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There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924030119832 A TKEATISE ON THE LAW EELATING TO BATES AND TEAFFIG ©n llailitrap sah CCanals, WITH SPECIAL KEFERENCE TO THE EAILWAY AND CANAL TRAFFIC ACT, 1888, AND THE PKACTICE OF THE Railway and Canal Commission, ■WITH AN APPENDIX OF STATUTES, KULES, Etc. A. KAYE BUTTERWORTH, LL.B., " SOLICITOfl, or THE GREAT WESTERN RAILWAY SOLICITOR'S OFFICE, AND FORMERLY OF THE INNER TEMPLE, EARRISTER-AT-LAW, ASSISTED BY CHAELES EDWAKD ELLIS, B.A., OF THE INNER TEMPLE, BAREISTER-AT-LAW. SECOND EDITION. LONDON : BUTTEEWOETHS, 7, FLEET STEEET, Sato Jublisbtrd io t^t ^necit's mosi csEccIIcnt ^itjesij, DUBLIN: HODGES, FIGGIS & CO., GRAFTON STREET. CALCUTTA : THACKER, SPINK & CO. MELBOURNE : GEORGE ROBERTSON. MANCHESTER: MEREDITH, RAY & LITTLER. EDINBURGH : T. & T. CLARK ; BELL & BRADFUTE. 1889. LONDON : JODD AND CO., LIMITED, PEINTBRS, DOOTOBS' COMMONS, B.C. PREFACE TO THE FIRST EDITION. The present volume deals only with that branch of the law applicable to railway and canal companies, which is affected by the Act of last session, viz., the law relating to Kates and Traf&c^n other words, the law relating to the facilities which those companies are bound to afford for the transmission of goods, and the charges which they are authorised to demand in return from the public. That Act effects three important changes. (1.) It pro- vides for the revision of the statutory charging powers of all railway and canal companies, and endeavours by this means to bring about a simplification of rates, and to set at rest the vexed question of terminals. (2.) It amends, modifies, and explains the existing law. (3.) It estab- lishes a new and permanent tribunal for the determina- tion of differences between railway and canal companies and the public. The main objects of the present volume are to make clear the nature and extent of these changes, and to present a statement of the existing law in a form at once useful to the practitioner or railway official, and intelligible to the general reader. It has been thought that these objects are likely to be best attained by dividing the book into chapters accord- ing to the heads of the subject-matter, pointing out in «ach chapter the effect of the Act upon the particular head under discussion. At the same time the author has endeavoured to preserve the advantages of a chrono- logical arrangement of statutes by printing the unrepealed provisions of the earlier Acts, and the full text of the Act of 1888, in an Appendix, with short notes and full references to the text. The Appendix also contains the IV Preface. Board of Trade Eules and Orders under the Act of 1888, specimens of the clauses inserted in special Acts at different periods of railway legislation, and a report of the case of the Trent Mining Co. v. Midland Bailway Company — a decision of the Court of Appeal of practical importance alike to railway companies and traders, which, so far as the author is aware, is not else- where reported. The Board of Trade Eules relating to canals, and the Order with regard to the publication of increases in rates, having been issued after the book was in type, are necessarily printed at the end of the Appendix, somewhat out of their natural order. A short summary of the Act of 1888 and the Parlia- mentary Report upon which it is founded, will be found at the end of Chapter I. In dealing with the law prior to the Act of 1888, the author has endeavoured to refer to all the decided cases which bear upon questions connected with Bates, and Traffic, and where possible, to summarise any principles of general application to be deduced from these cases ; at the same time care has been taken to distinguish between the decisions of the superior courts and those of the Commissioners, both in the text and in the Table of Cases, since it is impossible to say how far any reported decision of the late Commissioners will be treated by the now Commission as a binding authority. Probably there are few branches of law in which a knowledge of the circumstances under which the law has grown up is so necessary to a proper grasp of the problems- presented by it, as in the law relating to railways. Por this reason the author has treated the historical side of the subject at greater length than is perhaps usual iix law books. He trusts, however, that this may be found to add to the general interest of the work without detracting from its usefulness to the practitioner as a. book of reference. Pains have been taken to make the references to the reports as complete as possible, but, to avoid the neces- sity of constant repetition, these references have been Preface. v given once for all in the Table of Cases at the commence- ment of the book ; no reference, therefore, has been made in the text to any report, except where necessary for the Terification of a particular passage, and the position of each case in the Table of Cases is indicated throughout the book by a number. Full marginal notes have been added throughout; in these the four Acts, to which repeated reference is made, viz., the Bailway Clauses Consolidation Act, 1845, and the Eailway and Canal Traffic Acts, 1854 and 1888, and the Eegulation of Eailways Acts, 1873, or (as it is now styled) the Eailway and Canal Traffic Act, 1873, are, for the sake of brevity, indicated simply as [1845] [1854] [1878] [1888] , and are referred to in the "text as the Acts of those years respectively. ***** In conclusion, the author desires to thank his friend, Mr. Charles Edward Ellis, of the North-Eastern Circuit, for much valuable assistance throughout the work ; he also wishes to acknowledge his obligations to Mr. E. E. Nelson, Solicitor to the Great Western Eailway Company, and other friends whose familiarity with the practical side of questions connected with railway law has enabled them to make suggestions of the greatest value. A. K. B. Paddington Station, 9th Fehruary, 1889. PREFACE TO THE SECOND EDITION. This is substantially a re-print of the First Edition, with the addition of the Eailway and Canal Commission Eules, which have been issued since the pubHcation of that Edition, and a chapter on the procedure before the Com- missioners. The Index has been revised, and the additional matter included in it. A. K. B. May, 1889. TABLE OF CONTENTS. List of Abbreviations Table of Cases Cited coreigeniia CHAPTEE I. sketch of canal and railway legislation (1769-1888). Section I.— Canal Acts, 1759-1800 11.— Tramroad Acts, 1801-1822 ,, in.— Eailway Acts, 1823-1853 :— (i.) Special Acts (ii.) General Acts IV.— Eailway Acts, 1854-1872 v.— The Traffic Act, 1873 , , VI. — The Terminal Question „ VII.— 1881-1888 :— (i.) Eeport of Select Committee, 1881-1882 (ii.) The Traffic Act, 1888 Section I. „ II. PAGK. xi. xiii.. xxxii.. CHAPTEE IT. TOLLS, RATES AND CHARGES. Definitions . . Tolls III.— Bates IV. — Charges : — (i.) Terminals . . (ii.) Other Charges v.— Eevision of Eates and Charges under the Traffic Act, 1888 I i 21 2T 31 3& 41 51 5& 6a 65. 83. 85 Table of Contents. CHAPTEE III. TKAFPIC FACILITIES. Section I. — Introductory „ II.— The Traffic Act, 1854 :— (i.) Greneral Scope and Procedure . . (ii.) Pacilities for Traffic generally . . (iii.) Pacilities for Through Traffic . . ,, III.~The Traffic Act, 1888 PAGE 93. 95' 99 108 112. CHAPTEE IV. THROUGH RATES. Section I. — Power of the Commissioners to gi-ant Through Eates 114 II. — Procedure . . 118 ,, III.— Eight to Apply 121 ,, IV. — Through Eates, when granted . . 125 ,, V. — Apportionment 130 „ VI.— Sea Traffic 132 ,. VII.— Canals , 134 CHAPTEE V. EQUALITY AND UNDUE PREFERENCE. Section 1. — The Equality Clause ,, II. — Cases to which the Clause applies : — (i.) Carriers' Cases (ii.) Inequality as between Traders (iii.) Summary . . 13T 141 145- 148 Talle of Contents. Soction III. — Difference between the Equality Clause and the Traffic Act, 1854, section 2 ,, IV. — Undue Preference : — (i.) Carriers' Cases (ii.) Eival Traders — {a) Saving in Cost to the Company . . (J) Competition (c) Group Hates {d) Summary . . „ v.- -The Traffic Act, 1888 149 155 160 168 170 171 172 CHAPTEE VI. PUBLICATION AND DISINTEGRATION OF BATES. Section I. — Publication . . 177 ,, II. — Disintegration 183 ,, III. — Summary .. 187 ,, IV. — Penalties 188 v.— Eebate 190 CHAPTEE VII. THE RAILWAY AND CANAL COMMISSION. Section I. — Constitution 197 ,, II. — Jurisdiction^ (i.) Subject-matter — (a) Under Acts prior to 1888. . 200 (J) Under the Traffic Act, 1888 209 (ii.) Modes of remedy . , 213 (iii.) Enforcement of Orders . . 220 „ ill. — Locus Standi 221 ,, IV. — General Powers 223 Table of Contents, OHAPTEE VIII. CAH"ALS. Section I. — Control of Canals by Eailway Companies ,, II. — Canal Traffic generally PAOE 228 231 CHAPTEE IX. PEOCEDTJEE. Section I. — Introductory ,, II. — Application to the Commissioners : (i.) Generally (ii.) In particular proceedings III. — Answer of Defendant . . IV.- — Eeply and subsequent Pleadings V. — Proceedings before tbe hearing VI.— The Hearing VII. — Miscellaneous VIII.— Tables 237 239 241 250 252 263 256 258 261 APPENDIX A. liailways Clauses Act, 1845 (8 Vict. c. 20) 1 Eailway and Canal Traffic Act, 1854 (17 & 18 Vict. c. 31) . . 8 Regulation of Eailways Act, 1868 (31 & 32 Vict. c. 119) . . 11 Eailway and Canal Traffic Act, 1873 (36 & 37 Vict. c. 48) . . 12 Board of Trade Arbitrations, &c.. Act, 1874 (37 & 38 Vict. c. 40) 20 Eailway and Canal Traffic Act, 1888 (51 & 52 Vict. c. 25) . . 21 Boardof Trade Eules, 1888 (Eailways) .. .. .. 54 APPENDIX B. Specimens of Clauses in Special Acts : — Great Western Eailway Act, 1835 Oxford Eailway Act, 1843 Pewsey and Salisbury Eailway Act, 1883 63 66 68 X Table of Contents. PAQE-. APPENDIX 0. Trent Mining Co. ■;;. Midland Eailway Co. . . . . . • 7 li APPENDIX D. Board of Trade Eules, 1889 (Canals) 75. APPENDIX E. Board of Trade Order, 1889 (Increase of Bates) . . . . 84- APPENDIX E. Eailway and Canal Commission Eules, 1889 . . . . . . 87' APPENDIX G. Board of Trade Order (Bye-laws of Canal Companies) . . 121 Index . ,. .. .. .. .. .. .. 12S. LIST OF ABBREVIATIONS USED IN THE FOLLOWING TABLE OF CASES. iix. ■^PP Appendi: App. Ca Appeal Cases. B- & Ad Barnewell & Adolphus' Eeports. B- & C Barnewell & Cresswell's Reports. Ch Chancery. Ch. D Chancery Division. C. &F Clark & Finelly's Reports. C B Common Bench. C- P Common Pleas. C P. D Common Pleas Division. C- A Court of Appeal. Ct. of Sess Court of Session. DeG. &J De Gex & Jones' Reports. Dr. & S Drewry & Smale's Reports. E. & B Ellis & Blackburn's Reports. Ex Exchequer. Ex. Ch Exchequer Chamber. Ex. D Exchequer Division. H. L House of Lords. H. & C Hurlstone & Coltman's Reports. H. & N Hurlstone & Norman's Reports. Ir Ireland. J. & H Johnson & Hemming's Reports- Jur Jurist. K. B King's Bench. L.J Law Journal. L. R Law Reports. L. T Law Times. L. C Lord Chancellor. Ld. Raym Lord Raymond's Reports. L. JJ Lords Justices. xii List of AhlreviaUom; Macq Macqueen's Scotch Appeals. M. C Magistrates' Cases. M. & G Manning & Granger's Reports. M. & E Manning & Ryland's Eeports. M. R Master of the EoUs. M. & W Meeson & Welsby's Reports- Mod. R Modern Reports. N. R New Reports. N. S New Series. Peake's N. P. C Peake's Nid Prius Cases . P. C Privy Council. Q. B , Queen's Bench. Q. B. D Queen's Bench Division. Ry. Cas. Railway Cases. R. & C. T. Ca Railway & Canal Traffic Cases. R. C Railway Commissioners. Sc. Sess. Ca Scotch Court of Session Cases. T. L. R Times Law Reports. V. C Vice-Chancellor. W. R Weekly Reporter. TABLE OF CASES CITED. N.B. — The abbreviations used in this table of cases are explained on pp. xi-xii. Tke figures in large type indicate the pages where some account of the case referred to is given ; the smaller figures show the pages which contain only a passing reference to it. A. 1. Aberdeen Commercial Co. v. Gt. North of Scot. Ky. Co. {Aberdeen Case) [Cb. of Sess ] ... 58, 59-62, 68, 103 3 R. & C. T. Ca. 205. •2. Ashbury Ry. Carriage, &c., Co. v Riche [H. L.J ... 83 L. R. 7 H. L. 653 ; 44 L. J. (Ex.) 185 ; 33 L. T. 450. 3. Att.-Gen. v. Birm. & Derby Junct. Ry. Co. [L. C] ... 145 2 Ry. Cas. 124. 4. 7;. G. E. Ry. Co. [C A.J 83 1 1 Ch. D. 449 ; 48 L. J. (Ch.) 428 ; 40 L. T. 265 ; 27 W. R. 759. 5. «. G.N. Ry. Co. [V.C.J 111,211,222 1 Dr. & S. 154 ; 29 L. J. (Ch.) 794 ; 6 Jur. (N. S.) 1006. 6. Ayr Harbour Trustees v. Glasgow & S. W., &c., Ry. Co. s (No. 1.) [R. C.J 112, 130, 133, 152, 158, 16& 4R. &C. T.Ca. 81. V. Glasgow & S. W., &c., Ry. Co.'s No. 2.) [R.C.J 158,168 4 R. & C. T. Ca. 90. 3civ Talle of Cases. PAGE 8. Bailey ti. L. C. & D. Ky. Co. [R. C] 185,187 2 R. & C. T. Ca. 99. 8a. Barker v. Midland Ry. Co. [C. R] 15V 18 C. B. 46 ; 25 L. J. (C. P.) 184. fl. Barret v. G. N. and Midland Ry. Co.'s [C. P.] 109-110, m I G. B. (N. S.) 423 ; 26 L. J. (C. P.) 83 ; 1 R. & C. T. Ca. 38. 9a. Bartlett v. L. & N. W. Ry. Co. [Ex.] 160 7 H & JS'. 400 ; 8 Jur. (N. S.) 58 ; 31 L. J. (Ex.) 92 ; 5 L. T. (N. S.) 399 ; 10 W. R. 109. 10. Baxendale v. Bristol & Exeter Ry. Co. [C. P.] ... 156 II C. B. (N. S.) 787 ; 1 R. & C T. Ca. 229. 11. V. Eastern Counties Ry. Co. [C. P.] ... 143 4 C. B. (N. S.) 63 ; 27 L. J. (C P.) 137. 12. V. G. W. Ry. Co. (No. 1.) {Bristol Case) [C.P.] 165 5 C. B. (N. S.) 309 ; 28 L. J. (C. P.) 69 ; 1 R. & C. T. Ca. 191. 13. I). G.W.Ry. Co. (No. 2.)(5earfm(/Ca:«e)[C.P.] 83 141, 155-156 5 C. B. (N. S.) 336 ; 28 L. J. (C. P.) 81 ; 1 R. & C. T. Ca. 202. 14. «. G. W. Ry. Co. (No. 3.) 156 [C. P.] 14 C. B. (N. S.) 1 ; 32 L. J. (C. P.) 225 ; 8 L. T. 833. [Ex. Ch.] 16 C. B. (N. S.) 137 ; .33 L. J. (C. P.) 197 ; 9 L. T. 814 ; 12 W. R. 602. 15. V. L. & S. W. Ry. Co. (No. 1.) [C. P.] ... 156 12 C. B. (N. S.) 758 ; 1 R. & C. T. Ca. 231. 15A. V. L. & S. W. Ry. Co. (No. 2.) [Ex.] 141-142 4 H & C 130 ; L. R. 1 Ex. 137 ; 35 L. J. (Ex.) 108. 16. V. North Devon Ry. Co. [C P.] 156 3 C. B. (N. S.) 324 ; 1 R. & C. T. Ca. 180. 17. Beadell v. Eastern Counties Ry. Co. [C. P.] ... ill, 157 2 C. B. (N. S.) 509 ; 26 L. J. (C. P.) 250 ; 1 R. & C. T. Ca. 56. 18. Beeston Brewery Co. v. Midland Ry. Co. [R. C] 98, 106 5 R. & C. T, Ca. 53, 60. 19. Belfast Central Ry. Co. v. G. N. (Ir.) Ry. Co. (No. 1.) [tl-C] 126 3 R. & C. T. Ca. 411. Talle of Cases. xv PAGE •20. Belfast Central E,y. Co. v. G. N. (Ir.) Ey. Co. (No. 2.) LR.C.] 129 3 K. & C. T. Ca. 419. 21. V. G. N. (Ir.) Ry. Co. (No. 3.) [K-C] 118,125,128,129 4 R. & C. T. Ca. 159. "21A. V. G. N. (Ir.) %. Co. (No. 4.) [R.C.] 133 4 R. & C. T. Ca. 379. 22. Bell ^;. L. & N. W. Ry. Co. [R. C] ... 152,1(10,195 2 B. & C. T. Ca. 185. -23. w. Midland Ry. Co. ... ... ... ... 105 [Ch.] 3 De G. & J. 673. [C. P.] 10 C. B. (N. S.) 287 ; 30 L. J. (C. P.) 273 ; 4 L. T. (N. S.) 293 ; 9 W. R. 612 ; 7 Jur. (N.S.) 1200. -24. Bellsdyke Coal Co. v. North British Ry. Co. [R. C] 160, 166 2 E. & C. T. Ca. 105. •25. Bennett ik Manchester, Sheffield, and Line. Ry. Co. [C. P.] 97,149,152 6 C. B. (N. S.) 707 ; 1 R. & C. T. Ca. 288. -26. Berry and another v. L. C. & D. Ry. Co. [R. C] 83, 91, 186 4 E. & C. T. Ca. 310. 27. Birchgrove Steel Co. v. IMidland Ey. Co. [E. C] 185, 186 5 E. & C. T. Ca. 229. -27a. Branley v. S. E. Ry. Co. [C. P.] 140 12 C. B. (N. S.) 63 ; 31 L. J. (C. P.) 286 ; 6 L. T. 458. 28. Broughton & Plas Po^wer Coal Co. v. G. W. Ry. Co. [R. C] 152,153,161,170 4 R. & C. T. Ca. 191. 29. Bro-wn v. G. W. Ry. Co. (No. 1.) (G. W. Ry. Co. v. Rail^wray Commissioners) [Q. B. D. and C. A.] 62, 95, 96, 97, 99, 102-103, 104, 113, 151 7 Q. B. D. 182 ; 50 L. J. (Q. B.) 483 ; 45 L. T. 65, 206 ; 29 W. R. 901 ; 3 R. & C. T. Ca. 523. 30. V. G. W. Ry. Co. (No. 2.) 54, 178 [Q. B. D.] 9 Q. B. D. 744; 51 L. J. (Q. B.) 156; 45 L. T. 471 ; 30 W. R. 214. [C. A.] 9 Q. B. D. 764; 51 L. J. (Q. B.) 529; 47 L. T. 216 ; 30 W. R. 671. 51. Budd V. L. & N. W. Ry. Co. [Ex. D.] ... 154, 168-169 36 L. T. 802 ; 25 W. R. 752. xvi Talk of Cases. C. PAGE 32. Cairns v. N. E. Ey. Co. [R. C] 185- 4 R. (& C. T. Ca. 221. 33. Caledonian Ry. Co. v. Greenock & Wemyss Bay Ry. Co. [R. C] 133 4 R. & C. T. Ca. 70. 34. V. Guild [Ct. of Sess.]... (App. 6.> 1 Sess. Ca. (4th Ser.) 198. 35. ■ V. North British Ry. Co. [R. C] 128, 131. 3 R. & C. T. Ca. 403. 36. and others v. Greenock ife Wemyss Bay Ry. Co. [R. C] 123,133 4 R. & C. T. Ca. 135. 37. Caterham Ry. Co. v. L. B. & S. C. and S. E. Ry. Co. 'a [C. P.] 99-100, 102, 152: 1 C. B. (N. S.) 410 ; 26 L. J. (C. P.) 161 ; 1 R. & C. T. Ca. 32. 38. Central Wales & Carm. Junct. Ry. Co. v. G. W. Ry. Co. [R. C] ... ... ... ... ... 123, 20& 2R. &C. T. Ca. 191. 38a. f . L. & N. W. Ry. Co. [R. C] 123 4 R. Z. Denaby Main Case (No, 4.) 138,139,140,147-148, 150, 153, 154, 170 [Q. B. D.] sub nomine M. S. & L. Ry. Co. v. Denaby Main Coll. Co. 13 Q. B. D. 074 ; 53 L. J. (Q. B.) 579 ; 4 R. & C. T. Ca. 437. [C. A.] 14 Q. B. D. 209 ; 54 L. J. (Q. B.) 103 ; 52 L. T. 598 ; 33 W. R. 491 ; 4 R. & C. T. Ca. 450. [H. L.] sub nomine Denaby Main Coll. Co. v. M. S. it L. Ry. Co. 11 App. Ca. 97 ; 55 L. J. (Q. B.) 181 ; 54 L. T. 1 ; 2 T. L. R. 199. M. Dickson i;. G. N. Ry. Co 95-96 [Q. B.D.]55L. T. 184; 34W.R.457; 2T.L.R.430. [C. A.] 18 Q. B. D. 176 ; 56 L. J. (Q. B.) Ill ; 55 L. T. 868 ; 35 W. R. 202 : 3 T. L. R. 200. xviii Tahle of Cases. pAaB- 65. Diphwys Casson Slate Co. v. Festiniog Ey. Co. [R. C] 165, 166- 2 R. & C. T. Ca. 73. 56. Distington Iron Co. v. L. & N. W. Ry. Co. 103-104 [R. C] 4 T, L. R. 785. [Q. B. D.] l^ot reported. 57. Dover, Corporation of, i;.S. E.,&c.,Ry. Co. 's[R. C] 152: 1 R. & C. T. Ca. 349. 58. Dublin & Meath Ry. Co. v. M. G. W. (Ir.) Ry. Co. [R. C] 107 3 R. & C T. Ca. 379. r)9. Dublin Whiskey Distillery Co. v. M. G. W. (Ir.) Ry. Co. i&.Q.-] 105,216: 4 R. & C. T. Ca. 32. 60. Dunkirk ColUery Co. J). Manchester, Sheffield & Lincoln- ' shire Ry. Co. [R. C] 8a 2 R. & C. T. Ca. 402. E. 60A. East.& West India Dock Co. v. Shaw [Chitty, J.] 149, 151-152^ 39 Ch. D. 524; 57 L. J. (Ch.) 1038. 61. East & West Junction Ry. Co. v. G. W. Ry. Co. (No. 1.) [R-C] 127,128 1 R. & C. T. Ca. 331. 62. ■ V. G. W. Ry. Co. (No. 2.) [R. C] 128-129 2 R. & C. T. Ca. 147. 63. Edwardes v G. W. Ry. Co. [C. P.] 141, 143 11 C. B. 588 ; 21 L. J. (C. P.) 72. 64. Evershed v. L. & N. W. Ry. Co. 84, 140, 145-146, 151, 165,, 167, 168, 169, 2ir [Q. B. D.] 2 Q. B. D. 254 ; 46 L. J. (Q. B.) 289 ; 36 L. T. 12. [C. A.] 3 Q. B. D. 134; 47 L. J. (Q. B.)284; 37 L. T. 623 ; 26 W. R. 863. [H. L.] sub nomine L. &, N. W. Ry. Co. v. Evershed 3 App. Ca. 1029 ; 48 L. J. (Q. B.) 22 ; 39 L. T. 306. 65. Fieldv. Newport, Abergavenny, (tc.,Ry. Co. [Ex.] 85(App.6> 3 H. A: N. 409 ; 27 L. J. (Ex.) 396. Table of Cases. xix FAQE 66. Finnie v. Glasgow & S. W. Ry. Co. [H. L.] ... 139, 145, 148 2 Macq. 177. 67. Fishbourne v. G. S. & W. (Ir.) Ry. Co. [R. C] 156, 159'' 2 R. (k C T. Ca. 224. 68. Foreman V. G. E. Ry. Co. [R. C] 165, 170' 2 R. & C. T. Ca. 202. 69. Foster •«. G. W. Ry. Co 326,230' [R. C] 3 R. & C. T. Ca. 14. [Q. B. D.] 8 Q. B. D. 25 ; 51 L. J. (Q. B.) 51 ; 45 L. T. 538 ; 4 R. & C. T. Ca. 58. [C. A.] 8 Q. B. D. 515 ; 51 L. J. (Q. B.) 233 ; 46 L. T. 74 ; 30 W. R. 398 ; 4 R. & C T. Ca. 62. G. 70. Garton v. Bristol & Exeter Ry. Co. (No. 1.) [C. P.] 154, 156, 159, 169- 6 C. B. (N. S.) 639 ; 28 L. J. (C P.) 306 ; 1 R. k C. T. Ca. 218. 70A. V. Bristol k Exeter Ry. Co. (No. 2.) [Q. B.] 140, 143, 145, 178- 1 B. & S. 112; 30 L. J. (Q. B.) 273; 9 W. R. 734 ; 7 Jur. (N. S.) 1234. 71. 1;. G. W. Ry. Co. [C. P.] 156 5 C. B. (N. S.) 669 ; 28 I.. J. k C. T. Ca. 214. 72. Gilbert v. Hudlestone [C A.] 28 Ch. D. 549 ; 54 L. J (Ch. 33 W. E. 832. 73. Gibbs ?;. Guild [C. A.] 9 Q. B. D. 59; 51 L. J. (Q. 248; 30 W. R. 591. 74. Gidlow's Case (No. 1.), sub nomine Lancashire & York- shire Ry. Co. V. Gidlow [H. L.] 79, 192, 216 42 L. J. (Ex.) 129 ; 29 L, T. 346 ; 21 W. R. 649. 1J5 ' (No. 2.), 5m6 «ii»ime Lancashire & York- shire Ry. Co. V. Gidlow [H. L.] 79 80, 140 L. R. 7 H. L. 517 ; 45 L. J. (Ex.) 625 ; 32 L. T. 573 ; 24 W. R. 144. 76. Girardot & Co. v. Midland Ry. Co. (No. 1.) [E. C] ... 160- 4R. &C. T. Ca. 291. — V. Midland Ry. Co (No 2.), see Beeston (C. P.) 158 ; 1 R. 226 ) 751 ; 52 L. T. 8 ; ... 219- B.) 313 ; 46 L. T. Brewery Co. v. Midland Ry. Co. XX Talle of Cases. PAGB 77. Goddard «. L. 14 C. B. (N. S.) 132 ; 32 L. J. (C. P.) 156 ; 8 L. T. 246 ; 11 W. E. 624. 140. North Central Wagon Co. v. Manchester, Sheffield ifc Lincolnshire Ey. Co 63 (App. 6> [Bacon, V. C] 32 Ch. D. 477 ; 55 L. J. (Ch.) 780 ; 54 L. T. 487 ; 34 W. E. 431. ; 3 T. L. E. 206. [C. A.] 35 Ch. D. 191 ; 56 L. J. (Ch.) 609 ; 56 L. T. 755 ; 35 W. E. 443 ; 3 T. L. E. 405- [H. L.] 13 App. Ca. 554. 140A. N. E. Ey. Co. v. Cairns [Q. B. D.] 65, 84 32 W. E. 829. 141. North Monkland Ey. Co. c. North British Ey. Co. [R. C] 123-4: 3 E. & C. T. Ca. 282. 0. 142. Oxlade r. N. E. By. Co. (No. 1.) [C. P.] ...96,152,160-1 1 C. B. (N. S.) 454 ; 26 L. J. (C P.) 129 ; 1 E. & C. T. Ca. 72. xxvi Table of Cases, PAGE 143- Oxlade v. N. E. Ey. Co. (No. 2.) [C. P.] 161 15 C. B. (N. S.) 680 ; 1 E. & C. T. Ca. 162. 144. ?». N. E. Ey. Co. (No. 3.) [E. C] ... 181, 18» 3 E. & C. T. Ca. 35. 145. Painter v. L. B. . L. & S. W. Ry. Co. [Cleasby, B.] ... 145- 37 L. T. 158. 179. J). S. E. Ry. Co. [Ex.] 150 4 H. & C. 325 ; 1 L. R. (Ex.) 32 ; 35 L. J. (Hlx.) 38 ; 13 L. T. 438. 180. Swindon, Marlborough ife Andover Ry. Co. v. G. W. Ry. Co. [R. C] 108 4 R. & C. T. Ca. 173. 181. • «. G.W., &c., Ry. Co.'s [R. C] ... ... 125, 127, 128, 130 4 R. & C. T. Ca. 349. T. 182. Tal-y-llyn Ry. Co. v. Cambrian Ry. Co. [R. C] 131-132- 5 R. & C. T. Ca. 122. 183. Tharsis Sulphur, &c., Co. v. L. & N.W. Ry. Co. [E. C] 104 3 R. & C. T. Ca. 455. Table of Cases, xxix 184. Thomas v. North Staffordshire Ey. Co. [K. C] 95, 107 3 E. & C. T. Ca. 1. 185. Thompson v. L. & N. W. Ey. Co. [E. C] 170 2 E. & C. T. Ca. 115. 186. Todd V. M. G. W. (Ir.) Ey. Co. [M. E.] ... 105, 212 9 L. E. (Ir.) 85. .187. Toomer v. L. C. & D. and S. E. Ey. Co.'s 28, 108-109, 1 10, 220 221 [E. C] 3 E. & C. T. Ca. 79. [Ex. D.] 2 Ex. D. 450 ; 47 L. J. (Ex) 276 ; 37 L. T. 161 ; 26 W. E. 31 ; 3 E. & C T. Ca. 98. 188. Torbay & Brixham Ey. Co. ■;;. S. Devon Ey. Co. [E. C] 202 2 E. & C. T. Ca. 391. .188A. Trent Mining Co. v. Mid. Ey. Co. [C. A.] 84 See Appendix C. U. 189. Uckfield Local Board v. L. B. & S. C. and S. E. Ey. Co.'s [E. C] 104, 109, 221 2 E. & C. T. Ca. 214. 190. Van Toll v. S. E. Ey. Co. [C P.] 65 12 C. B. (N. S.) 75; 31 L. J. (C P.) 241; 10 W. E. 578 ; 6 L. T. 244. 191. Victoria Coal Co. v. Neath & Brecon and Midland Ey. Co.'s [E. C] 109 3 E. & C. T. Ca. 37. W. 192. Walker v. Jackson [Ex.] ... .„ .•• ... 93 10 M. & W. 161 ; 12 L. J. (Ex.) 165. 193. Wallis V. L. & S. W. Ey. Co. [Ex.] ... App. p. 6 L. E. 5 Ex. 62 ; 39 L. J. (Ex.) 57 ; 21 L. T. 675 ; 18 W. E. 347. 194. Wannan v. Scottish Central Ey. Co. [Ct. of Sess.] ... 159 2 Sess. Ca. (3rd Ser.) 1373 ; 1 E. & C T. Ca. 237. 195. Warwick & Birmingham Canal Co. v. Birmingham Canal Co. ... 109, 111. 123, 125, 130, 131, 134, 135 [E. C] 3 E. & C. T. Ca. 113. [Ex. D.] 5 Ex. D. 1 ; 48 L. J. (Ex.) 550 ; 40 L. T. 846 ; 3 E. & C. T. Ca. 324. XXX Taile of Cases. PAGE. 196. Waterford & Limerick Ey. Co. v. G. W. Ry. Co. [C. A.] 2(KJ- 17 Ch. D. 493 ; 50 L. J. (Ch.) 513 ; 44 L. T. 723 ; 29 W. E. 826 ; 3 R. & C. T. Ca. 546. 197. Watkins 1^. Rymill [Q. B. D.] 84 10 Q. B. D. 178 ; 52 L. J. (Q. B.) 121 ; 48 L. T. 426 ; 31 W. E. 337. 198. Watkinson v. Wrexham, Mold &. Connah's Quay Ey. Co. (No. 1.) [E. C] 60,62,78,83 3 E. & C. T. Ca. 5. 199. V. Wrexham, Mold, & Connah's Quay Ey. Co. (No. 2.) [C. P. D.] 58, 105, 107 3 E. & C. T. Ca. 164. 200. — V. Wrexham, Mold, & Connah's Quay Ey. Co. (No. 3.) [E. C] 104, 107, 181, 185 3 E. & C. T. Ca. 446. 201. V. Wrexham, Mold, & Connah's Quay Ey. Co. (No. 4.) [Q. B. D.] 107 4 E. & C T. Ca. 69. Webster v. Ashton-under-Lyne, Overseer of, see Hadfield's Case. 202. West V. L.& N. W. Ey. Co. [C P.] 151 L. E. 5 C. P. 622 ; 39 L. J. (C. P.) 282 ; 23 L. T. 371 ; 18 W. E. 1028. 203. Woodger r. G. E. Ry. Co. [E. C] 165 2 R. & C T. Ca. 102. 204. Woodruff i^. Brecon & Merthyr Tydfil June. Ry. Co. 105,212: [Bacon, V. C] 28 Ch. D. 190 ; 54 L. J. (Ch.) 29 ; 51 L. T. 536 ; 33 W. E. 95 ; 1 T. L. R. 20. [C. A.] 28 Ch. D. 199 ; 54 L. J. (Ch.) 620 ; 62 L. T. 69 ; 33 W. R. 125 ; 1 T. L. R. 138. 205. Wrexham Ry. Co. t. Little Mountain Colliery Co. [Denman, J.] ... ... ... ... ... 83 38 L. T. 290. 206. Young V. Gwendraeth Valleys Ry. Co. [R. C] ... 104 4 R. & C. T. Ca. 247 206a. — w. Jackson [K. B.] ... ... ... ... 51 Peake's N. P. C. 185. ADDEXDA. ET CORRIGEXDA. Pages 50 and 85. — The Board of Trade Rules with respect to the sub- mission of revised classifications and schedules by canal companies are printed in the Appendix, pp. 75-83. ,, 6'', footnote («), Hne 5.— For " s. 15 " read " s. 14." ,, 72, footnote (i). Hue 8.— For " s. 262 " read " s. 282." ,, 86, footnote (?), line 3.— For " (11) (12) " read " (12) (13)." ,, 88. — The following Rule has been made by the Board of Trade, dated the 21st day of March, 1889 :— " In the case of every revised classiincation of merchandise traffic and schedule of maximum rates which has been submitted to the Board of Trade by any railway company previous to the date hereof, the period within which notices of objection may be transmitted to the Department, in accordance with their Rules, is hereby extended to the 3rd day of June, 1889." ,, 104, footnote («). — In Distington Iron Co. v. L. ^ N, W. My. Co., the rule nisi for a prohibition was made absolute (5 Times Law Reports, 333). ,, 107, line 16 from top. — For "comply " read " compel." ,, 121, line 21 from top,— For "s. 2" read "s. 3." ,, 184, 183, 186. — For the application of section 14 of the Act of 1873 and section 33 of the Act of 1888 to through rates, and for the meaning of the expression " any person interested,'' see the recent decision of the Railway and Canal Commission in Pehall Coal ^ Iron Co. v. L. % N. W. Ry. Co. (April 3rd, 1889). ,, 233, footnote. — By an order of the Board of Trade, dated the 7th day of March, 1889 (see Appendix, p. 121), copies of existing bye-laws of canal companies are to be forwarded to the Department not later than the 10th day of August, 1889. CHAPTEE I. SKETCH OP CANAL AND EAILWAY LEGISLATION (1759-1888). PAGE Section 1.— Canal Acts, 1759-1800 1 II.— Tramroad Acts, 1801-1822 .... 3 111.— Bailway Acts, 1823-1853 :— (i.) Special Acts 4 (ii.) General Acts 14 lY.— Bailway Acts, 1854-1872 .... 21 \.—The Traffic Act, 1878 27 ,, VI. — The Terminal Question 31 .„ VII.— 1881-1838 :— (i.) Beport of Select Committee, 1881-1882 38 (ii.) The Traffic Act, 1888 ... 41 SECTION I.— Canal Acts, 1759-1800. 'The history of railway and canal legislation in England commence- takes us back to the middle of last century. It is true canai Legislation that as far back as 1566 powers were obtained for cut- (wse-irss;, ting a canal by the side of the river Exe between Exeter and Topsham; and even earlier than that the wide drains in the Fens had been the subject of legisla- tion, some of which were made available for navigation to a limited extent (a). During the 200 years, too, that elapsed between the construction of John Trew's Exeter Canal and the famous ventures of the Duke of Bridgwater, various Acts were passed giving powers to individuals or associated " undertakers " to improve (a) " Lives of the Engineers" (Smiles), vol. i., chap. ii. B 2 SKETCH OF CANAL AND [ChAF. I- the navigation on rivers, one of the most notev?orthy being an Act in 1720 enabling the promoters to make navigable the rivers Mersey and Irvfell, so as to afford communication between Manchester and Liverpool (b). But up to 1759 EngKsh engineers had confined their efforts either to clearing out existing channels, or to Duke oi supplementing these by short parallel cuts ; and it vpas water's not ^ntji that year that the enterprise of the Duke of (1769). Bridgwater and the genius of James Brindley effected a revolution in the water-way traflic of the country by cutting a navigable trench through the dry land,, along which merchandise might be carried across the country, independent of the course of existing streams (c). The Duke of Bridgwater's Bill, which was passed without opposition in March, 1759, and gave him power to make a navigable canal from the coal-pits at Worsley Mill to Salford, may, therefore, be said to Manchester mark the commencement of canal legislation. Three pooicJnai years later, after keen opposition, an Act was passed *^'^'°^'' authorising the Duke to make a canal, forming a more effectual communication between Manchester and Liverpool than the very imperfect means afforded by grand the IrwcU and Mersey ; in 1766 the construction of the U766)!^™"' Grand Trunk Canal received the sanction of Parlia- ment — a scheme having for its object the connection of the Mersey, Trent, and Severn, and the formation by this means of an uninterrupted water-way between the ports of Liverpool, Hull, and Bristol ; and before 180O over one hundred Acts had been added to the Statute- book (d). Form of Thcsc Acts Seem to have followed in their main out- canaiActs. ^^^^^ ^-^e form of the earlier Eiver Improvement Acts, and contained provisions authorising the compulsory taking of land, fixing the capital and borrowing powers (b) The earliest Eiver Acts were passed in 1424 and 1431 (2 & 9 H. VI.), for improving tlie Eiver Lea ; the latter of these Acts authoi'ised a toll of 4d. on each ship or boat making use of the improved navigation. (c) "Lives of the Engineers " (Smiles), vol. i., chap. iii. (d) " History of Private BUI Legislation " (Clifford), vol. i., 41. Sec. I.-II.] eailway legislation. 3 of the undertakers, and, in return for the extraordinary powers conferred upon them, limiting the tolls to be taken by them from the public for the use of the canals. As a general rule, it was not proposed by the undertakers of the canals that they should become carriers (e), and their Acts did not ordinarily contain any authority for them to do so ; the barges and horses, therefore, were provided, and the traffic conveyed, either by the traders themselves — coal owners and others — or by general carriers, many of the firms who con- ducted the carrying business on the high roads being also carriers on the canals. Not only do canal and railway legislation form one connection continuous record, but from an early date the two ""S^i^ =>■"! . •' railways. modes of transit have been intimately connected. Thus the first railroads, or tramroads, seem to have been those used for taking minerals from the pit's mouth to the canal where they were shipped. These, in the first place, were made wil;hout statutory authority, a wayleave being leased from the landowners whose properties were traversed, but the earliest statutory powers for the construction of railways seem also to have been those given to canal companies to enable them to make lines which should act as feeders to their canals (/). Section II. — Teameoad Acts, 1801-1822. The Eailway Acts proper may be said to begin with '^1^'°^ the present century, when Bills were promoted to (i^oi). sanction what we should now call tramroads, but which were known at the time as the " Iron Eailways," to distinguish them from the smooth tracks of stone and grooved rails of wood which preceded the use of iron rails. The earliest of these Acts was that of the (e) Tlie Duke of Bridgwater, however, conveyed passengers tetween Manchester and Worsley (Clifford, ib., i. 45). {/) Thus, in 1792, the Monmouthshire Canal Navigation Company were authorised to make " EaU Ways, or Stone Roads," from their cuts or canals to certain iron works and mines (32 Geo. III., c. 102). This Act contains a provision enahUng the Company to charge a toll for cattle driven along these " EaU Ways or Stone Boads." — See Clifiord, ibid., i. 43. B 2 SKETCH OF CANAL AND [Chap. I. t^s^!"""' Surrey Iron Eailway Company, passed in 1801, and authorising the construction of a railway or tramroad for the conveyance of goods and coal between Wands- worth and Croydon. These railways were made, like the canals, for general use by carriers and traders ; horse power was the only motive power used, and horses and carriages were both supplied by the persons using the railway, from whom the promoters were authorised to demand certain maximum tonnage tolls, which varied in amount according to the different classes of goods conveyed along the line. Stockton & Darlington Eailway <1823). 4 Geo. IT., C.33. 1 i2 Geo. IV. C. 44. Rapid frrowth of railways. 7 Geo. IV., c. 49. 13 & 14 Vict. 0.83. Section III.— Eailway Acts, 1823-1853. (i.) Special Acts. The "Iron Eailway" or "Tramroad" Acts were followed by what we may call the modern Eailway Acts, (for Eailway Acts in their main features are almost identical now with those of sixty years ago,) the earliest of which is the Stockton and Darlington Eailway Act, 1823. That railway was actually constructed under an Act passed in 1821, and was intended simply as a horse tramway for goods and minerals ; but the successful application of steam by George Stephenson as a motive power prompted the managers to apply for permission to use steam engines, locomotive and stationary, and this was granted by the Act of 1823. The year 1826 saw the authorisation of eighteen new railways — amongst them the Liverpool and Manchester line — and within twenty years of the passing of the Stockton and Darlington Act over 2,000 miles of railway had been opened for traffic. Then followed a railway mania, and in three sessions (1845-1847) no fewer than 8,590 miles of new railways were sanctioned by Parliament, nearly half of which were subsequently abandoned by the promoters, some under the authority i of the Abandonment of Eailways Act, 1850, and many without any Parliamentary consent (g). iff) Report of Eoyal Commission on EaUwavs, 1867, vv. 9. 10 CUflford, ibid., i., 85-89. ' i'l' > Sec. III.] EAILWAY LEGISLATION. 5 In thus treating railways as projects undertaken for The poucy the private profit of their promoters, which might be Lcgisiatm-o. sanctioned by Parhament for the public advantage, the Legislature followed the policy which had been pursued with great success and benefit to the country for half a century, in allowing private enterprise to develop and manage inland navigation. Under this system each project was considered entirely on its own merits, and sanctioned by a private Act, which contained the entire statute law applicable to the undertaking {h). The early Acts of railways accordingly followed closely Form of the form of the Canal Acts, iust as those again had Acts hor- ■^ 1 .. rowed from followed the precedents set by the earlier Acts relating the canai to river navigation. In this there is nothing surprising, for, as we have just seen, when the first railways were projected, it was anticipated that the new companies would be, like the canal companies, not carriers, but mere owners of so many routes along which the public and the existing carriers would travel and convey. Thus the Stockton and Darlington Eailway Act, 1823, (which ^^|°"'- was the first Eailway Act that contained any provision for passenger traffic, as well as the first that authorised the use of steam engines,) empowered the company to charge a maximum mileage toll upon "every coach, chariot, chaise, car, gig, landau, waggon, cart, or other carriage," drawn or used upon their line, without any limit upon the number of passengers in each vehicle, the intention being that stage coaches, as well as private carriages, should be adapted for use on the new form of highway. Nor was this anticipation on the part of the projectors of railways wholly at fault. So long as horse power was in use on railways, the companies seem to have confined themselves to taking toll for the use of their road by other persons ; and even for some time after the use of steam engines was introduced, the old system was partially kept up in the case of goods traffic. Thus in 1 838, fifteen years after th^ (h) Report of Koyal Commission, 1867, p- 7. 6 SKETCH OF CANAL AND [ChAP. I. Stockton and Darlington Company took powers for the use of steam engines, we find that " engines belonging to different parties, coach proprietors, and others," were running upon the Liverpool and Manchester line (i), and so far was the highway system at that time from being regarded as obsolete or impracticable, that a Select Committee of the House of Commons recommended that the right enjoyed by private persons of running their own engines and trains upon any railway should be extended to the Post Office upon special terms (j). The recommendation, however, was never carried into effect, and before long there seems to have been little Breakdown trace of the system left, for in a paper prepared by way'theo??.' the Board of Trade in 1844, the enactments conferring upon the public the right to run their own carriages and engines over the railways are spoken of as practically a dead letter, the reasons for this failure of what had been regarded as the primary use of railways being stated to be — first, the danger of running rival trains over the same lines ; secondly, the absence of any pro- vision for insuring access to the stations and watering- places along the railway ; and thirdly, the high rate of tolls, which made it impossible for third parties to run trains at a profit {k) . Bflectofthe But though the practice of traders or independent theory on °. ^ . , . , _. legislation, carriers running their own trains tell early into disuse, the theory of the railways being public highways per- vades all the early Acts, and even a great part of modern railway legislation (Z). Indeed, the right for anyone to run engines and carriages along a railway is, in theory, preserved to the present day, being in 8 Vict., c. 20, terms conferred by Section 92 of the Eailways Clauses s. 92, Appen- , dix A., p. 6. Consolidation Act, 1845 ; but the right is one to which (») Select Committee on Eailroada (1837-1838). — Minutes of Evidence, p. 133. {j) lb. Report, p. iv. {k) " Statistics of British. Eailways." — Appendix 2 to the 5tli Eeport of the Select Committee of 1844, p. 22. (I) See the remarks of WiUs, J., in SaU\. £., Brighton, %c., Maihoay (7o.», 15 Q. B. D., at p. 536. Sec. III.] RAILWAY LEGISLATION. 7 it would be found impossible to give practical effect, except within very narrow limits, and almost the only trace of the theory in modern railway practice is to be found in the "running powers" exercised by one company over the railway of another ; these are, how- ever, almost invariably the subject either of agreement or of special statutory provision in each case. The Special Acts of Railway Companies accordingly Form of provided for the free use of the railway by the public, oi saUway subject only, in the first place, to the approval by the company of the engines and carriages proposed to be brought upon it, and, in the second place, to the payment of tolls not to exceed certain maximum amounts. These tolls, in the case of animals and toUs- passengers, were (except in early days, when tolls were levied on each carriage without regard to the number Ante, p. 5. conveyed in it) mileage tolls at so much per head, and, in the case of minerals and goods, at so much per ton, specified articles being divided into so many classes, and the amount of the toll varying according to the class of goods conveyed (m). This classification of goods was, like the form of the ^l^i^"""- tolls clauses generally, borrowed directly from the Canal soods. Acts. The articles enumerated were usually about fifty in number ; these were arranged in three, four, or five classes, and there was commonly a provision that articles other than those enumerated should be ranked in one or other (generally in the most expensive) class. No clear principle runs through these classifications. The nature, bulk, and value of the articles conveyed, and their liability to damage, seem to have been more or less taken into coiasideration ; while a desire to , encourage agriculture and manufactures may perhaps be traced in the fact of raw materials and articles in general use in those industries being usually placed in the lowest (m) See the Tolls Clauses of the Great Western Railway Act, 1835, Appendix B., pp. 63, 64. Sections 190 and 191 of that Act provide that no carriages or engines are to be brought upon the raOway unless pre- viously approved by the Company. 8 SKETCH OF CANAL AND [CHAP. I. classes (n). It is a remarkable fact that while the Eailway Clearing House classification, upon which the companies act, contains some 4,000 articles, the classifi- cation of the Acts of 1820-1830 is to be found repeated word for word in Eailway Acts up to quite a recent date. Locomotive These classified mileage tolls were payable, as already stated, merely for the right of passage along the railway. Ante,p.4. But we havc seen that as far back as 1823 authority was applied for, and obtained, by a railway company to supply haulage power by means of steam engines, and from that time it became the practice to insert in Eailway Acts a clause conferring this authority on the company, the clause being worded (so long as the relative merits of steam and atmospheric pressure were in dispute) so as to extend to either form of mechanical power. When a company availed itself of this authority, and found locomotive power as well as the roadway, a further charge, or " locomotive toll " as it came to be ?pS;^.' we'' termed, was authorised, the amount of which was, in. B^p.'wf early Acts, left to be determined by the company. Conveyance It was not long before the companies took a further rauway Step (o). It needed but a short experience to demon- trate the convenience of the companies themselves becoming the conveyers of traffic all along their lines, and providing the whole of the necessary rolling stock and a staff of skilled officials for this purpose. Accord- ingly, in quite early Acts (1833-1840), in addition to G.w.E. Act, the toll clauses we find a clause authorising the Append^'' company, " if they shall think proper," not only to B„ p. 64. («) See the evidence of Eotert Stephenson hefore the Select Committer on Kailroads in 1838 (Minutes of Evidence, p. 126) ; and the evidence of Mr. Grierson hefore the Select Committee on Railway Eates in 1881 (Parti., p. 568). See also "Eailway Eates" (Grierson), pp. 72, 73. (o) The Carriers' Act (1 W. IV., c. 68), which was passed for the pro- tection of common carriers in the year 1830, hy which time over 50' different sections of Eailway had heen authorised, enumerates " mail con- tractors, stage coach proprietors, and other carriers," hut contains no- mention of railway companies. In one or two instances, however, railway companies were required hy their Act to be carriers— «.^. , the Liverpool and Manchester Eailway Act, 1827 (7 Geo. IV., c. 49, s. 138) ; the Newport and Pontypool Railway Act, 1845 (8 & 9 Vict., c. 159, s. 128) ; and, the Monmouthshire Eailway and Canal Act, 1852 (15 & 16 Vict., c. 126, 8. 128) ; hut these cases were exceptional. Sec. III.] EAILWAT LEGISLATION. 9 provide engines for use by other persons, but also to use and employ these themselves, " and in carriages or waggons drawn or propelled thereby to convey " (or " carry and convey " ) " upon the said railway all such passengers, cattle, and other animals, goods, wares, and merchandise, articles, matters, and things, as shall be offered to them for that purpose " ; and at first Parliament did not set any Kmit to a company's charges for the conveyance of goods along its railway, beyond that imposed by the common law upon the charges of carriers for conveyance on road or canal, viz., that they must be " reasonable " (p). The charges, therefore, authorised, by the Acts of this charging- period (1833-1840) in relation to goods traffic, were is^-isw threefold, viz. : — (i.) Eoad tolls ; (ii.) A charge for locomotive power without any specified limit ; (iii.) A " reasonable charge " for conveyance in addition to (i.) and (ii.), when the company found carriages as well as locomotive power, and conveyed the traffic along the railway themselves. This form of charging clauses (q) will be found i" the original Acts of several of the large railway com- panies, e.g. : — the Grand Junction Eailway Act, 1833, (3 W. rV. c. 34) ; the London and Birmingham Eailway Act, 1833, (3 W. IV. c. 36) ; the Great Western Eailway Act, 1835, (5 & 6 W. IV. c. 107) ; the Bristol and Exeter Eailway Act, 1836, (6 & 7 W. IV. c. 36)— and the explanation of it is probably to be found in the conditions of railway traffic in those years. The companies, so far as the roadway was concerned, were {p) As regards passengers, the railway companies seem almost from the first to have been the sole carriers, and the charges for their conveyance ■were, from an early date, limited to fixed amounts. (See Q-. W. B. Act, 1835, d, 167, AppendixB., p. 64.) (q) This expression is used, in the absence of any recognised term, to express the clauses which authorise or limit a company's charges, whether for the use of the railway or for conveyance. 10 SKETCH OP CANAL AND [ChAP. I. monopolists, and the limit to their tolls was the price paid for the extraordinary powers conferred upon them. As regards supply of locomotive power and conveyance, it was expected that they would have competitors, and the general policy of the Legislature in such circumstances seems to have been to rely upon competition as the most satisfactory means of adjusting any conflict of interest between the pubhc and the companies (r). Kewtormof But wc havo sccn that this expectation was not €lause in • " j? ;3 ■ 1841. realised, and the companies were soon louna m practice to be the sole suppliers of locomotive power, and, in most cases, of carriages as well, and no doubt this led to the further restrictions which in 1841 were placed upon the charges of new companies. From that date we find that a new form of clause began to prevail, by which an increased toll, of specified amount, was authorised when traffic was conveyed in carriages belonging to the company, and the further additional oxiord charge for the supply of locomotive power was also ACM843, limited to a fixed sum. The authorised charges under Appen/ii*' this form of Act were : — ji.,pp.66,67. (i.) Eoad tolls; (ii.) Increased tolls of fixed amount for traffic conveyed in carriages of the company ; (iii.) A fixed additional charge for locomotive power. This form will be found in most of the Eailway Acts of 1841-1844, e.g. : — the Warwick and Leamington Union Eailway Act, 1842, (5 Vict. c. 81) ; the Yarmouth and Norwich Eailway Act, 1842, (5 Vict. c. 82) ; the Oxford Eailway Act, 1843, (6 Vict. c. 10). "tended to Although in these Acts the fixing of the rolling stock Independent charges probably points to the recognition by Parlia- (r) As early as 1839 a Parliamentary Committee had reported in favour of prohibiting competition for the supply of locomotive power on railways, and in 1840 another Committee, speaking of the opposite view, which had prevailed in early years, said that there had heen " a total misapprehen- sion" on the part of Parliament in the matter. (Select Committee on Kailways, 1839, 2nd Report, p. xiii. ; ditto, 1840, 3rd Eeport, p. 3.) Sec. III.] BAILWAY LEGISLATION. 11 ment of the failure of the attempt to regulate these charges by competition, it is to be noticed that the aggregate of the three tolls was made the limit of the charges for conveyance on the railway by independent •carriers, as well as by the railw^ay companies, a clause in all these Acts providing that " neither the company Oxford nor any other person using the railway as a carrier shall ac^^sYs, •demand or take a greater amount of toll, or make any Appendix greater charge, for the carriage of passengers or goods than the company are by this Act authorised to demand." A third change was introduced before long, when Further conveyance by the companies had become the general charging rule, by the introduction of what is known as the 1845. Maximum Eates Clause, which limited a company's total charge for " conveyance " to something less than the aggregate of the three tolls ; in other words, if the company had the advantage, as conveyers of traffic, of performing all three services, they were to be content with something less than the aggregate of the three sums they were authorised, as toll-takers, to charge for each service separately. We then get the two sets of *' charging clauses," which are to be found in Eailway Acts at the present day ; — I. Tolls Glauses (as before), viz. : (i.) Eoad toll ; (ii.) Increased toll when the company supply carriages ; (iii.) Locomotive toll. II. Maximum Bates Clause— limiiing the total charges for conveyance (s). The new clause was introduced into the Acts of a object and enect o( the number of the railways authorised in 1845, and was ^^^^J^^^'^™ made a necessary part of all special Acts by a Standing ciaube. (s) The earliest specimen of this clause seems to have heen that inserted in the Kendal and Windermere Eail-way Act, 1845, (8 & 9 Vict., c. 32,) ■which was as follows : "With respect to the conveyance of horses, cattle, ■carriages and goods, the maximum rate of charge, including the tolls for the use of railway, and of waggons or trucks and locomotive power, and •every expense incidental to such conveyance (except loading and unload- ing), shall not exceed the sums following." 12 SKETCH OF CANAL AND [ChAP. I. Order of the House of Commons in 1846 (t). It has been said that the reason of this was that it was thought that " if a company provided both carriages and loco- motive power, they might make an easier profit than if either of these were suppHed by the trader " (it) ; but this seems to leave unexplained the cases in which the maximum rates are no more than the road toll itself, and the fact seems to be that the new clause was the result of a general demand for a reduction in the charges of railway companies ; both traders and carriers had become dependent upon them for the conveyance of their traffic, and their charges consequently affected every section of the public. At the same time, the tolls clauses were retained in their old form — no doubt in the interest of the companies themselves — while the restriction upon the charges of independent carriers above referred to was withdrawn, probably as being superfluous, for the system of trains being run inde- pendently of the railway companies having proved unworkable, the charges of the companies necessarily regulated those of the carriers who employed them. Thus the double set of charging clauses answered a two- fold purpose : the maximum rates clause insured to the public the advantage of cheap conveyance, while the tolls clauses protected the companies against rival conveyers on their own lines, whether private carriers or competing railway companies, by enabling them to levy tolls upon persons "using the railway" {i.e., con- veying traffic themselves) of an amount which put competition out of the question. (f) " The Committee on every railway bill shall fix the toUs, and shall determine the maximmn rates of charge for the conveyance of passengers with a due amount of luggage and of goods on such railway, and such rates of charge shall include the tolls and the costs of locomotive power, and every other expense connected with the conveyance of passengers with a, due amount of luggage and of goods upon such railway ; but if the Com- mittee shaU not deem it expedient to determine such maximum rates of charge, a special report, explanatory of the grounds of their omitting so to do, shall be made to the House, which special report shall accompany the report of the bUl." (u) Select Committee of 1882, Report, p. iv. ; and per Wills, J., in SaWa Case^o, 15 Q. B. D., at p. 537. Sec. III.] EAILWAY LEGISLATION. 13 It must not be concluded, however, from what has Baiiway been said, that railway companies (except as regards th^sofe"" passengers) at once superseded the old carriers. It is but nYt'^'*' true that few of the carrying firms seem to have tried tamers. the experiment of running their own trains along the railway, and those few, for the reasons already indicated. Ante, p. e. soon found themselves obliged to give up the experi- ment ; but for some years a great part of the carrying business remained in the hands of the old firms, {e.g., Pickfords, Parker, Chaplin and Home, etc.), who con- tinued to collect traffic from the public, and to contract for its safe delivery, employing the companies to convey it for them along the railway. On certain lines this practice prevailed for some years exclusively ; on others from the first the companies seem to have undertaken the business of general carriers for the public, as well as conveying for the carriers {v). This state of things is described in a judgment of judgment Wills, J., in a recent case (w), where he explains the S niu^ '^" various modes of carrying on the business of a railway '^^^' company contemplated by the framers of the Eailway Acts : — The company might be merely the owners of a highway and toll-takers for the use of it by other people with their own ■carriages and locomotives. That state of things would be worked out by the railway company possessing the mere line of railway from end to end, and by the persons making use of it, buying or renting contiguous land whereon to keep their rolling stock, and have their offices, availing themselves of the poWers ■of s. 76 of the Act of 1845, and getting on to the railway by "means of sidings connected with the railway. A second state ■of things prevailed extensively for many years after the rail- way system was in full operation, and for some years at least after the passing of the Act of 1845. The railway company provided the line and provided the engines and trucks, but they were not carriers. The large warehouses and sheds wherein goods were received, sorted, loaded, covered, checked, weighed, and labelled, and trucks or carriages marshalled and prepared (») See Select Committee of 1840, 3rd Report, p. 3 ; ditto, 1844, 5th Heport, Appendix 2, p. 22 ; ditto, 1881, Minutes of Evidence, p. 573. (w) Sail v. i., Brighton, #«., Ry. Co.o«. 15 Q. B. D., 536. 14 SKETCH OF CANAL AND [Chap. I. Conveyance of Malls Act, 1838, 1 & 2 Vict., c. 98. Railway Ecgulatlon Acts, 1840 and 1842, 3 & 4 Tict., s'fc 6 Tict., c. 65. Select Committee (1844). for convenient removal to their various places of destination, the staff of clerks, bookkeepers, porters, workmen, and horses necessary for these operations were all provided and maintained at the expense of the carrier, and no portion of it fell upon the company. The company, on the other hand, as owners of the rolling stock, for the use of which, as well as of their railways, they received payment, provided whatever accommodation they needed in order to keep in convenient proximity to the places where the carrier had his depots the necessary supply of rolling stock. The third state of things, which might exist simul- taneously with the second, or might be the one prevailing^ exclusively on a particular line, existed when the company were themselves the carriers of the goods, and when as carriers^ they provided the accommodation and performed the services above described («). (ii.) General Acts. Some years before the period we have now reached, ParHament had found it necessary to pass measures of general appUcation to railway companies; the earliest of these is the Conveyance of Mails Act, 1838, by which all companies were required, under a penalty, to carry mails, either by their ordinary or by special trains, at a " reasonable rsmuneration," to be determined ia case of difference by arbitration — a provision which remains in force to the present day. The inquiry of a Committee appointed in 1840 was followed by two Acts " for the due supervision of railways," viz., the Eailway Eegulation Acts, 1840 and 1842, from which date the general powers of supervision over railways exercised by the Board of Trade. " The great development of railway speculation in 1844 brought prominently into view a form of compe- tition, which seems at first scarcely to have been con- templated — viz., competition between different railway companies " {y) ; and in that year a Committee was (x) One of the questions discussed before the Select Committee of 1840 was the desirahility of prohibiting railway companies from being- carriers, and the evidence taken by them discloses a wide divergence of opinion upon the question. The recommendation of the Committee was against any such prohibition. (See 3rd Keport, p. 11, and see post, chap, iii.) (y) Eeport of Committee of 1872, p. v. Sec. III.] HAILWAY LEGISLATION. 1.5 appointed to consider the whole subject of railway- legislation, and how far the public might be expected to benefit by such competition. Amongst other conclu- sions arrived at by this Committee were : — (1) That the indefinite concessions made to the earher companies had become unnecessary ; (2) that fares and rates were too high ; (3) that competition between railway com- panies was likely to do more injury to them than good to the public ; (4) that with regard to new lines, Parlia- ment ought to reserve certain powers to be exercised after a given time, (z) One result of the recommendations of this Committee cheap was the passing of an A.ct which is generally known as irn^tf the Cheap Trains Act, 1844, from a provision in jt ^"'*- "■ *^>- relating to third class accommodation. Other sections of that Act (which were restricted in their operation Revision of to future undertakings) enacted in effect (1) that if at puJohiisrV any time after twenty-one years a company's profits ste"™''' ^'^ for the last three years should average 10 per cent., Sections 1-4. the Treasury should have power to revise its scale of maximum charges, with these limitations — first, that such revised scale was to be accompanied by a State guarantee of a 10 per cent, dividend for as long as it remained in force ; and, secondly, that no further revision should be forced upon the company until after the lapse of a further twenty-one years ; (2) that, whatever the company's dividend might be, the State should be entitled after the same period of twenty-one years. to take over the railway at not less than twenty-five years' purchase of the profits. At the same time the Legislature expressly declared that the passing of the Act was not to be taken as prejudging the policy either of revision or State-purchase, and accordingly it was provided that each contemplated revision or purchase should receive independent sanction from Parliament. Of this part of the Act the Select Committee of 1872 ^«p!j;''' remark that "its terms do not appear suited to the («) Third Eeport of Committee of 1844. See Eeport of Committee of 187'2, p. V. 16 SKETCH OF CANAL AND rCHAP. I. Section 17. Clauses added to special Acis, 1. Maxi- mum Rates Clause. Ante, p. 11. 2. Clause reserving power ol revision to Parliament. Consolida- tion Acts, 1 8-1.5. fitliEeport. present condition of railway property ; " at the time, however, they met with considerable opposition from the railway companies. One other provision of the Act demands notice, viz., that which empowers the Board of Trade, in the event of the infringement by a railway company of the pro- visions of any statute, special or general, to call upon the Attorney-General to take proceedings to enforce observance of the statute. Another outcome of the recommendations of the Committee of 1844 was that two clauses came to be added to all future Railway Acts. The first of these is what is known as the Maximum Bates Clause, to which we have already referred. The second clause, which took its place in Bailway Acts at this time, and has remained substantially un- altered ever since, was intended to reserve to the Legislature a power of control over companies in the future. This clause, as drafted by the Select Com- mittee, contained no reference to alteration of rates, but it was afterwards modified, so as to leave Parlia- ment free to revise the authorised maxima of future companies, if it thought fit to do so (a). Lastly, the recommendations of the Committee brought about the Consolidation Acts of 1845. The special Acts had hitherto been complete codes in themselves of the powers and obligations of the respective companies, containing, as a rule, some two or three hundred clauses ; and, although each Act necessarily contained certain provisions peculiar to the special undertaking authorised by it, the greater number of these clauses were " common form," repeated each year as a matter of course in all the Acts of the session, with only such slight variations as growing experience and new wants suggested. {a) Select Committee of 1844, Ist Eeport. The Committee of 1839 had drafted a clause in almost identical terms (1st Eeport). (For the form of the clause now required by the Standing Orders of the House of Commons, see Appendix B., p. 70.) Sec. III.] EAILWAY LEGISLATION. 17 These " usual clauses " fell under three heads, according to their subject matter — viz., (1) The constitution and internal management of the company, including its capital powers ; (2) the powers of taking lands for the purposes of the undertaking ; and (3) the construction, maintenance, and working of the railway, the use of it by the public, and the charges to be made by the company. The inconvenience of these enormous yearly additions to the Statute-book was obviated by the passing of the companies Clauses Consolidation Acts of 1845, — three general Acts (svict.'c.ie'). corresponding to these three main divisions of the ciauiesAot private Acts, and entitled the Companies Clauses, the <^'^*'"'''-^^'- _ -, „- _, ^ Railways -Lands Clauses, and the Eailways Clauses Consolida- p'S-V^^^ a<= . ■' {8Tict.,o.20 tion Act respectively. These contained the clauses usually inserted in the special Acts, and provided for their incorporation in future special Acts by a few words of reference. The sections of the Consolidation Acts are, moreover, arranged under sub-headings, each group of sections dealing with a separate subject, and admitting of separate incorporation. It is only a single " group " of sections in the last of the three Acts that Railways will require any detailed notice in this book, viz., that 1845^° " ' dealing with " the carrying of passengers and goods Append upon the railway, and the tolls to be taken thereon." It is somewhat strange that although there was in Raiiwaj; 1845 little or no trace to be found in practice of the "high- asM™^' way " theory, the majority of the twenty-one sections ascon- of this "group" appear to be applicable only to persons running their own trains and paying tolls to the com- pany. Probably this is explained by the fact of the Act being not a new enactment, passed with reference to the existing state of things, but a Consolidation Act, consisting of clauses, most of which had their origin under different circumstances (6). However this may be, both systems — viz., the system of "using the (i) The two other groups of sections dealing -with traffic — viz., Sections 108-111 ("with respect to the regulating of the use of the railway"), and Sections 114-125 ("with respect to the engines and carriages to be brought on the railway ") — relate almost entirely to conveyance by persons other than the railway company. C 18 SKETCH OF CANAL AND [ChAP. I. railway " by third parties, and that of conveyance by the company — are recognised and legalised by the Act. s-^92 Thus Section 92 provides that " upon payment of the Appendix toUs from time to time demandable," not exceeding the amounts fixed by the special Act, " all companies and persons shall be entitled to use the railway with engines and carriages properly constructed." On the other ^convey- band, Section 86, without imposing upon the company Appmdix ^^y ^^*y *o ^0 ^°' reserves to it (in terms similar to Compare those used in the early special Acts) the right to " use im,f.my aii^ employ locomotive engines or other moving power, B^^eS^ and carriages and waggons to be drawn or propelled thereby, and to carry and convey upon the railway all such passengers and goods as shall be offered to them for that purpose," and authorises them to make " such reasonable charges in respect thereof as they may from time to time determine upon, not exceeding the tolls by the special Act authorised to be taken by them." Equality The Only other section that calls for notice here is Clause, "^ Appendix ^^^^ is known as the Equality Clause. Many of the A., p.4. Canal Acts contained a clause enforcing equal mileage tolls ; that is to say, while power was given to the companies to reduce or raise the tolls in force for the time being, within the limits of their maxima, it was provided that the tolls should be levied at one uniform rate per ton per mile upon each class of goods throughout the entire length of the canal, without tegard to any difference of circumstances that might exist (c). A similar clause was inserted in the earlier \mif\uj' Railway Acts ; but the Legislature seem soon to have B^ptwJ recognised that the exigencies of railway traffic de- manded greater freedom and elasticity than was possible under any "equal mileage" system. Accordingly a modified form of the Equality Clause came to be inserted in the Acts of railway companies, and is re- produced in Section 90 of the Consohdation Act of (c) See tte recital to 8 & 9 Viot., c. 28. Sec. III.] BAIL WAY LEGISLATION. 19 1843, the object of which was restricted to insuring that the power given to each company of varying its tolls " should not be used for the purpose of prejudicing •or favouring particular parties, or for the purpose of collusively and unfairly creating a monopoly, either in the hands of the companies or of particular parties " (d). This object was sought to be attained by providing that all tolls should be " at all times charged equally to all persons, and after the same rate, in respect of all passengers, and of all goods or carriages of the same description, and conveyed or propelled by a like carriage or engine passing only over the same portion of the line of railway under the same circwnstances." In point of fact the section was practically inoperative, Ecmaiity except as regards one particular class of persons — viz., inoperative. the private carriers. From the days when the railway companies began to undertake the business of general carriers for the public, a keen competition sprang up between them and the firms of carriers, especially in connection with the carriage of small parcels. It would have been easy for the companies to put an end to the competition of these rivals, who were dependent on them for their means of conveyance along the railway, had they been at liberty to charge them at higher rates than the general public ; but in a long succession of cases, which will be considered more fully hereafter, the post, Courts consistently held that the Equality Clause pre- '"^p'*''^- vented any difference of charge being made between carriers and other members of the public. But, with this exception, the enactment proved of little effect, and we shall see that it was not long before Parliament, without returning to the system of equal mileage, thought it necessary to pass a more stringent post, p. 23. measure against differences of charge or treatment by railway companies. Another matter that attracted the attention of the itSglo Legislature in 1845 was the competition between rail- (TsTs^ (d) See tte recital to the section. Appendix A., p. 4. c 2 20 SKETCH OF CANAL AND [ChAP. I. ways and canals, and with a view to giving encourage- ment to the weaker of the two competing parties, or in order at any rate to put the two upon an equal footing, an Act was passed giving to canal companies the same 8&9vict., power to vary their tolls, without the obligation of charging equal mileage tolls, that had been conferred upon railway companies. In the same session, and 8 & 9 Tict., with the same object, another Act was passed enabling canal companies to become carriers of traffic upon their canals, and to make working arrangements with, or lease their canals to, other companies. Hitherto, as we have seen, canal companies, as a rule, had only been authorised to levy tolls upon the traders and carriers who used their canals. These Acts, however, only applied to companies that voluntarily brought themselves within their provisions. Committee In 1846 another Committee was appointed to consider of 1846. . the expediency of allowing amalgamations of canals with railways, a form of amalgamation which was becoming in- creasinglyprevalent. The Committee, without pronounc- ing in favour of a general prohibition of such amalgama- tions, laid stress upon the necessity of each case being " thoroughly sifted," and recommended that some de- partment of the Executive G-overnment should be charged with the supervision of railways and canals, commls '^^^^ recommendation led to the passing of an Act in the fmsV ^^™^ y^^'"^' constituting a " Eailway Commission " of c Vs ^'°*'' ^^^ persons, who were to report upon special cases re- ferred to them, as well as upon Private Bills and amalga- mation schemes. The experiment, however, came to little. In the year following the constitution of the Commission a Bill was introduced for extending its powers ; this failed to pass, and after the Commission had been partially united with the Board of Trade, its existence as a separate body was finally put an end to 14&16 by an Act of 1851, and its powers and duties were viot., c. 64. re-transferred to the Board of Trade. Hallway In 1847 an important step towards improved railway ■aoasef management was initiated by the companies themselves Sec. III.-IV.] railway legislation. 21 in the establishment of the Eailway Clearing House, for the purpose of regulating questions of interchange of "through" traf&c and adjusting the accounts between the different companies. It was not long before the Clearing House gained the adherence of the leading companies, and in 1850 Parliament passed an Actis&i* Yict. c 33 legalising its constitution, and conferring on it the power of suing defaulting members. The same year saw the passing of the Abandonment Abanaoc- of Eailways Act, 1850, (rendered necessary by the exces- ^^t'Tmoi sive speculation of the preceding years,) which enabled i?.