SUB-INSPECTOR OF POLICE v. PERIA CARPEN et al

114-NLR-NLR-V-21-SUB-INSPECTOR-OF-POLICE-v.-PERIA-CARPEN-et-al.pdf


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1M8.Present: De Sampayo J.
SUB-INSPECTOR OP POLICE y. PERIA CARPEN et al.
18S—P. 0. Balapitiya, 44,866.
Quarantine and Prevention of Diseases Ordinanc, No. 8 of 1897—
. Regulations made under s. 4—Ultra vires—Ordinance No 11
of 1866.
The accused, who were coolies on an estate declared to be anarea infected with anchylostamiasis, ' were charged with refusing tosubmit to medical treatment under regulation No. 108 if) madeunder the Quarantine and Prevention of Diseases Ordinance, 1897.
Held, (1) that there was no conflict between regulation 103 (g)
■ <which requires a person to remain within an infected area untilthe’, completion of any treatment which may be prescribed) andOrdinance No. 11 of- 1865(whichgivesthe labourertheright to
quit service after a month’s notice.)
Cl) Begulation No. 103 (/) compelling a person to submit to anymedical treatment is not ultra vires.
(3) Begulation- No. 101,whichgivespower – tothePrincipal
Civil Medical Officer to make a declaration by notification in theGovernment Gazette that an area is an infected area, cannot be saidto be ultra vires on thegroundthatthe Governorhasdelegated
his powers to the' Principal Civil Medical Officer.
^ HE facts appear from the judgment,
Regulations Nos. 101 to 105 are as-follows (Government Gazette,September 7, 1917): — 1 * 3
1. In the definition of “ disease " in rule 1 of the said regulations,
after the' word “ trypanosomiasis, ” there shall be inserted the word“ anchylostomiasis'. ”
3, The following new part shall be added to the said regulations:—
Past Y.
Anchylostomiasis.
101. Interpretation of Terms.—Forthe purposeofthe application
of this chapter and of any of these rules and regulations to the pre-vention, observation, diagnosis, or treatment of anchylostomiasis, theproper authority shall be the Principal Civil Medical Officer, the Pro-vincial Surgeon of the Province, the Diistrct Medical Officer andAssistant Medical Officer of the District,any officer of the Medical
Department specially charged with duties in connection with anchy-lostomiasis, the Senior Sanitary Officer, and also any persons of medicalor scientific qualifications appointed by the Governor sb officers for thepurpose of any campaign against the disease.
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103. In any case. in which the Principal Ciyil Medical .Officer is'satisfied that anchylostomiasis is prevalent within any . estate, he may,.by notification in the Government Gazette, declare such estate to be an*• areainfectedwith anchylostomiasis "for the‘purposes ofthischapter.
re.
J03. The proper authority may, in the oase of any estate declaredan “ area infected with anchylostomiasis ” under this chapter—
By notise in writing, require. the superintendent or other person
in charge of the labourers on the estate to summon for examina-tion or treatment in such manner to such place or places andat such time or times,, asmay bespecifiedinthenotice, any
persons or olasB of personsemployedon the.estate orresiding or
being on or in the immediate vicinity of the estate.
By thesaidoranyseparateor further notice, requirethe said
superintendentorperson toprovide and afford,, either generally
or specifically, all facilities in his power for the purpose of suchexamination or treatment,or forthe purposeofany other
measure or operation undertaken by the proper authority inconnection with such examination or treatment.
Require such superintendent or personto .issuetoanypersons or
classofpersons employedon theestate,orresident or being
thereonorintheimmediatevicinitythereof, allsuchdirections
as the proper authority may deem necessary for the purposesaforesaid.
Requireany personemployed onthe estateorresident or being
thereonorintheimmediatevicinitythereof tosubmit to any
examination ordered by the proper authority.
Requireanysuchpersonto furnishfrom time to time to'the
proper authorityor toanyperson acting underhisdirections
suchspecimens ofthe faeces ofsuch personinsuch quantity as
may be directed, and in such receptacle as may be provided by.the proper authority.
(/) Requireanysuchpersontosubmitto anymedical treatmentin
suchmanner and. during suchperiod andatsuch times and
places as may be directed by the proper authority.
