Reports of the Industrial Commission...

under earlier laws in the North Atlantic States. The Canadian charters indicate that there is room for those variations in law which grow out of differences in individual and local conditions. A railway projected through a thinly settled frontier district is very different from one to be operated in a densely populated fertile country. This the Canadian charters recognize and the general law permits. The special railway acts of Canada are little more than a means of providing for the peculiarities of the particular road authorized under the act, and specifying to what extent provisions of the general law shall or shall not apply in that particular case. These charters state the amount of capital stock to be issued, and places a definite limitation upon any future issue of bonds, debentures, or other railway securities in proportion to the length of the railway constructed. This supplies a noteworthy provision in which, it will be recalled, one of the greatest weaknesses of the American railway charters was found. Both the general law and the special charters specify to what extent public aid may be received; and one of these special charters makes provisions for agreements with other railways, subject to the approval of two-thirds of the shareholders and the governor in council.

39.66

9966

99 66

9966

Coming now to a consideration of the general railway law of Canada, attention should be called at the outset to the list of definitions with which the act opens. Much confusion and indefiniteness has resulted from this lack of definition in American laws. The Canadian law defines such terms as company," "county," court,' department,' deputy," goods,' highway," "inspecting engineer," "judge," "justice," "lines,' map or plans," near, "owner," "railway," railway company," " sheriff," special act," "toll," "tariff," "the undertaking," and "working expenditure." Neither the American interstate-commerce act nor the general laws of our States contain definitions of the term "railway." (The so-called definition of the interstate-commerce act does not define.)

Supreme administrative control over railways is vested in a railway committee of the privy council, composed of the minister of railways and canals, who is chairman of the committee, the minister of justice, and two or more other members of the Queen's privy council for Canada, who, from time to time, are appointed by the governor in council. For purposes of comparison with the powers of American railway commissions, the powers of the railway committee of Canada are here stated in full:

The railway committee may—

(a) Regulate and limit the rate of speed at which railway trains and locomotives may be run in any city, town, or village, or in any class of cities, towns, or villages described in any regulation; limiting, if the said railway committee thinks fit, the rate of speed within certain-described portions of any city, town, or village, and allowing another rate of speed in other portions thereof-which rate of speed shall not in any case exceed 6 miles an hour unless the track is properly fenced.

(b) Make regulations with respect to the use of the steam whistle within any city, town, or village, or any portion thereof.

(c) Make regulations with respect to the method of passing from one car to another either inside or overhead, and for the safety of railway employees while passing from one car to another, and for the coupling of cars.

(d) Impose penalties, not exceeding $20 for each offense, on every person who offends against any regulation made under this section-which penalties shall be recoverable upon summary conviction.

2. The imposition of any such penalties shall not lessen or affect any other liability which any person may have incurred.

11. The railway committee shall have power to inquire into, hear, and determine any application, complaint, or dispute respecting

(a) Any right of way over or through lands owned or occupied by any company. (b) Changes in location for lessening a curve, reducing a gradient, or benefiting the railway, or for other purposes of public advantage.

(d) The crossing of the tracks of one company by the tracks of another. (e) The alignment, arrangement, disposition, or location of tracks.

(f) The use by one company of the tracks, stations, or station grounds of another company.

(g) The construction of works in navigable rivers.

(h) The construction of railways upon, along, and across highways.

(i) The proportion in which the cost of fencing the approaches to crossings on railways constructed or under construction on the 19th of April, 1884, shall be borne by the company and the municipality or person interested.

(j) The compensation to be made to any person or company in respect of any work or measure directed to be made or taken, or the cost thereof, or the proportion of such cost to be borne by any person or company.

(k) Tolls and rates for the transportation of passengers and freight.

(1) The adjustment of such tolls and rates between companies.

(m) Running powers or haulage.

(n) Traffic arrangements.

(0) Transshipment or interchange of freight.

(p) Unjust preferences, discriminations, or extortions.

(q) Any highway, street, ditch, or sewer, water, gas, or other pipes or mail s over or through lands owned or occupied by the company.

(r) Any matter, act, or thing which by this or the special act is sanctioned, required to be done, or prohibited.

In addition, the committee has power to investigate accidents, and to inspect railways and accessory works. examine books, papers, administer oaths, and so on. An important difference in the powers of the Canadian and American commissions lies in the standing given to the decisions of the Canadian committee. Subject to modifications by its own order, "every decision and order of the railway committee shall be final; provided, always, that either party may petition the governor in council, and the governor in council may, in his discretion, rescind, change, or vary such order as he deems just and proper."

