Compagnie pour l'Éclairage au gaz de St. Hyacinthe v. La Compagnie des pouvoirs Hydrauliqu

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RAGE AU GAZ DE ST. HYA- APPELLANTS; *Dec. 9.

CINTHE (PLAINTIFFS).................

AND

LA COMPAGNIE DES POUVOIRS

HYDRAULIQUES DE ST. HYA- RESPONDENTS. CINTHE (DEFENDANTS)...............

ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA (APPEAL SIDE).

THE CHIEF JUSTICE.-The appellant company was. originally incorporated in 1880, under the General Act, Consolidated Statutes (Canada), c. 65, for the purpose of manufacturing and selling illuminating gas in the city of St. Hyacinthe.

The municipal authorities of St. Hyacinthe were assenting parties to this incorporation.

On the 11th of January, 1881, the city council of St. Hyacinthe passed a by-law granting to the appellant company an exclusive right and privilege to manufacture and sell gas in the city of St. Hyacinthe, both for lighting the streets and public places and for supplying the citizens therewith, for the term of twenty-five years from the date of the by-law, and the appellants were thereby authorized to build gas works and to make use of the streets and public roads of the city for placing the pipes necessary for distributing gas.

In 1882 the persons then composing the appellant company under the first incorporation obtained from the legislature of the province of Quebec a special Act of incorporation, being the Act 45 Vic. 19. The first section of this statute enacted the incorporation under the same name of the shareholders of the former company, and declared that the real estate, franchises, and assets of every kind belonging to the company so formed should belong to the company incorporated by the act, and should form part of its property to all intents and purposes. The fifth section of this act is ST. HAin the following words:

All the powers and privileges conferred upon the said company, as organized under the said general act, either by the terms of the act itself, or resolution, by-law, or agreement of the said city of St. Hyacinthe, are hereby reaffirmed and confirmed to the company as incorporated under the present act, including their right to break up, The Chief dig and trench so much and many of the streets, squares, highways,

Justice. lanes and public places, within the limits of the city of St. Hyacinthe, and the adjoining parishes in the county of St. Hyacinthe, as may be necessary for laying down the mains and pipes required to make the necessary connections between their works and the premises of their patrons, doing no unnecessary damage in the premises, and taking care, far as may be, to preserve a free and uninterrupted passage through the said streets, squares, highways, lanes and public places while the said works are in progress, and in addition, it shallbe lawful for the company, in substitution for gas, or in connection therewith, or in addition thereto, to manufacture, use and sell electric, galvanic or other artificial light, and to manufacture, store and sell heat and motive power, derived either from gas or otherwise, and to convey the same pipes or wires, and with the same privilege and subject to the same liabilities are applicable to the manufacture, use and disposal of illuminating under the provisions of this act.

The city of St. Hyacinthe did not in any way consent to this legislation, and was no party to it.

The last mentioned act did not recite or refer specifically to the by-law of the 11th January, 1881, or to the agreement entered into thereby between the city of St. Hyacinthe and the original company, conferring the monopoly, as regards gas, therein mentioned.

Since 1882, up to the date of the action, the appellants had, to the exclusion of any other company, supplied gas for lighting purposes to the city and its inhabitants, and since 1887 they have also sold and supplied electric light.

17 t On the 16th February, 1894, on a petition presented by Antoine Morin, a by-law was passed by the city council of St. Hyacinthe, authorizing him, or any Company or firm which he might subsequently form, to make use of the streets and roads of the city for placing poles, wires and other apparatus necessary for the construction of a line for the sale of electric light _to the inhabitants of St. Hyacinthe.

The appellants protested against the adoption of this by-law.

Subsequently, Antoine Morin and his associates applied to the Lieutenant-Governor in Council, under a general act of the province, for letters patent incorporation, which were accordingly issued on the 19th of April, 1894, and thereby the respondent company was incorporated.

By the letters patent of incorporation the object of the respondent company was declared to be as follows: Upon their organization the respondenis proceeded to make contracts with individuals, citizens of St. Hyacinthe, for lighting their houses and places of business by electricity, and at once began to construct in houses and streets of -t. Hyacinthe a line and installation which at the date of the institution of the present action they were in process of completing. The appellants insist that, by the fifth section their special Act of incorporation of 1882, a like monopoly and exclusive privilege to furnish electric light was conferred upon them as was in terms conferred upon them by the by-law of the 11th January, 1881, in respect of gas.

