R.S.M. 1990, c. 241
The Manitoba Railway Act
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WHEREAS this Act was originally enacted as chapter 168 of the Revised Statutes of Manitoba, 1913;
The Manitoba Railway Act, being chapter 168 of the Revised Statutes of Manitoba, 1913, is repealed, but notwithstanding such repeal the provisions of sections 2 to 14, 16 to 25, 42 to 102, 115A to 116, 124 to 128 [re-enacted as subsection 1(1) and sections 2 to 92] thereof shall stand good and be read and construed as unrepealed in any case where by the provisions of section 4 [re-enacted as section 3] of The Manitoba Railway Act, or by the provisions of any other Act, they are incorporated in any Act of the Legislature incorporating a railway company, or are made applicable to any railway company incorporated by or under any Act of the Legislature.
AND WHEREAS the Minister of Justice has caused those provisions of the Act referred to in Statute of Manitoba 1937-38, chapter 29, section 2 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:
In this Act, unless the context otherwise requires,
(a) the expression "the special Act" means any Act authorizing the construction of a railway and with which this Act is incorporated, and includes The Railway Companies Incorporation Act;
(b) the expression "prescribed," used in this Act in reference to any matter herein stated, refers to such matter as the same is prescribed or provided for in the special Act; and the sentence in which such word occurs shall be construed as if, instead of the expression "prescribed," the expression "prescribed for that purpose in the special Act" had been used;
(c) the expression "lands" means the lands which by the special Act are authorized to be taken or used for the purpose thereof;
(d) the expression "the undertaking" means the railway and works, of whatever description, by the special Act authorized to be executed;
In this Act,
"Public Utility Commissioner" means The Public Utilities Board continued under The Public Utilities Board Act; (« Commissaire des services publics »)
"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 this Act. (« Commissaire des chemins de fer »)
The following words and expressions, both in this and the special Act, shall have the meanings hereby assigned to them, unless there be something in the subject or context repugnant to such a construction, that is to say,
(a) the expression "lands" includes all real estate, messuages, lands, tenements and hereditaments of any tenure;
(b) the expression "lease" includes any agreement for a lease;
(c) the expression "toll" includes any rate or charge or other payment payable under this Act or the special Act for any passenger, animal, carriage, goods, merchandise, articles, matters or things conveyed on the railway;
(d) the expression "goods" shall include things of every kind conveyed upon the railway or upon steam or other vessels connected therewith;
(e) the expression "highways" shall mean all public roads, streets, lanes and other public ways and communications;
(f) the expression "justice" shall mean justice of the peace acting for the district, riding, division, city or place where the matter requiring the cognizance of a justice arises, and who is not interested in the matter; and where the matter arises in respect of lands being the property of one and the same party, situate not wholly in any one district, riding, division, city or place, the expression "justice" shall mean a justice acting for the district, riding, division, city or place, where any part of said lands are situate, and who is not interested in such matter;
(g) the expression "owner" (where under the provisions of this Act or the special Act any notice is required to be given to the owner of any lands, or where any act is authorized or required to be done with the consent of any such owner) shall be understood to mean any corporation or person who, under the provisions of this Act, or the special Act, or any Act incorporated therewith, would be enabled to sell and convey lands to the company;
(h) the expression "the company" shall mean the company or party authorized by the special Act to construct the railway;
(i) the expression "the railway" shall mean the railway and works by the special Act authorized to be constructed;
(j) the expression "shareholder" shall mean a subscriber to or holder of stock in the undertaking, and shall extend to an include the personal representatives of the shareholder.
APPLICATION OF THIS AND OTHER ACTS
Where not otherwise expressed, this Act shall apply to every railway which is subject to the legislative authority of the Legislature of this Province, or is authorized to be constructed by any special Act passed after February 2, 1914 or since the twenty-fifth day of May, 1881, and this Act shall be incorporated with every such special Act; and all the sections and provisions of this Act, unless they are expressly varied or excepted by any such special Act, shall apply to the undertaking authorized thereby, so far as applicable to the undertaking, and shall, as well as the sections and provisions of every other Act incorporated with such special Act, form part of said special Act, and be construed together therewith as forming one Act.
Every special railway Act shall be a public Act, and for the purpose of incorporating this Act or any of its provisions with a special Act, it shall be sufficient in such Act to enact that the sections of this Act, with respect to the matter so proposed to be incorporated referring to the same in the word or words at the head of and introductory to the enactment with respect to such matter, shall be incorporated with such special Act, and thereupon all sections and provisions of this Act, with respect to the matter so incorporated, shall, save in so far as they are expressly varied or excepted by such special Act, form part thereof; and such special Act shall be construed as if the substance of such sections and provisions were set forth therein with reference to the matter to which such special Act relates.
The power given by the special Act to construct the railway, and to take and use lands for that purpose, shall be exercised subject to the provisions and restrictions contained in this Act and in The Expropriation Act.
