F.C. TRAMWAYS Co. THE BRISBANE O'Sullivan J. conferred. A special power of assignment in favour of a council is also given under s. 84, but it applies only to the "tramway and THE BRISBANE its appurtenances." No reference is made in the section to the statutory powers, as in s. 67. No such reference is required, if my view is correct that the statutory rights of the Company are personal, and the rights of the council are conferred by s. 85. It is suggested, however, that the phrase "tramway and its appurtenances," in s. 84, includes statutory rights. "Tramway" is defined in the Act as a tramway "authorised by this Act "that is, by Order-in-Council. It means, therefore, in s. 84 only a particular section. or sections authorised by an Order or Orders-in-Council, and if statutory rights are included, the statutory rights attached separately to each particular section authorised by an Order-in-Council. The word is used in several sections of the Act, especially in Parts II., III., and IV., and the contexts clearly indicate that the physical structure only is referred to in these sections. That is the primary meaning, and I can see no reason for attaching a different meaning to it in s. 84. As to "appurtenances," that word can be given a very wide meaning without including statutory rights. I think it is appropriate to describe the assets other than the tramway, but not the statutory rights. As Lord Herschell points out in the Edinburgh Cese (1):"The word 'tramway' may no doubt, without propriety be held to include all proprietary rights attached to it; but I do not think that it can with propriety be held to comprise all the powers in relation to the tramway which are conferred by the Statute upon the promoters." This is also applicable to the word "appurtenances." I now come to Part III.-Power to borrow money. Counsel for the Company rely on this Part as supporting their contention that the statutory powers of the Company are assignable and included in the words "tramway and its appurtenances" in s. 84. Part III. departs from the scheme of the English Act of 1870 in one respect. It makes provision for a constructing company borrowing and mortgaging. By s. 9, subsec. 2, a company may assign a tramway or other property of the Company by way of mortgage, and by s. 10 every such mortgage shall be subject to the power of purchase reserved to the council. Section 84 provides that the council's option to purchase the "tramway with its (1) [1894] A.C. 456, F.C. appurtenances" is subject to any mortgage existing thereon. The THE BRISBANE Mortgage is subject, under s. 10, to the council's power of purchase, and the council's power of purchase having been exercised, the THE BRISBANE tramway remains subject to the mortgage under s. 84. TRAMWAY TRUST TRAMWAYS Co. LTD. ". O'Sullivan J. No doubt this position might lead to some anomalies, especially if a council, after it had purchased a tramway, allowed the motgagee's rights on default to become exercisable-& most unlikely contingency. The real effect of the council purchasing, subject to mortgage, was that the council would have found it necessary to discharge the mortgage debt so as to rid the tramway of the burden. It was subsequently required, in express terms, by s. 13 of the Act of 1890, to take over the mortgage debt as a liability of its own. Part III. deals with a difficult subject, not dealt with in the English Act of 1870. The possibility of certain anomalies happening, which did not in fact happen so far as we know, does not, in my opinion, affect the construction of the sections in other parts of the Act, conferring the statutory rights in question on the Company. Nor do I think there is anything in Part III., nor in the words "subject to any mortgage" in s. 84. to justify a departure from what seems to me to be the prima facie construction of the sections referred to-viz., that the statutory rights and powers are personal and not assignable, and are conferred on a council purchasing under s. 84 by Statute and not by purchase. Referring to the Act of 1890, the two principal objects of the Act were to provide for the electrification of a tramway system, and to clear up the anomalous position as to the position of a mortgagee under s. 84. The method contemplated for the electrification of a tramway system was evidently the winding up of an existing company (s. 10), and the formation of a new company having the necessary capital. As the Act of 1882 did not confer any power of sale on an existing company, the Act of 1890 did so, and ss. 9 and 11 were included for the purpose of enabling the undertaking of an existing company to be sold to a new company. A new company was formed which acquired the old company's undertaking under these sections, and is now the petitioner. These sections safeguard the rights of the respective councils in the same way as the Act of 1882 had done-that is, the necessary statutory powers are conferred on the purchasing company by statute, no right being recognised in the old company to transfer these statutory powers. The Act of 1913 confirms the view that the statutory rights of a company were personal and not assignable. The object of the Act was to confirm the agreement of 18th October, 1913, set out in the Schedule. At the date of passing this Act, the position was that the Company's power of compulsory purchase, which had been postponed to September, 1920, would become exercisable as to most of the tramways, but not all, in less than seven years, and further extensions were required as to which the 14 years period would also extend beyond the 20th September, 1920. The right of purchase was exercisable by different councils separately as to each separate tramway authorised by an Orderin-Council, so that some tramways could be purchased and others left in the