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in the case of the Melbourne and Hobson's Bay Railway. The Acts relating to the two first-mentioned railways make provision for giving the Government the security of a mortgage of the property and income of the company for the repayment of advances under the guarantee, and to a certain extent a control over the management of the railway, by providing that two out of the six directors shall be nominated by the Governor of the colony. But in other respects the conditions of the guarantee are not set forth in the Acts, being left for future arrangement between the colonial government and the company. Their Lordships would suggest that if, in settling the terms of the guarantee, an opportunity should be afforded of requiring an amendment of the Acts of either of these companies, it might be expedient to stipulate for a more effectual control, on the part of the Government, over the expenditure of the money to be advanced on the public credit, by requiring that not only the direction of the course of the line (as is provided by the present Acts), but also the manner of constructing the works should be subject to the supervision of some officer appointed by the Government.
In connexion with this subject their Lordships would also observe, that the Acts now under consideration do not appear to contain any express provision for giving effect to the security which the Governor, in his Despatch already referred to (paragraph 19), considers the Government are to possess, and which he describes in the following terms: "As long as the guarantee continues, all profits in any year above five per cent will form a reserve fund to meet any deficiency in future years.' s." It appears advisable that, if there should be occasion for passing an Act to amend the present Acts, no doubt should be left on a point of so much importance.
The power given by these Acts to Her Majesty's Government to purchase the railway at the end of ten years, and within twenty-one years from the completion of the line, is also a provision on which the Governor appears to place some reliance, for the protection of the public, as a mode of terminating the guarantee. By the terms of the Acts, the power may be exercised at any time within the specified period, whatever be the rate of the company's divisible profits, and so far, its exercise is not liable to be affected by the financial transactions of the company. But the price is to be fixed, in the case of the Mount Alexander Railway at twenty-five, and in that of the Geelong Railway at sixteen years purchase, of the average divisible profits of the three preceding years, or, at the option of the Government, at the rate of 250l. for every 100l. of capital, in addition to guaranteeing the payment of all loans contracted by the company. It would seem to be impossible to judge of the expediency of purchasing on these terms without having the means of accurately ascertaining the actual resources and liabilities of the company; and the Government might be unable to exercise its power with advantage, unless the accounts of the company were subject to the examination and correction that would be insured by a strict and impartial audit. And thus, the practical operation of this provision, no less than that of the power of revising the fares and charges, (as will presently be observed,) may depend upon the efficiency of the regulations for conducting the audit of the companies accounts, which the Acts authorize the Governor of the colony to direct.
It is hardly within the province of their Lordships to express an opinion on the propriety of the proposed grants of public money for the preliminary survey. It appears to them, however, that such a survey would be useful in enabling the colonial government to form a judgment upon the merits of the plans to be submitted to them by the companies, and may be the means of preventing the unnecessary expenditure of capital on lines, which if fuller information had been obtained in the first instance, might have been constructed in a more practicable or advantageous course.
In making the following observations on other provisions of the Acts, my Lords will proceed in the first place with those that apply to all the Acts, and afterwards subjoin some remarks relating to each of the Acts separately.
By the 41st section of the Melbourne and Hobson's Bay Railway Act (as also by the 51st section of the Melbourne, Mount Alexander and Murray River Railway Act, and the 53d section of the Geelong and Melbourne Railway Act), the Executive Government of the colony is empowered to revise the tolls, fares, and charges on the railway, but the power is to be exercised only in the event of the divisible profits of the company attaining a certain rate, and is thus made dependent on a condition that, from its liability to be evaded by the financial operations of the company, may prevent the provision from having any practical effect. In this point of view. the public audit of the company's accounts authorized by the same sections of the Acts, becomes a matter of great importance as affording the means of investigating the accuracy of the accounts and ascertaining the financial condition of the company. The present provision only empowers the Governor in general terms to direct an audit. It would therefore devolve on the Governor to regulate the mode of conducting the audit, and it may be matter for consideration whether fuller powers should not be given, to enable him to make and enforce the regulations necessary for rendering the audit effectual.
The byelaws which by these Acts the companies are empowered to make, are not subject to revision by any superior authority. Their Lordships would suggest that in conformity with the principle adopted in the Imperial Act for regulating railways, 3d and 4th Victoria cap. 97, sections 7, 8 and 9, and agreeably to the course generally pursued in other colonial railway acts, the approval of the Governor of the colony should be required to all byelaws affecting persons other than the officers and servants of the company.
