^ i^<.^. ^ V ^ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 lii|21 |25 ■tt lii |22 u lift ^" £ 1^ 12.0 US \25 niu 1.6 HiotDgraidiic Sciences CcHporatiQn 23 WIST MAM STRHT WIISTIR.N.Y. 14SM (716)172-4903 CIHM/ICMH Microfiche Series. CIHM/ICIVIH Collection de microfiches. Canadian inatituta for Historical Microraproduction* / Inatitut Canadian da microraproductions hiatoriquaa Vachnical and Bibliographic Notaa/Notaa tachniquas at bibiiographiquaa Th« tol Tha instituta has attamptad to obtain tha bast originai copy availabia for filming. Faaturas of this copy which may ba bibliographicaily uniqua. which may altar any of tha imagas in tha raproduction, or which may significantly changa tha usual mathod of filming, ara chackad balow. □ Colourad covars/ Couvartura da coulaur □ Covars damagad/ Couvartura andommagte □ Covars rastorad and/or iaminatad/ Couvartura rastaurte at/ou palliculte D n n D Covar titia missing/ La titra da couvartura manqua r~~| Colourad maps/ Cartas gtegraphiquas an coulaur Colourad inic (i.a. othar than blua or black)/ Encra da coulaur (i.a. autra qua biaua ou noira) Colourad platas and/or illustrations/ i I Planchaa at/ou illustrationa 9n coulaur □ Bound with othar matarial/ Rail* avac d'autras documants Tight binding may causa shadows or distortion along intarior margin/ Lareliura sarr6a paut cauaar da I'ombra ou da la distortion la long da la marga intiriaura Blank laaves addad during rastoration may appaar within tha taxt. Whanavar possibia, thasa hava baan omittad from filming/ II sa paut qua cartainas pagas blanchas aJout*as lors d'una rastauration apparaissant dans la taxta. mais. lorsqua cala Atait possibia, cas pagas n'ont pas *t« filmtes. r~yp Additional comments:/ ULI Commantairas supplAmantairas; Irregular pagination: xviii, 9 - 231 p. L'Institut a microf ilmA la maillaur axamplaira qu'il lui a M possibia da sa procurar. Las details da cat axamplaira qui sont paut-Atra uniquas du point da vua bibliographiqua, qui pauvant modifier una imaga raproduita, ou qui pauvant axigar una modification dans la mithoda normala da f ilmage sont indiquis ci-dassous. I — I Colourad pagas/ Pagaa da coulaur Pagas damaged/ Pagaa andommag^as □ Pagas restored and/or laminated/ Pagas restaurAas at/ou palliculAes p'^I^Pagea discoloured, stained or foxed/ 1^1 Pagas d4color4as. tachatdes ou piquias □ Pages detached/ Pagas dAtachies r~7p Showthrough/ bcJ Transparence □ Quality of print varies/ Quality intgala de I'impression □ Includes supplementary material/ Comprend du matMal suppMmentaire □ Only edition available/ Saule Mition disponible D Pagaa wholly or partially obscured by errata slips, tissues, etc., hava been refilmed to ensure the best possible image/ Lea pagas totalament ou partiailement obscurcies par un fauillet d'errata. una pelure. etc.. ont MA filmAes A nouveau de fapon i obtanir la mailleure image possible. Thi poi oft filn Ori ba« tha aioi oth firs aioi ori Th« aha TIW wh Ma diH ant bat rigl raq ma This item ia filmed at the reduction ratio cheeked below/ Ce document est film* au taux de reduction indiquA ci-dassous. 10X 14X 18X 22X 26X 30X v/ 12X 16X 20X a4X 28X 32X The copy fllmad h«r« has b««n r«produe«d thanks to th« g«n«rotity of: Mttropditan Toronto Ubraiy Social: L'oxomplairo f ilm4 fut roprodult grioo i la gAnArosM do: Mttropolltan Toronto Ubrmry SocM SdMieM DtfMTtnMnt Tho Imagat appaaring hara ara tha baat quality poaaibia considaring tha condition and laglblllty of tha original copy and In kaaping with tha filming contract spaciflcationtt. Laa imagaa auivantaa ont it4 raproduitaa avac la plus grand soln. compto tanu da la condition at da la nattat* da i'axamplaira film*, at an oonformHA avac las conditlona du contrat da fiimaga. Original coplas in printad papar covara ara filmad baglnning with tha front covar and anding on tho last paga with a printad or llluatratad Impraa- alon. or tho back covar whan appropriata. All othor original coploa ara filmad baglnning on tha first paga with a printad or llluatratad impraa- aion, and anding on tho toat paga with a printad or iliustratad impraaalon. Las axamplalras originaux dont la couvartura an papiar aat ImprlmAa aont fiimto an commandant par la pramlar plat at an tarmlnant soit par la darnlAra paga qui comporta una ampralnta d'impraaaion ou d'illuatration, aolt par la aacond plat, aalon la cas. Tous los autraa axamplairaa originaux sont filmte an common^ant par la pramlAra paga qui comporto uno omprointa d'impraaaion ou d'iiiuatration at an tarmlnant par la darnlAra paga qui comporto uno talla ampralnta. Tha last racordod frama on oach microficha ahali contain tha aymbol -^ (moaning "CON- TINUED"), or tha aymbol ▼ (moaning "END"), whichovor appliaa. Un daa aymbolos suhrants apparattra aur la darnlAra imaga da chaqua mioroficho, aalon lo cas: la symbolo — »> signiflo "A 8UIVRE", la symboio ▼ signiflo "FIN". Maps, piataa, charta, ate, may ba filmad at diffarant raduction ratioa. Thoso too larga to ba antiraiy includad In ono axpoaura ara filmad baglnning in tha uppar iaft hand comor, loft to right and top to bottom, aa many framaa aa raquirad. Tha following diagrama llluatrata tha mathod: Las cartas, planchas, tabiaaux, ate, pauvant Atra fllmte k das taux da rMuction difftronta. Lorsquo lo document est trop grand pour Atro roproduit on un soul clich*, 11 aat film* A partir da I'angla supArlaur gaucha, da gaucha A drolto, at da haut an has, an pranant la nombra d'imagas nAcassaira. Laa diagrammas auivanta llluatrant la mAthodo. 1 2 3 1 2 3 4 5 6 THE CHARTER OF TEE Toronto Street Railway Co. m- TOOKTEBB WITE OBBTAIN STATUTES, BY-LAWS, RESOLUTIONS AND AGREEMENTS RELATING TO THE SAID COMPANY, AMD THE Corporation of the City of Toronto, FBOM MABOH 14Ta, 1801, TO APBIIi SCTH, 1889, Prepartd in aeeordavee with the order of the CouneU. BT TB> City Solicitor. J. T. REID. CITY PBINTEB. -. -.. •. . .f, ••• *. V *5\'^®)'\-\ FEB 7 1933 %i PREFATORY NOTE. By Report No. 24 of the Executive Committee, 1887, it was recom- mended " that the City Solicitor be directed to publish in pamphlet form the Charter of the Toronto Street Railway Company and the several agreements of the said Company with the City of Toronto, together with all the Statutes, City By-laws, Resolutions of Council and judicial decisions in any way relating to or affecting the said Company and the City, the cost of the same not to exceed the sum of |160." The above report was adopted in Council on August 29th, 1887, with an amendment adding thereto the words "and that His Worship the Mayor, Aid. Defoe, Aid. Roaf, Aid Carlyle (St. Thomas' Ward), and Aid. E. A. Macdonald be appointed to direct the Solicitor and supervise the publication of the same." In accordance with the'above report, the following documents (col- lated by my predecessor) are now submitted for the information of the Council. City Solicitor's Office, January, 1889. C. R. W. BIGGAR, City (So/tcttor. I INDEX. I. PAoa. By-law 868 of the City of Toronto, containing original Agreement with Easton— Jnly aaud, 18«1 10 II. Act incorporating the Toronto Btr«et Railway Company— May 18th, 1861 16' III. Act providing for the sale of the Toronto Street Railway— January 28rd,1869. . 90 IV. Act incorporating new Company— M«rch 39th, 1878 9S V. Act amending original' Charter— Febmary 10th, 1876 34 VI. Act amending original Charter— March 2nd, 1877 26 VII. Act validating certain Local Improvement By-laws to date— Febmary Ist, 1888. 27 VIII. Act respecting assessment of Railway — March 26th, 1884 87 IX. Act anthorisdng Company to issne debentures, etc. — March 26th, 1884 28 X. Character of rail to be used- Board of Works Report No. 9, Jane 9th, (See No. LXVII. pott) 1Q7S 80 XI. North-eaitern extension— Committee's Report, December 18th, 1878 80 i ▼i INDEX. XII. FAoa. Western extension— Board of Works Rei)ort, Auf;. Blst, 1871 31 XIII. Parliament streetpine— Resolution of Council, September 26tli, 1871 S2 XIV. Sherbourne street extension -Resolution of Council, October 5th, 1874 89 XV. Carlton street east extension— Board of Works Report, October 5th, 1874 8ft XVI. Names and lights on oars— Resolution of Council, December 14th, 1874 88 XVII. Dtindas street extension — Board of Works Report, May 81st, 1876 84 XVIII. King street block paving, cost of —Minutes of Council, June 7th, 1875 84 XIX. Amendments to charter, notice of —Minutes of Council, July 15th, 1875 84 XX. Toronto Street Railway v. l^'Icmini;- Judgment of Court of Appeal, November iBt, 1875 86. XXI. Taxation of property— Council Minutes, November 8th, 1875 41 XXII. Suggested amendments to Street Railway Charter— Coanoil Minutes, December 18th, 1875 41 XXIII. Amendments to Charter— Council Minutes, May 29th, 1876 4t XXIV. Amendments to Charter— Letter from City Solicitors, January 24tb, 1876 48 XXV. City Engineer to report as to condition of streets occupied by T. 8. B. Co Council Minutes, November 6th, 1876 44 XXVI. Mr. Shanly'B report under Resolution No. XXV. 44 INDEX. vii XXVII. PAOK. Lighta on oara— Gounoil Minutea, November a2nd, 1870 45 XXVIII. Report of City Engineer on Legiilation of 1876-6— Jannary 30th, 1877 4S XXIX. Beaolation respecting Lettielation of 1876 — Minutes of Oonncil, Jannary 22ind, 1877 47 XXX. Beaolntiou respecting Legislation of 1877— Minutes of Oouncil, February mtb, 1877 48 XXXI. Legislation of 1877 -Committee's Report, January 29th, 1877 49 XXXII. Compromise arrived at respecting said legislation — Minutes of Council, February 26th, 1877 49 XXXIII. Legislation of 1877— Committee's Report, February 5th, 1877 60 XXXIV. Yonge street pavement— Report of Committee, April 9th, — Minutes of Council, April 16lh, 1877 60 XXXV. North-western extension — Council Minutes, July 8rd, 1877 61 XXXVI. Further extensions —Council Minutes, September 2nd, 1877 52 XXXVII. Queen street west — Council Minutes, December 2nd, 1878 62 XXXVIII. Removal of snow from tracks — Council Minutes, January 20th, 1879 6S XXXIX. Over-crowding cars— Council Minutes, May 19th, 1870 68 XL. Over-crowding cars— Council Minutes, August lltb, 1879 58 XLI. King street west extension-Oonncil Minutes, June 10th, 1879 68 Tiii INDEX. XLIl. PAHM. King itreet west exteniion— CotnmiUee'a Report, June 8rd, 1879; Connoil Minntea, JunelGth, 187tt 64 XLIII. King street west extension— Council Minutes, August il6th, 1879 84 XLIV. North-eastern extension — Council Minutes, June 33nd, 1880 54 XLV. Union Station line— Council Minutes, June astli, 1880 55 XLVI. Front street west to Bathurst street— Council Minutes, November 8th, 1880 . . 5ff XLVII. Taxes for 1879— Council Minutes, February 14th, 1881 50 XLVIII. Taxes for 1879— City Solicitor's Report, March 7th, 1881 56 XLIX. Breaking up Church street— Council Minutes. March a4th, 1881 M L. Church street line injunction— Council Minutes, March 34th, 1881 M LI. North-eastern extension— Council Minutes, May 2nd, 1881 57 LII. Names on cars— Council Mbntes, May 12th, 1881 57 LIII. Transfer tickets— Council Minutes, October 10th, 1881 67 LIV. List of Street Railway routes— Council Minutes, December 27th, 1881 57 LV. Wellington and Strachan Avenue extension— Council Minutes, February 2lBt ^^* .' 58 LVI. Dondas street Extension-Committee's Report, March 2bd, 1881-Counoil Minutes, March 7th, 1881 jj INDEX. ix LVII. PAoi. Oharoh knd Jarvia ttreeti Eitenaion, etc.— Oommittae'a Report, March ISth, 1881 SO LVIII. Frederick etreet extenaion- Committee'a Report, April leth, 1881 90 LVIX. Front atreet eaHt to ntablea, extenaion — Gommittee'a Report, April 20th, 1881 . . 01 LX. Front atreet eaat to atablea, extenaion— Minatoa of Council, May 32nd, 1881 .... 01 LXI. Extenaion on Church atreet, Wilton avenue, Wincheater atreet. Front atreet, Spadina avenue, Bathurat, Dundaa and Btraohan atreetR, and communi- cation from Street Railway re tranafer tioketa, etc.— Oommitteft'a Report, (No. 22,) May 80th, 1881 69 LXII. Impoainc oonditiona as to new linea— Minutea of Council, May SOth, 1881 .... 08 LXIII. Opinion of City Solicitor thereon— Minutea of Council, June 0th, 1881 68 LXIV. Reaolntion, that Report Mo. 22, (Ante No. LXI.) out of order— Minutea of Council, June 18th, 1881 64 LXV. Committee of the Whole reaume conaideration of Report No. 22— Minutea of Council. June 27th, 1881 04 LXVI. Committee of the Whole reaume consideration of Report No. 22— Minutea of Council, July 8th, 1881 65 LXVII. Pattern of rail to be need— Minutea of Council, Auguat 22nd, 1881. (SeeJiC, anU.) 07 LXVIII. Extenaion of railway from York atreet to Bloor atreet— Minutes of Council, September 27th, 1881 67 LXIX. Extenaion of railway from Tork atreet to Bloor atreet— Committee'a Report, September 29th, 1881 68 X INDEX. LXX. PAOf. Petition against constraotion of railway on Gaer Howell street — Committee's Beport, October 4th, 1881 ; Minutea of Council, October 10th, 1881 69 LXXI. Gaer Howell street roate — Minutes of Council, November 28th, 1881 71 LXXII. Caer Howell street route -Committee's Beport, November 30th, 1881 ; Minutes of Council, December 6th, 1881 71 LXXIII. Extension of railway on Spadina avenue. College, Simcoe and Front q^reets — Minutes of Council, May 8th, 1832 72 LXXIV. Substitution of some other street for Simcoe- -Minutes of Council, May 16th, 1882 72 LXXV. Substitution of York street for Simcoe street — Minutes of Council, May 29tb, 1882 72 LXXVI. Extension of railway on Winchester and Sumach streets,— Minutes of Council, July 24th, 1882 78 LXXVII. Permanent roadway on King street. Removal of one track to Adelaide street —Minutes of Council, August 7th, 1882 71 LXXVIII. Construction of north-west route without intermission — Minutes of Goancil, September 4th, 1882 , 74 LXXIX. Communication from City Solicitor respecting liability of Street Railway Com- pany to provide conductors as well as drivers— Minutes of Council, October 80th, 1882 74 LXXX. Notice of motion : Street Railway Company to place conductors on all can- Minutes of Council, October 80th, 1882 74 LXXXI. By-law No. 1264 respecting Street Railways, passed December 18th, 1883 74 LXXXII. Dangerous state of roadways caused by Railway Company— Minutes of Council, January 22nd, 1888 79 INDEX. XI PAOK. se'B 69 • • • 71 lies • • • 71 tB— 72 6th, 7a S9th. 78, ncil, • • • • 78 treei 71 moil, • • • « 74 Com- tober 74 MS— 74 74 nncil, 76 LXXXIII. VKOM. Communication from City Solicitor, respecting accummalation of snow between car tracks— Minutes of Council, February 5th, 1888 76 LXXXIV. Extension of railway tracks westward to Clinton street — Minutes of Council, February 12th, 1888 ^ 77 LXXXV. Extension westward to Clinton street— Minutes of Council, February 19th, 1883 77 LXXXVI. Report of Executive Committee re suit by Street Railway against the City, for stone taken from Tonge street — Minutesof Council, February 86th, 1888 77 LXXXVII. Petition of Toronto Street Railway for repeal of By-law No. 1264— Minutes of Council, March 5th, 1888. . ; LXXXVIIl. Extension of tracks to northerly limits of City- Minutesof Council, April 21st, 1888 LXXXIX. Lettd; from President of Street Railway 7» 7S 78 XC. Stoppageof construction of north-west route by University authorities— Minutes of Council, May 21st, 1888 81 XOI. Re extension of tracks to Union Station— Committee's Report, June 19th, 1883— Minutes of Council, June 25th, 1888 8S XCII. Resolution re Dundas street cars— Minutes of Council, October 29th, 1888 84 XCIII. Report No. 89 of Committee on Works re connection of north-eastern car service with Front street— Minutes of Council, December 10th, 1888 84 XCIV. Extension on Bathurst street, report of Committee on Works, December 18th, —Minutes of Council, December 22nd, 1888 86 xii INDEX XCV. PACK. New route from Don bridge to Union Station — Mi lutes of Council, January 18th, 1884 88 XOVI. Letter from Street Bailway Company, re Dundas street cars— Minutes of Council, March Slst, 1884 '. 87 XCVII. Spadina avenue pavement — Minutes of Council, June 18th, 1884 87 XCVIII. Be extension of railway tracks, Dundas street, to White bridge — Minutes of Council, July 7th, 1884 .' 89 XCIX. Bequest for car service from Don bridge to Gladstone avenue — Minutes of Council, July 7th, 1884 88 0. Extension of Yonge street car service to opposite Union Station — Minutes of Council, July 21st, 1884 89 01. Respecting repairs on Yonge street and cars without conductors— Minutes of Council, October 20th, 1884 90 Oil. Enforcing rules and regulations re Toronto Street Bailway— Minutes of Council, February 28rd, 1885 91 cm. Suspension of by-law, re one-horse cars— Minutes of Council, March 98rd, 1886. 91 CIV. Extension eastward on Queen street to Greenwood's line— that a suit be insti- tuted against Street Bailway Company for repairs— Extension of tracks to Exhibition Grounds- Minutes of Council, April 27th, 1886 91 CV. petition of Metropolitan Street Bailway for leave to lay track on the Island- Minutes of Council, July 27th, 1888 9S CVI. Repairs to block pavement along the railway tracks— Minutes of Council, August 10th, 1885 98 CVII. Direct route for Queen street west cars to Union Station— Minutes of Council, August 19th, 1886 94 INDEX. xiii CVIII. PABE. Direct roate for Qneen street west oars to Union Station — Report of Committee, September 2lBt, 1885 ; Minutes of Council, September 28th, 1886 94 CIX. Danforth avenue extension — Carleton street extension — Committee's Report, September 20th, 1885 ; Minutes of Council, October 5th, 1885 04 ex. Rnnningof two-horse cars without conductors — Minutes of Council, October 19th, 1886 95 CXI. Piling up of snow from Street Railway tracks — Minutes of Council, October 19th, 1886 96 OXII. Conductors on one-horse cars— Minutes of Council, February 1st, 1886 96 CXIII. Transfer tickets on Queen street line from east to west — Minutes of Council, February 8th, 1886 96 CXIV. Extension of street car seryice to Danforth avenue—Minutes of Council, Feb- ruary 15th. 1886 97 CXV. Conductors on one-horse cars— Minutes of Council, February 19th. 1886 , . 97 CXVI. Conductors on one-horse cars— Minutes of Council, March 4th, 1886 9S CXVII. Resolution to take steps to test by-law as to conductors — Minutes of Council, March 12th, 1886 98 CXVIII. Amendment to Resolution No. CXF/L— Minutes of Council, March 16th, 1886 98 CXVIX. Dundas street via Arthur street, etc.— Minutes of Council, May 11th, 1886 99 cxx. street Railway Charter etc., to be published- Minutes of Council, May 17th, 1886 9j> I xiv INDEX. CXXI. PAOB. Mayor'a meiwage with enoIoauroB, re Street Bailway— Minutes of Coonoil, June 7th, 1886 99 f CXXII. Danforth Avenue to Union Station— Minntes of Council, June 2lBt, 1886 106 CXXIII. Extension across Don Bridge to Greenwood's line — Minutes of Council, September 27th, 1886 106 CXXIV. Beport of Executive Committee, re publishing Street Bailway Charter, etc.— Minntes of Council, October 26th, 1886 106 CXXV. Appropriation for enforcement of by-law, re conductors on street cars — Minutes of Council, November 8th, 1886 107 . CXXVI. Nuisance caused by street car stables on Scollard street— Minutes of Council, November 22nd, 1886 108 CXXVII. Mayor's message (with relative enclosures,) re Judgment of Boyd, C, in action on By-Law 1264, respecting conductors on one-horse cars, November 22nd, 1886 109 CXXVIII. Beport of Secretary of Works Committee respecting said action — November 20th, 1886 119 CXXIX. Communication from City Solicitor, re action City of Toronto v. Toronto Street Railway Co. to recover cost of repairs to block pavements— Minutes of Council, November 22nd, 1886 120 CXXX. Communication from Bobinson, O'Brien & Co., re Toronto Street Bailway suit respecting conductors on street cars— Minutes of Council, December, Gth, ISSfi 120 CXXXI. Pleadings, etc,, in the case of City of Toronto v. Toronto Street Railway re repairs to block pavements 121 V. ! INDEX. XV PAOB> June 99 106 lanoil. , etc.— ilinutes 3oanoil, CXXXII. PAOB. Report of Sab-Committee of Works Committee, with oorrespondenoe between City Solicitor and Mr. Shepley containing negotiations ;for settlement of above action— February 28rd, 1887 164 CXXXIII. Letter from Mr. Hhepley to Mr. Mo Williams, in re the laying certain street cross- ings with stone blocks— July 13th, 1887 169 CXXXIV. Letter from Assistant City Engineer to City Solicitor— July 18th, 1887 170 CXXXV. Letter from Asnistant City Engineer to City Solicitor containing draft memo- randum of agreement between tho City and the Street Railway Com- pany—July 29th, 1887 170 CXXXVI. Mr. Shepley 's reply thereto— December 30th, 1887 171 CXXXVII. Communications from Mayor Howland to Council, re ice and snow on the street railway tracks, etc.— Minutes of Council, February 13th, 1888. (See No. CXXXVin^ po$t) 172 CXXXVIII. Communication from the Hon. Frank Smith, re extension of Company's traoks across the Don Biver— February 13th, 1888 172 CXXXVIII. (a.) Message from Mayor Howland to Council, re removal of snow anil ice from the street railway tracks with enclosures— February 18th, 1888 178 Message from Mayor Howland, re petition of the Toronto Street Railway Com- pany for repeal of By-law No. 1264, with enclosures— February 13th, 1888. 170 CXXXIX. Resolution of Council refusing prayer of above petition— Minutes of Council, February 13th, 1888 I79 CXL. City Engineer to report, re extension of street railway along Dovercourt road to Bloor street— Minutes of Council, February 20th, 1888 179 CXLI. Report of Works Committee and Executive Committee thereon— Minutes of Council, February 23rd, 1888 I80 I ; XVI INDEX. CXLII. PAOK. Bep»in to block pavements recommended by City Engineer — Minutes of Coan- cil, March 16th, 1888 180 CXLIII. Be extension of tracks on Doverooart road— Report No. 5 of Committee ou Works— March 26th, 1889 180 CXLIV. Besolation of Council respecting repairs to block pavements referred to in No. CXLII.— Minutes of Council, March 26th, 1888 181 CXLV. Judgment of Court of Appeal on the appeal from His Lordship Chancellor Boyd. (See No. XX VI. ante) in suit, City of Toronto v. Toronto Street Bailioay Com- pany, re conductors on street cars 181 CXLVI. Letter from Robinson, O'Brien & Co., advising the Council of said judgment- Minutes of Council, April 28rd, 1888 197 CXLVII. Letter from Henry O'Brien, Esquire, asking; instructions for appeal from said judgment to Supreme Court, and resolution of the Council, ther«on— Minutes of Council, April 30th, 1888 197 CXLVIII. Resolution that Toronto Street Railway Company be requested to lay down tracks on College street west of Dovercourt road— Minutes of Council, May 4th, 1888 19S CXLIX. Mayor Clarke's message calling attention to the nnsatisfaotory condition of affairs between the City and the Toronto Street Railway Campany, re repairs of streets— Minutes of Council, July 8rd, 1888 19B OL. Resolution that Toronto Street Railway Company, be requested to lay down tracks on Bathurst street between College and Queen street, and from Queen street to King street— Minutes of Council, July 8rd, 1888 805 CLI. Letter from G. P. Shepley to City Solicitor respecting settlement of matters iu difference in the action respecting repairs to block pavements— July 8rd, ^®®® 206 CLII. Resolution that Toronto Street Railway Company be notified to construct a line of street railway from Oerrard street terminus to Broadview avenue, thence to Danforth avenue— Minutes of Council, August 20th, 1888 207 |i ^'l INDEX. xvii CLIII. PAQI. Letter from City Bolioitor to Aid. Carlyle asking instruotions as to reply to No. CLZ— September 4th, 1888 208 CLIV. Beaolution appointing Special Committee to confer with Toronto Street Railway as to re-arrangement of western and north-western lines — Minutes of Council, September 8th, 1888 208 Resolution that Toronto Street Railway Co. be notified to construct a line of street railway from Qerrard street terminus to Broadview avenue, thence northerly to Danforth avenue — Minutes of Council, September 8th, 1888. 208 \: : CLVI. ■ jfa-.,.;i:--j -i-.'M—^ .• Communication from the Toronto Passenger Transport Co., offering to construct and operate certain lines of street railway — Minutes of Council, Septem- ber 24th, 1888, 209 CLVII. Letter from City Solicitor to Mayor as to right of Toronto Street Railway Com- pany to lay tracks without leave— October 24th, 1888 209 CLVIII. Report of Committee on Works embodying offer of the Toronto Passenger Trans- port Company, and recommending action thereon — Minutes of Council, October 30th, 1888 210 CLIX. Letter from Hon. Frank Smith to Mayor Clarke, re extension of Toronto Street Railway Co.'s tracks from Gerrard street terminus to Broadview avenue, and thence to Danforth avenue— November 21st, 1888 212 CLX. Letter from Hon. Frank Smith to the Mayor as to offer of Toronto Passenger Transport Co. (See No. CLVI. <& CLVJH.) 212 Order of the Hon. Mr. Justice Rose in the action, City of Toronto v. Toronto Street Railway Co., re repairs to block pavements 214 CLXII. City's Reasons for Appeal from the said order to the Court of Appeal for Ontario 216 CLXIII. Mayor Clarke's message to Council, embodying agreement by Solicitors for City and Street Railway Company for settlement of all matters in dispute in the above and other actions— January 21st, 1889 217 M t 1 xviii INDEX. "'::) v ' ..■'■'■'--' ■■■^- APPENDIX. ■.:- -v,:^:r -..,.:.■.,„-• - ■ ■ , il'.-i'.M'f! CtXIV. PA(1K. Agreement between Corporation of forkville and Toronto Street Railway Co.— Jane 18th. 1861 228 CLXV. Agreement between Corporation of Toronto and Toronto Street Bail way Co., respeoting construotion of lines of railway mentioned in Report No. 22 of Committee on Works (1881). (See ante LXL LXIV. LXV. LXVI.~ July 29tli, 1881) 228 CLXVI. Letter from James Ounn to Aid Carlyle, re block pavement on King and Queen streets— April 20th, 1883 22» CLXVII. Extract from Ontario Statute, 52 Vio. cap, 73, sec. 13. Passed March 23rd, -' 1889 281 :i 1 ii \\ lii l', I Fourth.— The tracks shall conform to the grades of the varions streets through which they will run, as furnished by the City Surveyor or such ofiioer as afore- said, and shall not in any way change or alter the same. Fifth. — The location of the line of railway in any of the streets shall not be made, nntil the plans thereof shewing the position of the rails and other works in each street shall have been submitted to and approved of, by the City Surveyor or such other officer as aforesaid. VI CITY OF TOBONTO r. TOROMTO STREET RAILWAY 00. 11 AtolA.— TIm Oily MtborlllM tiuAl Imv* Mm ngb* to likk* ap IIm ■(»■«■ trnvanad bgr the nil* •ithtr for tb# parpoM of altoring tho gmdw thonof , ooiwlraotiiif or roptiring inin, or tor kjring down or r«p«iring w»tor or gM plpw *nd tor aU oUmt parpoMi within tho provinoo Mid privil«gM of tho Gorporihtlon withont baing liaUo for any oompanMtion or d»m»ge th»t may bo oooMionod to tho work- ing at tho railway, or tho work* oonnootad thorowith. SmwiIA.— Tho rail to bo omployod for tho aaid railway ■hall bo tho flat rail, raoh at ia now ntod in tho City «rtT — r-"TTP* iiii i I'i ii !;ii m') ill I i iiul I 14 MEMO. Second. — That he will well and truly pay the said license fees, and will truly and faithfully perform, fulfil and keep all the conditions, covenants and agreements in the said resolutions and these presents expressed and contained on his and their part to be performed, fulfilled and kept. Third. — That before breaking up, opening, or interfeiing with any of the said streets, for the purpose of constructing the said railways he will give or cause to be given to the City Surveyor or other proper officer of the said parties of the first part at least ten days notice of his intention so to do, and that no more than twenty-six hundred feet of the said streets shall be broken op or opened at any one time, and that when the work ihereon sKall liave been commenced the same shall *tM©d«aed with steadily ftnaTfithout intermission and as rapidly as the same .can be can-ied on, due regard M^ ^^^- ^° *^« P~P*' '"'^ ^^^^^''^ ?0?»tn.0ti0l» ot :the same. Fourth.— That daring the HionBtraotion of tiie said railways due and proper oart .shall beteken to le^-^^ sufficient space and crossings so that the traffic and travel 'Omblmimi* ekteeta and other streets running at right angles thereto shall not be •™™*«':asarily impeded, and that the water courses of the said streets shall be left "^j and unobstructed, and lights, barriers or watchmen provided and kept by the said party of the second part when and where required to prevent acoidents to the public. Fifth.— That the gauge of the said railways shall be such that the ordinary vehicles now in use may travel on the said tracks, and that it shall and may be lawful to and for all and every person and persons whatsoever to travel upon and use the said tracks with their vehicles loaded or empty, when and so often as they , may please, provided they do not impede or interfere with the oars of the pftrty of the second part, running thereon, and subject at all times to the right of the said party of the second part, his executors, and administrators and assigns to keep the said tracks with his and their cars, when meeting or overtaking any other vehicle thereon. ' Sixth. — That the said pHrty of the second part, his hoirs, executors or admin istrators shall and will at all times employ careful, sober and civil agents conductors and drivers to take charge of the cars upon the said railways and that he and the said agents, conductors, drivers and servants, shall and will from time to time, and at all times during the continuance of this grant and the exercise by him and them of the rights and privileges hereby conferred, operate the said railway and cause the same to be worked under such regulations as the Common Council of the City of Toronto may deem necessary and requisite for ' the protection of the persons and property of the public, and provided such regu- lations shall not in&inge upon the privilege granted by the said resolutions. Seventh.— That no higher fare than five cents shall be charged or exacted from or upon any passenger using the oar or oars of the said party of the second part from the St. Lawrence Hall on King street either to Torkville or the Asylum, but he or she may be entitled to tn^vel in the said car or cars either of the said disiuicee for one fare only. CITY OF TOBONTO v. TORONTO STREET RAILWAY CO. 15 And, lastly, that all the works to be done under the said resolutions and these presents, and the rights and privileges to be used thereunder shall be done and used to the satisfaction of the Common Council of the City of Toronto or the City Surveyor or other officer to be by them appointed for the purpose. Provided^ however, that if the said party of the second part be delayed by the order and injunction of any court, except the same be granted on the default or negligence of the said party of the second part, then the time of such delay shall be excluded from the operation of this agreement, and such time in addition to the periods prescribed in the said resolutions shall be allowed for the completion of the said railway, and also that it is the intended meaning of the ninteenth resolution above recited and lihe forfeiture therein mentioned shall attach in case the said party of the second part fails to build and operate any one of the three lines of railway ; it being the clear understanding of the said party of the. second part that the ^privileges hereby conferred were to insure the completion and working of three lines of railway, and in case of failure in any one the absolute forfeiture of what has been constructed and of the plant belonging thereto shall take place under the vaid resolution and agreement ; and provided further that this agi'eement and the matters and things herein contained shall only take effect after the legislation necessary for legalizing the same shall have been obtained. And whereas since the execution of the said agreement by a certain Act of the Parliament of the Province, passed in the twenty-fourth year of Her Majesty's reign, entitled an Act to incorporate the Toronto Street Bailway Company, it was among other things enacted that the said agreement should be held to be a valid agreement, and that the Corporation of the City of Toronto had full power and authority to enter into and make such agreement, upon the conditions and for the purpose therein mentioned, and the said Corporation was thereby autho- rized to pass any by-law or by-laws for the purpose of carrying the same into effect. Now the Corporation of the City of Toronto, by the Council thereon, enact, 1. That the said agreement hereinbefore recited shall be and the same is hereby rati- fied and confirmed— and the said Alexander Easton is hereby authorized to lay down Street Railways on King street. Queen street and Tonge street, and work the same under the conditions, provisoes, and restrictions in the said reaolntions and agreement contained, and such other regulations as are herein set forth or may from time to time be deemed necessary by said Council for the protection of the citizens of the said City of Toronto. II. That so soon as the said Railways or any of them are constructed and certified to in the manner and according to the terms of the said agreement, the said Alez- .ander Easton may commence to ran oars or carriages, and convey pasMngert thereon, and collect the fare for the same as settled by the said resolution ancl ;»greement, and fully operate the said roads. 16 MEMO. ii ; ill h : I III. Tfaat before the certificate hereinbefore referred to shall be granted, the said Alexander Easton shall sabmit to the Ooanoil of the Corporation of the City of Toronto for their approval, phe rules and regulations for the. government and ITuldance of the conductors and drivers upon the said railways, and others con- nected with -the working thereof; which said rules and regulations, when approved by the said Council, shall be posted in some oonspiouous place in each car or carriage— and no car or carriage shall be run upon any of the said railways without a copy of such rules and regulations being so placed therein. IV. That the cars and carriages of the said Alexander Easton while running on the said railways, or any of them shall have the right to use the said railways as against all other vehicles whatsoever, and all other such vehicles using the said railways, whether meeting or proceeding in the same direction as the said oars or carriages, shall turn out of the said track of the said railways and permit the said cars and carriages to pass, and shall in no case, and under no pretence whatever obstmct or hinder the passage thereof, and the free use of said railways by the said cars and carriages of the said Alexander Easton. V. Any person guilty of any infraction of any of the provisions of this by-law shall on conviction before the Mayor, Police Magistrate, or any one or more of the Aldermen of the said City, forfeit and pay a fine of not less than One dollar, nor more than Twenty dollars, such penalty to be recovered by distress and sale of the goods and chattels of the offender, or by imprisonment in case of non-pay- ment of the fine, or any part thereof not exceeding twenty -one days, — provided always that the rights conferred upon the said Alexander Easton by this By-law and the agreement hereby confirmed shall in no case be taken to prevent the Cor- poration of the City of Toronto or their grantees from crossing the railway of the said Alexander Easton by other railways traversing other streets, the provisions of the twenty -fourth resolution being first complied with, but such right to prosa the same is hereby expressly reserved. II. The original Act of Incorporation of .the Toronto Street Railway Go. is Chapter 88 of the Statutes of 1861 (24th Yiotoriie), and is as follows : ^ AN ACT TO INCORPORATE THE TORONTO STREET RAILWAY COMPANY. [Assented to 18th May, 1861.] Wbebeas Alexander Easton has, by his petition, prayed that an association under the title of "The Toronto Street Railway Company," maybe incorporated for CITY OF TORONTO v. TORONTO STREET RAILWAY CO. 17 r RAILWAY )th May, 1861.] the purpose of oonBtnioting and operating Street Railways in the City of Toronto and the Municipalities adjoining thereto. And whereas it is expedient to grant the prayer of the petitioner : Therefore, Her Majesty, by and with the advice and consent of the Legislative Connoil and Assembly of Canada, enacts aa follows : 1. The said petitioner, and certain other persons as shall become shareholders of the said company, are hereby constitated a body corporate and politic, for the purposes herein mentioned, by the name of " The Toronto Street Railway Company." Repealed by the Act 36 Vie., cap. 101, i. 7, which it printed pott at pp. HH-lii, 2. The capital stock of the company shall be two hundred thousand dollars, in share of twenty-five dollars each. Repealed by the Act 36 Vic, cap. 101, i. 7, which it printed pott at pp. Z2-M, 3. The company may commence operations and exercise the powers hereby granted, so soon as one hundred thousand dollars of the capital stock shall be subscribed and twenty per cent, thereon shall be paid up ; provided always, that no less than seven persons, "residents and ratepayers of the said City and the other Municipalities, shall be subscribers to an amount of not less than twenty thousand dollars. Repealed by the Act 36 Vic, cap. 101, t. 7, which it printed pott at pp. 28-94, 4. The company are hereby authorized and empowered to construct, complete, maintain and operate a double or single iron railway, with the necessary side tracks, switches and turn-outs, for the passage of cars, carriages and other vehicles adapted to the same, upon and along any of the streets or highways in the City of Toronto and the municipalities immediately adjoihing the limits of the said City, or any of them, and to take, transport and carry passengers upon the same by the power and force of animals, and to construct and maintain all necessary works, buildings and conveniences therewith connected. 5. The company shall have full power and authority to use and occupy any and such parts of any of the streets or highways aforesaid, as may be required for the purpose of their railway tracks and the laying of the rails and the running of their oars and carriages ; provided always, that the consent of the said City and Municipalities, respectively, shall be first had and obtained, who are hereby respectively authorized to grant permission to the said company to construct their railways as aforesaid within their respective limits, across and along, and to use and occupy the said streets or highways or any part of them for that pur'>^ pose, upon such conditions and for such period or periods as may be respectively agreed upon between the company and the said City or other Municipalitiea aforesaid, or any of them. 6. The rails of the railway shall be laid flush with the streets and highways, and the railway tracks shall conform to the grades of the same, so as to offer tb« ill! 18 MEMO. least possible impediment to the ordinary traffic of the said streets and highways ; and the Raa^e shall be such that the ordinary vehicles now in use may travel on the said tracks, which it shall and may be lawful for them to do, provided they do not interfere with or impede the running of the can of the company ; and in all cases, any carriage or vehicle coming in the opposite direction to the cars, shall be required to turn off the track. V. The affairs of the Company shall be under the control of and shall be managed and conducted by a Board of Directors of not less than three nor more than seven, each of whom shall be a stockholder to an amount of not less than one hundred dollars, and shall be elected on the first day of October of any year, at the ofQoe of the company ; and all such elections shall be by ballot, by a plurality of the votes of the stocklioldero present, each share to have one vote, and stookholders not personally attending may vote by proxy ; and the directors so chosen shall, as soon as may be, elect one of their number to be president, which president and directors shall continue in ofiico one year, and until others shall be chosen to fill their places ; and, if any vacancy shall at any time happen of the president or directors, the remaining directors shall supply such vacancy for the remainder of the year. 8. Alexander Easton, Alexander Bleekley and Daniel Smith, shall be the first directors of the company, and the said Alexander Easton the first President thereof, who shall severally hold their ofKces till the first day of October next after the 'Company go into operation. Sepealed by the Act SG Vic, cap. 101, i. 7, which i$ pritUed poit at pp. 2X-li4. 9. The directors of the Company shall have full power and authority to make, «mend, repeal and re-enact all such by-laws, rules, resolutions and regulations, «s shall appear to them proper and necessary, touching the well ordering of the •Company, the number of directors, the acquirements, management and disposi- tion of its stock, property and effects, and of its affairs and business, the enter- ing into arrangements and contracts with the said City or Municipalities, the declaration and payment of dividends out of the profits of said Company, the .form and issuing of stock certificates, and the transfer of shares, the calling of special and general meetings of the Company, the appointment, removal and remuneration of all oficers, agents, clerks, workmen and servants of the Com- pany, the fares to be received from persons transported over the railway or any part thereof, and in general to do all things that may be necessary to carry out >the eltieots and the exercise of any power incident to the Company. «M : 10. The stock of the Company shall be deemed personal estate, and shall be itransferable in such way as the directors shall by by-law direct. 11. If the election of directors be not made on the day ppointed by this Aot the Company shall not for that reason be dissolved ; but the stockholders may hold the election on any other day in the manner provided for by any by-law passed for that purpose ; and all acts of directors, until their snooessors are elected tfhal^ be valid and binding upon the Company. ■'>Aik CITY OP TORONTO v. T0R0NT0''&TKEET R »i-f %. 0. 19 12. The Company may porohase, lease, hold or acquire, and transfer any real or 49ersonal estate neoeasary for oarryin;; on the operations of the Company. 18. The directors of the Company may,, from time to time, raise or borrow for the purposes of the Company, any sum or sums not exceeding in the whole one hundred thousand dollars by the issue of bonds or debentures, in sums of not less than one hundred dollars, on such terms and credit as they may think proper, )and may pledge or mortgage all the property, tolls and income of the company, or any part thereof, for the repayment of the moneys so raised or borrowed and the interest thereon, provided always, that the consent of three fourths in value of the stockholders of the company shall ba first had and obtained at a special ro««ting to b* CJvUed and held for that purpose. 14. The said City and the said adjoining Municipalities, or any of them, and the said company, are respectively hereby authorized to make and to enter into any -agreement or covenants relating to the construction of the said railway, for the paving, macadamizing, repairing and grading of the streets or highways, and the •construction, opening pf and repairing of drains or sewers, and the laying of gas «nd \rater pipes in the said streets and highways, the location of the railway and the particular street along which the same shall be laid, the pattern of rail, the time and speed of running of the cars, the amount of license to be paid by the company annually, the amount of fares to be paid by the passengers, the time within which the works are to be commenced, the manner of proceeding with the same and the time for completion, and generally for the safety and convenience of passengers, the conduct of the agents and servants of the company, and the non-obstmoting or impeding of the ordinary traffic. 15. The said City and the said Municipalities are hereby authorized to pass the By-law or By-laws, and to amend, repeal and enact the same, for the purpose of oarrying into efiFeot any such agreements or covenants, and containing all neces- sary clauses, provisions, rules and regulations for the conduct of all parties con- oemed, and for the enjoining obedience thereto, and also for the facilitating the running of the company's cars, and for regulating the traffic and conduct of all pertona travelling upon the streets and highways through which the said railway may pass. 16. And whereas the said Corporatio:i of Toronto, on the twenty-sixth day of March, 1861, entered into an agreement, bearing that date, under the seal of the said City, with the said Alexander Easton, for the construction and operating of Street Railways within the said City, upon certain oon- ditiona therein mentioned, and among other things it was agreed that so soon as the Legislative sanction was given to the same that a By-law of the said City should be passed in accordance therewith, therefore the said recited agree- ment shall be held to be a valid and binding agreement, and that the Corporation of Toronto had full power and authority to enter into and make such agreement upon the conditions and for the purposes thereip mentioned, and the said Cor- poration are hereby*anthorized to pass any By-law or By-laws for the purpose of. oarrying into effect the said recited agreement. 17. This Aot shall be deemed a Publio Act. . I . y. . .....^Y— inm- i rnr ' "1 1 [' ■ ' "* 20 ' I MEMO. III. The Toronto Street Railway Company, incorporated by the above Act, having bonded and mortgaged their railway, and being unable to pay the accrued interest on their bonds, applied in 1869 to the Legislature of Ontario for relief, and obtained an Act (82 VictorisB, cap. 81), which is as follows : AN ACT FOR THE RELIEF OF THE TORONTO STREET RAILWAY COMPANY, AND TO PROVIDE FOR THE SALE OF THEIR RAILWAY, AND FOR OTHER PURPOSES. [Assented to 28rd Jan., 1869.] Whkreas the interest on the bonds issued by the Toronto Street Railway Com- pany, and secured by the mortgage of the said railway and other the property of the said company, to the Honourable William Cayley.as trustee for the holders of the said bonds is in arrear, and the company has also become otherwise indebted ; and whereas judgment has been recovered against the said company for a large amount, and the appointment of a receiver of tjhe income and tolls of the said company has been directed by the Court of Chancery for Ontario ; and, whereas the said railway is out of repair, and the keeping open of the railway for traffic which is of the utmost importance to the citizens of Toronto is imperilled ; and> whereas it is necessary that the said railway and its franchises should be abso- lutely sold to secure the uninterrupted working of the said railway : Therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : — 1. Notwithstanding anything in any law or statute to the contrary, it shall be lawful for the said William Cayley, mortgagee in trust as aforesaid, or any judg- ment creditor of the said company, to proceed upon his mortgage or execution against goods, as the case may be, and sell thereunder the said railway, and 7.1^ the chattels, rights, privileges and franchises q^ the said company, and t.:! tb-' %[ "I imi iM 88 MEMO. II waa provided i hat the rate should be levied ou all persona ** who should inhabit, hold, occupy, poHsess, or enjoy any houses, lands, tenements or hereditaments ; " the distinguished case on that ground from Cheltea Water Workt Co, v. Rowley ; and GoLEBiDOE, J., remarks : " When the same words oocar in different Acts having a similar object, we would endeavor to adopt the same oonstruotion in each case. The words in the local Act here are even more exclusive than those in 48 Eliza- beth, and therefore there is no reason for giving a less extensjve construction to the former than in the latter; and in Regina v, MiddUiex Watencorkt Co, {IE. & E. 720), referred to by the learned Chief Justice as apparently inconsistent with Lord Campbell's former decision, it is expressly held that the oompany^has no legal or equitable interest in the land, but the case was decided on the question of occupation merely, and in accordance with all the previous decisions under the Statute of Elizabeth. I am of 'opinion, therefore, that the property of the company referred to in this case was not liable to assessment as real estate ; and it is a satisfaction to feel, in arrivug at that conclusion, no injustice is done, as the capital stock of the com- pany in the hands of the shareholders is assessed, or liable to be assessed ; whereas, a contrary decision would render the company liable to be taxed, not only upon its capital, but also upon the iron rails and other property in which that capital has been invested. I agree, therefore, with the other members of our court, that the judgment of the court below should be reversed. Fattebson, J. : The case states — First,— Th&t the plaintiffs are the proprietors of the railway, known as the Toronto Street Eailway, situate on Yonge street, Queen street, and King street in Toronto ; that portions of the permanent way, or track, are situate on the public streets in five different wards of the City ; the meaning of which state- ment I take to be, that the three streets named are public streets, and that the railway laid on them runs into five wards. Second,— ThAi the assessment in question is in respect of the portions of Queen street, Yonge street and King street, used by the plaintiffs for the purpose of their said railway, under the provisions of the statutes and by-law set out and referred to under the third and fourth heads ; and Fifth,— ThAt the assessment was made under the Assessment Act of 18C9 for taxe» for 1878: And the question stated is : whether the said property of the plaintiffs in the said wards, or any of them was, under aU the circumstances liable to such assessment by the City, and it is stated to be agreed and admitted that unless the property could be assessed as real estate, within the meaning of the Assessment Act, It could not be assessed by the City. By real estate I understand the parties to mean " land." Section 9 of the Act» which states what property shaU be taxal^le, uses the word " land," and not the words " real estate " ; and it is by no means clear that in the Act the terms are synonymous. They were so by express enactment in 13 and 14 Vic. c. 67, and m 16 Vic, c 182. But in consolidating the latter Statute (C. 8. U. C, cap. 65, CITY OP TORONTO v. TORONTO STREET RAILWAY CO. 89 4- ■eo. 3) the form of words wai used which has been preserved in section 8 of the Act of 1869, declaring the terms "land," "real property," and "real estate," respectively, shall inolnde certain things not including the land itself, which was inolnded in the definition in 18 and 14 Vic, c. 07. The land itself must be held to be inolnded in the meaning of the word " land," but " real estate," and " real property,"— which are not now declared, or they were in the two earlier Acts, to mean the same as "land " — have a legal signification which embraces many inter- ests, to express which the word " land " is not appropriate. I do not know that the Assessment Act assumes to deal with any interests in land which require to be oxpressed by any term more comprehensive than the word " land," although the words " real estate " are often used. ■■» i' But for our present purpose it is necessary to note ih»t Land is the word used in Motion 9. " All Land and personal property in the Province shall be liable to taxation, subject to the following exemptions." The personal property of an incorporated company is by section 8B protected from assessment against the corporation ; therefore, unless the plaintiffs are assessable for " land " within the meaning of the Act, they are not assessable at all. It seems to me quite clear that by " land " in section 9 is meant the soil itself, including those things men- tioned in section 8, viz.: " All buildings and other things erected upon or affixed to the land, and all machinery or other things so fixed to any building as to form in law part of the reality, and all trees or underwood growing upon the land, and all mines, minerals, quarries and fossils in and under the same, except mines belong- ing to Her Majesty," all of which without the aid of section 8 would in law be part of the land. The absence from section 8 of all reference to estates or interests in land, and all the provisions of the Act respecting the mode of assessment, as in sections 21 to 84 ; and the provisions for the sale of lands for non-payment of taxes, make it perfectly apparent that it is the soil itself that is the subject of assessment and sale. In the case of land vested in Her Majesty, and occupied by any person otherwise than in an official capacity, sub-section 2 of section 9 provides that " the occupant shall be assessed in respect thereof, but the propei.jy itself shall not be liable ; " and section 127, providing for the sale of unpatented lands, saves the right of the Crown therein, but all other lands which are taxable are liable to be sold. Even the lands belonging to the municipality, if occupied by a tenant, are taxable and saleable in precisely the same way as the lands of any ratepayer, being excepted by sub-section 7 of section 9 from the exemptions. It J('\ i' , ■■ 'I '■ < I There is no provision for taxing or selling the term or interest of the tenant. The land is to be assessed, and therefore the land is liable to be sold. The plain- tiffs in this case are doubtless occupiers of land. The oases referred to in the judgments of the learned judges in the court below, and the later case of The PinUieo Tramway Co. v. Oreenwich, L. B. 9, Q. B. 9, cited by Mr. Biggar, have abundantly established that position. The rights secured to the plaintiffs under the statutes and by-laws set out in the case, and their ooonpation of the streets under those rights, constitute property which is doubtless of great value to them. If there was a general law that all property should be assessable for municipal purposes, 1 should have no hesitation in deciding that this was assessable pro- 40 MEMO. ij I iiili perty. The question, however, it. Is it assessable a$ landi I Sub-seotion 8 of section 9 exempts " every public road and way, or public square." The property of these defendants is only land as being part of the public street. The facts stated in the case ;ire that 'he streets in question are public streets, and that the assessment is in respect of the portions of the streets used for the purposes of the railway. If this land is taxable it is liable to be sold for nonpayment of taxes. In order to sell any right or interest, or franchise, or anything but the very land itself, some provision of law would be necessary which I do not find in the Assessment Act. Without resorting to the exemption in sub-section 6, 1 should hold that the whole scope of the Act, including the provisions for valuing land, the mode of assessment, the proceedings for the sale and conveyance of the land, and occupa- tion of it by the purchaser, 'tre so inapplicable as to show that ^his property is not taxable land ; but having regard to the exemption of every public road, there is not, in my judgment, room for further argument. The streets remain public streets, and the plaintiffs are bound to keep them in such a state as that the rail- way shall not prevent the use of the street by ordinary vehicles. What is it that is exempted by sub-section 6, the soil or the right of way over the soil ? Evidently the soil itself, because the soil alone, and not a right of way, is land, and taxable unless exempted; and because, although the word " way," or even the word " road," may be ambiguous, there is no ambiguity in the words " public square," which occur in the same aub-section. In Quelph v. Canada Co., (4 Grant, 682), the market square of Ouelph was held to be dedicated to the public, and to be in fact a " public square," although the freehold remained in the Canada Company. I apprehend that under sub-section 6 the soil of that square would be exempt from taxation against the Canada Company who owned it, and that the exemption would be confined to the public right to use the square. Then, if the soil of the street is exempt, I find nothing in the Act to say that tha portion of it is not exempt which is occupied by the plaintiff's railway, while still remaining a part of the public road, but it is to be taxed, and (as the consequence would be), to be sold in case the taxes are not paid. The case cited of CheUea Watencorkt Co. v. Rowley (17 Q. B. 358), is very strongly in point, as nnder 86 George III. cap. 6, the land tax is chargable to persons holding land or heredita- ments, and (amongst other points of resemblance), the tax is thrown on the landlord by a provision very similar to section 38 of the Assessment Act, while the Statute 42 Elizabeth, cap. 2, under which the cases as to oocupien of land are decided, throws the poor rate on the occupier personally, and not on the land. I agree in the oonolnsion arrived at by Mb. Jubtici Mobkison in the court below, and am of opinion that the judgment should be reversed. Btbono, J., concurred. Appeal dinnieied. (Appendix 210, Minutes of Council, 1876.) CITY OP TORONTO v. TORONTO STREET RAILWAY CO. 41 XXI. In Council Aid. fioustead, Moonded by Aid. Withrow, moves that inatmuoh •■ the Oounoil has deoided to reqaeit the Legislative Astembly of Ontario to amend the Muni- cipal Act, ai far aa relates to the exemption of property from taxation, and also to amend the Waterworks, Consumer's Oas Company, and Street Railway Com- pany's charters, be it resolved that the following be a committee for the purpose of preparing the necessary amendments required, and having the same submitted to the Council at as early a date as possible, viz. :— Aldermen Sheard, Withrow, Hamilton, Colwell, Adamson, Baxter, Ball, Oearing, and the mover, and that the 36th and 37th rules of this Council be diapentied with so far as relates to this motion, which was carried. (Minute No. lltO, Minutes of Council, November 8th, 187S.) XXII. To Ihe Council of the Coi-poration of the City of Toronto ; The second report of the Select Committee on Amendments. Your Coramittee have considered the amendments necessary to the Toronto Street Railway Company's and the Consumer's Gas Company's charters, and ihe " Municipal Institutions Act," and beg to report as follows :— They recommend that the following amendments be petitioned for : TORONTO STRKET BAUiWAY COMPANY. That an humble petition be presented to His Honour the Lieut.