(p) Requireanysuchpersontoremainwithintheinfected areaor.
within any' place in the said area until the completion' of anytreatment which may be prescribed for such person by the properauthority, unless he shall receive permission in writing to quitthe said areaorplacefromthe proper authority,orfrom any
person to .whom the proper authority may delegate power togive such .permission.
l(ri.The Governor may,by notification in theGovernment Gazette,
udrectthatthe provisions ofthis chapter shall beapplied to anyarea,
otherthanan estate, whichthe Principal CivilMedical Officermay
declare to be an areainfectedwithanchylostomiasis, andinany such
case all requirements which under this chapter may be addressed tothe superintendent or other person in chaTge of the labourers on – theestate ' may be addressed to snch officer or person as the Governor ' maydesignate in the notice, and' any requirement ordirection whichmay
underthischapter be issuedor addressed to anyperson employedupon
an estate may be issued or addressed to any person resident or bemg
1M8.
Sub-Inspec-tor o/PoKeeviPeriaOarpen
( 394 )
1M8L
Sub-Iitepee-
torqfPoKee
v.Perta
Oarpm
in the said area, and the provisions of this chapter shall, mutatis mutandis,be construed accordingly.
106. It shall be the duty of all persona to whom any requirement ordirection may be communicated, issued, or addressed under this chapterto comply with such requirement or direction.
Garvin, 8. G., for appellant.
Balaeingham, for accused, respondent.
The following authorities were cited at the argument:—16 Q. B.
708; 10 Q. B. D. 387; (1894) 2 Q. B. 821; (1898) 1 Q. B. 290.
Cur. adv. vult.
March 13, 1918, De Sampato J.—
This is an appeal by the Solicitor-General from an acquittal ofthe accused, who were charged with a breach of regulation No. 103 (f)made by the Governor under the Quarantine and Prevention ofDiseases Ordinance, 1897, and published in the Government Gazetteof September 7, 1917. The Police Magistrate held that the regula-tion was ultra vires, and acquitted the accused.
Begulation No. 103 is to the effect that the proper authority may,in the case of any estate declared an “ area infected with anchy-lostomiasis, ” inter alia, “(f) require any such person (i.e., any personemployed on an estate) to submit to any medical treatment in suchmanner and during such period mid at such times and places as maybe directed by the proper authority.”
The accused were coolies employed on Ketandola estate, Blpitiya,which had been under regulation No. 102 declared by the PrincipalCivil Medical Officer an area infected with anchylostomiasis, andthe charge against the accused was that they' had refused to submitto medical treatment as directed by Dr. Winsor, who was appointedby the Governor an officer for the purpose of the anchylostomiasis scampaign. Two legal objections, which will be presently noticed,were taken to the validity of the regulation and were over-ruled bythe Police Magistrate, but he himself considered that the regulationNo. 103 (g) was inconsistent with the provisions of the LabourOrdinance, No. 11 of 1865, which gave a. labourer the right to quitservice after a month’s notice. There is some oonfusion here. Theregulation in question in this case is not No. 103 (g) but No. 103 (/),and I do not see why because one regulation is invalid the othershould be also. I may, however, deal with the Police Magistrate’sview on its merits. Begulation No. 103 (g) authorizes the properauthority to require a person to remain within the infected areauntil the completion of the treatment, except on written permissionto quit such area. This has been held by the Police Magistrate tobe inconsistent with a servant’s right to give a month’s notice, andleave, but a little consideration will show this view to be untenable.A notice has the effect of terminating the contract of service, and,in the ordinary case, the servant will, of course, leave the place of his
( 8M )employment. But thin personal movement may be prevented bythe proper authority without interfering 'with the legal effect of hisnotice on the contract of service as between the master and theservant. Any possible grievance will be on the part of the masterand not of the servant, because he may be obliged to tolerate thepresence of a servant who has terminated his contract by notice,but here comes in regulation No. 103 (b), by which the superinten-dent of the estate may be compelled “ to provide and afford, eithergenerally or specifically, all facilities in his power for the purposeof such examination or treatment, or for the purpose of any othermeasure or operation undertaken by the proper, authority in con-nection with such examination or treatment.” I think that thereis no conflict between the regulation No. 103 (g) and the provisionof the Ordinance No. 11 of 1865 with regard to quitting serviceafter notice, and that the regulation is not bad for the reason givenby the Police Magistrate.
1918.
DsBudato
J.
