Scottish Court of Session Decisions

The Aberdeen Commercial Company and the Aberdeen Lime Company traded in lime, coal, grain, manure, chemical and other merchandise chiefly connected with agriculture. Their manure traffic was conveyed from Aberdeen to its various destinations chiefly by means of the railways of the Great North of Scotland Railway Company. This traffic had up to February 1878 been conveyed in the ordinary way by the Railway Company as carriers, and charged for according to the provisions of the 55th section of the Great North of Scotland Railway Consolidation Act 1859, which was as follows:—“It shall not be lawful for the Company to charge in respect of the several articles, matters, and things, and of the several descriptions of animals hereinafter mentioned, conveyed on the railway or any part thereof, any greater sum, including the charges for use of carriages, waggons, or trucks, and for locomotive power, and all other charges incidental to such conveyance, than the several sums hereinafter mentioned—that is to say, for dung, compost, and all sorts of manure, lime, and limestone, and undressed materials for the repair of public roads or highways, twopence per ton per mile.”

On 4th February 1878 the Company issued to these traders, among others, a notice in the following

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terms:—“Notice is hereby given that the Great North of Scotland Railway Company do not profess to act and do not act as carriers of the undermentioned articles, viz.—Dung, compost, manures, bones (manufactured or unmanufactured), guanos, phosphates, sulphates, nitrates, muriates, kainit coprolites (in any state), potash salts, and all articles of a like nature. The Company, however, at the request of parties, and upon certain conditions and at agreed rates (but not otherwise), will provide waggons or locomotive power or both to persons desiring the use of the railways owned, worked, or used by the Company for the purpose of allowing them to forward any of the above-named articles from or to any of the stations and on the harbour rails at Aberdeen. This notice to take effect on and after 1st March 1878.” Notices in the same words were posted up and publicly displayed at the Company's goods stations and offices. In pursuance of the notice of the 4th February, the Company on 1st March abandoned the use of consignment notes for manure traffic, and introduced requisition notes for the use of traders, by the terms of which the traders were to request the Company to provide them with waggons and locomotive power, and to allow them the use of their line, and in consideration of providing these the Company claimed right to charge the traders tolls for the use of their line and plant in terms of the 52d and 53d sections of their Act of Parliament, which were in these terms:—“Section 52. It shall be lawful for the Company to demand any tolls for the use of their railway not exceeding the following—that is to say, first, in respect of the tonnage of all articles conveyed upon the railway or any part thereof, as follows—For all dung, compost, and all sorts of manure, lime, and limestone, and all undressed materials for the repair of public roads or highways, per ton per mile twopence; and if conveyed by carriages belonging to the Company an additional sum per ton per mile of one penny. Section 53. The toll which the Company may demand for the use of engines for propelling carriages shall not exceed one penny per mile for each passenger or animal or for each ton of goods or other articles in addition to the several other tolls or sums by this Act authorised to be taken.” The charges that might be made by the Company under these sections were therefore much higher than they were entitled to exact as carriers of goods under the 55th section of their Act quoted above.

The traders objected to the use of requisition notes in the above form. The Company, however, refused to allow their manure traffic to be conveyed along their railways without the traders' signature to such a requisition note in every case. The traders thereupon served formal protests on the Company. Subject to these protests they regularly used and signed the requisition notes after 1st March 1878.

After that date the Company regularly, upon requisition notes in the form above referred to being filled up and signed by the traders, supplied them with waggons for their manure traffic. The waggons (with the exception of a few cases in which the traders brought their goods in carts to the stations) were handed over to them at Aberdeen goods stations, and removed to their own premises, and there loaded and returned by them to the Company's goods stations and handed over to the Company. The Company supplied the locomotive power for the conveyance of the waggons to the stations to which the manures placed therein were addressed. The waggons on reaching the respective stations to which their contents were addressed, were placed in the sidings of the Company, and the manures contained therein removed by the local agents of the traders or the parties to whom they were addressed. The Company did not load or unload any portion of the manure traffic, but they employed and paid the engine-drivers, firemen, and brakesmen of the trains of which the waggons containing the traffic formed a part, and by which they were conveyed from the Aberdeen goods stations to the delivery stations.

In these circumstances, the traders applied to the Railway Commissioners for redress under the Regulation of Railways Act 1873 (36 and 37 Vict. c. 48) for an order enjoining the Great North of Scotland Railway Company to afford them all due and reasonable facilities for receiving and forwarding and delivery of traffic upon the several railways belonging to or worked by the Company, and to desist from charging them any higher rates than by law the Company were authorised to charge.

