Dinner v. Humberstone, (1896) 26 SCR 252

Supreme Court of Canada

Dinner v. Humberstone, (1896) 26 S.C.R. 252

Date: 1896-05-18

James Dinner and Others (Defendants) Appellants;

and                                                                           

William Humberstone (Plaintiff) Respondent.

1896: February 27, 28; 1896: May 18.

PRESENT :—Sir Henry Strong C.J. and Taschereau, Sedgewick, King and Girouard JJ

ON APPEAL FROM THE SUPREME COURT OF THE NORTH- WEST TERRITORIES.

Constitutional law — Municipal corporation — Powers of legislature— License—Monopoly—Highways and ferries—Navigable streams—By-laws and resolutions—Intermunicipal ferry—Tolls — Disturbance of licensee—North-west Territories Act, R. S. C. c. 50, ss. 13 & 24— B. N. A. Act s. 92, ss. 8, 10 & 16—Rev. Ord. N. W. T. (1869) c. 28—N. W. Ter. Ord. no. 7 of 1891-92, s. 4.

The authority given to the Legislative Assembly of the North-west Territories, by R. S. C. c. 50 and orders in council there under, to legislate as to "municipal institutions" and "matters of a local and private nature " (and perhaps as to license for revenue) within the Territories includes the right to legislate as to ferries.

The town of Edmonton, by its charter and by " The Ferries Ordinance" (Rev. Ord. N. W. T. c. 28) can grant the exclusive right to maintain a ferry across a navigable river which is not within the territorial limits of the municipality; and as under the charter the powers vested in the Lieutenant-Governor in Council by the Ferries Ordinance are transferred to the municipality, such right may be conferred by license and a by-law is not necessary.

A " club" or partnership styled "The Edmonton Ferry Company" was formed for the purpose of building, establishing and operating a ferry within the limits assigned in the license by the municipality granting exclusive rights to ferry across the river in question, the conditions being that any person could become a member of the club by signing tie list of membership and taking at least one share of $5 therein, which share entitled the signer to 100 tickets that were to be received in payment of ferry service according to a prescribed tariff, and when expended could be renewed by further subscriptions for shares ad infinitum. The club supplied their ferryman with a list of membership and

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established and operated their ferry, without any license, within a short distance of one of the licensed ferries, thereby, as was claimed, disturbing the licensee in his exclusive rights. Held, that the establishment of the club ferry and the use thereof by members and others under their club regulations, was an infringement of the rights under the license, and that the licensee could recover damages by reason of such infringement.

APPEAL from the decision of the Supreme Court of the North-west Territories, sitting in banc, which awarded the plaintiff damages for the disturbance of a ferry by the defendants and reversed the judgment rendered by the trial judge dismissing the action.

On 19th December, 1893, the municipality of the town of Edmonton, by writing under the corporate seal of the municipality, which recited that the municipality was by ordinance vested with all the rights, powers and authorities of the Lieutenant-Governor in Council or of the Lieutenant-Governor or of the Clerk of the Legislative Assembly, under the Ferries Ordinance, so far as regarded ferries operated to or from the north-westerly edge of the North Saskatchewan River, one of the boundaries of the municipality, agreed with the plaintiff to grant to him upon terms therein mentioned an exclusive license for the season of 1894 to establish and use two ferries upon said river between, the north or north-westerly banks within the limits of the municipality, and the opposite side of said river which was beyond the limits of the municipality, and to authorize him to collect tolls, and afterwards, in pursuance of said agreement, issued a license under the corporate seal granting the plaintiff exclusive rights to ferry within the limits and during the time specified. No formal by-law was passed by the council, but the agreement was authorized by resolution. The Saskatchewan River at Edmonton is a navigable river. The plaintiff maintained the ferries under said agreement and license. While plaintiff's license was still-

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in force the defendants established another ferry near one of those of the plaintiff, and maintained it without any license.

The plaintiff brought suit to restrain the defendants from operating or using the ferry so established by them, or any other ferry within the municipality during the time limited by the plaintiff's license, and claimed damages for the violation of plaintiff's rights by using such ferry.

