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BRITISH COLUMBIA SOUTHERN RAILWAY COMPANY.
Sessional Papers of the Province of British Columbia
British Columbia. Legislative Assembly
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63 Vict. British Columbia Southern Railway Company. 439 PAPERS In relation to the British Columbia Southern Railway Company Land Grant. By Command. ALEXANDER HENDERSON, Attorn eg-General. Attorney-General's Office, 24-th January, 1900. MR. MARTIN'S LETTER SUBMITTING CASE TO COUNSEL. Re British Columbia Southern Railway Company. March 29th, 1899. Sir,—Enclosed I send you an abstract of a number of Statutes of this Province connected with the British Columbia Southern Railway Company land grant; also Orders in Council and several Dominion Statutes. I desire to submit certain questions for your consideration, and, in order to make the matter clear, will give you a general outline of the history of the question. In 1888, the Crow's Nest and Kootenay Lake Railway Company was incorporated ; in 1890, an Act in aid of certain railways, called the "Railway Aid Act of 1890," was passed. The material portions of the Act are printed in the enclosure. You will notice that the land grant of 20,000 acres per mile given to the Crow's Nest and Kootenay Lake Railway Co. by section 1 of said Act, was not given direct to the Company, as is customary under the Dominion Statutes, but the Lieutenant-Governor in Council was authorised to grant 20,000 acres per mile to this Company for each mile of railway completed, on taking satisfactory guarantees for the completion of the remainder of the railway. Section 9 provided for a reserve; section 14 applied the British Columbia Railway Act to the Company; section 16 is a very peculiar section, making special provisions with regard to a portion of territory in which at the time were known to exist immense beds of coal, which are now known to be of great value. In 1891, by chapter 56, the name of the Crow's Nest and Kootenay Lake Railway Co. was changed to the British Columbia Southern Railway Co; in 1893, by chapter 36, there were certain provisions made with regard to the land grant of the British Columbia Southern Rail way, but you will notice, by section 1 of this Act, the grant was still to be made by the Lieutenant-Governor in Council. You will also notice by this Act, there was no * * * provision with regard to the coal lands. In 1893, there was an amendment of no material importance; in 1894, there was more legislation with regard to this grant; in 1894, there was aslo another amendment to the B. C. Southern Railway Co.'s charter, and in this amendment it was again provided that the provisions of the British Columbia Railway Act should apply to this charter. I have had printed in the enclosure the Orders in Council with regard to these matters. They all deal with the questions of reservations, which had been provided for by section 9 of the 1890 Act, with the exception of No. 271 of 1897, which undertakes to exercise to a certain extent the power given to the Lieutenant-Governor in Council. Your attention is drawn to the Statute of the Dominion of 1897, which is printed in the enclosure, in which the undertaking of the British Columbia Southern Railway Co. is declared to be a work for the general advantage of Canada. It is also provided by section 2 of the said last-mentioned Act that the Company may extend its line of railway to Lethbridge, which is in the North- West Territories, and outside of the boundaries of British Columbia. By section 4 of said Act, the Company may lease its lines to the Canadian Pacific Railway Company. I have also 440 British Columbia Southern Railway Company. 1899 had printed in the enclosure chapter 5 of the Dominion Statutes of 1897, which authorised the granting of a bonus of $11,000 per mile to the Canadian Pacific Railway to construct a line over the territory which the B. C. Southern was authorised to construct a railway over. The railway has actually been constructed by the Canadian Pacific from Lethbridge to Kootenay Lake. The Canadian Pacific Company, before constructing this line, which is known as the Crow's Nest Pass Railway, purchased all the capital stock of the B. C. Southern Railway Co., and after having purchased the same procured an Act from the Dominion Parliament, which is printed in the enclosure, and being chapter 36 of the Dominion Statutes of 1897. The Canadian Pacific Company is now applying to the British Columbia Government for a conveyance to them of 20,000 acres of land per mile under the provisions of the Statutes printed in the enclosure, which purport to give this grant to the B. C. Southern Railway Company. The Government desire your opinion upon the following points :— 1. Under the circumstances above stated, has the Crow's Nest Pass Railway been constructed by the B. C. Southern Railway Co. within the meaning of section 1 of chapter 40 of the British Columbia Statutes of 1890 ? or, has not the line of railway been constructed by the Canadian Pacific Company itself ? 2. If, in your opinion, the Canadian Pacific Railway Company has, as a matter of law, constructed the said railway line, can such construction enure to the advantage of the B. C. Southern Railway Co. so as to entitle it to the said land grant 1 3. Is the Lieutenant-Governor in Council bound, under the legislation of British Columbia above referred to, to grant the said lands to the B. C. Southern Railway Co. ? or is it discretionary with the Lieutenant-Governor in Council to do so 1 In other words, taking for granted that the B. C. Southern Railway Co. has constructed this railway, as contemplated by the above legislation, would the Lieutenant-Governor in Council be ordered by the Court to make this grant by proceedings by the Company by Petition of Right. 4. What is the effect upon the rights of the B. C. Southern Railway Co. of chapter 36 of the Dominion Statutes of 1897, by which that railway is declared to be for the general advantage of Canada, and thus, under the provisions of the B. N. A. Act (sec. 92, sub-sec. 10, c. ), being a work entirely under the legislative power of the Dominion Parliament ? 5. If, in your opinion, the Lieutenant-Governor in Council is bound to grant the said lands to the B. C. Southern Ry. Co., and the said Railway Co. is entitled to receive them, in spite of the said legislation which has taken the said Company out of the legislative control of the Legislature of British Columbia, what is your opinion as to the effect of section 16 of said chapter 40 of the Statutes of 1890, as said section has been modified by subsequent Acts set out in the enclosure 1 6. Is the Government bound in any event to give the land described in said section 16 to the Railway Company as part of their grant 1 With regard to these questions as to which your opinion is asked, I beg to make the following suggestions :—You will see, by chapter 5 of the Dominion Statutes of 1897, that the Crow's Nest Railway line was constructed as the result of a contract between the Dominion Parliament and the Canadian Pacific Railway Co., by which the Company received $11,000 per mile as a bonus, and under which the Company made certain concessions with regard to railway rates and other matters. This being so, how can it be alleged that this railway line was constructed by the B. C. Southern Railway Co., a local company incorporated under the B. C. Legislature? With regard to the question of the position in which the Lieutenant-Governor in Council is placed, I am desirous that you should give this matter your very careful, consideration. Since the various Statutes and Orders in Council which are printed in the enclosure were passed, a general election took place in this Province on the 9th of July, 1898, the result of which was the defeat of the old Government and the advent to power of the present Government. The party which is now in power opposed the legislation by which the grant to this Company was made. It is therefore most material for the Government to be very certain in what position they stand as a matter of law with regard to this question. If the Lieutenant- Governor in Council, under the legislation in question, is to be considered a mere machine by which the land is to be conveyed to the Company, and which the Company is absolutely entitled to, then the present advisers of the Lieutenant-Governor have no option in the matter except to carry out the provisions of the Statutes. If, on the other hand, it was the intention of the Legislature to give a discretion to the Lieutenant-Governer in Council, it becomes 63 Vict. British Columbia Southern Railway Company. 441 necessary for the present Government to exercise that discretion, and the passing of an Order in Council directing the conveyance of this land to the Company is a matter of policy and not a simple matter of routine. With regard to the question of the effect of the B. C. Southern Railway Co. obtaining a Dominion charter, the effect of which is to take that Company out of the control of the B. C. Legislature, your most careful consideration of this point is also requested. It seems to me that there is, under the provisions of sections 91 and 92 of the B. N. A. Act, no such thing as joint jurisdiction, once a railway is declared by the Parliament of Canada to be for the general advantage of Canada. 'I would suggest to you whether, when a company has been incorporated by the Provincial Legislature to build a railway, and afterwards that same company applies to the Dominion Parliament and obtains an Act declaring its undertaking to be for the general advantage of Canada, that all the powers which that company had given to it with regard to the building of the railway by the local Legislature become ipso facto inoperative. I have not had printed the B. 0. Railway Act, which is chapter 163 of the Revised Statutes of British Columbia, 1897, but it seems to me important that you should consider in this connection the provisions of that Act. This Act is similar to the Railway Act of the Dominion, and contains a great many provisions with regard to the construction and operation of railways in the Province calculated to protect the interests of the public. Eor instance, provisions are contained in it with regard to depositing copies of plans and surveys; with regard to arbitration in connection with the taking of lands for its undertaking by the company; with regard to the operation of mines under the railway bed; with regard to highways, bridges, and fences; no tolls are to be taken or levied until approved by the Lieutenant-Governor in Council, and bylaws fixing and regulating tolls are to be subject to revision by the Lieutenant-Governor in Council; elaborate provisions are made with regard to the manner in which the railway is to be worked, especially with regard to the running of trains ; there are provisions for the inspection of the railway by the Lieutenant-Governor in Council; it is provided that the company are to be bound to make traffic arrangements with other companies; many other important provisions are contained in this Act. In all the legislation which has taken place with regard to this land grant to the B. C. Southern Railway Co., it has always been expressly provided that the Company should be subject to the British Columbia Railway Act, and I would suggest that it was a most material part of the consideration upon which this grant was made that the Company should be affected by all the provisions of the Railway Act. This being so, can it be possible that the Company, before commencing work, or doing anything to earn the subsidy, can go to the Dominion Parliament and obtain legislation, the effect of which is to place the Company entirely beyond the control of the British Columbia Railway Act, or of any other legislation now in force, or hereafter to be passed, by the Legislature of British Columbia. I would suggest to you that this action on the part of the Company is an entire breach by it of the contract, if there is a contract, contained in the legislation affecting this question. More than that, I would suggest that the effect of obtaining a Dominion Act of incorporation has been that the B. C. Southern Ry. Co., as incorporated by the Local Legislature, was thus disabled, as a matter of law, from constructing this railway line. It is also most important to the Province to know what position it is in with regard to the lands referred to in section 16 of the B. C. Statutes of 1890. These lands, as I have said above, are of immense value, containing huge deposits of most valuable coal. In case all the other questions are answered in favour of the Railway Company, then your special consideration is requested as to whether, with regard to these particular lands, any discretion remains in the Lieutenant-Governor in Council, or whether such action as may be required with regard to conveying these lands to the Railway Company is only a question of routine. In considering the question as to whether the Lieutenant-Governor in Council has any discretion as to passing an Order in Council to grant the lands referred to, I would also like your opinion as to how far that discretion has been exercised by the Order in Council, No. 271, 1897, printed in the enclosure, which indicates what the Lieutenant-Governor in Council would consider satisfactory, may be considered an exercise of such discretion. Another point which I wish to bring to your attention is that under Chapter 36 of the Dominion Statutes of 1897, printed in the enclosure, in addition to declaring the undertaking of the British Columbia Southern Railway Company a work for the general advantage of 442 British Columbia Southern Railway Company. 