IS A PROVINCE A COLONY OR A DEPENDENCY?—The English Court of Appeal has given an interesting decision In re Sir S. M. Maryon-Wilson's Estate on an appeal from a decision of Mr. Justice Eve, reported in 27 The Times L. R. 429.

The testator in this case by his will made in 1896 authorised his trustees to invest in any stocks or securities of any British colony or dependency, and the question to be decided by the Court was whether the trustees could invest in the stocks of the provinces of the Dominion of Canada. In other words, was a province a colony or dependency?

Mr. Justice Eve came to the conclusion that a power given to trustees to invest in the stocks or shares of a British colony or dependency did not authorize an investment in stock issued by the provinces of the Dominion of Canada.

The tenant for life appealed.

The appeal was heard on October 31, and at the conclusion of the argument their Lordships took time to consider their decision.

The Master of the Rolls, in the course of his judgment, said the question was whether a power contained in a wili dated in August, 1896, to invest capital money in the stocks or securities (not payable to bearer) of "any British colony or dependency" authorised an investment in stocks issued by six of the provinces of the Canadian Dominion. Mr. Justice Eve had answered the question in the negative, and he (the Master of the Rolls) thought he was right.

But it is proper, said His Lordship, that I should state shortly the grounds of my decision. The word "colony is defined in various Acts of Parliament, to which our attention has been called, but only for the purposes of those Acts. The definitions are not uniform, and I doubt whether much assistance can be derived from them. The Interpretation Act, 1889, contains a definition of the word colony" in any subsequent Act of Parliament unless the contrary appears. That definition is against the appellant, and would not include the provinces of Canada. But, of course, the definition has no direct application to a will. The dictionaries to which our attention has been called do not help us.

As to the word "dependency" no light has been thrown upon its meaning. Upon the whole, I think it is a wider word than "colony," and might properly be applied to the Dominion of Canada. But I do not think a part of a dependency can be a colony. If Canada is not a dependency, it may be a colony, but a part of a colony is not itself a colony. To take the particular instances, I do not think Manitoba or Saskatchewan can properly be called either a colony or dependency. It is true that Nova Scotia, Ontario, Quebec and British Columbia were once colonies, but for many years they have lost the status of a colony and have. become merged in the Dominion. They are neither better nor worse than those provinces which never had the status of a colony. I do not forget that each province is a separate entity, and has a separate legislature. To avoid misapprehension, I wish to add that my decision would not apply to stock issued by any of the colonies before they were merged in the Dominion. No such question arises

here.

It was argued that Mr. Justice Eve's decision would have a serious effect upon the financial position of the provinces. The answer is simple. If they elect to take advantage of the Colonial Stock Act, 1900, no difficulty will arise. They are colonies within the definition of that Act. Their securities will at once become authorised securities. A clause of this nature, enlarging the power of investment beyond what the general law sanctions, ought, I think to be construed strictly. It is for those who seek to include a particular investment to prove beyond all reasonable doubt that the words of the clause cover it. In the present case I am not satisfied that the provinces of the Dominion of Canada are either colonies or dependencies. In my opinion the appeal must be dismissed.

Lord Justice Fletcher Moulton and Lord Justice Farwell delivered judgments to the same effect.

THE GRAND TRUNK PACIFIC RAILWAY COMPANY V. THE LANDOWNERS, &c., OF FORT WILLIAM.*

Canada-Railway-Jurisdiction of Railway CommissionersCondition as to Construction of Railway on Streets Compensation to Abutting Landowners.

A municipal corporation granted to the appellant railway company the right to construct and work a line of railway along certain streets in the municipality. The appellants then applied to the Board of Railway Commissioners under the provisions of the Canadian Railway Act, 1906, for approval of the location of the line of railway. The board granted the application subject to the condition that the appellants should "make full compensation to all persons interested for all damage by them sustained by reason of the location of the said railway along any street."

Held, (1) that the provisions of sec. 237 of the Railway Act as to the extent of the obligation of the railway company to make compensation could not be altered, abrogated or enlarged by the exercise of the railway board's administrative power under sec. 47 of the Act, and that the condition imposed by the board was therefore ultra vires; and (2) that in these circumstances the order of the railway board containing the condition, and not merely the condition itself, could not stand, and that the parties must be left to come to a fresh arrangement under a new application.

