hat is, sheet No. 1 of the volume entitled "Parliamentary Plan." Now, when we No. 74. come to sheet No. 1 of that volume, which is thus made part of the statute, for he purpose of affording an accurate description of the works to be executed, Feb. 21, 1873. we find this statement :-That there are to be several lines of tramways connect- Black, &c. v. Edinburgh ng the different parts of the city, and the sixth of these lines is a line which Tramways Co. uns from the Edinburgh General Post-Office to Newington. The tramways long that line are called in this part of the Parliamentary plan, and are also alled in the body of the statute itself, No. 6 and No. 6A. No. 6 is the eastern ine of the double line of tramways along the North Bridge, No. 6A is the western ne, here again shewing how distinctly the company are authorised to make ot one line, but two lines of tramways along the whole of the North Bridge. The description proceeds to shew how, after passing the North Bridge, the double ne of tramways is continued along the South Bridge, Nicolson Street, and various ther streets, until it reaches Newington, and then there occurs this passage, hich appears to me to be of vital importance in this question :-"The centre ne of proposed tramway No. 6 will be throughout at the distance of 4 feet 6 ches from and on the left-hand side (proceeding from the commencement to the ermination of the tramway) of the imaginary centre line of each of the streets ad roads through which it is intended to pass, except that from a point one ain north of the north end of the bridge carrying the street or road called the orth Bridge over the North British Railway the centre line of the tramway ill gradually diverge from the said imaginary centre line, until at the north end the said bridge it attains the distance of 8 feet 6 inches from and on the leftand side (proceeding as aforesaid) of the imaginary centre line of the roadway the bridge, and thence to the south end of the said bridge (at a point immeately over the south side of Low Market Street) it will continue at the last-menned distance from and on the left-hand side (proceeding as aforesaid) of the aginary centre line of the said roadway, and thence will again gradually approach til in the length of one chain it reaches the distance of 4 feet 6 inches from and the left-hand side (proceeding as aforesaid) of the imaginary centre line of the eet." And then there is a corresponding description of the western tramway on the same ground, which is called Tramway No. 6A. This is a very minute scription, and it is perhaps clothed in rather too many words. It might be comised in a very small number of words, for it amounts to no more than this, that ch of the two tramways passing along the North Bridge and North Bridge Street to be at its centre 4 feet 6 inches from the centre of the street, except that in 3 open part of the bridge it is to be a great deal further from the centre. At is open point it is to be 8 feet 6 inches from the centre. I have already said at it is needless to deal with that portion of the bridge which is unenclosed houses, because it is not within this case in any form whatever, and therefore only important point here is, that the centre line of No. 6, and equally the tre line of No. 6A, in passing along North Bridge Street, must be 4 feet 6 inches, ither more nor less, from the centre line of the street. Now, that being matter positive enactment, from which the Tramways Company cannot escape, let us what the necessary consequence of this is. It is stated in the 9th article of the adescendence that "the distance between the curb-stone on the west side and the tb-stone on the east side of the North Bridge Street measures only from 31 feet inches at the top to 32 feet 6 inches at the bottom of the said street; and if louble line of rails is laid down in said street, with the usual distance between two inner rails, the space intervening between the outside of the footpath either side of the road and the nearest rail of the tramway will be less than feet and 6 inches." That is admitted. Parties, therefore, are agreed on that; t it is better not to leave a matter of such vital importance in the construction this statute even to the admission of parties, and I therefore proceed to shew at it is certainly the case, and that it is physically impossible otherwise to struct the tramways. The total breadth between the footpath at the narWest part is 31 feet 10 inches, one-half of which is 15 feet 11 inches. One If of the street, therefore, on each side of the imaginary line of the centre is feet 11 inches from the curb-stone. The centre line of each tramway is 4 st 6 inches from the centre line of the street; and must be, as a matter of Feb. 21, 1873. No. 74. statutory enactment. That leaves 11 feet 5 inches of breadth from the centre line of the tramway to the curb-stone. The breadth of the guage of the tramway is fixed by section 25 of the General Act at 4 feet 8 inches. Now, taking one-half of that space, viz.,-2 feet 4 inches from the remaining breadth of 11 feet 5 inches, there remain only 9 feet and of an inch between the outer line of each tramway and the curb-stone. It seems to me, therefore, to be mathematically demonstrable that it is impossible to construct the lines of tramways authorised by this Act of Parliament in such a way as to escape from the result that the space between the outer line of each tramway and the curb-stone shall be less than 9 feet 6 inches. If, again, you take the broad part of the street, where the total breadth is 32 feet 6 inches between the curb-stones, you will find a corresponding result. The distance, then, between the outer line of the tramway and the curb-stone on each side will not be so small as