Scottish Court of Session Decisions

This was an action at the instance of the Edinburgh Street Tramways Company against Alexander Torbain, Leith. The summons concluded for declarator that under the Act 37 and 38 Vict. cap. 68, § 1, the pursuers were entitled to demand and take in respect of passengers carried in or by their cars between Leith and the General Post Office, Edinburgh, and vice versa, a sum not exceeding twopence per mile for first-class passengers; and also for payment of one penny by the defender, as the difference between his payment and the threepence demanded by the Tramways Company as the fare from Leith to the General Post Office.

The pursuers were incorporated by an Act in 1871, and obtained an Act in 1873 giving them a year more to complete some of their lines. In 1874 they obtained another Act (37 and 38 Vict. cap. 68) entituled “An Act to extend the time for the widening and improvement of the North Bridge by the Corporation of Edinburgh, under an agreement confirmed by the Edinburgh Tramways Act 1871, and to authorise the Edinburgh Street Tramways Company to relinquish the construction of certain of their authorised tramways, and for other purposes.” The 4th section of this Act, on which the present action depended, was as follows:—“The Company shall (by themselves or others) if and when required by the Local Authority of Edinburgh, by one month's notice in writing to that effect, provide good and sufficient conveyance by means of omnibuses between such point in Princes Street or Waterloo Place as the Local Authority may from time to time determine, and the bridge across the Water of Leith at Stock-bridge, which omnibuses shall not be run less frequently than four times each way every hour, between the hours of nine in the forenoon and nine in the afternoon of each lawful day; and shall also run omnibuses as aforesaid between the Royal Institution in Princes Street, Edinburgh, or such other place as the Local Authority of Edinburgh may from time to time determine, and such point in the place known as or called

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Trinity, as the Local Authority of Leith may fix, which last-mentioned omnibuses shall not be run less frequently than four times each way every hour, between the hours of nine in the forenoon and nine in the afternoon on each lawful day during the months of June, July, August, and September, and twice every hour between nine in the forenoon and eight in the afternoon each lawful day during the other months of the year, and such omnibuses shall be run in connection with the various systems of tramways of the Company, and in the event of every failure of the Company to comply herewith, they shall be liable to pay, and shall pay on demand, to the Local Authority of the district in which such failure takes place, a sum of £5 sterling for each day during which such failure shall continue, such sum to be recovered by such Local Authority in the same way and manner as debts are recoverable by the laws of Scotland; and it shall be lawful for the said Company to apply its funds from time to time for that purpose, or for purchasing omnibuses, horses, and premises for that purpose, and demand and take in respect of passengers and parcels carried in or by such omnibuses such tolls and charges as they think fit, not exceeding the charges which by the Act of 1871 the Company are entitled to charge in the event of the construction of the tramways to Stockbridge and Trinity, and the Company may charge a sum not exceeding twopence per mile for first-class passengers on those routes and any tramway routes worked in connection therewith, and may also charge a sum not exceeding one penny per mile for parcels by such omnibuses not exceeding 56 lbs. in weight, and for parcels in excess thereof such charges as they may from time to time think fit, provided always that the fares between Stockbridge and Newington by omnibus and car shall not exceed threepence first-class and twopence second-class for each passenger.”

The Tramways Company on 13th December 1874 demanded a fare of threepence on the section of their lines between Leith and the General Post Office Edinburgh, the rate having been previously twopence; and on the 14th December 1874 the defender, who went in one of the cars, refused to pay more than twopence, which sum he tendered and paid to the conductor. The Company maintained that under the Act of 1874 they were bound to run omnibuses to Stockbridge and Trinity, which they were now doing, and that these omnibuses being run in connection with their various systems of tramways, and, inter alia, with the Leith section, they were entitled under the already-quoted section to charge twopence per mile instead of one penny, to which sum under the original Act, § 44, they were expressly limited, and that accordingly they might have asked as much even as fourpence. The defender maintained that the extra charge had reference only to an omnibus journey, or to passengers travelling on a route where both car and omnibus were used, whereas he had not any intention of going either to Stockbridge or Trinity, nor of using any conveyance but the tramway car. The Act of 1874 further expressly provided that nothing therein should prejudice or affect the agreements scheduled to the original Act of 1871, these agreements having reference to the one penny per mile tariff, and having been made with the Tramway Company by the Town Councils of Edinburgh and of Leith.

The pursuers pleaded—“(1) The pursuers being entitled under their said Act of 1874, libelled on, to demand and take the fare set forth in the summons, they are entitled to decree in terms of the first conclusion thereof. (2) The defender being due and resting-owing to the pursuers the sum of one penny, they are entitled to decree therefor, with expenses.”