The provisions of the law relating to incorporation contain nothing noteworthy except that some definite relation is maintained between capital stock and the length of the railway, and that a financial qualification is required of directors, no shareholder being eligible to this position unless owning 20 shares of stock absolutely in his own right. Petitions for a private charter must be heard by the minister of railways, and if, after such hearing, the desirability of building the projected road has been established, this official issues a certificate declaring such projected road to be necessary in the public interest. Plans and surveys are required containing a general description of the land, names of owners and occupiers, and everything else necessary for the right understanding of such map or plan and profile. The minister examines these plans and must permit persons interested to secure access to the same. Finally, when the road is completed, another map must be deposited with the minister within 6 months after the opening of traffic. The law contains specific provisions governing crossings and junctions. Periodical inspections are required, and, upon the report of an inspecting engineer, a railway may be condemned, repairs and modifications ordered. The by-laws and rules of the company must be submitted in writing and approved by the governor in council; until such approval has been given the same have no force or effect.

Rates are established in the first instance by the company itself; but the governor in council, through the minister, may from time to time prescribe uniform classifications of freight, which the company is bound to accept; and all rates must finally be approved by the governor in council. Schedule and rates, after revision by the governor in council, must be published and posted and kept in places convenient of access for shippers. Provisions on discriminations and special rates are much like analogous sections in American laws and equally strong in their prohibitions. The influence of water competition is recognized, and companies are permitted to discriminate under the stress of such competition; but secret rates of any kind are forbidden.

Although one railway company is enjoined from purchasing or otherwise acquiring shares of stock, bonds, and securities issued by another railway company in Canada, close traffic arrangements may be entered into under the law, as the following quotation will indicate:

"The directors of any company may, at any time, make and enter into any agreement or arrangement with any other company, either in Canada or elsewhere, for the regulation and interchange of traffic passing to and from the company's railways, and for the working of the traffic over the said railways respectively, or for either of those objects separately; and for the division and apportionment of tolls, rates, and charges in respect of such traffic; and generally in relation to the management and working of the railways, or any of them, or any part thereof, and of any railway or railways in connection therewith, for any term not exceeding 21 years; and to provide, either by proxy or otherwise, for the appointment of a joint committee or committees for the better carrying into effect any such agreement or arrangement, with such powers and functions as are considered necessary or expedient; subject to the consent of two-thirds of the stockholders voting in person or by proxy, and also to the approval of the governor in council."

The above are the most noteworthy features of the Canadian law. The usual provisions relating to safety appliances, bells, whistles, regularity of trains, handling of baggage, guarding crossings, investigating accidents, etc., are incorporated in the act; but all these are rather of a secondary nature and do not differ essentially from analogous sections of the best laws in our own States.

India. The early Indian railway charters took the form of contracts between the East India Company and the railway companies. To illustrate this early type of charters, the leading features of the contract between the East India Company and the Great Indian Peninsula Railway will be given.

The Great Indian Peninsula Railway Company was incorporated under an act of Parliament for the purpose of constructing and maintaining such railways as the company jointly with the East India Company might determine. In the determination of the route the East India Company agreed to cooperate with the railway company; also in the construction of the road, and, in addition, to provide the necessary lands. The East India Company reserved the right of estab lishing grades, fixing the weight of rails, and the manner of laying them. The usual provisions governing the capital stock and its division into shares were inserted. The number and speed of trains to be operated by the railway company was subject to the approval of the East India Company. The rates charged for passengers and freight were likewise subject to approval by the East India Company, and whenever the net receipts exceeded 10 per cent, reductions in rates were to be made. The East India Company reserved the right to purchase the railway company on 6 months' notice at the end of 25 and also 50 years, and at the end of 90 years the charter was to expire and the entire railway buildings and fixtures were to revert to the East India Company on payment of the full value of the plant. In the board of directors the company was represented by one member. Periodical accounts, showing the financial condition of the road, were to be submitted to the East India Company. If at any time the East India Company should find the service inadequate or unsafe, and should be compelled to order repairs or improvements, the same could be ordered done at the expense of the railway company by withholding the sums of money thus expended from the interest which the East India Company had guaranteed to the railway company.

