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The Railway Companies Incorporation Act

R.S.M. 1990, c. 255

The Railway Companies Incorporation Act

WHEREAS this Act was originally enacted as chapter 170 of the Revised Statutes of Manitoba, 1913;

AND WHEREAS section 4 [re-enacted as section 2] of The Obsolete Enactments Repeal Act, 1938, being chapter 29 of the Statutes of Manitoba 1937-38 reads as follows:

4           The Railway Companies Incorporation Act, being chapter 170 of the Revised Statutes of Manitoba, 1913, is repealed, but notwithstanding such repeal the provisions of sections 10, and 12 to 66 [re-enacted as subsection 1(2) and sections 2 to 56] thereof shall stand good and be read as unrepealed in so far only as they affect any company incorporated thereunder and which at the date of the coming into force of this Act [February 25, 1938] was registered under the provisions of section 383 of The Companies Act.

AND WHEREAS the Minister of Justice has caused those provisions of the Act referred to in Statutes of Manitoba 1937-38, chapter 29, section 4 to be prepared in English and French for re-enactment in accordance with a judgment dated June 13, 1985 and an order dated November 4, 1985 of the Supreme Court of Canada;

THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

Definition

1(1)        In this Act, "Railway Commissioner" means the member of the Executive Council who is designated by the Lieutenant Governor in Council as the Railway Commissioner for the purposes of the Act. (« Commissaire des chemins de fer »).

Application of Railway Act

1(2)        A company incorporated under The Railway Companies Incorporation Act, Revised Statutes of Manitoba, 1913, chapter 170, shall have all the powers, rights and privileges given by and shall be subject to the provisions of The Manitoba Railway Act and all Acts amending the same, as fully and completely as if such company so incorporated had been incorporated by special Act as provided in the said The Manitoba Railway Act.

Provided that, where the provisions of said Act are inconsistent with the provisions of this Act or any amendment thereof, then the provisions of this Act and amendments shall govern in relation to any such company so incorporated thereunder.

Telegraph and telephone lines

2           The company shall have power to construct and operate a line or lines of telegraph and telephone along the line of or in connection with its railway.

DIRECTORS – OFFICERS

Number of directors

3           The number of the directors shall be that fixed by the letters patent of incorporation, unless and until otherwise provided by the by-laws of the company.

Directors, how chosen

4           The said directors shall be chosen by a majority of the votes of shareholders voting at such election, in such manner as may be prescribed by the by-laws of the company and they may and shall continue to be directors until others are elected in their places.

Vote

5           In the election of directors, each shareholder shall be entitled to one vote for each share of stock held by him.

Vacancies in board

6           Vacancies in the board of directors shall be filled in such manner as may be prescribed by the by-law of the company.

Scrutineers

7           The scrutineers of the first election of directors shall be appointed by the board of directors named in the articles of association.

Who eligible for director

8           No person shall be eligible for election as a director, unless he is a shareholder owning stock absolutely in his own right to the value of $1,000. and qualified to vote for directors at the election at which he shall be chosen.

Books and papers at election

9           At every election of directors the books and papers of the company shall be exhibited to the meeting.

Directors to appoint officers

10          The directors shall appoint a president and a vice-president out of their number, and may appoint a treasurer and a secretary, neither of whom shall be a director, and such other officers and agents as shall be prescribed by their by-laws.

Cases unprovided for

11          In cases unprovided for in this Act, the president and directors shall have the powers and duties assigned to each officers by The Manitoba Railway Act.

CAPITAL – SHAREHOLDERS

When directors may open stock books

12          When the articles of association and affidavit are filed and recorded in the Department of the Railway Commissioner as aforesaid, the directors named in the said articles of association may, in case the whole of the capital stock has not before been subscribed, re-open the books for subscription in such places and after giving such notice as they may deem expedient, and may continue to receive subscriptions until the whole capital stock is subscribed.

Amount to be paid at time of subscribing stock

13          At the time of subscription every subscriber shall pay to the directors 5% of the amount subscribed by him, in cash; and no subscription will be received or taken without such payment, and the money so received shall be deposited to the credit of the company in a chartered bank as aforesaid.