The defender pleaded—“(1) The pursuers not being entitled under the foresaid Acts of 1871, 1873, and 1874, to charge more than one penny a mile for first-class passengers travelling between Leith and the General Post Office, Edinburgh, except in the case of passengers travelling also on the omnibus route to Stockbridge or Trinity, they are not entitled to decree of declarator in the terms concluded for. (2) The defender not having travelled on the occasion libelled on the route between Princes Street and Stockbridge, or between Royal Institution and Trinity, the pursuers were not entitled to demand or take from him the increased fare authorised by section 4 of the Act of 1874.”

The Lord Ordinary ( Shand) on 18th November 1875 pronounced an interlocutor assoilzing the defender, to which his Lordship added an opinion as follows:—

“This action has been raised to try the question, what sum the pursuers are entitled to charge as a maximum fare to passengers travelling in the tramway cars between Leith and Edinburgh? The pursuers claim right under their statute of last session of Parliament to make a charge of twopence for each mile or part of a mile, while the defender maintains they are not entitled to charge more than one penny a mile or part of a mile. The question is of importance to the pursuers, and to those who are in use to travel by the pursuers' tramway cars; for although the case relates immediately to the route between Edinburgh and Leith, the decision will apparently apply to all the routes on the pursuers' system, excepting only the journey between Stockbridge and Newington.

The judgment, whether for or against the pursuers, depends on the construction to be given to the words occurring in section 4th of the pursuers' last statute, immediately after mention of the routes to Stockbridge and Trinity, viz., ‘and the Company may charge a sum not exceeding twopence per mile for first-class passengers on those routes, and any tramway routes worked in connection therewith.’ The pursuers state that all their tramway routes are now worked, as the statute provided they should be, in connection with the routes to Stockbridge and Trinity, for which a service of omnibuses, not tramway cars, is provided; and they maintain that the copulative word ‘and’ occurring in the sentence ‘those routes and any tramway routes worked in connection therewith,’ is to be interpreted disjunctively, as having the force of the word ‘or,’ thus meaning that the Company by force of the statute may charge a sum of twopence a mile for first-class passengers travelling either on the routes to Stockbridge or Trinity, or on any of the tramway routes used in connection with

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these routes, and practically this includes the whole of the Company's system. The defender, while not disputing that the copulative ‘and’ admits in certain circumstances, and according to the context, of being construed as having the effect disjunctively of the word ‘or,’ denies that it has this exceptional effect here, and maintains that the power given to the Company of charging twopence per mile for what are called first-class passengers is given in the particular case, and limited to the particular case, of persons travelling as through passengers partly by omnibus and, partly by tramway car on the Stockbridge or Trinity routes, and any tramway route in connection with these.

I am of opinion that the defender is right in this construction of the statute. The same question was raised in a case before Sheriff Hallard, sitting in the Small Debt Court, and was the subject of a carefully considered judgment by him; and I concur in the reasons given by him for adopting the view of the statute maintained by the defender.

Before the last Act obtained by the Company it is clear that the highest rate which the pursuers could charge on any part of their extensive system of tramways was one penny per mile—a fraction of a mile beyond a complete mile being regarded as equivalent to a mile. This rate of charge was not only fixed by the statute giving the Company the important concessions they obtained in regard to their occupation and use of the public streets, but was so fixed as having been expressly agreed to in two contracts entered into between them and the Magistrates of Edinburgh and Leith respectively. These bodies refrained from opposing the powers asked by the Company in respect, inter alia, of the agreement that ‘in no case shall the Company demand or take for any passenger travelling upon any or either of the tramways, or any part or parts thereof respectively, tolls or charges exceeding in whole one penny for each mile,’ or fraction of a mile, as before explained. These agreements were confirmed as part of the Act by section 44th, and the maximum rates chargeable applied to the tramway lines which the Company undertook to lay down, leading to Stock-bridge and Trinity in the same way as to all the other routes.

During the last session the Company applied to Parliament to be relieved of their obligations to lay down these particular lines of tramway, and they obtained an Act giving them that relief, but imposing on them an obligation, on the requisition of the Local Authority, to keep up a service of omnibuses to be run frequently to and from Stockbridge and Trinity respectively, ‘in connection with their various systems of tramways.’ It is in the clause imposing this obligation that the words occur which have given rise to the question in dispute.