-Uovemor, and to the Legislature of Ontario, praying that they may be pleased to amend the Act passed in the thirty -sixth year of Her Majesty's reign, entitled, "An Act to remove certain doubts as to the powers of the proprietors of the Toronto Street Railway, and to incorporate them and others under the name of ' The Toronto Street Railway Company,' and for other purposes." 1. That the said Toronto Street Railway Company shall be bound to cdnstrnct and keep in good repair the roadway between the rails, and for one foot six inches outside of each rail, using for that purpose the same material and mode of construction as that which may from time to time be adopted for the remaining portion of the street by the corporation of the municipality in which the road is situate. 3. That whenever any portion of the said roadway so to be constructed and repaired by the said Company, within the limits of the City of Toronto, is not constructed or kept in repair to the satisfaction of the City Engineer, the same shall, upon notice given by said Engineer to the said Company, be constructed or repaired to the satisfaction of the said Engineer within forty-eight hours after the 4 1^ y. 42 MEMO. receipt of saoh notice, and in case, after the expiration of the said forty -eight honrs, the said Company have not taken action in accordance therewith to the satisfaction of the said Engineer, such repairs may be executed by the Corporation of the said City, and the expense thereof charged against the said Company, and in case the said Company shall refuse or neglect to pay to the Treasurer of the said City the amount of such expense for forty-eight hours after the same has been demanded in writing, the City Engineer may, by order in writing, prohibit the said Company from running any of their cars or omnibuses on the streets of the said City. Such order shall continue in force until revoked in writing by the said Gity Engineer, and for every oar or omnibus which may be run upon any of the said streets during the continuance in force of such order the said Company shall be liable to a penalty of 950, to be summarily recovered, with costs, by information before the Police Magistrate of the said oity, or any Justice of the Peace sitting for him and by his request. 3. That notwithstanding anything in the Assessment Act contained', the track and permanent way of the said Street Railway Company shall be liable to taxation in the same manner as other land, real estate and real property. m All of which is respectfully submitted. Committee Room, Toronto; 13th Dec, 1875. (App. No. 232, Minutes of Council, 1875.) In Council : — The Council resolved itself into Committee of the Whole on Reports Nos. 1 and 2 of the Select Committee appointed to draft certain amendments to the Water Works. Gas Company's and Street Railway Company's charters, etc., for submission to the Ontario Legislature, Aid. Adamson in the, chair. The Committee rose. Aid. Adamson reported Report No. 2 with amendments. [No amendments relative to this matter.— Ed,] The report was received. The amendments were concurred in. The report as amended was adopted. (Min. No. 1254, Minutes of Council, December 13th, 1876.) XXIII. In Council Aid. Stanley, seconded by Aid. Boustead, moves that " Whereas it is the intention of the citizens of Toronto to apply to the Legislature of Ontario, at its next session, for such amendments to the charter of the Toronto Street Railway Company, as CITY OF TORONTO v. TORONTO STREET RAILWAY CO. 48 will seonre to the City of Toronto aaoh protection as will compel the aforesaid Company to keep in repair that part of the roadway on which they have laid rails for street railway parposes : Beit resolved that this Council do appoint the Board of Works, His Worship the Mayor, Aid. Tamer and the mover, a Special Com- mittee, with power to act in conjunction with the Citizens' Committee, for the purposo of securinK such protection as they may 4eem advisable," which was carried. (Minute No. 906, Minutes of Council, May 29th, 1876.) ' XXIV. CiTV Solicitous' Office, Toronto, Jan. 24th, 1876". Dear Sir, — We have the honor to forward for the information of the Council, copies of the bills introduced into the House by the Corporation in reference to 1. The purchase of a portion of the Necropolis for an Eastern Park, (No. 84). 2. To amend the Waterworks Acts (No, ed before the Railway Committee of the Legis- lature their respective claims fully and at great length, and after careful con- sideration of the matters presented, the Railway Committee reported the Bill originally introduced, with several amendments. And whereas, the said Company has this evening presented to this Council a new proposition, differing from any heretofore presented to this Council, or to any of its Committees : Be it therefore resolved, that this Council is of the opinion that the Toronto Street Railway Bill now before the Legislature in the shape in which it passed the Railway Commit- tee, would be a conclusive settlement of said differences, and that this Council respectfully call on the members for this city in the Ontario Legislature, namely, the Hon. M. C. Cameron and Robert Bell, Esq., to endeavor in every legitun£t« manner to have the Bill 'pass the House without amendment, and that a copy of this resolution be forwarded to the members for the City in the Ontario Legisla- ture, and that the 26th and 27th rules of this Council be dispensed with, so far as relates ta this motion, which was oarrfed. (Minute 218, Minutes of the OoancU, Feb. 12th, 1877.) CITY OP TORONTO v. TORONTO STREET RAILWAY CO. 49 XXXI. In Oonncil : — Aid. Colwell, seconded by Aid. Oloae, movr- '-«tw^ i the Committee on Lei: «• lation have propoaed, with the consent of the OitizMis Committee, to the Streek Railway Company, that in no case where the corporation of the City of Toronto adopts any kind of permanent pavements, shall the Street Railway Company be bound to pay towards the cost of construction of their part of the roadway (being the space between their rails and one foot six inches on the ontside of each rail) more than the sum of two dollars and fifty cents per square yard ; And whereas, the said Committee, with the like consent, have also proposed that the said Toronto Street Railway Company shall have the option of construct-^ ing their portion of the roadway where any such permanent pavement is adopted or to request the said Corporation of the City of Toronto to construct the same and collect the cost thereof from the said company by an annual assessment, covering interest and sinking fund on Debentures to be issued to raise the funds for the. same, under the provisions of the Municipal Act as for Local Improvements ; Be it thertfore reaolved, that the Council of the Corporation of the City of Toronto approve and accept the said proposition, and instruct the said Committee to carry the same into effect, and that the City representatives and City Solicitors be instructed accordingly to stand by the Bill number 68 as reported by the Railway Committee, with the above provisos, and with the further concession that at the expiration of the charter of the said Street Railway Conipany, if the said corporation shall elect to assume the said railway under the provisions of th^ agreement and by-law in that behalf, the arbitrators appointed to determine the value of the real and personal property of the said company, shall also estimate as an asset of the said company the value to the said company of any permanenti pavements hereafter constructed or paid for by the said company for the balance, of the life of the said pavement ; but in such estimate the cost of keeping the, same in repair should not be considered, and that the City Solicitors be authorized to frame a clause to carry out the above resolution and insert the same in the Act now before the Ontario Legislature, and that the 26th and 27th rules of this Council be dispensed with so far as relates to this motion, which was carried. (Minute 293, Minutes of Council, Feb. 26th, 1877.) XXXII. To the Council of the Corporation of the City of Toronto : The Committee on Municipal Amendments beg to report as follows : They herewith submit copies of the several bills introduced under the ipefirQidfti^bS/ ' , of your Oooncil as follows : :''.'''''' '''' '' • • • ■ , * ' •'• 8. Bill No. J!8, An Act respecting the Toronto Street Railway Company. Your "/,'.: 50 MEMO. committee beg to report » dr»ft bill in this o»w, framed with the view to protect the rights of all parties, having regard to the original agreement and a special report is made therewith. All of which is respectfully submitted. Committee Boom, Toronto, January a9th, 1877. (Appendix No. 17, Minutes of Council, 1877.) XXXIII. To the Council of the Corporation of the City of Toronto : The Committee on Municipal Amendments beg to report as follows :-— 1. Bill No. 58, An Act respecting the Toronto Street Bailway Company, has been reported by the Bailway Committee with certain amendments, but your Committee do not think that the amendments detract anything from the value of the bill as introduced. This bill has not yet becip before the Committee of the whole House, but will probably come up on Wednesday next. . As it now stands, the rights of the city are fully protected, and the second sub-section of the first clause of the bill of last year is repealed. All of which is respectfully submitted. Committee Boom, Toronto, Feb. 6th, 1877. (Appendix No. 22, Minutes of Council for 1877.) XXXIV. To the Council of the Corporation of the City of Toronto : The Select Committee appointed to consider and report on the communication received from J. Edwards, Esq., Secretary of the Committee of Tonge Street Batcpayers, respecting the improvements on that street, beg to present their Beport No. 1. Tour Committee held a meeting on the 6th instant to consider the matter, at which '^/' '^ Citizens Committee of Yonge' street were present. A full discussion took place upon t^e^neoessity for the adoption of soqte permanent improvements on Tonge street;" ^nd on behalf of the ratepayers on that street the citizens committee stated : That it is their, desire to have a permanent roadway laid down this year (provided the connections of the drains, water and gas oan be laid and sniBoiently -'( CITY OF TORONTO v. TORONTO STREET RAILWAY CO. 51 settled), or as soon thereafter aa possible, on such terms and in snoh manner as the Oonnoil may determine ; and they stated further that the residents on Yonge street would prefer that the Street Railway Company should lay down a double track on that street in preference to a single track with switches. Tour Committee would therefore recommend that the Board of Works be instructed to see that the curbing and catch water basins be proceeded with under the existing contract, and that the City Engineer see that all the connections of gas and sewers are made at the earliest moment, under the provisions of the new law, and that the Mayor be requested to use his influence with the Water Com- missioners, with the view that all water main connections be made. All of which is respectfully submitted, Toronto, April 9th, 1877. (Appendix No. 78 to Minutes of Council, 1877.) In Council : — The Council resolved itself into Committee of the Whole on the report of tire Select Committee appointed to consider the question of proposed improvements on Yonge street. Aid. Cornell in the chair. The Committee rose. Aid. Cornell reported that the Committee had adopted the report with an amendment, adding the following as an additional clause : " Tour committee would also recommend that the Council urge upon the Street Railway Company the necessity of placing a double track on Tonge street.'* The report was received. The amendment was concurred in. The report, as amended, was adopted! (Minute No. 507, Minutes of Council, April 16th, 1877.) XXXV. To the Council of the Corporation of the City of Toronto : The Committee ou Works beg to present their Report No. 8. . Tour Committee having had under consideration a street railway route for the north-western section of the City, have adopted the following 'as that best calcu- lated to sooommc late the residents through which it passes as well as the public generally. It is as follows : " Commencing at Bathurst street, along College street. Brook street, King street, Simooe street and Front street to the City Hall." m H 1!* 1 J BJEMjgfcmk ■ '-■fl ^ ^ii^^H 52 MEMO. They would also reoommend that the kind of nil nied in the original charter b» the deioription to be laid in all extensions of the street railway. All of which is reapectfnlly submitted, Office of the Committee of Works, Toronto, July 8rd, 1877. (Appendix No. 198 to Minutes of the Council for 1877.) I In Ooanoil : — The Council resolved itself into Committee of the Whole on Reports Nos. 8 and 4 of the Committee on Works, Aid. Smith in the chair. The Committee rose. Aid. Smith reported that the Committee had adopted the reports without amendment. The report was received. The reports were adopted. (Minute No. 889, Minutes of ConncU, Jnly 5th, 1877.) XXXVI. In Council : — Aid. Blevins, seconded Aid. Small, moveu that His Worship the Mayor, and other proper officers in that behalf, do transmit and deliver to the Toronto Street Bailway Company a notice in pursuance of section 24 of By-law No. 858, that other parties propose to construct railways on streets in this city not occupied by the said Toronto Street Bailway Company, and to whom the privilege of the said section was granted in accordance and compliance with the said section, and that the 26th and 27th rules of this Council be dispensed with, so far as relates to this motion, which was carried. (Minute No. 1161, Mmntes of Council, September 2nd, 1878.) XXXVII. In Council : — Aid. Winchester, seconded by Aid. Denison, moves that the City Engineer be and is hereby authorized 1o ta^ the necessary steps to compel tiie Toronto Street Bailway Company forthwith to run their line of oars or an omnibuB on Queen street west from Manning Avenue to Dondas street, and that the 36th and 87th rules of this Council be dispensed with so far as relates to this motion, whioh waa carried. (Minnte No. 1416, Minutes of Ooanoil, Dec. and, 1878.) CITY OP TORONTO v. TORONTO STREET RAILWAY CO. 6« .'* XXXVIII. In Coanoil : — Aid. Hallam, teoonded by Aid. B»ldwin, movea tha| the City Engineer, OUy Com- miuionerand the City Solioiton be inetruoted to enforce the law at onoe affecting the Street Railway Company as far as it relate* to the snow on the streets, which was carried. (Minute No, 86, Minutes of Council, January 20th, 1879.) .■rf XXXIX. In Council : — Aid. Soarth, seconded by Aid. Small, moves that the City Solicitors be instructed to take immediate measures to prevent the Street Railway Oompaay from carry- ing in each car more passengers than such car is seated for, which was carried. T^^^?* ,if jRj;/ "W- '^V ' wt*"^' r' ■'^^m' ' \ '* lljif 54 MEMO. Aid, Winohester, neoomled by Aid. FIeminf{, in Amendment moves that the words " and Qneen street " be inserted after the words " King street " wherever the same ooonrs in the foregoing motion, wliioh was carried. Upon the question that the original resolution as amended be adopted, it wa» carried. (Minute No. 817. Minutes of Council, August lUh, 1870.) XLII. Report No, 80 of the Committee on VTorki, Your Committee beg to recommend that the City Engineer be instructed to notify the Toronto Street Railway Company to extend their track westward on King and Queen streets to the Exhibition Grounds. Committee Room, Toronto June 8rd, 1870. (Appendix No. 452, Appendix to Minutes of Council, 1870.) (The foregoing was adopted in Council by Minute G68, Minutes of Council, June 16th, 1870.) XLIII. Eeport No. 25 of the Committee on Works. The Committee on Works beg to recommend that the City Engineer be instructed to notify the Toronto Street Railway Company to extend their track on titrachan Avenue, from King Street to the railway crossings. Committee Room, Toronto, August 11th 1870. (Appendix No. 504 to Minutes of Council, 1870.) Report adopted in Council, (Minute 838, August 26th, 1870.) XLIV. In Council : — Aid. Lobb, seconded by Aid. Adamson, moves that in view of the constantly in- creasing requirements of the east end of the city, the Street Raifway Company be requested to extend their line from Sherbonme street by Qneen to Parliament, up Parliament to Oerrard, thence to River street, as calculated to afford more easy means of access to other parts of the city ; and Also that they be further requested to extend their line from Parliament along Winchester as far as com- patible with their existing general arrangements as to time, which was carried. (Minute No. 603, Minutes of Council, June 22nd, 1880.) CITY OF TORONTO v. TORONTO STREET RAILWAY CO. fitt XLV. In Council : — Aid. Wftlker, Moonded by Aid. MoMarray, moves that notice ba given to tht. Toronto Btrret Railway Oompany, under the seal of the Corporation o{ the City of Toronto, reqairing them to complete their lino of street railway from York street along Front to Simooe street, and along Bimooe street to King street, in accordance with the terms of the original agreement to constrnot the line from the Union Station along Bimooe street to King street, and thence to Brock street, and along Brock Street and Spadina avenue to College street, thence to Bathurst street, which was carried. (Minute No. 788, Minutes of Council, June 28th, 1880.) ■ XLVI. Report No. 35 of tht Committee on Worki, The Committee on Works beg to report the receipt of a petition from Angus Morrison, Esq., and others, praying that the street railway track on Front street be extended to Bathurst street, and beg to recommend that it be constructed, and that the City Solicitor give the Toronto Street Railway Company the proper notice required by statute. Committee Room, Toronto, Novettiber 2nd, 1880. h">< In Council : — The Council resolved itself into Committee of the Whole on Export No. 42 of the Executive Committee, Aid. Baldwin in the chair. The Committee rose. Aid. Baldwin reported that the Committee had adopted the report with an amendment striking out the clauses in the report by the Executive Committee referring to the exemption from taxation of the property of the Dominion Bolt Company for the purpose of referring the matter back tc the Committee for further consideration. The report was received. The amendment was concurred in. The report as amended was adopted. (Minute 1136, Minutes of Council, Nov. 8tb, 1880.) ' ' r ■m If . «6 MEMO. XLVII. In Council : — Aid Garlyle, seconded by Aid. Fleming, moves that the City Solicitor be instraot- ed to report at the next meeting of this Cooncil what has been done with reference to the action taken by the Oas and Street Railway Companies to resist the col- lection of taxes on the aBseasmeut made on them for 1879, which was carried. (Miuute No. 288, Minutes of Cooncil, Feboary 24th, 1881.) XLVIII. In Council : — The following communications were read. From the City Solicitor, respecting the assessment and taxation of the mains and tracks of the Oas and Street Bailway Companies. (Mmute No. 327, Minutes of Council, March 7th, 1881.) XLIX. In Council : — His Worship the Mayor also stated that, acting on the advice of the City Solicitor, he had instructed him to file a Bill in Chancery to restrain the Toronto Street Bail- way Company from breaking up the streets of the City without the prvvions consent of the Council. (Minute No. 400, Minutes of Council, il%nh 24th, 1881.) ''tar L, In Council : — Aid. Boustead, seconded by Aid. Hallam, moves thai the action of His Worship the Mayor in applying for an injunction to restrain the Toronto Street Bailvfay Company from breaking up Church street and construotin^ a railway thereon be and is hereby approved of, and that the suit be continued, and that the 26th and 27th rules of this Council be dispensed with so far as relates to this motion, which was carried. ' (Minute No. 423, Minutes of Com^cU, March 24th, 1881.) CITY OF TORONTO v. TORONTO STREET RAILWAY CO. 67 m !<-' ■-^^^^B®'*? LI. In Council : — Aid. Lobb, seconded b> Aid. Taylor, moves ' that in view of the fact of a notice having been given to the Torontb Street Railway Company on the 22nd Jime, 16£0, to extend their tracks from Sherbourne street along Queen street and up Parliament street to Gerrard street, thence to Biver street, and from Parliament down Winchester to Sumach street, and that the above notice was duly acknow- ledged by the said Toronto Street Bailway Company on the 5th July, 1880, that it be an instruction to the Committee on Works to have the resolution of the Council carried out by the 'mmeiiate prosecution of the work, and that the 26th and 27th rules of this Con )il be dispensed with so far as relates to this motion, which was carried. (Minute No 668, Minutes of Council, May 2nd, 1881.) LII. In Council : — Aid. Kent, seconded by Aid. Bonstead, moves that the Toronto Street Bail- way Company be requested to have placed on each side of each oar, in as conspic- uous a manner as possible, the names of the several streets forming routes traversed by the aforementioned railway, which was carried. (Minute No. 607, Minutes of Council, May 12th, 1881.) LIII. In Council : — Aid. Sallam, seconded by Aid. Love, moves that whereas it is desirable to have transfer tickets on any two routes on the Toronto Street Bailway Company, and that such transfer tio^ts be not more than two cents, be it resolved that this Council open negotiations through the City Solicitor with the Toronto Street Bailway Company to effect this arrangement within one month from the Ist Octo- tber, which was carried. (Minute No. 106S, Minutes of Council, October 10th, 1881.) :"v ■■ ';' fi\ ^■'^?' '■'■'y\: ."..,> -.y- ' {^ffil •^ ■' 'y V «'^ w" •s .» f-A "IS •* ■'- .>« ::;» LIV. In Council :- Aid. ELent, aeoonded by Aid. Baxter, moves that the Toronto Street Bailway Com- pany be commoniosted with by the City Clerk, asking the names of the streets 6 ■fa 68 MEMO. traversed and forming the different routes thronghout the City, which ^as carried. (Minute No. 1261, Minutes of Council, December 27th, 1881.) LV. Report No. 4 of the Committee on Wurkt. Your Committee have further considered the petition of the Metropolitan Street Railway Company and the Engineer's report thereon, and beg to recommend that the following route be constructed, and also that the City Solicitor be instructed to give the Toronto Street Eailway Company the necessary notice : Commencing at the intersection of Bathurst street and Wellington avenue ; thence along Wellington avenue to Strachan avenue, along Strachan avenue to Exhibi- tion road, and along Exhibition road to a jog in that road oast of the gates of the grounds. Your Committee further recommend that the Toronto Street Railway Company be notified to extend their lino' on College street from Bathurst street to Hope street. , Committee Boom, Toronto, February 17th, 1881. (Appendix 79 and 80 to Minutes of Council, 1881.) f-i ♦ In Council : — The Council resolved itself into Committee of the Whole on Beports Nos. 4 and 5 of the Executive Committee, Aid. Davies in the chair. The Committee rose. Aid. Davies reported that the Committee had adopted report No.- 18 with an amendment, striking out report No. 4 of the Committee on Works respecting the construction of a street railway on Wellington and Strachan avenaea and inserting the following in lieu thereof :— " Commencing at Welling- ton aVenne on Strachan avenae, thence along Strachan avenue to Exhibition road, and along Exhibition road to a jog in that road east of the gates to the grounds." The Report was received. The amendment to Report No. 4 of the Committee on Works was concurred in. Report No. 4 as amended was adopted: " Minute No. 266, Minutes of CoanoU, Feb. 2lBt. 1881.) CITY OP TORONTO v. TORONTO STREET RAILWAY CO. 69 LVI. Heport No. 9 of the Committee on Worke. i ■\ The Committee on Works beg to report that they have received a petition pray- ing that [the street railway be extended on Dnndas street, from Qaeen street to Dnfferin street, and the City Engineer having reported favorably thereon, yoar Committee recommend that thesame be constructed, and that the City Solicitor be inatmcted to give the Toronto Street Railway Company the necessary legal notice. Committee Booms, Toronto, March 2nd, 1881. {Appendix 122 to Minutes of Council, 1881.) la Council : — The Council resolved itself into Committee of the Whole on Report No. 7 of the Executive Committee, Aid. Irwin in the chair. The Committee rose. Aid. Irwin reported that the Committee had adopted the Report without amendment. The Report was received. The Report was adopted. (Minute No. 353, Minutes of Council, March 7th, 1881.) \ '; 1 i 1 ? ■ h' ■d iiv LVII. Report No, 9 of the Committee on Worke, §Mv' The following oommnnioation from the Toronto Street Railway Company is sub- mitted for the consideration of the Council : " OrncK OF THE ToBONTO Stbbxt Rulwat Cohpaht, Corner King and Church streets, Toronto, 14th March, 1881. iZ. J.'Bnmgh, E$q,, City Engineer, Toronto: Too are hereby notified that it is the intention of the Toronto Street -Railway Company to commenoe the oonstmotion of a street railway at the expiration of ten days after the delivery of this notice on the following streets : , From Bloor street, along Oborch to Queen street, thence to Jarvis street, do\m Jarvis to Adelaide street, thence to the City Hall, oommencing at Bloor street. mi^ 'm j^f'iij^-s^nitijjtf W^^ 60 MEMO. •■»■'«.■■■ iis.-'ii Also Ghoroh street from Queen street to King street, oommenoing at Qaeen street. Also from Church street along Carlton to Sherbourne street, commencing at Church street. Fbank SMrrH, - James Ocnn, President. Secretary." • • • • Committee Boom, Toronto, March 15th, 1881. (Appendix 169 to Minutes of Council, 1881.) LVIII. To the Council oj the Corporation of the City of Toronto : The Committee on Works beg to submit their Report No. 18 : The Committee on Works beg to report that they have received a communication from the Honorable Frank Smith, President of the Toronto Street Railway Com- pany, asking permission to extend their lines so as to connect with their stables on Front street east. Your Committee have carefully considered the same, and beg to recommend that permissioti be granted to construct a line on ]f rederiok street, from King to Front street, thence along Front street to the stables ; and that the City Solicitor be instructed to give them the necessary notice. Committee Boom, Toronto, 19th April, 1881. (Appendix 289 to Minutes of Council, 1881.) In Council : — The Council resolved itself into Committee of the Whole on Report No. 18 of the Committee on Works, Aid. Ball in the chair. The Committee rose. Aid. Ball reported that the committee had adopted the report without amendment. * The Renort was received. The Report was adopted. (Minute No. 621, Minutes of CouloU, 1881.) iv^.aj'j^ CITY OP TORONTO v. TORONTO STREET RAILWAY CO. 61 -'■I ,1, '■ LIX. Report No. 15 of the Committee on Works, A petition has been received from the Toronto Street Bailway Go npany asking permission to extend their lines so as to make connection with their oar sheds on Front street east, and it is recommended that they be permitted to lay a single line on Front street, from the intersection of Church street along Front street to the sheds. * mt\ Committee Boom, Coronto, April 26th, 1881. (Appendix 331 to Minutes of 1881.) LX. To the Council of the Corporation of the City of Toronto : ,/• The Executive Committee beg to submit their Report No. 16 : Your Committee have had before them the following reports of committees, and , submit the same for the consideration of the Council, subject to the exceptipnB taken : Beport No. 16, of the Committee oh Works and Accounts and Recommendations embodied therein. Tour committee recommend that the clause of the above report recommending that the Toronto Street Bailway Company be permitted to lay their track on Front street, from Church street to their car sheds on Front street east, be re- committed, with a view of ascertaining whether Qeorge street would be as accept- able for the purposes of tt^e cempany as Front street. Committee Room„ Toronto, April 28th, 1881. (Appendix 329 to Minutes of Council, 1881.) The Council resolved itself into Committee of the Whole on Beport No. 16 of the Executive Committee, Aid. Bell in thb chair. The Committee rose. Aid. Bell reported that the Committee had adopted the ' report with amendments striking out the clause in the report of the Exeontii^ Committee, referring to the laying of a street railway track on George street ; and adding to the end of the clause in Beport No. 15 of the Committee on Works, re- ■i i » ' iMi 4..L' 68 MEMO. oommending that the Street Railway Oompany be allowed to construct a track on Front street, from Ohnroh street to the company's stables, the words, " snbjeot to snob special restrictions as will be imposed upon the company by the Committee on Works." The report was received. The amendments were concurred in. Upon the question that the report as amended be adopted, it was carried. (Minute No. 569, Minutes of Council, May 22nd, 1881.) LXI. To the Council of the Corporation of the City of Toronto : • The Committee on Works beg to submit their report No. 22 : Your Committee beg to recommend that the following extensions be made to the Toronto Street Railway system, and that the City Solicitor be instructed to give the Toronto Street Railway Company the necessary legal notice required by statute : Ist. On Church street, froom Bloor to King street. 2nd. On Wilton avenue, from Sherboume to Parliament street ; thence along Parliament to Gerrard street ; thence along Oerrard street to River street. 3rd. On Winchester Stre^, from Parliament to Sumach street. 4th. On Front street, from York to Simcoe street ; thence along Simcoe to Queen street, and along the existing lines on Queen street to William street ; thence along William street to Caer Howell street, and along Caer HowuU street to McOaul street ; thence along McGaul to College street. 5th. On Spadina avenue, from College to Bloor street. 6th. On Bathurst street, from King to Bloor street. 7th. On Dundas street, from Queen to Dufferin street. 8th. On Strachan avenue and Exhibition road, from the railway crossings to Exhibition gates, the railway to be laid on the south side of the Exhibition road. Your Committee, in recommending the extension of the above routes, beg to sub- mit the following extract from a communication received from the President of the Toronto Street Railway Company : "With reference to the laying of the Church street track, should the necessary permission be given to proceed immediately with the construction of the track. on this street, we are willing in this instance to obviate the suggested dilUoulty with regard ^ future reconstruction of the Church street sewer by undertaking the sole expense of relaying the track upon Glmrch street, should such relaying be rendered necessary by the reconstruction of the sewer, which your Gommittco contemplates. CITY OF TORONTO v. TORONTO STREET RAILWAY CO. 68 " With regard to the isBoe of transfer tiolcets, I am prepared on behalf of the Company to say that Buoh tickets, good for any two routes, will be issued at a rate not to exceed eight cents each, as soon as the necessary arrangements can be made, say within one month." Committee Room, Toronto, May 80th, 1881. (Appendix 466 to Minutes of Council, 1881.) In Council : — The Council resolved itself into Committee of the Whole on Report No. 22 of the Committee on Works — Aid. Lovo in the chair. The Committee rose, Aid. Lovo reported progress, and asked leave to sit again. The report was received and leave granted accordingly. Aid. Baxter, seconded by Aid. Lobb, moves that the Council do again forthwith resolve itself into Committee of the Whole on Report No. 22 of the committee on works, upon which the yeas and nays were taken as follows : Yeas— Messrs. Baxter, Bell, Crocker, Davies, Farley, Irwin, Lobb and Walker — 8. Nats— Messrs. Ball, Boswell, Boustead, Carlyle, Clarke, Denison, Evans, Flem- ing, Lake, Love, Mitchell, Ryan, Steiner, Taylor and Trees — 15. Decided in the negative by a majority of 7. (Minute No. 689, Minutes of Council, May 30th, 1881.) LXII. Aid. Denison, seconded by Aid. Farley, moves that prior to the passing of Report No. 22 of the Committee on Works the City Solicitor be instructed to give his opinion in writing as to whether conditions can in any case be imposed upon the Toronto Street Railway Company where new lines are to be laid, and that the 33rd and 85th Rules of this Council be dispensed with so far as relates to this motion, which was carried. (Minute No. 691, Minutes of Council, May 30th, 1881.) Lxni. At the meeting of CoiiQoil> June 6th, 1881, the following communications were read: 1' From the City Solicitor, giving an opinion as to the power of the Council to impose new conditions upon the Toronto Street Railway Company, where new lines are to be laid down. (Minute No. 700, Minutes of Council, June 6th, 1881.) • \\\ I A U-V 64 MEMO. LXIV. 1 WSBiS,!' IWM^' f y hi BBHK jj. f 2> ^ fflBHl ■f In Council : — Aid. Lobb rose to a question of order, for the purpose of obtaining the ruling of the presiding officer as to whether the clause in the Report No. 22 of the Com- mittee on Works, with reference to the extension of the street railway along Wilton avenue. Parliament. Gerrard and Winchester streets is in order, in view of the previous action of the Council in the matter. The presiding officer ruled the cIru; ^ in the report out of order inasmuch as the Council, by resolution passed on the . nd of May last have already decided upon the routes for the extension of the street railway in the north eastern portion of the city. The ruling of the Chair was appealed from. Upon the question that the ruling of the Chair be sustained, the yeas and nays were taken as follows : Teas— Messrs. Bell, Boswell, Boustead, (Jroiker, Davies, Fleming, Kent, Lake, Lobb, Love and Ryan — 11. Nays — Messrs. Adamson, Blevins, Carlyle, Clarke, Steiner and Walker — 6. Carried in the affirmative by a majority of 5. The Council resumed Committee of the Whole on report No. 22 of the Committee on works. Aid. Love in the chair. The Committee rose. Aid. Love reported progress, and asked leave to sit again. The report was received and leave granted accordingly. (Minute No. 734, Minutes of Council, June 13th, 1881.) The Council resumed Committee of the Whole on report No. 22 of the Committee on works, Aid. Love in the chair. The Committee rose. Aid. Love reported that the hour of 11 o'ck)ck had arrived. The report was received. The Council adjourned. (Minute Noi 737, Minutes of Council, June 13th, 1881.) LXV. Aid. Baxter, seconded by Aid. Farley, moves that the Council resume Committee of the Whole on report No. 22 of the Committee en Works. Aid. Hallam, seconded by Aid. Carlyle, in amendment moves that this Council do now adjourn, which was lost. CITY OF TORONTO t^. TORONTO STREET RAILWAY CO. 66 Upon the qaestion that the resolution of Aid. Baxter be adopted, it was carried. The Council resumed Oommittee of the Whole on report No. 22 of the Committee on Works, Aid. Baxter in the chair. The Committee rose. Aid. Baxter reported no quorum. The Council adjourned for want of a quorum. i^wrm I < LXVI. The Council resumed Committee of the Whole on report No. 22 of the Committee on Works, Aid. Love in the chair. The Committee rose. Aid. Love reported that the Committee had adopted the report with amendments, striking out the clause providing for the construction of a street railway on Church street, with a view to the same being referred back to the Committee on Works for further consideration ; striking out the second and third clauses of the report referring to t!ie construction of a railway on Wilton Avenue, Parliament, Gerrard and Winchester streets; striking out the words " thonco along Simcoe to Queen street " in the fourth clause; and striking out the whole of the other portion of the same clause with a view to the same being referred back to the Committee on Works for reconsideration, and for the purpose of considering the question of connecting the railway stations and the Queen's Park by street railway; and inserting the following as an additional clause : "That the Street Railway Company be called upon to construct a railway from the junction of King and Queen streets westward from the said place along Queen street to the intersection of Queen and Yonge streets ; and in the event of a street railway being constructed on Queen street, east of Parliament street, and the city constructing a sewer on that street afterwards, the Street Railway Company be required to take up the tics, rails and track, and relay the same at the expense of the Company after the construction of such sewer. The report was received. Upon the question that the report as amended be^adopted, Aid. Steiner, seconded by Aid. Carlyle, in amendment moves that the report as amended be not now adopted, but that it be referred back to the Committee on Works, with a request that they will negotiate with the Company with a view of procuring a new agreement with the company, in which it shall be stipulated that the clause in their charter binding the City to purchase the assets of the Company at an arbitration valuation, shall not apply to the new assets to be created by the laying of the new lines of rails, nor to any plant or rolling stock which the Com- pany may acquire by reason of the new extensions, and in which it shall also be stipulated that the Company shall also pay taxes on snch new rails, plant and rolHng stock, and increased license fees on such new rolling stock, the amount thereof to be hereafter determined by this Council, upon which the yeas, and nays were taken as f ollowa : mi. pil fi I. 66 MEMO. Yhas— Mesiri. AdamBon, Gartyle, Clarke, Love and Stelnor— 6. Nayh— MesarB. Baxter, Boll, Blovina, Boustead, Crocker, Evans, Fleming, Kont, Lake, Lobb, Ryan and Walker— 12. Decided in the negative by a majority of 7. Upon the question that the report as amended be adopted, Aid. Walker, Beconded by Aid. Ryan, in amendment raovos that the report us amended be not now adopted, but that it bo further amended by atrikint; out the amendmontB to tho fourth clause, respocttug the construction of a street ruilwnV on Front, Simcoe, William, Oaor Howell, and MoCaul streets, and that the clausd. as originally reported, be referred buck to tho Coramitt'j3 on Worki for reconsid- eration, which was carried. Upon the question that the report as amended be adopted, Aid. Baxior, seoondol by Aid. Lobb, in iimendment moves that tli6 report an amended be not now adopted, but that the clause struck out in Committee of tlio Whole, raspsoting tho construction of a street railway on Church street, be re- inserted, upon which the yeas and nays were taken as follows : Yeas— Messrs. Adamsor, Baxter, Bell, Blovins, Crocker, Fleming, Kent, Lobb, Ryan and Walker — 10. N.us -Messrs. Boustead, Carlyle; Clarke, Evans, Lake, Lovo and Stoinor — 7. Carried on the affirmative by a majority of 3. Upon the question that tho report as amundo.l bo adopted. Aid. Clarke, seconded by Aid. Steiner, in amendment moves that the report h.s amended be not now adopted, but that it be further ameuded by striking out tlio words " the necessary legal notice required by statute," in the first clause, and, inserting the following in lieu thereof : " notice that tho corporation is prepared to enter into an agreement for the construction of the street railways here recom- mended, on such tsrms and ci^nditions as may bs agreed upon between tho company and the City Engineer, and approved of by this Council," upon which the yeas and nays were taken as follows : Yeas — Messrs Carlyle, Clarke, Love and Steiner--!. ' Nats— Messrs. Adamson, Baxtar, Ball, Blevins, Boustead, Crocker, Evans, Fleming, Kent. Lake, Lobb, Ryan and Walker — l.S. Decided in the ne.ative by a majority of 9. Upon the question that the report as am3ndod b3 adopted, Aid. Blevins, seconded by Aid. Adamson, in amaniment moven that the report as amended be not now adopted, but that it ba further amended by striking oat the amendment inserted in Committee of the Whole respecting the construction of a street railway on Queen street east, with a view to the sama bein^ referred to the Committee on Works for its consideration and report thereon, upon' which the yeas and nays were taken as follows : ^ CITY OP TORONTO v. TORONTO STREET RAILWAY CO. 67 ..M Yeas— MeMN. Adamson, Blevini, Cwlyle, Clarke, Lake, Love, Steiner and Walker— 8. ' Nats— Measrs. Baxter, Bell, Boustead, Crocker, Evans, Fleming, Kent, Lohb and Ryan~0. Decided in the negative by a majority of 1. Ui>on the question that the report as amended ^ adopted, it was carried. (Minute No. 810, Minutes of Council, July 8th, 1881.) LXVII. Report No. 30 of the Committee on IVorki. Tho Committee on Works bog to rocommend that the rail {upechii'n laid on the table) be adopted, and be laid on all roads to bo hereafter occupied by the Toronto Strfet Railway Company until othenvise ordered, and hci.ceforth no rail not in accordance with this pattern shall bo allowed by the ptopci- officers of the corpor- ation to be laid on anv street. ^m. I (I ■ '■:* Committee Room, Toronto, August 3rd, 1881. (Appendix 06'2, to Minutes of Council, 1881.) In Council : — The Council resolved itHelf into committee of tho whole on Report No. 29 of the Executive Committee, Aid. Crocker in the chair. The Committee rose. Aid. Crocker reported that the Committee had adopted the report without amendment. Tho report was received. ' » » • • • ■ Upon the question that tho report be adopted it was carried. (Minute No. 010, Minutes of Council, Augubt 22nd, 1881.) LXVIII. Jlvport No. 34 of tlte Committee on Works. The Committee on Works beg to recommend that the following extensions bo mado to the Toronto Street Railway system, and that the City Solicitor be instructed to give the Toronto Street Railway Company the necessary legal notice, the rail to be used on this route to be tho same as recommended in Report No. 80 of the Committee on Works : .■•"--, V 66 MEMO. Gommenoiug at the interaeotion of York and Front itroetB, thence northerly along York to Queen, thenoe along Queen to William, thenoe up William to Gaer Howell, and along Gaer Howoll to MoCaiil, thence north along MoGaul to College, and along Gollege to Spadina Avenue, thence along Spadina Avenue to Bloor street. Gommitteo Room, Toronto, Sept. 2l9t, 1881. (Appendix 730 to Mi'iutea of Council, 1831.) In Council : — ■ •*. The Gounoil resolved itBclf into a Gonimittooof the Whole on Reports Nob. 84, 35, and 30 of the Eveoutivo Committee, Aid. Crocker in the chair. The Committee rose. The Mivyor liavinj^ arrived took the oliair. Aid. Crocker reported that tlio committee had adopted the Report No. 31 with amendmoiiU, striking out that portion of the second clause of Report No. 84 of the Committee on Works with respect to the construction of iv street railway on York street, with a view to the same being referred back to the Committee for further consideration. The report was received. Upon the question that Report No. 04 an araondod be adopted. Aid. Baxter, seconded by Aid. Clarke, in amendment moves that the report as amended be not now adopted, but that the clause in Report No. 84 of the Commit- tee on Works, respecting street railway extension, struck out in Committee of the Whole, be re-insortod, upon which the yeas and nays were taken as follows : Yeas— Messrs. Adamson, Baxter, Blevins, Boswell, Clarke, Crocker. Denison, Evans, Irwin, Kent and Lobb — 11. Na^s— Messrs. Ball, Boustetid, Carlyle, Da vies, Parley, Fleming, Hallam, Love, Mitchell, Steiner, Taylor and Trees — 12. Decided in the negative by a majority of 1. Upon the question that Report No. 34 as •amended be adopted, it was carried. (Minute No., 994, Minutes of Council, September 27th, 1881.) LXIX. Report No. 35 of the Committee on Works, The Committee on Works again reoommantled that the Toronto Street Railway system be extended by adopting the route as contained in the 84th report of your committee, viz. : commencing at the intersection of York and Front street, thence northerly along York to Queen, thenoe along Queen to William, thenoe up William • w* CITY OF TORONTO v. TORONTO STREET RAILWAY CO. 69 to Caer Howell, and along Caer IIowoll to MoCaul, tlionco north alun^ MoCaul to Gulle({e, and along Culletje to Bpadina avenuu, tbenco along Spadinn avenue to Dloor street. : I' Committee Room, Toronto, Boptembor 2flth, 1881. (Appendix 770 to Minutes of Council, 1881.) . LXX. Report No. 36 of the Committee on Worhi. The Committee on Works, since the considoration of their last report, have received a petition against the construction of a street railway on Caer Howell street, and beg to submit the following information for the consideration of the Council, and ask that it be taken up m connection with Roport No. 8C : There are ten owners of property on both sides of Caer Howell street, from MoCaul street to William street, their aggregate assessments being 916,'256. Of these, five representing an asBossmont of 97,010, petition against the construction of the railway. There are also Ave tenant^ within the above distance, and four of these have peti- tioned against its construction. Your Committee submit a plan showing the above respective positions of the properties on Caer Howell street, within the above limits, their frontages and assessed values, as taken from the last (1882) assessment roll. Committee Boom, Toronto, October 4th, 1881. (Appendix 784 to Minutes of Council, 1881.) * In Council :— The Council resolved itself into a committee of the .whole on Report No. 30 of the Executive Committee. Aid. Baxter in the chair. The committee rose. Aid. Baxter reported progress and asked leave to sit again for the purpose of obtaining the ruling of His Worship the Mayor as to whether an amendment by Aid. Steiner referring back to the Committee on Works the clause in the Report No. 8S of that committee, respecting the extension of the street railway in the north-western part of the City, with instruotiona to negoti- ate with the Street Railway Company with the view to an amendment of their charter in respect to the purchase by the City in 1891 of the assets of the com- pany, the asaesBmeut of the company for a share of the cost of block pavement on certain streets traversed by their cars, and other matters, was in order. The report was received and leave granted accordingly. His Worship the Mayor ruled that the amendment was not in order. The Oonncil resumed Committee of the Whole on the report. Aid. Baxter in the chair. ■ •'': '^'i^ m-Av\ m--- r (Minute No. 1041, Minutes of Council, October lOtii, 1881.) CITY OF TORONTO v. TORONTO STREET RAILWAY CO. 7 1 ■ 4-'1 LXXI. AUl. Evans, seconded by Aid. Denison, moves that whereas it has been ascer- tained that Renfrew street is about to be opened ap northerly to meet McGaul street, with which it will form a line of street running direct from Queen street to College street, anu whereas, the first clause of the 35th Report of the Committee on Works, which was amended in committee of the whole on the 10th day of October last, was so modified in Council as to deprive the north-western part of the city of the street car accommodation which was expected to result from it, if not to leave the route practically undetermined : Be it therefore resolved, that the Committee on Works be requested to reconsider the question of street car exten- sion to the north-west of the City, with the view of recommending a route which will at once furnish the desired accommodation to the public, and at the same time avoid the danger and inconvenience which are feared if a line should be carried through such a narrow thoroughfare as Caer HoWell street, which was carried. (Minute No. 1171, Minutes of Council, Nov. 2Sth, 1881.) LXXII. Report No. 48 of the Committee on Works, Your Committee have had before them the resolution passed by the Council on the 28th instant, requesting them " to reconsider the question of street car accom- ino4ation to the north-west of the city with a view of recommending a route which will at once furnish the desired accommodation to the public, and at the same time avoid the danger and inconvenience which are feared if a line should be car- ried through such a narrow street as Caer Howell Htreet." After fully considering this question, and in view of the difficulty in securing an entirely, new route firom the City Hall to the north- western portion of the City that will be satisfactory to the public generally, your committee have deoi Jed to recommend the Council to postpone any action in the matter until next year. Committee Room, Toronto, November 30th, 1881. (App. No. 915, Minutes of Council, 1881.) In Council : — ■ The Council resolved itself into Committee of the Whole on Report No. 47 of the Executive Committee. Aid. Ryan in the chair. The Committee rose. Aid. R>an reported the Committee had adopted the report with amendments. (None relating to etreet railway.— Ev.) The report was received. The amendments were concurred in. Upon the qnestion that the report as amended be adopted, it was carried. (Minutes of Ccuncil, Minute No. 1196, Deo. 5th, 1881.) ':^ m^^-' 72 MEMO. LXXIIL Report No. 17 of the Committee on Works. Your Committee beg to recommend that the City Solicitor be instructed to give the Street Bailway Company the necessary legal notice to construct lines of railway on the following ^streets, viz. : Ist. Spadina avenue, to connect the line already existing, thence northerly to Bloor street. 2nd. College street, from Clinton to McCaul street; thence along McCaul and Benfrew street to Queen Street ; thence along Queen to Simcoe, and down Simcoe to Front street, to connect with the lines on that street. Committee Boom, Toronto, May 2nd, 1882. (Appendix 393, Minutes of Council, 1882.) The Council resolved itself into Committee of the Whole on Beport No. I'J of the Executive Committee, Aid. Irwin in the chair. The Committee rose. Aid. Irwin reported that the Committee had adopted the report without amendment. The report was received. The report was adopted. (Miaute 498, Minutes of Council, May 8th, 1882.) LXXIV. • Aid. Farley, seconded by Aid. Boswell, moves that the 'clause in Beport No. 17 of the Committee on Works, providing for the construction of a line of street railway on Simcoe street, south of Queen street, as adopted by the Council on Monday evening last, be reconsidered, with a view of referring the same back to the Com - mittee on Works, for the purpose of considering the advisability of substituting some other street for Simcoe street* and that the carrying out of the said portion of the above mentioned report be deferred until a further report is received from the> Committee on Works, and that the 33rd and 35th rales of this Council be dis- pensed with so far as relates to this motion, which was carried. (Minute No. 536, Minutes of Council, May 15tb, 1882.) LXXV. Report No. 20 of the Committee on w^'-'«. In compliance with the resolution of Council, passeu ou the 16th instant, your Committee have again had before them the question ^f laying a line of street ^ Tyn3:""T-n'''"- CITY OP TORONTO v. TORONTO STREET RAILWAY CO. 78 railway ou Bimcoo street, south of Queen street. After a full reconsideration of the whole matter, the Conimitteo are of opinion that Siincoe and York streets are the only ones on which the line could be constructed to meet the require- ments of the citizens for whoso convenience and benefit the route is intended. As there is a block pavement on York street, which would have to be torn up were a line of railway laid down, and in view of the difficulty in securing another suitable and convenient cabstand, your Committee beg to again recom- mend that the line be constructed on Simcoe street, from Queen street to connect with the Front street lines. (Appendix 457, Minutes of Council, 1882.) In Council : — The Council resolved itself into Committee of the Whole on Report No. 22 by the Executive Committee, Aid. Boustead in the chair. The Committee rose. Aid. Boustead reported that the committee had adopted the report with the following amendments : striking out all after the word " intended" in the seventh line of the clause in Report Ko. 20 of the Committee on Works, respecting the laying of ii lino of street railway on Simcoe street, and insert- ing the following in lieu, thereof : — " As the property owners on Simcoe street object to the construction of a line oh that street, while it is reprasented that the owners of properly on York street are in favour of the line, or have no such objections, your committee recommended that the line be constructed on York street. * , * * ' The report was received. The amendments were concurred in. Upon the question tliiit the report us amended be adopted, it was carried. LXXVI. Report No. 25 of the Committee on Worhs. Your Committee beg to recommend that the usual notice be given to the Toronto Street Railway Company, requesting them to extend their line of railway easterly on Winchester street to Sumach street. Committee Room, Toronto, July 18th, 1882. (Appendix 25, Minutes of Council, 1882.) In Council : — The Council resolved itself into Committee of the Whole on Report No. 29 of the Executive Committee, Aid. Love in the chair. The Committee rose. Aid. Love reported that the Committee had adopted the re- port with amendments. t The report was received. The amendments were concarred|in. 6 t."