1899 Canada, there is a provision in section 4 of said Act allowing the Company to lease its works to the Canadian Pacific Railway Company, a provision which is not contained in any of the British Columbia legislation, and one which, it seems to me, is quite in conflict with the object of the proposed bonus on the part of the Province You can understand that the Canadian Pacific Railway Company, controlling nearly all the railway lines operated in British Columbia, is to a large extent a monopoly, and it is very doubtful whether the Legislature would have agreed to any such provision as this. Again, in section 2 of said Chapter 36, there is a provision by which, apart from the provisions of section 1, the B. C. Southern Railway Company, as incorporated by said Chapter 36, is clearly from that time forward entirely beyond the control of the Legislature of British Columbia, because under said section 2 it is authorised to build a line outside the Province of British Columbia, which by sub-section (10) of section 92 of the British North America Act is absolutely beyond the jurisdiction of the Local Legislature. I have endeavored in this letter, and in the extracts of Statutes and Orders in Council, printe'd in the enclosure, to give you all the information which you require with regard to the questions submitted to you. If anything else is needed, I shall be glad to furnish it to you. I also enclose a printed copy of the British North America Act, being Chapter 3 of 30-1, Victoria (Imperial Statutes). I have the honor to be, Sir, Your obedient servant, (Signed) Joseph Martin, Attorney-General. R. B. Haldane, Esq., Q. C, M. P., London, England. ABSTRACT OP STATUTES AND ORDERS IN COUNCIL BEARING UPON CASE SUBMITTED POR THE OPINION OF COUNSEL. Re British Columbia Southern Railway Company Land Grant. The following are the material Statutes affecting the question :— 51 Vict., British Columbia Statutes of 1888, chap. 44—An Act to incorporate the Crow's Nest and Kootenay Lake Railway Company [assented to 28th April, 1888]. Ordinary incorporation charter of Crow's Nest and Kootenay Lake Railway Company. 53 Vict., British Columbia Statutes of 1890, chap. 40—An Act in aid of certain Railways [assented to 26th April, 1890]. WHEREAS, by an Act of the Legislature of this Province, made and passed in the 51st year of the present reign, intituled "An Act to Incorporate the Crow's Nest and Kootenay Lake Railway Company," certain persons in the said Act mentioned were incorporated as a company for the purpose of constructing and operating a railway, of a gauge of not less than three feet, from some point at or near the junction of Summit Creek with Michel Creek, in the Kootenay District; from thence, by way of Elk River, to the Upper Kootenay River; thence, by way of Cranbrook and Mooyie Pass and Goat River, to a point on the Lower Kootenay River at or near its junction with Goat River; and by virtue of the said Act, as amended by another Act of the Legislature of this Province, passed during the present Session, it is provided that the Company shall commence the construction of the work within three years, and shall complete and equip the same within five years: ****** And whereas the construction and equipment of the hereinbefore mentioned lines of railway would materially advance the welfare of the Province, and it is expedient to offer inducements for the construction of such lines : 63 Vict. British Columbia Southern Railway Company. 443 I. The Lieutenant-Governor in Council may grant to the Crow's Nest and Kootenay Lake Railway Company, if the uniform gauge of its railway shall be not less than four feet eight and one-half inches, twenty thousand acres of public land for each one mile of railway completed throughout its entire length, on taking guarantees satisfactory to the Lieutenant- Governor in Council for completion of the remainder of the railroad, the said grant of twenty thousand acres of land per mile to be made to the said Company upon completion of each section of twenty miles of railway constructed; and if the gauge of its railway shall be less than four feet eight and one-half inches, then the Lieutenant-Governor in Council shall make a similar grant, not to exceed ten thousand acres of land for each mile of railway constructed. ****** 9. Upon the said Company filing with the Chief Commissioner of Lands and Works a map or plan, to the satisfaction of the Lieutenant-Governor in Council, shewing the course and direction of the proposed railway, and the lands intended to be traversed, there shall be reserved from pre-emption and sale a tract of land extending thirty-two miles on each side of the line of the proposed railway, to be afterwards conveyed in part to the Company, pursuant to this Act: Provided that the work of actual construction of the proposed railway shall begin within six months from the time of the filing of the said map or plan, and shall be continuously prosecuted to completion with reasonable diligence; otherwise the said reservation of public lands shall be void and of none effect. ****** II. The lands acquired by the Company shall not be subject to taxation unless and until the same are used by the Company for other than railway purposes, or leased, occupied, sold or alienated, so long as such lands shall be offered by the Company for sale and settlement upon liberal terms, to the satisfaction of the Lieutenant-Governor in Council, and the capital stock, and all property other than the lands aforesaid, shall be free from Provincial and Municipal taxation until the expiration of ten years from the completion of the railway. 12. The line of railway shall be operated continuously, to the satisfaction of the Lieutenant-Governor in Council. ****** 14. The provisions of the British Columbia Railway Act, passed during the present Session, shall apply to all of the enterprises subsidised by this Act. ****** 16. The following provision shall apply only to the Crow's Nest and Kootenay Railway :— (2.) Wherever along the line of the Crow's Nest and Kootenay Railway the full quantity of twenty thousand acres per mile in alternate blocks cannot be had, the deficiency shall be made up out of a belt of land five miles in width along the east side of Elk River, extending between a point five miles below Morisey Creek and a point twenty-eight miles above Michel Creek, and from a belt two and one-half miles in width on each side of Coal Creek, extending to the summit, and from a belt three miles in width on each side of Michel Creek, and on each side of the east and west branches of said creek to the summit. ****** 18. Nothing in this Act contained shall prejudice the rights of free miners to search for, get, and win the precious metals, and to use timber for mining purposes, subject to the mineral and land laws of the Province, and to the provisions of this Act. 54 Vict., British Columbia Statutes of 1891, chap. 56—An Act to amend the "Crow's Nest and Kootenay Lake Railway Company Act, 1888" [assented to 20th April, 1891]. Changes name of Crow's Nest and Kootenay Lake Railway Company to the " British Columbia Southern Railway Company." 444 British Columbia Southern Railway Company. 1899 56 Vict., British Columbia Statutes of 1893, chap. 36 :— An Act to make further provision for a Land Subsidy for and in aid of the British Columbia Southern Railway. [12th April, 1893.] Whereas, by sections 1 and 16 of the Act passed by the Legislature of this Province in the fifty-third year of Her Majesty's reign, intituled "An Act in aid of certain Railways," a certain land grant was authorised to be made in aid of the British Columbia and Southern Railway, under the name of the " Crow's Nest and Kootenay Railway " : And whereas, by an Act passed by the Legislature of this Province in the fifty-fourth year of Her Majesty's reign, the Company was authorised, in addition to the powers conferred upon it, to construct a branch line from Elk River to Tobacco Plains, near the 49th parallel: And whereas an Act has been passed at the present Session of the Legislative Assembly of the Province of British Columbia amending the Act of Incorporation of the said British Columbia Southern Railway Company, by, amongst other things, authorising the Company to construct, as an alternative route to the line from Cranbrook to the Lower Kootenay River, authorised by its first charter, a line of railway from Cranbrook to Pilot Bay, on Kootenay Lake, or to the Lardo River by way of St. Mary's River, and by further dividing the undertaking of the Company, and all routes over which its various charters extend, into three distinct sections, as in the Schedule to said Act set out: And whereas it is advisable to make provision for a land grant in respect of either or both of the sections in said Schedule, known as the Eastern and Central sections, and to define the manner in which the said "Railway Aid Act, 1890," shall apply to the respective undertakings of the Company : Therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows: 1. The Lieutenant-Governor in Council may grant to the said Company lands in the Electoral Districts of East and West Kootenay, not exceeding twenty thousand acres for each mile of railway to be constructed by the said Company, under the authority of section 4 of the "British Columbia Southern Railway Act Amendment Act, 1891," or of section 1 of the "British Columbia Southern Railway Act Amendment Act, 1893." 2. Such lands shall be taken up and acquired in accordance with the provisions of sections 1 and 16 of the " Railway Aid Act, 1890," save and except, however, and it is hereby provided that such portion of section 1 of the said "Railway Aid Act, 1890," as requires guarantees to be taken for the completion of the whole road, shall be read as requiring guarantees for the completion within the time limited in the said "British Columbia Southern Railway Act Amendment Act, 1893," of the remaining portion of the section as described in the Schedule to the "British Columbia Southern Railway Act Amendment Act, 1893," in respect of a portion of which, then constructed, the Company may be applying for a land grant. And whereas part of the land which otherwise would be available for the Company in respect of the construction of portion of the eastern section of their said railway, and lying to the south of Elk River, is already taken up by the Kootenay Valley Company and the Canadian Pacific Railway Company. Therefore, it is hereby enacted : 3. The land mentioned in section 16 of the "Railway Aid Act, 1890," may be made available to the Company as portion of the grant in respect of the construction of the eastern section of its said railway, and may be applied for as portion of the block to be granted upon completion of the second twenty miles of the eastern section of the said Company's railway. 56 Vict., British Columbia Statutes of 1893, chap. 47—An Act to amend the Acts relating to the British Columbia Southern Railway [12 th April, 1893]. This Act divides the railway to be constructed into sections. 63 Vict. British Columbia Southern Railway Company. 