For the value of lands taken, and for all damages to lands injuriously affected by the construction of the railway in the exercise of the powers by this or the special Act, or any Act incorporated therewith, vested in the company, compensation shall be made to the owners and occupiers of, and to all other persons interested in, any lands so taken or injuriously affected.
Unless otherwise specially provided, the sections of The Expropriation Act respecting the offer of compensation, the notice of intention to arbitrate, the surveyor's certificate accompanying such notices, the appointment, qualifications, powers and duties of arbitrators, the proceedings upon the arbitration, the revocation of notice, the award and its effect, the costs of arbitration, appeals from awards, the payment into court of the amount of the award, the powers of the judge and of the Court of Queen's Bench with reference to the award and to the compensation and the distribution of the compensation shall be deemed to be incorporated mutatis mutandis with this Act and the special Act so far as not inconsistent therewith; and the amount of such compensation shall be ascertained and
determined in the manner provided by The Expropriation Act; and the word "compensation" in such sections shall be deemed to include "rent," where the same may be given as compensation; and the words "Government" and "Minister" in said sections mean "company" for the purposes of this Act; save that the power of the company to take or interfere with the property of others without the consent of the owner is not be beyond that given by this Act or the special Act, and that this Act, unless otherwise provided by the special Act, determines the time of the vesting in the company of expropriated property.
POWERS OF COMPANY
Every company established under any special Act shall be a body corporate under the name declared in the special Act, and shall be invested with all such powers, privileges and immunities as are necessary to carry into effect the intentions and objects of this Act and of the special Act therefor, and are incident to such corporations, or as are expressed or included in The Interpretation Act.
No railway company, heretofore or hereafter authorized to construct a railway, shall take possession of, use or occupy any lands vested in the Province without the consent of the Lieutenant Governor in Council; but with such consent any such company may take and appropriate for the use of its railways and works, but not alienate, so much of the wild lands of the Province lying on the route of the railway as have not been granted or sold, and as may be necessary for such railway, as also so much of the public beach or of the land covered with the waters of any lake, river, stream or canal, or of their respective beds, as is necessary for making and completing and using the said railway and works, subject, however, to the exceptions contained in the following section.
Whenever it is necessary for the company to occupy any part of the lands belonging to Her Majesty reserved for naval or military purposes, it shall first apply for and obtain the license or consent of Her Majesty through the proper officer of Department of the Crown or of the Government of Canada; and, having obtained such license and consent, the company may at any time or times enter into and enjoy any of the said lands for the purposes of the railway.
The company shall also have power and authority,
(a) to make, carry or place the railway across or upon the lands of any corporation or person on the line of the railway;
(b) to construct, maintain and work the railway across, along or upon any stream of water, water course, canal, highway or railway which it intersects or touches; but the stream, water course highway, canal or railway (subject to the authority of the Legislature of this Province), so intersected or touched, shall be restored by the company to its former state, or to such state as not to impair its usefulness; but this shall not authorize the obstruction of the navigation of any navigable water;
(c) to make, complete, alter and keep in repair the railway with one or more sets of rails or tracks, to be worked by the force and power of steam, or of the atmosphere, or of animals, or by mechanical power, or by any combination of them;
(d) to erect and maintain all necessary and convenient buildings, stations, depots, wharves and fixtures, and from time to time to alter, repair or enlarge the same, and to purchase and acquire stationary or locomotive engines and carriages, wagons, floats and other machinery and contrivances necessary for the accommodation and use of the passengers, freight and business of the railway, and to run boats and vessels propelled by steam or otherwise on any lake, stream or waterway for the purpose of carrying freight or passengers in connection with the said railway;
(e) to make branch railways, if required and provided by the special Act, and to manage the same; and for that purpose to exercise all the powers, privileges and authorities necessary therefor, in as full and ample a manner as for a railway;
(f) to construct, erect and make all other matters and things necessary and convenient for the making, extending and using of the railway, in pursuance of and according to the meaning and intent of this Act and of the special Act;
(g) to take, transport, carry and convey persons and goods on the railway, to regulate the time and manner in which the same shall be transported and the tolls and compensation to be paid therefor, and to receive such tolls and compensation;
(h) to borrow from time to time, either in this Province or elsewhere, such sums of money as may be expedient for completing, maintaining and working the railway, and at a rate of interest authorized by the laws of Canada, but not exceeding eight per centum per annum, and to make the bonds, debentures or other securities, granted for the sums so borrowed, payable either in currency or in sterling money, and at such place or places, within or without this Province, as may be deemed advisable, and to sell the same at such prices or discount as may be deemed expedient or be necessary, and to hypothecate, mortgage or pledge the lands, tolls, revenues and other property of the company for the due payment of the said sums and interest thereon;
(i) to enter into and upon any lands of any corporation or person whatsoever lying in the intended route or line of railway;
(j) to make surveys, examinations or other arrangements on such lands, necessary for fixing the site of the railway, and to set out and ascertain such parts of the lands as are necessary and proper for the railway;
(k) to fell or remove any trees standing in any woods, lands or forests where the railway passes, to the distance of six rods from either side thereof;
(l) subject to the provisions hereinafter contained to cross, intersect, join and unite the railway with any other railway at any point on its route, and upon the lands of the owners of or used in connection with such other railway, with the necessary conveniences for the purpose of such connection; and the owners of both railways may unite in forming such intersection and grant the facilities therefor;
(m) on and after the first day of December in each year to enter into and upon any lands of Her Majesty, held in the right of the Province of Manitoba, or of any person or corporation, lying along the route or line of the railway, and to erect and maintain snow fences thereon, subject to the payment of such damages, if any, as are thereafter established, in the manner provided by law with respect to lands taken or injuriously affected by a railway company, to have been actually suffered; but every snow fence so erected shall be removed on or before the first day of April then next following.