Directors may call for payment of stock

14          The directors may require subscribers to the capital stock of the company to pay the amount by them respectively subscribed in such manner and by such instalments as they may deem proper.  Provided that no call exceeding 10% of the subscribed stock shall be made at any time, nor without giving thirty days' notice thereof, and it shall be sufficient that at least thirty days shall elapse between such calls.

Power of board of directors as to persons neglecting to pay said call

15          If any shareholder neglects to pay any instalment as required by resolution of the board of directors, the said board may declare that the stock and all previous payments thereon shall be forfeited to the use of the company; but they shall not declare it so forfeited until they shall have caused a notice in writing to be served on him personally or by depositing the same in the post office, properly enclosed and addressed to him at the post office nearest his usual place of residence, stating that he is required to make

such payment at the time and place specified in the said notice, and that if he fail to make the same, his stock and all previous payments thereon will be forfeited for the use of the company. Such notice shall be served as aforesaid, at least sixty days previous to the date on which payment is required to be made.

Capital stock to be personal estate

16          The capital stock of every company formed under this Act shall be deemed personal estate, and shall be transferable in the manner prescribed by the by-laws of the company; but no shares shall be transferable until all previous calls thereon shall have been fully paid in; and it shall not be lawful for any such company to use any of its funds in the purchase of any stock in its own or in any other corporation.

Company may increase its capital stock

17          If the capital stock of any company formed under this Act be found to be insufficient for constructing and operating its road, the company may, with concurrence of the holders of two-thirds in amount of its stock, increase the capital from time to time to any amount required for the purposes aforesaid.

Increase must be ratified

18          Such increase must be sanctioned by a vote in person or by proxy of the holders of two-thirds in amount of the stock of the company, at a meeting of such stockholders called by the directors of the company for the purpose by a notice in writing to each stockholder, to be served on him personally or by depositing the same in the post office properly enclosed and addressed to him at the post office nearest his usual place of residence at least thirty days previous to the date at which such meeting is to be held; and such notice shall state the time and place of meeting, its object, and the amount by which it is proposed to increase the capital stock of the company.

Entry in minute book

19          The proceedings of such meetings shall be entered in the minute book of the company, and thereupon the capital stock of the company may be increased by the amount sanctioned by the vote of the holders of two-thirds in value of all the stock of the company.

Liability of shareholders

20          Each shareholder of any company formed under this Act shall be individually liable to the creditors of the company in an amount equal to the sum unpaid on the stock held by him for all the debts and liabilities of the company, until the whole amount of the capital stock so held by him shall have been paid to the company; and the shareholders of the company shall be jointly and severally liable for all the debts due or owing to any of its laborers or servants for services performed for such corporation, but shall not be liable to an action therefor before an execution shall have been returned unsatisfied in whole or in part against the corporation, and then the amount due on such execution shall be the amount recoverable, with costs, against such stockholder:  Provided, always, that no shareholder shall be liable for more than the amount of his unpaid stock.

Executor not personally liable

21          No person holding stock in any company as executor, administrator, guardian or trustee, and no person holding such stock as collateral security, shall be personally liable as a shareholder; but the person pledging the stock shall be considered as holding the same and be liable accordingly, and the estates and funds in the hands of such executor, administrator, guardian or trustee shall be liable in like manner and to the same extent as the testator or intestate, or ward or person interested in such trust fund, would be if he were living and competent to act and held the same stock in his own name.

Power to regulate and allot subscriptions

22          The original or the elected directors of the company may in their discretion exclude any one from subscribing for stock in said company, or rescind the subscription and return the deposit of any person, if they be of the opinion that such person would hinder, delay or prevent the company from proceeding with and completing its undertaking under the provisions of this Act; and, if at any time more than the whole stock shall have been subscribed, the said board of directors shall allocate and apportion it amongst the subscribers as they shall deem most advantageous and conducive to the furtherance of the undertaking, and in such allocation the said directors may in their discretion exclude any one or more of the said subscribers if, in their judgment, this will best secure the building of the said railway.