! m <• i , 4 '■J 74 MEMO. . ' Upon the question that the report as amended be adopted, it was carried. (Minute No. 701, Minutes of Council, July 24th, 1882.) LXXYII. In Council : — Aid. Defoe, seconded by Aid. Boswell, moves that in the opinion of this Council it is advisable in the public interest, before a permanent roadway is laid down on Kin^ street, that one track of the street railway be taken off that street, and be placed on Adelaide street, between.liatliurst in the west and Jar vis street in the east and that Bathurst street, between King and Adelaide streets, be used for making a circuitous route ; and that His Worship the Mayor, the Chairman of the Committee on Works, the Chairman of the Committee on Markets and Health, and the mover and seconder of this resolution, be a Select Committee to confer with the Street Bailway Company on the subject, with instraotions to report to this Council, which was carried. (Minute No. 754, Minutes of Council, August 7th, 1882.) Lxxvrii. In Council : — Aid. Low, seconded by Aid. Downey, moves that the City Engineer be and is hereby intitructed to order the Street Bailway Company to continue steadily aa4 without intermission the construction of the north-west route of railway, along lork, Queen, McCaul and College streets, and that the 33rd and 35th rules of this Council be dispensed with so far as relates to the same, jivhich was carried. (Minute No. 792, MinntesTof Council, Kept. 4th, 1882.) LXXLX. In Council :— Oct. 30th, 1882, the following comniiiniciitior.s v.cre read : • * • ' • ■ From the City Solicitor respecting the liability of the Street Bailway Company to provide all their cars with conductors as well as drivers. (Minute No. 913, Minutes of Council, October 30th, 1882.) In Council LXXX. Aid. Low gives notice that he will on jto-morrow move that the Street Bailway Company be required to place conductors on all their cars. (Minute 933, Minutes of Council, October 30th, 1882.) LXXXI. Aid. Turner, seconded by Aid. Adamson, moves for leave to bring in a Bill respect- ing street railways, which was carried. fe* 'i CITY OF TORONTO r. TOTfONTO STREET RAILWAY CO. 75 The bill was read a fiist time. Upon the quostion that the bill bo read a second time to-morrow, Aid. Tumor, seconded by Aid. Adnmson, in amendment moves that the bill be read a second time forthwith, that the 08th rule of the Council be dispensed with so far as relates to the same, which was carried. t The bill was read a second time. (Minute No. »8!», Minutes of Council, Nov. 13th, 1882.) In Council : — The Couneil resolved itself into committee of the whole on the Bill respecting Street Railways, Aid. Byai iu the chair. The Committoe rose. Aid. Pyan reported that the Committee had adopted the bill without amendment. The report was received. Upon the quostion that the bill be engrossed and read a third time, it was carried. The bill was read a third time and passed. Aid. Turner, seconded by Aid. Hallam, moves that the bill be entitled " No. 1264, a By-law resiiecting Street Railways," which was carried. (See Appendix No 295.) The By-law is as follows : No. 1204. > ,t A BY-LAW liefpecting Street liailicays. [Passed December 18th, 1882. Whergas, it is expedient to make further provision for the protection of the ■citizens of Toronto, and prevent accideu'js resulting from the use of Street Rail- way cars without conductors ; Therefore the Council of the Corporation of the City of Toronto enacts as follows ; I. From and after the iiassing of this By law every Street Railway car in use on the several lines of Street Railway, in the City of Toronto, shall be provided and furnished not only with a driver, but also with a conductor, who shall discharge his duties as such conductor in the manner provided by By-law No. 353, passed by the Council of the Corporation of the City of Toronto, on ths twenty-second tlay of June, one thousand eight hundred and sixty-one, entitled " A By-law Respecting Street Railways," and it shall not be lawful for any person or per- sons, or body corporate to use or operate any Street Raihvay in the City of Toronto with cars not having both conductors and drivers thereon, when such cars are in use on the streets of the said City. II- .\ny person or persons guilty of an infraction of any of the provisions of this By-law, shall upon conviction before the Mayor, Police Magistrate, or any Justice - .1 ■ :\. l4.{ \fi '%fi i4/ 76 MEMO. M or Jus'tioes of the Peace for the City of Toronto, on the oath or affirmation of any credible witness, forfeit and pay at the discretion of the said Mayor, Police Magistrate, Justice or Justices convicting, a penalty not exceeding the sum of fifty dollars for each offence, exclusive of costs, and in default of payment thereof forthwith, it shall and may be lawful for the Mayor, Police Magistrate, or Justice convicting as aforesaid, to issue a warrant under his hand and seal, or in case the said Mayor, Police Magistrate, and Justice or Justices, or any two or more of them are acting in^oluw therein, then under the hand and seal of one of them, to levy the saiil penalty and costs, or costs only, by distress and sale of the offender's or of lers' goods and chattels ; and in case of no sufficient distrosn to satisfy the iaui eualty and costs, it shall and may be lawful for the Mayor, Police MariJtrate, vustice or Justices convicting ns aforesaid, to commit the offender "r o ;ende to the common gaol of the said City of Toronto, with or without h.ax' .abouv, for any period not exceeding six calendar months, unless the said peualty ari'i r '■•^ be sooner paid. I certify that I Lu.. examined this Bill and that it is correct. ROBERT RODDY, City Clerk, ConsciL Chamber, Toronto, December 18th, 1882. [I/.S.l W. BARCLAY McMURRICH, Mayor. LXXXII. Aid. freorge Evans, secondod by Aid. Maughan, moves that in consideration of the dangerous state of some of our roadways, caused by the Street Railway Company allowing a large quantity of earth, etc., to accumrlate between their tracks making it extremely dangerous to travel, the Cit olici -. report to this Council at its next meeting if said company are legally bon.id to remove said ob<>tructions, and if so, that action be taken at once to comp. : hem to remove m .u obstruc- tions immediately, and that the 33rd and B5th rulus of this Council be dispensed with, so far as relates to this motion, which was carried. ^'.'t (Minute No. 85. Minutes of Connoil, Jan. 22nd, 1883.) LXXXIII. The following communications were read : From the City Solicitor, respecting tlve accumulation of snow between the street railway tracks, on the various struecs of the city, where such tracks are laid. (Minute 121, Minutes of Council, February 5th, 1683.) ' >^T,7^-?^."-f ^r," CITY OF TORONTO v. TORONTO STREET RAILWAY CO. 77 lation of any [ayor, Police ) sum of fifty ment thereof te, or Justice )r in case the o or more of one of them, A sale of the sient distroBR r the Mayor, commit the into, with or tis, unless the LXXXIV. isideration of reet Railway in their tracks > this Council obstructions, m.,.d obstruc- I be dispensed In Council : — Aid. Crocker, seconded by Aid. Bell, moves that the Sttaet Railway Company be instructed to extend their tracks and street oar service \^ catward on College street, from Bathurst to Clinton treet. Aid. Crocker, seconded by Aid. Bell, moves that the foregoing motion be referred to the Committee on Works, which was carried. (Minute 218, Minutes of Council, Feb, 12th, 1883.) LXXXV. Report No. 5 of the Committee on Workn. Your Committee beg to report that they have had before them the motion of Aid. Crocker, referred to them by the Council to the effect " that the Street Railway Company be instructed to extend their tracks westward on College street, from Bathurst to Clinton street," and, after considering the same, beg to recommend its adoption ; and that the City Solicitor be instructed to give the necessary legal notice to comply therewith. Committee Room, Toronto, Feb. 14th, 1883. ^Appendix No. 73, Minutes of Council, 1883.) The Council resolved itself into Committee of the Whole on Report No. 6 of the Executive Committee, Aid. Carlyle in the chair. The Committee rose. Aid. Carlyle reported that the committee hrd adopted the report with the following amendments :— [Noii;: relating to t/ii«— Ed.] The report was received. The amendments were concurred in. The report as amended was adopted. (Minute No. 258, Minutes of Council, Feb. 19th, 1883.) i:n\ LXXXVI. een the street are laid. To the Council of the Corporation of tlte City of Toronto . The Executive Committee beg to submit their Report No. 7 : In the mfttter of a suit instituted against the City by the Toronto Street Railway for an alleged appropriation of certain stone taken from Yocfr«> street on the.ocoa- ■ion of laying down a cedar block roadway on that thoroughfare, and to restrain the City from any like appropriation of material, your committee recommend that the City Solicitor be authorized to retain Mr. Christopher Robinson, Q.O., to *^^fe,' -^ i.-C! il!*^*-*^ 78 MEMO. f'h'' I '1 i-1 iict.witli him in defending the anit, the aaraa being an important one both aa rtH'ards the present and future interests of the City. Comniitteo Room, Toronto, February 22nd, 188i». (App. No. 87, Minutes of Council, 1883.) In Council : — The Council resolved itself into Committee of the Whole on Report No. 7 of the Executive Comniitteo, Aid. Geo. Evans in the chair. The Committee rose. .\ld. George Evans reported that the Committee had adopted the report without amendment. . The report was received. The report was adopted. (Minute No. 27C, Minutes of Council, Feb. 20, 1883.) LXXXVII. The follovvin,<4 petitions were received : Aid. Milliohamp— From the Toronto Street Railway Company, praying for the repeal of by-law No. 1,264, respecting street railways. (Minute .S07, Minutes of Council, March 5th, 1883.) LXXXVIII. In Council : — Aid. Moore, seconded by Aid. Hastings, moves that the Street Railway Company be instructed to forthwith extend their streetcar track and service on Yonge street to the northerly limits of the city. Aid. Moore, seconded by Aid. Hastings, moves that the foregoing motion be referred to the Committee on Works, wliich was carried. (Minute 500, Minutes of Council, April 21st, 1883.) LXXXIX. LETTER FROM THE PRESIDENT OF THK STREET RAILWAY CO. To Ilin Worship the Mayor in Council assembled. Dear Sib, — In a slip sent me froai one of the City papers, I see an article headed "A Corporation Blunder,' which states that by not giving the Street Railway Company due notice, there would ba considerable delay in the pi-oposed roadway- improvement. Now if this is the only blander the Corporation is guilty of, the public will not suffer any, as the Street Railway Company do not intend taking advantage of any such oversight of the Corporation, or any of its officers, and whenever that body is ready to go on with the street improvement, the Company will waive all notice (^ITY OF TORONTO r. TORONTO STREET RAILWAY CO. 79 and allow the work to go on without imy doiuy whatever ; but would nuike a reqaost that tlie City will if possible not allow all the work on Kin^; and Queen streets to go on at the same time, au if they did, the public would not be served, and much inconvenienced, the Company would also suffer severely, in not being able to run their cars, and this, coming immediately after such a very long winter, would bo to them a great hardship. It might also be inferred from what has passed at the Board of Works, that the Company refused to repair withifi, and eighteen inches outside the tracks. Now Huoh is not, nor could be the case, as the Company is botmd to keep the aforesaid mentioned ground, viz., all inside the tracks and eighteen inches outside, in good order, and the Company will in every case, where they are liable, see that this is carried out ; but there may be places where the Company are not liable, frt)m the fault of some error in judgment on the part of the Corporation or others. Should a case of this kind arise there need be no cause for dispute, as the Com- pany will upon every occasion submit to a settlement by arbitration, or a friendly suit in the Court of Justice, where all matters of this kind can be amicably settled ; therefore should the Company at any time prove delinquent in doing their duty to the City, the Corporation will have it in their power to compel them. As the Company is desirous of doing all that is fair and just, they desire that the City should go on with the work they have in view, and the Company will, as heretofore, pay their proportion of the expense. If it were possible that the City could leave the tracks on one or more of these streets for the Company to keep iu first class order with macadam, or cobble, as they thought best, the Company would keep these tracks bo that there could be no cause for complaint, or if not advisable on both streets, it might be adopted on Queen street, where most of the grade will answer as it now stands. Should the above suggestion bo adopted the Co.npany will pxxt on a section man and keep the roads as level and hard as desired, this course would be found to bb the best in the end, as Queen street travel need scarcely bo stopped at all, or if at any place where the track did not answer to the grade the rails could be easily dropped to the now grade, and only stop the car traffic but slightly. The Company would respectfully request that the City would put them in pos- session of College street so that tliey could complete the work at once, and start a line of cars from the Walker House, by McCaul street, via Spadina, and thence to Bloor street, as the tracks are all laid and ready to run with the exception of that -part of College street and the connection at King and Q"een, which can be completed in a few days. The Company would further suggest that if the City would agree to take charge of all outside the rails, and keep the road in good order, the Company would pay upon every occasion the amount of cost for so doing. This course would benefit the public as the dividing lino outside the rail should always be renewed or kept in repair by the one party, and done at the same time, then a better job could be performed, and by this course the City would largely benefit, and there would be no need for any dispute, us to whose fault it is if outside the track is not kept in 80 MR MO. mM 1 n good order. And sliould either party coiiKidcr they have good ouuie for oom- plaint, the matter oftii be easily settled by the adoption of the course already mentioned. Tliere is anotlier matter which has been aufj^oatea. but which iff not considered by the Company to be practicable ; that is that tlie Company would cause to be put down u turn-table at the corner of Kinf? and Yonge stroots. This would it is believed be a ftreat mistake, and a source of mucli annoys nee to the public, as the long two-horse oars would take up the wholo street, and take twice the time to turn that tuey now do to go round a curvo, m\'\ should the driver of ono of these larfte cars by any mischance happen to ^'o two or tlnoc inches too far on the track he would be unable to fiet it back ho an to turn, and would be cither obliged to un- hitch and draw back, or get flvo or six men to punli it back before a turn could be effected, during all of which time the whole traflSc would be stopped. Another objection to its adoption would be that during tho winter season the frost and snow would always give trouble, and greatly interfere with its working. Knowing these facts joncorning turn-tables the Company conuider they would be a failure and could not advise the adoption of them. The Company would suggest a plan, which will if adopted, relieve the corner of King and Yonge streets from any interruption « i.„t,ever. That iB to run the track, on Yonge street to Froiit, thence to the Stal tes, where a change of horses can take place. This would carry al ilioti; who.iHhcd to go to the St. Lawrence Market direct to the south end of it, ai.d by tho adoption of this plan all Yonge and Queen street cars could go straight down, thereby causing no stoppage on the street by turning. It would also enable all those v/ishiug to get to the wharves, or road station, to be c».rried to and from Front street to almost every point, I : i>> would do away with the nuisance of the standing and changing hori«B '« i "euts, which is the cause of i>, great deal of complaint at present. It ■■■' ' relieve King street east of j.'onge from these two lines of cars, aud give k crossing on both King and Yonge streets. ' By adopiing the course spoken of it would be much the best for the City, and ser.'e the public much better than they are at present, and whatever in beneficial to them, milst likewise be for the Company, as every thinking man v/ill see that the three interests, viz., that of the Corporation, the Public, and the Company, are id ntioally the same, and should upon all occasions be considered together and at the same time. If such a course would be followed all cause for dispute would be remo fed, and the work "better and more satisfactorily performed for all ooncarned. So should this plan meet with your approval, now would be the time to put it into execo- » tioD, while the new work is being done on King street. Trusting that your worshipful body will kindly consider these facts, and that you will give the Company as long notice as you possibly oan, I have the honor to be, yours, Ac, FRANK SMITH, Pretident [Bead in Council May 7tb, 1883, and referred to the Board of Works.] that CITY OP TORONTO v. TORONTO STREET RAILWAY CO. 81 XC. Report No. 15 of the Committee oh }Vorki. in the month of May last the Gounoil, by the adoption of Report No. 17 of v< Committee, ordered that the Street Railway Company be notified to oonati i' a lino of otroet railway on College street, from Clinton to McCaul and II v struetH. The Company accepted the notice and proceeded at unco with thu ■/( but when the head of MoCaul street was reached the UniveiHity autho informed thu Corporation that they would not allow the traoku to be laid i>u ..le CoUe^te avenue, from MoCaul street to the western gate, except upon curtain con- ditions, which were submitted to the Council of last year. (Bee Appendix, page 770. Minutes 1882.) The conditions referred to may be briefly stated as follows : (I) The Yonge street avenue to be paved with cedar blocks from end to end. <2) Sidewalks eight feet wide to bo laid on both sides. « (3) Trees now growing to remain, and othern to be planted at intervals of fifteen feet ; the spaces between the sidewalks and curb to be clean raked, not turfed. (4) Before pavement is laid, proper sewers to be constructed and water and gas mains laid down to all properties on the street. (5) Paving to be laid close and flush to rails. The Railway Company to conform to provisions of statute, 21 Vic, chap. 8!), particularly as to construction, and with the view of olfering as little impediment to trafiic aB possible. The gauge to be suitablis for ordinary vehicles. (6) Arrangements with the lessees of University to be such as not to expose the University or Government to any claim on the part of the said loBsees. (7) The City to keep sewer, gau, and water mains, roadways, railway tracks and fiidewalka in repair, and protect trees from injury. (8) The same condition to apply to the line of street railway on the portion of the avenue between MoCaul and College streets. (9) The whole work to be completed by the Blst Docqmbor, 1H83. (10) In the event of any of the foregoing conditions not being complied with, the Senate to have power to withdraw the leave hereby given, and the City to restore the street to its present state. The Senate may also appoint a man to inspect the works. (II) The. present concessions are only made to allow the street railway to be laid, and for giving free access to the avenue from streets now opening into it and does not effect the terms in the original lease. (12) A formal agreement to be entered into between the City and University when the above conditions »re agreed to. "\K^ IMAGE EVALUATION TEST TARGET (MT-3) ^^ 1.0 I.I m |2£ 2.2 u IE ^ -f^^ > ¥ '/ HiotogFaptiic ^Sdmces Carporetoi -^ ^^ ^ <^ ^. '' <. ^. <^ 23 WBT MAM STRUT WIUTIR,N.V. 14SM (716)l7a-4903 4^ 82 MEMO. Ill fy V V After oonsidering the foregoing proposals your Committee took exception to olansea 4, 6, and 10, and subsoqaently submitted a revised basis of agreement which was approved of by the Council (see Appendix page 776, 1882) and which your Committee have reason to believe will be acceptable to the University authorities. The annexed abstract from report from the City Engineer giving the estimated cost of the improvements suggested is submitted for the information of the Council. It may be added that the Street Uailway Company have constructed their line with the exception of the portion referred to on the Tonge street avenue and are anxious to make the connection, as will be seen by the accompanying letter from their secretary ; also, that the residents of the northwestern portion of the City are put to great inconvenience in consequence of the non-completion of the road. In view of these facts, and taking into consideration the urgent necessity of placing the avenue in a condition to be available as the leading thoroughfare across the northern portion of the City for all kinds of traffic, your oomnuttee would recommend that in the event of satisfactory arrangements being made with the University authorities for an extension of time for making the improver' ants contemplated in the foregoing agreement til! the 81st day of December, 1884, and their consent thereto, as amended, being obtained, that the said agreement be approved and ratified by the Council and thM an appropriation of 18,184 be made for the purpose of paving and constructing sidewalkB on the avenue from McGaul street to its west end, so as to allow the Street Railway Company to make the connection required ; the sewers and balance of pavement and sidewalks to be completed next year. Committee Boom, Toronto, May loth, 1888. EXTRACT FROM REPORT OP CITY ENGINEER Re YONGE STREET AVENUE. In compliance with the directions of the committee, I beg to submit an estimate of the cost of improving the Yonge street avenue on the plan suggested by the Senate of the University : Expense of sewerage 9 6000 00 Cedar block roadway and wooden curbing 25000 oiio Sidewalks, 8 feet wide, on each side. 2000 00 Total »380Q0 00 Of this sum the Street Railway Company would pay 97,500 as their share of the pavement. Office of the Tohonto Street Railway Compant, Toronto, 16th April, 1883. John Tamer, Esq., Chairman Committee on Worki. Dbab Sib, — I beg respectfully to bring before you and your Committeie the position in which this company is placed in regard to the lino of street railway known as the College and MoCnul street route. This line was constructed at the request of CITY OF TORONTO v. TORONTO STREET RAILWAY CO. 88 the City last fall, but tho company has been prevented from taking possesBion and. operating the same, on account of not being allowed to continue the track on College street, so as to make the connection with the track on McCanl street. As it is the city's intention to lay a pavement soon on King street, which will necessi- tate the suspension of the Spadina avenne ordinary route, and leave those living in the north-eastern* part of the city without any accommodation it is of the utmost importance that the MoGaul street route be completed so that the citizens , can use that line. I hope, therefore, that steps will be taken by your committee to enable us to' put this line into operation as soon as possible. i Yours truly, JAMES GUNN, Secretary. [The letter as printed in appendix reads " north-ea$tem" but evidently "north-weitem'^ it meant. — Ed.] (Appendix No. 382, Minutes of Council, 1883.) In Council : — The Cooncil resolved itself into Committee of the Whole on BeportsNos. 18 and 19 of the Executive Committee. Aid. Walker in the chair. The Committee rose. Aid. Walker reported that the Committee had adopted Beport No. 18 with the following amendment : [Nonerelating to Street Railways, —Ed.] , , The report was received. The amendments were concurred in. Upon the question that Beport No. 18 as amended be adopted, it was carried. (Minute 604, Minutes of Council, May 21st, 1883.) XCI. . • Beport No. 18 of the Committee on Works. On the 27th of December last a motion was referred by the Council to the then Committee on Works, to the effect that the Street Bailway Company be notified to continue the Yonge street track south of King street to the Union Station, who reported recommending concurrence therein. An Order in Council was accordingly given on the 8th of January, and the Street Bailway Company noti- fied. Sinoe then petitions have been received from merchants and others on King street east and Yonge street south of King respectively, against the continuation of the track. Your Committee have held a conference with deputations from the petitioners and the President of the Street Bailway Company, at which the latter urged the necessity of having a track to the company's stables on G«orge street, so as to do away with tiie complaints caused by changing horses on the streets, and consented to abemdon the extension of the Yonge . street track south of King, aa well as to continue to run the Yonge street and Queen street cars along King east i -.hM. -■:if '■I '!' ■ 'I .i Iks 4 , I' ''fe \ 84 MEMO. to the Market, provided the City give the Company the right of way to lay a doable track on (George street, south of King, to the Company's stables. Yonr Committee beg leave to recommend that the above proposition be con- oorred in. ' ' Committee Boom, Toronto, Jane 19th, 1888. (Appendix 414, Minates of Council, 1883.) In Council : — The Council resolved itself into Committee of the Whole on Reports Nos. 22 and 28 of the Executive Committee — Aid. Crocker in the chair. (See Appendix Nos. 69 and 60.) The Committee rose. Aid. Crocker reported that the Committee had adopted Beport No. 22 with the following amendment : [Not relating to Street Railufay — Ed.] The report was received. The amendments were concurred in. • Upon the question that the Beport No. 22 as amended be adopted it was carried. (Minute No. 708, Minates of Council, June 25th, 1888.) In Council :— XCII. Aid. Donison, seconded by Aid. Crocker, moves that the City Engineer be in- structed "to write to the Street Bailway Company, asking that the street oars on Dundas street be run through to the St. Lawrence Hall without change, and that at least three cars an hour be placed on that route, and that the 88rd and 85th Bales of this Council be dispensed with so far as they relate to this motion, which was carried. u 1', Your Committee have had before them the following reports of committees, and submit the same for the co.>Bideration of the Council subject to the exceptiona taken: Report No. 39, Committee on Works and recommendations embodied therein. Tour Committee, referring to the proposition to allow the Toronto Street Railway Company to continue their tracks on Yonge street southward to Fronit street on certain conditions, recommend that the same be concurred in on the further condition that the Company agree to run their cars on the Dundas street rout* through to the St. Lawrence Hall. v' 4 Committee Boom, Torontjo, Dec. 6th, 1883. (Appendix 846, Minutes of Council, 1883.) * In Council : — The Council resolved itself into Committee of the Whole on Reports Nos. 42 and 48 of the Executive Committee, Aid. Maughan in the chair. The Committee rose. Aid. Maughan reported that the Committee had adopted Report No. 42 with the following amendments : . . . striking out the clauses in Report No. 89 of the Committee on Works and Report No. 42 of the Epcecntive Committee ' having reference to the extension of the street railway on Yonge street, for the purpose of referring the tame back to the committee for further .oonaideration; * * The report was received. The amendments to Report No. 42 were concurred in. Report No. 42, as amended, was adopted. (Minute No. 1070, Minutes of Council, Dec. 10th, 1883.) m ^*. ^ "iJH * ■« jM :> '^ i>'.4, A^ ^ti^SS i ' •\~\ V 1 ' .^ ft , S M . )•> ft I 'H 86 MEMO. XCIV. Report No. 40 of the Committee on Works. Your committee has received a communication from Mr. Bichard H. B. Munro, reminding it that Hon. Frank Smith, President of the Toronto Street Railway Company, agreed about sixteen months ago to have a street railway track laid down on Bathurst street, from Queen street to Bloor street, as soon a? it v^as practicable to do so after the earth had settled over the sewer on Bathurst street. Your Gommittee would therefore recommend that the necessary notice be served upon the President of the Street Bailway Company, requiring him to have a street railway track constructed on the said portion of Bathurst street without unneces- sary delay. Committee Booms, Toronto, Deo. 18th, 1888. {Appendix No. 888, minutes of Council, 1883.) The Council resolved itself into Committee of the Whole on Beport No. 44 of the Executive Gommittee, Aid. Ryan in the chair. ' The Committee rose. Aid. Byan reported that the Committee had adopted the report with the following amendments : INone relative to thi$ matter. — Ed.] r ' The report was received. The amendments were concurred in. Upon the question that the report as amended be adopted it was carried. (Minute 1,094, Minutes of Council, December 22nd, 1883.) xcv. Report No. 42 of the Committee on Worki. Your Committee beg to report that it has considered the proposition of the Toronto Street Railway Company for leave to extend its track down Yonge street to Front . street, so as to form a new route between the Don bridge and the Union station by way of Queen street, Yonge street and Front street. An influential delegation of merchants, headed by Mr. J. L. Blaikie, waited upon your Committee and protested against the laying down of the contemplated track. They contended that, in consequence of the narrowness of the street, and the absence of adequate accommodation in the rea**, their business would be much hampered if either a single or double track were laid down on the street. After full consideration of the matter it was decided to refuse to comply with the request of the Company. Committee Boom, Toronto, January 12th, 1884. (Appendix 962, Minutes of Council, 1888.) CITY OP TORONTO r. TORONTO STBEEt RA-ILWAY CO. 87 In Council : — The Gouaoil resolved itself into Gomniltee of tho Whole on Beports Nob. 46 and 47 of the Execntivo Committee, Aid. Baxter in the chair. The Committee rosa. Aid. Baxter reported that the Committee had adopted the reiMrts without amendment. ' , The report was received. The reports were adopted. , • ^Minute 1,143, Minutes of Council, January 18th, 1884.) XCVI. Iteport No. 5 of the Committee on Workt. • • • • The City Engineer reports that in compliance with an order of the Council he wrote to the Hon. Frank Smith, President of the Toronto Street Railway Com- pany, rtquiring that oars be run on the route between the St. Lawrence market and Brockton, without change or transfer of passengers. In reply to his com- munication he received and now submits the following letter from the Secretary of the said Company : , OrricE OF THE Toronto Street Bailw/iv Company, March 25th. 1884. "Charles Sproatt, E»q., City Engineer, Toronto : Deab Sik, — Yours of the 22nd instant was duly received, asking this company to comply with a resolution adopted by the Council in respect to the running of the cars on Dundas street. I beg to state that whilst this Company cannot admit the right of the City Council to direct us as to how the oars should be run, it will always bo the. desire to comply with itR demands when reasonable, and, in this instance, I am glad to state that such desire will be carried out. It. is the intention, as soon as the condition of the streets will allow the regular running time to be adopted, to run the Dnndas street cars through without change to St. Lawrence Hall. Yours truly, JAMES GUNN, ' Secretary. (App. 178 to Minutes of Council, 1881.). XCVII. Report No. 13 of ttte Committee on Workt. It is recommended that the Toronto Street Bailway Company, which will them- selves relay the track on Spadlna avenue, (the work not being incUided in the ' » [■P^ 88 MEMO. pavement contract,) be allowed the cost thereof, and that the amount be embodied in the by-law, thas allowing the company the usual time covered by the same tor the payment of the cost of the work. Committee Room, Toronto, June 8rd, 1884. In Council : — The Oouncil resolved itself into Committee of the Whole on the Beport No. 10 of the Execative Committee, Aid. Steiner in the ohair. (See Appendix No. 62.) The Committee rose. Aid. Stoiner reported that the Committee had adopted the report with the following amendments : [I^one relating to Street Railway* — £d.] The report was received. The amendments were concurred in. The report au amended was adopted. ' ' (Minute 604, Minutes of Council, June 18th, 1884.) In Council : — XCVIII. Aid. Fred. C. Denison, seconded by Aid. Woods, moves that the propsr officer be instructed to notify the Toronto Street Railway Company to continue their track along Dundas street to the White Brid(!e, and that the 33rd and 35th rules of this Council be dispensed with so far as they relate to this motion, which was carried. (Minute 700, Minutes of Council, July 7th, 1884.) XCIX. Report No. 15 of the Committee on Work*. , It is recommended that the City Engineer be authorized and instructed to com- municate with the Hon. Frank Smith, President of the Toronto Street Railway Company, requesting him to comply with the terms of an agreement formerly entered into between your Committee and the said Street Railway Company, and for a time in a measure complied with, to give a car service on Queen street, between the Don Bridge on the east, and Gladstone avenue on the west. (Minute 508, Appendix to Minutes, 1884.) It is also recommended that the Street Railway Company be required to resume the MoCaul and Front street car service forthwith. \ (Minute 509, Appendix to Minutes, 1884.) In Council : — The Council resolved itself into Committee of the Whole on Report No. 23 of the Executive Committee, Aid. Smith in the ohair. (See Appendix No. 77.) CITY OP TORONTO v. TORONTO STREET RAILWAY CO. 8» I'', y ;' -^■^' Tha Oommittee roM. Aid. Smith reported that the Committee hftd Adopted the report with the following amendment! : [None relating to tki$ matter.— Bo.] The report wm received. Upon the qneetion that the report as amended be adopted, it wae carried. (Minate No. 708, Minntes of Ooonoil, July 7th, 1884.) 0. Report No. 17 of the Committee on Worke. ■esitme Your Committee begs to report that at its last meeting it was again ^waited upon by a deputation of citizens in relation to the necrsaity of extending the Yonge street railway track to Frotat street, for the purpose of accommodating citizens from the north and north-eastern part of the City, who may wish to reach the wharves and railway stations. A petition largely signed was presented to the same effect. ^ Several gentlemen doing business on Yonge street attended and opposed the project. After careful consideration your Committee wcnld recommend that a double ' vak be laid down on Yonge street from King street to Front street, on the disti^ov onderstanding that the street oar service, as at present on King street, be nos diminished ; and further, that so soon us the line is completed to Front street, the Street Railway Company shall operate the Queen Street East railway line to the Mlalker House, and shall grant transfer tickets to those passengers who wish to continue their journey along Queen street west, and vice vena, at one ordinary fare ; and that the Street Railway Company pay any additional expense that may be incurred in putting down the aforesaid tracks, over and above their portion of the cost of the new stone block pavement about to be laid down on Yonge street. (Appendix 668 to Minutes of Council, 1884.) In Council : — The Council resolved itself into Committee of the Whole on Report No. 24 of the Executive Committee, Aid. Irwin in the chair. The Committee rose. Aid. Irwin reported that the Committee had adopted the report with the following amendments : * • ' • striking out the words " that the street car service as at present on King street be not diminished," in the clause of the said report having reference to the exten- don of the itreet railway tracks on Yonge street south of King street, and insert- ing the words, " that every alternate Yonge street oar proceed down the proposed extension to Front street, thence along Front to opposite the Union Station ;" and adding at the end of the same olanae the words, " and that this teMltaaieiadation ■hall not be acted upon ontil an agreement be drawn by tii« City 8 Report No. 89 of the Committee on Workt. Your Committee beg to report for the information of Connoil that by order of your Committee the City Engineer has addressed a letter, on the 20th Sept., to the Hon. Frank Smith, President of the Toronto Street Railway Company, reqniring the said company to repair the said Yonge street pavement on the outside of the rail. In reply to this notification, Mr. James Oonn, Secretary of the Street ' Railway Company, refused on behalf of the Company to make any repain to the pavement, contending that the Company was only liable for the payment of the cost of the pavement when originally laid don a. It is therefore recommended that a demand be again made upon the Company by the City Engineer to have the repairs made to the pavement above mentioned, and in case of refusal the City Engineer should be authorized to have the repairs made, and that the City ahonld proceed in the Courts to collect the cost of the work from the Street Railway Company ; or a special case might be prepared, if deemed preferable, for sabmis- sion to a Judge of one of the Superior Courts for his opinion thereon as to who is liable for the repairs to the pavement. (Appendix 928 to Minutes, 1884.) In reference to the running of the one horse cars without oondnotors, as ordered by the Council, the City Clerk intimated by way of an advertisement iH the daily papers, that any citizen who desired to do so shoold be heard before the Committee on Works in relation thereto ; but although the President and Solicitor of the Street Railway Company were present at the last meeting of the committee, no person attended to complain of the running of the said cam without conductors. Committee Room, Toronto, October 14th, 1884. (Appendix 980 to Minutes 1884.) In Council : — The Council resumed Committee of the Whole on Reports Nos. 87 and 88 of the Executive Committee, Aid. Septimus A. Denison in the chair. The Committee rose. Aid. Septimus A. Denison reported that the Committee had adopted Report No. 87 with the following amendments : * * striking out the clause in the said report having reference to the numing of one horse oars without conductors, for the purpose of referring the same back to (he Committee, with a view of obtaining their report as to whether it would be in the interest of the City to compel the Toronto Street Railway Company to place con- ductors as well as drivers on all street oars : * * * The report was received. „.«?'«. ■y-r , CITY OP TORONTO i;. TORONTO STREET RAILWAY CO. 91 Upon tha question thkt Report No. 87 m smended be adopted, it wm oftrried. (Blinute 096, Minatei of Gonnoil, October iiOth, 1884.) OIL In Council : — Aid. Brandon, seoonded by Aid. Barton, moves that the rales and regalations for the ranning of street oars, as embodied in the charter of the Toronto Street Bail- way Company and the By-laws of the City, be enforced at once, which was carried. (Minate 168, Minutes of Council, February 28rd, 1886.) ciii. Report No. 4 of the Committee on Worki. OKE HOBSE CABS. Tour Committee begs to report that it has considered a resolution sent to it by the Council of 1884, in reference to the operation of one horse oars in this City without oonduotors, and after hearing an explanation in relation thereto from the Hon. Frank Smith, President of the Street Car Company, would recommend that the clause of the by-law requiring conductors as well as drivers to be placed on one horse cars be suspended for the period of three months, in order to obtain f mother information on the subject. ■M mm I* I'*** Committee Boom, Toronto, March 10th, 1885. (Appendix 160 to Minutes of Council, 1886.) In Council : The Council resumed in Committee of the Whole on Beports No. 6 and 6 of the Executive Committee, Aid. Johnston in the chair. The Committee rose. Aid. Johnston reported that the Committee had adopted Beport No. 5 with the following amendments : [None relative to Street Railway Company. — Ed. J The amendments to Beport No. 6 were concurred in. The report was adopted. . aion of the atreet railway traoka to the Exhibition gtounda, for .the pnrpoae of referring the same back to the Committee with a view of having a oonferanoa with CITY OF. TORONTO v. TORONTO STREET RAILWAY 00. M lh« PrMldenta of tha IndutlrUl Exhibition AiMoiation ftnd the Toronto BtrMi IUilw»7 Compftny and the City Engineer in reference thereto. * * The report wm reoeived. The unendmenti were oononrred in. The report m emended wm adopted. (Minnte 896, Minntea of Oounoii, A.prU 37th, 1885.) cv. Report No. 14 of the Committee on Worke. Tonr Committee bcRs to report that, having oonaidered the petition of the Metro- politan Street Railway Company, of Toronto, praying for leave to conatrnct and ■eatabliah a tramway upon tho reaorvation for a atreet aronnd the laland, from a point in the neighborhood of Hanlan'a Point to a point at or near the Wiman Swimming Batha, or otherwiae aa may be found neoeaaary, they recommend that the aame be granted,{upon the terma and conditiona to be hereafter agreijad upon and entered into between the Corporation and the Street Railway Company, anbjeot to the righta, if any, of the Toronto Street Railway Company. And yonr Committee further reoommenda that the City Solioitw be inatmoted to give the neoeeaary notice to the Toronto Street Railway Company forthwith, if, on examination, it be found that they are entitled to the option of oonatrooting each railway. •Committee Room, Toronto, July 18th, 1885. (Appendix 699 to Minutee of 1885.) InCounoil: The Connoil reaolved itaelf into Committee of the Whole on Reports Noe. 90 and 91 of the Executive Committee, Aid. Elliott in the chair. The Committee roae. Aid. Elliott reported that the Committee had adopted Report No. 90 with the following amendments : [Notu relating to thi$ mal(«r.— Ed.] The report was reoeived. * The amendments were coqcnrred in. Upon the question that Report No. 20, as amended, be adopted, it was carried. .(Minnte 681, Minntes of ConncU, July 97th, 1885.) CVI. In Oounoii :r- ' The following communications were read : From the City Solicitor, stating the reasons why proceedings have not been insti- tuted against the Toronto Street Railway Company, to compel it to pay a share •of the cost of repairs to the block pavements along the line of railway tracks. %(Minate 671, Minutes of Council, Angust 10th, 1885.) ■'wfflWil h\ 94 MEMO. CVII. In Council : — Aid. Barton, aeoonded by Aid. M. J. Woods, moved that the Toronto Street Bail- way Company be ^nested to run a certain number of Queen street west and Brockton cars down Tork street to Front street, in order to give the residents of the western part of the City a direct route to the Union station. Aid. Carlyle, seconded by Aid. Barton, moved that the foregoing motion he> referred to the Committee on Works for consideration, which was carried. (Minute No. 710, Minutes of OouncU, August 10th, 1885.) cvin. Report No. 20 of the Committee on Worke. OARS TO ONION STATION. Tour Committee begs to report that it has considered the following resolution forwarded by the City Clerk pursuant to the order of the Council at its meeting held onUhe leth August, 1886 : ite«oIv«d,— That the Street Railway Company be requested to run a certain number of Queen street west and Brockton cars down York street to Front street, in order to give the residents of the western part of the City a direct route to the Union Station. Tour Committee therefore reoommends in favour of this request being made upon the Street Railway Company. Committee Boom, Toronto, September 21st, 1886. (Appendix 788 to Minutes of Council, 1886.) The Council resumed Committee of the Whole on Reports Nos. 26 and 27 of the Executive Committee, Aid. Mackenzie in the chair. The Committee rose. Aid. Mackenzie reported that the Committee had adopted the Report No. 26 with the following amendments :— [None relating to thie matter. — Ed.] The report was received. The report as amended was adopted. Upon the question that Report No. 26 as amended be adopted, it was carried. (Minute 788, Minutes of Council, September 28th, 1886.) 'I CIX. Seport No. 21 of the Committee on Worki. STRBBT OAB BKBVIOE. Tour Committee reoommends that the Toronto Street Railway Company be^ notified by the City Engineer that it is required by the city corporation that the' ' f*-.'- CITY OF TORONTO v. TORONTO STREET RAILWAY CO. 96 street oar aooommodation be extended across the Biver Don by way of the King street bridge, and thence along Broadview avenue to Danforth avenue ; or by way of the Oerrard street bridge to Broadview avenue, thence to Danforth avenue ; and to operate such line in order to make a street oar service between the Union Station and Danforth avenue. Your Committee further recommends that the City Engineer be instructed to notify the Toronto Street Bailway Company that it is required by the City Corpor- ation to lay down a line of tracks on Carlton street, between Sherboume street and Tonge street, and to operate the said line from the eastern end of the Win- ohester street tracks to the western terminus of the College street tracks. Committee Boom, Toronto, September 29th, 1886. (Appendix 844 to Minutes of Council, 1886.) In Connoil : — The Coonoil resolved itself into Committee of the Whole on Beport No. 28 of the Executive Committee Aid. Pepler in the chair. (See Appendix No. 171.) The Committee rose. Aid. Pepler reported that the Committee had adopted the report with one amendment. [Not relative to thi$ matter, — En.] The report was received. Upon the question that the report as amended be adopted, it was carried. (Minute 808, Minutes of Council, October 6th, 1886.) ' M ' ( i V 'I ex. Report No. M of the Committee on Worki. « ' « • • ' Tour Committee begs to report that it has had before it the resolution passed by the Council on the 6th inst., to the effect " that the rules and regulations governing the Toronto Street Bailway be enforced at once ;" and, in reply, would recom- mend that the proper authorities be instructed to draw the attention of the Street Bailway Company to the fact that certain two horse cars are being run without conductors, requesting that the by-law be carried out in this respect. Committee Boom, Toronto, October 13th, 1886. (Appendix 888 to Minutes of Council, 1886.) In Conncil : — The Council resolved itself into Committee of the Whole on Beports Nos. 29 and 80 of the Executive Committee, Aid. Saunders in the chair. The Committee rose. Aid. Saunders reported that the Committee had adopted Beport No. 29 with the following amendments : [None relating to thit matter.— ^o-} The report was received. 41 1 - J "1 M %i 1 ^ms^MSuES^ ijsjw«f^t55pp5;T,»^,T?'fj;:p.W«F*y'*?''^'^^^^^ '*^ 96 MEMO. f,j h •?*^ H kSr Upon the qaitstion that Report No. 39 as amended be adopted, it waa oatried. (Minate 828, Minates of Coanoil, October 19th. 1885.) CXI. In Oounoil : — Aid. Shaw, seconded by Aid. HastingB, moves that the Committee on Works be reqaested to devise some better mode of keeping the streets of the City on which the Street Railway Company has its tracks clear of snow daring the winter months, more especially Yonge street, so that the banking np on either side of these streets, to the great annoyance and inconvenience of the merchants and people doing bnsiness thereon, may be avoided ; and to that end, if deemed advis- able, a conference to be had with the Street Railway anthorities, who, it is under- stood, have some pUn in view for that purpose, and that the 8Srd and 86th rules of the Council be dispensed with so far as they relate to this motion, which was car- ried. (Minute 835, Minutes of Council, October 19th, 1886.) H CXII. In Council : — Aid. Turner, seconded by Aid. Piper, moves that the by-law with reference to the placing of conductors on the one horse street oars of this City be suspended pend- ing a reference to the Committee on Works, with instructions to consider the validity of the said by-law, and all other by-laws relating to the Street Railway Company, and the expediency of enforcing the by-law first above referred to, in view of the facts brought to the notice of the Council by the Hon. Mr. Smith, and to make such recommendations to the Coanoil as will contribute to the safety and comfort of the public, and to report at the next meeting of this Council ; and that the 88rd and 86th rules of this Council be dispensed with so far as they relate to this motioi^, which was carried. (Minute 108, Minates of Cooncil, February 1st, 1886.) V CXIII. In Council : — Aid. Johnston, seconded by Aid. Jones, moves that the City Solicitor be instructed to report to the Committee on Works at its next meeting if there has been any agreement with the Street Railway Company and the City as to their issuing transfer tickets from the Queen street west line to the Queen str«et east line, which was carried. (Minute 166, Minutes of Council, February 8th, 1886.) ' '?■ s'-' --.I'^^r-V" CITY OP TORONTO v. TORONTO STREET RAILWAY CO. 97 CXIV. Report No. 2 of the Committee on Worki. BTBEET CAB 8BRTI0B. Yonr Oommittee begs to report that it baa considered a petition of John L. Playter and others, praying that the Toronto Street Bailway Company be notified and required to lay down and operate its tracks as follows : — From the Union Station by way of Simooe street, Adelaide street, Victoria street, Wilton avenue, Biver street, Oerrard street and Broadview avenue to Danforth avenue. Your Oommittee therefore recommends that the prayer of the petitioners be com- plied with, and that the Street Bailway Company be notified accordingly to lay down and operate such route within the time required by the terms of its contract with the City in that behalf. Committee Boom, Toronto, February 16tb, 1886. (Appendix 68 to Minutes of Council, 1886. The Council resolved itself into Committee of the Whole on Beports Nob. 8 and 4 of the Executive Committee, Aid. Crocker in the chair. The Committee rose. Aid. Crocker reported that the Gommittee had adopted Beport No. S with the following amendments : {None relative to thii matter. — Ed.] The amendments were concurred in. ' Upon the question that Beport No. 8 as amended be adopted, it was carried. (Minute 301, Minutes of Council, February 16th, 1886.) cxv. Report No. 8 of the Committee on Worke. Tour Committee begs to report that it has considered the resolution of Council adopted at its meeting on the 1st instant, and referred to it for a report, with reference to the expediency of enforcing the by-law providing for the placing of oonduotors on one horse street oars. After a careful consideration of the matter yonr Committee begs to recommend to the Council the advisability of repealing the said by-law. Committee Boom, Toronto, February 12th, 1886. (Appendix 94 to Minntea of Gonnoil, 1886.) tiM Council resumed Committee of the Whole on B^ort No. 6 of the Executive Committoe, Aid. Denison in the chair. The Committee rose. Aid. Deniaon reported that the Committee had adopted the I** S't 98 MEMO. report with the following amendments : striking out Report No. 8 o£ the Com- mittee on Works, having reference to the expediency of enforcing the by-law pro- viding for the placing of conductors on one horse street oars. The report was received. *. The amendments were concurred in. The report as amended was adopted. (Minute 288, Minutes of Council, February 19th, 1886.) CXVI. In Goancil : — His Worship the Mayor, in reply to an enquiry from Aid. James as to what steps had been taken to enforce the by-law requiring the placing of obndnotora on all street cars, stated that he had looked into the matter and had decided that inas- much as the City Solicitor did not approve of the by-law in question, it would not be fair either to the City or the Solicitor to ask the latter to enloroe the provisions of the said bylaw. He therefore desired to inform the Couhoil of his intention to employ other counsel in the matter, which would involve an expenditure of money, in order to afford the Council an opportunity of objecting should they sea fit. After some remarks from Aid. James to the effect that the Solicitor should do the work, which was not sustained, the matter was allowed to pass without further objection. (Minute 378, Minutes of Council, March 4th, 1886.) CXVII. . In Council : — Aid. James, seconded by Aid. Saunders, moves that His Worship the Mayor be and he is hereby authorized to take the necessary steps to test the by-law requiring the Toronto Street Railway Company to place conductors on all street cars, and that the 33rd and 36th rulesof this Council be dispensed with so far as they relate to this motion, which was carried. (Minute 338, Minutes of Council, March ISth, 1886.) CXVIII. In Council : — Aid. James, seconded by Aid. Baxter, moves that the minutes of the 4th inst. be amended by striking out Minute No. 273, having reference to the employment of counsel in connection with the enforcement of the by-law requiring the Toronto Street Railway Committee to place conductors on all street cars, which was car- ried. (Minute 288, Minutes of Council, March 16th, 1886.) ";>i}?'X'5«!J^??BVf^^ff7'n^ CITY OF TORONTO v. TORONTO STREET RAILWAY CO. 99 CXIX. Report No. 10 of the Committee oil ^orks, 1886. MEW lUILWAy THAOXS. It is recommended that the Toronto Street Railway Company be notified that it ia required to extend a branch of its Queen street tracks alonf; Bathurst street to Arthur street, thence along Arthur street to Dundas street ; said new route to be from the, St. Lawrence Market to Dundas street. ' • « • « Conunittee Room, Toronto, May 4th, 1886. (Appendix 883 to Minutes of Council, 1886.) In Council . — The Council resumed Committee of the Whole on Reports Nos. 14 and 16 of the Executive Committee, Aid. Himter in the chair. The Committee rose. Aid. Hunter reported th^t the Committee had adopted Report No. 14 with the following amendments : INone relative to this matter. — Ed.] The report was received. Upon the question that Report No. 14 as amended be adopted, it was carried. (Minute 676, Minutes of Council, May 11th, 1886.) cxx. In Council : — Aid. Maodonald, seconded by Aid. Low, moves that the City Solicitor be directed to publish (in pamphlet form) the agreement between the Corporation and the To- ronto Street Railway .Company, together with the Charter of the Company and all Statutes and By-laws relating in any way to the Company, and that copies of the same be supplied to the members of the Council and any citizen or citizens who may requim them, and that the Executive Committee be directed to report the necessary funds for the j^urpose. Aid. Defoe, seconded by Aid. Crocker, moves that the foregoing motion be referred to the Executive Committee for consideration, which was carried. (Minute 606, Minutes of Council, May 17th, 1886.) CXXI. In Council : — The Mayor submitted the following Message and Enclosures :— Mayor's Oiticb, ToEONTO, June 7th, 1886. Gentlemen of the Council : I deem it necessary to make certain statements and bring down certain papers regarding a letter of complaints and claims read to-night from the Toronto Street Railway Company.