particular case is incidental to or consequential upon or reasonably necessary for effectuating the main purpose which the statute defines?

The learned judge below has dealt with this case as if the decision of this court and of the House of Lords in the Attorney-General v. London County Council (1) concluded it. In that case, as it appears to me, two matters came in question, and upon the decision of these the case turned. They were, first, the true construction of s. 2 of the London County Tramways Act, 1896, (59 and 60 Vict., c. li.) and, secondly, whether the omnibus business there carried on was a separate business or was one incidental or ancillary to the tramway business. Upon the former of these it was held that the London County Council could only purchase tramway undertakings as contrasted with omnibus undertakings. The vendor to the London County Council owned both a tramway undertaking and an omnibus undertaking. The good will of the omnibus undertaking was excluded from the sale. The first point was that, as a matter of construction of the act, the London County Council was excluded from the omnibus business. "The power" (said Lord Halsbury) "which is expressly given to the London County Council excludes from them, and to my mind is intended to exclude from them, that which did exist as a separate business under the earlier statute, and which was not intended, and obviously was not intended, to be conferred upon the London County Council." Rigby, L. J., in this court, had said: "If the intention was, and if Parliament was disposed to accede to it, that the County Council should take over and work the whole of the company's undertaking, including both branches, namely, the tramway branch and the omnibus branch, it would have been easy to say so in section 2 of the London County Tramways Act, 1896. Nothing of the sort is said, and it is admitted that there is nothing in the section which clearly and specifically refers to a transfer of the whole undertaking and power to run both tramways and omnibuses." Vaughan Williams, L. J., pointed to the same consideration, and in the court below Cozens-Hardy, J., had emphasized the same point. The second question was a question of fact, namely, whether the omnibus business was a separate business. It was held that it was. If this be the true effect of that case, it, of course, does not relieve me from investigating whether upon the state of facts in this case the business is really a separate business or is only one incidental to the main business. From the fact that it was a separate business there it does not follow that it is a separate business here.

Let me first see as a general question whether the ownership and running of omnibuses for the convenience of passengers can be said to be without qualification ultra vires of this railway company. The order below has affirmed that it is. The order declares that it is beyond the powers of the defendant company to run or work omnibuses for the purpose of carrying passengers in any of the streets within the borough of Birkenhead. This would preclude the de(1)-(1902) App. Cas. 165.

fendant company from supplying for the use of passengers a private omnibus hired by the passenger to take him from or to the station. Nobody has advanced that as a proposition which can be supported. In my opinion it is impossible to support it. A reasonable service to be rendered to the passenger to enable him to make his journey complete is no more as a general proposition ultra vires than is the service of a porter to wheel his luggage to a cab or according to circumstances, say, at Crianlarich, on the West Highland Railway, to the neighbouring station of another railway. The order below is, at any rate, too wide.

Then, secondly, if railway companies may own and run omnibuses for some purposes, may they bona fide run omnibuses which are not let to a single particular hirer, but which stand at the station to take up passengers at separate fares and convey them by a definite route at any point of which the passenger may alight? I can not see how this in principle differs from the first case. There is no magic in a single hirer as distinguished from several passengers at separate fares. The omnibus in that case would, I think, be a facility offered to passengers, and the act would be one reasonably to be done for effectuating the purpose of developing the traffic of the railway.

Thirdly, suppose the omnibus is traveling to the station as an omnibus available to take passengers at separate fares. In such case, there is an obvious difficulty in knowing whether the passenger who hails the omnibus is going to the station or not. If the omnibus be really run as an omnibus to the station, it does not, I think, lose that character by reason of the fact that persons may claim to be passengers in the omnibus who turn out afterwards not to be passengers on the railway.

Lastly, suppose that the omnibus which starts from the station takes up passengers in the streets on its journey, does this make the running of the omnibus ultra vires? This is, I think, a question of degree. If I arrive at the conclusion that as a matter of fact the service of the omnibus is bona fide supplied for the use of persons. who have been or who are going to be passengers on the railway, its employment does not become ultra vires because in use as a commercial matter passengers are not refused whose conveyance will add something to the profits or diminish something of the loss upon the working of the omnibuses.

