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numerous Acts of Parliament (being either general Railway Acts relating to all railways in the province or special Acts relating to the appellant company or companies, of which it is the successor), were cited in the argument, but their Lordships are unable to discover in any of such Acts any legislative provision which exempts the appellants from the performance of the conditions of the agreements under which they have obtained these privileges and franchises which they still enjoy. According to the well-known principles of the construction of statutes, clear words are required to give to them a meaning which would interfere with existing contractual arrangements, and their Lordships are of opinion that so far as concerns the said privileges and franchises obtained under the said two agreements, such words are entirely absent in the present case. It is unnecessary, therefore, to examine in detail the portions of these statutes which were cited in argument, excepting so far as may be necessary to understand the decision of the Ontario Railway and Municipal Board, which formed the subject of the appeal to the Court below.
By an Act of 1893, the Metropolitan Street Railway Company of Toronto changed its name to the Metropolitan Street Railway Company, and by an Act of 1897, it again changed its name to the Metropolitan Railway Company, but such changes of name have no effect on the rights of the parties to this dispute. On the 6th day of April, 1894, an agreement was made between the Municipal Corporation of the county of York and the Metropolitan Street Railway Company, whereby, amongst other things, it was provided that the company might deflect its line from Yonge street and operate same across and along private properties, after expropriating the necessary rights-of-way under the provisions of the statutes in that behalf. At the date of such agreement, the county of York had no rights whatever in the portion of Yonge street to which the present dispute relates, except the small portion at the northern end hereinbefore referred to, and it is not contested that the agreement in question could not affect the rights of the appellants otherwise than with regard to such portion of their track in Yonge street as lay north of the then boundary of the city. But it is necessary to refer to this agreement, inasmuch as much reliance was put upon it as justifying the deviation from Yonge street, north of the city boundary. Their Lordships do not feel called upon to decide whether, as against the municipality of the county of York, the appellants acquired the right to make the line in its new position, or whether its so doing would be consistent with their duties, or within their powers in other respects, because they are of opinion that nothing done under the powers of this agreement can in any way effect the rights of the respondents with regard to the portion of Yonge street owned by them and situated within their own jurisdiction.
On the 11th May, 1911, the proceedings in this matter were commenced by an application being made to the Ontario Railway and Municipal Board on behalf of the appellants for the approval of the Board of “a plan to deviate the track on the metropolitan division from Yonge street to a private right-of-way,” which was described as being about 125 feet to the west, running parallel with Yonge street. On looking at the plan, it is obvious that this is a misdescription of the proposal, in that the proposed line lies only partially upon land proposed to be acquired by the railway company, and that it crosses in four or five places public highways which are not, and necessarily cannot be, described as portions of a private right-of-way. The object and effect of the proposed plan is plain. The company desired by it to take the line off Yonge street without obtaining the consent of the Municipality, and it was not concealed from their Lordships in the argument, that it would in future be contended that thereafter they would not be using the franchise or privilege obtained by the agreements of 1884 and 1886, or be affected by the fact that such franchise and privilege would terminate in June, 1915. The respondents, the Corporation of Toronto, opposed the application, and contended that the company had no right to deviate from Yonge street, and that the Board had no jurisdiction to allow the deviation. The Board rejected that contention, and on the 25th day of October, 1911, they delivered a written opinion to the effect that the company had the right to deviate to their own right-of-way. It has been strongly contended before their Lordships, as it was in the Court below, that the respondents were bound forthwith to appeal against this expression of opinion of the Board, and that their not having done so should have been punished by a refusal of leave to appeal from the operative order subsequently made by the Board, or should at any rate preclude them from disputing the correctness of the view of the Board as to the law of the case in any subsequent proceeding. Their Lordships are of opinion that there is no foundation for such a contention. The application to the Board was to approve a plan, and until it had made an operative order it was not incumbent (even if it was permissible) upon any objector to appeal against interim expressions of the view of the Board in matters of fact or law. It might well be that the operative order might not have been objectionable to the corporation, and until they learnt its terms they could not be required to decide whether they would dispute it or not.