By the provisions of these Acts relating to 'the conveyance of mails, the companies ere obliged to provide the conveyance "at the usual hours of starting" only, as in the Imperial Act 7th and 8th Victoria, cap. 85. sect. 12. Their Lordships understand that in the case of some colonial railways, it has been considered that this limitation might be found inconvenient as respects the conveyance of troops; they are therefore desirous of drawing the attention of his Grace to the point, in case it should be so considered in the present instance.
The Acts under consideration adopt the provisions of the 13th section of the Imperial Act, 7th and 8th Victoria, cap. 85. with respect to the power of the Government to establish a line of electrical telegraph on the railway, but does not contain any clause similar to the 14th section of that Act, providing that where a telegraph has been laid down by the company or a private party, it shall, subject to the prior right of use by the Government, be open to all persons without favour or preference, and at equal charges.
The Acts do not contain any provision requiring that the fares and rates shall be charged equally to all persons under the same circumstances, a condition almost universally adopted in Railway Acts, both in this country and in the colonies.
In the absence of any general legislation on the subject of railways in this colony, it is necessary that each Victoria railway Act should comprise within itself the whole of the provisions that may be considered requisite for the protection of the public interests. Provision is made by the present Acts for the conveyance of mails and troops, and for laying down an electrical telegraph on the line of the railway; but of the other matters which in this country have been made the subject of general legislation, with a view to the public safety and convenience, their Lordships would particularly observe that these Acts do not contain any provisions, similar to those of the imperial Acts, relating to cheap trains, the appointment of inspectors, the opening of railways after notice, and inspection and returns of traffic and accidents.
Their Lordships are desirous that the attention of the Duke of Newcastle should be called to these variations from the course pursued in legislating on railways in this country leaving it as a matter for his Grace's consideration what degree of importance is to be attached to them with reference to the local circumstances of the colony, and whether any correction may be required in the way of supplementary legislation.
Their Lordships will conclude with the following observations with reference to the Acts separately:
The Melbourne and Hobson's Bay Railway Act differs from the two other Acts in not providing that a certain proportion of the company's capital shall be subscribed and paid up before the powers of taking land and constructing the railway are put in force. Their Lordships have thought it right to remark on this omission, having been unable to discover, from the documents that are before them, any sufficient reason for excepting this company from the general rule of railway legislation, requiring some test of this kind of the solidity of a railway scheme before the projectors are permitted to exercise the powers of their Act.
In the 41st section of the same Act, by which the maximum fares and charges are fixed, a maximum fare of 18. 6d. is limited for first-class, and 1s. for second-class, but not any for third-class passengers. It appears to my Lords that it may be advisable to bring this circumstance to the notice of his Grace, as even allowing for the present state of prices in this colony, it may be thought that in return for the liberal grants of Crown land proposed to be made to the company, it would not be unreasonable to stipulate for the conveyance of the poorer class of travellers at a lower fare than 18., over a line of little more than two miles in length, and passing through what is called in the Governor's Despatch a "dead level."
The Melbourne, Mount Alexander and Murray River Railway Act does not contain any clause prohibiting the crossing of roads otherwise than by means of a bridge, yet no provisions are introduced for securing the public safety at level crossings.
Sections 72 and 75 of the same Act, which impose a penalty for the offences of obstructing or trespassing on the railway, do not contain any provision for the imprisonment of the the offender in default of payment of the fine. Considering the class of persons by whom offences of this kind are likely to be committed, a fine alone does not appear to be a punishment well adapted to meet the case.
A provision of the kind above mentioned is contained in the Imperial Act, 3 & 4 Vict. c. 97. s. 16, relating to the same subject, and also in one of the present Acts (Melbourne and Hobson's Bay); and if an amendment of this Act should take place, it may deserve consideration whether such a provision should not be introduced.
Section 40 of the Geelong and Melbourne Railway Act requires that in crossing roads, they shall be carried over or under the railway by means of a bridge, but does not contain any provisions for regulating the dimensions of the bridge or the inclination of the altered road.
Sections 77 and 78 of this Act are open to the same remark as that stated above with reference to the 72nd and 75th sections of the Melbourne, Mount Alexander, and Murray River Act.
This Act does not contain any provision for limiting the time within which the company may take land compulsorily, and exercise their other powers relative to the construction of the railway. A limitation of this kind is invariably inserted in railway Acts in this country.
The Melbourne and Hobson's Bay Railway Act provides for the constauction of the
Herman Merivale, Esq.,
Enclosure 2 in No. 3.
EXTRACT of a Report from the Colonial Land and Emigration Commissioners to
"THE first of the three Acts, the Mount Alexander and Murray River Railway Company, is beyond comparison the most important, if considered in its full scope. Its capital is 1,000,000l., with a power of increase up to 1,500,0007., and the intention is to carry a railway by the principal gold fields towards part of the River Murray, in order that it may be eventually continued to Sydney.