Amongst the defences set up were the following :

That the municipality did not issue any license.

That it granted no exclusive privilege.

That it had no power to grant the alleged license.

That no by-law was passed to authorize the agreement or the issue of any license.

That the plaintiff had no authority to make any charge for ferrying across said river; and that the defendants' ferry was their own private property and was used only for the carriage of the defendants and their goods, and in doing so defendants were not interfering with any rights of the plaintiff.

The defendants had formed themselves into an association to establish and maintain the ferry complained of. There was no regular partnership agreement drawn up between them. Any person could join the "company" by signing the list of the association and taking at least one share of $5, which entitled him to 100 ferry tickets. Shareholders were entitled to as many hundred tickets as they held shares. "When a member had consumed all his tickets he could buy more shares and get more tickets. He was not confined to any number of shares. The money was paid sometimes before members got their tickets, sometimes when they got them and sometimes afterwards. Although the ferryman employed by the defendants had orders not to ferry any but members, those

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orders were not strictly adhered to and others crossed at various times.

"The Ferries Ordinance" was passed under the authority of the order in council of 26th June, 1883, made under provisions of "The North-west Territories Act of 1880," similar in effect to sec. 13 of "The North-west Territories Act," R. S. C. ch. 50. That order in council authorized the Legislative Assembly to legislate as to municipal institutions, subject to any legislation by Parliament theretofore or thereafter enacted, and generally, matters of merely a local or private nature. The statute provided that the powers of legislation conferred by any order in council should not at any time be in excess of those conferred by the 92nd and 93rd sections of "The British North America Act."

The section of the ordinance incorporating "The Ferries Ordinance" in the charter of the town of Edmonton is quoted in the judgment on this appeal.

The learned trial judge held that sec. 2 of "The Ferries Ordinance" which provides for the granting of exclusive rights to ferry upon navigable waters was ultra vires and therefore that the municipality could not grant the exclusive right to ferry on the Saskatchewan River because it is a navigable stream. He also held that the council had no power to authorize the collection of tolls without passing a by-law, and gave judgment for the defendants with costs. This judgment was reversed by the decision now appealed from and as the parties had agreed that, in the event of the appeal being allowed, the damages should be $500, the plaintiff was declared to be entitled to judgment for that amount with costs.

Armour Q.C. for the appellants. The plaintiff had no title to a ferry, but was entitled only to use the highway in common with other carriers.

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The ferry is outside the limits of the municipality. The municipality cannot act without a by-law. No tolls can be taken except when authorized by by-law.

The jurisdiction of each council is confined to controlling and licensing ferries authorized by them within their jurisdiction, and to passing by-laws allowing the collection of tolls thereon for periods not exceeding five years. Rev. Ord. N. W. T. ch. 8, ss. 57 and 60.

In Hodge v. The Queen ([1]) the regulation of the License Commissioners was held to be a law of the province. A resolution of a council can have no force as a binding enactment.

Bernardin v. North Dufferin ([2]) does not justify the decision of the court below. In that case there was no power and no practical way to put the parties in stalu quo; here, money compensation would do so. There, the agreement was executed; here, it is executory as regards others than the parties. Here there is the creation of a right. Primarily, the sovereign could by letters patent have granted the right, and it would have been created and passed to the grantee by the same Act. The sovereign had and has no other way of creating franchises or making binding inhibitions unless authorized by statute. In the legislature an Act would have been necessary, and in a municipality a by-law. Jones v. Fraser ([3]); Hill v. Tupper ([4]).

The grant of a ferry differs essentially from a private right granted by the owner of the soil. The essence of the whole grant of a ferry is that all others than the grantee are thereby prohibited from exercising their common law right of carriage by water; and the grant

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must, therefore, be in the form of a binding law. Mayor of Nottingham v. Lambert ([5]).