Any railway company heretofore or hereafter incorporated may construct a branch or branches, not exceeding ten miles in length, from any terminus or station of the railway of such company, whenever a by-law sanctioning the same has been passed by the municipal council of the municipality within the limits of which such proposed branch is situate; and for the purpose of building said branch the company shall have the same rights, powers and authorities as if the same were part of the main line.
Any railway company heretofore or hereafter incorporated, which desires at any time to change the location of its line of railway in any particular part for the purpose of lessening a curve, reducing a gradient, or otherwise benefiting such line of railway, or for any other purpose of public advantage, may make such change; and all the sections of this Act shall refer as fully to the part of any such line of railway, so at any time changed or proposed to be changed, as to the original line, but no railway company shall have any right to extend its line of railway beyond the termini mentioned in the Act incorporating such company.
The company shall also have power and authority,
(a) to receive, hold and take all voluntary grants and donations of land or other property made to it, to aid in the construction, maintenance and accommodation of the railway, but the same shall be held and used for the purpose of such grants or donations only;
(b) to purchase, hold and take of any corporation or person any land or other property necessary for the construction, maintenance, accommodation and use of the railway, and also to alienate, sell or dispose of the same;
(c) to acquire, expropriate and take the lands of other persons and corporations compulsorily, without the consent of the owners thereof, as and subject to the limitations hereinafter contained; and
(d) to alienate, sell and dispose of any lands or property of the company which for any reason have become unnecessary for the purposes of the company.
All corporations and persons whatever, tenants in tall or for life, guardians, curators, executors, administrators and all other trustees whatsoever, not only for and on behalf of themselves, their heirs and successors, but also for and on behalf of those they represent, whether infants, issue unborn, lunatics, idiots, femes covertes or other persons, seized, possessed of or interested in any lands, may contract for, sell, transfer and convey such lands unto the company, all or any part thereof:
Provided that the powers conferred upon rectors in possession of glebe lands, ecclesiastical and other corporations, trustees of land for church and school purposes or either, executors appointed by wills in which they are not invested with any power over the real estate of the testator, administrators of persons dying intestate but at their death seized of real estate; shall only extend and be exercised with respect to any of such lands actually required for the use and occupation of any railway company.
Any contract, agreement, sale, transfer, conveyance or assurance made under the last preceding section shall be valid and effectual in law to all intents and purposes whatsoever, and shall vest in the railway company receiving the same the fee simple in the lands in such deed described, freed and discharged from all trusts, restrictions and limitations whatsoever; and the corporation or person so conveying is hereby indemnified for what he or it respectively does by virtue of, or in pursuance of, this Act:
Provided that the company shall not be responsible for the disposition of any purchase money for the land taken by it for its purposes, if paid to the owner of the land or into court for his benefit as provided by The Expropriation Act.
All corporations or persons who cannot in common course of law sell or alienate any lands so set out and ascertained shall agree upon a fixed annual rent as an equivalent, and not upon a principal sum to be paid for the lands; and if the amount of the rent be not fixed by voluntary agreement of compromise, it shall be fixed and all proceedings shall be regulated in the manner prescribed by The Expropriation Act for determining the compensation to be allowed for lands expropriated; and for the payment of the said annual rent, and every other annual rent, agreed upon or ascertained, and to be paid for the purchase of any lands, or for any part of the purchase money of any lands which the vendor agrees to leave unpaid, the
railway and the tolls thereon shall be liable and chargeable in preference to all other claims and demands thereon whatsoever, the deed creating such charge and liability being duly registered in the land titles office or registry office of the proper land titles district or registration district.
Wherever there are more than one party proprietor of any land as joint tenants or tenants in common, any contract or agreement made in good faith with any party or parties proprietor, or being together proprietors, of one-third or more of such land, as to the amount of compensation for the same or for any damages thereto, shall be binding as against the remaining proprietor or proprietors, as joint tenants or tenants in common; and the proprietor or proprietors, as joint tenants or tenants in common; and the proprietor or proprietors who have so agreed may deliver possession of such lands or empower the entry upon the same, as the case may be.
