Montreal Street Railway Co. v. City of Montreal

Montreal Street Railway Co. v. City of Montreal
Collection
Supreme Court Judgments
Date
1910-03-11
Report
(1910) 43 SCR 197
Judges
Fitzpatrick, Charles; Girouard, Désiré; Davies, Louis Henry; Idington, John; Duff, Lyman Poore; Anglin, Francis Alexander
On appeal from
Canada
Subjects
Transportation
Decision Content
Supreme Court of Canada
Montreal Street Railway Co. v. City of Montreal, (1910) 43 S.C.R. 197
Date: 1910-03-11
The Montreal Street Railway Company Appellants;
and
The City of Montreal Respondent.
1909: December 15, 16; 1910: March 11.
Present: Sir Charles Fitzpatrick C.J. and Girouard, Davies, Idington, Duff and Anglin JJ.
ON APPEAL FROM THE BOARD OP RAILWAY COMMISSIONERS FOR CANADA.
Tramway—Provincial railway—”Through traffic”—Constitutional law—Legislative jurisdiction—Powers of Board of Railway Commissioners—Construction of statute—R.S.C. (1906) c. 37, s. 8(6) —”B. N. A. Act,” 1867, ss. 91, 92.
“The Railway Act,” R.S.C. (1906) ch. 37, does not confer power on the Board of Railway Commissioners for Canada to make orders respecting through traffic over a provincial railway or tramway which connects with or crosses a railway subject to the authority of the Parliament of Canada. Davies and Anglin JJ contra.
Per Fitzpatrick C.J. and Girouard and Duff JJ.—The provisions of sub-section (ft) of section 8 of the “Railway Act” are ultra vires of the Parliament of Canada.
APPEAL from an order of the Board of Railway Commissioners for Canada which directed the Montreal Park and Island Railway Company to grant the same facilities in regard to passenger rates and service to the citizens of Mount Royal Ward, in the City of Montreal, as were given to the residents of an adjacent municipality, to enter into arrangements with the appellants to carry the order into effect, and ordering the appellants to enter into the necessary agreements.
The City of Montreal, on 1st February, 1909, lodged a complaint with the Board of Railway Commissioners against the Montreal Park and Island Railway Company (which operates a tramway subject to the authority of the Parliament of Canada, confined within the limits of the Island of Montreal), alleging, amongst other things, that that company refused to place the citizens residing in Mount Royal Ward, in the City of Montreal, on the same footing as those of the Town of Notre Dame de Grâce and the Town of Outremont, municipalities of which the boundaries are contiguous to the City of Montreal, and complaining of the rates charged for the carriage of passengers in the service and operation of the tramway. At the time of the complaint, and for some time previously, the Montreal Park and Island Railway was connected with the tramway of the appellants, which is a railway authorized by the legislature of the Province of Quebec and subject to its jurisdiction. On the 6th of April, 1909, the Board ordered that the appellants should be made a party in the proceedings before them upon the complaint and to shew cause why they should not join with the Montreal Park and Island Railway Company in establishing a through route and through rates for the service in the operation of their tramway. After hearing the parties upon the application, the Board, on the 4th of May, 1909, made the order now appealed from, of which the operative part was as follows:—
“It is ordered that the Montreal Park and Island Railway Company be and it is hereby directed to grant the same facilities in the way of services and operation, including the rates to be charged by it, to the people residing in the said Mount Royal Ward that it grants to the people residing in the Town of Notre- Dame de Grâce; and that it forthwith enter into the necessary agreements for the purpose of removing the said unjust discrimination; and that, with respect to through traffic over the Montreal Street Railway, the Montreal Street Railway Company be and it is hereby required to enter into any agreement or agreements that may be necessary to enable the Montreal Park and Island Railway Company to carry out the provisions of this order.”
The appellants contended that, upon the true construction of section 8 of “The Railway Act” and of sections 91 and 92 of the “British North America Act, 1867,” the Board had no jurisdiction over their tramway; and that, being a provincial corporation operating a provincial tramway only in the Island of Montreal and, having no connections with any railway or tramway outside the Province of Quebec, neither their company nor their tramway was subject to the provisions of the Dominion “Railway Act,” nor to the jurisdiction of the Board.