Decision of the Supreme Court of Canada (43 Can. S. C. R. 412) reversed.

This was an appeal from a judgment of the Supreme Court of Canada of June 15, 1910, affirming an order of the Board of Railway Commissioners of Canada.

*27 T. L. R. 37.

VOL. XXXII. C.L.T.-6

Sir Robert Finlay, K.C., Mr. Atkin, K.C., and Mr. E. F. Spence appeared for the appellants; Mr. J. S. Ewart, K.C., (of the Canadian Bar) for the respondents.

The arguments were heard in July before Lords Atkinson, Shaw, Mersey, and Robson, when judgment was reserved.

Lord Robson, in delivering (for Lord Shaw) the judg ment of the board, said that the facts giving rise to the question before their Lordships may be stated in a word. The Grand Trunk Pacific Railway Company constructed a branch line to the town of Fort William, in the province of Ontario, and in order to "establish and maintain its terminals and works in connection therewith" it entered into an agreement with the corporation of that town on March 29, 1905. By the agreement the corporation granted to the railway company "free of cost and all liability the right to build on the level and operate in perpetuity a double-track line of railway on all the streets of the municipal corporation coloured red on a certain plan. Two of these streets were Empire avenue and McKellar or Hardisty street. The railway company then applied, under section 159 of the Railway Act of 1906, for approval of the location of its line of railway. On October 6, 1909, the Board of Railway Commissioners ordered that "subject to the terms and conditions contained in the said agreements, and subject to the condition that the applicant company shall do as little damage as possible, and make full compensation to all persons interested for all damage by them sustained by reason of the location of the said railway along any street in Fort William," the location, "be and the same is hereby approved.”

The true question in this case, said his Lordship, is whether it was within the powers of the Board of Railway Commissioners to impose the "condition" that the company should make full compensation to all persons interested for all damages sustained by reason of the location of the railway. On the one hand, the railway company maintains that it was ultra vires of the board to impose the condition, and presents the argument that the condition should be deleted and that the order quoad ultra should stand; while upon the other hand, the respondents in the appeal maintain that it was within the power of the board to make a condition of compensation of the kind in question, but they plead that, if this was not so, then the order-never having been, or been

intended to be, an unconditional order-should fail if the condition fails.

These respondents are frontagers-that is to say, owners of properties in the streets named-and it is not difficult to understand how they are, and possibly also how the municipality itself is seriously affected by the location of the railway as proposed and sanctioned. It appears, however, that many of the properties in question are neither taken nor injuriously affected in the sense of the English railway law as interpreted by the Hammersmith and City Railway Company v. Brand (L. R. 4 H. L. 171), a decision which has been followed in Canada (In re Devlin v. The Hamilton and Lake Erie Railway Company, 40 Upper Canada Q. B. Rep. 160.) It is in no way surprising to find that the board, giving a sanction for the construction of a railway through the municipality, should make the condition that the compensation to be paid for that privilege should fully equate with the injury done "to all persons interested;" that is to say, that the compensation should be recoverable in respect not only of the construction of the railway as settled by Brand's case, but also for all damage sustained in respect of its "location."

The real question, however, is whether, under the 47th section of the Railway Act of 1906, the board was vested with a power of widening the scope of the compensation provided for in the statute itself. The language of section 47 gives power to the board to direct that its order shall come into force, inter alia, upon the performance "of any terms which the board may impose upon any party interested." This language is certainly general and comprehensive; but, in their Lordships' view, it cannot be interpreted as being designed to alter the other and specific provisions of the statute as to the compensation payable by the railway company. The particular application now being dealt with falls within the scope of section 237, which applies to "any application for leave to construct the railway upon, along or across an existing highway." By sub-section (3) of that. section it is provided that when the application is of that character "all the provisions of law at such time applicable to the taking of land by the company, to its valuation and sale and conveyance to the company, and the compensation. therefor, shall apply to the land exclusive of the highway