of the railway companies, under the compulsion of an Order in Council of the Railway Committee of the Privy Council, and the pleadings were amended in order to raise the question thus presented.

In the amended claim the contention of the plaintiffs is thus stated:

(8 c.) The plaintiffs allege that the true effect of the said agreement between the railway companies and the village of Parkdale, and of the contract entered into by them for the construction of said subway, is, that the said subway is being constructed by the last-named defendants, and not by the railway companies; and that the said defendants. are liable to the plaintiffs for the injuries and wrongs complained of.

(8 d.) The plaintiffs further allege that even if the said Railway Committee required or authorized the construction of said subway, which the plaintiffs deny, that said Committee has no power to do so; and that even if so required and authorized, the said railway companies did not take the necessary steps, under the statutes in that behalf, prior to the commencement of the work, and did not file in the proper office in that behalf the necessary plans and book of reference; and the plaintiffs submit that the said defendants, Parkdale, cannot shield themselves from their responsibility in the premises by any order or requirements of the said Railway Committee, or by any rights which may be possessed by the said railway companies.

(8 e.) The plaintiffs submit that the only authority under which the defendants, Parkdale, can legally construct said subway is the statute of Ontario above referred to; and if it should be held by this Honorable Court that the defendants are authorized by said statute to construct the same, and that their action in the premises is legal, and the plaintiffs are entitled to compensation, to be fixed by arbitration pursuant to the provisions of the municipal acts, the plaintiffs submit that the defendants, Parkdale, should be ordered to pass the necessary by-laws and take the proceedings connected with such arbitration, 51-VOL. XII A.R.

the plaintiffs offering, on their part, to take such proceedings.

(11 a.) The plaintiffs claim a mandamus ordering the defendants, Parkdale, to proceed to arbitration in the event above referred to in clause 8 e.

(11 b.) The plaintiffs claim such further and other relief as the nature of the case may require.

The claim of the plaintiffs, therefore, treats the village of Parkdale as tort feasors, and claims as a further but somewhat inconsistent measure of relief that they should be compelled under the Ontario statute to pass a by-law and seeks a mandamus to compel them to proceed to arbitration.

The Divisional Court have held the defendants liable as trespassers and that the plaintiffs are entitled to recover damages for the wrongful acts complained of, the learned Chancellor holding, as I understand the judgment, that a municipal corporation, being incorporated for certain specified objects, cannot act as the representatives of the railway companies whose powers are also of a limited. character, and also that whatever rights the railway companies might possess under the railway act or the order in Council they had no power to delegate them to a municipal body.

My brother Proudfoot proceeds on the same ground, but he seems to question the position that to make the corporation liable for the acts of its governing body it must be for something within the scope of its authority, and refers to several cases against railway corporations as deciding that the corporations were there made liable as trespassers for acts which could scarcely be considered as within the scope of any authority for which they were incorporated, but I think it will be found, on reference to the cases cited, that the trespasses for which the companies were made liable were acts committed by their servants for the benefit of the company in the management of the business of the company, for which they were incorporated. Such are Eastern Counties Railway v. Broom, 6 Ex. 314; Edward v. The Midland R. W. Co., 6 Q. B. D.

287, and in the other case of Whitfield v. S. E. Railway, E. B. & E. 115, the question came up upon demurrer, the effect of the demurrer being to admit that if a corporation could by possibility be guilty of publishing a malicious libel they were, and counsel were driven, as it is put by one of the judges, to contend that if the whole of the shareholders had met and unanimously ordered, under seal if necessary, that matters injurious to a rival in trade. should be published in order to injure him, no action would lie. See, however, such cases as Allen v. The London & South-Western R. W. Co., L. R. 6 Q. B. 65; Poulton v. The London & South-Western R. W. Co., L. R. 2 Q. B. 534; Edwards v. London & North-Western R. W. Co., L. R. 5 C. P. 445, in which the defendants were not liable, because the acts done were not within the scope of the authority of the agent.

But my brother Proudfoot concurs in holding the municipality liable, for he says: "Assuming it to be necessary to shew the act to be within the scope of their authority, it is shewn here, for by taking the proper steps under the special Act they might have executed the work in question; not having done so, they are trespassers, but within the scope of their authority, and are therefore liable."

I do not propose to discuss the question of whether the village of Parkdale alone had the power under the special act of Ontario to do the work. It is sufficient for the purpose of the present case to say that it was not acting under that authority, and there was nothing in the act rendering it compulsory for the village to act upon it.

The corporation do not claim the benefit of that statute, and it cannot be forced upon them; if therefore they were not warranted in acting as the agents of the railways they were assuming to do something in this case which was wholly outside of their powers.

If the council had actually passed a by-law under their general powers as a municipal body authorizing the doing of the work in question, the property affected and the work done being both beyond the territorial limits of the

municipality, I cannot see how any action would have been maintainable against the corporation.

The council here were not professing to act under the recent statute; rightly or wrongly they believed that they had no power to invoke its aid unless the city of Toronto united with them. What they intended to do was to act as the agents of the railways in carrying into effect the powers they were supposed to have under the railway act, and which they were ordered to exercise under the Order in Council.

There can be no room for any difference of opinion as to the responsibility of a municipal corporation where such corporation is exercising powers conferred upon it, or in the performance of duties required of it by law and its servants or agents perform these duties negligently so as to cause damage to others; but where the council of a. corporation professing to act under the authority of the corporation, does acts which are injurious to others, if the objects and purposes which they propose to accomplish are not within the scope of the corporate duty imposed upon it by law, the corporation is not liable.

Were it otherwise, as remarked by Chief Justice Shaw, in an American case, municipal corporations might be rendered responsible upon implied liabilities in cases where they could not bind themselves as a corporation by an express vote of the inhabitants.

The learned judges below, however, seemed to hold that as there was an act of parliament under which they might have placed themselves in a position legally to do these works, they must be held liable. I must respect-fully dissent from that view of the law, even if I felt. clearer than I do at present, that the council of Parkdale could alone and without the city of Toronto bring into operation the powers conferred upon them by the special

act.

If the council could not act as the agents of the railway companies, it may be that the persons actually doing the work would be left without any justification, but it does.

not to my mind follow that the ratepayers could be made responsible for the acts of the council in such a case, although they are the representatives of the ratepayers and authorized to act for them in matters within their jurisdiction.

If the ratepayers could not by a unanimous vote have authorized the act, it is difficult to see how they could be made responsible for an act done by the council, not in the exercise of its powers, but as the agents of the railway companies.

This would, I think, be sufficient to dispose of West's case, whose property and the acts of which he complains. were both without the territorial limits of the municipality of Parkdale; but as in the other case, Carroll against the same defendants, the property injuriously affected lies within the limits of the municipality, I will deal with the whole question in this case.

It is urged that the municipal body had a general power to lower the grade of that portion of the street lying within its limits, and that as they might,after taking the proper steps, have exercised this power, the act actually done cannot be treated as altogether ultra vires.

It may be that if the council authorized the lowering of the grade of a street otherwise than by by-law, the municipal corporation might be left without any justification, as they have no power to do the act complained of under the general law, but may be authorized to do so by a bylaw duly passed for the purpose; the person actually doing the work and the members of the council would be liable, and probably without any means of procuring reimbursement from the corporation, but I think the answer is that the governing body did not assume to authorize the lowering of the grade of the street. What they did assume to do was to undertake the letting out and superintending the construction of a subway, one entire work partly within and partly without their limits, as the agents of the railway companies.

Their agreement with the railway companies shews that