Town of Beauport v. Quebec Railway, Light & Power Co. / Quebec Railway, Light & Power Co. v. Town of Beauport

Town of Beauport v. Quebec Railway, Light & Power Co. / Quebec Railway, Light & Power Co. v. Town of Beauport
Collection
Supreme Court Judgments
Date
1944-03-15
Report
[1945] SCR 16
Judges
Rinfret, Thibaudeau; Davis, Henry Hague; Kerwin, Patrick; Hudson, Albert Blellock; Rand, Ivan Cleveland
On appeal from
Canada
Subjects
Constitutional law
Decision Content
Supreme Court of Canada
Town of Beauport v. Quebec Railway, Light & Power Co. / Quebec Railway, Light & Power Co. v. Town of Beauport, [1945] S.C.R. 16
Date: 1944-03-15.
Quebec Railway Light & Power Company (Petitioner). Appellant;
and
The Town of Beauport and Others (Respondents) Respondent;
and
The Attorney General for Canada and The Attorney General for Quebec Intervenants.
ON APPEAL FROM THE BOARD OF TRANSPORT COMMISSIONERS FOR CANADA
1943: October 26, 27, 28; 1944: March 15.
Present: Rinfret, Davis, Kerwin, Hudson and Rand JJ.
ON APPEAL FROM THE COURT OF KING'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC
Constitutional law—Carriers—Railway company—"Undertaking" of company declared "for general advantage of Canada"—Added power to operate auto bus service—"Subject to all provincial * * * enactments"—Tariff of tolls—Jurisdiction—Federal or provincial authority—Whether auto busses are "works"—Section 91 (29) and section 92 (10 c) B.N.A. Act.
The Quebec Railway, Light & Power Company applied for an order of the Board of Transport Commissioners approving its tariff of tolls for the carriage of passengers on the motor busses operated by it; while the town of Beauport petitioned the Quebec Public Service Board for an order by which the same tolls would be fixed. The Board of Transport Commissioners dismissed the company's application for want of jurisdiction; while the appellate count of Quebec, reversing the decision of the President of the Public Service Board, held that that Board was without jurisdiction to deal with such tolls on the ground that the railway company fell under the exclusive jurisdiction of the federal board. The decisions being contradictory, both the railway company and the town of Beauport appealed to this Court.
Held, Davis and Hudson JJ. dissenting, that the fixing of fares, or tolls, to be charged by the railway company in respect of its motor bus service, was within federal jurisdiction; but that federal legislation was lacking, as regulation of tolls over such service is not included in the powers granted to the Board of Transport Commissioners.
Per Davis and Hudson JJ. dissenting.—Jurisdiction over the fares, or tolls, of the railway company's autobus system is vested in the province. Such jurisdiction has not been transferred to the Dominion under Dominion Acts and should be exercised by the Quebec Public Service Board.
Per Rinfret J. and Kerwin J.:—A Dominion Act of 1895 declared the "undertaking of the (railway) company * * * a work for the general advantage of Canada" and thus brought the company under the legislative authority of the Parliament of Canada (Quebec R. L. & P. Co. v. Montcalm Land Co. [1927] S.C.R. 545). The word "undertaking" as used in the statute comprises the whole of the works of the company, not only the works existing in 1895 but all its future enterprises. The auto busses owned and operated by the company fall within the meaning of the term "works" in head 10 (c) of section 92 B.N.A. Act and, therefore, can properly be brought and integrated into the "undertaking".
Per Rand J:—The steam railway and the tramway system of the company are both within the legislative jurisdiction of the Dominion (Montcalm Land Co.'s case, supra). The works of the company are, in the jurisdictional aspect, to be considered as if they had been specifically set forth in section 91 (29) of the B.N.A. Act. The federal legislation of 1939, adding the power to operate auto busses is within the scope of the legislative field appropriate to the subject matter of the declaration in the Dominion Act of 1895. It cannot be denied to such an undertaking modifications in operational means and methods designed more efficiently to carry out its original and essential purposes. The controlling fact is that the identity of the works is presented: they remain in substance the works of transportation dealt with by the declaration.