in the former case, but it will still be under 9 feet 6 inches. It seems to me demonstrable, then, that this Act of Parliament has authorised the Tramways Company to make a double line of railway along the North Bridge, and to make it in such a way that in that part of North Bridge Street to which the present complaint refers there must be, throughout the whole of it, a less space between the outer line of each tramway and the curb-stone than 9 feet 6 inches. Now, it is quite possible that, notwithstanding this very distinct authority given t the Tramways Company by their statute, there may be other clauses in the Ad of Parliament which prevent the company from carrying it into execution; and I understand it to be the opinion of your Lordships that the line is authorise to be laid down as it has been laid down, but that, notwithstanding its being authorised to be laid down, it is illegal. That appears to me to be a singula construction of an Act of Parliament; but still it may be so. Some Acts Parliament are very oddly framed, and even self-contradictory; and we must quite sure we have not such an Act of Parliament to deal with here. It is no immaterial to notice, in connection with the authority so given to lay dow tramways, without reference to the 9 feet 6 inches measurement, that there is clause in this special Act which contemplates the construction of tramway within 9 feet 6 inches of the pavement, and provides a remedy, or at least, pr vides for the abatement of any inconvenience thence arising. The 8th secti provides that" where in any road in which a double line of tramway is la there shall be less width between the outside of the footpath on either sided the road and the nearest rail of the tramway than 9 feet 6 inches, the compe shall, and they are hereby required, to construct a passing-place or places, necting the one tramway with the other, and by means of such passing-place places the traffic shall, when necessary, be diverted from the one tramway to other." Now, surely, if there is in this statute, either by incorporation or any other way, a provision that there shall be no tramway within 9 feet 6 inche of the pavement, this was an unnecessary clause. But it was a necessary cla if that authority which I have shewn had been given to the company stands full force, and is not derogated from by any other part of the statute. It is s said that there is anything in the clauses of the special Act itself, or in any the general statutes incorporated with the special Act, that affects this question or that could be construed so as to derogate from the authority given by leading section of the special Act-the fifth section-with the relative Paris mentary plan. But it is said that there are three agreements, which are inc porated with the statute, and which have the effect of introducing into statute a provision that no line of tramways shall be constructed in the complained of in this suspension and interdict. It is needless, as your Lo ships have said, to refer to more than one of these agreements, for they are substantially the same; but it is of some importance probably to observe the present complainers are not parties to any of these agreements. I do mean to say that the complainers or any of the other inhabitants of Edinbur may not be very well entitled to avail themselves of stipulations made on beha of the community by the Provost and Magistrates. But it must be kept mind that they are not parties to this agreement, and at the same time that Provost and Magistrates, as the local authority, are bound by these agreement just as much as the Tramways Company. Now, there is one clause in the agree- No. 74. ment between the Tramways Company and the Magistrates of Edinburgh which appears to me to be of great importance. Under the statute all that was done Feb. 21, 1873 Black, &c. v. was to empower the Tramways Company to make these lines of tramway. Edinburgh Whether they might be compelled to make them we need not consider, but so Tramways Co far as the language of the statute is concerned they were only empowered and not bound to make the lines. But under the second head of this agreement they were bound to make the lines, and they are bound to make them precisely according to the description in the Parliamentary plan. Here is the section: The second party bind and oblige themselves and the said company to proceed immediately after the said bill shall become law to lay down, construct, and work the tramways described in the said bill, and shewn on the Parliamentary plans, from Haymarket to Leith, and from the Edinburgh General Post-Office to Newington," and some others particularly mentioned. Now, here stands an greement which the Lord Provost and Magistrates are entitled to enforce, and which, for all we know, they are prepared to enforce. We must assume that hey are prepared to enforce it, and to compel the Tramways Company to lay down these lines upon the North Bridge and North Bridge Street, according to he Parliamentary plan. And is it to be said that, under an Act of Parliament acorporating this agreement, there is another party who is entitled to interfere nd say,—“that shall not be done." What is the Tramways Company to do in nch circumstances? Are they to fulfil the express terms of their agreement to he local authority--the Provost and Magistrates or are they to comply with at construction of a clause of this agreement which the occupiers of houses in orth Bridge Street are seeking to enforce against them, to prevent them from ing that which the local authority requires them to do? It is a very singular sition if that be the case, and it is about the last conclusion that I should illingly adopt that either the Act of Parliament or an agreement embodied that