of certain joint-stock companies. This power appears to be applicable to railway companies completely registered, but which have not obtained their acts of incorporation (x). 10. The statutes contain provisions which direct the mode in which all documents issuing from the Board of Trade are to be signed; and, also, what shall be deemed a sufficient service of them upon railway companies (y). And the Railway Clauses Consolidation Act also enacts upon this subject, “that all regulations, certificates, notices, and other documents in writing, purporting to be made or issued by or by the authority of the Board of Trade, and signed by some officer appointed for that purpose by the Board of Trade, shall, for the purposes of this and the special act, and any act incorporated therewith, be deemed to have been so made and issued, and that without proof of the authority of the person signing the same, or of the signature thereto, which matters shall be presumed until the contrary be proved; and service of any such document, by leaving the same at one of the principal offices of the railway company, or by sending the same, by post, addressed to the secretary at such office, shall be deemed good service upon the company; and all notices and other documents, required by this or the special act to be given to or laid before the Board of Trade, shall be delivered at, or sent by post addressed to, the office of the Board of Trade in London (z).” (a) See ante, 15. The Board of Trade may also dispense with or modify certain conditions necessary to obtain registration under 7 & 8 Vict. c. 110; see sect. 62, post, Appendix, 62. (y) See 3 & 4 Vict. c. 97, s. 20, post, Appendix, 19; 5 & 6 Vict. (z) See 8 Vict. c. 20, s. 67, post, Notices, &c., how to be served and signed. It will be seen from the foregoing summary, that, notwithstanding the resolution of the Board of Trade which was promulgated during the session of Parliament 1845 (a), the jurisdiction of the Board over railway companies is still very extensive in its application; and experience seems to shew, that the labours of this department will greatly increase, as railway communication is more and more extended. The necessity of a powerful and vigilant control over railway transactions in general is nevertheless becoming every day more apparent; and it is probable that in an early session of Parliament the whole subject will be reconsidered, with a view to remodel the constitution of the railway department of the Board of Trade. It will probably be deemed advisable to enlarge the powers of that Board, or to establish a separate department to fulfil its duties (b). (a) See ante, 84. (b) It may be worthy of consideration, whether a separate and distinct department of the government might not exercise a salutary control over all bodies entrusted with the execution of public works, as railways, turnpikes, water-works, bridges, canals, docks, &c.; and any contemplated measures for improving the drainage, and supply of water to large towns, might also be brought into gradual operation, under the superintendance of such a board. It is, however, submitted, that the courts of law and equity should continue to exercise their powers as they do at present, and thus the decisions or recommendations of the Board for Public Works, on engineering and other matters entrusted to them, might be enforced by mandamus, or other similar proceeding. Any system, which may transfer the administration of the law from the ordinary tribunals to a public board, will be looked upon with suspicion, however ably and up. rightly the powers of such a Board may be exercised. 103 §4.-ON THE CONSTITUTION OF RAILWAY COMPANIES, AND THEIR POWERS TO RAISE THE NECESSARY CAPITAL. THE Consolidation Acts, passed in the session of Parliament 8 Vict., consist of three statutes:-The Companies' Clauses Consolidation Act; The Lands Clauses Consolidation Act; and The Railway Clauses Consolidation Act. These statutes, as their titles indicate, relate to two principal objects (a): 1. The constitution of Railway Companies, and their powers to raise the necessary capital to make a railway; 2. The powers of such companies to purchase and take lands, and construct the railways and the works connected therewith. It is, therefore, proposed to treat in order on these two subjects, reserving for separate other portions of the Consolidation Acts, which sections any may be deserving of notice. But before we proceed with this investigation, it may be useful to give a summary of the contents of a Railway Act, as it was usually framed during the session 1845, the period when the Consolidation Acts first came into operation. Each particular railway act is called, in the Consolidation Acts, "the special act (b)." (a) The two first-named statutes are applicable to companies established for other public undertakings, as well as railways. (b) See 8 Vict. c. 16, s. 2, post, Appendix, 85. scribed quorum be not present, the existing directors continue in office till the first ordinary meeting of the following year. (Id., s. 84, post, App., 100). A director must be a shareholder, and he may not hold or accept any office or place of trust or profit under the company, or be interested in any contract (e). (Id., s. 85, post, App., 100). If he does, or if, in any manner, he participates in the profits of any work to be done for the company, or ceases to hold shares in the company (f), he ceases to be a director, and his place is declared vacant. (Id., s. 86, post, App., 100). But the disqualification as to contracts does not extend to contracts made with an incorporated joint-stock company, of which the director is a member; nevertheless such director cannot vote on any question of contract with such joint-stock company. (Id., s. 87, post, App., 101). The directors retire from office at the times and in the proportions prescribed in the special act: and if no number be prescribed, one-third at the end of the first year, one other third the second year, and the remaining third the third year; the rotation being determined by ballot: but retiring directors are eligible to be re-elected. (Id., s. 88, post, App., 101). If a director dies, resigns, becomes disqualified or incompetent, or ceases to be a director by any other cause than by going out by rotation, the remaining directors may elect a shareholder to supply his place. (Id., s. 89, post, App., 101). If the shareholders neglect to elect the full number of directors, which the special act requires to manage the affairs (e) This applies only to contracts made with the company in the execution of its enterprise. In The Sheffield and Manchester Railway Co.v. Woodcock, (7 Mee. & W. 582), it was held, that a similar clause did not disqualify directors, who were members of a banking company, from acting as bankers to the railway company. (f) Bankrupts and insolvents are, therefore, disqualified. (See Phelps v. Lyle, 10 A. & E. 113). But, it seems, if a shareholder makes an equitable mortgage of his shares, that does not disqualify him. (Per Lord Abinger, C. B., in Cumming v. Prescott, 2 Y. & Col. 488). of the company, it seems that a mandamus would lie to compel an election (g); but, with respect to the occasional vacancies occasioned by any other cause than by going out of office by rotation, it is in the option of the remaining directors, whether they will fill up such vacancies or not. In a late case, a railway act provided that the business of the company should be carried on under the management of twelve directors, to be chosen from among the proprietors holding ten shares each; and it was further provided, that, when and so often as any director should die or resign, or become disqualified or incompetent to act as a director, it should be lawful for the remaining directors to elect some other proprietor duly qualified in his place. The Court of Common Pleas decided that the act of Parliament did not require that there should be always twelve directors of the company, and that the power of re-election, given in cases of death or other disqualification, was not compulsory upon the remaining directors. If the directors were of opinion that their number was not sufficient, to enable them to carry on the affairs of the company, they might elect others; but upon this point they were entitled to exercise an option (h). On the trial of actions to recover calls on shares, it is expressly provided, that it shall not be necessary to prove the appointment of the directors who made the call (i); and this also excludes a defendant from objecting to the authority of directors to institute proceedings, by making a summary application to the court in which the action is brought (j). It has also been decided, that, if there be a body of directors (g) Thames Haven Dock Co. v. Rose, 4 Man. & G. 559; 2 Dowl., N. S., 104. But see post, 126, n. (o). R. v. Worcester Canal Company, 1 M. & R. 529. (h) Thames Haven Dock Co. v. Rose, 4 Man. & G. 552; 2 Dowl., N. S., 104. (i) 8 Vict. c. 16, s. 27, post, Appendix, 91. (j) Thames Haven Railway Co. v. Hall, 5 Man. & G. 274; S. C., 3 Railway Cases, 441. |