Special leave to appeal was granted, under the provisions of section 56 of the “Railway Act,” by Mr. Justice Duff, on the question—
“Whether, upon a true construction of sections 91 and 92 of the “British North America Act, 1867,” and of section 8 of the “Railway Act” of Canada, the Montreal Street Railway Company are subject, in respect to through traffic with the Montreal Park and Island Railway Company to the jurisdiction of the Board of Railway Commissioners for Canada.”
Aimé Geoffrion K.C. and F. Meredith K.C. (Hague with them), for the appellants.
Atwater K.C. and Butler for the respondent. The Chief Justice.—I am of opinion that the appeal should be allowed for the reasons given by Mr. Justice Duff.
Girouard J.—I agree with my brother Duff.
If the incidental or ancillary rule is to be applied in a case like this, then the power of the provincial legislatures under section 92, sub-section 10, of the “British North America Act, 1867,” with regard to local railways is simply wiped out. To-day the question may be only the transportation of persons tomorrow it may involve the carriage of goods and even perishable articles and, as a consequence, the supply of refrigerators, cars, cold storage warehouses, switching and stations.
I think the appeal of the Montreal Street Railway Company should be allowed with costs.
Davies J. (dissenting).—Appeal from an order of the “Board of Railway Commissioners respecting “through freight.”
The “British North America Act, 1867,” in the distribution of legislative powers between the Dominion Parliament and provincial legislatures expressly excepts, in section 92, from the class of “local works and undertakings” assigned to provincial legislatures, in addition to those undertakings which connected one of the provinces with another or which extended beyond the limits of the province and others specifically described, the following—
sub-section (c)—such works as although wholly situate within the province are before or after their execution declared by the Parliament of Canada to be for the general advantage of Canada, etc.
Section 91 confers on the Parliament of Canada exclusive legislative authority over all classes of subjects so expressly excepted from section 92.
The Montreal Park and Island Railway originally constructed under a provincial charter was such a work, and, being declared by Parliament to be “for the general advantage of Canada” became a Dominion railway subject in all respects to the legislative powers of the Dominion Parliament and, as a consequence, to the “Railway Act” of 1906, ch. 37. Section 8 of that Act reads as follows: —
Every railway, steam or electric street railway or tramway, the construction or operation of which is authorized by special Act of the legislature of any province, and which connects with or crosses or may hereafter connect with or cross any railway within the legislative authority of the Parliament of Canada, shall, although not declared. by Parliament to be a work for the general advantage of Canada, be subject to the provisions of this Act relating to,—
(a) The connection or crossing of one railway or tramway with or by another, so far as concerns the aforesaid connection or crossing;
(b) The through traffic upon a railway or tramway and all matters appertaining thereto;
(c) Criminal matters, including offences and penalties; and
(d) Navigable waters;
Provided that, in the case of railways owned by any provincial government, the provisions of this Act with respect to through traffic shall not apply without the consent of such government.
The Montreal Park and Island Railway at the time or shortly after it became a Dominion undertaking or work, was or became physically connected with the Montreal Street Railway, which is a provincial road operating under a provincial charter, and part of the Montreal Park and Island Railway line was leased to and other parts operated by the Montreal Street Railway Company, under a somewhat complicated traffic arrangement between the two companies, involving running rights by each company’s cars over the other lines and the leasing of some of the Montreal Street Railway Company’s cars to the Montreal Park and Island Railway Company. At the time the application was made to the Board of Railway Commissioners the physical connection of the two roads existed and passengers were carried directly over one road to and over the other under such traffic agreement and running rights. The carriage of passengers is declared by paragraph 31 of section 2 to be included in the word “traffic” whenever used in the Act.
The 317th section of the Act confers the amplest powers upon the Board of dealing with the traffic upon railways and expressly includes “through traffic” and through rates.
The question we have to decide is whether or not the Montreal Street Railway by reason of its physical connection with the Montreal Park and Island Railway and the traffic arrangements before referred to are amenable and subject to the jurisdiction of the Board with respect to “through traffic” passing from the Montreal Park and Island Railway over its line and vice versà,
A distinction was attempted to be made at the argument between the Board’s jurisdiction over through traffic on a federal road which was interprovincial and that over a road which though federal was wholly within the limits of a province.
The appellants contended that section 8 of the “Railway Act” should be limited in its application to such provincial railways as connect either directly or indirectly with lines extending beyond the limits of the province and as the Montreal Street Railway was not so connected the. section could not be made applicable to them.