Act of Parliament should place the promoters of an undertaking in such position that they must do, and at the same time not do, the very thing authoed by the Act of Parliament. But the real question comes to be, whether the st head of the agreement which has been referred to is really susceptible of e construction that has been put upon it. It consists, I think, of two parts; ether it is of any practical force or effect at all. It is of some consequence to stinguish between these two parts. The first is this," The parties hereto of e first part, as the local authority aforesaid, shall have the whole rights, wers, and privileges which the Tramways Act, 1870, or any other general t relating to tramways now in force, or which may hereafter pass during this or y future session of Parliament, confer or may hereafter confer upon the local thority of any district." Does that mean anything, or does it really confer on the local authority, the first party to this agreement, anything that they do t possess without it? They shall have all power which any Act of Parliament given or may give. Is there any virtue in that? If there be, still it was necessary, for it is contained in one of the clauses of the special Act, viz., the th, which provides,-"Nothing herein contained shall be deemed or construed xempt the tramways from the provisions of any general Act relating to tramways w in force, or which may hereafter pass during this or any future session of rliament." It is not very easy to see how people are to be subject to the opeion of a subsequent Act of Parliament, unless that Act of Parllament applies them; and if the Act of Parliament applies to them, the antecedent agreent is unnecessary, so that really the whole of this first half of the first head agreement consists of words without meaning. Now, we proceed to consider second part," And the whole provisions of the said Acts shall apply to Act of Parliament which the said second party is now promoting, or to any t of Parliament which they or the company may hereafter obtain, as fully in ry respect as if the same were a provisional order obtained under the Tramys Act, 1870." Now, I quite agree that before we can make anything of this and part of the agreement we must distinctly understand what is meant by words "obtained under the Tramways Act, 1870." It is said, although it is rather a recent discovery in the arguments, that a provisional order ob No. 74. Edinburgh tained in this way means a provisional order obtained from the Board of Trade but not confirmed by Parliament. The Lord Ordinary is of an opposite opinion Feb. 21, 1873. He holds that it means a provisional order obtained and confirmed by Act o Black, &c. v. Parliament. And the counsel for the complainers, in stating the argument be Tramways Co. fore us, adopted the same construction; but that was withdrawn, and canno now be founded on. But let us consider the question on its merits. If thi special Act of Parliament is to be dealt with as a provisional order "obtained from the Board of Trade, but not confirmed by Parliament, what is the cons quence? The Tramways Company cannot lay down a rail, or use a spade pick to raise a stone of the street. They have no authority whatever, because provisional order, until confirmed by Parliament, is absolutely worthless. No to say that a special Act of Parliament which has passed both Houses of Parli ment, and received the royal assent, is to be in the same position as a p visional order obtained from the Board of Trade, and not confirmed by Parliamen is surely too startling a proposition to receive ready assent. If it is to be provisional order still unconfirmed it surely, at least, must have the right procure confirmation. Now, in what form is Parliament to confirm an A which they have already passed? How is the House of Commons to enterta a bill for the purpose of confirming an Act of Parliament which has already tained the royal assent? These are questions I cannot answer, and it is j because I cannot answer these questions that I am driven to the necessity of hering to the construction adopted by the Lord Ordinary,—that the provision order intended under the first head of this agreement means a provisional or not only obtained from the Board of Trade, but subsequently confirmed by F liament. The object of framing a provisional order by the Board of Trade nothing more nor less than to save the time of Parliament. Instead of b Houses of Parliament appointing committees to consider a bill, the whole thi is done by the Board of Trade putting the matter in the form of a provisio order; and it seems to me a convenient and handy arrangement for the purp of expediting public business. But the Board of Trade has no more right make an Act of Parliament, or to give the authority to make a tramway, t any private person. That department merely prepares materials for Parliame and when the provisional order is framed and adjusted and delivered to the] moters it has to be laid before Parliament, in order that it may be confirmed converted into an Act of Parliament. But when it is converted into an Ad Parliament it is to be read just like any other Act, and therefore, if this cial Act is to be dealt with as a provisional order confirmed by Act of Pa ment I cannot see what benefit any person obtains from that greater than would have in dealing with it as a special Act. In short, in the result, a visional order confirmed, and a special Act, is one and the same thing. somehow or other it is said that a provisional order could not have been tained without having in it the provisions contained in the 9th section of General Tramways Act. Now, that is a very unintelligible proposition to and I cannot see how it is arrived at. The first part of the