The company may take lands compulsorily without the consent of the owner, subject to the provisions hereinafter set forth, for the right-of-way, not exceeding one hundred feet in breadth, except in places where the rail level is, or is proposed to be, more than five feet above or below the surface of the adjacent lands, when such additional width may be taken as shall suffice to accommodate the slope and side ditches; and for stations, depots and yards, with the freight sheds, warehouses, wharves, elevators and other structures for the accommodation of traffic incidental thereto, not exceeding one mile in length by five hundred feet in breadth, including the width of the right-of-way.
Should the company require, at any point on the railway, more ample space than it then possesses or may take under the preceding sub-section, for the convenient accommodation of the public, or the traffic on its railway, or for protection against snowdrifts, it may apply to the Public Utility Commissioner for Manitoba for authority to take the same for such purposes, without the consent of the owner.
The company shall give ten days' notice of such application to the owner or possessor of such lands, and shall furnish copies of such notices, with affidavits of the service thereof, to the said commissioner upon such application.
If any such owner or possessor is absent from the Province, or cannot after due diligence be served, the said commission, on application to him, and on proof to his satisfaction of such fact, may direct substitutional service or service by mailing, or in such other way and on such terms as to him may seem proper, and service effected as so directed shall be effectual service for the purposes of this section.
The company, upon such application, shall also furnish to the said commissioner, in duplicate, (a) a plan of the portion of the railway affected showing the additional lands required; (b) an application, in writing, for authority to take such lands, signed and sworn to by any of the executive officers of the company referring to the said plan, specifying definitely and in detail the purposes for which each portion of the lands is required, and the necessity for the same, and showing that no other land suitable for such purposes can be acquired at such place on reasonable terms and with less injury to private rights.
After the time stated in the aforementioned notices, and after hearing such parties interested as may appear, the said commissioner may, in his discretion, and upon such terms and conditions as he may deem expedient, authorize in writing the taking, for the said purposes, of the whole or any portion of the lands applied for. Such authority shall be executed in duplicate, one to be filed with the said plan, application and notices with the said commissioner, and the other with the duplicate of plan and application, to be delivered to the company.
Such duplicate authority, plan and application, or copies thereof certified as such by the said commissioner, shall be deposited with the registrars of deed or district registrars of the districts respectively in which such lands are situate.
All the rights and powers which may, under other provisions of this Act, be exercised by the company for the taking of lands without the consent of the owner for the right-of-way or main line of the railway, or for the expropriation of such lands, or for fixing the compensation payable in respect of such taking, may be exercised by the company in respect of lands authorized to be taken under this section.
The extent of the public beach or of the land covered with the water of any river or lake in the Province, taken for the railway, shall not exceed the quantity limited in the next preceding section.
The deposit by the company of plans under section 15, with the district registrar of any land titles district or registrar of any registration division through or in which the company's line of railway is intended to be built, shall be deemed a general notice to all parties of the lands which will be required for the railway and works in such land titles district, and the date of such deposit shall be the date with reference to which compensation or damages for lands taken or injuriously affected shall be ascertained.
Upon payment or legal tender of the compensation or annual rent so agreed upon or awarded, as provided by The Expropriation Act, to the party entitled to receive the same, or upon the deposit in Court of Queen's Bench for Manitoba of the amount of such compensation in the manner mentioned in The Expropriation Act, the agreement or award shall vest in the said company the power forthwith to take possession of the lands, or to exercise the rights, or to do the thing, for which such compensation or annual rent has been awarded or agreed upon; and, if any resistance or forcible opposition be made by any person to their so doing, the judge may, on proof to his satisfaction of such award or agreement, issue his warrant to the sheriff of the judicial district in which the lands are situate, as he may deem most suitable, to put the said company in possession and to put down such resistance or opposition, which the sheriff, taking with him sufficient assistance, shall accordingly do.
Such warrant may also be granted by any such judge, without such award or agreement, on affidavit to his satisfaction that the immediate possession of the lands or of the power to do the thing mentioned in the notice is necessary to carry on some part of the said railway with which the said company is ready forthwith to proceed; and upon the said company giving security to his satisfaction, and in a sum which shall not be less than double the amount mentioned in the notice, to pay or deposit the compensation to be awarded within one month after making the award, with interest from the time at which possession is given and with such costs as may be lawfully payable by the company.
In case of denial or neglect of payment, on demand, of any such tolls or any part thereof to such persons, the same may be sued for and recovered in any competent court, or the agents or servants of the company may seize the goods for or in respect whereof such tolls ought to be paid, and detain the same until payment thereof, and in the meantime the said goods shall be at the risk of the owners thereof.
If the tolls be not paid within six weeks, the company may sell the whole or any part of such goods and out of the money arising from such sale retain the tolls payable and all charges and expenses of such detention and sale, rendering the surplus, if any, or such of the goods as remain unsold to the person entitled thereto.
