PASSIVE RESISTANCE.

Timaru Herald, Volume XCIV, Issue 14400, 23 March 1911, Page 7

PASSIVE RESISTANCE.

BY A GOVERNMENT OFFICIAL. {THE FAIRLLB .SANATORIUM. DOCTORS DIFFER. *Xsr*nd» Just the place I . The viry th:ng that is wanted I'* TUese *cd £imiiar exclamations were made when Dr. Mason, the (if Hospitals, visited the Fairlie Saua&oriuiu ait* with a view to advising the Limaxu Hospital Board as to the ourposes ox a consumptive sanatorium. Dr Mason was most emphatic in bis praises of the site from all points o; .view, aud his advice to the Board was to go ahead with the erection of biuidings there, assuring them at the shuu z.me that there would be no trouble :n getting the Government subsidy on taeir expenditure. He promised, in short, to do everything iu his powei to assist the Board in establishing s sanatorium there. Dr. Finch, <1 strioi officer, accompanied' Dr. Masjr on this visit, and ho endorsed whal the Inspector-General said. *He -roc Considered the sue an ideal one. But the well established fact thai doctors differ was nest exemplifies once more. Dr Mason retired fron the position of Inspector-General anc D* Valintine was appointed in hj •tead. He seemed at rirst inclined t< assist the Board in this matter, bu later on he,took up an attitude of pas resistance and ha* continued i arer since. A SITE OBTAINED. The land, 76i acres, was purchase* Jfc October 1903 at £l3 10s per acre It ze situated in a high sunny position close to the township of Fairlie and ad joning the Wrascombe railway station lis attitude above sea level is betwee ©OCiftr and 1000 ft. The air there is de lightfully fjresh and invigorating, aw experts, have declared over and ove agsin that the Site is one which is ad zurably suited to the cure or improve inent of consumptive patients. Sine the Board purchased it they have fee ced the land and planted trees aroun the locality where it is proposed t erect the buildings, so as to provid shelter from wind. Dr Mason approve of this planting. The S.C. Board Vnowing that the Aahburton. Hoepitr Beard wanted a place for cor gumpt:v€s had approached - that bod .with an offer to join them in the cos and maintenance of a consumption sai atormm at Fairlie, and AsTiburton at cepted the offer* and paid their shar Si® ®ost -of the land, after sendin delegates up to look at the rite. The too, considered it an ideal one. Th; I*?,. all in perfect legal order as tli Public. Health Act of 2908 gave powf to any two Boards to combine for tli pnrmse of erecting a joint institutim _ Tvben Dr Valintine looked at tl site he had no fanlt to find with i taoept that it required shelter, but I wanted South Canterburv Boar *°_3° in the Hospital" Boar*: tonfb- of Tunaru in erecting a

iic-titution that would sorv o uho v. Loit> of the South Island from Kakaia to the Biuii, leaving tho Ciu\stchurch sanatorium to serve f or tho iwst ot the South Island. And all his efforts siuco then have been directed towards the attainment of that end. But tho Soutli Canterbury Board did' ma consider that such an arrangement would be wise, and in the public inter est they have resisted it. And in order i-- provide the shelter which Dr Valintine said was necessary, they planted trees and lot the land for seven years by the end of which time the trees will provide good shelter. In the moantime the South Canterbury and Ashburtua Boards have entered into an • mngement with" the Otago Board by which thev can send consumptive patients to tlie sanatorium at Palmerston South. - THE- SPRAG APPLIED. The legal position in connection with tho sanatorium, sit* -at Fairle, was gov the Act of 1908. Before the two Boards interested oould curry on by means of a joint; committee had to N havo regulations trained airi gazetted. These regulations wore drawn up by tho solicitors to the South Canterbury Board, and being desirous ot* completing tho work they Had begun the Board applied to the liupeuiorGcncral to approve of aud formaily _ gazette the regulations. No reply was - srirt'to this for a,~period'ot five mouths _ ~-unuL otter- the*-repeat 'ot "tho" 19f-S , Act under which-the regulations were fr. med. Instead of complying with this simple request, Dr Valintine has d< ne all he could' to block tho regulations. and*.ahsotutely refuses to gazstto them—relying on advice which ho j states ho has .received from the Crown , Law Department. The Board cau «et no satisfaction from him, and he takes a considerable time to reply to com- - muuications sent him on the " subject. When the new Hospitals Act of 1900 was passed, the Inspector-General told tho Board that they would have to enter into a new agreement in which the regulations would be embodied. 1 The Board holds that the InspectorGeneral is not entitled to upset in this way, the arrangements made under a 1 pievious Act. _ j It is interesting to note that at on i 1 interview which a "Herald" reoortor had with the Inspector-General in Ti- ' inaru, he used these words: "Not otio " word would I say against the splendid spirit which prompted your local a»taorities to purchase a site at Fairlie; their action was a very commendable I one; but it is my .duty, as Inspector- ! General to point out that the erection 1 '' sanatoria in each district • > most economical nor the most effective 1 way of dealing with the disease. There - . must be concerted action, and I beF lieve that one sanatorium to serve that k port of the South Island from Ashburi- ton to the Bluff would be sufficient/' The arrangements in connection with e the sanatorium at Fairlie had been soS in- on. for some considerable time be- ? fore* Dr Valintine saw fit to throw cold s wrter on the scheme in this way. e At a. conference held in Timaru m r August 1909 betwen- the South Cane terbury and Ashburton Boards, Mr V. i. I?. Gillingham (chairman) asked wIl?ether Dr Valintine was prepared to recommend that tho Fairlie-site be'abane drned altogether?. £ Dr VaHntin© said no, he was not pref. - P**ed go as far as that; but ho a wc-md nte them £6 wait a little and *ee

