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3. The decisions, or want of decisions, under the Railway and Canal Traffic Act have shown how unsuited a court of law is to deal with such cases.
4. The plan proposed would place the Board of Trade in a false position, and would, if they were really able to interfere as proposed, throw a heavy charge on the public.
In this way one of the most excellent recommendations was passed over, and we confess that when the present Act* was passed we thought there was some hope that attention would be given to such a recommendation. To our thinking the Railway Commission was in every respect qualified to do what the Board of Trade shrunk from doing. Here were, according to our thinking, men admirably qualified to combine inspectorial functions with the exercise of judicial authority. Here were men who would be able to determine what were matters of public interest, who could determine what a grievance was, what constituted a want of proper convenience and accommodation. Our opinion that inspectorial duties devolved upon the Commission was strengthened by the fact that the Act contained a provision for the appointment of not more than two Assistant Commissioners,t and also a provision, that the Assistant Commissioners should be subject to the orders of the Commissioners, and should make such inquiries and reports, and perform such other acts and services as the Commissioners might direct. I
The President of the Board of Trade has, however, taken a different view of the duties to be performed under the Act, for although, as we have seen, the three Commissioners have been appointed, no Assistant Commissioner, upon whom the inspectorial duties would principally devolve, has as yet been named. That the Commissioners have taken a similar view of the scope of this statute will appear from their general orders. We may allude to some of the sections of the Act in connection with the general orders of the
* 6 and 37 Vict., c. 48.
† Seetion 4.
Commissioners with the view of showing that this is the case, and of showing that another reading of the Act was, at least, possible, and then we shall leave it to the reader to say whether such other reading was not expedient. First, it may be as well to point out that to some extent the principle we contend for is admitted in the Act, and to say that we are convinced that it is just in that particular, that the Act will be found admirable and just in relation to that section that the Commissioners will have cases to try and decide. The section alluded to is the 13th, and it provides that “a complaint of a contravention of section two of the Railway and Canal Traffic Act, 1854, as amended by this Act, may be made to the Commissioners by a municipal or other public corporation, local or harbour board, without proof that the complainants are aggrieved by the contravention; provided that a complaint shall not be entertained by the Commissioners in pursuance of this section, unless such complaint is accompanied by a certificate of the Board of Trade to the effect that, in their opinion, the case in respect of which the complaint is made is a proper one to be submitted for adjudication to the Commissioners by such municipal or other public corporation, local or harbour board."* Now, this is, to our thinking, perhaps the most important provision of the Regulation of Railways Act, 1873; and if the Commissioners continue to construe the Act as simply endowing them with judicial powers instead of conferring upon them inspectorial duties it is almost the only one which will be productive of any business which will come
This principle is to a certain extent carried out by section 6 of the Act, which provides that “Any person complaining of anything done, or of any omission made, in violation or contravention of section 2 of the Railway and Canal Traffic Act, 1854, or of section 16 of the Regulation of Railways Act, 1868, or of this Act, or of any enactment amending or applying the said enactments 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 Commissioners, &c.” The way to make this thoroughly effective would be to allow the Board of Trade to appoint one of the Assistant Cemmissioners, upon whose report the Commissioners might act. To do this, all that would be necessary would be a revision of the General Orders.
them. Here we have, in fact, an admission of the principle that the care of the interests of the public as to those matters of prejudice, preference and facilities, must be undertaken by a public body-(in this case working with and under the Board of Trade). Here we have a carrying out to some extent of the provision of the Royal Commission of 1865, which recommended a submission of a case for investigation to the proper court after it had been enquired into by the Board of Trade. But passing from this admirable provision, we will consider the sections of the Act which seem to us to imply the exercise of inspectorial functions by the Railway Commissioners.
First, it is to be noted, that in connection with working agreements, which are about to be entered into by railway companies, the Railway Commissioners have a right to hear objections,* and must approve of any such working agreement before it comes into force, but further it is provided that at the expiration of the period of ten years after the making of such agreement the Commissioners may, if they are of opinion that the interests of the public are prejudicially affected thereby, cause it to be revised, and may modify the agreement so as to make it more conformable to the public interest.t There is a similar provision with reference to the revision of the powers of railway companies relative to steam vessels. I How are the Commissioners to discover whether the interests of the public are prejudiced by an examination of a copy of the working agreement ? Is it to be expected that railway draughtsmen will be so inexpert as to allow any prejudice which is likely to arise under such an agreement to appear on the surface? What would strike one as being the best method of discovering whether a modification of such agreement, or whether the limitation of the
* Railways Clauses Act, 1863 ; Part iii. sect. 24. † The Railways Clauses Act. Part üi., 8. 35. And the Regulation of Railways
Act, 1873, 8. 10. Railways Clauses Act, 1863. Part iii., s. 27. And the Regulation of Railways
Act, 1873, 8. 10.
exercise of such powers would be for the advantage of the public ? Surely a visit to the place, an enquiry amongst the people, a personal examination of the facilities afforded. Yet the commissioners, by general order 6, provide for an application, and by their directions relating to working agreements, recently issued, they make it necessary that certain documents should be left with such application at their office.
Section 14 provides that every railway company and canal company shall keep at each of their stations and wharves a book or books showing every rate for the time being charged for the carriage of traffic 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 such rate is charged. There is no provision in the Act for the discharge of the Commissioners duties with reference to this section, but the Commissioners, instead of providing for the inspection of such books from time to time by one of their number, or by one of the Assistant Commissioners, who bring skilled knowledge to bear upon the difficult questions involved, have provided (general order 9) for an application for a summons, calling on the railway company to show cause why they do not comply with the Act. But it appears from the report of the Joint Select Committee on Railway Companies Amalgamation * that the publication of rates in this way with reference to goods traffic was a most difficult and and complicated operation,t and if the preparation of such a record is found a difficulty by a railway company, the comprehension of such a record when prepared would be impossible to any person who might feel himself aggrieved, and might inspect the book with a view to ascertuining the real facts of the case. An ordinary Bradshaw's Guide puzzles most people.
Report, p. 38. + This also appeared from the evidence given before the Railway Commissioners in Goddard v. The London aud South Westeru Railway.
Section 17 provides that "every railway company owning, or having the maintenance of, any canal, shall at all times keep such canal and all the reservoirs, works, and conveniences in connection with it 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, interruption, or delay." Here, again, there is no provision in the Act for the enforcing of this section, but the commissioners have (general order 17) provided that they shall enforce this, not by inspection, but through an application for a summons calling on the railway company to show cause, and, if necessary, by an order. We cannot think that this will have the desired effect. In every one of these cases it is to be remembered that the fight will be between the lean purse of a poor man and the fat purse of a wealthy company; that circumstance is of itself sufficient to deter most people from seeking their remedy. To most it will seem that in such a case the cure would be worse than the disease. Under such circumstances skilled inspection by the commissioners or by some one appointed by them would, to our thinking, be a better method of discovering whether the provision of the Statute were complied with or
or not, and consequently much beneficial to the public. But further there is an express provision for inspection under section 25 sub-section (a), which says, “ They” (the Commissioners) may, by themselves, or by any person appointed by them, prosecute an inquiry, enter, and inspect any place or building, being the property or under the control of railway or canal company, the entry or inspection of which appears to them requisite."
These are wide powers, and might, in our estimation, if judiciously exercised, be productive of much good to the community. But the word “tribunal” was still ringing in the Commissioners' ears when they read this section, and they seem to read this sub-section as if it referred only to enquiries