 In the case of The Abbot of Strata Mercella ([6]), it appears that the sovereign does not possess as distinct properties all the ferries that lie in his grant, but can by his grant create a ferry, and it then becomes a franchise. The municipality must, therefore, properly establish a ferry by a binding legislative act, and then may grant license and control it, but they cannot act by agreement and license. Particularity should be observed, because a ferry is a monopoly in derogation of the common public right to navigate a river, and the instrument granting the right must be strictly construed. Letton v. Goodden ([7]).

The incorporating ordinance does not expressly give power to establish a ferry outside the town limits. See Macleod v. Attorney General of New South Wales ([8]); Shields v. Peak ([9]). A ferry, being a highway, must be totally within the limits of the municipality; otherwise it cannot be established or controlled by the council, except by special authority. Re McDonough ([10]). The town of Edmonton could not control or pass by-laws or regulate, except as to the landing on the Edmonton side. The control must cease where the authority ceases. Kerby v. Lewis ([11]). Control is concurrent and commensurate with the right of authorization and license; the right of authorization and license is tested by the right to control and the right exists only within the limits of the municipality.

The town of Edmonton could not establish a toll road extending into another municipality or crown or public lands, nor create a highway on water which lies outside its limits. Courts are jealous of claims to levy tolls. Truman v. Walgham ([12]).

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The ferry is a highway, and thus not within the jurisdiction of the local legislature, nor properly established if it is. See Letton v. Goodden ([13]); Hopkins v. Great Northern Railway Co. ([14]); Pain v. Patrick ([15]); Dixon v. Curwen ([16]); Woolrych on Waters ([17]). By 38 Vict ch. 49, s. 7, s.s. 4, power was given to the Lieutenant Governor in Council to make ordinances respecting highways, but by 40 Vict. ch. 7, s. 3, section 7 of that Act was repealed, and the topics of legislation were thereafter defined by order in council. All the topics in the Act are not included in the order in council, and highways have been omitted. By 43 Vict. ch. 25, the North-west Territories Acts were consolidated and amended, and the power to legislate was continued to be regulated by order in council. Now, although the order in council was then in force assigning municipal institutions to the local legislature, there appear in the Act of 1880, special provisions respecting highways by section 91. The management and sale of public lands has never been assigned to the territories, and the retention of the lands by the Dominion necessitated the retention of the power to lay out and establish highways thereon.

Parliament never gave power to the local legislature to open, close, or establish a highway, and the local legislation is ultra vires in so far as it professes to establish a new highway, or to prohibit the public from using an existing one except on payment of toll, and the Lieutenant-Governor had no right to delegate his authority to the legislature or to a municipal council. Mayor of Nottingham v. Lambert ([18]).

It is clear from the British North America Act, sees. 91 and 92, that ferries are neither of a local nor private

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nature, nor within municipal institutions, if the special clause sec. 92, s.s. 10, applies to ferries. A matter of a "local or private nature" sec. 92, s.s. 16, is not a "local work or undertaking" under s.s. 10, and the same remark applies to s.s. 8, respecting municipal institutions. If the power to deal with ferries is included in the power of making ordinances respecting local works and undertakings, then that power was never given to the local legislature.

By the British North America Act, 1871, the Parliament of Canada was given power to "make provision for the administration, peace, order and good government of" the territories, and has thus equal power with the Imperial Parliament, and is not bound to observe the division of legislative authority observed in the British North America Act. , In the enactment providing for the government of the territories, the powers to be allotted by order in council shall not be in excess of those conferred by the ninety-second section of the British North America Act, 1867, upon the legislatures of the several provinces. By section 91, s.s. 13, British North America Act, " ferries between a province and any British or foreign country, or between two provinces," are assigned to the Parliament of Canada ; while by section 92, s.s. 10, " local works and undertakings other than such as are of specified classes, are assigned to the local legislatures." In the Territorial Act of 1875, and the orders in council under succeeding Acts, the topics assigned to the territorial legislature are taken mutatis mutandis from those enumerated in section 92 of the British North America Act, but the local works mentioned in subsec. 10 are not included. Ferries primarily fall within navigation, and the retention of the power by the Dominion is clear. This agrees also with Dominion legislation as to highways in the territories.

