THE INSANITARY BUILDINGS CASE.

Otago Daily Times, Issue 11794, 25 July 1900, Page 7

THE INSANITARY BUILDINGS CASE.

JUDGMENT RESERVED.

The hearing of- the complaint laid by the City Corporation against Benjamin Throp for failing to comply with an order to remove' certain buildings condemned by the^ Board of Health was resumed . yesterday, before Mr Carew in the Magistrate's Court.-, .'..':.

■ Mr F. E. .Chapman appeared for the Corporation, and Mr W. A. Sim for defendant.

. inspector Donaldson gave evidence that -he knew the buildings referred to in the-case.' He first visited them, on April 17, 1899,—that was before Mr Throp owned them. ■' He visited them again on April 21 of this year, and at various times since, up till that morning. He saw the stuff carried away from the building during the repairs which were now being effected. It was very filthy arid dirty. In repairing the building, several lining boards had been turned, iresh nails-driven in, and also a large quantity of new timber added in place of some of the old wood that-was removed. Witness went over the place on the 19th July and found the Tif S coming from the subsoil at the rear' ol.the' building as he had found previously: -Lhis was a deadly, stagnant smell •' he often camo in contact with during his rounds. He thought the smell came from dead animal matter and vegetable matter combined. He saw large accumulations of debris about May last— lubbish, dust, and paper—in a recess under'the stair. He thought there would..be a couple of rartloads. The." rubbish underneath the stair nad been .cleared away when he made-his last .visit. The joists of the floor were in a very iilthy .condition, matter having come through .the seams of the floor. He found the •'remains of dead moths and other animals" sticking to .th.i wood. Other timbers were very dirty, and fcs. a sanitary inspector, he considered, the. place unfit to live in. The timbers (bluegum), , however, could be cleaned by a oerlain process. (The witness here produced a basin-full of. soil taken from underneath the building. After a cautious inspection by the court and the counsel, for. defendant this was subsequently removed.) Witness (continuing) said that lft '6in- of the surface of the soil ought to be relieved. ■ i

■ Gross-examined: He was for- 20 years a in Dunedin before being appointed sanitary inspector. He had tried to make himself familiar with sanitary science. He had no books on,the. subject, and judged things .in the light of common sense. Two years ago ■!the building was 10 times worse than it was at the present hour. It was to have been visited t>y the Boa,rd of Health, but for some technical reason the visit lapsed. As to the " deadly, stagnant." smell, it differed from the foreshore";, it was an animal smell, but not nearly so. bad as the foreshore. Witness had found only one ■dead rat there, and at the present time did not think he could find any more. There were also rotten bones lying about; there might be a good many, more than half a dozen,—he did -not count them, and in the selection shown to •tlio court he-did not include any bones. He also found part of a dead rabbit on the premises. At preaent all the decaying matter had been. removed. In speaking of the ground : -I? g. iy' he mekni that ifc wais all mixed up .■with homogeneous" matter. He referred to a small area at tho rear of the building The ■wood supporting the roof was charred. All the rotten piles had been taken out. Speaking generally, all the dj r t had been removed, and when the. present repays were complete lie supposed that it would be a sound building. - Thomas B. Fairbairn, town clerk, gave formal evidence as to the proceedings having been -taken by him in his official capacity. James Moffat, builder, said that he was at present holding A position as an inspector under the corporation. Ho visited the buildings referred to in the case. Witness went ■under the floor when the doctors went through the building. He cut a hole in the floor to get •through. He found the place very filthy with Viccumulations of rubbish, and it looked as if ifc had been a dumping ground for dirt. A 'good deal of this rubbish had been left on the f round and was covered over at the present time. Speaking up to date, the building was >'.ot in a sanitary condition and fit for occupation. As it stood, the building could not be V.iA-'le sanitary..

Cross-examined: The filth under the floor comprised an . accumulation of paper, which was filth. He would contradict a witness who would say that the accumulation o£ paper was dry.

Gavan Wilson Sandeman said he was one of the inspectors acting in thig inspection. He hnd vif.ifed it on several occasions. Ho was last thei^ on the 10th July. There was a great ■change in it as compared with the time he first saw it.. The floor had been taken up, and the scrim taken off the walls. The building, however, (&$).& not be cleaned in that way. He