445 57 Vict., British Columbia Statutes of 1894, chap. 39 :— An Act respecting the British Columbia Southern Railway. [11th April, 1894]. Whereas by an Act passed at the last Session of the Legislature of this Province, intituled, " An Act to make further provision for a Land Subsidy for and in aid of the British Columbia Southern Railway," and chaptered 36, the provisions of the " Railway Aid Act, 1890," were applied to the said railway, as subdivided into sections by the " British Columbia Southern Railway Act Amendment Act, 1893 " : And whereas, by sub-section (a) of section 8 of an Act passed at the present Session of the Legislature, intituled, " An Act to consolidate and amend certain Acts relating to the British Columbia Southern Railway Company," the Company is given power to shorten the eastern section of the line of the railway by omitting the spur from the Kootenay River to the 49th parallel, and by sub-section (d) of said section 8 is given power to construct a branch line from a point on the main line at or near the Porks of Michel Creek, thence by way of Michel Creek to Marten Creek : And whereas it is advisable to continue the existing land grant to the said railway, but so that no further grant shall be made for that portion of the line authorised by sub-section (d) of said section 8, and to authorise the issue of the grant for the eastern section without compelling the construction of the spur to the 49th parallel: Therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows :— 1. This Act may be cited as the " British Columbia Southern Railway Aid Act, 1894." 2. The grant in favour of the British Columbia Southern Railway authorised by the " Railway Aid Act, 1890," as amended by "An Act to make further provision for a Land Subsidy for and in aid of the British Columbia Southern Railway Company," is hereby extended and applied to the several sections of said railway, as described in sub-sections (a), (b) and (c) of section 8 of the "British Columbia Southern Railway Aid Act, 1894." 3. It shall be a sufficient compliance with the provisions of section 1 of the said " Railway Aid Act, 1890," as amended by section 2 of the said amending Act, as respects the eastern section of said railway, that guarantee be given for the completion of the said eastern section, omitting the spur from the Kootenay River near Elk River to the 49th parallel. 57 Vict., British Columbia Statutes of 1894, chap. 53—An Act to consolidate and amend certain Acts relating to the British Columbia Southern Railway Company [11th April, 1894]. New charter for the British Columbia Southern Railway Company ; previous charters repealed. Sections 2 and 11 :— 2. The Acts mentioned in the Schedule to this Act to the extent therein mentioned are hereby repealed, and in lieu of the said Acts and provisions, this Act, and in matters not provided for by this Act, the "British Columbia Railway Act" and its amendments, shall apply to the British Columbia Southern Railway Company, hereinafter called "the Company," and to the undertaking of the Company. 11. The provisions of the " British Columbia Railway Act" shall, so far as such provisions are applicable to the undertaking and are not inconsistent with or contrary to the provisions of this Act, apply to the said railway. ORDERS IN COUNCIL. [No. 59 of 1890.] On a Memorandum from the Honourable Chief Commissioner of Lands and Works, dated 24th February, 1890, recommending that the following described tracts of lands, which are situated in East Kootenay District, be reserved from sale or settlement until further notice, viz. :— A belt of land five miles in width along the east side of Elk River, extending between a point five miles below Morrisey Creek and a point twenty-eight miles above Michael Creek. 446 British Columbia Southern Railway Company. 1999 Also a belt two and a half miles in width on each side of Coal Creek, extending to the summit. Also a belt three miles in width on each side of Michael Creek, and on each side of the east and west branches of said creek to the summit. The Committee advise approval. Chas. E. Pooley, President of Executive Council. Approved 25th February, 1890. Hugh Nelson, Lieutenant-Governor. HUGH NELSON. Government House, Victoria, 25th February, 1890. On the recommendation of the Honourable the Chief Commissioner, His Honour the Lieutenant-Governor, by and with the advice of the Executive Council, has been pleased to order, and it is hereby ordered, that the following described tracts of land, which are situated in East Kootenay District, be and are hereby reserved from sale or settlement until further notice, viz. :— A belt of land five miles in width along the east side of Elk River, extending between a point five miles below Morrisey Creek and a point twenty-eight miles above Michael Creek : also a belt two and a half miles in width on each side of Coal Creek, extending to the summit; also a belt three miles in width on each side of Michael Creek, and on each side of the east and west branches of said creek to the summit. A. Campbell Reddie, Depitjty Clerk, Executive Council. [No. 307 of 1890.] On a Memorandum from the Honourable Chief Commissioner of Lands and Works, dated 2nd August, 1890, recommending that a block of land, enclosed by the following boundaries, be reserved from pre-emption and settlement until further notice, viz. :— Commencing at a point on the eastern boundary of the Province of British Columbia, in the Crow's Nest Pass; thence southerly along the eastern boundary to a point on the 49th parallel of latitude ; thence west along the said parallel twenty-five miles ; thence in a northerly direction to the junction of Morrisey Creek with Elk River; thence easterly to the point of commencement. The Committee advise approval. Chas. E. Pooley, President of Executive Council. Approved 11th August, 1890. Hugh Nelson, Lieutenant-Governor. HUGH NELSON. Government House, Victoria, 11th August, 1890. On the recommendation of the Honourable the Chief Commissioner, His Honour the Lieutenant-Governor, by and with the advice of the Executive Council, has been pleased to order, and it is hereby ordered, that the land enclosed by the following boundaries be, and is hereby, reserved from pre-emption and settlement :— Commencing at a point on the eastern boundary of the Province of British Columbia, in the Crow's Nest Pass; thence southerly along the eastern boundary to a point on the 49th parallel of latitude ; thence west along the said parallel twenty-five miles ; thence in a northerly direction to the junction of Morrisey Creek with Elk River; thence easterly to the point of commencement. Jno. Robson, Clerk, Executive Council. 63 Vict. British Columbia Southern Railway Company. 447 [No. 174 of 1891.] Upon a memorandum from the Honourable the Attorney-General, dated the 2nd day of May, 1891, stating that by an Act passed in the year 1888, a Company was incorporated under the name of the Crow's Nest and Kootenay Lake Railway Company, for the purpose of constructing and operating a railway from some point at or near the junction of Summit Creek with Michel Creek, in the Kootenay District; thence by way of Elk River to the Upper Kootenay River; thence by way of Cranbrook and Mooyie Pass and Goat River to a point on the Kootenay River at or near its junction with Kootenay River, and that by an Act passed in the year 1890, intituled " An Act in aid of certain Railways," the Lieutenant-Governor in Council was empowered to grant to the said Company, under certain conditions, 20,000 acres of public lands for each mile of railway constructed. And that by an Act passed in the present year and intituled "An Act to amend the Crow's Nest and Kootenay Lake Railway Company Act, 1888," the name of the said Company was changed and is now known as "The British Columbia Southern Railway Company," and further stating that the said Company have now made application that the following described tract of land, amounting approximately to 400,000 acres, may be set apart and reserved for them as an initial block in the said grant, viz.: Commencing at a point on the eastern boundary of the Province of British Columbia in the Crow's Nest Pass; theuce southerly along the eastern boundary to a point on the 49th parallel of latitude; thence west along the said parallel twenty-five miles; thence in a northerly direction to the junction of Morrisey Creek with Elk River ; thence easterly to the point of commencement: And recommending that in view of the proposal of the said Company to expend a sum of not less than $34,000 in boring for coal and coal oil in the said tract of land, and for other purposes connected with the same, the said tract of land should be set apart and reserved for the said Company as such initial block as aforesaid, to be conveyed to the Company upon condition (but not otherwise) of their complying in all things with their Act of Incorporation and with the provisions of the hereinbefore recited Statutes. The Committee recommend approval. Chas. E. Pooley, President, Executive Council. Approved 6th May, 1891. Hugh Nelson, Lieutenant-Governor. HUGH NELSON. Government House, Victoria, 6th May, 1891. Whereas the British Columbia Southern Railway Company have made application for a certain block of land in the East Kootenay District approximating 400,000 acres, viz :— Commencing at a point on the eastern boundary of the Province of British Columbia, in the Crow's Nest Pass ; thence southerly along the eastern boundary to a point on the 49th parallel of latitude ; thence west along the said parallel 25 miles ; thence in a northerly direction to the junction of Morrisey Creek with Elk River ; thence easterly to the point of commencement,—reserved from pre-emption and settlement by Order in Council 307, 1890, and notice of which was published in the British Columbia Gazette of the 14th day of August, 1890 as an initial block of the land granted to the said railway under the "Railway Aid Act, 1890," as an inducement for the construction of the said railway, and Whereas the Company propose to expend a considerable sum of money in prospecting by boring on the land in question for coal and coal oil, and also in the construction of a waggon road to facilitate the transport of machinery for that purpose. On the recommendation of the Honourable the Attorney-General, and by and with the advice of the Executive Council, His Honour the Lieutenant-Governor has been pleased to order, and it is hereby ordered that the said land be and is hereby set apart and reserved for the British Columbia Southern Railway Company, as such initial block as aforesaid, to be conveyed to the Company upon condition, but not otherwise, that the Company comply in all things with its Act of Incorporation, and with the provisions of the " Railway Aid Act, 1890," and the "British Columbia Southern Railway Act Amendment Act, 1891." John Robson, Clerk, Executive Council. 448 British Columbia Southern Railway Company. 