*SECTION III

Mandamus the appropriate Remedy to restore Officers and Members of Corporations to the Discharge of their proper Functions, where they have been deprived of the same through the agency of the Corporation.

1. The writ formerly granted only to restore 3. Not available, where election annual and to public office. facts traversed. 2. Now granted in all cases where of value 4. Claimant must have permanent and vested and sufficiently permanent.

interest.

§ 153. 1. It does not come within the scope of this work to examine with minuteness all questions arising upon the law of * cor

complete a part only, if you can, in five years, and then as to that part the powers of the act shall continue, but you must complete the entire line in that time. Upon the whole, therefore, we find no duty cast upon the company to make this railway in any part of this act of parliament. On the contrary, the legislature seems to contemplate the possibility of the railway being made in part, or being totally abandoned. In the latter case the powers expire in three or five years; in the former, the statute remains in force as to so much of the railway as shall have been completed within that time, and expires as to the residue. This provision is inconsistent with the intention to compel the company to make the entire line, as the consideration for the powers granted by the

act.

But it is said that a railway act is a contract on the part of the company to make the line, and that the public is a party to that contract, and will be aggrieved if the contract may be repudiated by the company at any time before it is acted upon. Though commonly so spoken of, railway acts, in our opinion, are not contracts, and cannot be construed as such. They are what they purport to be, and no more. They give conditional powers, which, if acted upon, carry with them duties, but which, if not acted upon, are not, either in their nature or by express words, imperative on the companies to which they are granted. Courts of justice ought not to depart from the plain meaning of the words used in acts of parliament. When they do, they make but do not construe the laws. If it had been so intended, the statute should have required the companies to make the line in express terms; indeed, some railway acts are framed upon this principle; and to say that there is no difference between words of requirement and words of authority when found in such acts, is simply to affirm that the legislature does not know the meaning of the commonest expressions. But if we were at liberty to speculate upon the intentions of the legislature when the words are clear, and to construe an act of parliament by our own notions of what ought to have been enacted upon the subject, — if, sitting in a court of justice, we could make laws, much might be said in favor of the course which, in our opinion, is taken by the legislature on such subjects. Assuming that the

porations, as affected by the writ of mandamus. But it may be useful to state that this is the appropriate remedy, where any line, if made, would be profitable to the public, that benefit may be delayed for five years, during which time competition is suspended. On the other hand, if the line would pay, it probably will be proceeded with, unless the company having the power is incompetent to the task. Individual land-owners may be benefited by the expenditure of capital in their neighborhood, without looking to the ultimate result; but it is not for the public interest that the work should be undertaken by an incompetent company, nor that it should be begun, if, when made, it would not be remunerative. By leaving the exercise of the powers to the option of the company, the legislature adopts the safest check on abuse in either of those respects, namely, self-interest. It seems to us, therefore, that these statutes do not cast upon the plaintiffs in error the duty, either by express words or by implication; that we ought to adhere to the plain meaning of the words used by the legislature, which are permissive only, and there is no reason, in policy or otherwise, why we should endeavor to pervert them from their natural meaning.

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But it is said that the land-owners are in a better situation than the public at large, and that the privilege to take their own lands is the consideration which binds the company to complete the railway. That during the currency of the three years they are deprived of their full rights of ownership, and, if not to be compensated by the construction of the railway, they would in many cases suffer a loss, because, whilst the compulsory power of purchase subsists, they are prevented from alienating their lands or houses described in the books of reference, and from applying them to any purposes inconsistent with the claim that may be . made to them by the railway company. In truth, they are not prevented from so doing at any time before the notice to take their land is given, if they act bona fide in the mean time; the notice to take their lands being the inception of the contract between the land-owners and the company. But if this complaint was better founded, it does not follow, because certain land-owners are subjected to temporary inconvenience for the performance of a public good, that therefore the company are bound to make the whole railway. If it were a contract between the land-owners and the company, it would not be just, the one should be bound and the other free. But to assert that there is a contract between the land-owners and the company, is to beg the whole question; for on this part of the case the question is, whether there is such a contract? As a matter of fact, we know that in many cases no such actual contract exists. Some few proprietors may desire and promote the railway, but many others oppose it, either from disinclination to the project or with a view to make better terms. With the dissentients there is no contract, unless it be found in the statute, and to the statute therefore we must look to see what is the obligation that is cast upon the company in respect of the land-owners upon the line. As in the former case, the words upon this subject are permissive only. The company may take land; if they do they must make full compensation. And in that state of things, if there be a bargain between the parties, what is the bargain? The company say, in the language of the statute, that the bargain is that they shall make full compensation for the land taken, and no more; the prosecutors say, that the consideration to