^* i* ^^ unsuccessful companies to abandon their undertaking, wholly or in part, and released them from the condi- tions under which their powers had been conferred. Section IV. — Eailway Acts, 1854-1872. The years 1853-1854 mark a new era in railway ^^^^^''^' legislation. Hitherto, with few exceptions, railway fe^eSc'ewfth companies had been left free to conduct their 'business man^J- in the way that seemed best to themselves, the efforts ™^'"' of the Legislature being for the most part confined, in the first place, to insuring public safety, and, in the second, to preventing the abuse of the extensive powers of the companies by placing a limit upon their charges, and forbidding partiality. Further, those who had grievances against railway companies were left to assert their rights by means of the ordinary procedure before the ordinary tribunals. It is true that, as we have Ante, p, m. seen, certain powers of supervision over railways had been given to the Board of Trade ; their sanction was s & e vict. necessary for the opening of each new line of railway ; ss. 4-6. their approval was essential to the validity of bye-laws ; c. gr, '' ' and, in cases where a company had exceeded or abused /^'g-yj^t their powers, they were empowered to initiate legal °- ^^• proceedings for enforcing compliance with the law. The general policy of the Legislature, however, had been to refrain from interfering with the practical working of the railway system. In the years 1852 to 1854 the first step was taken 22 SKETCH OF CANAL AND rCHAP. I. Mr. Card- well's Com- mittee, 18B2-1853. Final Report of the Com- mittee (1853). 5th Report, p. 10. towards a new departure. At the end of 1852 alarm was created by the number and magnitude of the railway amalgamations proposed in the Bills for the coming session, including one for the union of the London and North-Western and Midland Eailway Companies ; and in December of that year another Parliamentary Committee was appointed to consider the question of amalgamation, and "the principles which ought to guide the House in railway legislation." This Committee, presided over at first by Mr. Henley, and afterwards by Lord (at that time Mr.) Cardwell, heard a great mass of evidence on a variety of points con- nected with the working of railways. Three questions chiefly engaged their attention— viz., 1, amalgamation; ■2, private bill legislation ; 3, facilities for traffic, especi- ally facilities for the interchange of traffic between different railways ; and with regard to the last of these, the problem that the Committee set themselves to solve was, how far the State ought to interfere with the liberty of the companies in the working' of their rail- ways, and whether such interference (if desirable) would be best effected by the ordinary Courts of Law, or by a department of the Executive. The Committee did not present their final report until July, 1853. In it the necessity for some inter- ference by the State, in order to insure to the public the full benefit of the railway system, was clearly recognised ; on the ground, however, that the consti- tution of the Executive Government was unfavourable for the determination of the questions likely to arise, the Committee recommended that "the fact of wrong having been done by the company should first be sub- stantiated before a public tribunal, and the aid of the Executive Department be afforded to that tribunal in framing its decisions with a view to their practical effect." The question of partiality and unequal treat- ment was briefly touched on, and it was pointed out that the necessity which existed under the existing law, for a person complaining of inequality of charges Sec. IV.] RAILWAY legislation. 23 to show that the different transits were effected " under the same circumstances," supplied the companies with iwd.,p.u. an easy mode of evading their duty of treating all members of the public alike. In conclusion, the Committee, after stating at length fation"™" their views on the general questions submitted to them, ^t^ Report, made certain practical recommendations, one of which alone touches upon the subject-matter of the present sketch, viz. : — That every railway company should b(3 compelled to afford to the public, in respect both of goods and passengers, the full advantage of convenient interchange from one system to another ; to afford to every class of traffic, including postal communica- tion, just facilities ; and to observe all statutory provisions, especially those requiring eqiMl charges under the same circum- stances; and that where complaint arises that any company has violated any of these obligations, provision should be made for the hearing and decision of such complaint in open court, with power to make use of the interference of the Railway Depart- ment, for the purpose of ascertaining by what specific and detailed arrangements such complaint may be effectually re- dressed. Practical effect was at once given to this recommen- Railway *^ and Canal dation by the passing of the Eailway and Canal Traffic Traffl" Act, Act, 1854, a single section of which imposed upon 3ll<^^^^f^^ railway and canal companies the obligations suggested ^^^e^^ix by the Committee. That section consists of three •^- p- 8- clauses, imposing separate, though closely connected duties, and constitutes the foundation of the jurisdiction of the present Railway Commissioners. The first clause i. Traffic requires every company to afford all reasonable facilities for the receiving, forwarding, and delivering of traffic. The second prohibits undue or unreasonable preference ?. unaue ^ . r: preference. or prejudice in favour of, or against, any particular person or company, or any particular description of traffic. The third clause enjoins upon companies, whose sys- 3-^^°j5J^- tems form parts of a continuous line of communication, to afford all due and reasonable facilities for the inter- change of traffic without delay, preference, or obstruc- tion. The duty of enforcing the provisions of the Act 24 SKETCH OP CANAL AND [Chap. I. ExcluslTe juriBdiotioa of the Court o( Common Pleas, Opinions of the Judges. Hans. 133. Wide dis- cretion vested in the Court. was given exclusively to the Court of Common Pleas, to vyhich summary application might be made by "any person complaining" of a violation of the Act, or, upon a certificate from the Board of Trade, by the Attorney-G-eneral. Power was given to the Court to direct inquiries before engineers or barristers ; and if the Court came to the conclusion that the Act had been violated, they were to issue an injunction re- straining the delinquent company from continuing such violation, disobedience to which might be met by attachment of any of the directors of the company, or by pecuniary penalties up to £200 a day. It will be noticed that the procedure prescribed by the Act differs from that suggested by the Committee in omitting any reference to the Board of Trade, and confining the whole proceedings to a court of common law, to be assisted, if necessary, by professional experts. The Judges of the day were loud in their protestations of their unfitness for the new duties sought to be imposed upon them. The Lord Chief Justice (Lord Campbell) stated in the House of Lords during the debate on the Bill, that, with one exception, the Judges were unanimous in agreeing that these duties were not " judicial duties " at all, and he pointed out that the Judges " had no statutable or common law authority to which they were referred, no de- cisions of their predecessors to guide them, and that to be able satisfactorily to discharge their new func- tions they must go as apprentices to civil engineers." The Act, indeed, left everything to the discretion of the tribunal before which any particular case might come, and that without any power of appeal. The facilities to be provided by the companies were to be "reasonable," and the differences in their treatment of different members of the public or different classes of traffic were not to be "undue or unreasonable"; but the Act was silent as to the principles which were to guide the Court, or as to the considerations which were to be allowed to weigh with it. Sec. IV.] EAiLWAY legislation. 25 The only enactments passed during the next eight years, which concern our present subject, are— (1) the cueap Cheap Trains Act Amendment Act, 1858, one section Amendment of which prohibited canal companies, wAicA were also'^\^^^\' railway companies, from accepting leases of other ('Jf*=,Pf''- canals, except under the sanction of a special Act of f fif*"*'^'^'' Parliament, — a provision restricting the powers con- ferred by the Act of 1845, and inserted at the instance s & 9 vict., of the canal interest in order to prevent the control of Ante, p. 20. canals passing further into the hands of railway com- panies ; and (2) the Eailways Arbitration Act, 1859, ArtmSn which provided for the settlement by arbitration oif^^if^^- differences between railway companies. In 1863, ^''"•' "• ^^• many clauses which had become usual in Eailway Bills since 1845 were consolidated in another Eailways ciaiiTe^lot, Clauses Act. Amongst these were clauses relating to If&ir working agreements- between companies, the duty of ■^"='-'°-°^- considering and approving these being given to the Board of Trade. In the following year two Acts were passed with the Eaiiways obiect of obviating the expense of special Acts in won raoiii- , . ^i.-,-,-r^ ties Act, certain cases. One 01 these — the Eailways Construe- 1864. tion Facilities Act, 1864 — was intended to enable new '*''<='•• «• 121. or existing companies, on compliance with specified conditions, and with the consent of the landowners affected, to make new lines without application to Parliament. The fact, however, that an objection by a single rival railway or canal company rendered an application to Parliament necessary, was in itself ss. 9-10. enough to make the Act inoperative from the first (e). By the other of these Acts, the Eailway Companies Railway Powers Act, 1864, companies were enabled to obtain Powers Act, . , .. . , . 1884. various powers, including power to enter into working 2? & 28 agreements with other companies ; but this Act is believed not to have proved more effective than the {e'j Sections 9 and 10 were repealed by 33 & 34 Vict., c. 19, but the modifioations in the procedure effected by that Act are believed to have liad no practical result. 26 SKETCH OF CANAL AND [ChAP. I. other. Under both Acts the prescribed method of procedure was an application for a certificate that all necessary conditions had been compHed with, which the Board of Trade were authorised to issue after laying a draft of the proposed certificate before Parliament. Royal In 1865 a Eoval Commission was appointed to Commission, -^ . , ,i 1865. inquire into the charges of railway companies, botn as regards their amount and their equality or difference with reference to different traffic. The report of the Commission is probably the most comprehensive paper ever penned on the subject of railway rates, but is too long to be examined here. It must suf&ce to state that upon the practical question, how far it was de- sirable for Parliament to endeavour to control railway rates, the Commission reported that they did "not consider that it would be expedient, even if it were practicable, to adopt any legislation which would abolish the freedom railway companies enjoyed of charging what sum they deemed expedient within their maximum rates when properly defined, limited as that freedom was by the conditions of the Traf&c Act." Eaiiways The oulv legislation that immediately followed Regulation ■ „ , -r^ , ^ . • _li A<:|i868. upon the report of the Eoyal Commission was the A^'endix'^' Regulation of Eailways Act, 1868, which contained A ,p,ii, provisions relating to the accounts of companies, the safety of passengers, and compensation for accidents, as well as provisions having reference to the liabilities and obligations of companies as carriers. Section 16 steMiboat imposed upon railway companies the obligation of (s. 16). observing equality of charge in their steamboat traffic in terms similar to sections 30 and 31 of the Eailways Diaintegra- Clauses Act, 1863 (f) ; and section 17 required railway rates Companies, on the application of any person who had sent goods by railway and had paid the charges, to (/) The power to run ateamera had heen conferred upon a railway company as far hack as 1848, when the Manchester, Sheffield, and Lincoln- shire Railway Company was authorised to work hoats across the Humber (11 & 12 Vict., c. 92). (B. 17). Sec. IV.-V.] eailwat legislation. 27 furnish an account distinguishing the charge for con- veyance on the railway from the charge for terminal Eauways services. The Eegulation of Eailways Act, 1871, was iofwl?" chiefly directed to questions of puhlic safety. viot., c! rs. Section V. — The Eailwat and Canal Traffic Act, 1873. In 1872, as in 1852, the magnitude and importance Joint com- " mlttee, 1872. CI some of the proposed railway amalgamations led to the appointment of a Parliamentary Committee, com- posed of members of both Houses, and in the following year the recommendations of this Joint Committee (whose report closely followed the lines of the report of the Eoyal Commission) were embodied in the Eegulation of Eailways Act, 1873 [g). (1.) By that Act power was given to the Crown to Appomt- appoint a new tribunal, under the title of the Eailway jurisdiction Commissioners, consisting of three members — one to commia- 1 c • ■ 1 1 -I I- ■ Blonera. be 01 experience m the law, and one of experience (ss. 4-10.) ■*■ *- Appendix m railway business — to whom was transferred the ■^^■.ppis-is. jurisdiction of the Court of Common Pleas under the Traffic Act of 1854, together with certain other duties in connection with railway and canal companies, including the enforcement of the fresh obligations im- posed by the Act upon those, companies. Most of the powers of the ordinary tribunals (omitting, however, the power of punishing for contempt of Court) were conferred upon the Commissioners, and they were empowered to make general orders for regulating proceedings before them. Their decisions on questions of fact, like those of the Court of Common Pleas under the Act of 1854, were to be final; but whenever they were of opinion that a case before them b. 26. raised a question of law, they were in some cases directed, and in others empowered, to state a case for the opinion of a superior Court. This was the only provision made by the Act for appealing from the iff) By the Act of 1888 (s. 1) the title of the Act is changed to tho Eailway and Canal Traffic Act, 1873. 28 SKETCH OF CANAL AND [ChAP. I. decisions of the Commissioners ; but the Courts decided that the Commissioners were in the same position as any inferior Court, and might be prohibited from proceeding in matters over which they had no jurisdiction — e.g., in cases where the facts disclosed no legal evidence of the alleged ground of com- plaint {h). Report The demand for a change of tribunal seems to have Committee, come exclusivsly from the traders, and the Committee xiii. ' had reported that certain disputes, such as those involving questions of preferential treatment and ob- structions to traffic, could be better and more cheaply investigated by a special tribunal with practical ac- quaintance with such subjects, than by any existing institution. rnddSin™ (^-^ '^^^ ^^^y °^ publishing their rates in books to fat^e'f" "' ^® ^^P* ^* ^1^ stations was imposed upon the companies chaptli^vi.' by section 14 of the Act, and power was given to the Commissioners, upon the application of any person interested in a particular rate, to order a company to " disintegrate " it, by distinguishing the charge for conveyance from the charge for terminal services. A recommendation to this effect had been made both by the Joint Committee and the Eoyal Commission. rato"^'' (3.) The suggestion of the Committee was accepted &t,Vhlp- tb^* *b^ Traffic Act of 1854 should be "explained," *^''^- so as to include through rates amongst the facilities required by that Act when demanded by a company. This was effected by section 11, which empowered any railway or canal company to propose to any other company a through rate for through traffic by a specified route, and authorised the Commissioners, in case of disagreement between the companies, to decide whether the rate should be allowed, and to divide a through rate between companies in whatever proportions they considered fair, without requiring (h) This seems to have been first decided in tlie case of Toomer v i C ^ S., ^c.,Ry. Cos.'^^ ' ' Sec. V,] RAILWAY legislation, 29 them to apportion to any company its full mileage maximum. The question of facilities for the interchange of RecommeQ- ■■• ° dation ot traf&c had been raised before the Committee by the the com- ^ mittee, railway companies themselves, some of whom feared ^yg"^'/''' obstruction to their own traffic from proposed amalga- mation schemes ; and the proposal to empower com- panies to enforce compulsory through rates was adopted by the Committee as a safer and more convenient alternative than a system of general running powers. The Committee, however, pointed out that if the sending company were entirely at liberty to make the rate as low as they pleased, there might be cases in which they would, for some purpose of competition in which the owning company were not interested, desire the latter to carry goods at a rate that would not yield them a fair profit ; and that, on the other hand, if it were provided that the proportion of the through rate paid to the owning company should not be less than the rate taken by that company for similar goods carried by themselves over the same portion of their own line, the owning company might raise their local rates for the mere purpose of keeping the traffic of the sending company off the line. They, therefore, recommended that a through rate should be divided, as a general rule, according to mileage, after allowing for terminals, but that the Commissioners should have power to settle any dispute either as to the rate or its apportionment. (4.) In not attempting to determine a scale of maxi- Terminals. mum terminal charges, Parliament acted upon the Appendix . AT J.- A.,pp. 16-16. recommendation of the Committee. At the same time, means of controlling these charges were introduced — first, by the provision requiring companies to distin- ^^^^ p. 28. guish terminals from mileage charges in any given rate; and secondly, by giving the Commissioners power to determine the question of the reasonableness of any terminal charge, and making their decision binding on all Courts. (5.) The Act required every railway company owning 30 SKETCH OP CANAL AND [ChAP. I. saTc^r °^ having the management of a canal to keep it in good pp-''i6-i7. working condition, and provided that no agreement by which control over canal rates or traffic was given to a railway company should be valid, unless sanctioned by the Commissionets, who were directed to withhold their sanction whenever they considered such an agree- ment prejudicial to the interests of the public. ojmans"'"' (6-) The conveyance of mails, and the determination ibir"^°" °f differences between the Postmaster-General and any rp. 17-18. railway company, were provided for by sections 18-20. ciassifloa- (7.) In one important respect the recommenda- ITOTt tions of the Committee were disregarded. They had xxxvii.'&ii. reported that a new and uniform classification of goods was both desirable and practicable, and that the companies should be compelled to adopt, as between themselves aiad the public, the classification of the Clearing House, and to adapt their statutory rates to it; but Parliament apparently did not see its way to any satisfactory legislation on the subject, and companies were left free to adopt the Clearing House classification as between themselves and the public, or not, as they pleased, so long as their statutory powers were not exceeded. Hallway Such are the main features of the Act of 1873, which sioners. was passed in the first instance for five years, and then continued in force from time to time till December 31st, 1888. In accordance with the powers conferred on the Crown, three Commissioners were appointed — viz.. Sir Frederick Peel, Mr. H. Macnamara (Barrister-at-law), and Mr. W. P. Price (Chairman of the Midland Eail- way Company) ; and upon the death of Mr. Macnamara in 1877, Mr. Miller, Q.C., was appointed to succeed him. Board of I^ 1874 the Board of Trade Arbitrations Act was Sonflct^ passed, which enabled the Board of Trade in certain sr&'ss cases to substitute the Commissioners for themselves pin'ii. ' as arbitrators of differences to which railway or canal companies were parties. Whether the experiment of 1873 has realised the high expectations that were formed by the advocates of the new tribunal is a question Sec. V.-VI.l eailway legislation. 31 ■upon which judgments have differed, and upon which it '^■^^^ii^°' would be out of place to express an opinion here. The ^i™™*^" number of cases that have come before the Commis- 1874-1888. sion has certainly been small (i), but, on the other hand, it has been said that its utility is not to be measured solely by the instances in which it has been seieot com- called upon to " hear and determine," but also by the Kopoit, deterrent and controlling influence of its existence. In 1881, a committee of twenty-seven members was appointed by the House of Commons to inquire into select com- the working of the Act of 1873, as well as into the issiisss. general question of rates and fares. Before examining the report of this Committee, it will be convenient to refer to a question which had arisen between the rail- way companies and the traders of the country, and which not only occupied much of the attention of the Committee, but has since attracted general notice^viz., the question of terminal charges. Section VI. — The Terminal Question. The work now performed by railway companies in SiTraoter of connection with the transmission of goods for the public performed includes two distinct classes. The first of these arises cJmpaS out of the ownership and control by the companies of the lines of railway and rolling stock, and consists of the supervision and management of the line, and the working of the trains. The second class consists of work performed in relation to the goods conveyed, apart from the working of the railway and trains ; these services, from being performed at each end of the railway transit, are known as " terminal services." Such are loading and unloading, covering, checking, labelling, invoic- ing, watching, marshalling and shunting particular trucks, warehousing (in the sense of taking charge of goods until, the train is ready to start at one {i) Up to the end of 1887 they averaged less than 12 per annum, ex- cluding working agTeements and arbitrations ; and the average number of days on which the Commissioners sat during each of the last ten years has been under 40 (Speech of Attorney-General before the Standmg Committee, 1888). Three classes of service. 32 SKETCH OF CANAL AND [ChAP. I. end, and until delivery can be effected at the other) ; lastly, in certain cases, collection and delivery by cart. It is clear that, just as the construction and main- tenance of the railroad, engines, and carriages, together with a staff of engineering and traffic officials, engine- drivers, guards, and signalmen are necessary for the performance of the first, so, for the second class of work, station premises, buildings and plant, are re- quired, as well as a staff of porters, clerks, and others. Three heads Terminal charges are, therefore, made to cover, first, of charge in " .^.^ inj^xo-* terminals, the interest on the capital laid out on land tor station premises, and on the construction of buildings, sidings, machinery, etc. ; secondly, all the working charges^ — e.g., the maintenance of station premises, the cost of clerkage, manual labour, etc., and risk; thirdly, profit on the foregoing {j). They may further be arranged under three heads, according to the class of service they represent — viz. (1) " Structural," or " station terminals " — i.e., charges for station accommodation, including the use of sidings, buildings, machinery, etc. ; (2) " Service," or " handling terminals " — i.e., charges for the work performed at stations by the staffs of clerks and porters ; (3) "Cartage terminals" — i.e., charges for collection and delivery off the premises of the company (k). Origin of "VVe have already, to some extent, anticipated the terminals. ... . ',t, history of terminals m tracing the gradual development Ante,.^ of railway business. Thus we have seen how, from starting as mere takers of toll for the use of a highway, the railway companies, step by step, came to undertake the whole business of general carriers ; first, supplying rolling-stock for the use of other persons ; then undertak- ing the duty of conveyance along the railway, while the {j) Minutes of Evidence, 1881, Part I., p. 567. (Evidence of Mr. Grierson.) (k) Cartage is on all hands admitted to te something outside a railway company's ordinary business, and, therefore, not covered hy its maximum, rates, and the expression "terminal" is, therefore, most conveniently confined to the services rendered and accommodation provided upon the premises of the company. pp. 4-14. Sec. VI.] RAILWAY legislation. 83 various intermediate services between the railway truck and the houses of departure and destination were per- formed, and the accommodation necessary for their performance suppHed, by general carriers ; lastly, as the general carriers disappeared, becoming themselves general carriers for the public, and performing the services and supplying the accommodation which had previously been performed and supplied by the carriers. When this was done the companies charged for the new branch of their business in the same way that the carriers had previously done, the only difference (except as regards amount) being that instead of the carriers paying the companies for conveyance along the railway, and charging the public one lump sum to cover this payment and the remuneration for their own services, the companies received the total charge direct from the public (I). In recent years the right of railway companies to Nature of make these charges was questioned by the traders. betwStho The merits of the dispute will be discussed hereafter ; companies it must here suf&ce to say that the question turned traders! upon the meaning of the Maximum Bates Clause — a |°=*>pp-^6- clause first introduced into special Acts, as we have seen, in 1845, and occurring, with various modifica- tions, in the Acts of all companies since 1846. The earliest specimen of this clause has already been Ante, p. u. quoted, and it will be noticed that "loading and unloading " are there excepted from the services covered by the maximum " F'"^'"' ^ ' ' ties Act, in which the model toll powers were set out, reserved jflgg power to make a reasonable charge, in addition to the JJl't^jp 2; maximum rate for conveyance, for carriers' services rendered at any terminal station, and contained the following definition of a terminal station — A station is not to be considered a terminal station in respect of goods, unless they are received there direct from the consignor, or are directed to be delivered there to the con- signee — a definition which has been inserted in most recent Acts. In 1867, one of the questions considered by the Eoyal ^^j^^^^"""' Commission was whether terminal charges ought to be "er. included in the maximum rate. In their Eeport they Kepoit, p. pointed out that Parliament appeared to have held different views from time to time as to the services which were to be included in the maximum rate, but that at that time it seemed to be considered that " service " terminals were outside, and " station " terminals within the rate, and they recommended that terminal charges should be defined to be charges for all services rendered by a railway company beyond conveyance from station to station, and that they should be based upon the expenses incurred in the receipt and delivery of the eoods on and from the line. In 1872 the principle that joint com- terminal services should be charged for as something Ante, p. 29. outside the mileage rate seems to have been taken for granted by the Joint Committee, and the question considered by them was whether the charges should be limited to fixed maxima. D 2 36 SKfitCit Ol? CANAL AND [Chap. L Question In By 1881, however, the terminal question had assumed 1881. •' -^ a different form. Traders complained of the charges for short distance traffic as being beyond the maximum powers of the companies, and the companies justified the excess by their right to make terminal charges ; the existence of this right in some cases, and its extent in others, was questioned by the traders, their conten- tion being that the power of each company to charge terminals was strictly confined to the services specified in its Act, and that where an Act contained no refer- ence to terminal services, everything was covered by the maximum rate. Meaning of We have seen that the special Acts of the various uiinaiexcep- companies differ with regard to the mention of terminal Ante, p. 34. scrviCes, some enumerating more services than others, and some containing no reference to terminal services at all. Of late years, it is true, the Acts had been tolerably uniform, but the traders and the companies put very different constructions upon the terminal clause in these Acts, especially with regard to the words "loading and unloading" and "services inci- dental to the business of a carrier." In the view of the traders these referred only to the manual labour of porters, and the work of collection and delivery performed by a road- carrier at the present day; the companies contended that they included the accommodation, without which such work could not be performed, and that the extent of carriers' services must be measured, not by what carriers do at the present day, but by the services rendered by carriers when the maximum rates clause was intro- duced. "station" The dispute was keenest over the "station" or " ' " structural" terminals, both on account of the mag- nitude of the sums involved, and also because very few Acts contained any direct reference to the use of stations or sidings. In the old Eailway Acts the word " station " does not occur ; the companies, like the canal companies, were authorised to erect toll-houses Sec. VI.] BAiLWAY legislation. 37 (which was all that, as toll-takers, they required), and the adjoining landowners were in many cases autho- rised to build "wharves," "depots," and " warehouses," and to charge for their use, a similar power being conferred upon the companies in case the landowners did not avail themselves of their authority (o). Later on, depots and warehouses were built by carriers, or built by the companies and rented by carriers {p), while the stations of the companies seem in the first instance to have been constructed mainly for the ac- commodation of passengers. "When the companies became general carriers of goods for the public, it became necessary for them to have buildings of their own for the reception and handhng of goods, so that the modern goods-station may be said to be a combi- nation of the carriers' warehouses and the companies' toll-houses. No doubt the enormous increase of rail- cost of way traffic necessitated the erection of buildings such stations, ts were never contemplated when the early Eailway Acts were passed, and the companies relied on the vast outlay they had incurred under the belief that they were entitled to recoup themselves by terminal charges, as a strong ground for the recognition of their claim to " station " terminals {q). They also pointed to the fact that, although the practice of companies to make these charges had been notorious. Parliament had continued to insert the same clause in Eailway Acts year after year, instead of saying in distinct terms that station accommodation was to be included in the mileage rate (rj. (o) Clifford's History of Private Bill Legislation, i. SO. — See Gloucester and Cheltenham Eailway Act, 1809 (49 Geo. III., c. 23). (p) Messrs. Pickford built the first warehouse in London for the accommodation of the goods traffic on the London and Birmingham Eailway ; it was afterwards hought by the Company. — Select Committee, 1881, Minutes of Evidence, Part I., p. 680. (Evidence of Mr. Findlay.) {q) The London and North Western Company have spent in the con- struction of goods stations in London, Manchester, and Liverpool alone, over £5,000,000. (Minutes of Evidence, 1881, p. 681.) See also evidence of Mr. Grierson, (ibid., p. 573). (»•) See evidence of Sir T, Farmer, (ibid.^ p. 847.) 38 SKETCH OF CANAL AND [Ch AP. I. '^Service'' With regard to " service " terminals, the dispute was mainly as to the extent of particular services usually Cartage. excepted in the special Acts, while cartage being generally admitted to be something outside what was intended to be included in the rate for conveyance, no serious opposition was raised to an extra charge to customers who did not cart for themselves, even in the case of those companies whose Acts contained no reference to collection and delivery. Section VII. -1881-1888. (i.) Beport of Select Committee, 1881-1882. Report of The Ecport of the Committee of 1881-1882 dealt with niittee, ' a Variety of complaints which had been preferred before them against railway companies by members of the Complaints " J r , . ^ against trading public. These had relation chieiiy to : — Companies. 1. The amounts of rates, which were alleged to be sivo rates, ofteu exccssivc and illegal. 2. Muiti- 2. The difficulty of obtaining information as to what and want of ratcs were authorised, arising from multiplicity of in Special private Acts and imperfect classification. Acts. ^ ^ 3. Diffe- 3. Variations in rates without any correspondmg rate'!'' variation in the cost of service to the companies, and often in favour of particular towns, or of export or import traffic. Right of (1 . ) With regard to the complaint that rates were exces- Companles . . , to Terminals sive, m the sense that they were beyond the statutory recognised. . „ . . maxima, the Committee pointed out that the question really at issue between the traders and the companies was the right of the latter to charge for terminals. The evidence given before them had conclusively proved that large sums had been expended by railway companies in providing, from time to time, accommoda- tion in the shape of stations and sidings, which had in many cases previously been provided or leased by private firms of carriers ; and without expressing any opinion on the legal questions involved in the dispute between the companies and the traders, the Commis- Keport,p.v, sioners recommended, on the one hand, tha,t the right Sec. VII.] RAILWAY legislation. 39 of the companies to charge for "station terminals" should be recognised ; and, on the other hand, that the public should be protected against the risk of excessive charges by the companies being required to notify in some public way the amounts which they claimed to be entitled to charge. (2.) With regard to the second head of complaint, uniform 1-1 1 ni • T ■ classiflca- the evil was hardly m dispute; the only question was woaieeom- as to the remedy. The Committee recommended that ibia. p. xvi a uniform classification should be adopted throughout the whole railway system, and that advantage should be taken of any application by a company for Parlia- mentary powers to take into consideration their existing rates and fares. (3.) On the question of differential or exceptional ^ff^^^^^l^^ rates, the existence of which was admitted by the *"»' ''"*<"''■ companies, and justified as being in some cases bene- ficial to the public, in others inevitable, some of the observations of the Committee are so apposite at the present time as to justify their repetition here at length : — But for the competition introduced by the low rates given ibw. p. viii. by railway companies, trades would be much more local, and the trader who was nearest the market would probably make a larger profit. But, on the other hand, this competition cannot but be advantageous to the public ; that Greenock sugar refiners should be in the same markets as the sugar refiners of London, while it may be a grievance to London re- finers, must be an advantage to Greenock refiners, and cannot be a disadvantage to buyers of sugar. * * • * Again, taking the case of the inland towns, which complain ibui. v. x\. of the lower mileage rates granted between towns which have better access to the sea, it is obvious that the railway com- panies are really only preserving to the latter the advantages which nature has given them, and that to prevent them giving the lower rates would really benefit no one except the owners of steamers. It may, therefore, be assumed that some of the in- equalities of charges complained of are to the advantage, rather than to the disadvantagfi, of the public. Where there is an undue preference, the law now gives a remedy. A preference, to be illegal ^nd to furnish a reasonable cause of complaint 40 SKETCH OF CANAL AND [CHAP. I. must be unjust. It is not unjust so long as it is the natural result of fair competition, and so long as equal rates are given for like services under like circumstances, and for like quantities of merchandise. imposst- While admitting that it was only natural that bllltyof " ■ r ^ flxinga attempts should be made m the mterests oi home satisfactory ■*- i i n etondard of producers to fix some standard by which rates should ppjx., A ^® determined, the Committee doubted the wisdom of the attempt, and, referring to proposals made in the Equal mile- direction of a system of " equal mileage" rates, they iiraoticawe. quoted the report of the Joint Committee of 1872, as showing why any such system was impracticable, and General wouud up their remarks upon the general question by M to filing saying that "they could not recommend any new ibici^p.xii, legislative interference for the purpose of enforcing upon railway companies equality of charge." Recommen- The last subject dealt with in the Beport was the extension ot nature and constitution of the tribunal from which tionotthe aggrieved parties were to seek redress. It was no Railway °° ^ commis- secret that the Eailway Commission had given greater sioners. •' . satisfaction to the traders than to the railway com- panies, who advocated a return to a purely legal tribunal, to be aided when necessary by assessors. The Committee, however, so far from being in favour of a change which involved a reversal of the legislation of 1873, recommended that the existing Commission should be made permanent, and considered that the complaints of the companies would be met by giving a right of appeal from its decisions. They also re- commended an extension of the powers of that body in various matters ; amongst others, in applications for through rates, which they suggested the Commissioners should have power to order on the application of traders, provided no rate was imposed on a company lower than the lowest rate charged by it for similar traffic in similar circumstances. Mr. Cham- Nothing was done towards giving effect to the re- Bui, 1884. commendation of this Committee until 1884, when Mr. Chamberlain, then President of the Board of Sec. VII. j railway legislation. 41 Trade, introduced " a Bill to amend the Eegulation of Eailways Acts." This Bill, by which it was proposed to grant a limited right of appeal from decisions of the Commission, without altering its constitution, and to authorise a charge for " station terminals " in the case of all companies who were willing to submit to a revision of their classification and maximum rates, pleased neither the traders nor the railway companies. From each side the clause dealing with terminal charges was the one which evoked the keenest oppo- sition ; the companies complained that these were only conceded to them upon condition of their relin- quishing rights which Parliament had already conferred upon them, while the traders protested that even that concession was too much. The opposition to the Bill of 1884 resulted in its intruaue- withdrawal, after it had passed a second reading, with wia'arawai ■ 1-1 ■ c 1 T^e 1 of Private a suggestion that the simplest solution of the dirnculty biiis by the would be the voluntary revision by the railway com- companies, panics of their classification and maximum rates, and the introduction of private Bills authorising the revised rates, and, at the same time, providing for terminals. This course was adopted by nine of the principal rail- way companies, a general classification, based upon that of the Clearing House, being agreed upon by them, and scheduled to their respective Bills. These Bills, however, met with even less favour from the trading associations than Mr. Chamberlain's Bill, and they were withdrawn without being allowed to proceed to a second reading. In the next session (1886), and again in 1887, the Government brought forward Bills identical in their main features with the Bill introduced in 1888, which ultimately became the Eailway and Canal Traffic Act, 1888. (ii.) The Railway and Canal Traffic Act, 1888. This Act, which came into force on January 1st, Traffic Act, 1889, is fully discussed in the following chapters ; it is, ^i & =2 ^ therefore, unnecessary here to do more than refer to i™'p".^i^53. 42 SKETCH OF CANAL AND [ChAP. I. its main features, and to point out the most important changes introduced bj' it. The Act deals exclusively with "merchandise" S.65. traffic {i.e., goods and animals), and is arranged under four heads as follows : — Part I., Court and Procedure of Eailway and Canal Commissioners (ss. 1-23) ; Part II., Traffic (ss. 24-35) ; Part III., Canals (ss. 36-46) ; Part IV., Miscellaneous (ss. 47-59). Part I.— Court and Procedure (s) (1.) The New Commission. ttotnd" In the first place, the views of the railway companies the°Kauwa"y have been met by a change in the constitution of tht ^ima-i' Eailway Commission, the Act providing for tho imder the . „ . . n n ' *« Act of 1888, appomtment of one Commissioner ot experience m railway matters," and another of no specified quahfica- tion, as under the Act of 1873, but substituting for the Bs, 3, 4. third Commissioner three Judges of the superior Courts of England, Scotland, and Ireland, to be specially assigned for not less than five years as ex officio members of the Commission {t). g 5 (1). The Commissioners may hold sittings in any part of the United Kingdom, but an ex officio Commis- sioner is not to be required to attend out of the part s. 4 (1). of the United Kingdom for which he is nominated. s.6(3). Not less than three Commissioners are to attend at the hearing of any case, and provision is made for the 8 6 (6 (7). inability of any Commissioner to attend, and for vacancy in the office. The ex officio Commissioner is to preside at the hearing of all cases: and on questions, S.5(3), J. o _ which in the opinion of the Commissioners are ques- tions of law, his opinion is to prevail ; but there will be =.1.'. an appeal, (and, except where the Courts of Appeal of the different parts of the United Kingdom differ, only (s) This part of the Act is £ully discussed in Chapter -vii, {t) Sir Frederick Peel and Mr. Price have been appointed as Commis- sioners under the Act, and the three judges, nominated as ex officio Commissioners, are Mr. Justice WUls, Lord Trajmer, and Mr. Justice Murphy. Sec. VII. j eailway legislatio?. 4H a single appeal) from his decision. Upon questions of fact the view of the majority of the Commissioners will, as hitherto, be final. The Commission is made a Court of Eecord, and is given all the powers, rights, ss 2, is and privileges of a superior Court ; the power of punishing for contempt, however, is only to be exer- cised with the consent of an ex officio Commissioner. In case the extra business entailed on the Courts m 3. 6. England requires it, provision is made for the appoint- ment of an additional Judge of the High Court. (2.) Jurisdiction. The jurisdiction of the Commissioners is extended Extension very much in the way suggested by the Select Com- tion. mittee, the most important of the new powers conferred upon them being — (i.) To enforce obligations imposed by special Acts — spectai Acts. S. 9 (a.) Eelating to traffic facilities and undue pre- ference ; (&.) Eequiring a company to provide works for public accommodation ; (c.) Imposing any obligation on a company in favour of the public or any individual, (ii.) To enforce any statutory provisions relating to private sid- private sidings. °^''' (iii.) To decide any question involving the legality of Legality ot any charge sought to be made by a company s. 10. in relation to merchandise traffic, and to enforce payment, (iv.) To compel two or more companies to cooperate orciora on in carrying out orders. ponies. (v.) To order traffic facilities and through rates, orders not- wlthstand- notwithstandmg any agreement between ing agree- companies, unless the agreement has been s. n. confirmed by Parliament, or by the Board of Trade, or by the Commissioners themselves ; and in the case of through rates or tolls on s. 37 (s). canals, whether the agreement has been con- firmed by Parliament or not. 44 SKETCH OF CANAL AND [ChAP. I. Damages, (yi ) ijiq ^ward damages either in addition to, or in substitution for, other relief, subject to two restrictions, viz. : ii'i*- First, that no damages are to be awarded unless the complainant applies to the Com- missioners within one year after discovering the matter complained of. *• 13- Secondly, that in cases of undue preference, no damages are to be awarded if the rates complained of have been duly published in the station rate-books, until the company have been called upon to remedy the matter of complaint, and have failed to do so. Through (yii.) Upon applications for through rates, to sub- ^•28 (5)- stitute for the rate proposed any rate they deem just and reasonable. (3.) Locus Standi. SS ^'^^ principal alterations as regards locus standi are — (1.) Appiicri- (i.) The right given by the Act of 1873 to public lie bodies, bodies to make applications is extended, and, 2i>***- in particular, harbour boards and dock com- panies are empowered to make complaints where their port or dock is placed by the action of a company at an undue dis- advantage as compared with others. cationifb'' ("'^ Traders are enabled to apply for through rates through"' after first making complaint to the Board of s?!!' Trade. (liy^^Appu- (iii.) Eailway and canal companies are permitted to ™™p™i<^s. apply for a decision upon the question whether any existing or proposed rates create an undue preference ; and where the legality of any charge is questioned by a trader and upheld by the Commissioners, the company may obtain an order for payment, Sec. Vll.] RAILWAY LEGISLATION?. 45 Part II. — Traffic. (1.) Bevision of Bates and Charges. Provision is made for compulsory revision by all Revision of railway and canal companies of their maximum rates. Post,'ciiap. A revised classification of goods and a revised schedule of maximum rates are to be prepared in the first ° instance by each company, and submitted to the Board of Trade, who, after considering any objections that may be lodged with them, will endeavour to agree with the company upon a classification and schedule, or, failing such agreement, will determine a classifica- tion and schedule themselves. Ultimately the revised classifications and schedules will be embodied in Provisional Orders. Bills for the confirmation of these are to be introduced into Parliament, and when any such Bill is passed, the rates and charges mentioned in the Provisional Order confirmed by it will become the authorised rates and charges of the ■ company. Provision is made for the addition to the Future authorised classification from time to time of any cSm^-* unclassed articles upon application to the Board of iwa'. (ii). Trade. The vexed question of terminals is set at rest by Terminals. the provision that maxima are to be fixed in the revised s. 24 (i) (6). schedules (u) for terminal charges, (including structural as well as service terminals,) just as in the case of mileage rates, so that when the revised schedules come into operation there will be no longer any question either as to the legality of these charges or as to the reasonableness of their amount. The Act, however, is silent as to how far either the maximum rates or the terminal maxima are to be fixed with reference to the existing powers of the companies, (v) but it provides (j() As to the definition of " terminal services " in the Act, see post p. 65. (p) The Bin, as it left the House of Lords, contained a provision that the revised maxima were to he on the whole equivalent to the existing statutory powers of the companies ; this was struck out hy the House of Commons, and the Act merely provides that the Board of Trade shall determine a schedule of maximum rates and charges, which would in their 46 SKETCH OP CANAL AND [ChAP. I. s- 24 (1). that, in determining the amount ol terminal charges, regard is to be had only to the expenditure reasonably necessary to provide the accommodation in respect of which such charges are made, irrespective of the outlay actually incurred. (2.) Publication of Bates and Classifications. Publication In addition to the station rate-books, railway com- or rates ana , _ - tS'*'"'" panies are required to keep for inspection and sale PosV^^ ^^^' copies of their authorised classification, and of their Chap. VI. schedule of authorised maximum rates, and also, it would seem, copies of their working classification, where this differs from the authorised one. The obli- «s. 28j_33 gation of keeping rate-books at stations is extended to the tolls of canal companies, and to the rates for traffic by sea ; and where a rate includes transit by sea and land, the sea rate is to be distinguished from the railway rate. Further, the right, conferred upon senders Ante, p. 26. of traffic by Section 17 of the Act of 1868, of requiring a company to distinguish a mileage rate from terminals, 8. 33 (3). is extended by a clause similar to one which of late years has been inserted in private Acts, and may now be exercised before payment of the charges. No increase 0.33(6). is to be- made in any of the rates in force without notice of the intended increase being published as prescribed by the Board of Trade. (3.) Through Bates. Through We have already seen that a limited power of apply- Ante,'p.44. ing for through rates is conferred upon traders, and that the jurisdiction of the Commissioners is no longer opinion he "just and reaaonatle." These words, however, seem to imply that it is not intended that a company's existing powers shall be ignored. TJpon this point the following passage in the judgment of Cockhum, C. J., in the case of South JEastern Saihvay Company v. Mailway Commis- sioners,^'' seems apposite. "Having once made its bargain with a public company, in a matter of commercial enterprise, in the Act by which the company is constituted and its powers are conferred, the legislature could not, unless such a power has been expressly reserved to it, with any consistency or justice, afterwards impose fresh obligations on the company, or deprive it of any of the powers and vested rights, the grant of which had been the inducement to undertake the enterprise." (5 Q. B' D. at p. 231.) Sec. Vll.] RAILWAY LElGISLATlOlSf. 47 confined to allowing or refusing the particular rate proposed by the applicant. (See post, Chapter IV.) (4.) Undue Preference. The question of undue preference is dealt with bv ^'i*"<^ p™- Sections 27-30, but except in the points which have *■*• ^^-so. already been noticed in connection with jurisdiction and locus standi, (viz., that harbour boards and dock companies may make complaint of undue preference, that companies may apply for a determination of the question whether a rate creates an undue preference, and that the Commissioners are empowered to award damages,) it seems doubtful whether the Act has materially altered the existing law. For the effect of the other provisions relating to undue preference, which are in the nature of instructions to the Commissioners as to their administration of the Act of 1854, or declarations upon doubtful points of existing law, we must refer the reader to Chapter V. It must here suffice to say that the Act prohibits differential rates in favour of or against foreign mer-s.27(3). chandise ; that, subject to that prohibition, competition is recognised as justifying differential charges, so long iwd. as public interests are thereby served, and provided the inequality cannot be removed without unduly reducing the rates charged to a complainant ; that group rates are in terms legalised, so long as the s. 29. distances are reasonable, and no undue preference is created; and that in all cases where unequal charges 9.27(1). are shown to exist in respect of similar traffic or similar services, the burden of justifying the inequality is thrown upon the company. f5.) Conciliation Clause. Section 31 provides that traders and local authorities, conciliation who think that they or persons in their district are ^ *j ^ ' being charged or treated unreasonably or oppressively by a company, may complain to the Board of Trade, who are authorised to call upon the company for an explanation, and to endeavour to settle the difference 48 SKETCH OP CANAL AND [ChAP. I. between the parties amicably. The Board of Trade are to submit reports of these complaints to Parliament from time to time. Part III. — Canals. Canals. This part of the Act is fully dealt with in Chapter VIII. It is to be noticed that both Part I. and Part sa. 23, 36. II. apply to canal companies as well as to railway companies, but Part III. contains provisions applicable only to canals, the objects of which seem to be — (1) to remove any existing obstacles to an effective system of through tolls and rates between different canals, and between canals and railways ; (2) to prevent the control of canals falling into the hands of railway companies, to the prejudice of the traffic on canals ; and (3) to assimilate canal and railway companies in certain respects, especially with reference to the powers exercised over the latter by the Board of Trade. Through (!•) Thus the Commissioners are empowered to rates and Qj,^gj, through ratss and tolls notwithstanding agree- s. 3r(2)(3). ments, statutory or otherwise, and notwithstanding that the consent of some third party is required to any variation of the rates or tolls charged by the com- ^ ^3 pany in question. Canal companies also are given wide powers of making voluntary arrangements with one another in relation to through traffic, and are autho- rised to establish a clearing system. Control of (^•) '^^'^^ Commissioners are empowered to alter or railway^ adjust the charges in force on any canal which is 8."^^™'"'' owned or controlled by a railway company, if they consider that those charges are calculated to divert traffic from the canal to the railway, to the detriment of the canal or persons using it. The Act further imposes stringent penalties upon the directors or officers of a railway company, who are parties to any misapplication of the funds of their company for the acquisition, without express statutory authority, of any interest in a canal, and provides that any interest so acquired shall be forfeited to the Crown. B. 42. Sec. VII.] EAiLWAT legislation. 49 (3.) The lurisdiction exercised by the Commissioners canai . , p -1 . , . terminals. in the matter oi railway terminals is extended to thes. srci). terminal charges of canal companies. Canal com- Returns to panies are required to make returns to the Board TJadl"' of Trade, showing their capital, revenue, expenditure, *" profits, etc. ; their bye-laws are made subject to the Bye-iaws. approval of the Board of Trade ; the Board are autho- ^'^' rised to direct an inspection of any canal which is inspection. reported to them to be in a dangerous condition, and provision is made for the abandonment of canals which Abandon- ment. have become unnecessary, or have fallen into disuse, by s. ts. a section which follows the lines of the Eailways A.bandonment Act, 18.50. Paet IV. — Miscellaneous. The only provisions in this part of the Act requiring notice here are as follows : — (1.) Section 47 makes perpetual so much of the Act 4aae"^^' of 1873 as is left unrepealed. pT'""'- (2.) Whenever in the course of any proceedings it j^™^'^°' becomes material to show the receipts or receipts. profits of a company, these may be proved by written statements or returns verified by the affidavit of a responsible officer. (3.) Parliamentary agents in practice before Paniament- ^ •' ° . 1 r ,1 ary agents. August 10th, 1886, may practise before the s. si. Commissioners. (4.) Expenses incurred under the Act by local j^^f°^ea of authorities may be charged upon the rates. authorities. (5.) Proceedings pending before the Commissioners Busta^s^s under the Act of 1873 are to be transferred befo«^^ to the new Commissioners, and continued as |i°°^''«- if they had been originally instituted before the latter. (6.) Proceedings pending before any superior Court, pe"ndtag which under the Act of 1888 might be brought courr"" B. 58. E 50 SKETCH OF CANAL AKD [ChAP. I. before the Commissioners, may be transferred to them upon the application of either party. The Board of Trade are empowered to make rules for regulating, amongst other things, the preparation and submission to them of the revised classifications and schedules, and rules have been made in accord- ance with this power, so far as regards railway com- panies, which will be found at pp. 55-62 of the Appendix. Chap. II.] railway legislation. 51 CHAPTER II. TOLLS, EATES, AND CHARGES. PAGE Section I. — Definitions 51 „ 11.— Tolls • .... 56 ,, III. — Bates 63 ,, IV. — Charges : (i.) Terminals 65 (ii.) Other Charges 83 ,, V. — Revision of Bates and Charges under the Traffic Act, 1888 85 Section I. — Definitions. Eeom early times it has been a well-established rule charges of of common law that carriers' charges must be reason- SE able, a rule without which the obligation imposed upon them of carrying for all members of the public would be illusory (a). In the preceding chapter we^j^gggot have seen that the charging powers of railway com- eompSes. panics have from the first been subject to express' statutory limitations, originally imposed with refer- Ante, ence to the use of their railroads by third parties, ^''' and afterwards extended to charges for conveyance. We have also seen that the Act of 1888 seems Ante, p. 45. intended to introduce a further change in the same direction by imposing fixed limits to terminal charges. If that Act is carried out in the way that seems {a) In some early Acts of ParUament provisions are to be found author- ising justices of the peace to fix the rates to he taken by carriers. See jjci' Lord Kenyan, C. J., in ■ v. Jac/cson.^"^ E 2 52 TOLLS, BATES, [ChAP. II. contemplated, railway rates legislation may be divided into three stages : — Threesteges (i.) The Tolls Stage, when the only statutory tion. limitation was the limit placed upon tolls '•™''- (1800-1840). 2. Rates. (ii.) The Bates Stage, when Parliament limited the charges for conveyance as well as the tolls (b) (1841-1888). 3. Termi- (iii.) The Terminals Stage, when not only tolls and mileage rates for conveyance, but terminal charges also, will be limited to fixed maxima. Btotato"' " '^^^ effect of a statutory authority to make certain charge'toed ^^^^ chargcs may be, and ordinarily is, twofold, viz., sums. ^Q impose a limitation, and to confer a corresponding privilege. On the one hand, the persons or company so authorised may be debarred from charging more than the sums specified in respect of the services to which the statutory authority has reference ; on the other hand, they may escape the necessity, which would otherwise arise, of either proving an agreement on the part of a customer, express or to be inferred, to pay the particular charges in question, or of showing that they are reasonable, for, in the absence of either statutory authority or agreement, the only promise which the law ordinarily implies, or a jury may infer, on the part of a person employing another, Application IS to pay what the service rendered is reasonably tovJiway worth (c). Thus, in the case of a company's tolls, the companies, fact that goods have been conveyed over a railway or canal entitles the company to demand the toll in force for the time being, (d) not exceeding the statutory (J) Althoug-h the modem maximum rates clause dates from 1845, it was in 1841 that Parliament hegan to limit the charges of the companies for conveyance (ante, p. 10). {c) As to the right of action to enforce charges authorised hy statute, see Addison on Torts, 5th edition, p. 63, and the authorities there cited. As to the power of the Commissioners to enforce payment of charges, and to determine the legality of any existing or proposed rate, see section 10 of the Act of 1888, Appendix A., p. 25. (d) See Mayor of Newport v. Saunders. ^^ Sec. I.] AND CHAEGES. 53 maximum ; in the case of terminals, on the other hand, s- is [i873] 1 j_ j_ • 1 1 *> Appendix Where no statutory maxima have been nxed, companies a.,p.i6. have been obliged to show that the charge in question is reasonable. With regard to a railway company's mileage rates for conveyance, it is, as we shall see, post.p.es. a doubtful point how far, in the absence of positive agreement, it is incumbent on the com- pany to prove their reasonableness. It used to be said that the charging clauses of Eailway constmc- Acts were to be construed against the companies and in charging cIqusgs favour of the public, on the analogy of Taxing Acts (e). But it has been pointed out by high authority that Eailway Acts, so far from imposing a charge on the public, in fact limit a right to payment, which other- wise the companies might enjoy without limit (/), and in recent cases little or no weight seems to have been attached to the suggested principle of interpre- tation (g). At the outset of any inquiry into the law of railway charges, it becomes necessary to examine the terms which are used to describe them. The Act of 1888 andciiarges. makes use of three words — viz., 1. Tolls ; 2. Bates ; 3. Charges ; but contains no definition of these terms. In this respect it resembles other Acts, for with the single exception of the Railways Clauses Act, 1845, none of the Eailway Acts contain an explanation of these words. The Act of 1845 contains the following '■ 3- clause : — The following words and expressions, both in this and the .^""ilg",', special Act [i.e., the Act authorising the construction of any Railways railway and incorporating the provisions of the general Act] i8«. shall have the meanings hereby assigned to them, unless there g,^'"'""' ^"' be something in the subject or context repugnant to such AppendixA., construction ; that is to say, the word " toll " shall include any (e) Stockton and Darlington Sy. Co. v. Barrett ; "^ Hull Sock Co. v. Zamarclie.^"^ An extreme illustration of this doctrine is afforded ty the decision in Stotirhridge Canal Co. v. Wheelei/.^''^ (/) Per Lord Cairns in Pri/ce v. Monmouthshire Canal and Ry. Cd's.^''^ 4 App. Ca. at p. 202. (g) See the cases collected in Browne and Theobald's "Law of Eail- way Companies," (2nd edition), p. 285. 54 TOLLS, RATES, [ChAP. II. rate or charge or other payment payable under the special Act for any passenger, animal, carriage, goods, merchandise, articles, matters, or things conveyed on the railway. It has been said of this provision, that it " does not in any way limit or restrain the construction of the word ' tolls ; ' it does not assume to define it ; it merely specifies certain payments, which shall be held to be included by it, even if per se they could not be brought within any correct definition of it. Further, it is necessary to extend the construction beyond the strict technical meaning of toll per se, for toll per se, without the addition of ' thorough ' or ' traverse,' or some adjunct applying it to the passage of goods or passengers, would be simply unsuitable with reference to a railway. It must clearly, then, mean at least a payment, the consideration of which is the passage of passengers, carriages, or goods on the railway" (h). Threemean- The expression " toU " may, in fact, be said to bear "toll." three distinct meanings in connection with railway Ante, p. 13. matters, corresponding to the three sets of duties which we have seen in the last chapter that rail- way companies successively took upon themselves. 1. Eoad-tou. rp]2Qs (1) "toll," in the narrowest and strictest sense, is the sum paid to the owners of a railway for the use of their line as a highway, by a person pro- viding his own trucks and means of locomotion. andromi^-' (2) " Toll," in a more extended sense', includes not chai^eB. only the charges made by a company for the passage of traffic over their line, but also charges for the use of their engines or carriages, by persons conveying their L^convey- own traffic. (3) " Toll," in its widest sense, includes {h) Per Coleridge, J., in ^ 3 R. & C. T. Ca., at p. 13. (t) The decision of the Vice-Chanoellor was reversed by the Court of Appeal and House of Lords upon another point, hut no opinion was ex- pressed upon this question. As to the meaning of the word " toll " in s. 97 of the Eailways Clauses Act, 1845, see Ante, p. 53. ' Secs. II.-III.] and chaegbs. 63 engines and carriages properly constructed " {tt). The right thus conferred does not, however, appear to be one which will be enforced specifically by the Courts on account of the continuous acts which would be necessary to give effect to it, {e.g., working the points and signals, &c.) (w.) ; neither ia it one which in any circumstances would be of practical utility, since it would seem that it does not extend to the use of a company's stations or watering-places {v). Moreover, as the Act contains no provision enabling persons to obtain access to the railway, the right is one which could only be exercised (except with the consent of the company or adjoining landowners) by persons occupying private sidings or branch lines connected with the railway. Section III. — Bates. The power of a company to fix its rates {i.e. its Power to ax charges for conveyance) depends on the joint operation conveyance, of the clauses of its special Act, and section 86 of the 8Tict.,c.2o, Eailways Clauses Act, 1845. That section, to which ''^^^ we have already referred as conferring a general authority upon companies to convey trafflc upon the Ante, p. is. railway, empowers them to make "such reasonable charges as they may from time to time determine upon, not exceeding the tolls by the special Act autho'rised to be taken by them." The word " rea- J^^a^ona^ie 11,,. . , charges. sonable gives rise to the question whether the fact ^^i**' p- ^3- of a company's rate being within its statutory maxi- mum is in itself enough to make it binding upon the public. In their Fourth Annual Eeport, the Eailway Eeport,p.4. Commissioners said: — "It is well known that the charges which a company may take must not exceed the maximum tolls authorised by its special Act. It has been less noticed that they must also be reasonable." In a recent case, however, before the House of (tt) Midland Ry. Co. v. Great Western Uy. ftj.i^S' («) Fow.ell Duffryn Co. v. Taff Vale My. Co.^« \v) Midland Sy. Co. v. Ambergate My. Co^^ 64 TOLLS, BATES, [CHAP. II. Lords {w), Lord Watson (qiaoting a dictum of his own in a previous case {x) said : — " Prima facie, I am prepared to hold that a rate sanc- tioned by the Legislature must be taken to be a reasonable rate. * » * I do not think a court of law would be justified in entering upon an inquiry for the purpose of ascertaining whether the Legislature had authorised an unreasonable rate, and without such an inquiry it would be manifestly unjust to hold that it was unreasonable." It appears, therefore, that as regards amount, the fact of a rate being within the statutory maximum is conclusive evidence of its reasonableness, though, in particular circumstances, it may be open to any person to show that the rate is rendered unreasonable in consequence of its being charged arbitrarily or capri- ciously, as in the case of Pickford v. Grand Junction By. Co.,^^ in which a station to station rate was held "unreasonable" because it was the same in amount as the carted rate between the same places. nSSnd to ^ compa.ny is not bound to carry by the shortest shortest possible route, and the mileage, for which they may route. charge, is not necessarily restricted to the distance between sending and receiving stations. Thus, in Myers v. L. d S. W. By. Co.,™ where the usual course was to send goods by a route which involved their traversing a piece of line twice over, and it was found that this course was reasonable under the circumstances, the company were held entitled to charge for the whole distance traversed, including the deviation to and from the London station. Rateable Where rates are authorised at so much per ton per ta'SfonB.'"' mile, it has been doubted whether, in the absence of express provision, a company may charge rateably for fractions of a ton or a mile. In Pryce v. Monmouth- shire Co.^' the question was complicated by the fact that a clause in the Company's Act expressly conferred {w) G. W. Ey. Co. V. McCarthy <>o 12 App. Ca., at p. 235. \x) 3Ianchester, ^c.,Ey. Co. v. Srown,^''^ 8 App. Ca., at p. 71 5. Secs. III.