Aliens may be shareholders

23          Aliens and companies incorporated abroad, as well as British subjects and corporations, may be shareholders in the said company; and all such shareholders, whether resident in the Province or elsewhere, shall be entitled to vote their shares equally with British subjects; and aliens and be eligible to be elected directors of the said company.

BONDS – DEBENTURE STOCK

Issuing bonds

24          The directors of the company, after the sanction of the shareholders shall have been first obtained at any special general meeting to be called from time to time for such purpose, shall have power to issue bonds or debenture stock for the purpose of raising money for prosecuting the said undertaking; and such bonds and scrip for debenture stock shall be made and signed by the president or vice-president of the company and countersigned by the secretary and treasurer and under the seal of the company; and such bonds and debenture stock shall, without registration or formal conveyance, be taken and considered to be the first and preferential claims and charges upon the undertaking, and the real property of the company, including the rolling stock and equipments then existing and at any time thereafter acquired, and upon the franchises of the company; and each holder of the said bonds or debenture stock shall be deemed to be a mortgagee and encumbrancer, pro rata with all other holders thereof, upon the undertaking and the property of the company as aforesaid; provided, however,

(a) that the issue of bonds and debenture stock shall not exceed in all the sum of $15,000. per mile; and

(b) that in the event at any time of the interest upon the said bonds and debenture stock remaining unpaid and owing, then at the next ensuing general annual meeting of the company all holders of bonds and debenture stock shall have and possess the same rights and privileges and qualifications for directors and for voting as are attached to share holders, provided that the bonds shall have been first registered, and the debenture stock and any transfers thereof shall have been registered in the same manner as is provided for the registration of shares.

Register of debenture stock

25          Any debenture stock authorized under this Act, which form time to time shall be created, shall be entered by the company in a register, to be kept for that purpose at their head office, wherein they shall enter the names and addresses of the several persons and corporations from time to time entitled to any of such debenture stock, with the respective amounts of the stock to which they are respectively entitled; and the said company may also open registers for the same purpose in Great Britain or any foreign country.

Company to give certificate for debenture stock

26          The company shall deliver to every holder a certificate stating the amount of debenture stock held by him, and all regulations or provisions for the time being applicable to certificates of ordinary shares of the capital of the company and transfer of such shares shall apply mutatis mutandis to certificates and transfers of the debenture stock, subject to the provisions of this Act:  Provided that the company shall not be bound to accept any such transfer, nor shall any such transfer be effectual, unless and until the scrip or certificate before issued for the debenture stock proposed to be transferred be delivered up to be cancelled or such delivery or cancellation dispensed with by the company and a new certificate or certificates issued in lieu thereof.

Debenture stock less than $100.

27          The said debenture stock shall not be transferable in amounts less than $100., and no transfer shall include any fractional part of $100.

Bonds transferable by delivery

28          Any such bonds and the coupons thereof may be made payable to bearer and transferable by delivery, and any holder of any such securities so made payable to bearer may sue at law thereon in his own name.

Secretary to register on request

29          It shall be the duty of the secretary of the company to register any such bonds or debenture stock on being required to do so by any holder thereof, and that notwithstanding that any such bonds may have been already registered by a former holder thereof.

Debenture stock personal estate

30          The said debenture sock and bonds to be issued by the company shall be deemed to be and are hereby declared to be personal estate.

Company may sell or pledge debenture stock

31          The company shall have the right to sell any such debenture stock or bonds at such prices as they may deem expedient, and shall also have the right to mortgage, pledge or hypothecate the same for any advance already made to the company or for any advance of money to be made thereon.

Money so raised to be applied in construction

32          The money to be realized from the sale of or raised by mortgaging, pledging or hypothecating the said debenture stock or bonds shall be applied towards the cost of constructing and equipping the said railway.

To have power to issue debenture stock

33          The company shall have all the powers necessary for the issue of the said debenture stock authorized by this Act and for carrying out the objects of this Act in respect thereof.

TRANSFER REGISTER

Directors may make regulations as to transfers

34          The directors may from time to time make such regulations as they may think fit, for facilitating the transfer and registration of shares of the capital stock and debenture stock and the forms in respect thereof as well in this Province as elsewhere, and as to the closing of the registers and transfer books for the purpose of dividends as they may find expedient, and all such regulations not being inconsistent with this Act, or with The Manitoba Railway Act as altered or modified by this Act, shall be valid and binding.

