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Railway Commission, and which was recommended by the Committee on the Amalgamation of Railway Companies in 1872, (upon whose report indeed the Regulation of Railways Act, 1873, is mainly founded) is, it seems to us, admirable, The various complaints which had been made by the judges themselves showed that a court of law was not the proper tribunal to decide upon cases under the Railway and Canal Traffic Act, and the Select Committee had come to the conclusion that the Board of Trade had not the requisite judicial character or means of action, that a court of law failed in practical knowledge and administrative facility, and that a Committee of Parliament was unsuited to perform such duties from its want of permanence, * and their recommendation that a commission consisting of three commissioners, one an experienced lawyer, and one possessed of experience in railway business, has been embodied in the Act, and that provision has been carried out in fact by the appointment of the Right Honourable Sir Frederick Peel, whose administrative capacity is acknowledged; Henry Macnamara, Esq., whose experience of law none will question ; and W. P. Price, Esq., who, as chairman of the Midland Railway Company, has acquired a knowledge of railways and their working such as few other men can possess. If there is anything to be done to remedy the grave evils which exist in connection with our railway system surely these men will do it. The combination of experience seems to us an excellent device, and the three men, so far as their public lives are known to us, seem admirably suited to ensure the very best conditions to this new experiment in legislation. We may add, too, that their recent decision in the case of Goddard v. The London and South Western Railway Company, gives excellent augury for their future judicial work. But, notwithstanding these admissions, we cannot say that we are very sanguine that the Regulation of Railways Act, 1873, will do much to bring about the desirable ends which were anticipated by the Committee on the Amalgamation of railways, as set out in
Report, p. 49.
the last page of their report.* That committee thought that an Act embodying their recommendations would effect these things. I. Preserve the competition which now exists by
2. Give immediately such support as is practicable to competition by canal, and both immediately and ultimately develop and utilize the capacities of canals. 3. Let the public know what they are charged and why they are charged, and give them better means than at present exist for getting unfair charges remedied. 4. Enforce the harmonious working and development of the present railway and canal systems, so as to produce from them in the interest of the public, and at the same time of the shareholders, the greatest amount of profitable work which they are capable of doing. In justice to the committee, it must be said that they did not think that the adoption of their recommendations would have the effect of preventing the growth of railway monopoly, or of securing that the public shall share, by reduction of rates and fares in any increased profits which the railway companies may make, but we cannot but think that, owing to various circumstances, the Railway Commission will effect little, and that, consequently, the benefit to the public will be small.
There are, however, some admirable provisions in the Act, and, although these are somewhat apart from the principal object of the statute, we cannot doubt that so excellent a commission will make itself felt most beneficially in connection with these. One of these is the provision that in case of difference between two or more Railway Companies the matters in dispute shall, with the consent of the Commissioners, be referred to them for their decision in lieu of being referred to arbitration.t Serious and well founded complaints have been made,” says the report of the Select Committee, “ of the delays, difficulties, and expense attending the present system of arbitration. The persons whom it is now the custom to appoint as arbitrators are generally
Report, p. 52.
busy men who cannot give sufficient time to duties of this description, and the decisions when made have no force as precedents."* That being so, and that these statements are correct cannot be doubted, the substitution of the new tribunal for the cumbrous and expensive arbitrations which took place under the provisions of “ The Railway Companies Arbitration Act, 1859,” is a very evident advantage to the Railway Companies and to the public. We are glad to see, from the Table of Fees, which is given at the end of the General Orders made by the Commissioners in pursuance of the 29th section of the Regulations of Railways Act, 1873, that the fee payable for every hearing in the nature of an arbitration, in respect of each day or part of a day, is only 15 guineas. When Railway Companies come to know that they can have the services of three such men as the present Railway Commissioners for that very small sum, we cannot doubt that the permission under the 8th section of the Act will be largely taken advantage of. Then section 9 deserves some notice. That section 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 their decision. The powers given under this section are very wide, but we would have preferred to see them strengthened. As it stands, it seems to us, the section will be of little use, as before such reference can take place all the parties must agree why the terms of section nine should not have been like those of section eight and authorized a reference to the Commissioners, with their assent at the instance of either party to the difference we cannot see.
Then the transference of the powers of the Board of Trade with reference to working agreements seems to us to be extremely expedient. It has for a long time been a recognised fact that the competition which at one time existed between Railway Companies has naturally come to an end.
* See Report, p. 49.
It is asserted with some truth that there is still some slight competition between several lines in the matter of facilities, but all questions affecting rates competition is at an end, indeed competition almost invariably ends in combination. This combination is year by year widening and spreading, and the result will be that the country will soon be divided between a very small number of powerful companies who will have the whole of the railway lines in their hands, and who can dictate their own terms to the public. With the view of putting some check upon one of the means by which combination is effected, the power which the Board of Trade exercised over working agreements, and traffic arrangements have been transferred to the Railway Commissioners, who are in many respects well able to watch over the interests of the public in so far as they are likely to be affected by those arrangements between Railway Companies. The true function of the Railway Commissioner seems to be to watch over the interests of the public which are likely to be prejudiced by the self-interest and the strong hand of monopoly of the Railway Companies. They are trustees or guardians of the obscure and occult rights of the people to be protected from the exactions which are made by Railway Companies, and which are only too likely to increase as amalgamation and combination go on. The public is incapable of looking after its own interests in this relation, and, therefore, it is most expedient that they should be had regard to by a competent body of experienced guardians. This leads us to speak, however, of the main defect of the Bill, or rather, as we would suggest, of the Commissioners' reading of the Act. We gather the interpretation which the President of the Board of Trade has put upon this Act of Parliament from the appointments he has made under it ; and the opinion of the Lord Chancellor as to the import of the various sections of the Act will be evident, after a perusal of the General Orders which have been issued by them, and which have been approved of by the Lord Chancellor. The mistake which, as it seems to us, the Commissioners have fallen into
is this, that they have come to the conclusion that the principal word in the Regulation of Railways Act, 1873, is the word “ Tribunal.” They seem to think that the Railway and Canal Traffic Act, 1854, although it could not be worked by the Court of Common Pleas, can be worked by a Court which has less judicial power, but by a Court which differs from the Court of Common Pleas only in that respect, and in having the assistance as judge, of one gentleman, not a lawyer, who has had a long experience of railway affairs and railway management. They have run away with the idea that they are to be judges, and hence we find that all the General Orders refer to their judicial duties, and none refer to the other important functions which, according to our view, they were intended to discharge. It seems to us that the difficulty which the Court of Common Pleas felt with reference to the provisions of the Railway and Canal Traffic Act, 1854, must have been much greater in the minds of the public who had to set the machinery of remedy in motion. If the judges felt a difficulty in deciding what were undue preferences or what were reasonable facilities, even with the assistance of the best evidence of the most experienced witness, it is more than probable that the public would labour under far greater disadvantages in determining whether they were getting fair play at the hands of railway companies. The great doubt which must necessarily have existed in their minds was quite sufficient to deter them from taking any action in the matter, especially when it is borne in mind that any action which they could take must be against an immensely powerful and immensely wealthy railway company.
That there should be one law for the rich and another for the poor has always been a complaint, but that there should be two codes seems to us an inevitability in the present state of human nature. While the same law may be applicable to two cases, the one brought by a rich man, and the other by a poor man, a different rule will be applied to that of the former, if the latter, through his poverty, is unable to prove