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And in all cases where railways cross turnpike roads, highways, private roads, and tramways, on the level, and the railway company are willing at their own expense to carry such roads and ways over or under their railway, by means of a bridge or arch, the Board of Trade are empowered, on the application of the company, and after hearing the parties interested, if it shall appear that the level crossing endangers the public safety, and that the proposal of the company does not violate existing rights or interests without adequate compensation, to give the company authority to build a bridge, or make such other arrangements as the nature of the case shall require (m).
The control of certain gates placed upon railways, is also entrusted to the Board of Trade. On this subject it is necessary to state, that, before the passing of stat. 5 & 6 Vict. c. 55, railway companies were, in certain cases compelled, by their acts of incorporation, to keep gates constantly closed across their railways, for the purpose of protecting turnpike and other roads, which crossed the railway on a level; but that statute directs, that, in all such cases, gates shall be kept closed across each end of the turnpike or other road, in lieu of across the railway; but it is provided, that the Board of Trade may, in any case in which they are satisfied that it would be more conducive for the public safety that the gates at any level, crossing over any road, should be kept closed across the railway, to order and direct that they shall be kept so closed, instead of across the road (n). And by the Railway Clauses Consolidation Act similar powers with regard to all gates across such roads, are given to the Board of Trade (o). And, by the same act, trains may not cross a turnpike road on a level, adjoining
(m) 5 & 6 Vict. c. 55, s. 13, post,
(n) Id., s. 9, post, Appendix, 22.
(0) 8 Vict. c. 20, s. 47, post, Appendix, 172.
any station, at a greater speed than four miles an hour; and the company are made subject to all such rules and regulations, with regard to such crossings, as may from time to time, be made by the Board of Trade (p). So, the Board may require the company to make a screen, or other works, on the side of roads adjoining a railway, to prevent horses from being frightened (q).
The Board of Trade are also armed with very extensive powers, which enable them, in certain specified cases, to authorise companies to take possession of lands adjoining to railways, which the special railway acts would not justify a trespass upon. These powers, extensive in their nature, are granted for purposes connected with the public safety; and it is provided, that the works shall be as little injurious to the lands, as the nature of the case will admit of, and shall be executed with all possible despatch, and full compensation made to the owners and occupiers of such lands, for the loss or injury or inconvenience sustained by them (r).
Thus, the Board of Trade may empower any railway company, in case of an accident or slip happening, or being apprehended, to any cutting, embankment, or other work, to enter upon any lands adjoining the railway, for the purpose of repairing or preventing the accident, and to do such works as may be necessary for the purpose; and, in cases of necessity, the company may enter and execute such works, without the previous sanction of the Board, the company taking care, within forty-eight hours after such an entry, to report the nature of the accident or apprehended accident, and the works necessary to be done, to the Board of Trade. But these powers cease, if the Board, after considering the report,
(p) 8 Vict. c. 20, s. 48, post, Appendix, 172.
(9) 8 Vict. c. 20, ss. 63, 64, post,
(r) 5 & 6 Vict. c. 55, s. 14, post, Appendix, 24.
certify that they are not necessary for the public safety (s); and it is further provided, that no land shall be taken permanently for such works, without a certificate from the Board of Trade (s).
So, in cases where the compulsory powers given by any railway act to a company, of purchasing and taking lands, have expired, then, if the Board of Trade shall certify that the public safety requires additional land to be taken by the company, "for the purpose of giving increased width to the embankments, and inclinations to the slopes of railways, or for making approaches to bridges or archways, or for doing such works for the repair or prevention of accidents as are hereinbefore described (t)," the compulsory powers of purchasing and taking land, which may be contained in the act of the company, revive, so far as regards the portions of land mentioned in the certificate (u).
4. The jurisdiction of the Board of Trade over bye-laws, Authority of the depends chiefly upon certain enactments contained in stat. 3 sanction bye-laws. &4 Vict. c. 97. That statute recites, that many companies were, or might thereafter be authorised to make bye-laws, orders, rules, or regulations, and to impose penalties upon persons other than the servants of the companies; and then enacts, that copies of all such bye-laws, &c., made before the passing of the act [10th August, 1840], certified as may from time to time be directed by the Board of Trade, shall, within two months after the passing of the act, be laid before
(*) 5 & 6 Vict. c. 55, s. 14, post, Appendix, 24.