BILLS AND NOTES

Powers of company as to promissory notes

35          The company shall have power and authority to become parties to promissory notes and bills of exchange in sums not less than $100.; any such not or bill made, accepted or endorsed by the president or vice-president of the company and countersigned by the secretary, and under the authority of a quorum of the directors, shall be binding on the company, and every such promissory note or bill of exchange so made shall be presumed to have been made with proper authority until the contrary be shown; and in no case shall it be necessary to have the seal of the company affixed to such promissory note or bill of exchange,nor shall the president or vice-president or secretary be individually responsible for the same unless the said promissory note or bill of exchange have been issued without the sanction and authority of the directors as herein enacted:  Provided, however, that nothing in this section shall be construed to authorize the company to issue any note or bill payable to bearer or intended to be circulated as money or as the notes or bills of a bank.

LANDS

Power of company

36          The company shall have power and authority

(a) to cause such an examination and survey of the lines of its proposed railway to be made as may be necessary for the best selection of the most advantageous route; and for such purpose, by its officers or agents or servants, to enter upon the lands or waters of any person, but subject to responsibility for all damage that may be done thereto;

(b) to purchase, hold and use such real estate and other property as may be necessary for the construction and maintenance of the railway, or for obtaining ballast or material for embankments, causeways, drains or like works, with proper roadways, or for the construction of highways crossing the same, and for the stations and other accommodations required to accomplish the objects of the company's incorporation, and to alienate such lands acquired by payment or compensation if not longer required for railway purposes;

(c) to lay out its railway line not exceeding 6 rods in width, and to construct the railway, and for the purposes of embankment to take as much more land as may be necessary for the proper construction and security of the railway, and to cut down any standing trees that may be in danger of falling thereon, making compensation therefor as provided in this Act for lands taken for the use of the company;

(d) to take, purchase and hold such land as may be required for the purpose of building thereon elevators, storehouses, warehouses, engine houses and other erections for the uses of the said company, and the same or portions thereof in its discretion to sell convey; and also to make use, for the purposes of the said railway, of the water of any stream or watercourse, at or near which the said railway passes, doing, however, no unnecessary damage thereto, and not impairing the usefulness of such stream or watercourse, provided that, when any line of railway is changed or abandoned, the property covered thereby granted to the company for the purpose thereof shall revert to the then present owner of the property of which it originally formed a part, upon payment to the railway company of the amount which it originally paid for the lands.

Purchasing land

37          Whenever it shall be necessary for the purpose of procuring sufficient land for stations or gravel pits, or for construction, maintaining or using the said railway, or in case, by purchasing the whole of any lot or parcel of land over which the railway is to run, the company can obtain the same at a more reasonable price or to greater advantage than by purchasing the railway line only, the company may purchase, hold, use and enjoy such lands, and also the right of way thereto if the same be separated from its railway, and may sell and convey the same or part thereof from time to time as it may deem expedient.

Snow fences

38          The said company shall have the right, on and after the first day of November in each year, to enter upon any lands of any corporation or person whatsoever lying along the route or line of said railway, and to erect and maintain snow fences thereon, subject to the payment of such damages, if any, as may be thereafter established in the manner provided by law in respect of such railway to have been actually suffered, provided, always, that any such snow fences so erected shall be removed on or before the tenth day of April next following.

Form of conveyance of lands

39          Conveyances of land to the said company for the purpose of and under the powers given by this Act, made in the form set out in the Schedule hereunder written or to the like effect, shall be sufficient conveyances to the said company, its successors and assigns, of the estate or interest of all persons executing the same; and such conveyances shall be registered in such manner and upon such proof of execution as is required under The Registry Act or The Real Property Act as the case may be; and no registrar or district registrar shall be entitled to demand more than 75¢ for registering the same, including all entries and certificates endorsed on the duplicates thereof.

PLANS AND SURVEYS

Plans and levels to be made

40          The company, before constructing any part of its railway, shall make surveys and levels of the lands through which the railway is to pass, and a map or plan and profile of the route intended to be adopted, which shall be certified by the president and the engineer of the company.

