. introduction of the evidence which he now relies upon and did not do so. Nor does he appear to have then suggested that Allison had ever made such a statement.
To permit this evidence now to be received after Allison's death would, in my opinion, be to lay the axe to o'DELL. the root of a well recognized and salutary rule of law and evidence.
I concur, therefore, in the opinion of the Chief Justice, that the verdict should have been in favour of the defendants upon the evidence which was admissible and the findings of the jury having relation to that evidence, and that our judgment should now be in favor of the defendants upon the issues joined.
Sir W. J. C.J.-The real and only point in controversy in this case is, as to the right of the Canadian Pacific railway Co. to extend, or to make branches extending, their line in British Columbia beyond Port Moody.
The Canadian Pacific Railway claim the right to do so under their special Act of 1881.
Section 22 of that Act, first schedule, is as follows:
And under the title " powers" in the schedule annexed it is provided by section 17 :
Therefore, the provisions of the consolidated Railway Act of 1879, so far as applicable, must be read as in aid of the undertaking authorized by the act of 1881, and as subordinate thereto, and be held to operate only in so far as they are not inconsistent with, or contrary to, the provisions of the act of 1881; and when they are inconsistent or contrary the provisions of the act of 1881 must prevail.
It is, therefore, to the act of 1881 litchie that we must look to ascertain what the Canadian
Pacific Railway can do with reference to branches or extensions.
The grave mistake into which, with all respect, I think the learned Chief Justice has fallen is, in my opinion, in not reading the consolidated Railway Act as entirely subordinate to the Canadian Pacific Railway Act of 188 1. This is strongly indicated in the view which the learned Chief Justice expresses with reference to the right of the Canadian Pacific Railway to construct branches.
He thinks the railway is confined to six miles by virtue of the act of 1879. But by section
14 of the contract included in, and made part of, the act of 1881 it is provided:
From which it is abundantly clear that the right conferred on the railway company from time to time to lay out, construct, equip, maintain and work branch lines of railway from any point or points along their main line of railway to any point or points -within the territory of the Dominion is entirely inconsistent with any such limitation; and, therefore, I think the company had a right to construct a branch from any point or points on the railway to English Bay as well as to any other point or points within the territory of the Dominion.
It would, indeed, to my mind, be a most curious and extraordinary anomaly if the company could run a branch starting at any point along the railway, say one, two or half a dozen miles from Port Moody to Coal Harbor or English Bay, and could not construct a branch from Port Moody to the same place, PACIFC both being, practically, extensions of the railway to the Hwy. Co.
same point. In other words, that they could start from any and every point along the railway and could not Ritchie C.J. start from any and every point on the railway, a distinction, I humbly think, without a difference.
So, in like manner, I cannot accede to the learned Chief Justice's construction of section 15 in schedule A in the act of 1881.
By section 4 of the act of incorporation it is provided that:
All the franchises and powers necessary or useful to the company to enable them to carry out, perform, enforce, use and avail themselves of every condition, stipulation, obligation, duty, right, remedy, privilege and advantage agreed upon, contained or described in the said contract are hereby conferred upon the company.
And the enactment of the special provisions hereinafter contained shall not be held to impair or derogate from the generality of the franchises and powers so hereby conferred upon them.
And section 14 provides that:
The company shall have the right from time to time to lay out, construct, equip, maintain and work branch lines of railway from any point or points along their main line of railway to any point or points within the territory of the Dominion, provided always, that before commencing any branch they shall first deposit a map and plan of such branch in the Department of Railways. And the Government shall grant to the company the lands required for the road bed of such branches, and for the stations, station grounds, buildings, work shops, yards and other appurtenances requisite for the efficient construction and working of such branches. in so far as such lands are vested in the Government.
And by the 15th section of schedule A it is provided: That the company may lay out, construct, acquire. equip, maintain and work a continuous line of railway of the guage of four feet eight and one-half inches, which railway shall extend from the terminus of the Canada Central Railway near Lake Nipissing, known as Callander station, to Port Moody, in the Province of British Columbia (and also other branch lines not material to the present inquiry); and also other branches to be located by the company from time to time as provided by the said contract, the said branches to be of the guage aforesaid; and the said main line of railway and the said branch lines of railway shall be commenced and completed as provided by the said contract; and together with such other branch No doubt, under the contract provided for by the 3f*OR. Act of 1881, the Canadian Pacific Railway Company obligated themselves to build only to Port Moody, but I can discover nothing in the act to indicate that Port Moody was to be the actual and final termination of the Canadian Pacific Railway ; in other words, was to be a fixed terminus, with no powers of extension under the legislation of 1881.
On the contrary, the 15th section indicates, in my opinion, directly the contrary, and shows, I think, conclusively that the terminus of the Canadian Pacific Railway, was not to be fixed at Port Moody, but was to be extended by branches and extensions to be constructed or acquired, if required by the exigency of the road or deemed by the company necessary for the purpose of effectually connecting the waters of British Columbia with the railway system of Canada; and when so constructed by the Canadian Pacific Railway the road, not to Port Moody, but the road, with such branches and extensions when constructed or acquired, was to constitute the Canadian Pacific Railway, and the construction of which branches and extensions was contemplated by, and provided for in, the act of 1881 and the schedules thereto annexed. The learned Chief Justice repudiates this view, and thinks this section gives the company no power to construct any extension whatever, and no power even to acquire any extension west of Port Moody.