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The appellants' operation of their own boat is not a disturbance of the plaintiff's ferry. They formed a syndicate to acquire a boat for their own use. All members subscribing shares were entitled to cross in the boat, and admitted by tickets. A list was given to the ferryman so that he could identify the owners. Tickets were also issued to members. A stranger crossed on the boat but did not pay anything. Orders were given not to allow strangers to cross, but some persons who came down the grade to the river and could not turn back were carried free. Defendants were not plying for hire, but carried themselves and their own goods only, although some persons were accidentally carried free. Under the circumstances that is no disturbance. Ives v. Calvin ([19]). Every one may use his own boat for crossing the river. The essence of a ferry is not to prohibit others from navigating a river, but that the owner may prevent others plying for hire within a reasonable distance and to the same points. Newton v. Cubill ([20]); Dixon v. Curwen ([21]).

Taylor Q.C. for the respondents. No one of the appellants was interested in the business of any other of the appellants in connection with which such appellant used the club ferry.

The legislature has jurisdiction as to “municipal institutions in the territories," and on all local or private matters. Ferries are necessary parts of municipal institutions. See Reg. ex rel. McGuire v. Becket ([22]).

The words "municipal institutions" in the provinces include all powers vested in municipalities at the time of confederation, with the power to extend, vary or alter the laws passed under those powers

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Re Harris and The City of Hamilton ([23]); Three Rivers v. Suite ([24]).

The power to authorize municipalities to license is unrestricted. Russell v. The Queen ([25]). See also subclause 4 of the order in council of 26th June, 1883.

The interpretation is established by sec. 91, British North America Act, s.s.13, exactly as the Citizens' Insurance Co. v. Parsons ([26]) limits "Regulations of Trade and Commerce." See Longueuil Navigation Co. v. The City of Montreal ([27]).

The exclusive license insured better service and was a regulation in the public interest. This view is upheld in Poulin v. City of Quebec ([28]); Griffith v. Rioux ([29]); Blouin v. The City of Quebec ([30]).

A prohibition is a regulation. The City of Fredericton v. The Queen ([31]).

The words "navigation and shipping "mean only" the right to prescribe rules and regulation for vessels navigating the waters of the Dominion," being the sense in which they were used in the several Acts of the Imperial Parliament relating to navigation and shipping. Allen C.J. in Mc Millan v. Southwest Boom Co. ([32]). The words "navigation and shipping" cannot refer to ferries, otherwise s.s. 13 of sec. 91, British North America Act, would not have been inserted.

But a ferry such as that in question, with a cable fastened on mainland on each side of the river, is not a part of "navigation and shipping" in any sense of these words. It is a local matter or institution. Taschereau J. in Queddy River Driving Boom Co. v. Davidson ([33]);

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Regina v. Mohr ([34]); Macdougall el at. v. The Union Navigation Co. ([35]); Normand v. The St. Lawrence Navigation Co. ([36]).

A by-law is necessary only when legislation is necessary. Beach on Public Corporations ([37]). See "Ferries Ordinance" secs. 11, and 3, 4, &c. The 59th and 60th sections, Revised Ordinances ch. 8, read together embrace only a class of ferries within the limits of municipalities and not requiring a special statute to pass their control to the municipality such as was required in respect to the ferries in question. Section 60 does not state by what means licenses can be granted. This ferry is within the control of the Lieutenant-Governor not being wholly within any municipality. The powers of the Lieutenant-Governor and Assembly with respect to the same have been transferred without reference to the municipal ordinance, and form a distinct subject in a distinct statutory position, a special municipal power and duty limited, not by the municipal ordinance, but by "The Ferries Ordinance," which constitutes a sufficient by-law in itself. Action by by-law is permissive, not imperative. Bernardin v. Municipality of North Dufferin ([38]), particularly at page 618, per Grwynne J. There is nothing which prohibits the council from exercising their jurisdiction in any other way. The agreement and tariff is under the corporate seal with signatures of mayor and clerk. This was a by-law of itself for any resolutions or orders under the corporate seal and signatures of mayor and clerk are by-laws Beach on Public Corporations ([39]). Harrison's Municipal Manual ([40]); Wilson v. West Hartlepool Railway Co. ([41]).

