opened between certain termini; and the privilege of making it is conceded to a Company with extraordinary powers over highways and other public rights. Competitors who were willing to construct a Railway between the same termini are defeated; for a period of at least five years, no similar scheme can be brought forward.

May it not reasonably be concluded, then, that the Company are bound to perform their part of the contract as well in respect to the public as to the landowners? A permission which works no prejudice to the party who grants

it

may well leave the exercise of it optional with the grantee; but if it is granted at the request of the grantee, on a representation that he is about to exercise it for the benefit of the grantor, who cannot withdraw it, is it not the fair inference, that the obligation is reciprocal?

Rash and reckless speculators in railroad shares may thus be considerable losers, if, when the shares suddenly fall to a discount, they may not at their pleasure break up the concern; but if a speculation of this sort is conducted on fair commercial principles, no real hardship can arise from considering that the contract binds the Company as well as the landowners and the public. The Company always declare their readiness and willingness to execute the work for the public benefit, and engage to find funds for the purpose. If the calculations have been honestly and prudently made, there is hardly a possibility of any discovery, before the work is begun, that it may not be advantageously carried on. If in the progress of the work unforeseen difficulties arise,-if a tunnel costs much more than might reasonably have been expected, or bridges are swept away by an inundation,-a new arrangement may be made under the sanction of Parliament. Applications have repeatedly been made with success to Parliament by Railway Companies, for leave to abandon the whole of their undertaking or a particular branch of it; I cannot therefore allow, that the apprehended ruin of shareholders

should induce us to abstain from giving such Acts of Parliament the construction which ought fairly to be put upon. them. We are to find out what is the just inference from the nature of the transaction, and from the language employed. In some of these Railway Acts we find the expression "the Company is required to make and maintain the Railway;" in others, "it shall be lawful for the Company to make and maintain." I do not believe that a different meaning is really intended by these different expressions. The rule for construing the language of Parliament upon this subject is to be found in Com. Dig. "Parliament" R. 22: "Words of permission shall be obligatory. If a statute says, that a thing for the public benefit may be done, it shall be construed that it must be done." According to this rule, as the Railway is expressly declared to be for the public benefit, these two forms of expression in Acts of Parliament for the same object are synonymous. Reliance was placed by the defendants' counsel on Anstruther v. East of Fife Railway Company (a); but when that case is examined, it will be found to be no authority for them. There the special Act received the Royal Assent on the 16th of July, 1846; the Company, having received deposits and calls, but before commencing any works or giving any notices to landowners, on the 28th of March, 1849, came to a resolution to abandon their undertaking, and to apply to Parliament for an Act to authorise them to do so. On the 30th of May following, the appellant made an application to the Court of Session in due form, "that the Company might be interdicted from taking any steps or proceeding, having for their object the dissolution of the said Company, and from returning or paying back to the shareholders the money advanced and paid by them in the shape of deposits or calls, and from violating the contract or agreement entered into between him and the Company,

(a) 1 Macq. Scotch App. Ca. 98.

and from acting in any other way prejudicial to his interests under the said contract or agreement, or contrary to the provisions of the statute incorporating the said Company. The appeal was against interlocutors refusing this interdict. The appellant's counsel admitted that the interdict would have prevented the Company from coming to Parliament for an Act authorising them to abandon the undertaking; but relied upon the very questionable dictum laid down by Lord Cottenham in a case (a) where the Company had begun to make the Railway, that the Court of Chancery may grant an injunction to stop proceedings in Parliament contrary to a contract supposed to have been entered into. It further appeared, that the appellant had brought an action of declarator against the Company, for the purpose of having it found that the Company had no right to abandon the undertaking, and that in this action judgment had been given against him. Lord St. Leonard's, therefore, in advising the House to dismiss the appeal, observed (b), "What is prayed is a general injunction, on the assumption that the right will be established, at the very period when that right has been denied, and the injunction in effect dissolved by a judgment against the appellant in an action of declarator," (not now before the House). -"The appellant prays that the Company may be prevented from asking Parliament for an Act to put an end to this proprietary. It is perfectly clear that the terms in which the injunction is sought, would go to interdict such an application." "If such a person desires to oppose a projected measure in Parliament, he is at perfect liberty to do so; and he will be duly heard by the legislature on the ground of his interest; but, to grant an injunction in the circumstances of the present case, is impossible." His Lordship afterwards goes on to observe, that, to support

