thereby authorised, should be binding on each of the local authorities concerned. The agreement validated by this Act is set out in the Schedule thereto. Clause 2 provides that the power of compulsory purchase conferred upon the council by The Tramways Acts, 1882-1890, shall only be exercised with respect to the petitioner's tramway, and all extensions and additions thereto, including the extensions mentioned in a schedule to the agreement, as one tramway, and at one and the same time, and in all respects as if the same had been constructed under the authority of one Order-in-Council. Clause 3 provides that this power of compulsory purchase may be so exercised at any time after 20th September, 1920. And Clause 4 provides that the rights of all persons in respect of the amount of the purchase money payable upon such a compulsory purchase, and the basis or principle on which the same should be determined, shall be unaffected by the agreement, and that the amount of such purchase money should be ascertained and determined as if the agreement had never been made, and as if the extensions mentioned in the Schedule to the agreement had been included in an Order-in-Council of 10th March, 1910, authorising earlier extensions, and had been completed, when these earlier extensions were completed-namely, on 4th April, 1911. I confess I have great difficulty in interpreting this agreement so as to reconcile Clause 4 with the next two preceding clauses. Like s. 16 of the Act of 1922, the agreement in the Schedule to the Act of 1913 seems to take refuge in obscurity for fear that it might otherwise alter existing rights. However, Clause 4 of this agreement appears to me to be designed to provide for the possibility that on a compulsory sale the right to earn profits by working the tramway would not form any part of the subject matter of the sale, and in that event to leave it open to the petitioners to claim compensation for the loss. of the profits of which they might be deprived by the ante-dating of the time at which the right of compulsory purchase would become exercisable in respect of extensions completed or deemed to be completed on 4th April, 1911. In the view, then, which I take of s. 84 of the Act of 1882, the Act of 1913 does not seem to me materially to affect the question as to the basis or principle on which the purchase money is to be assessed. F.C. THE BRISBANE THE BRISBANE Shand J. F.C. TRAMWAYS Co. In their petition, the petitioners do not distinguish between the THE BRISBANE value of their physical assets as a continuing and profit-bearing concern, and the replacement value of these physical assets. THE BRISBANE Indeed, they seem to me to claim both. But they cannot, I think, TRAMWAY TRUST. both be claimable. Cf. Grand Trunk Railway v. The King (1) LTD. v. Shand J. Indeed, the petitioners seem to me to put forward a heterogeneous mixture of overlapping and inconsistent claims. It will be apparent that, in my opinion, the value of their physical properties includes their value as a continuing and profit-bearing concern ; and at present I do not see my way to express any further opinion as to the proper method of calculating this value, which must depend largely upon the evidence adduced to the assessing tribunal, its relevancy to the inquiry, and the attitude which this tribunal may take up with reference to that evidence. The petitioners also claim declarations with reference to properties alleged by them to be included, but which the respondents contend are not included in the expression "the tramway" in s. 16 of the Act of 1922. Unfortunately the parties are apparently not agreed as to the identity of the physical properties to be valued, and although the subject matter of a valuation must, of course, be ascertained before any valuation can be made, and its ascertainment is therefore, in one sense, the basis of the valuation, s. 16 presupposes that the identity of "the tramway" is already ascertained; and I cannot think that the Legislature can have intended this Court to determine the meaning of the words "the tramway" in s. 16 of the Act of 1922 on a petition such as this, and without taking into consideration any of the provisions of the Act of 1922, except those contained in s. 16 itself. If I were forced to determine this question by the light of s. 16 itself, together with the statement of facts contained in the petition, none of which have been contradicted by the respondents (for as I have repeatedly pointed out in the course of this case evidence in opposition to a petition must be given by affidavit), I could only come to the conclusion that "the tramway" in s. 16 must mean all property of which the Trust has taken possession. How else do they justify taking it? It appears to me, however, that this question could only be decided in some proceedings in which the Court's powers of investigation were in no way fettered. And I only desire to add this: I sincerely trust that the necessity of deciding this question by litigation may never arise. (1) [1923] A.C. 150, at p. 161. The Legislature can hardly have intended or contemplated that F.C. TRAMWAYS Co. Shand J. the Trust should take advantage of the infirmity of the petitioners' THE BRISBANE title to any property in order to acquire that property for nothing. And if the Trust desires to acquire the whole of this property as part of the tramway, as would seem to be the case from its taking possession of it under the provisions of s. 16 of the Act of 1922, possibly legislative assistance, if sought, would be readily forthcoming to make it clear that such property was included in the expression "the tramway," and would have to be paid for as part of the subject matter of the purchase. With regard to the Court or person by whom the purchase money is to be assessed, s. 84, subsec. 2, of The Tramways Act of 1882 provides that the amount 'shall be ascertained in the manner provided by The Public Works Lands Resumption Act of 1878 for determining the amount of compensation to be paid to the owners of lands required for public purposes." This Act of 1878 was repealed by The Public Works Lands Resumption Act of 1906, which appears to me to be an Act which re-enacts" the provisions of the Act of 1878 "with modification," within the meaning of s. 2 (iv.) of The Acts Shortening Act of 1867. And this last-mentioned enactment provides that "Where an Act repeals, and re-enacts, with or without modification, any provisions of a former Act, references in any other Act to the provisions so repealed shall, unless the contrary intention appears, be construed as references to the provisions so re-enacted." In my opinion, then, the reference in s. 84, subsec. 