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The tolls are a necessary incident to the ferry. Washburn Real Property ([42]).

The ferry is an infringement of the respondent's ferry, a contiguous and injurious occupation; Newton & Cubitt ([43]); and it is of no avail to show that they carried gratuitously. Burford v. Oliver ([44]); Blissett v. Hart ([45]); Newton v. Cubitt ([46]).

To evade payment of toll is a disturbance. Mayor of Brecon v. Edwards ([47]) ; Ives v. Calvin ([48]), was decided upon a provincial Act, which accords any individual the special privilege to use his own boat or ferry for his own use and that of his business, a privilege not given here.

The judgment of the court was delivered by:

KING J.—The respondent who claims an exclusive ferry across the North Saskatchewan at Edmonton, brought his action to restrain the appellant from disturbing him in his right, and also sought to recover damages for past disturbance.

The appellants contended that they had, in point of fact, only carried their own property, etc., and further contested the right of respondent upon two principal grounds; first, that the municipality of Edmonton, through whom the respondent claimed, did not have the power of granting exclusive ferry rights either at all or at least in respect of the ferry in question ; and secondly, that if they had the power, they had not exercised it according to law.

The learned judge before whom the case first came decided in favour of the appellants, upon both of these latter grounds. Upon appeal to the Supreme Court of the North-west Territories in banc, the judgment was

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set aside upon all grounds; and, it having been agreed during the hearing that in case of the appeal being allowed the plaintiff's damages should be fixed at $500, judgment for that amount was entered for the plaintiff below, the present respondent.

From this judgment there is an appeal to us, which was argued by Mr. Armour Q.C. for the appellants, and by Mr. Taylor Q.C for the respondent.

The ferries in question were two ferries between the north or north-westerly edge of the North Saskatchewan River where it forms the southern boundary of the town of Edmonton, and the opposite side of the river. These ferries were operated during the open season of 1893, by the respondent, under license from the municipality, and were what are known as cable or wire ferries. In such ferries the vessel is propelled by the force of the current acting upon her while held at an oblique angle to the current, by ropes leading from the two ends of the vessel to travellers running upon the main wire or cable stretched across the river. For the ferry privilege the licensee paid a license fee to the town of about $600.

In December, 1893, the respondent applied for a license for 1894, and an agreement was entered into by which, for certain considerations, the municipality agreed to license an exclusive ferry to respondent, who on his part agreed to run the ferry. Afterwards a formal license under the corporate seal for the year 1894 was granted to respondent, in terms of the agreement which was annexed to the license, and to it also was annexed, as part of it, a tariff of tolls passed by the municipality. The respondent duly performed his part. No by-law was passed by the municipality establishing a ferry, granting the license, or authorizing the tolls, but what was done as above stated was done by resolution of the municipal council and by the

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formal agreement and license referred to, which were entered into by resolutions of the town council.

It will be convenient first to consider the question raised as to the power of the municipality to grant licenses for exclusive ferry privileges, either at all, or in the particular case.

Ordinances of the Legislative Assembly of the North-west Territories have in terms conferred this power upon the municipality in certain cases. The appellants contention Upon the point is twofold. First they say, that this particular case is not within the authority, and next, that the legislative assembly has not the power in any case to legislate upon the subject of ferries in the way of giving exclusive rights.

As to the second point first. The legislative powers of the assembly are derived through the Parliament of Canada. By the North-west Territories Act ([49]), the Governor General in Council was authorized to confer upon the Legislative Assembly of the Territories powers of legislation, provided that the same should not be in excess of those conferred upon the provinces by ss. 92, 93 of the British North America Act.

Under this authority orders in council were passed, conferring upon the Legislative Assembly of the Territories the power to legislate (amongst other things) respecting municipal institutions in the territories, subject however to any legislation by the Parliament of Canada theretofore or thereafter enacted, and generally respecting matters of merely a local or private nature in the territories. Power was also given to legislate respecting the issue of shop, auctioneer and other licenses in order to the raising of a revenue for territorial or municipal purposes. It may fairly be considered that, primâ facie, terms taken from sec. 92 of the British North America Act to denote the sub-

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jects of legislative authority of the territories bear the like meaning as in that Act.