The Railway Company in the first place submitted that the Commissioners had no jurisdiction to grant the present application, nor to determine (1) whether the Company were or were not bound to act as carriers of guano or the other articles above referred to, or (2) whether the charges made by the Company for the use of their railways and for locomotives and waggons were or were not illegal and excessive; and further argued that the charges referred to were made, not under the “limiting charges” clauses, which were only applicable to traffic of which the Railway Company acted as carriers, but under the “tolls clauses” of their Acts, which alone were applicable where, as in the case of the only traffic now in question, the Company did not act as carriers. On the other hand, the complainants' allegations of illegal and excessive charges were made solely on the supposed basis of the “limited charges” clauses. They were also made on the assumption that these clauses, and they alone, regulated the charges which might be made by the Railway Company in respect of the traffic in question. Unless and until the question was decided by the Court of Session which of these clauses was applicable, there was and there could be no common basis between the parties for determining whether the charges made by the Company were or were not illegal and excessive: and upon the Commissioners giving judgment in terms which will sufficiently appear from the questions stated below, they asked the Commissioners to state a Case for the Court of Session.

The following questions were accordingly stated by the Commissioners upon the case as narrated above—“(1) Whether our determination that a railway company does not afford according to its powers all reasonable facilities within the meaning of section 2 of the Railway and Canal Traffic Act 1854, if it makes illegal or excessive charges for the conveyance of traffic, is or is not in accordance with the true construction of that section? (2) Whether, where a railway company carries and conveys traffic upon its railway, it can by such a notice and under such circumstances as in the above

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Case stated relieve itself from the obligation of carrying at rates not exceeding those which have been fixed by Parliament as the rates at which a company shall carry, and which in this case, pursuant to section 79 of the Railway Clauses Consolidation (Scotland) Act 1845, are the sums fixed by the Great North of Scotland Railway Consolidation Act 1859, and by the corresponding sections of the Deeside Railway Acts? (3) In the event of its being decided it can so relieve itself, Whether, considering that the Railway Company admits that the agreed rates mentioned in the notice must at any rate be limited by its toll clauses, and refers to such clauses upon the face of its requisition notes, the 55th section is or is not one of such clauses, and its amounts consequently the limit of what can be charged as tolls for the services therein mentioned?” With reference to the third question, the Commissioners had in giving judgment held that the 55th section would limit the rates that were leviable by the Railway Company even although they should be held to have acted as toll-takers and not as carriers.

In the Court of Session it was argued on the question of jurisdiction by the Railway Company — The Railway and Canal Traffic Act 1854, under the provisions of which the Railway Commissioners proposed to entertain this question, took no account of rates leviable for the carriage of goods except in so far as preferences were conferred. There was here no question of preference.

By the trading companies—If the Railway Company should be held to be right in this question, the Railway Commissioners' jurisdiction would be entirely destroyed, for there was no better way of stopping traffic than by charging too high, and to take an excessive charge was to create an obstruction in the sense of the 2d section of the Act. The case of Evershed v. London and North-Western Railway Company, Feb. 1877, L.R. 2 Q.B. 254, and other decided cases, showed that the jurisdiction of Courts of Law and of the Railway Commissioners was concurrent. Great Western Railway Company v. Sutton, 1868–9, L.R., 4 H. of L. Eng. and Ir. Apps. 226. The establishment of the Railway Commissioners as a tribunal was for the object of giving parties a summary method of procedure in such cases.

On the merits, it was argued by the Railway Company— Johnson v. Midland Railway Company, 26th June 1849, 18 L. J. Exch. 316, and 4 Welsby, Hurlstone, and Gordon, Exch. Reps. 367, showed that a railway company might by such a notice as that of 4th February here retire from conveying a certain class of goods altogether. The double sense in which “tolls” was used throughout the Railways Clauses Act showed that a railway company might carry goods either as a carrier proper or by letting its line and plant to another party to carry his own goods. “Carrying” did not necessarily mean acting as carriers. It was susceptible of interpretation as “tolls.” What the nature of the act was depended on the terms of the contract, and hence the importance of regarding the terms of the notice and requisition notes here. The physical facts were of much less importance.

By the traders—“Tolls” no doubt might have reference to the charge made by the company either as a carrier or as a toll-taker for the use of its line. Hence the importance of attending to the state of fact, for it was in vain that the railway company said they would not act as carriers if in point of fact they did. The limiting section of their Act was applicable to the things done, and not to the profession they made. The state of facts here showed that the character assumed by the company was that of carriers.

At advising—