noticed while in the building an offensive smell coming- from the back. He did not thinl; it was fit for occupation. To remove the smell it would be necessary to remove the surface of the soil to a good depth. Cross-examined: .Witness produced a sarupic of the surface of the ground taken from under the building, and said it was composed of dust and dirty paper. He could not "exactly state what the sample was composed of. Mr Sim, in opening the case for the defence, contended that there was 110 ground whatever whereby his Worship would ho justified in malting the order asked for.in the present case. Be.'ore calling witnesses, he proposed to refer shortly to the evidence given on the other side, and to refer to the1 position taken up by the City CounciL in connection wii,!i this particular matter. No doubt the council had a somewhat difficult duty to' perform in dealing with insanitary buildings or buildings supposed to be insanitary. No doubt they endeavoured to do what they considered was proper, but in the present case the attitude of the City Council towards Mr Throp was certainly unfair and tyrannical. He would refer shortly to the circumstances for nicking that charge against the City Council. These buildings had been in existence since 1861, and were situated at the corner-of Stafford and Princes streets, where the • inspectors took up their position wlisn dealing with cab and tram drivers, and consequently had been under their nose for the past 30 years. Inspector Donaldson visited the buildings last year, when they belonged to a different owner, and he did not then think it necessary to take any steps on account of the condition of the place. The property was purchased by 11 v Throp as portion of a larger property, and he did not get possession until February. Ho spent money in improving other portions of the property, and made arrangements to have the buildings in question put into proper repair. The building occupied by Mr Pro3sly was put into repair as soon as Mr Pressly went out, but the other building (occupied by Jfr Prictor) could not be got into for purposes of repairs because it was partly occupied by Mr Prictor. The City Council knew this, and, although the}' knew that Mr Throp had but recently acquired the building, they did not give him an opportunity ■of effecting tho repairs necessary to put the buildings iii a proper condition.. In fact, the council was just us much responsible for flic condition ol the building as the proprietor was, for when Mr Throp was about to take steps to put the building in proper, order they would not give him an opportunity of doing no. On the. 10th of May itliey requested him to pull the building down". He (Mr Sim), on behalf, of Mr Throp, wrote asking the council to allow the ma-ttei to stand over, and a reply was received on the 00th May to the effect that the time for removing the buildings had been extended for 14 days. Another letter was sent.to the council asking them for an extension, of time for two months, and the reply to that request was that the council intended to appiy to two justices for an order to pull down the buildings. TJnder those circumstances it was extremely unreasonable that the council should *have forced.. Mr Throp's har.-d us they did. If they had granted him tin: necessary time it was quite possible that Mr Throp would have pulled' down the buildings and erected entirely new ones on tho site. They had, really, prevented Mr Throp putting up new buildings, and anything more silly than-thr conduct of .the council could not well be imagined With.regard to the evidence, the case, made out by the corporation was an exceedingly weak; one.'. ; There was no doubt that when, the doctors' first visited the buildings they were in a dirty and dilapidated condition. After the alterations were made Dr Coligh-trey-frankly confessed that if he had considered the ; question anew of granting a- certificate he would have hesitated. ■ ... • His' Worship: He Said he would huve hp?it'oted if he had not seen the. buildings as they were before the lepairs were effected. - Mr. Sim .went son to say. that, with regard to Dr Davies's evidence, the whole foundation of his opinion was the existence of that one collection of rubbish seen through a hole in ono of the floors. He rested his1" condemnation of the building largely, on. that one detail. The evidence of All- .Moffat went to show that this heap of rubbish, consisted of papnr. He would call evidence to prove that that paper was perfectly dry,,and wiis gathered rip-by a man; in his hands, put into a wheelbarrow, and carted away. And so.with regard to Dr Roberts," the foundation of his opinion that the buildings could not be put.into a sanitary condition.,was the fact that the floors were fctten. His Worship pointed out at the time that Dr Coughtrey had-said that the material Composing the floor was perfectly sound, although the piles were rotten; but, a-3 Mr Forrest said, it was .a common, enough' thing for piles to become rotten .and for them to bu removed aiid replaced. Against tho evidence of these medical gentlemen there would be the evidence of doctors of equal eminence. Dr Coughtrey's opinion was certainly not a- strong

one, and the value of Dr Davies's opinion really disappeared when that heap of paper was explained.

His Worship said that Dr Davies had stated

that-he had-looked at an accumulation of dirt, which, .had evidently been there-for .a number of years, and lie was understood to mean that

the timbers of the buildings would get liii pregTiat-e'd-with-bacteria. '...-. ' ■

■ Mr Sim observed that it. was a mere assumption mi- the witness's part to say that the buildings would become impregnated with bacteria; and with regard to. that he would like to;,read what his Worship had said in Laing's case. There was a contest in that caso as to whether it. would be ' a proper thing to put new paper over what was called insanitary paper. His Worship at that time, laid down the principle that there should first bo prpof of the existence of • the disease germs in the old paper before it could be said that the placing of new paper on the old would imperil public health. His' Worship held that there should be some evidence of. the existence of the germs, and the necessity of.'that proof existed just, as much ta-day as in. 1896. All the evidence in the case went

strongly to negative the existence of disease germs. There was not a single'detail of evidence of any illness arising through these buildirigs' during the long .time they'had been in existence. The' pulling down of :the buildings did riot cost the corporation anything. It was a;Very cheap sort of virtue for the City Corporation to indulge in. When they were asked to indulge in virtue which might cost them something, such as the introduction of a-drain-age scheme, or the cleaning up of the filthy foreshore, an addition of rates was involved", fthct they hesitated for many years. ' As to the inspectors' evidence, they hud leaiusrl- a lasson by rote, and gave no reason for the faith in .theni. With - regard to- the section under which the proceedings were taken, liis learned friend confessed that the legislation was'unsatisfactory, -It \^s impossible to say what were made conditions' precedent to the granting of an order under-section 302."

