ’and this the Government agreed to. Then other suggestions were made, and now the Government wanted’ the Board to spend their gift, then they would be prepared to pay their contribution. Notwithstanding war conditions, the Government was treating Nelson differently from other places, where they had paid large subsidies He thought it would be wrong to incur a debt without the money to pay for it.”.. _ * 1 challenge Mr Lock to pnjve this statement. I have, Sir,' before me. now the Minister’s statement as sent •me officially by the Board’ a secretary, and I can find no such agreement, but I-do- find that the Board-stated that failing the £IB,OOO down, they would Ibe satisfied with the interest. ;i -linay sayySir, that I havc done my best to smooth over matters. 1 have been afraid that .owing to the action of the Board the Deportment might recommend that the arrangements be cancelled, and then the question of this subsidy would be referred bach to the Right H«n. Minister of finance for recommendation, and we know what that would mean in war time when oidy most urgent matters would receive favourable consideration. l have, together with theotherxrmmbers for the Nelson hospital district, Mr Hudson, and the Hon. Mr Maganmty, assured the 1 Minister that we, as re- . presenting the ; district, were opposed to the Hospital Board’s action, and that 'we did hot won d bo endorsed-hy the public of . Nelson. On hiekt Wednesday, ’ Sir, the public will have an ojffiortuhity ot saying by their, vdte& whether they endorse the"action of the city members of the Board Messrs Baigent and Lock--of not. (Sgd.) T. A. H. HELD. SUPPLEMENTARY TO CASE FOR OPINION

. Note. —In pursuance of a request front Sh* Bassett Edwards for further information on certain points, w« wrote to him on 23rd December, 1021, giving further information set out beS7l)\What reply was sent by the Board 'to Mr CawthroiC s letter ot l<th February, 1014? ’ ' ~ . Answer: The secretary of the Boat (I flays that no reply was sent. . (2) Whether the above mentioned condition (i.e., as to the refund of £15,000 mentioned m Mr Cawthron s

letter of 17 th February, 1914) was ever waived by Mr Cawthron in ids lifetime ?

Answer: It may bo accepted ns certain that there was not any specific waiver, nor lias the Board ever sug» gested that there was an implied waiver by Mr Cawthron. The Hoard has frequently been taxed with its failure to carry out tho bequest of Mr Cawthron, but its altitude has always boon that it has been doing its best under the existing circumstances. Wo do uot know if Mr Cawthron ever spoke to the Board about the continued delay that was in evidence from lehniary, 1914, until Ills death in October, 1915, but it is common knowledge_ that he was bitterly disappointed with, the slow progress of a scheme that was dear to his'"heart and which he hoped to; see take material shape in his lifetime. Ho was certainly not satisfied that the best progress was being made by the Board, but as the scheme was apparently progressing, .though slowly, he no doubt left unable to charge t lie Board with broach of faith. (3) Whether such condition lias ever been waived by the Trustees of Ins will since his death?

Answer: No. . (4) Whether the Trustees Of advised that they would bo justified in doing so) would be willing to waive the above condition? Answer: For the present, it may be taken as certain that the Trustees would nut be willing to uaiie the condition, . (5) Whether the Trustees desire to be advised as to the propriety oi waiving the condition? Answer: The Trustees do desire to bo so advised and we accordingly enclose herewith copy ol Mr Cawthron s will. ■ (0) What reply, :d any, was sent by the Hoard to Mr Hnssell s lettei of 20 lh July, 191.7? , . Answer: The secretary of the Bo.un lias refused to give ns a copy of the reply, but we have turned up the newspaper files reporting the Boalu meeting of Ist August, 191/, iiom which we infer that the Board wrote accepting the Minister’s terms. Ibis inference is supported by the news-; pai>er report of a special meeting ot the Board on Bth August, 191/, called for the purpose of discussing the erection of the new hospital. The discussion at the meeting shows the varied opinions of members of the Boaicl a that time on the various matters we have previously referred to—the uncertainty of the total cost of a new hospital, the then high cost of -erection, the certainty of extra rates being levied for upkeep, the possibility of the Trustees making an effort to recover the money, etc., etc. the discussion centred mainly around a resolution that tenders should bo called for immediately—this proposal was defeated, the proposer and seconder alone supporting it. The proposer, in his reply, said “The Board had now got the Bdvernment .subsidy on a proper footing.” (7) Has the Board ever been in a position to comply with the condition made by Mr Cawthron’s letter of IHU February, 1914? . .» Answer; We cannot give a specif answer to this question. The information we have previously supplied, together with the copies of letters at the end hereof, may make it possible to extract an answer, in the anirinav tivfi, though the Board’s answer would bq in the negative. It is most pi obable, however, that if the Board hat been diligent, it would have been ma position to commence the building btfor the outbreak of war in August, 1914 and we gather it would hare then’ received the subsidy in u lunip sum as contemplated by Mr Can flu on and, we think, the other interested I parties at that time. i ■ (8V Under what authority do the Government undertake to grant the subsidy Ks promised by the Holt. Mi Rhodes and repeated subject to conditions, by the Hon. G. V,. BussellAnswer: This question is paitlj answered by the letters Aet out lmItow and the agreement to giant uie subsidy is apparently in pursuance ot .Section 28 of “The Hospital and Charitable Institutions ’ Act, IJU9 as amended, by the Act of 1913 (See. 6). ' (91 What answer, it‘any, wasent by the Board to the Trustees letter of 3rd September, 1917? Answer : The Board have no answer but merely acknowledged receipt, of U 7lO?Has the Board accumulated -on Mr Cawthron’s £15,000 and added i to the principal by compound into - eS lf not, has the Board disposed of it ? What is the name of the Bank .n which the deposit is made? . Answer: Shortly after receipt . £ls 000 from Mr Cawthron the Board iodiixb it with , the National Bank at Nelson on fixed deposit, tpeh amount of interest as it fell due was deposited but whether separately or as an Silta to th o original amount.n»ne sum we cannot be certain. Appa entlv the only payments made iiom sncli interest wore fees for plans prepared by the Board’s nrc uteef> avd nrobably the expenses of the architect ffl tho Hospital Surgeon when tiny visited Australia to inspect np-to- late hospitals with a-view to perfecting S ”nie P followiiig letters may give some iiiforniatibn regarding the origin ot the subsidy