-IV.j and charges. 65 the right in respect of certain traffic ; a majority of the Oxford Raii- Court of Appeal held that notwithstanding this, the A^^;.£ff ■ right existed in respect of traf&c generally, and, the^-P-^^' House of Lords being evenly divided in opinion, the judgment stood. Most modern Acts contain a clause authorising a company to charge for any fraction of a ff^^J^ ton or mile less than a quarter as a quarter (y). aixB^'^™" Section IV. — Chaeges. (i.) Terminals. The history of terminals and the nature of theThetemi- dispute to which they gave rise have been already °lt'a*t'rest' touched upon. Their legality was in a great measure of'ml,'^"' established by the decision of the Queen's Bench Appendix Division in Hall's Case;^ and the Act of 1888 Ante, p%5. appears to be intended to put an end to all further question by providing for the determination of maximum charges for specified terminal services and accommodation. When this has been carried out, terminal charges will stand on the same footing as mileage rates, and so long as the authorised maxima are not exceeded and the charges are enforced indif- ferently against all persons, there would seem to be no room for question, either as to the legality of charges for terminal services, or as to the reasonableness of the amount of any particular charge (z) . The Act of 1888 does not state how far the existing how far ^ terminal («/) See MeAway Navigation v. Brooh.^'^ (z) In the Act of 1888, the term " terminal charges " includes " charges in respect of stations, sidings, ■wharves, depSts, warehouses, cranes, and other similar matters, and of any services rendered thereat," (s. 65). It is suhmitted that this definition of terminal charges has re- ference only to charges made by companies in their capacity of carriers of traffic. The distinction hetween the possession of goods by companies as carriers and their possession as warehousemen, is weU established at law, (See Chapman v. G. W. Hy. Co.ii, 5 Q. B. D., at p. 281 ; Van Toll v. S._ H. Ry. ftj.iso), and the expressions "terminal services" and " tei-minal charges" have hitherto been used exclusively with reference to the duties arising out of their possession as carriers, i.e., the custody necessary for the fulfilment of a carrier's obligation to "receive, forward, and deliver." The charges of a warehouseman — e.g., charges at a cloak-room— must necessarily vary with the period during which goods are left in his possession ; so with demurrage on trucks, and other similar charges. (See N. E. By. Co. v. Cairns.^^O'') F 66 TOLLS, BATES, [Chap. II. maxima are to depend on existing powers of company. Board of Trade Rules. Rule 1 (d). Appendix A., p. 65. Question turns on the meaning of the Maxi- mum Rates Clause, Ante, p. 11. powers of a company are to be taken as the basis of its revised maxima, but each company is required to submit to the Board of Trade, together with the maxima proposed by it, a statement of its existing terminal charges, showing in each case the authority for making the charge. The extent of such authority must depend upon the proper interpretation to be placed upon the clauses of each company's special Acts, and as it is difficult to say how far the decision in Hall's Case'" turned upon the evidence before the Court and the wording of the particular Act in ques- tion, an examination of the general question of the right of railway companies to charge terminals may not be out of place at the present time (a). It is the more necessary to vi^w the question without reference to the wording of any particular company's Act because, although the various Acts differ as regards the mention of terminal services, there seems to be no trace of these differences having arisen from any intention on the part of the Legislature of conferring wider earning powers upon one company than another (b). The question turns mainly upon the meaning of the Maximum Bates Clause — a clause first introduced in 1845, and inserted in all special Acts since 1846 — by which a limit was fixed upon the charges of com- panies for all services incidental to conveyance on the railway. The expression "incidental to conveyance " is obviously capable of very different interpretations, and in order to judge whether the Legislature intended (a) In Sail's Case^", as well as in Kempson's Case^^'^, whicli was argued tefore the Queen's Bench Division at the same time, evidence had heen given before the Commissioners to prove what was formerly the practice of railway companies and carriers as regards terminal services. The de- cision of the Queen's Bench Division is criticised hy the late Railway Commissioners in. their Twelfth Annual Eeport, pp. 3-6, see 5 R. & C. T. Ca. 48. The decisions of the High Court relating to terminals are considered, post pp. 78-81, but it will be found that they all turn upon the facts of a particular case, or the phraseology of a particular Act. (J) Minutes of Evidence, 1882, p. 101. (Evidence of Pember, Q.O.) The same witness said, " The whole question is a ' legid muddle,' arising from the transition of railway companies from road- owners to general carriers not having: been watched or provided for with sufficient care." — Ibid, p. 100. Sec. IV.] AND CHAEGES. 67 by that phrase to include terminal services, it is necessary to inquire what meaning was attached in the early days of railways to the term "conveyance," and what was the practice before 1845 with regard to terminal services and charges. In the last chapter we traced the changes that the The earjy charging clauses of the Eailway Acts underwent from "'<=*« ™"'»'n DO rcfGrcncG time to time, and saw that whereas by most of the *°**™'""''«- Acts passed between 1833 and 1840 the companies, if they chose to undertake the conveyance of traffic along their lines, were entitled to charge any reason- able sum in addition to their road-toll and locomotive charge, in the case of companies incorporated between 1841 and 1844 the additional charge for conveyance was limited to a fixed sum per ton per mile. It seems Ante, i.. lo. clear, however, that this hmitation had no reference to terminals (c) . It must be borne in mind that although the system of the railways being used as highways was soon found impracticable, neither Parliament nor the promoters of the early railways contemplated railway companies supplanting the existing carriers. It is true that power was reserved to the companies a,lmost from the first to convey along their railways, but the intention seems to have been that, when this power was exercised, the company should convey for carriers and others who had previously conveyed along Toads and canals for themselves, but that the general public should continue to employ the carriers as they had previously done. This was, in fact, the prevailing state of things at first, while for some years, and certainly after 1845, it existed side by side with the modern practice of the companies carrying for the public without any intermediate agency. It follows, therefore, that in seeking to ascertain what in early days was deemed to be included in railway conveyance, we must (c) ' ' Parliament did not contemplate that the railway companies would act as carriers as they have done ; therefore you may say that the mind of Parliament was hlank upon the suhject." (Evidence of Sir T. Farrer tefore Select Committee, 1881, llinutes of Evidence, Part I., p. 839.) F 2 68 TOLLS, BATES, [ChAP. II. look to the services which were performed by the Ante, p. 13. companies for the carriers, and we have seen that these included little or nothing beyond the haulage of loa.ded trucks along the line of railway. The lan- guage of the early Eailway Acts points to the same view. A distinction is drawn in these between the functions of railway companies as (1) Toll-takers, when they receive toU for the use of their line, and a further payment if they " supply " locomotive power, {i.e., supply engines or motive power to persons conveying traf&c for themselves ;) and (2) Conveyers or Bailway- Carriers, when the companies "use and employ" engines themselves, to " draw or propel " loaded conTey- trucks (cZ). This view of conveyance, as consisting of ance ■^ii^y the supply of roadway, locomotive power, and trucks, SotiTO°™" explains the form of special Act which prevailed in the raiY™™'^ years immediately preceding 1845 (1841-1844). The trucks. clause conferring express authority to convey is there cf. Oxford omitted, but the authority is implied in the power to Act, 1843. charge an increased toll in the case of traf&c " conveyed B., pp. 66-67. in carriages belonging to the company," which takes the place of the " reasonable charge for conveyance " of the earlier Acts (e). thta°s°L -^y 1845 the companies had on many railways, if not i8«- on most, entered into competition with the carriers by becoming themselves general carriers for the public, and undertaking the collection and distribution of traffic. In a document prepared by the Board of Trade in of British^ 1844 the constituent parts of the expense of carriage Select Com- are thus enumerated: — (1) Collection; (2) Loading 5tii Report,' and packing; (3) Use of railway, locomotive power Appenata, ^ ^' ; ' /' . f 2- and waggons ; (4) insurance against railway risk ; (5) Unloading ; (6) Distribution ; (7) Insurance against (d) See Aberdeen Case''-, ante, p. 61. As to the indiscriminate use of the words " carry " and "convey," see ante, pp. 57-61. (e) At the present day, when a company is called upon to distinguish what is charged for conveyance from the charge for terminals in a given rate, it is required to include in the charge for conveyance — 1 . Tolls for the use of the railway ; 2. For the use of carriages ; 3. For locomotive power. (The Traffic Act, 1873, s. 15, Appendix A., p. 16.) Sec. IV.] AND CHAEGES. 69 carriers' risk. The Board of Trade pointed out that (3) and (4) alone fell strictly within the function of a railway company, and that the remaining items, repre- senting about 20 per cent, of the total cost, were Question .,,.,, ,.,, .. . whether carriers duties, as to which there was great diversity railway . o ./ companies of View whether railway companies should be allowed should be •' -"^ allowed to to undertake them. The Board of Trade considered compete , with that the public were likely to gain from the competi- ^l^^^H ^ tion between the companies and the earners for the*^™^^^- performance of " carriers' duties," and the Select Committee of 1844 seem to have taken the same view. ethBeport, p. XTi. It is obvious that unless the companies had been able to charge for the performance of these extra duties, there would have been no inclination on their part to undertake them, and it appears that in point of fact the Board of Trade's estimate was founded upon what was a usual difference between the charges made by the companies to the carriers and those made to the public — in other words, terminals represented 20 per Terminals -^ . 20 per cent. cent, of the total rate. It would appear also that, in of the total calculating the cost of terminal services, station ac- commodation must have been taken into account, since it seems to have been generally admitted that a railway company was under no obligation to pro- vide such accommodation for a carrier, the practice being for the carriers either to find their own stations or warehouses, or to rent space from the company (/). So far is fairly common ground to both parties. But j^^^l^o'^^ the legislation of 1845-1846 brings us to debatable i8«-i846. ' matter. There is no question that the effect of the introduction of the Maximum Bates Clause was in most cases, if not in all, to limit a company's charges for conveyance, not to the aggregate of the three tolls, (roadway, locomotive, and carriage,) as had been the (/) Mr. Samuel Laing, an official in tlie Bailway Department of the Board of Trade, in his evidence before the Select Committee of 1844, said, "Bailway companies are not homid to find warehotise-room or to afford any accommodation to private earners, except the use of the line. Minutes of Evidence, p. 139. 70 TOLLS, BATES, [ChAP. II. case in Acts since 1841, but to a sum less than that amount. But while the companies maintain that this was all that the clause was intended to effect, the other side contend that it was intended that the maximum rate should cover, not only the services represented by the three tolls, (which may be termed "railway duties,") but also " carriers' duties," in so far as these could be said to be "incidental to conveyance on the railway," — a phrase which they interpret as meaning everything except actual cartage to and from the railway termini. Policy of If the latter view be the true one, it points to a lature^ change of poHcy on the part of Parhament, of which it is iDeHeved that no other trace is to be found, viz., to put an end to competition between the companies and the carriers ; for either the maximum rates were thought sufficiently high to allow terminal services to be performed by the companies with a profit, in which case, as it would be open to them to charge the full rate to the carriers, there would be no margin for a profit to the latter ; or else the maximum rates were fixed at what was considered only enough to remune- rate the companies for "railway duties " pure and simple, in which case they would be obliged to leave the performance of terminal services to the carriers. If, on the other hand, the maximum rates were in- tended to cover "railway services" only, the Legisla- ture followed a policy which seems to have been suggested by more than one Parliamentary Committee about that time (g), viz., to prevent competition as regards the running of rival trains, but to encourage it as regards " carriers' duties," and at the same time to bring about a general reduction of railway rates. The demand for reduced rates at this period came in great measure from the carriers, who alleged that the existing high maxima gave the companies an unfair (g) Select Committee, 1840, Third Eeport, pp. 11,12; ditto, 1844, Fifth Eeport, p. xvi. Sec. IV.] AND CHAEGBS. 71 advantage in the competition for terminal services, by enabling them to make so high a profit upon "railway duties" that they were able to perform terminal services at a lower price than the carriers could afford to charge with profit to themselves {h) ; and if it was thought that the public would be benefited by the competition between the companies and the carriers, a reduction in the maxima chargeable to the latter may well have been deemed desirable. But there are other difficulties in the way of constru- ^ the*vtew ing the Maximum Bates Clause as including terminals, nais"?™'" (1.) In nearly all the Acts passed between 1841 and thlZ"'' 1844 the same limitation was placed on the charges of ™Limita- independent carriers as upon those of the companies ; chargL'ot that is to say, the carriers were, like the companies, ?Jrrfers forbidden to charge more than the aggregate of the torn™.'* three tolls authorised by those Acts. The maximum rate introduced in 1845, on the other hand, was a limitation imposed only upon the charges of the com- panies. If these limitations referred only to railway services, this is easily intelligible, since the double system of charges introduced in 1845, under which companies were enabled to charge more to a carrier who ran his own train than they could charge to one whose traffic they conveyed themselves, must have Ante, p. 12. made it certain that the companies would thenceforth be the only conveyers of traffic along the lines of railway. If, however, the Maximum Bates Clause had reference to " carriers' duties," it is difficult to under- stand why it was not, like the limiting clause in the earlier Act, made applicable to the private carriers, since in 1845 they were exercising their calling in the Ante, p. 33. same way as they had done previously, and charging the public for terminal services. (2.) According to this construction of the clause, the 2. stand- . . .„ ., . , ing Order constant exceptions of certam specified terminal ser- torbaic (A) See evidence of Mr. Cardwell before the Select Committee of 1844 ; alBO that of Mr. Parker, a carrier. 72 TOLLS, RATES, [ChAP. II. uudeflned yj^gg fj.Qj^ ^^le maximum rate involves, so far as those CllEir§6& lOr _ _ . -1 fnddenlli particular services are concerned, contmual disregard Ince™™''" by Parliamentary Committees, from the very first. Ante, p. 12. ^j ^-^^ Standing Order, which made the clause a neces- sary part of every special Act. In 1846, the year in which that Standing Order was made, 133 out of 159 Acts, and in the following seven years 120 out of 138 Acts, authorised companies to make undefined charges outside the maximum rate for certain ter- minal services — e.g., loading, unloading, services of a carrier, &c. 3. Noreia- (3.) A further difficulty is that the cost of terminal tlottbetween ^ ' , ^ j_ ii ji ;] cost of services is unaffected by the distance travelled, and, serrices and therefore, if the maximum rate includes terminals, the length 01 ' . transit. charge for services, of which the cost has no relation to distance, is regulated by the number of miles which the traffic is conveyed, with the result that either the charges for short distances are too low, or those for long distances too high {i). rate cha"g™ (^O Lastly, it seems never to have been disputed that no teStaai a company is entitled to charge its maximum rate for Serld. the conveyance of traffic in respect of which no termi- nal services are rendered, and it appears unlikely that the Legislature would have authorised the same charge for services so different as those performed in 1845 for carriers and the general public respectively, or, to take a modern illustration, as the mere haulage of loaded trucks from one private siding to another, and the conveyance (i) It has 116611 suggested that the Short Distance clause is intended to meet this difficulty, hut there seems little douht that this clause, in the form adopted since 1845, is intended to cover the locomotive and other expenses involved in starting and stopping a train. It is true that in some of the early Acts the Short Distance clause specifically mentioned loading and imloading, thus implying apparently that in the case of long distance traffic these services were to he included in the rate for conveyance. (See Oxford Railway Act, 1843, s. 262, Appendix B., p. 66 ; and see Report of lioyal Commission, 1867.) In other Acts, however, the clause seems to have been equally applicable to cases where the companies merely acted as toU-takers, as to those in which they conveyed traffic themselves, (see G. W. R. Act, 1835, s. 172, Appendix B., p. 65,) and it is to be noticed that when the Maximum Rates Clause was introduced, the reference to loading and unloading was omitted from the Short Distance clause, and has never, it is believed, been re-inserted. (See Pewsey, &o., Act, 1883, s. 40, Appendix B., p. 69.) Sec. IV.] AND CHAEGES. 73 of goods which a company load and unload on their own premises. These considerations seem to suggest that the Maxi- ^^f'™™ "^ Rates Clause mum Bates Clause refers only to "railway duties," ^||™4° — that is, to adopt the language of Wills, J., to services ^r^^sj™'' " capable of being measured by reference to the ll^l^'s^^' distance travelled," as distinguished from "carriers' duties," and that the only change intended to be effected by that clause in 1845 was that, whereas com- panies, when they conveyed, had previously been entitled to charge the aggregate of their three tolls, they should for the future be compelled to accept some- thing less. An obiection to this view may be thouglit to be objections •" JO to this view. found in the fact that, although no question seems to i. That have been raised until 1859 as to the right of companies companies ... . obtatned to charge terminals, (1) the majority of companies express thought it necessary from the first to obtain express *<> cha^e authority to charge for certain terminal services, and terminals. • 2. That sucli (2) this authoritv took the form of an exception authority ; , . '' ^, , 1 -i took the from the maximum rate. That such express authority form of an '1 exception. was sought by many companies is, perhaps, explained — ex abundanti cauteld — when we consider how wide a meaning the phrase "incidental to conveyance" is capable of bearing ; while the fact that the services most frequently excepted in the early Acts are those which are most nearly connected with conveyance, seems to show that the companies only thought it necessary to obtain express power to charge for those services, which otherwise might be held to be included in that phrase {j). It must be admitted that this view involves a use of the word " except," which is not grammati- cally accurate, viz., as equivalent to some such phrase as " but this must not be taken to prevent." But, as pointed out by Wills, J., the departure from logical i^^Q-^d- accuracy is not a violent one, while the strict construc- O') " Loading and vmloading " are the services most frequently excepted (ante p. 34). As to these being incidental to conveyance, see Parker v. (?. W. My. Co^*^ 74 TOLLS, BATES, [Chap. II. 16 Q.B.D. 639. tion of the word " except " involves the difficulty Ante. p. 72. already pointed out with regard to" the Standing Order of the House of Commons. 3 Tli9it tsr- miaaishaTe It has also been urged that terminals have never never been ° 3ii_j.j-l,i;i claimed for been claimed for passenger trafac, and that to noia passenger ■■■ '^ t 3 j- -f traffic. that terminals are chargeable for goods, and not tor passengers, involves two different constructions of the word " conveyance" in the same clause. Wills, J., in reply to this argument, says — The answer is twofold. We believe that, as a matter of rail- way history, the companies were always from the first the only carriers of passengers on their lines, and the terminal services rendered to passengers are so unlike those rendered to goods, that there is no analogy between the two cases. Passengers are not collected, delivered, covered, loaded, weighed, checked, nor, in railway phraseology, "handled," as goods are. It may also be pointed out that it has never been decided that a railway company is not entitled to charge passengers for station accommodation, and, if a long course of practice had not established a contrary rule, it is difficult to see any reason why passengers should not be made to pay a reasonable sum for the use of waiting-rooms, as well as for cloak-rooms or lavatories {k). Before passing on to the decided cases upon terminals, it is necessary to refer to two sections in the Eailways Clauses Act, 1845, (ss. 86 and 92,) which have sometimes been pointed to as restricting the total charges of a railway company to the sum named as the maximuna for conveyance, except as regards any Appen- services specifically excepted. The first of these, which empowers companies to " carry and convey " upon Railway Clauses Act, 1845. dlx A., p. 3. (k) The Traffic Act of 1854 has sometimes teen referred to as imposing upon railway companies the duty of supplying everything necessary for the convenience of traffic, whether goods or passengers, and, therefore, as forhidding a charge for stations ; but, although that enactment has pro- bahly received a much wider interpretation than was contemplated by its framers, it has never been decided that it alters the rights of companies as regards remuneration for their services. (See judgment of Oookbum, O.J., in the Hastings Case^, and evidence of Sir T. Farrer before the Select Committee of 1881, Minutes of Evidence, Part I., p. 848.) Sec. IV.] AND CHARGES. 75 their railways, authorises them to make reasonable charges in respect thereof "not exceeding the tolls by the special Act authorised to be taken by them." The second forbids them " to make any greater charge for a- 92- Appen- ,1 . J. -, ,, , dixA.,p.6. tne carriage 01 passengers or goods than they are by the special Act authorised to demand " (l). It has been suggested that the words " carry " and " carriage" in these sections indicate the inclusion of " carriers' duties," and that the word " railway" is wide enough to include stations, so that these sections may be read as a prohibition of terminal charges except where expressly authorised by the special Act. On the other hand, (except as regards non-compliance with the Stand- ing Order,) such a construction is open to all the objec- tions which have been referred to as making it unlikely that the Maximum Bates Clause refers to terminals, and it must be borne in mind that the meaning of " railway," as of " tolls," in the Act of 1845 depends on the con- text, while, as already pointed out, the words " carry " Ante.p.sr. and "convey" seem to be used indiscriminately in Hail way Acts. It is to be remembered that the general Act of 1845 i^^ ^ere'iy was only a collection of clauses already to be found in ^ionTot!'*" the special Acts, and the history of these particular sections (86 and 02) seems to point to terminals being outside their operation, and to the words " carry " and "carriage" having reference to strictly "railway duties." Section 92 is the limiting clause of the Acts of 1840-1844, with the reference to independent carriers omitted — an omission which has already been alluded to as pointing to the clause being confined to "railway ■*'''*°''''"' duties." Section 86 dates back still further, being almost identical with the clause which authorised the first railway companies to " use " locomotives and (/) The two sections are, as regards their main purpose, _ essentially different, the first beiag an enabling, and the other a Hmitiiig, clause. With, regard to the meaning of the word "tolls " ia this Act, see ante, p. 53. It is to be noticed that it is not made to include any charges except those payable for traffic " conveyed on the railway." 76 TOLLS, RATES, [ChAP. 11. convey traf&c along their railroads, and to make any reasonable charge for such conveyance in addition to their road toll and locomotive charge (tn). We have Ante, p. 67. seen that after 1840 this latter clause was omitted, and the extra charge for conveyance was restricted to a fixed sum, but without, however, implying any reference to terminals. When, therefore, the clause was embodied in the Consolidation Act, as conferring upon companies generally the power to convey, it would seem natural that the words " in addition to the several rates or tolls by this Act authorised to be taken," (which occurred in the old Acts, but which ceased to be applicable as soon as the .charge for conveyance was limited to a fixed amount,) should be altered to " not exceeding the tolls by the special Act authorised to be taken" — i.e., (according to the definition of " tolls " in section 3) the charges for conveyance. At the time when the Consolidation Act was passed {n) these charges were ordinarily the three "tolls," (road — locomotive — carriage,) but very shortly afterwards it became the practice to fix the total charge at a sum less than the aggregate of these three, and the Standing Order of 1846 appears to have had in view the per- petuating of this practice. In any case it seems clear that the Standing Order had reference to the charges authorised in general terms by section 86, so that it seems impossible to give a wider meaning to the words " carry and convey " in that section than to the word " conveyance " in the Maximum Rates Clause of the special Acts. JfihTuffl- ■"■* ^^ difficult, therefore, to gather from the Consoli- tlr^ab ""^ dation Act of 1845 any indication that the Legislature *n'tiie"'Smf intended that terminal services should be covered by ta^^e^e ^^^ maximum rates. The importance of the question {m) See G. W. E. Act, 1835, s. 167, Appendix B., p. 64. In that section the word ' ' convey " is used, while the marginal note has ' ' carry ' ' ; in some of the old Acts hoth words occur in the section itself, as iu s. 86 of the Act of 1845. {«) When the Eailways Clauses Act was passed, (May 8th, 1845,) the Maximum Bates Clause had not been inserted in a single Act, though it occurs in some of the special Acts passed in the same Session. Sec. IV.] AND CHAEliES. 77 whether such was the intention or not is manifest of oom- when we consider the varying forms which the terminal acts ao not •^ " expressly clause has assumed. Since 1860 the clause has been authorise terminal uniform m the great majority of Acts, and in these ^^■j^g^^'^s Acts the services included in the term " incidental to conveyance," together with those specified in the ter- minal " exception," probably include all the services rendered by a company at the present time in their capacity of carriers, whether by rail or road. Under this form of Act the right of a company to charge (beyond the maximum rate) for terminal services has Baits case. been decided to be a very wide one, and since most of °^ '''" these services are covered by the words in the excep- tion, "incidental to the duty or business of a carrier," it is immaterial in these cases what meaning is given to the phrase " incidental to conveyance " — whether, that is to say, the phrase is read as referring merely to "railway duties," as previously defined, (so that ^nte, p. 73 the exception is rather in the nature of a declaration that the statutory limitation is not to preclude the company from charging a reasonable sum for other work,) or whether it is read as including " carriers' duties," in which case the terminal clause is an ex- ception in the strict sense of the word. But in many Acts, especially those passed before 1860, the terminal exception is less wide, while some contain no such exception at all. In these cases the meaning of the words " incidental to conveyance " is all-import- ant. If the words are used in the widest sense attributable to them, the charge for terminal services, other than those expressly specified, is included in the maximum rate. If, on the other hand, the definition 15 QB.d. of "conveyance" by Wills, J., is to be taken asAnte,p.57. applying to the term in all maximum rates clauses, without reference to the terms of the exception, it follows that terminal services not expressly specified are unprovided for. If this be so, and if, as would appear to be the case, there is no obligation upon a company to perform terminal services without remu- 78 TOLLS, BATES, [ChAP. II. neration, it may be that by virtue of the general power of contracting possessed by railway companies in com- mon with other similar bodies, it would be open to a company to stipulate for payment in all cases where they performed services not covered by the rate for conveyance (o). structural X qucstion of scarccly less importance than that of the terminals. ^ . . i general right of railway companies to charge terminals in the absence of express authority, was, previous to the Act of 1888, whether the terminal clause, which has been inserted in most Acts in recent years, authorises "structural," as distinguished from "service," ter- minals. This question was decided in Hall's Case,'" but before considering that decision it will be convenient to refer to the earlier cases, in which questions relating to terminal charges came before the superior courts. The first case was that of Pegler v. Monmouthshire ^Jast^ Ry- '^'"'d Canal Go.,^^'' in 1861, where the company failed to recover a terminal charge of one shilling per ton made in respect of the following matters, viz., the receiving goods by theii; porters at the sending station, weighing, invoicing, loading, station accommodation at each end of the transit, un- loading, clerkage, and risk. The decision in this case, however, throws little light upon the general question of the right of railway companies to a pay- ment outside their mileage maximum in respect of terminal services, for two reasons : (1) The special Act of the company contained an exceptional clause obliging them to act as common carriers, and to afford every reasonable convenience for loading and unload- ing at their stations, upon payment of the tolls named in the Act ; (2) the Court left undecided the question whether it would have been open to the company to make extra charges by agreement with their customers, and to refuse to do anything beyond the services made (o) See per Bramwell, B., in Pegler's Case,^^^ 30 L. J. (Ex.) at p. 253; and per Eailwaj' Commissioners in WatMnsonv. Wrexham, ^-o.jRy. Oo.,^o^ 3 E. & C. T. Ca., at p. 8. See also post, p. 83. Sec. IV.] AND CHARGES. 79 obligatory by the Act for those who decHned to pay for extra services. The next case was Lancashire and Yorkshire By. '^'■^^<>^'' *^ Case Go. V. Gidlow,'" (1873) in which it was decided (^'°- D- by the House of Lords (affirming the decisions of the Courts below) that the company were not entitled to an amount claimed for terminal services. In this case, however, the real question was as to the number of miles for which the company were entitled to charge, and it was only after their mileage was disputed that the company sought to justify the amount, which represented the extra mileage, as a charge for certain special services, for which they were empowered by their Act to make a charge outside their mileage maximum. Moreover, the special case, upon which the opinion of the Court was asked, left it in doubt whether any services of the particular kind described in the Act had been in fact rendered by the com- pany (p). The next case — Gidlow's Case (No. 2)'^ — decided in ouiow's . Case 1875, (g) was between the same parties as that last(No.2). referred to. It turned, however, on a special state of facts, and, as pointed out by Wills, J., cannot be con- 1^ <5.bj). sidered as laying down any general principle. The claim of the company in that case was made in respect of (1) shunting in and out of sidings ; (2) the privilege enjoyed by Mr. Gidlow of using a piece of ground for storing coal ; and it was contended on their behalf that these were " services incidental to the business of a carrier," entitling them to an extra charge under the terminal clause of' their special Act. The decision was given upon a statement of facts found by an arbi- trator, and one of the facts found by him was that there were no services rendered to Mr. Gridlow " beyond such as were the necessary and usual services when [p) Per Lord Seltome, 42 L. J. (Ex.) at p. 133. (q) Though the decision of the House of Lords was given after the Act of 1873 had come into force, hy which questions of terminals were referred to the Eailway Commissioners, the action was tried as far hack as 1869. 80 TOLLS, BATES, [ChAP. II. the company furnished the locomotive power." It was also found as a fact that there was no agreement on Mr. Gidlow's part to pay for any special services. Upon these facts the House of Lords decided that the company could recover nothing under either head of their claim. With regard to the accommodatidn pro- vided by way of standing room for coal, Lord Cairns said that although this might be the subject matter of an agreement and payment required for it, still it was not a " service " within the meaning of the terminal clause, and Lord Chelmsford pointed out that, if it was a " service " at all, it was one incidental to the busi- ness of a warehouseman rather than to that of a carrier (r). DeoiBions of These three seem to be the only reported decisions on the Railway , ,. , i 133 commis- terminals before the control of these charges was handed slonero. . . / T n c over to the Railway Commissioners (s), and none oi them decided any point of principle in connection with either the general question of the right of railway com- panies to payment for terminal services outside their maximum rates for conveyance, or the interpretation of the terminal clause ordinarily found in modern Acts. The Commissioners from the first took a view adverse to the claim of the companies. Not only did they treat Gidlow's Case (No. 2)'^ as a conclusive authority against that claim, but for a long time they declined to allow the question to be raised before a superior court, by stating a special case for its opinion {t) . The effect of the decisions of the Commissioners may be gathered from the table at p. 82. saifscasi. In 1884:— Hall v. L. Brighton, dx., By. Co.'"— the Sf""' question of the construction of a Maximum Bates Clause, in which " services incidental to the duty or business of a carrier " were excepted from the (r) 45 L. J. (Q. B. D.) 627, 629. (») By a. 15 of the Act ol 1873, Appendix A., p. 16. As to the efeect of the Act of 1888 with regard to this "branch of the Commissioners' jurisdiction, see post, Chapter VII., Section II. (i). {() Chatterley Iron Co. v. JV. Staffordshire Ry. Go.,^'^ 3 E. & 0. T. Ca., 248, 249. Sec. IV.] AND CHARGES. 81 maximum rates for conveyance, came before the Queen's Bench Division upon a special case stated for their opinion by the Commissioners (t). Shortly stated, the effect of the judgment of the Court was that " conveyance " in the Maximum Eates Clause meant haulage of a train along the railway, and the care and control of the goods during conveyance, and that the " services of a carrier " meant the services rendered by carriers in the days when railway companies hauled for carriers, while the latter collected and delivered traffic, found their own sidings and stations, and performed all station services. The grounds of this decision have been in great measure anticipated, and it is sufficient to quote here the concluding passage of the judgment delivered by Wills, J., on behalf of himself and Mathew, J., in which the questions put by the Commissioners are answered. Our answer, therefore, is that the providing of station Judgment accommodation, and work of the general nature indicated to Mathew, Tj. us by the Eailway Commissioners, [i.e., weighing, checking, H^'^'^' clerkage, watching, labelling, and use of sidings] appear to us to be capable of falling under the definition of "services incidental to the duty or business of a carrier," and primd facie to do so. Whether in any particular case they do so, or to what extent they do so, must be a question of fact for the Commissioners, the line we should draw being that whatever is necessary for conveyance in the sense in which we have defined it — being all capable of being measured by reference to the distance travelled — is covered by the mileage rate. Whatever is properly incidental, not to conveyance, but to the perform- ance of the duty and business of a carrier, and in other respects falls within the exception --that is to say, is actually performed and is done at a terminal station — may be made the subject of a separate reasonable charge («). (t) The case of Kempson v. G. W. Ry. Co.'"-^ was argued before the same Court as Sail's Case '"' upon a rale for a prohibition. The section in the Great Western Company's Act is set out ante, p. 34, and the section upon which Mall's Case^" was decided is substantially the same. {«) Manisty, J., delivered a separate judgment to a similar effect. The effect of the Act of 1888 as regards terminals is considered, (ante pp. 45, 65, and post, Chapter VII.). G 82 TOLLS, BATES, [Chap. II. Decisions of the Railway Commissioners relating to Terminals. Nature of Terminal Service. OlaBs of Traffic Charge allowed by Com- uiaBsoi iramc. mlosioners. Station accommodation and use of company's MarahalliTig and sliimt- ing. Locomotive work and use of waggons in private sidjiigs. "Weighing, checking, labelling, clerkage, watching, advising, &c. Providing and working points and signals on private line. Use of shoots. Sheeting. Uncovering and re- covering at receiving station. Loading. Various. Various. Various. Various. i. Coal (6) ii. Coal (9) Coal (6) i. Hops (3) ii. Hay and straw (8) iii. Cement and cow- hair (4) Hay and straw (8) i. Hay and straw (4) .. „ .. (8) u. Hops (3) " iii. Iron rods (5) None. (1) (2) (3) (4) (5) and (9). None. (2) (4) (5) (6) and (9). None (4) and (7), [but see Judgment of Common Pleas Division, 3 E. & C. T., Ca. 177.] None. (2) (3) (4) (5) and (9). 3d. per ton. None. [The line was used to some extent for general traffic] 2d. per ton. None. [The Act contained no mention of any ter- minal services except loading and unloading.] Sheets (one journey per week), 9d. a piece . . Is. per ton Labour . . 2d. per ton Total . Is. 2d. per ton Sheets (two journeys per week), 6d. a piece. Labour, 3d. for one sheet, 4d. for two. Total, 9d. per truck (one sheet). Is. 4d. per truck (two sheets). 2d. per ton. 3d. per ton. 2d per ton (assisting). 5d. per ton. 2^d. per ton (assisting). 6d. per ton (some assist- ance). Seo. IV.] AND CHABGES. 83 10 Nature of Terminal Service. Loading. Unloading. Class ol Traffic. iv. Oats and cowhair(4) V. Cement (4) i. Hops (3) ii. Iron rods Charge allowed by Com- missioners. 6d. per ton. 4d per ton. lOd. per ton (high level station). 5d. per ton (some assist- anee). (1) Chattcrley Iron Oo. v. North Staff. Sy. Co.^ (2) Ide of Wight (Newport) Ey. Co. v. IsU of Wight Ry. Co.™ (3) Berry v. L. C. ^ D. Sy. Co.^ (4) Ball Y. L. B. S; S. C. By. Co.^ (6) Kempson v. G. W. By Co."" (6) Dunkirk Colliery v. Manchester, %e.. By. Co.^ (7) Watkinson v. Wrexham, ^c. By. Co.^^^ (8) Coxon V. N. E. By. Co.^^ (9) N.ston Colliery v. L. ^ N. W., %e. By. <7o.'s."a (ii.) Charges other than Terminals, It remains only to consider charges of railway com- panies other than the mileage and terminal charges which are ordinarily included in their quoted rates. These relate, for the most part, either to exceptional services, or to services rendered in some other capacity than that of carriers. It is usual for the special Act of a railway company to contain a clause expressly enabling the company to make special charges by agreement {v) . But, apart from such a clause, a railway company, in common with other statutory corpora- tions, has power to enter into any contract which is not ultra vires — that is, any contract which falls within the purposes of its incorporation as defined by the Acts of Parliament relating to it, or which is fairly inci- dental or ancillary to those purposes {w). Common instances of charges not included in rates are charges for warehouse or wharfage («) For the construction of such a clause, see Wrexham By. Co. v. Little Mountain Coll. Co."^ (w) See per Cookhum, C. J., in Baxendale v. G. W. By. Co.^', 28. L. J. (C.P.), at p. 83; perBramweU, L. J., in^. G.y.G. E.By.Co.\ 11 Ch. D., at p. 505. As to the doctrine of ultra vires, see Ashhury By. Carriage Co. V. Blche? r. Q Chargng mt Included in rates. Ante, p. Cf). Charges bp agreement;, cf. Pewcey, &c., Ry. Acr, 1883, s. 47 AppendlxB.. p. 69. Right of s compiuiy uo quantum meruit for 84 TOLLS, BATES, [Chap. II. services rendered. Ante, p. 52, Fixed charges stated In note or ticket. Charges stated In public notice. Cartage, room, or demurrage on waggons.. In such cases, if no definite charge has been agreed upon, ex- pressly or impHedly, the right of the company is to be paid the reasonable worth of the service rendered. But in practice railway companies generally have a fixed scale of charges for such services, and attention is drawn to these by some form of note or ticket, the acceptance or signature of which by a customer amounts to an agreement by him to abide by its terms, and the receipt of such a document without demur, or without prompt action, amounts to acceptance of it (x). Thus, if a consignee receives an advice note informing him that goods have arrived at a station and are being held for him upon certain terms, if he does not intend to be bound by these terms, he must at once remove the goods iy), and a mere protest that he does not agree to the terms will not avail him {z). Sometimes the rate of charge is notified by a public notice, and if this is brought to the knowledge of the person sought to be charged before he avails himself of the service or accommodation, it will bind him in the same way as a document handed to him. Accordingly, in the case of L. d N. W. By. Co. v. Price,^'"' where a company had a weighing machine in their station yard, and put up a notice that a certain sum would be charged to persons making use of the machine, it was held that a person, who used the machine with knowledge of this notice, was bound to pay the specified charge. The power of railway companies to charge for cartage, in cases where the special Act contains no mention of collection and delivery, rests upon this general right to make contracts with reference to matters connected with their ordinary business (zz), and (x) See the authorities collected in the judgment of Stephen, J,, in Watkins y. Rymill.'^ (y) This view was very clearly expressed by Bramwell, L. J,, in a case of Trent Mining Co. v. Midland Ry. Co., heard before the Com-t of Appeal on March 6th, 1881, (See Appendix, C.) (z) In the case of N. E. My. Co. v, Cairns,^^'"- Day, J., said that a mere protest by a person accepting or signing a document was nothing more than a " grumbling assent." (zz) See per Bramwell, L. J,, in Evershed's Case,^* 3 Q. B. D,, at p. 141. Secs. IV.-V.] and charges. 85 it has already been suggested that this principle may be applicable to all services performed by a company ^°'*'P-''- which are not covered by the maximum rate for con- veyance, although not expressly excepted from the maximum rate in the company's special Act. Thus, in Field v. Newport, dc, By. Co.,^^ where it was held that a charge for the back haulage of empty waggons belonging to a trader was not a " toll " within the meaning of section 97 of the Eailways Clauses Act, 1845, Bramwell, B., expressed the opinion that a railway company was nevertheless entitled to make such a charge, and that an agreement on the part of the trader to pay quantum meruit for the service was to be inferred. Section V. — Eevision of Bates and Chaeges UNDER THE TRAFFIC AcT, 1888. The Act of 1888 provides for the revision of the Revision of ^ maximum classifications and maximum rates of all ra,ilway and H^^g^^^ canal companies, and for the imposition of maximum limits to terminal charges (a), as well as to mileage rates. This subject is dealt with in a single section oi^-^*- the Act ; another section gives the Board of Trade ^•^^• power to make rules with respect to the form and manner in which classifications and schedules of maxi- mum rates and charges are to be prepared and sub- mitted for approval, and also with respect to their publication, advertisement, and settlement. In accord- ance with this power, rules have been made by the A^pp°^Mo. Board of Trade so far as regards railways. It is ^°tS,7*'™ noticeable that throughout this section the expres- sion used is "maximum rates and charges," and no mention is made of " tolls " — an omission which gives rise to the question whether it is intended that the " toll " powers of companies are to be revised (aa). In the case of canals it is expressly provided that the word s. 36. (a) By B. 55, the term "terminal charges " includes "charges in respect of stations, sidings, wharves, depots, warehouses, cranes, and other similar matters, and of any services rendered thereat." See ante, p. 65. (as) As to the distinction hetween tolls and rates, see ante, p. 66. 86 TOLLS, BATES, [ChAP. II. " rate " shall include " tolls and dues of every descrip- tion," which would seem to imply that in the case of railway companies the word " rate " is to be construed in its ordinary sense, and in other sections of the Act the three words, "tolls, rates, and charges," occur to- gether. On the other hand, it appears from section 33 (2) that the Act contemplates a revision of the maximum " tolls," and it may be that "tolls " are intended to be covered by the general word " charges." The rules of the Board of Trade, however, follow the words of section 24, and only make provision for the revision of the " Maximum Bates and Terminal Charges." (b) Procedure. Stated shortly, the prescribed procedure is as follows : The company is to propose a revised classification and schedule of maximum rates and charges ; the Board of Trade are to settle these after hearing objec- tions, and are then to embody them in a Provisional Order ; a Bill for the confirmation of the Provisional Order is to be introduced into either House of Parlia- ment, and, if petitioned against, is to be referred to a Select Committee ; when an Act confirming a Provi- sional Order has been passed, the revised rates and charges take the place of those authorised by the existing Acts, and are henceforth those which the company are entitled to charge and make. In con- sidering these proceedings more in detail, it will be convenient to arrange them with reference to the part taken at different stages by the various bodies con- cerned, viz. : (i.) The Eailway Companies ; (ii.) The Public; (iii.) The Board of Trade ; (iv.) Parliament. (i.) The Bailway Companies. Railway As soon as may be, and in any case not later than to submit February 10th, 1889, unless the Board of Trade extend olaasiflca- .''./' . , tionand the time m favour of any particular company, each Board of company must prepare a proposed classification and B. 24 (1) (2) schedule of maximum rates and charges, and transmit Kale 2. _ ° {}) It is provided that the section is not to apply to the remuneration payable to a company for the conveyance of mails or Post Office parcels, or "War Office stores (s. 24, (11) (12) ). Sec. v.] and charges. 87 three printed copies to the Board of Trade, one of which must be sealed with the seal of the company and signed by the secretary. A form of schedule has been provided by the Board of Trade, which is to be followed ji^'^^''^^ as far as practicable ; among other things it must state ^'''^^• fully, in addition to the maximum tonnage rates for conveyance by goods train : — (1.) Proposed maximum rates and charges for — (a) Train loads and truck loads, or for in- creased quantities so far as is applicable to the traffic ; (6) Snlall packages and parcels and other mer- chandise traffic, if and when conveyed by passenger, or special passenger, train (c). (2.) The nature and amounts of all proposed ter- minal charges in respect of each class of traffic, and the circumstances under which such charges are proposed to be made. (3.) As far as practicable, the existing maximum rates and the existing terminal charges in re- spect of the several classes of traffic, showing in each case the authority for making the charges. They must also contain in a conspicuous part a Kuie 2. notice stating the time within which objections are to be sent to the Board of Trade (see post, p. 88). Where it is not practicable to set out the existing maximum rates and terminal charges in the classifica- tion and schedule, these must be shown as far as practicable in a separate printed statement, which should be made out, if possible, in a tabular form. Rules. At the same time the company must also send — Additional ■' *" documenta. (1.) A statement and map showing the company's ^"'«^ lines of railway, and specifying the nature of its . ownership or control. (c) As there eeems nothing in the Act (except in the ease of through rates, see s. 25) to compel companies to quote rates for train-loads or truck-loads, it is apprehended that such rates need onljr he shown when a company proposes that a reduction shall he made from its maximum rates for train or truck loads. The same observation is applicable to rates for conveyance by passenger trains. 3 4. 88 TOLLS, BATES, [Chap. II. Eules 2, 3, 4. Advertise- ments, Rules 6, 6. Appendix A., p. 61. Copies of claEsllica^ tlon and schedule to be kept for eale. Eule 7. Companies to defray expenses of tlie Board of Trade. Eule 8. Opportuni- ties for obiectlon. 1. Before the Board of Trade. 2. Before Parliament. Objections before the Board of Trade. Bules 9-11. Appendix A., p. 62. Bules 12-13. (2.) A statement setting out any special rates or charges authorised in respect of particular lines, stations, or works. (3.) A statement of the newspapers proposed for advertisement. All documents required to be transmitted to the Board of Trade must be printed on foolscap paper, and three copies sent. Within one week after submitting their proposed classification and schedule to the Board of Trade, the company must advertise the fact of their having done so (1) in the Gazette ; (2) in local newspapers selected by the company, subject to the approval of the Board of Trade ; and (3) in a conspicuous place at every passenger station on their system. A form of adver- tisement, to be followed with necessary variations, is given in the Appendix to the Board of Trade Eules. The company are to keep printed copies of the proposed classification and schedule for sale at Is. per copy. Lastly, the company are to send the Board of Trade a cheque for £50 towards the expenses incurred by that department in connection with the settlement of the classification and schedule, and the Board of Trade intimate that further contributions may be required, (ii.) The Public. Parties who wish to object to the revised classifica- tion and schedule of any company have an oppor- tunity of doing so at two distinct stages — viz., (1) before they are settled by the Board of Trade, and (2) before they are confirmed by Parliament. In the former ease the objection must be made within eight weeks after the railway company's first advertisement, by sending to the Board of Trade a written or printed notice of objection in a prescribed form, signed by the person making the objection, or if the objection is made by a company or association, then by some person on behalf of such company or association. Every notice of objection must give an address at which communications may be addressed to Sec. v.] and charges. 89 the objector, and must state clearly and concisely the precise portion of the classification or schedule objected to, and the grounds of objection, and a copy must be sent by post addressed to the company at its principal office. At the expiration of eight weeks after the company's ^fg^'] first advertisement, the Board of Trade will dispose of the objections at a time and place of which due notice will be given to each objector and to the secretary of the company. (iii.) Board of Trade. At this stage the duty of taking the initiative passes ^™j°[fg^*'"°' to the Board of Trade, who appear to have an abso- ^°JJ^ "* lute discretion with regard to the parties entitled to be heard in support of, or in opposition to, any company's proposed classification or schedule. After hearing " all s.24(4). parties whom they consider entitled to be heard," j, -vyhsn they will endeavour to agree with the company upon ^ anagraV a classification and schedule, and if they succeed in SITcom- doing so it becomes their duty — 1st, to embody these aJsiM*) (s). in a Provisional Order ; 2ndly, to make a report thereon to Parliament ; and 3rdly, to procure a Bill to be introduced into either House of Parliament for its confirmation. If the Board of Trade are unable to come to an?- when tney are agreement with the company, or if the latter fail to ^^^l^^^ submit a classification and schedule within the pre- gfJI™™'). scribed time, the task of preparing a revised classifica- tion and schedule falls upon the Board of Trade. Hav- ing done so, it is their duty to make a report to Parlia- ment, calling attention to the points which they have been unable to arrange with the company. The course to be then adopted in order to obtain statutory sanction to the new rates is the same as in cases where the Board of Trade and a company are agreed, viz., by a Provisional Order to be confirmed by a Bill, except that, unless they are called upon to do so by the com- pany, it is optional with the Board of Trade to take further steps or not. Power is given to the Board to employ "such skilled persons as they may deem ibw. (9). 90 TOLLS, BATES, [ChAP. II. necessary or desirable," to assist them in preparing, revising, or settling the classifications and schedules. (iv.) Parliament. Bill for con- A second opportunity of obiecting to a pro- flrmatlon .„ . , , . , . j^ -, , r, ofProvi- posed classification and schedule is attoraea alter Ibid. (8). the introduction of the Bill for confirmation of the Provisional Order by the presentation of a petition against it. The Act provides for the reference of any Bill against w^hich a petition has been pre- sented, either to a Select Committee of the House in which the Bill has been introduced, or to a Joint Com- mittee of both Houses, and the petitioner is to be allowed to appear and oppose, as in the case of a Private Bill. Promoters It is to be noticcd that in cases where the Board of Provisional Trade and the company are agreed, the latter are to be 1. Railway deemed the promoters of the Provisional Order ; in ibiins). other cases, it would seem, the Board of Trade will be T^e^ °' treated as the promoters, and, if the railway company are hostile to the classification and schedule embodied in the Provisional Order, they will no doubt be entitled to appear in opposition to the Bill. Basis of "With an exception to be noticed immediately, the revised . ,^.. ^, ..,, ,., maximum Act Contains no indication of the principle upon which rates and . in charges. the ucw maxima are to be fixed, beyond what is to be inferred from the direction to the Board of Trade to determine, in case no agreement has been come to S'and ^^^^ *^® company, a schedule of rates and charges reasonable, which would, in their opinion, be "just and reason- Ante, p. 45. , , , , able. 2. Terminal The exception referred to is in the case of the charges not . ,■■,■, ttt . , - - -. to be deter- maximum terminal charges. With regard to the deter- mined by o o actual mination of these, it is provided that " regard shall outlay. . ^ be had only to the expenditure reasonably necessary to provide the accommodation in respect of which such charges are made, irrespective of the outlay which may have been actually incurred by the railway company in providing that accommodation." This provision Sec. v.] and chabges. 91 appears intended to guard against the public being made to pay for unwise or extravagant expenditure by a company in the past ; at the same time a company will probably be entitled to give evidence as to the outlay incurred by it, since such evidence, in the absence of proof that the outlay has been extravagant or unnecessary, would seem to be some evidence at least of " the expenditure reasonably necessary to pro- vide the accommodation." The method ordinarily adopted in estimating the ^^i^^^' average cost per ton of terminal accommodation and ^f^^f *«"^-' • services at any particular station has been to add a '^'''^'='''- year's interest on the original outlay to the annual working expenses of the station, and to divide the amount by the tonnage " handled " at the station in the course of a year ; the figure that results represents the actual cost to the company, and to this is added a further sum for profit. This method of dividing the cost of a service by the tonnage appears to have been approved by the late Commissioners in cases where they considered the service to be one for which a company might legally charge, as a means of arriving at a reasonable average charge for all classes of traffic (d) ; but, if it is desired that terminal charges should vary according to the amount of accommodation and the degree of care or trouble required by different classes of traffic, the charges in some cases must be above and in others below the average figure. Further, it may be thought reasonable that terminal charges should be lower at country stations than in large towns, where accommodation is more expensive. These, however, are points which the Act has left to be arranged, if possible, between the companies and the Board of Trade, subject to confirmation ultimately by Parlia- ment. When an Act has been passed confirming a Provisional Effect of ■*• ^ conflrmljig' Order, the amounts specified in the schedule become, acj;^ (d) See Berry's,^ BaU'sf" and Ktmpton's'^^^ Casei. 92 TOLLS, BATES, AND CHAEGBS. [ChAP. II. from the time when the Act comes into operation, the legal maxima of the company, both as regards its charges for conveyance on the railway and for terminal ra™'"'^^ services. As regards the rates for conveyance, the new maxima will stand on the same footing as the maximum rates under the existing Acts ; but with mtaau. regard to terminal charges the Act effects an im- portant change. Hitherto the special Acts of com- panies have as a rule fixed no specified limits to these charges, merely enacting that they shall be reasonable, AppeLto^' while the Act of 1873 gives to the Eailway Commis- "^' ' sioners the power of deciding what is a reasonable - amount to be paid to a company for terminal services in any case where the charges for such services " have not been fixed by any Act of Parliament." The Act of 1888 clearly points to definite maxima being fixed for terminals, as well as for mileage rates, and when such maxima have been embodied in a Provisional Order and confirmed by Parliament, the Commissioners ap- parently will have no power of controlling the terminal charges made by a company, except in cases where these maxima have been exceeded, or the charges made in such a way as to constitute undue preference. tion!*^^'^'^" With regard to the classification, a power of amend- s. 24 (11). ment is reserved to the Board of Trade, upon the ap- plication either of the company, or of any member of the public after giving three weeks' notice to the com- pany, and any amendment made by the Board is to take effect from the date of its publication in the London Gazette. This power of amendment, however, is confined to inserting in the classification articles previously unclassified. Chap. III.] tbaffic facilities. 93 CHAPTEK III. TRAFFIC FACILITIES. Section Lr^Introductory 93 „ 11— The Traffic Act, 1854— (i.) General Scope and Procedure . 9.5 (ii.) Facilities for Traffic generally . 99 {m.) Facilities for Through Traffic . 108 „ 111.— The Traffic Act, 1888 112 Section I. — Introductory. From early times the law has recognised an excep- obligation tional obligation on the part of carriers, in common at coSmon with innkeepers and some others (a), viz., to serve all carry lor an customers that present themselves so long as there is their profoa- accommodation for them — an obligation which is said to arise out of the public character of the employment that these classes of persons take upon themselves. At the same time, a carrier at common law is free to choose the classes of things which he will carry, just as he is free to choose his route, the occasions of his journeys, and the places on his route at which he will call. " A person may profess to carry a particular de- scription of goods only," says Parke, B., in Johnson v. Midland By. Go.,^"^ "or he may limit his obliga- tions to carrying from one place to another — as from Manchester to London — and then he would not be (a) A ferryman is a kind of common carrier : ( Walker v. Jaelcson.''^) It has been said that an action ■will lie against a farrier for refusing to shoe a horse. (See Lane v. Cotton. ''■'^^) 94 TRAFFIC FACILITIES. [ChAP. III. bound to carry to or from intermediate places." Further, at common law a carrier's duty to receive articles for carriage is limited by " the convenience to carry" at his disposal (5), so that absence of accom- modation is an answer to a complaint of refusal to carry. The foregoing remarks must be understood as applying only to what are termed "common carriers," i.e., those who exercise the business of carrying as a public employment, and hold themselves out as carry- ing for all persons indifferently (c). Raiiwayand "^e have Seen that the authority to convey traffic canal com- "^ '^ S'ferif along their lines, instead of merely taking " toll " for the use of the railway by others, is conferred upon all 8&9Tict., railway companies incorporated since 1845 by the Ante,p. 13. Railways Clauses Act of that year (s. 86), and that C.45. ° ■' a similar authority, as regards goods traffic, is con- "'" ' ■ ferred upon canal companies by an Act passed in the same year. It was decided in Johnson v. Mid- land By. 00.,^°" that s. 86 of the Bailways Clauses Act, 1845, was enabling merely, and did not impose upon railway companies any obligation to become carriers. In that case (decided in 1849) it was held that no action would lie against a railway company for refusing to carry coal from an intermediate station, at which they had no convenience for the receipt or conveyance of that class of traffic, and from which they did not profess to carry it, although they were in the habit of carrying coal from one end of their line to the other, and of carrying other classes of traffic from the station in question. Eailway and canal companies were thus left free to undertake what duties they chose; either to remain mere toll-takers, or to find engines or trains for others to work, or to undertake the conveyance of traffic ; and further, it was open to them to convey only certain classes of traffic, or only between certain places on their line {d). (b) Per Erie, C. J., in McManus v. Lancashire, $«., Ry. Co.i^i (c) Story Bail., s. 495. See per Brett, L. J., in Liver Alkali Co. Johnson.^^^ Sec. II.] TEAFFIC PACJilTIES. 95 Section II. — The Teafpic Act, 1854. (i.) General Scope and Procedure. The Act of 1854 modified the position of both rail- Eneot of the way and canal companies by enacting that they ism, s° . "2, should, " according to their respective powers, afford all p. 8.° "^ " reasonable facilities for the receiving and forwarding and delivering of traffic " (s. 2), including in that term passengers, animals and goods, as well as trucks and boats — in other words, traffic which the companies themselves carried, as well as the vehicles in which other persons carried traffic (s. 1). To what extent that Act obliges companies to be whether carriers of articles against their will is not, however, canai com- altogether clear. At the time the Act was passed it obliged had become the general, if not universal, practice for carriers. railway companies to undertake the conveyance of traffic, but with canal companies the case was, and still is, different ; to this day many canal companies remain mere toll-takers, and it can hardly have been intended that a company which had never elected to become carriers should be liable to be called upon to raise capital, or set apart their profits, for the purpose of purchasing or hiring boats or rolling stock. In the case of Hare v. London and N. W. By. Co.,^^ (decided in 1861) Vice-Chancellor Wood treated it as clear law that railway companies were under no obliga- tion to become carriers, and in a later case Lord Selborne expressed the same view (e). But from a sembiecom- recent decision of the Court of Appeal, Dickson v. carry what G. N. By. Co.," it would appear that companies are facilities tor 1 J. •!• • jr carrying. bound to carry whatever " they have facilities for carrying " — in other words, that although they need (d) See also Oxlade v. JV. E. My. Co."", where it was held that a company -which professed to carry coal for colliery owners only could not he compelled to carry for coal merchants. (e) Sattinga Oase/i 6 Q. B. D., at p. 592.' And see per MelHsh, L.J., in Midland Sy. Co. v. G. W. My. Go. 128^, 42 L.J., (Ch.) at p. 442 ; hut see per BramweU, L.J., in G. W. My. Co. v. Mailway Commissioner^, 7 Q. B. D., at p. 194. See also Thomas v. Mrth Staffordshire My. Co.'^, 3 E. & C. T. Ca. 3. Sare's Cast?' is cited, apparently with approral, in Dickson's Cate.^ 96 TRAFFIC FACILITIES. [Chap. III. AppendL^A. p. 8. 1. Reason- able facill- iles, Chap. in. s. 2 (li.). 2. Undue preference Chap. V. 3. Contin- uous Uuea, Chap. III. s. 2 ^^l.). not become carriers at all unless they choose, still, if they elect to do so, they cannot decline to accept any classes of traffic which they have facilities for carrying. In that case the question in dispute was as to the "reasonableness" (under section 7 of the Act) of a condition which the company sought to impose upon the senders of dogs, but all the members of the Court expressed the opinion that a railway company could not refuse to carry dogs, it being notorious that they had facilities for carrying them, and were in the habit of doing so (/). Section 2 of the Act of 1854 consists of three clauses, and imposes three distinct obligations upon railway and canal companies {g), viz. : 1. To afford reasonable facilities for traffic. 2. To abstain from undue preference of particular persons or descriptions of traffic. 