special Act of 1852 requiring the running of third-class carriages and limiting third-class fares was not affected by any legislation prior to the Railway Act of 1906. The material passages of his judgment are as follows: "As has been said, the provisions of the special Act have not been expressly repealed. None of the enactments in the Railway Act, 1903, or in the present Railway Act, are explicitly inconsistent with those provisions. The contention on the part of the railway company is that, in effect, these enactments, and particularly the portions relating to tolls and those giving the Board jurisdiction respecting the accommodation, etc., to be furnished by the company, are so inconsistent as impliedly to repeal the provisions of the special Act

"Under the Railway Clauses Consolidation Act and all the succeeding legislation, down to the Act of 1903, railway tolls were subject to the approval of, and to be altered by, the Governor-in-Council. This limitation upon the company's powers was embodied in the special Act by reference to the general Act. The jurisdiction of the Governor-in-Council could exist, therefore, consistently with the limitation as to fares imposed by the special Act, and it does not appear to me that the substitution of the Board of Railway Commissioners as the body which is to approve, and which has the jurisdiction to alter, railway tolls makes any change in this respect. Under the former legislation, all the railway tolls required the approval of the Governor-in-Council; under the present, it is only the standard or maximum tariffs which must be approved by the Board; and railway companies are authorized to make special tariffs imposing tolls lower than those in the standard tariffs. The practice has been for the companies to obtain approval of standard passenger tariffs, not distinguishing between classes, and to provide for second-class fares by special tariffs. Thirdclass fares could be provided for in the same way. I do not think that the provisions requiring special tariffs are necessarily inconsistent with the limitations imposed by the special Act or that they are sufficient to indicate the intention of Parliament

that the company, in framing special tariffs, is to be free from such limitations

"The imposition of this system was one of the terms and conditions upon which the company was granted its franchise, and it should not readily be presumed that Parliament intended to relieve the company from such terms and conditions."

The Supreme Court affirmed the judgment of Killam, J., substantially for the reasons stated by him.

February 15, 1909. Sir R. Finlay, K.C., and D. L. McCarthy, K.C., for the appellants, contended that the judgment should be reversed. The appellant company had in 1853 entered into an amalgamation agreement with other railway companies which in 1854 was confirmed by 18 Vict. ch. 33 (Province of Canada). A new company was thus created, authorized to construct a new undertaking, and by that Act of 1854 and the Railway Act of 1859 the right to vary passenger tolls was vested in the directors of the new company. If the pre-Confederation statutes were no longer in force after Confederation, then the defendants were subject to the Dominion Railway Acts of 1868 and 1879, whose provisions in regard to tolls completely overrode and repealed the clauses regarding tolls in the appellants' special Act of 1852. On the other hand, if the new company and undertaking are still subject to the provisions of the special Act of 1852, the provisions of the Railway Act of 1883 (see sec. 12, sub-sec. 6) are so inconsistent therewith the clause therein relating to tolls could not still remain in full force. Besides, the wide powers vested in the Board of Railway Commissioners by the Railway Act of 1903 and the amending Act of 1906 (being ch. 42) are inconsistent with their being tied down by the Act of 1852 to specific defined rates and mode of travel. If this Board can vary the type of car and accommodation as they please, they must surely be allowed to change the fare. It was contended that provisions contained in the special Act with regard to tolls were quite inconsistent with the later Acts of 1903 and 1906 and must be deemed to have been repealed.

Hamar Greenwood and Horace Douglas, for the respondent, contended that the statutory duty imposed on the appellants by sec. 3 of their special Act was clear and express. The Board of Railway Commissioners held in effect that sec. 3 had never been repealed, is not inconsistent with any subsequent enactment, and is of full force and effect. It was contended that that ruling was right. So long as sec. 3 stands the respondent is entitled to have it enforced. The Acts of 1903 and 1906 were not inconsistent with the Act of 1852, for the powers given thereby to the Board were to enforce the provisions of that Act, not to alter, amend, or vary them. It is said that those provisions are now out of keeping with the practice of railroading as adopted in Canada. However that may be, the Act is in force, and if any inconvenience results it must be endured until the section in question is repealed.

Sir R. Finlay, K.C., in reply.

