Supreme Court of Canada
Liverpool and Milton Rway. Co. v. Town of Liverpool (1903) 33 SCR 180
Date: 1903-03-26
The Liverpool and Milton Railway Company (Defendants)
Appellants
And
The Town of Liverpool (Plaintiff)
Respondent
1903: Feb. 17, 18; 1903: Mar. 26.
Present:—Sir Elzéar Taschereau C.J. and Sedgewick, Davies, Mills and Armour JJ.
ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA.
Municipal corporation—Tramway—Operation of railway—Use of streets—Regulations—Crossings—Powers—By-law or resolution—63 V. c. 176 (N.S.)-R.S. N. S. (1900) c. 71, ss. 263, 264—Construction of statute.
By the Nova Scotia statute, 63 Vict. ch. 176, the L. & M. Ry. Co. was granted powers as to the use and crossing of certain streets in the town, subject to such regulations as the town council might from time to time see fit to make to secure the safety of persons and property.
Held, reversing the judgment appealed from, Davies J. dissenting, that such regulations could only be made by by-law and that the by-law making such regulations would be subject to the provisions of section 264 of "The Towns Incorporation Act." (R. S. N. S. (1900) ch. 71.)
Appeal from the judgment of the Supreme Court of Nova Scotia en banc (per Weatherbe and Graham JJ., Ritchie J. dissenting) reversing the decision of Meagher J. at the trial and declaring that the town council of the Town of Liverpool had full power and authority, without the approval of the Lieutenant-Governor-in-Council to make a regulation, by resolution to the effect and in the form following, viz.:
"That the Liverpool and Milton Railway Company, Limited, shall forthwith erect and maintain two gates, to be of the latest improved pattern of
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railway crossing gates, [on and across Market Street, in this town, one north and the other south of the point where said company's track crosses said Market Street, and both said gates to be not more than twenty feet from said point or crossing. Said gates shall be closed within one minute before the passage of any of said company's engines, cars or trains across said Market Street, and shall be opened again immediately after the passage across said Market Street of such engines, cars or trains, and at all other times shall be kept open; and said company shall make due provision for such opening and closing of such gates." And further that the defendant was not entitled to operate its railways or tramway across Market Street, in the Town of Liverpool, without complying with the said regulation.
The questions at issue on this appeal are stated in the judgment of His Lordship Mr. Justice Armour.
New combe K.C. for the appellants. The regulation in question, not having been approved by the Governor-in-Council, is of no force or effect. The term "regulations" in sec. 1, ch. 176 of the Act of 1900, is synonymous with, and included in the term "by-laws and ordinances." Angel and Ames on Corporations, secs. 325 and 326; Dillon, Municipal Corporations, secs. 307, 308, 314; Kepner v. The Commonwealth; Wharton's Law Lexicon, p. 108; The Commonwealth v. Turner; London Association of Shipowners and Brokers v. London & India Docks Joint Committee.
W. B. A. Ritchie K.C for the respondent. The regulation in question is not of a character which the court can declare ultra vires on the ground of unreasonableness. It is a reasonable and proper one. The subsection added to section 6 of the Company's Act of
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Incorporation, by the amending Act of 1900, expressly confers authority upon the town council to make such regulation. Before the passing of this subsection the company could not cross Market Street without the consent of the town. Now, with the consent of the town the company may use the streets, involving the necessary crossings, "subject, nevertheless, in all such cases, to such regulations, if any, as the said town council may, from time to time, if it sees fit, make, to secure the safety either of person or of property." See Dillon, Municipal Corporations (4 ed.) sec. 319, note; Biggar's Municipal Manual, p. 45; Bailey v. Williamson per Cockburn C.J.; Slattery v. Naylor; Kruse v. Johnson, at page 99; Walker v. Stretton; Colborne v. Town of Niagara Falls.
The statute by giving a right to the company and declaring such right to be subject to such regulations as the town council may make is sufficient authority for the making of such regulations without the necessity of approval by the Lieutenant-Governor-in-Council, and to make such regulations by resolution merely.