It is worthy of notice that there is nothing in the preamble of the statute indicative of any intention to give the pursuers power to raise the maximum charges for passengers throughout their system, and thus to abrogate the clauses in the agreements with the Magistrates of Edinburgh and Leith respectively, already referred to, and nothing to suggest that any reason existed for allowing the charges to be increased. The providing of omnibuses for the more immediate benefit of two particular districts in lieu of. the more serious obligation to lay down lines of tramways, which was discharged by the Legislature, does not suggest any good reason for raising the charges to passengers who still continue to use the tramway cars alone, as they did formerly. And in the construction of section 4th of the Act it appears to me to be clear that it is incumbent on the pursuers in these circumstances to shew that the language used unambiguously and beyond all reasonable doubt gives them the power they ask. There is the strongest presumption against the repeal by mere implication of the distinct stipulation as to the charges for passengers contained in the agreements already referred to; and the statute, in so far as its language may be described as ambiguous, is to be construed rather against than in favour of the imposition of higher rates of charge, and against rather than in favour of the Company who obtained it for their own benefit.

Turning to the clause itself, the first thing enacted after imposing on the pursuers the obligation to run omnibuses to Stockbridge and Trinity, is, that the Company may demand and take ‘in respect of, passengers and parcels carried in or by such omnibuses such tolls and charges as they think fit, not exceeding the charges which by the Act of 1871 the Company are entitled to charge in the event of the construction of the tramways to Stockbridge and Trinity.’ This clause and the Act of 1871 together fix two things—(1) that the charges for tramway passengers in any part of the whole system shall not exceed one penny a mile; and (2) that the charges against passengers using the omnibuses alone shall not exceed the same rate. It would be surprising if the very next sentence of the Act undid all this, as the pursuers maintain. The only case which remains unprovided for is that of a through passenger using the combined service of omnibus and car, or car and omnibus, and who may on the whole journey travel a distance not exceeding a mile, and naturally enough the case of through passengers which was now to occur for the first time might be the subject of special enactment. The words are—‘and the Company may charge a sum not exceeding twopence per mile for first-class passengers on these routes and any tramway routes used in connection therewith.’ The words ‘these routes’ plainly refer to the routes on which omnibuses are to run, and the provision appears to me to apply, and to apply only, to passengers using these routes in conjunction with the tramway cars. The word ‘and’ is to be taken in its ordinary sense as used conjunctively. Provision is thus made for rates for through passengers, the only class not already provided for. The reading contended for by the pursuers directly contradicts the words which immediately go before, and practically requires the substitution of the word ‘or’ for ‘and.’ If the section did necessarily involve a contradiction, which on the pursuers' view it does, I should still say I could not give effect to that construction of a contradictory clause which practically destroys the stipulations of the agreements entered into by the pursuers. But there is no such contradiction if the other view, which I hold to be the sound one, be adopted. This view is also borne out by the concluding words of the section,

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which also deal with through passengers ‘by omnibus and car’ in the special case of the journey between Stockbridge and Newington.

It was argued that the reference to ‘first-class passengers,’ made for the first time, aided the pursuers' construction of the Act, but I do not think there is any force in the argument. The use of the words ‘first class’ cannot take away the effect of the previous enactments, that no passengers, either by tramway cars or by omnibus, shall be charged more than one penny a mile. It is not said that any distinction between a first and second class existed in the use of the tramway cars; and looking to the place in which the words occur in the statute, referring, as I think they do, to through passengers in the sense I have explained, it appears to me they must have been used with reference to the difference of charges which commonly exist for outside and inside passengers travelling by omnibus, and which the pursuers say did exist in the omnibuses formerly on the Stockbridge and Trinity routes.

Again, it is said there was no use in the Legislature giving a somewhat higher rate as against a through passenger, for the charge would be avoided by the passenger paying separately; first on his journey by car, and afterwards on the remainder of his journey by omnibus. There may be some truth in this observation, though I do not know how the matter may work where the car rate and the omnibus route each embrace a fraction of a mile. But however this may be, it cannot affect the construction of the Act. If the Company really intended to obtain the very important change on their power of charging for the use of their cars of which they now claim the benefit, and the Legislature meant to give this, it could only be done by distinct and precise language to that effect, and there certainly is not such language in this statute.

Considerable doubt occurred to me as to the jurisdiction of this Court to entertain the action which contains a pecuniary conclusion for one penny, and all the more that the parties have been unable to refer to any reported case of the kind. But the action really is one of declarator to have an important question of legal right tried, and such actions are competent only in this Court. It plainly involves an issue of large pecuniary interest to the pursuers, and it may be also to the defender. In its substance it truly involves a question between the Company and the public, which might properly have been directed against a number of defenders in use to travel by the Company's cars, but which may be conveniently tried in a case against one; and such questions—as, for instance, in regard to rights of way and the like—are proper subjects of trial and decision in this Court.”

The pursuers reclaimed.

At advising—