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CAP. II.

OF THE ACT OF PARLIAMENT.

SECT. 1.-Of the Validity of such Act.
2. Of the Construction of the Act.

SECT. 1.-Of the Validity of the Act.

61. In general, the validity of an act, constituting a railway company, cannot be disputed, though it may possibly be otherwise, where the act is obtained by fraud or misrepresentation practised upon the legislature. But where the false representation is embodied in the act, or there is otherwise a misrecital of any important particular, (a) that, it may be said, is no ground for impugning the authority of the act, inasmuch as it can hardly be competent for a party to question the truth of what is stated as a fact in the act of parliament. (a)

(a) See judgment of Alexander, C. B. in Cromford Railway Company v. Lacey, 3 Y. & J. 80, where the point was raised though not decided, as the case ultimately went off on a different ground.

SECT. 2.-Of the Construction of a Railway Act.

I. Of the General Principles of Construction.

II. Of the Principles applicable to particular Clauses.
III. Of those applicable to several Acts relating to the same
Company.

62. I. Of the general principles of construction applicable to the entire act. A railway act is to be viewed as a bargain between the adventurers and the public, the terms of which are expressed in the statute. (b) The fundamental rule of construction accordingly in all such cases is established to be this, viz. that the adventurers can claim nothing, which is not clearly given them by the statute; on this may be engrafted what follows, as a necessary corollary from it, viz., that any ambiguity in the terms of the contract must operate against the adventurers, and in favour of the public. (c) Although the meaning of a railway act should be clear and explicit, the criteria, it may be remarked, by which that meaning is to be ascertained, are the same as in the case of any other instrument, viz. the language, and the sense or reason of the law as collected from the entire act. As a general rule, the language is to be understood in its ordinary sense; but if such a construction lead to an absurdity, or is manifestly repugnant to the express or implied intention of the

(b) Blakemore v. Glamorganshire Canal Company, 1 My. & K. 154.

(c) Stourbridge Canal Company v. Wheeley, 2 B. & Ad. 793 Priestly v. Foulds, 2 Railway Cas. 441; S. C. 2 M. & G. 175; see also Parker v. Great Western Railway Company, 7 Scott's N. R. 835; S. C. 22 Law Journ. C. P. 105.

legislature, then the grammatical sense of the words. may be modified, to obviate such absurdity or cure such repugnance. (d)

63. Where a railway act, as is usually the case, concludes with the legislative declaration that it is to be taken as a public act, and judicially taken notice of as such by all judges, &c., it cannot be treated as a mere private assurance, more especially considering its general public nature, manifested in every section. (e)

64. A party interested in the subject-matter of a private act of parliament, is liable to have his rights affected by its provisions, though it may have been introduced and past without due notice being given to him. (ƒ)

65. II. Of the rules of construction, applicable to some of the more important provisions usually found in railway acts, and herein. 1st, of the power of taking land. A power of this nature, calculated to operate in a manner so highly derogatory to private property, must, it seems, receive a strict interpretation. If, in the supposed exercise of such a power, the company enter upon or take any man's land, they must clearly establish their authority to do so; and if the words of the statute on which they rely are ambiguous, every presumption is to be

(d) Rex v. Pease, 4 B. & Ad. 41; Turner v. The Sheffield and Rotherham Railway Company, 10 M. & W. 425; S. C. 3 Railway Cas. 230.

(e) Per Shadwell, Vice-Ch., Hargreaves v. Lancaster and Preston Junction Railway Company, 1 Railw. Cas. 430.

(ƒ) Edinburgh, &c. Railway Company v. Wauchope, 8 Cl. & Fin. 711; S. C. 3 R. Cas. 232.

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made against the company, and in favour of private property. (g)

66. So likewise the provisions for the taking of toll by the company must be couched in clear and unambiguous language; or, if the words fairly admit of different meanings, then that meaning must be adopted which is most favourable to the interests of the public, and most against that of the company, because the company, in bargaining with the public, ought to take care to define distinctly what payments they are to receive, and because the public ought not to be charged, unless it be clear that it was so intended by the legislature. (h)

67. On the other hand, clauses providing compensation for parties whose property is injured by the railway, ought, it seems, to be liberally, and not strictly construed, so as to advance the remedy intended by the legislature in making such provisions. (i)

68. Some forms prescribed for the internal government of a railway company, may be imperative, and others only directory. (k)

(g) Scales v. Pickering, 4 Bing. 448; Webb v. The Manchester and Leeds Railway Company, 4 My. & Cr. 120; S. C. 1 Railway Cas. 599, per Lord Cottenham, Ld. Ch.

(h) See Gildart v. Gladstone, 11 East, 675; Barrett v.,The Stockton and Darlington Railway Company, 2 Railw. Cas. 465; S. C. 2 M. & Gr. 134; in error, 3 M. & G. 956.

(i) Reg. v. The Eastern Counties Railway Company, 2 A. & E. N. S. 347; S. C. 2 Railway Cas. 752; Bell v. Hull and Selby Railway Compuny, 6 M. & W. 699; S. C. 2 Railway Cas. 286.

(k) Judgment of Wigram, Vice Ch. in Foss v. Harbottle, 2 Hare, 495. See further as to this distinction between directory and imperative clauses in railway acts, post, cap. 3 and cap. 7.

69. III. Of the rules of construction applicable to several acts relative to the same company. It must often happen, that, from some change in the purposes of the company, the lapse of time, &c., a further act or acts becomes requisite, in order to vary or extend the powers given by the original act. In this case, the subsequent and prior acts, being framed upon one system, having one object in view, and being in pari materia, may be construed together as if they were one law.

The subsequent act, instead of particularizing the powers and capacities that it intends to confer, ordinarily embodies the provisions of the prior act by a general clause of reference. The fair construction to be put upon such a clause is, that all the general powers and provisions given and made in the former act shall be virtually incorporated in the latter, but not such as are of a special nature, and have a peculiar application to the subject-matter of the prior act. (1)

70. A subsequent act, where it is so intended, may have the effect of reviving proceedings taken under a prior act, or even of ratifying and healing what is irregular in the same. (m) To have this latter effect, however, the later act must contain a clear, direct, and particular ratification of such proceedings. A railway act enacted that no calls

(1) Sirhowy Tramroad Company v. Jones, and Homfray v. Jones, 3 A. & E. 640, n. (a); Att. Gen. v. Eastern Counties and North Eastern Railway Company, 2 Railw. Cas. 832; S. C. 10 M. & W. 263.

(m) The Stratford and Moreton Railway Company v. Stratton, 2 B. & Ad. 518; see also Smith v. Goldsworthy, 4 A. & E. N. S. 430.

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