For myself I fail to appreciate the distinction suggested. If the physical connection of a provincial railway with a federal interprovincial railway brought the former road under and subject to the jurisdiction of the Board of Railway Commissioners so far as through traffic passing over it and the federal railway was concerned it seems to me that the same result must follow if such federal railway happened to be itself confined within provincial limits. It is not the physical limits alone of the railway which gives Parliament legislative jurisdiction over it. If the railway connects one province with another or extends beyond the limits of a province it comes within the exception (a) of subsection 10 of section 92 of the “British North America Act,” and if being wholly within the limits of a province it is declared by the Parliament of Canada to be for “the general advantage of Canada” it comes within the exception (c) of that sub-section.
In either case and in both cases alike when an undertaking or work is brought within such exceptions it becomes subject to the exclusive legislation of the Dominion, and I fail altogether to understand how it can be held that the physical connection of a provincial road with one of such federal roads, would operate to give the Board of Railway Commissioners jurisdiction over the through traffic over it and not to do so in the case of such connection with the other federal road. The mere accident that the federal road in one case is confined to a single province and in the other runs beyond the provincial boundary cannot determine the question. That must surely depend upon whether or not it is a federal road carrying “through traffic” over a provincial one quite irrespective of its limits within or without a province.
Then it is admitted that with respect to such “through traffic” the provincial legislature has not the jurisdiction to legislate. If in such case the Dominion Parliament has not jurisdiction then such jurisdiction does not exist anywhere, and we would have the curious anomaly existing of an enormous class of traffic known as “through traffic” being carried over two roads, one federal and one provincial, without either Parliament or the legislature having jurisdiction over such through traffic. Such a condition is, it seems to me, in view of the construction heretofore placed upon the “British North America Act” impossible. The power to legislate with regard to such through traffic rests somewhere. So far as the federal or Dominion road is concerned it undoubtedly rests with the Dominion Parliament, but to exercise such power effectively the Board of Railway Commissioners to whom it has been given by Parliament must necessarily have some jurisdiction over the provincial road with which the federal one is physically connected. Such jurisdiction of course goes no further than the control of “through freight” renders necessary. In my opinion it goes that far. Parliament does not possess, as was suggested, a concurrent authority with the provincial legislature to control this through traffic. If as I have argued it has authority to legislate at all on the subject under the exception to sub-section 10 of section 92 of the “British North America Act” it has exclusive authority. Assuming there was a domain in which the legislation of the Dominion and of the province might overlap then if the Dominion alone has legislated or if both Dominion and province have legislated and the two legislations conflict that of the Dominion must prevail. Grand Trunk Railway Co. v. Attorney-General of Canada[1], at page 68, and City of Toronto v. Canadian Pacific Railway Co.[2], at page 58. In the present case it seems to me that when Parliament legislated the field with respect to “through traffic” was covered. Section 8 of the “Railway Act” clearly deals with just such a case as this and if intra vires must of course govern. That it necessarily deals with property and civil rights or other matters assigned by section 92 to provincial legislation is no argument against its validity. If it is legislation to the effective exercise of a power exclusively vested in the Dominion or even held to be fairly ancillary to such that is sufficient. The jurisdiction of the legislature over “local works and undertakings” as over “property and civil rights” in the province is quite consistent, as said by the Judicial Committee in Toronto Corporation v. Canadian Pacific Railway Co.[3], at page 59,
with a jurisdiction specially reserved to the Dominion in respect of a subject-matter not within the jurisdiction of the province.
See also Toronto Corporation v. Bell Telephone Co.[4].
My conclusions therefore are that the “British North America Act” confers jurisdiction upon the Dominion Parliament under the exceptions to section 10 of section 92 to legislate on the subject-matter of “through freight.” That legislation has been enacted in section 8 of the “Railway Act” in terms wide enough to reach the case of “through freight” passing from a federal to a provincial road physically connected and that the Board in assuming a jurisdiction over the provincial road for the purpose of giving effect to its order respecting such through freight was acting within its powers.
I would dismiss the appeal therefore with costs. Idington J.—The Board of Railway Commissioners for Canada directed, amongst other things,
that with respect to through traffic over the Montreal Street Railway, the Montreal Street Railway Company be, and it is hereby, required to enter into any agreement, or agreements that may be necessary to enable the Montreal Park and Island Railway Company to carry out the provisions of this order.
The former company now appeals on the ground that the Board had no jurisdiction to make such direction.