Mr Chapman said that the sections then would.miss fire.' : '

Mr Sim said the sections were highly penal, and it must' be absolutely plain what the conditions were, before ah order could be iriade. p His Worship: The first point seems 'to• be whether the magistrate has any discretion in the matter at all."

Mr Sim said that was- bo,'and concluded his remarks by saying that there was. another point to which' he wished to refer, and it was thflt Mr Thorp did not get notice. The notice had to be sent by the town clerk, but it had only been sent by a gentleman wholly unknown to tho. Municipal Corporations Act—hninely; the acting town clerk.

Benjamin Throp. the owner of the building in question, said it formed a portion of a property he bought last year. He came into possession .in February. He found the buildings in question in a very untenable state, and very disappointing to him. but the framework was in good condition. Ho- got a report from' Mr Wrigiit that the building could be .'nut in first-class order if it were repiled. Mr Pricior showed a marked disinclination to go out Pressly and Priotor went out in order that the buildings might be repaired. Witness was going to take all the lining out of the building and. put in new. The partitions .would all come out, and there would only bn one room downstairs and one room upstairs. He-thought it was a splendid building, and that the ground under it wns in good condition—better than he expected to find it, There was no filth, and never had been anything- there to cause filth. The ground-was extraordinarily satisfactory, and he never new a-floor to-be lifted with, such satisfactory results. The roof was watertight, and there had never been any complaint about rats. The place:smolt better than the court. At 'one time Mr Pressly stovpd Ktiano there, and that caused offence to Mr Prictof.

I : Crosß-examinod: Witness did not know that Pfessly's was once a .fish'shop. Prictor never spoke to him about having to cover up his goods in tho upper building when it rained. When he asked the corporation for' extension of 'timo he thought it might be to his advantage to build brick buildings.' The plan of alteration he was following was one drawn up by Mr Wright. It was to set the building thoroughly right, and to t.ak« ttp the floors if necessary. It wns-part of the plan to reline the building. Witness did not know if any of the lining bdards had been turned. Mr Wright would be able to give evidence on this point. Ho had noticed a very slight smell, caused by an accumulation of rubbish outside the rear of the building. That other people had been nble to notice a strong smell must have been due to {he fact that they had the "inspectors' sir.ell." The floor of Pressly's building was sound.

George Simpson, builder, inspected the buildings early in June, before any alterations had been made, and when they were in their " natural state. He had seen the alterations made in the larger building, and would have no^ hesitation in using it as a dwelling. He saw> no danger to public health in allowing the' building to stand. Witness saw nothing about, the ground that would make him afraid-to' build on it. With the exception of a spot where a water pipe had burst, it was bone dry. He saw none of the filth complained about. There was no evidence of decayed timber with the exception of the piles. After the alterations were carried out the place would be as good as ever. Cross-examined: Witness did not notice any smell about the building. The ground under the floor was just as clean as under any ordinary building. He saw no rat holes or filth ljdng about. The house was dirty and dusty, bnt he could not see behind the paper. Eobcrt Crawford, of the firm of builders oi Crawford and Watson, said that he examined (ho buildings on several occasions about the beginning of the month and again on Friday last. They were not in an insanitary condition, and, subject to the floor being put down again, would be quite fit for- occupation. Ho would have no hesitation in living there himself. When the alterations were complete it would be in a first-class condition. The wood was sound, and the roof in good condition. He saw nothing insanitary' about the ground, and no traces, of rats. Cross-examined: He smelt nothing offensive bryond what one felt in any place that had been closed up—a feeling of heaviness. He saw some paper and dry dust under ths floor, but there was -nothing- offensive about it. • John Wright, builder, said that Mr Tlnop

consulted him about the buildings in March last, and on the 29th of that month began to repair the smaller building-. The ifoor was Uneven, and fresh piles had to be put in,. It was all sound now. Witness noticed no smell.

about the place, which was quite fit for occupation. He had been in the larger building daily for some time, and there was no sme!