2, of The Tramways Act of 1882 to The Public Works Lands Resumption Act of 1878 must be construed as a reference to The Public Works Lands Resumption Act of 1906, as since amended by Acts of 1916 and 1917. See per Griffith, C.J., in Bennett v. Minister for Public Works (1). Counsel for the petitioners contended that, as s. 4 of The Tramways Act of 1882 incorporates with that Act the provisions of The Public Works Lands Resumption Act of 1878, so far as the same are applicable, and except where expressly varied, therefore the provisions of the Act of 1878 so incorporated were not repealed by the repeal of the Act of 1878. But The Public Works Lands Resumption Act of 1878 was an Act dealing with the acquisition of land, and was not concerned with the acquisition of any other property. In my opinion, then, s. 4 of the Act of 1882 only incorporates the provisions of the Act of 1878 for the purpose of determining the compensation payable by a company or local (1) 1908, 7 C.L.R. 372, at p. 375. F.C. THE BRISBANE TRAMWAY TRUST. Shand J. authority for lands taken by them, as tramway constructing authorities, under the provisions of s. 5, subsec. 1, of the Act of 1882. And s. 14, subsec. 1 of The Public Works Lands Resumption THE BRISBANE Act of 1906 provides, amongst other things, that when land is thereafter taken under any enactment which for the determination of compensation applies the provisions of the Acts thereby repealed, the compensation for land so taken shall be determined in the manner provided by the Act of 1906. Nor, in my opinion, could the incorporation by s. 4 of the Act of 1882 of the provisions of the Act of 1878 make the mention of the Act of 1878 in s. 84, subsec. 2, of the Act of 1882 any the less a "reference" to the provisions of the Act of 1878 within the meaning of the s. 2 (iv.) of The Acts Shortening Act of 1867. I am unable to construe it as a reference to the provisions of the Act of 1878 by s. 4 of the Act of 1882 incorporated in that Act. Lukin J. The cases cited by counsel for the petitioners in which Acts incorporating provisions of an earlier Act have been held to remain unaffected by the repeal of such earlier Act-e.g., R. v. Smith (1), Clark v. Bradlaugh (2), Re Woods (3), and Jenkins v. Great Central Railway Company (4)—or in which subsequent general enactments have been held not to interfere with special enactments or subjects specially dealt with dealt with in previous Acts-e.g., Barker v. Edger (5), and Blackpool Corporation v. Starr Estate Company (6)-do not seem to me to have any application to the case now under consideration. In my opinion the Act of 1882 is a public general Act, and the provisions of s. 84, subsec. 2, thereof, cannot be regarded as a bargain specifically and individually made with the petitioners. It follows that, in my opinion, the Court or person by whom the purchase money payable for the tramway by the Trust is to be assessed is the Court designated by s. 23 of The Public Works Lands Resumption Act of 1906-namely, the Land Court. LUKIN J. This Full Court of five Judges is hearing and determining this matter under the provisions of s. 16 of The Brisbane Tramway Trust Act of 1922, by which the performance of our judicial duties is expressly confined to determining upon the petition of the Minister or the Company "the basis or principle upon which, and the Court or person by whom the amount of purchase money payable for the Tramway by the Trust," upon the (1) 1873, L.R. 8 Q.B. 146. (2) 1881, 8 Q.B.D. 63. (3) 1886, 31 Ch. D. 607. (4) [1912] 1 K.B. 1, at p. 8. (5) [1898] A.C. 748. (6) [1922] 1 A.C. 27. acquisition or assumption of ownership, shall be assessed. Such acquisition is to be deemed to be a purchase by the councils of the local authorities specified in s. 15. In performing such duties we 66 F.C. THE BRISBANE Lukin J. shall not in any way take into consideration, or pay regard to the THE BRISBANE TRAMWAY TRUST. Brisbane Tramway Purchase Act of 1920, thereby repealed, or the Brisbane Tramway Trust Act other than s. 16, or any provision in either of such Acts, or draw or make any inference or implication that might otherwise be drawn or made therefrom" (s. 16, subsec. 4.) This statutory restriction is peculiar in its nature, and does not lighten the difficulties of our task. Without making ourselves acquainted with the other provisions of the Act, we cannot say what is the constitution of the entity-the Trust-or what are the "councils of the local authorities" specified in s. 15, or who is the Minister referred to. I assume that the Trust must be a duly constituted authority composed of the councils specified in s. 15; that such councils under The Tramways Act, 1882-1890, are those through whose area parts of the present Tramways run; and that the Minister is the Minister of the Crown charged with the administration of the Act. Having regard to the limitation just referred to, I think we are compelled to read this section as if it were a part of The Tramways Acts of 1882, 1890, and 1913. Under subsec. 5 of s. 16, these proceedings are to be conducted by His Majesty on behalf of the Trust. The petition, original and amended, of the Tramway Company-which Company I shall herein refer to as the claimants -and the replies thereto, show that disputed questions of fact and law have arisen as to whether or not certain property that was owned and used by the claimants in connection with the generation, sale and supply of electric light, heat and power, and certain allegedly unauthorised extensions and additions to the Tramway-collectively referred to in a paragraph in the reply setting out the Trust's contention, as "the excluded property "is part of the "tramway with its appurtenances" acquired by the Trust. I am of opinion that under the terms of s. 16, it does not come within the province of this Court, acting in its present capacity, or of the assessing tribunal, to determine those disputed questions. See Lord Atkinson's remarks in The Perth Gas Co. Ltd. v. City of Perth Corporation (1), Brierley Hill Local Board v. Pearsall (2), R. v. Metropolitan Railway Co. (3), Brandon v. Brandon (4). (1) [1911] A.C. 506, at p. 514. (2) 1884, 9 A.C. 595. (3) 1862, 32 L.J.Q.B. 367. |