But to arrive at this conclusion he has to get over the words, and any extension of the main line of railway that shall hereafter be constructed or acquired by the company shall constitute the line of railway hereinafter "called the Canadian Pacific Railway."
This he accomplishes, and can only accomplish, by practically reading them out of the statute, which he does after this fashion.
He says the word " constructed " in the 15th section must be taken to mean "lawfully constructed;" that is to say, under some subsequent act if the company choose to apply for and obtain it. This certainly, as a mode of construction, has the merit of Ritchie novelty, and suggests the pertinent question: If no authority was conferred, or intended to be conferred, by these words, and authority to construct was only to be obtained by subsequent legislation, and if, therefore, they are to have no effect in the statute by which they were enacted, why, or for what possible purpose, or to accomplish what, were they inserted?
I confess myself unable to answer this, to my mind, most reasonable inquiry. No court has a right to reject, or refuse to give effect to, the words of the legislature, if a reasonable construction can be placed on the language used, and, therefore, I am constrained so to construe this statute as to give effect, if possible, to this, to my mind, very plain language of the legislature, and I can give no effect to it if it was not the intention of the legislature to authorize such branches and such extensions of the main line as might be found expedient to complete and make available this great national undertaking, the construction of a railway connecting the sea-board of British Columbia witti the railway system of Canada, a construction not only reasonable but one which, in my opinion, harmonises with the subject of the enactment and the object which the legislature had in view. The learned Chief Justice has rightly said, as applicable to this case, that there is no magic in words, or I should say in names, so that whether this is called or treated as a branch or as an extension (for I can see no reason why a branch may not be an extension or an extension a branch if consistent with the general scope of the act) the railway company have, under the act of 1881, authority for its construction, subject, of course, to a compliance with all the provisions applicable to the expropriation of lands and other matters connected with the construction and extension of the road and its branches.
The Chief Justice says, with reference to the conclusion he has arrived at, " I do so, necessarily, with regret, because I think the decision contrary to the inter- Ritchie CJ. ests of everybody in the Province including the plaintiffs." It will therefore, no doubt, give much pleasure to the Chief Justice, as it is most satisfactory to me to feel, that this court has been enabled to arrive at a conclusion which must be gratifying to everybody within the Province, and which ought to be equally so to the plaintiffs. It is not often, in controversial litigation, that it is made apparent that the interests of all parties, the public included, are identical, and are secured by the judicial determination of the controversy.
J.-Concurred.
J.-I think the point is. very clear.
Canadian Pacific Railway Act says that the Consolidated Railway Act of 1879 shall be applicable to the company in so far as it is possible, and as far as its provisions are not repugnant.
The question is whether we find authority in the Canadian Pacific Act to extend their line of railway, and this seems to me to be given in such plain words that I cannot see how the contrary can be suggested.
By the 14th section of the C. P. R. Act the company is. (His Lordship here read the section) (1).
I think there is very little room for interpretation. The reasoning of Mr. Justice Gray is so convincing that I cannot but adopt his conclusions.
J.-I am of opinion that this appeal should be allowed for the reasons given by the Chief Justice.
HENRY J.-I intended to read the 15th section of the charter of the Canadian Pacific Railway Company, but as it has been so generally referred to I need not do so. must say that I fail to see the power which the company ascribe to it. It does no more than give them corporate Henry J. power to extend their line to the eastward as I shall endeavor to show hereafter, and this was necessary because of the power given by the act to acquire lines of rail way east of the eastern terminus and consequently, under the head of corporate powers, the necessary authority was given. Now under the head of " powers by section 17 it is declared that:
And by section 15 the company may lay out, &c., By the 1st section of the schedule to the special act the line is divided into 4 sections, the western section from Kamloops to Port Moody.
The latter after much consideration had been finally adopted as the western terminus. Section 15 then was not intended for any extension westward; but " the Canadian Pacific Railway" was constituted to be the line east from Port Moody to Callendar station, including named branches and any extension eastward under the provisions of section 25, and the provisions of the latter section account for the provisions in section 15, that the extension afterwards constructed or acquired by the company should be included as part of the main line. I cannot come to the conclusion that anything else was meant. western terminus was a subject long debated and finally decided by the legislature in the same act to be Port Moody.
That certainly helps us to the conclusion that the provision in section 15 before mentioned was 'made VOL, Xt[L] SUJPREE COIURT OF CANADA.
solely to provide corporate powers for any extensions iM6 eastward of Callendar, that by construction or purchase the company should acquire.
o. The power given by the 14th section is to build
"branch lines of railway from points along their main line."
No person will assume that building branch Henr' J. lines along the main line means an extension from the terminus virtually making another terminus.