at all till the workmen got under the floor. There was no decayed wood loft about the place, and they removed all the decayed piles. When the alteration?, wove complete the building would be as good as new. Cioas-examined: He reported on thp lowor building on. March H. They had carted away popei. clippings and dust, but the soil remained the same as ever it was. He was working on the Fame plan' he commenced with, and hhd not expanded it in any way. There had been ;io lining boards turned. • • •; Dr Joseph Osborne CJoss sain that he had

inspected the buildings on several occasions. He first went there before any alterations had been made. Assuming the floor to bo put down in the upper building both would then be quite fit foi occupation. He did not consider cither in their' present state to be "'a'source oi danger to the public iießlth." He. had no reason to suppose that there were disease germs in the place. The ground was dry, iind looked like the ordinary soil one saw under buildings. There was nothing insanitary about it. Even if there were disease germs there, there would be no difficulty /in destroying them without taking down the building. Cross-examined: Witness saw no filth about the place. He could not see under the floor the first time he went there.. If there had been anything (ilthy about the place it had been

taken away before his second .visit. A doctor

would judge the sanitary condition of a building without. any special. scientific investigations. He smelt nothing objectionable about the place. Dr William Erown visited the buildings three times.' The last time he was there the floors were up. There was nothing insanitary alsout them now. It would be a difficult effort of imagination to regard the buildings as '• a source of danger to public health." Cross-examined: It had been-raining very heavily on the day he first went, but there were no leaks in the roof. T'ho place under the staircase had evidently not received any attention, as a good deal of rubbish was still lying there. Witness admitted that health authorities insisted on clean ground beneath a. building. An accumulation of filth harboured disease. Witness (examining the samples before the court) agreed that if such material as

that covered the ground under the floor ii would contaminate it. The place at the present time was free from smell.

Re-examined: Witness saw nothing like the sample produced during the time he was there.

Dr Jamea Macpherson said he had inspected the buildings on July'l3 and 20. He. found nothing insanitary about them. They were old, and lißd been badly kept; but he would not call the dirt filth; dust was wholesome matter only out of place. Witness could point out places infinitely worse for dwelling houses in use at the present time than the buildings mentioned. He did not notice any offensive smell about the place. There was a heavy odour when the floor was taken tip, but nothing unhealthy.

Cross-examined: Witness did not see anything that he could call filth. The place, was quite fit to be inhabited when he first saw it,

that was after the fiijst; clearing up had-taken place.. • Witness smelt a heavy, earthy odour, which he put down to the removal' of the decayed piles. : ■ " ' ■•■■-.

Dr Harry. Archibald de Lautour also gave evidence. .He said that he took one of the .dirtiest pieces of Wood that.he-could find. He cut it in half, and immersed one-half for a time in a weak disinfectant, and afterwards comparing it. with the other, found that it developed ■no grdwths as the other did. He made this experiment to- see for himself if disinfecting would destroy such germs. He found from further experiments that the germs were merely on the surface, and that they had not permeated the wood.

Ernest Dd-Vis, carpenter, Working bn the building, said that in cleaning out the recess under the stair they only, took out dry dust and there was no smell there at all. He had been working there for a fortnight, and noticed no smell till they came to fake out the- piles Cross-examined: He reckoned he had a fair sense-of smell.

Albert King, labourer, who had " a fair to medium ' sense,of smell, also gave evidence. Cross-examined: According -to what he was accustomed to, he would Hot call the place filthy. . . . Peter Spence Omaud, painter, also gave evidence. -

This'concluded the'case for the defence. .. Mr Chapman said that regarding the question raised by his friend, he would refer to the Interpretation Aot of 1889. Officers of the council were appointed under section 127j and there was nothing in that provision rendering it absolutely necessary that the notice shall be given by the town clerk, though it certainly indicated tluU the town clerk was the person to give the notice. The Interpretation Act would allow in .cases of necessity that two persons could exercise the function of town clerk. When Mr Fairbaim was appointed Mr Taylor was absent and incapacitated^ and no particular form of appointment was really necessary. He continued in office up to the time of his permanent appointment on Jutie 1. At the time the notice was given, he was exercising his office, under an appointment in which he was styled acting town clerk. Supposing no appointment existed at all, he was exercising the office of town clerk on May 19—before and after that- date,— ■and all that was necessary was to. show that

he was a person exercising the office of town clerk.

Mr Sim contended that if Mr Fairbaim had .not been correctly, appointed the fact that he was exercising the office did not make him town clerk.

Mr Chapman held that the acting town clerk was town clerk. ' . . . .

Mr Sim said that there was a distinction between " town cleric '' and " acting town clerk," and the provision in the act wns for the appointment of an "'acting" town clerk. There was no provision in the Municipal Corporations Act fer the appointment of a town clerk, and it was clear that the notice had not been given as required by the act.

His Worship reserved judgment,