The appellant is a corporation created by 24 Vict. ch. 84, of the old Province of Canada for the purpose of constructing and operating street railways in the City and Parish of Montreal.
Its original powers have been many times added to by enactments of the legislature of the Province of Quebec.
The manifold details of all these legislative provisions original and supplementary need not be entered into; but we must, I think, observe that from the beginning powers were given to enter into contracts with the said city and adjoining municipalities relative to the construction of the railway, reparation and grading of the streets used, the location of the railway, the time and speed of cars, the amount of license to be paid by the company annually, the amount of fares to be paid by passengers and generally for the safety and convenience of passengers, and the conduct of the company relative to non-obstruction or impeding of the ordinary traffic.
Its right to fares at all and its entire existence for any useful or profitable purpose depend upon such a contract. Either the contract has been observed or not. If broken the law gives a remedy; and if persistently broken, more than one remedy. Persistent default means forfeiture. If observed, how can Parliament venture to amend it? A step or two in its history unfolds the reason or excuse or peradventure as I conceive proves Parliament never intended such interference.
The railway has been changed from having been of the kind served with horse power to that of electric motors, but it has been operated throughout as a street railway for passengers only, since shortly after the company’s incorporation. It never had power to perform other service save in recent years for carrying mails; enlarged by a permission to acquire power (which has not, so far as appears, become effective) from the municipalities, under 6 Edw. VII. ch. 57, sec. 5 (Que.), to carry freight.
The Montreal Park and Island Railway Company is a corporation originally incorporated by the legislature of the Province of Quebec by 48 Vict. ch. 74, which Act was also amended by adding further powers.
It was of a different character from the other company. It combined the features of a passenger railway with that of hauling freight, and did not depend on the use of streets or highways as the other, but chiefly acquired its rights of way over lands near or adjacent thereto. In short it was a general purpose railway. Merely noting just now these facts and this difference in the character of the roads I will later on refer to the legal results thereof.
In 1893, after it had been partly constructed and operated the fact became evident that its services could be made much more beneficial to the public by its arranging with the Street Railway Company to carry, from certain points such of its passengers as desired to reach places served by that road and to which the Montreal Park and Island Railway did not run. Pursuant to section 12 of its charter giving power to do so a traffic arrangement was made with the appellant by a contract between them on the 11th July, 1893, which was to endure for twenty-five years, for the conveyance of passengers through and between the City of Montreal and its suburban municipalities.
Each was bound by this contract to build and develop its system as specified and thus increase the business the other might thereby expect to reap some benefit from.
Some cars of the Street Railway Company were to be leased to the other company, but if not enough supplied thus for its own use it might build its own.
Some of these cars were to be used interchangeably by each company running them over the roads of the other.
It followed as travel increased over each road that many cars of each company would not run at all on the other road, but deliver its passengers at its own terminus, or point of junction with the other road.
From each of those who get in the cars that run over the track of the other road an extra fare, but less than the full fare, is exacted.
From each of those unfortunate enough to get on a car confined in its running to the road it belongs to and, getting off that to begin a new journey, full fare may be exacted. It is not pretended in either case that greater fares are exacted than the city contracted for in granting the franchise to run, which is the basis on which the various rights of all concerned rest.
Each company collects its own fares. The agreement provides for this. Indeed, very likely neither could lawfully do otherwise.
Some citizens found in all this a grievance, notwithstanding the beneficent effect of the agreement in ameliorating prior conditions sanctioned by the contract of the city made on their behalf. This grievance, along with the other presently to be referred to, was ventilated before the Board.
It was the kind of grievance that has at some period or other had to be endured in I think every large city on this continent as the result of civic want of foresight in permitting, without adequate control, more than one company to use the city’s streets.
It is not necessary to follow in detail, but yet better to bear in mind, in a general way, how the municipalities in the district of or about Montreal, one after another, created by the same legislature, and authorized by it to do so, each conferred franchises and made bargains to be served respectively by either of these systems.
Rates of travel in each, roughly put at five cents for passing through its own bounds, seem to have formed the basis for such bargains.
Annexations of growing suburbs to the rapidly growing city followed (possibly beyond what was expected), and thus the commercial, social and legal problems became day by day more complicated.
These companies, however, all the time were (until what I am about to advert to happened) under the control of the legislature of Quebec.
Not only were they necessarily under such control as corporations created thereby, with “provincial objects,” but also by virtue of that other exclusive power conferred by the “British North America Act,” sec. 92, sub-sec. 10, on that legislature.