what the Southern Boards would ho ; prepared to do. The Department would i\«>t oxerciso any compulsion as the j l!aard& must Hud tlio jnoney, but they | were rendv to advise, and that wus h;*- 1 advice now. Mr Friedlnnder pointed out tho 1 change in the attitude of the Depart- I nent. First Or Mason urged them to ! ►>o on, ! theu Dr Yalintine urged thorn ■ t > stox>. ) THE LEGAL POSITION. At the January meeting of »ho South Canterbury Hospital Board the U-Mowing copy of a letter addressed to the Inspector-Genorai by the Board's solicitors Perry r'erry and is Jiinerney was read:— ' "The opinion of the Solicitor-Gen-eral, which you mention, is evidently based on a misconception of the facts. The agreement between tho two Boards was acted on, the fact being that as a first step to give effect to it the South Canterbury Board acquired a bite for the proposed sanatorium and expended money on it. Regulations are certainly required for the proper management of the Institution proposed to be erected, and those can he made under the provision of clauses (g) and (h) of section 20 of "The Acts Interpretation Act 190S" which, are as follows (1) Any enactment, 'notwithstanding the repeal thereof, shall continue and be. in force for the purpose of continuing and perfecting under sach repealed enactment any act, matter, or thing, or any procedings couij menced or in progress thereunder, if thero be no substituted enactments adapted to the completion thereof." (2) "Notwithstanding the repeal or expiry of any enactment, every power smd act may be necessary to complete, carry out, or compel the performance of any subsisting contract or agreement lawfully made, entered into, or oommeneed under such enactment may bo exercised ana | performed in all respects as if <he said enactment, oontinued in force, . and all offences' committed, or penalsuch repeal or expiry may be proties or forfeitures incurred, before secuted, punished and enforced as if such enactment had not been repealed or had not expired." We would remind you that we wrote you. with the draft of the proposed regu T lotions as far back as the llth December 1909, but although the regulations submitted were evidently quite in order (as shown bv the fact that the only alterations which you made Jn them them in a proposed new agreement bewere for the purpose of embodying tween the two Boards)", they were not returned to us approved until the 19th of May 1910, a period of five.months, and that no explanation whatever has been given <?f this apparently wholly unecessary delay. At- the time whe& we forwarded the draft of the regulations for approval, the provisions of "The Public Health Act 1908"' under which the agreement was made, and the regulations were intended to be framed, were in force, and those provisions remained in force until the Ist of April 1910' when "The Hospital aad Charitable Institutions Act 1909" came into operation. If. therefore any difficulty has arisen, it has been caused r.olely by the negleot of your Department to gve the matter ordinarily prompt attention, which is surety a very strong reason for facilitating it in every way in lieu of raising objections to giving full effect to it. There is however'ro real difficulty at all. It would indeed be an extraordinary state of affair? if. after the South Canterbury Board has partly performed the agreement on its sde, and incurred liabilities and obligations on the faith of it, delay by the Department until after the repeal of the Act under which the agreement was made prevented 'the necessary steps being taken to give effect to it. That is exactly what Section 20 (g)- -and (h) of "The Acts Interpretation Act 1908" was evidently intended to prevent. Why should the vested rights of the South Canterbury Board be prejudicially affected by the delay of the Department iu providing the necessary machinerv for carrying i out tho agreement, ani why in such j a case should the South Canterbury < Board be driven to approach the Ashburton Board for a fresh agreement? Changes of membership in the Ashbnrton Board and otken circumstances might lead to alterations &eing asked for which would be prejudicial to ihe South Canterbury Board, and in «Miy ense the latter Board ought not to bo j placed in such a position. We are pre- : pared as the South Canterbury Board's j solicitors to advise it to acrept full j responsibility, if any exists—which sofms impossible—lf your Departnu-iit ■will proceed to gazette the regulation*. The utmost that could be said would be that the regulations are not legally b nding, and we are quite prepared to satisfy the Coyrt that they are, if the question is raised, although under the urc\;*nstanep-s the full res-ponsibil-. 1 itv should be assumed by your "Department."

AN INTERESTING DECISION An example of how the Courts, in England are dealing with attempted encroachments, by , Government functionaries, on the rights of private individuals and corporations is given a v<?rv recent case, Dyson against the Atiorney-General, which came before the Appeal Court in December last. Lord Justice Farwell, one of the most distinguished Judges on the Bench, heard the case, and the following are sonic extracts from his judgment:— "The party ought in this case to be relieved against the Iviug, because the Kino; is the fountaiu and head of justice and equity; it would derogate from the King's honour to imagine that wh-iu js equity against a common person shall not be equity against him. . . . The argument on behalf of the Attorney General claims for a Government Department a superiority of the law which was denied by the Court to the King himself in Stuart times. ... If inconvenience is a legitimate consideration at all, the convenience in the public interest is all in favour of providing a speedy and easy access to the Courts cf any of His Majesty's subjects who hsvvo any real cause of complaint against the exercise of statutory powers by Government departments and Government officials. having regard to their growing tendency to claim the right to act without regard to legal principles and without appeal to any Court. * Within the present year in this Court alone there have been throe such oases. . . . In all these cases the defendants were represented by the law officers of the Crown at the public expense, and in the present case, we find the law officers making n preliminary objection in order to prevent the trial of a case which is of the greatest importance to hrndreds of thousands of His Majesty'* euhierts. ... If Ministerial responsibility were more than the more shadow of n nnnie. the. matter would be less important. Hut ns it i*. the CVsurts are th- r»olv defence of the liberty of -he pubjee? "ainnt s-1 sion." Tit. l u'as allowed.

Should the South Canterbury and Ashburton Boards decide to take tho case to Court, it will be very similar one to that referred to in tne judg-. ment quoted above.