1899 [No. 271 of 1897.] The Committee of Council has had under consideration a communication from the Secretary of the British Columbia Southern Railway Company (a copy whereof is hereto annexed), in which the Company requests an assurance that the Government will, when application is made by the Company under the provisions of section 3 of "An Act to make further provision for a Land Subsidy for and in aid of the B. C. Southern Railway Company," being chapter 36 of the Statutes of 1893, issue a grant of the lands therein referred upon performance of the statutory conditions attached thereto. The Committee apprehend that the legislation in regard to the portion of the land grant of this Company specified in the communication, so far as is necessary for a determination of the present question may be historically summarized as follows :— Previous to the Session of 1893, such lands were only available to the Company to compensate it for a deficiency in lands within the alternate blocks having a frontage of 20 miles on the railway, by a depth of 32 miles. By section 3 of the Act passed during such Session (1893), intituled " An Act to make further provision for a Land Subsidy for and in aid of the British Columbia Southern Railway," the lands in question are specifically authorised to be applied for as portion of the block to be granted upon completion of the second twenty miles of the eastern section of the railway. The amendments since this date do not alter the position. The conditions precedent to a grant are contained in 1890, cap. 40, sec. 1 ; 1893, cap. 36, sec. 2 ; 1894, cap. 39, sec. 3 ; and 1892, cap. 4, sec 2 ; and will be complied with by the furnishing of satisfactory security for the completion of the eastern section of the railway, as specified in sub-section (a) of section 8 of the " B. C. Southern Railway Company's Act, 1894." The Committee accordingly conclude that upon completion of the first forty miles of railway, from the boundary of the Province westwards, and upon satisfactory guarantees being given by the Company for the completion of the eastern section of its railway, the Company will be entitled to a grant of the lands in question, the boundaries whereof are designated in section 16 of the "Railway Aid Act, 1890," and advises that a certified copy of this memorandum, if approved, be furnished to the British Columbia Southern Railway Company, in order that such company may be assured of the views and intended action of Your Honour's Government in the premises. Chas. E. Pooley, President, Executive Council. Approved 15th July, 1867. E. Dewdney, Lieutenant-Governor. [No. 460 of 1897.] On a memorandum from the Honourable the Chief Commissioner of Lands and Works, dated 30th October, 1897, reporting that the British Columbia Southern Railway Company having filed plans of their located line of railway, are entitled under section 9 of the " Railway Aid Act, 1890," to a reserve of 32 miles on each side of said line. The Minister reports that in preference to closing up a large area of land by imposing a reserve of which eventually only one-half will be granted to the Company, it would appear advisable to enter into an agreement under which the lands should be still open to acquisition by the public, while the proceeds thereof should be received by the Province in trust for the Company, and to be handed over to them upon performance of the conditions whereunder they would otherwise be entitled to the lands which such proceeds represent. This plan, the Minister points out, has been adopted in the case of other railway grants, and has met with the approval of, and been adopted by, the Legislature. Firstly—The Minister accordingly recommends : That account be kept of the proceeds of all lands which would have been included in a reserve made on the date of the approval hereof in pursuance of the terms of the said 5th section of the " Railway Aid Act, 1890," and that upon the Company selecting and applying for Crown Grants of the lands to which they may become entitled, the proceeds of so much of the lands alienated as are found to be within the boundaries of blocks to be granted to the Company, be thereupon paid over. 63 Vict. British Columbia Southern Railway Company. 449 Secondly—That no timber leases or licences be granted over lands which would be within any such reserve. Thirdly—That the consent which the Company has given hereto, as conveyed in a telegram from Mr. Shaughnessy to the Provincial Secretary, of even date with this report, shall not hinder the Company from selecting any lands which they would otherwise be entitled to receive, and which would be useful for the purposes of the railway hereafter, but that upon the Company duly applying therefor, reserves will be placed upon such lands. The Committee advise approval. Chas. E. Pooley, President of Executive Council. Approved November 1st, 1897. E. Dewdney, Lieutenant-Governor. DOMINION STATUTES. Chap. 36 of 60-61 Victoria (Canada) :— An Act respecting the British Columbia Southern Railway Company. [Assented to 29th June, 1897.] Whereas the British Columbia Southern Railway Company has, by its petition, represented that it was incorporated by an Act of the Legislature of the Province of British Columbia, being chapter 44 of the Statutes of 1888, under the name of "The Crow's Nest and Kootenay Lake Railway Company,"—that the said Act was amended by chapter 63 of the Statutes of 1890,—that the said Acts were amended and the said Company's name was changed to " The British Columbia Southern Railway Company," by chapter 56 of the Statutes of 1891,—that the said Acts were further amended by chapter 47 of the Statutes of 1893,—that the said Acts were consolidated by chapter 53 of the Statutes of 1894,—that by the said Acts the said Company is authorised to build its railway, of a gauge of not less than three feet, from the eastern boundary of British Columbia to New Westminster, in three sections, and a branch, as follows :— (a.) The Eastern Section to consist of that portion of the said railway commencing at the junction of Summit Creek with Michel Creek, thence by way of Michel Creek to Elk River and the Upper Kootenay River, with power to go to the 49th parallel and the Tobacco Plains : (b.) The Central Section to consist of that portion of the railway commencing at a point on the Elk River, near the junction of the Elk River with the Kootenay River, thence in a northerly direction to a point at or near Cranbrook, thence by the Moyee Pass to the Lower Kootenay River, or by the alternative route from Cranbrook by way of St. Mary's River to Pilot Bay, on Kootenay Lake, or to the Lardo River. (c.) The Western Section to consist of that portion of the railway commencing from the western terminus of the Central Section to the coast, by the most convenient route, to a favourable place for crossing the Fraser River to the City of New Westminster, thence to a suitable terminus on Burrard Inlet, and shall include a branch line to Nelson, via Salmon River. (d.) A branch line from a point on the main line at or near the Forks of Michel Creek, thence by way of Michel Creek to Marten Creek : And whereas by an Act of the Legislature of the Province of British Columbia, being chapter 53 of the Statutes of 1896, the time for the completion of the said sections and branch was extended as follows : " The Company shall construct and equip the Eastern Section on or before the 31st day of December, 1898 ; the Central Section and the branch line mentioned in sub-section (d) of the preceding section, on or before the 31st December, 1899, and the Western Section on or before the 31st December, 1900" : and whereas the said Company has, by its petition, further prayed that the said Company and its undertaking may be brought 450 British Columbia Southern Railway Company. 18 9 within the legislative jurisdiction of the Parliament of Canada, and that certain additional powers, as hereinafter set forth, be conferred upon the said Company, and it is expedient to grant the prayer of the said petition : Therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, declares and enacts as follows :— 1. The undertaking of the British Columbia Southern Railway Company, herinafter called " the Company," is hereby declared to be a work for the general advantage of Canada. 2. The Company may extend its line of railway from its eastern terminus in the Crow's Nest Pass, across and over the eastern boundary of British Columbia, into the District of Alberta, thence in an easterly direction to Macleod, or to a point on the line of the Calgary and Macleod Railway, and there to connect with the same, and thence easterly to Lethbridge. 3. The Company may issue bonds, debentures or other securities to the extent of thirty thousand dollars per mile of its railway and branches, including the extension to Lethbridge, but such bonds, debentures or other securities may be issued only at the said rate for the length of railway constructed or under contract to be constructed. 4. The Company may lease its works, or any part thereof, to the Canadian Pacific Railway Company, on such terms and conditions and for such period as is agreed upon between the directors of the said companies : Provided that the lease be sanctioned by the consent in writing of every shareholder of the Company, and by the Governor in Council; or failing such consent of every shareholder, then by two-thirds of the votes of the shareholders present or represented at a special general meeting duly called for the purpose, and by the approval of the Governor in Council, after notice of the proposed application therefor has been published in the Canada Gazette, and in a newspaper published at Vancouver, in British Columbia, for at least four weeks previous to the hearing of such application; and a duplicate of the said lease shall, within thirty days after its execution, be deposited in the office of the Secretary of State, of which deposit notice shall be given by the Company in the Canada Gazette. 5. Any Act hereafter passed for the purpose of controlling railway companies incorporated by or subject to Parliament as to the issuing of stock or bonds, and as to rates or tolls and the regulation thereof, and as to running powers over or other rights in connection with the railway of any company by any other company, and the exercise of powers conferred upon railway companies, shall apply to the Company from the time such Act goes into effect; but this section shall not be construed to imply that such Act would not apply to the Company without the enactment of this section. Chap. 5 of 60-61 Victoria (Canada):— An Act to authorise a Subsidy for a Railway through the Crow's Nest Pass. [Assented to 29th June, 1897.] HER MAJESTY, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:— 1. Subject to the conditions hereinafter mentioned, the Governor in Council may grant to the Canadian Pacific Railway Company a subsidy towards the construction of a railway from Lethbridge, in the District of Alberta, through the Crow's Nest Pass to Nelson, in the Province of British Columbia (which railway is hereinafter called "the Crow's Nest Line"), to the extent of eleven thousand dollars per mile thereof, and not exceeding in the whole the sum of three million six hundred and thirty thousand dollars, payable by instalments on the completion of each of the several sections of the said railway of the length respectively of not less than ten miles, and the remainder on the completion of the whole of the said railway; provided that an agreement between the Government and the Company is first entered into, in such form as the Governor in Council thinks fit, containing covenants to the following effect, that is to say:— On the part of the Company :— («.) That the Company will construct, or cause to be constructed, the said railway, upon such route and according to such descriptions and specifications and within such time or times as are provided for in the said agreement, and, when completed, will operate the said railway for ever: 63 Vict. British Columbia Southern Railway Company. 451 (b.) That the said line of railway shall be constructed through the town of Macleod, and a station shall be established therein, unless the Governor in Council is satisfied by the Company that there is good cause for constructing the railway outside the limits of the said town, in which case the said line of railway shall be located and a station established at a distance of not greater than five hundred yards from the limits of the said town: (c.) That so soon as the said railway is opened for traffic to Kootenay Lake, the local rates and tolls on the railway and on any other railway used in connection therewith, and now or hereafter owned or leased by or operated on account of the Company south of the Company's main line in British Columbia, as well as the rates and tolls between any point on any such line or lines of railway and any point on the main line of the Company throughout Canada, or any other railway owned or leased by or operated on account of the Company, including its lines of steamers in British Columbia, shall be first approved by the Governor in Council or by a Railway Commission, if and when such Commission is established by law, and shall at all times thereafter and from time to time be subject to revision and control in the manner aforesaid: (d.) That a reduction shall be made in the general rates and tolls of the Company as now charged, or as contained in its present freight tariff, whichever rates are now the lowest, for carloads or otherwise, upon the classes of merchandise hereinafter mentioned, westbound, from and including Fort William and all points east of Fort William on the Company's railway to all points west of Fort William on the Company's main line, or on any line of railway throughout Canada owned or leased by or operated on account of the Company, whether the shipment is by all rail line or by lake and rail, such reduction to be to the extent of the following percentages respectively, namely:— Upon all green and fresh fruits, 331? per cent.; Coal oil, 20 per cent.; Cordage and binder twine, 10 per cent.; Agricultural implements of all kinds, set up or in parts, 