It might also be observed that by the same Act the subject of “municipal institutions” was assigned to the same exclusive control; and that the purpose of the creation of the appellant was essentially to aid in street travel over highways peculiarly within the control of the respective municipalities, created from time to time by such legislature. These municipalities were also endowed thereby, as no other legislative power could, with the capacity of contracting in such manner as to each might seem meet for its own safety and convenience and for taxation of its street railway companies, being either direct or having relation to the licensing power and license of each by such municipal corporations respectively.
One might, if it saw fit, as so many do, adopt the method of exacting as a condition of its concession a pro rata share of the fares or net profits thereof, thinking (if such a word can be used in that connection) to make money thereby.
Another (perhaps thinking a little more deeply that such methods might only increase the citizen’s own burdens), might forego the fancied benefit and stipulate instead for a lower fare than the other one which was possibly reaping in its treasury but a small fraction of the increase included in the higher fare.
I know not whether such varying bargains were made or not. I know that they were possible and probable results of the provincial legislation under which the conditions we have to deal with were created. These facts must not be lost sight of when we try to measure either the purpose or result of the other legislation we have to pass upon.
Can any one pretend that it is competent for the Dominion Parliament in such a case to meddle at all? The legislature may have been unwise; the municipalities may have been improvident; the condition so created may have been, if you will, intolerable; but the power to rectify it rested in the local legislature or in the existing law governing the civil rights of the parties.
Let us now turn to see what happened legislatively to even appear to render such interference by Parliament possible. Let us also then examine this legislation now in question and in doing so have due regard to the presumptions, that Parliament can never have intended to invade the rights of any province, or violate the sanctity of any contract or amend the corporate creations of another legislature.
After entering into the above mentioned agreement the Montreal Park and Island Railway Company had itself incorporated by the Parliament of Canada by 57 & 58 Vict. ch. 84, whereby it was so declared to be a work for the general advantage of Canada. In this very legislation the validity of its then existing contracts with others is recognized and affirmed.
It got no powers by such Act of incorporation or by any Act which would constitute it one of either of the classes of works specifically excepted from the operation of sub-section 10 of section 92 of the “British North America Act”; save within sub-section (5) thereof, that of having been declared to be a work for the advantage of Canada.
And to clear the ground I may as well state neither company fell otherwise within any of such exceptional classes.
The relations between the two companies remained the same as fixed by the agreement.
The “Railway Act” enacted in 1903 which provided for the constitution of a Board of Railway Commissioners for Canada provided what appears now as section 8 of the “Railway Act” in the Revised Statutes of 1906, as follows: —
Every railway, steam or electric street railway or tramway, the construction or operation of which is authorized by special Act of the legislature of any province, and which connects with or crosses or may hereafter connect with or cross any railway within the legislative authority of the Parliament of Canada, shall, although not declared by Parliament to be a work for the general advantage of Canada, be subject to the provisions of this Act relating to,—
(a) The connection or crossing of one railway or tramway with or by another, so far as concerns the aforesaid connection or crossing;
(b) The through traffic upon a railway or tramway and all matters appertaining thereto;
(c) Criminal matters, including offences and penalties; and
(d) Navigable waters; Provided that, in case of railways owned by any provincial government, the provisions of this Act with respect to through traffic shall not apply without the consent of such government.
It is upon this section that the Board has founded its order. It was moved thereto by the fact that in 1907 the Montreal Park and Island Railway Company had made a bargain with the municipality of Notre-Dame de Grâce, lying beyond Montreal’s limits entirely, to serve its people there with transportation of passengers into Montreal at a five-cent fare, in consideration of receiving a fifty-year franchise from the municipality and exemption from taxation. This the municipality was enabled to give by special legislation of the provincial legislature. The existence of the agreement of the appellant above referred to doubtless helped by its comprehensive nature to enable the Montreal Park and Island Railway Company to carry out this bargain.
It is conceded that the Montreal Park and Island Railway Company is subject to the jurisdiction of the Board.
It is attempted to maintain therefore (as if it were a matter of course) that as the result would be to give this district better passenger rates than some other districts there is that unjust discrimination Parliament had in view.
Inasmuch as the only question we have to decide is whether or not the appellant falls within the power of the Board to make the order appealed from, which directs it to remedy this alleged unjust discrimination by abandoning its right under the agreement and entering into some other agreement, I pass no opinion upon whether there in fact is any such discrimination or not.