* * This letter cannot be found, and the Street Railway authorities are unable t«,trSria^\ ; a copy— Ed. . /'•',*•''' ''', 8/ '.'' ".'5 4 J. 1 ^>>) V< > h 100 MEMO. The complainant oommenoes with the absnrd propoution that it was the intention of an individual to oonflaoate the property of a company incorporated by the Lef^Blatore, a§aaming that he had the power of a Legislature. I think it ia not neceseary to give any further attention to saoh an absurdity. When I came into office I discovered, by accident, that the Street Railway Company were soliciting legislation of a character that would have made the option which the Oity of Toronto have of assuming possession of the railway in the year 1891 practically valueless. The legislation proposed to confer upon the Street Railway (Company the power to ponstruct a system of railways around the City in such a way that it would have made it impossible for the City to deal at the end of the term of the Street Railway Company's agreement with any company other than this Street Railway Company. This attempt I defeated : and I append the two bills, the one proposed and the one passed, that the contrast may be seen. The clause of tho agreement of the City with the Street Railway Company, giving the City power to assume the property of the Company, reads as follows : *' Eighteenth. The privilege granted by the present agreement shall extend over a period of thirty years from this date, but at the expiration thereof the Corporation may, after giving six months' notice prior to the expiration of the said term of their intention, assume the ownership of the railway and all real and personal property in connection with the working thereof on pay- ment of their value, to be determined by arbitration ; and in case the Corpo- ration should fail in exercising the right of assuming the ownership of the said railway at the expiration of thirty years as aforesaid, the Corporation may, at the expiration of every five years to elapse after the first thirty years, exercise the same right of assuming the ownership of the said railway, and of all real and personal estate thereunto appertaining, after one year's notice, to be given within the twelve months immediately preceding the expiration of every fifth year as aforesaid, and on payment of their value, to be determined by arbitration." The meaning of this is that within four and one-half years time the City may, by giving notice, assume possession of the Street Railway Company on payment of the value of their plant and buildings and the cost of their road-bed, say in all 9800,000, at the present time. As this property is practically worth three million dollars to-day, I do not propose to allow the Street Railway Company to do any- thing which may affect in any way the valuable privilege which this City most certainly must exercise. I am determined to keep the City's option unthrottled, (if that is what Mr. Smith means by confiscation,) and I propose that the City of Toronto shall exercise the rightful power they have by their agreement with Mr Smith's Company. The Street Railway Company notify the Oity that they will look to them for the payment of all losses and damages sustained by the late strikes. I had prescience enough to gather from Mr. Smith's first remarks, when he locked out his men at the time of the first strike, that this was the calculation of his company. It was for that reason I wrote the letter which has been so freely commented on, putting the responsibility of the difficulty where it belonged, and, as I believe, thereby y. freeing the Oity from any legal responsibility in the matter. Mr. Smith did not mKi '' ' ' i 102 MEMO. I* ;r' * Jpl'' Section 4 of the Act of tbe late Province of Canada, passed in the 24th year of Her Majesty's reign, chapter 88, is hereby amended by inserting between the sixth and seventh words in the ninth line thereof the words, "steam, electricity, cables, machinery or other motive power.*' 11. When and so often as the Connoil of the Oorpor&tion of the City of Toronto or the Council of any of the adjoining municipalities mentioned in the said Act of tbe said Toronto Street Railway Company yhall mutually agree thereto, it shall and may be lawful for such Connoil and the said Company apon such terms as may be agreed upon between them, to make and enter into agreements for the running of the oars of the said Company or some of them over the tf acks of the said Company or some of them apon Sundays or portions of Sundays, notwith- standing anything in the said Act or the By-law therein referred to or in any other Act contained. ' III. All such provisions of the Acts of Parliament relating to the said Company as confer rights and powers upon the said Company in respect of Municipalities im- mediately adjoining the City of Toronto, and as invest the said Municipalities with authorities or powers with regard to the said Company or its undertaking, shall be held to extend so as to confer such rights and powers npon the said Com- pany in respect of Municipalities which since the passing of the said Acts or any of them, have been or which hereafter may be erected or formed adjoining the said City of Toronto and so as to confer such rights or powers upon the said Company in respect of Municipalities adjoining snob Town or Village Municipali- ties as may themselves adjoin the said City of Toronto, and so as to invest the same Municipalities with the like authorities and jiowers in regard to the said company and its undertaking as are by the said Acts vested in Municipalities imjiediately adjoining the said City of Toronto. IV. Section 14 of the said Act passed in the 24th year of Her Majesty's reign, chapter 83, is hereby amended by adSing thereto the words following : " and may levy by. special general assessment upon the ratepayers, notwithstanding any' previously existing By-law or By-laws passed under section 620 of ' The Consolidated Munici- pal Act, 1888,' the cost and expense inouired in performing and carrying out such agreement or covenants." ~ • " B." ACT AS PASSED BY THE LEGISLATURE. An Act to amend the Acts relating to the Toronto Street Railway Company. Whereas, the Toronto Street Railway Company has by its petition prayed for certain amendments to. its Act of Incorporation, and it is expedient to grant the prayer of the said petition ; Therafore Her Majesty, by and with the advice and consent of the Legislfttive Assembly of the Province of Ontario, enacts as follows : CITY OP TORONTO v. TORONTO STREET RAILWAY CO. 108 m i 24th year of between the n, electricity, >f Toronto or le aaid Act of veto, it shall uch ternia as nenta for the tfacka of the ftys, notwith- ; to or in any Company as oipalities im- (anicipalitiea undertaking, lie said Com- 1 Acta or any adjoining the ipon the said ) Municipali- to invest the d to the aaid iunicipalities sign, chapter may levy by, y" previooaly iited Munioi- Ing ont such any, prayed for » grant the Legislktive 1. In the event of the oonatruotlon of any railway pr tramway npon the Island in front of and forming part of the City of Toronto, the said the Toronto Street Railway Company ahall have, but only in respect of the said Island, such and the like powers with regard to the description or kind of motive power to be used upon such railway or tramway as are by the Act 40 Vic, cap. 84, conferred npon the Metropolitan Street Railway Company of Toronto. 2. All such provisions of the Acts of Parliament relating to the said Company as confer rights and powers upon the said Company in respect of municipalities immediately adjoining the City of Toronto, and as invest the said municipalities with auttiorities or powers in regard to the aaid Company or its undertaking ahall bo held to extend so as to confer auoh rights and powers upon the aaid Company in respect of the Town of Parkdale and so much of the Township of York as lies between the said Town of Parkdale and High Park, in the said Township of York, and ao as to invest the said Town of Parkdale and the said Township of York with the like authorities and powers in regard to the said Company and its undertaking as are by the said Acts vested in municipalities immediately adjoining the said City of Toronto. 8. The Municipality of the Town of Parkdale may levy by special general assess- ment upon the ratepayers, notwithstanding any previously existing By-law or By-laws passed under section 620 of the Consolidated Municipal Act, 1888, or any similar section of any former Act, the cost and expenae incurred in performing and carrying out such agreement as the aaid Town of Parkdale may, in pursuance of the said Act 24 Vic, cap. 83, and of this Act, enter into with the said Company. "C." LETTER FROM THE MAYOR TO THE PRESIDENT OF THE TORONTO STREET RAILWAY COMPANY. Sib, — Having noticed in the public press that you propose to claim damages for loss of time in running your cars, and also for any possible damages by other means occurring by reason of the lock-out of your employes, I desire to inform yon on the part of the City that I not only deny all responsibility in the matter ; but I now notify you that I shall hold you to a strict accountability for, — (1) Your violation of clause 10 of the agreement between Alex. Easton and the City, cited in section 16 of your charter, which requires yon to run your cars for fourteen hours per day in winter, and at intervals of not over thirty minutes. (2) For any injury that may be inflicted on any citizen or any policeman by reason of or in connection with disturbances arising out of your action towards your employes. <3) For any injnry to the property belonging to the City or any citizen arising from the same cause. I do this on the following grounds : — First, because you are not in the position of an ordinary' employer of labour. Yon have a trast from the City in occupying its streets, and have undertaken to provide a certain convenience for the citizens in return, from which convenience yon have by your own act withdrawn. 4i ^f i h :« 104 MBMO. 8«oondly, yoa hare by your own aot prodnocd this tronbU, having in th« fao» of the knowledK* of the retolt (m your applioetion for police protection in advance of yoor act provee) deliberately looked out a large body of yonr men, not on acooont of any claim for higher wagee or shorter honre, but aimply for exeroieing a legal liberty in joining a lawful body or eooiety. This action of yonn having produced the difficulty and being the cauee of the annoyance under which the citizen! are laboring, I hold yon and your Company reeponeible for it and hereby demand that yon ahall at once restore to the City the order which existed, and to its citizens the convenience they have a right to, as they existed befora your action disturbed them. I am, Sir, Your obedient servant, W. H. ROWLAND, Mayor, LETTER FROM CHIEF OF POLICE. Cmu' CoNSTABu's Omoa, Toronto, June 8rd, 1866. To HU Wonhip W. H. Howland, E$q., Mayor of Toronto : Dbab Sib, — In reference to your enquiry as to the position taken by the Police Commissioners towards the Toronto Street Railway Company during the recent strikes, I am instructed by the Chairman of the ^oard to enclose herewith a copy of a letter, dated March 19th, addressed by him to the Hon. Frank Smith. I b^ further to say that no action has been taken by the Police Commissioners or by myself as Chief Constable, either before or since the writing of the enclosed letter, which has in any way been a departure from the attitude assumed by the Commissioners, and vindicated in that letter. I have the honor to be, Sir, Yours respectfully, FRANK C. DRAPJiiR, Chi^ CoiutabU, LETTER FROM CHAIRMAN OF POLICE COMMISSIONERS. To Hon. Frank Smith, Toronto ; Chief Conbtablk'b Offics, Toronto, March 12th, 1886. Mt Dkab Sib, — It has come to the knowledge of the Police Commissioners that you have stated that this Board has taken the' management apd running of the Toronto Street Railway. This must be a misunderstanding. The minute of the CITY OP TORONTO v. TORONTO STREET RAILWAY CO. 106 Mtion of tb* Polioe Boftrd ii that " the Chist Conitoble go down to-morrow morning with raoh force aa ii neoeeeary to protect the Company in their efforte to ■turt their care running and continue the lame." We have endaavonred to carry out this decision to-day, but I must disclaim any intention on the part of the Board to assume any greater responsibility or control over your affairs than over the affairs of any other citizen who complains of being interrupted in the enjoy- ment of his civil rights by force and violence. We will endeavour to protect your Company and all other ratepayers who properly make any claims upon the police for protection. Yours truly, JOSEPH E. McDODGALL, Chairnum Board Police Cotnmiuioneri. LETTER FROM THE CITY SOLICITOR. City Souoitor's Omoi, Toronto, June 8rd, 1886. n TORONTO STREET RAILWAY COUPAMY. Dear Mr. Mayor, — At your request, I have considered the enclosed letter from the President of the Toronto Street Railway Company protesting against the City allowing the busses to run in opposition to the Street Railway. In answer to your questions as to the liability of the City, I beg to state that the City Council has nothing ^o do with the matter of permitting or refusing permission to the buss line. If the owners of bussea choose to take out a license under th^ By-law paaaed by the Board of Gommiraionera of Police, they can run their buaaes upon auch atreeta and in such manner aa they may be authorized by their licenae. The Bjr-law No. 7 paaaed by the Board of Gommiaaionera of Police, a copy of which I enoloae herewith, with olauaes marked, ia quite explicit aa to the Gi^y being held liable for allowing other partiea to carry passengera over the streeta of the City of Toronto by meana of oonveyanoea other than Street Rail- way oara. I am of opinion that there ia nothing in the claim. Yonra truly. W. O. McWILLIAMS. W. H. Howland, E$q., Mayor of Toronto. IM :M CXXII. In Coancil : — Aid. Carlyle, aeconded by Aid. Jonea, moves that the Preaident of the Toronto Street Railway Company be requested to extend ita tracka on Broadview Avenue, from Queen atreet to Danforth Avenue, and to establiah a route for the accommo- dation of dtizena by running the oara from the aaid Danforth Avenue to the Union Station by way of Queen street, Yonge atreet and Front atreet ; and farther, that the aaid Toronto Street Railway Company be notified of the City's M '^0^- ^» I ^1 m' ^ wbH ■ a.^^1'1 ^^Mhijr^Hf^' 5 !"•('?'''•" j^ji 100 MEMO. iV intention to blook-p»ve Broadview Avenao from Qneen Street to Danforth Avenne, and that the laid Company will be asieeMd for ita ahare of that portion of the roadway oooopied by ita traoka on Broadview Arenne, between Qneen Street and Danforth Avenue, in the event of the Company electing to oonatrnot and extend the said railway tracks, and that the dSrd and 85th ralea of this Counoil be dia- penaed'with ao faraa they relate to thia motion, which wai carried. (Minute 7'i9, Minutes of Council, June Slat, 1886.) CXXIII. Jieport No. 98 of the Commlttet on Workn. TORONTO BTREBT RAILWAY TRACKH. It is recommended that the President of the Toronto Street Railway Company be requested to extend his tracks across the Queen street east bridge, and operate one (S9 -ine of cars from the Don Bridge to Greenwood's line. Committee Room, Toronto, September 31st, 1886. (Appendix 061 to Minutes of Council, 1886.) In Counoil : — The Council resolved itself into Committee of the Whole on Report No. 84 of the Executive Committee, Aid. Crocker in the chair. The Committee rose. Aid. Crocker reported that the Committee had adopted the report with certain amendments : [None relating to this matter— Bd.] The report was received. The amendments were concurred in. The report as amended was adopted. (Minute 1,008, Minutes of Council. September 27th, 1886.) CXXIV. To the Council of tlie Corporation of the City of Toronto : The Executive Committee beg to submit their Report No. 87 : Your Committee, referring to the motion introduced by Mr. Alderman Macdonold on 17th May last, directing the City Solicitor to publish in pamphlet form the agreement between the Corporation and the Street Railway Company, the charter of the said Company together with all Statutes or City By-laws in any way relating to such Company, which was referred to the consideration of your Committee, beg to report that the City Clerk has ascertained that the cost of such printing woold be 9100 for one hundred copies, and 9150 for 500 copies. In view of the state of the appropriation for printing for the current year, which is almost exhaasted. yoor Committee cannot report funds for this purpose. • • • • Committee Room, Toronto, October 21st, 1886. (Appendix 1051 to Minutes e;^ Council, 1886. i? ' ■V -" ^" YA' CITY OF TORONTO v. TORONTO STREET RA.ILWAY CO. 107 In Council :— The Coanoil rew>lved itself into CommittM of the Whole on Report No. 87 of the ExeoutiTe Committee, Aid. Allen .>i the chair. The Committ«e rem. Aid. Allen reported that the Committee had adopted the report with the foUowinit amendments : [Noiu relating to thit matter— Ed,] The report was received. Upon the question that the report as amended be adopted, Aid. Muodonald, seconded by Aid. Hunter, in amendment moves tliat the report ns tt'uendod be not now adopted, but that it be further amended by striking opt nil after the words ** i\ve hundred copies " in the eighth line of the clause of Report No. 87 of the Executive Committee, having reference to the printing of all documents and papers relating to the Toronto Htreet Railway Company, and inserting the following in lieu thereof, " your Committee beg to recommend that the Council direct the City Solicitor to compile and cause to be printed five hun- dred copies," upon which the yeas and nays were taken as follows : Yras— Hit Worship the Mayor, Messrs Allen, Barton, Boustead, Carlyle (St. Andrew's Ward), Fleming, Hunter and Macdonald— 8. Nays— Messrs Carlyle (St. Thomas Ward), Defoe, Drayton, Frankland, Galley, Irwin, Johnston, Jones, Low, Popler, Piper, Boaf , Saunders, Steiner, Turner, Verral, Walker and Woods— 18. Decided in the negative by a majority of 10. m Upon the question that the report as amended be adopted, it was carried. (Minute 1092, Minutes of Council, October 25th. 1886.) t cxxv. To the Coutieil of the Corporation of the City of Toronto : The Executive Committee beg to submit their report No. 88. Your Committee, on the advice of the City Solicitor, recommend that the. sum of »200, to meet disbursements, witness fees, etc., be paid over to Messrs. Robinson & O'Brien, Solicitors for the City in the suit now pending between the City and the Toronto Street Railway Company, to enforce the provisions of the by-law* relating to conductors on all street cars. Committee Room, Toronto, November 4th, 1886. (Appendix 1102 to Minutes of Council, 1886,) m m ^• >, ::'tti' •\ \ /ti'^^W ^ M MM .'•'.i'i ■4 vWW! 108 MEMO. ^% f^ f^ In Council : — The Connoil reanmed Committee of the Whole on Reports Nob. 88 and 39 of the Executive Committee, Aid. Boustead in the chair. ' The Committee rose. Aid. Bonstead reported that the Committee had adopted Beport No. 88 with the following amendments ; [None relatinff to thit matter. — En.] The report was received. Upon the qaestion that Beport No. 88 as amended be adopted it was carried. (Minute 1161, Minutes of Council, November 8th, 1886.) CXXVI. Beport No. 13 of Local Board of Health, • • • • . Tour Board beg to report that they are in receipt of a very largely signed petition of property holders, ratepayers and others, residing on Scollard street, complain- ing of the great nuisance and discomfort caused by the stables of the Toronto Street Railway Company, situated on that thoroughfare. They (the petitioners) state that the offensive odors are chiefly caused by the depositing of manure around the building, the carting away of manure past their houses, and the grooming of horses at the doorway of the stables. The petitioners further intimate that the kicking of horses during the night, and the continual standing of from two to four horses on the corner of the said street and Yonge street, create a constant amount of filth and bad odor, and from the causes above named a depreciation in the value of property is the result. Tour Board, after an earnest consideration of the above facts, strongly recom- mend that the Medical Health Officer be requested to at once cause the nuisances above complained of to be abated, and the said Street Railway Company be in- structed to have their stables above situated placed in a proper sanitary con- dition. , Board Room. Toronto, November 16th, 1886. (Appendix 1,188 to Minutes of Council, 1886.) In Council: — The Council resolved itself into Committee of the Whole on Report No. 40 of the Executive Committee, Aid. Carlyle (St. Andrew's Ward) in the chair. The Committee rose. Aid. Carlyle reported that the Committee had adopted the report with the following amendments : [None relating to thit matter. — £d.] The report was received. The amendments were concurred in. The report as amended was adopted. (Minute 1,180, Minutes of Council, November 22nd, 1886.) .)£l^iii^M^^iM^^i&i^^^mm.'s - ji/^S^Itili^&i fciiK«i f» ■ CITY OF TORONTO v. TORONTO STREET RAILWAY CO. 109 of the CXXVI. In Council : — nib Worship the Mayor read to the Ooancil a message 8tatin| the result of the suit brought by the City to compel the Toronto Street Railway to place condno* tors oil' all one horse street cars, and the necessity of at once taking action in the matter of the repairs to the roadways on all streets occupied by the tracks of the said company. (Minute 1165, Minutes of Council, November 2ind, 1886.) The Message and relative Enclosures are as follows :- Mayor'i Office, Tonynto, November SBnd, 1886. OentUmen of the Council i I have pleasure in informing you that the suit against the Street Railway Com- pany to enforce the by-law regarding conductors on one horse cars has been decided in the City's favor. I bring down herewith the Solicitors' letter, and a copy of the judgment itself, by which it will be seen that not only is our right afSrmiad to pass such by-law under our agreement, but the learned Chtacellor held that the by-law itself was recuonable, and that while giving full weight to the defendant's argument about the expense, he considered that there was no such unreasonable burden imposed on the Company as to induce the Court to hold its hands ; as the Company will have to pay the costs of suit the c ity will not be at any greater exj^nse in the matter than if their own solicitor had undertaken the case. I find it necessary to call the attention of the Council to the failure of the City Solicitor to get the case to trial to recover the cost of the repairs made to the block pavements on those portions of streets occupied by the Company's tracks. The instructions were given by Council to proceed nearly seventeen months ago. The Solicitor assigns the cause of the delay to reasons of a private and personal nature, which I prefer he should himself explain. My object in mentioning the matter at this time is to call your attention to the extreme urgency and the need for immediate action. I have before me blocks tak:3 from between the tracks on Yonge street, whToh. are worn down in parts to two inches in thickness. If the pavement between the tracks is not taken up and a new one laid as quickly as it can be done, we wUl not get through another year without having our main thoroughfares rendered nei^rly impassable. If the Council, in view of the urgency, choose to put into my hands the conduct of the suit against the Company, I will venture to state that there will be no delay beyond what the law permits in determining the issue. I may add that a number of claims and suits are being brought against the City ■\ i j c L^^ l*^'- \ 5 110 MEMO. for damages arising out of the condition of the streets travelled by the railvray, and every day's delay adds to the losses sostained by the City in this particular alone. W. H. HOWLAND, , , Mayor. "i4." Toronto, November 22nd, 1886. CITY OF TORONTO V. TORONTO STREET RAILWAY. ly. H. Howldnd, Esq., Mayor of Toronto : Dear Sir, — The suit of the City of Toronto against the Street ^ailway Company to enforce the by-law passed in December, 1882, to compel the defendants to place conductors on all their cars, has been heard before the Chancellor. Judg- ment was delivered on Saturday in favor of the City, with costs, on all points brought under discussion. An injunction may issue in ten days, thus giving the company suiBoient time to place conductors on all their cars, with a right to the company to apply for a further extension of time upon cause being shown for its necessity. The case occupied the best part of seven days, and a large number of witnesses were examined on both sides. 'The effect of the judgment may be sum- marized as follows : 1. The Corporation had authority to pass the by-law in question. , 2. Nothing passed between the Corporation and the Company whereby they were debarred or stopped from passing the by-law or from enforcing it, and there was no agreement or understanding between the Corporation and the Company that one horse cars should be run, or that no conductors were requisite. 3. Tliere was no breach of faith on the part of the Corporation either in passing the by-law or seeking its enforcement, and there was no change of position as between the Corporation and the Company that should induce the Court to hesi- tate in enforcing the by-law. 4. The evidence showed that the by-law was reasonable. ■5. The Chancellor thought that on the evidence the by-law was passed bona fide, and not owing to pressure of any labor organizations or with any sinister object. fi. Although the Chancellor felt that there was much weight in the defendants' argument, on the ground of expense to the Company and that it was impossible to give as frequent a service with conductors as without, he considered that on the evidence there was no such unreasonable burden placed upon the Company as to induce the Court to hold its hand. We enclose yon the note of the Chancellor's judgment, which was delivered verbally. , ' - Tours truly, BOBINBON & O'BBIEN, Barristeri, etc. i/ij*^:'; CITY OF TORONTO v. TORONTO STREET RAILWAY CO. Ill " B." Satitkday, Notbjibeb 20tb, 1880. Judgment. BoTD, 0.— It does not appear to be needful for me to hear farther argument or to delay to look into these authorities which have been cited, because none of them governs this case in its circumstances. The nearest is the Brooklyn case, which has been referred to ; but that is widely distinguisliable, from the fact that there was no preceding agreement between the parties who were litigating, which is an important element in this case. The case of the Street Railway has been argued in a very careful way by a gentleman who has been long concerned with their interests, and who has not overlooked any point that could make in their favor. His argument has been an exhaustive one, but it has not shaken the opinion I entertained early in the case, that the decision could be only one way. The lines of division which he has followed in his argument I may properly follow in stating the reasons why I think judgment should be given for the City of Toronto. He argued first of all the broad question which of coarse lies at the root of every- thing—as to the validity of this by-law. He first argued generally that in form it is improper, and that in substance it transcends the jurisdiction of the City Conncil. He argued as his fourth point (but the general argument as to the validity of the by-law may be conveniently embraced with this fourth point)— unwarrantable interference with the domestic affairs of the company. Then he proceeded upon the facts to argue that the by-law should not be given effect to by the Court, because it was not a reasouablelone ; first, because it was not a reasonable one as regards the municipality and the public ; secondly, as regards tha Company. These divisions, 1 think, embrace all the aspects in which this case can be viewed. They were argued in that way, and I don't know of any other which can be entertained or which is covered by the pleadings. Now, as to the first, I quite agree with the argument of Mr. Shepley, that the rights of the parties must be measured in this case by the original agreement with the first proprietor of the road and the statute which legalized that agreement. The agreeihent made in 1861 with Mr. Easton is one which it is to be observed was afterwards declared by the Legislature to be a valid and binding agreement. So that all the clauses of the agreement of the 26th March, 1861, are to be read as constituting not only the contract between the parties but also the powers which are entrusted by the Legislature to the City Council ; because in validating the conditions, clauses and terms of this contract between the parties it gave legis- lative sanction to what had been done, in the same way as if the whole had been embodied in an Act of Parliament. Now it is to be observed that this provides that Alexander Easton, the first proprietor, was authorized by the first clause, or by the first resolution rather, of this agreement, to lay down street railways in the City ; sach railways being of approved construction and to be operated under such regulations as should bo necessary for the protection of the citizens. There was a qualified right, therefore,, given him to lay down the work under such regulations as might be necessary for the protection of the public. This is developed and the meaning of it ascertained in the sixth sub-section of the covenants. One has to look at all the parts of this agreement and collate them ao as to ascertain precisely the meaning. Beading then the sixth olaase, it appears that Mr. Easton undertakes to operate the railway and cause the same to be worked nnder such regalations as the Com. aon Council of the City of Toronto * tT V ^ -* ¥u ■ , , ■■ ^^^ia -.t., 71 ':\-''n •§ ^ ■■; ^ j ■' -'I S A Jt t Jp v.5« $, 1^1 w^^ 112 MEMO. I 'k t, ; may deem necessary and requisite for the proteotion of the persons and property of the pnblio. It is very important to observe, however, that the regulations are such as the City of Toronto may deem necessary. The railway is not to jadge, but the Gity ; the Gounoil are to judge as to what is necessary and requisite for the proteotion of the persons and property of the public. Of course there is always the question of reason and propriety ; the Council must not act in an absolute, arbitrary and tyrannical way ; but if with any show of reason they act, it seems to me they are the parties to judge what regulations are necessary for the protection of the persons and property of the public. It is not only as to pas- sengers this is directed, but also as to the public who use the street— a general pow^r given to pass all regulations necessary for that purpose. It is a general power all through ; the only limitation is that " such regulations shall not infringe upon the privileges granted by the said resolutions." It is said further in the first clause of the by-law which was passed after the agreement was vali- dated by the Legislature, " that Alexander Easton is authorized to lay down street railways," and so forth, " and to work the same under the provisions and restric- tions in the said agreement contained and such other regulations as are herein set forth or may from time to time be deemed necessary by the said Council for the protection of the citizens of Toronto." That shows that the regulations were to be made by the City for the proteotion of the citizens, not at once, but from time to time as the iutereate of the Gity required. As the growing population and growing needs of proteotion increased, the City was enabled to pass regu- lations from time to time for that purpose. Then, in the 16th clause of the Statute, we find that after declaring that the said recited agreement shall be valid and binding, it gives power to the Gity to pass any by-law or by-laws for the purpose of carrying into«£fect the said recited agreement. Their power was not exhausted by the passage of one by-law, as I read this ; they could from time to time pass by-laws for the purpose of carrying into e£feot the said recited agree- ment; and the agreement itself speaks of regulations for giving effect to it, and the statute empowers the municipality to pass by-laws for the purpose. So that even as a strict matter of form I don't think it can be said that this by-law in that sense is ultra virei. The Legislature has entrusted the power to the City — to pass by-laws to carry into effect the recited agreement. These are the powers under which this by-law is passed. The only limitation on these powers, it is to be observed, is that the regulations should not infringe upon the privileges granted by the said resolutions. Now what privileges are granted by the reso- lutions ?' The power to work the railway ; the power to work it with conductors as well as drivers. The direction that not only drivers but conductors shall be placed there to take charge of the cars. The by-law in question is one which requires conductor as well as driver. This by-law is not foreign to the text of the agreement. It is not extraneous matter brought in and thrust on the Street Railway Company, or superinduced upon the original contract; it is subject matter which is woven in the very text of this agreement. This agree- ment provides and contemplates that there shall be conductors and drivers. Then it is said that this is satisfied by having one person who drives the single horse car, who is the conductor. Mr. Woodwortb gave evidence thatr he would call that man a conductor. That is not the way in which a Court wonH construe the agreement. When this agreement was passed there was no sucl. thing as a one-horse car. The only thing known was the two-horse car, in which there was always a driver and a conductor ; the driver having a distinct function, the con- ^•^ J^.U CITY OF TOEONTO v. TORONTO STREET RAILWAY CO. 118 dnotor having a dittinot fonotion. And I take it that in these regulations of the Street Railway Company, which were sabmitted to the Gounoil as a pre-reqaisite to enable the Company to work under them in conducting the road ; in these regulations of the Street Railway Company rules were provided for the govern- ment of conductors and drivers upon the railway. The original rules cannot be found ; but it is said by Mr. Smith that these rules embodied, as I understand him, the only rules the Company ever had from the beginning, which were added to from time to time, and in 1880 reduced to their present shape. I have no doubt that in these we find the original rules interspersed — although we cannot exactly identify them — interspersed with some rules passed afterwards, when one-horse cars came into use. In these rules and regulations of the Toronto Street Railway Company, which I take it were substantially in force from the first, there were rules for the guidance of conductors, giving them a distinct set of duties, which appear to be, looking at these rules, quite enough for any men to perform. Then there were rules for the driver, which seem to be quite sufficient to occupy the attention of one man. And judging by these rules, the gloss that is now sought to be put upon this agreement does not appear to have occurred to the contracting parties, braause when they speak of these men in 1880 they are not spoken of as " conductors " of the one-horse cars— Rules 18 and 14 — they are spoken of as the " drivers " of one-horse oars. " The drivers of one-horse oars will use great care, and see that the passengers deposit their fares," and so on ; and further, in that line, showing that this is an after-thought in the pamphlet submitted to the City Council by the Street Railway Company in March, 1883, the title of which is, " Information respecting one-horse oars without conductors." Manifestly, they understood "driver" to mean one thing, and "conductor" another. And so throughout this pamphlet these cars are spoken of as " street oars without con- ductors ;" and a gentleman who has a letter in it speaks of the " conduotorless" — coining a word for the purpose—" one-horse oars." So that, upon all principles of construction, when this agreement speaks of " drivers and conductors," those are taken to mean, and the parties themselves meant, two officers or agents, one of whom is to drive the car, the other to conduct the oar ; one to discharge the duties of driver, the other to discharge the duties of conductor. The agreement goes so far in one of its clauses as to point out amongst the duties of conduo- . tor one which could not be performed by the driver of a one-horse car with- out extreme inconvenience to the passenger. For instance, in dark, cold, or stormy weather, when it is necessary to have the names of streets called out, it would be a most inconvenient thing for the driver at every street to open this front door to shout the name of the street through the car— great inconvenience to the passengers, and the liability to take colds and the like. It was certainly not contemplated when this original agreement was entered into that the driver should do any such work. It was the place of the con- ductor at the rear of the car. In the sixth paragraph, wherein the Company undertake to employ careful, sober and civil agents, conductors and drivers, the words "conductors and drivers" do not mean one man; they mean tyro men; the agreement means two men on each car ; and the company frame their rules, showing what the duties were of these several persons, upon which the statute was satisfied, and upon which the right to exercise this franchise arose. So, then, it cannot bo said that this by-law dealing with the conductors is one which infringes upon the privileges granted by the resolution. I think it does not infringe upon it. It merely makes distinct that which would be rather a matter J" •■'"t, 114 MEMO. m of inference in the original agreement. It makes distinct in the changed con- ditions, in the changed form of ciroamstanoes which arose afterwards when one- horse cars were put on, that the City, although sanctioning one-horse oars, which are more economical in some respects, did not intend in the long run to dispense with conductors being on those cars. It may be at first that they winked at it, and allowed them to be run with only one man, but did not resign their power to afterwards enforce the regulation when circumstances arose to make it desirable. It seems to me that that is an answer to the whole argument addressed to the invalidity of this by-law, based on these American authorities, that this by-law interferes with the domestic concerns of the Company. If it does interfere with the domestic concerns of the Company, it does not do so in any unwarrantable sense. It does so because the Legislature has seen fit to entrust to the Municipality the right to do so by sanctioning this agreement, and giving it the force of law. It is just the same as if it had been in the statutes. It is delegated power given by Parliament to the City Council to enact such laws as may be necessary for the proper working of that railway in order to the due protection of the persons and property of the public. It was a piece of delegated legislation which it seems to me is intra vires, within the powers of the municipality. One has to look at the original Charter to see if the Municipality had transcended these powers. It seems to me they have not so acted in passing this by-law. Then upon the evidence it is argued that the by-law is not a reasonable one. The pleading on that point puts it that the by-law was not passed for its ostensible object, but for other objects, and that it is oppressive, unfair, inequitable, unjust, and infringes upon the privilege, and so on. If the evidence made that plain, I don't say but that the Court might inter- fere, even at this late day ; even although the by-law has been so far fM^niesced in. The court could not abstain from not puttins forth its hand to enforce the specific performance of the by-law, and the evidence is to enable the Court to determine whether the by-law within the meaning of the case is a reasonable one. I don't think it is necessary for mo to balance as to the less or more of the convenience in this particular case. It is not for me to say on the one hand that the City Council did not act as the court would have acted in coming to this conclusion. I am not obliged to go so far as that. But looking at the whole of this evidence, it seems to me that there are very strong and sufficient reatons for saying that the City Council were justified in taking the action they did. Mr. Shepley refers to two points which, as he says, demonstrate that this by-law is not required for the protection of the public. The first is in regard to a record of accidents which is kept by the Street Railway Company, showing that the number of accidents has been more on the two-horse oars than on the one- horse cars. There is a great deal to be said on that point. A good deal of com- ment might be made on that record, recalling the observation made by Mr. Lef roy the other day, that these statistics may be in one sense fair and yet kept with a bias. The information as to accidents upon the one-horse cars is derived from the drivers. The drivers are responsible for these accidents, and they may very easily be supposed to overlook certain things which disinterested persons might call accidents ; the drivers might not consider them accidents at all. So that look, ing at the register of accidents filed by the company, and seeking to deduce from CITY OF TORONTO v. TORONTO STREET RAILWAY CO. 116 • t that that the by-law is unreasonable, and not required for the protection of the public, would be, I think, rather a violent inference. One has rather to look at the other class of evidenca referred to, the findings by the coroner a juries. It seems to me that these afford reasons for the action of the Council, and they afford reasons for enabling; me to say that this by-law was not enforced with any sinister object. It is impossible for me upon this present evidence to give effect to the suggestion that the Knights of L ibaur or any other irresponsible people are pulling the strings in this case. We have had Aldermen come here, giving evidence . straightforwardly, having no objects to serve, and they think it is necesoary for the protection of the public to have the by-law enforced, and with that view they urge this action on the court. When we look at the history of 'the municipal legisla- tion in that respect, it will supply a conolnsive answer to the suggestion of any sinister object, and will show the reasonableness of the action of the Council in asking this relief. One of the earliest motions appears to have been made some- time in 1880, if I understand it, when there was an accident, upon which a c r- oner's jury made a report and a recommendation, which appeared in the public press, and which incited Alderman Morris, who gave his evidence here, to make a motion in December, 1880, with the view o£ ascertaining what were the rules and regulations of the company, and the limits of this Company's rights, and with the view of having conductors on single-horse cars. That last matter does not appear in the minutes of the Council, but it appears in the newspaper report, the Mail, and that report having baen raid to Mr. Morris he recalled the ciroum- stancis ; so that we have the mitter then broached in the City Council and in the City papers as far back as December, 1880, before the Knights of Labor were heard of at all ; broiched by Mr. Morris, actuated by philanthropic motives in that matter, and giving effect to the finding of the coroner's jury. I have it here, I think— inquest held before Dr. Riddel on the death of Mary Elizabsth Grurd — and the recommend ition was that the cimpiny should furnish conductors as well as drivers for all cars owned by tiiem. This was on the IH ii December; and on the 20th December, two days afterwards, was Alderman Morris' motion. In 1882 the by-law which is the basis of this action was passed. That was before any agitation took place here of the kind alleged. That was intro:1uced by Alderman Low. Ha gave his evidence, and says it was introduced also because of an acci- dent which took place a few days before, and in regard to which tlui coroner's jury gave a similar recommendation. Now that by-law has not been repealed. However, the agitation in the Council has iiuctnated backward and forward on this point, intiuenced by various reasons ; the fact still remains that the by-law has not been repealed. I'hough suspended occasionally, and further information required, it is still an existing by-law, supported by the majority of the Council, and, therefore, one which I must give effect to. Lookiug at the evidence, one cannot fail to observe that there is good reason for saying, as tw or three of the Aldermen said yesterday, that this by-law will tend to the protection of the public. The evidence of Mr. Geddes very much impressed me. He was a much more intelligent man than the first practical witness, Montroy, who found him- self, although he was not a very stupid man, unable to get into the way of man- aging these one horse cars at all. Mr. Qeddes was a man of a different stamp ; he had been in charge of one-horse cars ; and I think one could not fail to observe throughout the evidence t'.iat the duties of these men are almost too much for one man unless of exceptional capacity. It is more than any ordinary man can 9 116 MEMO. be expected to do, to manage a one-horse oar with all the inoitements and induoe- ments there are to divert hie attention. That was put very forcibly by Oeddes. It is corroborated by other evidence ; but his being that of a practical man, given from his own experience, impressed me very strongly. He says that at the time he was a one-horse car driver he had tu look after his horse ; that of course is the primary thing, the main thing; and in fant on a properly managed railway the driver should never leave his horse under any circumstances when passengers are in the car. His first duty, his main duty, is to look after his horse. Than he has to see that the fare is paid by the passengers. That involves diverting his attention to see who gets in and who gets o£f; who puts the fare in the box and who does not.* That ''.volves getting the fares from the people who don't pay. Then in that case he has to leave his horse and get the^are. If he stops his horse for that purpose the danger is that he loses time ; and the company are very strict, we are told, in these two matters— that no fares be lost and that good time be kept. So that the man has all these conflicting duties ; has to get his fare, has to make time, has to see after his horse. He has to see that passengers on the back of the car— half -drunken, or stupid, or dishonest — pay their fares, and if necessary get the fares from them. Then he has to make change, which distracts his attention. He has to stop the car when the passengers get on and off. All these things show how easily, if he is wearied by theqe various duties at the end of a long day, how easily be may become somewhat careless, and an accident result. Theevidence of Alderman Harvey affected me very strongly. He had been handling passengers for many years,and was peculiarly well fitted to speak on the subject. His own experience showed how an accident might happen from the driver being overworked, his attention distracted by different things, and how the retention of the conductor or the placing of a conductor on one-horse cars would be most important for the protection of the public. It is not necessary to go any further in order to show that the by-law is a reasonable one. If it be as argued by Mr. Shepley, that the statistics show that the one-horse cars are safer and cause fewer accidents, then it only strengthens the contention of the City. If the one-horse cars are safer than the two-horse cars, they will be still more safe if they have the protection of a conductor. So much as regards the City in this matter. It does not appear to me that in view of the evidence it is unreasonable so far as the City is concerned. It appears to me further that if the by-law is valid, one that it is legal to enact, and if it were a question of reasonableness, that the question of reasonableness is one merely for the municipality to deter- mine. Even if the case were not so strong as I find it here, there must be some want of good faith, there must be some manifest impropriety or obvious absur- dity in connection with the legislation to induce the Courts to say that the action of the municipality is impertinent and ought not to be given effect to ; beoanse the agreement between the parties shows that the railway is to be worked under such regulations as the Council may deem necessary for the protection of the per- none and property of the public. The President did not seem to take that view. He seemed to think that it was for the Company to work in the most economical way ; and if they gave good service, such as they deemed snfiScient, the Council had no right to interfere. It seems to me that the Council have the riglit to legislate for the benefit of the public, even if involviug an addition to the expenses of the Company. The question is, is there such an onerous and grievous burden CITY OP TORONTO v. TORONTO STREET RAILWAY CO. 117 placed by this By-law npon the shouldera of the Company that it must be deemed ■o oppressive that the Court on the usual principles of speoifio performance should abstain from enforcing it. If Mr. Shepley's argument were well founded, perhaps it might amount to that. If this involved the giving up of one-horse oars and selling the rolling stock, the acquisition of new cars and putting on of two horses, and all that, involving a large expbnse, estimated at about fifty thousand dollars, it would be something to make the Court hesitate. But I do not read the evidence at all in that way. The evidence of Geddes shows there is no change required in the work, no change required in the rolling stock, no change required in the horses ; nothing but to put one man additional on these one-horse cars. In Bel- fast the oars are limited to the carriage of sixteen passengers, and there they have conductor and driver. In this City some of the one-horse cars will hold fourteen; that is Mr. Franklin's evidence. That is two less than the Belfast oars. Others are larger and will hold more ; but even taking the fourteen cars ag against the sixteen cars of Belfast, there is nothing to cause difficulty in having conductors on the one-horse cars the same as on the two-horse cars. 80 that I don't think that the argument of exx>ense is a valid oue. Then there is the argument that no such benefit will arise as will counterbalance the incon- venience which will be caused by the change. That was the point which appeared to me to have the most weight ; but after all I am not the person to judge about that. It is for the Council representing the people ; and for the people in returning representatives to the Council to determine whether or not any such change will result from the action of the Court as will induce them to undo what is being done by this By-law. In other words it is said by the Com- pany that if this rule is enforced of having two men on the one-horse cars it will be impossibiu to give as frequent a service as they now give ; that the cars must be run at longer intervals. They say that there must be two-horse oara, and that with two-horse cars they can only give a twenty minutes or half-hour servico instead of a ten minutes service such as the one-horse cars give now. In the first place I don't see that it follows at all that the one-horse oars must be dispensed with. I think it is a matter of option with the Company, and not a. matter of necessity. In the second place, it may be that the Company will not be able to run the cars so often. That is for the Company to determine ; und if the enforce- ment of the By-law results in a less frequent service, it is for the public to say whether they are satisfied with such a service in consideration of the increased convenience and safety of having conductors on all the cars. It may be that the service will be less frequent in consequence of what has been done ; but it strikes me very forcibly that there will be no such result even as that. One's observa- tion teaches that the very frequency of the running of the street cars is that which educates the people into travelling upon them ; and the more frequently the cars are run, in reason, the greater the number of people who travel upon them. If there is to be an infrequent service, people will be trained to walk ; and in that case the profits which would be made by running the cars will disappear. This is in the hands of tho Company. They will do what they think best ; and in view of their action the Council and the people will take such steps as they deem best. It is a matter which after all does not interfere with the disposition of the case here. 1 have nothing to do with the result. I have only to say whether on the present evidence there is any such unreasonable burden placed upon the Company as would induce the Court to bold its hand. I don't see that it is proved. Then it said that the doctrine, not exactly of equitable estoppel. 118 MEMO. because tliat totally failed on the evidence, but Imvin^; re^iard to the conrse of action on both sideg, that of the Council and that of the railway, there lias been a change of position such an should induce the Court to hesitate. 1 don't think that is borne out by the facts. There were opposition companies coming into the field and tendering; for these lines of road. The street railway, exeroisinK the option Kiven them by the twenty-fourth clause of that a({reement, I think it was, obese to keep out those other companies and to place their tracks there. At first they ran one-horse cars, but of their own motion ; it was nut the result of any a((ree- ment or understanding as alleged in these pleadings, between the Board of Works nr the Council and the street railway ; but simply because at that particular time the neighbourhoods where they ran were sparsely settled, and the ex- penses would not justify perhaps putting on a more complete service ; and the City Council did not choose tu enforce any strict rule, as they might have done. But putting on the one-horse cars was an optional thing on the part of the Street Railway Company. But that went on to a very limited extent indeed ; because in 1880 we find the matter mooted in the Council of putting a conductor on every car. In 1882 we find a By-law actually passed, prescribing a conductor on every car ; and the greater part of the purcliaHes of these one-horse cars has been since that time; the Company acting with its eyes open and knowing ^'Hir* fectly well that members of the Council were agitating, and that the public vvere agitating, through coroners' juries and otherwitiu, to increase the charge upon the Company by having conductor as well as driver. Then there was no action on the part of the Council that disables them from acting in this way now. If the argument of Mr. Shepley were well founded, that this change required the sale of all the one-horse cars, then he might argue to some purpose in that way ; but I don't see that that follows at all. The Company can keep all their rolling stock, everything just as it is now, and simply put on another man, involving sixty or seventy additional men, which is all that is required ; and that is no such great burden upon them as will countervail the advantages they get from running these lines of road. There may have been reason at first not to enforce the By-law strictly ; but now that the outlying neighbourhoods are opened up, greater loads carried, and all these cars going through King and other crowded streets, the necessity is pressed upon the Council now not to delay the matter any longer but obviate the chance of accidents by having conductors upon these one-horse cars. No doubt the street railway has been a public benefit to the city. It has helped to build up the outlying parts by the service they have had. Bat the Company have had the advantage of that in the use of the one-horse cars and the revenue derived from them. Now the City is being built up, it is no argument that things should continue as they were because things were so in the beginning. If the circumstances are such as to give rise to the necessity for exercising the power given by the statute, the Council can pass rules as they see best - can pass by-laws from time to time to protect the persons and property of the public. I might have adverted to the protection which would be given to the public by putting conductors on. We had evidence of a very convincing kind from a great variety of witnesses, beginning with Dr. McMichael and ending with Miss Jarvis • which showed that as to ladies with parcels, ladies with children, people not very sound in limb or of impaired physical powers, conductors would be of very great service. That is manifest ; there is no use elaborating. Duties of the kind that are performed by a conductor, if he does his duty, at the rear of the car, will help materially in all such cases and tend to prevent accident. It is only necessary to CITY OF TORONTO r. TORONTO STREET RAILWAY CO. 11J» look at the lefiiBktiou in that direction to see that it is justified by the torma of this oontrnot. It Meemn to me that that oovera everything that has been argned in this oaae. The action seemM to be a bona fide one, not inspired by the Kni>{htH of Labour or anyone else, but a hoiw fide action of the City Council upon a by-law whioli seo^n^ to rae to be within tVie powers of the Council, passed with a view to aff >rd protootion as far as possible to the persons and property of the passengers and the public wlio use the street. I have heard no valid defence urged on the park of this Company. I have nothing therefore to do but to give judj^raent for the plaintiff. Au injunction may ibsua after ton days. That will give the Com- pany Buflloient time to man their oars with conductors. After ten days an in- junction will issue to restrain the running of any oar without a conductor as well as a driver being on the car. No damages are asked. Costs to the plaintiffs. Mh. Shrflkv asks for the injunction to be delayed for a longer period. His Loudsuip— a month ? What do you say to that, Mr. Robinson ? Mr. Uouinhon— It depends on whether my learned friends intend to press the matter further. His Lordship— The sittings of the Divisional Court will soon be here; the elec- tions are coming on ; there is the Court of Appeal. All these fornma are oi>eQ to them. Mr. Borinson — If it ia their intention to resort to these forums, I think the time should not be extended. His Loruship — Ten days ; with leave to move within ten days. • CXXVIII. City Enoinber's OrricE, Toronto, November '20th, 1886. Hit Worship the Mayor Sir, — In obedience to instructions from the City Engineer, I beg to submit the following memoranda from the Minutes of the Committee (which have just been returned from the Court of Chancery) during the past two years, in reference to the suit now pending between the City and the Street Railway Company, relating to the repairs to those portions of the cedar block pavements occupied by thg tracks of the Company. 