SUPREME COURT.

Otago Daily Times, Issue 11395, 12 April 1899, Page 8

SUPREME COURT.

I ;•'• - ; , ..» . DIVORCE ASD MATRIMONIAL CAUSES. ■ : ■• Tuesday, Mahcii 11. , , /(Before ; His Honor Mr justice Pennofather.) , SIM V. SIM. Motion for decree absolute for dissolution of marriage. This was a husband's petition by Walter Fairlie Sim (of.Crookston), farmer, against hia wife, Dorothy Sim. The case, was tried before liis Honor' Mr Justice Permefather on.August I ■3 last when a decree nisi was granted. i ' Mr Y\ T. A. Sim now moved that the rule be I made absolute. His Honor: There is.no other course possible, is there ?■''-. Mr Sim: Npne, your Hotter. '■ ■ His Honor: What rule does it come under? The affidavits are sufficient, I-suppose. Mr Sim: I have not the rule by me at the moment, but this is the practice that has been followed since the passing of the act of 1881. ■ H.is_ Honor: The affidavit is sufficient^ therefore, in accordance with the act, I am bound | to order the decree to be made absolute. ' I

' 'IN BANCO.

(Before his Honor Mr Justice Pennefather.) HOWEIX V. ROSS. Motion for writ of certiorari, Mr Sim for the appellant, James Howell (of Patearoa), farmer, and Mr Woodhouse for the respondent, Robert. Ross\(of Alexandra), miner. Ju'dginent herein, reserved on the 29th March, was delivered by his Honor:— "-When this matter came.before the Supreme aCourt on a previous occasion it was. by a motion, for a writ of prohibition cither restraining'Ross (the applicant)■ and Dalgltjish (the ■warden) from proceeding further-with the aplication, or restraining . the warden from issuing the license until a day had been fixed for j the final hearing.and such hearing, should have taken plate. The writ, was asked for on two grounds: (1) It was argued that the application was improper,'.'inasmuch' as it-inc'iida! more land and more river frontage than could "be included in one claim, and certain land which, being freehold, could not be included in nny mining claim. As to this, I held that I couH ■not assume that the warden would grant an improper application; ho might reject it ailogethsr, or "grant it as to a part only; and if the I objector considered that he acted wrongly m I granting it as to part (a question which would to some extent depend upon the interpretation of Reg.. 17), his remedy was by appeal, not prohibition. At any rate the impropriety or otherwise of the. application could not ba decided until the survey was made.. In giving this decision I considered trTa't I was bound by the judgment of Mr Justice Conoily in Falvev v. Tregoweth (16 JJ.Z.L.R., 311). (2) It was also urged that the proceedings were irregular, especially in the warden granting the application before tlie survey was made "subject to the survey." Tho warden had acted in accordance with what ho believed to be the true construction of'the Mining Act, 1891, section 129— m other words, he had granted the application or. terms, the1 terms being the making of a survey. Here, iigahl, I held that as.the matter was, properly within the jurisdiction of the warden ihc party objecting to his ruling had the^ [ right of appeal, but had no remedy by pro-; mbition., .Now, however, the case has- assumed [ a different aspect: The survey has been made < m accordance with the warden's order and Regs, 10-12. It is' one of the conditions of such survey that an opportunity shall bt given persons desiring to object to the issue of the license to enter their, objections. For the reasons I have already' given, it is .not necessary for. mo to 'decide whether an order qquld beinade filial'as'to other..objections, but subject j to objections which might" arise out of the sur- I 'ey; all-T have'to say is that if it was made : subject to the survey1 it mu§t be taken as being subject also to the notice ordered by the survey and the possible objections arising therefrom.. An objection did arise out of the a-4ivey^-narhely,'it was said that the. surveyor i did not. survey; all the. land, applied for.. -T.hu i objections :w-er6M6'd§«3 arid ah application was iiiaderte the Warden/to'hear the v m., Neyertho- ; less, qnSeptemb'|*-'27,lS9B,:.tlie,warden refused i ta'do-so,.;and siglied'tho license. The objector ! l'ow seeks to'lm'e the license aria all proceedings thereon and relating thereto removed into this,- court and the license quashed. If the warden had given a decision as to the v&liuily of these' objections, his decision would have been .subject to appeal (see the Act, section ! and Keg. 241). But to refuse to hearyobjoctibris :is to omit a- necessary preliminary to [jurisdiction, and therefore a reason why the order may. be removed by certiorari into this court and quashed (see Colonial Bank of Australasia v. Willan, L.R. 5, P.C. 417,443). The same case shows that Ihe objection may be brought before the Supreme Court by affidavit. I am' of opinion, therefore, that the writ must issue. Costs, £5'55." MAXWELL V. RANDALL, Case on appeal fronvthe decision of the magistrate.; ... Mr J. F. M. Fraser appeared for the appellant, Henry Maxwell, the. Inspector of Factories, and f* Wilkinson for the respondent, Amy Randall (spinster), of the Salvation Army's Rescue •Home, a t Rockyside. i This Was. an appeal against the decision of i the magistrate .in the court below upon proceedings taken by the Inspector of Factories j against the management of the Salvation Army I Rescue Home for ■ non'cemnliance with the terms of the Factories Act. The information' , in the court below alleged that the defendant, | being the occupier of a factory or workroom within the meaning of the Factories Act, at Rockyside, Caversham, did not as such occuJ pier forward to the Inspector of. Factories a j written application to have- such' factory or 1 work-room registered-under the act., ! ( The case was heard before .Sir C. : G. Graham, .S.M;,"- onI'Starch 2, and the information was dismissed. " ""■'.. .... The 'statement if the case^ made by' .Mr , Graham was as follows: —'.' It was proved upon the'hearing that the defendant is the person in charge of the Salvation Army Rescue Home, where females are .takenjn to be reformed and turned into respectable members of society. I hat there they are trained in. various kinds of household work, including laundry work, at which the}- all take their regular turns. That | this: wprk is. .entirely voluntary on their part. That they are not obliged to do it unless thev choose. That they receive no payment of any ! Kind nor anything'in the shxue of hire or reward. That they are housed, fed, and ■slothed.free of all cost to.themselves, and they '.vould continue to be so even if they did no \ work. That the laundry work, in addition to j the washing' of 'the clothing and other requisites of the institution itself", included wash- ■ ' iiig'that was^taken-in for'payment, which pay- ' '■ men* went in part to defray the expenses of ine institution, buj.no portion, of it was given w any of the inmates who did the labour of ty.o.snid washing. I decided that the institu- I tljn was nota factory or'workr'oom within the j meaning of section 2 of the Factories Act, 189-4, | inasmuch as.it was .not shown that the persons who were working there did so for hire or re-\ ward." .... Mr Fraser; in opening the case for the appellant, said that the department having been advised .that the decision was wrong, the magistrate was asiced to state a case, and he had done I no. ..The first point was the definition ■ of- the word "factory." It' meant "any office, build- • iiji, or place, in which two or more persons .ire 'engaged,- .directly or •indirectly, in working for hire or reward in any handicraft, or in preparing or manufacturing articles for trade ! or sale, including ail bakehouses." The ques- i t:oi'.s arose whether the inmates of this home were working -,for hire or-reward; and whether their work was a handicraft.. In regard to the latter questioji ha wpnkl mention that the word ''handicraft" hid received an interpretation in Judge' Williams's decision in Armstrong v. j Maxwell. He' (Mr 'Fraser) would 'point out I that this act was passed for the protection of ! employees. Mr Justice Williams said so in I his decision. He (Mr Fraser) would go a step j further and say it was intended to protect persons who were employed in manual laboiir. Our set was largely based upon the English Act. His Honor:- There is-a definition of "factory " given here. Does that come from the English, Act?