A good deal of discussion has taken place as to whether the company can obtain the license of the corporation to run omnibuses except upon the terms that they shall be bound to take any person on their route who wishes to be a passenger and pays his fare. I think it unnecessary to form any concluded opinion as to whether this is an obligation or not. If it be an obligation so that they can not run omnibuses bona fide for the purposes of their railway without performing it, then I think it can not render the act ultra vires if they submit to that necessity when, as I find to be the fact, this will be only an adventitious and not a principal service. If, on the other hand, they are not bound to come under the obligation, I

think, as above stated, that if the omnibus is really for the purposes of the railway, the act does not become ultra vires by their taking to a reasonable extent extraneous traffic which adds something to the commercial prosperity of the undertaking. Upon the authorities a corporation may reasonably use its property in such a manner for purposes not forming part of its main purpose. I may mention by way of illustration, taking them in order of date, Simpson v. Westminster Palace Hotel Co., where a portion of the hotel in the course of being built was let off for a time for a government department; Forrest v. Manchester, Sheffield & Lincolnshire Ry. Co., where steam vessels, kept for the purposes of a ferry, were employed, when not wanted for that purpose, for excursion trips on the sea; London & Northwestern Ry. Co. v. Price & Son, where the railway company allowed its weighing machine to be used for hire for weighing some one else's coals; and Foster v. London, Chatham & Dover Ry. Co., where a railway company let its arches for shops.

In my judgment, therefore, the decision of the present case must be simply a decision of this question of fact, Are the defendants really running the omnibuses here in question for the purpose of their railway and so as to obtain and give facilities for better traffic over their line, or is the omnibus business really an independent business. in which they look substantially to general street traffic? Upon this question of fact the decision of London County Council v. AttorneyGeneral is not conclusive nor even necessarily applicable. My great difficulty in the matter arises from the fact that the evidence is so exceedingly meager. The material facts, so far as I know them, are these: That the railway company is one whose undertaking is substantially a short line running under the Mersey between Birkenhead and Liverpool, and its service of trains is a service at six-minute intervals, that the omnibuses in question are also run at six-minute. intervals so as to connect with the trains, that they run exclusively from and to the central station, that on the omnibuses appears prominently the statement that the omnibus runs to and from the Mersey railway station, that the service ceases in the evening about 7:30 or 8:00 o'clock, when the Birkenhead residents, for whom the service is especially intended, have mostly returned to their homes-a fact. which seems to indicate that the defendants do not lay themselves out for general street traffic, such as traffic to the theaters or the like. To the above facts I add that the interest of the defendants is to prefer such persons as have been or are going to be passengers on their line, and, so far as they have any power of selection, their interest must be to take such members of the public as are, rather than those that are not, going to travel on the railway. To the above I add this fact, that the plaintiffs and relators in the action, the corporation of Birkenhead, are the owners of a rival means of crossing the Mersey, viz., a ferry, and are the owners of a system of tramways which are convenient for that ferry and not convenient for the defendants' railway. In the circumstances it was in my judgment a reasonable course that the defendants should seek to

obtain their proper share of the traffic by giving facilities for reaching their railway, having regard to the facilities which the corporation enjoyed for attracting the traffic to the corporation's ferry. On the other side I have the fact that there are fares charged in two cases between points neither one of which is the central station. Upon these facts I arrive at the conclusion of fact that the defendant did really bona fide establish this system of omnibuses for the purpose of obtaining traffic on their railways; that the omnibuses are, so far as the defendants can insure it, intended to be incidental to their railway and are reasonably wanted to effectuate the purpose of bringing to their railway the traffic or a fair proportion of the traffic. Thus answered the question is resolved in favor of the defendants.

