SECTION XV.

PROPOSALS FOR FIXING RATES BY RAILWAY COMMISSION--CONCILIATION

COURTS.

One of the many proposals for fixing, or controlling rates was

contained in a clause in the Railway and Canal Traffic Bill of last

session. It was intended to confer on the Board of Trade the power

at any time, “on the application either of a railway company, or of

any Local or Harbour Board, any Council of a City or Borough, any

representative County body which might hereafter be created, and

Justices in Quarter Sessions assembled, any Public Local Authority

which is now or might hereafter be established, any Association of

Traders or Freighters, or any Chamber of Commerce or Agriculture,

who should obtain a certificate from the Board of Trade that they

were entitled to make such application, to revoke, amend or vary

the maximum rates.” This would have been a totally new departure

in legislation. Such statutes as the Railway and Canal Traffic

Act of 1854, and the Regulation of Railways Act, 1873, exhibit

an inclination on the part of Parliament to jealously limit the

powers granted to the companies. The tendency of the Courts of

Law has been to construe the Acts strictly against companies and

give the public the benefit of all doubtful points.[90] But it had

never before been supposed that the powers to charge the rates and

tolls contained in the original Acts, under which the companies

undertook the construction of the railways, could be indefinitely

altered, as proposed in the above clause. No such recommendation

was made by the Railway Rates Committee of 1882. After what took

place in the discussion of the Bill, both in Parliament and out of

it, and the announcement of the then Attorney General, “that no one

contemplated a perpetually recurring revision,”--which the clause

provided for--it is not probable that any such suggestion will again

authoritatively be made.[91]

[90] NOTE.--The following remarks, contained in the report of the

Joint Committee of 1872, on the subject of periodical revision of

rates, are worth reading--

“The difficulty has been felt by many of the witnesses, and they

have accordingly suggested that there should be a periodical

revision of rates and fares.

“Here, again, we are met in the first instance by the same

difficulty as before. The companies will, if experience is any

guide, constantly, for their own sakes, charge less than their legal

maxima. Is this revision to take effect on their legal maxima, or

on the actual rates as they voluntarily reduce them? If the former,

its results will be small; if the latter, it will be difficult to

effect, and may bear hardly upon the companies in stereotyping a

temporary or experimental reduction. In fact, the proposals for

revision of rates, if they are to be effectual, really presuppose

some such determination of rates according to a fixed standard as

we have considered above. If there are no special rates, it is a

comparatively simple thing to make a general reduction. If there

are special rates it becomes a very difficult task. But a still

more serious question with respect to periodical revision is the

question--On what principle is it to be performed, and by whom?

If it is to be purely arbitrary, if no rule is to be laid down to

guide the revisers, the power of revision will amount to a power

to confiscate the property of the companies. It is not likely that

Parliament would attempt to exercise any such power itself, still

less that it would confer such a power on any subordinate authority.

Accordingly the witnesses have suggested that the revision should

take effect under conditions which would reserve to the companies a

reasonable amount of profit, and to some revision founded on this

principle, it appears from the evidence that some, at least, of the

principal railway companies would not object.

“This leads to the further consideration of the important question,

whether it is possible or desirable to fix by law a maximum of

profit, or dividend. If it is not possible or desirable to do so,

any periodical or systematic revision of charges by any authority

subordinate to Parliament, may be pronounced impracticable.”

[91] See the language of Lord Penzance in _Pryce_ v. _Monmouthshire

Canal and Railway Company_, L. R. 4 A. C., p. 206.

Another proposal of a somewhat similar character is, that the

Railway Commissioners, or some other special tribunal, should fix

the rates. Were a Court for the control of rates established with

the consent of all concerned, there would remain the question on

what principle are the rates to be framed? Are they to be according

to equal mileage, or, if not, in what other manner? What better mode

can be suggested than the past practice, which, as has been shewn,

has been beneficial to the community? Nor is it easy to understand

how any Court could fix all the incalculable number of rates, and

hear and determine all the practical questions certain to arise.

Even if a trifling proportion of the rates were fixed in this

manner, and the task in those cases were performed, with reference

to all the many circumstances now governing rates, complications and

difficulties must arise, and the Court would be placed in a position

of great, if not insurmountable, difficulty. So many anomalies

must be authorised that it would be impracticable for the Court to

decide consistently with precedents. In all probability the control

would either become nominal, or the whole system would have to be

recast. Nor must the serious loss of time by the staff of railways

in attending to such inquiries, and the consequent diminution of

the efficiency of their work in the actual regulation and conduct

of railway traffic be lost sight of. The costliness of inquiries

before such a Court is a secondary, but not an unimportant, matter.

