F.C. TRAMWAYS Co. TRAMWAY TRUST. Lukin J. seller before the purchase, and are vested in and exercisable by and attached to the council or other purchaser after the purchase, THE BRISBANE whichever contention be correct. It is not as if the rights and privileges originally belonged to the council and were suspended THE BRISBANE in favour of the Company for a definite period, at the end of which the rights and privileges reverted to the council and the council became once more entitled to enjoy their own property on payment of the value of those physical objects alone, but the council acquire privileges and rights for the first time, and acquire them by an act of purchase of certain property which by law either includes those rights and privileges or has those rights and privileges. inseparably annexed to it. Except for the two elements of compulsory sale and independent ascertainment of price, what difference affecting value can it be said that the Queensland Statutes contemplate between the compulsory sale under s. 84, subsec. 1, on the one hand, and voluntary sale under s. 84, subsec. 3, or s. 86, where a council, having originally constructed, maintained and worked the tramway, sells its undertaking to an approved person or company, and thereby confers the statutory rights and privileges in perpetuity; or where a council having acquired a tramway through the exercise of a compulsory sale, resells to an approved person or company, and thereby confers the statutory privileges. and rights in perpetuity in consequence of the statutory option of purchase having been exercised; or under s. 9 of the 1890 Act, or under s. 13, subsec. 4, where the mortgagee of the original promoting company having continued as such after the exercise. of a compulsory purchase by the council, sells on default of such council under the powers contained in such mortgage, confirmed by such subsection, and thereby confers the statutory privileges and rights in perpetuity in consequence of the statutory option of purchase having been exercised? Can it be doubted that in such voluntary sales the purchase money would be the value of the whole tramway undertaking, including the value of the statutory privileges? Where the rights in perpetuity are conferred in the above case it is a matter of indifference to the holders of such rights whether they came to them by transfer or by force of the statute. They are secure in either aspect. It is, I think, significant that the English Legislature thought it necessary, notwithstanding the statutory privileges created by their Act were purely personal and unassignable, to make special Р F.C. TRAMWAYS Co. LTD. v. provision that the purchase price under a compulsory sale should THE BRISBANE be the value only of enumerated physical things, and in addition, in arriving at such value, there should be excluded "any allowance for past or future profits of the undertaking "—which really meant all profits-" or any compensation for compulsory sale or any other consideration whatever "-that is, a consideration of anything other than the value of the enumerated things (s. 43 English Act). THE BRISBANE TRAMWAY TRUST. Lukin J. It is also significant that the Queensland Legislature, although adopting, perhaps in some instances in a varied form, many of the provisions of the English Act (e.g., ss. 26, 28, 30, 31, 32, 34, 35, 41, 42, 43, 45, 46, 47, 50, 51, 52, 53, 54, 56), deliberately omitted those provisions, evidently because it was not intended that in ascertaining the "amount of purchase money" the factors expressly excluded from consideration under the English Act should be excluded under the Queensland Act. Regard being had to these matters, was it intended that the section should make any further alteration from the position obtaining in regard to any other purchaser than by providing that the promoting Company must, at any time after the passing of the prescribed period, if the council so wish, sell to such council, not at any price that the Company as ordinary sellers might otherwise insist upon, but at the then real commercial value to the Company of the whole undertaking, according to the opinion of the assessing tribunal? I think not. In the view I take, however, of the intention and effect of the provisions of the Queensland Statutes as to the nature of such privileges and of their continuity and assignability from one entity to another, it becomes unnecessary to rely on that aspect of the case. I assume, then, that unless the statutory privileges are part of the Tramway and pass by sale, the claimants are only entitled to replacement value. The answer to the question-on which of these two bases, replacement or going concern value depends, then, on the solution of the problem whether these statutory powers are merely an unsaleable, unassignable and personal right attaching by force of the Statute alone to the entity for the time being authorised to work and use the tramline, or whether they form part of "the tramway with its appurtenances," and are an assignable and saleable right of the claimants. The former involves, it seems to me, the continued and unbroken existence of the privileges created and their transfer by act of the seller, the latter the cessation of those privileges in one entity and their recreation in another. Lord Watson says in the Edinburgh Case (1): "Its solution depends, not upon so-called principles of valuation, but upon the nature and extent of the interest which the Legislature intended should attach to and accompany the structure to be valued and paid for under the description of the tramway," here under the description of the "tramway and its appurtenances." In construing this statute "It is germane to the subject to consider what the Legislature had in view in making the provisions I find in the Act. . . . One is entitled to put one's self in the position of the Legislature at the time the Act was passed in order to see what was the state of knowledge, what were the circumstances brought before the Legislature, and what it was the Legislature were aiming at." Attorney-General v. Metropolitan Electric Supply Co. Ltd. (2). "And to look at the surrounding circumstances at the date of its coming into existence." Macmillan & Co. v. Dent per Fletcher Moulton L.J.. (3). "And in ascertaining the intention of the Legislature, regard must be had to the circumstances of the country at the time when the Act was passed." Sermon v. Commissioner of Railways (4), per Griffith C.J. While reference may be made to the state of the