Company's hands. The basis of purchase, whether it was going concern value or structural value only, would be applicable to each separate purchase. On the other hand, the Company were not bound to make the required extensions. Under these circumstances a compromise was apparently effected which was embodied in the agreement of 18th October, 1913. The power of compulsory sale was only to be exercised with respect to the tramway and all extensions as one tramway. This concession, however, would prejudice the council's rights if a dispute should afterwards arise as to whether the basis of purchase was going concern value or structural value, unless such rights were preserved. This seems to be the explanation of Clause 4 of the Agreement, which provides that nothing in the agreement shall modify, alter or prejudice the rights of any parties or of the councils of the local authorities concerned in respect of the basis or principle upon which the purchase money is to be determined. In my opinion, therefore, the basis or principle must be determined as if the Act of 1913 had not been passed and the agreement of 18th October, 1913, had not been entered into. In other words, the basis is not to be applied as if the existing tramway were one tramway constructed under the authority of one Orderin-Council, but as it there were only a number of separate tramways authorised by a number of separate Orders-in-Council. If the going concern basis is to be adopted, the aggregate of the goodwill values of the different parts must be ascertained separately. I F.C. THE BRISBANE O'Sullivan J. do not see any legislation outside of the Act of 1913 by which the tramway can be regarded as one whole tramway for any purpose. I think the scheme of The English Tramway Act, 1870 (33 and THE BRISBANE 34 Vict., c. 78), is similar to the Queensland Act of 1882, although TRAMWAY TRUST there are important differences. The ultimate object of the English Act, however, is similar to that of the Queensland Actnamely, to provide for the acquisiton of a tramway by a council either directly by construction or indirectly by purchase. On the whole, I think that the present case falls within the principle of The Edinburgh Street Tramways Company v. The Lord Provost, etc., of Edinburgh (1), and that the reasons of the Lords of Appeal for holding that the statutory rights of a company under the English Act were personal, non-assignable, and determinable on notice, are applicable to this case. I think that the principle adopted in that case is a proper one to be adopted by the Tribunal, and that the value of the "tramway and its appurtenances " should be such as it would cost to construct the tramway, if such construction had been completed on the date of acquisition, subject to the deduction of a proper sum for depreciation and taking into account that the tramway was successfully constructed and in complete working order-that is, replacement value of tramway and appurtenances. As to the extensions which were completed, or to be taken as completed, on 4th April, 1911, the franchise would not have expired till 4th April 1925. The Company has been deprived of part of the term of 14 years during which it was entitled to exercise its statutory rights and powers. I think it is entitled to be paid for the value of that part of the term of which it has been deprived, and that such value must be assessed in respect of the tramway included in each Order-in-Council separately. I arrive at the same conclusions generally as those expressed by the Chief Justice. Judgment accordingly. Solicitors for the petitioner: Thynne and Macartney. Solicitors for the respondent: The Crown Solicitor. (1) [1894] A.C. 456. [COURT OF CRIMINAL APPEAL.] R. v. O'ROURKE. Criminal law-Stealing in a dwelling-Conviction-Sentence of five years' hard labour-Appeal cgainst sentence-Prisoner's age wrongfully stated at trial-Sentence reduced-The Criminal Code, ss. 398, 668D. Two prisoners having pleaded guilty to a charge of stealing in a dwelling were sentenced-one to five years' imprisonment, the other to two years' imprisonment. The Judge who imposed the sentence stated that he was influenced in imposing the lighter sentence by the fact that this prisoner was only seventeen and a-half years of age, while the other was older. On appeal by the first prisoner to the Court of Criminal Appeal, it was established to the satisfaction of the Court that the two prisoners were of the same age, and the Court reduced the sentence of five years' imprisonment to one of three years. APPEAL TO COURT OF CRIMINAL APPEAL. At the Criminal Sittings, held at Brisbane, in April, 1923, two prisoners, O'Rourke and Devine, pleaded guilty to a charge of stealing in a dwelling (The Criminal Code, s. 398). The prisoner Devine was proved, before sentence, to be seventeen and a-half years of age. The other prisoner stated his age at twenty-three. In sentencing the prisoners LUKIN J. said: It is a very sad thing to see a young boy like you in the position in which you are; but it is not your first offence, you have been guilty of several previous offences. Now, I have to say to both of you young men-you are both from the South-that criminals of New South Wales must not come here to make Queensland a happy hunting ground for criminal operations, and the sooner they realise that the better; the sooner they realise that it is too dangerous to risk, the better. Now, in your case, O'Rourke, you have a long record of offences. You seem to have devoted most of your life to criminal action. You commenced so far back as 1914-malicious damage to property, in 1917, two charges; in 1917, again, stealing, five charges; 1919, stealing; in 1920, breaking and entering; again in 1920, breaking and entering and stealing, 24 charges; in 1920, again, 1923. June 5. Shand J. |