It is urged that as there is in fact that physical connection the agreement provides for and passengers by means thereof pass from one road on to the other there is through traffic, in fact, falling within the meaning of sub-section (b).
Is that the sort of thing therein meant by “through traffic”?
Was the street railway system of any city or town in Canada supposed to have been within the range of things so legislated about in the “Railway Act”? Was interference thereby with the charters of such roads, the terms of their contracts with the municipalities served, their rates and tolls all dependent on such contracts, and their contracts with each other ever in the contemplation of any one promoting or enacting such legislation?
I most respectfully submit not. An omnibus line or other means of transportation might as well be held to fall within through traffic if Parliament so willed.
The right to deal with these street railways and their proprietors, as to crossings to be made either by them over roads under the jurisdiction of Parliament or by such latter roads over street railways, is undoubtedly vested in Parliament.
The right of such a local company, to seek when endowed by its charter with powers to do so, connection of any kind, with the creation of Parliament either physical or limited to the establishment of a through rate or route may also be well within the jurisdiction of Parliament. And I submit the words of the first part of the section and of sub-section (a) can become operative in such cases and thus be given a meaning without doing violence of the kind I have indicated, as obviously is involved in the giving of effect to respondent’s contention.
Sub-section (6) it is urged means something much more than implied in either suggestion. I agree that it may be so for the first part of the section extends to or asserts a jurisdiction over every kind of railway described therein; and uses apt words to cover each class or kind. When however distributing the purpose and limit of the asserted jurisdiction it changes this; and in sub-section (ft) relied upon by the respondent, the words “street railway” disappear. It is the through traffic upon a “railway or tramway” that alone is covered thereby. “Tramway” by its origin means a freight road. In Britain the term is very commonly extended to cover street railways, but not so here.
Besides street railways, many local general purpose railways authorized by some special Act of the legislature of a province, may have been had in view.
I am not called upon to express any opinion of whether or not it would be safe to assume that Parliament in any of these cases could, properly observing the terms of section 92, sub-section 10, of the “British North America Act,” assert without the actual or implied sanction of their parent local legislature this jurisdiction over them. I can, however, easily conceive of this legislation having an application thereto that never could have been intended to apply to or render mere street railways subject to the jurisdiction of Parliament.
Neither the appellant’s origin, history or present conditions lend colour to its being of the class included in sub-section (6) any more than its being in any way related to sub-section (d).
We may now turn to section 317 so much relied upon by respondent to define traffic and to bring as a result by virtue of the words “through traffic” in subsection (b) appellant within the jurisdiction claimed.
Section 317 in its whole scope, and in its very language, so clearly relates to a traffic that includes at least carriage of freight as part of the service to be considered that I fail to find therein any encouragement for me to venture to apply it in the sense of aiding the claim set up by respondent.
We have no legislative interpretation of the phrase “through traffic,” but we have in this Act the following interpretation given of “traffic” by sub-section 30, of section 2, as follows: “Traffic means the traffic of passengers, goods and rolling stock.”
This it is to be observed is not a definition in the disjunctive form necessary to give the effect contended for, by applying the Act to a street railway used only for passengers.
The purview of the Act as a whole seems to forbid us interpreting it as if intended to invade needlessly the subjects of either civil rights, or legislative provisions relative to municipal institutions, or the contracts of municipal corporations, or local works and undertakings all of which would be asserted and assisted by a maintenance of this jurisdiction now called in question. I do not deny the possible meaning claimed for these sections, but I would not impute to Parliament in any such case the intention to so enact unless I found it written in the clearest possible language.
I cannot therefore impute it when the doing so must only rest upon inferences drawn from a section or two exhibiting a general purpose of producing equality in some things relative to certain classes of dealings. Those inferences do not necessarily extend beyond these things over which Parliament has undoubted jurisdiction.
When we are referred to section 317 to find what “through traffic” means, let us observe that the section expresses or implies as essential thereto that the Board can create or define it, can insist upon it, and direct the facilities for it and I rather think the accommodations for it also.
It seems going very far to draw such extensive powers over provincial legislation and its products, from such a basis as is thus suggested in the classification of transportation, yet it is surely impossible to draw any line between that claimed specifically here and all else thus directly connected with and involved in the proposition. It is not a part but the whole of the subject-matters of and appertaining to through traffic as indicated in the Act which are covered.
