Sect 43.

Power of sale.

(x) Similarly two or more local authorities may jointly promote a tramway (sect. 17), or a light railway (Light Railways Act, 1896, sect. 2 (c), post, p. 453).

44. Where any tramway in any district (y) has been opened for traffic (2) for a period of six months the promoters (a) may, with the consent of the Board of Trade (b), sell their undertaking (e) to any person, persons, corporation, or company, or to the local authority (y) of such district; and when any such sale has been made all the rights, powers, authorities, obligations, and liabilities of such promoters in respect to the undertaking (c) sold shall be transferred to, vested in, and may be exercised by, and shall attach to the person, persons, corporation, company, or local authority to whom the same has been sold (d), in like manner as if such tramway was constructed by such person, persons, corporation, company, or local authority under the powers conferred upon them by special Act (e), and in reference to the same they shall be deemed to be the pro

moters.

Provided always, that a local authority shall not purchase any undertaking under the provisions of this section unless they shall decide to make such purchase by resolution passed at a special meeting of the members constituting (f) such local authority, which resolution shall be made in the same manner and shall be subject to the same conditions as to validity as resolutions made in regard to the purchases by the next preceding section authorised.

Where any purchase is made by any local authority under the provisions of this section, such local authority may pay the purchase money and all expenses incurred by them in making such purchase out of the like funds, and for such purposes shall have all and the like powers and be subject to all the like conditions as if such purchase were made under the authority of the next preceding section (g).

(y) Defined in sect. 3.

Sect. 44.

(z) See sect. 25 and note (m) thereto. equivalent to "public traffic.”

"Traffic" here must be

(a) See sects. 4 and 24.

(b) See note (n) to sect. 43. It is even more necessary here that the consent of the Board of Trade should be obtained before the sale, because this section, unlike sect. 43, is not limited to a purchase by the local authority, and is an exception to the general principle that statutory rights cannot be assigned. (See note (g) below.) Hence it is most necessary that the Board of Trade should have full control over the transaction. Where the Board has not been assured that the letter of this section has been fulfilled, it has refused its consent (Metropolitan Street Tramways Case), and doubtless would always do so in a similar case. If that occurs, it remains open to the parties to obtain an Act to authorise the sale, as was done in the case alluded to.

(c) See note (o) to sect. 43. The principle of North Metropolitan Tramways Co. v. London County Council there mentioned would apply a fortiori to sales of separate undertakings under this section. (d) Under this section, as under sect. 43, it will be observed that the powers and liabilities pass by virtue of the section and not by virtue of the conveyance or act of the promoters. Hence, semble, they need not be included in the conveyance, and the purchase price named in the conveyance need only be so much as covers the things necessary to be conveyed. Hence the parties may escape paying ad valorem duty on that part of the price attributable to the purchase of the powers, in spite of Attorney-General v. Eastbourne Corporation, [1902] 1 K. B. 403; 71 L. J. K. B. 181 (C. A.), for which case see ante, p. 187..

(e) "Special Act" includes a Provisional Order which incorporates Parts II. and III. of this Act, by sect. 23.

(ƒ) See note (7) to sect. 43.

(g) Apart from compulsory purchase and assignment of an undertaking by way of security, this section provides the only means by which promoters can transfer their undertaking and powers. There is no limitation as to terms in this section (so Lord Watson in the Edinburgh Case cited below), except, it is suggested, such conditions, if any, as the Board of Trade might impose, but any sale under this section (other than a sale to the local authority) is subject to the overriding right of the local authority under sect. 43. That the promoters cannot transfer their powers except by virtue of and subject to the provisions of the statute (if they have no other statutory authority to do so) is clearly recognised in Edinburgh Street Tramways Co. v. Lord Provost and Magistrates of Edinburgh, [1894] A. C. 456; 21 R. (H. L.) 78; 63 L. J. Q. B. 769; by Lord Herschell, L. C., at L. R., pp. 463-464; R. (H. L.), p. 80; L. J., pp. 771-772; Lord Watson at L. R., p. 472; R. (H. L.), p. 85;

Sect. 44.

L. J., p. 775; and Lord Shand at L. R., p. 487; R. (H. L.), p. 94; L. J., p. 782. This is in accordance with the well-settled principle that persons, to whom statutory powers are granted, must exercise them themselves, and may not delegate them either directly (Beman v. Rufford (1851), 1 Sim. (N. S.) 550; 20 L. J. Ch. 537; Gardner v. London, Chatham and Dover Railway Co. (1867), L. R. 2 Ch. 201, 212; 36 L. J. Ch. 323, 327, per Cairns, L. J.), or in any way at all, whether temporarily or permanently, whether by lease (AttorneyGeneral v. Great Eastern Railway Co. (1880), 5 A. C. 473, 484; 49 L. J. Ch. 545, 550), or by an arrangement which practically amounts to a lease (Winch v. Birkenhead, Lancashire and Cheshire Junction Railway Co. (1852), 5 De G. & Sm. 562), or by any other method intended to evade the illegality of such delegation. (Great Northern Railway Co. v. Eastern Counties Railway Co. (1851), 9 Hare, 306, 311; 21 L. J. Ch. 837, 840; London, Brighton and South Coast Railway Co. v. London and South Western Railway Co. (1859), 4 De G. & J. 362, 388; 28 L. J. Ch. 521, 527.) It seems clear, then, that any attempt by promoters to transfer their powers, whether before or after the construction of the tramways, except under the provisions of this statute or any private Act, must be ineffectual. Lord Herschell observes, in Edinburgh Street Tramways Co. v. Lord Provost and Magistrates of Edinburgh: "A conveyance by the promoters of their tramways, or even of their undertaking, would not carry with it the right to the statutory monopoly conferred upon the promoters" by sect. 34. Anyone who worked tramways by virtue of such a conveyance would be liable to indictment for nuisance, if complaint were made. No doubt, however, many such transfers or delegations have taken place and have never been challenged. Compare the transfer of powers before construction, which was disclosed in In re Pontypridd and Rhondda Valleys Tramways Co., Ltd. (1889), 58 L. J. Ch. 536. In most cases it would be no one's interest or concern to challenge them. The reason of such transfers is generally that under the circumstances compliance with the requirements of the present section with regard to time is impossible; otherwise in most cases it would be easy and natural to apply for and obtain the consent of the Board of Trade.