3. To afford facilities for through traffic in the case of continuous lines. The first and third of these clauses are con- sidered in the present chapter, section 2 (ii.) (iii.). The second clause is dealt with in Chapter V., and the subject of through rates — which, though springing out of the same enactment, are really dependent upon another Act (36 & 37 Vict, c. 48, s. 11), and form a wholly distinct branch (/) The Act of 1884 does not appear to affect s. 105 of the Railways Clauses Act, 1845, which gives companies a discretion as to the con- veyance hy themselves or others of articles of a dangerous nature. (8 Vict. c. 20., s. 105. Appendix A., p. 6.) By the Explosives Act, 1875, both rail- way and canal companies are empowered to make special bye-laws, subject to the approval of the Board of Trade, for regulating the conveyance of gxmpowder. (38 Vict. c. 17. s. 35.) The obligation of carrying mails is imposed upon railway companies by a variety of Statutes (1 cfe 2 Vict c 98 ; 7 & 8 Vict. c. 85, s. 11 ; 10 & 11 Vict. c. 85, s. 16 ; 31 & 32 Vict c. 119, BS. 36, 37 ; 36 & 37 Vict. o. 48, ss. 18-20.) As to Post Office Parcels, see 45 & 46 Vict. c. 74. The conveyance of troops and military stores is regulated by the Cheap Trains Act, 1883, (46 & 47 Vict. u. 34, s. 6). (g) Per Lush, J., in the Sastings Case^T, 6 Q. B. D. at p. 243 ; and Lord Selbome, ibid. 6 Q. B. D., at p. 691. See also "bo'drawii very divergent views on the question of jurisdiction, h™k«9s so that it is difficult to say exactly how far the powers "'"'■ of the Commissioners extend in matters involving structural alterations, but it would seem that the fol- lowing propositions may be deduced from the case : — (1) It is no answer to a complaint of the absence of «Qb.i). reasonable facilities that to supply the omission will necessitate structural alterations of existing works, provided it is within the power of the company to make such alterations. (2) The word " railway " in the Act of 1854 includes ibia. 592, " stations " (section 1), but this means existing stations, and, therefore, the Commissioners have no power to order the construction of a new station, or alterations or additions of such a character as practically to amount to the same thing. (3) The Commissioners have no power to compel ibw. eoi. the adoption by a company of any particular plan, or the construction of any particular works. (4) Want of platform or other accommodation at a 1^1.593,693. station sufficient for the ordinary traffic of a railway may constitute an omission to afford reasonable facilities. The enlargement, therefore, in some reasonable way, (whether by platform or by waiting-room accommoda- tion) of a space insufficient for the proper reception of ordinary traffic, and some proper provision for the safe arrang-ements of railway companies, which were contended for hy the Commissioners ; at the same time the fact that the decision of the Queen's Bench Division was reversed by the Court of Appeal, makes it douhtful how far the judgment of the Chief Justice is to be regarded as an authori- tative statement of the law. 102 TRAFFIC FACILITIES. [Chap. III. Ibid. 503, 603, 604. Decisions of the Rail- way Com- missioners as to struc- tural facili- ties. Illegal charges. Hroion's Case (No. 1) delivery of cattle, are probably facilities which may be insisted on, although the mode of providing the accom- modation iQust be left to the discretion of the company (p). (5) Eefreshment-rooms do not fall within traffic facilities, nor do protections from weather necessary only for invalids, although it would appear to be other- wise as regards protection necessary for passengers generally. Previous to the appeal in the Hastings Case^'', the Commissioners, in reliance on the Gaterham- Case^'^, had on more than one occasion ordered structural additions to" the existing works of companies (g) ; and although applications for new stations had not been successful, the Commissioners had intimated that, if a company's stations were unreasonably remote from places in a district supplying traffic to its railway, and the company possessed suitable land for a new station on a convenient site, they (the Commissioners) had power to order the construction of a new station for the accommodation of the district (r). But the Hastings Case''' has deprived these decisions of the weight that they might otherwise have. The case oiBrown v. G. W. Ey. Co. (No. 1)^' was an application to the Commissioners, founded upon an ' allegation that a number of the company's pa&senger {p) " a company does violate and contiavene the Act, if (having suffi- cient lioweis) it keeps its platfoiins, hooking - offices, and other structures at any station in such a condition, as to space and other arrangements, as to cause dangerous or ohstructive confusion, delay, or other impediment to the proper reception, transmission, or delivery of tho ordinary traffic of that station." Ter tSelbcrne, L. C., 6 Q. B. D., at p. 593. (?) In Innes v. Brighton, S;c., My. C'o.'s^'"' the Commissioners held that a station unprovided with a carriage approach, and -without any protection from the weather between the station and the road, was insufficent; in L. # S. W. Ry. C'o.v. Staines, ^e.. My. Ci.i^i they held that waiting-rooms at stations largely frequented, and platforms and sidings sufficient to accommodate the ordinary traffic, were " reasonable facilities" ; and ill Neaington Local Board v. N. F,. My. Co.^^'' an order was made for additional siding accommodation. On the other hand, in Holyhead Local Moard v. L. i- K W. My. Co.'^°° an application for a footbridge, to give a shorter means of access to a station, was refused. (»•) Newington Local Board v. N. E. My. Co.'^^'' ; Harris v. L. & S. W My Co.'''- ' Sec. II. J TRAFFIC FACILITIES. 103 fares were slightly in excess of their parliamentary scale, and seeking to compel the company to desist from making such charges. Upon an application by the company for a prohibition, it was held by the ^ff'^"' Court of Appeal, affirming the decision of the Queen's lf^%'% Bench Division, that the fact that a company's charges "o^iJft were in excess of their statutory maxima did not rofIi"ai o° amount to an absence or refusal of reasonable facilities, so as to give the Commissioners jurisdiction under this branch of the section (s). Previously to Brown's Case-^ the Commissioners had ^^^;!/"*'' on more than one occasion held that the fact of a com- ^xcefsire"" pany exceeding its parliamentary scale was sufficient tor?™qnffiio to give them jurisdiction, and had made orders that the rates should be reduced (t). These cases were passed sub silentio by the Court in Brown's Case^\ and Antf. r- mubt be 'taken to have been erroneously decided, except in so far as the facts may have been such as to bring them within a principle suggested by some of the judges, viz., that charges, which, besides being in excess of the statutory maxima, were so high as to be prohibitory, or were made with an intention of preventing traffic, might amount to an impediment in the way of the receivi])g, forwarding, and delivering of traffic, so as to justify the interference of the Commissioners. Although these dicta appear to have had reference to extreme cases, the Commissioners have given them a somewhat wide interpretation, and in the recent case of Dislington Iron Co. v. L. & N. W. By. Co.^\ they enter- tained an application in which it was alleged that the maximum rate was lid. per ton for traffic which was being charged at Is. 3|d., and ordered the railway company to desist from making the charge. In that case it was stated that the applicants had remonstrated against the charge, and announced by letter their deter- («) The Aberdeen Case^, which was relied on by the Commissioners, was distinguished by the Court. (0 Chatterley Iron Co.^.N. Staffordshire Ry. Co.^-\ Lloyd \. A'orth- mnpion, j-c, Sy. Co.i" 104 TRAFFIC FACILITIES iGhap. III. Commis- sioners empowered to determine legality of ■charges for merchandise traffic. Traffic Act, 1888, s. 10. AppendixA., p. 26. Jurisdiction of the Commis- sioners to enforce Special Acts. mination not to pay it, whereupon the company gavo them notice that unless the letter was withdrawn, they would not carry the traffic. The Commissioners con- sidered that these facts distinguished the case from the decision in Brown's Gase^, and (the company declining to contest the case on the merits) held that a case was established both of denial of reasonable facilities and of undue prejudice (m). The Act of 1888 contains nothing affecting the law as appKcable to the facts in Brown's Case^, where the question related to passenger fares ; but as regards goods traffic, the Commissioners now have power tc deal with questions involving the legality of " any toll, rate, or charge." It has never been expressly decided whether the Act of 185-1 gives jurisdiction to enforce provisions ni private Acts with regard to special facilities to be afforded by particular companies. It is clear that neither that Act, nor the Act of 1873, gives any power to deal with violations of special Acts as such, and the late Commissioners on more than one occasion dis- claimed any such jurisdiction (v) ; but with regard to traffic facilities, they held that inasmuch as private Acts extended or limited both the powers and obliga- tions of particular companies, the general enactment, which required facilities to be given according to the respective powers of the companies, must, in each case, be read and considered with reference to the language of any special clauses affecting the particular company (w) . This view seems to require the words (m) The Company have since obtained a rule }ii.si for a prohibition. (Times Law Eeports, 1888.) See also Vckjield Local Board \\ L. Brighton, ^c., By. Co.i'*', and luting v. Givaidraeth Valhys By, Cl/.^™ (f) See Nitshill, ^c, Co. v. Caledonian By. 6'o.i»«, 2 E. & C. T. Ca., at p. 43 ; Vckfeld Local Board v. 1. Brighton, Sic, By. Co. 's™, ibid., at p. '222. (w) Tharsis, %c., Co. v. L. % N. W By. Co.'^^ In this case a Special Act required the company to provide ■waggons for certain traders, and upon complaint that the company did not supply sufficient waggons, the Commissioners ordered them to do so. \\'liere a company was required by its Special Act to weigh coal at the point of discharge, the Commissioners doubted whether they had power to enforce the obligation. Watkinson't Case (No. 3).'-™ C- II.] TRAFFIC FACILITIES. 105 " according to their respective powers," in the Act of 1854, to be read as equivalent to " according to their respective powers or obligations," but it may be thought to receive some countenance from Watkinson's Case (No. 2f\ in which, upon a case stated by the Com- missioners, the Common Pleas Division held that under the provisions of a private Act a company were bound to provide waggons. In that case, however, the question of jurisdiction does not appear to have been TramoAct raised, and the pomt is rendered unimportant for the AppondixA., future by s. 9 of the Act of 1888 (Chap.VIL, Sect. II. (i). ^' "' The question was raised before the late Commis- Private sioners whether the Act of 1854 enabled them to deal '"^'"^'' with questions relating to private sidings. A right to have private sidings or branch railways connected with the railway is conferred (subject to certain conditions and restrictions) by the Eailways Clauses Act, 1845, li^'^^fi"- upon the owners or occupiers of lauds adjoining the ^wendi'^A., line, and a similar right was conferred by many of the €arly special Acts ; but in practice private sidings are usually made and connected by arrangement between the trader or landowner and the Company. Before the Act of 1 888 the appropriate mode of enforcing the statutory right, whether under the Act of 1845 or a special Act, was by an application to the High Court ior a mandamus or injunction ix), but in the case of The Dublin Whiskey, dc, Co. v. Mid. G. W. (Ir.) By. Co.^^ it was contended that, although the Commis- sioners had no jurisdiction to enforce directly any part of the Act of 1845, the right given by section 76 was a " facility " which the Act of 1854 empowered them to order. It became unnecessary, however, to decide the point, since the Commissioners held that the par- ticular junction and mode of working proposed by the applicants were not reasonable under the circum- stances, it being doubtful whether they would be sanctioned by the Board of Trade. In another case — (j;) See Hell v. Midland By. Co?^ ; Woodmff v. Breton .Jc. liij. Co.«^ ; Todd V. M. G. W. (Ir.) Ry. Co.'^^ 106 TRAFFIC FACILITIES. [ChAP. III. Beeston Brewery Co. v. Mid. By. Co.^ — private sidings had been constructed and worked under an agreement, which contained g, clause giving the railway company . power upon notice to terminate the arrangement and take up the rails. In consequence of a dispute as to- rates, the company acted on this clause, and removed the rails, intimating at the same time that, if the applicants would pay the rates in dispute, the siding should be replaced. The Commissioners were divided in opinion. Mr. Commissioner Price considered that the Act of 1845 and agreements between a company and particular traders were equally matters outside the jurisdiction of the Commissioners, and that a com- pany's obhgations under the Act of 185-1 were fulfilled,, when traffic had been conveyed to its public station, and placed there conveniently for delivery. The other Commissioners, though differing upon the question how far private sidings could be ordered as " traffic facilities," agreed that the applicants were entitled to< an order, the company being only called upon to con- tinue an existing connection, and it being proved that, private sidings were conveniences enjoyed by rival traders. The case thus turned partly on considerations, of undue preference, and the decision suggests, what would seem to be the case, that there may be services, which a company cannot be called upon to perform as- a duty directly owed to the public, but which it may be required either to perform for all members of the public alike, or to desist from performing for any {y) . coniiwiiy Apart froln the question of undue preference, all the cannot bo , .*■ '^ wrk"'' *'" Commissioners seem to have agreed that a company .S's cannot be compelled to work a private siding, the utmost that can be' required of them being to give facilities' for its working by the owners. This appears to be in accbrdance with the view taken by the Common Pleas Division in Watkitisoii's Case (No. 2).™ The (y) Sec Cooper v. Z. f A iF. S. Co.^'i, post, p. 151. As to tke power con- ferred upon the Commissioner.s by the Act of 1S88 of dealing with questions relating to private sidings, sec Chap.. VII. Sect. II. (i). Sec. II.] TRAFFIC FACILITIES. 107 Commissioners there had held that the owners of private sidings were entitled to have their traffic car- ried without any charge beyond the ordinary mileage rate, if they placed their trucks as near to the junctions with the main line as they could safely be brought ; and that it was nothing more than a " reasonable facility "for a company to run over a portion of the sidings to collect trucks so placed. A case for the opinion of a superior court on this point was refused, but, being granted on another point, the Court took occasion to express their opinion that traders only had a right to have their waggons conveyed along the rail- way itself, and could not call on a company to bring them on or fetch them off the line {z). In Thovias v. North Staffordshire By. Co.'^* an appli- station *^ ^ *' *- ■*■ retjeiTeil for cation was made to the Commissioners to comply a particular ■■; •' traffic. company to carry the traffic of the complainant, which was of a damageable nature, to a station which had been set aside exclusively for mineral traffic, all other classes of goods being taken to a station in another part of the town. The accommodation at the former station being shown to be insufficient to accom- modate the general traffic of the town, the application was refused. In Innes v. L. Brighton, dc, By. Co.™ in^J^waoy the Commissioners considered the adequacy of the s>emce. train service, and were prepared to order additional trains to be run upon a sufficiently strong case being made out. In DuhUn & Meath By. Co. v. M. G. W. gS™'" {Ir.) By. Co.^^ they held that a company was not bound to arrange for the conveyance of goods by road from places off its railway. The right to apply to the Commissioners for facilities Application , . . , by corn- may be exercised by companies as well as by indi- panies. \aduals (see post, Chapter VII., Section III). In G. W., (a) Upon a subsequent complaint ty the same api^licants — Watkinson's Case (No. 3) ^o" — the Commissioners appear to have reiterated the view pre- viously expressed hy them, and made an order against the company ; a rule nisi for a'prohibition was suhsequcntly obtained bythe company, and, no one appearing to support the Commissioners' order, was made absolute without argument. Watkinson' s Case (So. 4).-'^i 108 TEAFFIC FACILITIES. FChAP. Ill" d-c, By. Co.'s V. Bristol Bort By. Co.^' the applicants had running powers over the respondents' railway, and under statutory powers had altered the signals so as to enable the railway to be worked on the block system. The respondents refused to work the signals so altered, but the Commissioners held that this was a reasonable facility, which they were bound to afford. On the other hand, in Swindon, &c.. By. Go. v. G. W. By. Co.™, where the facilities asked for were only necessary for the traffic of the applicants, the owning company's arrangements being proper and sufficient so far as their own traffic was concerned, the Commissioners doubted whether the case came within the section, and refused the application. (iii.) Facilities for through traffic (zz). fraffleiu '°' The third clause of section 2 of the Traffic Act, 1854, ot cm-^ refers to companies " having or working railways or lines?™ canals which form part of a continuous line of railway, or canal, or railway and canal communication, or which have the terminus, station, or wharf of the one near the terminus, station, or wharf of the other," and by section 1 the word "near" is defined (in the case of stations not being situate within five miles from Saint Paul's Cathedral) as not exceeding one mile distant. o™TO*com- ■'-^ ST£iiie of some expressions of opinion to the gethfrnrt Contrary (a) it seems that this clause is limited by than'obiiga- *'^^' "words " according to their respective powers," eacTram- which occur at the commencement of the section. md/.""" In the case of Toomer v. L. C. d D. d S. E. By. Co.'s''" o^se!^' * complaint was made against the two companies for failing to provide a proper through service for goods and passenger traffic requiring to pass over the lines of the two companies ; these lines were connected at Chatham by a short branch belonging to the Chatham («2) As to through rates, see Chapter IV (a) See per Lush and Manisty, JJ., in the Sastinge Casc,^'' 6 Q. B. D., 245-253. Both those judges attached signiflcance to the omission of the qualifying words in the latter part of the section, though they deduced opposite conclusions from the omission. \\ Sec. II. TRAFFIC FACILITIES. 109 company, which that company had ceased to use for passenger traffic. The Commissioners made an order against the two companies, ordering them to arrange a convenient train service for through traffic over the connecting link of line, to issue through tickets, and to make whatever arrangements might be necessary for the exchange of traffic at the station of one com- pany or the other. Upon the Commissioners proceeding to enforce their order by penalty, the Court granted a prohibition to restrain them, on the ground that they had exceeded their jurisdiction in making an order upon two companies jointly to concur in doing what neither company had power to do separately (b). Previously to these decisions the Commissioners had Bamf^ in several cases (c) ordered companies whose lines were connected (independently of the jurisdiction with regard to through rates conferred on them by the Act of 1873) to concur in affording facilities for through traffic, {e.g., by through booking and convenient arrangement of trains,) and the case of Barret v. G. N. <£■ Mid. By. Co.'s" lent some countenance to the view that such orders were within their jurisdiction. In that case, which was an application to the Court of Common Pleas before the jurisdiction of that Court had been transferred to the Commissioners, the complainant sought (i) This deoisioa was cited by the Court, apparently with approval, in the Warwick Canal Oase.^^^ (c) Inlnnes v. Z. Brighton, ^v., and Z. ^- S. W. Ry. Cfa.'s.,'*'an order Decisinnsot was made for through hooking of passengers between two railways ; and 'l'^ Commi^■ in TTekfield Zocal Board v. Z. BrighP.m, fc , and S. JE. R. Co.'s'^»^ a similar ^>°°^'^^- order was made with respect to goods. In the latter case an order was also made that the two companies should afford a continuous communi- cation for passenger traffic, although their lines were only connected by a piece of line which had never been opened or approved for passenger trains. In Victoria Coal Co. v. Neath, ^-c, and Midland Ry. Co.'s^^ the applicants complained that their traffic was taken by an unnecessarilj"^ long route, because the two railway companies refused to interchange traffic, and the Jlidland Co. justified their refusal on the ground that the Neath Co. had failed to provide exchange sidings in accordance with a statutory agreement. The Commissioners held that the obligation to exchange traffic was not confined to cases where the forwarding company had accommodatiott at the junction for that purpose, and that the rights of the public could not be affected by the agreement or by the disputes between the two companies, and made an order upon the two companies to comply with the application. In James v. Taff Vale and G. W. Ry. 110 TRAFFIC FACILITIES. [CHAP. III. to compel the railway companies to issue through tickets and run through trains between King's Cross and Settle, but he failed to establish any case of pubhc inconvenience, the fact being that through trains were run from Euston by a route only a few miles longer. In these circumstances the application was dismissed, and it, therefore, became unnecessary to decide the question whether it was within the power of the Court to make such an order as was asked for. Cockburn, C. J., however, intimated, that if two competing companies so arranged the departures and arrivals of their respective trains as to operate inconveniently to the pubhc, the Court would be justified in exercis- ing the jurisdiction conferred on them by the Act. But such a case could probably be met by an order upon one of the two companies, or separate orders upon each of them, without infringing the rule laid down in Toomer's Gase'^*'' , and the dictum of the Chief Justice does not seem to justify the view that through booking is a facility which companies could be obliged to afford under the Act of 1854. Sre'^f -^^ regards apphcations by members of the public, jiuisdiouoii therefore, the iurisdiction of the Commissioners under under the ' -^ Act 011854 ti^e Act of 1854 to order facilities for through traf&c .IS regards ° thrmi'h *°' '^^^ extremely limited, since such facilities ordinarily traffic. necessitated the co-operation of two companies. If, however, the application were made by one of the two conveying companies, there seems no reason why an order to afford facilities, such as through booking, which could not be ordered upon the application of the Post, p. 115. public, should not have been made against the other C'o.'s^*' the lines of the two railways wore connected hy a junction line beloni^ing to the G-. W. E. Co., which was not used for passenger traffic ; the Commissioners made an order that the Tafi Vale Co. should run passenger trains over the junction line in accordance with statutory running powers, in such a way as to form a connection between their own main line trains and those of the Gr. W. R. Co., and that the latter company should afford facilities for the passage of such trains and the accommoda- tion of the traffic. See also Hcmmans v . G. W. and Swindon, Stc, Ry Co.'s^^, where a delay in affording facilities, pending the completion of certain works necessary for the exchange of through traffic, -was held justified, though the existence of disputes as to the rights of the com- panies inter se was held to be no answer to the application. Sec. II.] TRAFFIC FACILITIES. Ill ■company, provided they were, in the opinion of the Commissioners, reisonable under the circumstances. It was said in Barret's Case' that a complainant must F"""'" . make out a case of pablic inconvenience, and not merely ™™y^"^''"' an individual grievance {d) ; and also that in considering what facilities a company can reasonably be called upon Regard . , ^ T , , -, must be had to afford for particular traffic, regard must bs had tototheoon- ■*- ' o ^ venieucc of the convenience of the general traffic on the railway (ft). ^™^™' (iv.) Summary. The result of the decisions upon questions relating summary of to traffic facilities (other than through rates; before the before i889. passing of the Act of 1883 seems to have been to ■establish the following rules : (1.) No facilities can be ordered which it is not Ante, within the power of the company to afford (/). (2.) An order cannot be made upon two companies Ante, p. los. jointly to do what neither of them has power to do separately. (3.) The Commissioners can only make orders Ante, p. loi. generally that facilities shall be afforded, and cannot prescribe any particular arrangements. (4.) It does not in itself amount to a refusal of Ante, p. los. reasonable facilities that a company charges rates or fares in excess of its statutory maxima. (5.) An applicant must make out a case of public supra. inconvenience. (6.) Eegard must be had to the convenience of the supr*. .general traffic of the railway. (7.) The power to order facilities is not confined to cases of undue preference or prejudice {g) . (d) In this respect applications for facilities seem to differ from complaints ■of -undue preference ; see per Kindersley, V.C, in A. G. v. G. N. HiJ- Cofi, but compare Beadell v. E. Counties Ry. Coy ; I'tiinlcr v. L. Brighton, ^c. Ry CoM^ ; Palmer v. L. Brighton, %c., Eg. CoM'' ; Barkinson v. G. W. Ry. Co.151 («) In Holyhead L. B. v. L. % N. W. Ry. ft).™, the Commissioners held "that the section was confined to facilities required in the interests of railway traffic. (/) See also the Warwick Canal Case.^'^ \g) This was decided hy the Queen's Bench Di^'ision in the Bastings Case ^1 ; the point does not seem to have heen raised before the Court of Appeal. 112 TRAFFIC FACILITIES. [CHAP. Ill- Ante, p. 101. (8.) Structural alterations of, or additions to, existing- stations maybe ordered, if they do not amount substanti- ally to making a new station, and are necessary for the proper receiving, forwarding, or delivering of traf&c. Lastly, the cases left it doubtful— Ante, p. 103. (a) Whether charges so high as to be prohibitory might not amount to a refusal to afford reasonable facilities. Ante, p. 104. (J) Whether facilities required by the special acts, of a company were to be deemed facilities required by the general Act in its applica- tion to the particular company. Ante, p. IDS. (c) Whether private sidings were facilities which a company could be called upon to afford. Section III. — The Teaffic Act, 1888. and Canal "^hc effect of the Act of 1888 is to modify or reverse isss"" '*■'''' tlie first three of the rules suggested in the above sum- mary, while it contains express provisions with regard to the three questions which the decisions left doubtful. Powers of (J) The powers of a company may be restricted laciiSnot ^0* '^^^y ^y ^^® limits of its physical resources, but by'fgra-*^'^ also by agreement or by statutory provisions ; in other "11*^888] words, anything which a company either can or maif iris's.'' not do is outside its powers. So far as any limitation of a company's powers by agreement is concerned, the law is altered by s. 11 of the Act of 1888, which provides that nothing in any agreement, whether made before or after the Act, shall render a company unable to afford, or shall authorise it to refuse, such reasonable facilities for traffic as may, in the opinion of the Commissioners, be required in the interests of the public, unless the agreement has been confirmed by Parliament, or the Board of Trade, or the Eailway Commissioners {h) . be'ISf'"' i'^ ^^^ ^-^ "^^^ limitation upon the powers of the compaiMs, Commissioners in cases where facilities require the (h) In the case of through rates and tolls on canals this rule is extended to statutory agreements (s. 37 (3), Appendix A., p. 41.) Sec. III. J TRAFFIC FACILITIES. 113 concurrence of two companies is removed by s. 14, ^- 1^. [isssi which empowers the Commissioners to make orders upon two or more companies together, and to oblige them to make mutual arrangements for the purpose of carrying such orders into effect. The section also ™^?""' •' o panies may empowers the Commissioners to order the companies, tosubSt* or any of them, to submit for approval a scheme for fnto efleTt carrying such orders into effect, and to order each of ^ ^"^'^"'^^ the companies to do all that is necessary on its part and within its power to carry any scheme into effect, with a proviso that two companies are not to be re- quired to do anything which a single company could not be required to do. This section, therefore, creates an exception to the rule that the Commissioners cannot do more than order generally that facilities shall be afforded. Lastly, with regard to the questions left doubtful ^^^^jJ; under the Act of 1854— (a) the Act of 1888 contains ^^".I^^^^^^J nothing directly affecting the question involved in S'^Jn^' Brown's Case^ — viz., whether excessive charges ^"f^^ p^^" amount, or may amount, to a denial of reasonable 11,]^; ^^^2*5^.^' facihties ; but the question is rendered unimportant by section 10, which enacts that the Commissioners shall have jurisdiction to determine any question or dispute involving the legality of any toll, rate, or charge made in respect of merchandise traffic, and to enforce pay- ment of the charge, or of so much as they decide to be legal. (6) Section 9 confers upon the Commissioners juris- special diction to hear and determine complaints of contra- IJi'^p*^|^ ventions of any provisions relating to traffic facilities contained in a special Act. (See post. Chapter VII,, Section II. (i.) )• (c^ The same section also gives the Commissioners Prijatt jurisdiction to deal with questions relatmg to private iWd. sidings, so far as these are provided for by any Act of Parhament. (See post, Chapter YII., Section II. (i.) ). 114 THEOUGH EATES. [ChAP. IV. CHAPTER IV. THBOUGH BATES. PAGE Section I. — Power of the Commissioners to grant Through Bates 114 ,, II. — Procedure 118 „ III.— Bight to Apply 121 ,, IV. — Through Bates, when granted . . . 125 ,, v. — Apportionment 130 ,, VI.— Sea Traffic 132 „ YU.— Canals 134 Section I. — Power of the Commissioners to GRANT Through Bates. Meaning of j^ THROUGH rate is a rate for convej'ance over the rate. railways of more than one company — in other words, traffic conveyed at through rates is conveyed over the railways of all the companies, whose lines go to make up the route between the stations of departure and destination, with a single booking and for a single payment. The company, upon whose line the traffic originates, is called the " sending company," and the other companies, whose lines are traversed, are spoken of as " forwarding companies." ■ Compulsory We have seen that the system of compulsory through rate9"tatro- rates was introduced by the Act of 1873, upon the Traffic Act, recommendation of a Parliamentary Committee, the 1873" Ante, p. 28. immediate object being to prevent a company being excluded from its share of traffic by amalgamation or combination between its rivals. That Act explains Sec. I.] THROUGH RATES. 115 through rates as being the outcome of the Traffic Act of 1854, by which companies were rec[uired to afford all reasonable facilities for through traf&c ; but we have seen that the jurisdiction of the Court of Common Pleas Ante,p.iio. under the Act of 1854, to order traf&c to be conveyed at through rates, if it existed at all, was of a very limited nature. Probably, for reasons already ex- plained, it could only be exercised upon the application of a company, and it was certainly limited to ordering a single booking in the place of separate bookings at the starting points of the different conveying companies, so that it was wholly inoperative as regards the object aimed at by the Act of 1873, which, as the Committee of 1872 pointed out, could only be effected by a tribunal ^nte. p. 29. empowered to compel a forwarding company to accept something less than its maximum local rates (a). The provisions of the Act of 1873 with regard to ivafflo Act through rates were contained in two sections (ss. 11, pia^AlJby 12). The first of these, after reciting at length s. 2 of I'^Ya^g" the Traffic Act, 1854, provided as follows : — toineiude tiirough The said facilities to be so afforded [i.e., the facilities provided ^ppen^ij. for in the recited section,] are hereby declared to and shall a, p. is. include the due and reasonable receiving, forwarding, and delivering by every railway company, and canal company, and railway and canal company, at the request of any other such company, of through traffic to and from the railway or canal of any other such company at through rates, tolls, or fares (in this Act referred to as through rates). The Act of 1873 effected, therefore, two things: — Effect of the ' ' " Traffic Act, (1.) It placed beyond doubt the power of the new J^''|-^^q^, j^ tribunal {i.e., the Eailway Commissioners) to order "cokings. through booking when asked for by a company. (2.) It enabled them to order through traffic, upon the like request, to be conveyed for an amount less than rat?b%''"''°'^ (a) In their first Annual Report (p. 4) tlie Commissioners said that before 1873 it was not clear that either the puhlic or a railway company could, under the Act of 1854, require that through traffic should be for- warded at through rates. See, however, the judgment of Mr. Commis- sioner MiUer in G. W. Ry. Co. v. Severn and Wye My. Os.V, 6 E. & C. T. Ca., at p. 189. I 2 116 THROUGH BATES. [ChAP. IV. the sum of the local rates in force, and less than the maximum rates which the companies along the route were authorised by their Acts to demand. iSsfs^^^s' '^^^ powers of the Commissioners under the Act Applndix of 1873 were, however, subject to two restrictions, A-p-33. to which they drew attention in one of their early reports (b). In the first place, they could only enter- tain an application for a through rate when made by a railway or canal company; in the second place, their powers were limited to granting or refusing the particular rate proposed by the applicants. Both these restrictions are removed by the Act of 1888, which Traders (1) authoriscs the Commissioners to allow through rates, empowered i. .1 1 to apply for not Only at the request of a railway or canal company, rates. but also at the request of any person interested in the through traffic, provided such person has first made a complaint to the Board of Trade under another section of the Act (c), and the Board have heard his complaint ; ^ioueraem- ^°^ (^^ gives to the Commissioners power, not only to ttxrat?*" allow or refuse the rate proposed by the applicants, but thafpTO-" s-lso to "fix such other rate as may seem to the Com- app^kjants. missiouers just and reasonable." The second of these o.t, p. 119. gjjanggg jg perhaps rather one of form than of substance ; for, although under the Act of 1873 the Commissioners could not grant any rate other than the one proposed, there was nothing to prevent them indicating what rate they considered would be a proper one, in which case the apphcants had only to make a new proposal on the lines so indicated, with a certainty of success. b'^trwiers™ '^^^ other change is one that may be far-reaching in its consequences, and seems to leave the law in an anomalous state. The revised maximum rates and charges, when finally settled and approved by the Legislature, are to be the rates and charges which each company are entitled to make, and the Act reserves no (i) Fourth Annual Report of the Railway Commissioners, p. 5. [c) Section 31, which provides for complaints to the Board of Trade of unreasonable charges or treatment with a view to an amicable arrangement through the mediation of that body (Appendix A., p. 37). Sec. I.] THROUGH BATES. 117 power of revising these maxima, although the Com- missioners have suggested that such a power might be conferred upon them with advantage. With regard, romth therefore, to traffic conveyed over the line of a single ^p""*-?-*- company only, the company are free to make what charges they think fit, so long as their maximum is not exceeded {d). But in the case of traffic conveyed over the lines of more than one company, it is open to any one interested in such traffic, after first complaining to the Board of Trade, to apply to the Commissioners, who may insist on the company conveying it at whatever rate seems to them just and reasonable. It is true that since the passing of the Act of 1873 the Commissioners have had it in their power, in the case of through traffic, to compel companies to accept less than their maximum rates ; but in applications under the Act the companies were generally protected against the risk of having to carry at unremunerative rates, in the first place, by the fact that an application for through rates could only be made by another company, who must themselves have been ready to carry at the rate proposed (e) ; and, in the second place, by a provision, which is repeated in the Act of 1888, that a company is not to be compelled to accept "j||g(^) a lower mileage rate than it is already charging by an alternative route. Where the application is made by a trader, the first of these safeguards does not exist, while in many cases the second may fail to come into operation, e.g., in cases where the only route between the termini is the one for which the through rate is proposed . The Select Committee of 1861 — 1882, while recom- such appu- cations mending that the jurisdiction of the Commissioners limited to "J cases of should be extended so as to enable them to order haraship. through rates on the application of traders, suggested that the power should be subject to this limitation, (d) As to the requirement that a company's charges shall he reasonahle, see ante, p. 63. (e) See 12th Annual Report of the Eailway Commissioners, p. 8. 118 THROUGH KATES. [ChAP. IV Report, Yiz., that DO such Order should "impose on a railway p. XV, company a rate lower than the lowest rate of such railway company for similar articles under similar circumstances." This limitation has not been embodied in the Act of 1888 ; but, having regard to the primary object of compulsory through rates being rather to give a choice of routes than to lower rates, and having regard also to the revision of the charging powers of the companies provided for by the Act of 1888, it seems hardly likely that reduced rates will be forced on companies by the Commissioners upon the mere complaint of a trader that the existing rates are too high, so long as they are within the revised maxima of the companies over whose lines the through traffic passes, and are not higher than the rates which those companies are charging else- where for similar traffic under similar circumstances. In the first place, whether the application is made by a trader or a company, it is incumbent on the applicants to show that what is asked for is a due and reasonable facility in the interest of the public ; and the late Conunissioners not only consistently recognised the principle that a company is not to be required to carry traffic except at a profit, but held that, in applica- tions for through rates, there was no prima facie case in favour of specially low charges (/). In the second place, the distinction which the Act draws between traders and companies by obliging the former to com- plain in the first place to the Board of Trade of "unfair," "oppressive," or "unreasonable" treatment, points to the right of a trader to demand through rates being limited to cases of hardship. Section II. — Procedure. wSfhe^' With the two additions already noticed— viz., that ^Ztalfot applications may be made by traders, and that the objected to. Commissioners may fix any rate that they think (/) Selfasi Cent. %. Co. v. G. N. (Ir.J By. Go.^ Sec. II.] through eatbs. 119 just and reasonable — ss. 11, 12 of the Act of 1873 are substantially re-enactpd by ss. 25, 26 of the Act of 1888 (g). The first of these sections (corresponding to 8. 11 of the Act of 1878) enumerates the steps to be taken by applicants. In the first place, they must ?-ig^| 5(1> [18S8]. give written notice to each company along the route (called the "forwarding companies") stating the amount of the proposed through rate, and the route by which it is proposed that the trafi&c shall be carried. The proposed through rate may be per truck or per ton. Within ten days after receipt of this notice im- "• 25- (unless any longer period is prescribed by the Com- missioners:, each of the forwarding companies must send a written reply to the applicants, informing them whether they agree to the rate and route, and if they object to either, stating the grounds of their objection. If no objection is made within the prescribed time, the ibid.8.2} ptoposed rate comes into immediate operation. If objection is made by any forwarding company Proceedings within the prescribed time to the granting of the rate, objection is or to the route, the matter is referred to the Commis- iMd.s.zs sioners for decision. Under the Act of 1873 they had no power to substitute any other rate for the one pro- Ante, p.iie. posed by the applicants (h), although, if they allowed the rate, they had power to apportion it between the different companies as they might think fit ; but, by the Act of 1888 the Commissioners are empowered to decide generally whether any, and, if so, what through rate ought to be allowed. The first question, there- 1. Granting fore, for the consideration of the Commissioners is not, rate must be as under the Act of 1873, "whether the granting of reasonable ■ /■ 1 ■ faotlityin the rate, but "whether the granting of a rate is a the interest due and reasonable facility in the interest of the pubhc. public. The next point they have to consider is whether, s. Honte - . ^ , . , , must be having regard to the circumstances, the route proposed reasonable. (ff) See Appendix A., pp. 32-34, where the parts, which diifer from the corresponding provisions of the Act of 1K73, are underlined. (/») Newrff, ^c, Ey. Go. v. G. N. (Ir.) Ry. Co^^'' ; G. W. Ry. Co. v. Severn and Wye Ry., ^c., Co.'s^^. 120 THBOUGH BATES. [Chap. IV. 3. Rate must be Just and reasonable. Apportion- ment of through rates. Ibid. s. 25 (1). Ibid. s. 25 (7). Ibid, (6). Costs, Ibid. s. 25. is a reasonable route ; and thirdly, if they come to the conclusion that a through rate ought to be granted by the proposed route, they have to decide whether the proposed rate shall be adopted, and, if not, what rate will be just and reasonable. When the applicants for a through rate are a railway or canal company, they must state in their notice to the forwarding companies how they propose that the rate shall be apportioned between the different com- panies, and if the only objection be to the proposed apportionment, the rate comes into operation at the expiration of the period prescribed for sending in objections, and the decision of the Commissioners as to the apportionment is retrospective. In other cases the operation of a proposed rate is suspended until the decision of the Commissioners. When the ap- plication is made by a trader, it is not necessary for him to propose any apportionment, and if the companies do not agree, the Commissioners decide how the rate is to be apportioned, as in other cases. The Act of 1888 contains a clause, which did not occur in the Act of 1873, and may possibly introduce a change in practice, although it seems to make no positive alteration in the law. It provides that when an order is made by the Commissioners upon an application for through rates, they may, if a respondent company has refused or neglected without reason to agree to the rates proposed by the applicants, or to the route, or to the apportionment, order such company to pay to the applicants such costs as they think fit. There was no provision in the Act of 1873 prohibiting the Commissioners from awarding costs upon applica- tions for through rates, and s. 28 gave them a general discretion as to costs in all proceedings before them ; but the practice of the late Commissioners was not to give costs against respondent companies in these applications, a company having in their view " a right under the Act to the judgment of the Commissioners Sec. II.-IIL] through rates. 121 before a through rate was put in operation " (i). Where, on the other hand, an apphcation for a through rate was unsuccessful, it was their practice, in the absence of special circumstances, to order the applicants to pay the respondents' costs, in the same way as any other complainants or applicants who failed to make out their case. The words in the clause, " an order is made," must probably be read as meaning " an order granting a through rate," though not necessarily allow- ing the rate proposed by the applicants. (As to costs generally in applications before the Commissioners, see post. Chapter VII., Section IV.) Section III. — The Right to apply for Through Eatbs (j). Under the Act of 1873 the right to apply for through Right now rates was confined to railway and canal companies, to mi 1 TIC IT • companies A harbour board, therefore, could not maintain an ami persons interested application {k). The Act of 1888 extends the right, 'jj^f^™'^'' subject to the conditions already noticed (ante, p. 116.), to any person interested in through traffic, and by ^^I'Msrsi s. 55 of that Act, and s. 2 of the Act of 1873, the word ■"person" is made to include a body of persons, cor- porate or unincorporate. Further, by s. 7 of the Act of Harbour 1888, harbour boards and other local authorities are s. r, [isssj. authorised to " make any complaint which the Com- missioners have jurisdiction to determine," and though the Act contains no definition of " complaint," the ivord probably includes all applications for " facilities." With regard to applications for through rates by A"j^,'^'^*^''''f,'" railway and canal companies, the right to apply was ^^'J^J^^j (and is) perfectly general, so far as relates to the traffic ^Ji^^^^ passing over their systems from or to the systems of ""J^J^^J^Dj. (t) Central TFales, ^c, Ry. Co.'s v. G. jr., #<;., My. Co.'s.^" (j) As to the construction of the provisions of special Acts -with regard to through rates, see G. W. Ey. Co. v. Cmtml Wales, ^-c, Ry. Co.i^, Metrop. Bist. Ry. Co. v. Metrop. Ry. Co.^^, and Z. # iV. TT. Ry. Co. v. \e) Newry, ^c, Sy. Co. v. G. N. (Ir.) By. Co.^^'^ K 130 THEOUGH BATES. [ChAP. IV. mileage rate as that at which it is compelled to carry through traffic (f). Neither, it is submitted, can through rates, when ordered by the Commissioners, afford ground for complaint of undue preference by traders at places where through rates are not in force. But it has been said that the voluntary granting through rates to certain places, or by certain routes, and withholding them from others, may in certain circumstances amount nam^^ to undue preference {g). With regard to canals, it is expressly provided by the Act of 1888 that agreed through tolls or rates may be computed at a lower mileage rate than those charged for local traffic, without necessitating or occasioning any reduction of the latter. (Post, p. 136.) Section V. — Appohtionment. Knies as to The Act of 1888, re-enacting a clause in the Act of apportion- ' '^ ment. 1873, provides that in apportioning a rate the Com- cinDBtances missiouers are to " take into consideration all the into con- circumstanccs of the case, including any special ex- sideratlon. . . ' " . '^ . mki^' pense incurred in respect of the construction, mainten- ance, or working of the route, or any part of the route, as well as any special charges which any company may have been entitled to make in respect thereof." If the maximum rates, therefore, of one of the com- panies are higher than those of another, the former company would appear, cceteris paribus, to be entitled, in the apportionment of a through rate, to a higher 2. Com- mileage proportion. But since the right of proposing enStied" through rates would in many cases be nugatory if a to demanl ' . , , . . , . . mileage forwarding company were able to insist on receiving maximum. , . -,-. ,.--, - Ibid., s. 26. its maximum rate for the distance which the through Ant«, p. 29. . ..... traffic IS conveyed over its line, it is provided that " the Commissioners shall have full power to decide (/) See Warwick Canal Case'"', 3 E. & C. T. Ca., at p. 120. {g) Swindon, §i., Sy. Co. v. G. W., ic, Ey. Co.'jie\ i ibid., at p. 352. See also Napier v. Glasgow, fc, Ey. Co.i'i; Ayr Marbour Trustees v. Glasgow, ^-c, By. Co.", and post, p. 168. §EC. v.] THEOUGH BATES. 131 that any proposed through rate is just and reasonable, notwithstanding that a less amount may be allotted to any forwarding company out of such through rate than the maximum rate such, company is entitled to charge, and to allow and apportion such through rate accord- ingly." The Act further provides that "it shall not be s. company lawful for the Commissioners in any case to compel any compcued to accept company to accept lower mileage rates than the mileage icas than it rates which such company may, for the time being, ^.y'''*"''?f- legally be charging for like traffic, carried by a like ™a., a. 25 mode of transit, on any other line of communication between the same points, being the points of departure and arrival of the through route." Thus, supposing a through rate to be proposed for coal between A and C, the traffic to be transferred to the forwarding company at B, and supposing the forwarding company to have ■communication of its own between A and C, by which it is charging for coal a mileage rate of a penny per ton, it cannot be compelled to accept less than a ■penny per ton per mile for the distance between B and C (h). Subject to these qualifications, the discretion of the spcoiai -, . . ... , - , . expense. Commissioners in apportioning a through rate is prac- tically unrestricted. In accordance with the provision that they are to take into consideration any special expense, the late Commissioners in Caledonian By. Co. V. N. British By. Co.^ allowed an additional mileage proportion to a company, that had incurred expense in constructing a branch railway to connect their line with private works, and in making improved access to certain stations. They also held that where one short •' . . distance. ■company had the traffic for a short distance only, it was, as a general rule, reasonable that it should be allowed more in proportion than a company which bad the traffic for a longer distance (i) ; and where the distance was less than the minimum mileage for (h) See Warwick Canal Case^^'^, 3 E. & C. T. Ca., at p. 122. G. W.Ry. €0. V. Severn and Wye By. Co.^^, 5 ibid., at p. 194. (t) Severn and Wye Ey. Co. v. G. W. By. Co.™ K 2 132 THEOUGH BATES. [ChAP. IV. which the company was entitled to charge under its Short Distance Clause, they allowed as for such Diversion minimum mileage (?'). Where two companies had 01 traffic. fi J' _ ,.1,1 1, J.1, agreed upon a route for traffic in which tney were botn interested, and subsequently an Act was passed obliging them to arrange through rates by another route, and pro- viding that any difference as to the apportionment of such rates should be determined by the Commissioners, the fact that the Act had diverted traffic from the agreed route to the disadvantage of one of the companies was taken into consideration by the Commissioners, and an extra mileage proportion allowed to that company {h). Section VI.— Sea Teaffic. Sea Traffic. The clausc iu scction 25 relating to sea traffic is in 8. 25 [1888] ,,.,,. , Ke-enaoting the lollowmg words : B. U[1873] " Where a railway company or canal company use, maintain, or work, or are party to an arrangement for using, main- taining, or working steam vessels for the purpose of carrying on a communication between any towns or ports, the pro- visions of this section shall extend to such steam vessels, and to the traffic carried thereby {I). It is enough to authorise an application under this provision, that either the applicant or the respondent company work steamboat traffic in the manner referred to in the clause (m) ; and in cases where the railway company do not work the vessels themselves, but are parties to an arrangement with the shipowners, it appears to be unnecessary, if the rates for the sea transit are under the absolute control of the com- pany, that the shipowners should be parties to the application (w). (j) Tal-y-Uyn Ry. Co. v. Cambrian Ey. Co.'^^'^ (h) L. # N. W. Ey. Co. t. G. W., ^c, Ey. Co.'s.'^^ \l) The wordiBg of this clause differs from that of section 28, which in general terms extends the provisions of section 2 of the Act of 1854 to- goods carried hy sea ; in particular, the operation of section 28 is not limited to steam vessels. (Appendix A., p. 36.) (m) Greenock, ^e., Ey. Co. v. Caledonian Ey. Co.^, 3 E. & C. T. Ca., at p. 167. (b) S. C. 2 ihid., at p. 233. See, however, City of Dublin S. P. Co. v. L. i N. W. Ey. Co.^, i ibid., at p. 15. Sec. VI.l THBOUGH bates. 133 The questions that have arisen under precisely the what ar- ■*■ i. J ran^ements same clause in section 11 of the Act of 1873 have been oomewithm the Clause. mostly with regard to what amounts to " an arrange- ment for using, maintaining, or working steam vessels," within the meaning of the clause. The late Commis- sioners held in the case of Caledonian By. Co. v. Greenock, <&c., By. Co.'^, that to bring an agreement between a ship- owner and a railway company within the clause, it must be valid and definite, and must impose an obligation upon the former to ply between the specified ports, so as to insure that the railway and steamer should form a continuous line of communication ; and they inti- mated that an application would not be entertained by them if the validity of the agreement were dis- puted with any show of reason. Similarly, in Ayr Harbour Trustees v. Glasgow, dc. By. Co.'s', they held that the mere existence of through bookings by a particular line of steamers, by which the traffic of a railway company was habitually conveyed, was not enough to bring the traffic within the clause, if the shipowners were free to discontinue the sailings without reference to the railway company. On the other hand, an agreement determinable by six months' notice, by which a shipowner bound himself to ply between the ports at least every alternate day, and to time his sailings with due regard to the convenience of the railway company, was held to fall within the •clau,se (o). The Commissioners also held that to bring an arrangement v/ith a shipowner within the clause, it was enough that the company party to the arrangement should own, or work, or be otherwise immediately interested in, some portion of the line of railway communication, and that it was not necessary that they should own the railway at the port (p). Although the corresponding clause in the Act of 1873 (o) Selfast Cent. Ry. Co. v. G. IST. (Ir.) My. Co.^^"- See also Greenock, ^c., Sy. Co.Y. Caledonian My. Co.'* (p) Caledonian My. Co. v. Greenock, ^-c., My. Co.^ 134 THEOTJGH BATES. [ChAP. IV. Whether did not in terms extend the right to apply for through shipowners _ . ,-i can apply rates to anv other than railway and canal companies, tne late Commissioners doubted whether m cases where a railway company was party to an arrangement within the clause, an application could not be made by the owners of the vessels (g). The point, however, is not of much practical importance now, since the shipowners in such cases would clearly have an interest in the traffic, sufficient to entitle them to apply under the provisions Ante p.n6. of the Act of 1888, if through rates were unreasonably withheld. Section VII. — Canals. Provisions ^y section 36 of the Act of 1888 it is provided that raS'°" ^11 1^^ provisions of Part II. of the Act (including sections t^inaK 25-26, which relate to through rates,) "shall, so far 3. 38 [1888]. as applicable, apply to every canal company, and ta every railway and canal company," and that in Part II., " unless the context otherwise requires, the expres- sion ' railway company ' shall include a canal company and railway and canal company, and the expression ' rail- way ' shall include a canal, and the expression ' rate ' shall include tolls and dues of every description charge- able for the use of any canal or by any canal company." Agreements The Act also Contains certain provisions relating prevent solcly to through ratcs and tolls on canals. It has rates. already been pointed out that section 11, which enacts, ma. 9,11. ,•',.■': , _ T . that nothing m any agreement, unless connrmed in Ante p. 124. the manner specified, is to be a bar to a company's affording traffic facilities, applies to through rates ; Ibid. 8.37(3) section 37 (3) extends this rule, in the case of through rates or tolls on canals, to agreements "whether con- firmed by Act of Parliament or not." Another clause Ibid. 8.87(2). in section 37 seems to have been passed with reference to the state of things that arose in the Warwick Canal Case}"' It provides that " the Eailway and Canal Traffic Act, 1854, as amended by the Regulation of Eailways Act, 1873, shall extend to any person" (which (q) City of Dublin S. F. Co. v. Z. § N. W. By. Co.«, i ibid, at p. 15. Sec. VII.] THROUGH bates. 135 by the interpretation clause includes company) "whose iwa., ». 55. consent is required to any variation of the rates, tolls, or dues charged for the use of any canal, or by any canal company, in like manner as if such person were a canal company "(r). The effect of this sub-section is to give the Commissioners jurisdiction to enforce a through rate against a canal company, whose rates cannot otherwise be varied without the consent of some third parties, although such third parties with- hold their consent ; but, having regard to the language of the Court in the Warwiclt Canal Case^"^, and to the words in the section " in like manner as if such person were a canal company," it seems clear that the third parties must be served with notice of the proposed rate, and will have the right of being heard by the Commissioners in opposition to the application. Other clauses of the same section seem also in part Through . ^ tolls. mtended to meet questions which were raised in the ttw-s-Bro) Warwick Canal Case.^^ Thus sub-section (3) enacts that "the provisions of the Eailway and Canal Traffic Act, 1854, and the Eegulation of Eailways Act, 1873, with respect to rates, shall apply to tolls and dues of every description chargeable for the use of any canal or by any canal company;" and sub-section (4) provides that " any company allowing traffic to pass from a canal on to any other canal or any railway, or from a railway on to a canal, shall be deemed to be a forward- ing company, and the allowing of traffic so to pass shall be deemed to be the forwarding of traffic within the meaning of the above mentioned Acts." In other words, the provisions as to through rates are to apply to canal companies in their passive character of toll- takers, as well as in their active character of carrieis, when the duties of carriers are undertaken by them. In the Warwick Canal Case^'^ it had been contended that the jurisdiction of the Commissioners did not extend either to toll-takers, as opposed to carriers, (r) Ab to the reference here to the repealed sections of the Act of 1873, see note to section 37, Appendix A., p. 42. 136 THROUGH RATES. [ChAP. IV. {i.e., to "tolls," as opposed to "rates,") or to " gross tolls " {i.e., lump sums chargeable in respect of a certain section of a canal route), as opposed to ordinary mileage tolls. These clauses remove the doubts that existed under the Act of 1873. Sub-section nariVtion ^^^ provides for the case of part of a canal route being iwa.B.37(5) a river or other free navigation, and extends all the provisions with regard to through rates to such a case. tith™|ard Lastly, section 43 confers very full powers upon rawsTnd^ Canal Companies of making arrangements with one mf^'s. 4j. another with reference to through traffic and through rates, including provisions for the erection and use of warehouses and other buildings, and gives retro- spective validity to any arrangements of the kind in existence at the passing of the Act. The section also exempts agreed through tolls or rates from the operation of any Equality Clause. (Ante, p. 130). Chap. V.] 137 CHAPTEE V. EQUALITY AND UNDUE PEEFERENCE. Section I. — The Equality Clause 137 „ II. — Cases to which the Clause applies : — (i.) Carriers' Cases 141 (ii.) Inequality as between Traders . 145 (iii.) Summary 148 ,, III. — Difference between the Equality Clause and the Traffic A ct, 1854, section 2 149 ,, IV. — Undue Preference : — (i.) Carriers' Cases 155 (ii.) Bival Traders : — (a) Saving in Cost to the Com- pany 160 (b) Competition 168 (c) Group Bates 170 (d) Summary 171 „ Y.—The Traffic Act, 1888 172 Section I. — The Equality Clause. At common law a person holding himself out as aNoobiiga- common carrier of soods is not under any obhgation to carriers at n 1 - n TT • 1 T T • 1 common treat all his customers equally, jde is obliged, in the law to absence of any reasonable excuse, to accept and carry equally. all goods delivered to him for carriage, according to his profession, on being paid a reasonable sum for so doing, and the fact that a carrier charges A less than B for the same services may be evidence that the charge to B is unreasonable ; but, provided the particular charge in question is reasonable, there is nothing at common law to hinder a carrier from carrying for favoured 138 EQUALITY AND [ChAP. V. individuals at an unreasonably low rate, or even gratis (a) . ciame'm '^^^ Legislature, however, at an early date in the special Acts, history of canals and railways, inserted clauses in the special Acts of the companies, providing for equality of charge — first, as regards the tolls paid by persons using the canal or railway, and later (in the case of railway companies) as regards rates or charges for con- veyance. In 1845, when the clauses usually inserted in the special Acts of railway companies were em- c-totrgo.' bodied in the Eailways Clauses Consolidation Act, the a!',''™4.''^ Equality Clause in the form, which had for some years previously been adopted by Parliamentary Committees, was inserted in that Act (section 90) (6) . For this reason the decisions of the Courts upon section 90 of the general Act of 1845, and those upon the equality clauses in various special Acts, have been consistently uniform (66). Section The scction consists of three clauses. The first is a consists of . . , 1 • i n "ii • AT three permission to companies to vary their tolls within the 1. Peimis- limits set by their special Acts ; the second is a proviso Tpm^^^' *^^* ^^^ tolls, for goods of the same description, passing for equality, only over the same portion of the line, under the same ti'on'agains't circumstanccs, shall in all cases be equal ; the third is a favonritism. ..-,.,, « t , • n • i* j* prohibition oi any reduction or advance in favour oi or against any particular company or person. The first of these clauses has not led to any questions. The third has been variously construed, some judges hold- ing that it is to be read as part of the preceding proviso, and others as an independent enactment. The former view was taken by the Court of Appeal in the Denaby Main Case''', who considered that any other (a) Per Blackburn, J., in Sutton's Case^'''', L.R. 4 H. L., at p. 237. (i) It has already teen pointed out that the clause in the first instance ■was in substitution for one which imposed a system of equal mileage tolls both on canals and railways, so that in fact it was an enabling, rather than a limiting, clause (ante, p. 18). A similar clause was inserted in the two Canal Acts of 1845 (8 & 9 Vict., c. 28, s. 2, and 8 & 9 Vict., o. 42, s. 4, ante, p. 20), applying in the one Act to tolls for the use of the canal and charges for the supply of haulage or trackage, and in the other to charges for conveyance. Each of these Acts, however, contained a provision that the Act should not apply to any company until so determined at a meeting of shareholders, or by the proprietors. (bb) Crouch v. ff. iV. Si/. Co.^ Sec. I.] -UNDUE pbefebence. 139 construction would involve a system of equal mileage — a system which we have just seen the section was specially designed to destroy (c). Lord Selborne, how- ever, has expressed the opinion that the clause ought to receive an independent operation [d). The import- ance of the question lies in the omission in the final clause of the words " same description " and " passing only over the same portion of the line of railway under the same circumstances," which qualify the preceding proviso. However, it seems clear that the mere fact of inequality in the rate of charge, when unequal dis- tances are traversed, cannot constitute a preference inconsistent with the concluding words of the section, which are a prohibition against favouritism, and that, assuming the view that these words merely emphasise what has gone before to be erroneous, it is necessary, in order to bring a case within their operation, to prove as a fact that the case is one of favour or partiality (e). The important part of the section, and the one that s^norain has given rise to most question, is the second clause, ^u^iity is which makes equahty of " tolls " obligatory whenever ^lunca. the following circumstances combine : — (1) The goods conveyed are of " the same description " ; (2) the mode of conveyance is similar ; (3) the same portion only of the line of railway is passed over ; and (4) the circumstances are " the same " (/). It has been held that throughout this section (unlike ^^^^l^ °' most of the sections in the Act of 1845) the word " tolls " has the wide meaning given to it by the interpretation (c) Lindley, L.J.j in delivering the jixdgment of the Court in that oaso said: — "The prohibition at the end of section 90 appears to us to do little more than throw light upon -what is meant by 'same circumstances,' and emphasise the earlier portion of the pro^aso." (14 Q. B. D., at p. 224). See also the judgment of Lord Blackburn in Sutton's Case'-'''', L. E. 4 H. L., at p. 243. (d) Denaby Main Cas^, 11 App. Ca., at p. 114. See also per Lord St. Leonards in Finnie's Case.'"' {e) Per Lord Selborne, 11 Ap. Ca., at p. 114. (/) In some of the Special Acts the word " like " is used in the place of the word " same," but in jS««o«'i Cose"' it was decided that the two words must be taken to bear the same meaning for the piuT^ose of the construc- tion of the clause (per Lord Chelmsford, L. E. i H. L., at p. 260). 140 EQUALITY AND [ChAP. V. clause of the Act (section 3, see ante, p. 53), and that the words " using the railway " at the end of the section are to be construed in a general sense, including the sending of goods in the ordinary way (g). The section, however, does not extend to sea transit, nor to contracts for carriage entered into abroad (7i); neither does it apply to special charges made for goods carried over the line of a company in pursuance of a traffic agreement with another company, under section 87 of the Eailways Clauses Act, 1845 (i). Action lies It is now clearly settled that an action will lie j'Equautr against a company to recover overcharges made in breach of the Equality Clause (;). In such an action the method of ascertaining the amount of over- charge is by finding what quantities of goods, carried under the same circumstances and over the same portion of the line, were charged at the higher rate to the plaintiff at the time the lower rate was charged to the person favoured (k). But such an action will only lie when the overcharges have been paid either in ignorance of the facts or under compulsion — e.g., if the company refuse to carry unless the higher rate is paid [l). Whether an action will lie also to recover consequential damage, in cases where such damage can be proved, seems doubtful (w). ig) Per. C. A. in BenahyMain Cas^o, U Q. B. D., at p. 223; Emrshed's Cas^, 2 itid., at p. 267. (h) Branley v. S. E. Ry. Co.'^'- As to undue preference in the case of sea traffic, see tlie Act of 1888, s. 28. (Appendix A., p. 36.) (i) Hull, Sarnsley, ^c, £y. Co. v. Yorkshire, ^c, Coal Co.'™' {j) Sutton's Case™ and Eveished's Case'^, overruling Garton v. S. andH. JRy. Co.'""- {k) Denahy Main Case " in the House of Lords. (/) EvershedU Casefi^ This is in accordance with the general rule of law that payments made voluntarily, with fuU knowledge of the facts, cannot be recovered. See cases cited in Eoscoe's Nisi prius, "Action for money had and received." (m) See per Lord Selhome in Denaly Main Case ^,11 App. Ca. , at p. 117, and per Lord Blackhum, ibid., at p. 124, and compare Gidlow's Case'"', in which damages for loss of customers were held to be recoverable in an action for refusing to carry. As to damages for undue preference, see post, p. 150. Sec. II.] UNDUE pbepbeencb. 141 Section II. — Cases to which the Clause applies. (i.) Carriers' Cases. It has already been pointed out (ante, p. 19) that the carriers' operation of the Equahty Clause was mainly confined to the struggle, which, for nearly thirty years, was kept up between the railway companies and the carriers over the parcels traffic, the object of the carriers being to retain as much of this traffic as possible in their own hands, and the object of the companies to obtain it for themselves, and the struggle, so far as litigation was concerned, being brought to an end by the decision of the House of Lords in Sutton's Case"'' in 1869. The two main points of contention between the carriers and the companies were — (1) The claim of the carriers to a rebate for cartage ; and (2) The claim of the companies to apply a different system of charging to goods con- signed by carriers to that adopted in the case of private senders. (1) With regard to the first of these, it was held i^btte'''^" in Pickford v. Grand Junction By. Co.