Another view of this case occurs to me and that is this; assume federal relations and limitations out of the case and all the above recited legislation by both Parliament and legislature to have been enacted by one legislative body and all the contracts and acts done pursuant thereto could it be said in considering such an Act as the “Railway Act” if passed by such a legislature of plenary capacity that it must have been intended thereby to abrogate all such preceding legislation and dissolve everything in municipal and other contracts resting thereupon in the way involved herein? I think not.
Again, it is strangely claimed as a basis for the right of interference that an agreement exists which it is claimed provides for through traffic.
Either the agreement is outside the range of or an infringement of sub-section 7 of section 317.
If it can be held to fall within that section then it may be null and void or have become so thereby, but how can that extinction of it become a foundation for the jurisdiction to enforce the making of a new contract and that regardless of the corporate powers to do so?
But confirmed, as already pointed out, by Parliament itself, how can the “Railway Act” be held to have been meant to invade the sanctity of a contract thus affirmed?
In this regard, possibly section 3 of the Act averts such a result. Neither this view nor that section was put forward in argument.
But having regard to the nature of the legislation that takes a step for the express advantage of Canada by declaring the work removed because of that character it seems to me quite arguable and possibly conclusive on the whole issue involved.
I have thus far proceeded upon the assumption that Parliament properly regarding its constitutional limitations could never have been supposed to have intended what is claimed. I have arrived at the conclusion that its language (though susceptible of such construction) does not necessarily warrant any such assertion of power. Its language must always be read in light of the limits of its constitutional jurisdiction. That language used here when so read is clear, operative, effective and limited. The case, however, was chiefly argued upon the broad question of whether Parliament could or not so deal with appellant, its charter and its contracts as is implied in the maintenance of the part of the order complained of.
I have no hesitation in saying that in my judgment such legislation by Parliament, as this is claimed to be, against the will of the local legislature creating such corporations as the municipalities, and those others for helping local street travel would be ultra vires, and if this must be held to have such meaning it is ultra vires.
The legislative power in relation to those elements of municipal government and all it implies,, “local works and undertakings” and “corporations with local objects” together with “property and civil rights” has been confided exclusively to the local legislatures subject to the checks of the veto, and in regard to local works of their being declared by the Parliament of Canada for the advantage of Canada or two or more provinces thereof and then removed into the jurisdiction of and there to be dealt with by Parliament.
In passing I may remark Parliament having that power and yet not having exercised it is, I agree, as was urged, a cogent argument against any intention in the Act to found the interference asserted.
I am not oblivious of the apparent invasion already made by holding that Parliament may impose upon municipalities duties of guarding railway crossings for which the legislature may never have made provision in the capacity given its municipal creations or otherwise by delegating to them the power of direct taxation to provide therefor.
The case of Toronto v. Grand Trunk Railway Co.[5], I admit carried the matter far and was upheld in the Privy Council.
That was a case not of directing anything as incidental and ancillary to the construction of the railway or the necessities of the case, but like what is now in question; shall we call it the peace, order and good government of the people of Canada?
I respectfully submit to the authority of that decision in the wide field it operates upon but, as it so often happens principles of legal or constitutional action are not always carried to their logical conclusions, I await results before going further, and relieving, by virtue only of Dominion legislation, a municipality from a contract its provincial legislative creator enabled it to make, and thereby bound it to observe.
Legal history and especially constitutional history is full of illustrations of the recoil as it were remaining instead of that of the original force moving further forward.
It was urged here as there that the power claimed was but ancillary to the main purpose of the Act and thus being merely incidental thereto for the due efficiency thereof might well be exercised.
Amplify thus every possible exercise of each of the exclusive powers and the residuary powers committed to Parliament, to the fullest extent and if you please in the most logical manner, of the kind involved in the claim, and there would not be much left of the provincial powers; when we have regard to the doctrine that where each has a legislative power that of the local legislature must yield to the supremacy of Parliament.
Perhaps the best answer to such a reflection is that men, collectively, seldom feel bound to observe any kind of logic in any sequence of their acts; and that public opinion however illogically evoked is the only safeguard and ultimate court of appeal.
Meanwhile, we, sitting here, must so far as we can, have some regard to the meaning of these words “exclusively make laws,” designed to cover such matters as we are now dealing with.
These words are used in an instrument that obviously implies some limitat