1852. V. YORK and NORTH MIDLAND Railway Company. Weighton to Burton alone would not repay the necessary expenditure. Where the defendants have taken land, The QUEEN they have made and opened a railway; and where they have abandoned their project they have taken away no existing public right; they merely leave the district in its former state. To ascertain whether the duty arises upon these facts, recourse must again be had to the statute; for the facts taken by themselves are wholly inoperative to originate the supposed duty: the statute might attach any legal consequence to them; but unless they have a statutable force, they operate nothing. Now throughout the statute no provision is found to the effect contended for: there is no enactment requiring the completion of the whole if a part is begun, and no indication of an intention in the Legislature that this increased responsibility should arise from the exercising of any of the powers, or the making of part of the line. The suppositions, that the prosecutors consented to the bill before Parliament in the expectation of the whole line being made, or that the incomplete line is an inconvenience or desight to the neighbourhood, are no origin for a legal duty to complete the line. They are considerations which might guide Parliament in respect of imposing that duty; but, if there are no words in the act that can be justly construed to create it, these considerations do not authorize the Court to decide that such a duty was created. The obligation arising from taking land to make a railway thereon appears to me fulfilled by making and opening an available railway as far as the land is taken: and the owner of land so taken does not in my opinion acquire a better right than other landowners in respect of his land on the line that has been abandoned. 1852. V. YORK and NORTH MIDLAND Railway Company. This brings me to the consideration of the main The QUEEN ground of the prosecutors, namely, Lord Eldon's words in Blakemore v. Glamorganshire Canal Company (a); who, speaking of acts obtained by companies for private undertakings, says: "When I look upon these Acts of Parliament, I regard them all in the light of contracts made by the Legislature, on behalf of every person interested in anything to be done under them; and I have no hesitation in asserting that, unless that principle is applied in construing statutes of this description, they become instruments of greater oppression than anything in the whole system of administration under our constitution. Such acts of parliament have now become extremely numerous; and, from their number and operation, they so much affect individuals, that I apprehend those who come for them to Parliament, do, in effect, undertake that they shall do and submit to whatever the Legislature empowers and compels them to do; and that they shall do nothing else:-that they shall do and shall forbear all that they are thereby required to do and to forbear, as well with reference to the interests of the public, as with reference to the interests of individuals." Lord Eldon is supposed to have here laid down that companies can be compelled to do all that they are empowered to do under their act: but his words do not bear this meaning. He says, the companies shall do whatever the Legislature empowers and compels them to do: whereas he is supposed to say, they shall do whatever the Legislature either empowers or compels them to do. It cannot be supposed that the learned Judge meant to construe words of permission, empower (a) | Mylne & Keen, 162. ing an act, to be words of command, requiring that 1852. v. YORK and act, if the Legislature did not so intend. The supposed The QUEEN principle was not involved in the judgment he was pronouncing relating to the surplus water of the canal; because the duty of leaving that surplus water, and the right of taking it, were created by appropriate words in the statute then in question: and the point for judgment was the meaning of "surplus water." The words occur when the learned Judge is disposing of the question, whether Mr. Blakemore's right to this water under the statute was affected by the quality of his right before the statute. This of course is answered in the negative; for the statute is the origin of a new right created thereby, and such a new right is unaffected by old rights previous to the statute, inconsistent therewith. If the learned Judge regarded these statutes in the light of contracts, because rights created by such statutes are as original as rights created by contract, the observation is relevant, and is assented to as soon as understood. The same remark would apply to the concluding observation, if he meant that a company must do what the Legislature compels it to do, that is, must obey the law. Both propositions are too obvious to require expression. But, if the learned Judge is taken to mean that words in the class of statutes he referred to should receive a construction different from their ordinary meaning, upon the ground that such statutes would be a source of the greatest oppression if construed as usual, I think his meaning has been misunderstood; and such doctrine seems to me to be altogether erroneous: the attempt to introduce the incidents of a supposed contract between the company and other persons, and to regard the statute in the light of such E. & B. VOL. I. P 1852. V. contract, leads to confusion in reasoning; while the sug The QUEEN gestion of the danger of the greatest oppression unless a new principle of construction should be adopted against companies creates an unjust prejudice in feeling. YORK and NORTH MIDLAND This passage has been often cited: at times in the sense that the company must do what their statute requires them to do, in which it is harmless; at other times in the sense that they must do all that their act empowers them to do. In the latter sense, they were the foundation for the first decision in Regina v. The Eastern Counties Railway Company (a), where the writ was issued commanding the completion of the whole line: because the statute empowered the Company to make the whole line, therefore it was construed to require it. This ground was again repeated when the peremptory mandamus was applied for and refused by reason of some informality in the first writ (b): but it was then accompanied by the observation that the case was in some respects new; and that its circumstances admitted of some doubt whether the power of the Court ought to be applied to them. It is upon these authorities that the present application for the first instance of issuing a peremptory writ of mandamus to complete a railway is rested. On the other side is the observation of Lord Mansfield, in Rex v. The Proprietors of The Birmingham Canal Navigation (c), where a writ to the same effect as the present was applied for on stronger grounds than exist here, but refused by that eminent Judge, in these words: "The act imports only an authority to the proprietors, not a command. They may desert (b) 10 A. & E. 555, et seq. (a) 10 A. & E. 531. (c) 2 W. Bl. 708. 1852. V. YORK and Railway or suspend the whole work, and a fortiori any part of it." In Rex v. The Severn & Wye Railway Com- The QUEEN pany (a) the defendants destroyed a railway, it being a public highway which the applicants had used and required to use again: the writ therefore, commanding the reinstatement of it for the use of those who had a clear right to it, was in ordinary course; the duty and right were admitted to be clear; and the only objection was that the complainant had a remedy by indictment: but a mandamus to restore was considered to be better redress: still, in granting the mandamus so to restore, the Court expressly refused to command the maintaining of the way after restoring, although by the statute the Company were empowered to maintain, as well as to make the way. Upon this review, there appears to be no precedent for issuing the writ now prayed for; and no instance has been cited of an indictment or action upon the supposed principle which is the foundation of the prosecutors' case. This absence of any precedent is equivalent to an authority against the existence of the principle; the occasions for bringing the principle into action, if it had existed, having been extremely numerous. The cases at law in which the principle has been under judicial consideration have been mentioned above; and the cases in equity bear rather upon the rights of shareholders inter se than upon the duties of the companies towards the public. And, upon the whole, the balance of authority appears to me to be against the prosecutors. Considerations of convenience tend to the same conclusion. If the writ is refused, it will be for the Legislature in future to declare by clear words what (a) 2 B. & Ald. 646. |