^' that to make the same charge for traffic carted by the sender as for traffic collected and delivered by the company was "unreasonable," and in subsequent cases such a mode of charging has been held to constitute a breach of the Equality Clause as well as of the provisions of the Traffic Act, 1854. A company, therefore, is obliged to allow to carriers, who cart their own traffic to and from the railway, a " rebate " from their ordinary rate, if that rate includes the services of collection and delivery (n). But this rule only applies to what is strictly collection and delivery, and does not extend to cases where a railway company act as carriers beyond the limit of their own line. Thus, in Baxendale v. L. and S. W. By. Go.^^\ where a company, whose line ended at Southampton, were in the habit of carrying goods to the Isle of Wight, it was M Farker r. G. W. Ey. Co.'^*^ ; Baxendale v. O. W. By. Co.^, post, p. 155. In Edivardes v. G. W. Sy. Cc"', a cai-rier failed to recover a rebate iu respect of assistance rendered by him to the company in loading and un- loading. As to rebate, see post. Chapter VI., Section IV. 142 EQUALITY AND [ChAP. V. held that, in the absencq, of mala fides, a carrier, who sent his goods by the company's line from London to Southampton, had no right to insist on their charging him a sum equivalent to their through rate from Lon- don to the Isle of Wight, less a fair sum for the sea transit, on the ground that there was no analogy between conveyance by sea beyond a terminus and cartage to or from a station, and that no case of in- equality was established. 2. Carriers' (2) With regard to the second point of contention, the dispute was compKcated by a clause in the special Acts, known as the Small Parcels Clause, which authorised the companies to charge for parcels under a certain weight (ordinarily 5001bs0 any sum which they thought fit. The clause contained a proviso that " articles sent in large aggregate quantities, although made up of several parcels, (such as bags of sugar, coffee, meal, and the like,) should not be deemed small parcels, but such term should apply only to single parcels in separate pack- ages "(o). By virtue of this clause railway companies estabhshed two sets of rates, viz., " Tonnage rates " for goods above, and " Parcels rates " higher in amount, for goods below, the limit of weight specified in the clause. (a) earners' (a) In the first place, the companies claimed the goods must \ ' ^, , 1 J. 1 1 be charged right to charge carriers separately tor each package, aggregate, qj. separately for the packages of each ultimate con- signee. It was held in PicJcford v. Grand Junction Hy. Go}'''' that, when the various packages were enclosed in a common envelope, it was not competent to a com- pany to charge in this way ; and even when they were not so enclosed, it was decided that the mere fact of parcels being intended ultimately for different con- (o) See Oxford Eailway Act, 1843, s. 283, Appeiidix_ B., p. 67. In the earliest form of the clause, in place of the words ' ' single parcels in separate packages," the clause ran "single parcels unconnected with parcels of a like nature which may he sent upon the railway at the same time." (See G.W.E Act, 1835, s. 171, Appendix B., p. 65.) It was held that the word " nature " in this connection had reference not to con- venience or rate of carriage, nor to the classes of a tarifi or classification, hut to actual quality or kind. (^Parker v. G- W. Ey. Co., (No. 2)"3 ; ditto, (No. S).!'" Sec. II.] UNDUE peepbbenoe. 143 signees did not justify a distinction in the mode of charging, and that to charge carriers separately for each of their parcels, when other senders were charged on the aggregate weight of the whole, constituted a breach of the. Equality Clause (p).. In Garton v. B. and E. By. Co.'"''', it was held that this rule applied where a number of parcels were consigned at the same time by a carrier to his agent for delivery to various persons, although the names and addresses of such persons ap- peared upon the parcels in addition to the name and address of the agent. But in Baxendale v. Eastern except Counties By. Co.^\ where parcels were addressed to Separate''* various consignees, and there was nothing to show that taToivT * delivery was to be made by the company to the carrier's trouble to agent, it was held that it was not unreasonable to charge ''°°™'^''°^ such parcels at a higher rate, regard being had to the additional trouble incurred by the railway company. (b) In the second place the companies sought to (*) carriers' charge carriers' goods at a higher tariff than that charged ^°l^l^ ^^ to the general public. The legality of such a practice J'^|q^''o^j^" mainly depended upon whether the consignments of "'j,"^^'"^ carriers were to be considered as b^ing " of the same description " and conveyed " under the same circumstances," as consignments sent by the general public. Sutton's Case^'''' finally set that question at rest by deciding that the words " same description" must be taken to refer to those qualities in the goods which affect the risk and expense of carriage, and that goods are conveyed " under the same circumstances " ^^'j^"'' where the route, risk, and expense of carriage are the same. Upon these grounds the House of Lords held that a railway company is not justified in drawing a distinction, in its rate of charge, between the goods of carriers and goods of the same kind sent over the same portion of railway by the general public. If such a distinction is made, it seems to be a question of fact for a jury whether the circumstances under which (p) Parker v. G. W. Ey. Co. (No. 1) "« ; ditto (No. 2)"^ ; Edj:ardes v. G. W. Ry. Co.^ ; Crouch v. G. N. Ry. Co.*^'- ; Suiion'i Ca>«."' 144 EQUALITY AND [ChAP. V. carriers' goods are sent entail any extra risk or trouble on the company commensurate with the extra charge (q) . J'aS From an early date it appears to have been a common practice (especially amongst carriers) to enclose a number of packages in a common en- velope, with the object of escaping a separate charge for each package, and the term "packed parcels" came to be used to designate parcels or cases con- taining a number of small packages, which either belonged to different senders, or were intended for Ante, p. 142. different consignees. We have already seen that when this course was adopted the Courts held that it was not competent to the companies to charge separately for each package contained in the common envelope, and the companies, therefore, endeavoured, under their Small Parcels Clause, to enforce an exceptionally high rate for "packed parcels" below a certain weight. It seems to be now established that the Small Parcels Clause empowers a railway company to create a tariff without reference to the description or quantity of the articles sent, and that, therefore, there is nothing illegal in the practice of charging a special rate for " packed parcels " (r). But a tariff framed under the Small Parcels Clause must be reasonable, and must be enforced in accordance with the provisions of the Equality Clause (s), and therefore, if it is shown that, while enforcing a charge against carriers, a railway company is not in the habit of doing so against other traders, it is guilty of a breach of the Equality Clause {t). In an action founded upon such a breach, general evi- dence that the practice of packing parcels by certain classes of traders {e.g. wholesale firms) exists and is (?) See Crouch v. G. N. My. Co.'^'' ; and FkUlington v. S. E. By. Co.^^ In these cases the only extra risk suggested was a possible multiplicity of actions agaiast the company in case of loss or damage, hut this was held not to justify the distinction. See, however, post, pp. 163-164. (r) Per Lord Chelmsford in. Sutton's Case"''. («) Per Lord Chelmsford, ihid. ; see also per Alderson, B., in Crouch y. O. N. B.y. Co.^'- (<) Sutton's CaseV; see also Farkerr. 6. W. By. Co.^*^, and Crouch v. X. and N. W. By. Co." Sec. II.] TJNDTJB PEEFBBENCE. 145 notorious, and that such persons are charged at a lower rate than carriers, is admissible, without proof of specific instances, and it is no answer that the company did not know, and had no means of knowing, that particular parcels were "packed " (u). It follows from what has already been said, that if the when weight of any single " packed parcel " sent by a carrier entitled to _,,..,.,, •' demand exceeds the limit to which the parcels rate is applicable, tonnas« he is entitled, like any other sender, to be charged the tonnage rate (v). But if the weight of each " packed parcel " is within that limit, the company are entitled to charge the " parcels rate," (although a number of such parcels are sent at the same time, the aggregate weight of which may exceed the limit,) except in the case of "articles sent in large aggregate quantities." This exception refers to cases when a single ^.rticle or commodity is sent in a large aggregate quantity, but is packed in separate bags, boxes, or bales; in such cases the mode of packing does not take the article out of the tonnage rates, or enable the company to charge for each bag, box, or bale separately at the parcels rate (w). (ii.) Inequality as between traders. The application of the clause, in cases where the Evenhed's interests of rival traders are concerned, was considered in two recent cases before the House of Lords (x). In the first of these — Evershed's Gase^^ — the facts were as follows : the plaintiff was a brewer, carrying on business («) Sutton's Case.™ {v) FarUrr. G. W. Sy. Co.^*^; Garton v. B. and E. By. Co.'""- [w) Parktr v. G. W. Ry. Co.^^; see also Sttlton y. L. f S. W. By. Co.'™ {x) One of the earliest cases decided upon an Equality Clause was A. G. V. Sirmingham, ^c. By. Co.^, (1840) in which an unsuccessful attempt was made to control passenger fares by its means. In that case, in order to meet the competition of another railway, the defendants had reduced the fares from Cerhy to London, so that the proportion for the journey between Derby and Hampton was much helow the fares charged to local passengers between those stations. Lord Cottenham, without entering minutely into the operation of the section, dismissed an application for an injimction, with the remark that the Equality Clause "had not the slightest reference to the case." See the observations of Lord St. Leonards on this decision in Finnie's Case^ (2 Macq., at p. 203). 146 EQUALITY AND [ChAP. V. at Burton, where the defendants (the L. & N. W. Ey. Co.) and the Midland Eailway Company had stations. Three firms of brewers also carried on business at Burton, whose premises were connected by sidings with the Midland Eailway. This connection enabled these firms to save the expense of carting, and the Midland Company also allowed them a rebate for the saving to tliemselves in loading and station accom- modation. The defendants' line was unconnected with the premises of any of these firms, but, in order to obtain some part of their traffic, they agreed to give them the same terms as the Midland Company, and accordingly carted their goods without charge, and allowed them the same rebate as the Midland Company. The plaintiff, whose premises were not connected with either railway, was charged by the defendants for cartage, and was allowed no rebate, the result being that, although the services rendered to him by the defendants were precisely the same as those rendered to the three firms, he was charged Is. 9d. per ton more than they. It was held by the House of Lords (af&rming the decisions of the Courts below) that these facts constituted a contravention of the Equality Clause, there being nothing to render the cost of the trafSc of these firms to the defendants doSMT"" l^ss *^^^ *^^* 0^ *^® plaintiff's traf&c. The decision reduction in establishes the principle, which will be more fully flnfcaiL"' considered in connection with undue preference, (post, ■customer. ^ 168,) that a company must not reduce its charges in favour of an individual customer merely in order to "equalise its capacity for competing with other lines," the words "same circumstances" having re- ference to the goods conveyed, and not to the person sending them (y). (y) Per Lord Cairns, 3 App. Ca., at p. 1035, and Lord Blackburn, ibid., at p. 1038. In the Queen's Bencb Division and Com-t of Appeal the case was decided both upon the Equality Clause and Section 2 of the Act of 1864. In the House of Lords the arguments and judgments were con- fined to the former enactments, and it would appear that the Act of 1851 was really inapplicable (see post, p. 150). The principle involved, however, enters equally into each of the enactments. 'Sec. II.] TJNDUE PREPEEENCE. 147 The other case referred to is the Denaby Main Case.'' -D««.5y In that case the railway company allowed B, a coal T^^Z'lo merchant, 8d. per ton in respect of all coal carried to tSfLta Grimsby, and there shipped by a particular Hne ofd"™"'" -steamers, with the object of introducing the coal of '""'°''- the district to the West Indian market : they also Tnade him an allowance of 6d. per ton on all coal shipped by him from Grimsby to certain English ports, in consideration of a bond fide undertaking by him to ■develop the trade to those ports, to provide the vessels, «,nd to run the risks incidental to the working of the traffic. The appellants' coal was carried over the same portion only of the railway as B's, and no opportunity was given to them, or to the public in general, of earn- ing the same allowances as B. It was held that B's ■coal and that of the appellants were carried "under the same circumstances," and that the allowances made to B were breaches of the Equality Clause. With regard to this part of the traffic, the services 2, skus & Tendered by the company for B were identical with cost to the those rendered by them for the appellants ; but with Tegard to another part of the traffic, upon which the ■company allowed B a rebate which they refused to the ■appellants, it was proved that the company carried for B at a less cost to themselves, although it was not «hown that the reduction in charge was adequately represented by the saving to the company. It was ield that, in the absence of any proof of want of good faith, there was no infringement of the clause ; that the ■difference in cost constituted a real difference in the •circumstances, and that the company were not bound to prove that the saving to themselves adequately .represented the reduction in charge {z). The Denaby Main Case^' also settled a question which s. Transits •does not seem to have been discussed in earlier cases, identical. viz., whether, in order to bring a case within the («) In. Strick v. Swansea Canal Co.^'^, decided upon an Equality Clause "relating to canal companies, (8 & 9 Vict., c. 28, s. 2,) a company -were ield justified in charging a rate below their ordinary one to a firm -who guaranteed a fixed minimum of traffic. (See post, p. 1C4.) L 2 148 BQTJAIITY AND [ChAP. V. Equality Clause, it is necessary that the termini of the two transits, in respect of which the charges are com- plained of as unequal, should be the same. The facts upon that part of the case were as follows. The railway company charged a uniform rate for the con- veyance of coal from a group of collieries in a Yorkshire coalfield (inclading the colliery of the appellants) to certain ports on the east coast ; the appellants' was the nearest colliery to these ports, so that all the traffic from the other collieries had to pass theirs in its transit eastward, and the appellants complained of the "group rate" as an infringement of the clause. The House of Lords, however, affirming the decision of the Court of Appeal, and reversing that of the Queen's Bench Division, held that such a construction would strike the word "only" out of the section, and that the words "passing only over the same portion of the line " meant passing between the same points of departure and arrival, and passing over no other part of the line (a). (iii.) Summary. sjmmary. rpjjg cases upon the Equality Clause seem to have established the following points : — i^9,'"i'«^' 1- That (except, possibly, in cases where favouritism is proved as a fact,) the clause only applies when the termini of the two transits in question are identical. Ante, p. 13 2. That the clause applies to charges for conveyance as well as to tolls in the strict sense of the word. H3*i4?'' ^' '^^^* *^® expression " under the same circum- stances" has reference to the goods conveyed, and not to the senders, from which it follows that — Ante, p. 146. [a.) neither the fact that a particular customer has advantages of position, {e.g., access to a competitive mode of transit,) which enable him to command favourable terms ; (a) The same interpretation was given by the Scotch Court of Session in Murray^ v. Glasgow ^ S. W. By. Co.^''^ See, howeTer, per Lord St. Leonards in Finnie'i Case^, decided upon a clause in a Special Act. As to group rates creating an iindue preference, see post, p. 170. Secs. II.-III.] undue peeference. 149 (6.) nor a desire to develop the trade of a particular Ante, p. ur. district so as to increase the traffic over the railway ; (c.) nor the fact that the sender is a carrier, con- •^*<'' p- i"- signing the goods of other persons — is a circumstance which will justify an inequality of charge. 4. That the expressions "same circumstances" and Ante, pp. 144 147 " same description " have reference to the risk and expense of conveyance to the company, and conse- quently a difference in either of these justifies a differ- ence in charge (6). Section III. — Difference between the Equality Clause and the Traffic Act, 1854, section 2. The limited application of the Equality Clause in Effect of the Act of 1845 made it of little practical effect, except ciame?'^ as regards the carriers' cases, but the doctrine of equality of treatment was materially extended by section 2 of the Eailway and Canal Traffic Act, 1854. l^j^^^l' That section, in so far as it refers to the matter under ^-•^- ^■ consideration, provides as follows : — No sueh company [i.e., railway company, canal company, or railway and canal company] shall make or give any undue or unreasonable preference or advantage to or in favour of any particular person or company, or any particular description ■of traffic, in any respect whatsoever ; nor shall any such com- pany subject any particular person or company, or any par- ticular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever (c). The same class of considerations arise under this Differences section as under the Equality Clause, and it would Equality . - , , T . 1 , • , J Clause and appear that any circumstances, which constitute a Tramo Act, breach of the latter, create also undue preference or (J) This summary should be compared with, the summary of the deoisione upon undue preference, post, p. 171. (c) As to the other parts of the section, see Chapter III. For the mean- ing of the term "railway company," see s. 1 (Appendix A., p. 8). For the application of the section to a dock company owning docks con- nected by a line of railway, see H. ^ W. India Dock v. Shaiv.^'- See also Bennett v. Manehetter, ^c, Ey. Co.^ 150 EQUALITY AND [ChAP. V^ prejudice within the meaning of the former. Con- vtersely, however, it is otherwise {d), and in particular there seem to be the following differences between the two enactments : — (1.) The appropriate remedy for breach of the Act of 1845 is an action at common law for the recovery of overcharges (e) ; for breach of the- Act of 1854, an application to the Eailway .Commis- sioners for an injunction, and, under the Act of 1888,, for damages. (2.) The Act of 1845 has reference only to charges ; the Act of 1854 applies to preference and prejudice "in any respect whatsoever." (3.) The Act of 1845 prohibits preferences of " particular persons or companies"; the Act of 1854 extends the prohibition to "particular descriptions of traffic." (4.) The Act of 1845 enjoins equality where the circumstances (includ- ing the termini of the transits) are the same ; the Act of 1854 requires that, where the circumstances differ, the differences of charge or treatment shall not be such as to create undue or unreasonable preference or prejudice, scmbiono (1.) "With regard to charges made in breach of section action lies ID ^ o o undue' °' ^ °^ *^® ^'^^ °^ 1854, the better opinion seems to be that. preference, j^o action will lie for their recovery. It was so decided, by the Court of Session in Murray v. Glasgow, dc, By. Co.™, and by the Court of Appeal in the Denahy Main Gase.^' The same view was taken by Lord Blackburn, and apparently by Lord Selborne, in the House of Lords ; but Lord Halsbury, in discussing the point, said,. "It may be that no action will lie expressly for a breach ofthat section, but it is matter for consideration whether a railway company, having committed a breach of that, section, and having, in committing that breach, extortedi money for carriage to which by law they were not. entitled, the ordinary remedies at law for extortion may not be apphcable " (ee). It would appear, however, that even if the view suggested by Lord Halsbury be correct,. (d) Per Lord Seltome in. the Denaby Main Case'^^, 11 App. Ca,, at p. 114.. (e) In Sutton v. S. E. Ry. Co^i^ the Court of Exchequer refused to grant an injunction restraining a company from charging in breach of tha Equality Clause. By s. 10 of the Act of 1888 the Commissioners are empowered to decide any question involving the legality of any charge. {ee) 11 App. Ca., at p. 112. Sec. III.] UNDUE peefebence. 151 such an action would lie only after the Eailway Com- missioners had decided that a breach of the section had been made out (/) . (2.) That the Act extends to preferences in other undue respects than reduced charges is illustrated by the not conaned case of Cooper v. L. d S.. W. By. Co.^\ in which a °° "^° ' carrier asked for an injunction enjoining the company to unload his goods, on the ground that they unloaded the goods of P, a rival carrier, without charge. The Court, while refusing the application on the ground that it was wrongly framed, intimated that if the com- pany continued to unload for P, after being requested by the complainant to desist, an application to restrain them from doing so might be successful (g). It seems that the scope of the clause relating to ^"* ™"^' undue preference is limited by the earlier part of "^"le^^eoeiv- the section to preferences in respect of " the re- ™i[^^°g T. ceiving, forwarding, or delivering of traffic" Qi). In"' *"»<=. West V. L. ) Ibid., at p. 120. See also Garton v. B. i- E. Ry. Co.'">, ante, p. 160. 170 EQUALITY AND [ChAP. Y'- same services (lo). (For the provisions of the Act of 1888 upon this point, see post, p. 174). (c) Group Bates. aroup rates. The question of "group rates," or uniform rates- from different places within a certain speciiied area to- any given point or district, seems only to have come^ before the superior courts in the Denahy Main Cases. Ante, p. 148. In the Denahy Main Case (No. 4)°^ as we have seen^ it was decided that such rates (being coal rates from a group of collieries to ports on the coast) were not an infringement of the Act of 1845. In the Denahy Main Case (No. 1)'°, the same set of group rates had come before the Commissioners upon an application by the Denahy Main Colliery under the Act of 1854, and they held that, although for long distances there might be no objection to group rates, still, having regard to the short distance from the collieries in ques- tion to the ports, as compared with the wide area of the district, the particular rates in that case subjected the applicants to undue prejudice, and an application by the company for a mandamus, to compel the Commissioners to state a case for the opinion of a superior court, was refused on the ground that the question involved was one of fact only {x). The question of group rates is now regulated by the Act of 1888 (see post, p. 176). {to) The decisions of tlie late Commissioners seem to point to an attempt to- regulate rates according- to cost of service, although in one of the earlier cases before them they decided that the Traffic Act does ' ' not prevent a railway- company from ha-?ing special rates of charge to a terminus to -which traffic- can he carried by other routes or other modes of carriage -with -which theirs is in competition," {Foreman v. 6. B. Sy. Co.^, 2 E. & C. T. Ca., at p.. 206,) and in another, that "an advantage given by a railway company to- obtain traffic for which it competes -with another railway company is not undue." {Thompson v. L. ^ N. TF. Ry. d.'^^, ibid, at p. 1 20 ; see also- Greenop v. ^ (*/) As to the right to rehate in such cases, see post, pp. 190-193. Secs. II.-III.] disintegration op rates. 187 evidence as to what services were included in the rate, they made an order against the companies, on the ground that it did not necessarily follow from the mere fact that a rate was within the mileage maximum, that the whole of it was charged for conveyance (z). "Where, on the other hand, it was proved that the rate included nothing beyond conveyance, they refused to make an order (a) . The exercise by the Commissioners •of their jurisdiction in this respect seems to be dis- cretionary, and an order for disintegration of a rate, which was within a company's mileage maximum, would probably not be made, except where a refusal to allow a rebate to persons, who performed for themselves some of the services covered by the rate, might amount to undue preference of other persons. Thus, in Howard v. Midland By. Go}"^, where the questions of undue preference and disintegration of rates were both raised, the late Commissioners refused to make an order in favour of the applicants, who relied •on the fact that they did not avail themselves of certain i;erminal accommodation and services as entitling them to a rebate. The Commissioners held that the station services were so essential a part of the contract to •carry, that a rate, which did not discriminate between conveyance including, and conveyance not including, station services, was not unreasonable or unequal, and •that where a rate was within the authorised mileage maximum, there was nothing to prevent a company, as Ijetween themselves and the public, attributing the whole charge to conveyance (b). Section III. — Summary. It may be convenient to summarise the provisions summary. ■with regard to publication and disintegration. Except where otherwise stated, these are equally applicable to railways and canals. (Ante, p. 180, note (/) ). (2) Bailey w. L. Chatham, #«., Rij. Co?; Jones v. N. E.My. Co.^^^ {a) Robertson v. M. G. W. Ry. Co.ios (4) Howard Y. Mid. Ry. Cj.i", 3 R. & C. T. Ca., at p. 253. 188 PUBLICATION AND | ChAP. VI- I. — Publication. 1. At Stations and Wharves — s. 93 [1845]. (i_) Tolls (railways only). '• 1IKII& (ii.) Bates from each station, wharf, or other place at which traffic is received or delivered. ': It [Isss]." (i"-) Tolls and dues from each wharf (canals only) . ».28[i888]. (iv.) Bates for sea traffic. [1888]^' (v-) Greneral classification of merchandise (for in- spection). Ll888L^ (y^-) Notice that documents are open to inspection.- 2. At Chief Office of the Company — [iml^ General classification of merchandise (for sale). 8. As prescribed by the Board of Trade — rilssi^' (i ) Revised classification of merchandise traffic,. and schedule of maximum tolls, rates,. and charges. [1888]!'^ (ii-) Notice of increase in existing rates (railway) ,- or rates, tolls, dues (canals). II . — D isintegra tion. 1. Without application — {\m{} I^ rate-books at ports — sea-rate from land-rate. 2. Upon application — ..17 [1868]. (i.) After payment of charges — mileage rates from- terminal and other expenses (railways only). =-||g''' ;^ii.) When traffic has been, or is about to be sent — mileage rates from terminal or dock charges, with the nature and detail of the latter. s. 14 [1873]. (iii.) Rate from any station or wharf for any par- ticular description of traffic — mileage rate fronj charges for other expenses, with the nature and detail of the latter. Section IV. — Penalties. 8. 85 [1846]. (i_) The obligation of publishing tolls imposed by the Act of 1845 was enforced by the extreme penalty of disentitling the company from recovering any tolls so long as the obligation remained unfulfilled. We Secs. III.-IV.] disintbgbation of rates. 189 have seen that a similar penalty is imposed by the Act «• 's (6) of 1888 with respect to the obligation of publishing any increase in rates (ante, p. 183). (2.) The Act of 1868 provides no special mode of *■■ i? [isos]. enforcing its observance ; the remedy for any breach of section 17 is, therefore, by mandamus or injunction. (3.) By section 14 of the Act of 1873, and section 33 ^-J'^ ['//'!■ (7) of the Act of 1888, a company failing to comply with [isss]. the provisions of either of those sections, for each offence, and in the case of a continuing offence for every day during which the offence continues, is liable on summary conviction to a penalty not exceeding five pounds (c). It is to be observed, however, that the penalty pro- vided by these sections does not extend either to the duty of publishing the rates in force from places other than stations imposed by section 34 of the Act of 1888, (ante, p. 181,) or, except as regards the separation of sea-rates from railway-rates in books or tables kept at ports, to the duty of disintegrating rates in the station rate-books ; these duties, therefore, can only be enforced by the Commissioners. (4.) The Commissioners are given jurisdiction to». 6[i873]. enforce by injunction all the provisions of the Act of 1873, and the late Commissioners held that the fact of the justices having power to impose a penalty for non- compliance with section 14 did not oust their general jurisdiction (d), (6.) A practical penalty attaches to the non-publica- Damagee, tion of rates in the liability to damages in cases where the unpublished rates create an undue preference. This liability arises from section 13 of the Act of 1888, which provides that — In cases of complaint of undue preference no damages shall he awarded if the Commissioners shall find that the rates com- plained of have, for the period during which such rates have (c) The proceedings are taken under the Summary Jurisdiction Acts, .(aa. 49 & 55 of the Act of 1888). {d) Perkins v. i. * iV. IF. By. Co.i^s _ig to tj^g enforcement of the Act of lS88, see poet, p. 209. 190 PUBLICATION AND [ChAP. VI been in operation, been duly published in the rate books of the railway company kept at their stations in accordance with sec- tion fourteen of the Eegulation of Eailways Act, IS'/S, as amended by this Act, unless and until the party complaining shall have given written notice to the railway company requir- ing them to abstain from or remedy the matter of complaint, and the railway company shall have failed, within a reasonable time, to comply with such requirements in such a manner as the Gmomissioners shall think reasonable, (post, p. 219). The words " as amended by this Act," refer to sections 28 (sea traffic), and B4 (rates from places other than stations). Section V. — Eebate. retate"^"' Eailway rates being fixed in accordance with the general requirements of senders and receivers of the various classes of traf&c, and including charges in all classes for some, and in the higher classes for numer- ous " services " (including in that term the provision Ante, pp. of accommodation) outside mere "conveyance," it sometimes happens that a company's rates become in their entirety inapplicable to cases, where the company do not render all the services which are charged for in the total rate. The practice of making, in such cases, a deduction from the ordinary charge obviates the multi- plication of rates, and the allowance of rebate thus affords a ready and flexible mode of adapting existing rates to special circumstances. lis connec- The ouestion of rebate is connected with the disin- tion with ' p 11 • • iiisintegra- tcgration 01 rates, not that the provisions requiring tion of rates ° . . -^ .^ " companies to disintegrate their rates confer m them- selves any right to rebates, but because, by obliging^ a company to specify the services included in a rate they enable a trader, in certain cases, to ascertain whether he is entitled to a rebate — that is to say, whether he is entitled to recover from a company any part of charges which he has paid them in the past, or to call upon them to desist from making, similar charges for the future. Such a right on the part of a trader, in cases where it exists, is the Sec. v.] disintegration of rates. 191 outcome of the special restrictions and obligations im- * posed upon railway companies when acting as carriers. We have seen, for example, that they are bound to Ante.pp afford all reasonable facilities for receiving, forward- ing, and delivering traffic ; that their charges must not exceed the amounts authorised by Parliament, and must be imposed reasonably, and, where the circum- stances are the same, equally; also that they must not, by their charges or treatment, unduly prefer or preju- dice particular persons or descriptions of traffic. These obligations may be enforced in some cases by an action Ante, p. m, for the recovery of overcharges, in others by complaint to the Commissioners, but where the substance of a complaint is that the rates charged to a particular trader are too high, having regard to the services ren- dered, the ground of complaint may often be removed by the company making the complainant a deduction from their ordinary rate ; in this sense the allowance of rebate may be regarded as a legal mode of relief, and has been so recognised by the late Commissioners. The particular question that calls for decision where Question a trader claims to be entitled to a deduction from a the right to company's ordinary rate, on the ground that they do depends, not perform for him all the services which are charged for in the rate, appears to be how far it is open to a company to insist on making a gross charge for the total services they are prepared to render in respect of any particular class of traffic, and to refuse to carry such traffic except upon the terms of being paid the total charge, without regard to the services required by any particular sender. Upon this question the deci- sions are very few, and it is not possible to do more than point out one or two general rules. (1.) It seems clear that inequality or undue preference i. inequality , IT IP 1 and undue may arise where equal charges are made for unequal preference. services, or where differences of charge are dispropor- tionate to the differences in service, no less than where unequal charges are made for equal services (/). But the (/) See Cooper v. L. ^- iS'. TK My. Co.*", and compare EvershaVs Oase.<^ maxunum rate. 192 PUBLICATION AND [ChAP. YI. question whether the circumstances are the same, so as to impose upon the company the obligation of charging equally, or whether a difference is such as to create an undue preference, must depend on the particular facts of each case ; where it is held that the statutory obligation has been infringed, the company must either alter the rate charged, or the services rendered, to the person alleged to be preferred, or must make a reduc- tion in the rate charged to the complainant. liTCre^°by (2-) Apart from the questions of inequality and undue preference, it appears that a company cannot be required to allow a rebate in respect of any service covered by the maximum rate for conveyance, for the legislature having authorised an aggregate charge in respect of specified services, if a trader, for his own convenience, chooses to perform some of these services himself, he does not thereby acquire a right to be charged less than the authorised amount {g). If this be so, it follows that a trader who provides trucks for traffic, which the company are ready to carry in their own trucks, is not on that account entitled to a rebate from the ordinary rate. 3.chaigofor (3) gi^ce a Company's charges for "conveyance" are limited by its statutory maxima, (see Chapter II,) charges beyond those amounts can only be charged for when the company are required to render " services " (including in that term the provision of accommodation) outside those which are included in, or are incidental to "conveyance" [h). If, therefore, a rate includes services or accommodation outside what is comprised in conveyance, and is in excess of the company's mileage maximum, a person performing such extra services, or providing such accommodation for himself, is entitled (g) This seems to have teen the ground upon ■which, in Edwardes v. G. W. Ry. GoJ^^, the Court held that a trader who, for his own convenience, assisted the company in loading and unloading — services which they held to he included in the rates authorised hy the company's Special Act — was not therehy entitled to a rehate. The same principle seems to have guided the Commissioners in Howard v. Midland Ey. Co.^'''- (A) See per Lord Selhorne in Gidloio's Case (No. 1) '^i. 42 L. J. (Ex.) at p. 134. reatricted to statu to rj' maxima. Sec. v.] disintegration of eates. 193 to a rebate. It would appear, however, that except in the case of traffic passing from one private siding to another and loaded or unloaded by the trader, "services" outside conveyance are necessarily rendered to all classes of traffic, and it does not appear to have been decided whether a company can be required to convey traffic between private sidings (i). (4.) It has been pointed out that a company are l-^^^^^^^^^^^ under no obligation to give a trader the use of their °°™^°j,, premises for the purpose of enabling him to deal with i'fe>»ises. his traffic, and that so long as they are willing to perform terminal services — e.g., loading and unloading — with reasonable despatch and at a reasonable charge, persons who are unable to perform such services for themselves without making use of the company's pre- mises, cannot claim to be exempt from the charge made by the company for their performance (j). The rates which most frequently give rise to claims Cartage. for rebate are carted rates, i.e., rates which include a charge for collection and delivery by cart, a service for which, when performed by a company, a charge outside the mileage maximum is, in all cases, allowed (ante, pp. 38, 84). It was early held — PicJcford v. Grand Junction Company^^ — that to charge the same sum to a consignee who was willing to receive goods at the company's station as to one who required them to be delivered at his house or place of business, was " unreasonable and unequal," and, in later cases, the refusal to grant a rebate out of a carted rate to con- signees, who were ready to do their own carting, was held to be a contravention of section 2 of the Traffic Act, 1854, even where no statutory limit had been imposed on the charges of the company for conveyance ( j) In Beeston Brewery Co. v. Midland Ry. Co.^^, Mr. Commissioner Price said: — "I am of opinion that a railway company affords all reasonable facility for the receiving, forwarding, and delivering of traffic, when it carries such traffic into its public station, and delivers it there to the con- signee on siding's from which it can be conveniently unloaded and carried •away by him." 5 E. & C. T. Ca., at p. 72, but see ibid., at pp. 70, 79. (j) Berry v. Z. C. 5- D. My. Co.^, 4 E. & C. T. Ca., at p. 316. O 194 PUBLICATION AND [ChAP. VI. (ante, pp. 145, 165). But in these cases it is to be noticed (1) that the Courts treated the collection and delivery of traffic by cart as a separate business, distinct from, although ancillary to, the purposes- for which railway companies are constituted, and (2) that the complaining parties were themselves carriers, whose business the Courts thought that the companies were endeavouring unfairly to divert to themselves [k). Although, therefore, these decisions establish the principle, as regards carriers, that a refusal by a company to allow a rebate out of a carted rate, whon the service of cartage is not performed by them, is an undue preference by the company of themselves in their capacity of competing carriers, there appears to be no decision of the superior Courts upon the question of a company's liability to allow a cartage rebate in cases where no considerations of undue preference or inequality arise (Z). In such cases it would appear that the question whether a company is bound to allow a rebate must generally depend upon whether, in declining to act as carriers, except upon the terms of being paid a rate to include the services of collection and delivery, a company is affording reasonable facilities for traffic (to). Terminal The principle of the cartage decisions does not appear to apply to cases where a rebate is claimed in respect of station services or accommodation. Thus in Howard's Case ^°^, where the gross rate charged was within the company's mileage maximum, the late (k) Soe per Cockturn, C. J., in. Baxendale v. 6. W. My. Co.i* (J) See, however, the judgments of the late Commissioners in llensiesv. Caledonian Ry. Co.^^ Mvershed'a Case^^ decides that a rate including a charge for cartage may fall within the Equality Clause of the Act of 1845 (see per Bramwell, L.J., 3 Q. B. D., at p. 142). (m) This question is distinct from the question which, arises in cases where a sender of goods consigns them to a particular address at a carted rate, and the company are required hy the consignee to deliver them at the station to him or to a carrier on his hehalf. In such cases there is ordinarily a contract hetween the owner of the goods and the company for their con- veyance hy rail and cart to a particular address, which it would appear can he sulsequently modified only with the assent of both parties. (See ante, pp. 159-160.) services. Sec. v.] disintbgeation op bates. 195 Commissioners held that a trader, who did not choose to avail himself of the ordinary station services and accommodation, was not on that account entitled to a rebate ; and in Girardot v. Midland By. Co.'" (n), they explained that their decision in Howard's Case^"^ was not affected by the view of terminal services taken by the Queen's Bench Division in IlalVs Case"" (a). At the same time it appears to be open to a company to allow a rebate voluntarily in respect of terminal services and accommodation, if they find it to their convenience that the trader should perform the services for himself, provided the same opportunity of doing the work for themselves is given to all persons (p). In Pichford v. Grand Junction Ey. Co.^\ the Court Measure of of Exchequer decided that the parties who did their own carting were entitled to deduct from the rate " a reasonable charge" for that service. The late Com- ()() Mr. Commissioner Miller there said:--" A company, though, at liberty to make an extra charge for certain station services not included in the maximum for conveyance, if they render those services, are not thereby precluded from rendering such services without extra charge if it suits them to do so, provided they give equal facilities in that respect to all comers ; and, subject to that proviso, the company cannot be compelled to allow a rebate to the trader who does not- happen to require the services, because it suits him better to do the work ; himself. It would, I think, be just as reasonable for a passenger, who- cai-ried his own Gladstone bag, to require a reduction in the price of his j ticket on the ground that the passenger, who had taken his ticket to the- same place immediately before him, had three trunks, and required the services of two porters and a barrow. This is in effect the decision in Ilowaid's Case ; and it seems to me to be the only one consistent with common justice ; and that if the law were otherwise, no company could .safely provide at any station adequate accommodation, nor maintain an adequate staff for working the traffic." 5 E. & C. T. Ca., at p. 84. (o) In the recent case of Greenwood v. Lanemhire, ^c, Rij. Co.^, the Commissioners reiterated this view, but drew a distinction between cases where the rates charged were below the mileage maxima for convej'ance, and those in which they were in excess of those maxima. In that case the applicant, who had a private siding and unloaded his own traffic, com- plained that the rates charged to him created an undue prejudice, ha'sdng regard to the rates charged by the company at other places to his rivals in trade, for whom the company supplied station accommodation and per- formed various terminal services. The rates charged to the complainant wore in excess of the company's mileage maxima, and the Commissioners hold that this distinguished the case from Soioard's Case^^^, and after an examination of the cost to the company of terminal services at such places, and the charges made in respect thereof, they decided that the complaint was well founded, and made an order in favour of the applicant. {p) Bell V. L. ^ iV. W.By. Co.^, and see Seeston Brewery Co. v. Midland llU. CV.18, 5 R. & C. T. Ca., at p. 85. o 2 ]96 PUBLICATION OF EATES. [ChAP. VI. missioners suggested a variety of modes for ascertain- ing the amount of rebate to be allowed in particular cases. In one case, in which a rebate to one trader was complained of by another as excessive, they said that a rebate in respect of a service performed by a trader ought not to be more than equivalent to the saving to the company {q). On another occasion they held that a company ought to allow what the service costs them to perform, together , with the profit (if any) made by them (r) ; and in a recent case they said that the proper test was the cbst to the person who performs the service for himself (s). It is obvious that the cost of cartage to the company, the saving to the company when the consignee himself carts, and the cost of cartage to him may, and ordinarily do, represent quite different amounts, and probably it is impossible to lay down any more definite rule than that the amount to be allowed is what is reasonable, having regard to all the circumstances. In some cases the saving to the company may be infinitesimal, and while that may be an unfair test as regards the trader, it may be equally unfair to the company to deduct from a carted rate the full amount that the cartage of the goods costs the trader, or the average cost to the company of similar consignments. Thus, in a case where a company quoted both a carted and an uncarted rate, and the sender, who had elected to send his goods at the former rate, complained that the rebate allowed by the company was less than the cost of the service, the Commissioners held that the company were fairly entitled to something for the ex'pense of providing the accommodation which the sender might have availed himself of if he had chosen {t) . (q) Bell V. L. i- N. W. Uy. f.b.22 {)•) Goddard v. L. ^ S. W. My. Co.'^t (s) Menizies v. Caledonian My. Co.i^ (t) Kempson v. G. W. My. Co.^i^ As to whether a cartage rebate oughi, to ho paid to the consignor of the goods, or to the carrier who hands the goods to the company, sec Moides v. Caledonian My. Co.^^ Chap. VII.J 197 CHAPTEK VII. THE RAILWAY AND CANAL COMMISSIOX. PAGE Section I. — Constitution ... 197 ,, II. — Jurisdiction — (i.) Subject-matter — (a) Under Acts 'prior to 1888 . 200 (b) Under the Traffic Act, 1888 209 (ii.) Modes of Bemedy 213 (iii.) Enforcement of Orders . . . 220 ,, III. — Locus Standi 221 ,, IV. — General Powers 223 Section I. — Constitution. On January 1st, 1889, the Eailway Commissioners IcS appointed under the Act of 1873 ceased to exercise ^jo™™''," jurisdiction, and in their place was estabHshed a l^'®^'- new Commission, officially designated the "Eailway and Canal Commission," consisting of two appointed and three ex officio Commissioners. Like their pre- decessors the Commissioners have an official seal, which is to be judicially noticed, but, unlike them, they are constituted a Court of record ; at the same time the power of punishing for contempt of Court by fine - w- or imprisonment, which is the distinguishing feature of a Court of record, is only to be exercised with the consent of an ex officio Commissioner. The ex officio members of the Commission are to ex officio be judges of one of the superior Courts in England, sioners. Scotland, and Ireland, assigned for the purpose re- s- 4(2). spectively by the Lord Chancellor in England and Ireland, and thp Lord President of the Court of Session in Scotland, for a period of not less than five years. 198 THE EAILWAY AND [Chap. VII. .4(3). ... 5 (6). Although all members of one Commission, they are not .4(1). to be required to attend out of their respective parts of the United Kingdom : but there seems nothing to prevent them doing so, so that it is possible that on occasions all five Commissioners will sit together. Ordinarily, hov/ever, at the hearing of cases the tribunal will no doubt consist of three members, viz. — the two appointed Commissioners and the judge assigned for the particular part of the United Kingdom in which the case is heard, the latter in all cases presiding. Judges are only to be assigned to serve on • 5 (3) (5). the Commission with their consent ; when so assigned, they are to hear cases whenever there are any ready for hearing, subject to regulations as to the arrange- ments for securing their attendance, to be made from time to time by the Lord Chancellors and Lord President respectively. During the time that their attendance is required on the Commission they are exempted from their other duties, and provision is made for the appointment of an additional judge of the High Court in England, upon an address from Parliament to the Crown, if required by the state of business in that Court. The Commissioners are empowered to act, notwith- standing any vacancy in their body, but inasmuch as three must always attend at the hearing of a case, provision is made for appointing deputies. In the event of an ex officio member being temporarily unable to attend, the Lord Chancellor (Lord President in Scotland) is authorised to nominate another judge in his place («) ; while if, owing to a vacancy in the office or otherwise, the attendance of the two appointed Com- missioners cannot be obtained, the President of the Board of Trade is empowered to appoint a temporary Commissioner for the hearing of any case requiring a speedy hearing. Appointed The Selection of the two appointed Commissioners, (ff) As to appointment of deputies for the vacations, see Eule 61, (post, Ai^pendix F). Appoint- ment of deputies, s. 2. s.6(3). ». 6 (6). .5(7) Secs. I.-II.] canal commission. 199 who are to hear cases for all parts of the United King- commis- dom alike, and are to hold office during good behaviour, =■ s. (being disqualified in the meantime from accepting any s. 5 [I873]. employment inconsistent with their devoting the whole of their time to their official duties,) is entrusted to the President of the Board of Trade. One of these, as under the Act of 1873, is to be "of experience in railway business," but no qualification is specified for the other, the legal element on the Commission being now supplied by the ex officio member. The appointed iwa. Commissioners must not be interested in railway or canal stock of any kind, and within three months they must dispose of any which they may own at the time of their appointment, or which may come to them after- wards. This provision, which is contained in section 5 of the Act of 1873, does not seem to be intended to apply to the ex officio Commissioners {aa). Neither, it would appear, does another provision contained in the same section, viz., that the Commissioners, except by consent, are not to exercise jurisdiction in cases where they are interested, directly or indirectly, in the matter in question ; the point, however, is of no great importance, since this provision merely enunciates what is a well- established principle of English law, applicable to all tribunals, viz., that no one is allowed to be a judge in his own case [b). The Lord Chancellor, with the consent of the Trea- suboraiuate . , , _ officers, sury, IS empowered to appoint officers, clerks, and 5. 21 [isss]. messengers, to be attached to the Commission. Section II. — Jurisdiction. (i.) As regards Subject-matter. In addition to the jurisdiction exercised by the late ^,™'f^'"- (aa) The question turns upon the meaning to he attached to the words "the Commissioners " in section 5 of the Act of 1873, having regard to sections 3 and 8 of the Act of 1888, the former of which provides that section 5 of the Act of 1873 " shaU apply to each appointed Commissioner," and the latter, that any reference to the Eailway Commissioners in the Act of 1873 shall be construed to refer to the Commission established by the Act of 1888. (*) Per Stephen, J., in Seff. v. Farmnt "*, 20 Q.B.D., at p. 60. 200 THE RAILWAY AND [ChAP. VII. 1. Under Commissioners, which is transferred in its entirety to Act of 1873. , , . , • i. J the present Commissioners (c), the latter are invested with additional powers. The subject of jurisdiction will, therefore, be most conveniently considered by seeing (a) what jurisdiction was exercised by the late Commissioners before the passing of the Act of 1888, 2. Under and (b) in what respect the jurisdiction of the present Act of 1888. ^ ' '^ .nlilAJ.r-1 OOO Commissioners is made wider by the Act oi iooo. (a) Jurisdiction under Acts prior to the Act of 1888. Jurisdiction In the first place, the jurisdiction, which is trans- irom late ferrcd from the late Commissioners to those appointed Commis- , _ . . sioncre. under the Act of 1888, includes matters arising under — .s.2[i854]. (1.) The Traffic Act, 1854, section 2— (i.) Undue Preference, (ii.) Traffic Facilities. 3i&|2vict. (2.) The Bailways Begulation Act, 1868, section 16 — s. 6 [1873]. Inequality of charge in respect of steamboat traffic. S.6 [1873]. (3) The Act of 1873— Ibid. s. 8. (i_) Arbitrations between railway and canal com- panies in all cases where arbitration is required or authorised by any Act of Parliament. ^^Ai-b.^. (ii ) (By consent) any difference to which a rail- way or canal company is a party. Ibid. =.10. (iii) Approval of working agreements between railway companies. {c) Section 8 of the Act of 1888 provides that there shall he transferred to, and vested in, the Commissioners appointed under that Act, " all the jurisdiction and powers which at the commencement of this Act were vested in, or capable of heing exercised hy, the EaiLwa}- Commissioners, whether under the Regulation of Railways Act, 1873, or any other Act, or otherwise, and any reference to the Railway Commissioners in the Regu- lation of Railways Act, 1873, or in any other Act, or in any document, shall, from and after the commencement of this Act, be construed to refer to the Railway and Canal Commission established by this Act." By section 57 of the same Act all proceedings pending before the late Com- missioners at the commencement of the Act are to be transferred to the present Commissioners, and are to be continued and concluded in all respects as if such proceedings had been oiiginally instituted before thorn. Sec. II.] CANAL COMMISSION. 201 (iv.) Eeporting as to exercise of steamboat powers ibw. s. lo. by railway companies, (v.) Througb rates (fZ). ibid,B9.ii- (vi.) Publication and inspection of rate-books, and iwa. s. u. disintegration of rates, (vii.) Determination of terminal charges. ibid.s.i5. (viii.) Sanction of agreements between railway iwa. s. i6. and canal companies, (ix.) Maintenance of canals by railway companies, iwd. ». 17. (x.) Differences between the Postmaster-General md.s. 19. and railway companies as to conveyance of mails. (4.) The Board of Trade Arbitrations Act, 1874. c « Sn' (.5.) The Telegraph Act, 1878. '.'felJlt (6.) The Cheap Trains Act, 1883. c'st*'^'"" (1.) Section 2 of the Traffic Act, 1854. This section has already been fully discussed in con- ^I'j^p^^'^' nection with the two classes of complaint that it gives ^^■ rise to — (i.) Undue preference, and (ii.) Traffic facilities. (2.) Section 16 of the Bailways Begulation Act, 1868. This section provides (in terms similar to those oif^f^^^°^ section 90 of the Eailways Clauses Act, 1845) for^^^^'^/^^ equality of charge to passengers on steam vessels, in clul^lTs.' cases where a railway company is authorised to work Af,''™n^ such vessels, and further forbids any difference being made, either in the steamboat or railway fares, between persons travelling both by train and boat, and persons making use of the one mode of transit only. It also requires the company, in cases where an aggregate sum is charged for the total journey, to distinguish on their tickets the amount charged for the sea transit from the railway fare. These provisions ^ooos^ are limited to passenger traffic, but a second clause of ™tc, p. m. the section (repealed by section 59 of the Act of 1888, but re-enacted in a slightly amended form by section 28) (d) Sections 11 and 12 of tte Act of 1873 are repealed and re-enacted with additions by sections 25 and 26 of the Act of 1888. 202 THE EAILWAT AND [ChAP. VII. extended the provisions of section 2 of the Traffic Act, 1854, to steamboat traffic generally. (3.) The Act of 1873. tton"™" (^-^ Arbitrations. — Considerable question has been s. 8 [1873]. raised with regard to the extent of the jurisdiction conferred upon the Commissioners by section 8 of the 22&23Vict. Act of 1873. The Eailway Companies Arbitration Act, 1859, authorised railway companies, by agreement under seal, to refer to arbitration any differences " which they might lawfully settle or dispose of by agreement between themselves," and prescribed a mode of procedure for such references. The Act of 1873 (section 8) gave the Commissioners power to order a reference to themselves of any difference between rail- post, p. 204. -vpay and canal companies (with an exception to be noticed hereafter) on the application of any of the companies parties to the difference, where the difference was " under the provisions of any general or special Act, required or authorised to be referred to arbitration." neieienoes The late Commissioners gave a very wide interpre- bystotute. tation to this enactment. Although they doubted whether the general Act of 1859 in itself amounted to an " authority to refer," within the meaning of the Act of 1873, so as to enable them to insist on a reference to themselves of any difference between companies, even in the absence of an agreement to refer (e) , they held that it was enough if two companies had agreed to refer future differences in accordance with the pro- visions of that Act (/). So too they held that if a special Act conferred certain contracting powers upon a company — e.g., power to enter into a working agree- ment — and in an agreement made in pursuance of those powers an arbitration clause was inserted, such clause became " as truly authorised as if it was the subject of express mention " in the Act (g). It was decided in (e) Torbay, Sfc, Uy. Co. v. S. Bei-on Ey. Co.^^ ; Poripatrick My. Co. v. Caledonian JRij. Co.'^'>l if) Stokes Bay Ry., ^-c., Co. v. L. S; S. W. Ry. Co.™ (g) Portpatrick Ry. Co. v. Caledonian Ry Co.'^^t, 3 R. & 0. T. Ca. , at p. 195 Sec. II.] CANAL COMMISSION. 203 Waterford, dc. By. Co. v. G. W. By. Co.''' that this iaterpretation was erroneous ; the Court there explained that the object of the Act of 1859 was not so much to confer upon railway companies the power of referring to arbitration differences arising in the course of their business — a power which they enjoyed apart from statutory authority — as to provide a particular mode of procedure for such references ; and further, that a reference to arbitration authorised by statute was something more than a reference provided for in an agreement which wasauthorised by statute (h). A further question arose where the particular agree- Agreements .■^ . ... '^ " scheauledto ment containing the arbitration clause was itself ^"i*- referred to in a special Act. In Beg. v. Midland By. €0.^^" it was decided that it was not enough to bring a ■case within section 8 of the Act of 1873 {%), that the -agreement was scheduled to an Act, or even that it was " confirmed and made binding on the Company " by an Act; but that there must be a " distinct require- ment or authorisation by Parliament " of the reference to arbitration ; and the Court explained that the word " required," in connection with statutory sanction given to agreements between companies, had reference to cases where the object was to prevent contracts, which ■affected public interests, from being altered without the -assent of Parliament, and the word " authorised" to cases where the Legislature gave validity to contracts which might otherwise be beyond the powers of the contracting parties {j). The section under discussion has, however, been Effei-t of ' ' Traffic Act modified by section 15 of the Act of 1888, which enacts "ss, s. 15. that " the provisions of any agreement confirmed or -authorised by any general or special Act shall be deemed to be provisions of such Act." It is now, therefore, (A) Per Brett, L.J., 17 Ch. D., at p. 507, and James, L.J., at p. 504. (j) -An instance of a general Act reciuiring a reference to arbitration, so as to givetlie Commissioners jurisdiction under that section, is afforded by the Telegraph Act, 1868 (31 & 32 Vict. c. 110, s. 9 (10) ), which pro- Tides that " aU matters of difference bet-ween the Postmaster-General and railway companies arising under this Act shall be settled by arbitration." A similar provision is frequently inserted in special Acts. (j) See also Halesoiccn By. Co. v. G. TV. % Mid. By. Co.'s.^ 204 THE EAILWAT AND [Chap. VII. Excepted oases. s. 8 [1873]. Differences to which company i:^ party, s. 8 [1873]. Working agreements. 26 4; 27 Vict. c. 92, ss. 22 20. sufficient to give the Commissioners jurisdiction if the agreement containing the reference to arbitrations is confirmed or authorised by statute. The section thus alters the law as laid down iu the case last cited, but it appears to be still open to question whether it is neces- sary that the particular agreement should be "con- firmed or authorised," or whether the fact of an agreement, which contains an arbitration clause, having been made in pursuance of general statutory powers, is sufficient to enable the Commissioners to order a difference between the parties to be referred to them. It should be noticed that the section under discussion excepts cases where the Act authorising or requiring the arbitration has designated a particular arbitrator, either by name or by ofiicial description, or where a standing arbitrator has been appointed under an Act to whom the Commissioners think that the difference in question may more conveniently be referred. (ii.) Differences to which a Bailway or Canal Company is a party. — Section 9 of the Act of 1873 provides that any difference to which a railway or canal company is a party may, on the application of the parties to the difference, and with the assent of the Commissioners, be referred to them for decision (k). (iii.) Worhing Agreements. — Part III. of the Eailways Clauses Act, 1863, contains clauses relating to working agreements between railway companies, which apply to companies in whose special Act that part of the Act is incorporated {I). Section 125 of that Act provides that a working agreement is not to have any operation until it is approved by the Board of Trade, and that such approval is to be withheld unless that body is satisfied of the agreement having been duly sanctioned by the (/.■) Under this section rating appeals were sometimes referred to the late Commissioners. (1) These clauses are set out in Appendix F., pp. 89-90. The directions of the Commissioners relating to -working agreements are given in the Fourth Schedule to the Kailway and Canal Commission Rules, 1889, (post. Appendix F). Sec. II.] CANAL COMMISSION. 205 shareholders of the companies in the mode provided by the Act. Section 27 empowers the Board of Trade, at the expiration of the first or any subsequent period of ten years after the making of the agreement, to cause the same to be revised, and to modify it in any way they may consider required by the interests of the public. By section 10 of the Act of 1873, the powers Powers of of the Board of Trade under Part III. of this Act, or of'rra"^ under any special Act, with respect to the approval of to Haiiway working agreements, were transferred to the Com- aioners. • • T-^ n 1 • n 1 1 s. 10 [1873]. missioners. It has been pointed out that the powers transferred are not merely the power of giving or with- holding approval, but all the powers with respect to the approval [m), and the late Commissioners ex- pressed the opinion that these included the power ol' revising and modifying agreements conferred on the Board of Trade by section 27 (re) ; the correctness of this view, however, has been questioned (o). (iv.) Steamboat Traffic. — Part IV. of the Eailways tf^flj"*""" Clauses Act, 1863, contains provisions relating to the f ^''jjj''- steamboat traffic of railway companies ; one of these enabled the Board of Trade, in the seventh year after the passing of any special Act, which authorised a railway company to work steamboats and incorporated Part IV. of the general Act, if they were of opinion that the interests of the public were prejudicially affected by the exercise by the company of the power of working steam- boats, to give notice to the company, and in the event of no satisfactory provision being made for the protection of the interests of the public, to report their opinion to Parliament, with the result that unless Parliament intervened, the company's steamboat powers ceased. These powers and duties of the Board of Trade, like ">• " l^'^^'--' {m) Per Field, J., in. SuddersfieJd Corporation v. G. N., S;c., Ittj. CoUy^, 3 R. & C. T. Ca., at p. 576. («) Greenock, ie., Ry. Co. v. Caledonian Hij. Co.^; Huddersfield Case.™' (o) Huddersfield Case^'^, ibid., at pp. 578, 584. As to the jm-isdiction of the Commissioners in cases where the powers of the Board of Trade were derived from Special Acts passed before 1863, see the cases cited in footnote («). [1888]. 206 THE RAILWAY AND [ChAP. VII. those under Part III. of the same Act, were transferred to the Commissioners by section 10 of the Act of 1873. Through (y.) Tlirougli Btttes (see Chapter TV.). Ratebooks. (vi.) FulUcation and Disintegration of Bates (see Chapter VI.) Terminals. (yii.) Terminals. — Section 15 of the Act of 1873 ''Ijif^-'' (which is extended by the Act of 1888 to the terminal charges of canal companies) authorises the Commis- sioners to "hear and determine any question or dispute which may arise with respect to the terminal charges of any railway company, where such charges have not been fixed by any Act of Parliament, and to decide what is a reasonable sum to be paid" for terminal services. The section also provides that any decision of the Commissioners under it shall be binding on all Courts and in all legal proceedings whatsoever. The late Commissioners held that their jurisdiction under this section was not confined to fixing the amounts to be paid for services for which a terminal charge was admittedly due, but extended to deciding whether any particular service was one for which a charge could legally be made beyond the maximum rate for conveyance (,p). Meetofthe We have seen that the revised " schedules of maxi- 1888. ' mum rates and charges," provided for by the Act of 1888, are to contain a full statement of the nature and amounts of all terminal charges, and that when any schedule has been embodied in a Provisional Order and confirmed by an Act of Parliament, the revised rates and charges are to be " the rates and charges which the (p) Keston Collicnj Co. y. L. S; X. W., #c., Ey. Co.'s.is^ For the- decisions of the late Commissioners upon terminals, see ante, p. 82. Although the decisions of the Commissioners under this section were made binding on all Courts, this did not preclude them from stating a case for the opinion of a superior Court on a doubtful point of law (Hall's Case ""), though there was no means of compelling them to do so ( Central Wales, Sje., liij. Co. v. G. W. Ey. Co.^'). In Kempson's Case^^^ a rule nisi was obtained for a prohibition on the ground that the Commissioners had wrongly interpreted an Act of Parliament by deciding certain services to be included in the maximum rate, which in point of law were outside it (ante, p. 81). S. 24 (lO). Sec. II.J canal commission. 207 railway company shall be entitled to make." Under section 15 of the Act of 1873, the jurisdiction conferred on the Commissioners is confined to cases where the terminal charges of the company have not been fixed by any Act of Parliament ; if, therefore, the revised schedules, as confirmed by Parliament, fix the maxi- mum ■ terminal charges as well as maximum mileage rates, the only power which the Commissioners will have of dealing with terminal charges would seem to be that conferred by section 10 of the Act of 1888, under which they are enabled to decide any dispute " involv- ing the legality of any toll, rate, or charge," and the legality of any terminal charge will depend upon the terms of the revised schedules, and the Provisional Orders and confirming Acts. (viii.) and (ix.) Agreements between Bailway and c^ais- Canal Companies, and Maintenance of Canals by Bail- luay Companies (see Chapter VIIT.) . (x.) Post Office.— By section 18 of the Act of 1873, '!^,%°^'"'- railway companies are required to convey mails by any '^^^''^• train and without any previous notice, and to afford all reasonable facilities for the receipt and delivery of mails at any of their stations without requiring them to be booked. The Postmaster-General is to pay reasonable remuneration for the services performed by the com- panies, and any difference between him and any com- pany as to the amount of such remuneration, or as to any other question arising under the Act, is to be decided by arbitration, or, at the option of the company, by the Commissioners (pp)^ (4.) Board of Trade Arbitrations Act, 1874. By section 6 of this Act, as amended by section 1-5 of ^o^J^^^^j. the Act of 1888, any difference to which a railway com- ^j^"™/ ^fd pany or canal company is a party, and which is required J'^'-Appel?