The Towns Incorporation Act does not require all regulations to be made by by-law, and the general language of secs. 263, 264 does not take away the specific powers given by the Act of 1900. See remarks of Robinson C.J. in Reg. v. Grand Trunk Railway Company.
The town council having power to give consent, subject to conditions, the conditions so given, when acted upon by the company, became a binding contract, and the company cannot act upon the conditional consent and ignore the conditions. The
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company is "estopped" from repudiating a regulation made under power expressly reserved in the contract under which they constructed the crossing. St. Louis, & Meramec River R. R. Co. v. City of Kirkwood; Pacific Railroad Co. v. Leavenworth City; Compagnie pour l’Eclairage au Gaz de St. Hyacinthe v. Compagnie des Pouvoirs Hydrauliques de St. Hyacinthe. The town had jurisdiction to require gates to be built at any street crossing; R. S. N. S. (5 ser.), ch.53, s. 15, 9; Acts 1895, ch. 4, s. 78.
In Nova Scotia the absolute fee in the streets and not merely the area of user is vested. R. S. N. S. (1900) ch. 76, s. 32; Koch v. Dauphinee; Dickson v. Kearney; Finchley Electric Light Co. v. Finchley Urban District Council; Borough of Stamford v. Stamford Horse R. R. Co., and per James L. J. in Rolls v. Vestry of St. George at page 795.
THE CHIEF JUSTICE and SEDGEWICK J concurred in the judgment allowing the appeal and dismissing the action for the reasons stated by His Lordship Mr. Justice Armour.
DAVIES J. (dissenting).—For the reasons given by Mr. Justice Graham in his able and elaborate judgment, to which I do not feel that I can usefully add anything, I am of the opinion that this appeal should be dismissed. I understand that all my brethren agree that none of the objections taken by the railway company to the plaintiffs' action are good, excepting the one that the "regulation" is invalid unless and until it is approved of as a by-law by the Lieut. Governor in Council. And on this point also I am in
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accord with the judgment appealed from. I do not think the word "regulations" was used in the statute amending the railway company's power to build the road through the Town of Liverpool in the sense of or as equivalent to the word "by-law." I agree with Mr. Justice Graham that it was used in its ordinary and proper sense as an act of regulating. The statute meant, in my opinion, that the town might give its consent to the railroad running along or crossing any of its streets subject to such "conditions" or "rules" or "provisions" as the town council might from time to time make or provide. If any of these words, which are in my view the equivalent of the word actually used, had been inserted in the section then it could hardly be contended that, to render them effective, a by-law to be approved by the Lieut. Governor in Council should be passed. The town council could withhold its consent altogether or couple with it a condition subject to which its consent alone could be operative. It adopted the latter course and when the company acted upon the conditional consent there was formed a statutory contract between the town and the railway company, which the former had a right to have enforced quite irrespective of the formalities required for the passing of a by-law.
MILLS J.—In my opinion the railway company were authorized by their act of incorporation to construct, maintain and operate a line of railway with all the necessary side tracks for the passage of their cars along the streets of Liverpool. The act of incorporation was subsequently amended, making it necessary to obtain the consent of the council of the Town of Liverpool to the crossing of the streets by any extension of the line of the Liverpool and Milton Railway.
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The railway company desired to remove their track from the Main Street to the water front, and the solicitor of the company asked the town council of Liverpool to pass a resolution at their first meeting so as to expedite the removal of the track of the company from the Main Street to the one upon which they desired to locate it. The council complied with this request upon condition; 1, That the company should within six months remove its rails and sleepers from certain parts of Main Street and School Street, and should put these streets from which the track is removed in good repair.
2. That the company should only avail themselves of the liberty conceded upon the condition and understanding that they exercised their powers subject to such regulations as the council of the town should from time to time make, in respect to the crossing of the streets mentioned.
