Judgment of the Court
J.-It is not improbable that the fuller discussion before this court has directed attention to some features of the provincial legislation respecting road companies which were not made so prominent in the argument of the interlocutory motion before the Court of Appeal. Since the argument before us I have carefully examined the various statutes, and with the greatest respect for the opinions of the learned judges who concurred in the judgment which is in fact, though not in form, the subject of this appeal, I find myself unable to adopt their conclusion.
I interpret the statutes in very much the same way as did the divisional court of the Common Pleas Division and the learned Chief Justice of Appeal.
A short glance at some of the statutes will suffice to explain the grounds of my opinion.
I may observe that the terms " Charter " and " Act of Incorporation " seem to be used in the statutes interchangeably.
Whether any road companies in the province exist, or ever existed, by royal charter I do not know, but it is evident that from the act of 1849
(1) to that of 1890 (2) the terms are used indifferently to denote a private act of incorporation (3).
The private act 13 & 14 Vic. ch. 134, adopting for the Vaughan Road Co. the terms of the act of 9 Vic.
ch. 88, which incorporated the Albion Road Company of which the Vaughan Company was an offshoot, provided for the corporate existence and certain functions and powers of the company, but made no provision for the important subject-important as far as the public was concerned-of enforcing the proper maintenance and repair of the road.
In 1853 the act 16 Vic. ch. 190 was passed, joint That act recognized and dealt with two classes companies:
1st. Companies incorporated under general acts 2nd. Companies for which charters had been obtained s Jor which are otherwise described as having private acts of incorporation.
The 59th section of the act provided that certain enumerated sections and no other sections of the act should extend to companies of the second class. The excluded sections were those which regulated the powers and functions of corporations as bodies politic formed under general acts.
In the case companies having special acts of incorporation those things were provided for by the private acts. In excluding'the excluded sections the act of 1853 simply left each of those companies to live its own corporate life uninterfered with by enactments meant for companies of another class; but every provision of the'act which bore on the conduct of the enterprise which was the basis of the contract between the company and the public applied to all companies alike.
The sections that did not apply to companies which had special acts dealt with the subjects of the incorporation and ordinary corporate powers of companies (1); directors, shares, calls and actions for calls (2); the time within which works were to be completed (3); rate of tolls, width of tires, and intersection of roads (4); certain exemptions from paying toll (5); competency of officers and shareholders as witnesses (6); cure of informalities in the incorporation of some companies (1); and the reports which the directors were to make to the municipality
The subjects dealt with by the sections which applied to all companies alike may, in a general way, be thus specified
Expropriation of land and materials; arbitration ; borrowing money or issuing new stock to facilitate the extension of the works; union of companies; dealings J. with municipalities; tolls; repair of road; protection of road; recovery of fines, ; limitation of actions;
power of municipality to purchase the stock after years from completion of the work.
Some of the learned judges in the courts below intimated an opinion that these provisions thus made applicable, or, to use the language of the statute, " extended " to companies having private acts of incorporation, became in effect parts of those private acts, and would so remain even if the general act was repealed, just as if enacted by way of direct amendment of the private act, and it was so contended before us on the part of the respondents. I notice the contention merely in order to say that I do not accede to it. There is nothing in the force of the language of the statute or in the necessity of the case to indicate that such was the intention of the legislature. The legislature, having at the moment in contemplation certain artificial bodies created for certain purpose, laid down rules for their government as it might have done in the case of natural persons, and which rules it did in fact apply, in
1859, (3) to natural persons who purchased roads or other works at a sale under legal process.
In the individual's case the rules could create no natural right, nor did they enter into the essence of the legal entity so as to prevent their being changed or superseded by other general rules at the will of the legislature.
It will tend to clearness, and will do no violence to the act of 1853, to separate the two objects of the statute, which are not necessarily connected though they happen to be covered by the one document. One of these objects is the incorporation of the companies which I have classed as no. 1, and providing for their ordinary corporate functions.
Patterson J.
If we set on one side these companies of the first class, and range with them the companies of the second class, we have an array of corporate bodies undistinguishable from each other as legal entities, and differing only in the mode of their creation.
Over against this array of companies set the other part of the statute, containing the rules'which are to govern all the companies alike.
It is manifest that, in respect of these rules, any one of the companies is subject to the statute in the same sense as any other of them.
The respondent company thus comes literally within the act of 1890, being " subject to the General Road Companies Act," the provisions of the act of 1853 having, in the particulars in discussion, been carried forward by way of the 'Consolidated Statutes of 1859 and the Revised Statutes, 1877, to the Revised. Statutes, 1887, where they now appear in chapter 159.
In my opinion we should allow the appeal.
Appeal allowed with costs.