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III. Of the Traffic on the Railway, and herein of the Company viewed as Carriers.
1. Of Goods.
2. Of Passengers.
SECT. 1.-Of the User generally.
405. ASSUMING the railway and all necessary works to be constructed, it is proposed in the next place to treat of the provisions made for the use of such railway. The general principle by which the legislature has been guided in framing the usual provisions found in railway acts on this head appears to have been this, viz. to secure to the public the most beneficial use of the railway that is consistent with a due regard to the interest of the railway company, and their adequate remuneration for the expenses necessarily incidental to the undertaking. With this view, a railway act usually enacts, (a) that all persons shall have free liberty to use the railway, with carriages properly constructed, upon payment
(a) See Railway Clauses Consolidation Act (8 Vict. c. 20), s. 92, post, App.
of the rates and tolls demandable by the company, and subject to the rules and regulations which they shall from time to time make, under the authority of their act. The effect of such an enactment is to constitute the railway, in point of law, a highway on which all the world have a right to carry goods and passengers; though in point of fact, the exercise of the right is to a great extent impracticable, as well from the want of any corresponding provision with regard to (b) stations, warehouses, &c., as from the nature of the mode of conveyance, which must ever forbid, not merely all competition of rival carriers, but even the free use of the railway by private carriages. (c)
406. In thus throwing open the railway to the public the legislature has, at the same time, been careful to provide for the interests of the company by empowering them not only to take certain tolls for the tonnage of goods, &c., but themselves to become carriers(d). By virtue of the above provisions a twofold state of things may arise, either the company may be simply the owners of the way on which
(b) Under this state of the law which gives the public no right of access to the yards, stations, &c. of railway companies, although the railway itself is thrown open to the public as a highway, semble, the directors of these companies may be taken to have unlimited discretion in regard to the admission or exclusion of public conveyances, &c. from access to their stations, &c. See Rep. of Officers of the Railw. Dep. for 1842, pp. xx, xxi.
(c) Judgment of Lord Denman, C. J., in Reg. v. London and South Western Railway Company, 1 A. & E. N. S. 575. See also judgment of Wigram, V. C., in North Union Railway Company v. Bolton and Preston Railway Company, 3 R. Cas. 364.
(d) See Railway Clauses Consolidation Act (8 Vict. c. 20), s. 86 et seq. post, App.
others place steam-power and carriages, and convey persons and goods, in which case the two parties would stand much in the same relation to each other as the trustees of a turnpike road and the coach and postmasters conveying passengers on it; or the company may avail themselves of the latter clause and unite both characters of owners of the way and carriers on it.(e)
SECT. 2.-Of Tolls.
I. Of the general Nature and Extent of the Right to Tolls. II.-How it may be defeated.
407. I. As to the nature and extent of the company's right to tolls. An inquiry into the nature and extent of the company's right to tolls involves various points, viz. what description of article, &c. is the subject of toll within the provisions of the company's act; or, if tolls varying in amount or tolls of a different character are imposed on the same article, whether the one toll is to be construed as cumulative and additional over and above the other, and if not, which of the two is the one payable in the particular case, &c. The principle, however, by which the decision must be governed in all these cases is uniformly the same, viz. that, to entitle the company to toll, there must be a plain declaration of the in
(e) Ibid. There is a third and intermediate state of things which, though it has not been thought necessary to notice it in the text, in point of fact has arisen in some instances, viz. where the company supply the steam power but do not carry.
tention of the legislature to impose it; (f) and consequently if the language of the act is ambiguous, or admits of different meanings, that constrction is to be adopted which is most favourable to the interest of the public and against the company. (g)
408. A railway company were empowered by their act to demand the following tolls: upon all coals, &c. carried along the railway, a toll not exceeding fourpence per ton per mile, &c.; for all articles, &c. for which a tonnage was thereinbefore directed to be paid, which should pass certain inclined planes upon the company's railway, a sum not exceeding one shilling per ton; and for all coal shipped for exportation in the port of A., a toll not exceeding one halfpenny per ton per mile. It was held, that the lower toll of one halfpenny was not to be construed as a cumulative toll over and above the higher, but that the proper construction of the above provision was to hold that the latter branch thereof excepted the coals therein described out of the operation of the general words of the first branch, and imposed the lower duty thereon in lieu of the higher, and also that all coals shipped for London, at a place within the legal port of A., but at some distance from the town of A., were coals shipped for exportation in the port of A. within the meaning of the latter branch of the provision so as to be entitled to the benefit of the reduction, and this though in a former part the act spoke of the port and town of A. (g)
(ƒ) Judgment of Lord Ellenborough,C. J., in Gildart v. Gludstone, 11 East, 675; judgment of Tíndal, C. J., in Barrett v. The Stockton and Darlington Railway Company, 2 M. & Gr. 165.
(g) Barrett v. The Stockton and Darlington Railway Company, 2 M. & Gr. 134; S. C., in error, 3 M. & Gr. 956.
409. The above principles of interpretation are not to be pushed to such an extent as to defeat the company's right to toll, where, upon the fair construction of the words of the act, the intention of the legislature to impose the toll is sufficiently clear. Thus, in the case above referred to, it was held that the duty payable in respect of passing the inclined plane was clearly intended to be superadded to the distance duty in all cases where coals passed over the inclined plane, and was therefore payable as well on coals intended for exportation as others. (k) And again, where an act provided that every carriage conveying passengers was to be charged a certain tonnage per mile, it was held that the duty was payable on the combined weight of the carriage and passengers, the fair interpretation being that the tonnage was to be taken upon the carriage with the passengers upon it, and that the words "conveying passengers" were not merely descriptive of the carriages but indicative of the matters that were to be weighed, and to be in that respect subjected to a tonnage. (i)
410. II. As to the manner in which the right to tolls, supposing it to exist, may be defeated. To take away a vested right to tolls, there must, it seems, be a clear declaration of the purpose of the legislature to that effect; it cannot, therefore, in general, be done by way of inference, (k) but only by express words. An embankment company were, by an act of parliament, authorized to make a road, and to erect turnpikes across any ways leading or (h) See ante, p. 301, n. (g).
(i) The Edinburgh and Dulkeith Railway Company v. Wau chope, 3 Railw. Cas. 232.
(k) Rowe v. Shilson, 4 B. & Ad. 726.