member or officer of a corporation is unlawfully deprived of his proper agency or function in the affairs of the company through be paid for the land is the full compensation mentioned in the act, and also the further consideration of the construction of the entire line of railway from York to Beverley. But if this is the price which the prosecutors are to have, each landowner is entitled to the same value, and yet by this mandamus the other proprietors on the line from Market Weighton to Cherry Burton, who perhaps are hostile to the application, are constrained to sell their lands for an inadequate consideration, namely, the full compensation and a part only of the line of railway, to which, by the hypothesis, they were entitled by the original bargain. If this were the true meaning of the statute, it would indeed be unjust, more so than the imposition of the temporary inconvenience to which it is said the land-owners may be subject, and to which we have already referred. But that that is not the true meaning, is clear from the words of the statute, which are permissive, and only impose the duty of making full compensation to each land-owner, as the option of taking the land of each is exercised; and further, from the section to which we have already referred, which contemplates the total abandonment of the line, or a part performance of it, and makes provision for the return of the land to the original proprietors in certain cases. Upon this part of the case the authority of Lord Eldon, in Blakemore v. The Glamorganshire Canal Company, 1 Myl. & K. 154, was much pressed upon the court. Speaking of contracts for private undertakings he says: When I look upon these acts of Parliament I regard them all in the light of contracts made by the legislature on behalf of every person interested in any thing to be done under them, and I have no hesitation in asserting that, unless that principle be applied in construing statutes of this description, they become instruments of greater oppression than any thing in the whole system of administration under our constitution. Such acts of Parliament have now become extremely numerous, and from their number and operation they so much affect individuals, that I apprehend those who come for them to Parliament do, in effect, undertake that they shall do and submit to whatever the legislature empowers and compels them to do, and that they shall do nothing else; that they shall do and forbear all that they are hereby required to do and forbear, as well with reference to the interest of the public as with regard to the interest of individuals.' There is nothing in that language to which it is necessary to make the least exception; indeed it is nothing more than an illustration of the obligatory nature of the duty imposed by acts of Parliament, which do impose a duty with reference to other persons. In that case the statute had secured to Mr. Blakemore the surplus water, and had commanded the company to do certain things that he might enjoy it. In discussing whether Mr. Blakemore's right under the statute was affected by his right before the statute, his lordship might well say he considered the statute the origin of Mr. Blakemore's right in the light of a contract, and the statute then under discussion containing express words of command, he might well add, that those who come for such acts of Parliament do, in effect, undertake that they shall do and submit to whatever the legislature empowers and compels them to do. As we understand them, the words used by Lord Eldon in no respect conflict with the view we take of this case; but if they mean that words of permission only, when used in the class of

* its agency. This is somewhat questioned by some of the earlier English cases.1

cases under consideration, should receive a construction different from their ordinary meaning, because, if construed otherwise, they might work injustice, with great respect for his high authority, we dissent from that proposition. We agree with my brother Alderson, who, in Lee v. Milner, 2 Y. & Coll, 611, said: These acts of Parliament have been called parliamentary bargains, made with each of the land-owners. Perhaps more correctly they ought to be treated as conditional powers given by Parliament to take the lands of the different proprietors through whose estates the works are to proceed. Each land-owner, therefore, has the right to have the power strictly and literally carried into effect as regards his own land, and has the right also to require that no variations shall be made to his prejudice in the carrying into effect a bargain between the undertakers and any one else.'- 'This,' he adds, 'I conceive to be the real view taken of the law by Lord Eldon, in the case of Blakemore v. The Glamorganshire Canal Company.' There remains but one further view of the case to be considered, and that we have partly disposed of in the observations we have already made; but inasmuch as Lord Campbell proceeded on this ground only in the court below, although it was not much relied upon before us in the argument, we have, out of respect for his high authority, most carefully examined it, and are of opinion that the mandamus cannot be supported, on the ground that the railway company, having exercised some of their powers and made a part of their line, are bound to make the whole railway authorized by their statutes.