3. That the building and maintaining of the line across any of the said streets should be subject to the approval of the street committee of the council.
4. That suitable provision subject to the approval and direction of the committee, should be made by the railway company for the flagging of its trains at the street crossings.
5. That the traffic of the streets should not be interfered with by the trains of the railway company.
On the last day of May, 1901, the town council passed a resolution to maintain gates of the most approved pattern at places named by the council, and the council further resolved that if these resolutions were not complied with within forty days, the council would take proceedings to stop the railway company's engines or cars from running across Main Street.
The company have not obeyed these resolutions, and the council are seeking to enjoin them. It is not
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defined that the council may make the necessary bylaws, rules and regulations for the proper municipal government of the town; but could it control the appellant company by resolution in the way attempted? I do not think so. By the Revised Statutes of Nova Scotia, 1900, c. 71, s. 263, the municipal council are authorized to make by-laws for the safety of persons and property, and this they are not authorized to do by resolution. The council must follow the statute in the exercise of the enabling power conferred. What they are authorized to do by by-law they cannot do by resolution This has not been done, they have not exercised their power as the statute provides, and they have not sought and obtained the approval of the Lieut Governor in Council, as the statute requires. This approval is required to protect the company against the possibility of unreasonable or repressive demands being made upon them. My brother Armour has gone so fully into the discussion of the subject in which I so entirely concur, that I deem it unnecessary to discuss the subject further. I agree that the appeal must be allowed with costs, and the action dismissed with costs.
ARMOUR J. The appellant company was incorporated by the Act of the Province of Nova Scotia, 59 Vic. ch. 88, by section 6 of which it was provided that
the said company shall have the right of constructing, maintaining and operating a line or lines of single track railway or tramway with all the necessary side tracks, switches and turnouts, and other appliances for the passage of cars, carriages and other vehicles, upon and along the streets of the towns of Liverpool and Milton, and the highway extending from Liverpool to Milton, and thence by the west side of the Mersey River to the premises of the Milton Pulp Company, Limited, and thence across the river to the pulp mill, and through such other streets of the towns aforesaid as may hereafter be decided upon by the company, the consent of the municipal council having first been obtained.
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By the Act of the Province of Nova Scotia, 63 Vic. ch. 176, section 6 of chapter 88 of 59 Vic. was amended by adding as a subsection thereto the following:
The said company may construct, operate and maintain a line of railway or tramway, from any point or points on its line across any of the streets of said town of Liverpool, and across and along the heads of docks, wharves and on the lands on the south side of the Liverpool river to a point on the western side of Liverpool harbour below Fort Point, and in addition to all rights by section 6 of said chapter 88 given to said company or now possessed by said company, but without restricting or affecting the generality or force of the foregoing provisions of this subsection, the said Liverpool & Milton Tramway Company Limited, (hereafter to be known as the Liverpool and Milton Railway Company, Limited), shall have the right of constructing, maintaining and operating a line or lines of single track railway or tramway, with all the necessary side-tracks, switches and turnouts, and other appliances for the passage of cars, carriages and other vehicles, upon and along the line or route recently surveyed, and upon several sections of which a track or stone roadway or filling for track is now or has within the last eight months previous to the passage hereof been in course of construction, to connect the present track of said company at or near Stephen West's shop near the parade in the town of Liverpool with the track of the said company on Water street in said town along or near the waterfront, and upon and along such other line or route within said town, and in, upon, across or through such lands, land covered with water, wharves, docks or bodies of water within said town, as the town council of said town may by resolution approve; subject nevertheless, in all such cases, to such regulations, if any, as the said town council may, from time to time, if it sees fit, makes to secure the safety either of persons or of property; provided, however, that where either public or private rights or property shall be taken or interfered with, or shall be proposed to be taken or interfered with under this section and no agreement can be arrived at with said town council in case of public rights or property, or with the owner or owners in case of private rights or property, as to compensation or damages, the company shall proceed as in section 25 (by this Act added to said chapter 88) provided, and the provisions of said section 25 shall apply; provided, however, that before any such line shall be built across, along or upon any other streets or thoroughfares of said town the consent of the town council shall have first been obtained.