1. On the 7th April, 1883, it was ordered that it be a recommendation to Council that a suit be instituted against the Company to recover the cost of the repairs made to the block pavement on those portions of the streets occupied by the Com- pany's tracks. (See Report No. 7, Committee on Works.) 2. On the 28th July, 1885, the Committee made a recommendation thatpro- aeedings be taken by the Solicitor. (See Report No. 15.) 180 MEMO. 8. On the 8th Deoember, 1885, attention was drawn to the deiirability of ({oin^ oik with the luit. (Bee Report No. !)U.) Your obedient servant, E. P. RODEN, Secretary. CXXIX. In Council : — The following oommanioationB were road : City Solicituk's OrricR, Toronto, 22nd November, 1H86. Be City of Toronto Street Railway Suite, Dbar Sirs, — It having been stated that the City is damnified by my failnre to bring the action against the Street Railway Oompany for repairs of cedar block roadways to trial, I beg to state that no City interest has been sacrifloed or even risked by the delay. When His Worship's message comes before the Exeoativu Committee for their consideration and action, I request that I be heard in explan- ation of my apparent neglect of daty. In the meantime I have to state that the primary duty in keeping the whole of the street in repair rests with the City Council ; and if the advice which I gave in the first instance hod been and was now followed no complaint would be heard. The Statute doarly provides that in any case when that portion of any street, which should be kept in repair by the Company, becomes out of repair, *' the City Engineer shall give the Company notice at the head oiilce of the Company requiring the said repairs to be made forthwith, and unless such repairs are commenced within five days and carried on with all reasonable despatch to the satisfaotion of the City lOngineer the said Engineer may oause such repairs to be made at the expense of the City, And the amount so expended shall be recoverable against the said oompnny in any court of competent jurisdiction.*' This surely puts the City in position to protect the citizens from accident and enables the Council to keep the streets in proper order and repair. As to the delay in bringing the action to trial, it will be seen from the above that it in no way affects the rights of the Council being determined. And inasmuch as there is every reason to believe that whatever the result of the trial mty be in the first instance, there will be an appeal, and that a considerable time must elapse before the matters in dispute between the Company and the City can be finally decided. The City should not delay in putting the streets in proper order and repair. It may become a question since the Council have the matter of repairs so completely in their power and control, whether in the event of their allowing the roadways to beooma out of repair and remain out of repair, to what extent the City can claim against the Company in respect of damages sustained by citizens in oonseqence of such want of repair. I have only to odd that this is not the first time that I have had occasion to call attention to this phase of the CITY OF TORONTO v. TOKC^NTO STREET RAILWAY CO. 121 queiition, I wuuld ailviiin that prompt Htepn bn taken to pat all the «treet« travcracd by the trackH of tlie Railway Company in proper order and repair, a* the City can be in no way prejndiced by iiodoinx, and may be damnified by ne»(lectint( to do no. Youra truly, W. O. McWlLLlAMH. To Hi* Wor»hii> the Mayor and Aldenntn of Turonto, (Appendix I.IOG to Minutes of Council, Nov. 22nd, 1886.) > f cxxx. In Council : — The following oommunioationH were road : From Meflsra. Robinson & O'Brien, solioitora, informing the Council that the injunction restraining the Street Railway Company from ranning cars without oonduotors had been stayed until the end of April next. (Minnte 1,300, Minutes nf Council, Meeting held December 0th, 1886.) CXXXI. The following are the pleadings and the official notes of the arga- ment and judgment in the case of The City of Toronto v. The Toronto Street Railway Company to recover the cost of repairs made by the City upon those portions of the streets which it is the duty of the Street Railway Company to repair. (See ante p. 119.) IN THE HIGH COURT OF JUSTICE. QUEEN'S BENCH DIVISION. Writ issued the 6th day of December. 1886. Bktwken THE CORPORATION OF THE CITY Oi TORONTO, AND THE TORONTO STREET RAILWAY COMPANY, Plaintiff* : D^endantf STATEMENT OP CLAIM. The plaintiffs are a Municipal Corporation governed by the Consolidated Munici- pal Act. 188», and amending Acta, and certain private Acta heretofore passed by the Parliament of the lata Province of Canada, and by the Legislative Assembly of the Province of Ontario. 122 MEMO. 2. The defendmiti are a Streeti Riilway Company and are incorporated by, and occupy w.th their tracks and rails, and operate their railway upon and in certain streets a 1 1 public highways in the City of Toronto, under and subject to the provisions of a spaoial Act pasted by the Parliament of the late Province of Canada, an 1 Gdrt.i>in other special Acts passed by the Lej{islative Assembly of the Province of Ontario ; and certain agreements made with, and by-laws passed by the Council of the Corporation of the City of Toronto, the plaintiffs herein, in that behalf pursuant to the provisions of the said Acts as hereinafter more fully set forth. 3. Under the provisions of the agreement bearing date the 26th day of March* 1861, mad > batween the Corporation of the City of Toronto of the first part, anl one Alexander Eaiton of the second part; wliich agreement is validated, ratifi3d and confirmed by the Act passed by the Parliament of the late Province of Ci>nada, in the twenty-fourth year of the reign of Her Ma- jesty, and chaptered 83, and under and pursuant to the provisions of the by-lav passed by the Council of the Corporation the 22nd day of July, 1861, numbered 353, and entitled " A By-law respecting Street Railways," and under and pursuant to the provisions of the Acts passed by the Legislative Assembly of the Province of Ontario, in the 32nd year of the reign of Her Majesty, chaptered 81 ; the Act passed by the said Legislative Assembly in the 36tii year of the reign of Her Majesty, chaptered 101 ; the Act passed by theaaid Legislative Assembly in the 39th year of the reign of Her Majesty, chaptered 63 ; and the Act passed in the 40th year of the reign of Her Majesty, chaptered 86 ; ihe defendants are bound to construct, renew, maintain, and keep in good order and repair the roadway between the rails and for one foot and six inches outside each rail ; using for that purpose the same material and mode of construction as that which may from time to time be adopted and used for the remaining portion of the street by the Corporation of the City of Toronto, the plaintiffs herein and iu the event of the said the Toronto Street Railway Company, the 'defendantH herein, neglecting to keep the street or roadway or crossings, or the space of eigh- teen inches on the outside of the rails in good condition, or to have the necessary repairs made thereon ; it is hereby further provided tbr> *he City Engineer, or other proper officer of the Corporation of the City of Toronto, the plaintiffs herein, shall give written notice at the Head office of the Company, the defen- dsats hsrain, requiring the said repairs to be made forthwith, and unless such repairs ara commaacad within five days and carried on with all reasonable d83pat3h ti t!ie satisfaction of the City Engineer, the said Engineer may cause such repairs to be made at the expense of the City, the plaintiffs herein, and the amount so expended shall be recoverable against the said Company (the defen- dants herein) in any court of competent jurisdiction ; under the agreement dated the 26th day of March, 1861, i\. is also provided and agreed that the prpprietor or proprietors of the said Railway shall be liable for all damages arising out of the said construction or operation of the said Railway. 4. During the years 1832, 1883, 1884, 1885, and 1886, the defendants permitted that portion of certain streets in the City of Toronto, namely:— King street, (jaeen street, Yonge street. College street, McCaul street, and the various other streets occupied' by them with their tracks and rails, which they were bound to maintain and repair as aforesaid, to become and remain out of repair, although m> CITY OF TORONTO v. TORONTO STREET RAILWAY CO. 123 duly uotifled to repair tlie same pursuant to the provisions of the said statutes and a?raeni9nt, and they nagleoted and retusad to maint;iin and repair tliat part of the roadways and cros3in;;8 of the said streets between their rails, and for eighteen inches outside each outside rail, contrary to their duty and obli|;ation in that behalf. 5. Upon the failure, neglect and refusal of the defendants to repair that part of the roadways and crossings on King street, Queen street, Yonge street, College street, IVIcCaul street, and the various other streets occupied by them with their tracks and rails, between their rails and for eighteen inches outside pursuant to their said agreement and the said statutes in that behalf, the City Engineer of the City of Toront}(the plaintiffs harain) from time to time during the said years 18S2, 18S3, 1331, 1835, and 1833, after due notice to the satid defendants to repair their said portion of the said roadways and crossings pursuant to the said agree- ment and statutes, and after the neglect and refusal of the defendants to make such repairs pursuant to such notices proceeded to repair, and did repair that part of the said roadways and crossings which the defendants were bound to repair and maintain, and in making such repairs expended and paid out large sums of money, the money of the plaintiffs for work, labour and material ; in all about the sum of 96,000. 6. By reason of the defendants failing to keep their portion of the said roadways and crossings in good order and repair as required as aforesaid, and by reason of the defendants portion of such railways and crossings becoming and remaining out of repair through the negligence and default of the defendants, and in con- sequence of the negligent construction and operation of the said railways by the defendants in the streets and public highways occupied by them during the years aforesaid, .damage through and resulting from accidents was caused to and suffered by, and is still caused and suffered by divers citizens and others lawfully using the said streets and highways, and the plaintiffs have been compelled to and paid large sums of money in settlement of actions and claims for damages resulting from ^ho neglect and default of the defendants as aforesaid, and numer- ous othar claims for damage so resulting as aforesaid through the negligence and default of the defendants have been preferred and actions have been brought against the plaintiff, and are now pending and unsettled, and the defendants are liable to make good to the plaintiffs the amounts so paid by tliem in settlement of such claims of damage, and are bound to indemnify them against such claims and actions for damage now pending and still unsettled. 7. The plaintiffs have demanded payment by the defendants of the amounts so expended by the plaintiffs in the settlement of claims for damages arising as aforesaid, maintaining and rdpiiring that portion of the said roadways and cross- ings which the defendants are bound to miintiin and repair as aforesaid, and the plaintiffs have also requested and required the defendants to indemnify and save harmless the. plaintiff from the said loss and damage and claims for damages arising through and resulting through accidents caused by the negligence of the defendants, and the want of repair of their portion of the said roadways and crossings and the oparatioc of the said railway, but the defendants have neglected and refused and do still neglect and refuse to indemnify the plaintiffs against such claims and demands for damages, and to pay to the plait/tiffs the moneys so expended by them in settlement of such claims for damages, and in maintaining ''hi m Mi 124 MEMO. and repairing their portion of the said roadways and croasingH which the defend- ants were bound to repair and maintain as aforesaid, but the defendants have neglected and refused, and dtill neglect and refuse to pay the same or any part thereof. 8. The plaintiffs submit that they are entitled to recover from and be paid by the defendants all sums of money so expended by them as aforesaid, in maintain- ing and repairing that portion of the roadways and crossings on King street, Queen street, Yonge street, College street, McCaul street and all other streets occupied by the rails and tracks of the said Toronto Street Railway Company (the defendants herein), which the defendants are bound to maintain and repair under the said agreement, statutes and by-law, and in the settlement of claims for damages, and for damages arising from accidents caused by operation of the said railways, and the negligence of the said defendants, and that they should be declared to be so entitled by this honorable Court. 9. The plaintiffs claim the benefit of the Act passed by the Parliament of the late Province of Canada in the 24th year of the reign of Her Majesty, chaptered 8.3 ; the Act passed by the Legislative Assembly of the Province of Ontario in the S2nd year ot the reign of Her Majesty, chaptered 81 ; the Act passed by the Legislative Assembly in the 36th year of the reign of Her Majesty, chaptered 101 ; the Act passed by the said Legislative Assembly in the 39th year of the reign of Her Majesty, chaptered 63 ; the Act passed in the 40th year of the reign of Her Majesty, chaptered 85, and of the said agreement dated the 2t)tli day of March, 1861, and the said by-law numbered 353. And also of an agreement bearing date the 29th day of July, 1881, made between the plaintiffs (parties thereto of the first part) and the defendants (parties thereto of the second part). Which statutes and agreements and by-law they crave leave to refer when the same shall be produced for greater certainty. The plaintiff*' claim : — 1. The sum of 96,000 aforesaid, so paid out and expended as aforesaid. 2. Interebt upon the several sums so paid out and expended as aforesaid by the plaintiff from the date of the making of each such payments by them. 3. A declaration that the defendants are bonndjto maintain and to keep in good order and repair all of the roadways and crossings between their rails and for eighteen inches on the outside of each rail upon and in all streets occupied by their railway, as provided in the said statutes, agreements and by-laws, and in default of their so doing after due notice in that behalf, that they, the defen- dants, are bound to pay to the plaintiffs all moneys expended by the plain- tiffs in maintaining and repairing all such portions of said roadways and crossings, and to indemnify the plaintiffs from and against all claims for damages resulting from accidents caused by the neglect of the defendants to maintain and repair their portion of all roadways and crossings. 4. Such further and other relief as the nature of the case may require. The plaintiffs propose that this a '^a should be tried at Toronto. Delivered this 7th day of January, A.D. 1887, by W. G. McWilliams, of the City of Toronto, in the County of York, solicitors for the plaintiffs, of the City Hall, Front street east, Toronto. CITY OP TORONTO v. TORONTO STREET RAILWAY CO. 125 STATEMENT OF DEFENCE AND COUNTER-CLAIM. 1. The rights and liabilities of the parties hereto in respect of the matters in the statement of claim mentioned other than those mentioned in the Gth paragraph thereof, depend upon an Act of the Legislature of the Province of Ontario, passed in the 89th year of Her Majesty's reign, chaptered 63, as amended by an Act passed in the 40th year of Her Majesty's reign, chaptered 85. 2. The provisions of the said Act so amended in so far as the same relate to the matters in question herein are : — *' The said Toronto Street Railway Company shall be bound to construct, renew, maintain and keep in good order and repair the roadway between the rails and for one foot and six inches outside each rail, using for that purpose the same material and mode of construction as that which may from to time be adopted and used for the remaining portion of the streets by the Corporation of the Muni- cipality in which the road or street is situate ; provided that where the Corpor- ation of the City of Toronto adopts and used on any streets or portion of any street traversed by the said railway a permanent pavement of wood, stone, asphalt, or other material ot the like permanent character, the said Street Railway Com- pany shall not, in such case, be bound to construct the same or to pay more than the cost price of such pavement over the space between their rails and for one foot six inches outside of each rail, and as against the said company such price shall not exceed in any case the sum of two dollars and fifty cents per square yard." " In case the Corporation of the said City shall determine to construct or renew the paving or macadam on any street traversed by the said railway, the said com- pany shall be bound within one month after the receipt of notice in writing requiring them to do so (in which notice shall be specified the nature of the material or kind ot pavement intended to be used, the street on which it is to bo used and the time when the work is to be commenced), to construct or renew subject to the provisions of this Act, the paving or macadam on their roadway, and for one foot and six inches outside each rail, using the same material and mode of construction as that used for the remaining portions of the street by the Corporation of the said City, and to carry on the work of construction or renewal with all reasonable despatch to the satisfaction of the City Engineer of the said City of Toronto, and in the event of the said company failing to do so the said Engineer may cause such work to be done at the expense of the City, and of the amount so expended, an amount not exceeding the sum of two dollars and fifty cents per square yard, shall be recoverable against the said company in any court ot competent jurisdiction or by assessment as hereinafter provided, and the work of construction or renewal shall be proceeded with simultaneously over the road- way of the said company and the remainder of the street whether the said company shall conform to the notice aforesaid or the said Corporation shall perform the work under the power conferred on it in this sub-section. ♦' It the said Corporation give the notice mentioned in the next preceding sub- aection, and do not themselves proceed according to the terms thereof within the time thereby limited they shall be liable to pay to the Railway Company such damages as may have been thereby occasioned to the said Hallway Company. " In every case of construction or renewal of any kind of permanent pavement IH. W| m ¥t h 126 MEMO, npon any of the streets occupied by said Street Railway Company, the said com- pany shall have the option of constructing their portion of any such pavement, or at their request said Corporation of the City of Toronto shall construct the same, and in every such case the said corporation shall assess an annual rate covering interest and sinking fund extending over the like period as that n|>on which the assessment upon the adjacent ratepayers is adjusted upon the said company for the cost thei'eof, not exceeding the sum of two dollars and fifty cents per square yard, with full i)ower to the said corporation to raise such sum by an issue of de- bentures, and to collect the same in the manner provided under the Municipal Act for the construction of local improvements." S. The defendants submit that under the provisions of the Legislation herein before sot out, the defendants were not entitled to have, and, as a matter of fact, they did not have any voice in the determination of the question, what particular kinds of permanent pavement should be constructed upon the streets of the City of Toronto in the statement of claim mentioned. 4. The defendants further say that all the streets in respect of the repairs npon which this action is brought, are streets upon which the plaintiffs had assumed in pursuance of the said legislation to construct pavements which were intended to be permanent pavements within the meaning of the legislation hereinbefore set out, and the plaintiffs, with regard thereto, dealt throughout with the defendants upon the assumption that the same were such permanent pavements giving the notices mentioned in the said legislation, and constructing, at the defendants' request the defendants' portion of such pavement, and assessing npon defendants an annual rate in respect thereof, and issuing debentures therefore as provided by tlTe said legislation. 5. The defendants have fully paid and satisfied all sums due by them in respect of the price of such pavements. 6. The defendants, under the circumstances and for the reasons hereinbefore set out, submit that no duty whatever in respect of the maintenance and repair of the said pavements is cast upon them, and claim the same benefit from this objection as if they had demurred to the plaintiffs' statement of claim. 7. The alleged want of repair complained of by the plaintiffs in this action is due to the fact that the kind of pavement adopted and used by the plaintiffs upon the streets in the statement of claim mentioned was totally inapplicable to and inad- equate for the purposes of any street upon which the defendants were operating their lines of street railway tracks, and, as a matter of fact, the defendants have from time to time protested, and do still protest against pavements of the kind mentioned being laid and used upon the streets traversed by the lines of the defendants. 8. The said alleged want of repair is also due to the fact that the plaintiffs were guilty of gross negligence in and about the construction and laying of the said pavements and the defects in respect of which the said alleged repairs became necessary were structural defects, and were not in any way due to the use and wear of the said pavements by ordinary means and in ordinary manner, and the defendants were not and are not in i>,ny way responsible for the said alleged wani of repair, or for the said alleged defects. 9. With regard to the 6th paragraph of the plaintiffa' statement of claim the defendants subr.lu that they are not liable to indemnify the plaintiffs as in said paragraph claimed, becanse no such liability is cast upon them either by the agreement referred to in the statement of claim or by any of ihe legislation referred to, and the defendants claim the same benefit from this objection as if they had demurred to the claim set out in the 6th paragraph. 10. The defendants further say, with regard to the matter set out in the 6th para- graph, that in and by the Act 40 Vic, cap. 85, hereinbefore referred to, it waH provided aa " subject to the provisions herein before contained, should the said Railway Company neglect to keep the track or roadways or crossinRS for the space of 18 inches on the outside of the rails in good condition, or to have the necessary repairs made thereon, the City Engineer or other proper officer shall give written notice at the head oflice of the company requiring the said repairs to be made forthwith, and unless such repairs are commenced within five days and carried on with all reasonable despatch to the satisfaction of the said City Engineer, the said F^ngineer may cause such repairs to be made at the expense of the City, and the amount so expended shall be recoverable against the said company in any court of competent jurisdiction." And the defendants submit that it was the duty of the plaintiffs even if there had been default on th^ part of the defendants (which the defendants deny) to have the necessary repairs made, and the defend- ants submit that the plaintiffs cannot recover from the defendants any damages which they may have been compelled to pay, or may be liable to pay to the citizens and others lawfully using the said streets by reason of the plaintiffs' own negligence in having such ret:airs made. 11. The defendants do not admit that the plaintiffs have expended the nums in the statement of claim mentioned in respect of the alleged repairs upon the said streets, or in respect of the said claims of citizens and others against which the plaintiffs claim to be indemnified, but put the plaintiffs to strict proof thereof. 12. The defendants submit that, with regard to the pavements in question, the plaintiffs and not the defendants are under the circumstances aforesaid, charged with the duty of repair and maintenance. 13. The defendants have been put to loss, trouble and inconvenience, and have suffered great damage by reason of the neglect of the plaintiffs to repair and maintain said pavements, and the defendants, by way of counter-claim, claim from the plaintiffa ten thousand dollars damages in respect thereof. Delivered this 14th day of January, A.D. 1887, by Messrs. McLaren, Macdonald, Merritt & Shepley, of 28 and 80 Toronto street, Toronto, solicitors for the said defendants. JOINDER. The plaintiffs join issue on the defendants' statement of defence herein. Delivered this 28th day cf January, 1887, by William G. McWilliams, of the City of Toronto, of the City Hall, Front street east, Toronto. 1 -,, ■:'V. 128 MEMO. ARGUMENT. Before Bobe, J., at Tokonto, Feb. 5th, 1887. G. IloniNBON, Q.G., and Mr. MoWilliamb for pkintiffB ; D. McCabthy, Q.C, and Mr. Sheplkt for aefendauts. Mr. RoniNSON — In order to explain how this matter comoB before your Lordsliip, I will read Bule 249. (Beads) This is a cu,Be in which certain qucBtions of law are raised by the defence, the decision of which, if in their favor, woald make it unnecessary to go into tho question of fact, which would be a long and tedious enquiry ; and, by your Lordship's permission, it is brought before you in that way, with a view to raising the queRtions of law ; and I suppose such order can be made under that Act as will show that it is properly brought up. I will shortly read the pleadings. The Statement of Claim sets out. (Reads pleadingt.) We havt) demanded this money expended, which they have refused to pay us ; and we submit we are entitled to recover it. We claim 96,000 and interest. They say their rights are settled by 89 Vic. cap. 68, as amended by 40 Vic. cap. 89. I pointed out to my learned friend that it was hardly correct to say that we had assumed, in pursuance of the legislation, to construct those pavements. Tour Lordship will see what the question of fact is, if it forms any defence. They say this was not a proper kind of road for us to use, improper material, and that we improperly constructed that pavement. The enquiry into that would of course be lengthy. Then they say that this being permanent they are not liable to repair it. There are three questions which my learned friends mean to raise. First, they Bay, even being pennanent pavements, that although they are liable under the statute for a certain sum in respect to their construction — or, rather, although they are held to a certain liability restricted to a certain sum in respect of their construction — they are not bound to repair them or to keep them in repair. Next, they are not table to us for any damages which may have been recovered from us by reason of any accidents which have happened in consequence of the want of repair whioh we complain of. And lastly, they say that it is a defence for them to say that we used — laid down — a wrong kind of road, and constructed it upon improper principles. The ilrst, however, as you will see, is the important ques- tion. Are they right in saying that this being permanent pavement— in other words, being block pavement — they are only liable to pay their proportion, or they are only held to their limited liability in respect of construction, nor are they liable to repair. We say it is reasonably clear that they are liable to repair, looking at the different legislation and documents which bear upon this question. This matter is dealt with by resolutions which were passed by the City Council on the 14th March, 1861. I have a little pamphlet which I will hand in which contains the by-laws and resolutions and all the Acts up to 89 and 40 Vie. On the 14th March, 1861, the City Council passed certain resolutions which were after- wards incorporated in a by-law, which is to be found on page 6. As bearing upon this question of liability to repair, I do not think it is important to look at any. thing except the third and seventeenth resolutions. This by-law recites that " divers inhabitants of the City of Toronto have petitioned the Common Council of the City of Toronto to sanction the construction of street railways in and along and upon the straets of the said City, and the said party of the second part RI'iM CITY OF TORONTO v. TORONTO STREET RAILWAY CO. 129 hath propoaod to construct and operate such street railways upon the streets hereinafter mentioned, and tlie said Common Council did, on the 14th day of the present month of March, accept such proposals by the followin){ resolutions." That was the initiation of the enterprise. Then those resolutions were followed by an agreement dated 26th March, 1861, which is embodied in that by-law, which just recites the reaolutions and enacts that the City give to Mr. Easton the right to lay down this track on certain conditions, the stipulations in the above resolu- tions ; and he agrees to construct them in the manner and upon the conditions in those resolutions. Then the by-law did not come until after the Act of Parlia- ment. I have read the agreement from the by-law, but there is an Act of Parlia- ment passed, 44 Yio., cap. 23. All that did was to incorporate the Company • and make valid that agreement, and authorized them to pass a by-law ; then they passed the by-law that I have mentioned. The result of all that is that the Company were authorized to lay down their track on the street, subject to those resolutions. Then the next thing which you may look at— though I do not see that it is material at all — is that by a number of proceedings that Company was practically sold out, and Mr. Kiely purchased it ; and for some reason he thought it better to get a new Company ; and 32 Vic, cap. 81, incorporated the new pro- prietors, and made them subject to the same liabilities and obligations of the old Company. Now, I am told that the difficulties which suggested themselves under that state of things were two ; that their resolution says : — " The roadway between and within at least one foot six inches from and outside of each rail shall be paved or macadamized, and kept constantly in good repair by the proprietors." It is said that that gave him the option whether he would pave or macadamize ; in other words, gave him the right to choose what sort of roadway he would have between his rails, and for eighteen inches on either side. Then the next thing that occurred was that section 17, which says : — " Should the proprietor neglect to keep the track or the roadway or crossings between and on each side of the rails in good condition, or to have the necessary repairs made thereon, the City Surveyor or other proper officer shall give notice thereof requiring such repairs to be made forthwith, and if not made within a reasonable time, the said Surveyor or other officer as aforesaid shall cause the repairs to be made, and the amonnt so expended may be recovered against the said proprietors in any court of competent- jurisdiction." That left it in a very indefinite shape ; the City Surveyor was to tell him to do it foiiihwith, and he was to do it in a reasonable time. There were all sorts of objections raised there, and these were the two reasons which caused the next legislation ; and it is upon the subsequent Act that the rights, in reality, depend. I only refer to that to show that in the very initiation of the enterprise that was the obligation of the Company. They were to repair the roadway between the rails, and for eighteen inches on either side. It was on that con- dition that they came into existence, and got their right to operate in the City. Then comes 39 Vic, cap. 63. You see that was passed first to meet that difficulty ; that it was claimed, as I am told, that it was for the Street Bailway Company to decide what sort of road they would have, whether it should be paved or maca- damized; so they add to the statute which incorporates this Company, 86 Vic, cap. 101, at the end of section 6 of that statute, which makes this Company subject to all the Habilities and obligations of the old one, they add this :— They say " that is hereby amended by adding at the end of section 6 these words : — ' Provided first the said Company,' " etc They did in several places, I believe. M 'W <■•€■ 180 MEMO. put cobble stone on either side of their rail or for the whole distance between. The second aub-aection of that orif(inally stood in theae words :— " Where block pavement is now ii> "so, and where," etc. Now, they say that that bound the City to oonatruct, whicn was plainly never intended. Well, perhaps that does liter- ally and grammatically mean the City should be bound. The first sub-section provided the ( ity should be bound to do so and ao ; and then they said that when- ever the City did aomething elae they ahould be bound, and I have no doubt that was what was meant by the peraon who drew it. " Whenever the City of Toronto makea a change they ahall be bound to conatruct ;" literally that doea mean the City shall conatruct. It conld not have been intended in that way, because the initiation of the thing showathat that obligation waa cast upon the Company ; and the legislation changed it next year, and clearly made the Company liable ; I do not believe it waa ever intended to have the other meaning. Then by 40 Vic, cap. 85, they substitute a new aub-aection for that aub-aection 2, which was alleged to have the effect that I have mentioned : *' anb-section 2 of aec. 1 of 80 Vie. ia repealed," etc. "The said Toronto Street Railway Company shall be bound to construct, renew, maintain, and keep in good repair the roadway between the rails, and for one foot and six inches outside of each rail, uaing for that pnr- poae the aame material and mode of construction aa taat which may from time to time be used and adopted for the remaining portion of the municipality in which the road is situated." Then the question aroae, if you conatruct a perma- nent road, that may be enormously expensive, and it is unfair to subject ua to the en^rmoua expenae of that ; and then another clauae waa added, " provided that where the Corporation adopts and uaea on any atreet or portion of atreet traveraed by the railway a permanent pavement of wood, atone, asphalt, or other material of a like permanent character, the Company ahall not, in auch caae, be bound to conatruct the aame, or to pay more than the cost price of auch pavement over the space between their raila." They aay this ia a permanent pavement. Yon have to remember that this ia to be read as if it came in chapter 89. This then goea on to add two aub-sectiona after the onea which were tirat put in ; but I do not refer to them for the moment. Chapter 89 reads in this way : First, that the Ba'lway Company in repairing their roadway between the rails, end for one foot six inches on either side of the rails, shall be bound to use the aame materiala as that in uae by the City Corporation for the remainder of the atreet ; and they ahall be bound to construct, renew, and keep in repair the roadway between the rails, etc. Now, then, sub-section 8 says, subject to the proviaiona hereinbefore contained : — " Should the said Railway Company neglect to keep the track or roadway or croaaings, or the apace of eighteen inches on the outside of the rails in good condition, or to have the necessary repairs made thereon, the City Engi- neer or other proper officer ahall give written notice requiring the said repairs to be made ; and unleaa auch repaira are commenced within five days, and carried on W'.th reasonable deapatch, the City Engineer may cause such repaira to be made, and the amount ao expended may be recovered in any court," etc. 40 Vic adds to that another aub-aection 4. (Reads.) Now, that is the whole legislation which bears upon the question. The first difficulty which one seea is : How are yon going to get the case out of the perfectly plain words of aub-aection 8 ? First let us read 89 Vic. aa if it stood by itself, aa if it bad not been amended. The firat sub-section is *' The Company in repairing their road between the rails, and for eighteen inches on either side, ahall be bound to uae the aame materials as the City. Where the block pavement is in use they shall be bound in the first place CITY OP TORONTO v. TORONTO STREET xvAlLWAY CO. 181 to oonstruot, and when it is worn out to renew the pavement on that part of the street which they are bound to repair subjeot to the provisions aforesaid ;" and should they neglect to keep it in repair, the City Engineer could do it. There could be no sort of question as to their liability to repair. How is the liability to re- pair taken away by the substitution of sub-section 2, enacted by the 40 Vic. instead of the other ? 40 Vic. says, in order to settle thei Lability, " The Company shall be bound to construct, renew, maintain, and keep in good order and repair the roadway between the rails, and for eighteen inches outside, using the same materials as the City, provided that where the City adopts and uses a permanent pavement the Street Railway shall not be bound to construct it. Sub-section 4 points out that they may either construct it themselves or the City may do it at their request. BoBi, J. — What is the force of the words " Or to pay more than the cost price of ■such pavement " ? Mr. Robinson.— It means that if the cost is over 92.60 they are not to be obliged to pay more than that ; in other words, if the City puts down a road which costs more than 92.60, all they can get out of them is the cost price. It has cost from 41 to 91.25, BO that they would have to pay the cost price in this particular case. Nothing can be plainer than the obligation by the first part of sub-section 2 : "The •aid Toronto Street Railway shall be bound to construct, renew, maintain, and keep in good repair, the roadway between the rails and for one foot and six inches out- side of each rail, using for that purpose the same material and mode of construction as that which may from time to time be used and adopted for the remaining portion of the municipality in which the road is situated:" provided that where the Corpor- ation oonstruot a permanent pavement you are not to be obliged to pay more than 92.60 per square yard ; and then they follow that up by saying that subject to the provisions hereinbefore contained, " etc. I do not see on what the argument rests, that because this a permanent pavement they are only bound to construct «nd not liable to repair. Subject to those provisions, they are bound to repair ; and if they do not repair, the City may do it and make them pay the costs. Where do you get the construction they propose to put on it, " if the pavement is a permanent pavement we are only bound to construct, and not to repair?" I am told that what they say is, that as a matter of fact after that the City gener- ally are bound to keep this portion in repair ; and there is no reason why they should keep that particular part in repair when the citizens along the line are not bound to keep it in repair. But the answer to that seems to me to be that the City generally are assessed for keeping all those permanent pavements in repair. Mb. Hhepley — We pay a general assessment. Mk. Robinson— They pay a general assessment on their dividends, whatever it may be. They are assessed as a Corporation. Mb. Shkpley — We are assessed on the property. Mr. Robinson— Yes, but you are not assessable on your railway and rails, your track. The Company are assessed on their dividends, but they are not assessed as the citizens are, for the repair of this particular part of the road. The citizens are assessed in one sense for the repair of all these local roads ; that is to say, if this pavement is made opposite your door, on the local system you pay 10 182 MEMO. excluBivcIy the cost of construction ; aivd after that you pay thu cOHt of keeping; it in repair. Tho Corporation of the Street Itailwiiy tlo not join you in paying that. I do not Hay that that makes much flifforence one way or tho other. That could only be an fiqnitiible consideration, forming ground for application to tho Legisla- ture. If there is any injustice in it, on preHcntiIl^,' that before fho Legislature, I suppose they would ^et fair consideration ; but if the City binds them to repair, tlio fact that they are assessable, or that they were not asscHsablo, would not alter their obligation in one way or another. In our view, tho words of tliis section are too plain to be f^ot round. From the very beKinnin)^ this Company was autho- rized to lay down their tracks and take jiossession of the street on that condition ; first it was, " You shall construct and keep in repair tho roadway between your track and eighteen inches outHide of it ; and you must do it ;" and then we add, " You must do that of the same materials as theCMty use ;" and the next thin^ we said was, in defence to tlioir plea — which has no effect liere, because the price did not come up to what they wore afraid of — " Then if we lay down a pavement so e.xpenHivo as to cost more than $21)0 per square yard, your proportion of tho cost of construction shall not exceed ^'2.oO." Now, in all that what is there to affect the liability to repair? What iB there that should affect it, or take it away ? They say " because this is a permanent pavement we are not bound to keep it in repair." They say, " after we have paid our cost of construction yon are bound to keep it in repair. Of course there is this possible disadvantaf^e in presenting it this way ; we have not the reason of demurrer. We cannot understand how you can j^et out of the plain oblif^ation of the statute. The next question they raise is, they say they are not liable to us if by reason of their want of repair accidents are caused and the City is sued for damages, tho result of such accidents, and recovery is had against tho City. They say they are not liable to recoup the City, and we say they are. Yonr Lordship will see that this is a very important question in point of amount, for this reason : that a great many of the worst of these accidents happened in this way : it is at the out- side of the rail that there is very often a deep, narrow indentation in tbe road, and several horses have been severely injured by putting their hoofs dowa there, and tearing off a piece of their hoof. You can easily see that in two ways that is just a place that is very liable to cause the worst sort of accident ; it is very nar- row ; and if the wheel gets into it, and you turn short, and you break the axle, there is a sort of space where the horse's foot binds under it, and he is liable to injury. That would be clearly a want of repair within the limits assigned by the statute to keep it in repair. Assuming such an action and recovery against the City for such accidents, are they liable ? The authorities are clear upon the liability both in our own courts and in the United States courts. There is a case in 36 C. P. in our own courts, and I know there are other cases. I have seen the same dictum in passing. There are many cases, as your Tiordship is aware, in which accidents of this kind are caused by the default of some private individual ; as, for instance, leaving a log in the highway. If injury happens, the injured person has the right to sue the party who did the wrongful act, or the City ; but if the wrongful act is not the fault of the City, then it is said that the person who did the wrongful act is liable over to the City for the damages recovered. Bo8E, J.— I gave judgment in a case against the City of Quelph, giving relief over against the wrong-doer ; and it came up b'>fore this division for review ; and CITY OF TORONTO r. TORONTO STREET RAILWAY CO. 188 I think tlie order nUi was not granted ; at any rato, judttment wuh conflrined. And 1 think tliore wuh n cuho in oui- own diviHion lately. In th« cuHe at Ouelph. a perHon left a trr.p door oimmi on the Htroet, and a man paHHinn fell in. The City Haid they were not liable ; and I Haid they were liable; and they ankotl relief over a^^ainst tlie person to whom they had Kiven the rij^ht to leave the truj) door ojien ; and I thouKht, under the authoritieH, 1 hIuiuUI give it. ThiH caue iH not reported. Mk. TloBivsoN If that is ho, I need do no more than refer yonr lordHhip to th» Cfcae. Rose, J. -We gave jndjjnient in onr own court in a Hiinilar case. Mb. RoiuNHoN -In (iilchn'nt v. Cardcii, tJuHtioo (Iwynne Iiiya down tliat judgment. In that case tlie party felled a tree, und in fulling the tree Htruck a beech tree, and did not fall to the ground. They left it there ; and during a storm it fell to the ground and hurt Home one paHwing ; and it was held tliey wero liable. We liavo a case exactly in point in th< United States ; Cilij of Jlronklyn v. Hinoklijn Strift Railway Compnny ; see. l."("> ol Dearing'H hand-book. It is also cited in Thompson on Negligence, vol. '1, 78'J. (Reads head-note.) R. That is affirmed in The People on the relation of Marking v. Urooklyn, ()5 New York 34i(, decided in 1875. How- ever, it was argued that in consequenco of that contract on the part of the street railway the city were exempt, and in giving judgment the judge says," I certainly see no reason any," etc. Then it is to bo observed, tn, as important, that 1 do not see that in this case they have gone us far as we have here, because you will remember that wo have the express contract that they will pay any damages. Resolution 1(> says :—" The proprietor or proprietors shall be liable for any damages arising out of the constrnction or operation of the railways." We not only have the general law that their contract to repair would make them liable, but we have tlie express contract; and, I may add, that I think it would bo quite arguable without the contract to repair, that if thoy assumed part of our streets they would be resptmsiblo ; if they had taken oft our hands a certain portion of the highway with the right of the prior user, and almost the exclusive user, whether they would not bo bound to be responsible to third persons if they had the obligation to repair ; but there is no necessity to discuss that, because we have the express contract. That is the second point. • Then my learned friend may contend that our remedy is not an action against them for any neglect, but that our remedy is under the clause giving thenj notice. It provided that we may give notice, and that they must begin to repair within five days and carry on the work at reasonable speed to the satisfaction of the City 184 MEMO. Engineer. I apprehend that that would relieve them from the obll|{atlon Incurred under reeolution 17 ; and the whole provUion ie euoh that we could not exempt ourselves from liability. They have the five days to repair, and the accident might happen drring tha'' time. I do not think it will be contended that our only remedy it to give them notice. The only remaining question is one which I do not know that your Lord- ship will find it necessary to decide. It is useful in this way, that if my learned friends are wrong it would save the necessity of a long enquiry as to facts. It would not lie in their mouths to say that we have not adopted the kind of street best adapted to the needs of the City; and if we had laid down stones where we had laid down block pavement it would not have got out of repair, and therefore we are responsible. We have the obligation imposed upon us by the general law. and the right of keeping up fairly pond streets for the accommodation of the Cit< , and UBing the best adapted to the City ; and we might go into a discussion which might last weeks as to whether we might have had a block pavement or stone pavement, or asphalt, or some other mode ; it would be endless. It is a different question whether, if they could show that granting to us the right to adopt such sort of pavement as we may think proper we have con- structed in a plainly negligent and improper manner, and the repair arises upon that ; that is a different question. It seems to me they cannot possibly sustain the right in )x)int of fact to choose for us the sort of road which we shall adopt on the streets over which they run their tracks. I need not refer your Lordship to the general sections of the Municipal Act (sections 660 and 613.) The question of doing both those roads by local assessment is referred to in those oases, Marking v. Brooklyn; and Brooklyn v. Brooklyn Street Railway , Those are the questions of law which I understand arise, and which your Lord- ship will see it is very desirable to have settled before we enter into any trial on the question of facts. ^At^journed for luneh.) After Adjournment. Mb. McGartht — My learned friend has made his statement of facts as we under- stand them, and I need not repeat the questions which your Lordship has to determine, but merely give the reasons why we think your Lordship should decide in favor of the defendants. Now, going back to the original contract, and to the Statute which was fouudejto tlio nuw method of paviuK the BtrootH ; and then the Act (which haH been referred to.);:»!) Vic, cap. «U, wrh pasBed. Mow, bearing in mind the oblixiition we had at that time, which was merely to repair, bo to Hpeak, or ratlier to put a peculiar kind, a particular claan, of ruad-bod bi tween our tracks, and on either side of them, to the extent of 18 inches. BearinK that in mind, ond bearing also in mind the altered condition of things, we can see what was intcjuled by the Act of 187tt. The Company in repairing the roadway between their rails, and for one foot six inches on the ontside of each rail, shall be bound to use for such repairn the same materials and mode of construction as that from time to time in use by the said Corporation. That is— instead of the paving in this way or by macadam— that wo were to do it with the same materials, and by the same mode of construction as that from time to time in use by the Cor- poration for the remainder of the street, nnlea* compliance with this condition is, in the opinion of the City Engineer impracticable, by reason of the remainder of the street not being so constructed, or in such a state, as would enable the Company, etc , etc., still not altering at all, but merely changing the obligation which we originally undertook, or rather which Easton, whom we succeeded, originvlly undertook to io. Then it provided for blocK pavement ; and it says, " Wherever block pavement is now in use, and whenever the Corporation of the City of Toronto makes a change in the kind of pavement for the time being in use on any of the streets traversed by the railway, they shall be bound in the firbt place to construct, and, when the same shall be worn out, to renew the pavement on that part of the street which the said company is bound to repair as aforesaid." Now, that is perfectly plain, no matter what is intended. My learned friend who is with me, Mr. Bhepley, says that the intention was to provide for this expensive method of paving which was then coming into vogue; and the Company insisted, the City acquiesced, and the Legislature decreed that in the case of block pavement we should be absolved from all responsibility whatever, if the City desired. Rose, J. — Is there any distinction between renewing and roi>airing? Mh. McCarthy— Yes ; we point out that difference all through. It is quite plain that there is a distinction between renewing and repairing ; there is theconstruct- iag, renewing and repairing. Rose, J. — Because you still remain liable to repair under section 2. Mr. McCarthy—" Where block pavement is now in use, and whenever the Cor- poration of the City of Toronto makes a change in the kind of pavement for the time being "—that seems to be apparent from the legislation, that it was sup- posed that block pavement would not require repairing. It had a certain life. It would last for that time, ond would be renewed, but would not require to be repaired. I think that Js the explanation of that section. m?^ 136 • MEMO. Mr. Robinson — You mean that under that the company were liable for nothing. Mb. McCarthy — We were liable for nothing. When we got ihia franchise we got it on the condition that we should keep up the portion of our road-bed in a good state ; and it was provided that no matter what the road was composed of, whether it had ever been macadamized or not, no matter what it was composed of, we should be bound to pave or macadamize that portion that we used, and for IM inches on either side of our track, which is practically the road-bed. llosK, J.