The later railway charters of India are in most essentials similar to those of England and Canada, with the exception that the secretary of state is capable, under the law, of exercising unusually large powers. In fact, he seems to have almost absolute control over the railways. The State reserves important rights, which will be considered under the general law, and insists upon systematic train service and adequate facilities of traffic in general. The military features are somewhat important. The charter to which reference is here made was granted in 1892, and, like the general laws, begins with a number of definitions. The road is located under the direction of the secretary of state, under whose guidance, likewise, stations, equipment, and improvements are ordered. Maximum and minimum rates are not provided, but all rate schedules are subject to the approval of the secretary. Railway property may be used for establishing telegraph lines, and all employees in the telegraph service must be provided with free transportation. The secretary of state becomes financially responsible for capital outlays, but the company pays a fixed rate of interest, and keeps such accounts as the secretary of state may require. All moneys must be handed to the secretary and accounts audited by him. Net earnings are to be divided between the secretary of state and the railway company in proportion to the amount of stock held by them respectively. Junctions with other railways may be established if this is necessary for the perfection of the railway system of India. This same subject is more fully dwelt with in the general laws, which will next be considered.

Like the general law of Canada, the Indian Railways' Act begins with a number of important definitions, including such terms as "ferry," "inland water,” “railway administration," "railway servant," "inspector," "goods," "rolling stock," etc. Administrative power over railways is vested in a railway commission, composed of 3 members, 1 law and 2 lay commissioners. One of the lay commissioners must be experienced in railway affairs. The law commissioner shall act as chairman. The commission has jurisdiction in cases arising out of complaints of viola tion of the law, agreements required or authorized to be referred to arbitration, and such other cases as may be brought before it on application through the governorgeneral in council. In hearing cases the commission may exercise all the powers which are exercised in the hearing of an original civil suit by a high court. A majority decides, and the "final order in the case shall be by way of injunction and not otherwise." As in case of Canada, no appeal lies from the commission upon any question of fact on which 2 of the commissioners are agreed. In case of an appeal from the order of the commission, the court, of which the law commissioner was a judge, shall hear the same. The governor-general in council

may make rules regulating proceedings before the commissioners and enabling them to carry into effect the provisions of the law, and he may also prescribe fees to be charged for proceedings before the commissioners. Special reports on each case are to be submitted by the commission to the governor-general.

Acting through the commission, the governor-general exercises supervisory powers in the construction and maintenance of railways. The latter may, by notification in the official paper, invest, absolutely or subject to conditions, any local government with any of the powers or functions of the governor-general in council, under the law, with respect to any railway; and he may also by that, or a like notification, declare what local government shall, for the purposes of the exercise of powers or functions so conferred, be deemed to be the local government in respect to the railway.

The sanction of the governor-general is necessary before the opening of a railway, and follows an inspection of the road with respect to rolling stock, track, in regard to width, weight of rails, strength of bridges, etc., adequacy of equipment, and a satisfactory showing that the railway can be opened to the public without danger.

Joint traffic arrangements are specially provided for as follows: "Any railway company * may from time to time make with the governor-general in council, and carry into effect, or, with the sanction of the governor-general in council, make with any other railway administration, and carry into effect, any agreement with respect to any of the following purposes, namely: (a) The working, use, management, and maintenance of any railway;

(b) The supply of rolling stock and machinery necessary for any of the purposes mentioned in clause (a) and of officers and servants for the conduct of the traffic of the railway;

"(c) The payments to be made and the conditions to be performed with respect to such working, use, management, and maintenance;

"(d) The interchange, accommodation, and conveyance of traffic being on, coming from, or intended for the respective railways of the contracting parties, and the fixing, collecting, apportionment, and appropriation of the revenues arising from that traffic;

"(e) Generally the giving effect to any such provisions or stipulations with respect to any of the purposes hereinbefore in this section mentioned as the contracting parties may think fit and mutually agree on:

"Provided that the agreement shall not affect any of the rates which the railway administrations parties thereto are, from time to time, respectively authorized to demand and receive from any person, and that every person shall, notwithstanding the agreement, be entitled to the use and benefit of the railways of any railway administrations parties to the agreement, on the same terms and conditions, and on payment of the same rates as he would be if the agreement had not been entered into."

The law calls for periodical reports from railway companies and establishes maximum loads for freight cars. Established rates must be posted where they are easily accessible to shippers, and in case of disputes over terminal charges the governor-general may direct the commissioners to make a decision. Discriminations and preferences are prohibited under the law. The granting of passes is made unlawful. In addition, the law grants the necessary police powers, and includes other provisions relating to safety in traffic and the fixing of responsibility in case of accidents.

New South Wales.-The railways of New South Wales, like those of other Australian States, are owned chiefly by the government, although private railways still exist, and charters for the same are from time to time granted in the different States. To illustrate the nature of the private charters granted there, the chief points of such a charter granted by the parliament of New South Wales in 1893 will here be outlined.