10 per cent.; Iron, including bar, band, Canada plates, galvanized, sheet, pipe, pipe-fittings, nails, spikes and horse-shoes, 10 per cent.; All kinds of wire, 10 per cent.; Window glass, 10 per cent.; Paper for building and roofing purposes, 10 per cent.; Roofing felt, box and packing, 10 per cent.; Paints of all kinds and oils, 10 per cent.; Live stock, 10 per cent.; Wooden ware, 10 per cent.; Household furniture, 10 per cent.; And that no higher rates than such reduced rates or tolls shall be hereafter charged by the Company upon any such merchandise carried by the Company between the points aforesaid; such reductions to take effect on or before the first of January, one thousand eight hundred and ninety-eight: (e.) That there shall be a reduction in the Company's present rates and tolls on grain and flour from all points on its main line, branches, or connections, west of Fort William to Fort William and Port Arthur and all points east, of three cents per one hundred pounds, to take effect in the following manner:—One and one-half cent per one hundred pounds on or before the first day of September, one thousand eight hundred and ninety-eight, and an additional one and one-half cent per one hundred pounds on or before the first day of September, one thousand eight hundred and ninety-nine; and that no higher rates than such reduced rates or tolls shall be charged after the dates mentioned on such merchandise from the points aforesaid : (_/!) That the Railway Committee of the Privy Council may grant running powers over the said line of railway and all'its branches and connections, or any portions thereof, and all lines of railway now or hereafter owned or leased by or operated on account of the Company in British Columbia south of the Company's main line of railway, and the necessary use of its tracks, stations and station grounds, to any other railway company applying for such grant, upon such terms as such Committee may fix and determine, and according to the provisions of The Railway Act and of such other general Acts relating to railways as are from time to time passed by Parliament; but nothing herein shall be held to imply that such running powers might not be so granted without the special provision herein contained: 452 British Columbia Southern Railway Company. 1899 (g.) That the said railway, when constructed, together with that portion of the Company's railway from Dunmore to Lethbridge, and all lines of railway, branches, connections and extensions in British Columbia south of the main line of the Company in British Columbia shall be subject to the provisions of The Railway Act, and of such other general Acts relating to railways as are from time to time passed by Parliament: (h.) That if the Company, or any other Company with whom it shall have any arrangement on the subject, shall, by constructing the said railway or any part of it, as stipulated for in the said agreement, become entitled to and shall get any land as a subsidy from the Government of British Columbia, then such lands, excepting therefrom those which in the opinion of the Director of the Geological Survey of Canada (expressed in writing) are coal- bearing lands, shall be disposed of by the Company or by such other Company to the public according to regulations and at prices not exceeding those prescribed from time to time by the Governor in Council, having regard to the then existing Provincial regulations applicable thereto; the expression "lands" including all mineral and timber thereon wdiich shall be disposed of as aforesaid, either with or without the land, as the Governor in Council may direct: (i.) That if the Company, or any other company with whom it shall have any arrangement on the subject, shall, by constructing the said railway or any part of it, as stipulated for in the said agreement, become entitled to and shall get any lands as a subsidy from the Government of British Columbia which in the opinion of the Director of the Geological Survey of Canada (expressed in writing) are coal-bearing lands, then the Company will cause to be conveyed to the Crown, in the interest of Canada, a portion thereof to the extent of fifty thousand acres, the same to be of equal value per acre as coal lands with the residue of such lands. The said fifty thousand acres to be selected by the Government in such fair and equitable manner as may be determined by the Governor in Council, and to be thereafter held or disposed of or otherwise dealt with by the Government as it may think fit, on such conditions, if any, as may be pi*escribed by the Governor in Council, for the purpose of securing a sufficient and suitable supply of coal to the public at reasonable prices, not exceeding two dollars per ton of two thousand pounds free on board cars at the mines. And on the part of the Government, to pay the said subsidy by instalments as aforesaid. 2. The Company shall be bound to carry out in all respects the said agreement, and may do whatever is necessary for that purpose. 3. In order to facilitate such financial arrangements as will enable the Company to complete the railway as aforesaid without delay, and to acquire and consolidate with it the railway from Dunmore to Lethbridge, hereinafter called "the Alberta Branch," which, under the authority of chapter thirty-eight of the Statutes of 1893, it now operates as lessee, and is under covenant to purchase, the Company may issue bonds, which will be a first lien and charge and be secured exclusively upon the said Alberta Branch and Crow's Nest Line together, in the same way and with the same effect as if both (he said pieces of railway to be so consolidated were being built by the Company as one branch of its railway within the meaning of section one of chapter fifty-one of the Statutes of 1888, and that section shall apply accordingly, such first lien to be subject to the payment of the purchase money of the Alberta Branch, as provided for in the said covenant to purchase. OPINION OF MR. HALDANE, Q. C. The real question in this case is one which appears to me to be not only novel, but of considerable difficulty. I have arrived at a conclusion upon it, which I will express, but I cannot say that I feel able to predict, with confidence, what view a tribunal might take of the controversy after hearing arguments. The Government of the Province, by Cap. 40 of 1890 (B. C. Statute), upon the preamble that the " construction and equipment" of certain lines of railway would materially advance the welfare of the Province, and that it is expedient to offer inducements for the construction of such lines, enacts that the Lieutenant-Governor may grant to the Crow's Nest and Kootenay Lake Railway Company, 20,000 acres of public land for each mile of railway completed, provided the railway be of a certain gauge, and on guarantees being obtained satisfactory to the Lieutenant-Governor, the grant to be made on completion of 63 Vict. British Columbia Southern Railway Company. 453 each section of 20 miles. There is a condition subsequent to sec. 12 that the railway is to be operated continuously, but there are no words in the Statute divesting the grant, if this condition subsequent is at any time not complied with. These provisions may be taken as typical of the provisions upon which the question to be determined arises. The first question is, whether the power given to the Lieutenant-Governor is purely discretionary, or whether the language of the Statute really amounts to a contract with the Crow's Nest Ry. Co., which they are entitled to enforce by Petition of Right. I am of opinion that the latter view is the true one. Ln Julius v. The Bishop of Oxford, 5 App. Cas. 214, Lord Cairns says at p. 225 that "when a " power is deposited with a public officer for the purpose of being used for the benefit of per- "sons who are specifically pointed out, and with regard to whom a definition is supplied by the " Legislature of the conditions upon which they are entitled to call for its exercise, that power " ought to be exercised, and the Court will require it to be exercised." The present case appears to me, so far, to fall exactly within the principle so laid down. The next question is, as to the effect of the line having passed from Provincial control to that of the Dominion under sees. 91 and 92 of the B. N. A. Act. It is true that as a general rule a railway undertaking cannot be transferred without statutory authority. But it must be borne in mind that the power of the Dominion was in existence when the Act of 1890 and the subsequent Act were passed, and no provision was made to guard against its exercise. There is nothing in the Statutory Contract which provides that the Railway Company shall not be entitled to the grant, should the Dominion exercise its power. The consideration for the grant appears to me to be confined to the construction of a railway of the proper gauge. When that is done the grant is earned. Section 12, as to continuous operation, does not appear to me to be made a condition ; it is an obligation imposed independently by the Statute. Section 14 only says that the provisions of the general British Columbia Railway Act are to apply to the enterprise subsidised, and originally the Act doubtless did so apply to the enterprise authorised. I cannot find, in the Statutory Contract, any condition expressed that the railway should never pass from under the provisions of this Act to the control of the Dominion Legislature, and I doubt whether any such provision can be implied. In the light of these observations I will pass to the specific questions put to me :— 1 & 2. The Canadian Pacific Railway Co. has bought all the shares of the B. C. Southern Ry. Co. and controls it, but the British Columbia Southern still remains a legal entity, and in law has constructed the railway and complied with the conditions, and is entitled to the grant. 3. Yes. 4. In my opinion the effect of the Dominion Legislation has not been to deprive the B. C Southern Co. of its title to a grant. As I have already said, this is the conclusion that I have arrived at. I am far from feeling confident about it. I think the strongest argument the other way is the broad one, that what the contract contemplated was a grantee subject to Provincial control, and it is only because of the explicit definition in section 1 of the Railway Aid Act of 1890, that I think it ought not to prevail. It may well be, if grounds of policy allow the risk of defeat to be run, worth while to try the question. 5 & 6. I am unable to differentiate between the lands referred to in Sec. 16 of the Railway Aid Act, 1890, as amended by sec. 3 of the Act of 1893, and the other land. I think that the Company has a similar title to it. It will be observed as regards the Order in Council, 271, of 1897, that what it did was done after the passing of the Dominion legislation, and presumably with full knowledge of it. In the view I have expressed, this makes no difference, nor would it have made a difference even had the Company actually leased to the Canadian Pacific Company. (Signed) R. B. Haldane, 10 Old Square, Lincoln's Inn, 17th May, 1899. 454 British Columbia Southern Railway Company. 1899 OPINION OF MR. ROBINSON, Q. C, MR. OSLER, Q. C, AND MR. LEFROY. The British Columbia Southern Railway Land Grant. We have considered the case submitted to us with the letter of the Attorney-General of British Columbia, together with the several documents accompanying it, and the several Statutes, and beg to submit our opinion as follows, taking up in order the different questions asked: — Opinion. Qn. 1.—Under the circumstances stated in the case for opinion, has the Crow's Nest Pass Railway been constructed by the B. C. Southern Railway Company within the meaning of section 1 of Chap. 40 of the British Columbia Statutes of 1890, or has not the line of railway been constructed by the Canadian Pacific Railway Co. itself? Ans.