individual may sue if he can show special damage (n). To support an information, no substantial damage or definite injury to the public need be shown. It is enough that the company has not strictly followed, or is about to transgress the powers which have been vested in it by the legislature (o), or is doing an act which is illegal and tends to the injury of the public (p); but the Court will not, as a rule, upon an information, entertain jurisdiction, unless it is clear that the interest of the public calls for its interference (q). It was said by James, L.J., in Att.-Gen. v. Great Eastern Railway Co. (r), That it is not enough that the act complained of may be ultra vires, and that it interests the public; but that it is only where some public mischief is done, or where, in respect of something intended for the public protection, there is misfeasance or nonfeasance that the Attorney-General ought to interfere (r). This does not seem consistent, however, with more recent authorities (r). In a recent case in which a railway company having constantly allowed their trains to pass over a level crossing at a speed exceeding four miles an hour, in disregard of the provisions of sect. 48 of the Railways Clauses Act, 1845, an information was filed by the Attorney-General to restrain them from so doing. The railway company set up as a defence that there was no proof of any injury occasioned to the public, and that the inconvenience to the public by reason of the existence of the level crossing would be increased if they complied with the requirements of sect. 48 of the Railways Clauses Act; but it was held that as the information. N. S. 266; Pudsey Gas Co. v. Brad- (0) Mayor of Liverpool v. Chorley Waterworks Co., 2 D. M. & G. 860; Ware v. Regent's Canal Co., 3 D. & J. 228; Att.-Gen. v. Cockermouth Local Board, 11 Eq. 172; Bonner v. Great Western Railway Co., 24 C. D. 8, per Baggallay, L. J.; Jordeson Chap. XVIII. Chap. XVIII. was filed by the Attorney-General to enforce the express terms of an enactment made by the legislature in the interests of the public, the Court could not entertain the question whether injury to the public was in fact occasioned by the contravention of the Act, but was bound to grant the injunction (s). If a railway company, authorised by special Act to construct a main line with a branch, complete the one and take no steps to complete the other, the remedy is by mandamus, and not by injunction (t). A railway company has been restrained from opening their line without the sanction of the Board of Trade (u): and where an inspector of the Board of Trade reports, in accordance with 5 & 6 Vict. c. 55, s. 6, that the opening of a railway, or branch of a railway, will be attended with danger to the public by reason of the incompleteness of the works, the Board of Trade has exclusive jurisdiction in the matter, and the Court will not enter into the question as to whether the inspector has come to a wrong conclusion (r). The Court of Chancery would not restrain a railway company from making certain charges (y), or from charging the plaintiff for the carriage of his goods otherwise than equally with other persons (2). But by the Railway Traffic and Canal Act, 1854, 17 & 18 Vict. c. 31, ss. 2, 3, power was given to the Court of Common Pleas to grant an injunction against railway and canal companies, who, by their traffic arrangements, give an undue or unreasonable preference to, or advantage to, or in favour of any particular person or company in any particular description of traffic, in any respect whatever (a). This jurisdiction was (s) Att.-Gen. v. London and North Western Railway Co., (1899) 1 Q. B. 72: (1900) 1 Q. B. 78. (t) Att.-Gen. v. Birmingham and Oxford Railway Co., 4 De G. & S. 490. (u) Att.-Gen. v. Great Western Railway Co., 7 Ch. 767. See, as to sanction of Board of Trade, Pearce v. Wycombe Railway Co., 1 Drew. 244; Att.-Gen. v. Great Northern Railway Co., 1 Dr. & Sm. 154. (x) Att.-Gen. v. Great Western Railway Co., 4 C. D. 735 (C. A.). (y) Pickford v. Grand Junction Railway Co., 3 Ra. Ca. 538, 558. (z) Sutton v. South Eastern Railway Co., L. R. 1 Ex. 32. (a) See Palmer v. London and South Western Railway Co., L. R. 1 C. P. 388, as to the principles on which the jurisdiction under the Act will be exercised. transferred to the Railway Commissioners by the Regulation Chap. XVIII. of Railways Act, 1873 (b); and has since become vested in the Railway and Canal Commissioners by 51 & 52 Vict. c. 25, s. 8. Accordingly if a railway company carries goods for a customer at a lower rate than that charged to other customers, it may be an undue preference and give the other customers a right to complain before the Railway Commissioners, but it is not an act ultra vires, and gives no right to a shareholder to sue for an injunction (bb). In a case in which a contract which was ultra vires had been entered into by a railway company with A, and A afterwards obtained judgment by consent enforcing the contract, it was held, in subsequent proceedings, that the contract was invalid, and that the judgment having been obtained by consent without the question of ultra vires being raised, was of no greater validity, and relief was accordingly granted upon that footing (c). General's dis With regard to the jurisdiction of the Attorney-General to Attorneydecide in what cases it is proper for him to sue on behalf of cretion