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'It is unnecessary here to determine the abstract proposition, that a work which, before it is begun, is permissive, is, after it is begun, obligatory. We desire not to be understood as assenting to the proposition of my brother Erle, that many cases may occur where the exercise of some compulsory powers may create a duty to be enforced by mandamus; and, on the other hand, we do not say that such may not be the law. If a company, empowered by act of parliament to build a bridge over the Thames, were to build one arch only, it would be well deserving consideration whether they could not be indicted for a nuisance in obstructing the river, or for the non-performance of duty in not completing the bridge. It is sufficient to say that in this case there are no circumstances to raise such a duty, if such a duty can be created by the acts of plaintiff himself. The plaintiffs in error have made the principal portion of their line, and they have abandoned the residue for no corrupt motive, but because Beverley has already sufficient railway communication, and because the residue of the line passes through a country thinly populated, and if made would not be remunerative. But it is said that the railway company are not in the situation of purchasers of land, with liberty to convert it to any purpose, or to allow it to be waste; that they are allowed to purchase it only for a railway, and having acquired it under the compulsory power of the act, there must be an obligation upon the company to apply the land to that, and to no other purpose. Subject to the qualification in the act, this is undoubtedly true. Having acquired the

1 Vaughn v. Company of Gunmakers, 6 Mod. 82; S. P. Comb. 45; White's case, 6 Mod. 18.

2. But a different rule, as to requiring the office to be of a public nature to justify the writ of mandamus to restore the party to lands of particular land-owners, the company could not retain them by merely laying rails on the lands so taken, and we agree it never was intended that the land-owners should be left with a high mound or a deep cutting running through their estate, and leading neither to nor from any available terminus. The precaution against such a wasteful expenditure of capital may, perhaps, safely be left to the self-interest of the company, but if such work were be done, it would not be a practicable railway, and after five years the powers of the act would expire, and the land revest in the original proprietor. It is true that he would sustain some inconvenience without the corresponding advantage of railway communication, but in the mean time he would have received full compensation in the market value of the land, and for all damage by severance or otherwise, and would receive back the land on more reasonable terms. To be a railway it must have available termini. When the statutes passed, all persons supposed the termini would be York and Beverley; and if the arguments be well founded, and the company are bound, if they take the land upon any portion of the railway, to complete the whole line, it would seem to follow that one of the proprietary, by compelling the company to take his land on the line from Market Weighton to Cherry Burton, would thus entitle himself to a mandamus to compel them to make the line from Cherry Burton to Beverley, and the acts having expired, to apply to Parliament for a renewal of their powers for that purpose. But although the termini were originally intended to be York and Beverley, it is plain that the legislature contemplated the possibility of the line being abandoned or being only partially made, because in the one case the powers of the act were to cease, and in the other they were partially continued. An option, therefore, is given to some one. By the course taken the Court of Queen's Bench has exercised that option, and said the line is to be made, not to Beverley, but to Cherry Burton. In our opinion that option is left to the company, and the company having bona fide made an available railway over the land taken, the obligation to the land-owner has, in that respect, been fulfilled. The cases upon this subject are very few, and the absence of authority is very striking, when we remember how many acts have passed in pari materia, not only for railways, but also for bridges and turnpike roads. Notwithstanding the numerous occasions on which such proceedings might have been taken, and the manifest interest of land-owners to enforce their rights, no instance can be found of an indictment for disobeying such a statute, or of a mandamus for the purpose of enforcing it. If correctly reported, Lord Mansfield determined this point in The King v. The Proprietors of the Birmingham Canal, 2 Wm. B. 708, for he says the act imports only an authority to the proprietors, not a command. They may desert or suspend the whole work, and, à fortiori, any part of it. On the other side, the language of Lord Eldon, in Blakemore v. The Glamorganshire Canal Company, is referred to as an authority for this mandamus. In our opinion it does not bear that construction, although it appears that the Court of Queen's Bench took a different view of that authority in the case of The Queen v. The Eastern Counties Railw. Company, 10 Ad. & Ell. 531, and was inclined to act upon it, and award a mandamus. The writ was subsequently withheld in