iIQ\V TO .MEVENT CKOUI'. We have two children who are subject to attacks, of croup. Whenever an attack is coming on my wife gives them Chamberlain's Cough Remedy, and it always prevents the attack. It is a household necessity in this county-ami no matter what else we run out of, it would not do to be without Chamberlain's Cough 'Remedy. More of it is sold here than of all other cough medicines combined.—J. M. Nioklk, of Nickle Bros., merchants, Nickleville, Pa. For sale by all leading chemists. — There are more wrecks in the Baltic Sea' than in any' other place in the world. The average is one wreck a day throughout the year. The- Reliable Family Remedy Woods' Great Peppermint Cure for Coughs and Colds—ls 6d and 2s 6d,

Mr Fraser: Tho definition of "factory" in the English. Actis a little wider. His Honor: Because I-do not know that any attempt whs ever made to place refuges or institutions of that kind in England under the Factories Act. Mr Fraser: This is the first time it has been challenged. They have all registered in other parts of. tho colony. They employ a large number of persons in various classes of labour. Ihcse persons are grouped together, and, although it must bo admitted that the object for which they are, gathered together is praiseworthy in : the . extreme, yet they are gathered together, and it is essential that their physical welfare shall bo strictly 'safes-uarded. His-.Honor: If the English act is the same as this, then it is a point, to notice that no effort has been made to bring them under the

Mr Fraser: No doubt it is a point. In New South Wales, and eyen in Christehurch, the Magdalen,Home has, I understand, practically closed up all other laundries. His Honor: It is so in Adelaide, »00. Mr Fraser said that he wished to impress upon the court .that it was with the employees solely that ho had,to deal. There was, for instance, the danger from fire and the danger from insanitary conditions. His Honor: In England certain sections have been,making violent efforts to have an act passed for the inspection of convents on that very ground. Mr Fraser: They would have other reasons too. ■ '■