Mr. Armour contended that as ferries ordinarily lie in the sovereign's grant, they are not to be deemed as coming either within the terms "municipal institutions" or "matters of a local or private nature." It is clear that under the British North America Act the right of establishing ferries is vested in the provinces, excepting ferries between a province and any British or foreign country, or between two provinces, which, by subsec. 13 of sec. 91, are expressly named as subjects of Dominion legislation. Longueuil Navigation Co. v. Montreal ([50]), per Fournier J. The power, therefore, must dwell in some of the clauses of sec. 92 of the British North America Act. Mr. Armour thinks it amongst the "local works and undertaking" of sub sec. 10 of sec. 92, a subject that is not included amongst the powers conferred by order in council upon the Legislative Assembly of the Territories.

Possibly provisions for working a ferry might be brought within the exercise of such a power, but it does not follow that this or the subject of a ferry license might not be more suitably found under other branches of legislative authority. If an organized ferry may be a local work and undertaking, why may not the right of ferriage be a matter of a local nature ? I see nothing more incongruous with the proper notion of a ferry in the one case than in the other. If the fact that a ferry prima facie lies in the sovereign's grant prevents it being a proper subject of municipal concern, or a matter of a local nature, it would equally seem to prevent it from being a local undertaking.

In a country such as this, and the same applies with greater force to the sparsely settled territories, it would seem to be a very pressing matter of local concern, that

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ferry privileges should be given to induce persons to provide the necessary facilities for crossing the numerous rivers that exist.

That the term "navigation" as used in sec. 91 of the British North America Act does not extend to all exclusive rights of ferriage (as supposed by Mr. Justice Rouleau) appears manifest from the special reference to certain ferries as subjects of Dominion legislation under subsec. 13 already referred to.

Then it is argued that as ferries are forms of highways, the retention by the Dominion, in its legislation, of certain powers over highways in the territories extends to the ferries as well. Assuming that the powers of the Dominion over the highways of the territories are as contended for, ferries are a kind of highways which have their peculiar incidents, and one would expect to find them dealt with in a way to indicate that they were included under the designation of highways if it was intended to except them from a general grant of power. I conclude therefore that under the Dominion Act, and the orders in council thereunder (also perhaps under power to license for revenue) the legislative assembly has power to legislate on the subject of ferries.

Next, as to the contention that the ordinances of the legislative assembly have not authorized the municipality of Edmonton to grant an exclusive ferry across the Saskatchewan.

To understand this, it is necessary to recollect that the town is bounded on the river by its northern bank, and that the river is not at all within its territorial limits. It is contended that the power of the municipality to license ferries is confined to ferries within its limits.

By the ordinances of the North-west Territories, it is declared that "municipalities may control and license

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ferries and bridges erected or authorized by them within their jurisdiction," etc. And this provision of the general municipal law is by reference incorporated in the ordinance incorporating Edmonton. But, besides this, there is by the Ferries Ordinance power given to the Lieutenant-Governor in Council to issue licenses for the establishment of ferries upon any river or stream or navigable water in the territories granting the exclusive right to ferry over the same. Certain conditions and duties are imposed, which will be hereafter referred to. Sec. 4 of the ordinance incorporating the town is as follows:

Immediately after the coming into force of this ordinance all the rights, powers, authorities, duties and privileges of the Lieutenant-Governor in Council or of the. Lieutenant-Governor under and by virtue of the Ferries Ordinance * * shall become and be vested in the municipality hereby erected in so far as regards any ferry or ferries now or at any time hereafter operated to or from any place or places on the north or north-westerly edge of the North Saskatchewan River where it forms one of the boundaries of the municipality.