In the hope of obtaining reduced rates, or of compelling a company

to raise the rates of a competitor in trade, or to raise the rates

to and from competing ports, some traders and merchants, separately

or combined, might risk the expense of applications to such a

Court.[92] But the general interest could not be promoted by the

creation of any such arbitrary and anomalous Court.

[92] In the case of the application of the North Wales Colliery

proprietors to the Railway Commissioners against the Great Western

Railway Company, on the ground that they charged coal from South

Wales to Birkenhead, 159 miles, at the rate of ·454d. per ton per

mile, as against ·893d. per ton per mile for their coal for 28

miles, the expense incurred by the Great Western Company, exclusive

of the time occupied by their own staff, was £1,433; and the time

which was taken up in preparing for, and in attending, the hearing

was very serious.

Reference is often made to the experience of the United States

in regard to the supervision of railways as if it should be a

guide to us. There each State may legislate with reference to the

construction and regulation of its own railways. At first everything

was done to facilitate their construction. They were proceeded with

in advance of, or concurrently with, immigration and settlement.

Many States have made large grants of land to railway companies.

In some States a few individuals, from five upwards, may form

themselves into a railway company, and under general laws construct

railways between any two places, regardless of the wishes of others

and the considerations which here form the subject of Parliamentary

inquiry. No scale of maximum rates, as a rule, governs the charges

for conveyance; and great variations in them are in fact made. Only,

however, in recent times, when railways have become numerous and

their extension is not so urgently needed, have State Legislatures

interfered with their management.[93]

[93] The rates for “interstate” traffic in the United States are

not at present subject to any Government control, but are made at

the discretion of the companies to meet the requirements of trade,

competition by rail and water, and of cities. Two Bills for the

regulation of the interstate traffic of railways have recently been

before Congress; one, the “Reagan” Bill, which proposes to fix the

charges, to prohibit any discrimination, and to make it illegal for

railway companies “to combine or to pool” their receipts without

stringent provisions and penalties. The other Bill, entitled the

“Cullom” Bill, proposed the appointment of an Interstate Commission

consisting of five members, but did not provide for any specific or

maximum rates for the transportation of passengers or merchandise,

except that they should be reasonable and that there should be no

unfair discrimination; while laying down the principle that the

rates should be in proportion to the distance carried, it proposed

to give to the Commissioners power, in their discretion, to allow

lower rates to be charged for long, as compared with short distance

traffic. The former Bill passed the House of Representatives and was

rejected by the Senate; the “Cullom” Bill passed the Senate, and was

rejected by the House of Representatives.

The expediency of establishing maximum rates has been discussed in

some States. But another course has also been tried; Commissioners

have been appointed for the purpose of fixing reasonable charges.

Where maximum rates have been fixed, in no case, so far as can be

ascertained, have the Legislature altered, or the Commissioners

interfered with the powers conferred if the rates charged are

within such maximum. Some of the Commissioners fixed rates on so

unremunerative a basis as to defeat their object and to prevent

the introduction of capital, and the construction of railways. The

result was that in one State after a trial of about two years, the

law establishing such a tribunal was hastily repealed.[94]

[94] Report of the Committee of Commerce, House of Representatives

of the United States, March 8th, 1886.

“The Committee on Commerce, to whom was referred the bills (H. R.

309) to establish a Board of Commissioners of interstate commerce,

and for other purposes; (H. R. 770) to regulate interstate commerce

through a national court of arbitration (H. R. 1,572) to create

an interstate commerce commission, and to regulate its powers and

duties; (H. R. 1,669) to establish a bureau of transportation

in the Department of the Interior; (H. R. 2,412) to regulate

interstate commerce and to prevent unjust discriminations by common

carriers; and (H. R. 3,929) to establish a Board of Commissioners

of interstate commerce, and to regulate such commerce, beg leave to

report said bills back to the House, and ask that they be laid on

the table, and to report the accompanying bill as a substitute for

H. R. 2,412, and recommend its passage.

“The subject matter of these bills has been so fully and elaborately

discussed for several years past, that it is not deemed necessary in

this report to enter into an elaborate explanation of the provisions

of the bill reported to the House. Your committee may state,

however, that the several bills referred to them rest upon three

different theories.