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After the passing of the said last mentioned Act the appellant's solicitor wrote to the mayor and town council of the respondents as follows:
By section 1 of chapter 176 of the Acts of the Local Legislature passed in the year 1900 the Liverpool and Milton Railway Company, Limited, were given additional powers as follows—(setting out in its very words the subsection added by the said last mentioned Act to section 6 of 59 Vic. ch. 88, and proceeding thus): You will see by the last part of this section that the consent of the town council is necessary as to crossing streets. The only streets I believe the new line will touch are Bridge or Market street. Union street and street leading to Shipyard Point. The company are desirous of removing their track at as early a date as possible off the main street and placing same along Water front. Before the plans can be approved it is necessary to have a resolution from the town council as set out above. As solicitor of the company, I would respectfully request you to pass such resolution at your first meeting so as to expedite the removal of the track of the company from off the main street.
Thereupon, and on the 8th day of December 1900 the council of the respondents passed the following resolution:
Whereas, the Liverpool and Milton Railway Company, Limited, has requested the town council of the town of Liverpool to grant their consent, as required or provided by section 1 of Chapter 176 of the Acts of the Legislature of Nova Scotia, passed in the year 1900, amending section 6 of chapter 88 of the Acts of 1896: Therefore resolved, That the consent of this council be, and it is hereby given to said company, to build a line of single track railway across the streets known as Market street, Bridge street McPherson's lane, street leading from Inness' corner to the river, being continuation of Union street, and street leading to Shipyard Point; provided that said company shall only avail itself of the provisions of this resolution if, and this resolution is upon the condition that the company shall within six months from the passage of this resolution remove its track, rails and sleepers from Main street between the point where its new or proposed line leaves said streets near Stephen West's shop and John D. McClearn's corner, and from School [street between McClearn's corner and the foot of said School Street, and put or provide for putting the said streets, where the company shall so take up or remove such track, in good and proper order to the satisfaction of the street committee of this council; and provided further, that the
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company shall only avail itself of this resolution upon the condition and understanding that the rights or powers of the company under said section 1 of said chapter 176 shall be exercised subject to such regulations as this council may from time to time make, to secure the safety either of person or of property, and subject also to such regulations as this council may from time to time make as to crossing said mentioned streets;
Provided further, and this resolution is upon the further condition, and this council makes hereby this regulation: that the building and maintaining of said line across said, or any of said streets, shall be subject, as to the manner of building and maintaining such line or track, to the direction and approval of the street committee of this council, and that due and proper provision, subject to the direction and approval of such committee, shall be made by said company for the flagging of its trains at said or any of said crossings, and that traffic on any of said streets shall not be interfered with by the track or trains of the company, and when the company shall at any time place its track above the street level at any such crossing, the company shall raise the street level to correspond subject to the direction and approval of said street committee (and the expression" street" in this resolution shall include sidewalk.)
The appellants, thereupon, constructed their railway as authorized by the said resolution and afterwards on the 31st day of May, 1901, the council of the respondents passed the following resolution:
Resolved, and this council hereby makes the following regulation: That the Liverpool and Milton Railway Company, Limited, shall forthwith erect and hereafter maintain two gates, to be of the latest approved pattern of railway crossing gates, on and across Market Street in this town, one north and the other south of the point where said company's track crosses said Market Street, and both said gates to be not more than twenty feet from said point or crossing. Said gates shall be closed within one minute before the passage of any of said company's engines, cars or trains, across said Market Street, and shall be opened again immediately after the passage across said Market Street of such engines, cars or trains, and at all other times shall be kept open; and said company shall make due provision for such opening and closing of such gates;
Resolved further, that in the event of said Liverpool and Milton Railway Company, Limited, not complying with the foregoing regulations as to such gates, within forty days of its being notified of the making of said regulation, proceedings shall be taken by this council to stop
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the running of said company's engines, cars or trains, across said Market Street until compliance therewith.