On the 17th June, 1912, the Ontario Railway and Municipal Board made an order approving the plans filed by the appellants, and on the 16th December, 1912, leave was obtained to appeal against that order. On the 13th February, 1913, the Appellate Division of the Supreme Court of Ontario gave an unanimous judgment allowing the appeal and setting aside the order, and it is from this decision that the present appeal is brought.
Their Lordships are of opinion that the decision of the Appeal Court was right and should be affirmed. The line of the appellants in the portion of Yonge street which, ever since 1st January, 1888, has been within the city of Toronto, has been held and operated by the appellants or their predecessors, under and by virtue of the franchise and privileges obtained by them under the agreements of 25th June, 1884 and 20th January, 1886. It is true that these agreements, were made with the county of York (within whose jurisdiction this portion of Yonge street then lay), and not with the city of Toronto, but by the indenture of 20th August, 1888, the county of York conveyed to the city of Toronto. the whole of its interests in the portion of Yonge street within the city. It is not necessary to decide whether, under the circumstances, the Corporation of Toronto became formally the successors of the county of York under the agreement, so far as it related to this portion of the track, to such an extent that they could have enforced obedience to the terms of the agreement by proceedings in their own name, because, even if that were not so, the county of York were clearly trustees on behalf of the Corporation of Toronto of their rights under these agreements with regard to such portion of the track, and could not have released the appel
lants from any of its conditions, otherwise than by the request, or with the consent of the Corporation of Toronto. The appellants are thus bound by the whole of the obliga. tions of those agreements, so far as they relate to such portion of the track. As has already been said, there has been no statutable release from those obligations, and it is clear beyond the necessity of argument that if those obligations still exist the proposed new line is not in conformity with them. Their Lordships further are of opinion that the proposed line is neither a deviation nor a deflection within the meaning of the statutes quoted in the argument, relative to the powers of railway companies in general or the appellants in particular to deviate or deflect their track, but is a new line which the appellants are desirous of constructing and operating without having obtained any franchise or statutory authority so to do. Their Lordships will therefore humbly advise His Majesty that this appeal should be dismissed. The appellants will pay the cost of the appeal.
In this issue is published the argument of counsel in the appeal of Frederick M. Morson against the corporation of the city of Toronto. The argument of counsel for His Honor Judge Morson is very thorough and lengthy, taking up the question firstly under the heading of the Assessment Act, and secondly discussing the question under the authority of the British North America Act. The reply of the city is short and to the point, Mr. William Johnson, City Solicitor, having associated with him in its preparation his able assistant, Mr. B. W. Essery, and maintains the city's right to tax. Although judgment has been given in favour of the plaintiff by Judge McGibbon the question is of such great interest to a large number of people that the whole argument will be published in these pages. In the present issue will be found that portion of the plaintiff’s argument dealing with the Assessment Act, and the city's defence. The text of the Judge's decision, together with the latter part of the plaintiff’s argument dealing with the British North America Act will appear in the January issue.
The Lau, Times wishes all its readers, both present and prospective, a joyous Yuletide in every sense which that term conveys, and also that to them the year 1914 may be peaceful, prosperous, and happy. To those to whom 1913 may have brought sorrow, may their grief be forgotten in the joy of the new year, and to those to whom the year has brought good fortune may it ever continue, and with the coming festive season may the Times be pardoned if it hopes that resolutions for the new year, now old-fashioned, may mean something more to its readers than a subject of jest, and that each one may endeavor to do his quota towards making things a little better than they have been.
The year 1913 has been an eventful one. So rapid have been the strides by which the world has advanced that one connected with the forward march is apt to fail to appreciate its extent. The appalling marine disaster early in 1912, followed by the energetic and searching inquiry into its causes held in the United States, and the subsequent none