1852. The QUEEN v. YORK and the districts next around the same point and Cherry Burton is very small and inconsiderable; and that the tolls and other charges to be derived from traffic along the same railway, if made, would not only not be remunerative to the said Company, but would be insufficient to pay the necessary costs of conveying such traffic and of maintaining the same railway: and that the making of the same railway would be a useless expenditure of labour and money, whilst it would be destructive of the lands through which it would go for any agricultural or other useful or beneficial purpose: and that the district between Market Weighton and Beverley in the annexed writ mentioned, through which the said railway we are thereby commanded to make would (if made) run, contains merely a few agricultural villages of very small extent and thinly populated: And that, at the time of the coming of the annexed writ to us, there were and are easy and convenient communications by railway from Beverley and Market Weighton aforesaid to York and the north of England, and between Beverley aforesaid and the several towns of Hull, Driffield, Bridlington, Scarborough, Whitby and Malton and all parts of England traversed by railway; and that the facilities of such communications, so far as the same relate to York and the north of England, will be increased by the opening of The Malton & Driffield Junction Railway and The Malton & Thirsk Railway respectively; and that the said Malton and Driffield Junction Railway, at the time of the coming of the annexed writ to us, was, and is already, made and completed, except a very small portion thereof; and that the said Malton & Thirsk Railway, at the time of the coming &c., was, and is now, in the course of construction: and that both the two last mentioned railways will be made and opened for the use of the public in a much shorter period than the said railway from Market Weighton to Beverley could be constructed in, even if the powers of us the said Company to complete the same were still in force: And that all and every the sum and sums of money applicable to the purposes of the said York & N. M. &c. Act, 1849, which can in reasonable probability come to the possession of, or be disposable by, us the said Company will fall short by a very large sum of money, and not less than 100,000l., of the aggregate sum necessary for the making of the railway authorized by the said York & N. M. &c. Act, 1849, and which we the said Company are by the annexed writ commanded to make, and necessary for the making of the same railway: And that, by reason of the premises, the making by us of the said railway authorized to be made by the said York & N. M. &c. Act, 1846, from the said York & Scarborough Railway near the city of York to or near Beverley in the said annexed writ in that behalf mentioned, with or without the said deviation by the said York & N. M. Railway Act, 1849, at the time of the issuing of the said annexed writ was, and is, impracticable and impossible: Wherefore we the said Company cannot, nor could we at the time of the coming of the annexed writ to us, nor were we then, nor are we, by law liable, or bound by the said acts in the annexed writ mentioned, or any of them, to proceed to purchase the lands necessary to and required for the making and completing of the said line of railway by the said York & N. M. &c. Act, 1849, authorized to be made and firstly therein described as aforesaid, or to proceed to make, or to make, or complete, the said line of railway in the said E. & B. VOL. I. 1852. The QUEEN V. YORK and Railway 1852. The QUEEN V. YORK and NORTH MIDLAND Railway Company. annexed writ in that behalf mentioned, and which we are thereby commanded to proceed to make, and to make and complete. Demurrer. Joinder. The demurrer was argued in Trinity term (June 2d.) 1852 (a). Hugh Hill, for the Crown. This case must be governed by the principle laid down in Blakemore v. The Glamorganshire Canal Navigation (b), and adopted in Regina v. The Eastern Counties Railway Company (c), that persons who obtain acts of parliament like those in question contract with the public (represented by the Legislature) "to do and submit to whatever the Legislature empowers and compels them to do." The force and application of this principle are shewn also in Lee v. Milner (d), Rex v. Cumberworth (e), and Rex v. Edge Lane (g): it is recognised in Regina v. Caledonian Railway Company (h): and it prevails though the statute use permissive words only; Com. Dig. Parliament (R. 22.), Rex v. Barlow (i), Regina v. St. Saviour's, Southwark (k). Macdougall v. Paterson (1) is a late authority on the obligatory effect of the word "may." The facts appearing on this mandamus shew a contract with the public, and at all events with the persons whose lands are affected, to make a railway from the York & Scarborough line (a) Before Lord Campbell C. J., Erle and Crompton Js. was at Guildhall. Coleridge J. (b) 1 Mylne & Keen, 154. 