-' or authorised, under the provisions of any Act or of an di^^-^-P-^"- agreement confirmed or authorised by any Act, to be (pp) As to the conTeyance of mails, see ante, p. 96, n. 208 THE EAILWAY AND [ChAP. VII. referred to the Board of Trade, or some person appointed by them, may be referred by the Board of Trade to the Commissioners, except cases of disputed compensation under the Lands Clauses Act, 1845 (g). (5.) Telegraph Act, 1878. Telegraph By scctions 4-5 of this Act differences between the (41 & 42 ' Postmaster-General and persons having the control of 33. 4-5 & 13). streets and public roads may be referred to the Com- missioners by way of appeal from the decisions of magistrates and County Court judges, and all other differences under the Act (except those between the Postmaster-General and persons having control over estuaries, or tidal waters,) are to be re- ferred to the Commissioners for decision in the first instance {qq). (6.) Cheap Trains Act, 1883. By section 3 of this Act the Board of Trade vict.c.34, a,re empowered, in cases where they consider that sufficient accommodation is not provided for third- class passengers, or that a sufficient number of workmen's trains are not run, to hold an enquiry, and to make an order for increased accommodation or further trains. The matter may in the first instance, if the company so request, be referred to the Commissioners, who in that case have the same powers as if it had been referred under the Act of 1873 ; if, on the other hand, the matter is dealt with by the Board of Trade, the company have a right of appeal against any order made by them to the Commissioners. (y) Under section 28 of tlie Lands Clauses Consolidation Act, 1845, (8 Vict. c. 18, s. 28,) the Board of Trade are autiiorised to appoint an umpire, if the arbitrators fail to do so. (qq) By section 13 it is provided that "in regard to all railways and canals now existing or authorised, the provisions of the Telegraph Acts, 1868 and 1869, shall not be affected by this Act except that the arbitrators on any difference between the companies and the Postmaster- Geueral shall lie those provided by this Act." SbC II.] CANAL COMMISSION. 209 (b) Jurisdiction under the Traffic Act, 1888. At the outset it should be observed that section 52 uSto'lcT of the Act of 1888 provides that the povyers and juris- addmonai. diction conferred by that Act on the Commissioners or Board of Trade shall be in addition to, and not in substitution for, any powers or jurisdiction vested in those bodies by any statute, and section 58 provides that any proceedings pending on January 1st, 1889, before any superior court, vrhich might have been brought before the Commissioners if that Act had been in force v?hen such proceedings were begun, may, upon the application of either party, be transferred to the Commissioners ; such transfer, however, is not to affect the rights or liabilities of any party. (1.) In the first place, although the Act of 1888 does Power to not in express terms empower the Commissioners to provisionB of Truffle enforce the obligations imposed by it, it will probably Act, isss. be held that by the combined operation of section 6 of 8s.^i,s, the Act of 1873, and sections 1 and 8 of the Act of 1888, they have jurisdiction to determine complaints of any contravention of the provisions of the Act of 1888, in the same manner as complaints of contravention of the Acts ofl854 and 1873 (r). (2.) As we have already seen, certain provisions of the Amendment ■earlier Acts have been amended or re-enacted in a form s''"!."^*'"' Traffic Act, which gives the Commissioners a wider jurisdiction than isrs.etc. that exercised by the late Commissioners, e.g., through rates (ante, pp. 114-118), arbitrations (ante, pp. 202-4), sea traffic (ante, p. 176), terminals (ante, pp. 206-7), pub- lication and disintegration of rates (ante, pp. 178-189). (3.) The Commissioners are empowered to hear and special Act» -determine complaints of a contravention by a railway (r) Section. 6 of the Act of 1873 provided that the Commissioners appointed under that Act might determine complaints of any contraven- tion of section 2 of the Act of 18.54, or of section 16 of the Act of 1868, or of the Act of 1873, or of any enactment amending or applying the said •enactments respectively; section 8 of the Act of 1888 transfers to the present Commissioners all the jurisdiction and powers which at the com- mencement of that Act were vested in, or capable of heins; exercised by, the late Commissioners ; and section 1 of the Act of 1888 enacts that that Act shall be construed as one with the Act of 1873. 210 THE RAILWAY AND [ChAP. VIL or canal company of any enactment in a special Act (s)— (a) relating to matters mentioned in section 2 oi the Traffic Act, 1854 {i.e., Traffic Facilities and Undue Preference) ; (b) requiring a company to provide any station, road, or other similar work for public accom- modation (ss) ; (c) imposing on a company any obligation in favour of the public or any individual. Mode of We have already seen (ante, p. 104) that the late s^edaMots Commissioners disclaimed any pov7er to deal directly ' with a contravention of a special Act, except so far as. the matter complained of might also be a violation of one of the general Acts under which they had juris- diction, though indirectly they gave effect to "the pro- visions of special Acts by construing, in any particular case, the extent of the obligations imposed by the general Acts with reference to any special provisions in the company's private Acts. But, if we exclude the limited power which the Commissioners may have possessed of thus indirectly enforcing the obligations, of special Acts, (as to which there appears to have been no decision of the superior Courts,) these Acts were ordinarily outside their jurisdiction, and the only remedy open to a party aggrieved by a company's non-observance of the provisions of its special Acts (n.) By was by an application for a mandamus or injunction, iiggr^ved. or, in cases where he had sustained injury through ((..) By the such non-observauce, by an action for damages. Apart Gcuwair from such proceedings in the name of a private indi- (s) Section 1 of the Railways Clauses Act, 1845, provides that th» clauses and provisions of that Act shall form part of every special Act authorising the construction of any future railway, and shall be construed together with such special Act as forming one Act (Appendix A., p. 1). (ss) In connection with this "branch of the Commissioners' jurisdiction should he noticed (1) the power conferred on them, in common with the Board of Trade, of apportioning hetween a company and applicants for works, (such as ijridges, subways, or approaches,) the expense of complying with an order for providing such works (section 16), and (2) the power conferred on local authorities of entering into agreements for payment of their propor- tion of such expense, and of charging the amount upon the rates (section 54). Sec. II.] CANAL COMMISSION. 211 vidual, the Attorney-General has the right, in cases where illegal proceedings on the part of a public com- pany prejudicially affect public interests, to file an in- formation, and, if necessary, to ask for an injunction, acting either ex officio, or at the relation of an indi- vidual (t). And in the case of railway companies, the duty of doing so in certain circumstances is imposed upon the Attorney-General by section 17 of the Cheap Trains Act, 1844, which provides that upon receiving from the 7*8 vict. Board of Trade a certificate that a company is acting in a way forbidden or unauthorised by its special Acts or the general Eailway Acts, he shall take proceedings to enforce compliance with the law. With regard to enactments in special Acts, section 9 Jhelurisdic- of the Act of 1888 provides that " the Commissioners comm"-'*" shall have the like jurisdiction to hear and determine e™iu"ve- a complaint of a contravention of the enactment, as '"'^™- the Commissioners have to hear and determine a complaint of a contravention of section 2 of the Eailway and Canal Traffic Act, 1854, as amended by subsequent Acts." The ordinary rule is that where a statute merely gives a new remedy for the enforce- ment of an already existing right, the statutory remedy is cumulative, and not in substitution for existing remedies, unless there are express words in the statute to that effect {u) ; but seeing that under the Act of 1854 the jurisdiction of the Com- missioners is exclusive, it may perhaps be held that the jurisdiction of other tribunals to enforce the en- actments in special Acts specified in section 9 is impliedly ousted. (4.) The Commissioners are empowered to hear and ^^inga^ determine complaints of a contravention of the pro- '• ' f^*''^' visions of any Act relating to private branch railways or private sidings. It is to be noticed that this branch of the Commissioners' jurisdiction, though conferred (t) Per Kindersley, V 0., in A. G. r. G. N. Ry. t'o.», 29 L. J. (Ch.), at p. 800. See post, p. 221, footnote [g). (u) Addison on Torts (Sth edition), p. 65. p 2 212 THE RAILWAY AND [ChAP. VII. by a section relating primarily (and, if the marginal note be correct, exclusively) to special Acts, appears to extend to all Acts, whether special or general {v). The only enactments in the general Acts relating to private sidings are — 8&4Vict. (a) The Eailway Eegulation Act, 1840, sections s;.]8.i9. 18-19, which transferred from the local justices to the Board of Trade the duty of deciding differences as to the proper places for junctions between railways and branch lines. 8&6Viot. (b) The Eailway Eegulation Act, 1842, section 12, ' ' ' which gives the Board of Trade power to regulate the making and using junctions between branch lines and any passenger railway. 8Vict.c.2o, (c) The Eailwavs Clauses Act, 1845, section 76, iB. 76 " Appendix which coufers upon all persons, subject to the pro- visions of the Act of 1842, and subject also to payment of the expenses and to certain conditions and restric- tions, the right to call upon a railway company to connect private sidings or branch railways with the line of railway (w). irtgiiityof (5) The Commissioners are empowered to hear and B^"fl888]. determine any questions or disputes involving the legality of any tolls, rates, or charges made in respect of " merchandise traffic" (i.e., goods or live stock). The Equality Clause of the Act of 184.5, and the rates and tolls clauses of the special Acts, are thus brought within the jurisdiction of the Commissioners, though not, it would appear, to the exclusion of other tribunals (x). Canal tolls (6) The Commissioners are given power to alter and I^VJisss] adjust the tolls and rates on canals in certain cases (v) The discrepancy is probably to be explained by the fact that the ■words relating to private sidings did not occur in the Bill as originally drafted, but were added in Committee. (w) See Sill V. Midland My. Co.^ ; Todd v. M. G. JF. CIr.J Sy. Co}-^ ; Woodruff y. Brecon, fc, Ry. Co.^"^ The right of connecting branch lines ■with railways was conferred upon adjoining o-wners by the special Acts of the early companies. As to the question how far disputes about private sidings can be dealt with in applications under section 2 of the Act of 1854, see ante, pp. 105-106. (x) As to the jurisdiction of the late Commissioners in questions relating to the charges of companies, see ante, pp. 103, 113. s. 66[ SEO. II. I CANAL COMMISSION. 213 where the traffic or charges on the canal are controlled by a railway company (see post, pp. 230-231). (7) The Act of 1873 contains a provision which seems conciliation intended to do away, when possible, with the necessity s. t [isrs]. for formal proceedings. It enacts that when the Com- missioners receive complaint of the infringement by a company of the provisions of any enactment in respect sf which they have jurisdiction, they may, before requir- ng or permitting any formal proceedings to be taken, communicate the complaint to the company, so as to afford them an opportunity of making such observations thereon as they may think fit (xx). More elaborate '•'' ['''*]• powers of conciliation are conferred upon the Board of Trade by the Act of 1888, which provides that whenever any person receiving, or sending, or desiring to send goods by any railway is of opinion that the company is charging him an unfair or an unreasonable rate of charge, or is in any other respect treating him in an oppressive or unreasonable manner, he may complain to the Board of Trade, who are authorised to call upon the company for an explanation, and to endeavour to settle the difference amicably. For this purpose the Board are empowered to appoint either one of their own officers, or any other competent person, to mediate between the parties, and they are required from time to time to submit to Parliament reports of the complaints made to them. The right of making such complaints is extended to the local authorities and trading associations, who, by section 7 of the Act, are authorised to institute pro- ceedings before the Commissioners in cases where they consider that they themselves, or persons in their district, are being charged unfair or unreasonable rates. (ii.) Modes of Bemedy and Forms of Order. The iurisdiction of the Court of Common Pleas under Jurisdiotioii under the the Act of 1854 (section 3) , was confined to hearmg and Traffic Act, determining complaints against companies of conduct in violation or contravention of section 2 of that Act, and [xx) See E. & C. C. Rules, Rule 22, (post Appendix F). 214 THE RAILWAY AND [ChAP. VII. issuing injunctions restraining them " from further con- tinuing such violation or contravention of the Act, and .mdOTthe'"' enjoining obedience to the same." The Act of 1873, Act of 1873. -vvhich transferred this jurisdiction to the late Com- missioners, authorised them to "make orders of, like nature with the writs and orders authorised to be issued and made " by the Court of Common Pleas (section 6). That Act, however, conferred other powers upon the Commissioners, besides that of enforcing obedience to section 2 of the Act of 1854, (and the analogous pro- visions contained in section 16 of the Railways Eegula- tion Act, 1868,) and for the execution of some of these additional powers they were authorised to make new forms of order; — e.g., to fix the amount of terminal charges (section 15) ; to require a company to disin- tegrate its rates (section 14) ; to allow and apportion through rates (section 11), etc. But, except where specially provided, the fresh obligations imposed upon ibiii. s. 6. companies by the Act of 1873 could be enforced by the late Commissioners only in the same way as the pro- visions of the Act of 1854 — viz., by an injunction against Jurisdiction Continued violation of the law. The Act of 1888 trans- TrafflcAot, fers to the new Commissioners the powers exercised by their predecessors, and, therefore, an injunction continues to be the appropriate mode of enforcing the provisions of the Acts under which the Commissioners have jurisdiction ; in the following respects, however, their jurisdiction, as regards the orders which they are empowered to make, is more extensive than that of the late Commissioners {y). facuiufsand ^"'■"^ ^PP^'i'^^'^^ions fov TrafiG Facilities and Through r.ter'' Rates. We have seen that the inability of a company to comply with an order without the concurrence of some other company or person often proved a fatal obstacle to the exercise by the late Commissioners of their jiarisdiction in the matter of traffic facilities and through rates, either because the facilities were such as (y) For the forms of order in applications to the Commissioners, see R. & C. C. Eules, Rules 3-lo (post, Appendix F). Sec. II.] CANAL COMMISSION. 215 necessarily involved the ioint action of two companies, Ante, pp. •' r ' 108-9, 133-1. or because the respondent company had fettered its free action by agreement with some other company. This obstacle has in great measure been removed by three sections of the Act of 1888. (a) The first of these provides that no agreement, W Agi™- ^ o ' mentsnotto unless connrmed by Parliament, by the Board ofp''^™'" *' ' ^ tramc Trade, or by the Commissioners, is to prevent the s^i'^fifj-gn ■Commissioners from ordering a company to afford traffic facilities (section 11, ante, p. 112). (b) The above provision clearly extends to through (t) Through rates, which by statutory definition are only a form of oncanais. traffic facilities (ante, p. 115), but with regard to through cisss], tolls and rates on canals the Act contains a still wider provision, viz., that no agreement, whether confirmed by Parliament or not, is to prevent the Commissioners " from making or enforcing any order for a through rate or toll which may in their opinion be required in the interest of the public " (s. 37 (3), ante, p. 134). (c) The third of the sections above referred to (c)Oi-aeison ^ ^ . two or more empowers the Commissioners to make orders upon "Tl^f;- two or more companies to concur in carrying into effect any order, which the Commissioners could make if the various companies were a single company. In such cases they may order any of the companies to submit a scheme for their approval, and may order each of the companies to do, to the extent of its power, whatever is necessary on its part to carry the scheme into effect ; they may also determine the proportions in which the expense of carrying out the scheme is to be borne by the different companies (section 14, ante, p. 113). (2.) Orders for Payment of Charges. Section 10 ^;j°J^|nJ „" of the Act of ]888, which, as we have seen, «i>arges^^^ enables the Commissioners to deal with questions involving the legality of a company's charges (ante, p. 212), authorises them, in the event of the company establishing its right to make the charge, or some part of it, to enforce payment of whatever amount they decide to be legal. 216 THE RAILWAY AND [ChAP. VII, « linTslT' ^^-^ Damages. Section 12 of the Act empowers the Commissioners in all matters, which they have jurisdic- tion to hear and determine, to award to any complain- ing party, who is aggrieved, such damages as they find him to have sustained, either in addition to, or in substi- tution for, any other reHef. The section further provides that an award of damages to a complaining party by the Commissioners shall be " in complete satisfaction of any claim for damages, including repayment of over- charges, which, but for this Act, such party would have had by reason of the matter of complaint." (yy) faw'prior\''» The jurisdiction of the late Commissioners was confined 1888^"' "^ to enforcing obedience to the lawforthe future ; infringe- ments of it in the past were necessary, as forming the foundation of a complaint, to enable them to exercise their powers, and to entitle a complainant to ask for pro- tection (z), but they had no power to award anything in the shape of compensation for past injury or loss, except in the single instance of disobedience to an order made by them, in which case the Act of 1854 (section 3) empowered them to impose a money penalty upon the disobedient company, which they might order to be paid either to the complainant, or to the Crown, or into Court (zz). It must also be borne in mind that the juris- diction of the late Commissioners, in respect of the obligations they were authorised to enforce, was in most instances exclusive (ante, p. 97), and, therefore, a party aggrieved by non-observance of those obligations had no means of obtaining damages from any other tribunal. We have seen that in the case of illegal charges {e.g., charges in excess of a company's powers^ or in breach of the Equality Clause of the Act of 1845) the amounts paid could, and still can, in certain circum- stances be recovered back in an action at law (a), but {yy) By Kule 18 of the R. & 0. C. Rules, (post, Appendix F) a defendant in any proceedings tefore the Commissioners may claim to have all questions of damages dealt with by them. (i) See Dublin Whisky ^-c. Co. v. M. G. W. {Ire/and) Ity. Co.^, 4 E. & C. T. Ca., at p. 34. (z») This provision is still in force, see Appendix A., p. 9. («) Ante, p. 140 ; see also Gidlow'a. Caae''^, L. R. 7 H. L., at p. S27. Sec. II.] CANAL COMMISSION. -217 that with regard to " preferential charges " {e.g., charges constituting a breach of section 2 of the Traffic Act, 1854,) the better opinion is that no action will lie for their recovery, and certainly no claim for consequential damages can be sustained in an action before the ordinary Courts in respect of any violation of the Act of 1854. The Act of 1888, therefore, effects a twofold change; (1) it confers rights {e.g.,io damages) which did not exist before; (2) it enables rights {e.g., to repayment of overcharges) which did exist before, to be prosecuted by a new form of proceeding, viz., by complaint to the Commissioners ; and with regard to the latter class of rights, it is to be observed that an award of damages by the Commissioners is a bar to any common law right arising out of the same matter of complaint. The right to damages conferred by the Act is, how- Damages ever, limited by a proviso, which may give rise to some awarded ,• -i • j_ J 1 OP 1 II ^ • • whore corn- question ; It IS to the enect that the Commissioners piainant ha» are not to award damages, unless complaint has been year. made to them within one year from the discovery by the party aggrieved of the matter complained of. It is to be noticed that this proviso limits, not the period in respect of which damages may be recovered, but the time within which applications must be made, so that a party who lies by for more than a year loses all claim to damages under the Act, even in respect of the year immediately preceding his application. At common law mere acquiescence or lying by does not ordinarily deprive an injured person of his right to damages in cases where such a right otherwise exists ; on the other hand, overcharges, or illegal charges, cannot be recovered in an action, unless they have been paid in ignorance of the facts constituting the illegality, or under a pressure amounting to compulsion {aa) ; where, however, that is the case, an action may be brought at any time within the six years allowed by the Statute of Limitations. {aa) Everthed'a Gate,^ (Bee ante, p. 140.) 218 THE EAILWAY AND [ChAP. VTI. Actof 1888." '^^^ "g^* conferred by the Act, therefore, differs from any existing common law right. It is a general rule of law that when a right or duty is entirely the creature of a statute, and a specific remedy is provided by the statute for its enforcement, that remedy, and that only, must be pursued ; but that where a right or duty exists independently of the statute, a new remedy given by it is cumulative, and does not preclude the ordinary common law remedy by waj'^ of action (b). Applying this rule of law to section 12 of the Act of 1888 :— 1. Damages (1.) With regard to damages not recoverable able apart apart from the Act of 1888, it is clear that the only from Act of "^ . , --, . . t i 1 1888. remedy is by complaint to the Commissioners, and that the right is lost if the complaint be not made within one year after discovery of the matter complained of. 2. Over- (2.) With regard to overcharges (and damages, if damlges""'' any,) which were recoverable by action before that Act ^av^nimm was passed (c), it would appear that the common law 1888" " " right is not taken away by the new remedy, and that an action will still lie for their recovery at any time within six years, without regard to any question as to when the party became aware of his rights. 3. Damages (3.) It is Icss clear how far the power of the Corn- Set where missioners to award damages extends in cases where piainanthas the Complainant has lain by or acquiesced for less than less than a a year in illegal charges or treatment, with full know- year ledge of the facts. The power given to the Com- missioners of awarding damages would seem to be subject to the ordinary rules of law, and it is to be observed that the proviso to section 12 is in the nature of a restriction, so that no right can be claimed under it which is not conferred by the preceding words. The result appears to be that acquiescence for less than a year is no bar to a claim before the Commissioners for damages in the ordinary sense of the word ; but that (J) Addison on Toi-ts, (5th Edition) pp. 63, 65. (c) As to whether consequential charges are recoverahlo in respect of- a hreaoh of the EquaHty Clause, see ante, p. 140. Sec. II.] CANAL COMMISSION. 219 where such a claim is merely for the recovery of moneys already paid, the ordinary rule of law with regard to voluntary payments apphes, and that with respect to so much of such claim as relates to overcharges paid without protest, and with full knowledge of the facts, the Commissioners have no power to order their repay- ment, although complaint be made to them within a year. Even if this be not so, the wording of the section points to an award of damages, in cases where it is within the power of the Commissioners to give them, being a matter within their discretion, and it may well be that on this point they will be guided by the principles observed in the courts of law {d). In cases of undue preference the right to damages is ^*^8<» (or subject to a further limitation, viz., that the com- terenee^j^^^ plainant must first give written notice to the company that he requires them to abstain from or remedy the matter of complaint ; unless this has been done, and unless the company fail, within a reasonable time, to comply with such requirements in such a manner as the Commissioners think reasonable, no damages are to be awarded. As proceedings must in all cases, in order to entitle a complainant to damages, be taken within a year of the discovery of the matter complained of, it may be necessary, in cases of undue preference, for notice to be given to the company a "reasonable time " before the expiration of the year. The necessity, however, for giving such notice, and the exemption of a company from liability to damages, arise only when the rates complained of have been duly published by the company in its station rate-books during the time they have been in (d) The same remark is applicable to payments made more than six years hack, although proceedings before the Commissioners do not appear to fall strictly within any of the Statutes of Limitation. A question may arise, how- ever, where a complainant applies more than six years after the matter of complaint, although within a year after his discovery of it ; at common law, in the absence of fraud, the Statutes of Limitation run from the accrual of the cause of action, [i.e. from the date when the matter com- plained of occurred,) and not from the date when the facts were, or might have been, discovered — see Gibbs v. GuM.'>^ 220 THE EAILWAY AND [CeAP. VII. force ; if this has not been done, damages may be claimed and awarded without any opportunity being AsseBsment given to the Company to remove the ground of com- s. 12 [1888].' plaint. The Commissioners are authorised to assess the damages themselves, or to direct an inquiry for the pur- pose of ascertaining them, which may be held either before one or more of themselves, or before some oificer of their court. (iii.) Enforcement of Orders. Enforce- The Act of 1854 (section 3) enabled the Court of ment of „ . . . . orders Common Pleas to enforce their ini unctions : — under the _r . i Traffic Act, (1.) By attachment of any one or more oi the directors of the company ; or (2.) By imposing a pecuniary penalty upon the company, not exceeding £200 for each day, after a day to be named in the order, that the company should fail to obey the in- junction. Under the The Act of 1873 (scction 6) authorised the Commis- Trafflo Act, ^ ' 1873. sioners to make orders of like nature with the writs and orders authorised to be issued and made by the Court of Common Pleas. It also enacted (section 26) that any decision or order made by the Commissioners for the purpose of carrying into effect any of the provisions of that Act, might be made a rule or order of any superior Court, and should be enforced either (1) in the manner directed by the Act of 1854, or (2) in like manner as any rule or order of a superior Court. In the Chatterley Iron Co. Case*^ it was held that the effect of the Act of 1878 was to transfer to the Commissioners the power of imposing a pecuniary penalty for diso- bedience to any order made by them, and that the only jurisdiction of the superior Courts was to enforce pay- ment of the penalty after the amount had been fixed by the Commissioners. The late Commissioners expressed the opinion that the rule was the same with regard to orders for attachment, and further, that their powers of Sbcs. II.-III.] canal commission. 221 imposing penalties and making orders for attachment extended to all the matters within their jurisdiction, {e.g., arbitrations) (e). The Act of 1888, without repealing any of the above under the Traffic Act enactments, provides that the Commissioners shaU, as isss. respects the enforcement of their orders, " have all such powers, rights, and privileges as are vested in a superior Court " (section 18). Section III. — Locus Standi. The Act of 1888, like the earlier Traf&c Acts, is Kf^'/^,,„. silent as to what is necessary to give a locus standi in ^njnf| y^ proceedings before the Commissioners. The Act of JggHevea. 1854 (section 3) gave power to " any company or person complaining" to apply; similarly the Act of 1873 gave the right of applying to " any person com- plaining," the word " person " being made by the interpretation clause to include a "body of persons ss 3,6 [ws]. corporate or unincorporate." Questions as to locus standi seem rarely to have been raised under these Acts (/) ; but probably the word " complaining " is to be taken as equivalent to " aggrieved," and, in order to establish their right to institute proceedings before the Commissioners, parties must show that they are prejudicially affected by the matters complained of (ante, p. 153). The words "complaint" and "com- plaining party" are retained in the Act of 1888, andss. 9, 12 the power conferred upon certain public bodies of making complaint without proof that they are aggrieved (section 7), seems to point to the right of taking pro- ceedings being in other cases limited in the way suggested. The only exceptions to this rule appear to be the Exceptions/ following : — (1.) The Attorney-General may institute proceed- Q^nera™°^ ings upon receiving a certificate from the Board of^-^f'^^'^- (e) Toomer's Cote ■*' ; Portpatriok Ry. Co. v. Caledonian Ry. Co.^'' (f) See Toomer'a Caae^'', and XJchfieUL. B. v. L. Brighton, ^c.,Ry. Co.^^ 222 THE EAILWAY AND [Chap. VII. 2. Persons appointed \>y Board of Trade. 8-. 6 [1873]. 3. Public bodies. 8. 7 [1888]. (a) Local authorities I 61 & 52 Vict. 0. 41, s. 40. (i) Chambers of Com- merce, etc. Trade that the Act of 1854 has beeu violated by a company (g). (2.) Upon the certificate of the Board of Trade alleging a contravention of any of the Traffic Acts, or of section 16 of the Eailways Eegulation Act, 1868, any person appointed by the Board of Trade in that behalf may apply to the Commissioners. (3.) A limited right of instituting proceedings was conferred upon public bodies by section 13 of the Act of 1873, but that section was repealed by section 69 of the Act of 1888, and the rights of public bodies are extended and defined as follows : (a) The following local authorities are empowered to become complainants, without proof that they are aggrieved by the matter complained of, viz. : — (i.) Harbour Boards and Conservancy authorities. (ii.) Councils of Cities and Boroughs, including the Common Council of the City of London. (iii.) County Councils. (iv.) Justices in Quarter Sessions. (v.) Commissioners of Supply of any county in Scotland. (vi.) The Metropolitan Board of Works (whose powers are by the Local Government Act 1888, transferred to the London County Council as from April 1st, 1889). (vii.) Urban and Bural Sanitary authorities. (b) The same right is extended to Chambers of Commerce or Agriculture, and Associations of traders or freighters; but in the case of these bodies it is necessary to obtain from the Board of Trade a certifi- cate, which remains in force for twelve months, unless withdrawn in the meantime, that the complainants are a proper body to make the application; and the Board of Trade, before granting such certificate, may require security for costs to be given. (g) This power, whicli is given by s. 3 of the Act of 1854, appears to be discretionary, the section in this respect difflering from s. 17 of the Cheap Trains Act. 1844, (7 & 8 Vict. c. 85, s. 17,) under which the Attorney-General is bound to proceed against any company upon receiving the Board of Trade's certificate. See A. 0. v. G. N. My. Co.^ SbCS. III. -IV.] CANAL COMMISSION. 223 (c) Any of the above bodies may appear in opposition («) opposi- to complaints by other parties, in cases where they, or complaints, the persons represented by them, appear to the Com- missioners likely to be affected by their determination upon such complaints (7z). (4.) Power is given to port or harbour authorities, i-compiaint, , " . '- 'by harboui- and dock companies, to make complaints to the Com- boards ana -*- ^ dock com- missioners of undue preference, wherever there is p*°'^^ "' ^ ' undue pre- reason to beheve that a railway company is placing '^«^3«°™jggj their port, harbour, or dock at an undue disadvantage as compared with any other port, harbour, or dock, to or from which traffic is or may be carried by , means of the lines of the same company, either alone or in conjunction with those of other companies. (5.) It would appear from section 10 of the Act 5. Appiica- of 1888, which empowers the Commissioners to enforce companies- payment of any charge made by a company in respect payment of of merchandise traffic, that applications for payment oi^-'^^nm}- disputed charges may be made to the Commissioners by railway and canal companies. Companies axe (i^-g^^ also empowered to apply to the Commissioners to to'egahty determine whecher any group or other rate, existing s' Sfs; or proposed, creates an undue preference or not Qih). '•"'*■'■ It is provided that no appeal shall lie from the no appeal decision of the Commissioners upon any question Ttandi'S' regarding the locus standi of a complainant, but there ^.Tr'a""" ri8881 is no such provision with regard to the right of parties to appear in opposition to an application. Section IV. — Peoceduee. The Commissioners are empowered from time to ^one""" (A) These todies are also authorised to make complaint to the Board of Trade of unfair or unreasonahle rates, (s. 31 (5)) ; to make applications to them with regard to the abandonment of derelict canals, (s. 45 (1) (7)) ; and to apply to the Commissioners to vary or rescind an order made by them as to the legality of group or other rates, (s. 29 (3)). Section 54 provides that any expenses incuiTed by local authorities in connection with the making or opposing applications to the Commissioners or the Board of Trade, or the complying with orders made by them, may be defrayed out of the rates or funds under their control. (hh) By Rule 14 of the K. & C. C. Rules, (post. Appendix F) a month's public notice must be given by a company before making an application under section 29 (3) . 224 THE EAILWAT AND [ChAP. VII. empowered time, with the approval of the Lord Chancellor and general' the President of the Board of Trade, to make, rescind, rules. . -, ■ B. 20 [1888]. and vary general rules for regulatmg the procedure m their Court ; these rules must he laid before Parliament v?ithin three weeks after they are made, or after the beginning of the next session, as the case may be (i). Sittings of Subiect to any such rules the Commissioners are the Commis- -^ "^ , . -i i £ i.1, • sioners. given fuU control as to the times and places ol their sjsaxar sittings, regard being had to the speedy despatch of business. Their central office is to be in London, and their public sittings in London are to be at the Boyal Courts of Justice, unless some other place is appointed by the Lord Chancellor. As the ex officio Commission- ers cannot be required to sit out of their respective parts of the United Kingdom (ante, p. 198), no doubt the practice will be for 8cotch and Irish cases to be heard in Scotland and Ireland, a practice which the Act of 1873 allowed, but which was only occasionally followed by the late Commissioners. Subject to the .. 27 [1873]. right of any party to a complaint to insist on a hearing [isss]!'*^ in open Court, the Commissioners may hold their sittings in public or private. They may also sit together or separately, and " any act may be done by any two Commissioners " ; at the hearing of any case, however, the three Commissioners must attend. The powers that can be exercised by any less number than three appear, therefore, to be confined to doing formal acts, unless it is intended to draw a distinction between the "hearing of any case" and interlocutory applica- tions, and to give power to two Commissioners to deal with the latter (ii). General With regard to — (1) the attendance and examination Commis- of wltnesscs ; (2) the production and inspection of docu- sioners. a. 18 [1888] ments ; (3) the enforcement of orders ; (4) the entry on, and (t) The Rules made by the Commissioners in pursuance of this power, (The Bailway and Canal Commission Eules, 1889) are printed in the Appendix, p. 86 et seq. (ii) 1 he Rules provide for interlocutory applications in most cases heing heard hy the Registrar in the first instance ; applications for an interim injunction are to be made to the ex officio Commissioner. (Rules 34, 53.) BeC. IV.] CANAL COMMISSION. 225 inspection of, property ; and (5) other matters necessary or proper for the due exorcise of their jurisdiction— the Com- missioners have all the powers, rights, and privileges of a superior Court. The povs^er, however, of punishing for contempt of Court by fine or imprisonment can only be exercised with the consent of the ex officio Commis- sioner. The duty of deciding questions that arise for deter- Detcrmimi- mination, or, in other words, the functions of iudge and 'i"e6tio°s ot ' ' JO lawand fact. jury, are divided between the ex officio and the appointed ™nw2f '^'' Commissioners in a way that demands attention. Disputed questions of fact are to be decided in accord- ance with the view of the majority ; but upon any question which, in the opinion of the Commissioners, is a question of law, the opinion of the ex officio Com- missioner is to prevail. The line between questions of law and fact is often an extremely difficult one to draw, and the question where it ought to be drawn in any particular case before the Commissioners is of import- ance, because no appeal lies from their decisions upon questions of fact. The preliminary question, whether a question is one of law or fact, may be (even if it be not generally) itself a question of law, but the words "in the opinion of the Commissioners" indicate that this preliminary question is to be decided by the full Court. The right of appeal, however, is not limited to questions, which, in the opinion of the Commissioners, are questions of law, and, therefore, if they should wrongly decide a question of law to be one of fact, an appeal would appear to lie from their decision. Parties are allowed to appear before the Commis- fnt^™d to sioners either (1) in person; or (2) by counsel; orK'^^tn,, (3) by solicitor ; or (4) by a parliamentary agent. To Sonera'!' entitle a parliamentary agent to practise before the 51) ' ^'^ Commissioners, it is necessary that he should be certi- fied by the Chairman of Committees of the House of Lords, or the Speaker of the House of Commons, to have practised for two years before August 10th, 1888, in promoting or opposing Bills in Parhament, 226 TAB RAILWAY AND [Chap. VII. Costs. Ibid. 5. 19. Appeals. Ibia. s. 17. Proceedings before the Court o( Appeal. Ibid. and the names of the parliamentary agents practising before the Commissioners are to be entered in a roll kept for that purpose. The costs of, and incidental to; any proceedings are in the discretion of the Commissioners, and they are empowered to make orders for their taxation. It was held in Foster v. G. W. By. Go."' that a similar pro- vision in the Act of 1873 conferred the same discretion upon the Commissioners as was enjoyed by the Court of Chancery before the Judicature Acts, but that it did not enable them to order a successful defendant or respondent to pay costs, such an order being beyond the jurisdiction of any Court. The same objection does not seem to apply to an order that a successful plaintiff or appHcant shall pay costs {j). (As to appeals with regard to costs, see infra.) Except upon questions of fact and questions regard- ing the locus standi of a complainant, an appeal (and, with a single exception to be noticed immediately, only one appeal) lies from all decisions of the Commis- sioners ; but their decisions are not to be questioned by prohibition, injunction, or certiorari. An appeal, therefore, lies from any decision upon a question of law, or upon a question regarding the locus standi of parties seeking to be heard in opposition to a com- plaint (ante, p. 223). So also it would appear that an appeal lies from a decision of the Commissioners as to costs, provided the appellant can show that there has been some manifest disregard of principle on their part (k). Appeals are to be made to the respective Courts of Appeal in England and Ireland, and in Scotland to the Court of Session in either division of the Inner House. In the absence of any special rules with regard to such appeals, they must be brought in conformity with the rules applicable to appeals from the High Court. On {j) Sarris v. Fetherick'"', i Q. B. D. 611. But see per Cotton, L. J., at p. 614. (i) Gilbert v. Ifudtestonel^ ; in ro Sio Grande, ^c., Co-^oi Sec. IV.l CANAL commission. 227 the hearing of an appeal, the Court of Appeal may draw all such inferences as are not inconsistent with the facts expressly found by the Commissioners, and are necessary for determining the question of law before them ; they are also empowered to "make any order which the Commissioners could have made, and also any such further or other order as may be just." The costs of, and incidental to, an appeal (including, it is presumed, the costs of the proceedings before the Commissioners,) are in the discretion of the Court of Appeal, except that no Commissioner is to be liable to pay costs in any circumstances. The decision of the Court of Appeal is to be final, 4PfHo',Vo''of except in cases where a point of law is involved upon ^^w?' which any two of the Courts of Appeal have differed in opinion ; in such cases the Court may give leave to appeal to the' House of Lords, imposing, if it think fit, special terms as to costs (Z) . It is provided by section 57 of the Act of 1888, that Pending ■*■ ^ business. all proceedings, which, at the commencement of the s. ^^ nets]. Act, were pending before the late Commissioners, shall be transferred to the Railway and Canal Commission under that Act, and may thereupon be continued and concluded in all respects as if such proceedings had been originally instituted before that Commission (m). (?) Where the decisions of the superior courts of England and Scotland were at variance upon points of law, the late Commissioners followed the English decisions in cases arising in England, and fire versa [Meiizie.i' C«se'^"). So also in matters of procedure {Macfarlanc x. K. M. Sy Co.^^^'). ()») As to the transfer of pending business from the superior Courts, see ante, p. 209. 228 CANALS. [Chap. VIII. CHAPTEE VIII. CANALS. Section I. — Control of Canals hij Railway Com- panies 228 ,, 11.^ — Canal Traffic generally 231 It is proposed in this chapter to deal with the pro- visions relating to canals contained in the Traffic Acts of 1854, 1873, and 1888. It will be found that these fall mainly under two heads — I. Provisions relating to the ownership or control of canals by railway com- panies ; II. Provisions relating to canal traffic and charges generally. Section I. — Control of Canals by Railway Companies. I. Condi- With regard to the ownership or control of canals trofof"™' '^y I'ailway companies, it is necessary to consider (1) the bracquimi Conditions under which such ownership or control may compaS be acquired, and (2) the law relating to canals where nSvict. ^^^^ ownership or control already exists. (1). The first c. r.^i, s. 3. enactment dealing with this branch of the subject is contained in an Act of 1858. The Act of 1845, by which canal companies were enabled to become carriers of goods, contained a provision empowering them to lease their tolls to any other canal or navigation com- pany for any period not exceeding twenty-one years (8 & 9 Vict. c. 42, s. 8). The Act of 1858 modified this provision by making it illegal for anj? canal company Sec. I.] CANALS. 229 which was also a railway company, to accept a lease of any other canal company's undertaking, or tolls, except under the authority of some Act in which the parties to the lease were specifically named (a). This pro- Agreements . . A n 1 11 . -, « between Vision was confined to leases, but by section 16 of the railway and ■^ canal com- Act of 1873, canal companies are forbidden, in the ?™'f-o-,-, absence of express statutory authority, to enter into any agreement whereby any control over the traffic, or rates, or tolls levied on any part of their canal is given to a railway company, or to any persons connected with the management of a railway, without the sanction of the Railway Commissioners, and the Commissioners are directed to withhold their sanction from any such agreement which is, in their opinion, prejudicial to the interests of the public. The section provides for notice of any proposed agreement being (a) advertised in the Gazette, (b) sent to all canal companies whose canals communicate with the canal of any company party to the agreement, and (c) published in any other way that the Commissioners may direct {aa) ; certified copies of the agreement are also required to be deposited for public inspection at the of&ce of the Commissioners, and with the Clerk of the Peace of the county in which the head office of any canal company party to the agree- ment is situate. It is further provided that the sanction of the Commissioners shall not be given until at least a month after the required notices and deposits have been given and made. Section 42 of the Act of 1888 Application ..,,(... /. '1 • j_ of railway restricts still further the power oi railway companies to companies . funds in acquire control over canals by making ifc illegal tor any acquisition railway company, or for any of its directors or officers, '^^^^f^.f^gg, without express statutory authority, to apply any part of the corporate funds towards the acquisition of a canal company's shares, or of any interest of any kind in a canal company or canal, or towards guaranteeing or repaying to any person, who has acquired any canal (a) 21 & 22 Vict. c. 75, a. 3, made perpetual by 23 & 24 Vict. c. 41. {aa) The directions of the Commissionera are contained in Rule 11 of the E. and C. C. Rules, (post, Appendix F). 230 CANALS. [Chap. VIII. 2. Where railway company already owns or controls canal. (a.) Repair of canals, s. U [1873]. ((..) Alter- ation in Canal charges by Commis- sioners, s. 38 [1888]. interest, the sums of money expended or liability- incurred by him in the acquisition of such interest. In the event of any contravention of this section, the "canal interest" purchased is to be forfeited to the Crown; the directors or officers, who have been party to the contravention, are liable to repay the sums applied by them and the value of the interest forfeited, and proceedings may be taken by any shareholder t& compel such repayment. (2.) With regard to the cases where a railway com- pany has already acquired ownership or control of a canal, two provisions — one relating to thephj'sical condi- tion of the canal, and the other to the charges in force upon it — require notice. Section 17 of the Act of 1873 imposes upon all railway companies owning or having the management of canals the duty of keeping them, together with all reservoirs, works, and conveniences, thoroughly repaired and dredged and in good working condition, and of preserving the water supplies, so that the canal may be at all times available for navigation (b). Section 38 of the Act of 1888 gives power to the- Commissioners to alter any of the charges in force on any canal controlled by a railway company, either directly or through any of its officers, when it is proved to their satisfaction that the charges are calculated to divert traffic from the canal to the railway, to the detriment of the canal or persons sending traffic over it or other canals adjacent to it. The powers given by this section can only be exercised upon the application of some person interested in the traffic on the canal, and the applicant must first obtain from the Board of Trade a certificate that the application is a proper one,^ and that he is a fit person to make it, and must give notice of the application to such persons and in such manner as the Board of Trade may direct. If the Commissioners think that a case is made out for their (J) As to what amounts to see Foster v. G. W. liy. Co.^ ' having the management " of a canal,. Secs. I.-II.] canals. 231 interference, they are authorised to make an order requiring the tolls, rates, and charges in force on the canal to be so altered and adjusted within a prescribed time as to be reasonable as compared with the rates and charges in force on the railway ; and if this order is not complied with, the Commissioners are em- powered to make such alterations in and adjustments of the canal tolls, rates, and charges as they shall think just and reasonable. Power is reserved to the Com- missioners to rescind or vary any order made by them under the section. Section II. — Canal Tkapeic generally. All the provisions of the Traf&c Act, 1854, and (with ^(P^'c™ the exception of sections 10 and 17-20) all the pro- ^^ai rom- visions of the Act of 1873 (c), apply to canal companies, p*''"'^- and by section 37 (3) of the Act of 1888 it is provided ' that " the provisions of the Railway and Canal Traffic Act, 1854, and the Eegulation of Railways Act, 1873, with respect to rates, shall apply to tolls and dues of every description chargeable for the use of any canal." The Act of 1888 consists of four parts (ante, p. 42). It is provided by section 23 that Part I. (Court and Procedure) is to apply to any canal company or railway and canal company ; Part III. relates exclusively to canals, and Part IV. (Miscellaneous) is of general application. With regard to Part II. (Traffic), sec- tion 36 provides as follows : — All the provisions of Part II. of this Act relating to any rail- way company shall, so far as applicable, apply to every canal company, and to every railway and canal company ; and in Part II of this Act, unless the context otherwise requires, the expression ■*' railway company " shall include a canal company and railway and canal company, and the expression " railway " (c) Section 10 provides for. the transfer to the Commissioners of the duties of the Board of Trade -with reference to the approval of working agreements and the exercise of steamboat powers hy railway companies (ante, pp. 204-6). Section 17 provides for the maintenance of canals by railway companies (ante, p. 230). Sections 18-20 relate to the conveyance of mails. Section 15, which gave the Commissioners power to determine the terminal charges of railway companies, is extended to canal companies by the Act of 1888, section 37"(1), (ante, pp. 206-7). 232 CANALS. [Chap. VIII. shall include a canal, and the expression "rate" shall include tolls and dues of every description chargeable for the use of any canal or by any canal company. It follows that what has been said in the preceding chapters of the rights and duties of railway companies, except in so far as these depend on the sections of the Act of 1873 above referred to, or on statutes other than the three Traf&c Acts, {e.g., the Eailways Clauses Act, 1845, the Eailways Eegulation Act, 1868, etc.,) or arise out of circumstances peculiar to the traf&c arrange- ments of railways, is applicable to canal companies. Thus, the right of each canal company to levy tolls and rates and other charges is derived from its special Act ; questions relating to any terminal charges, which they are entitled to make (where the amount has not been fixed by statute), are matters for the determination of the Commissioners, and their maximum charges are to be revised in accordance with the provisions of the Act of 1888 (Chapter II.) {d). Canal companies are also under obligations similar to those of railway companies with regard to traffic facilities (Chapter III.) ; through rates and tolls (Chapter IV.) ; undue preference (Chapter V.) ; publication and disintegration of rates and tolls (Chapter VI.). proTisions In addition to the above, the Act of 1888 contains, only to as we have seen, certain provisions applicable only to canals. . '- . canal companies ; those relating to through tolls and rates have already been noticed (ante, pp. 134-186). The general effect of the remaining provisions is to assimi- late the position of canal companies, as regards traffic and charges, still further to that of railway companies. 1. Clearing (1.) By Section 44 those companies, upon whose s. M [1888]. canals through tolls, rates, or charges are in opera- tion, may establish a clearing system, subject to regulations approved by the Board of Trade, and the provisions of sections 11-26 of the Eailway Clearing Act, 1850, (13 & 14 Vict. c. xxxiii,) are to apply to {d) The Board of Trade Kules -with reference to the revision of the maximum tolls, rates, dues, and charges on canals will be found at pp. 76-83 of the Appendix. Sec. II.] CANALS. 233 any canal clearing system when so established. (See Appendix A., p. 47.) (2.) By section 41 the Board of Trade are empowered 2. inapeo- to direct an inspection of a canal when they receive o™*'*. ... . . . . Ihiil.s. 41. mformation that its works are in such a condition as to be dangerous to the public, or to cause serious inconvenience or hindrance to traf&c ; and any person appointed by them to make such inspection is to have all the powers of an inspector appointed under the Railways Regulation Act, 1871. (84 & 35 Vict. c. 78, s. 4, see Appendix A., p. 45). (8.) By section 40 the validity of the bye-laws ofsye-iaws. canal companies is made dependent upon the approval of the Board of Trade (e). Copies of all existing bye- laws are to be forwarded to the Board by a date to be prescribed ; otherwise they cease to have any operation from such date {/). Future bye-laws are not to have any force u.ntil two months after copies have been forwarded to the Board of Trade, unless the Board signify their approval sooner ; and at any time the Board may notify to a canal company their disallowance of any existing or future bye-laws, and may make, rescind, and vary such regulations as they think fit with regard to the publication of bye-laws, or the publication by companies of their intention to apply to the Board for allowance of any proposed bye-laws. (4.) By section 39 every canal company is required, 4. Roturos under a daily penalty of £5 during default^ companies. (a) to send, on or before January 1st in each year, to the Registrar of Joint Stock Companies, a return stating the name of the company, a short description of the canal, the name of the principal officer, and the place of the principal office ; (&) to forward to the Board of Trade, whenever (e) This is already the case with regard to the hj'e-laws of railway com- panies by virtue of the Railways Regulation Act, 1849, and the Railways Clauses Act, 1845. (3 & 4 Vict. c. 97, s. 8 ; and 8 Vict. c. 20, s. 109.) (/) No date has as yet (March, 1889,) heen prescrihed by the Board of Trade, 234 CANALS. [Chap. VIII. required by them, (but not oftener than once a year,) returns, in a form prescribed by the Board, showing the capacity of the canal for traffic, and the capital, revenue, ex- penditure, and profits of the company ; (c) when any part of a canal is intended to be stopped for more than two days, to report to the Board of Trade the intended length of the stoppage, and to report again when the canal is re-opened. Abandon- (5) Provision is made by section 45 for the aban- ment of ^ ^ ^ '' mal' 45 donment of canals, which have become unnecessary or fallen into disuse, somewhat in the same way as the abandonment of railways is provided for by the Rail- ways Abandonment Act, 1850, (13 & 14 Vict. c. 83). The power of authorising the abandonment of a canal is entrusted to the Board of Trade, who may grant a warrant for the purpose whenever it appears to them, that a canal, or part of it, has become — (a) unnecessary ; or (b) derelict, i.e., (i.) has been disused for three years; or, (ii.) has become unfit for navigation by reason of the default of the proprietors ; or, (iii.) is out of repair, so that adjoining lands have suffered injury by water escaping from it, and the proprietors cannot or will not effect the necessary repairs. 1. rnnocc=. (a) In the case of an "unnecessary" canal, the saT-y canals, -' t ^ f 46(2) application must be made by the canal company, and, before granting a warrant of abandonment, the Board of Trade must be satisfied (i.) that the canal is un- necessary for the purposes of public navigation ; (ii.) that the appHcation has been authorised by a resolution of a majority of the shareholders of the company, present and voting at an extraordinary or special general meeting ; (iii.) that the requisite notices of the appli- cation have been given; and (iv.) that compensation b^s been made to all persons entitled thereto by reason Sec. 11.] CANALS. 235 of the proposed abandonment. In case of difference the amount of compensation is to be determined as the Board of Trade may prescribe, but the Act is silent as to what entitles a person to compensation {g). {b\ In the case of a "derelict" canal, the Board of 2. peieiict. Trade may make it a condition of granting their war- (3)-(6)." rant that the canal be transferred to some person, body of persons, or local authority, and in that case may frame a scheme for its management ; such scheme may be embodied in a Provisional Order, which the Board of Trade may submit to Parliament for confirmation. Where the Board of Trade grant a warrant of aban- Release of ° company donment, whether the canal is "unnecessary" or Jv™ "'^i'"'- •^ tics on aban- " derelict," they may, after due publication of such^™™™'"' grant, make an order releasing the company from ^^f^-,^-, liability to maintain the canal, and from all obligations in respect of it. The Board of Trade are further em- iwa. powered to require the applicants to furnish evidence, and they may at their expense appoint an ofScer to inspect the canal or obtain local evidence relative to the proposed abandonment. The Board may also make regulations with regard to the mode of making applications and the publication of notices, and generally as to the conduct of proceedings under the section. [g] The Kailways Abandonment Act, 1850, ^13 & li Vict. c. 83, ss. 20-22,) which was passed with reference rather to railways either not commenced, or only partially made, than to existing lines, contains special provisions with regard to compensation — (1) to persons who have agreed to sell, or have been served with notice to treat for the sale of lands ; (2) to persons who are parties to any contract for making or working the railway or otherwise relating thereto ; (3) in lieu of accommodation works ; (4) ia Ueu of keeping bridges in repair. 237 CHAPTER IX. PROCEDURE. PAGE Section I. — Introductory 237 ,, II. — Applications to the Commissioners: — (i.) Generally 239 (ii.) In particular proceedings . . 241 ,, in..— Answer of Defendant 250 ,, IV. — Beply and subsequent Pleadings . . 252 ,, V. — Proceedings before the Hearing . . 253 „ Yl.—The Hearing 256 ,, VII. — Miscellaneous 258 „Ylll.— Tables 260 Section I. — Inteodtjctoet. The Eules made by the Commissioners under the Act Practice 1*1 -\ 1 p substan- of 1888 for regmating the procedure before them do*'""? '■he same as not materially differ from the Orders made by the late f'^^^^ jg^. Commissioners under the Act of 1873, except in so far as alterations and additions have been rendered neces- sary by the wider jurisdiction conferred by the later Act. Provision is thus made for proceedings under sections 9 (enforcement of special Acts and statutory provisions relating to private sidings), 10 (determination of questions involving the legality of a company's charges), 33 and 34 (publication and disintegration of rates), 37 (terminals of canal companies), 29 (applica- tions hj companies as to the legahty of group or other - '^38 PROCEDURE. [Chap. IX. Damages. Appeals. Alterations in proce- dure. Arbltr.i- tlons. Dlsintegrn tion nf rates. Answer. Reply. Affidavit of serviee. Deposit of maps. rates), and 38 (alteration of charges on canals con- trolled by railway companies). (Eules 3, 9, 10, 13-15.) One of the most important additions to the powers of the Commissioners effected by the Act of 1888 is the power to award damages (section 12) ; this subject is dealt with by Eule 18, which allows defendants to pay money into court, either as an admission or with a denial of liabihty ; they may also claim to have all claims for damages dealt with by the Commissioners, even, it would seem, though no claim for damages is put forward by the appHcant. The practice of appeal- mg by special case is abolished by the Act of 1888, and appeals, as we have seen, (ante, p. 226) are to be made direct to the Court of Appeal {a), in conformity with the Eules of Court made by the authority having power to make Eules for such Court (section 17) {h) ; the sub- ject of appeals is, therefore, not dealt with in the- Commissioners' Eules. Amongst the alterations in matters of procedure, which the Eules of 1889 introduced, should be noticed the following (c). Applications under sections 8 and 9 of the Act of 1873 (references of differences) are to be for an order determining the difference, instead of an order to refer, or for permission to refer, the difference (Eules 4 and .5) ; an application for disintegration of a rate must be supported by an affidavit of interest (Eule 9) ; fifteen days are allowed for an Answer, and six for a Eeply , in the place often and four, and the original pleadings are to be filed with the Eegistrar, and a copy delivered to the opposite party, instead of vice ve.rsd as heretofore (Eules 26, 27) ; an affidavit of service of the Applica- tion is no longer necessary (as it was under Order 17 of the Orders of 1873) ; maps and other docu- ments required for explaining or supporting any pleading need not be left with the Eegistrar until (a) Court of Session in Scotland. (5) In England, the Rule Committee (44 & 45 Vict. u. 68, s. 19). {r) For a comparison between the Eules of 1889 and the General Orders of 1874, see the Comparative Table, post, p. 263, SeCS. I. -II.] PEOCEDTJEB. 239 six days before the day fixed for the hearing, in- stead of at the time of filing the Apphcation or Answer as hitherto (Eule 43) ; the Order authorising the Commissioners to require any pleading to be verified veriHcation . ^ •' -^ ^ of pleadings. by af&davit is not repeated (Order 24 of the Orders of 1873) ; and provision is made for discovery and produc- DiacoTery. tion of documents, and interrogatories (Eules 35-37), for views by one or more of the Commissioners (Eule view. 48) , and for granting and dissolving interim injunctions (Eule 84). Section II. — Applications to the Commissionees. (i.) Generally. Proceedings before the Commissioners are com- commence- ^ ment of menced by the applicant or complainant filing with the gj^ie^f'"^'"' Eegistrar a written or printed statement, called an Application (d). With regard to this the following Application, rules are to be observed : — (1.) The Application must be divided into para- contents. graphs numbered consecutively, and must contain (a) a clear and concise statement of the facts ; (6) the grounds of the applica- tion ; (c) the relief or remedy claimed. (2.) It must be signed — signature. (a) In the case of a private applicant — (i.) By the applicant, or (ii.) his solicitor (e). (b) In the case of a company or public body — (i.) By the chairman, or (ii.) manager, or (iii.) secretary, or (iv.) solicitor. (3.) It must be indorsed with the name and in<'<''^se- ^ ' ment of address of (a) the applicant, and (b) the R^'lri^' {d) In the Eules the word " application " is used in two senses. Firstly, as denoting the act of applying to the Commissioners, and secondly, as denoting the statement filed by an applicant. In this chapter, for the sake of distinction, the word, when used in the latter sense, is printed "Application." For form of Application, see Schedule I., Form No. 1. post, Appendix, p. 112. (e) "Solicitor" includes parliamentary agent (see section 51 of the Act of 1888, and Eule 1, post, Appendix, pp. 49, 88). B 2 •240 PEOCEDTJRE. [Chap. IX. Damages. Bule 18. Filing. Rules 19, 67. Indorse- ment of notice. Rule 20. Service. Rule 21. B.'iceptlons. Publication and disin- tegration of rates. Rule 9. solicitor acting in the matter (if any), and (c) the sohcitor (if any) for whom the acting sohcitor is agent. (4.) If the apphcant claims damages, he must state in his AppUcation the amount claimed, and the matter in respect of which such claim is made. (5.) The original Application, with three copies, must be left with the Eegistrar at the office of the Commissioners. If the apphcant does not reside in London, and has no solicitor or agent there, these documents may be sent by post (/). (6.) A copy of the Apphcation must be indorsed with a notice to the defendant to put in an Answer within fifteen days from the service thereof, and that in default the Commis- sioners may proceed to hear the application ex parte ; this indorsement must be sealed by the Eegistrar {g). (7.) The copy thus indorsed (i.e., with the indorse- ment of notice to the defendant to put in an Answer) must be served on the defendant. Service may be effected by leav- ing the copy with the manager, secretary, or chief clerk of the company or person against whom the application is made at their principal office, unless the solicitor has undertaken in writing to accept service Qi). The exceptions to the foregoing rules are as follows — (1) (2) (3) and (4). Proceedings under section 14 of the Act of 1873, and sections 33 and 34 of the Act of 1888 {i.e., proceedmgs relating to (/) A fee of £l is payaWe upon the filing of an Application. All fees are to be paid by stamps impressed iipon the proper forms, which are sold at the office of the Commissioners, at Somerset House, and at the Royal Courts of Justice ; also at the Inland Eevenue Offices in Edinburgh and Dublin. (See Schedule III., post, Appendix, p. 119.) {g) For form of Indorsement see Schedule I., Form 2, post, Appendix, p. 113. (A) The Rule is sjletit as to service upon the defendant himself, Sec. li.] tEocBDUBE. 241 the publication and disintegration of rates, post, Appendix, pp. 15-16, 39-40), may be commenced by a summons. Whether such proceedings may also be commenced by filing an AppHcation is not stated in the Eules {i). (5.) In cases under sections 10 and 16 of the Act SEii. of 1873 {i.e., appHcations for approval of working agreements between railway com- panies, and sanction of agreements between railway and canal companies), it is not necessary to leave copies of the Application with the Eegistrar. (6.) In proceedings under sections 8, 9, 10, and 19 \^^°l^' of the Act of 1873 (i.e., arbitrations, including ^^"''^''■ Post Office references, and applications for the approval of working agreements), it is not necessary to indorse a copy of the Application with a notice to the defendant to put in an Answer [j). (7.) In proceedings under sections 9 and 10 of|®™^''j- the Act of 1873 [i.e., arbitrations referred to the Commissioners by the consent of all parties, and applications for approval of working agreements), it is not necessary to serve the defendant with a copy of the Application. (ii.) In particular proceedings. The statement of the relief of remedy claimed by the Proceedings applicant necessarily varies with the nature of the imiform. application ; but in other respects the proceedings under the various enactments, which the Commissioners have jurisdiction to enforce, are, with few exceptions, uniform. (t) As to interlocutory proceedings, appeals from the Eegistrar, and applications to the Commissioners to review a previous decision, see Eules 52 and 63, post, Appendix, pp. 106, 107. (j) In proceedings under sections 9 and 10 no service of the Application is necessary, and in proceedings under sections 8 and 19 a special form of indorsement is piovided. (^See Rules -1 and 16, and Schedule I., Form 3.) 