Per Rinfret, Kerwin and Rand JJ:—The proviso of the amending federal Act of 1939 whereby the power to operate auto busses "subject to all provincial and municipal enactments" was conferred, does not give to the provincial Board jurisdiction to deal with the fares and tolls to be charged by the company. Such proviso made autobus service amenable to provincial laws for certain purposes, e.g. the right to license and regulate traffic, but the exclusive field of the Dominion as to regulation of rates is unaffected by that Act.
Per Davis J. (dissenting):—The generality of the language of the subsection (2) added by the Dominion Act of 1939, imposing a condition on the grant of the power to operate auto busses, is sufficient to involve the regulation and control by the province of the motor busses on the municipal and provincial highways of the province, and the fixing of fares or tolls, for uniformity or otherwise, by a provincial board comes within the condition, upon a proper construction of the subsection.
Per Hudson J. (dissenting):—The declaration contained in the Dominion Act of 1895 does not, and never was intended by Parliament to, extend to the operation of auto busses on the highways, either in respect of the regulations of rates or otherwise.
APPEAL from an order of the Board of Transport Commissioners for Canada[1], ruling that the Board had no jurisdiction in the matter of the fares, or tolls, to be charged by the Quebec Railway Light & Power Company in respect of the motor bus service operated by it; and
APPEAL from the decision of the Court of King's Bench, appeal side, province of Quebec[2], which, reversing the judgment of the President of the Quebec Public Service Board[3], held that such matter was within the exclusive jurisdiction of the federal Board.
The material facts of the case and the questions at issue are stated in the above head-notes and in the judgments now reported.
In the first appeal:
Paul Taschereau K.C. for the appellant.
Y. Prévost for the respondent: Town of Beauport.
F. Dorion K.C. for the respondent: Town of Courville.
C. Stein for the Attorney General for Canada.
Aimé Geoffrion K.C. and R. Genest K.C. for the Attorney General for Quebec.
In the second appeal:
Guy Hudon K.C. for the appellant.
P. H. Bouffard K.C. for the respondent.
C. Stein for the Attorney General for Canada.
Aimé Geoffrion K.C and L. A. Pouliot K.C. for the Attorney General for Quebec. Rinfret J.—These are two appeals, heard together by this Court, which raise an identical question: whether the fares, or tolls, to be charged by the Quebec Railway Light & Power Co. in respect of its motor bus service are within the jurisdiction of the Quebec Public Service Board, or whether they are within the jurisdiction of the Board of Transport Commissioners for Canada, or, in other words, whether these fares and tolls come under the provincial or under the federal authority.
I do not propose to go in detail into the history of the Quebec Railway Light & Power Co., except in so far as it seems to me necessary for the purpose of explaining the grounds upon which I base my conclusions.
The company was originally incorporated by an Act of the legislature of the province of Quebec (Statutes of Quebec, 44-45 Victoria, c. 44) under the name of the Quebec, Montmorency and Charlevoix Railway Company. It was then undoubtedly a local provincial company, operating a railway solely within the province of Quebec.
Later, in 1894, the powers of the company were extended to permit it to operate an electric tramway within the limits of the city of Quebec and this was also done by legislation of the province of Quebec.
But in 1895 the parliament of Canada passed an Act (58-59 Victoria, c. 59) constituting the company a federal corporation; and sections (1) and (2) of that Act read as follows:—
(1) The undertaking of the Quebec, Montmorency and Charlevoix Railway Company, a body incorporated as mentioned in the preamble, and hereinafter called "the Company", is hereby declared to be a work for the general advantage of Canada.
(2) The Company as now organized and constituted under the said Acts of the province of Quebec is hereby declared to be a body politic and corporate within the legislative authority of the Parliament of Canada; and this Act and The Railway Act of Canada shall apply to the Company and its undertaking, instead of the said Acts of the province of Quebec and The Railway Act of Quebec: Provided that nothing in this section shall affect anything done, any rights or privilege acquired, or any liability incurred under the said Acts of the province of Quebec, prior to the time of the passing of this Act,—to all which rights and privileges the Company shall continue to be entitled and to all of which liabilities the Company shall continue to be subject.