If any goods remain in the possession of the company unclaimed for the space of twelve months, the company may thereafter, and on giving public notice thereof by advertisement for six weeks in The Manitoba Gazette and in such other papers as the company may deem necessary, sell such goods by public auction at a time and place to be mentioned in such advertisement, and out of the proceeds thereof pay such tolls and all reasonable charges for storing, advertising and selling such goods; and the balance of the proceeds, if any, shall be kept by the company for a further period of three months, to be paid over to any party entitled thereto.
In default of such balance being claimed before the expiration of the period last aforesaid, the same shall be paid over to the Minister of Finance, to be applied to the general purposes of the Province until claimed by the party entitled thereto.
All or any of the tolls may by any by-law be reduced and again raised as often as deemed necessary for the interests of the undertaking; but the same tolls shall be payable at the same time and under the same circumstances upon all goods and by all persons, so that no undue advantage, privilege or monopoly may be afforded to any person or class of persons by any by-law relating to the tolls.
In all cases a fraction of a mile in the distance over which goods or passengers are transported on the railway shall be considered as a whole mile; and for a fraction of a ton in the weight of any goods, a proportion of the tolls shall be demanded and taken according to the number of quarters of a ton contained therein, and a fraction of a quarter of a ton shall be considered a whole quarter of a ton.
The directors shall from time to time print and stick up, or cause to be printed and stuck up, in the office, and in all and every of the places where the tolls are to be collected, and in every passenger car in some conspicuous place thereof, a printed board or paper exhibiting all the tolls payable, and particularizing the price or sum of money to be charged or taken for the carriage of any matter or thing.
The by-laws of every railway company, heretofore or hereafter incorporated, regulating the tolls to be taken on such road, in the special Act respecting which a provision has been inserted that its railway should be subject to the provisions of any general Act relating to railways, shall be subject to the approval of the Public Utility Commissioner; and no by-law of any railway company in this Province by which any tolls are to be imposed or altered, or by which any party other than the members, officers and servants of the company are intended to be bound, shall have any force or effect until the same has been approved and sanctioned by the said commissioner.
The shareholders may assemble together at general meetings for purposes connected with or belonging to the undertaking, and at any annual general meeting, and may elect directors in the manner provided by this Act.
The method of calling general meetings and the time and place of the first meeting of shareholders for the appointment of directors shall be determined and settled in the special Act.
PRESIDENT AND DIRECTORS
A board of directors of the undertaking, to manage its affairs, the number whereof shall be stated in the special Act, shall be chosen annually by a majority of the shareholders voting at such election, at a general meeting, the time and place for which shall be appointed by the special Act; and, if such election be not held on the day so appointed, the directors shall notify and cause such election to be held within thirty days after the day appointed.
On the day so notified, no person shall be admitted to vote, except those who would have been entitled to vote had the election been held on the day when it ought to have been held.
Vacancies in the board of directors shall be filled in the manner prescribed by the by-laws.
No person shall be a director unless he is a shareholder owning stock absolutely in his own right, and qualified to vote for directors at the election for which he is chosen.
The number of votes to which each shareholder shall be entitled, on every occasion when the votes of the members are to be given, shall be in the proportion to the number of shares held by him, unless otherwise provided by the special Act.
All shareholders, whether resident in this Province or elsewhere, may vote by proxy, if they see fit, provided such proxy produces from his constituent an appointment in writing in the words or to the effect following, that is to say:
I , of , one of the shareholders of the , do hereby appoint , of , to be my proxy, and in my absence to vote on, or give my assent to, any business, matter or thing relating to the said undertaking that may be mentioned or proposed at any meeting of the shareholders of the said company or any of them, in such manner as he, the said thinks proper.
In witness whereof I have hereunto set my hand and seal the day of , in the year .
The votes by proxy shall be as valid as if the principal had voted in person; and every matter or thing proposed or considered in any public meeting of the shareholders shall be determined by the majority of votes and proxies then present and given; and all decisions and acts of any such majority shall bind the company, and be deemed the decisions and acts of the company.
The directors first appointed, or those appointed in their stead in case of vacancy, shall remain in office until the next election of directors at the time appointed therefor, at which time an annual general meeting of the shareholders shall be held to choose directors for the ensuing year, and, generally, to transact the business of the company.
In case of the death, absence or resignation of any of the directors, others may be appointed in their stead by the remaining directors; but if such appointment be not made, such death, absence or resignation shall not invalidate the acts of the remaining directors.
The directors shall, at their first or at some other meeting after the day appointed for the annual general meeting, elect one of their number to be president of the company, who shall always, when present, be the chairman of and preside at all meetings of the directors, and shall hold his office until he ceases to be a director or until another president be elected in his stead; and the directors may in like manner elect a vice-president; who shall act as chairman in the absence of the president.
The directors, at any meeting at which not less than a quorum, to be settled by the special Act, are present, shall be competent to use and exercise all and any of the powers vested in the directors.