Directors may change route

41          The directors of the company, by a vote of two-thirds of their whole number, may change the route of any uncompleted part of its railway, if it shall appear to them that the line can be improved thereby; and in such case they shall make a survey, map and plan, profile and certificate of such alteration or change.

Book of reference

42          The company shall cause a book of reference for the railway, in connection with the map or plan and profile thereof, to be prepared, in which shall be set forth a general description of the lands through which the railway is to pass, a description of each parcel of land required for the purposes of the railway, together with the names of the owners and occupiers thereof, so far as can be ascertained, and also setting forth everything necessary for the right understanding of such map or plan.

Map and book of reference to be certified

43          The map or plan and book of reference shall be severally examined and certified by the Railway Commissioner for Manitoba, and a duplicate thereof so examined and certified shall be deposited in the Department of the Railway Commissioner.

Copies deposited in registry office

44          The company shall be bound to furnish copies of such map or plan, profile and book of reference, or of such parts thereof as relate to each registration district or land titles district in the Province through which the railway is to pass, and to deposit such copies in the offices of the registrars or district registrars for such districts respectively, with the certificate required by The Real Property Act.

Profiles of gauges, etc., subject to approval

45          All profiles and plans showing the gauge and grades, bridging, embankments and, generally, the character of such work shall be subject to the approval of the Lieutenant Governor in Council, and a copy of such profiles and plans shall be deposited in the Department of the Railway Commissioner for Manitoba; and, before any such roads shall be opened to the public for traffic, the Lieutenant Governor in Council shall cause an inspection to be made of such road by a competent engineer, who shall report upon its general fitness and safety; and the Lieutenant Governor in Council may require such modification or improvements as may be deemed necessary to put such a road in a proper and safe condition.

Scale and material of map and certification thereof

46          Every map shall be drawn upon such scale and on such paper as may be designated for that purpose by the Railway Commissioner for Manitoba and shall be certified and signed by the president or engineer of the company; and every profile or plan relating to the construction of the road shall be drawn upon such scale and on such paper as may be from time to time designated for that purpose by the Railway Commissioner for Manitoba, and shall be certified and signed by the president and engineer of the company.

Correction of error

47          Any omission, mis-statement or erroneous description of such lands or of the owners or occupiers thereof, in any map or plan or book of reference, may, after ten day' notice having been given by the company to the owners of such lands, be corrected by the registrar or district registrar within whose district the land in question lies, upon application made to him for that purpose; and if it appears to such registrar or district registrar that such omission, mis-statement or erroneous description arose from mistake, he shall certify the same accordingly, setting forth the facts; and the said certificates shall be kept by him along with the other documents to which it relates, and the said registrar or district registrar shall forthwith advise the Railway Commissioner for Manitoba thereof, setting forth the facts, and thereupon such map or plan or book of reference shall be deemed to be corrected according to such certificate and the company may make the railway in accordance therewith.

Construction not to proceed until plans are deposited

48          Except as hereinafter otherwise provided, until such original map or profile and book of reference and the plans and sections of any proposed alterations have been so deposited, the construction of the railway or such part there as is affected by the alterations, as the case may be, shall not be proceeded with.

Company may make surveys

49          The company may take and make the surveys and levels of the lands through which the said railway is to pass together with the map or plan thereof, and of its course and direction, and of the lands intended to be passed over and taken therefor, so far as then ascertained, and also the book of reference for the railway, and deposit the same as hereinbefore required, by sections or portions less than the length of the whole railway authorized, of such length as the said company may from time to time see fit, so that no one of such sections or portions shall be less than ten miles in length, and upon such deposit as aforesaid of the map or plan and book of reference of any and each of sections or portions of the said railway, all and every of the clauses of the said The Manitoba Railway Act and the amendments thereof, applied to, included in or incorporated with this Act, or otherwise applicable to the said railway company, shall apply and extend to any and each of said sections or portions of the said railway, as fully and effectually as if the surveys and levels had been taken and made of the lands through which the whole of the said railway is to pass, and as if the map or plan of the whole thereof, and of the whole courses and direction of the lands intended to be passed over and taken, and the book of reference for the whole of the said railway, had been taken, made, examined, certified and deposited as hereinbefore required.