as to suing on behalf relators, Lord Halsbury, in a recent case (d), said: "One of relators. question has been raised which I confess I do not understand. I mean the suggestion that the Courts have any power over the jurisdiction of the Attorney-General when he is suing on behalf of a relator in a matter in which he is the only person to decide those questions. It may well be that it is true that the Attorney-General ought not to put into operation the whole machinery of the first law officer of the Crown in order to bring into Court some trifling matter. But if he did, it would not go to his jurisdiction; it would go, I think, to the conduct of his office, and it might be made, perhaps in Parliament, the subject of adverse comment; but what right has a Court of law to intervene ? If there is excess of power claimed by a particular public body, and it is a matter that concerns. the public, it seems to me that it is for the Attorney-General, (b) 36 & 37 Vict. c. 48, s. 6. (bb) Anderson v. Midland Railway Co., (1902) 1 Ch. 369. (c) Great North West Central Railway Co. v. Charlebois, (1899) (d) London County Council V. Chap. XVIII. and not for the Courts, to determine whether he ought to initiate litigation in that respect or not." Acts illegal as against private persons. User of land acquired by a A private person who applies for an injunction to restrain a company from violating the provisions of an Act of Parliament, must be able to satisfy the Court that he will suffer substantial injury from the Act complained of (e). As a general principle, where the Statute prohibits the doing of a particular act, affecting the public, no person has a right of action against another merely because he has done the prohibited act. It is incumbent on the party complaining to allege and prove that the doing of the act prohibited has caused him some special damage, some peculiar injury beyond that which he may be supposed to sustain in common with the rest of the King's subjects, by an infringement of the law. But when the act prohibited is obviously prohibited for the protection of a particular party, then it is not necessary to allege special damage (ƒ). A creditor cannot, upon the ground that a company is diminishing its fund for the payment of debts, maintain an action to restrain the company from dealing with its assets (otherwise than assets, if any, comprised in the creditor's security) in such manner as the company thinks fit (g). A railway or other company having acquired land under their company under statutory powers for the purposes of their undertaking have statutory powers. generally a right to use the land which they have acquired, as they think fit, provided they are not using it in a manner which is inconsistent with the proper purposes of the Act under which they are incorporated (h). If they have been empowered to take land on the banks of a river, they have all the ordinary rights of riparian proprietors (i). So also they have a right (e) Holyoake v. Shrewsbury and Birmingham Railway Co., 5 Ra. Ca. 421; Mayor of Liverpool v. Chorley Waterworks Co., 2 D. M. & G. 860; Pudsey Gas Co. v. Corporation of Bradford, 15 Eq. 170. (f) 1 Exch. 877, per Lord Wensleydale. (g) Mills v. Buenos Ayres Co., 5 Ch. 621, 628. (h) Bonner v. Great Western Railway Co., 24 C. D. 10; Foster v. London, Chatham and Dover Railway Co., (1895) 1 Q. B. 711. (i) Swindon Waterworks Co. v. Wilts & Berks Canal Co., L. R. 7 H. L. 697. to take measures to prevent prescriptive rights being acquired Chap. XVIII. for windows looking over their land (k). But a company incorporated by Act of Parliament and acquiring land under statutory powers for the purposes of their undertaking have not in all respects the same rights over the land as an ordinary purchaser of the land in fee. The company is entitled to use the land for all the purposes of the undertaking whatever they may be, but beyond that they have not the rights of an ordinary purchaser in fee simple. They can neither use it themselves nor give any one else the right to use it for any purposes except the necessary purposes of the undertaking (1). If a company incorporated by Act of Parliament for a particular purpose and acquiring land under statutory powers for the purposes of their undertaking is using the land so acquired in any other way than for the proper purposes of the undertaking (m), or is constructing works or buildings on the land which it is not authorised to construct, and such improper and unauthorised use of the land interferes with the rights of an individual, that individual may come to the Court to restrain the company from such unlawful user of the land (n). Recent cases, however, appear to qualify the rule stated above as to the powers of companies incorporated by Act of Parliament to use their property. Thus where a railway company acquired in fee simple under their compulsory powers, a strip of land on which they constructed a railway (k) Bonner v. Great Western Railway Co., 24 C. D. 10; Foster v. London, Chatham and Dover Railway Co., (1895) 1 Q. B. 711 (C. A.). (1) Mulliner v. Midland Railway Co., 11 C. D. 622; Ayr Harbour Trustees v. Oswald, 8 A. C. 634, per Lord Blackburn; Bird v. Eggleton, 29 C. D. 1017; but see Foster v. London, Chatham and Dover Railway Co., (1895) 1 Q. B. 711 (C. A.); Gonty v. Manchester, Sheffield and Lincolnshire Railway Co., (1896) 2 Q. B. 439 (C. A.). |