The act of a majority of a quorum of the directors, present at any meeting regularly held, shall be deemed the act of the directors.
No director shall have more than one vote at any meeting, except the chairman, who shall, in case of division of equal numbers, have the casting vote.
The directors shall be subject to the examination and control of the shareholders at their annual meetings, and be subject to all by-laws of the company, and to the orders and directions from time to time made at the annual or at any special meetings, such orders and directions not being contrary to any express directions or provisions of this Act or of the special Act.
No person holding any office, place or employment in, or being concerned or interested in any contracts under or with, the company, shall be capable of being chosen a director or of holding office of a director, nor shall any person being a director of the company enter into, or be directly or indirectly for his own use and benefit, interested in, any contract with the company not relating to the purchase of land necessary for the railway, or be or become a partner of any contractor with the company; and in event of any such contract being made after the twenty-fifth day of May, 1881, by or on behalf of any director, an action shall lie in any court of competent jurisdiction against such director, at the suit of any shareholder of the company, for the benefit of the funds thereof, for the whole amount of profit accruing to such director from the contract so made or fulfilled.
The directors shall make by-laws for the management and disposition of the stock, property, business and affairs of the company, not inconsistent with the laws of the Province, and for the appointment of all offices, servants and artificers, and prescribing their respective duties.
The directors shall, from time to time, appoint such officers as they deem requisite, and shall take sufficient security, by one or more penal bonds or otherwise, from the manager and officers for the time being, for the safe keeping and accounting by them respectively of and for the moneys raised by virtue of this Act and the special Act, and for the faithful execution of their offices, as the directors think proper.
In case of the absence or illness of the president, the vice-president shall have all the rights and powers of the president, and may sign all notes, bills, debentures and other instruments, and perform all acts which by the regulations and by-laws of the company, or by the Act incorporating the company, are required to be signed, performed and done by the president.
The directors may at any meeting require the secretary to enter such absence or illness among the proceedings of such meetings; and a certificate thereof signed by the secretary shall be delivered to any person or persons requiring the same on payment to the treasurer of one dollar; and such certificate shall be taken and considered as prima facie evidence of such absence or illness at and during the period in the said certificate mentioned, in all proceedings in courts of justice or otherwise.
The directors shall cause to be kept, and annually on the thirty-first day of December shall cause to be made up and balanced, a true, exact and particular account of the money collected and received by the company, or by the directors or management thereof or otherwise for the use of the company, and of the charges and expenses attending the erecting, making, supporting, maintaining and carrying out of the undertaking, and of all other receipts and expenditures of the company or the directors.
The directors may, from time to time, make such calls of money upon the respective shareholders in respect of the amount of capital respectively subscribed or owing by them, as they deem necessary, and thirty days' notice at the least shall be given of each call; and no call shall exceed the prescribed amount determined in the special Act or be made at a less interval than two months from the previous call, nor shall a greater amount be called in any one year than the amount prescribed in the special Act.
Every shareholder shall be liable to pay the amount of the call so made in respect of the shares held by him to the persons and at the times and places from time to time appointed by the company or directors.
If, before or on the day appointed for payment, any shareholder does not pay the amount of the call, he shall be liable to pay interest for the same, at the legal rate for the time being, from the day appointed for the payment thereof to the time of the actual payment thereof.
If, at the time appointed for the payment of any call, any shareholder fails to pay the amount of the call, he may be sued for the same in any court having competent jurisdiction, and the same may be recovered with lawful interest from the day on which the call became payable.
In any action or suit to recover any money due upon any call, it shall not be necessary to set forth the special matter, but it shall be sufficient to declare that the defendant is the holder of one share or more, stating the number of shares, and is indebted in the sum of money to which the calls in arrear amount, in respect of one call or more upon one share or more, stating the number and amount of each of such calls, whereby an action has accrued to the company by virtue of the special Act.
The certificate of proprietorship of any share shall be admitted in all courts as prima facie evidence of the title of any shareholder, his executors, administrators, successors or assigns to the share therein specified.
But the want of such certificate shall not prevent the holder of any share from disposing thereof.
Any person neglecting or refusing to pay a rateable share of the calls as aforesaid, for the space of two months after the time appointed for the payment thereof, shall for feit his respective shares in the undertaking and all the profit and benefit thereof, all of which forfeitures shall go to the company for the benefit thereof; no advantage shall be taken of the forfeiture, unless the same is declared to be forfeited at a general meeting of the company, assembled at any time after such forfeiture was incurred.
Every such forfeiture shall be an indemnification to and for every shareholder so forfeiting against all actions, suits or prosecutions whatever, commenced or prosecuted for any breach of contract or other agreement between such shareholder and the other shareholders with regard to carrying on the undertaking.
The directors may sell, either by public auction or by private sale, and in such manner and on such terms as to them seem meet, any shares so declared to be forfeited, and also any shares remaining unsubscribed for in the capital stock of the company, or pledge such forfeited or unsubscribed shares for the payment of loans or advances made or to be made thereon, or of any sum of money borrowed or advanced by or to the company.