The undertaking of the company was, therefore, "declared to be a work for the general advantage of Canada"; and, furthermore, the company was declared to be a body politic and corporate within the legislative authority of the Parliament of Canada;
and
this Act (that is to say, the Dominion Act of 1895) and The Railway Act of Canada were declared to apply to the company and its undertaking, instead of the Acts of the province of Quebec and The Railway Act of Quebec.
The same Act also contained the following section:—
(8) The Company may use and employ for the locomotion and propulsion of its cars, vehicles and rolling stock, where such power is required, electricity in all its forms, steam, and any approved mechanical power or other means, agency or force for such purposes that science or invention may develop,—and shall have all rights, powers and privileges necessary and essential to the management, operation and maintenance of its line as an electrical system either in whole or in part; and may acquire, use and develop every kind of electrical force, power and energy required or useful in the working of the undertaking, and apply such agencies and motive power for all its uses and purposes aforesaid.
In 1899 the name of the company was changed to the Quebec Railway Light and' Power Company, its present name.
In 1939 the following subsection (2) was added by Parliament to the above section (8) by statute of Canada, 3 Geo. VI, c. 56:—
(2) It is enacted and declared that the Company's now existing powers apart from any limitations with respect to the use of steam, include the power to own, maintain, lease, possess and operate auto busses, trolley busses and all kinds of public or private conveyances whether propelled or moved by oil, vapour or other motor or mechanical power in, over and throughout any of the territory in which it is now authorized to operate, subject to all provincial and municipal enactments, in respect to highways and motor vehicles operated thereon and applicable thereto.
In my mind the legislation already reproduced is all that is necessary to be referred to for the purposes of the decision which we have to render.
As will be noticed, by the amendment of 1939 it was declared that the company's powers "include the power to own, maintain, lease, possess and operate auto busses".
Accordingly, the company applied for an order of the Board of Transport Commissioners approving its tariff of tolls for the carriage of passengers on the motor busses operated by it between the village of Boischatel and the city of Quebec. On the other hand, the town of Beauport petitioned the Quebec Public Service Board for an order prescribing certain improvements in the service of the same auto busses, but mainly with the object of having fixed the rates and tolls on the same line.
The Board of Transport Commissioners dismissed the application of the railway company on the ground that it had no jurisdiction to deal with the company's tariffs of tolls or rates in question here; but on the petition of the town of Beauport to the Quebec Public Service Board, while the President of that Board[4] held that it had jurisdiction to entertain the request of the town, the judgment of the President went before the Court of King's Bench (appeal side)[5] which held that the provincial board had no jurisdiction and that the railway company, in the exercise of its statutory rights, fell under the exclusive jurisdiction of the Board of Transport Commissioners for Canada.
The two decisions being contradictory, the result was that both the town of Beauport appealed to this Court from the judgment of the Court of King's Bench (appeal side) and the Quebec Railway Light and Power Company appealed from the decision of the Board of Transport Commissioners.
The question to be decided is whether the control of the tariffs of the autobus rates and tolls of the Quebec Railway Light and Power Company comes under the jurisdiction of the provincial Public Service Board of Quebec, or under the jurisdiction of the Dominion Board of Transport Commissioners; and that is the only question at issue in the two appeals before this Court.
It is common ground that the railway company operates its autobus service between Jacques Cartier Square in the city of Quebec and the village of Boischatel, and that it holds a permit from the Public Service Board of the province; but also that, since the legislation of 1895 declaring the undertaking of the company to be a work for the general advantage of Canada, both the steam railway and the tramway system of the Quebec Railway Company are under the legislative jurisdiction of the Dominion. It was so decided in a judgment of this. Court in Quebec Railway, Light & Power Co. v. Montcalm Land Co.[6].
In my opinion the autobus system also comes within the jurisdiction of the Dominion.