"In the first instance, however, the company are merely about to carry their railway to Williams Town, a point in Hobson's Bay, about seven miles distant from Melbourne. Besides the general facilities already mentioned, the Lieutenant Governor proposes that this company should receive 5,000l. from the unappropriated moiety of the land fund, to be expended in preliminary surveys, and a guarantee to the shareholders on the same security, and for twenty-one years, of interest of 5 per cent. on their paid up capital to the extent of 1,000,000l.
"These proposals have been approved by the Legislative Council, who, on the recommendation of a select committee, have passed the present Act of incorporation. The Act empowers the company to pay 10 per cent. interest on any money advanced by the shareholders beyond their calls, (s. 6,) and when their line (which is not yet decided upon) shall have been approved by the Government, to take any lands which may be necessary for their purpose, with compensation of course to the owners, but without their consent, except in the case of houses, buildings, or lands belonging thereto. The Government, however, may purchase the railway after ten years, either paying twenty-five years purchase of the average divisible profits, or defraying the debts of the company, and paying 250l. for every 1001. expended, (s. 63.) There is also a clause of forfeiture, in case the company does not complete within seven years the lines authorized by the Act; these lines being from Melbourne to William's Town, and towards the River Murray, (ss. 30-32.)
"These appear to us very liberal terms, especially as the power of lending to the com pany at 10 per cent. would seem to enable the shareholders, after taking 10 per cent. on that part of their money which they had advanced as loan, to claim the Government guarantee of 5 per cent. on that part which they had paid up as calls. And thus the Government might be paying 10,000l. or 20,000l. a year, while the shareholders were practically receiving, not 5, but 7 or 8 per cent. The result in general is that Government advances the preliminary expenses, gives the land, and guarantees interest on the capital, in return for a right of buying at twenty-five years' purchase, in a colony where the ordinary rate of interest is 8 per cent.
"The details of the Act will fall under the consideration of the Railway Board. But we may perhaps observe that there appears to be some mistake in the 3d, 4th, and 5th sections which provide, (1,) that shareholders should be liable to twice the extent of their shares, (s. 3, init.); (2,) that they shall not be liable beyond the extent of their shares, (s. 3, ad fin); (3) that any money paid under such liability beyond double the amount of their shares should be repaid by the company. It was probably intended that shareholders (1,) should be liable to twice the amount of their shares-(2,) should not be liable for any further amount—and (3,) should recover from the company any money paid by them above the amount of their unpaid calls.
"The capital of the Melbourne and Hobson's Bay Railway Company is 100,000, with the power of increase to 200,000l. The promoters applied for a loan of 50,000l. and their application was submitted to the Legislative Council, but it was not thought proper to give them any pecuniary assistance. They will merely receive a grant of land for their line, and apparently, a terminus at each end, with the privilege of carrying their jetty out into deep water. Under the Act the railway is purchaseable on the same terms as the Mount Alexander and Murray River Railway, except that the price is sixteen instead of twenty-five years purchase.
*Say, guaranteed dividend on 300,000l. paid up
But 75,000l. is rather more than 8 per cent. on 900,000l. practically paid up.
Encl. 2 in No. 3
"10. The capital of the Geelong and Melbourne Railway Company is 350,000l., with power of increase to 500,000l. They are to receive an advance for payment of preliminary expenses of 1,000l., and a Government guarantee of 5 per cent. on 200,000l. Shareholders may advance money at such rate of interest as may be agreed upon. Lands may be taken after the line has been approved by the Lieutenant Governor, and the Government right of purchase is the same as in the case of the Melbourne and Hobson's Bay Railway Company.
"11. The gauge is to be in all cases five feet three inches. If (as appears to be intended,) a different gauge is adopted in New South Wales, this decision will probably be reconsidered."
COPY of a DESPATCH from the Duke of NEWCASTLE to
Downing-street, December 24, 1853. I HAVE received your Despatch, No. 5 of the 12th of January last, enclosing a further correspondence with Mr. Bingley on the subject of the arrangement of the waste lands in Victoria.
I had deferred answering that Despatch until I should have communicated to you the decision of Her Majesty's Government on the general question of the claims of the licensed occupiers of lands, under the Order in Council of March 1847, and I have now to refer you to my Despatch, No. 126*, of the 29th ultimo, as disposing of the points raised in Mr. Bingley's correspondence.
Lieut.-Governor La Trobe,
I have, &c., (Signed)