24^ PBOCBDUEE. [Chap. IX. 1. Undue Preference, etc. terenc^efetc. Where an applicant complains of a contravention s. 6 [1873]. ■ Qf (1) Section 2 of the Act of 1854, (i.) Traffic Facilities ; (ii.) Undue Preference ; or (2) Section 16 of the Act of 1868, Inequahty of treatment of passengers where railway companies work steam vessels ; or (3) Any provision of the Act of 1873, or of any amending Act, not otherwise expressly pro- vided for ; or s 9 [1888], (4) (^i.) Enactments in special Acts ; (ii.) Provisions in any Act relating to private sidings — Rules. ^]jQ Application must ask for an order enjoining the company complained of to do, or to desist from doing, the acts therein specified {h). (Eule 3.) 2. References of differences between railway and canal companies. Arbitra- gy section 8 of the Act of 1873 (as amended by tlons under .' \ j B. 8 [1873]. section 15 of the Act of 1888), differences between railway and canal companies, which are required or authorised, under the provisions of any Act or of an agreement confirmed or authorised by any Act, to be referred to arbitration, may, on the application of any company party to the difference, be referred to the Commissioners. Such differences, however, cannot be so referred — (i.) Without the consent of the Commissioners ; (ii.) If an arbitrator has been designated in any Act, without the consent of the parties ; {I) {k) See Schedule I., Form 1, post, Appendix, p. 112. (I) This seems to follow from the wording of sections 8 and 9 of the Act of 1873, though Rule 4 appears to point to the view that in this case, as in cases where a standing arbitrator has been appointed, the juris- diction of the Commissioners depends upon whether they consider the difference to he one which can more conveniently he referred to them- selves. Sec. II.] tBocEDUBE. 243 (iii.) If a standing arbitrator has been appointed under any Act, when the Commissioners are of opinion that the difference in question may more conveniently be referred to him. For Applications under this section a special form Buie *■ of indorsement is provided (Schedule I., Form 3), and the consent of the Commissioners to undertake the reference is to be signified by sealing this indorse- ment (_/]. The Application must state whether or not the case is one in which an arbitrator has been desig- nated in any Act, or in which a standing arbitrator has been appointed under any Act, and must ask for an order determining the difference in lieu of its being referred to arbitration. (Eule 4.) The procedure under the following enactments is to ^"'^ ^^■ be, as nearly as may be, the same as that directed in proceedings under section 8 of the Act of 1873, viz : — (i.) Section 19 of the Act of 1873 (differences Post-oHice. between a railway company and the Post- of&ce) . (ii.) Part 2 of the Board of Trade Arbitrations goard of ^ . Trade arbl- Act, 1874, (differences referred to the Com- Nations, missioners by the Board of Trade). (iii.) Sections 4 and 5 of the Telegraph Act, 1878, i'otT'* (differences under that Act generally). 3. References of differences to which a railway or canal company is a party. Under section 9 of the Act of 1873, any difference References \ '' under s. 9 to which a railway or canal company is a party may, [^*"^J- on the application of the parties to the difference and with the assent of the Commissioners, be referred to them for their decision. Applications under this Rules, section must be signed by all the parties or their solicitors, the order asked for must be one determining the difference, and the consent of the Commissioners is to be signified in the same way as in cases under (/) No further indorsement is required to be made on the co on tlie other party to the difference (Eule 20) . ^44 peoceDueb. [Chap. IX. section 8 {vide supra). It is not necessary for the applicant to serve a copy of the AppHcation on the other party or parties to the difference. (Bules 5, 21, and see post, p. 252.) 4. Approval of Working Agreements. I^e^mfntBT ^y section 10 of the Act of 1873, the powers of the s. 10 [1873]. Board of Trade with respect to the approval of working agreements between railway companies were trans- ferred to the late Commissioners (ni). The preliminary steps to be taken before applying to the Commissioners for approval of a working agreement, except in so far as these may be laid down in a special Act, are con- tained in Part III. of the Eailways Clauses Act, 1863, (as regards companies with whose special Acts that part of the Act of 1863 is incorporated), and Schedule IV. to the E. and C. C. Kules, 1889, (post. Appendix, pp. 119, 120). Preliminary In the first place, the sanction of the shareholders steps, ^ of each company has to be given to the proposed agreement at a special meeting, convened by circular addressed to each shareholder and by advertisement (sec- tion 23) . Notice of the intention of the company to enter into the agreement must be advertised three successive weeks (section 24), and at least 28 days from the date of the first advertisement must be allowed for bringing objections before the Commissioners, during the whole of which period a copy of the proposed agreement must be lodged at their office for inspection. (Schedule IV. to Eules.) Application When the Application for approval of the agreement approval, is filed, the following documents must be left at the office of the Commissioners : — (i.) The Act of Parlia- ment authorising the agreement ; (ii.) copies of the newspapers containing the notices of the intention of the companies to enter into the agreement ; (iii.) copies of the newspapers containing the advertisements conven- ing the special meetings of the companies at which the (m) As to how far those powers include the power of reTision, see ante, pp. 204, 205. Sec. II.] PEOCBDUEE. 245 agreement was assented to ; (iv.) copies of the circulars addressed to shareholders convening such meetings ; (v.) certificates signed by the chairmen at such meetings and the secretaries of the companies, stating that the agreement was duly assented to ; (vi.) the agreement, sealed by the companies (Schedule IV.). It is not necessary to leave copies of the Application with the Registrar, and no service of the Application is neces- sary. (Euies 19, 21.) 5. Through Bates. In applications for through rates, the proceedings Through differ according to whether the application is made by s.25i:i888]. a trader, or by a railway or canal company. In the former case (1) the notice of the proposed through rate, which has to be sent by the applicant to each for- warding company (n), need not contain any proposal with regard to the apportionment of the rate between the different companies ; (2) the applicant has first to complain to the Board of Trade under section 31 of the Act of 1888, and no application can be made to the Commissioners until such complaint has been heard. When the application is made by a company, no previous complaint to the Board of Trade is neces- sary, and the notice to the forwarding companies must state what apportionment is proposed (o). In either case the order asked for in the Application must be — (i.) Either that the proposed rate or route, (which- Euie/. («) The only definition or explanation of the term " forwarding com- pany " given in any of the Traffic Acts is that contained in section 37 (4) (post, Appendix, p. 42), as regards canal traffic. That section provides that ' ' Any company allowing traffic to pass from a canal on to any other canal or any railway, or from a railway on to a canal, shall he deemed to he a forwarding company, and the allowing of traffic so to pass shall be deemed to he the forwarding of traffic within the meaning of the above- mentioned Acts," i.e., the Traffic Acts, 1854 and 1873. This would seem to imply that in other cases a company is not a forwarding company for the purpose of through rates, unless it conveys the traffic, s.gr., a company owning a line over which another company exercises running powers, so far as relates to the traffic conveyed under auoh powers. But see the judgment of the late Commissioners in the Warwick Canal Case, (3R. &C. T. Ca., at p. 120). (.i) Sou section 25 of the Act of 1888, Appendix, pp. 32-3.5, and ante, pp. 116-120. 246 PEOCBDUEB. [Chap. IX. ever the defendant company objects to) or the rate and route (if both are objected to) may be allowed ; or Rules. (ii.) If the only question be as to the apportion- ment, that the apportionment proposed (if any) may be allowed, or that au apportion- ment be determined by the Commissioners. 6. Terminals, (p). Terminals Applications under section 15 of the Act of 1873, 1: 37 [1888]! (extended by section 37 of the Act of 1888 to the terminal charges of canal companies) must be for the Com- missioners to hear and determine the question or dispute, and to decide what is a reasonable sum to be paid in respect of the terminals in question. It is not necessary (as it was under the Orders of 1874) for the applicant to state what he contends the charges ought to be. (Rule 10.) 7. Sanction of agreements between railway and canal compajiies. Agreements Under section 16 of the Act of 1873 any agreement between i i rr- ^ railway and whereby any control over the trarac or charges on a companies, canal is given to a railway company, or to persons connected with the management of a railway, is (in the absence of express statutory authority) void, unless sanctioned by the Commissioners. That section pro- vides that not less than a month before the sanction of the Commissioners is given, certified copies of the intended agreement shall be deposited for public in- spection at their office, and with the Clerk of the Peace, and notice advertised in the Gazette and sent to companies owning adjacent canals (post, Appendix, p. 17). Rule 11 provides for advertisement of the notice three successive weeks in a local newspaper [q). (p) As to how far this branch of the jurisdiction of the Commissioners will exist after the revision of a company's maximum rates and charges under section 24 of the Act of 1888, see ante, pp. 92, 206-207. (q) For the form of notice, see Schedule I., Form 8, post, Appendix, p. 115. Sec. II.] PBOCBDUEB. 247 An Application under this section must be for the Commissioners to sanction the agreement in question, and their sanction is to be signified by a certificate under their seal. (Eule 11.) The Apphcation must be filed with the Begistrar, but it is not necessary to leave any copies with him. (Eule 19.) 8. Maintenance of canals by railway companies. In proceedings under section 17 of the Act of 1873, ^^^'^t to compel a railway company owning or having the i.™tvay'' management of a canal to maintain it in good working sl'ir^'cSrs]. condition, and to preserve the supplies of water, the order to be asked for in the Application is one restrain- ing the company from permitting the canal to remain out of repair, and also enjoining them to keep and maintain it in repair in the terms of the section. The Application must specify the obstruction, want of repair, or other defect sought to be remedied, and show in what part of the canal or works such obstruc- tion, want of repair, or other defect exists. (Eule 12.) 9. Legality of Charges. The Act of 1888 contains two provisions relating to Legality oi ^ " charges. the determination by the Commissioners of the legality ngssi"'^^ of charges. (1) Section 10 empowers them (i.) in general terms to hear and determine any question or dispute involving the legality of any toll, rate, or charge, and (ii.) to enforce payment. (2) Section 29 empowers them, upon application ynade to them by a railway or canal company, to determine whether a group rate, or any rate as to the legality of which there is a doubt, does or does not create an undue preference. In proceedings under section 10 the Application must i^uie 13. be for the Commissioners to hear and determine the question or dispute, and the parties may concur in stating such question or dispute in the form of a joint Application without further pleadings. The Eules, however, are silent as to the form of Application in 248 PEOCBDUEB. [Chap. IX- cases where a company seeks to enforce payment by themselves applying to the Commissioners, which it would appear to be open to them to do under the section (r). Ruieu. jjj applications under section 29, the company in their Application must state the nature of the doubt which is considered to exist, and where the rate in question is a group rate, must also state (i.) the amount of the rate ; (ii.) the names of the places grouped to- gether ; and (iii.) such distances as may be material for the purposes of the application (s) . The company before making the application must give one month's public notice of their intention by advertisement in at least one London and one local newspaper ; these advertise- ments must appear in each of three successive weeks, and must contain full particulars of the rate or rates in question (t). Alteration of canal 10. Alteration of Charges on Gajials. By section 38 of the Act of 1888 the Commissioners s!'38 P888]. are empowered in cases where a railway company, or their directors or officers, or any persons on their behalf have control over or right of interference in the traffic or charges on a canal, and the charges in force are calculated to divert the traffic from the canal to the railway, to the detriment of the canal or persons send- ing traffic over it or other canals adjacent to it, to make an order requiring the canal charges to be altered and adjusted in such a manner that the same shall be reasonable as compared with the charges on the rail- way, and, if such order be not complied with, to alter Ibid. and adjust the canal charges themselves. Before making an application under this section, the applicant (r) By section 18 of the Act oi 1888 the Commissioners, as respects the enioreement of their orders, are given all the powers of a superior court. (See ante, p. 221.) (s) These would ordinarily he the distances between the places grouped together, and the distances between such places and the places to or from which the rates are in force. (See ante, pp. 170, 176.) (i) As to applications to review decisions given under this section, see post, p. 258. Sec. II.] PROCEDUEB. 249 must obtain a certificate from the Board of Trade, and must give such notice of the application as that Board may direct. The Application must explain in what «uie is manner the existing canal charges are calculated to divert traffic from the canal to the railway, and (it would seem) in what manner such diversion is cal- culated to be detrimental to the canal or to persons sending traffic over it or other adjacent canals, and must state the amount and particulars of the alteration or reduction proposed. The order of the Commissioners may be on the railway company, or on their directors or ofiicers, or any person acting on their behalf having the control or right of interference mentioned in the ' section. (Rule 15.) 11. Publication and Disintegration of Bates, etc. (m). We have already seen that applications under Publication section 14 of the Act of 1873, or sections 33 and 34 of ^- ^risVs]?' SS 33 34 the Act of 1888, matj be made by summons (ante, p. 241). [isse]. In such cases the order asked for may be to require the company — (i.) To keep at their stations, wharves, or ports, '■ PuMca- a book or books of rates and distances, or other particulars required by those sec- tions ; or (li.) To allow inspection of such books ; or iion"^^''"" (iii.) To distinguish, in the books, charges for iii. Dismtc- conveyance from charges for other expenses, specifying the nature and detail of the latter. (Rule 9.) Where the application is for disintegration of a rate, the applicant must, at the time of taking out the summons, file an affidavit stating that he is interested in the matter, and showing how he is interested. It is to be noticed that both section 14 of the Act of ^J'Jj^^^j^J'™ 1873 and section 33 of the Act of 1888 contain pro- ^fssionors. vision for their enforcement by proceedings before («) These subjects are fully dealt with, m Chapter VI, 250 PROOBDUEE. [Chap. IX. justices, and a question may be raised as to whether, in accordance with the rule already explained, (ante, pp. 217, 218) such proceedings are not the only remedy open to an aggrieved party, except as regards applica- tions under section 14 for disintegration of rates (v). It is to be observed that the Eules appear to make no provision for enforcing section 33, sub-section 3, before the Commissioners (vv). Answer of defendant. Rule 26. Summons for par- ticulars. Section III.— Answer op the Defendant (w). When the applicant has filed his Application, and (subject to the exceptions already pointed out, ante, p. 241) left three copies of it with the Eegistrar, and served a copy on the defendant (a;), it becomes the duty of the defendant to file his Answer. This must be done within fifteen days from the service of the Application, unless a longer or shorter time be fixed by the Com- missioners {y). This interval is the proper time to apply for particulars, if the statement contained in the Application be not sufficiently precise or complete. Such apphcation must be made to the Eegistrar by summons, (see post, p. 255, and Eule 53), and the summons should ask that the time for filing the Answer may be extended, or proceedings stayed, until («) Even in these cases it may he that, although the application for disintegration must be made to the Commissioners, the remedy for non- compliance with their order is by proceedings before the justices. See, however, the decision of the late Commissioners in Perkins v. L. ^- N. W. Ry. Co., 1 R. c& C. T. Ca., 327. {m) The corresponding enactment in the Railways Regulation Act, 1868, (section 17) is not within their jurisdiction (see .lute, p. 189). (w) For the form of Answer see Schedule I., Form 4, post, p. 79. A fee of £1 is payable on filing. (x) Throughout the Rules the term " defendant " is used to denote the persons or company against whom the application or complaint is made, or any persons or authorities who may appear in opposition to such appli- cation or complaint (Rule 1, and see section 7 of the Act of 1888). (y) In references by the Board of Trade to the Commissioners under section .3 of the Cheap Ti-ains Act, 1883, the railway company must, on receiving notice from the Commissioners, file an Answer, within such time as they may order, to the allegations contained in the order of the Board of Trade refeiTing the matter (Rule 17.) As to the power of the Com- missioners or the Registrar, or of the parties by consent, to enlarge or abridge the time for delivering, amending, or filing any pleading or document, see Rule 66, Sec. III.] PROCEDURE. 251 after delivery of the particulars. (Compare E. S. C. Order 19, Eule 8.) With regard to the Answer, the following provisions Y°™ °' ^ ' ^ ^ Answer, &o. are to be observed : — (1.) It must be divided into para- E,"ie26. graphs numbered consecutively, and must contain a clear and concise statement of those facts which form the ground of defence, or of any other objections relied upon ; it may admit the whole or any part of the facts stated in the Application. (2.) It must be signed by the person actually making it, and who is acquainted with the facts stated therein. (3.) A signed copy must be delivered to the applicant or his solicitor. (4.) Like the Application (i.) it must be indorsed with the names and addresses of the defendant, his solicitor and agent ; (ii.) it must be filed with the Registrar; (iii.) three copies also must be left with the Registrar. If damages are claimed in the Application, it is open to the defendant to pay money into court, either as an Damages ■*- ^ ... and pay- admission, or with a denial of liabilif.y ; and Rules 2-7 ^^l™*" of Order 22 of the Rules of the Supreme Court, which '^^^^ is. regulate payment into and out of court in actions in the High Court (England), are made applicable to proceedings before the Commissioners {z). Payment into court may be made by a defendant before or at the time of delivering his Answer, or (by leave) at any later time. Even if damages are not claimed by the applicant, it is still open to the defendant, with a view of freeing himself from liability to other proceed- ings, to claim in his Answer (or, by leave, at any later time), that all claims for damages in respect of the matter complained of, (so far as it falls within the jurisdiction of the Commissioners,) shall be dealt with by them {a) . (z) The effect of these Rules is that if the money he paid into court as an admission of liability, or if the applicant accept the amount paid in satisfaction of his claim, he is entitled to have it paid out to him ; other- wise the money remains in court, and is not to he paid out except in pursuance of an order. (Post, Appendix, 116-118.) (ff) As to an award of damages by the Commissioners being in satis- faction of all claims, see section 12 of the Act of 1888, and ante, p. 216, 252 PEOCBDUEB. [Chap. IX. BiceptionB. Legality of eharges. Rule 13. Consent. Rule 26. Stay of pro- ceedings. Rules 22-24. ss, 9, 10 [1873]. KUlGS 5, C, .and 21. The exceptions to the foregoing rules with regard to the fihng and delivery of the Answer are as follows : — (1) In apphcations under section 10 of the Act of 1888 {i.e., to determine questions with respect to the legality of charges), the parties may concur in stating the question in the form of a joint Application without further pleadings. (2) In all cases the parties may by consent in writing dispense with all formal proceedings subsequent to the filing of the Application. (3) In certain cases the Commissioners have power to stay or suspend proceedings (post, p. 254). (4) Although not expressly so stated in the Eules, it would appear that in cases under section 9 of the Act of 1873 (references of differences to the Commissioners by consent of parties) and section 10 of the same Act (approval of working agreements), the applications being made jointly by all parties concerned, no Answer is required (&). Reply. Rule 27. Section IV. — Ebply and Subsequent Pleadings. Within six days from the delivery of the Answer, the applicant must file his Eeply (if any), at the same time leaving three copies with the Registrar and delivering one to the defendant or his solicitor (c). In his Eeply (J) This is to be inferred from tiese proceedings 'beiag excepted from the rule as to service of the Application upon the defendant (Rule 21). No Answer would likewise seem to be required in proceedings under section 16 of the Act of 1873 (sanction of agreement between railway and canal company), though there is nothing in the Eules to indicate this. It is to be noticed that in applications under section 9 the order asked for is not, as formerlj', for permission to refer, but one determining the differeiice ; it would appear, therefore, that the Application should contain a full state- ment of the difEerence and of the contention of each pai'ty. (c) A form of Reply is given in Schedule I., Form 5 (post, Appendix, p. 114). A fee of 23. 6d is payable on filing a Reply or any subsequent pleadiag. If the defendant faUs to put in an Answer, the applicant should apply to the Registrar to appoint a date for the heai-ing (post, p. 43), and the Commissioners may hear the application on the day appointed ex parte. (Rules 43, 44.) Secs. IV.-V.] procedure. 253 the applicant may object to the Answer as being insufficient (stating the grounds of objection), or may deny the facts stated therein, or may admit the whole or any part of such facts. If he does not deliver any Eeply, all material statements of facts Rule 29. in the Answer are deemed to have been denied and put in issue. No pleading subsequent to Eeply, other than a ioinder Headings /.. , iTT-.i,, -.. subsequent 01 issue, can be pleaded without leave, and masmuch '« ^<^^}]'y- as the non-delivery of a pleading (subsequent to the Answer) is equivalent to a denial of all material state ments of facts in the last preceding pleading, the delivery of a formal joinder of issue appears to be un- necessary in any case. If the Commissioners think that the pleadings do issues. not sufficiently raise the issues of fact in dispute, they may direct the parties to prepare issues, which are to be settled, in case the parties differ, by the Commis- sioners. They may also allow any pleadings to be Amenci- amended, or embarrassing matters to be struck out, at Ruieea any stage of the proceedings. V. — Proceedings before the Hearing. The Commissioners may, upon giving notice to the proJ'e^ifnT parties, hold a preliminary meeting at any time before ^uies 32-33. the hearing (e.g., to fix the place of hearing, to arrange for the admission or proof of certain facts, etc.), if it appear to them that such a meeting will be of advan- tage to the parties, and may thereupon make such order as shall seem to them fit under the circum- stances ; or they may, instead of holding such meeting, communicate with the parties in writing, and may require answers to such inquiries as they think fit to make. They may also, on the application of either I'oiut 01 party, order any. point of law raised by the pleadings to R"'<= si. be disposed of before the hearing, and if in their opinion the decision of such point of law substantially disposes of the whole application, they may order 254 PROCBDUEE. [Chap. IX. Suspension of proceed- ings. s. 7 [1878]. Bule 22. Rule 23. s. 3 [1854], Rule 24. Interroga- tories, Rule 36. that the argument shall be the hearing of the case, and grant or dismiss the application accordingly {d). In certain cases proceedings may be suspended by the Commissioners. (1.) By section 7 of the Act of 1873 they are empowered to communicate any applica- tion to the company against whom it is made, so as to afford them an opportunity for explanation ; in that case they are to give notice to the applicant within seven days from the fihng of his Application, and thereupon all formal proceedings are suspended until further notice from them. (2.) The Commissioners may also at any time require further information, or particulars, or documents from the applicant, and may suspend all formal proceedings upon the application until satisfied in this respect. (3.) The Commissioners may direct any inquiries (by engineers, barristers or others) which they may deem necessary to enable them to form a just judgment on the matter of the application, and may, on giving notice to the parties, stay proceedings in the meantime (e). In England and Ireland, interrogatories can be delivered by either party, but only by leave ; in the case of an applicant, they must not be delivered until after service of the Application ; in the case of a defen- dant, they may be delivered at or after the delivery of the Answer. They must be answered within ten days unless some other time is fixed, and if not sufficiently answered the party interrogating may apply for an order for a further answer. The affidavit in answer may be made partly by one person and partly by another, but a deponent must state that the matters stated by him are within his personal knowledge. No payment into court by way of deposit is required from the party interrogating. In Scotland, instead of inter- (d) Section. 5 of the Act of 1888 provides that not less than, three Commissioners shall attend at the hearing of any case, and that upon any question which in the opinion of the Commissioners is a question of law, the opinion of the ex officio Commissioner is to prevail. Rule 31 provides that the argument of a preliminary question of law shaU take place before not less than three Commissioners. (e) See section 3 of the Act of 1854, Sec. v.] peocedure. 255 rogatories, a party is allowed to present a statement of facts, and may apply by motion to the ex officio Commis- sioners for an order on his opponent to answer the same. The practice in England and Ireland with regard to aM J^g'Jo- the discovery and inspection of documents is similar to aoraments that in the High Court. (1.) Either party may apply m^'ss.st, for an order directing the other party to make an affi- davit of documents ; (2) the Commissioners may order the production of such documents in the possession of either party as they think right ; (3) either party may give notice to the other party to produce for his inspec- tion any document referred to in the pleadings of such other party, and if the latter does not comply, he is debarred from putting the document in evidence, unless he satisfy the Commissioners that he had sufficient cause for not complying. In Scotland the procedure Ruiess. is by an application to the ex officio Commissioner for an order for production of all documents in the posses- sion of the other party, or for a diligence to recover all documents, in whosesoever possession they may be. "Where not otherwise provided, interlocutory applica- Jj^appu'- tions are to be made by summons duly served, and are glne^aiir. to be heard by the Eegistrar, who is empowered to ^"'®^^- deal with them summarily, or to adjourn them into court for hearing before the Commissioners (/). An appeal lies from the decision of the Eegistrar, in matters involving questions of law, to the ex officio Commis- sioner, and in other matters to the Commissioners generally. The party appealing must either request the Eegistrar to indorse the appeal on the summons, or must, within four days after the decision complained of, (/) The summons should he made out on a form impressed with a Ss. stamp, and taken to the Registrar's office to be sealed. The Eules are silent as to the length of time between the service of a summons and its return, hut probably the Registrar would refuse to seal a summons if it did not allow a reasonable time, having regard to the places of residence of the parties or their solicitors or agents. There is. no provision in the Exiles as to service of summonses ; except, therefore, in cases where a party's solicitor undertakes to accept service, a summons should be served in accordance with the directions given for the service of an Application (see Rule 21). An order made on an interlocutory summons must be stamped with a 28. 6d. stamp, and if Counsel attend the application, a fee of 10b. is payable on each side. s 2 ibij PEOCEbURE. [Chap. IX. Exceptions, Kules 34, 36 Orders by consent. Eule 25, Interim injunction. Kule 34. give notice in writing to the Eegistrar and to the oppo- site party of his intention to appeal. An appeal from the Eegistrar is no stay of proceedings, unless so ordered. The exceptions to the rule that interlocutory appli- cations are to be heard by the Eegistrar appear to be (1) applications for an interim injunction, and (2) (in Scotland) applications for production of documents, or for an answer to a statement of facts ; these appli- cations must be made to the ex officio Commissioner. Orders by consent may be drawn up, and, if approved by the Commissioners (which, in the case of interlo- cutory orders, must be taken to mean by the Eegistrar) may be sealed with their seal (g). An interim injunction may be obtained at any stage of the proceedings, and application may be made at any time to dissolve an injunction so obtained. In either case the application must be made to the ex officio Commissioner; the mode of application is by motion, of which two clear days' notice must be given. Date of Ilea ring. lUile 4. VI. — The Hearing. There is no notice of trial to be given in proceedings before the Commissioners ; its place is taken by an application to the Eegistrar to fix a date for the hearing. This application may be made by the applicant (1) when he files his reply, or (2) if and when the defendant makes default in putting in his Answer, or (3) at any time after the pleadings are closed. If he does not apply within six weeks after the close of the pleadings, the defendant may do so. The party making the application must give two days' notice in writing to the opposite party, and if either of the parties fail to appear on the application, the other party must serve him with notice of the day appointed {h). (d) As to enlargement of time for delivering pleadings or other docu- ments by consent, see Rule 66. (A) The ordinary hearing fee is £1 ; as to the fees on hearings in the nature of arhitrations, see Third Schedule to the Rules, post, Appendix p. 119. E 0. VI.] PEOCEDUEB. 257 The parties must leave with the Eegistrar, six days Dcpoaitiiig 1-1 f 1 !• ■ documents. before the day fixed for the hearing, any documents ^"'e 43. {e.g., maps, plans, time tables, special Acts, etc.) which are referred to in the pleadings, or which (whether referred to or not) may be useful in explaining or supporting the pleadings. The hearing of a case must take place before three Thehearing. ° -^ Biilea 42, 44, Commissioners (ante, p. 224). The evidence is to be «• given viva voce, and the attendance of witnesses may be enforced by subpoena (i), but the Commissioners are empowered to admit evidence on af&davit, except where the other side bon& fide desire the production of a witness, who can be produced, for cross-examination. If the applicant does not appear, the Commissioners may dismiss the application, and if the defendant does not appear, and the Commissioners are satisfied that he has been duly served with notice of the hearing (j), they may hear the case ex parte. They may from time to time adjourn the proceedings, and if at any adjourn- ^enT™" ment the parties, or either of them, do not appear, the ^"'^^ **■ *'*• •Commissioners may decide the case in their absence. If the Commissioners think it desirable, a view may eui748. be had by one or more of them. The Commissioners may either give judgment at the Ru'Jf^^^so. termination of the case, or reserve their decision ; in the latter case, they may give their decision in writing, and it may be sent to the respective parties without any formal delivery of judgment in Court. By section 19 of the Act of 1888 (ante, p. 226) the ^oats.^^^^^ costs of and incidental to every proceeding before the Commissioners are in their discretion ; costs are to be Rule 51. taxed, if required, upon the order under which they are payable, by the Eegistrar or such other person as the Commissioners may direct. (i) Forms of subpoena are given in the First Schedule to the Eules, Forms 6 and 7, (post, Appendix, p. 114). (j) Such service only seems to be necessary when the defendant has not attended the application to fix a date for the hearing (Rule 43). Under the corresponding Order of the General Orders of 1874, the Commissioners had merely to be satisfied that the Application had been served on the defendant, before hearing the case in has absence. (G. 0. 33.) 258 PROCEDUKE. [Chap. IX. Alteration SectioH 18 of the Act of 1888 gives the Commis- or rescission of orders, sioners power to review and rescind or vary any order B. 18 |_1888J. • • 3 Rule 52. made by them. An application to review any de- cision must be made by motion, of which two clear days' notice in writing must be given to the Kegistrar and to the parties affected thereby. In interlocutory- applications the motion must be made within four days from the time of the decision being communicated to the parties, in other cases within twenty-eight days from such date (k). An exception to this rule is in cases under section 29 (3) of the Act of 1888, {i.e., appHca- cations to vary or rescind a decision with regard to the question whether a group or other rate creates an un- due preference), where the application may be made at any time after the making of the order (l). VII. — Miscellaneous. NoMoes^o Tjjg practice with regard to notices to admit and Ruie^sg 43. produce documents is the same as in the High Court ; the former affects the question by whom the cost of proving a document shall be borne ; the latter enables the party giving it to give secondary evidence of the con- tents of the documents if the originals are not produced. Affidavits. Af&davits, except in interlocutory applications, must Kulea 54, 56. -, ,. 1 n • 1 1 , 1 • be confined to such facts as the deponent is able to his own knowledge to prove (m). They must be filed in the of&ce of the Commissioners, and office copies may be obtained by application to the Registrar, on pay- ment of 6d. per folio. Amend- T]ie Commissioners are empowered to make all ments and ^ _ ^ 'ir"ti amendments necessary for determining the real ques- ' ■ (k) As two clear days' notice must te given, it is necessary for the- Appellant in these cases to give notice of motion on the day immediately after that on which the decision is communicated to him. The late Commissioners held that the date of the communication of a decision to a party was the date when the judgment was delivered or communicated to the party, and not the date when the order embodying the judgment or decision was received hy him. {Berry v. L., G., f D. My. Co.''^) (V) Another exception, though not speoiiied in the Kules, would appear to be applications to rescind or vary orders made under section 38 of the Act of 1888, (i.e., orders for the alteration or adjustment of charges on canals), which by sub-section 4 of that section may be made at any time. (m) As to the persons before whom affidavits maybe sworn, see Rule 65. Sec. VII.] PEOCEDUEB. 259 tions in controversy between the parties, and no pro- ceedings are to be defeated by any formal objection. The time appointed by any of the Rules, or fixed by Eniarge- any order, for doing any act or taking any proceedings, ^^^fi^^ may be enlarged or abridged by order of the Commis- ^y/ff' • sioners or Registrar, and an enlargement may be ordered although the application is not made until after the expiration of the time appointed is fixed. The time for delivering, amending, or filing any plead- ^^g™f '• ing or document may be enlarged by consent in writing of the parties, which must be left with the Registrar when the pleading or document is filed. With regard to documents which have to be filed in, service ana " ' delivery of or delivered at the Commissioners' office, the Rules S'"'™!?^?; ' Rules 21, 67. provide that, if the applicant does not reside in London, and has no solicitor or agent there, all pleadings and documents required to be sealed, filed, or delivered at the Commissioners' office (meaning, it is presumed, such as the applicant is required to have sealed, filed, or delivered) may be sent by post. In order to meet cases not expressly provided for in prortded'' the Rules, it is provided that the general principles of R^je es. practice in the " superior courts " may be adopted and applied at the discretion of the Commissioners to pro- ceedings before them, the practice to be so adopted being in each case that of the court of which the ex officio Com- missioner, who is dealing with the case, is a member. Whether a case is to be dealt with by the ex officio ^^^^ Commissioner of England, Scotland or Ireland, l^lfj. depends upon the part of the United Kingdom in which the defendant is domiciled or has his principal place of business or head office ; if there are more defendants than one, having their domicile or principal places of business or head offices in different parts of the United Kingdom, the Commissioners are to determine before which of the ex officio Commis- sioners the proceedings are to be taken. 260 •S 5ft to "S^ '§ s o rSi I' ■TS o >> „■*" p< 1 a -3 o^ . 1 IS <1 §S i ^3 8g 111 B 2 . -2g . 3S If 11.1 CD S CJ -^-gli ■|^§ Il'-S P Q ce P^" ' ' ti ^ r^ s &s^.-§s rt SS .=aig;3^^ S-J §1 o 4^ g o § ^ ^» § rt tH CD oi 5 il iJ h^ ft-o 3 o 5 . ■bI ^ S^ a ■?l O ^ 5,§ 0) Q, II 60 1 o o o OQ H PI 3 d a "? ^ ce tn M g te o is-s 1^ il g o i^erences as to weights, ^c] 102. \_Toll collectors to he liable for wrongful detention of goods.] [Sections 103 and 104 relate to frauds hy pasBengers.] briiT'mi/'"^ 105. No person shall be entitled to carry, or to require the dangerous company to carry, upon the railway, any aquafortis, oil of laiiwar*''^ vitriol, gunpowder, lucifer matches, or any other goods which Ante, p. 96. in the judgment of the company may be of a dangerous nature ; and if any person send by the railway any such goods without distinctly marking their nature on the outside of the package containing the same, or otherwise giving The Raihoays Clauses Consohaation Act, 1845. 7 notice in writing to the book-keeper or other servant of the company with whom the same are left at the tioie of so sending, he shall forfeit to the company twenty pounds for every such offence ; and it shall be lawful for the company to refuse to take any parcel that they may suspect to contain goods of a dangerous nature, or require the same to be opened to ascertain the fact. 106. [^Matters in possession or custody of toll collector to be delivered to company when required. Justices may order possession to be given.'] ***** And with respect to the provision to be made for affording ^™j^' '^j, access to the special Act by all parties interested, be it en- acted as follows : 162. The company shall at all times after the expiration Copies of of six months after the passing of the special Act keep in to bTkept their principal oifice of business a copy of the special Act, poj^itg^'and printed by the printers to Her Majesty, or some of them ; aUowed to shall also within the space of such six months deposit in the ^"J^p^^ifg ' office of each of the clerks of the peace of the several counties into which the works shall extend a copy of such special Act, so printed as aforesaid ; and the said clerks of the peace shall receive, and they and the company respec- tively shall retain, the said copies of the special Act, and shall permit all persons interested to inspect the same, and make extracts or copies therefrom, in the like manner, and upon the like terms, and under the like penalty for default, as is provided in the case of certain plans and sections by an & i vict.' Act passed in the first year of the reign of her present "■ 83. Majesty, intituled "An Act to compel Clerks of the Peace for Counties and other Persons to take the Custody of such Documents as shall be directed to be deposited with them under the Standing Orders of either House of Parliament." 163. If the company shall fail to keep or deposit, as here- Penalty on inbefore mentioned, any of the said copies of the special Act, famng°o they shall forfeit twenty pounds for every such offence, and keep or de- also five pounds for every day afterwards during which such copies. copy shall be not so kept or deposited. 164. And be it enacted, that this Act shall not extend to ^^f^ Scotland. Scotland. The corresponding Scotch Act is 8 & 9 Vict. c. 33. I Appendix: A. THE EAILWAY AND CANAL TEAPFIC ACT, 1854. 17 & 18 Vict. cap. 31. An Act for the letter Regulation of the Traffic on Railways and Canals.* [lOth July, 1854.J Whekeas it is expedient to make better provision for re- gulating the traffic on railways and canals : Be it enacted, as follows : "Board of 1- In the construction ol this Act "the Board of Trade" Trade." shall mean the Lords of the Committee of Her Majesty's Privy Council for trade and foreign plantations. "Traffic." The word "traffic" shall include not only passengers and Ante, p. 95. their luggage, and goods, animals, and other things conveyed hy any railway company or canal company, or railway and canal company, but also carriages, waggons, trucks, boats, and vehicles of every description adapted for running or passing on the railway or canal of any such company. 'Eaiiway." The word "railway" shall include every station of or Ante, p. 101. i,elonging to such railway used for the purposes of public traffic : and. Canal." The word "canal" shall include any navigation whereon tolls are levied by authority of Parliament, and also the wharves and landing places of and belonging to such canal or navigation, and used for the purposes of public traffic. "Company." The expression "railway company," "canal company," or "railway and canal company," shall include any person being the owner or lessee of or any contractor working any railway or canal or navigation constructed or carried on under the powers of any Act of Parliament. " stations." A station, terminus, or wharf shall be deemed to be near Ante, p. 108. another station, terminus, or wharf, when the distance between such stations, termini, or wharves shall not exceed one mile, such stations not being situate within five miles from St. Paul's Church, in London. Duty of 2. Every railway company, canal company, and railway railway ^nd caual company, shall, according to their respective powers, to make afford all reasonable facilities for the receiving and f orward- mentffor ^^S ^^^ delivering of traffic upon and from the several receiving railways and canals belonging to or worked by such com- ™raSg panies respectively, and for the return of carriages, trucks, traffic, mth- hoats, and other vehicles ; out unrea- a j i_ i n i • -i sonabie And no such company shall make or give any undue or delay, and unreasonable preference or advantage to or in favour of any * See ante, pp. 21-24. The Railway and Carnal Traffic Act, 1854. 9 particular person or company, or any particular description ^^"Vi of traffic, in any respect whatsoever, nor shall any such com- \^^(^^ tg^ pany subject any particular person or company, or any par- mand v. ticular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever ; And every railway company and canal company and railway and canal company having or working railways or canals which form part of a continuous line of railway or canal or railway and canal communication, or which have the terminus, station, or wharf of the one near the terminus, station, or wharf of the other, shall afford all due and reasonable facilities for receiving and forwarding all the traffic arriving by one of such railways or canals by the other, without any unreasonable delay, and without any such pre- ference or advantage, or prejudice or disadvantage, as afore- said, and so that no obstruction may be offered to the public desirous of using such railways or canals or railways and canals as a continuous line of communication, and so that all reasonable accommodation may, by means of the railways and canals of the several companies be at aU times afforded to the public in that behalf. This section is printed in the Act is a single paragraph ; as to the division here adopted, see ante, p. 96. 3. It shall be lawful for any company or person complain- Parties com- ing against any such companies or company of anything thafTreMon- done, or of any omission made in violation or contravention able facUi- of this Act, to apply in a summary way, by motion or sum- foraarding mens, in England to Her Majesty's Court of Common Pleas traffic, &0., at Westminster, or in Ireland to any of Her Majesty's held, may superior Courts in Dublin, or in Scotland to the Court of ^0^^^^, Session in Scotland, as the case may be, or to any judge of summona any such court; and upon the certificate to Her Majesty's J^^'^Jfo^fj^" Attorney-General in England or Ireland, or Her Majesty's Ante, pp. 24, Lord Advocate in Scotland, of the Board of Trade alleging ' ' any such violation or contravention of this Act by any such companies or company, it shall also be lawful for the said Attorney-General or Lord Advocate to apply in like manner to any such court or judge, and in either of such cases it shall be lawful for such court or judge to hear and deter- mine the matter of such complaint ; and for that purpose, if such court or judge shall think fit, to direct and prosecute, in such mode and by such engineers, barristers, or other persons as they shall think proper, all such inquiries as may be deemed necessary to enable such court or judge to form a just judgment on the matter of such complaint; and M it be made to appear to such court or judge on such hearing, or on the report of any such person, that any- thing has been done or omission made, in violation or con- travention of this Act, by such company or companies, it shall be lawful for such court or judge to issue a writ of iO Appendix A. injunction or interdict, restraining such company or com- panies from further continuing such violation or contravention of this Act, and enjoining obedience to the same ; and in case of disobedience of any such writ of injunction or interdict it shall be lawful for such court or judge to order that a writ or writs of attachment, or any other process of such court incident or applicable to writs of injunction or interdict, shall isbue against any one or more of the directors of any com- pany, or against any owner, lessee, contractor, or other person failing to obey such writ of injunction or interdict ; and such court or judge may also, if they or he shall think fit, make an order directing the payment by any one or more of such companies of such sum of money as such court or judge shall determine, not exceeding for each company the sum of two hundred pounds for every day, after a day to be named in the order, that such company or companies shall fail to obey such injunction or interdict ; and such moneys shall be payable as the court or judge may direct, either to the party complaining, or into court to abide the ultimate decision of the court, or to Her Majesty, and payment thereof may, without prejudice to any other mode of recovering the same, be enforced by attachment or order in the nature of a writ of execution, in like manner as if the same had been recovered by decree or judgment in any superior court at Westminster or Dublin, in England or Ireland, and in Scot- land by such diligence as is competent on an extracted decree of the Court of Session ; and in any such proceeding as aforesaid, such coiu-t or judge may order and determine that all or any costs thereof or thereon incurred shall and may be paid by or to the one party or the other, as such court or judge may think fit ; and it shall be lawful for any such engineer, barrister, or other person, if directed so to do by such court or judge, to receive evidence on oath relating to the matter of any such inquiry, and to administer such oath. 4. \J'U,dges empowered to make regulations for proceedings under the Aet.^ Eepealed by Traffic Act, 1888, B. 59. Ante, p. 98. 5. l^ Court or judge may order a rehearing. ~\ Repealed, ibid. Mode of 6. No proceeding shall be taken for any violation or con- miderMl travention of the above enactments, except in the manner Act. herein provided ; but nothing herein contained shall take Ante, p. 97, ^^^y j,j. (iiminigh any rights, remedies, or privileges of any person or company against any railway or canal or railway and canal company under the existing law. 7. [Liability of oompamies for neglect notwithstanding notice.'] Short title 8. This Act may be cited for aU purposes as "TheEail- way and Canal Trafiic Act, 1854." The Regulation of Railways Act, 1868. 11 THE REGULATION OF RAILWAYS AOT, 1868. 31 &32 Vicr. CAP. 119. An Act to amend the Law relating to Railways. [31st Jidy, 1868.J Be it enacted, as follows : Preliminary. 1 . This Act may be cited as the Regulation of Railways short title. Act, 1868. 2. In this Act — The term " railway " means the whole or any portion of J"^^"' a railway or tramway, whether worked by steam or terms, otherwise : The term " company " means a company incorporated, either before or after the passing of this Act, for the purpose of constructing, maintaining, or working a railway in the United Kingdom (either alone or in conjunction with any other purpose), and includes, except when otherwise expressed, any individual or individuals not incorporated who are owners or lessees of a railway in the United Kingdom, or parties to an agreement for working a railway in the United Kingdom : The term "person " includes a body corporate. 16. Where a company is authorised to build, or buy, or provision hire, and to use, maintain, and work, or to enter into *°^,^?S^°,? ' _'. '... ,. , equality oi arrangements tor using, maintaining, or working, steam treatment vessels for the purpose of carrying on a communication ^ay^oom?" between any towns or ports, and to take tolls in respect of pany works such steam vessels, then and in every such case tolls shall be vessels. at aU times charged to all persons equally and after the same ^te,pp.26, rate in reepect of passengers conveyed in a like vessel passing between the same places under like circumstances; and no reduction or advance in the tolls shall be made in favour of or against any person using the steam vessels in consequence of his having travelled or being about to travel on the whole or any part of the company's railway, or not having travelled or not being about to travel on any part thereof, or in favour of or against any person using the railway in consequence of his having used or being about to use, or his not having used or not being about to use, the steam vessels ; and where an aggregate sum is charged by the company for conveyance of a passenger by a steam vessel and on the railway, the 12 Appendix A. Company bound to furniah par- ticulars of chaises for goods. Ante, pp. 26 183, 188-189. Chaxee wlien two railways worked by one com- pany. ticket shall have the amount of toll charged for conveyance hy the steam vessel distinguished from the amount charged for conveyance on the railway. The provisions of the Railway and Canal Traffic Act, 1854, so far as the same a/re applicable, shall extend to the steam vessels, and to the traffic ca/rried on thereby. The clause in italics is repealed by section 59 of the Act of 1888, hut re-enacted and amended by section 28 of the same Act. 17. Where any charge shall have been made by a com- pany in respect of the conveyance of goods over their railway, on application in writing within one week after payment of the said charge made to the secretary of the company by the ' person by whom or on whose account the same has been paid, the company shall within fourteen days render an account to the person so applying for the same, distinguishing how much of the said charge is for the conveyance of the said goods on the railway, including therein tolls for the use of the railway, for the use of carriages, and for locomotive power, and how much of such charge is for loading and un- loading, covering, collection, delivery, and for other expenses, but without particularising the several items of which the last-mentioned portion of the charge may consist. 18. Where two railways are worked by one company, then in the calculation of tolls and charges for any distances in respect of traffic (whether passengers, animals, goods, carriages, or vehicles) conveyed on both railways, the distances traversed shall be reckoned continuously on such railways as if they were one railway. Compare section 91 of the Eailways Clauses Act, 1845, ante, p. 4. THE EAILWAY AND CANAL TEAFFIC ACT, 1873. 36 & 37 Vict. cap. 48. Bhoit title. An Act to make letter provision for ca/rrying into effect the Railway and Canal TVaffle Act, 1854, and for other purpose* connected therewith.f [21st July, 1873.] 1. This Act may be cited as the Eegulation of Eailways Act, 1873. Section 1 of the Traffic Act, 1888, provides that this Act, and the Acts amending it, and the Act of 1888, may be cited together as the KaUway and Canal Traffic Acts, 1873 and 1888. Sections 3 (part), i, 11, 12, 13, 21-25, 26 (part), 28, 29, 34 and 37 are repealed by the Act of 1888, section 59 and Schedule. t See ante, pp. 27-30. The sections of this Act, which are omitted here, are repealed by s. 59 of the Traffic Act, 1888, poet, p. 63. The Railway and Canal Traffic Act, 1873, 13 2. This Act shall, except as herein is otherwise expressly Commenee- provided, come into operation on the first day of September, mentof Act. one thousand eight hiiadrad and seventy-three, which date is in this Act referred to as the commencement of this Act. 3. In this Act — The term "railway company" includes any person being Deflnitioas. the owner or lessee of or working any railway in the United Kingdom constructed or carried on under the powers of any Act of Parliament : The term "canal company" includes any person being the owner or lessee of, or working, or entitled to charge tolls for the use of any canal in the United Kingdom constructed or carried on under the powers of any Act of Parliament : The term " person " includes a body of persons corporate Ante, p. 121. or unincorporate : The term "railway" includes every station, siding, wharf, or dock of or belonging to such railway and used for the purposes of public traffic : The term "canal" includes any navigation which has been made under or upon which tolls may be levied by authority of Parliament, and also the wharves and landing-places of and belonging to such canal or navigation, and used for the purposes of public traffic : The term "traffic" includes not only passengers and their luggage, goods, animals, and other things con- veyed by any railway company or canal company, but also carriages, waggons, trucks, boats, and vehicles of every description adapted for running or passing on the railway or canal of any such company : The term "mails" includes mail bags and post-letter bags : The term " special Act " means a local or local and per- sonal Act, or an Act of a local and personal nature, and includes a Provisional Order of the Board of Trade confirmed by Act of Parliament, and a certificate granted by the Board of Trade under the EaUways Construction Facilities Act, 1864 : The term " the Treasury " means the Commissioners of Her Majesty's Treasury for the time being. By section 55 of the Act of 1888, tlie atove definitions are made to apply to that Act. 4. \_Appointm,ent of Railway Commissioners. J Ante, p. 27. 5. Any person appointed a Commissioner imder this Act fi°l^not shall within three calendar months after his appointment ab- tobein- solutely sell and dispose of any stock, share, debenture stock, *aiiw^o? debenture bond, or other security of any railway or canal eamii stodt company in the United Kipgdom which he shall at the time "^'^' • 14 Appendix A, of his appointment own or be interested in for his own benefit ; and it shall not be lawful for any person appointed a Commis- sioner under this Act, so long as he shall hold office as such Commissioner, to purchase, take, or become interested in for his own benefit any such stock, share, debenture stock, deben- ture bond, or other security; and if any such stock, share, debenture stock, debenture bond, or other security, or any interest therein, shall come to or vest in such Commissioner by wUl or succession, for his own benefit, he shall within three calendar months after the same shall so come to or vest in him absolutely sell and dispose of the same or his interest therein. It shall not be lawful for the Commissioners, except by consent of the parties to the proceedings, to exercise any jurisdiction by this Act conferred upon them in any case in which they shall be, directly or indirectly, interested in the matter in question. The Commissioners shall devote the whole of their time to the performance of their duties under this Act, and shall not accept or hold any office or employment inconsistent with this provision. Transfer to 6. Any person complaining of anything done or of any rioMraof omission made in violation or contravention of section two of jurisdiotjon the Railway and Canal Traffic Act, 1854, or of section sixteen c.°3i!'s. 3. of the Regulation of Railways Act, 1868, or of this Act, or fs^'loo'sog' "■^ ^^^ enactment amending or applying the said enactments 214,' 220-2. ' respectively, may apply to the Commissioners, and upon the certificate of the Board of Trade alleging any such violation or contravention, any person appointed by the Board of Trade in that behalf may in like manner apply to the Commis- sioners ; and for the purpose of enabling the Commissioners to hear and determine the matter of any such complaint, they shall have and may exercise aU the jurisdiction conferred by section three of the Railway and Canal Traffic Act, 1854, on the several courts and judges empowered to hear and deter- mine complaints under that Act ; and may make orders of Uke nature with the writs and orders authorised to be issued and made by the said courts and judges ; and the said courts and judges shaU, except for the purpose of enforcing any decision or order of the Commissioners, cease to exercise the jurisdiction conferred on them by that section. The only enactment amending the enactments referred to is the Board of Trade Arbitrations, &c.. Act, 1874, Part II. (post, p. 20.) Power for 7. "Where the Commissioners have received any complaint sioners'" alleging the infringement by a railway company or canal to enable company of the provisions of any enactment in respect of to explain which the Commissioners have jurisdiction, they may, if they fadfn^of^"" tliink fit, before requiring or permitting any formal proceedings law. to be taken on such complaint, communicate the same to the Ante, p. 213. gQ^pany against whom it is made, so as to afford them an opportunity of making such observations thereon as they may think fit, flu. Railway and Canal Traffic Act, 1873. 15 8. Where any difference between railway companies or Daterenees between canal companies, or between a railway company and between „ „„„„! „ • T ii • • n 1 railway ana a canal company, is, under the provisions of any general or oanai oom- special Act, passed eitber before or after tbe passing of this \l^^^^ ^^ Act, required or authorised to be referred to arbitration, such to commis- difference shall, at the instance of any company party to the SI^pp- difiference and with the consent of the Commissioners be 200, 202-4. referred to the Commissioners for their decision in lieu of being referred to arbitration : provided that the power of compelling a reference to the Commissioners in this section contained shall not apply to any case in which any arbitrator has in any general or special Act been designated by his name or by the name of his office, or in which a standing arbitrator having been appointed under any general or special Act, the Commissioners are of opinion that the difference in question may more conveniently be referred to him. 9. Any difference to which a railway company or canal ^f™ a,^er- company is a party, may, on the application of the parties to enoes to the difference, and with the assent of the Commissioners, be Son^^' referred to them for their decision. Ante. pp. 200, 204. 10. The following powers and duties of the Board of Trade ^J^7_*° shall be transferred to the Commissioners ; namely, sioners of (1) The powers of the Board of Trade under Part ni. of "^^^^^i, the Railway Clauses Act, 1863, or under any special duties of the Act, with respect to the approval of working agree- T?ade.° ments between railway companies ; and, 26 & 27 (2) The powers and duties of the Board of Trade under lit, pp.^' section thirty-five of the Eailway Clauses Act, 1863, 201,205-6, with respect to the exercise by railway companies of their powers in relation to steam vessels : And the provisions of the said Acts conferring such powers or imposing such duties, or otherwise referring to such powers or duties, shall, so far as is consistent with the tenor thereof, be read as if the Commissioners were therein named instead of the Board of Trade. 11. \_ExplanaUon of 11 ^18 Vict, c, 31, s. 2, as to through ^^vv- traffic.'] See section 24 of the Act of 1888, post, p. 32. 12. \_Powers of Commissioners as to through rates.] oif^is'^iiB Ee-enacted by section 26 of the Act of 1888, post, p. 35. 13. l^Frovision for complaints hy public authority in certain cases.] See section 7 of the Act of 1888, post, p. 24. 14. Every railway company and canal company shall keep PubUoation at each of their stations and wharves a book or books show- " ™ *'' 16 Appendix A, 28'^af 2' ^^^ every rate for the time being charged for the carriage of 188. " ' traffic, other than passengers and their luggage, from that station or wharf to any place to which they book, including any rates charged under any special contract, and stating the distance from that station or wharf of every station, wharf, siding, or place to which any such rate is charged. Every such book shall during all reasonable hours be open to the inspection of any person without the payment of any fee. Ante, pp. Tiie Commissioners may from time to time, on the applica- ' ' " ■ tion of any person interested, make orders with respect to any particular description of traffic, requiring a railway company or canal company to distinguish in such book how much of each rate is for the conveyance of the traffic on the railway or canal, including therein tolls for the use of the railway or canal, for the use of carriages or vessels, or for locomotive power, and how much is for other expenses, specifying the nature and detail of such other expenses. Ante, p. 189. Any company failing to comply with the provisions of this section shall for each ofEence, and in the case of a continuing offence, for every day during which the offence continues, be liable to a penalty not exceeding five pounds, and such penalty shall be recovered and applied in the saniie manner as penalties imposed by the Railways Clauses Consolidation Act, 1845, and the EaUways Clauses Consolidation (Scotland) Act, 1845, (as the case may require,) are for the time being recoverable and applicable. This section is extended ty section 28 of the Traffic Act, 1888, to traffic by sea, "by section 37 (3) to the tolls and dues of canal companies, and hy section 34 to rates to and from places other than stations. Power to 15. The Commissioners shall have power to hear and deter- Soncra'to mine any question or dispute which may arise with respect to fix terminal the terminal charges of any railway company, where such Antef TO- charges have not been fixed by any Act of Parliament, and to 29, 63, 92, decide what is a reasonable sum to be paid to any company for loading and unloading, covering, collection, delivery, and other services of a like nature ; any decision of the Commis- sioners under this section shaU be binding on all courts and in all legal proceedings whatsoever. This section is made applicahle to the terminal charges of canal com- panies by section 37 (1) of the Traffic Act, 1888. Arrange- \Q, No railway company or canal company, unless ex- bSween pressly authorised thereto by any Act passed before the pass- conrnanies ^^S °^ ^^^ ^'^^t shall, without the Sanction of the Commis- and canal sioners, to be signified in such manner as they may by Ante,°re^'' general order or otherwise direct, enter into any agreement 30, 229. whereby any control over or right to interfere in or concern- ing the traffic carried or rates or tolls levied on any part of a canal is given to the railway company, or any persons paanaging or connected with the management of any rail- 206-7,231. Tlie Railway and Canal Traffie Act, 1873. 17 way ; and any such, agreement made after the commencement of this Act without such sanction shall be void. The Commissioners shall withhold their sanction from any such agreement which is in their opinion prejudicial to the interests of the public. Not less than one month before any such agreement is so sanctioned, copies of the intended agreement certified under the hand of the secretary of the railway company or one of the railway companies party or parties thereto, shall be de- posited for public inspection at the office of the Commis- sioners, and also at the office of the clerk of the peace of the county, riding, or division in England or Ireland in which the head ofiice of any canal company party to the agreement is situate, and at the office of the principal sherifi clerk of every such county in Scotland, and notice of the intended agreement, setting forth the parties between whom or on whose behalf the same is intended to be made, and such further particulars with respect thereto as the Commissioners may require, shall be given by advertisement in the London, Edinburgh, or Dublin Gazette, according as the head ofiice of any canal company party to the agreement is situate in England, Scotland, or Ireland, and shall be sent to the secretary or principal officer of every canal company any of whose canals communicates with the canal of any company party to the agreement ; and shall be published in such other way, if any, as the Commissioners for the purpose of giving notice to all parties interested therein by order direct. As to the directions of the Commissioners, see Rule H ol the R. and C.C. Rules, 1S89, (post, Appendix F). 17. Every railway company owning or having the manage- ^^^g^' ment of any canal or part of a canal shaU at all times keep oanais by and maintain such canal or part, and all the reservoirs, TOmpanies. works, and conveniences thereto belonging, thoroughly ^^{^^^^^ repaired and dredged and in good working condition, and ' ' shall preserve the supplies of water to the same, so that the whole of such canal or part may be at all times kept open and navigable for the use of all persons desirous to use and navigate the same without any unnecessary hindrance, inter- ruption, or delay. See Rule 12 of the R. and C.C. Rules, 1889, (Appendix F). 18. Every railway company shall convey by any train all otmaUs™* such mails as may be tendered for conveyance by such train, Ante, pp. whether such mails be under the charge of a guard ' appointed by the Postmaster-General or not, and notwith- standing that no notice in writing requiring mails to be conveyed by such train has been given to the company by the Postmaster-General. Every railway company shall afford all reasonable facilities for the recti ipt and delivery of mails at any of their stations without requiring them to be booked or interposing any other delay. 18 Appendix A. Remunera- tion for con- Teyance of mails. Ante, pp. 30. 205, 307. 1 & 2 Vict. c. 98, s. 16. Conveyance of mails on steam Orders of noinn.ia- sioners. Where the mails are in charge of a guard appointed hy the Postmaster-Greneral, every railway company shall permit suoh guard, if he think fit, to receive and deliver them at any station by himself or his assistants, rendering him nevertheless such aid as he may require. 