Sub-Inapec-tor of Policev.PeriaOarpen
Mr. Balasingham, for the accused, has, however, endeavoured tosupport the order of acquittal on the legal grounds put forwardon the accused’s behalf in the Court below and over-ruled by thePolice Magistrate. The first objection is that a regulation com-pelling a person to submit to any medical treatment is not justifiedby the powers conferred on the Governor by the Ordinance, and isin itself unreasonable. The effect of the decisions cited in supportof this objection is thus stated by MaxweU on Statutes (4th ed.)446: “ Buies and by-laws made under statutory powers enforce-able by penalities are construed like other provisions encroachingon the ordinary rights of persons. They must, on pain of invalidity,be not unreasonable, nor in excess of the statutory power author-izing them, nor repugnant to the statute or to the general principlesof law.” At the same time, just as the consideration of by-lawsmade by public representative bodies is approached from a differentstandpoint from by-laws of companies, so courts of justice will beslow to condemn as unreasonable any rules and regulations madeby such an authority as the Governor in Council, but will supportthem, if possible, by a “ benevolent ” interpretation, and creditthose who have to administer them with an intention to do so ina reasonable manner. See Maxwell 447-448. The nature of themisp.hipf intended to be met, and the general interests of the publicas distinguished from the rights of individuals must also be takeninto consideration. The declared intention of the Ordinance inquestion is to make regulations for preventing the introduction andthe spread of infectious diseases, and accordingly section 4 providesthat “ the Governor, with the advice of the -Executive Council,may from time to time make, and when made revoke or vary, suchregulations as may seem necessary or expedient for the purpose ofpreventing the introduction into the Island of any disease, and alsopreventing the spread of any disease.”
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1918.
Db SajcpayoJ.
Sub-Inspec-tor of Policev. PenaOarpen
It will be observed that the powers thus conferred are very wide.It is true that section 5. (1) specifies certain purposes for whichamong other tilings ” the regulations may provide, but sub*section (2) emphasizes the intention to make the powers as large aspossible by providing “ that nothing in this section contained shallin any way restrict or be construed to restrict the generality of thepowers conferred on the Governor by the last preceding section,but such powers shall extend to all matters, whether similar or notto those in this section mentioned, as to which it may be expedientto make regulations for the better carrying into effect of the objectsof this Ordinance."
What is “ necessary ” or “ expedient " is a question left entirelyto the discretion of the Governor. It is said that to compel a personto take any medicine to which he may object is to restrict theliberty naturally and legally belonging to him. That may be so,but in an ordered community the rights of the individual mustyield to the general safety. All social legislation proceeds uponthe common maxim solus populi supremo lex. It is more or lessarbitrary, but it iB often necessarily so. An Ordinance to preventthe introduction and spread of infectious diseases is an instance ofthat kind, and the Legislature, in the provisions above referred to,has thought it fit to confer unrestricted powers on the Governorfor that purpose. The regulation in question is, in my opinion,within those powers. Sven if the purposes specified in section5 (1) are considered, it will be found that compulsory treatment iscontemplated by the Ordinance itself. For paragraph (b) of thatsub-section has provided for the making of regulations “ for theremoval of diseased persons to hospitals or other places for medicaltreatment, and for their detention until they can be dischargedwith safety to the public. ” The declared object of the removalof a diseased person to a hospital or other place is for medicaltreatment, and it is impossible to suppose that the medical treatmenthere contemplated is what the patient may like and not what themedical authorities may prescribe for the disease. If, then, com-pulsory treatment is authorized when a diseased person is removedto hospital or other place, there is nothing unreasonable or ultravires in requiring him to submit to the same treatment when he isonly isolated within an area declared an infected area. I am ofopinion that the objection on this point is not well founded.
The regulation 108 (/) is also objected to, because the provisionIn the regulations for declaring an estate to be an infected area isirregular. The generality of the powers of the Governor has alreadybeen noted, and in order to regulate and restrict the applicationof the rules made thereunder, regulation No. 103 is confined to anestate declared by the " proper authority ” to be an area iafectedwith anchylostomiasis, and by regulation No. 102 the PrincipalCivil Medical Officer is constituted the proper authority for that
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purpose, and is authorized to make the declaration by notificationin the Government Gazette. It is said that the Governor has heredelegated his power to the Principal Civil Medical Officer. I failto see that any power is delegated. The Governor must necessarilydepend upon the declaration of the medical authorities as to theprevalence of the disease in any estate, and there is nothing objec-tionable in the Principal Civil Medical Officer directly publishingthe declaration in the Government Gazette instead of making it passthrough an intermediate process.
For these reasons I think the acquittal of the accused is erroneous.The order is set aside, and sent back to be proceeded with in duecourse.
IMS.
Db Samfayo
S.
Sub-Inspec-tor of PoUeev. PeriaOarpen
Sent back.