His Honor: I am not going into that. 'What I point'out is that it' is curious that with this' iigitation going on no effort has been made to bring in the refuges. : '' Mr Fraser Convents do not do this sort of work. ■ ■; .'■■ ' ■ . ..,.;.- .His Honor: They turn out embroideries and all kinds of things. They make a groat deal of needlework to sell. ■ ■ ' Mr Fraser: The articles they sell are probably articles made in hours of leisure. Tho Salvation Army engaged in work the same as an ordinary person would. They'take a horse and cart round and go about for work and orders. ■ His Honor: t With regard to the Army in London, the Charity Organisation Society have been making complaints for many years that their places. are not ■ conducted on . sanitary, principles—whether rightly or wrongly I do. not know; but no effort has been made to bring them under the .Factories Act. Tho secretary, of • the Charity Organisation Society wrote a strong memorandum on the subject some "time ago, stating that the Army homes were insanitaryj aud therefore worked rnis: chief.. .-■-■.'.■'■ ,

Mr Wilkinson: There are provisions for the local bodies attacking them under those conditions. '■'~'" ' ' ~'. ' Mr Fraser proceeded to argue that the home cams.within."the definition of, the section,, and that the work at the 'home was a handicraft. The decision "of Mr Justice Williams, previously referred to, was that the word "handicraft", must be interpreted in its popular sense, .and he • (Mr • Fraser) submitted that laundry work came within that definition. It required a1 high degree of skill and training to turn-out'a<shirt properly or to iron a blouse or'a BkirtjVarid if his Honor would turn to section...4l q( the act he would) see that the very :tools ~uscd in a laundry were .there mentioned: "If in a factory or workshop'-where: charpDal or "gas irons are used," etc. 'It was perfectly true that these tools were used, in the. tailoring trade, but; if used in a laundry the same mischief of poisonous fumes would have to. be guarded against. Taking the word' "handicraft" in a popular sense, and looking at the i definition given of it, it must.be obvious that at least; that point of the appeal need give very little trouble. The work was performed by hand, and laundry work was certainly a' handicraft. *The more difficult' question undoubtedly arose:/under the section aB to whether' the; inmntes were working for hire or reward.. . .; ..'■'.■

His Honor :said if this was a.factory then other-Results must follow—there must "be the Saturday' afternoon holidays, and so on. Mr Fraser: Yes. ' Mr Wilkinson .said that was so, and-the buildings would require to correspond with the provisions of the act. . Mr Fraser ' said there was no hardship .in that., ~ . .'•■,, ..--....';

His Honor: A, girl. under 14 years of age could not be .employed? . . ..

Mr Fraser said that all the provisions of-the act would apply iiintilthe act was amended. His. Honor: S,o, that a girl of 13, who may have been.'rescued from a brothel, could not be employed. in this institution at all. Not merely could she. not work, for wages, but she could not. do anything, at. all. . . . Mr Fraser. said ". she, would not be. allowed \ to engage-in a;'handicraft. The laundry room' would probably: be.a separate room, and she would not be allowed to be1 there, but he took: it there/would be no objection .to her being: in any other part ,of the building so long as sho w.as not engaged in any. handicraft. The Legislature, when it passed the statute, had before its1 eyes tho.nccessity for safeguarding the physical and-moral conditions of employees, and could! no* have before .it every ..possible factory, or every possible result of the act; but, the case .came, back to this point: whether a case of this kind came within the .spirit of the act."' The ■ question was: did_ the inmates receive hire or reward? Could it be argued that,it must.be a money reward?- ' His Honor: According to the,facts they are housed, fed, and 'clothed free of cost to themselves,, and they would continue to ; ; be'so housed, fed, and clothed even if Jhey'dic^.noi work: '■ '■'.-' , ' .."•'. -.';■'■ . \ " '■' ■ .'.;•'■

'Mr Praser: -That .is so"; they 'would not ho turned out. of .the ■establishment. , . .. i :His Honor: Then how. can it bo said.they get a reward? '-'■■'■'" .-" r , ... . Mr Praser said the work was voluntary, but if they did work, they'got a return for it. His Honor!: If they get exactly the same whether they work or not it can hardly be'said' that they receive a reward for their work. •Mr Fraser replied that the work.was voluntary, but. if it was given, and those who.gave it were .housed and fed and clothed, surely they ■got a reward for their labour, and the'mere fact that others ;nn'ght get it who did not work did not'infetere with the fact that those who were doing work got a'return. A monetary reward was hot-meant, but some equivalent for their labour.' fffhst the Factory Act aimed at. was purely the safety and protection of employees. '-; • ' ■ ' His Honor said; that as to seeing that due provision was'made for light and'air, he couldnot understand a possible need for that; but (here could be no /'question of working too hard, because if they were working too hard they could , stop working just whenever they liked. If these'people did nothing and were crowded together in a- most improper way would not that be. met by municipal regulation's.-. - ' • i : . .