The appellants having neglected to comply with this last resolution this action was brought for a declaration that the council of the respondents had fall power and authority to make the said regulation and that the appellants were not entitled to operate their railway or tramway across Market Street without complying with said regulations, and for an injunction restraining them from operating their line of railway or tramway across Market Street without complying with said regulation.
At the time of the passing of the Act 63 Vict. ch. 176, the Towns Incorporation Act of 1895 was in force, section 296 of which provided that
The town council in each incorporated town, in addition to all powers to make by-laws and ordinances, rules and regulations vested in them by the terms of this Act, shall have the sole power and authority, subject to the approval of the Governor-in-Council, to make by-laws for the good rule and government of the town, and for the better carrying out of the provisions in this Act contained, and from time to time revise, repeal, alter or amend any by-laws, ordinances, rules or regulations whatsoever by them made under the authority of this Act; and for the more particularly defining the power of the said town council, and the said town council shall have power to make by-laws for the several purposes following, * * * that is to say:
(61). The providing for any other purpose, matter or thing, specially subjected to the control of the town council by law.
And at the time of the passing of the resolution by the council of the respondents of the 31st of May, 1901, chapter 71 of the Revised Statutes of Nova Scotia, 1900, was in force, by section 263 of which it was provided that:
The town council in addition to any powers by this chapter conferred upon the council to make by-laws and ordinances, shall have power to make by-laws in respect to all matters coming within the following classes of subjects and may from time to time amend or repeal such by-laws, that is to say for * * * (74) providing for
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any other purpose, matter or thing specially within the powers, duties or control of the town council.
And by section 264 it was provided that
the by-laws for the foregoing purposes or any of them shall not be inconsistent with any statute in force in this Province and when approved by the Governor in Council shall have the force of law.
The Legislature, as has been shown, in granting to the appellants by 63 Vict. ch 176, the right of constructing, operating and maintaining their line of railway or tramway across the streets of the respondents, made such grant subject to such regulations, if any, as the town council of the respondents might from time to time, if it saw fit, make to secure the safety either of persons or of property.
The contention of the appellants is that such regulations cannot be made by resolution, but must be made by by-law and if so made must, before having the force of law, be approved by the Governor in Council, and I am of the opinion that this contention is well founded.
The Act 63 Vic., ch. 176 does not prescribe the mode by which such regulations shall be made, but on turning to "The Towns Incorporation Act of 1895," as it stood when the Act 63 Vic, ch. 176 was passed and as it was revised when the resolution of the council of the respondents of the 31st May 1901 was passed, we find that power was given to the council of the respondents to pass by-laws for
the providing for any other purpose, matter or thing specially subjected to the control of the town council by law.
Or as revised for
providing for any other purpose, matter or thing specially within the powers, duties or control of the town council.
It is plain that The Towns Incorporation Act of 1895 conferred upon the council of the respondents the
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power to pass by-laws for making such regulations as are referred to in 63 Vic. ch. 176, and such power so conferred impliedly excluded the power to make such regulations otherwise than by by-law, and this is the mode of making such regulations that should have been adopted by the council of the respondents.
It was essential, therefore, to the validity of the regulations set forth in the resolution of the council of the respondents of the 31st May, 1901, that they should have been made by by-law and that such by-law should have been approved by the Governor in Council.
The resolution, therefore, of the council of the respondents of the 31st May, 1901, had no legal validity and even if it could be treated as a by-law, as was suggested, had not the force of law, not having been approved by the Governor in Council and the appellants were not bound to conform to it.
The appeal must, therefore, be allowed with costs and the action dismissed with costs.
I refer to London Association of Shipowners and Brokers v. London and India Docks Joint Committee,.
Appeal allowed with costs.
Solicitor for the appellant: L. Q. Lovett.
Solicitor for the respondent: Jason M. Mack.
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