In 1895 the Dominion Act (58-59 Victoria, c. 59), declared the "undertaking of the company * * * a work for the general advantage of Canada". Obviously this was done to bring the company under the legislative authority of the Parliament of Canada by force of subsection (10) (c) of section (92) of The British North America Act. The effect of such a declaration is to bring the work which is the subject thereof under subsection (29) of section (91) of the Act,
Moreover, the company, by section (2) of the Dominion Act (58-59 Victoria, c. 59), is specifically declared to be "a body politic and corporate within the legislative authority of the Parliament of Canada"; and it is further enacted by the same section that
this Act and The Railway Act of Canada shall apply to the Company and its undertaking, instead of the said Acts of the province of Quebec and The Railway Act of Quebec.
It was argued that the declaration that the work was for the general advantage of Canada applied only to the undertaking as it stood in 1895, but, in my view, the declaration extends to the whole of the undertaking of the company, railway, tramway and autobus, for several reasons.
Most of what was said and decided by this Court in the Montcalm Land case6 equally applies in the premises. As was said by Mr. Justice Newcombe, at p. 559 of the report of that case:—
One must look to what the respondents' claim involves; it is nothing less than provincial statutory compulsion of a Dominion railway corporation, either to exercise powers which Parliament has not conferred, or, in the exercise of its competent Dominion powers, to submit to provincial review and regulations, followed in either case by the consequence that, for failure to comply with the provincial order, the company may forcibly be deprived of its property, powers, rights and management, and ultimately subjected to an action for its dissolution; and this notwithstanding what is undoubtedly true that neither the constitution and powers of the company nor its authorized undertaking is subject to the legislative authority of the province. It is needless to say that these things cannot be done. The declaration that the undertaking is for the general advantage of Canada may not be severed; it must be understood to apply to the whole of the undertaking. As was said Mr. Justice Newcombe, it is impossible to admit of a dual control over the essential functions of a federal work.
It may be true that it was only by the Act of 1939 that the power to own, maintain, lease, possess and operate auto busses was for the first time specifically mentioned in the Acts respecting the company, but the Act of 1939 (3 Geo. VI, c. 56) was only declaratory. It must be noted that it is expressed in the following words:—
The Company's now existing powers * * * include the power to own, maintain, etc., auto busses.
While it may be said that the word "undertaking" in the Act of 1895 covers all future enterprises of the company and means the railway and works of whatsoever description which the company has authority to construct and to operate (Railway Act, section 2-35), it must be noted that the powers of the company, as defined in its original charters, although making no reference to auto busses in particular, are very broad and include the
propulsion of vehicles and rolling stock by any means, agency, or force that science or invention may develop
(section (6) of the statutes of Canada, 58-59 Victoria, c. 59).
It was further argued that a bus line is neither a physical thing nor a work susceptible of being made the subject of a declaration under subsection (10) (c) of section (92) of The British North America Act; and that, consequently, the declaration that the undertaking of the company was for the general advantage of Canada was ineffective to bring the autobus service under the federal jurisdiction. It was said that a work must have a locus, which obviously, it was alleged, the autobus service was utterly incapable of possessing and that, therefore, the declaration contained in the Dominion Act was inappropriate to bring the autobus system under the legislative authority of the Parliament of Canada. However, I would refer to what was said by Lord Dunedin in In re Regulation and Control of Radio Communication in Canada[7].
"Undertaking" is not a physical thing, but is an arrangement under which, of course, physical things are used.
Applying that statement to the situation in the present case, I would be inclined to think that the word "undertaking" as used in the statute comprises the whole of the works of the company, which, upon that interpretation, were all included in the declaration that they were for the general advantage of Canada.
Accordingly, I am of opinion that the auto busses of the company can properly be brought and integrated into the undertaking which was declared to be for the general advantage of Canada. It would appear that it was the intention of Parliament that newly acquired works would fall within the declaration.
Much was made in the argument of the amendment inserted in 1939, whereby the power to operate auto busses was stated to be
subject to all provincial and municipal enactments in respect to highways and motor vehicles operated thereon and applicable thereto.