19. Every railway company shall be entitled to reasonable remuneration for atiy services performed hy them in pursuance of this Act with respect to the conveyance of mails, and such remuneration shall be paid by the Postmaster-General. Any difference between the Postmaster-General and any railway company as to the amount of such remuneration, or as to any other question arising under this Act, shall be decided by arbitration, in manner provided by the Act of the session of the first and second years of the reign of her present Majesty, chapter ninety-eight, or, at the option of such railway company, by the Commissioners. See Rule 16 of the R. and CO. Rules, 1889, (Appendix F.) 20 Where a railway company use, maintain, or work, or are party to any arrangement for using, maintaining, or working steam vessels for the purpose of carrying on a com- munication between any towns or ports, all provisions contained in any Act with respect to the conveyance of mails by railway shall, so far as they are applicable to the con- veyance of mails by steam vessels, extend to the steam vessels so used, maintained, or worked. 21. [Assistant Commissioners.^ 22. [Salary of Commissioner s.~\ 23. [Assessors.'] 24. [Appointment of officers.'] 25. [Powers of Commissioners.] See section 18 of the Act of 1888. 26. Any decision or any order made by the Commissioners for the purpose of carrying into effect any of the provisions of this Act may be made a rule or order of any superior court, end shall be enforced either in the manner directed by section three of the Railway and Canal Traffic Act, 1854, as to the writs and orders therein mentioned, or in like manner as any rule or order of such court. For the purpose of carrying into effect this section, general rules and orders maj- be made hy any superior court in the same manner as general rules and orders may be made with respect to any other proceedings in such court. Sittings of Commis- .sioners. An'e, p. 2-4. 27. The Commissioners shall sit at such times and in such places and conduct their proceedings in such manner as may seem to them most convenient for the speedy despatch of business ; they may, subject as in this Act mentioned, sit either together or separately, and either in private or in open court, Tlie Railway and Canal Traffic Act, 1873. 19 but any complaint made to them shall, on the application of any party to the complaint, be heard and determined in open *^ *" companies which under the provisions of any general or special arbitration. Act is required or authorised to be referred to arbitration, the ^^J^^' provisions of any agreement confirmed or authorised by any ' such Act shall be deemed to be provisions of such Act. For s. 8 of the Eegulation of Railways Act, 1873, see ante, Appendix p. 15 ; see also s. 6 of the Board of Trade Arbitrations, &c.. Act, 1874, ante, p. 20. 16. — (1.) Where the Board of Trade or the Commissioners, I'o^erto . .1 ^ -^ • » . T, i . 1 apportion m the exercise ot any power given by any general or special expenses Act, on application order a company to which this part of raS^ay' this Act applies, to provide a bridge, subway, or approach, or company any work of a similar character, the Board of Trade or the ?Jnt8?or'' Commissioners, as the case may be, may require as a con- works. dition of making the order that an agreement to pay the whole or a portion of the expenses of complying with the order shall be entered into by the applicants or some of them, or such other persons as the Board of Trade or Commissioners think fit, and any of the following local authorities, namely, any sanitary authority, highway board, surveyor of highways acting with the consent of the vestry of his parish, or any other authority having power to levy rates, shall have power, if such authority think fit, to enter into any such agreement as is sanctioned by the Board of Trade or Commissioners for the purpose of the order. (2.) In such case any question respecting the persons by whom or the proportions in which the expenses of complying with the order are to be defrayed may, on the application of any party to the application, or on a certificate of the Board of Trade, be determined by the Commissioners. (3.) In this section the expression "parish" shall have the same meaning as the same expression has in the Acts relating to highways ; and the expression " the consent of the vestry of his parish" shall, in any place where there is no vestry meeting, mean the consent of a meeting of in- habitants contributing to the highway rates, provided that the same notice shall have been given of such a meeting as would be required by law for the assembling of a meeting in vestry. (1.) See note to s. 9. Ab to the power of local authorities to charge expenses incurred under his Act upon the rates, see s. 54, post, pp. 50-51. 28 Appendix A. certata^™ 17. — (1.) No appeal shall lie from the Commissioners upon questions to a question of fact, or upon any question regarding the locus ^mX°oi standi of a complainant. inSfpp. (2') ®^'^® ^® otherwise provided by this Act, an appeal shall 42 223, 225 6. He from the Commissioners to a superior court of appeal. Ante, p. 226. (3.) An appeal shall not be brought except in conformity with such riiles of court as may from time to time be made in relation to such appeals by the authority having power to make rules of court for the superior court of appeal. Ante, pp. (4.) On the hearing of an appeal the court of appeal may draw all such inferences as are not inconsistent with the facts expressly found, and are necessary for determining the ques- tion of law, and shall have all such powers for that purpose as if the appeal were an appeal from a judgment of a superior court, and may make any order which the Commissioners could have made, and also any such further or other order as may be just, and the costs of and incidental to an appeal shall be in the discretion of the court of appeal, but no Commissioner shall be liable to any costs by reason or in respect of any appeal. Ante, p. 227. (5.) The decision of the superior court of appeal shall be final : Provided that where there has been a difference of opinion between any two of such superior courts of appeal, any superior court of appeal in which a matter affected by such difference of opinion is pending may give leave to appeal to the House of Lords, on such terms as to coats as such court shall determine. (6.) Save as provided by this Act, an order or proceeding of the Commissioners shall not be questioned or reviewed, and shall not be restrained or removed by prohibition, in- junction, certiorari, or otherwise, either at the instance of the Crown or otherwise. (2.) For the meaning of "superior court of appeal," see section 55, post, p. 52. (3.) For tlie meaning of "rules of court" (Scotland), see section 55, post, p. 52. (4.) For the meaning of " superior court," see section 55, post, p. 52. Supplemental. General 18. — (1.) For the purposes of this Act the Commissioners eDf^rcement °^^^ have full jurisdiction to hear and determine aU matters of orders, whether of law or of fact, and shall as respects the attendance .w°*i97™2'2i *^ that the altered rates are to come into force on the date at hast fourteen days later than the date of the notice (Signed) Dated the day of 1889. Alteration of Rates. [The alterations must be stated in the manner which is most convenient, having regard to the nature and number of the rates and the manner in which it is intended to alter them.] - alter tolls or state a charges this should be stated. APPENDIX F. RAILWAY AND CANAL COMMISSION RULES, 1889, AND SCHEDULE OF FORMS AND TABLE OF FEES, MADE IN PURSUANCE OF THE EAILWAY AND CANAL TEAFFIC ACT, 1888 [51 & 52 Vict. c. 25. J THE EAILWAY AND CANAL COMMISSION EULES. General Etjles made by the Commissioners established under the Statute 61 and 52 Vict. c. 25, intituled "An Act for the better Eegalation of Eailway and Canal Traffic and for other purposes," for regulating the procedure and practice before them. 1. In the construction of these Eules and the Forms herein interpreta- ref erred to, words importing the singular number shall f^°^ include the plural, and words importing the plural number shall include the singular number, and the following terms shall (if not inconsistent with the context or subject-matter) have the respective meanings hereinafter assigned to them ; that is to say, " application " shall include complaint under the Eailway and Canal Traffic Act, 1854, and the Eailway and Canal Traffic Acts, 1873 and 1888; "applicant" shall include all persons or authorities authorised to make any 88 Appendix F. application or complaint to the Commissioners ; " defendant " stall mean the persons or company against whom the application or complaint is made, or any persons or autho- rities who may appear in opposition to such application or complaint ; " solicitor " shall include any person entitled under Section 51 of the Railway and Canal Traffic Act, 1888, to practise as an attorney or agent in proceedings before the Commissioners ; and terms defined by the Railway and Canal Trafiic Acts, 1873 and 1888, shall, unless there be something repugnant thereto in the context, have, in these Rules, the same meanings that are assigned to them by those Acts. By section 51 of the Act of 1888 parliamentary agents, who "were in practice as such for two years before the passing of that Act, and whose names have been entered in the roll kept for that purpose, are entitled to practise before the Commissioners (ante. Appendix, p. 49). The terms defined by the Acts of 1873 and 1888 are— [1873] " railway company," " canal company," " person," " railway," " canal," •'trafEo," "mails," "special Act," " the Treasury,""[1888] "con- servancy authority," "harbour board," "Lord Chancellor," "undue preference," "terminal charges," "merchandise," "trader," "home," "rating appeal," "Summary Jurisdiction Acts, " "superior court," " superior court of appeal," "rules of court," " council of a borough (Ireli.,nd)." (See section 3 of the Act of 1873, and section 55 of the Act of 1888, ante. Appendix pp. 13 and 51-52.) Application or Complaint to the Commissioners. Proceedings 2. Every proceeding before the Commissioners, except Ti°ence™and proceedings under Section 14 of the Regulation of Railways formof' Act, 1873, and Sections 33 and 34 of the Railway and Canal gmeraiiy." Traffic Act, 1888, and applications under Rules 53 and 54 of these Rules, shall ba commenced by an application made to them, which shall be in writing, or printed, and signed by the applicant or his solicitor, or in the case of a company or any of the authorities mentioned in Section 7 of the Railway and Canal Traffic Act, 1888, being applicants, the application shall be signed by their chairman, manager, secretary, or solicitor. It shall contain a clear and concise statement of the facts, the grounds of application, and the relief or remedy to which the applicant claims to be entitled. It shall be divided into paragraphs numbered consecutively. It shall be indorsed with the name and address of the applicant, and if there be a solicitor acting for him in the matter, with the name and address of such solicitor, and if he be an agent for another solicitor in the matter, then also the name and address of such other solicitor. The application shall be according to Perm No. 1 in the First Schedule hereto, or to the like effect. Section 14 of the Act of 1873 and sections 33 and 34 of the Act of 1888 have reference to the publication and disintegration of rates, and the inspection of rate -books and classifications (ante. Appendix, pp, 15-16, 39-40). Apphoations under those sections are regulated by Rule 9, post. Railway and Canal Commission Rules, 1889. 89 For section 7 of the Act of 1888, see ante, Appendix, p. 24. Rule 53 reffrs to interlocutory applications, and Rule 54 to affidavits; possibly the Rules intended to be excepted are Rules 52 and 53, the former of which refers to applications to rescind or vary decisions of the Commiasioners, and provides that such applications shall be made by motion . Every Application must be impressed with a £1 stamp. 3. Every application made to the Commissioners under Section 6 of the Eegulation of Eailways Act, 1873, or Section 9 of the Eailway and Canal Traffic Act, 1888, shall be for an order enjoining the company complained of to do or to desist from doing the acts therein specified. For section 6 of the Act of 1873, see ante. Appendix, p. 14; for sec- tion 9 of the Act of 1888, see ante. Appendix, p. 25. 4. Every application made to the Commissioners under Section 8 of the Eegulation of Eailways Act, 1873, shall be for an order determining the difference referred to them (with their consent) in lieu of being referred to arbitration, such consent to be signified by sealing the indorsement on such application ; which indorsement shall be according to Form No. 3 in the First Schedule hereto. The applicant shall state whether or not it is a case in which any arbitrator has in any general or special Act been designated by his name or by the name of his office, or in which a standing arbitrator has been appointed under any general or special Act. For section 8 of the Act of 1873, see ante. Appendix, p. 15. Under the former practice the order asked for was an order " to refer the diffe- rence to the Commissioners for their decision, in lieu of being referred to arbitration." The section is amended by section 15 of the Act of 1888, (ante, Appendix, p. 27). 5. Every application made to the Commissioners under Section 9 of the Eegulation of Eailways Act, 1873, shall be signed by all the patties to the difference, or their solicitors, and shall be for an order determining the difference referred to the Commissioners (with their consent). The consent of the Commissioners shall be signified as aforesaid. For section 9 of the Act of 1873, see ante. Appendix, p. 15. The final words of this Rule, "as aforesaid," appear to refer to Rule 4, i.e., the consent of the Commissioners to undertake the reference is tobe signified by sealing the Application. The form of endorsement, however, pre- scribed by Rule 4 (No. 3 in the First Schedule) does not appear to be applicable to oases under this Rule, since Applications under this Rule do not requiie to be served. (See Rule 21.) Under the former practice the Application asked for " permission to refer the difference to the Com- missioners tVr their decision." 6. Every application made to the Commissioners under Section 10, Sub-section 1, of the Eegulation of Eailways Act, 1873, shall be for the approval by the Commissioners of any working agreement between railway companies, whereof G 3 90 Appendix F. RestrictionR on agree- ments be- tween com- panies. they desire to have the Commissioners' approval, or shall be for the exercise of any other powers (to be specified in the said application) transferred by the said Sub-section to the Commissioners with respect to the approval of working agreements.* By section 10, Bub-seotion 1, of the Act of 1873, (post, Appendix, p. 15) the powers of the Board of Trade under Part III. of the Railway Clausfs Act, 1863, or under any special Act, with respect to the approval of working agreements between railway compiniea, are transferred to the Commiesionera. As to how far these powers include the revision of agree- ments, see ante, pp. 204, 205. Part III. of the Railways Clauses Act, 1863, which applies only to companies in whose special Act it is incorporated, is as follows : — PaET III. — WoKKINa AOBEEMBNTS. 22. Where two or more companies are authorised by a special Act here- after passed and incorporating this part of this Act, to agree among themselves with respect to all or any of the following purposes ; namely, — The maintenance and management of the railways of the companies respectively, or any one or more of them, or any part thereof respectively, and of the works connected therewith respectively, or any of them ; The use and working of the railways or railway, or of any part thereof, and the conveyance of traffic thereon ; The fixing, collecting, and apportionment of the tolls, rates, charges, receipts and revenues levied, taken, or arising in respect of traffic : — then and in every such case the authority so to agree, or the agreement when entered info, shall not in any manner affect any of the tolls, rate? or charges which the companies pariies thereto are from time to time respectively authorised to demand and receive from any person or from any other company ; but all such persons and companies shall, notwith- standing the agreement, be entitled to the use and benefit of the rail- ways of the several companies paities to the agreement, on the s^me lerms and conditions, and on payment of the same tol's, rates, and charges as they would he if such authority had not been given, or the agreement had not been entered into. Sanction of 23. The agreement shall not, save so far as its terms and conditions are shareholder authorized by "The Railways Clauses Consolidation Act, 184.5," or by menir^" " '^'^^ Railways Glauses ContoKdation (Scotland) Act, 1845," as the case may lequire, een withdrawn or settled, the applicant shall immediately withdrawn thereupon give notice thereof to the Eesistrar. or settled. r o o Attendance 42. The attendance of witnesses with or without documents of witnesses, gj^^jj |jg enforced by subpoena which may be sued out by either party requiring the attendance of such witness. Such subpoena shall be according to Forms No. 6 or 7 in the First Schedule hereto, and shall be sealed by the Registrar with the seal of the Commission, and may be served in any part of the United Kingdom. The witnesses shall be entitled to the same protection as when subpoenaed or cited to attend a superior courf, and the laws and practice in force for the time being relating to witnesses in a superior court shall apply to them in proceedings before the Commissioners. Section 18 of the Act of 1888 (ante, Appendix, p. 28), gives the Com- missioners the same powers, as respects the attendance and examination of witnesses, as are vested in u superior court. For forms of subpoena, see post, p. 114. Every subpoena must be impressed with a 2s. 6d. stamp (post, p. 118). The Rules do not state how many witnesses may be included in a subpoena ; in the High Court (England) not more than three persons may be included in one suhpcena duces tecum, and although more than three may be included in a subpcena ad testificandmn, a further fee is pay- able when this is done (B,. S. C. Order 37, Rules 29 and 30, and Order as to Supreme Court Fees, 1884). Appointing Date of Searing. fo^'flx'dateof ^^ ^^® applicant, at the time of filing his reply (if any), hearing. or if the defendant make default in putting in his answer, or at any time after the pleadings are closed, may apply to the Registrar to fix a date for the hearing. If the applicant does not within six weeks after the close of the pleadings, or within such extended time as the Commissioners may allow, apply to the Registrar to fix a date for the hearing, the defen- dant may do so. No such application shall be made without two days' previous notice in writing to the opposite party. If either of the parties fail to appear on the application to fix a day for hearing, notice of the day appointed shall be served within a time to be named by the Registrar, Railway and Canal Commission Rules, 1889. 105 The parties shall leave with the Registrar, six days hefore Depositing the day fixed for the hearing, any maps, plans, time-tables, ™»p^. P™'> and special Acts or other documents referred to in the applica- tion, answer, reply, or other pleading, or which may be useful in explaining or supporting the same. Under the former practice explanatory documents had to be deposited at the time of filing the Application or Answer. ITie Hearing. 44. If the applicant does not appear at the time and place Power appointed for the hearing, the Commissioners may dismiss "foneraTo' the application, and if the defendant does not appear at such proceed ex time and place, and the Commissioners are satisfied that the ^^'^ ^' notice of the hearing was duly served, they may hear and determine the application ex parte, and if at any adjournment of the hearing the parties or either of them do not appear, the Commissioners may decide the case in their absence. Evidence at the Hearing. 45. The witnesses at the hearing shall be examined viva To be vim voce, but the Commissioners may at any time, and whether I'n^eertato^'' before or at the hearing, for sufficient reason order that any ""v^fi ^"^ particular facts may be proved by affidavit, or that the before or at affidavit of any witness may be read at the hearing on such *''^ iiearmg. conditions as they may think reasonable, or that any witness, whose attendance ought for some sufficient cause to be dis- pensed with, be examined by interrogatories or otherwise before a person to be appointed by them for that purpose, provided that when it appears to the Commissioners that the other party hand fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit. Depositions taken before a person authorised to take them may be read at the hearing without calling the deponents, unless the Commissioners otherwise order. 46. The Commissioners may require further evidence to be Commis- given either viva voce, or by aflidavit, or by deposition taken require ™^^ before a person appointed by them for that purpose. further ^ ^i^ ^ jr jr evidence. 47. The hearing of the case when once commenced shall Hearings to proceed, so far as in the judgment of the Commissioners dayTo day"." may be practicable and convenient, from day to day. 48. In any case in which, in the opinion of the Com- Power of missioners, a view is necessary or desirable, it maybe had by SoMra^to one or more Commissioners as they may direct. vIctt. 106 Appendix F. Judgment of Commissioners. Judgment 49. After hearing the case the Commissioners may dismiss sioneS!"'^' the application, or make an order thereon in favour of the defendants, or reserve their decision, or make such other order upon the application as may be warranted by the evidence, and may seem to them just. May be in 50. The Commissioners may give their decision in writing, sent'OT ™ signed by them, and it may be sent or delivered to the delivered to respective parties, and it shall not be necessary to hold a court the parties. ■^in-Si ' ji ■ ■ t,j-- merely tor the purpose oi giving such decision. Costs. Costs, how 51. Costs shall be taxed upon the order of the Commis- taxed. sioners under which they are payable, and such costs shall, if required, be taxed by the Registrar or such other person as the Commissioners may direct. By section 19 of the Act of 1388 (ante, Appendix, p. 29), the costs of and incidental to every proceeding before the Commissioners are to be in their discretion. The late Commissioners frequently allowed a party a fractional proportion of his costs, where they did not think that the other side ought to be called on to pay full costs, Alteration or Rescission of Orders. Alteration 52. Any application to the Commissioners torevie«rand or rescission •! t • • -i .i ii of orders, rescmd or vary any decision or order previously made by them, and not being a decision or order upon an interlocutory application, nor under Eule 14 of these Rules, shall be made within 28 days after the said decision or order shall have been communicated to the parties unless the Commissioners think fit to enlarge the time for making such appHcation. Any application to the Commissioners to review and rescind or vary any decision or order previously made by them upon an interlocutory application shall be made within four days after the said decision or order shall have been communicated to the parties, unless the Commissioners think fit to enlarge the time for making such application. Every application under this Eule shaU. be made by motion; and no such motion shall be made without two clear days' previous notice in writing to the Registrar and to the parties affected thereby. Section 18 of the Act of 1888 (ante. Appendix, p. 29) gives power to the Commissioners to review and rescind or vary any order made by them. Rule 14 refers to applications by a company upon the question of the legality of a group or other rate ; in such ca-res section 29 (3) of the Act of 188'J (ante, Appendix, p. 37) provides that an application to vary or rescind a decision of the Commissioners may be made at any time after the making of the order. An application to dissolve an interim in- junction may be made at any time. (Rule 34). It would also appear Raitwa/y and Canal Commimon Rules, 1889. 107 that application' to reaoind or vary an order made under section 38 of the Act of 1888 for the alteration of charges on a canal, are an exception to the general rule here laid down. (See ante, Appendix, p. 43). Applications under this Rule are an exception to the general rule that every proceeding shall be commenced by a written Application. (See note to Rule 2.) As to the former practice, see Great Western Railway Company v. Severn and Wye Railway Gompamy, 5 R. & C T. Ca., at p. 187. The late Commissioners refused to rehear a matter merely on the question of costs. (Sammans v. Great Western Railway Company, 4 R. & C T. Ca. 181.) Interlocutory Applications. 53. Where not otherwise provided for in these Eules, all interiocu- interlocutory applications shall, unless otherwise specially eatfoiS'' '" ordered, be heard by the Eegistrar upon summons duly served, and may be determined in a summary way. Such application may, if the Eegistrar thinks fit, be adjourned, either before or at the time of hearing before him, into court for hearing before the Commissioners. Any person affected by any order or decision of the Eegis- trar in any matter involving questions of law may appeal therefrom to the ex officio Commissioner, and in any other matter to the Commissioners. Such appeal shall be by way of indorsement on the summons by the Eegi&trar at the request of any party or by notice in writing to attend before the Commissioners without a fresh summons. Such notice shall be given to the Eegistrar and to the opposite party within four days after the decision complained of, or such further time as may be allowed by the Eegistrar or by the ex officio Commissioner, or the Commissioners. An appeal from the Eegistrar's decision shall be no stay of proceedings unless so ordered by the Eegistrar or by the ex officio Commissioner, or the Commissioners. As to when a summons should be made returnable, see ante, p. 255, note. Affidavits. 54. Affidavits shall be confined to such facts as the witness Affidavits, is able of his own knowledge to prove, except on interlocutory tow framed. proceedings, on which statements as to his belief with the grounds thereof may be admitted. The costs of every affidavit which shall unnecessarily set forth matters of hear- say or argumentative matter or copies of or extracts from documents shall be paid by the party using or filing the same. This Rule is identical with R. S. C, Order 38, Rule 3. 55. Any affidavit used in any proceeding before the Com- Before . . •' 1 J! n whom missioners may be sworn as follows : swom. In the United Kingdombefore any of the said Commissioners or the Eegistrar, or the officer appointed by the Commissioners to administer oaths in proceedings before them (and in these cases without the payment of any fee), or before a person 108 Appendix F. authorised to administer oaths in any of the superior courts, or before a commissioner empowered to take or receive afladavits, or before a justice of the peace for the county or place where it is sworn or made. In Scotland, in addition to the above-mentioned persons, before any sheriff-depute or his substitute or a justice of the peace. In any place in the British dominions out of the United Kingdom, before any court, judge, or justice of the peace, or any person authorised to administer oaths there in any court. In any place out of the British dominions, before a British minister, consul, or vice-consul. The Commissioners shaU take judicial notice of the seal or signature, as the case may be, of any such court, judge, minister, consul, or vice-consul attached, appended, or sub- scribed to any such affidavit. fn^^Tto' ^^" ■^^ cases. ' See note on p. 116. Railway and Canal Oommission Rulen, 1889. 119 Table of 'P^'&s.- -{Continued.) Every comraiasion to take evidence Every hearing in the nature of an arhitra- tion between railway companies, or canal companies, or between railway companies and the Postmaster-General under the Regulation of Railways Acts, 1S73 and 1874, or either of them, each day or a part of a day Every decision of such difference . . Every hearing in the nature of an arbi- tration , one of the parties being other than a railway company or canal com- pany, each day or part of a day Every decision of such difference . . Note. — The fee for hearing is to be paid on each day by the party whose case is then being heard, unless the Commissioners other- wlbe order £ 8. A. 1 15 15 5 5 5 5 2 2 ( Fees on com- I missions. Fees on hear- ings in the nature of ar- bitrations. All fees shall be paid by stamps impressed on the forms applicable to the various forms respectively, which shall be sold in London at the office of the Commissioners, West Front Committee Rooms, House of Lords, S.W. ; at the Inland Revenue Office, Somerset House ; and at the Branch Office, Royal Courts of Justice. In Edinburgh, at the Inland Revenue Office, Waterloo Place ; in Dublin, at the Inland Revenue Office, Custom House ; and at such other places as the Inland Revenue Department may determine. FOURTH SCHEDULE. Directions of the Railway and Canal Commissioners relating to Working Agreements between two or more Railway Companies. 1. Care should be taken that at least 28 days from the date of the newspaper containing the first insertion of the notice to the public of the intention of the companies to enter into a working agreement, are allowed for bringing objections before the Railway and Canal Commissioners, and that during the whole of that period a copy of the proposed working agreement is lodged at the Commissioner's office for inspection. 2. At the expiration of the period specified in the notices for bringing objections before the Railway and Canal Com- 120 Appendix F. missioners, and together with the application for their approval there should be sent to their office : a. The Act or Acts of Parliament authorising such agreement. h. Copies of the newspapers containing the notices of the intention of the two companies to enter into such agreement which are required by the 24th Section of the Eailway Clauses Act, 1863. c. Copies of the newspapers containing the advertise- ments of each Company, required by the 23rd section of the same Act, convening the special meetings at which the agreement was assented to. d. A copy of the circular which was addressed to each shareholder. e. The agreement, sealed by the Companies, together with a certificate given under the hands of the chairman at the meeting, and of the secretary, of each company, stating that such agreement was duly assented to by the required proportion of the votes of the shareholders and stockholders, entitled to vote in that behalf at meetings of the company, present (personally or by proxy) at a general meet- ing of each of the companies specially convened for that purpose, pursuant to the 23rd section of the same Act. 3. The application to the Commissioners for their approval should be made in the manner prescribed by their General Eules of January, 1889, Nos. 2 and 6. The agreement, when approved by the Commissioners, will be returned with their approval signified thereon, and the copy lodged at their office will be retained by them. Note. — Where the Special Act or Acts authorising the agree- ment do not incorporate the Railway Clauses Act, 1863, Part Z, or are of an earlier date, the course of proceeding will he that indicated, in the special Acts, 121 APPENDIX G. THE EAILWAY AND CANAL TEAFFIC ACT, 1888. Bye-laws and Regulations of Canal Companies. Whereas by sub-Section 1 of Section 40 of tiie Eailway and Canal Traffic Act, 1 888, it is enacted, amongst other things, that every Canal Company shall before such date as the Board of Trade may prescribe, forward to the Board of Trade true copies, certified in such manner as the Board of Trade may direct, of any bye-laws or regulations of such Company which are in force at the commencement of that Act, and that the bye-laws of any Canal Company, copies of which are not forwarded to the Board of Trade as provided by that section, shall, from and after the said date, cease to have any operation, saving so far as any penalty may have been already incurred under the same : Now, therefore, by virtue of the said enactment the Board of Trade doth hereby prescribe the 10th day of August, 1889, as the date before which true copies of all bye-laws and regulations of every Canal Company, which were in force at the commencement of the said Act, shall be forwarded to them ; and the Board of Trade hereby further direct that all such bye-laws and regulations shall be forwarded in diipUcate, and shaU. be certified in the following manner, that is to say, they shall be sealed with the seal of the Company, and signed by the Chairman, Secretary, or principal officer of the Company. Signed, by order of the Board of Trade, this 7th day of March, 1889. COUETENAY BOYLE, Assistant Secretary, Board of Trade. l2 123 N.B. — The figures in IracJcets refer to the pages of the Appendix. The references relating to proceedings before the Railioay and Canal Commission toill he found under the title PRACTICE. ABANDONMENT, of railways, Act of 1850, see Statutes. of canals, 4D, 234-35 [47]. transfer of derelict canal, 234 [48]. ACTION, for breach of Equality Clause, 140, 144, 216. does not lie for breach of s. 2. of Act of 1854, 97. in cases of undue preference, 150, 216. and see Damages. ACTS OF PAKLIAMENT (GENERAL). See Statutes. ACTS OF PARLIAMENT (SPECIAL). See Pkaotice. enforcement of, generally, 210-211. jurisdiction of Commissioners to enforce, 113, 210-12, [25], and see Traffic Facilities. whether exclusive, 211. copies of, to be kept for inspection, 179, [7]. penalties for breach, [7]. definition of, [1, 13]. railway Acts, form of borrowed from Canal Acts, 5. specimens of clauses contained in [63-70]. ADVICE NOTE, when acceptance of, creates contract, 84. AGREEMENTS, between railway and canal companies, 30, 229, [16]. notice of proposed, to be given, 229, [17]. application to Commissioners to sanction, see Practice. for special charges, 83, [69]. for traffic, power to make, [3]. rates charged under, not subject to Equality Clause, 140. authorised in Act, arbitration in cases of, 203, [15, 27]. not to prevent traffic facilities or through rates, 43,112, 124 215, [25]. on canals, 134, 215, [42]. working, see Working Agreements, 124 Index. AMALGAMATION of canals and railways, 20. of railways, Select Committee on, (1853), 22. calculation of tolls and charges in cases of, [4, 12]. APPEAL, to Court of Appeal from Commission, 226, 227, [28]. costs of, 227, [28]. to House of Lords, 227, [28]. from Eegistrar, see Peactice. rating, evidence on, [40]. APPORTIONMENT, of through rates, see Through Rates and Peaotice. of expenses between railway company and applicants for works, 210, [27]. as between land and sea transit, see Traffic by sea and DiSINTEGEATION OF RaTES. ARBITRATION. See Peactice. between railway companies under Act of 1859, 25, 202. jurisdiction of Commissioners in cases of, 202-204, [15, 27]. when authorised by Statute, 202. under special agreement, 204. under Board of Trade Arbitrations Act, 1874. 207, [20, 21]. effect of Act of 1888, 203. powers of Commissioners in, 220, [21]. ATTACHMENT, of directors. See Directoes. powers of Commissioners, 220, [10, 14]. for contempt of Court, 43, 197, 225, [29]. and see Railway and Canal Commission. ATTORNEY- GENERAL, proceedings by, in event of infringement of statute by railway company, 16, 211, 222. under Act of 1854, 24, 97, 221, [9]. BOARD OF TRADE, supervision over railways by, 14, 21. report of, in 1844, as to expense of carriage by railway, 68-69. certificate of, in case of infringement of statute by railway company, 16, 211, 221, 222. on breach of Act of 1854, 24, 221, [9]. „ „ „ any of the Traffic Acts, 222, [14]. to chambers of commerce, before application to Com- missioners, 222, [24]. to person complaining of canal charges, 230, 249, [43], Index. i25 BOAKD OF TRADE— coraiimMecZ. certificate of — continued. under Railways Construction Facilities Act; 1864, 26. „ Railway Companies Powers Act, 18G4, 26. approval of working agreements by, 25, [91]. transfer of jurisdiction to Commissioners, 204, 205 [15, 25]. reports as to steamboat traffic by, 205. transfer of duty to Commissioners, 200, [15, 25]. enquiries under Cheap Trains Act by, 208. arbitrations, reference of, to Commissioners by, 30, 207-208, [15], and see Practice. complaints to, of unfair charges, 47, 213, [37]. by trader, before application for through rate, 44, 116- 118, 245, [33, 37]. amicable settlement of disputes by, 47, 213, [37]. revised classifications and schedules, submission of, to, see Revision of Rates, classification, power to amend, see Classification. private sidings, power to regulate, 212. returns to, by canal companies, 49, 233, [43]. ,, „ by railway companies, [38]. rules under Act of 1888, power to make, 50, 85-86, [41], text of (railways), [54-62]. „ (canals), [75-83]. order of, as to increase of rates, 183, [84], bye-laws, approval of, by, (railways) 21, 233, (canals) 49, 233, [44, 121]. abandonment of canals, powers as to, 234-235, [47-48]. inspection of canals by, 49, 233, [45]. BYE-LAWS, of canal companies to be approved by Board of Trade, 49, 233, [44]. time for submission, [121]. of railway companies, 21, 233. CANALS. SeePEACTicE. early legislation relating to, 1. Acts relating to, similar in form to River Improvement Acts, 2. early companies not carriers, 3. close connection between railways and canals, 3. competition between railways and canals, 19-20. power to companies to carry, 20, 94, 228. „ „ to vary tolls, 20. lease of tolls on, 228. definition of canal, [8, 13]. „ „ company, [8, 13]. 126 Index;. CANALS — continued. railway companies, control of canals by, 29-30, 48, 229-230, [42]. acquisition of canal interest by officials of, 48, 229, [45]. maintenance of canals by, 29-30, 229-230, [17], and see Pkaotioe. agreements giving control to, void unless sanctioned by Commissioners, 29, 30, 229, [16-17], and see Agkeements. application of Traffic Acts to, 231. „ „ Act of 1888 to, 48, 231, [29, 41-49]. jurisdiction of Kailway Commissioners over, see Railway CoMMissioNBB.s and Railway and Canal Commission. through rates or tolls may be ordered, 43, 48, 134, [33, 41]. notwithstanding agreements, 48, 124, 134, 215, [42]. agreements for, 48, 136, [46]. what amounts to " forwarding of traffic," 135, [42]. revision of tolls and charges, see Revision of Rates. publication of tolls and charges, 46, 187, 188, [39], and see Publication op Rates. terminal charges of, see Terminals. returns by canal companies to Board of Trade, 49, 233, [43]. to Registrar of Joint Stock Companies, 233, [43]. inspection of, 49, 233, [45]. bye-laws, 49, 233, [44]. to be submitted to Board of Trade, [121]. abandonment of, 49, 234, [47-48]. alteration in charges by Commissioners, when canal controlled by railway company, 230, [42-43]. applications for, 230, 231, and see Peactice. clearing system, 232, [46, 47]. CARRIAGES. See Wagons. CARRIERS, early canal companies not, 3. nor early railway companies, 4, 5. canal companies empowered to become, 20, 94, 228, railway companies empowered to become, 8, 18, 74, [3]. but not bound to, 94. except where they have facilities, 95. services of, excepted from maximum rates clause, 33 et seq., 77. meaning of this exception, 36, 77. Report of Board of Trade (1844) on, 68. defined in Hall's Case, 81, and see Terminals. common, charges of, must be reasonable, 51, 52. need not be equal, 137. fixed by justices, 51. Index. 12' i^KERIER^— continued. common, obligation of, to carry for all, 51, 93. definition of, 94, private, use of canals by, 3, „ „ railways by, 4, 5. restriction on charges of, 11, [63], removed in 1845, 71. how afiected by maximum rates clause, 12. ,, ,, „ equality clause, 19, 141. railway companies employed by, to convey, 13, 57-58, 67, provision of station accommodation by, 37, 69. business of, gradually transferred to railway com- panies, 13, 14, 32, 33, 57, 67. to be charged equally with the public, 143, and see Equality. cartage rebate, 141, 155, 194. small parcel cases, 142. packed parcels, 144. undue preference as between carriers and railway companies, 155 et seq., and see Undue Prefeeenoe. provisions as to carriage of dangerous goods, mails, and troop <, 96. and see Delivery of Goods, Conveyance, and Ebbate. CAREY, meaning of word, 57. as used in Act of 1845, 75. distinction between " carry " and " convey," 57, 61. company not bound to carry by shortest route, 64. CAETAGE, charges for, 32, 38, 84, 193, and see Caeeiees and Eebate. gratuitous cartage, 155, 194, and see Evershed's Case. CERTIOEAEI, orders of Commissioners not to be removed by, 226, [28], CHAMBERS OF COMMERCE or AGEICULTUEE, complaints to Commissioners by, 44, 173, 222, [24]. certificate of Board of Trade, prior to, 222, [24]. what applications may be made by, 223, CHAEGES. See Tolls, Rates and Terminals. for special services, 83, 84. by agreement, 83. notice of, 84. payment of, orders by Commissioners for, 43, 215, [25]. 128 Index. CHARGES— co«ii«M«(i^. legality of, power of Commissioners to determine, 43, 113, 150, [25], and see Peaotice. effect of statutory limit to, 52. three stages of legislation with regard to, 52. revision of maximum, see Revision of Rates. CHARGING CLAUSES, form of, in first railway Acts, ."5. in Acts, 1833-1840, 9. fresh limitation in 1841, 9. further change in 1845, 11. double set of, (tolls and rates) 12. construction of, 53. CHECKING, whether subject for terminal charge, 81, 82. CLASSIFICATION OF MERCHANDISE. See Revision of Rates. origin of, 7. Railway Clearing House, 8. suggestions of Committee of 1872 as to, 30. of Committee of 1881-2, 38, 39. revision of, under Act of 1888, 45, 85 tt seq., [29-32]. Board of Trade Rules aflfecting, 86 et seq., (Railvvays) [54-62] (Canals) [75-83]. additions to, of unclassed articles, 45, 92, [31]. publication of, 46, 178-180, 188, [39]. copies to be kept for sale, 46, 88, 179, 188, [39]. distinction between " working " and " statutory," 179. CLEARING HOUSE, classification of goods, 8. establishment of, 20, 21. for canal companies, 48, 232, [40]. CLERKAGE, whether subject for terminal charge, 78, 81, 82. COMMISSIONERS (RAILWAY). See Railway and Canal Commissioners, (1873) and Railway and Canal Com- mission (1888). COMMISSIONERS OF SUPPLY, complaints to Commission by, 222 [24] . Lidex. 129 COMMITTEES, SELECT, Report and evidence — 1837-8—6, 8. 1839—10, 16. 1840-10, 13, 14, 70. 1844—6, 13, 14, 15, 16, 69, 70, 71. 1846—20. 1852-3—22, 23. 1872—14, 15, 27, 28, 29, 35. 1881-2—8, 12, 13, 31, 32, 33, 37, 38 et scq., 66, 67, 74, 117, 118, 175. COMMON PLEAS, COURT OF, jurisdiction under Act of 1854, 24, 97, 213, [9]. transferred to Railway Commissioners, 27, 97, 200, 220, decisions of, how far binding as precedents, 98. COMPETITION, how far differential rates justified by, 160, 168-170, 171, 175, and see Undue Pkeference. CONCILIATION CLAUSE, in Act of 1873, (Commissioners) 21.3, [14]. „ „ 1888, (Board of Trade) 47, 213, [37]. CONSERVANCY AUTHORITIES, complaints to Commissioners by, 222, [24]. definition of, [51]. CONTEMPT, power of Commissioners to punish for, 43, 197, 225, [29]. CONTINUOUS LINES. See Through Traffic. CONVEYANCE, what constitutes, 59-(51, 67, 68, 81. a question of fact, 62. originally not performed by railway companies, 5. charges for, by railway companies, 8 et seq. in first instance unlimited, 9. limitation on, 10, 11. under Act of 1845, 18, 75, [3]. to be distinguished from terminal charges, 26, 27, 68, 185, 188, and see Disintegration of Rates. distinction between " carriage " and " conveyance," 57, 61. "incidental to conveyance," meaning of, 66, 70, 73, 77. definition of, in Hall's Case, 81. railway companies empowered to convey, 18, 74, [3]. but under no obligation, 94. ailway companies the sole conveyers, 13, and see Carriers. 130 Indeid. COSTS, of proceedings before Commissioners, 226, [29], „ „ „ on appeal, 227, [28]. on applications for through rates, 120-121, [35]. appeals upon question of, 226. no Commissioner liable to pay, 227, [28]. taxation of, see PiiACTicE. COUNTY COUNCILS, complaints to Commissioners by, 222-223, [24]. COVERING AND UNCOVERING, whether subject for terminal charge, 82. DAMAGES. SeePfiACTiCE. for breach of equality clause, 140, 216. „ undue preference, 176, 189, 219, [26]. „ loss of custom, 140. how far recoverable before Act of 1888, 216. award of, under Act of 1888, 44, 216 et seq., [26]. effect of, 216, [26], and see Overcharges. where complainant has lain by, 217, 218, [26]. assessment of, 219, [26]. DANGEROUS GOODS, carriage of, on railway, 96, [6, 32]. penalty for bringing, on railway, [6]. DECISIONS, previous, how far binding as precedents, 98, 99. DELIVERY OF GOODS, general orders as to, 159, and see Undue Preference. how far company bound to deliver, except in accordance with address, 159-160, 194. facilities for, see Teaffic Facilities. DEMURRAGE, charges for, 65, 84. DIFFERENTIAL RATES, justification of, by Committee of 1881-2, 39. how far allowable, matters to be taken into consideration in deciding, 173, 174, [35-36]. in favour of foreign merchandise prohibited, 47, 174, [36]. how far competition may justify, 47, 159, 175, and see Undue Preference . DIRECTORS, attichmeat of, for disregard of injunction, 24, 97, 220, [10]. acquisition of canal interest by, 48, 229, [45]. when liable for penalties, 48, 230, [45]. Index. 131 DISINTEGRATION OF RATES. See Practice. under Act of 1868, 26, 183, 188, [12]. „ Act of 1873, 28, 185, 188, [15]. „ Act of 188S, 46, 184, 188, [39]. what must be included in charge for conveyance, 68. who may apply for, 183, 184. penalties, 189. terminal and dock charges, 183, 184, 185, [39]. sea traffic, 184, [40]. detail of terminal services, 185. when orders for, will be made, 186. when total rate is within maximum, 186. rules as to, summary of, 188, and see Rebate. how far applicable to canals, 187. DOCKS, dock companies, complaints to Commissioners by, 44, 47, 173, 223, [24, 37], and see Locus Standi. dock charges, to be distinguished from charges for convey- ance, 183-185, [39]. not subject to rules of undue preference, 151. application to compel railway company to repair dock, 152. EQUALITY, no common law obligation to charge equally, 137. equal mileage rates imposed by early Acts, 18, 138. report of Committee of 1881-2 on, 39, 40. section 90 of Act of 1845, 18, 19, 138 et seq., [4]. operation of, 19, 138 et seq. injunction to enforce, 150. report of Committee of 1852-3 on, 22. comparison between, and section 2 of Act of 1854, 149-154, and see Undue Pbefeeencb. jurisdiction of the Commissioners, 212. cases to which section does not apply, 140, 150. sea transit, 140. foreign traffic, 140. traffic arrangements between companies, 140. circumstances on which operation of section depends, 139. meaning of "tolls," 139, [2]. ,, „ "using the railway," 140. ,, „ " same description," " under the same circum- stances," 143, 146, 147. applies only when termini are the same, 139, 148, 150, does not apply to group rates, 148. 1 32 Index. ^(^KLYTi— continued. operation of clause not affected by desire to develop traffic, 147, 149. aliter where there is a difference in cost to the com- pany, 147, 149. competition, 146. in case of carriers, 142-144. cartage rebate, 141. small parcels, 142. packed parcels, 144. as affecting passenger fares,' 145. EvershedJs Case, 145. Denaby Main Case, 147. preferential rebate, breach of clause, 146, and see Rebate summary of decisions upon clause, 148-149. action for overcharges, 140, 150, 216. mode of calculating damages, 140. whether action lies for consequential damage, 140. local rates not affected by grant of through rates, 129, 136, 14.5. sea traffic, 26, 201 [11]. and see Rebate and Undue Pebperencb. EVIDENCE, proof of receipts or profits of company, 49, [49]. in packed parcels cases, 144. of documents purporting to be signed by Commissioners, [19]- by Board of Trade, [501, and see Peactice. EXPLOSIVES. See Dangerous Goods. FACILITIES. See Traffic Facilities. FORWARDING COMPANY, meaning of, 114, 245. in relation to canal traffic, 135, [42]. FRACTIONS, of a ton or mile, how chargeable, 64, 65. GENERAL ORDERS. See Delivery of Goods and Undue Pre- FEHESCB. GROUP RATES, Denaby Main Case, 170. in what cases legitimate, 170, 172, 176, [36], not within section 90 of Act of 1845, 148. effect of Act of 1888, 47, 176, [36]. application of company to legalise, 176, 223, [36], and se§ Practice, Index. 133 HARBOUR BOARDS, applications to Commissioners by, 44, 4T, 173, 213, 222, 223, [24, 37]. without proof of being aggrieved, 173, 222, [24]. in cases of undue preference, 44, 47, 173, 213, 222, [37]. for through rates, 121, and see Locus Standi. definition of, [51] . HIGH COURT, provision for appointment of extra judge in, 43, 198, [23]. HOME MERCHANDISE, meaning of, 174, [51]. no difference to be made between foreign and, 174, [36]. HOUSE OF LORDS, appeals to, from Court of Appeal, 227, [28]. INJUNCTION, under Act of 1854, 24, 98, 150, [9]. by Commissioners, 214, [14]. formerly the only remedy for breach of Traffic Acts, 98. granted after removal of matter complained of, 98. orders of Commissioners not to be restrained by, 226, [28]. interim, see Peaotioe. INSPECTION, of canals, 49, 233, [45]. of rate-books, see Publication of Kates. of Special Act, see Acts op Parliament. of documents relating to classification of merchandise and rates, 178-180, 182, [39]. notice by company as to, 182, [39-40]. INVOICING, whether subject for terminal charge, 78, 82. " IRON RAILWAYS," S3e Teameoad Acts. JUSTICES, complaint's by, to Commissioners, 222-223, [24]. rates formerly fixed by, 51. jurisdiction of, to enforce publication of rates, 189, 250, [16, 40] whether such jurisdiction is exclusive, 189, 250. recovery of penalties before, see Penalties. LABELLING, whether subject for terminal charge, 81. 134 Judex. LEASES, of canals, 20, 228. restriction on, to railway companies, 25, 228, and see Canals. LIEN, of railway companies for tolls, 62, 85, [6]. LIMITATION, STATUTES OF, how far applicable to proceedings before Commissioners, 219. recovery of damages or overcharges, 217. LOADING AND UNLOADING. See Tekminals. whether a subject for terminal charge, 78, 82, 83. exception of, from maximum rates clause, 34, 72, 73. LOCAL AUTHORITIES, what applications may be made by, 223. applications to Commissioners by, 172, 222, [24, 27]. „ for works, apportionment of expenses, 210, [27]. to the Board of Trade, 210, 213, [27, 37]. expenses of, chargeable on rates, 49, 223, [50, 51]. "parish" and " vestry," definition of, [27]. transfer to, of derelict canal, 234, 235, [47, 48]. LOCOMOTIVE POWER, introduction of, on railways, 4. power to employ, 9, 71-75, [3]. charges for, by railway companies, 8 et seq. , 58, 59. haulage of empty waggons, 85. LOCUS STANDI. See Practice {Application). of applicants before the Commissioners, 44, 221-223. no appeal as to, 223, 226, [28]. effect of Act of 1888, 44, 221-223, [24]. of respondents, appeal as to, 226. under Acts of 1854 and 1873, 221. in complaints of undue preference, 152. on applications for through rates, 121-124. rule that complainant must be aggrieved, 221. exceptions to rule, 221-222. applications by Attorney- General, 97, 221, [9]. „ „ persons appointed by Board of Trade, 222, [14]. „ „ public bodies, 44, 121, 222, 223, [24]. „ „ railway and canal companies, 44, 223, [25, 36]. complaints of undue preference by harbour boards and dock companies, 44, 47, 173, 213, 222, [37]. and see Chambeks or Commeece, County Councils, Docks, JIakboue Boards, and Teadeb, Index- 135 MAILS, CONVEYANCE OF. See Post Office. provisions relating to, 96. in Act of 1838, 14. in Act of 1873, 30, 208, [17]. on steam vessels, [18]. remuneration for, 205, 208, [18]. not affected by revision of maximum rates, 86, [32]. MARSHALLING AND SHUNTING, whether subject for terminal charge, 82. MAXIMUM RATES, revision of, under Act of 1888, 45, 86 et seq., ;[29-32], and see Revision of Rates. standard for fixing, 45. existing to be shown, 87, [55, 76]. publication of, 46, 179, and see Publication of Rates. what included in, 58, 70. primd facie reasonable, 64. whether terminals included in, 69-76. importance of the question, 77. chargeable, though no terminal services are rendered, 72. charges in excess of, not a denial of reasonable facilities, 103. MAXIMUM RATES CLAUSE, introduction of clause, U, 16. effect of, 12. specimens of, 11, 33, 34, [69]. to be inserted in all railway Acts, 16. effect of on terminal question, 33 et seq., 69 et seq., 78. whether applicable to tolls, 58. applicable wherever the company in fact convey, 59 et seq. MERCHANDISE. See Classification. definition of, [51]. no difference to be made in rates for home and foreign mer- chandise, 174, [36]. METROPOLITAN BOARD OF WORKS, complaints to Commissioners by, 222, [24]. transfer of powers to London County Council, 222. MILE, fractions of, how chargeable, 64, 65, and see Route. NOTICE. See Peacticb. notices, how given and sent, [19]. when deemed to have been received, [17]. proof of sending, [17]. 1 36 Index. HJOTICE- continued. of proposed through rate, 119, 120, [33]. of objections to proposed through rate, 119, [34]. of increase of rates, 46, 183, 188, [40]. rules as to, [84, 85]. form of, 183, [85]. penalty for not giving, 189, [40]. of application by companies to determine legality of rate, 223, and see Peactice. of objection to revised classification and schedule, 88, [57, 78]. form of, [62, 83]. of application to alter canal charges, 230, 231, 249, [43]. of agreements giving control of canals to railway companies, 229, 246, [17, 93]. form of, [115]. of abandonment of canal, 234, [48]. of rates or charges, traders bound by, 84. OVERCHAKGES. See Damages. when and how recoverable, 140, 216. mode of calculating, 140. award of damages includes, 216, [26]. PARCELS, carriage of, by carriers, 141. operation of equality clause, see Equality Clause. small parcels clause, 142, and see Small Parcels. packed parcels, 144. parcels rates, 142. PARLIAMENTARY AGENTS, may practise before Commission, 49, 225 [49]. names to be entered in a roll, 225, [49]. term " solicitor " includes, [88] PENALTIES. See Justices. for disobedience to injunction, 24, 220, [10]. to be fixed by Commissioners, 220. for misapplication of railway funds to acquire interest in a canal, 48, 230, [45]. for non-publication of rates, 188 et seq., 250, [16, 40]. for not keeping or depositing copies of special Act, [7]. for not giving notice of increase of rates, 189, [40]. for bringing dangerous goods on railway, 96, [6]. recovery of, [49]. Index. 137 POST OFFICE, differences between railway companies and Postmaster- General, 205, and see Peactice. conveyance of mails, see Mails. reference to Commissioners of differences arising under Tele- graph Acts, 208, and see Practice. PRACTICE (in proceedings before the Commissioners), Abridgment, of time, by Commissioners, 259, [110], Act (Special). See Special Act. Adjournment, power of Commissioners to adjourn proceedings, 257, [109]. case may be decided in absence of parties at, 257, [105]. Admit, notice to, documents, 258, [103], and see Notice to admit. preliminary meeting to admit facts, 253, [101], Advertisement. See Notice. Affidavit, contents of, 258, [107]. on interlocutory proceedings, 258, [107]. containing unnecessary matter, costs of, [107]. before whom sworn, [107]. no fee if sworn at Commissioners' office, [107]. must be filed, 258, tl08]. fee on filing, [108, 118]. office copies of, 258, [108]. fee for, 258, [118]. in support of summons for disintegration of rate, 249, [92]. evidence by, at hearing, 257, [105], and see Evidence. Amendments, power of Commissioners to allow, 2.53, 258, [109]. all necessary, to be made, 258, [109J. time for making, enlargement of, by consent, 259, [111]. Answer, indorsement on Application of notice to put in, 240, [98]. in default of, application to fix hearing, 252, [104]. form of, [113]. signature of, 251, [100]. indorsement of address on, 251, [100]. time for, 250, [99]. filing of, 250, [99]. signed copy of, to be delivered, 251, [100]. three copies of, to be left with Registrar, 251, [100]. in reference under Cheap Trains Act, 250, [96]. to interrogatories, see Interrogatories. K 2 138 Index. PRACTICE— coMiSmMecZ. Appeal, from Eegistrar, 255, [107]. to ex officio Commissioner on questions of law, 255, [107]. to Commissioners in other matters, 255, [107]. no stay of proceedings unless ordered, 256, [107]. from Commissioners, 227, [28]. Applicant, meaning of, [87]. address of, to be indorsed on Application, 239, [88]. and see Application. notice of discontinuance to be given by, [104]. if not resident in London, may transmit documents by post, 240, 259, [111]. Application, meaning of, 239, [87]. proceedings to be commenced by, 239, [88]. form of, 88, [112]. signature of, 239, [88]. indorsement on, of address, 239-240, [88]. of notice to defendant to put in Answer, 240, [98, 113]. filing of, 240, [88]. service of, 240, [98]. three copies to be left with Registrar, 240, [98]. list to be made out by Registrar, [98]. inspection of list, [98]. cases to be heard in order of list, [98]. joint, in cases under section 10 of Act of 1888, 247, 252, [93]. to review previous decision, see Review. under section 2 of Act of 1854 (undue preference and traific facilities), 242, [89]. „ „ 16 „ 1868 (steamboat fares), 242, [89.] » 6 „ 1873 (generally), 242, [89]. ), „ 8 1, „ (arbitrations between railway and canal companies), 242, [89]. It ,1 9 „ „ (arbitrations by consent), 243, [89]. " >! 10 „ „ (working agreements), 244, [89]. Ind^x. 139 PRACTICE— cojiimwed Application — continued . under section 14 of Act of 1873 (publication and disin- tegration of rates), 249, [92]. „ „ 15 „ „ (terminals), 246, [92] . „ „ 16 „ „ (sanction of agreement between railway and canal companies), 246, [93]. „ „ 17 „ „ (maintenance of canal), 247, [93]. „ „ 19 „ „ (Post-office), 243, [95]. „ Part 2 of Board of Trade Arbitrations Act, 1874, 243, [95.] sections 4, 5 of Telegraph Act, 1878, 243, [95]. „ section 3 of Cheap Trains Act, 1883, 250, [96]. „ „ 9 of Act of 1888, (Special Acts and private sidings), 242, [89]. „ (legality of charges), 247, [93.] „ (allowance of through rate), 245, [91]. „ (apportionment of through rate), 246, [92]. „ (legality of group or other rate), 248, [94]. „ (publication and disinte- gration of rates), 249, [92]. „ (publication of rates at sidings), 249, [92]. „ (alteration of charges on canal), 248, [94]. Akbiteation, reference to Commissioners of differences between railway and canal companies in lieu of, 242, [89]. by consent of parties, 243, [t59]. service of Application not required, [98]. Post-office, 243, [95]. under Board of Trade Arbitrations Act, 1874, 243, [95]. under Telegraph Act, 1878, 243, [95]. consent of Commissioners, how signified, 243, [89]. hearing fee, [119]. 10 5» 25(4) .' 25 (6) (7) „ 29(3) 51 33 J) 34 )) 38(1) 55 140 Index . PRACTICE— coraiirewerf. BOAED OF TeADE, reference to Commissioners by, under Board of Trade Arbitrations Act, 1874, 243, [20, 95]. under Cheap Trains Act, 1883, 208, 250, [96]. Canal, agreement with railway company as to, 229, [16, 17]. sanction of, application for, 246, [93]. how signified, 247, [93]. copies of Application need not be left with Regis- trar, 247, [98]. advertisement of, 229, 246, [17, 93]. form of, [115]. maintenance of, by railway company, application for, 247, [17], what must be stated in, 247, [93]. alteration of charges on, application for, 248, [43, 94]. what must be stated in, 249, [94]. certificate of Board of Trade necessary, 249, [43]. order made on, application to review, 258, [43, 107]. Certificate, of Commissioners sanctioning canal agreement, 247, [93]. of Board of Trade for application to alter charges on canal, 249, [43]. Chaegbs, legality of, application to determine, 247, [25, 93]. joint application by parties, 247, [93]. application by company to determine whether rate creates undue preference, 248, [36, 94]. what must be stated in, 248, [94]. in case of group rate, 248, [94]. notice of intention to make, 223, 248, [94]. order on, application to review, 258, [37, 106]. on canal, alteration of, see Canal. payment of, order for, see Payment. terminal, see Tebminals. Cheap Trains Act, 1883, reference to Commissioners under, 208, 250, [96]. appeal to Commissioners from order of Board of Trade under, [96, 97]. COMMISSIONEES, power to suspend proceedings, 254, [99]. require further information, 254, [99]. direct inquiries, 254, [9, 99]. direct and settle issues, 253, [101]. decide preliminary question of law, 253, [101]. Index. 141 PKACTIOE— core/Jm-ier/. Commissioners — continued . hold preliminary meeting, 253, [101]. communicate with parties, 253. [101]. grant interim injunction, 256, [101]. grant orders for discovery, 255, [102]. for interrogatories, 254, [102]. for further answer to interrogatories, 254, [1031. for production of documents, 255, [103]. proceed ex parte, 252, 257, [98, 105]. in absence of parties, 257, [105]. require further evidence, [105]. view, 257, [105]. reserve judgment, 257, [106], and see Judgment. review order, 258, [29]. allow amendments, 258, [109]. three, must attend hearing, 198, 224, 257, [23]. appeal to, from Kegistrar, 255, [107]. from, to Court of Appeal, 226, [28]. to take judicial notice to seal or signature of court, consul, etc., abroad, [108]. ex officio, see Ex officio Commissionee. affidavits may be sworn before, 258, [107]. Consent, formal proceedings may be dispensed with by, 252, [99]. orders by, 256, [99]. time may be enlarged by, 259, [HI]. must be left with Registrar, 259, [111]. of Commissioners necessary in arbitrations, 242, 243. how signified, 243, [«9]. Copies, of pleadings, three, to be left with Registrar, 260. to be delivered to opposite party, 260, and see Application, Answer, Reply. of documents referred to in pleadings, inspection of, 255, [103]. to be deposited with Registrar, 257, [105]. office, to be supplied by Kegistrar, 258, [108]. fees for, 258, [118]. Costs, in the discretion of Commissioners, 226, 257, [29]. taxation of, 257, [106]. of proving documents, see Documrnts and Notice to Admit. of affidavit unnecessarily long, [107]. plaintiff accepting money paid into court may tax, [118]. 142 Index. PRACTICE— cowtmwed Damages, how claimed, 240. defendant may claim determination by Commissioners, 238, 251, [97], and see Payment into Couet. Defendant, meaning of, [88]. notice to, to put in Answer, 240, [98], and see Answee. service of Application on, 240, [98]. delivery of Eeply to, 252, [100]. domicile of, determines the part of United Kingdom in which proceedings are dealt with, 259, [110]. Discontinuance, notice of, to be given by applicant, [104]. Discovery, of documents, see Documents. and see Inteeeogatoeies. DiSINTBGEATION OP RaTBS, application for, may be made by summons, 240, 241, 249, [92]] must be supported by affidavit, 249, [92]. form of order, 219, [92]. Documents, discovery of, application for, 255, [102]. in Scotland to ex officio Commissioner, 255, [102]. in England and Ireland to Registrar, 255, [102]. production of, order for, 255, [103]. referred to in pleadings, notice for, 255, [103]. effect of non-compliance, 255, [103]. notice to produce at hearing, 258, [103]- and see Notice to Peoduce. notice to admit, 258, [103]. and see Notice to Admit. costs of proving, 258, [103]. explanatory, to be left with Registrar, 257, [105]. transmission of, by post, 259, [ill]. Domicile, of defendant determines practice applicable to proceedings, 259, [no]. Enlaegement of time, by Commissioners, 259, [110]. after expiration of time, 259, [ill], by consent, 259, [111]. Index. 143 PRACTICE-cowi!m«e(7. Evidence. See Witnesses. at hearing, 257, [105]. to be vivd voce, 257, [105]. by affidavit, Commissionera may order, 257, [105]. preliminary meeting to arrange, 253, [101]. not where witness required for cross-examination, 257, [10.5]. by depositions, [105]. further. Commissioners may require, [105]. Ex Officio Commissionee, power to grant interim injunction, 256, [101]. dissolve interim injunction, 256, [102]. application to, (in Scotland,) for discovery, 255, [102]. appeal to, from Registrar, on question of law, 255, [107]. which, to deal with case, depends on domicile of de- fendant, 259, [110]. opinion of, on question of law prevails, 225, [23]. Ex PARTE, Commissioners may proceed, 252, 257, [105]. Extension, of time, see Enlargement. Facilities. See Traffic Facilities. Fees, to be taken, [118-119]. to be paid by impressed stamps, 240, [119]. transmission of, by post, [111]. table of, [118-119]. Filing, of pleadings, 260, and see Application, Answer, Reply. of affidavits, 258, [108]. enlargement of time for, 259, [111] by post, 259, [111]. Formal Objection, proceedings not to be defeated by, 258-259, [109]. Forms, in proceedings, [112-116]. Group rate, legality of, application to determine, 248, [94]. what must be specified in Application, 248, [94]. noticeof, 248, [94]. and see Charges. 144 Index. 'PRAUYIGE— continued. Heaexng, three Commissioners to attend at, 198, 224, 257, [23]. non-appearance of parties at, 257, [105], evidence at, see Evidence. date of, application to fix, 256, [104]. notice of date of, to be served, 256, [104]. explanatory documents to be deposited six days before, 257, [105]. when commenced, to proceed from day to day, [105]. of interlocutory applications, see Inteelocutory Appli- cations. fee on, [119]. .Indoesement, on Application, see Application. on Answer, see Answee. special form of, in arbitrations, 243, [113]. Injunction, decisions of Commissioners not to be questioned by, 226, [28]. interim, ex officio Commissioner empowered to grant or dissolve, 256, [101-102]. notice of application, [102]. Inquieies, power of Commissioners to direct, 254, [9, 99]. „ „ „ to require answers to, 253, [101]. Inspection, of documents, [103], and see Documents. of rate-books, see Rate-Books. Inteelocutory Applications, to be made by summons, 255, [L07]. to be heard by Registrar, 255, [107]. may be adjourned into court, 255, [107]. appeals from Registrar, 255, [107]. affidavits on, [107]. orders made on, application to review, 258, [106]. and see Summons. Inteeeogatoeibs, only to be delivered by leave, (England and Ireland), 254, [102]. corresponding Scotch practice, 254-255, [103]. time for delivery of, 254, [102]. no deposit required from party delivering, 254, [103]. answer to, 254, [102]. may be made jointly, 254, [102]. order for further, 254, [103]. Index, 145 Y&knYKm— continued. Issue, joinder of, may be pleaded without leave, 253, [101]. implied, 253, [100]. power to direct and settle issues, 253, [100]. Judgment, Commissioners may reserve, 257, [106].' may be in writing, 257, [106]. may be sent to parties, 257, [106]. not necessary to hold a court for giving, 257, [106]. Law, preliminary question of, see Peeliminaey. opinion of ex officio Commissioner to prevail on questions of, 225, [23]. appeal from Registrar to ex n^cio Commissioner on ques- tions of, 255, [107]. Legality, of charges, see Chaeges. List, of applications, Registrar to make, [98]. „ „ to be open to inspection, [98], Meeting, preliminary, see Peeliminaey. Month, meaning of, [94]. Motion, previous decision, to review, 258, [106]. interim injunction, to grant, 256, [101]. „ „ to dissolve, 256, [102]. notice of, 49. Notice, to produce, (documents at hearing), 258, [103]. effect of non-compliance with, 253, [103]. to produce, (documents for inspection), 255, [10.3]. effect of non-compliance widi, 255, [103]. to admit, 258, [103]. effect cf non-compliance with, 258, [103]. to defendant to put in Answer, 240, [98]. by Commissioners, of suspension of proceedings, 254, [99]. „ „ of inquiry directed, 254. [99]. „ „ of preliminary meeting, 253, [101]. 146 Ivdex. PRACTICE— cowimwcci. Notice — continued. of motion, [262]. of intention to apply for decision as to whether rate creates undue preference, 248, [94]. particulars to be given, 248, [94]. of agreement between railway and canal company, 246, [17, 93]. form of, [115]. of application for interim injunction, 256, [102]. „ „ to dissolve interim injunction, 256, [102]. „ ,, to fix date for hearing, 256, [104]. ,, ,, to review previovis decision, 258, [106]. of discontinuance, [104] . of payment into court, [116]. of acceptance of money paid into court, [118]. of date of hearing, 256, [104]. of appeal from Registrarj 255, [107]. Objection, formal, see Foemal Objection. Oedee, Commissioners may make what order seems to them just, [106]. application to review, see Review. interlocutory, see Inteelocutory Applications. of entry in list, cases to be heard in, [98], Payment, into court, generally, [97, 116-118]. when to be made, 251, [97]. before Answer, 251, [97]. with Answer denying liability, 251, [97]. with defence of tender, [116]. notice of, [116]. acceptance by applicant, 251, [117]. notice of, [118]. application of money, [U7]. how and where made, [97]. none required from person seeking discovery, 254, [103], out of Court, to applicant, 251, [117]. not without order, unless applicant accepts money in satisfaction, [117]. of rates or charges, order by Commissioners for, 215, 247, [93J. Index, 147 PRACTICE-co?id. SheKord's Companies .— 2nd Edit. ByPitcairn k Latham. 8vo. 21s. cloth. 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