law and the material facts and events with which it is apparent Parliament was dealing, it is not admissible to speculate on the probable opinion and motives. of those who framed the legislation excepting in so far as these appear from the language of the Statute." Viscount Haldane L.C. in Inland Revenue Commisioners v. Herbert (5). I propose first, then, to refer to what I conceive to be the material and relevant facts, events, and circumstances with which the Legislature was dealing, and the aim and motive and general scheme as appears from the language of the Statute in order to assist me in coming to a conclusion as to the intention of the Legislature in regard to the question here raised. Queensland, in the year 1882, was a large colony, in which there were a number of small cities and towns having, comparatively speaking, in each a very small population, not residing within a small, but spread over a large, area of land. There were no tramways for the conveyance of passengers in any such cities or towns. The Legislature apparently desired to establish that form of public convenience. To do so, it became (1) [1894] A.C. 456. (2) [1905] 1 Ch. 24 at p. 31 (3) [1907] 1 Ch. 107 at p. 120. (4) 1907, 5 C.L.R. 239 at p. 247. F.C. THE BRISBANE THE BRISBANE Lukin J. F.C. LTD. v. THE BRISBANE TRAMWAY TRUST. Lukin J. necessary to make such statutory provisions for conferring such THE BRISBANE Statutory rights as would induce a company with sufficient capital TRAMWAYS Co. to construct, maintain, and work a tramway in some of such cities and towns as a business proposition, with a reasonable and probable expectation of profit. It was obvious that such an undertaking was not likely to prove profitable in the then near future, but with the closer and larger population that was likely to take place from progressive development in the young and growing cities, there was a reasonable prospect of building up a valuable undertaking, yielding a reasonable and possibly a handsome profit in later years. It was then a matter of public knowledge that in 1882 the population of even the City of Brisbane, the Capital and most populous city of the Colony, within a radius of 10 miles, was comparatively speaking small— approximately one third of what it is to-day-and was spread over a large area. large area. Could it have been contemplated that a company would, under such circumstances, expend large sums of money in building up such a public convenience and undertaking without any reasonable expectation of a profit for the earlier years of its existence, and practically bind itself to continue such undertaking during such time as it continued to be a non-paying and losing concern until such time-probably until after the expiration of the prescribed time for the coming into existence of the right of the local authority to purchase-as the undertaking became profitable-and then be compelled to make a sale to the council, not at its commercial going concern value, but at a replacement or constructional value, excluding the value of what was, at the inception, practically valueless, but would then be the most valuable asset-that is to say, the statutory powers, rights and privileges-for an amount which would return not only little or no profit on the whole venture, but probably a diminished part of the capital money expended? Would it not be more reasonable to conclude, in the absence of express provision to the contrary, that the Legislature intended to induce the expenditure of such capital by such a company and to induce lenders of money, under a safe security over the undertaking, to assist such a company by granting them full ownership over the privileges conferred by the Act, reserving only to the local authority the prescribed option of purchasing such tramway and its appurtenances including therein such privileges-that is to say, at its then value as a commercial going concern? F.C. THE BRISBANE TRAMWAY TRUST. Lukin J. Now, what are these statutory powers, rights and privileges? What is their " nature and extent," and how are they conferred ? It was assumed in argument before us that these statutory powers, rights and privileges were mainly dependent on s. 55 of THE BRISBANE the 1882 Act a similar provision to which exists in the English Act, s. 34. I think the principal provision forming the basis of these statutory privileges is to be found in Part II. of the Act, particularly in s. 5, wherein the statutory authority is conferred "to work a tramway upon and through any street, etc." which of necessity includes the right of user, otherwise it could not be worked. No similar provision exists in the English Act. To that is added the right of exclusive user by (s. 55) the power to make contracts for the use of the tramway and to charge therefor (s. 56), and the power to charge for the conveyance of persons upon the tramway a limited sum (s. 58). The interest is referred to in the Statute as "the privilege of using the street" (s. 34), and in s. 67 the company is said "to enjoy the privilege." These powers are by s. 84, subsec. 1, in point of time limited by the exercise of the statutory option of purchase only, so long as the conditions prescribed by the statute as to construction, maintenance, and working are complied with, and therefore would continue as long as there was no exercise of such option. Turning now to the provisions of the Act, is there any indication of an intention to grant the power to assign these statutory privileges? I think (Part II.) " power to borrow money" in express terms recognises the existence of such a power of assignment. The Company may borrow in the manner prescribed by its Articles of Association (s. 9). The Company may "convey, assign or otherwise charge the tramway or other property of the Company by way of mortgage with all usual and necessary powers and remedies to the mortgagee, including a power of sale in case of default" (s. 9, subsec. 2). Such mortgage is subject to the powers of purchase reserved to the council by the Act (s. 10), but the exercise of such power of purchase by such council is also subject to any mortgage existing thereon (s. 84, subsec. 1). Mortgage includes "mortgage debentures and coupons and any deed by which the tramway is charged as security for repayment of borrowed monies, with interest from time to time accruing thereon" (see s. 2. Interpretation Clause). The mortgage is to be a charge “not only on the tramway, but everything pertaining thereto, or upon such parts as are expressed in the mortgage" (s. 15, |