(t) 5 & 6 Vict. c. 55, s. 15, post, Appendix, 25.
(u) 5 & 6 Vict. c. 55, s. 15, post, Appendix, 25. The company are required to give notice to the parties interested in the lands, of their intention to apply for a certificate, and
such parties are entitled to be heard
them; and that every such bye-law, &c., not so laid before them, shall cease to have any force or effect (z).
And, as to future bye-laws, it is further enacted, that no bye-law, &c., which should not be in force at the time of the passing of the act, and no order, rule, or regulation annulling any existing bye-law, &c., which should be made after the passing thereof, shall have any force, until two months after a copy of such bye-law, &c., certified in like manner, shall have been laid before the Board, unless the Board shall before such period signify their approbation thereof (y).
The Board are also authorised, at any time either before or after any bye-law, &c., laid before them, shall have come into operation, to notify to the company their disallowance thereof, and, in certain cases, the time at which it shall cease to be in force; and no bye-law, &c. so disallowed has any force (z). The statute also repeals every enactment contained in any act of Parliament theretofore passed, which required the approval or concurrence of any justice of the peace, court of quarter sessions, or other persons other than members of the said companies, to give validity to their bye-laws (a).
It may be collected from the foregoing enactments, (although they are not very clearly expressed), that the power to make bye-laws, upon persons other than officers and servants, is still preserved to railway companies, as it existed before the statute, subject, nevertheless, to the control of the Board of Trade; but with respect to bye-laws made for regulating the conduct of the servants of the company, it seems, that the Board of Trade have no jurisdiction
(x) 3 & 4 Vict. c. 97, s. 7, post, Appendix, 16.
(y) 3 & 4 Vict. c. 97, s. 8, post, Appendix, 16.
(z) Id., s. 9, post, Appendix, 16. (a) 3 & 4 Vict. c. 97, s. 10, post, Appendix, 17.
over such bye-laws. And the Consolidation Acts do not appear to have altered the law in this respect, because the powers conferred on railway companies, by 8 Vict. c. 20, 8. 109, (post, Appendix, 187), to make bye-laws for regulating the use of the railway, are given, subject to the provisions of the foregoing statute: whereas sect. 124 of the 8 Vict. c. 16, (post, Appendix, 108), which empowers them to make bye-laws for the regulation of officers and servants, and for providing for the due management of the affairs of the company, contains no reference to stat. 3 & 4 Vict. c. 97.
The Board of Trade have framed the under-mentioned code of bye-laws, which is now usually adopted (b).
(b) 1. No passenger will be allowed to take his seat, in or upon any of the company's carriages, or to travel therein upon the said railway, without having first booked his place and paid his fare. Each passenger booking his place will be furnished with a ticket, which he is to shew when required by the guard in charge of the train, and to deliver up before leaving the company's premises, upon demand, to the guard, or other servant of the company duly authorised to collect tickets. Each passenger not producing or delivering up his ticket will be required to pay the fare from the place whence the train originally started.
2. Passengers at the road stations will only be booked conditionally, that is to say, in case there shall be room in the train for which they are booked; in case there shall not be room for all the passengers booked, those booked for the longest distance shall have the preference; and those booked for the same distance shall
have priority, according to the order in which they are booked.
3. Every person attempting to defraud the company, by riding in or upon any of the company's carriages, without having previously paid his fare, or by riding in or upon a carriage of a higher class than that for which he has booked his place, or by continuing his journey in or upon any of the company's carriages beyond the destination for which he has paid his fare, or by attempting in any other manner whatever to evade the payment of his fare, is hereby subjected to a penalty not exceeding forty shillings.
4. Smoking is strictly prohibited both in and upon the carriages, and in the company's stations. Every person smoking in a carriage is hereby subjected to a penalty not exceeding forty shillings; and every person persisting in smoking in a carriage or station, after being warned to desist, shall, in addition to incurring a penalty not exceeding forty shillings,