— What inducement was there for the City to relieve you then of your liability entirely ? r Mk. McCarthy— Because it was too expensive for us to undergo; that was our complaint. We said when we got this franchise, block pavement or asphalt, fdr these expensive modes of pavement were never dreamt of ; we were liable still to keep up our road-bed by paving and macadamizing, and we think it would be far better for all that should be done, no matter what is said of it ; but if you, for uniformity, and tho appearance, desire to insist on an expensive class of pave- ment, such as tho block, then we insist that we should be relieved from the obliga- tion of putting that there, which was perfectly reasonable, because it was taking up what wo had already put there. We had our pavement down ; we had our macadam or our pavement, that had to be torn up, and block pavement substituted ,for it, and we said, " Why should we be at tlie expense of doing that because you desire it?" BosE, J. — Suppose the legislation stood as it was when this Act was paBse your argument as to the statute of 1877'of much force ? CITY OP TORONTO v. TORONTO STREET RAILWAY CO. 189 Mr. McCarthy— It would, no douht ; it affects my argument to that extent. " The Baid Toronto Street Railway shall he bound to construct, renew, maintain " — it ia quite plain what our obligations are — "and keep in good order and repair the roadway between the rails, and for one foot and six inches outside each rail, using for that purpose the same material and mode of construction as that which may, from time to time, be used and adopted for the remaining portion of the munici- pality in which the road i^ situated." These are general words, which, if they stood alone, are substantially re-enacting clause 1, and adding something to clause 1 of the statute of 1876. Bosk, J. — It puts it upon the liability to construct. Mr. McCarthy — We had the liability to repair before and now we have the liability to construct. We also have the liability to renew, and we have the liability to maintain ; but this proviso is made, the hrst part of the enactment applying to all kinds of roads, no matter what material : " provided that where the Corporation adopts ^nd uses on any street or portion of street traversed by the railway a permauei:^ v ■>'. nt of wood, stone, asphalt or other material of a like permanent character , i ipany shall not in such case be bound to construct the same, or to pay ^. .t, than the cost price of such payment over the space between their rails," and so on, limiting the liability. Now, we say, first there is the general enactment, appljring to all roads ; and then it says, " provided in case the Corporation chooses one particular kind of material for making a road our liability is dead." Bore, J. — That is as to construction. Mb. McCarthy— We say not. This is the way it has to be read, " Provided where the corporation adopts or uses on any street or portion of road a permanent pavement of wood, the condition is altered." Bosk, J. then? -Take a block of stone up on end, so as to make it dangerous ; what Mb. McCarthy — We say they are to repair it. They have chosen to have a kind of pavement which they call permanent. It is perfectly plain that, although permanent, it is only permanent in one sense. Bosi, J. — You were originally bound to repair pavements ? Mr. McCarthy— Yes ; but that is a different kind of pavement ; we were to pave or macadam. Rose, J. -You were to pave and keep pavements in repair. Mr. McCarthy — Yes ; but this has contemplated a different kind of pavement. We were to pave within our own track, no matter what the other part of the road was, pave or macadam. That was the first obligation ; and I suppose that pavement was not intended to be of a very costly character, and was left at our option to pave or macadam. If we chose to pave we were bound to keep in repair. We might macadamize if we wished, and then we would be bound to keep in repair. Now, although the word permanent is not used, it is plain, look- ing at seotion 4, it was recognized that what was called a permanent pavement would be, after all, a temporary one, because it has to be renewed ; "in every 140 MEMO. case of construction or renewal of any kind of permanent pavonient." Then what is the distinction between the permanent pavement and the ordinary pave- ment if it is not in the saving of the keepin<; in repair ? So that what we say the section means on its face is that while for most cases, the generality of oaseB, the obligation is to make or construct, to repair and to renew, that where the City, who have the option— ah my learned friend has argued to your Lordship that they had — have the option of choosing a permanent pavement, and they do choose a permanent paveme it, that our liability is confined to paying our share of that cost ; and the rest is left to the City ; and that is strengthened when we look at section 4, because it says here in section 1 we shall not be bound to construct. The whole cuntruct is changed. Our duty before was to construct ; now all that is changed. Rose, J. — You see that the same clause that relieves you from the liability tooon- fitruct is the clause that firtit placea upon you that liability. Mn. McCauthy — Yes ; but I say that the liability was general for us to con- struct. Now we ai-a not to construct, nor are we to pave beyond a certain sum. Then if you read section 4 : " In every case of construction or renewal of any kind of permanent pavement upon any of the streets traversed by the Street Railway Company, the Company shall have the option of constructing their jwr- tion of any such pavement, or, at their request, the Corporation of the City shall construct the same ; and in every such case the Company shall assess an annual fund," etc.; and it provides that the cost thereof shall not exceed $2.60 per square yard. Here, now, we find it incorporates practically the provisions of the Munioi- pal Act ; and we know that the provisions of the Municipal Act did not oidige those who paid for the constrnctiou of this kind of permanent way to keep it in repair. They have to construct it, but the City has to keep it in repair ; so that the Legislature appears to have been fixing upon the Railway Company the same Hability that at that time it had iixed upon the adjoining proprietors; that is, to make this way if it was of a permanent kind, leavingthe City to maintain it. We were to make it; we were to renew it ; we are not to maintain it. Now that argu- ment is, to my mind, nij,do unanswerable. RosR, J.— They could not assess actnal repairs. Mn. McCartht— No. Rose, J.— Because it would be impracticable ; and therefore the fact that we find no provision for the assessing of the repairs would not help us. Mil. McCarthv — It shows us that the Kcheme of legislation was that the parties liable to make it should make it, but the City should keep it up, because it would be a trifling sum when done by their road otUcers from time to time, and as to which it would be impossible to keep count of the cost. The City does this work by having its staff of men who perambulate the sti^ets, and where they find a block has risen, or been pressed too low, it is replaced. Yon cannot fix the cost of it ; it is a trifling thing. It may happen once a month, or once in six months ; but it Ib such a trifle that it cannot very well be reckoned. What was intended was to let the City manage that part of the street. It was under their control, to be managed by them, and not to have two sets of individuals, or two corpor- •tions responsible, separating their liability in that regard. Now, I wy that CITY OP TORONTO v. TORONTO STREET RAILWAY CO. 141 argument is made unanswerable. It appears to me if the view which I have ventured to put forward with re^^ard to the amending of the Statute of 1876 is the correct one— because it is quite plain, at all events, that by the original charter, by our contract, which is not likely to be altered by the Legislature, and which the Court cannot presume has been changed by the Legislature — unless the thing is so plain as to remove any room for doubt, or the intent from that is so clear that no other rosult could bo arrived at, I say originally, there was not that liability. We siiy that when the now legislation of IHTfi vvaa passed our rigltts were observed and preserved, and it was clearly intended that while our obliga- tion in some respect was increased, that the freedom from liability in the other case was compensation for that ; and can read within the lines of the statute of 1876 a fair reasonable bargain or consideration for the obligation on the one part, and the freedom from liability on the other ; but if the view put forward by the City is correct, without rhyme or reason, the Legislature has imposed upon us at the instance of the City a liability which we never agreed to, never undertook; and far in excess of our original contract. Rose, J. — What do you say your original contract was ? Mn. McCaiithy — The one referred to here, to pave, macadamize, and keep in repair, which is a vastly different thing from making a block pavement, which ia the case here. We were to ^ave, macadamize, and keep in repair, the road being already made. It is not constructing another road ; it is putting another material upon the road. What is the macadamizing ? It is putting down the broken stone within the track. ' ' BosE, J.— What is paving ? Mr. McCauthy — Paving, I suppose, would be putting blocks, or there is another method of paving-cobble ; that is a method of paving. That is what my learned friends used. Stables are paved in that way, yards are paved that way ; just those round stones put in their place ; at all events, we were not bound to pave. That was our own option. We might have put blocks there if we thought it would have saved expense in the long run, but we were not bound to do it. We were to macadamize, to put on good material on the road on which our horses were con- tinually treading and using up the road. Then comes the now arrangement which was a reasonable one. Rose, J.— On such a road-bsd a more frequent repair would be requisite or neces- sary than upon one of a permanent character. Mb. McCarthy— No doubt. Rose, J. — By putting down a permanent roadway you would be relieved largely from repairs. Mr. McCarthy— That may be, but your Lordship will see what we may be assumed to have agreed to in this Act of 1876, because there is plainly a bargain arrived at thete, or the Legislature has recognized the position. It says, " The Street Railway Company, in repairing the road-bed, shall be bound to use — not macadam, which we had the option of using before, or pavement— but we shall be bound to use the same materials that the City are using. That was also in our liability. 142 MEMO. Robe, J. — Stopping right there, they have not relieved you of that ? Mr. McCrthy — Pardon me, that is increasing our liability plainly, and if that statute stood alone, that would certainly be a very harsh piece of legislation. The whole of this is founded on contract, as the learned Chancellor decided in the other case ; the whole of this matter between the Street Railway Company and the City of Toronto rests and is founded upon contract. A contract was made between the City and Easton. That contract afterwards was iembodied in the charter. The charter gave the City power to pass a by-law for the purpose of carrying it out. The City recite the contract, and enact it ; so the whole of it rests in contract. It is an agreement between A. and B. When the Legislature undertook to say that instead of paving and macadamizing we should put whatever material the City happened to use, it was imposing an additional burden, and altering the contract in our disadvantage ; but as compensation for that, the Leg- islature in the next clause says that where block pavement isr now in use, and whenever the Corporation makes a change in the kind of pavement for the time being in use on any of the streets traversed by the railway, they shall be bound in the first place to construct, and when the same shall be worn out to renew the pavement on that part of the street which the said company is bound to repair as aforesaid. Then, following that on, and shortly repeating what I have already said, the subsequent provision shows that the repair clause is limited to the obli- gation imposed upon us by section 1 as cut down by section 2. The result, if I am right, is this, that we were not to repair, construct, or renew where block pave- ment was used. We were to repair, we were to renew, if renewal became neces- sary, we were to keep in repair and maintain with the same material that the City used in other portions of the street. Our part of it is defined in the Act. Then, following, the next change is that we shall be bound to construct, renew maintain everything but permanent pavement. In the case of permanent pave- ment we shall not be bound to construct or to pay more than so much ; and we say that is the change ; therefore — carrying out the scheme which we find in sec- tion 76— that is the change which was imposed by this new Act ; and that view is strengthened when we find the machinery for the pavement being the same as in the Municipal Act in force at that time. Now the sections of the Municipal Act in force at that date was the Statute 86 Vic, Cap. 48 ; and sec. 476 says, " Nothing contained in the three next preceding sections shall be construed to apply," etc. We find they have brought in machinery, though not this partic- ular enactment in so many words, but the machinery for levying the rate and the mode of paying it is incorporated in this special Act by section 4. This is the first view which we present to your Lordship, which is wholly dependent upon the construction of these statutes : and the only authority I refer to is that in the alteration of a contract, which is an infringement on private rights, clear words must be found, or the intent from the words must be not open to doubt or cavil. Western Counties v. Indianapolis Railway Company, in 7 Appeals, that is laid down and referred to there. Our next contention is that if we are liable as contended that we cannot be liable in a case where the City does not select permanent pavement. If we have to pay a large sum of money for putting down a so-called permanent pavement, which the City have the sole choice in the selection of, and in which we have no voice. We say that it cannot be assumed that, if that is not permanent pavement, and Ms CITY OF TORONTO r. TORONTO STREET RAILWAY CO. 148 wears out in two or three or four years, if it is a kind of pavement wholly un- fitted, that we are to he made responsible to renew that and to keep that in repair. Boei, J.— What is permanent pavement ? Hr. MoCabtht — Well, the Legislature seem lo say . i la permanent pavement. Rose, J.— If you make pavement of good stone or asphalt it is permanent. Mb. MoCabtht— So they seem to make out here. I suppose under that conten- tion we would have td prove to the satisfaction of the referee to whom this matter would be referred, whether it was permanent pavement or not. It is quite plain that it is not every wood pavemei^ which is permanent. Boss, J.— I suppose it would be admitted, at that rate, that you would not be liable to pay for pavement that is not permanent. Mr. McGartht— That is what I think ; and we say if they put down a pavement which they call permanent, and which is not permanent, and it goes all to pieces in six months, they cannot call it permanent. BosB, J.— Your liability would be outside of that section. Mr. McCarthy— Our liability would be outside of that section. . BosE, J. — And that would be to repair ? Mr. McCarthy — Yes, unless under this section here— of course there is a difiBoulty in escaping from that section ; in the one case we would pave it ; in the other case they say " this is permanent, and we will make you pay so much a square yard," and possibly they might make us pay 92.50. Can they now, having said that is permanent which is not really permanent, can they be heard to say, " you must keep that in repair ? " Rose, J. — That depends on your other argument, of course. Mr. McCarthy — If we are liable to maintain a permanent pavement— or, we say. admitting that liability for the sake of this argument — we are not liable to x-epair this particular so-called pavement, because it was of such a character that yon ought not to have used it as a permanent pavement. Rose, J. — Would not the remedy bo to obtain back the money in excess of that which you ought to pay for an ordinary pavement, if, for instance, they charge 91.25 a square yard, where in fact it only cost .'>0 cents ? Mr. McCarthy— The difficulty is that it may have cost all that they charge. We do not pretend it did not ; but we say they have pretended — they have so-called a pavement a permanent one which is not permanent pavement. Rose, J.— Say it is not a permanent pavement ; supposing it is beyond dispute ; well, then, that section would not apply ; that is all. Mr. McCarthy— We say that although they do not apply in reality, they are estopped from saying they will not apply. They are in that position that we often find people are in. ' \if 144 MEMO. RosK, J.— But yuu are aHsuming you are not bound to repair a {lermanent pave- ment. Mr. MnCAiiTHY — No, I have paascd from that. I need not arf^ue this branch. I will pans that point ; if I am not bound to reiwir a iierniatient pavement under the argument I have already advanced, there endH the iiueotion. RoHB, J. — Unless this Ih not a pci mancnt pavpinent. Mr. McCarthy— No ; I am {{oing on the other assumption. They start with th» aHiiuniption it is permanent, and nay we are bound to repair it and now that we are liable. We say, in the first plaoo, we are not bonnd to repair in case of per- manent pavement. That I iiave passed. Then we come to the next branch. What we say is this, "you have called it aipeimancnt pavement, but in reality it is of such a character that it should not properly have been called a permanent pavement ; and as you alone have the choice in the selection of that pavement, and were bound to select that pavement, we are not to be held responsible for, your selection of material, we being able to show this is not such as should be, used. ItosE, J. — That involves the question if you can dictate to them under the statute what they shall lay down as a permanent pavement. Mb. McCaiithy — No ; they have the option of selecting the pavement, but we say, " If you call a permanent pavement that which is unwholly unfit for a road-bed you oaimot ask us to keep it in repair ; it is your own fault if you have used material of that kind." And, lastly, we say— and I do not think my learned friend disputes that proposi- tion ; at least I did not understand so — that if they have negligently and improperly put down this pavement, by reason of which it has become out of repair, they cannot hold us responsible. They say, " we want to put down block pavement." They make us pay our proportion of it. They put it down so badly that the road-bed or pavement, which would otherwise have stood ten or twelvu years, gets out of repair in two or three years. We say '* you cannot make uk liable." In other words, we say " your duty to us is to put that material down in a good and sufficient way, and if you have not done so you cannot make us pay for that default," and on the contrary we counter-claim and say, " you are liable to U8 in damages for the improper way in which it has been put down :" and on that there would have to be a reference. That comes up under the 8th paragraph of the Statement of Defence. Then, as to the other branch of the case, which is not, of course, the important matter in dispute between them— that is as to our liability to accidents. We do not dony under our agreement a certain liability for the 'character of the accident of which we have particulars here. In all cases I think they are for accidents that happened to horses, owing, as they said, to the road being out of repair. We s%y we are not liable to the City for that; and we put it on these different grounds : In the first place, if the eiTect of this legislation is as I have already contended for, and we are not bound to keep in repair, of course that ends it, because if we are not bound to keep in repair, we are not in default. If wi> are bound to keep in repair under the legislation, then we say the City is not bound to keep that portion in repair, and have nothing to do with it ; and there- CITY OF TORONTO v. TORONTO STREET RAILWAY CO. 14R fore the City ooultl not be sued, and ouf^ht not to allow itself to have damat^en recovered a^^ainst it, and cannot make us pay. In other words, the responsibility was a responsibility direct from the Street Railway Company to the injured indi- vidual. The City was not at all liable in 'that view, but merely the Street Rail, way Company. Rose, J.— You mean they are relieved from the general liability ? Mb. McCAnTnY--YeH. Tliat portion of the street, the nine feet, is by legislation, because this contract has been ratified by the Legislature, that nine feet is pnt in under the control of the Street Kailwity Company. That portion, therefore, is, as it were, taken away from the ordinary liability which would otherwise be im- posed and is otherwise imposed by the genera! law upon the Municipal Corpor- ation. There is no liability, therefore, to the public or to the injured person by the City. They have no business to stop in aud assume our obligations and ask us to recoup them. Robe, J.— Would not the argument be against you in this way ; that liability is merely as between you two; but the Lej^islature did not relieve the C'ity of their general liability to the public. This is merely a contract between yourselves. Mb. MoCauthy— If that is the proper view of it, your Lordship is quite right ; but I tai«^ it it is more than that. The contract is made, aud the Legislature adopt that contract, the Legislature enact that contract and. ratify it; and therefore there is a contract by the Legislature that the Street Railway shall keep that in repair. It does not say " preserving always the liability of the Street Railway ta the City Corporation." RoBK, J. — Is it any different from the Water Works ? Under the old legislation the City was allowed to permit the Water Works Company to cut up the streets. The City was held responsible for the repair of the streets. Mb. McCakxhy — Yes, because it was merely to dig it up and put it down in that case ; but that is not the obligation alone ; we are bound to keep in repair that nine feet of the street, not merely to repair the dama(;e we do ourselves, the wear and tear of the railway, but to keep in repair everything that is done. RoHK, J. — la there a distinction in principle ; supposing that on the first day your liability arises yon neglect to perform your duty, aud by reason of that neglect an accident happens, the Legislature having said " you may arrange between the Corporation and the Railway (Company to repait it that day ?" The Legislature say " you may enter into an arrangement with the Water Works Company by \rhich they may dig a hole in the street, and may repair that." ^ Mb. McCabtut — Must repair it, I suppose. • Rose, J. — Well, must repair it. Well, then, they neglect for one day to put that in repair, and an accident happens ; is there a distinction ? Mb. McGabthv — Yes, I think there is ; but I think in the case your Lordship pats the City would not be liable. BotK, J. — Ridgeway ▼. Toronto waa a similar case, where the City Water Worka left open a hole in the street, and the City were held to be liable. 146 MEMO. Mr. McCaiitht — There inuit have been some knowledge on the p»rt of the City, I ihonld think there would be no doubt in that oaae, because the City in bound to see that the street ia oloaed where it is open by leave of the Oity. But here in thin oaae the Legialature haa aaid that nine feet of the road ia to be alwaya, from the lat of January to the Slat December, to be kept in repair. If there waa an obli< gation towarda the public upon the Street Railway Company to keep that nine feel in repair, an indictment for non-repair would lie againat them. Mr. Bobikbon — The American caaea are againat that view. Mr. MoCartht— I am aware of that, but it ia not a deoiaion binding here ; it is merely a dictum. I ahould have thought that if the obligation, the legal obliga- tion, thua impoaed waa to be maintained by both partiea that the Legialature would have oaid by aome worda, or uaed aome worda to ahow that the Corporation waa not to be freed from ita liability. If I am bound to repair 06 feet of a street, and afterwarda the obligation to repair 80 feet of that ia impoaed upon aomebody else, I should think that, without more, I am at once freed from liability aa to that 80 feet, and I do not know why that ahould not be the aame in thia oaae at it would only be nine feet. Then, if that be not ao, the other view comes up, that we were both bound to repair ; it must be one or the other ; that we are bound to repair, and they are bound to repair. If we are both bound to repair, and we do not repair, we are joint tort feaaora, artd I Know of no oaae by which one joint tort feaaor can be obliged to pay the damagea suffered againat the other joint tort feaaor. BoBB, J. — Take this atate of thinga ; the Corporation erect a drain, and the party through whose l&nda the drain runs wrongfully stops it up ; the Municipality know of that stoppage and do not relieve ii ; an overflow, damaging the adjoining lands, occurs; he bringa an action against both. Mr. McCarthy — That ia the caae which your Lordship aays haa been decided in the Court. Boas, J. — Are they not both wrong doers ? Mr. McCartht — No ; that is distinguishable. The wrong-doer is the individual who stops the drain. The Corporation's liability is of a different character— for non-feasanse, not for mis-feasance; quite a different thing. Suppose that I put a block on King street; my wrong is putting the block there and I a'n liable for any damages which arise. The City are liable for not removing it, t.;id it is non- feasance. I remember one or two cases in my own county turning on that point. People have left saw-loga on the road ; accidents happened and an action is brou){ht ; and the question is, was that pile of logs left there so long that the Corporation ought to have known it and removed it, or did they know of it, their liability de- pending upon the fact of their not having taken it away. BoBE, J. — In this case, are they not both nonfeasance ? Mr. McCarthy — No ; it is a misfeasance, I presume ; that ia miafeaaance, non- repair ; it is the joint misfeascnce. If we both could be sued, and could be sued jointly on this assumption, the allegation would be that it was our duty to repair and wo did not repair ; and the action could be brought against the City. In the other case it would be quite different. It would be that the adjoining land-owner. throuKh whose land the drain ran, who ou({ht to have allowed it to remain open, and closed it, and the Corporation, knowing that waa closed, allowed it to remain closed, whereby the accident happened. I know of no case in which an action could be maintained by one of the two wrong doers against his fellow wrong doer. RoHR, J.— I suppose the general principle will not be disputed. ^ Mk. Robinson— That is very much discussed in the American cases. Mn. McCAnTHY — The case my learned friend referred to in 2C C. P. in a different case which I would not dispute. Justice Gwynne says, and only sayH as a dictum, not necessary for the decision at all, but merely says that wliere the officer of the t'orporation has done the wrong that the Corporation would liave the remedy over. Well, that is depending on contract, I take it, If my ofticer, • if my servant was bound to do something which he had not done, and by reo lon of which I am sued as a wrong doer, I have a right over against him, depending upon the contract between us. That is what Mr. Justice Gwynne decides in Gil- christ V. Carden, or rather, that is what he states; and I suppose that is following American authority , and I suppose is very good law, but it is depending upon ' oontra^t, and that brings me to the consideration of what the con bract is here. I thought when I heard my learned friend's argument that tho City's claim was founded upon the contract, and upon the contract only. My learned friend seeks to enlarge the liability beyond the terms of the contract. Our contract is to be found in the 16th condition, " The proprietor or proprietors shall be liable for all damages arising out of the construction or operation of the railways." Then on page 8, " And the said party of the second part doth hereby for himself, hie heirs, executors and administrators, covenant, promise and agree to and with the said parties of the first part, their succesHors and assigns in manner following, that is to say: first, that he will construct, maintain and operate the said railways within tho times in the manner and upon the conditions in the said resolutions • and these presents set forth," etc. What does that mean? Does that mean anything more than that we are to be liable to pay to the publio to the person, who is injured ; it is not that we shall be liable to you, but we shall be liable for all damages. If it covers a case of this kind at all — which I do not think it does, and which I will endeavor to show it does hot — it is not anything more than a mere declaration which the Legislature sanctioned that we shall be liable to the parties^ and if so there was no liability to the City, following the same line of reason I have already stated ; but what I contend is that this covenant and this- couditton does not apply to a case of this kind at all. We shall be liable for all damages arising out of the construction ; that is the making of the road, not the negligent making of it ; but if in the making of the road, following the line of the railway oases, if the making or operating the road causes damage, for that making or for that operation which you are permitted to do yon shall be liable, and shall indemnify ua. If, for instance, a landowner, people living on the streets, have, by reason of anything you did in making this road, causes of action, you shall be liable. If, for instance, the effect of it is to interfere with the watercourse, or anything of that kind, to cause a new watercourse to be made ; and that line of argument is strengthened very much with reference to the case under the land clause of the Consolidation Act, although the words are not the same; the words are, " Shall be liable to make good all damages sustained in the execution of . the work." That is pretty much the same as the construction of the road. Then 11 '.wl Ml comes the operation : but surely it in not contemplated that the negligent oper- ation of the work ie provided for here. That is left outiide altogether. For that negligent operation wo are liable to the public. Aotioni are brought against the Company, and can be brought against the Company for injuring a person in the working of the road, whether it is a passenger or some one using the road ; and if there is an obligation upon us to maintain that road, there is a liability on our part for accidents. BoBX, J. — I would like to know the effect of chapter 61, Incorporation Act. I want to see whether this liability is a liability to the public or to the City. Mb. McCarthy— It is rather difficult to maintain the proposition that this six- teenth clause— although, perhaps, Mr. Bhepley has stronger views on that than I have— that the liabilities on this clause are to the public, because it is a con- tract ; and it would be difiloult to see how on that alone any person could •ome in and say " I have sued you because you agreed that the City should not be liable." The way I put it to your Lordship is that we would be liable for our own wrongful act irrespestive of any contract ; and what that was intended to provide for was the acts which were not wrongful, which were necessary, in point of fact, for us to do in the construction and n ntenance and operation of the road — these acts which we had to do, and which caused damages to land-owners, who could rightfully recover, just as with any other Railway Company who are using their privilege ; and for these acts we ire bound to make good. It is merely a condition on which our charter is granted — a condition which these people could avail themsehes of — a condition which would prevent as saying, " We have got legislative power to give us your property without compensation ;" and that seems to be the line of the English authorities. There is one case in 6 App. Cases which goes to sliow that the rights of individuals are not taken away except by express legislation ; and it would also show that people under such terms as that would have a right to maintain an action for the wrong done, or the nuisance created, notwithstanding that permission was given in such terras as these to a , Corporation or an individual to do the act. On page 8 of this pamphlet, the 4th clause reads:—" That during the oonstrnction of the said railways due and pro- sier care should be taken to leave sufficient space and crossings, so that the traffic and travel on the said streets and other streets running at right angles thereto shall not be unnecessarily impeded, and that the water courses of the said streets shall be 'eft free and unobstructed, and lights, barriers or watchmen provided and kept by the said party of the second part when* and where required to prevent accidents to the public." These are reasons why we think the action is ill- conceived, and that we are not liable on any of the grounds. We are not liable under that agreement, because it does not cover the case. We are not liable to the City, because in one view we are both wrong doers ; we are not liable to the City in the other view if the duty is oast upon us because the City ought not to have assumed our responsibility. We are not liable unless we are bound to repair. I need not repeat what I have said with regard to the other, because I think I have made my meaning clear. Mb. Shepley — I think it would be useful to consider for a moment the history of this ^gislation, and the state of affairs at the time this legislation was passed, though not strictly admissible, perhaps ; but inasmuch as my learned friend Mr. Bobinson has dealt with the matter, I think I have a right to refer to it. CITY OP TOUONTO .-. TORONTO STREET RAILWAY CO. 140 Under the original agreement, ai hai been pointed out, the liability to repair under the third reeolution arose by virtue of u contract aimply. The reiiolutioK reads :— " The roadway between and within at least one foot six inches from and outside of each rail shall be paved or macadamized and kept constantly in go, 1 repair by the said Easton, who shall be bound to construct and keep in gooair crossings of a similar character to those adopted by the Corporation within the limits aforesaid, at the intersection of every such railway track and cross Mtreets." That contract was made with reference to the state of affairs then existing ; that was in 1801 ; lung before there was any contemplation of tlie building of an> permanent pavement of any kind. The roads then wore either clay roads, or roads witli macadam spread upon them ; and so far as the parties wore then con- tracting, no contemplation whatever of the building of such pavements as have since been built. Well, tlion, when the matter was agitated as to permanent pavements, before the Act of 89 Vic. was passed, there were three things which, in the view of the City, who were seeking the legislation, required to be dealt with. In the i\rst place, the Railway Company was under contract with the City, or under terms with the City to extend the Sherbourne street line from Carleton street, where it then terminated, to Bloor street, and the road-bed had never been completed there at all. There was nothing but a sandy road from Carleton street north to Bloor street upon Sherbourne street. The Street Railway Company had taken this stand ; they had said, " It is true we are bound to keep in repair, but we are not lx>und to lay a road-bed upon which the tracks can be laid -, that is something which must be found for us before we commence to lay down our tracks." The City were urging the construction of the road, and the Railway were resisting on tliat ground, saying, " Until we liave a road there to Viv the tracks on, it is iinpoasible for us to go on and lay the tracks;" andsa^i: .- ^ lation itself. I was going on to state what really will be properly admissible iu evidence under the 7th and 8th paragraphs of the statement of defence, when there should be a reference to enquire into the facts. I am putting these state- ments hypothetically. The year before the Yonge street pavement was laid thfr Street Railway Company had made an alteration on Yonge street at the request of the City. They had taken up the single track which had been operated by a. turnout at various points, and laid a double track from end to end of Yon${o street, and they newly paved the space between the rails and the 18 inches outside the rails with a cobble-stone pavement. All that was torn up next year and a new pavement was laid down. The defence shows we appealed against that, but. the City thou^t that was a proper sort of pavement to be put there, but the result was— which I think is material — was this, tlmt the very first year the pave- ment was laid down, the very first time the frost came the block pavement, the blocks along the stringers upon which the rails were placed were swelled and were heaved up, so that there was a line of upheavel all along the railway track. Now, I think that is material under the 7th and 8th sections, because, to my mind, it is difficult to see how, after the City has attempted to lay a perfected pavement, assumed to lay a perfected pavement; if the City has erred, in its selection of the kind of pavement, or has negligently laid the pave- ment, so that it becomes out of repair, it is difficult to see how we can be liable. The words " out of repair " are ambiguous, and not appli> cable, perhaps, to that state of things ; but if the pavement becomes a wreck with- in a short time, so that an actual renewal and fresh constmotion have to be gone^ through within a few years, it seems to me that is not what the statute means by repair. Then it becomes altogether different, and something as to which the lia-. bility does not run. I do not propose to add anything to what my learned friend has said with regard to the construction of the section further than to state thcse^ tacts, and just to add one or two words with regard to what he said upon the effect of section 47 of the Act of 1877. It seems to me that under that section th& Legislature has virtually provided that every block pavement of which the street, railway has to bear a share shall come under the local improvement regulation of the Municipal Act. That is, " the City shall construct, and iu every case shall assess an annual rate, covering interest on sinking fund, etc." Now, if that is so, then that is not affected at all by what my learned friend, Mr. Robinson, said, that still the general public pay for the repairs, yet the adjacent ratepayers pay their share of it, because the street railway pays its share of the general taxes, just as the adjacent ratepayers pay their share of the taxes. They are assessed on their income just as the adjacent ratepayers, and the fact that the road bed ia assessed does not affect the argument one way or the other. Mb. Robinson — It seems to me to be a case in which you can state the legislation in a very few words. When this Corporation was created, their obligation was to construct and repair, either to pave or to macadamize, The on^y difference is that when they came to use block pavement, and it being represented that block pavement might be more expensive than any ordinary pavement that was in contemplation at the time the original obligation was imposed, the City said virtually, " as to the construction of that your liability shall be limited." That is the whole legislation. That is the only change that was made. First they ■ay, " If you are to oooapy and use such a large portion of our street tor your own tMK CITY OF TORONTO v. TORONTO STREET RAILWAY CO. 158 use, you must conatraot it and keep in repair." Then twenty years afterwards a certain kind of road is designed or proposed which it is thought may be expensive. They object to pay for the construction of that ; and they say as to the construc- tion of that " Your liabihty cannot exceed 92.60 per square yard." Now, is there any other change in the legislation. Upon what principle can you assert that there was any probable intention to exempt them from the repair ? One would 'say that there could be no such intention, because if the road is permanent, the expenses are likely to be small ; if the repairs had been an enormous burden, there might be some equity in the argument " Oh, yon neyer intended for us to keep this road in repair." But if it is a road on which the repairs are to be lighter than ubual, the presumption is not that they could not have intended to make them bear it. They say "We won't n)ake the construction of it more burdensome than you were practically billing to agree to ; that is to say, we will not oblige you to pay more than 92.60 per square yard." Boss, J. — It may be thet that is an average price. Mb. Bobinson— It may be so ; as a matter of fact, I am told that it is twice that. What do we find in that change to justify any sort of inference that there can be any intention to exempt them from repair, because there is no other change made? With regard to permanent roads ; my learned friend Mr. McWilliams tells me that the idea in introducing the word permanent was this ; on macadamized roads yon have to put stones every year ; that is what is done every year. On these roads they do not expect to do anything of the sort ; therefore they were called permanent. Of course they'innst be kept up ; that is to say, certain blocks will come up with frost or rotting. Mb McCabthy — If it were properly made of proper material, there would be no rotting of blocks. Mb. Robinson— I think my learned friend is right to a certain extent. They were block paving in London when we wore there last ; and if you compare the two methods, you can see at once that there are two ways of doing it. The way they do it on Oxford street or Bond street it costs about five or ten tiroes as much, :\nd we cannot afford to do it. We were to do it as well as we could considering the Oircumstances of the country. I apprehend there is a way of making these road, so that the blocks will not lift or rot or anything else, just as the English railroads are made twice as smooth as other railroads; but it is done at enormous expenser which can only be borne in a large city or wealthy country ; but that is the idea involved in the word " permanent" I think my learned friend Mr, Shepley is hardly right in saying that you might as well have repealed the first and secor v sub-sections when you substituted the second one. I do not know that you could, because in sub-section i of the Act of 1876 it is said they are bound to use the same materials unless the City Engineer may think it is not desirable. That is not repeated in subsection 2. Sub-section 1 of the Act of 1876 relates entirely to repairs ; and it says they shall use for repairs the same material, unless the City Engineer choses to except them. That is not repeated in sub- section 2. Then anb-MOtion 2, as construed by the Act of 40 Vic, relates to construction and repairs, and puts in that proviso, bat does not say anything as to the option or uiscretion which the Engineer may use in saying they need not do it. With regard to the argamant which my learned friend has used as to contribution for aooidenta, your il 154 MEMO. m 13' Lordship will find in tliat case in 47 New York at page 486, that matter is dealt with "Only is the plainti£f liable " etc., etc. Mn. McCarthy — That depends on cont"»ct. Mb. Bobinson — We say clearly you have bound yourself to do that by contract. I am arguing that you are bound to do it. If you are not bound to do it, there is an end of the contract. Mb. McCabthy — We are not bound to indemnify by any express contract. Mr. l^oBiNSON — But we say you are bound to repair by express contract: and that was exactly what they were bound to do in that case. When they say " Tou cannot sue us for the consequences you have been put to by reason of our neglect of contract because you ought to have done it as well as we, and we are both wrongdoers" the Court answer that, and say that is not a case where that applies. It is only this morning I read a long discussion as to the application of that doctrine, either 3 Seldon or 4 Baiiiuer ; but they say it is limited to cases where the person is doing something consciously wrong. It must involve something in the nature of conscious wrong in order to make that maxim applicable. BosE, J. — As to the negligent construction, Mr. McCarthy puts two propositions which I would be glad to hear you upon. He says that if the road-bed is permanent, and is not, in fact, permanent, you would be estopped from calling it permanent, and by saying it is not permanent.then they are not liable to repair ; and that if it is of a permanant kind but improperly laid, then ^Bn cannot call on them to repair. Mb. Bobinson — I dealt with that in the beginning, and said almost all I could say. He says we call it permanent when it is not permanent, and we cannot, therefore, recover. I say we must be the judge of what is a permanent pavement. These are the words " Provided that where the Corporation of the City of Toronto adopts or uses on any street or portion of street a permanent pavement of wood or asphalt," etc. What is meant by that ? Rose, J. — Suppose you chose wrongfully to say something was permanent which is beyond all question not permanent ? Mr. Bobinson — That must be a question of fact. BosE, J.— He contends that if you should do that, they would not be liable for repairs for that. Mb. McCarthy — Supposing it were plank — that would illustrate my meaning — and not permanent. Mb. Bobinson — I do not see myself that they are exempted from their obligation to repair that, except on this principle that they may possibly say it is through your negligence, not through ours, it has fallen out of repair." They may urge that ; though I see a good deal of difficulty in the application of it, because it seems to me it is practically dictating to the City what they were to do : bat sup- posing we had put down a rsad so grossly faulty in its construction that it got out of repair before it had beer4 there for a month. BosE, J.— Take asphaK pavement, which we will aunm? to b« a permanent CITY OF TORONTO r. TORONTO STREET RAILWAY CO. 165 pavement ; supposing it were put in such a position that after being down a day, it all breaks up ; that would bo permansnt pavement with a faulty construction. Mil. BoKiNBON — Yes. BoHE, J.~He contends that they are not liable to you, but that you are liable to them, in the counter-claim. Mh. JloBiNsoN— I cannot see how you can establish any liability 'rora us to them. Supposing it is asphalt ; if that asphalt pavement breaks up within six weeks, that is not because it is not in its description a permanent pavement. It is be- cause it is so constructed that although it ought to be permanent it is utterly fragile and perishing. Bos£, J. — Gould you call upon them to keep that in repair, supposing a section of ten feet square should fall out of repair in six weeks. Mb. Robinson — I do not wish to be understood as making any admissions as to the law, but I say that they would have a very strong argument if it were a clear case of gross negligeuoe. Supposing they say this, " You have made us pay 92.50 per square yard, which would not have put us to any expense if properly laid down ; and you have constructed it so grossly that it did not last three weeks." I should suppose the City would have great difficulty in resisting it. It strikes me that way. BosE, J.— I should have thought they would be entitled to call upon the City to put down that which they agreed to pave. Mb. Bouinsoh — I should think that would be reasonable. I should think it would be totally unreasonable for them to say, " We have taken from you the price of a good article, and built a bad article which you leased"; I should have thought they would not be obliged to take it. Rose, J. — That would cover both cases. Mb. Bobinson — No : it would not cover as I see it. I see a difference between saying " What you have called permanent is not permanent by its description." BosE, J. — He says if you call it permanent you cannot say it is not permanent in description. Mr. Bobinson— Your Lordship understands what I mean. Supposing we choose as an experiment— because we are following a thing which has been tried in Detroit for a year or two ; people are satisfied with it and think it will last. Now, we say this is a permanent pavement : we in good faith adopt it and build it, but we are disappointed ; it turns out it will not stand the weather. Now. you could not say that was not a permanent pavement within the statute. BosE, J.— Probably not ; but supposing it was something that nobody really ought to call permanent, was called permanent from gross ignorance. Mb. Robinson— I should think it would come within the other. We cannot make a thing permanent by calling it so ; but we can make a thing permanent in this sense : if it is in reality what everybody else thought at the time was permanent, and if it were constructed as snch a pavement ought to be constructed. You probably know as well as I do, that that pavement which was put up the Avenue 166 MEMO. was thought to be a thoroughly f^ood pavement ; but as a matter of fact, it all split aoronB in every direction in a couple of years. That was not a permanent pave- ment within the statute. Bosk, J. — It was an experiment. Mr McCarthy— You cannot experiment at our expense. Mr. Robinson— I say we can ; providing we are experimenting in good faith. We cannot try experiments which nobody else ever tried, and which we have no reason to believe are likely to succeed at all ; that is negligence ; but if we are muking an experiment in good faith, which was a reasonable experiment to make, and which we make properly, then they cannot accuse us of negligence and bad judgment in trying it. They take their chances with us. Supposing after a great deal of work had been done, we discovered these block pavements would not answer, nobody would say the City was grossly negligent in constructing block pavements at all, because we can point to a dozen places in the States where they have tried it. Bat if we gradually camQ to the conclusion that these block pavements were a mistake, and not as permanent as they expected. Rose, J. — As to that point, can there be any theoretical or kypothetical decision ; Would not there have to be a reference ? Mr. Bobinbon — That is what I said to your Lordship ; I said I did not know whether you would find it necessary to decide that point. Mr. McCartbx — It could not be decided unless you were ready to decide against QB at once. Rose, J. — I am rather captivated with the argument advanced by Mr. McCarthy on that point. Mr. Robinson — I thought the only two points we were to argue was the liability to repair and the liability for accidents, nnd my learned friend suggested the other point ; but I do not see how it comes up at present. If you are prepared to say that whatever the City chooses to call permanent shall be permanent, whether there was any sense in calling it bo or not, and no matter how rashly they were constructed, they can make you pay for the repair, it does not strike me as reason- able. Robe, J. — I think as to that, we should have to have the facts before the law is decided. Mr. McCarthy — That depends upon the main question. Mr. Robinbon — The main question, I take it, is the liability to repair at all, and next the liability for accidents, because if my learned friend could sustain im- munity frem any obligation to repair, there would be no facts to try ; and if they can sustain immunity from any damages sustained by us, there is no use in going into the evidence. As to the other, I do not see how your Lordship is to write a judgment defining under what circumBtances they, would or Y^ould not be liable. Mb. McCarthy— That might as well be left open. Rose, J.— I think it would be better for me to expresa the opinion I have now CITY OP TORONTO v. TORONTO STREET RAILWAY CO. 167 formed. It is true I might reverse it on further consideration : but I have a strong opinion, and if I give judgment novir, my opinion might be reviewed during the next two weeks. • Mb. RoiiiNsoN— My learned friend did argue that they were not liable for these accidents because we were relieved from liability. Well, there is a direct decision in the United States, and another decision just put before me. Rose, J. — My opinion is it rests with contract. Mr. Bobinbon— As I understand it, the City is not exempted, not relieved, as against third persons and as against citizens. This case of Hau» v. Northampton, 116 Massachusetts 74, decides that the town is primarily liable. We cannot get tmt of our statutory liability without express exemption. JUDGMENT. BosB, J. — The first question depends upon the original agreement, and upon subsequent legislation. The third clause of the agreement is found in the by -laws of the Gity, page 106, and provides for construction and repair by the Street Railway Company. The Act of 1876 and 1876, referring to that^ agreement by sub-seotion 1, makes certain provision with respect to repairs. By snb-seotion ^et Railway Company for indemnification in oaBe of accidents arising from such causes. I agree as to the construction placed Upon clause 16 of the agreement, argued by Mr. McCarthy, as not covering this branch of the case. I am glad to be relieved from giving any opinion as to the liability to the City with reference to perma- nent, or so-called permanent road beds, which'are either not permanent in their character or not permanent by reason of faulty constrnction. It seems to me that only a hypothetical opinion Cv ^Id be given of such a case, and the fact would have to be ascertained by a reference. I express this view that the parties may more speedily obtain the opinion of the full court in reference to the matter, or for further review. Mr. McCABTHY~The order will be made, I suppose, under Rule 249 of the Judi- cature Act. Hose, J.— Any order the parties may agree upon. Mb. McCabtht— " If it appears to the court or judge,'' etc. {reada rule). It will be under that, I suppose. Mb. Bouinbon — Yes. Beading the case in 5 Chancery Division, this may come up at the trial, I see. Mb. MoCabthy — Yes ; this is the trial. BosE, J. — The result of this, it nothing further is done, would be to direct a refer- ence. Then yon may appeal from my order directing the referenoft on the ground that there is no liability. Mb. MoCabthy — It would be declaring first that we were liable to repair, and that we were -liable for these damages, and directing a reference to obtain it, and directing a reference on our part of the claim. BoBE, J. — To ascertain the nature and character of the road bed. Mr. McCarthy —Yes; and further directions, in that case, would have to be reserved ? BosB, J. — Further directions reserved. * , Mb. McCarthy — Subject to the result of the reference. BoBE, J.— This declares, assuming my opinion should eventually prevail, that you are liable for repairs ; and the amount would have to be ascertained by reference. Mb. McCarthy — Yes, unless it turns out that these repairs were owing to the neg- ligent construction of the road ; and then we would not be liable. Boss, J. — That, of course, should be further considered. Mr. McGabthy— Well, then, the first matter of reference would be as to whether ^ey were liable. There would be no use their taking an account for the amount CITY OP TORONTO v. TORONTO STREET RAILWAY CO. 169 of that, if in the end it appeared that the repairs were occasioned by the faulty construction. IloBE, J.