The defendants are prepared to abandon the separate fares for persons traveling between points neither of which is the central station, which I will call outlying fares, and to give an undertaking that they will in future make all fares charged upon their omnibuses fares to or from some one of their stations, to the exclusion of fares to or from places neither one of which is such a station. This undertaking removes one matter which rather pressed upon the court, viz., that the railway company might by these outlying fares be holding themselves out as seeking general street traffic, and another matter, viz., that if passengers at these outlying fares became proportionately numerous, a business which I think at present intra vires might develop into one which would be ultra vires. Upon this undertaking being given, I think the injunction granted below should be discharged.

VAUGHAN WILLIAMS, L. J.-I want to say this in respect of the judgment which I have delivered. There are a few words which I should like to add, and I have asked Buckley, L. J., whether he sees any objection, because in a sense they refer to a matter referred to in his judgment, and he says he has no objection to my adding these words to my judgment to put it right. That is this: You ought to give a wider construction to the words of a memorandum of association creating and defining the powers of a purely commercial company having no compulsory powers and no monopoly than you would give to the words of a statute creating a company, like the railway company, having compulsory powers of land purchase and a practical monopoly.

December 14. After some discussion the court made the following order (BUCKLEY, L. J., dissenting as to the costs) :

The defendants undertaking (1) to run their omnibuses to or from a railway station upon their line and in connection with trains upon their railway, and not otherwise, and to so advertise their omnibus service, and not to advertise or hold themselves out as carrying on a general omnibus business or as carriers of passengers in their omnibuses otherwise than to or from one of their railway stations; (2) to make all fares charged in respect of their omnibus service fares to or from some one of their stations, and not to make or charge any separate fare between places neither of which is such a station; (3) to run their omnibus service as a service for railway

passengers, and as far as reasonably practicable to confine their service to passengers to or from some one of their stations, discharged the injunction, but without disturbing the order of the court below as to costs. No order as to the costs of the appeal.

From the above order the attorney-general appealed to the House of Lords.

LORD LOREBURN, L. C.-My Lords, in this case the question is whether a railway company is entitled to run a number of omnibuses which it says are incidental to the railway enterprise itself. The rule of law has been laid down in this House to the effect that it must be shewn that the business can fairly be regarded as incidental to or consequential upon the use of the statutory powers; and it is a question in each case whether it is so, or whether it is not so. In the present instance I do not think that this business of running an omnibus system can be regarded incidental to or consequential upon the statutory enterprise. It seems to me that in substance it was an undertaking for the purpose of enabling the railway company successfully to compete with the ferry which belonged to others.

It is unnecessary to elaborate the distinctions between this and other cases that have been quoted because I do not believe that much assistance is derived by reasoning from analogy when the question at issue is in substance either a question of fact or at least a mixed question of fact and law. I agree with the judgment given by Warrington, J., who granted an injunction. The Court of Appeal have limited the injunction, or, what is the same thing, have refused the injunction, but required an undertaking. In my view that undertaking is one which could not be carried out in a business sense; and I think it involves the admission that, under restrictions such as are included in the undertaking, this business would be intra vires. I am of opinion that the order appealed from should be reversed.

LORD MACNAGHTEN.- * * * The principle to be applied is perfectly clear. The difficulty is all in the application. Hundreds of cases may be suggested where the thing done comes very near the line and may fairly be open to a difference of opinion. Speaking for myself, I can not see what is to be gained by discussing such cases, real or imaginary, however interesting the discussion may be. Here, I think, the respondents have transgressed the line. It may be that in doing what they wish to do they can not help it. But that, in my opinion, is no justification for their action. If they wish to extend their undertaking beyond the limits authorized by their charter, the proper course is to apply to Parliament for further

powers.

LORD JAMES, of Hereford.-My Lords, I desire to add a few observations. It seems to me that we have to look at the state of circumstances that existed upon December 23, 1905, when the relators instituted this action, and to determine whether at that time the allegation which was made that the defendants carried on the business of omnibus proprietors and ran, plied for hire, or worked the omnibuses for the purpose of carrying passengers in the streets of Birkenhead, was or was not proved. Whatever has occurred