Then sub-section 19 of section 7 of the Consolidated
Railway Act, 1879, provides that:
Unless these words are to have.- no effect, or unless special power is given by the act, I cannot understand how it can be said that the company have power to build their proposed extension and change of terminus. The question therefore is, as to the termini of the road, and the right of extension from there. To the eastward the extensions are provided for, but I can see nothing but the bare provision necessary in section 15 to include corporate powers over extensions west.
By the sub-section 2, of section 2 of the Consolidated
Railway Act of 1879, it is provided that:
part And by section 3 it is enacted that :
part it The provision of section 3 was adopted by Parliament in the special act by section 18, which provided that the 11th sub-section of section 8 of the act of 1879 should not apply.
Section 21 of the charter provides that sub-sections 1 and 2 of section 22 shall not apply, and by section 23 several other sections and sub-sections R*r.
.
are provided not to apply.
With the provisions in subsection 2 of sections and just mentioned, which, it HenrY J. must be presumed were under the eyes of whoever prepared the special act for the government and of the company and the legislature, can it be imagined that any variation from the provision of section 19 before mentioned would not have been expressly made if such were intended ?
Section 22 of the special act also provides that the provisions of the Railway Act of 1879 shall apply to the Canadian Pacific Railway, in so far as applicable to the undertaking, and in so far as they are not inconsistent with or contrary to the provisions of their act of incorporation.
Now, I cannot perceive that there is any inconsistency if we look at the true meaning of the whole special act and read it with the provisions of the act of 1879. The latter enacts, section 2, that its provisions shall apply to all companies "unless they are expressly varied or excepted by the special act," and " shall be incorporated with the special act, form part thereof and be construed therewith as forming one act."
I feel bound, then, to read the two acts as one and to give effect as far as possible to every part of them. I seek in vain for any express inconsistency so far as relates to any extension of the main line west from Port Moody. If we had not before us in bold relief the fact that the legislature had fixed the terminus at Port Moody, and that section 25 had not been enacted, we might speculate as to what was meant by the words, " and any extension of the said main line of railway that shall hereafter be constructed or acquired by the company " in section 15, but with the knowledge of the legislature that the western terminus had been declared, and that the act had made provisions for extensions eastward, and that' the line CMUIII from Kamloops west to Poit Moody was not to be built or completed by the company, but by the government and handed over when so completed 1 to the com pany, it would be, in my opinion, straining the Heiwy .1. force and meaning of the provision in section 15 of the charter, intended, in my opinion, to confer corporate powers only, to construe them as giving authority to extend the line ten miles from Port Moody, the settled terminus, to Vancouver city. I have shown that the provisions of section 25 required the provision in section 15 to give corporate powers to include extensions eastward as a part or parts of the Canadian Pacific
Railway.
Section 4 of the charter is, in my opinion, but the usual provisions of a company's charter. Every company acquires similar franchises and powers, but the provisions in that section cannot, in any way, extend the operation, in other respects, of the charter.
Under the act of 1879, the company might build branches from any station including the terminal ones, but under the special act the company could not build a branch from either terminal stdtion, as the right to do so is limited to start from points along the line.
The company in this case occupies this position, that if it invokes the power under the former the right, I take it, must be limited to six miles; for they cannot invoke one part of the provision made part of their own charter by express legislative enactments and reject the limitations. Some one has said that the act must be construed as giving all that is beneficial to the company and discarding what is not so.
I cannot see my way clear to adopt that mode of construction.
In my humble opinion the bitter must go with the sweet.
Rights and privileges are given to companies, but they are to be enjoyed only by yielding statutory rights and privileges to others.
The companies are given facilities for carrying out their chartered rights, but duties and ! responsibilities are annexed which must be performed and acknowledged.
Companies must keep within the powers conferred by their charters, and if they exceed Henry J. them they must be answerable for wrongs coimitted. I am of the opinion that the company in this case had no legal right to extend the terminus from Port Moody to Vancouver City. I would have preferred to have been able to arrive at a different conclusion, as it is, no doubt, largely in the public interest that the road in question should b3 speedily finished, and a loss to the company to be delayed in finishing it. In differing from my colleagues, I have at least the satisfaction of feeling that, if I am wrong in my views, they will not affect the result.
I regret to have been obliged to explain my views without sufficient time to do so as as I could have wished. It was desirable an early decision should be given where such large public as well as private interests are involved.
I will only then add that I have read very carefully the judgment of the learned Chief Justice of the court below and fully colncur with him in the reasons he has given for deciding as he did, in favor of the respondent. Entertaining the views I have expressed, I think the appeal should be dismissed.
J.-It is, I think, of no importance whether the work proposed to be constructed by the C. P. Ry. Co. be called a " branch " or an " extension."
I can see no difficulty in a "branch" line of railway being constructed from the extremity of a main" line. But whatever may be its most appropriate designation, I concur in the opinion that the company have power under their Act of Incorporation to construct it, subject to the provisions of the Consolidated Railway Act as
Statutes and regulations cited
-
Unresolved citations
- Section 22
- section 17
- section 15
- section 4
- section 14
- Section 15
- section 25
- section 19
- section 7
- section 2
- section 3
- section 18
- section 8
- Section 21
- sections 1
- 2
- section 22
- section 23
- Section 4