— But the contract is placed before me, and I construe the contract that you are liable to repair, bound to repair. Then on the reference to ascertain the amount of your liability, would come up the question as to whether the work had been done in such a manner as came within tlie provisions of the agreement. You would be liable if the road bed were permanent, and there were not faulty construction. Mr. McCahtuv — But there is no declaration as to that. There would be some difficulty in framing the minutes as to that. We say that our liability depends on three things ; first, the question of law, which is decided against us ; and then on the evidence, which has not been given : and perhaps the evidence should be given and dealt with by your lordship before the other question is considered ; because there should be no reference as to the amount until we know to what extent we are liable. Mr. Bobinbon— Then what we ask for is this ; first we ask for a sum of 90,000 aforesaid so paid. We are entitled to a reference to ascertain what .was paid, and are entitled to get it unless they sustain the defence. We want a declaration that the defendants are bound to maintain and keep in good order and repair all of the roadways and crossings between their rails, and 18 inches on either side, as pro. vided in the statutes, agreements and by-laws ; and in default of their doing so they are bound to repay all moneys expended, and are liable to us for all accidents which occur in consequence of the non-repair. Now, we are entitled to that de- claration. BoBE, J. — I think we can get at it through section 47 of the Judicature Act. I rule aa a matter of law that on the contract you are liable for repairs. I refer it under section 47, to enquire and report the nature and character of the repairs for the purpose then of determining whether they come within the liability under the contract ; and also the amount, if anything— do you claim anythiiTg specifically in regard to the accidents, or is that merely declaratory ? Mr. RoRBfiBOK— Yes, large sums. Bosk, J.— Also to enquire and report as to accidents. On that report there is a motion for judgment, on which motion the questions of law and fact are discussed. That being miy present judgment, with a reference under section 47, the whole judgment may be reviewed. Mb,«Bobin80n — As I understand it, your Lordship decides against them on this point of law. They set up two questions of law. On one you decide against us, and the other in our favor. First, they say the alleged want of repair complained of in this action is due to the fact that the kind of pavement adopted and used by the plaintiffs in the construction of the streets was totally inadequate, etc. I say that that is a defence which they cannot set up. They do not say we negligently put it there ; but they say, " It is not a kind of pavement you should have put there. It is dictating to us what kind of pavement we should use." That I understand your Lordship to be in our favor upon. Mb. MoGabthy— His Lordship wanted the facts upon that before he decided it. kill' it i .1. 160 MEMO. Mn. UoBiNHON — I am quite willing to take the flndinK that the Master flay« in hia judgment, tliat this ia not the kind of road we ought to have uaed. fioBB, J. — We can get rid of the question of deciding that now by referring for enquiry and report as to the nature and character of the roadbed, and tlie pcv- mancy of its construction. Mr. Robinson — Your Lordship sees exactly what that will lead to. That may lead to a long enquiry of enormous delay and expense. Rose, J. — Won't it result in that anyway ? Mr. Robinson — No, I think not. Robe, J. — If Mr. McCarthy takes this position, " You have laid asphalt"— using the old illustration — " but it is not really asphalt ; it is permanent in its nature, but not permanent by reason of its faulty construction :" won't that open up the Hame question ? Mr. Robinson — The distinction, I think, is clear between the two questions. Rose, J. — I would rule in your favor. I think that they are entitled to put down permanent pavements where they want to. Mb. Robinson — It is not for them to set up the defence that block pavement is not the kind of pavem>>nt8 we should have put there. Mr. McCarthy — Wn say it is not a permanent pavement. Rose, J. — I do not know whether it is or not. Mr. Robinson—" The said alleged want of repair is also due to the fact that tiie plaintiifs were guilty of gross negligence in and about the construction of said pavement," etc. That I understand your Loriiship to direct a reference upou. Robe, J. — Yes. Mr. Robinbon — But upon the other point I think it is a pure question of law ; and I do not wish to go into a reference to see whether, in the opinion of A., B., C, or D., we should adopt stone or block pavement. Whether we constructed it negligently is another point. Robe, J. — I am with you on that point. I think the discretion must rest with the Mnnicipali^-' as long as they exercise a reasonable discretion in the pavement they put down, .jecauae their liability is to the public. Mr. Robinson— I am content with that. Rose, 3. — But it might be that laying down a certain kind of road surface, if you may call it that, or pavement, that a certain kind of road-bed would render that pavement not permanent. That is a possible fact ; but that would come under the head of negligent construction again. Mr. Robinbon— Oh, yes. I think the statute says what shall be peimancnt to that extent. It says, " A permanent pavement of wood, stone, asphalt, or other pavement of like permanent character. CITY OF TORONTO v. TORONTO STREET RAILWAY CO. 161 Robe, J.— Bnppose that, without any road-b«d at all, you laid down blooka, nn that it it perfectly clear that is not permanent. Mr. Bobinnon— Oh, that would b« negligent conatruction, no doubt. Mr. McCarthy— Wp say that thiu pavement was totally inapplicable to and inad- equate for the purposea of any street on which the defendants were operating their lino of railway, etc. Rose, J.— There is no other kind than block as a matter of fact ? Mr. McCarthy — No, I believe not. • Rose, J. — It cornea to a question after all whether block pavement may be a per- manent one upon that road-bed. • Mr. McCarthy — Ah a matter of law, what it comes to is thiu, that we cannot say that they are using a kind of pavement which is totally inadequate to the streets it is put upon. Bosk, J. — I would not like to put it in those words. Mr. McCarthy— That is what my learned friend is asking your Lordship to do. Rose, J. — I would think they have a perfect right to choose the kind of pavement, using their own discretion ; but if it is impossible to get a road-bed that would support such a pavement, why that would be negligent construction. Mr. McCarthy— We want to push it further than that ; we say their discretion must be a reasonable one. They must have regard to the fact that there is a street railway there, and a break in the road -, and we have warned them that this block pavement will not answer broken up in that way. Rose, J, — Well, then, it would not be permanent. Mr. McCarthy— It may be it is well put down ; but we say that in the exercise of reasonable discretion no person knowing anything about it would say it is a proper thing to put down. The consequence is they are putting us to an expense year after year which should not be incurred. We want to raise that question. Rose, J.*— Could not that be raised under that enquiry as to whether the block pavement is laid down as a permanent pavement ? Mr. Shkpley— Supposing the first street was laid with cedar block pavements, was laid in good faith by the City, and in the exercise of reasonable discretion. Supposing that within a year of that time, and before any other pavements were laid, it became perfectly demonstrated that it was impossible to lay such a pave- ment as for the purposes of the street, where the Street Railway tracks were laid, and supposing that were pointed out to the City — Rose, J.— Then they would be laying as permanent that which was not a perma- nent pavement. Mr. Shsfley— Supposing in the face of that they go on whenever they build another street to construct another pavement on anot])er street in the same 'way, are wo not justified in saying that they are laying down a certain kind of pave- Lii 169 MEMO. nient wbioh ia toUUy in»d«qo»te and not permanent for the purpows of tha tttreet. Mh. McGahthy— What would be permanent on a street where the railway was not, would not be permanent on a itroet where the railway rnns. UoHX, J. — Would not it be neftligent to construot a road-b«d of that lort? Mh. McCarthy — Well, not neKli^ent, (icrhapB ; it would be a very impro])er exrroiiie of discretion, and we say the Mtatute in impoainK thia liability nieans that that discretion should bo exercised reasonably. RosK, J.— Applying it to the facts ; King street was laid a lonn; time a)(o ; aftd the blocks unheaved on the side of the tracks. Various theories are tfivon for that. Assume that, havin|{ exi)erimenteavement would he with reference to what is known as a permanent pavement. Mr. Bobinbon — We say permanent is not ased in that sense at all here ; " perma- nent pavement of wood, stone or asphalt," etc., as used in contra distinction to the old kind of road of macadam. Mr. McCarthy— Although admitting that would be permanent pavement within the statute, we say there is some other right reserved to us ; and that is that they shall exercise reasonable discretion as to the kind of pavement. Mr. Robinson — In other words, because the strict letter is there, we must put down a different kind of pavement. Mb. McCarthy — Yes. Rose, J.— I should think that haa a great deal of force, ^aase you have a con* tract with them to pay for a certain section of it, and to put it in repair ; and therefore it ought to be with reference to that that it is put down. Mb. Robinson— That is a qnestion which we regard as one of law, about which we do not want a reference. We say they cannot say " that may be the best possible pavement for another street ; but inasmuch as we are going to have our Street Railway upon it, you cannot have it." We say they cannot take that position. Mb. McCarthy — We ask a referenocr to ascertain whether as a fact this was not a pavement totally inapplicable to and inadequate for the purposes of the streets upon which our road was being operated. Rose, J. — It seems very hard if you have not a right to raise that question. I think I will direct a reference as to that, and leave the City to move. Mb. McCarthy — Then there will be a reference upon section 47 on that point, and also upon section 18«as to the other, and then the matters can come up after-* wards. CITY OP TORONTO v. TORONTO STREET RAILWAY CO. 168 Bom, J.—The (aoti will be found, ikud ou thoae flndingi a formal motion for judgment ia made ; and on tliat motion for judgment the law can be argued. Mr. RoiiiNHON —We eay practically that Motion 7 formi no defence ; that you cannot dictate to ut, becauM you have the strict letter here, what kind of pavement you ■hall lay. BoM, J.— I decide againut that. You may move against the decision. I direct a reference under that, leaving the question, if it is not otherwise disposed of, to be further argued upon the motion for judgment ; so you will have the benefit of it. Mil, BoBiNBON— It strikes me that it is a matter which we should have argued as a question of law first. UosK, J.— In order that there may be no mistake in the result, all these questions of law ati to your liability on the report may be argued on the motion for judgment. Mr. Boni.N80N— I should wish to argue this before we come to the report. Bosk, J.— No doubt you will, but if by any accident any matter of law is not ilisposed of now, it may come up on the motion for judgment, so that both parties are fully preserved if there is anything which escapes attention. It will be open on the motion for judgment. FINDINGS OF THE COURT. The following are His LordHhip's formal findings herein : — ^' I find as follows : " 1. That the defendant Company is bound to repair permanent pavements. " 2. That it is liable to pay the plaintiff such damages as it niuy suifer or pay by reason of non -repair. " 8. That the plaintiff is bound to use reasonable care, skill and diligence in selecting pavements to be laid as permanent pavements. For example, if the laying of the block pavement on King street demonstrated that a block pavement on a street on which rails were laid by the defendant Company would not be permanent, the plaintiff, as against the defendant Company, would not have the right to lay another street used by the defendant Company with block pavement «s a permanent pavement ; and if negligent could not call upon the defendant Company to pay for construction or to repair as for a permanent pavement, and would be liable to such Company for loss occasioned by such negligence. "4. That the plaintiff is bound to use reasonable care and skill in the construction of permanent pavements ; for example, if pavement, permanent in its nature — such as asphalt — were so negligently constructed as not tj be permanent, the plaintiff could not call upon the defendant Company to pay for construction or to repair, and would be liable to the defendant Company for loss occasioned by such negligence. 12 h§ \iW' I IM MEMO. ** I diraot • refermoe to for enquiry and report : nnder Motion 47 J. A. O. "1. Ab to cost of rep«ir8 made by the plaintiff to permanent pavements on the streets need by the defendant Company. " 2. The loss or damage suffered or paid by the plaintiff for or by reason of accidents caused by the neglect of the defendant Cv>.^pany to repair. "8. Whether the plaintiff has been negligent in selecting pavements as perma- nent, and if so, the loss or damages sustained by the defendant Company from such negligence. " 4. Whether the plaintiff has been negligent in constructing permanent pave- ments, and if so, the loss or damage s ustained by the defendant Company from such negligence. " By consent I further order the referee to be paid the fees payable to a profes- sional arbitrator as costs in the cause. "JOHNE. ROSE, J." CXXXII. REPORT OF SPECIAL SUB-COMMITTEE OF COMMITTEE ON WORKS. To the Chaimtan and Members oftlie Committee on Workt : Gbntlembn, — Your sub- Committee appointed on the 23rd February to consider and report upon the findings of His Lordship Judge Rose, in re the suit of The City v. The Toronto Street Railway Company, beg respectfully to submit the following correspondence for consideration, pending a recommendation from your Committee: "A." Toronto, 3rd February, 1887. ' Toronto v. Street Railway Company, BIiOOK PAVEMENTS. W. a. McWillianu, E»q., City Solicitor, Toronto: (Without prejudice.) Dbab Mb. McWilijIams, — I am prepared to enter into such an arrangement with regard to outstanding claims against the City as was proposed by you the other day, that is — (1) The claims of persons who have sustained damage by reason of the state of the pavements may be settled by the City and the Street Railway Company without resorting to the defence of such suits. (2) Mr. Coatsworth for the City and Mr. Franklin for the Street Railway Com- pany to jointly investigate claims made, and pronounce upon and agree to the aniount to be paid in each case. CITY OF TORONTO v. TORONTO STREET RAILWAY CO. 166 (8) The City then paying the amount so arrived at to the claimant, that amount is to be accepted as the measnre of the City's claim against the Street Railway Company in each case. (4) All defbnoes, except as to amonnt, to be open to the Street Railway Company in every case as though this arrangement had not been made. For example, we do not admit the City's liability to pay the particular claimant, or that the damages were caused upon our part of the pavement, or that we are liable to indemnify the City. Perhaps if this is satisfactory it would be well to draw up a consent in the suit embodying these provisions. Please let me hear from yon. Yours truly. GEO. F. SHEPLEY. " B." TonoNTo, 5th February, 1887. Toronto v. Toronto Street Itailtvay Company. W. 0. McWilliamt, Esq., City Solicitor, Toronto: Dbab Mb. McWiLiiiAMH, — Vyon consideration I see no objection to the proposed modificatiqn of the 4th clause of my letter of .Srd inst., that is, Mr. Coatsworth and Mr. Franklin agreeing upon a report of the facts, you and I settling whether upon the law they come within the scope of this suit. Of course this arrangement is not to prejudice us in respect of appealing from the judgment given to-day. Yours faithfully, GEO. F. SHEPLEY. „ ^ .. Toronto, February 9th, 1887. Toronto v. Street Eaihmy Company. W. O. MeWilHamn, E»q., City Solicitor, Toronto : Dkar Sib, —Referring to the conversation which I had with Mr. Robinson and yourself on Saturday last, I have to say that a meeting of the defendants' Board was held to-day, at which I was authorized to renew and complete negotiations looking towards a final nnd natisfactory settlement of all matters in dispute. I may say that I am prepared to meet you in the broadest and fairest way in an effort to adjust these differences so as to put the whole pavement question upon a satisfactory and fair footing. I shall be glad to meet yourself or Mr. Robinson, or any representative of the City, for the purpose, first, of establishing a basis, and second, of settling details. I trust 1 shall be met in the same spirit. Yours faithfully, GEORGE F. SHEPLEY. I |S| 't 166 MEMO. r p. Toronto, February 22ud, 1887. Toronto v. Toronto Street liailway Company. W. G. MeWillianu, Esq., City Solicitor, Toronto: De.ui Sib, — Referring to our conversation of yesterday, in which you asked me to embody in a letter the outline of a scheme for the adjustment of the matters in dispute, to which the defendants would be willing to assent, I have to say tlmt, while I think a preliminary interview between myself and some representative of the City would have been at once more satisfactory and more expeditious, yet I have no objection whatevor to assume the initiative, and to say what in my view would be a fair arrD repair of these streets. for by reason of the non- 3. Tlie Company to pay all debentnies outstanding or to be issued for pavements constructed under the existing agreement between the City and the Company. 4. The City to construct, re-construct, renew, maintain and keep in repair at it» own cost the pavements on the portions of all streets at present occupied or that may be occupied by the Street Railway Company with their tracks. A yearly rental to be charged by the City for the use of the said streets ; the amount of such rental to be agreed upon by the parties, or failing agreement, to be fixed by arbi- tration. 5. When reconstruction or renewal is necessary on any roadway occupied by and for which the Street Railway Company are assessed, the Company shall be allowed for all material on the roadway under reconstruction that can be ua«d on the work. H. CITY OF TORONTO i. TORONTO STREET RAILWAY CO. 171 1887 of the iei- on leer. m. o the Sub- h tlie: ee)\ (I for y tlie non- lents y. it it» that early snoh arbi- ' and 11 be A on CXXXVI. Decembkr 80th, 1887. O. McWilliavis, City Solicitor, Toronto: Dear 8ik,— I have gone carefully throngh the proposition of the Sub-committee of the Committee on Works, together with the statement accompanying the same, and the whole matter has received the careful consideration of the Board of the Street Railway Company. We deem it advisable, in the interest of a iinal and satisfactory settlement, that a meeting should be had between the sub-committee and the President and Secretary of the Street Bailway Company and myself, at which the matter may be diHcnssed in all its bearings. The central feature of the Sub-committee's proposition, viz. : the assumption by the City of the sole control of all the streets and the payment of a yearly sum by the Company to the City in respect of their occupation, is thoroughly acceptable to us, and I think I may say that if you, upon your side, are in earnest, as I think you are, in your desire to have all questions arising out of the difficulties which surround the relations of the City to the Company with regard to the manage> ment of the streets, settled, the matters in question will be adjusted and put upon a sound basis, satisfactory to both parties. The interviev/ which I suggest is de- sirable, as we think, with the view of settling the details of the whole scheme. There are, as you are aware, many matters which may conveniently be, and cer- tainly ought to be, embraced in the settlement. I do not refer to any of the dis- putes between the City and the Company, except such as have arisen out of matters connected with street management. These, we think, should all be dealt with at the present time. Among these matters I may mention the following for the consideration of yourself and the sub-committee before the proposed meeting : (1) The claims of the City in respect of moneys expended for repairs of block pavements. (2)'The claims of the City in respect of damage collected from the City by third persons." (3) The claims of the Company in respect of the alleged in\pro- per ««/fct(on and laying of block pave..:ents. (4) The claims [of the Company in respect of material taken by the City. (5) Such claims as the Company might, under the provisions of the various Acts, have in the future with respect to mate- rial. (6) The adjustment of matters with respect to past payments upon debenture account. (7) The arrangement.? to be made for the payment of future debenture assessments. (8) The claims of the Company in respect of injury caused by delay and mismanagement in the construction of sewer.?. (!)) The fixing of the sum to be paid by the Company to the City for the future, vnider the new management. Besides these matters, probably other matters will occur to yourself and to members of the sub-committee. All matters in any way connected with street management as between the City and the Company should, as we think, be now disposed of for all time. While the Company is willing to make all reasonable concessions in order to arrive at a fair settlement, it must, I think, be admitted that all the matters I have mentioned above, are matters which do require consideration, and, while I do not say to what extent, if at all, the Company may, upon consideration and discussion with your Committee, yield upon any of the matters mentioned above, yet all these matters should be discussed and adjusted in some way. Other- wise, we are not s ling, but only posfcp: , : i;.^ the settlement of the questions which have caused dillhulty for t!-,e ift^v; si;. . , sieven years. 172 MEMO. Home of these matters, perhaps all of them, might, I think, with advantage be left to a board of arbitrators consisting of, say, an engineer to be named by the City, another engineer to be named by the Company, and a third arbitrator or umpire to be named by the two engineers so appointed. I throw out this suggestion as to the constitution of the board of arbitrators, but I may say at mive that we are willing to be bound by the decision of any competent board of arbitrators fairly constituted. Will you kindly lay this before the Sub-committee and see if a day can be lixed for a meeting ? I do not suppose that the whole matter can be adjusted at one sitting, but we are prepared to take the matter tip and pursue it to a close without any delay. Will you kindly arrange in the meantime for a further delay in the enforcement of the debenture assessments for the present year 7 The time, as you recollect, was extended until the .Slst instant. There will, I suppose, be no difficulty about this. If there is to be any let me know at once, so that I may take such steps as I may be advised. I do not, however, anticipate any difBoulty with regard to this, as year Committee will doubtless see the advisability of not enfor- cing payments whiMi are in dispute in a suit still undetermined. Yours truly, V , r^^ GEO. F. SHEPLEY. CXXXVII. In Council fe The following communications were read : From His Worship the Mayor informing the Council of (the result of the suit 'instituted against the Toronto Street Railway Company by the City to prevent the Company from clearing their tracks of ice and snow, and throwing the same on the side of the streets on which their tracks are laid. From His Worship the Mayor, relating to the petition of the Street Railway Company, praying for the repeal of By-law No. 1264, which provides for the placing of conductors on all oars. {Minutes Nos. Ill, 112, Minutes of Council, February i;Hh, 1888.) CXXXVIII. In Council : The following communication was read : From the President of the Toronto Street Railway Company, with reference to the proposed extension of the tracks of the Company across the Don Biver and up Broadview avenue to Danforth avenue. (Minute No, 118, Minutes of Council, February 1.3th, 1888.) CITY OP TORONTO r. TORONTO STREET RAILWAY CO. 178 Oenttemen of the Council . Mayor'* Me»*age, Mayor'i Office, Toronto, Fdbruary 18th, 1888. 1 > Immediately on taking my office as Mayor of this City my attention waa called to the unBatisfactory and, in many oaaea, dangeroua atate of the atreeta in the City occupied by the tracka of the Toronto Street Railway Company. Having made enquiry as to the oauae of the difficulty, I found that the trouble waa largely oauaed by the Company clearing the anow and ice from their tracka and the centre of the roadway and throwing it over upon the aidea of the roa,dway, between their outaide tracka and the curbing and aidewalk. The Honorable Frank Smith, Preaident of the Company, in an interview which he had at my office with myaelf and certain of the Aldermen and officiala preaont, having atated that in removing the anow and ice from their tracka and throwing it on the aidea of the atreet in thia objectionable manner, the Company were acting within their legal powera and rights, and that there waa no obligation on the Company to cart it away from off the streets. I consulted with the City Solicitor, and I have also obtained the opinion of Christopher Robinson, Q.C., a copy of which I forward herewith. The effect of the advice of the Solicitor and of Mr. Robinson's opinion waa that the Company had not the right to remove the anow and ice from their tracka and throw it upon the aides of the street, when by so doing they would obstruct the streets and make them dangeroua and unlit for public uae. I there- upon conferred with the City Engineer and the City Commiasioner as to whether the Company had, aa a matter of fact, by throwing the anow and ice from off their part of the roadways upon the aidea thereof, between their tracks and the sidewalks, obstructed the atreeta and made them dangerous and unfit for public use, and as a result of that conference I directed an information to be laid against the Company before the Police Magiatrate. The matter came up for a hearing this morning and the Magiatrate diamissed the oaae, aa the Solicitor informa mo, on the alleged ground that the evidence did not satisfy him that the Company had been guilty of obstructing the streets, and thereby making them unfit for public use. It appeared, as I am informed by the City Solicitor, that the obstruction of the streets arises from these causes : lat. The rising of the cedar blocks between the rails. 2nd. The Street Railway Company thi-owing the snow and ice from off their tracks, covering a space of twelve feet in the centre of the street, upon the side of the roadway, between their tracks and the curbing. 3rd. The property owners on either side of the street throwing the anow which came from their roofs and sidewalks (which latter in the case of King and other loading streets are twelve feet in width) upon the roadway, between the street railway track and the curbing. The Magistrate held that inasmuch as the Company were bound by their charter and amending Acts of the Legislature relating to the Toronto Street Railway to remove the snow and ice from off their tracks and run their cars for the accom- modation of the public, some consideration should be shown to them, and that in the absence of positive evidence of their creating such an obstruction as to render the streets dangerous, he would not convict. S : 174 MEMO. Time the matter resta for the ,)reBtmt. In thn meantime the primary liability for the repair of the streets restM on the City, and I therefore recommend that imme- diate steps bo taken by tlie City Engineer and the Comnuttee on Works to put the streets of the City traversed by the linoH of the Street Railway in a safe and passable condition, and tiiat a separate and aooitrate account bo kept as far as possible of the cost. This can afterwards be made part of the City'H claim againsl the Company should it be ultimately determined that the Company are liable for the existing want of repair of the streets. No time should be lost in brinifiuK the pending negotiations with the Company to a conclusion and settlement, and failing that, the pending legal proceedings should be proceeded with as rapidly as lipssible. It is highly decjrable, as well in the interest of the City us of the Com- pany, that a definite settlement should be arrived at with as little delay as possible. I append hereto a copy of the questions submitted to Mr. Robinson and his reply. E. F. CLARKE, Mayor. IJNOLOKUHKS. K OHBOTICNR HUBMITTIOD TO MR. CHRI8T0PHKR noilINHOX, Q.C., re TORONTO 8TREKT RAIIiWAY. I n the City prevent the Company cleaning ofiF the snow from their tracks falls to the depth of six in < lies ? How is the question of the depth of snow ecided ? Who is to decide this question ? Does this apply to a single fall « f s.iow ? 2. What is he to test and approve of under the Act of I87fi, under the words " test iind approve " ? Does he test and approve of the apparatus or the removal, or manner of removal ? ii. Have the Company the right to remove the snow and ice from their tracks and throw it on the other part of the roadway ? 4. If they can do tins, is there any limit to that right? Can they continue to do this when the snow and ice on the sides of the street become so deep as to become dangerous by throwing the ice and snow from the tracks upon the side of the street ? .'». Can the City compel the Company to remove the snow and ice from the street altogether by carting or otherwise, when the throwing of it on the sides creates an obstruction ? (i. What can the City do to abate the nuisance ? 7. The City Engineer having reported that th<< Street Railway Gompai>v are creating a nuisance by throwing snow and ice from their tracks into the the streets traversed by the Street Railway Company, what steps can be ; compel the Company to abate the nuisance ? CITY OF TORONTO v. TORONTO STREET RAILWAY CO. 175 n: MR. nOIIINRON H OPINIOX. My opinion is asked as to tho obligationft and righta of the City am) -^' ' lUil. way Company respectively with re||{ard to the removal and dispositi ow upon t)ie track, By the By-law of the City respecting street railways, No. 858, passed in .July, 1861, " When the accumulation of snow or ice on the railway shall be such as to impede the traffic, every means shall be used to clear the track, and while impeded sufficient sleighs shall be provided for tho accommodation of the public." This is found in the original resolutions passed on the 14th of March, 1861, by which the City accepted the proposals of Mr. Easton to construct and operate street railways in Toronto. It became binding upon the present Company, and continued unaltered until 1869. In that year the Legislature of Ontario, by tho 82 Vic. cap. 81, sec. 1, which authorizes the sale of the railway, added this provision, " Provided always, that such purchaMer, or any proprietor of the railway for the time being, when snow falls to the depth of six inches or upwards, shall not at any time between the Ist day of December and the 16th day of March following, plough up or remove the snow from the track of the said railway or from the streets in which such tracks are or may be hereafter laid." In 1876 the Legislature, by the SO Vic. cap. 03, see. 4. added to this the words, " Unless by the use of the most improved and effective apparatus obtainable for that purpose, and subject to the test and approval of the Engineer of the City." These are the only provisions of which I am aware dealing directly with obstruc- tions by snow or ice. I do not think that any of them authorize obstructions of the highway outside of the track so as to make it unsafe for ordinary traflic or create a nuisance, and there are other provisions which seem to show that this was not intended. I refer to the resolutions already mentioned, Nos. 3, 4, 16 ; Mr. Easton's covenant, No. 5, in the agreement of the 26th March, 1861, which is embodied in the By-law ; No. 4 of the enacting clauses in the By-law, and to 24 Vic. cap. 83, sees. 14, 16. The effect of the By-law I take to bo that every reasonable and legal means shall be used to keep the track clear in winter, so as to prevent the traffic by means of the cars and rails from being impeded, but the Company is not required or per- mitted to avoid this by means which impede all other traffic and render the street dangerous. The first added provision may be difficult to construe. It applies only " when snow falls to the depth of pix inches or upwards,' and in that event prevents any removal of it. The expression "when snow falls," to a certain depth, as used here, means, I think, when snow comes, or when there is snow to that depth. The Company must then not remove it, the restriction being imposed, I suppose, because it was thought that keeping the track clear would then be impracticable except by r-.eans which would render the rest of the street impassable or danger- li: IMAGE EVALUATION TEST TARGET (MT-3) ^ ^./ .** ^.^ k ^ 1.0 ^Ki m 1.1 ■it Hi U U£ 12.0 ^ i^ 11.6 FhotDgrafM: ^Sdfflices GarparatiQn 23 WIST MAM STIMT WnSTII,N.Y. UStO (7U) 173*4503 176 MEMO. oat, and a reaort to sleighs would be necessary. If it was intended that the Company might at their discretion keep six inches from aooomnlating on the track by removing it as it fell, and so keep the track open for their cars by piling it np to any depth on either side, the object or efiBoaoy of the enactment is not apparent, and I do not so read it. The last addition in my view allows them to remove the snow, even when six inches deep, by using the most improved and effective apparatus obtainable, to be tested and approved of by the Engineer ; but if such apparatus, though the best to be had, canaot "he used without unreasonably impeding or endangering the other trafiBc of the street, then I think he may and should withhold his approval. I adopt this oonstmotion of provisions which are certainly not clear, upon the principle, which I take to be sound, that the obstruction of the highway and impeding or endangering all other traffic on it can only be justified by clear express permission, which I do not find, and that the privileges of the railway must if possible be exercised without so doing, and without throwine upon the City unreasonable or excessive trouble and expense in keeping the highway clear. It is true it is not said what the Company are to do with the snow when they remove it, but this does not imply permission to obstruct with it the rest of the street to an unreasonable or dangerous ext'?nt, and when they cannot use their cars without doing so I think they must take to sleighs. It is to be remembered that their right to use either the track or that part of the street between the rails is not exclusive, but confined to a preferential right of way for their cars. At^ other times the general public have equal rights, and these respective rights must be exercised reasonably so as to avoid unnecessary interference with each other. How far, if this view of the law be correct, they are exceeding their powers is of course a question of fact. C. BOBINSON. Toronto, January 23rd, 1888. (Appendix 39 to Minutes of Council, February 13th 1888.) OetitUmeti of the Council . Mayor'a Metsage. Mayor's Office, Toronto, February 13th, 1888. Since the last meeting of the Council a petition, which will be presented this evening, has been received by the Clerk from the Toronto Street Railway Com- pany, praying for the repeal of By-law No. 1264, which provides for the placing of conductors on all cars. I have also received communications (2) from the Solicitor of the Company, asking that counsel be heard in support of the petition. In view of the fact that the case is still before the Courts, and that counsel for he City thinks that " it might be desirable for this Council not to discuss the CITY OF TORONTO v. TORONTO STREET RAILWAY CO. 177 petition or hear any argnment," I would recommend that the petition be sum- marily disposed of, and that counsel be not heard on behalf of the Company. I append herewith the correspondence which has passed through my hands in reference to this matter. E. F. CLAVKE. Mayor. ENCLOSURE. M Toronto, February 6th, 1888. OITV OB TORONTO V. TORONTO STREET RAILWAY C0SIFAM7. Hi$ Worship tlie Mayor, Toronto : Dkar Sir, — This morning an application was made for a postponement of the appeal in this case until such time aa the petition which the Street Bailway Company say they are going to make to the Council is disposed of. We opposed any further postponement of the appeal, stating that we had instructions to do so and pointing out that the Street Railway Company liad had several irfonths in which they could have taken action in the direction they are now taking it. It was, however, no use, the Court of Appeal stating that they thought it was proper that it should stand until this petition had come up lieforc the Council, and as soon as the Council had disposed of it, or any Committee to which the Council might refer it, we might on one day's notice bring the appeal up again before them and have a time fixed for arguing it. This is, therefore, the position of the matter, and if the Council chooses to throw out the petition without refer- ring it to a Committee when it comes up we can then at once get the appeal forced on again for argnment ; but if the Council referred it to a Committee, we cannot get the case brought on for argument until the petition has been finally dealt with. Yours truly, ROBINSON, O'BRIEN, GIBSON & LEFROY. IIS n- i»g or he " n.' Toronto, 10th February, 1888. E. F. Clarke, E»q., Mayor, Toronto: Dear Sib, — I am presenting a petition to the Council on behalf of the Toronto Street Railway Company praying for the repeal of By-law No. 1264. I have arranged with Aid. Drayton to move the reception of the petition. My clients desire to be heard by counsel in support of the prayer of the petition, and I write to ask if that can be arranged. I should be exceedingly obliged by an immediate reply, as the time is very short to retain and instruct counsel. Your obedient servant, GEORGE F. 8HEPLEY. . t : r 178 , MEMO. Toronto, 11th February, 1888. lie 8TRKKT RAILWAY COHPANV'S PETITION. / E. F, Clarke, E»q., Mayor, Toronto : Dear ^ib, — Can you kindly let me have an answer by bearer to my letter of yesterday ? I promised to let Mr. Orier know early thi^ morning, as he has other engagements which he must arrange for if this is to go ou. Your obedient servant. GEORGE F. SHEPLEY. D." Mayor's OrncE, Toronto, February 11th, 1888. Gentlemen, — Find herewith a letter which I received yesterday afternoon from Mr. Shepley, the Solicitor of the Toronto Street Railway Company. You will note that he desires the permission of the Council to be heard in re hip petition for the repeal of the bob-tail oar By-law. Will you kindly advise me in what position the matter stands, that I may com- municate with him in reference to it. Faithfully yours, Meotrii. Robinton db O'Brien, E. F. CLARKE, Mayor. k: ■V, Mayor's Office, Toronto, February 11th, 1888. Dear Sib, — In reply jur coiumnnication of yesterday |afternoon 'and this morning, I beg to say . . ; I shall recommend to the Council that in my opinion it is inadvisable at present to entertain the petition of the Street Railway Com- pany, asking for the repeal of the By-law, re bob-tail cars, or to hear counsel in support of petition. Faithfully yours, E. F. CLARKE, G. F. ShepUy, E$q. Mayor. ToBOijTO, February 18th, 1888. CITY or TORONTO VS. STREET RAILWAY COMPANY. His Worship tlie Mayor, Toronto : Dear Sir,— I am in receipt of your letter of this morning enclosing letters from Mr. Shepley of yesterday and to-day's date in reference to a petition filed by his firm on behalf of the Toronto Street Railway Company for the repeal of the one- CITY OF TORONTO r. TORONTO STREET RAILWAY CO. 179 .» horse oar By-law, and his reqaoHt to have coantiel heard on behalf of the Company before the Council. I see no lef(al objection to the Council listening to any argu- ment that may be adduced in favor of the repeal of the By-law. The time, how- ever, chosen by the Company for this request is peculiar. The case is now before the Court of Appeal, and the argument can come on at any moment as soon as the Council make up their minds in reference to the present petition. The decision of the Chancellor was in favor of the City. The Street Kailway Company are now appealing to the Court of Appeal. This appeal will probably, though one can never speak with certainty in such matters, be unsuccessful. The Street Railway Company did not accept the Chancellor's decision but took their legal right of , appealing. It may be presumed from the Street Ifailway Company petitioning at this juncture that they are also of the opinion that the appeal will not be suc- cessful. Under the circumstances it might be desirable for the Council not to discuss the petition or hear any argument unless the Street Railway Company first formally abandon their appeal, and consent to an order dismissing the appeal with costs. When that is done the City will be in a proper position to take up and discuss the merits of the By-law. Without suggesting that the appeal from the Chancellor's judgment was merely for the purpose of delaying the enforce- ment of the By-law, it is manifest that it has had this effect. Taking any other course than the above would, in the event of the present application of the Street Railway Company to the Council being unsuccessful, still leave it in their power to continue litigation and still further delay the enforcement of the By-law. Yours, truly. H. O'BRIEN. CXXXIX. In Council Aid. McMillcn, seconded by Aid. Carlyle (St. Thomas Ward), moves that the prayer of the Toronto Street Railway Company for the repeal of By-law No. 1264, which provides for the placing of conductors on all oars without further prosecu- tion of the pending litigation, be and the same is hereby refused, and further, that this Council also refuses to enter into any discussion of the subject pending the discussion of the Court of Appeal on the appeal from the judgment of His Lordship the Chancellor of Ontario, and that the 33rd and 35th Rules of this Council be dispensed with so far as they relate to this motion, which was carried. (Minute No. 140, Minutes of Council, February 13th, 1888.) w Hi I it CXL. In Council . — Aid. Ritchie, seconded by Aid. Carlyle (St. Thomas Ward), moves that the City Engineer be instructed to report. » • • * (4) for an extension of the Street Railway service to Bloor street, along Doverconrt Road, before block paving ia laid. {Minute No. 187, Minutes of Council, February 20th, 1888. 18 180 MEMO. CXLI. Report of Executive Cotnmittee. Your Committee recommend that the clause of this Report relating to the proposed street oar service to Dovercourt be referred back to the Committee on Works in order that the precise route to be taken may be definitely determined and reported to the Council with full information in the premises. (Appendix 133 to Minutes of Council, February 28rd, 1888.) Report No. 4 of the Committee on Workii, Your Committee submits, for the information of Council, that a petition has been presented from S. B'. Rtephenson and 107 others, residents of Dovercourt, asking that the street car tracks be extended from College street, running north to Bloor street ; and it is r^'oommended that the Street Bailway Company be requested to comply with the prayer of the petitioners. (Appendix 140, to Minutes of Council, February 28rd, 1888.) CXLII. Your Committee begs to recommend the adoption by Council of the following report of the City Engineer in regard to the much needed repairs to many of the streets, which are now in a very bad condition ; on condition that the City Solicitor reports that the City's interest will not be prejudiced by the construction of the said roadways m its suit with the Street Bailway Company : " I beg to call the attention of the Committee to the necessity of re-construoting may of the streets occupied by the tracks of the Toronto Street Bailway Com- pany. I would recommend that tenders be asked for the construction of granite block pavements covering the 16 feet occupied by the Street Bailway Company. The approximate quantity will be somewhat about 28,7S0 square yards, and the cost 171,875.00. The cobble stone pavement recently laid down on the 16 feet of the roadwaya occupied by the Toronto Street Bailway, being approved by the said Company, I would recommend that tenders be asked for the re-oonstroction of certain other portions of roadways occupied by the street car tracks with this class of pavement which is very durable, and about the price of cedar blocks. I need not say any> thing about the great necessity wkich exists for re-oonstructing many of the roadways, as the Committee on Works are all familiar with the deplorable con- dition of these roadways during the past winter, caused by the raising of the cedar blocks. I hope the Committee will not hesitate to adopt this recom- mendation." (Appendix 232 to Minutes of Council, March 16th, 1888.) CXLIIL Report No. 5 of the Committee on Works, Your Committee begs to report that it has re-considered the clause of Beport No. 4, in re the extension of the street oar service on Dovercourt Boad, from College CITY OP TORONTO r. TORONTO STREET RAILWAY CO. l&l street north to Bloor Htreet, sent back by Executive Committee for the purpose of having the rente deflnitely stated. It is therefore recommended that the Toronto Street Gar Company be instructed to extend the McCaul and College street car route along Dovercourt Road northerly from College street to Bloor street, and to operate it as goon as the pavement about to ha laid down on the said Doverourt Road is completed. ortunt to observe that the regulatioua are Hiioh aa the City of Toronto may deem neceaaary. The railway in not to judge, but the City. The Council are to judge aa to what ia neoeaaary and requiaite for the protection of the persona and property of the public." I feel great difficulty in accepting the propoaition in the extcnaivc aenae in which it ia thna enunciated. If it Im) sound, it uf course placea the defendanta' Company wholly within the power of the City, and can be uaed to turn an enter- prise fairly remunerative into a poaitive losa. Under this view the City could, with an eciual show of reason, inaiat on an extra conductor to guard the safety of the passengers and public while the ordinary conductor was employed collect- ing the fares, thus having three instead nf two men employed. It aeeras to be conceded in the American oases that the Court has always to consider whether an exercise of municipal authority as to companies, either char- tered by the State or authorized by the local authorities, ia reaaonable. The judgment of the Supreme Court. U. 8. in 1887, {Uailroad Cowpanf/ v. City of Richmond, 6 Otto, 9R U. S. 637) delivered by the late Chief Justice Waite, diaonaaea the general queation. The Court below had Anally settled the reasonableneaa of the City ordinanoea, the only question for the aupreme tribunal waa that of juria- diction. ' Frankford v. City of Philadelphia, M Penn. State Uep. 110, shewa that a company chartered to carry paaaengera through a city was not neceasarily exemp- ted from liability to municipal regulations, and that a reaaonable regulation of the use of a privilege is not a denial of the right, and the right to question its reasonableness is couccde<1. The general subject and the nature of " police )x>werB " are diacussed in 1 Dillon on Municipal Corporations, sees. 890 to 407. I have seen no case in which a general right to interfere in the internal economy of a trading corporation— regulating the numbers of servants they mnst employ, has been exercised. There is a case in New ,Terscy, 12 Vroom 127, in which the municipality, having express power given them by the Legislature, were upheld in ordering a Railway Company to place a flagman. In Toledo R. IV. Co. v. Jacktonville, 67 III. H7, the Municipality directed a flagman to be kept by the railway Company at a particular oroaaing. The Court held it nnreaaonable on the evidence at that particular creasing, as it did not require it, but thov recognise the right so to direct at a place where the public safety required it— that if they could order it at that place when the Court held it unnecessary, the Company might be compelled to keep a flagman at every road and street crossing on its entire line. liroohlyn Co. v. City of Brooklyn, 44 S. C. N. Y. 413, is the nearest in its facts. The Court was strongly of opinion that a by-law requiring a conductor aa well aa a driver on each street car could not be supported. I refer to the reaaons aasigned, " there ia a wide diatinotion between regulating the uae of the public streets and entering into the management of the private buainess of thoae who have occaaion to uae them," It was aaid, aa to tho power given by the charter of the Oity to regulate common carriers and carriers of paaaengera : " It would seem to be plain that where the CITY OF TORONTO r. TORONTO STREET RAILWAY CO. 186 jfM Legislature had ((raiilod iwwer to the Company to run cars in the manner it ■honld deem best, that tiio City under the power of ruKnlating common oarrien of pasaenftera could not provide for tlie number of the employees on each car or the number of liorBUH it hIiouM use. ' Barnard, C.J,, p. il4, uoticeN thiit by the exiatinK law, " the couatruotion, main- tenance and operation of the road ia made anbjeot to all lawa of the City for the reRulation of horse railroada generally :" and he adds, " I do not think this power sufficient to legalise an ordinance requiring a conductor on the cars as well as a driver." It is also noticed that under the general municipal law such a by-law mast be general in its application, not confined to the one carrier Company. All this seems to throw the City back to rest wholly on their contract. I am wholly unable to view this case in the aspect it has presented itself to the Chancellor. I agree in the opinion of my learned brother Patterson, whose judgment I have had the benefit of perusal, that this by-law or regulation cannot be supported an properly within the contract between the parties, and that it within the power of the City to enact, it must be as in the nature of a police regulation— under the general authority of the Corporatioii— and it ought generally to be of common application, and not aimed specially at a particular company or a particular manufactory, or a particular carrier of passengers or goods. I am not, however, judging it wholly on any narrow ground. We are often called upon to consider whether a by-law of a municipality is within their chartered powers, or is reason- able in its nature or provisions, that is in general restraint of trade, that it is par- tial in its operation, not general in its application, granting unfair preference or privilege, etc , etc. Bee such oases as Calder Navigation Co. v. Pilling, 14 M. & W. 86, and cases cited in last edition of our Municipal Manual in notes to sees. 2ir>and216. , . If I have the right to judge of the reasonableness of this by-law, I do not hesK ate to express my opinion as being against it, and as I read the evidence, no case vas made oat to warrant its enactment. In Klwood V. Bullock, 6 Q. B. 401, Sir J. D. Coleridge says : " Whether a by-law is for the regulation of trade or for purposes of police, it must be reasonable and just." The nse of these single horse cars is shewn to have been for years common in the large cities on this continent, and we can hardly suppose that the intelligent members of the municipality did not share the knowledge of their use common to the rest of the world. Then we find, as already noticed, their introduction and user for so many years before any suggestion of interference by the City. All this calls for a very strict conatrnction of the right of interference. The balk of the evidence as to the existence of a danger tp the public, calling for this interference, appears to me to be wholly a matter of opinion, on which the -whole adult population of Toronto might be asked to express his or her views. 186 MEMO. The evidence of fact Mem* to me to fkll short of proving any oaM agkinit thei* oara of any general danger to the publiu, peoiitiar to them, and not common to every vehicle or conveyance in whiolt one peraon only liaM to attend to hia hone aa well aa to ((ooda or paaaengera roceiye;refl with the learned Chancellor that the clauaea of the agreement of the 'iOth March, 18(>1, arc to be read aa couHtitutiug not only the contract between the parties, but also aa defining the powers which are entrusted by the Legislature to the City Council, and we are relieved from the difUculty of considering the validity of the by-law qua by-law or legislation, inuHniuch as the defendants waive any qut stion of that kind and aro willing to treat it aa a regu- lation, and the qaostion therefore is reduuod to whether this is a regulation wliich the Council are empowered to make under the agreement. At the time that agreement was made, thore wus no legiiilative authority existing for laying down a street railway within the limits of the City, and the agreement therefore provided that application should be made to tlio legislature, and aa soon as the legislative authority was obtained the plaintiffs should pass a by-law to make it effectual. Accordingly in the session of 1801, the Toronto Street Railway Company were incorporated, and the agreement in question was validated, and the Corporation of the City of Toronto authorized to pass any by-law or by-laws for the purpose of carrying it into effect. The Act gave full power to construct and operate their railway upon or along any of the streets of Toronto, on first obtaining the consent of the Cori)oration. That consent had been previously obtained, aa to certain streets therein referred to, under the agreement in question, embodying a number of resolutions of the Council, prescribing the conditions on which the road wss to be constructed and operated, in which after setting forth those conditions also set forth the covenants binding on the Railway Company among which is the following : " That the said party of the second part, his heirs, executors or administrators, shall and will at all times employ careful, sober, and civic agents, conductors and drivers, to take charge of the cars upon the said railways, and that he the said party of the second part, his heirs, executors and administrators, and his and their agents, conductors, drivers and servants, shall and will from time to time, and at all times during the continuance of this grant, and the exercise by him and them of the rights and privileges heirby conferred, operate the said railway, and cause the same to be worked under such reuulations a» the Common Council of the .the City of Toronto may deem necessary and requisite for the protection of the persons and property of the public, and provided tuch reflulations sIuiU lutt infringe upon the privilege granted by the said reiolutione." • "»Wji B i CITY OF TORONTO r. TORONTO STREET RAILWAY CO. 187 After the piiMlng of the Aot uf P»rliKment, the oorporatioii p«iMd a by-law rati- fyliitt the agreement, and autliorizett the oompany to proceed with the work under the coiiditiuna, proviMoe* and rcHtrlctionii, in the reaohitionii and agreement con- tuiiieti. mill Muoh other rutfulatiouH m were therein net forth, or mlKht from time to time be dtiemed iieceitiiary for tlio protection of the citiaen* of Toronto, Tlie uKro'jnioiit pruvidetl tliat tlie road iihould not be operated until a certificate WHH obtitiued from an officer of the ('ounoii, and the by-law contain* the olauae: " That beforit the <«rtifluate liereinbeiore referred to ahaU be granted, the laid Alexander L.tdon rIuiII Hubniit to the Council of the Cori>oration of the Oity of Toronto for their approval, the rulea and regulationH fnr the noveniment and guidance of the oonductorfi and drivorH upon the laid ruiUvaya, and others con- nected with the working thereof, which said rules and regulations when approved by the miid Council, Hhiill be poHtod in sonic conspicuous place in each car; no carriage shall bo run upon any of the said railways without a copy of said rules and regulations being placed therein." This was dune, and these rules and regulations were approved and sanctioned by the Council and are still in force. As I understand the agreement, the rules and regulations of the Company, and which thoy ivlono were entitled to make, were to be of no force or effect until sanctioned by the Council, and it may be, (I do not say it is so,) but it may be that liny new regulation might reuniro to be Hanctioned in like manner, but I do not understand that the City can imiiose regulations of their own upon the Company in reference to the management of their carH, or other purely domestic arrange- ments or corporate business of the Company entrusted by law to the railway corporation itself, and with groat deference I think this is a regulation of that nature. 