Undoubtedly it could not be contended that for certain purposes the autobus service is not amenable to the provincial laws, but, in my view, that must mean: provincial laws of general application. (Lukey v. Ruthenian Farmers' Elevator Co. Ltd.[8]; John Deere Plow Co. Ltd. v. Wharton[9].
The province has the control of its highways (Provincial Secretary of Prince Edward Island v. Egan[10]. It has to maintain them and to look after the safety and convenience of the public by regulating and controlling the traffic thereon. An instance of the exercise of that control by the province might be the fact that the railway company held a permit from the Quebec Public Service Board; but I do not think that the submission to provincial and municipal enactments can be extended to anything beyond the regulations of the character just mentioned and surely not, in my opinion, to the tariffs of rates and tolls of the company, which are made the subject of special laws and enactments under federal legislation and, in particular, under The Railway Act of Canada. Otherwise there would be that dual control, already adverted to and rendering the proper working and operations of the company practically impossible.
Now, The Railway Act of Canada deals with tolls and, having regard to all that I have said so far, my conclusions would have been that, in the premises, the Act should apply mutatis mutandis to the fixing of rates for the autobus system of the Quebec Railway Light & Power Co., in respect of which the Board of Transport Commissioners may exercise its jurisdiction.
It is true, nevertheless, that the Dominion Railway Act does not specifically refer to the regulation of bus lines and it may be that the specific power to deal with autobus traffic is not given to the Board of Transport Commissioners.
Two of my colleagues who, like me, are of the opinion that there is federal jurisdiction in relation to the auto bus tolls have come to the conclusion that the regulation of tolls over services of auto busses is not included in the powers of the Board of Transport Commissioners. In the circumstances, although personally I would be inclined to share the view expressed in his reasons for judgment by the Deputy Chief Commissioner, I will agree with the conclusions of my brothers Kerwin and Rand.
It follows that each appeal should be dismissed with costs, except that there should be no costs to or against either intervenant.
Davis J.—The appeals in these two cases were heard together. They raise the question whether the Quebec Public Service Board (a provincial board) or the Dominion Transport Board has the authority to fix the fares or tolls to be charged by the Quebec Railway, Light & Power Company in respect of its motor bus services. One appeal is from the judgment of the Court of King's Bench (appeal side) of the province of Quebec[11] which, reversing the decision of the President of the Quebec Public Service Board,[12] held that it was not a matter properly for determination by the provincial board on the ground that the Dominion Board of Transport Commissioners had exclusive jurisdiction in the matter. The other appeal is from the order of the Board of Transport Commissioners which decided that it had no jurisdiction in the matter of fares or tolls on motor buses. While it was not suggested on the argument, I should have thought it might well be that neither the provincial board nor the Dominion Board had clear authority to control and fix the fares. It seemed to be taken for granted, however, that one or the other of the boards must have authority.
If the railway company were a provincial company, there would appear to be no lack of jurisdiction in the provincial board, but the railway company having been declared by Dominion legislation some years ago to be a company within the legislative authority of the Parliament of Canada, it was contended that it was beyond the control of a provincial board, and that it was only the Dominion Transport Board that has jurisdiction over the company and the fares and tolls that it is entitled to charge. Shortly stated, that is the problem which is presented to the Court in these appeals.