(a) Heathcote v. The North Staffordshire Railway Co., Ante, Vol.

6, p. 368; 2 Mac. & G. 100.

(b) 1 Macq. Sc. App. Ca. 104.

५

1852.

THE QUEEN

บ. THE

LANCASHIRE

& YORKSHIRE

RAILWAY CO.

the appeal, the propriety of the interdict in all its parts, as prayed, must be proved; and that there was no pretence for saying that the appellant had any right to restrain the Company from paying back deposits to the shareholders. The affirmance of the judgment refusing the interdict is no authority against this mandamus.

The question which is now before us is more nearly touched by the action of declarator in the Court of Session between the same parties. There, a very learned Judge, Lord Wood, decided that the action was not maintainable; but he proceeded solely on the ground that it had been commenced too late; and that an Act had been passed by the legislature, authorising the Company to abandon the undertaking. He says, "the compulsory powers authorising the Company to take lands expired in July, 1849; in 1850 they applied to Parliament for leave to dissolve themselves; and, having proved to the satisfaction of the legislature that the construction of the Railway had never been commenced, and that it was expedient to abandon the undertaking, a bill passed, enacting that the Company should cease to exist, except for payment of its debts; and that the Company were absolutely released and discharged from all obligation and liability to make the Railway.”

The action of declarator was instituted before the passing of the dissolving statute, but not till after the compulsory powers of taking land under the original Act had expired, so that the pursuer was clearly too late in bringing his action. His Lordship, however, goes on to intimate a pretty strong opinion, that, "had the proper demand been made while the compulsory powers subsisted, and within a reasonable time before their cessation, an action for that purpose timeously raised would have been maintainable by the pursuer; and he might have been entitled to the decree now prayed against the defenders (a).

(a) See the authorities collected, 1 Macq. Scotch App. Ca. 102, n.

1852.

v.

THE

LANCASHIRE

& YORKSHIRE

RAILWAY Co.

Looking at the 10 & 11 Vict. c. ciii., for making this extension by an existing Company, which had previously THE QUEEN made the line of Railway to be extended, I doubt whether the Company, in respect of the extension, be exactly in the situation of a new Company which had been created to construct a new Railway, and which had never availed itself of any of the powers of the Act. But supposing the defendants to be in this situation, I think that the return to the mandamus would be bad, as only shewing that they had broken the contract, and disregarded the obligation to construct that Railway, which they are commanded to complete.

I have now to make a few observations on the form of the mandatory part of the writ, which is said to command what is unlawful, by requiring the Company "to do and take all necessary acts and steps both as to the purchase of lands and otherwise, for making and completing, and to make and complete, the said extension Railway pursuant to the statutes in that behalf." Under the 4th and following sections of the Act, 10 & 11 Vict. c. ciii., power is given to raise a sum of money by the creation of new shares for making this extension, and likewise to borrow on mortgage. If this money ought to have been raised by new shares or mortgage, before the Company proceed to purchase land under their compulsory powers, this writ requires them to do so. We must assume that they can have no difficulty in performing their undertaking. On arguing this objection we must assume that an obligation upon the Company exists to execute the work, and to do all that is necessary for this purpose. They are in substance called upon to take all the steps necessary for the completion of the Railway, in the order which the Act of Parliament prescribes.

Upon the whole, it appears to me that the writ of mandamus is valid in form as well as in substance; and, the only return to it being, that the Company, having taken