1 do not agree with the learned Chancellor in the construction placed by him on the 0th paragraph of the agreement, that it imposed upon the defendants the the duty necesnarily of having two persons to perform the duties of driver and conductor; pushed to its logical conclusion that argument would not restrict the the duty to employ two persons only, but would require three or even more Itersons to bo employed on each car, for it applies to agents, conductors, drivers and servants I am satisfied that all that is required 'under that paragraph is that the Company shall employ careful, sober and civil servants. No doubt with the donble.horse cars a conductor was necessary, and although I do not agree with the counsel for the defendants as to the construction of para- graph 7 of the agreement, that the Company were under any obligation to to furnish cars from time to time of the most modern style, there is nothing in the agreement to prevent them doing so. The paragraph, however, has only reference to the oars that were to be put on the road at the opening, and before applying for the certificate referred to in the next section. No doubt, when applying to the Council for their conRent to lay down rails on other streets than those to which the original consent extended, the 'Council might prescribe the conditions on which the permission should be granted 188 MEMO. The defeudautH are of course liable to any porsoii injured by the negliKenoe of their servantti, whether that person be a passenger, or one of the public not uBin({ the railway ; and I take it for granted that the Council under its ordinary powers could pass such reasonable regulations for the protection of the public, which I may designate or distinguish as police regulations, as are not inconsistent with or in derogation of tho privileges granted under the agreement and Act of Parlia- ment, but their police ]^H)wer8 regulating the general use of the streets and the safety of the public generally are to this extent restricted, that they must not infringe upon the privileges granted by t)ic charter, and resolutions. But in my view this is a pure matter of internal management which cannot originate with the Council, and that there is nothing in the regulations originally sanctioned by the Council to prevent their operating the road by the use of the ono-horse cars in the manner they are doing. I think, therefore, that the appeal should be allowed, and the action dismissed with costs. Pati'kbson, J.A. — The order from which the defendants apiieal is, that they, their officers, servants, workmen and agents be restrained from using or operating cars upon their lines of railway in the City of Toronto, or any part thereof, without having a conductor as well as a driver upon each and every of the said cars and vehicles, the Court further declaring that the plaintiffs are entitled to specific i>erformance of the agreement entered into by them, on March 26th, 1861, in the pleadings mentioned, in this respect. The agreement was between the City and Alexander Easton. It recited certain resolutions passed by the Common Council on the 14th of March, 1861, by way of acceptance of a proposal of Easton to construct and operate street railways on some of the streets of the City. There wore twenty-four resolutions. No. 7 prescribed the kind of call to be used, and declared that the cars were to be con- structed in the most modern style ; and No. 8 provided that each car employed on the railway should be numbered, and that none should be used except under a license for that purpose, for which license the proprietor should pay the annual sum of five dollars. The City, in consideration of the amounts to be paid by Easton, his cxechtors, administrators, or assigns, by and under the resolutions and those presents, and of the covenants and agreements therein on his part to be kept and performed, gave and granted to Easton, his executors, adminis- trators, and assigns, the exclusive right and privilege to construct, maintain, and operate street railways by single or double tracks in, along, and upon King street. Queen street, and Yonge street, for thirty years, upon the conditions, and subject to all the payments, regulations, and stipulations in the resolutions and those presents expressed and contained. Then followed some covenants by the City, amongst which was a covenant to pass a by-law framed in accordance with the resolutions as soon as legislative power to do so was obtained. Easton also entered into covenants numbered from one to seven. Nos. 1, 2, and 6 may be especially noticed. (1) " That he will construct, maintains and operate the said railwi^ys within the times, in the manner, and upon the conditions in the said resolutions and these presents set forth. CITY OF TOKONTO v. TORONTO STREET RAILWAY CO. 189 (2) " That he will well and truly pay the said license fees, and will truly and faitlifuUy perform, fulfill, and keep all the conditionH, coveuants, and agreementa in the said resolutions, and these presents expressed and contained on his and their part to be performed, fulfilled, and kept. (tt) " That the said party of the second part, his heirs, executors, or administratoni, shall and will at all times employ careful, sober, 'and civil agents, conductors, and drivers, to take charge of the cars upon the said railways, and that he, the said party of the second part, his heirs, executors, and administrators, and his and their agents, conductors, drivers and seivants, shall and will from time to time, and at all times during the continuance of this grant, and the exercise by him and them of the rights and privileges hereby conferred, operate the aaid railway, and cause tlje same to be worked under such regulations as the common Council of the City of Toronto may deem necessary and requisite for the protec- tion of the persons and property of the public, and provided such regulations shall not infringe upon the privilege granted by the said resolution. The Act of 24 Vic. cap BiJ, passed on the 18th of May, ISfil, incorporated the Toronto Street Railway Company. That is not tlie Company which is defendant in this action. The enterprise which it inau<{urated passed through vicissitudes which led to the franchise and property becoming vested in individual purchasers, who obtained in 1873 a new Act of incorporation, 86 Vict. cap. 101. The old name was transferred to the new Company, and it became subject to the provisions of the former Act, and to the obligations contracted under it so fully that we may discuss the Act as if it had always applied to the defendant Company, and may, for all present purposes, treat the defendants as the Company incorporated in 1861. The Company was empowered by section to use and occnpy such parts of the streets and highways of the City of Toronto, and of the Municipalities imme- diately adjoining the limits of the City as should be required for laying rails, etc., " Provided always that the consent of the said City and Municipalities respec- tively shall be first had and obtained, who are hereby respectively authorized to grant permission to the said Company to construct their railway aforesaid with their respective limits, across and along, and to use and occnpy the said streets or highways or any part of them for that purpose, upon such conditions and for such period or periods an may be respectively agreed upon between the Company and the said (3ity or other Municipalities aforesaid, or any of them." By section 14, the City and the adjoining Municipalities, or any ot them, and the Company are respectively authorized to make and enter into any agreement or covenants relating to various specified matiiers, including the time and speed of running of the oars, the amount of licensij to be paid by the Company annually, the amount of fares to be paid by passengers, and generally for the safety and convenience of passengers, the conduct of the agents and servants of the Company, and the non-obstructing or impeding of the ordinary traffic. And by section 15 the City and the municipalities were authorized to pass by-laws for the purpose of carrying into effect any- such agreements or covenants, and containing all necessary clauses, provisions, rules, and regulations for the conduct of all parties concerned and lor the enjoining obedience thereto, and also for facilitating tho 190 MEMO. running of the cars, and for regulating tho traffic and conduct of all persons travelling upon the streets and highways through which the railway should have been laid. The 16th section declared tho agreement of the 22nd of March valid and binding, and authorized the City to pass a by-law or by-laws to carry it into effect. By-law 853 was accordingly passecl in July, 1861. require notice are the flrst three, which read thus : The only clauses of it which " 1. That the said agreement hereinbefore recited shall be, and the same is hereby ratified and confirmed— and the said Alexander Easton is hereby authorized to lay down street railways on King street. Queen street, and Yonge street, and work the pame under the conditions, provisions, and restrictions in the said resolutions and agreement contained, and such other regulations as are herein set forth, or may from time to time be deemed necessary by said Council for the protection of the citizens of the said City of Toronto. "2; That so soon as the said railways or any of them are constructed and certified to in the manner, and according to the terms of the said agreement, the said Alexander Easton may commence to run cars or onrriageu, and convey passengers thereon, and collect the fare for the same us settled by the said resolution and agreement, and fully operate the said roads. " H. That before the certificate hereinbefore referred to shall be granted, the said Alexander Easton shall submit to the ("ouncil of the Corporation of the City of Toronto for their approval, the rules and regulations for the (iovernment and 'guidance of the conductors and drivers upon the said railways, and others con- nected with the working thereof, wliich said rules and regulations when approveouncil that the Court of Appeal had given judgment in the case of " The City of Toronto v. The Street Railway Company," to the eflfect that the By-law requiring the placing of conductors on all street cars could not be sustained. (Minute No. 452, Minutes of Council, April '23rd, 1888.) CXLVII. In Council : — The following communication was read : « From Mr. Henry O'Brien, solicitor, tn behalf of the City, stating that the appeal of the Toronto Street Railway Co.-pany, in relation to placing conductors on one-horse cars, had been allowed with costs, and asking the Council to decide whether they will proceed with an appeal to the Supreme Court. Aid. McMillan, seconded by Aid. Gillespie, moves that no further action be taken by the Council in regard to the proposed appeal from the judgment of the Court 198 MEMO. of Appeal in the matter of compelling the Toronto Street Railway Company to place conductors on one-horse cars, upon which the yeas and nays were taken as follows : Ykas— Messrs. Baxter, Bell, Bonstead, Carlyle (St. Thomas Ward), Frankland, Oibba, Hallam, Hewitt, Hill, Jones, Macdonald, Maughan, MoDongall, MoBfiUan, Pells, Piper, Ritchie, Roaf , Shaw, Bwait and Verral— 31 Nats— Messrs. Carlyle (St. Andrews Ward), and Fleming— 2. (Minutes Nos. 606, 608, Minutes of Council, April 80th, 1888). CXLVIII. Report No, 8 of the Committee on Worki. Your Committee begs to recommend that the Toronto Street Railway Company be requested to lay down a double line of tracks on College street, west of Dover- court Road, as already recommended by the City Engineer and adopted by the Council, now that the street is about to be cedar block paved. (Appendix 410, to Minutes of Council, May 4th, 1888.) CXLIX. In Council : — His Worship the Mayor read to the Council a communication calling attention to the unsatisfactory condition of affairs between the City and the Street Railway Company in reference to the repairing of streets traversed by the lines of the Street Railway Company. (Minute of Council, July 8rd. 1888, Minute No. 814.) MAYOR'S MESSAGE. Gentlemen of the Council : I desire to call your attention to the extremely unsatisfactory position of affairs between the City of Toronto and the Toronto Street Railway Company in refer- ence to the repair of streets traversed by the lines of the Street Railway Company. You will, doubtless, remember that in March last the City Engineer recom- mended that in view of the necessity for the immediate renewal of the roadway upon many of these streets, tenders be asked for 28,760 square yards of granite blocks, or " setts," to be laid down on the Street Railway's portion of certain streets, and that other portions be laid with cobble stone pavement, this having been tried and found to be very satisfactory. The Committee on Works adopted this recommendation, provided the City Soli- citor should be of opinion that the City would not be prejudiced thereby in its CITY OF TORONTO . . TORONTO STREET RAILWAY CO. 199 pmiding Mtion againat the Btreflt Railway Company for the ootta of certain repaira executed by the Oity, prior to October, 1886, on thoae portions of atreota which, under their charter, the Street Railway are bound to keep in repair. The Council a4opted the Report of the Works Committee with a further proviso, viz :— " That the above work be not proceeded with unleas and until the Toronto Street Railway Company shall have given an undertaking under their cor- porate seal that the City shall not be prejudiced in any rights or claims it now has, or may have against the Railway Company by reason of the above work, or [by reason of] any past repairs." Immediately after the adoption of thin Report a series of conferences was held between the representatives of the Railway Company and the sub-Committee uf the Board of Works having charge of this matter ; but after some delay the repre- sentatives of the Street Railway positively declined to give the undertaking asked, and insisted upon all their legal rights. The City Solicitor upon being consulted, gave it as his opinion that failing some arrangement with the Company the City could only compel the Company to pay for repairs provided in making such repairs, " the same material and mode of construction " was used on the Street Railway's portion as upon the rest of the street. Thereupon the Committee on Works (by Report No. 10) made the following recommendation, which was concurred in by the Council on the 4th of June : " Your sub-Committee regret to state that it has been found impossible to make any satisfactory arrangement with the Toronto Street Railway Company : who insist that all matters of difference between the parties, including their demands for— (1) The price of material alleged to have been taken by the City at various times ; (2) The adjustment of matters with respect to past and future payments on debenture account ; (8) Damages in respect of injury alleged to have been caused by delay and mismanagement in the construction of sewers, and (probably), (4) Claims for damages alleged to have been sustained by riots during the strike two years ago— shall all be arbitrated upon at the same time. " It seems to your sub-Committee tliat such an arbitration would be of almost interminable length ; and in view of the fact that the franchise of the Company will expire in March, 1891, your Committee cp.nnot but think that the practical effect of the reference proposed would be to postpone a iiual settlement 6i the present difficulties to that date. " Tour sub-Committee therefore recommend that the Committee on Works should ask permission from the Council, to instruct the City Engineer to repair the streets occupied by the 'Railway Company, minif the mme material ami mode of conitruetion at at preient, except at street intersections, wliich should be constructed in any manner that the City Engineer may determine. " Your Committee also recommend that the City Solicitor be instructed to appeal from Judge Rose's judgment; retaining the services of Christopher Robinson, Esq., Q.C., who argued the case in the flrst instance, and employing any other Counsel he may think advisable." 2()0 M£MO. A few dftyit after warcU I rpoeived the {ollowinfl letter from the City Holioitor : CITV or TOHONTO V TORONTO HTHKIT MAII.WAV. Private and Confidential . City Bomcitoii'h OrrtcE, ToHONTo, June liith. 1B8H. My Dkah Mb. MAYon,— Referring to onroonversHtion yeaterday, I beg to eay thitt the situation at present is briefly as follows : 1, I)y t)ie oriKinal agreement between Alexander Easton and the City of Toronto, dated March the Oth, 1H61, it was provided that " (H) The roadway Iwtween and within at least one foot six inches from and outside of each rail shall be paved or macadamized and be kept constantly in good repair by the said Easton ;" and (17) " Bhonld i^aston nef^leot to keep the roadway between and on each side of the rails in good condition, or to liave the necessary repairs made thereon, the City Burveyor or other proper ofhcer shall give notice thereof re<]uiring such repairs to be made forthwith, and if not made within a reasonable time, the said Burveyor or other officer shall cause the repairs to be made, and the amount so expended may be recovered against the said Easton in any Court of competent jurisdiction." In May, 1801, Esston and others wore incorporated by 24 Vic. chap. 88, under the name of " The Toronto Htreet Railway Company," and the agreement of March tiHth was conflrraed. In 1869 the Honorable William Cayley was authorized by H'2 Vic. chap. 81, to sell the railway and the franchise previously granted to Easton under mortgage, and upon such sale William T. Kiely became the owner thereof. In 1878, by 8ft Vic. chap. 101, W. T. Kiely, George W. Kiely and others, were incorporated under the name of " The Toronto Street Railway Company," and were to enjoy the said franchise and hold the said property under the pro- visions of the original agreement of 'iftth March. 1861. In 1876 the terms of the original agreement were flrst varied by 89 Vic. cliap. 68, which provided that, " in rfpairhiii the roadway between their rails, and for one foot six inches on the outside of each rail, the Toronto Street Railway Company should use for »ueh repair§ the name m'lterialt and mode of conttruetioH as that from time to time in use by the City Corporation for the remainder of the street," and that " if the Railway Company slioald neglect to keep the track or roadway and the space of one foot six inches on the outside of the raiils in good condition, or to have the necessary r«jMifr« mode thereon, the City Engineer should give written notice requiring the said repairs to b3 made forthwith, and unless such repairs wera commenced within five day», and oirried on with reasonablejdespatch to the satisfaction of the.City Engineer, he might cause such repairs to be done at the ^xpense of the City, and the amount so expended should be recoverable against the Company." In 1877 furti;er provision was made by the Act 40 Vic. chap. 83, as follows : "In case the Corporation of the said City shall determine to eomtruet or renew the paving or macadam on any street traversed by the said Railway, the said Company shall be bound within one month after the receipt of notice in writing, requiring them to do so (in which notice shall be specified the nature of the material or kind of pavement intended to be used, the street on which it is to be used, and the time when the work is to be commenced), to eonttruct or renew, sub- je<>t to the provisions of this Act, the paving or macadam on the roadway, and for^ one foot and six inches outside of each rail, uting the same material and mode of con- CITY OF TORONTO r. TORONTO gllJEET RAILWAY CO. 201 $lructliin a» tliitt wfil )ur the rfmainhiff poflimn of thf aireft by tlic (Ji'i'|iorHtit)ii ot mid City, and to vHrry on the work of con«truutiou or rmiewkl with «ll rMaonftlilt* de«n»toti tu the nHttHfuutiuii of the City Knttineer of the Huid City of Toronto ; Miid in the event of the Haid Oonipauy fuilinM to do m>, the Mid I'^n^ineer may oauiw Huoh worl( to be done at the ex|)enite of the eaid <;ity, aud of the amoant to expended, an amount not excuedinx tlie mm of two dollara and fifty cents per ■({uare yard, Hhall be recoverable ai:u'nit the said (Company in any Court of com- petent jnriHdiotion, or by aeaeeament, aa hereinafter provided, and the work of conatruction or renewnl ahall bo proceeded with Miniultaneoualy over the roadway of the Haid Company, and tlie remainder of the atreet, whether the aaid Company ahall conform to tho iiutico aforesaid, or the aaid Corporation shall perform the work under the i)ower conferred on it in this sub-section." " If the Corporation give tliis notice mentioned in next preceding sub-section and ■ •do not themseves proceed according to the terms thereof within the time thereby limited, they shall be liable to pay to the Railway Company such damagM aa may hiwe been thereby occasioned to the said Railway Company.'' " Whenever the Corporation of the City shall ohanr ' any kind of paving, not being macadam, cobble stone or boulder stone, hereafter to be constructed on any street traversed by the said railway, before such paving is worn out whereby the same is diHuen8eaving for the purposes of the said Company, the amount thereof to be ascertained, in case of dispute, by arbitration under the provisions of the Municipal Act then in force ; provided that this section shall not ■apply to paving which the said Company shall not have hereafter constructed or paid for ; and provided also that the determination of the City I'^ngiiieer, evidenced by his certificate in writing, shall be conclusive evidence that the paving is worn out or not, according to the terms of such certificate. '" In every case of vututruction or renewal of any kind of permanent pavement upon any of the streets occupied by the said Street Railway, the said Company snail have the option of coiutructing their portion of any such pavement, or, at their re<]ae8t, the said Corporation of the City of Toronto shall eonttruet the same, and in every such case the said Corporation shall assess an annual rate, covering interest and sinking fund, extending over the like period as that upon which the assessment upon the adjacent ratepayers is adjusted, upon the said Company for the cost thereof, not exceeding the said sum of two dollars and fifty cents per wiuare yard ; with full power to the said Corporation to raise such sum by an issne of debentures and to collect the same in the manner provided under the Municipal Act for the construction of local improvements." Under these provisions the City in 1881, and subsequent years, laid down wooden block pavements on several of the streets traversed by the railway, and at the request of the Company, and after the notice above provided for, oonstruoted that portion of the street which the Railway Company had the option of coustrnoting under the above sections, and assessed the cost thereof against the Company, and issned debentures therefor ; and the Railway Company, np to the end of ISHft, paid to the City the amount due from them on account of such assessments. The present action was begun in December, 1886, to recover from the Btreet Rail- way Company |t,8*21.49. which the City had expended in repairing theportionsof these block paved streets occupied by the Railway Company, and also to recover certain amounts which the City had been compelled to pay as damages oooasioned by reason of the non-repair of these portions of the streets. The Railway Company, in their statement of defence, claimed that they were not liable for the repair* of these streets, because the City had assumed, in pursuance of the Acts above recited, to cotutruct upon them pavements which weria intended to be permanent pavements within the meaning of these Acts, but that "the «utd pavement* were )Mt permanent pavement*, und were totally inapplicable to and inadequate for the pur- jpote of any street upon which the Street Railway were operating their line*" and that, jis a matter of fact, the Street Railway Company had protested from time to 202 MEMO. ttme against the use of suoh pavements upon streets occupied by them ; and they also claimed that the City had been guilty of such negligence in the construction of these pavements as to exempt the Street Railway Company from any liability to- repair the same. As to the question of liability for damage* by reason of accidents caused by the non-repair of the streets, they claimed that the City was piimarily liable to keep^ the streets in repair ; that they might have made these repairs themselves and charged them to the Company, and that the Company was therefore not liable for accidents occasioned by streets being left in a condition of non-repair. The preliminary questions of law raised by these pleadings were fully argue .le of street railway along certain streets of the City of Toronto, including Cterrard street, from River street easterly to Broadview avenue, your Committee recommend that in accord- ance with the arrangement at present existi&g with the Toronto Street Railway Company, a notice be served upon the said Toronto Street Railway Company, requiring them within one month from the date of such notice being served upon them to consent to construct upon completion of the Gerrard street bridge a line of street railway along Grerrard street, from their present terminus at the west side of River street to Broadvienr avenue, and thence northerly on Broadview avenue to Danforth avenue ; and if they fail to accept such proposal within said month, the Corporation will be at liberty to grant the privilege of constructing such line to any other parties. (Appendix 1104, to Minutes of Council, Sept. 8th, 1888.) To, CITY OF TORONTO r. TORONTO SFUEET llATLWAY CO. 209 CLVI. In Council : — The following cominuuication was read : From the Toronto Passenger Transport Co., offering to construct and operate lines of street railway on certain streets in the City. (Minute No. 1027, Minutes of Council, September '24th, 1888.) CLVII. Toronto Street Railway and Parliament Street. lilTTBR FROM CiTT SOLICITOR TO THE MaYOR : To Hi$ Worship the Mayor, Toronto : Oct. •24th, 1888. My Dear Mr. Mayor, — I have your letter of the 2!}rd inst., asking my opinion as to the right of the Toronto Street Railway Company to lay down a second track on Parliament street, between ;Gerrard and St. David streets, without consent from the Committee on Works or the Council. I have read and carefully considered the original agreement between Easton and the City and the Statutes subsequently passed ; also such of the resolutions of Council as are thus ''ar printed in the Street Railway pamphlet, now in press. The question is by no means free from difficulty, and I give my opinion with considerable hesitation, because the line of the Street Railway on Parliament street north of Queen, appears to have been laid di.>wu by the express request of the Coimcil, and not at the instance of the Railway Company ; but on the whole I am of the opinion that this cnse is governed by the fifth resolution contained in the original agreement between Easton and the Company, which is as follows : " The location of the line of railway in any of the streets shall not be made until the plans thereof, showing the position of the rails and other works in each street shall have been submitted to and approved of by the City Surveyor." Mr. Sproatt informs me that the plans of this new track were never submitted to or approved of by him, I therefore iink that the Street Railway had no right to put it down. Before advising what action should be taken in the matter, it would however be desirable to ascertain how long ago this track was put down, so as to know if we have not forfeited, by delay, our right to insist on its removal. Yours truly, • - (Signed) C. R. W. BIQGAR, City Solicitor. V. I' I- I' k I 210 MEMO. CLVIII. Commiltee Report. Your Committee bo^s again to forward to Council the following offer of the Toronto Fassenger Transport Company to lay down and operate a Street Car \ ervioe on certain streets of the City between the Union Station, on Simooe street, 1 1 Danforth avenue : To the Council of the Corporation of ttte City of 2'oronto : GkntiiEmen, — We hereby withdraw all former offers or proposals, and we substi- tute the following instead : We propose to construct and operate a double track line of railway ui>on the fol- lowing streets and avenues of the City of Toronto, namely : Commencing at the intersection of Simcoe and Front streets ; thence along Simcoe street to Adelaide street ; thence along Adelaide street to Jarvis street ; thence along Jarvis street to Duchess street ; thence along Duchess street to George street ; thence along George street to Wilton Avenue ; thence along Wilton Avenne to River street ; thence along Biver Street to Gerrard street; thence along Gerrard street to Broadview avenue ; thence along Broadview avenue to the north side of Danforth afrenue. If the Council give us permission to build the above line we will at once enter into bonds with sureties satisfactory to your honorable body, and bind ourselves to perform the following acts and things : 1. We will have the road in first-class running order before the first day of July, A.D. 1889, provided we secure the right to do so before the 1st day of January, 1689, or within six months from the time we may acquire the said right. 2. We will place conductors on all cars. 3. Fare shall not exceed 5 cents. We will cause twenty -five tickets to be sold for one dollar, and six for twenty -five cents. 4. We will nsr. the most approved rails, such as may be designated by the City Engineer or your honorable body. fi. We will run cars once every ten minutes during the busier parts of the day, between such hours as the Council may designate, and lera often as the Council may direct. 6. We will construct, repair and maintain all the roadway between the tracks and for two feet outside of the tracks, of the same class of roadway as the rest of the street, or of such other material as the Council may direct, provided the same be used in other roadways of any city in Canada or the United States. 7. We consent to render up the franchise and all rights and privileges thereunder at the same time and in the same manner as the Toronto Street Railway Com- pany may be required to do. CITY OF TORONTO r. TORONTO STREET RAILWAY CO. 211 8. We agree that when any arnalfiamation or pooling arrancement with the Toronto Street Railway Company, witliout the conRont of your Couusil shall take place, all the reiii and personal property of the underaigned Company, together with the francliige and all priviloKPH therounder. shall revert to the City. 9. We will pay annually a siiui equal to two per cent, of our gross annual rooaipts (from paBsenfier traffic) for the purposes of the City. 10. We will issue throu^jh tickets at Binf,'!o fare from any one of the lines herein referred to or that may hereafter be constructed or operated by us. 11. We also offer to construct and oporute II jiou the above terms a line of street railway over the route adopied by your Council on the '.nst day of February, 1886, namely : " Connnenciu« at tlie intersection of Front and Simcoe streets ; thenoe along Simcoe street to Adelaide struct ; thence alont; Adelaide street to Victoria street; thence alonj? Victoria street to Wilton avenue; thence along Wilton avenue to River street; thence alont« River street to Oerrard street; thence along Gerrard street to Broadview avenue ; and thence alou^ the said Broadview avenue to the north side of Danforth avenue." THE TORONTO PASSENGER TRANSPORT CO. Toronto, Sept. 12th, 1H88. " Your Committee therefore befia to report that they have carefully considered the above proposals of the Toronto I'asseujjer Transport Company, dated I2tli September, 1888, transmitted by the Council to your Committee. A nd the atten- tion of your Committee havin{» been drawn by the City Solicitor to the fact that the following Reports of your Committee and amendments thereto have been adopted under a misconception as to the form of i)rocedure, your Committcj therefore, in order to avoid misunderstanding, and on the advice of the City Solicitor, recommend that Reports Nos. 2JI of the Committee on Works for 1887, .12 of the Committee on Works for 1887, and amendments in Council thereto, !« of the Committee on Works for 1888, and all amendments thereto, in so far as the same may refer to street railway service, be rescinded. " Your Committee therefore further recommend that the nature of the said pro- posals be communicated to the Toronto Street Railway Company, as provided by section 24 of By-law 35:^, and that tlie said the Toronto Street Railway Company be offered the option of constructing the lines of street railway over the routes set forth in the said proposals upon the terms and c(mditions stipulated in By-law 35.1." By Report No. 33 of the Executive Committee, which was adopted by Counoil, the above recommendation and communication was referred back to the Commitee on Works for the purpose of securing the corporate seal of the said Company, ascertaining the p^r#oi)ne/ of the said Company, and for the purpose of ascertain- ing the nature of the security that the Company proposed to offer for the due fulfilment of any contract that the said Company may enter into with the Cor- poration. Your Committee refercd the above matter to the City Solicitor, who informs us that at the date of the proposals above set forth, the laid Compaay li 212 MEMO, consiHtod of John Arthur Macdonnld and Glmrlea William Nash, trading under the firm niimo of " Tlia Toronto Passanijor Tninaport Oiinpany," tho cerlificato of wliio'i pxrtnorsMp wnt duly ro.:4i>rd to >;ive such 'ocurity as tho Council may require. Your Committ?o therefore recommend tho adoption of their former recommen- dation huruinbi.>f(ire set fortli in the above extract from Report No. 20 of tho Committee on Works. (Appendix 139G to Mlnut;;)s of Council, October 30th 1838.) CLIX. To Hill Worship the Mayor of Toronto , Toronto, Nov. 21st, 1888. Dear Sin, — I thought it would bo well to say to you tliat the Toronto Street Railway Company have finally deo'dod to put down n double track on Broadview avenue, from Queen street oast to Danforth avenue. This will require u double track also on Queen street oast, and tho line will then be operated from the Union Station to the Danforth Road. Wo will also extend tlie Gcn-ard street line acrosn the brid<{ on the 5th day of February, IrtSlj, come on to be heard befora the Honourable Mr. Justice lioae at the nittiugs of this Court for the trial of actioiiB held at the City of Toronto in tho presence of oounsol for the plaintiff and for the defendant, upon heariui^ read the plcadiu^js and what was alleged by coun- lel nn both sides : This Court doth declare and adjudge. 1. That the defendant Company is bound to keep in repair auoh permanent pave- ments as the plaintiff Corporation may have laid upon the streets used by the defendants for the purpose of its trafHc over the space between the tracks of and for eighteen inches outside the same. 2. That the defendant Company is liable to pay to the plaintiff such damages as it may have suffered or paid by reason of the non-repair by the defendant of sach pertnaD«nt pavements aforesaid, over the space aforesaid. CITY OF TOBONTO v. TORONTO STREET RAILWAY CO. 916 K. That the plaintiff wkm, uud in bound to um renitouable oar«, akill itiid diliKenoe in lelootinK pavementii to b« laid an permanent pavemonts over the apaue aforeaaid, and over the reniaindor of the iiaid atrtHita ho fur only as the pavuinont upon laid •paoea hati been or ia affectud thereby ; and if negligent in auoh aeleotion the defendant ia not liable to pay for audi conatruotiou or to repair aa for a permanent pavement ; and if auch reaaonable care, akill and diligence in auch aelection waa not exeroiaod by *he plaintiff Corporation, it ia liable to the defendant for any loaa ocuaaioued by audi negligence. 4. That the plaintiff wuh, and ia bound to uae reiiHonable care and akill in the oonatruction of auch permanent pavomcnta on the atreeta aforeaaid, and on thu remainder of the aaid atreeta ho far only aa the pavement on the apace aforeaaid haa been or ia affected thereby ; an.l it auch pavumonta were ao uo^ligently oon- atructed aa not to be perniauuut, the defendant ia not liable to pay for auoh conatruotion or to repair, and the plf>i:l and obtained, which are by the said Act respectively authorized to grant liermis-iiun to the said parties of the second part to construct their railway as aforesaid within their respective limits, across and along, and to use and occupy the said streets or highways, or any part of them, for that purpose, upon such conditions and for such period or periods as may be respectively agreed upon between the parties of the second part and the said City or other municipalities aforesaid, or any of them. . J And Wltereas, in and by the said Act the said City and the adjoining Municipalities or any of them and the said parties of the second part, are resjiectively authorized to make and to enter into any agreement or covenant relating to the construction ' ' of the said railway for the paving, macadamizing, repairing and grading of the streets or highways, and the construction, opening of and repairing of drains or sewers, and the laying of gas and water pipes in th? said streets and highways ; , the location of the railway and the particular streots f.long which the said shall be laid, the pattern of rail, the time and speed of running the cars, the amount of license to be paid by the Company annually, the amount of fares to be paid by . ^ passengers, the time within which the works are to be commenced, the manner of proceeding witli the same, and the time for completion, and generally for the safety and convenience of passengers, the conduct of the agents and servants of the Company, and the non-obstructing and impeding of the ordinary traffic. And Whereas, the Corporation 'of the City of Toronto on the twenty-second day of March, in the year of our Lord one tkousand eight hundred and sixty-one, entered into an agreement bearing that date under the seal of the City with Alexander Easton, the present President of the parties of the second part, and - 'acting in the expectation that the parties of the second part would be thereafter iduly incorporated in regard to divers matters such as mentioned in the last fore- .:going recital. ^ And Whereas, the said parties of the second part having, upon the conditions in said agreements set forth, obtained from the Corporation of the said City per- . mission to use and occupy certain streets in the said City, inoluding Yonge street so far as the same is within the boundaries of the said City, for the purpose of their track, and the laying of the rails and tlie running of their oan and carriages, are desirous of obtaining similar permission from the Corporation of the Village of Yorkville, a municipality immediately adjoining the said City, and under and pursuant to the said Act to enter into a corresponding agreement with the Cor- poration of the said village. And Wltereas, the parties hereto of the first part, being the Corporation of the said village, are willing to grant such permission as to so much of Yonge street afore- . said as is within the boundaries of the said village, upon the terms and conditions hereinafter set forth, and to enter into an agreement with the said parties of the ^eoond part such as hereinafter contained : Jv CITY OF TORONTO v. TORONTO STREET RAILWAY CO. 226 Now THIS iNDENTDRB wiTNEBRRTii, that the Bald parties of the first and second parts have covenanted and agreed, and by these presents do covenant and agree, each with the other of tliem, as follows : Fint — That the said parties of the second part be permitted without let or hind- rance from the said parties of the first part, t > lay down the continuance of their street railway along so much of Yonge street in the Villa»;o of Yorkville as is situate between the northern boundary of the Oity of Toronto and the northern boundary line of the said village where the same crosses Yonge &creot, of the same materials and of the same dimensions as authorized by the Corporation of the City of Toronto, but under such regulations as the said parties of the first part may see fit from time to time to make, ordain and declare. Stcond. — Tltat the track of the railway shall be laid by the said parties of the second part of such rails as may be approved of by the Corporation of the Oity of Toronto, and actually used in the streets of the said City, and the rails shall bo laid flush with the surface of the street, and conform to the grade thereof as now established, or as it may be from time to time altered or established. Third. — That the said parties of the second part shall keep the surface of the ■treet inside of the rails, and for one foot outside thereof, in good order and repair, and all dirt and filth cleaned and removed therefrom, as the said parties of the first part may from time to time order and direct. Fourth. — That the said parties of the second part shall pave or macadamize the roadway between and within at least one foot six inches (or as much as the ties project) from and outside of each rail, and the same constantly keep in repair. Fifth. — That the said parties of the second part shall also construct and keep in good repair the crossings at the section of every such ritilway track and cross streets or other crossings, to the extent of the said railv ay track and one foot on each side thereof, of a similar character to those in use by the said parties of the first part within the limits of the village. Sixth. — That the said parties of the second part shall cause the railway to b» constructed in the centre of the street if a single track, and if of a double track the inside rail of each track shall be laid within one foot and six inches of the centre of the street, said rails to be so laid as to accommodate the width of ordinary earriage wheels or otherwise as may hereafter ba agreed upon between the said parties. S«t)«nth.— That when the said parties of the second part shall have completed one track of the said railway and placed cars thereon for the public use, it shall be lawful fqr them at any time thereafter within the period of five years to build a second track, so that they do not interrupt the running in the ordinary way of the cars on the first completed track. Eighth.— ThAi it shall be lawful for the said parties o' the first part, after reason- able notice to the said parties of the second part of their intention to take up any part of the street traversed by the rails, either for the purpose of altering the grade thereof, constructing or repairing drains, or for laying down or repairing L ^, 226 MEMO. gaa or water pipes, or for all other pnrpoaed within the province and privileKea of a Munioipal Villaf{e Corporation, without the parties of the second part being entitled to any compensation for damagoH or otherwise occasioned by the working of the railway or works connected therewith. Ninth, — That the cars shall be run by the said parties of the second part over so nauch of the track as lies to the south of the Town Hall in the said village at least sixteen hours in summer and fourteen hours in winter on each day, at intervals of no greater than thirty minutes. Tenth. — That the speed of the oars shall never exceed six miles per hour. Eleventh. — That when the accumulation of snow or ice in the roadway shall be unch as to impede the traffic, every means shall be used by the said parties of the second part to dear the track, and while impeded the said parties of the second part shall provide sleighs sufficient for the accommodation of the public. Twelfth, — That no higher fare than five cents shall be charged for the conveyance of each passenger on the line from any one point along the line in the village to any other point along the line in the same village, and that five cents shall be the ma:;.imum fare to be charged to any passenger from the Town Hall in the village to the Bt. Lawrence Hall in the City, or to or from any intermediate point. r/n>te«n(A.— That the said parties of the second part shall be liable for all damages to indix'iduals arising out of the construction of, or operation of their railway, and hold the said parties of the first part in all respects harmless in respect thereof. Fourteenth. — That if the said parties of the second part neglect to keep the track or the roadway or crossing between and on each side of the rails in good con- dition, according to the terms of this agreement, or to have the necessary repairs according to this agreement made thereon, the said parties of the first part may give notice requiring such repairs to be forthwith made, and if not made within a reasonable time the said parties of the first part may cause the repairs to be made and the expense thereof may t>e recovered at the suit of the said parties of the first part from the said parties of the second part in any court of competent jurisdiction, and be a lien on the cars of the said parties of the second part at any time within the said village. Fifteenth.— The track on and over so much of Yonge street as lies to the aonth of the town hall in the village shall be constructed and fully equipped within twelve calendar months from this date. Sixteenth. — The privileges granted by the present agreement shall continue for a period of thirty years from the twenty -second day of March, in the year of our Lord one thousand eight hundred and sixty -one. Seventeenth. — That if the said parties of the second part at any time give up the railway, or cease to exercise the privileges hereby granted by the said parties of the first part for a period of three calendar months, they, the said parties of the second part, shall forfeit the entire property within the limits of the said village, including railway stock, to the said parties of the first part. r Eighteenth.— '^ChAt if tho snitl parties of the second part Bhall fail to complete the aforeiMid railway within the Haiti village according to the oonditionB herein prescribed, then the rights and privileges granted herein or otherwise to the said parties of the second part, together with all or any improvements made upon the railway within tlie said village shall be forfeited, nnless the said parties of the first part shall give to the said parties of the second part a further extension of time ; provided that no detention be caused by any action of courts of law or other authorities. Nineteenth. — That in the event of any other parties proposing to construct rail- ways on any of the streets within the present limits of the village, or any extended limits thereof, and not now occupied by the parties of the first part, or which they lire now authorized to oucupy, the nature of the proposals thus made shall be communicated to the uaid parties of the second part, and the option of con- structing such proposed railway on similar conditions as are herein stipulated shall be given to the said parties of the second part, but if such preference be not accepted within one calendar month, the said parties of the first part may grant the proposed privilege to any other persons or bodies corporate. Twentieth.'-Thikt during the term of thirty years herein and hereby granted, the «aid parties of the first part shall not, without the consent art, and also sub* jeot to the following conditions, namely : — The said lines and extensions of lines shall bo built in the following order, Church street, Btrachan avenue and Exhibition road, Dundas street from Queeu to Duf- ferin street, Queen street from Yonge street eastward to King street, S^wdina avenue from College street to Bloor street, and Bathurst street from King street to Bloor street. All the above linos, except the last two named, are to he built and operated during the year 1881, (subject, however, as regards Exhibition Road to the parties of thu first part procuring and granting to tlie said parties of the second part, a proper, safe, and fit meaue of crossing the railway tracks across which the said street railway track is to be carried). The said Spadina avenue route during the year 1882, and the said line on Bathurst street as follows : That portion lying south of College street during the year 1882, ' and that portion thereof lying north of College street within one year from the completion of the sewer thereon from College street to Bloor street. ■"''■' CITY OF TORONTO r. TORONTO STREET RAILWAY CO. 229 Andtlie partion of the lecond part ultio a^ree, for themiiolvcB and their auooeuorg, to and with tho purtiea of tiio flrat part and their ancoeaiors, that ahould the tukinK up and relayinR of tlie track upon the Churoli atroet route above mentioned or upon that portion of tlie (jueen Htruot route above mentioned, lying eastward of I'liriianiont Htrout be rendered neceHHary, either by the reconstruction of tho proHunt Ciuircli Htreot sower or by tlio uonstruotiou of a sewer upon tlie said portion of Queen street, they, tho said parties of the second part will take up and re-lay tho siiino at their own cost, char^eH and oxpunses. This provision is not however to apply to any future case of robuildiuK. altering or repairing said sower or sewors other than tho oases above expressly provided for, nor to bo considered n waiver of the original rights of the said parties of tho second part except in tlte cases above expressly provided for. And it is oxprcHsly agreed and understood by and between the parties hereto that nothing heroin contained shall operate to prejudice, interfere with, derogate from, or in any v/int modify (except as herein expressly provided,) the rights and liabil- itioH of tho parties Iieri'to under tho agroument, by-law and statutes heretofore in force regulating tho relations of the parties hereto, and that tho lines of railway tracks to bu laid by the parties of the second part under this agreement shall, when built, bo considered as coming, to all intents and for all purposes, within tho operation of the said agreement, by-law and statutes, except as liercin other- wise expressly provided. In witness wlitsruof, tho parties hcroto have hereunto set their corporate seals, and the hands of the proper oiiicurs the day and year llrst above written. Signed, sealed and oxoouted in tlio presence of (Signed) JOHN SMITH, mtneu. (Signed) FRANK SMITH. Pre$i(lint. [L.S.] JAMP^S OUNN, Secretary, W. BAUCLAY McMURRIOH, Mayor. [L.8] SAMUEL D. HARMAN, Trtamrtr. CLXVI. To the Chairman of the Oommittee on Work$, Toronto. TonoNTO, 20th April, 1888. Dear Sib.— I desire on bohalf of the Company to make to your Committee, through yon, two suggestions with regard to the contemplated laying of block pavements upon Queen and King streets. These suggestions are not made only in the interests of this Company, but very largely in that of the City and the public. You are aware that considerable difBoulty has arisen with respect to the Yonge street pavement. For some reason— whether the negligence of the contractor or the natural difficulty caused by the severe frosts, does not now seem to be material— the position of the pavement between the stringers on which our traok is laid, has not proved a very satisfactory piece of work. 280 MEMO. Tonr oontraotors would of course repudiate any suggestion of negligence — and for the present purpose we will assume that they would be correct in doing so. In that case the lesson to be learned from your experience with the Yonge street pavement is an obvious one. In this climate and upon streets where our tracks are laid, the block pavement cannot be succesfuUy laid in the confined spaces between the stringers, though in the larger space outside the stringers, the greater room for natural expansion very considerably lessens the difficulty. And this brings me to my first suggestion, which is, that the scheme for the new block pavement should provide the substitution for wooden blocks in the space between the stringers, of some material which will not be subject to expansion by moisture or frost. We are satisfied unless this be done, or unless better work is done by the contractors, there will be a constant recurrence of the difficulties to which allusion has beau made in the caae of the Yonge street pavement. I would suggest that the block should only be laid upon the sides of the streets, between the kirbing and the outside stringers of our track (we of course paying for the construction of the eighteen inches next the stringers) and that between our tracks we be compelled by such an agreement as your solicitor and ours may approve, to constantly maintain a thoroughly good roadway of cobble or macadam, which may be made subject to a rigid system of inspection by your engineer both as to quality and as to grade. If your Committee will carefully consider this proposition, I feel satisfied that it will be found to stand every test of utility and ultimate economy that may be applied to it. We shall be glad to have an opportunity of discussing the matter with your Committee : and trust you will give it your consideration. This method would also to a very great extent do away with the inconvenience which the public must suffer from not being able to make use of the cars during the progress of the work ; and this brings me to the other suggestion, which is, that in any case the conduct of the work may be so arranged as to afford the least hindrance to the running of the cars. I think your Committee will agree with me when I say, that it would be of the utmost inconvenience to a very large proportion of the public should both of tlie parallel lines. King and Queen streets, be closed simultaneously, or indeed should either street be broken up at the same .tim(9 along its whole length. % In all probabihly by an interview between your Committee and ourselves, apian could be devised by which rapid construction might be made oonsistent with the slightest possible interruption of the railway traffic. Apologizing for the length of this communication, and trusting your Committee may deem it woiiih wliile to pay some consideration to the suggestions I have ventured to make . ,, , . I am, • . ' Your obedient servant, ;■ ' -'"','■ ■ v.! '..-'.'- V- ".„■-',"! ••' " "■" J. GUNN, ^ '■ V'' , , '. ,, ■ Secretary Toronto Street Railway Company. ?■' 'ij ':-■ I*; CITY OF TORONTO v. TORONTO STREET RAILWAY CO. 231 e 10 It CXLVII. The Act of the Legislature of Ontario passed March 25th, 1889, 52 Vic. cap. 73, provides by section 18 as follows : 18. The Corporation of the City of Toronto may, with the consent of the rate- payers, borrow from any bank or other corporation or person who may be willing to lend the same, whatever sum may be required to enable the said corporation to acquire the ownership of the railways of the Toronto Street Railway Company and of all real and personal property in connection with the working thereof, at the expiration of the current term of the franchise of the said Company, under the agreement in that behalf between the said City and the said Company*, and may, if necessary, issue debentures therefor, and may manage and operate the said railways, or (having acquired the said property), may sell, lease or otherwise dispose of the same to any one or more persons, firms or corporations, on such terms and for such periods as may be agreed upon between the City and said persona, firms or corporations. *See the eighteenth resolution recited in By-law 35H, printed ante at page 12. h t'J.e'ii^^,^fi(W;.>: !"■■ t