The railway company, under the name of the Quebec, Montmorency and Charlevoix Railway Company, was originally incorporated, in 1881, by an Act of the legislature of the province of Quebec, 44-45 Vic., c. 44. It was a local provincial company, owning and operating a railway solely within the province of Quebec. In 1894 the province of Quebec, by 57 Vic., c 71 (passed January 8th, 1894), extended the power of the Company to operate an electric tramway within the city of Quebec Subsequently, in 1895, by 58-59 Vic., c 59, the Parliament of Canada constituted the company a body corporate within the jurisdiction of the Parliament of Canada. Sections 1 and 2 of the said Act of Parliament read as follows:—
1. The undertaking of the Quebec, Montmorency and Charlevoix Railway Company, a body incorporated as mentioned in the preamble, and hereinafter called "the company", is hereby declared to be a work for the general advantage of Canada. 2. The Company as now organized and constituted under the said Acts of the province of Quebec is hereby declared to be a body politic and corporate within the legislative authority of the Parliament of Canada; and this Act and The Railway Act of Canada shall apply to the Company and its undertaking, instead of the said Acts of the province of Quebec and The Railway Act of. Quebec: Provided that nothing in this section shall affect anything done, any rights or privilege acquired, or any liability incurred under the said Acts of the province of Quebec prior to the time of the passing of this Act,—to all which rights and privileges the Company shall continue to be entitled and to all of which liabilities the Company shall continue to be subject.
Much of the argument turns upon an amendment to the Dominion statute made by Parliament in 1939 whereby a subsection was added to section 8 of the original Act. It is important, therefore, to set out section 8 as it appeared in the original Act and remained untouched until 1939:
8. The Company may use and employ for the locomotion and propulsion of its cars, vehicles and rolling stock, where such power is required, electricity in all its forms, steam, and any approved mechanical power or other means, agency or force for such purposes that science or invention may develop,—and shall have all rights, powers and privileges necessary and essential to the management, operation and maintenance of its line as an electrical system, either in whole or in part; and may acquire, use and develop every kind of electrical force, power and energy required or useful in the working of the undertaking, and apply such agencies and motive powers for all its uses and purposes aforesaid.
In 1939, then, by Act of Parliament, 3 Geo. VI, c. 56, the following was added as subsection (2) of section 8 of the original Act:
(2) It is enacted and declared that the Company's now existing powers apart from any limitations with respect to the use of steam, include the power to own, maintain, lease, possess and operate auto busses, trolley busses and all kinds of public or private conveyances whether propelled or moved by oil, vapour or other motor or mechanical power in, over and throughout any of the territory in which it is now authorized to operate, subject to all provincial and municipal enactments, in respect to highways and motor vehicles operated thereon and applicable thereto.
It almost strikes one at a glance that the controversy must turn upon the meaning and scope of the concluding words of the added subsection
subject to all provincial and municipal enactments, in respect to highways and motor vehicles operated thereon and applicable thereto.
The railway company appears to have acquired and operated motor busses some little time prior to the amendment of 1939 and has continued to own and operate motor busses on municipal and provincial highways solely within the province of Quebec since that time. The town of Beauport desired to have the fares or tolls to be charged by the company in connection with the operation of its motor busses fixed by the provincial board known as the Quebec Public Service Board and the company desired its tariff to be fixed by the Dominion Board of Transport Commissioners.
Those who argued against the authority of the Dominion board and in favour of the authority of the provincial board, very strenuously pressed upon us the contention that the word "undertaking" used in section 1 of the Act of Parliament, 58-59 Vic., c. 59, above quoted, was not an appropriate word to cover, and does not cover, the rolling stock of the company, particularly the motor busses; the specific purpose of this argument being to establish the contention that the motor busses of the company cannot be regarded in law, under the wording of section 1, as "a work for the general advantage of Canada." What is said is that the authority of Parliament under section 92, head 10 (c) of the British North America Act is limited to "Works"—and does not mention "undertakings." It may be convenient here to set out section 92 (10):
92. In each province the legislature may exclusively make laws in relation to matters coming within the classes of subjects next hereinafter enumerated; that is to say,—
10. Local works and undertakings other than such as are of the following classes:—
(a) Lines of steam or other ships, railways, canals, telegraphs, and other works and undertakings connecting the province with any other or others of the provinces, or extending beyond the limits of the province;
(b) Lines of steam ships between the province and any. British or foreign country;
(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 or for the advantage of two or more of the provinces.