General Tram Act provides almost exclusively for the way in which provisional orders ar be obtained and carried through, not for the way in which they are to be strued after they are carried through; not for the way in which tramways & be constructed under them; and not for the way in which tramways are to managed after they are constructed,-for the construction of a tramway and mode of management form the subject-matter exclusively of the second third parts of the General Tramways Act; and, accordingly, the second third parts of the General Tramways Act are incorporated by force of that G ral Act itself into every special Act and every provisional order alike. T is, however, no mention of the incorporation of the first part either in a spe Act or provisional order, for this very obvious reason, that the whole functi of the first part of the statute have come to an end when either a special Ac a provisional order has been obtained,—that is to say, obtained in the sens having passed through Parliament. The promoters of the undertaking, w they proceed to apply for a provisional order, are obliged to give notice deposit documents, very much in the same way as if they were applying f 16 No. 74. Edinburgh special Act. The Board of Trade is authorised by the 7th section to consider the application, to make various inquiries, and then, after this inquiry, they are authorised to make a provisional order. Then we are told what that Feb. 21, 1873. provisional order is to contain. It is to contain all provisions necessary to regu- Black, &c. v. late the form, construction, and use of the tramways. In other words, it is just Tramways Co. to contain everything that would be contained in a special Act. And then comes the 9th section :-" Every tramway in a town which is hereafter authorised by provisional order shall be constructed and maintained, as nearly as may be, in the middle of the road; and no tramway shall be authorised by any provisional order to be so laid that for a distance of 30 feet or upwards a less space than 9 feet and 6 inches shall intervene between the outside of the footpath on either side of the road and the nearest rail of the tramway, if one-third of the owners, or one-third of the occupiers, of the houses, shops, or warehouses abutting upon the part of the road where such less space shall intervene as aforesaid shall, in the prescribed manner and at the prescribed time, express their dissent from any tramway being so laid." Now, this is plainly nothing more than a direction to the Board of Trade, just like a standing order of either House of Parliament. It would be just as easily expressed in a standing order that any committee of this House shall authorise," and so forth, and that standing order shall be binding upon the House of Parliament that enacted But when an Act is passed that has received the royal assent, of what ail is a standing order? If this special Act of Parliament had been a proisional order obtained from the Board of Trade, and subsequently confirmed. y Parliament, and contained, as this special Act does, authority to lay down hese rails in the manner objected to, this 9th section could have been of no vail. To shew how completely this portion of the statute deals entirely with bese preliminary proceedings, it may be worth while to shew what follows this th section:-The nature of the traffic has been specified in the provisional rder; then the costs of the order are provided for, and then we come to the elivery of the order by the Board of Trade to the promoters, and the proviion for the publication of that order before it can be confirmed by Parliament; nd then the 14th section provides,-"On proof to the satisfaction of the oard of Trade of the completion of such publication as aforesaid, the Board of rade shall, as soon as they conveniently can after the expiration of seven days om the completion of such publication, procure a bill to be introduced into ther House of Parliament, in relation to any provisional order which shall have een published as aforesaid, not later than the 25th of April in any year, for an et to confirm the provisional order, which shall be set out at length in the chedule to the bill; and until confirmation, with or without amendment, by Act Parliament a provisional order under this Act shall not have any operation." hen it is provided that when a bill is introduced into Parliament it may be rerred to a select committee; but when the bill is once passed then the Act of arliament confirming the provisional order under the Act shall be deemed a iblic general Act. And if this had been a provisional order in its original rm and conception it would now be as much a public general Act of Parliaent as this special Act really is. I think, therefore, that this reference in e first head of the agreement, referred to in the special Act of Parliament, ally gives no aid whatever to the complainers in their present contention. cannot be held absolutely to annul and abrogate the powers which the speal Act contains. Unless it can do that it can be of no avail, for there is irect and express powers to make these two lines of tramway along North ridge Street within a less distance than 9 feet 6 inches of the pavement of ther side; and nothing but an express contradiction or a repeal of that can ssibly take away the power. I am, therefore, constrained, without consideraon of those other matters that have been imported into the discussions, to me to the conclusion that, upon the construction of this Act of Parliament, ese lines of tramways could be constructed in no other manner than they have en constructed, and are authorised to be constructed; and that the Tramways ompany, by their special Act incorporating the agreement with the town of |