A certificate of the treasurer of the company that the forfeiture of the shares was declared, and of their purchase by the purchaser, shall be sufficient evidence of the facts; and such certificate, with the receipt of the treasurer for the price of such shares, shall constitute a good title to the shares; and the certificate shall be by the said treasurer registered in the name and with the place of abode and occupation of the purchaser, and shall be entered in the books required by the by-laws of the company to be kept; and such purchaser shall thereupon be deemed the holder of such shares, and shall not be bound to see to the application of the purchase money, nor shall his title to such share be affected by any irregularity in the proceedings in reference to such sales; and any shareholder may purchase any shares so sold.
Shareholders willing to advance the amount of their shares of any part of the money due upon their respective shares beyond the sums actually called for, may pay the same; and upon the principal moneys so paid in advance, or so much thereof as from time to time exceeds the amount of the calls then made upon the share in respect to which such advance is made, the company may pay interest at the legal rate of interest for the time being, as the shareholders paying such sum in advance and the company agree upon, but such interest shall not be paid out of the capital subscribed.
At the general meetings of the shareholders of the undertaking from time to time holden, a dividend shall be made out of the clear profits of the undertaking, unless such meeting declares otherwise.
Such dividend shall be at and after the rate of so much per share, upon the several shares held by the shareholders in the stock of the company, as such meeting thinks fit to appoint or determine.
No dividend shall be made whereby the capital of the company is in any degree reduced or impaired, or be paid thereout; nor shall any dividend be paid in respect of any share after a day appointed for payment of any call for money in respect thereof, until such call has been paid.
The directors may in their discretion, until the railway is completed and opened to the public, pay interest at any rate authorized by the laws of Canada, but not exceeding eight per centum per annum, on all sums called up in respect of the shares, from the respective days on which the same have been paid, such interest to accrue and be paid at such times and places as the directors appoint for that purpose.
No interest shall accrue to the proprietors of any share upon which any call is in arrear in respect of such share or any other share to be holden by the same shareholder while such call remains unpaid, nor shall any interest be paid or taken from the capital subscribed.
SHARES AND THEIR TRANSFER
Shares in the undertaking may by the parties be sold and disposed of by instrument in writing to be made in duplicate, one part of which shall be delivered to the directors, to be filed and kept for the use of the company, and an entry thereof shall be made in a book kept for that purpose; and no interest on the share transferred shall be paid by the purchaser until such duplicate is so delivered, filed and entered.
Transfers of shares shall be in the form following, varying the names and descriptions of the contracting parties, as the case may require:
I, A.B., in consideration of the sum of , paid to me by C.D., hereby do sell and transfer to him share (or shares) of the stock of the to hold to him the said C.D., his heirs, executors, administrators and assigns, subject to the same rules and orders, and on the same conditions, under which I held the same immediately before the execution hereof.
And I, the said C.D., do hereby agree to accept the said share (or shares) subject to the same rules, orders and conditions.
Witness our hands this day of , in the year 19 .
The stock of the company shall be deemed personal estate, but no shares shall be transferable until all previous calls thereon have been paid in, or the said shares have been declared forfeited for the non-payment of calls thereon; and no transfer of less than a whole share shall be valid.
If any share in the company be transmitted by the death, bankruptcy or last will, donation or testament, or by the intestacy, of any shareholder, or by any lawful means other than the transfer hereinbefore mentioned, the party to whom such share is so transmitted shall deposit in the office of the company a statement in writing signed by him, declaring the manner of such transmission, together with a duly certified copy or probate of such will donation or testament, or sufficient extracts therefrom, and such other documents or proof as may be necessary, and without which such party shall not be entitled to receive any share of the profits of the company or to vote in respect of any such share as the holder thereof.
The company shall not be bound to see to the execution of any trust, whether express, implied or constructive, to which any of the shares may be subject, and the receipt of the party in whose name any share stands in the books of the company, or, if it stands in the name of more parties than one, the receipt of one of the parties named in the register of shareholders, shall from time to time be a sufficient discharge to the company for any dividend or other sum of money payable in respect of the share, notwithstanding any trust to which the share may then be subject, and whether or not the company have had notice of the trust, and the company shall not be bound to see to the application of the money paid upon such receipts.
The original capital stock may be increased from time to time to any amount, but such increase must be sanctioned by a vote, in person or by proxy, of at least two-thirds in amount of all the shareholders, at a meeting of shareholders expressly called by the directors for that purpose by a notice in writing to each shareholder, served on him personally or properly directed to him at the post office nearest to his place of residence, at least twenty days previous to such meeting, stating the time and place and the object of the meeting, and the amount of increase; and the notice of such meeting must be entered on the minutes of the proceedings; and thereupon the capital may be increased to the amount sanctioned by such a vote;
Provided, however, that, should the address of any shareholder be unknown, then the notice may be posted to his last known address, or, if no address be known, then by posting the same addressed to him at the post office nearest to the head office of the company.