It therefore seems clear that, in addition to the ordinary ferry rights and powers given by the general municipality ordinance to this and other municipalities, to control and license ferries authorized by them within their jurisdictions, there is the further power given to the important municipality of Edmonton to possess and exercise all the rights, powers and authorities and privileges of the Lieutenant-Governor in Council, or of the Lieutenant-Governor in respect of ferries to or from any place or places on the north or north-west edge of the river, and therefore outside of the territorial limits of the town, while at the same time the municipality is made subject to all the duties of the Lieutenant-Governor in Council or Lieutenant-Governor in respect of the same.

In view of these express powers the argument from the restricted words of the general municipality Act

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entirely fails. Mr. Armour sought to limit the ferries which the municipality might license under these added powers to ferries having both terminal points upon the northern side of the river in front of the town limits. This would be a very strained construction of what on the face appears to have been designed as a liberal and useful concession, and would deprive it of all practical value, and besides (as pointed out by Mr. Taylor) cable or wire ferries are mentioned in the ordinances, and such ferries admit of operation only across rivers. The result as to this is, that there was power in the municipality to grant a license of an exclusive ferry across the Saskatchewan having a terminal point at the southern boundary of the town.

The remaining question, and the one of most doubt, is as to whether the town exercised its power in a way to confer the right.

It is contended by Mr. Armour, in an argument of much force, that a license of exclusive ferry, in waters open as of right to all, imports not only a grant of privilege to the licensee, but also a restraint upon, or prohibition of, the right of all others, and he contends in effect that at some stage in the creation of the ferry or granting of the license there must be a legislative act to take away the public right.

Granted; but the legislative act is found in sec. 4 of the ordinance incorporating the town of Edmonton read in connection with the provisions of the ferry ordinance therein referred to.

By the ferry ordinance the legislative assembly gave to the Lieutenant-Governor in Council the power to issue ferry licenses, giving the exclusive right to ferry in any of the waters of the territories; and then the legislative assembly transferred these powers in the fullest way, and by a variety of expressions covering all shades of meaning, to the municipality of

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Edmonton, so far as regards ferries on the Saskatchewan that were or might be operated to or from any place or places on the north or north-westerly edge of the river where it forms one of the boundaries of the municipality, i.e. ferries going or coming from or to the town. What are transferred are "all the rights, powers, authorities, duties and privileges" of the authorities referred to in reference to such ferries.

It seems to me that all that the municipality needed to do under this was to do what the prior authority might have done, i.e. to issue the license, observing of course the conditions which the ordinance imposed upon licenses issued by the Lieutenant-Governor in Council, amongst which was that the time and the particular limits of the ferry should be described in the license, and it was also provided that a maximum rate of tolls should also be expressed in the license. It has not been contended that there was a failure in any of these particulars, but it is urged that the tolls ought to have been established by by-law. Of course the municipal council would need to exercise its judgment as to the limits of the particular ferry, the tolls, &c, but the ordinance does not say that this should be done by by-law, but upon the contrary, declares a mode of procedure, viz., that it be expressed in and through the license It is sufficient to get the authenticated act of the municipality. The ordinance, by transferring the powers of the Lieutenant-Grovernor in Council, places all public rights in question under the control of the municipal council, to be exercised in a certain manner which has been complied with.

The argument founded on the terms of sec. 60 of the Municipal Ordinance, as to the establishment of ferries and fixing the tolls, seems no stronger on this point than it was in reference to the restricting of the

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ferries to such as might be within the territorial limits of the town.

It is only necessary upon this branch of the case to point out that this ferry came within the terms of sec. 4 of the incorporating ordinance as a ferry then "operated," because it had in fact been operated all throughout the navigable season of 1893.

Then, as to the disturbance in fact. I cannot add to what Mr. Justice Scott has said upon this point. As that learned judge says, if the appellants' contention is correct, they might have effected the same thing equally by making the payment of a single fare and admission to membership continuing only during the transit.

The merits of the case throughout are with the respondent, and it is satisfactory to be able to agree with the learned judges who have upheld his right.

In the result, if this is correct, the appeal should be dismissed.

 Appeal dismissed with costs.

Solicitor for appellant: John C. F. Bown.

Solicitors for respondent: S. S. & H. C. Taylor.