While the opening words of 10 are "Local works and undertakings" and (a) uses "other works and undertakings," (b) uses neither word "works" nor "undertakings," and (c) uses only the word "works." The argument is that the "undertaking" of the company was not validly declared a work for the general advantage of Canada—that the authority of Parliament is by 10 (c) limited to "works". A sentence is taken from the judgment of Lord Dunedin in the Radio case,[13] as a definition of these words "undertaking" and "works" and applied to the construction of the particular Act of Parliament which is before us. The sentence used by Lord Dunedin is,
"Undertaking" is not a physical thing, but is an arrangement under which of course physical things are used.
It was argued from that that when the Act of Parliament, 58-59 Vic., c. 59, declared the "undertaking" of the company to be a work for the general advantage of Canada, it did not touch or affect the "works" of the company and, particularly for the argument of these appeals, that the word "undertaking" does not touch or affect the motor busses of the company because they are physical things moving about from place to place. I find it difficult to accept such an interpretation of the particular statute. The effect of the statute would be nugatory on such an interpretation. It seems to me that the word "undertaking" there used involves the totality of the works of the company and that the effect of the statute was that they were declared to be for the general advantage of Canada. Such a declaration was within the competence of the Dominion Parliament when the meaning and scope of the statute is fairly construed. The argument was advanced obviously to put the motor busses of the company beyond Dominion control and place them within provincial control, but I do not think that any such strained construction of the statute as contended for is necessary even to accomplish that end.
Section 2 of the Act of Parliament, 58-59 Vic., c. 59, declares the company
to be a body politic and corporate within the legislative authority of the Parliament of Canada.
In my opinion when Parliament in 1939 amended section 8 of its original Act of 1895 by adding thereto subsection (2) above quoted, it extended, or at least expressly defined, the power of the company to own, maintain and operate auto busses in, over and throughout any of the territory in which the company is authorized to operate. But Parliament made a conditional grant of the power—the condition being that the exercise of the power was to be subject to all provincial and municipal enactments in respect of highways and motor vehicles operating thereon and applicable thereto. It might well lead to a state of chaos if a Dominion company had a right to operate motor vehicles on municipal and provincial highways according to its own ideas without reference to the provincial laws, rules and regulations governing the operation of other motor vehicles on the public highways in the province. For instance, you could not in any practical sense have a province requiring all motor vehicles to travel on the right hand side of the road and a Dominion company denying any authority of the province over it because it was a Dominion company, and asserting the right to run its motor vehicles on the left hand side of the road. Counsel for the company, confronted with such situations, admitted frankly that the company was undoubtedly liable to what he called "all ordinary regulations of general application," respecting motor vehicles on provincial and municipal highways, but contended that that does not include the control or fixing of fares or tolls, because according to his argument you cannot read the word "tolls" into the general words of the subsection to which the power to operate motor busses is made subject. His contention is that the fixing of tolls for the motor busses, because the company itself is a railway company, comes under the Dominion Railway Act and the Dominion Transport Act.
In my opinion the generality of the language of the 1939 amendment imposing a condition on the grant of the power is sufficient to involve the regulation and control by the province of the motor busses on the municipal and provincial highways of the province; and the fixing of fares or tolls, for uniformity or otherwise, by a provincial board comes within the condition of the subsection upon a proper construction thereof. It was contended by the Dominion that that construction involves an unwarranted delegation of legislative authority beyond the power of Parliament. I think the principle is that stated in the John Deere Plow case[14]: It is enough for present purposes to say that the province cannot legislate so as to deprive a Dominion company of its status and powers. This does not mean that these powers can be exercised in contravention of the laws of the province restricting the rights of the public in the province generally. What it does mean is that the status and powers of a Dominion company as such cannot be destroyed by provincial legislation.
And in Bank of Toronto v. Lambe[15]:
They (their Lordships) cannot see how the power of making banks contribute to the public objects of the provinces where they carry on business can interfere at all with the power of making laws on the subject of banking, or with the power of incorporating banks.
The appeals should in my opinion be disposed of in accordance with the above conclusion.