Minister’s Office, P.W. Dept. W. W. Snodgrass, Esq.

Dear Sir, — f T hoc to ’acknowledge your lettoi oi the 22nd hist., and note with .great satisfaction the -munificent benefaction that Mr T. Cawthrou prowses to confer on the Nelson hospital district towa ~fls the erection of a new hospital. There is no doubt whatever that a now hospital is required, to replace ‘he ■old building, which to, *ae g»d vice in the past, and Mr Caw tluon s gift is all the more opportune. ‘ therefore have much pleasure in RtaC inn that the donation lie gives to» wards the erection of a hospital suit* <ibio for Nelson and district will be entitled to the Government subsidy of 24/- in the £. ■ .. , o As Mr Cawthron’s generosity has not'been officially declared, 1 refrain for the present from. writing to thank him for his gciujrmis gnt(Sgd.) B. HEAION ItHODCb.

Nelson, 4th Dee., 1013. Hon, R. Heaton Rhodes, Mr W. W. Snodgrass lias handed to me your undated letter (posted -oth SeDtembor 1913) to him, in which you were so good as to say that the donation j give towards the erection of a !,o" L»l>ital for Nolsoti ami durtnet will la entitled to the Govcnimciit Sidy of 24/- in tlw£. lor tvhicli allow mo to sincerely thank you. Now that the P&lio Estimates mo before the House of Representatives, it has occurred to me that perhaps vou might desire to place the sum upon the Estimates, so I beg to advise that I shall be able to and intend io'nlace fifteen thousand pounds f £ls 000) at the disposal of the proper authorities, which I suppose will bo the Hospital and Charitable Aid I Board of Nelson at the' end of next month, which together with the- subsidy of 24/- in the £, will make a total of thirty-three thousand pounds (£33,-

000), 11 sum that I. am advised will -ho fully required for a modern substantial building of sufficient capacity and with an up-to-date operating theatre and necessary new furniture lor the whole. (%1.) THOMAS CAWTUROX. .Minister’s Ofliee, Wellington, 6th Dee. Tims. Ciiwlhron, Esq., Dear Sir,I beg to acknowledge your letter of the 4th December, and to express my sincere thanks for your very generous gift to the .Nelson Hospital Board for tho purpose of erecting a new hospital. Your gift is indeed the most munificent one that has ever been made by one person to an institution in tins country, and J. have no doubt that the public of Nelson and'the Dominion generally will acclaim your munificence. In a previous letter 1 staled that your gift of £15,000 is entitled to Government subsidy at the rate of 24/- in the £. There is, however, no need to provide a special item on the /Estimates for this subsidy. Every year certain sums are voted to be paid out of consolidated fund for the erection of hospitals and maintenance, and, as 1 have, said before, all subsidies including the 24 j- subsidy are paid irom the amount of the, vote. Again thanking you foiyyour extreme generosity. *v(Sgd.) JR,. HEATON RHODES. SIR W. B. EDWARDS’ OPINION NOT ALTERED BY HOSPITAL BOARD CiIAIH.M A N’S BTATE.M ENT As intimated to the Hospital. Board, the report of the Chairman of the Board was forwarded by the Oawthnm Trustees to Sir Bassett Edwards in order to ascertain whether his opinion is altered-in any way hy the Board’s own statement of the ease. A further opinion has been received Irom Sir Bassett Edwards together with a covering letter winch, we are inlormed, .states inter alia as follows: “1 have dealt with the matter fully, because in niv opinion a close examination til these statements greatly strengthens the cause of the Trustees.” The concluding sentence ol the learned counsel’s further opinion is, “I see no reason whatever to alter or qualify tho opinion 1 gave to the Trustees on 11 th March last.”

At a meeting of tho Oawthnm Trustees held on 21st -March tho solicitor of the Estate informed the Trustees that put shortly, the legal opinion of Sir Bassett Edwards makes it plain that the Cawthron Trust is entitled to a refund of the £15,000, together with interest thereon, “and it is, in mV opinion, the duty of the Trustees, .if the Board.resists their claim, to take, such action as will result in a judicial determination’ upon it.”