162, 3. See the passage cited, p. 208, post. (c) 10 A. & E. 531.546. (e) 3 B. & Ad. 108. (h) 16 Q. B. 19. (k) 7 A. & E. 925. (d) 2 M. & W. 824, 839, 40. (g) 4 A. & E. 723. (i) 2 Salk. 609. (1) 21 Law J. N. S. Com. Pleas, p. 27, Mich. T. 1851. to Beverley; and the Company obtained their act by representing that the making of such a railway would "be attended with local and public advantage." It is also material that the Company here have begun the railway. Patteson J. says in Regina v. London & North Western Railway Company (a): "If the Company begin to make the railway, then, possibly, they will be compelled to complete it; but not, if they have never begun" (b). Hill then commented upon the statements in the return: and, as to the alleged want of funds, which he contended was no answer to the writ, he referred to Regina v. The Trustees of the Luton Roads (c), and, generally, to the authorities on the same point cited in Regina v. London & North Western Railway Company (a). The full notice of these points in the judgment of the Court makes it unnecessary to pursue the argument farther. Sir F. Kelly, Solicitor General, contrà. The mandamus calls upon the Company to complete a line which has never been commenced. The railway contemplated by the act of 1846, from Clifton to Beverley, has been completed as far as Market Weighton, and abandoned as to the portion from Market Weighton to the highway between Elton and Cherry Burton. Instead of this, a new line between Market Weighton and that high (a) 6 Rail. Ca. 634.644. Easter term, 1851. See p. 199, note (a), post. (b) In the note of the reporters of the present case the dictum is: "If a Company obtain an act for making a railway, with the words 'it shall be lawful,' it may be they are not bound to make it: but it is another thing whether, if they begin it, they are not bound to make it according to the Act." (e) 1 Q. B. 860. 1852. The QUEEN V. YORK and Railway 1852. V. YORK and way was marked out by the act of 1849; and this was a The QUEEN distinct railway. But, supposing the new line to be the same, for the purposes of the case, as the line of 1846, the Company cannot be compelled to execute it even as far as the Cherry Burton road. It would now be impracticable to extend it farther; and to carry it only as far as that point would be an illegal exercise of the powers given by the act of 1846; Regina v. The Eastern Counties Railway Company (a). If the Company had been willing to do it, they might have been restrained by injunction; Cohen v. Wilkinson (b). Even the consent of the shareholders would not have justified it; Macgregor v. Dover and Deal Railway Company (c). The East Anglian Railway Company v. The Eastern Counties Railway Company (d) is to the same effect. No instance can be shewn of a mandamus to complete a railway in part, where it was impracticable to complete the whole. The main question, however, is, whether an act authorizing a Company to make a certain railway obliges them to make it. Acts of this kind use obligatory language when it is intended that a duty should be prescribed, permissive where the intention is not such. Sects. 45, 46 of stat. 8 & 9 Vict. c. 20. (Railways Clauses Consolidation Act, 1845) are instances. There is the same diversity in the particular acts now in question (e). [Lord Campbell C. J. The question is, whether the statutory compulsion operates where the Railway Com (a) 10 A. & E. 531. (b) 12 Bear. 125. 138. 1 Macn. & Gord. 481. (c) Ex. Ch. Error from Q. B., Trin. term, June 1st) 1852. (d) 18 Law Times, 138. Com. Pleas, Mich. Vac. 1851. (e) He referred to stat. 6 & 7 W. 4. c. lxxxi. s. 93., and stat. 9 & 10 Vict. It is not thought necessary to set out the words. c. lxv. ss. 7, 10, 12, 13. |