—The circumstances stated in the case do not permit of any definite answer being given to this question. The railway as now constructed could have been built by either Company. It may be that while the C. P. R. Co. financed the undertaking its officers and friends may have acquired the stock of the British Columbia Southern Railway Co., and formally made all contracts in the name of the local Company, and it will probably be found, we think, that there are regular minutes and contracts carrying out the works in such a manner that the claim to the land grant has been as far as possible preserved. It is a question of fact, and while it may be that upon discovery and evidence it would be held that the actual building was by the C. P. R. Co., having regard to the Dominion subsidy and the agreement provided for by the Dominion Statute, 60-1 Vic, c. 5, yet the provisions of section 17 of the Act of Incorporation of 1888, and of section 23 of the British Columbia Act, 57 Vic, c. 53, would have to be considered. We think that the powers given by this section were intended to be exercised only after the railway had been actually constructed (see as to this Wood v. . edford, etc., R. W. Co., 8 Phil. (Pa.) 94), but it is open to argument that the right to convey "* * any rights or powers acquired under this Act" may give the power to sell the franchise to build. Qn. 2.—If in your opinion the Canadian Pacific Railway Co. has, as a matter of law, constructed the said railway line, can such construction enure to the advantage of the B. C. Southern Ry. Co. so as to entitle it to the said land grant? Ans.—If in fact and in law the railway was constructed by the C. P. Ry. Co., and not by the B. C. Southern Ry. Co., we are of opinion that such construction cannot enure to the benefit of the latter Company so as to entitle them to the land grant. Qn. 3.—Is the Lieutenant-Governor in Council bound, under the legislation of British Columbia above referred to, to grant the said lands to the B. C. Southern Ry. Co., or is it discretionary with the Lieutenant-Governor in Council to do so? In other words, taking it for granted that the B. C. Southern Ry. Co. has constructed this railway, as contemplated by the above legislation, would the Lieutenant-Governor in Council be ordered by the Court to make this grant under proceedings by the Company by Petition of Right 1 Ans.—Under the general Railway Aid Act, 53 Vic, c 40 (B. C), taken alone and read in connection with the decision in the Hereford Ry. Co. v. The Queen, 24 S. C. R. 1, on a somewhat similar enactment, the provision might perhaps be held to be permissive only and discretionary. There, however, the Quebec Interpretation Act, as pointed out by the Chief Justice (at p. 14), was absolute it its terms with regard to the meaning of the word "may," while that of British Columbia is qualified, being in effect a declaration of the previous Common Law Rule, and providing that "may" is to be construed as permissive only "unless it be otherwise provided, or there be something in the context or other provisions thereof indicating a different meaning, or calling for a different construction," qualifying words much to the same effect as those in the Ontario Interpretation Act, as to which see Re Lincoln Election, 2 A. R. at pp. 341-2. Moreover, the Act in question in Hereford Railway Co. v. The Queen did not contain the recital in the British Columbia Railway Aid Act of 1890 as to the benefit of the railway to the Province and the expediency of offering inducements for its construction. 63 Vict. British Columbia Southern Railway Company. 455 There is much force, we think, in the view adopted in the case of The Queen v. Mayor of Wellington, 15 New Zealand Reports, 72 (1896), that such an enactment is in effect a statutory offer, to become a binding contract on compliance with the condition. It seems unnecessary, however, to decide this point, for we have the subsequent enactment in 59 Vic, c. 4 (B. G), that the completion of the work by the time mentioned shall be sufficient compliance with the Railway Aid Act to entitle the B. C. Southern Ry. Co. to the grant, which seems to be a statutory recognition of their right. But assuming the Statutes as to the land grant to be permissive only, and to leave it discretionary with the Lieutenant-Governor in Council to complete the grant, we have the Order in Council of May 6th, 1891, setting apart certain lands to be conveyed to the Company on compliance with the statutory conditions, and described as an initial block of the lands granted to the B. C. Ry. Co. under the Act of 1890, as an inducement for the construction of the said railway; and the further Order in Council of July 15th, 1897, setting out that on completion of the first forty miles, and satisfactory security for the completion of the rest of the eastern section, the Company will be entitled to a grant of the lands as described in section 16 of the Aid Act of 1890 with another Order in Council of November 1st, 1897, recognizing this Order in Council and relating to the method of carrying it out. There are also two other Orders in Council of February 25th, 1890, and August 11th, 1890, reserving from sale or settlement the land mentioned in section 16 already referred to, and the 400,000 acres afterwards reserved for this railway specifically by the Order in Council of May, 1891. Looking only to the legislation of British Columbia, and the action of the Provincial Government thereon, we conclude that the B. C. Southern Ry. Co., on building the road in accordance with the Statutes, would be entitled to the grant. We have not overlooked the case of Clarke v. The Queen, 1 Ex. Ct. Rep. 182 (1886), which, as reported, decides that a Petition of Right will not lie to compel the Crown to grant a patent of lands; but this is opposed to the decision of the present Chief Justice of the Supreme Court, not cited in it, of Canada Central Railway Co. v. The Queen, 20 Gr. 273 (1873), and is observed upon in Peterson v. The Queen, 2 Ex. C. R. 67 (1889). See also Clode on Petition of Right, pp. 70-2, and the cases there cited of James v. The Queen, L. R. 17 Eq. 502 (1874); and In re Brain, L. R. 18 Eq. 389; and Peck v. The Queen, 1 B. C. Rep. (pt. 2), 11 (1884). Upon the whole we do not think the jurisdiction can be successfully questioned, especially under the wide terms of the British Columbia Crown Procedure Act, R. S. B. C. 1897, c. 57. Qn. 4.—What is the effect upon the rights of the B. C. Southern Ry. Co. of chapter 36 of the Dominion Statutes of 1897, by which the railway is declared to be for the general advantage of Canada, this, under the provisions of the British North America Act (sec. 92, sub-s. 10), being a work entirely under the legislative power of the Dominion Parliament? Ans.—We think the fact of the work being declared one for the general advantage of Canada would not alone, in the absence of express provisions to that effect, necessarily deprive the British Columbia road of their right to the bonus. Any provincial road may become such a work by special enactment, or under the provisions of the Dominion Railway Act, 1888, sec. 306. And this we think must be taken to have been known to the Provincial Legislature. Nor can it be said to have been the policy of the Provincial Government to prevent such a change. On the contrary, it would seem to have been contemplated, for by the same Act which authorises the bonus to this Company a bonus was authorised (sec. 4) to the C. P. Ry. Co. for the building of a road from Farwell to connect with this road, which would of itself make it a Dominion road; and by sec. 17 of the Act of Incorporation of 1888, and sec. 23 of the Consolidating Act, 57 Vic, c. 53 (B. C), the Company are authorised to agree to convey or lease their road in whole or in part to any connecting road, or "any rights or powers acquired under this Act," which after completion, if not before, would certainly authorise a lease to the C. P. Ry. Co. Thus it would seem clear that there was in the contemplation of the Provincial Legislature the possibility, if not the probability, of the railway passing out of the control of the Province, and into that of the Dominion, by the junction contemplated with the C. P. Ry., or by the sale or lease authorised by sec. 17. But though the merely becoming a Dominion work might not of itself affect the Company's right to the bonus, the Dominion Parliament, we think, might so deal with the road before the bonus had been earned or granted as to have that effect. If, for example, they should dispense with the building of a material part of it, or so change the route that the declared object of 456 British Columbia Southern Railway Company. 1899 the Legislature in obtaining its construction would be defeated, or otherwise render the road authorised and built under their control not in substance that for which the bonus was given, the bonus under such circumstances could probably not be enforced. What then has been done here on which the Province could rely as sustaining such a defence? It may be noted, in the first place, that the Provincial Legislature had before them throughout a railway scheme which connected the Crow's Nest Pass with the west and east, by the construction of the line so as to connect with a contemplated and subsidised Canadian Pacific Railway branch from Farwell, or with the west by the construction of a line eventually to terminate at Burrard Inlet, and it was in aid of such railway scheme that a land grant was attached and reserves made of the public lands along the intended route. As to this, however, it must be observed that the grant to the Farwell branch of the C. P. Ry. was not kept alive, and that long before the Dominion legislation under consideration was passed, the time limit imposed for the commencement of that branch had expired. We assume for the purpose of this opinion that the railway now in operation from Lethbridge to the present western terminus was ostensibly constructed by the B. C. Southern Ry. Co., and that from point to point the railway exists and is in operation upon the route provided for by the British Columbia Legislature, though we are not advised as to the filing of the plans provided for by sec. 9 of the Act, 53 Vict., c. 40 (B. C). Under these circumstances it is open to the B. C. Southern Ry. Co. to argue with much force that the only condition imposed by the Acts 59 Vic, c. 4, s. 2 (B. C), has been fully complied with, and that the land grant for the eastern section has been earned; and if no other element entered into the matter we think, as we have already said, that the position of the Railway Company would probably be entitled to prevail. But there are other circumstances to be considered. The road has not only been assumed by the Dominion, thus annulling the provision in the Provincial charter that the line should be operated continuously to the satisfaction of the Lieutenant-Governor in Council, but this has been done at the request of the Company holding such charter; and more especially as part of a general arrangement by which, among other things, the terminus has been altered by the line being extended into another territory. The work, which theretofore was a Provincial scheme, has now become part of a great Dominion undertaking, and the construction of the road from Lethbridge to Nelson has been made the subject of a special agreement, which we assume to have been entered into in accordance with the Statute between the Government of Canada and the C. P. Ry. Co., to which the road is to be leased, the consideration for such agreement being a subsidy of $11,000 per mile to be paid by the Dominion Government, not to the B. C. Southern Co., but to the C. P. Ry. Co. Under this agreement the route of the railway is to be provided for, not necessarily in accordance with section 9 of the Charter, a reduction of certain freight rates by the Canadian Pacific Ry. Co. is stipulated for, and the Railway Committee of the Privy Council are empowered to grant running powers over the line on such terms as they may fix. Further, it is provided that if the Canadian Pacific Ry. Co., or any other company with whom it may have an arrangement on the subject, shall, by constructing the line or any part of it, become entitled to and get any land as a subsidy from the Government of British Columbia, such lands, except coal-bearing lands, shall be disposed of by the Company according to regulations and at prices not exceeding those prescribed by the Governor in Council, having regard to the then existing Provincial regulations applicable thereto, including all minerals and timber thereon. And should the Company thus obtain any coal-bearing lands, 50,000 acres thereof are to be conveyed to the Crown in the interest of the Dominion, to be selected by the Dominion Government as they may determine, and held or disposed of by them on such terms as they may prescribe, in order to secure a suitable and sufficient supply of coal to the public not exceeding $2 per ton, free on board at the mines. All these are very important provisions, which the British Columbia Legislature might or might not have assented to. In our view they afford strong ground for contending that the scheme, as thus re-constituted, is not in substance identical with that which was before the British Columbia Legislature when they passed the various Acts under which the land grant is claimed, but that the whole situation is so changed by the intervention of the scheme of the Canadian Pacific Ry. and the Dominion, which may be said, incidentally, to absorb the British Columbia Southern Co. and its proposed railway, that the British Columbia legislation no longer compels, if indeed it permits, the Lieutenant-Governor in Council to complete the land grant. 