Mr Fraser replied that it would not. The Factories Act. was, the most valuable act on the .Statute Book. It was the only act that protected the worker, and it did protect him, providing' that he should have sufficient air, and in trades where noxious gases were engendered, the inspector could order that a fan should be set to work so as to keep up a supply of pure air.' If also provided entire privacy of the sexes. .. ■ . ■ •

His Honor remarked that in England there was 'a ■ Public • Health'Act which provided against over-crowding. '''."'. [ ' Mr Eraser said the'Public Health Act here i was a dead letter. There was no health officer, and the act was never enforced in the colony.; Deferring'toI'the case the learned counsel said the Army worked with the cheapest labour, and it was.hardly, fair that they should have exemption from' conditions with which others engaged in the same class of handicraft had to comply. - The act was specially passed for the protection of the workers, and the sections referred to showed that there was no necessity for' actual monetary payment, so long as an equivalent was. given. There could be no hardship -in such an institution coming under the, provisions of the Factories Act. Those provisions were not oppressive, and he thought it would really be a matter for congratulation that such an institution should he visited by the factory inspector. He could not under-i stand why, save on .technical grounds, the. moving spirits" in the institution had taken exception to coming under the act. The effect of closing the door to the inspector would be to throw it very widely open to carping spirits, to criticise the institution.

His Honpr asked .if he was io understand that the manager of the institution objected to its being inspected? Mr Wilkinson said no, anyone was gladly welcome to inspect it. His Honor: No, but to being inspected by an inspector who could give a certificate? '

Mr Wilkinson said if they opened the door to the inspector that might open tho door also to the payment of wages, and to conciliation ■proceedings, and perhaps in other places their poverty might not permit them to have all the accommodation.required by the act.

Mr Fraser said that was the very strongest reason why the act should apply. Ho had himself said "in the lower court, arid He now repeated it, that .he . thought the Salvation Army were very unwise in the attitude they had adopted in connection with this matter. The institution was one that received the support of. the majority of them, and the sympathy of all. The factory inspector was not unreasonable, and for the institution to have come under the act would not have involved expense. '

His. Honor said a case had arisen lately in which a girl of 15 had been rescued from a brothel, could slie not, because she had not passed the fourth standard, as reruired by section 57 of the act, be employed by the institution? She could not'be sent to a public school. . , Mr Fraser said tliat section had been passed to secure something like adequate education for the young before they were set to work, the act did not deal with reformatories, but if a reformatory came within the industrial area

ho presumed the act would apply, but in such a case a liberal interpretation would no doubl be given to the section. His Honor: You would argue that such a girl might do lessons there but not be employed. ■' -. ■ Mr Fraser replied :n the affirmative, and pointed out that if a nominal wage was paid by tho institution to its inmates, so that oo leaving they, might have something to tak« with them, then the act would beyond question apply. Mr Wilkinson rose to argue the case for tha respondent ■ '

His Honor said: I do no* feel it necessary to call on you, Mr Wilkinson. In this case I fully admit the difficulties that might arise from an institution of this kind not coming under the sanitary clauses of the Factories Act. It appears to me, therefore, if I;.may Bav so, that there is room for such an, act as the English Public Health Act. ' Mr Wilkinson said he had intended to suomit that the.Public Health Act which was in force would fully meet all that was required, and if the- necessary machinery lor it was nol provided it could be provided at any time. Mr Fraser repeated that the Public Health' Act was a dead letter.

His Honor: Then it appears that-tee provisions which are required to meet this ease are provisions under the Public Health Act, <S an act of that kind, and not provisions under the Factories Act. However, I base my judgment on the actual words of the act, which I, of course,' would' not be. justified in going beyond, one way'or the other. The definition of the word " factory " includes only " a- place in which person's are engaged in working for hire or reward.". In this case it has been shown that the, persons ,are not working for hire or reward, inasmuch as they receive no more when they work than they would receive if they refused .to work.. .That appears to me conclusive. I do not think it ib necessary f<^ mo to say anything further. •'.'■.

Mr "Wilkinson; ;. The principle of grace is the principle of the.\ refuge, not the reward of

His Honor: It is a tenure frankalmoigno.' There is no application for costs? ,-- Mr Fraser said-he had not asked'for cosil in the lower court, and, had he been successful, would not.have asked for costs hero. His instructions were not to ask for coßtsi. .', Mr Wilkinson: That being so, 1- cannot decently ask for costs. ■ - ! At>peal dismissed, without costs* .. , Tho court.then rose. . . ,