In the first place, it may be noted that the title of the act itself contains as full a description of the proposed route as is found in most of the better charters granted in American States. A detailed description of the route is appended to the charter as a part of the act. This will be reproduced in Appendix I to this report, to which reference is here made. Quite in harmony with long-established custom in England and English colonies, the charter opens with a preamble, which is likewise reproduced in the appendix. The earlier sections of the charter authorized a certain person to construct three railway extensions. The gauge is made to conform with that of government railways; crossings, gates, fences, and drains are provided for, and the general technical features of the undertaking brought into harmony with the plans upon which government railways are constructed. In this, as in other matters, the railway commissioners have advisory powers. The charter establishes maximum rates for passengers and freights, and

further provides that these maximum rates may, if necessary, be increased with the approval of the railway commissioners. A large part of the charter is taken up with matters relating to the exercise of the right of eminent domain. The appointment of arbitrators is provided for, and these in turn appoint an umpire, who has final decision upon matters in which the arbitrators disagree. The manner in which the valuation of property shall be ascertained and apportionment of the costs of arbitration are described. On the whole, these provisions are essentially similar to those found in the better charters of American States. An important right is reserved to the State by giving railway commissoners "running powers" over this private railway; provided, however, that the exercise of this privilege shall never seriously interfere with the ordinary traffic upon the railway nor deprive the public of the use of such railway. The incorporator is empowered to make the necessary rules and by-laws governing the times of the arrival and departure of trains, the loading or unloading of cars, preventing the smoking of tobacco and the commission of any other inconvenient and disagreeable thing connected with railway traffic, to issue proper tickets and prescribe rules for the use of the same—in short, the incorporator is given full power to manage the railway, subject to the approval of governmental authorities. Another right reserved by the State is that of purchase. At any time, on giving due notice, the incorporator may be required to sell his railway property to the government upon payment of a fair valuation of the same, including compensation for compulsory sale not exceeding 10 per cent. In case of differences as to the value of the railway property, a method of arbitration is provided for in accordance with the public works act of 1888. All private railways are, as has been before indicated, subject to the railway commissioners.

The railway commissioners are organized under the government railways and tramways act of 1888. This act opens with definitions covering such terms as "commissioners," "governor," "justices," "magistrates" and "minister," “prescribed railway vessel," and so on. As a whole, the act deals with the manage ment rather than with the construction of railways, an attempt being made in the legislation of New South Wales to separate the latter from the former. The railway commission is composed of 3 persons appointed by the governor. The commissioners are empowered to appoint the necessary assistants. All government railways are placed absolutely into the hands of the commission. The ownership of railways and tramways, piers and wharves, lands, telegraph posts and lines, and all other things constituting a part of the railway system are vested in fee simple in the commission. All railway property is exempted from taxation. There is nothing extraordinary in the duties assigned to the commissioners, these embracing all things necessary for the successful operation of the railway system. They are enjoined from giving preferences to persons, corporations, or industrial sections, and in no case can special rates be quoted to one person or interest which is not at the same time open to all others. The reasonable facilities" clause of the English act of 1854 is in substance inserted. The commissioners have power to issue passes to members of the legislative council, the legislative assembly, officers of parliament, persons of distinction visiting the colony or officially engaged in some public duty, and to certain former officeholders enumerated in a schedule appended to the act, and including cabinet officers, justices, executives, presidents of councils, and speakers of assemblies.

While the commissioners are concerned primarily with the management of railways, they must be consulted with respect to the regulation and construction; and before the second reading in the legislative assembly of any bill authorizing the construction of new lines of railway the commissioners shall transmit to the minister a statement showing their estimate of the traffic on each proposed new line and any other returns likely to be derived from such new line. This estimate of the commissioners must be placed before the assembly by the minister before the bill can be read a second time. Ample provision is made for disputes arising out of bills of lading and rates charged for freight traffic. Quarterly reports must be made by the commissioners to the minister and annual reports to the parliament.

The telegraph lines of the State are under the control of the commissioners. All the Australian States have been remarkably free from railway accidents; nevertheless this commission has ample power to investigate such accidents as may occur and order whatever improvements may be possible and necessary to avoid their recurrence in the future. Thirty-two different subjects are enumerated in the law regarding which the commissioners may make rules and by-laws. It is unnecessary to enumerate these different topics; suffice it to say that they cover all phases of railway traffic and do not differ from similar regulations on other roads.

« Previous Continue »

Books