63 Vict. British Columbia Southern Railway Company. 457 It would seem evident also from the terms of their legislation that the Dominion Parliament regarded the right to the bonus as an open question, and did not intend by their enactments to prejudice it. There may be other coal-bearing lands ungranted, and it may well be argued that the interest given to the Dominion in the public lands of British Columbia, with the purpose assigned for it, point to a control by the Dominion over property and civil rights in the Province with which they have otherwise no concern, not required for the purpose of carrying out any specific legislative power assigned to the Dominion, or within the purview of ordinary railway legislation. It is true that the Orders in Council of 1897 were made after the passing of the Dominion statutes in question, but the Executive Government of the Province, we apprehend, as regards the grant of such a bonus to a railway, could act only under the authority of the Legislature. Sections 116 and 39 of the British Columbia Crown Lands, R. S. B. C, 1897, c. 113, would seem to show clearly an intention to confine such power to the Legislature. It may, no doubt, be urged in favour of the grant that all or nearly all that has been done could have been otherwise effected beyond question by Dominion legislation after the bonus had been granted. But though the present legislation might have been passed by the Dominion Parliament after the land had been granted to the Company, notwithstanding any opposition that might have been offered by the Province, and though this might have offered no ground for recovering it back, yet in such case the $11,000 bonus obtained from the Dominion might not have been granted or required or the agreement made for which it is a consideration, and the grant would have been to the scheme for which the Provincial Legislature authorised it. A change made by the Dominion legislation before construction is made at the risk of the Company, who know they may thereby lose their expected grant, and differs very much from such a change made after construction of the road. In the latter case the Provincial representatives in the Dominion Commons and Senate would be heard, we assume, on behalf of the Province as against any change in the scheme unfair to it, having regard to the subsidy given. If the C. P. R., with a subsidy of $11,000 per mile and a right to issue bonds for $30,000 per mile, and with the statutory agreement made with the Dominion Government, had applied to the British Columbia Legislature for a grant of 20,000 acres per mile of railway, it might or might not have been given, but the considerations upon which the members of the House would have based their conclusions would have been very different. The question so largely depends upon our own constitutional and statutory provisions that no authorities can be found having a direct bearing. The following decisions, chiefly in the United States Courts, would seem well worth referring to, but in considering their application careful regard must of course be had to the general laws and statutes on which they depend: In re The Atlantic & Lake Superior Ry. Co., 8 R. J. Q. (Q. B.) 42; Elliott on Rys., Vol. 1, pp. 188-9.; Rochester & C. Ry. Co. v. Cuyler, 7 Lans. (N. Y.) 431; Detroit & C. Ry. Co. v. Starnes, 38 Mich., 698, see especially at p. 700; Muscatine, &c, Ry. Co. v. Horton, 38 Io., 33; Harshman v. Bates Co'y, 92 U. S., 569; Co'y of Scotland v. Thomas, 94 U. S., at p. 691. We cannot, we must add, upon such a question as that here submitted to us, assume to speak with confidence, both because as one of law only it seems both novel and difficult, and because, should the right to the bonus be contested, it may in the end turn to some extent on questions of fact of which we have no information. The whole arrangement with the Canadian Pacific Railway and the Dominion Government may have been in the contemplation of and known not only to the Government but to the Legislature of British Columbia, and a matter of public notoriety when the Provincial Act of 1896 was passed. And while this in an ordinary case might be inadmissible and irrelevant as affecting the construction of the Act, we are by no means sure that under the peculiar circumstances of this case, and with reference to such transactions, it would be regarded as equally immaterial or have no effect. It will, of course, be understood that with the policy or propriety of carrying out the grant by the Provincial Government, or declining to do so, in view of the action of their predecessors, we have no concern. Our opinion is confined entirely to the legal aspect of the case, and to questions of legal right only. Question 5.—If, in your opinion, the Lieutenant-Governor in Council is bound to grant the said lands to the B. C. Southern Railway Company and the said railway company is 458 British Columbia Southern Railway Company. 1899 entitled to receive them, in spite of the said legislation which has taken the Company out of the legislative control of the Legislature of British Columbia, what is your opinion as to the effect of section 16 of Chap. 40 of the British Columbia Statutes of 1890, as the said section has been modified by subsequent Acts set out in the case ? Question 6.—Is the Government bound in any event to give the land described in the said section 16 to the railway company as part of their grant? By the Railway Aid Act, 1890, the grant was to be in alternate blocks on each side of the railway, and the thirty-two mile belt was calculated to give the Company in that area the amount of land which construction of the railway called for, but stretches of water and other grants might leave a deficiency, and the function of section 16 was to provide a territory from which said deficiency, should it arise, could be made up. Any question under sec. 16 would, therefore, naturally arise after the railway had been constructed, and when it was found that the thirty-two mile belt in alternate sections would not give the twenty thousand acres per mile to the Company. By sec. 3 of the Act 56 Vic, c. 36 (B. C.) the lands mentioned in sec. 16 of the Railway Aid Act of 1890 " may be available to the Company as a portion of the grant, . . . and may be applied for as a portion of the block to be granted upon completion of the second twenty miles of the Eastern section of the said Company's railway." By the Act of 1894, 57 Vic, c. 39 (B. C.) it was declared that it was advisable to continue the existing land grant to the said Railway Company. By the Act of 1896, 59 Vic, c. 4, it is declared that: " It shall be a sufficient compliance " with the provisions of the Railway Aid Act, 1890, as amended by the two Acts of the Legis- " lature of this Province passed 56 Vic, c 36, and 57 Vic, c 39, to entitle the British Columbia " Southern Railway Co. to the grant by the said Acts authorised, that the said Company shall " construct and equip the several sections of its line of railway within the times specified in " the Act of the present session," etc. We are uninformed as to whether any transactions have taken place under the Order in Council of November 1st, 1897, and presume that no alternate blocks have been laid out, and that none of the lands in question have been sold by the Lieutenant-Governor in Council. We notice, however, that this Order uses the words, " and that upon the Company " selecting and applying for Crown Grants of the lands to which they may become entitled," which would seem a recognition by the Lieutenant-Governor in Council that the right to select blocks was with the Company, and this, under the legislation, we think intra vires. We conclude that if the British Columbia Southern Railway Co. were otherwise in a position to demand the land grant in question, force and effect must be given to sec. 3 of the Act of 1893. It is to be considered, no doubt, with the provisions of the Railway Aid Act, 1890, but we think the Company need not show a deficiency in the quantity of land available on the railway belt before asking for land in the territory described in sec. 16. We think, having regard to the context and the surroundings—the Act of 1893 following and perhaps intended to supercede the Order in Council of May 6th, 1891—that the Company, if otherwise entitled to claim, could sustain their right to the lands described in sec. 16 of the Railway Aid Act. (Signed) C. Robinson. R. B. Osler. July 3rd, 1899. 63 Vict. British Columbia Southern Railway Company. 459 OPINION OF MR. BODWELL, Q.C. Victoria, B. C, August 4th, 1899. Re British Columbia Southern Railivay. Sir,—I have the honour to inform you that in pursuance of your request I have considered the case submitted by the Attorney-General for the opinion of counsel, and have arrived at the following conclusions :— I do not think it necessary to say anything in answer to questions one, two, three, five and six of the case. The counsel who have been consulted all agree on these points, and it is scarcely necessary for me to say that I concur with the opinions which have already been expressed. Question 4.—"What is the effect upon the rights of the British Columbia Southern Railway Company of Chapter 36 of the Dominion Statutes of 1897, by which the railway is declared to be for the general advantage of Canada, thus under the provisions of the British North America Act being a work entirely under the legislative power of the Dominion Parliament?" The point to be determined is, whether, in passing the Acts in question, the Legislature of British Columbia intended that if, at any time, the railway company should come under the legislative control of the Dominion, the aid which was provided by the Local Legislature should not be granted ; and has that intention been expressed in the language of the Statutes of British Columbia which created the corporation and which relate to the subsidy? In considering the answer to such a question attention must be given to the following matters :— 1. The main object of the Legislature in granting the subsidy. 2. The surrounding circumstances at the time of the enactment of the various Statutes relating to the subject. 3. The form of words which has been adopted in the Statutes. 4. The subsequent actions of the parties to the agreement. The first proposition may be disposed of in a few words. At the time of the incorporation of the company the portion of the Province through which the railway was to be constructed was in a comparatively undeveloped state. The Legislature considered that railway construction was necessary to assist in the opening up of the country; that the building of such a road within the time contemplated could not be accomplished unless public aid were given to the undertaking, and that such aid could be best afforded by a grant of public lands. The Legislature must, I think, have intended that such grant should enure for the benefit of the corporation who should construct and operate the road. It cannot be supposed that the railway in contemplation was to differ in any essential respect from the ordinary type, or that the corporation which owned it was to be subject to any peculiar limitations. It must have been expected that such a corporation would possess the ordinary powers of a railway company, and would use those powers wherever and whenever they could do so with advantage to themselves. These were not matters of serious concern to the Legislature, but the construction and operation of the railway were, and it was considered of sufficient importance to the country to justify the Government in making a grant of 20,000 acres of land per mile as a consideration to induce the Company to enter upon the undertaking. The Railway Corporation was created in 1888 by a special Act. In passing this Act two courses were open. All the powers and limitations might have been set out in the Act of Incorporation, or the special powers of the Company only might be specified in the Act, and in addition the provisions of a general railway Act might be applied to the undertaking. The latter, which is the usual method, was adopted in this case. There is a general Railway Act of the Dominion. There is also a general Railway Act of the Province. Broadly speaking, each of these Acts may be said to consist of two parts. One set of provisions is designed to grant to the Company the powers essential to the successful operation of its undertaking; another set of provisions imposes such limitations on the Company 460 British Columbia Southern Railway Company. 