The judgment of their Lordships* was delivered by

February 17, 1909. LORD LOREBURN, L.C.:-The question on this appeal really is whether or not sec. 3 of the Act of the late Province of Canada of 1852 (16 Vict. ch. 37), is impliedly repealed by the Dominion Railway Act of 1906 (6 Edw. VII. ch. 42), which is to prevail when the provincial Act is inconsistent with it. The argument resolves itself into this. Is that section of the provincial Act inconsistent with the general Act of 1906? Their Lordships cannot think that it is. The requirement to run a third-class train may be imcompatible with the Canadian practice, but it is an unrepealed part of the section of the provincial Act. It may be inconsistent with business or other conveniences, but no argument has been urged to shew that it is inconsistent with the later Act, and if it is not inconsistent why is not the portion which relates to tolls and third-class passengers also to stand? The company is to prepare

*Lords Loreburn, L.C., Macnaghten, Atkinson, Collins, Gorrell.

a tariff of tolls with reference to the statutory duties of the company, one of which is to be found in the third section of the Act of 1852. The result may be unfortunate, and the omission to repeal the third section may perhaps have been an oversight. Their Lordships cannot pronounce an opinion whether a section is continued by oversight or design; still less can they determme a case upon conjectures.

Their Lordships will therefore humbly advise His Majesty to dismiss the appeal. The appellants will pay the respondent's costs as between solicitor and client in accordance with the undertaking given when special leave to appeal was granted.

Batten, Proffitt & Scott, solicitors for appellants.

Blake & Redden, solicitors for respondent.

NOTE: Affirming the judgments of the Board of Railway Commissioners and the Supreme Court of Canada reported respectively at 6 Can. Ry. Cas. 494, and 7 Can. Ry. Cas. 267.

JURISDICTION-RAILWAY CROSSING-PARTY

INTERESTED.

COUNTY OF CARLETON V. CITY OF OTTAWA.

(41 S.C.R. 552.)

Board of Railway Commissioners—Jurisdiction-Railway crossing-Contribution to cost-Party interested—Municipality-Distance from work. A municipality may be a "party interested" in works for the protection of a railway crossing over a highway though such works are neither within or immediately adjoining its bounds and the Board of Railway Commissioners has jurisdiction to order it to pay a portion of the cost of such work.

Present:-Sir Charles Fitzpatrick, C.J., and Davies, Idington, Duff and Anglin, JJ.

APPEAL by leave of a Judge in Chambers as to the jurisdiction of the Board of Railway Commissioners to order the county of Carleton to contribute to the cost of a viaduct or overhead roadway over four railway crossings on Wellington Street in the city of Ottawa.

The county of Carleton originally joined with the city of Ottawa in applying to the Board for an order for this work.

Subsequently the village of Hintonburgh, in which the proposed viaduct would be situated was incorporated with the city, and the work, which had been within a few feet of the county boundary was then distant from it nearly a mile. The county, therefore, withdrew from the joint application and it was proceeded with by the city alone. The Board, however, held that the county was still a "party interested" and in granting the application ordered it to pay a portion of the cost. The county appealed to the Supreme Court of Canada challenging the jurisdiction of the Board to make such order.

R. V. Sinclair, K.C. and D. H. McLean, for the appellants.
McVeity, for the respondents, the city of Ottawa.
Ewart, K.C., for the Grand Trunk Railway Co.

W. L. Scott, for the Canadian Pacific Railway Co.

THE CHIEF JUSTICE and DUFF and ANGLIN, JJ., concurred in the judgment of Mr. Justice Davies.

April 5, 1909. DAVIES, J.:-The question on which leave to appeal was given in this case, from an order of the Board of Railway Commissioners directing the municipality of the county of Carleton to pay a proportion of the cost of certain protective works ordered at the crossing of the Richmond Road and the Canada Atlantic and other railways, was limited to the jurisdiction of the Board to make the order it did as against the municipality of the county of Carleton.

The ground upon which the jurisdiction was challenged was that, while the crossing in question was, at the time the application was made to the Board for such protective works, within a few hundred feet of the municipal boundary, subsequently, before the case came on for hearing and at the time the order was made, the area within which the crossing existed had been legally withdrawn for about a mile from the municipal boundary and the intervening territory brought within the city of Ottawa and, so, the proposed protective works were neither within the municipal bounds of the county or immediately adjoining them.