Copies of plans

50          The copies of the map or plan and book of reference deposited in the office of the registrars or district registrars, as hereinbefore provided, and copies of the plans and sections of any alterations shall be received and retained by the registrars or district registrars, and shall remain on record in the offices of such registrars or district registrars respectively; and any person may have access to such copies and make extracts or copies thereof as occasion requires, paying to the registrars or district registrars at the rate of ten cents for every hundred words.

Certified copy

51          A copy of any such map or plan, profile or book of reference as in the eleven preceding sections mentioned, or of any alteration or correction thereof as hereinbefore provided, or of any extract therefrom, certified by the Railway Commissioner for Manitoba or by the registrar or district registrar having custody thereof, as the case may be, shall be received in any court, or elsewhere, as evidence of the contents of any such map or plan, profile or book of reference, or of such alteration or correction thereof.

CONSTRUCTION – ARRANGEMENTS WITH OTHER COMPANIES

Time for construction of road

52          Any company formed under this Act, for the construction of a railway of a length not greater than twenty miles, shall construct and put in operation the same within two years from the date of its incorporation; but if the road be of greater length than twenty miles, the company shall put in operation at least twenty miles for each year thereafter; failing which, the corporate existence and powers of such company, save with respect to that portion of the road then constructed, shall absolutely cease and determine.

Contracts for construction

53          It shall be lawful for the directors to enter into a contract or contracts with any individual or association of individuals for the construction or equipment of the line or any portion thereof, including or excluding the purchase of the right of way, and to pay therefor, either in the whole or in part, either in cash or bonds on paid-up stock, provided that no such contract shall be of any force or validity until approved of by two-thirds of the shareholders, present in person or by proxy, at a meeting specially convened for considering the same.

Company may make arrangements for amalgamation

54          The company may make necessary arrangements to contract and agree with any other railway company or companies for amalgamation with such company or companies or for the leasing of their said line or any part or parts thereof to such company or companies, and may also make traffic or running arrangements with such company or companies, provided that the terms of such amalgamation or lease are approved of by two-thirds of the shareholders present or represented by proxy at a special general meeting to be held for that purpose in accordance with this Act; but this section shall not be construed as purporting or intending to confer rights or powers upon any company which is not within the legislative authority of this Province.

Company to have power to collect charges on goods and be subrogated

55          The company shall have power to collect and receive all charges subject to which goods or commodities may come into their possession, and on payment of such back charges, and without any formal transfer, shall have the same lien for the amount thereof upon such goods or commodities as the persons to whom such charges were originally due had upon such goods or commodities while in their possession, and shall be subrogated by such payment to all the rights and remedies of such persons for such charges.

DUTIES OF RAILWAY COMPANIES

Duty of company

56          It shall be the duty of the company,

(a) to take and convey passengers and goods on the railway, receiving tolls or compensation therefor;

(b) to erect and maintain all necessary and convenient buildings, stations, fixtures and machinery for the accommodation and use of passengers, goods and general business;

(c) to cause to be carried on each passenger train placards, bearing in conspicuous letters the names of the several stations of the railway; and immediately after leaving a station, the conductor or brakesman shall put up in the forward end of each passenger car, except sleeping or saloon cars, the placard showing the name of the next station at which the train will stop; on arriving at such station such placard shall be removed, and, immediately after leaving, that for the next station put up, and so on successively the entire length of the railway; and any company failing or neglecting to indicate as above to passengers the name of the station next to be arrived at shall for such instance of failure or neglect, incur a penalty of five dollars, recoverable in Her Majesty's name in any court having jurisdiction;

(d) to regulate the time and manner of moving passengers and goods over the railway, and to furnish such regulations and all changes made therein for the information of the public;

(d) to use every means within their power to ensure the safety and comfort of persons travelling by railway

(f) to make an annual report to the Railway Commissioner of Manitoba of the operations of the year ending on the thirty-first day of December in each year, which report shall be verified by the oath of the president and superintendent or managing director of the company, and shall be filed in the Department of the said Commissioner by the first day of February following.