1899 as are considered necessary for the protection of the public. As regards the first class, the Dominion and Provincial Statutes are practically identical, and although in respect to the latter class there is some variation between the two Acts, I do not think it can be said there is such a radical distinction as that the Legislature would deem it necessary, in the public interest, to require that a railway should be operated under one rather than the other. It cannot be supposed that the Province was to retain any fanciful or unusual control over the Company. If so, no general Act would have been applied, but all the relations between the public and the Company would have been set out at length in the special Act. All that was contemplated was the operation of an ordinary railway in the usual manner in which such undertakings are managed. It is plain that the Legislature considered that the Dominion law was sufficient for these purposes, since the first Act of Incorporation specifically applies the Dominion Railway Act to the railway in question. It is true that the Provincial Railway Act was not then in existence, but the point is, that the Legislature must be taken to have had in view the protection of the public interest only, and if they had not thought the Dominion Act sufficient, they would not have incorporated it, but would have set out, in the special Act, the provisions which they considered necessary. In 1890 the first subsidy Act was passed. The grant to the B. C. Southern was included in a Railway Aid Act which provided subsidies for certain other railways as well. At the same Session a Railway Act for the Province was passed, and section 14 of the Subsidy Act is in the following words :— "The provisions of the British Columbia Railway Act passed during the present Session shall apply to all of the enterprises subsidized by this Act." I think this section would operate as a repeal of the provisions in the original Act applying the Dominion Statute to the undertaking, but I do not think any special significance is to be attached to it. The section is part of an Act relating to several railways, all of which, at that time, were Provincial undertakings, and the Legislature having just put in force a general Railway Act, one would expect that for the sake of uniformity and the orderly management of affairs its provisions would be applied to all railways in the Province so long as they remained strictly Provincial works. In 1894 several Acts relating to the B. C. Southern were consolidated, some new provisions were added, certain additional powers were granted to the Corporation, and section 11 says :— "The provisions of the British Columbia Railway Act shall, so far as such provisions are " applicable to the undertaking and are not inconsistent with or contrary to the provisions of " this Act, apply to the said railway." This is the usual form of words adopted in private railway Acts in the Province. I think the same effect would have followed even if the section had not been inserted, since the Railway Act applies to every railway incorporated after its passage. I think, therefore, that neither section 14 of the Subsidy Act, nor section 11 of the Act of 1894 can be read as the expression of a condition of special importance upon which the Legislature intended the subsidy to depend. On the contrary, they ought to be read as enabling sections by which the machinery for the operation of the Company was provided, and as applying the general law to an ordinary railway. When all this is done we, therefore, have the case of a railway company incorporated in the usual manner in the Province, and we have an agreement upon the part of the Legislature that when this railway is constructed the Company shall receive a certain grant of land. Now, what are the rights pertaining to such an incorporation ? What is the usual manner in which such a Company would conduct its affairs?—for the Legislature must be presumed to have had each of these matters in mind when it provided a subsidy for the undertaking. In this connection the locality in which the railway was to be constructed must be kept in view. The eastern terminus of the road was very near the boundary of the Province. It did not, at that point, reach any great centre which could satisfy the requirements of a final terminus of its operations. The Company must, therefore, in order to be a successful commercial enterprise either construct its road still further east or make a connection with some other railway extending beyond the boundaries of the Province. Such a building or connection, however, ipso facto would bring the corporation within the control of Dominion legislation. It was possible, of course, for the Province to stipulate that in such an event the subsidy should not be granted, but can any good reason be given for the insertion of that condition in the agreement. Such a connection must increase the business of the road, and in that way further the 63 Vict. British Columbia Southern Railway Company. 461 intention of the Legislature in granting the subsidy, namely, the opening up and development of the resources of the territory through which the railway would be constructed. I do not think that the possibility of the obtaining of an additional bonus from the Dominion can be suggested as a reason. It must now be conclusively presumed that the Legislature considered that the mere construction of the road within the Province was a sufficient return for the grant, irrespective of any profits which the Company might afterwards obtain by reason of the operation of the railway. Since no reason for the imposition of such a condition to the grant can be given, it will not be read into the Act in the absence of words clearly indicating such an intention. No such words are to be found in the Statute in question. There is no restriction upon the powers of the Corporation pointing in that direction. The sections, applying the provisions of the B. C. Railway Act, were necessary and proper so long as the railway was only a Provincial road, and would, under the Constitution, give place to the Federal law, without doing violence to the contract between the parties or injury to the public, as soon as the Company should accomplish that which the Legislature must have foreseen would happen when they created the incorporation. I think it is also necessary to refer to the Statutes subsequent to 1890 in order to arrive at a correct conclusion. It is clear beyond question that this Company has been throughout favoured by the Legislature. The time for the construction of the road has been several times extended ; certain requirements of the original Statutes which, in their operation seemed to embarrass the Company have, from time to time, been repealed or modified in their favour. In 1894 the work of construction was divided into sections; the subsidy was apportioned accordingly, and care was taken to provide that the Company should not lose the benefit of expenditure on certain sections in the event of their being unable to complete the whole. All this happened prior to 1897 and indicate, I think, that the Legislature was not particularly concerned with the question now suggested as the controlling influence, but were anxious to assist in every reasonable manner such financial operations as would result in the construction and operation of the railway. I look upon the legislation of 1897 as especially important, and in considering its effect I think one is bound to have in mind all the information which can fairly be assumed to have been before the Assembly when the Legislature was in Session. (See the remarks of Lord Halsbury in the Eastern <&c. Co. v. The Comptroller-General of Patents, L. R. (1898) A. C. at pp. 573-4.) In 1897, a plan was formulated by means of which the construction of the road was to be accomplished in connection with the extension of the system into the North-West Territories of Canada, and the Company applied to the Dominion Parliament for a private Act containing the necessary powers to that end. The rules of the House relating to Private Bills provide a system of notice of such an application which is presumed to reach all necessary parties, and it must be taken that the proper authorities in British Columbia had full knowledge of the proposed application. In fact, there remains no room for doubt on that point, since in connection with the application for the Act, a request for a Dominion subsidy was also made, and the agreement upon which this aid was to be given was the subject of a very animated debate, was widely commented on by the press of Canada, and was pre-eminently a topic of public discussion in British Columbia. The Legislature of this Province and the Dominion Parliament were in session contemporaneously, although the Local House prorogued in May, whereas the Dominion Parliament continued until the 29th of June. It is a familiar principle of law that where one person, by his words or conduct, induces another to believe in the existence of a certain state of things, and to act on that belief, the former cannot afterwards be heard to say that the latter was mistaken in his view of the situation. It cannot be doubted but that the members of the British Columbia Legislature knew that the Company were making the application in question to the Dominion House, and, moreover, were making such application on the footing that the Provincial subsidy would be granted notwithstanding the contemplated change. If the Provincial Government did not agree with that contention, I do not think they could be heard to say so after standing by and allowing the Company to prejudice their position by the proposed application, and still less if they remained quiescent until after, upon the faith of all these arrangements, the Company had completed their undertaking, and the Province had received the full consideration for their promise to grant the land, viz. : the actual construction of the railway and its operation 462 British Columbia Southern Railway Company. 1899 as a going concern. But the case is even stronger than this, for, at that Session, and while the Company were actually taking steps which have resulted in the road coming under Dominion jurisdiction, the Provincial Legislature passed an Act (chap. 33, Acts of 1897) for the purpose of correcting an ambiguity in a former Act, and expressly extending and confirming the subsidy to the Company. The omission to insert in this Act—passed at such a time and under such circumstances —a clause limiting the Company in their then application to the Dominion, or declaring that in such a contingency the Provincial lands should not be granted, is to my mind conclusive evidence that such a stipulation was no part of the agreement with the Company, and even if some plausible argument could be advanced for the existence of such a condition originally, the contention that it is still in operation cannot, in the event which has happened, be maintained by the Province. My opinion is, therefore, that the Company are entitled to a grant of the lands upon complying with the formalities as to selection, etc., set out in the Subsidy Acts. I have the honour to be, Sir, Your obedient servant, (Signed) E. V. Bodwell. To the Honourable The Finance Minister, Victoria, B.C. victoria, b. c.: Printed by Richard Wolficndkn, Printer to the Queen's Most Exeellent Majesty. 1900.
Legislative proceedings
J110.L5 S7
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Original Format: Legislative Assembly of British Columbia. Library. Sessional Papers of the Province of British Columbia
PAPERS In relation to the British Columbia Southern Railway Company Land Grant.
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