Kaye v. Croydon Tramways Co., [1898] 1 Ch. 358; 67 L. J. Ch. 222, was a case where an agreement for sale, which included some unusual provisions for the payment of compensation to the directors and secretary of the selling company, was not allowed to be carried into effect, not on its merits but on the ground that a meeting of the shareholders of the selling company, which was to consider the agreement, had not been duly convened.

The sale of undertakings in a winding-up has been remarked upon in the note on winding-up to sect. 42.

There is no reason why promoters should not assign their undertakings by way of mortgage, whether they have special power to

do so (as provided by the model clause, post, p. 443) or not. But in accordance with the general principles enumerated above, it is now settled that the mortgagees have no right to the appointment of a manager for or a sale of the undertaking mortgaged. (Marshall v. South Staffordshire Tramways Co., [1895] 2 Ch. 36; 64 L. J. Ch. 481 (C. A.).) It is pointed out in that case (ad fin.) that, though in the event of a sale under the present section the proceeds of sale would form part of the debenture holders' security, it does not follow that the power of sale conferred upon the promoters by the present section can be exercised by the debenture holders or by the Court; and that the promoters cannot transfer the power of sale given them by this section to their debenture holders. This point is further discussed in the note on winding-up to sect. 42.

With the present section generally compare the sections providing for the voluntary purchase of water and gas works respectively by local authorities, Public Health Act, 1875 (38 & 39 Vict. c. 55), ss. 63 and 162.

Sect. 44.

Tolls.

45. The promoters (h) or lessees (i) of a tramway Tolls, &c. authorised by special Act (k) may demand and take, in respect of such tramway, tolls and charges not exceeding the sums specified in such special Act, subject and according to the regulations therein specified (7). A list of all the tolls and charges authorised to be taken shall be exhibited in a conspicuous place inside and outside each of the carriages used upon the tramways (m).

(h) See sects. 4 and 24.

(i) Defined in sect. 19.

(k) See sect. 23.

(1) Sect. 10 provides that every Provisional Order shall specify the tolls and charges to be taken by the promoters, and the regulations relating thereto. See sect. 10 and the notes thereto. This section is somewhat otiose. If the tolls were not provided for by the Act or Order, the promoters could not take them under this section; if they were, the promoters could take them without this section.

Compare Railways Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 20), s. 86, and sect. 3, which defines "tolls." "Toll" is said, in Great Northern Railway Co. v. South Yorkshire Railway Co. (1854), 9 Ex. 642, 644; 23 L. J. Ex. 186, 188, to be " a payment the consideration of which is the passage of passengers, carriages or goods."

S.

Sect. 45.

It has been laid down that a statute imposing a toll must be considered as a bargain between the promoters and the public, and that where there is any ambiguity it must be construed against the promoters and in favour of the public. (Stourbridge Canal Co. v. Wheeley (1831), 2 B. & Ad. 792.) This is because such statutes, like taxing statutes, impose a burden on the subject. (Stockton and Darlington Railway Co. v. Barrett (1844), 11 Cl. & F. (8 E. R.) 590, 607, per Lord Brougham.) But it was pointed out by Lord Cairns, L. C., in Pryce v. Monmouthshire Canal and Railway Companies (1879), 4 A. C. 197, 202; 49 L. J. Ex. 130, 134, that the analogy was not exact between taxing statutes and statutes which merely moderated and limited a right to payment for services rendered, and it is probably right to say that statutes imposing tolls must be fairly construed like any other statutes. The language of such statutes is to be construed according to its ordinary meaning and use. (Laird v. Clyde Navigation Trustees (1879), 6 R. 756, 785; per Inglis, L. P.)

Where a tramway company's Act provided that tolls should be paid to such persons and at such places upon or near the tramways and in such manner and on such regulations as the company should by notice appoint (see the model clause, post, p. 441), and a dulymade by-law provided that every passenger should pay upon demand the fare legally demandable for the journey, it was held that the by-law was reasonable, that a passenger's fare was legally demandable at any point of his journey, and that a passenger, who had refused to pay till he had come to the end of his journey, had broken the by-law. (Egginton v. Pearl (1875), 33 L. T. (N. S.) 428; 49 J. P. 56.) See further note (z) to sect. 46 (as to by

laws).

Edinburgh Street Tramways Co. v. Torbain (1877), 3 A. C. 58; 4 R. (H. L.) 87, turned on the effect of a later Act on the Act which authorised the company's tramways. By an agreement scheduled to the former certain fares were fixed. By a subsequent Act, which gave them power to substitute omnibuses for tramways on portions of their authorised system, it was provided that the agreement aforesaid should only be affected by express provision of the Act, and that the company might charge a higher fare than that authorised by the original Act for "first-class passengers on" the omnibus "routes and any tramway routes worked in connection therewith." It was held, very naturally, that these words only referred to passengers whose journey required the use of both omnibus and tramway, and that they did not authorise the company to raise fares above the limits fixed by the original agreement in respect of passengers whose journey was entirely on the tramway.

(m) In Gregson v. Potter (1879), 5 Ex. D. 142; 48 L. J. M. C. 86, decided on the words "rates for the time being authorised to