The funds of the company shall not be employed in the purchase of any stock in its own or in any other company.
Each shareholder shall be individually liable to the creditors of the company to an amount equal to the amount unpaid on the stock held by him, for the debts and liabilities of the company, and until the whole amount of his stock has been paid up, but shall not be liable to an action therefor before an execution against the company has been returned unsatisfied in whole or in part; and the amount due on such execution shall be the amount recoverable with costs against such shareholder, provided that the payment due on such execution is less than the unpaid portion of the stock.
A true and perfect account of the names and places of abode of the several shareholders shall be entered in a book to be kept for that purpose, as well as of the several persons who from time to time become proprietors of or entitled to any shares therein, and of all other acts, proceedings and transactions of the company, and of the directors for the time being.
BY LAWS, NOTICES, ETC.
All by-laws, rules and orders regularly made shall be put into writing and signed by the chairman or person presiding at the meeting at which they are adopted, and shall be kept in the office of the company; and a printed copy of so much of them as relates to or affects any party, other than the members or servants of the company, shall be affixed openly in all and every passenger car and in all and every place where tolls are to be gathered, and in like manner so often as any change or alteration is made in the same; and any copy of the same or any of them, certified as correct by the president or secretary, shall be deemed authentic, and shall be received as evidence thereof in any court without further proof.
All such by-laws, rules and orders shall be submitted from time to time to the Public Utility Commissioner for approval.
Copies of the minutes of proceedings and resolutions of the shareholders of the company, at any general or special meeting, and of the minutes of proceedings and resolutions of the directors at their meetings, extracted from the minute book kept by the secretary of the company, and by him certified to be true copies extracted from such minute book, shall be prima facie evidence of such proceedings and resolutions in all courts of civil jurisdiction.
All notices given by the secretary of the company, by order of the directors, shall be deemed notices by the directors and company.
All notices of meetings or of calls upon the shareholders of the company shall be published in The Manitoba Gazette for at least thirty days; and the said Gazette shall, on production thereof, be conclusive evidence of the sufficiency of such notices.
No person shall serve or be employed by a railway or company as a locomotive engineer of a railway operated by steam unless such person shall have previously served as a locomotive fireman for at least three years upon a railway coming within or outside of the provisions of this Act and who prior to such service or employment fails to produce his certificate or certificates evidencing his length of service as aforesaid and further indicating that such person is a fit and proper person having regard to his habits, intelligence and physical ability to safely and satisfactorily perform the duties of a locomotive engineer.
Any person, railway or company violating the provisions of the last preceding section shall be liable to a penalty of not less than ten dollars nor more than fifty dollars. In all such proceedings the onus of proof that such provisions have not been violated shall be upon the person, railway or company charged with the offence.
ACTIONS AND SUITS AGAINST RAILWAY COMPANIES
All suits for indemnity for any damage or injury sustained by reason of the construction or operation of the railway shall be instituted within two years next after the time of such supposed damage sustained or if there be continuation of damages, then within two years next after the doing or committing of such damage ceases, and not afterwards; and the defendants may plead the general issue and give this Act and the special Act and the special matter in evidence at any trial to be had thereupon, and may prove that the same was done in pursuance of and by authority of this Act and the special Act.
Nothing in this section shall apply to any action brought against the railway upon any breach of contract, express or implied, for or relating to the carriage of any passengers or goods, or to any action against the railway for damages under the provisions of this Act respecting tolls.
If the construction of the railway be not commenced and ten per centum on the amount of the capital be not expended thereon within seven years after the passing of the special Act in case of an electric railway, or within three years after the passing of the special Act in the case of any other railway, or if the railway in either case be not finished and put in operation in ten years from the passing of such special Act, the corporate existence and powers of the company shall cease.
After the opening, of the railway or any part thereof to the public, and within fifteen days after the opening of each session of the Legislature of Manitoba, an account shall be annually transmitted to the member of the Executive Council of Manitoba so designated as Railway Commissioner for Manitoba, containing a detailed and particular account, attested upon the oath of the president, or, in his absence, of the vice-president, of the moneys received and expended by the company, and a classified statement of the passengers and goods transported by the company, with an attested copy of the last annual statement.
No further provisions which the Legislature may hereafter make with regard to the form and details of such account, or the mode of attesting or rendering the same, shall be deemed an infringement of the privileges hereby granted to the company.
Nothing herein contained shall affect in any manner the rights of Her Majesty, or of any person, or of any body politic, corporate or collegiate, such only excepted as are herein mentioned.
No amendments or alterations in this Act shall be held to be an infringement of the rights of any company authorized to construct a railway under it.
NOTE: This Act replaces those provisions of R.S.M. 1913, c. 168 that were saved by S.M. 1937-38, c. 29, s. 2.
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