The respondents' contentions are that the fifth section, according to its proper legal interpretation, does not extend the exclusive privilege, which the by-law assumed to confer as to gas, to electric lighting ; secondly, that the by-law itself was ultra vires; and thirdly, that if the construction of the fifth section of the Act of 1882 is such as the appellants insist the enactment itself was ultra vires of the Quebec Legislature.

I shall not have to consider the two last objections rouvo"a as I entirely agree with the courts below, which have both construed the fifth section of the Act of 1882 in the manner the respondents contend for.

I therefore confine my judgment exclusively to this question as to the proper meaning of the fifth section.

In the first place it is a most important consideration to be borne in mind, in the construction of this Act of the legislature, that it is a private Act to which the city of St. Hyacinthe was not a party, and which was not in any way assented to by it. It is none the less a private Act for the reason that it contains a clause declaring it to be a public Act

In Dawson v. Paver

Wigram V. C. says that:

And in Maxwell on Statutes (3) it is said that

The courts take notice that these Acts are obtained on the petition of the promoters, and in construing them treat them as contracts between the applicants for them and the legislature on behalf of the public, and the language in which they are expressed is treated as the language of the promoters, and the maxim verba fortius accipiuntur contra proferenten is applied to them; and the benefit of any ambiguity or doubt .

given to those whose interests would be prejudicially ' affected, especially when such persons are not parties to the Act nor before the legislature as assenting to it. And particularly is this so where exorbitant powers, such as a monopoly, are conferred.

Further, it has been laid down by as high an Thesie authority as could be quoted that:

Having referred to these general rules applicable the construction of private acts, I now proceed to examine the particular enactment in question, viz., the fifth section of.the appellants special Act of 1882. In the first place, as I have already said, there is no recital of the by-law of the 11th January, 1881, and nothing on the face of the act to show that the attention of the legislature was called to its terms, or that it was in any way brought to their notice. The general confirmation of privileges. conferred by the former general act, or by resolution, by-law or agreement of the city of St. Hyacinthe, contained in the first part of the section, would not, it is manifest, by itself confer any other exclusive right than that relating to the exclusive privilege, for twenty-five years, to light with gas. If the proposition of the appellants is correct, the monopoly which they claim as to electric lighting must be conferred by the subsequent part of the section, expressed in these words:

The question then is really narrowed to this: Must rouvomS we say that it was intended by the legislature by the words " with the same privilege " without more, and without having before them the by-law which defined the extent of the privileges as to gas, to grant to the appellants, for their own exclusive private profit and advantage, a monop oly of selling electric light in the city of St Hyacinthe for the term of twenty-five years ?

I am of opinion that but one answer is admissible to this question, that which has already been given by

Mr. Justice Gill in the Superior Court, and by the

Court of Queen's Bench. The purpose of the promoters in procuring their private act must be deemed to have been merely to extend their own powers, and to confirm existing by-laws and agreements

The grant of a new exclusive privilege of electric lighting was something entirely unconnected with these purposes, sormething which concerned not merely the appellants themselves, but which would operate very prejudicially against the interests of the inhabitants of the city

St. Hyacinthe, and which it is not to be presumed the legislature would have granted without their consent, or at least without hearing them. To construe the statute in the way contended for by the appellants would therefore work a great injustice, and would be in direct violation of the general principles of construction applicable to such legislation, already referred to. It is said that the word privilege " must necessarily mean an exclusive privilege to sell electric light, but I think that is not so, inasmuch as this word " privilege " can be referred to the privileges already conferred by the general act and by the by-law, and specified in the former part of the fifth section, viz., the privilege of breaking up, digging and trenching the streets, squares, highways, lanes and public places," and this interpretation is strengthened by the YoUI_ consideration that the "privilege" is coupled with a declaration that it is to be subject to the " same liabilities " as apply to the manufacture of gas, such liabilities being manifestly those before specified, viz., liabilities to take due care in exercising the privilege, to preserve a free passage through the streets, and to do no unnecessary damage.

I am of opinion that the appeal m-dst be dismissed with costs.

11acdougall.