Kerwin J.—The Quebec Railway, Light and Power Company was formerly known as the Quebec, Montmorency and Charlevoix Railway Company. That company was incorporated by a special Act of the legislature of the province of Quebec. This Act was amended from time to time until by the year 1895 the Company had been authorized to own and operate a railway within a certain area of the province of Quebec and to own and operate an electric tramway within the city of Quebec and its environs. In 1895, the Parliament of Canada passed an Act embodying therein such provisions of the provincial Acts as were desired to be retained in force and enacting the following as sections 1 and 2:
1. The undertaking of the Quebec, Montmorency and Charlevoix Railway Company, a body incorporated as mentioned in the preamble, and hereinafter called "the Company", is hereby declared to be a work for the general advantage of Canada.
2. The Company as now organized and constituted under the said Acts of the province of Quebec is hereby declared to be a body politic and corporate within the legislative authority of the Parliament of Canada; and this Act and The Railway Act of Canada shall apply to the Company and its undertaking, instead of the said. Acts of the province of Quebec and The Railway Act of Quebec: Provided that nothing in this section shall affect anything done, any rights or privilege acquired, or any liability incurred under the said Acts of the province of Quebec prior to the time of the passing of this Act,—to all which rights and privileges the Company shall continue to be entitled and to all of which liabilities the Company shall continue to be subject.
Subsequently the Company acquired from the Montmorency Electric Power Company the latter's business and undertaking and also the business and undertaking of the Quebec District Railway Company, and in 1899 its name was changed to its present title. The appellant company and the other companies mentioned were incorporated for provincial objects and it is only by virtue of the declaration in section 1 of the Act of 1895 that the Dominion could acquire any jurisdiction. That section was passed in pursuance of exception (c) to head 10 of section 92 of The British North America Act and no more extended meaning than the word "works" therein bears on its proper construction may be ascribed to the word "undertaking" in section 1 of the 1895 Act.
In the year 1939, section 8 of the Dominion Act of 1895 was amended by adding thereto subsection 2. As thus amended section 8 now reads:—
8 (1) The Company may use and employ for the locomotion and propulsion of its cars, vehicles and rolling stock, where such power is required, electricity in all its forms, steam, and any approved mechanical power or other means, agency or force for such purposes that science or invention may develop,—and shall have all rights, powers and privileges necessary and essential to the management, operation and maintenance of its line as an electrical system, either in whole or in part; and may acquire, use and develop every kind of electrical force, power and energy required or useful in the working of the undertaking and apply such agencies and motive powers for all its uses and purposes aforesaid.
(2) It is enacted and declared that the Company's now existing powers apart from any limitations with respect to the use of steam, include the power to own, maintain, lease, possess and operate auto busses, trolley busses and all kinds of public or private conveyances whether propelled or moved by oil, vapour or other motor or mechanical power in, over and throughout any of the territory in which it is now authorized to operate, subject to all provincial and municipal enactments, in respect to highways and motor vehicles operated thereon and applicable thereto.
It appears that some time prior to the enactment of the amendment of 1939 the Company had commenced to operate auto busses in the city of Quebec and adjoining territory. The meaning to be ascribed to the word "works" in exception (c) to head 10 of section 92 of The British North America Act has been considered in City of Montreal v. Montreal Street Ry. Co.[16]; Wilson v. Esquimau and Nanaimo Railway Company[17]; In Re Regulation and Control of Radio Communication in Canada[18]. Whatever the precise construction may be, I am satisfied that the busses owned and operated by the Company fall within the meaning of that term so that they would be part of the Company's works as much as the rails and tramcars of the Company's electric tramway system. As to these, it has been decided by this Court in Quebec Railway, Light and Power Company v. Montcalm Land Company[19], that the Quebec Public Service Commission (now the Public Service Board) had no jurisdiction to order the Company to cause its tramcars to run more frequently. Unless, therefore, the concluding words of the amendment of 1939,
subject to all provincial and municipal enactments, in respect to highways and motor vehicles operated thereon and applicable thereto,
have the effect of altering the position, the Public Service Board has no jurisdiction to deal with the fares or tolls to be charged by the Company for travel on its auto busses. The w