“House bills 309, 1,572, 1,669 and 3,929 are framed upon the idea

of providing a governmental commission, and of making detailed

regulations of freight rates. The theory of these bills did not need

the approval of the committee.

“House bill 770, ‘To Regulate Interstate Commerce through a National

Court of ‘Arbitration,’ looks to the establishment of a court with

power extending in some measure to the regulation of commerce

between States, with provisions extending to the regulation of

subjects not believed to be within the jurisdiction of Congress, and

not embracing in its provisions matters of regulation believed to be

necessary in a bill of this kind; and a single court to be held at

Washington City, as provided in this bill, would not be sufficiently

convenient to the people.

“The bill which we report to the House, and which is an amendment

of House bill 2,412, is based upon the theory of furnishing civil

remedies in the courts of ordinary jurisdiction to parties for the

most conspicuous grievances complained of in railroad management,

prohibiting what should not be done, and commanding what should

be done; proposing remedies for the violation of its provisions,

and avoiding any attempt at detailed regulation of freight rates.

This was deemed best as the first effort at legislation upon this

subject. The interests involved are so large, and their successful

management so important to the country, that it was not deemed

advisable to run any risk of embarrassing the management of the

railroads of the country, and at the same time it was deemed

necessary for the protection of the interests of the people to

control and circumscribe the exercise of the monopoly powers of

these corporations, to prevent them from making extortionate charges

and unlawful exactions upon the people.

“The examination of this subject will show that the attempt to

establish a system of legislative rates is impracticable, for the

reason that what would be a reasonable rate for one road would be

ruinous, perhaps, to others, as the charges for the transportation

of freights are largely controlled by the amount of business done by

the several roads.

“For instance, what would be a reasonable rate of charges on the

Pennsylvania Railroad would not be a reasonable rate upon a road in

the new States and in a sparsely settled portion of the country.

“The same difficulty lies in the way of attempting to protect the

people by the adoption of maximum rates. What would be a reasonable

maximum upon one road would not be reasonable upon others. A maximum

high enough to protect the railroads against harm would be too

high to benefit the people on most of the roads, and a maximum low

enough to protect the people on some roads would be ruinous to the

interests of many other roads, so that it is not believed best to

attempt to protect the interests of the public by the legislative

rates or by the maximum rates.

“The bill which we report to the House, instead of adopting either

of these plans, provides that the charges of the railroads shall be

reasonable; that persons engaged in the transportation of interstate

commerce by railroads shall furnish without discrimination the

same facilities for the carriage, receiving, delivery, storage

and handling of property of a like character, and shall perform

with equal expedition the same kind of services connected with

contemporaneous transportation.

* * * * *

“These constitute a portion of the leading features of the bill

which we report to the House. It is believed that the enactment and

enforcement of such a law will provide for the just and necessary

abridgment of the monopoly powers of these corporations, and

protect the people against unreasonable charges and extortionate

exactions, and will at the same time not interfere with or embarrass

the management of railroad corporations in anything which it is

reasonable and just they should do. And the Committee believe it

wiser and better to provide for the enforcement of the provisions

of such a law through the instrumentality of the ordinary courts of

justice, and by the judges and juries of the country than by the

orders of a commission. The machinery of the courts is already in

existence, and will require no additional expense, and is within

convenient reach of the people everywhere, and is fully able to

adjudicate all cases which may arise under this bill and by methods

with which the people are familiar, while no plan of a commission

which has been proposed could be conveniently accessible to all

the people, and if a plan should be presented which would provide

a jurisdiction convenient to all the people it would necessarily

be cumbrous and very expensive. In this view a commission is

unnecessary, unless it is the purpose of Congress to enter upon the

detailed regulation of freight rates.”

The rates charged in the United States are mainly governed

by competition with water carriage, or between the companies

themselves. Occasionally they are so reduced over large districts

as to be totally unremunerative. As soon, however, as the struggle

between competitors is ended, and an arrangement is arrived at,

the rates are suddenly raised. The circumstances of England and the

United States are so unlike that, even were those tribunals suited

to the latter, no case would be made out for establishing here a

Court armed with such powers. Here railway companies can make

charges only within their statutory maxima; there, as a rule, no

statutory maxima, or prohibitions of undue preference, similar to

those enacted here, are known. Here no municipalities have largely

subscribed to the capital of railways, no grants of public lands

have been made to them, as have been freely done there.[95]

[95] Poor’s Manual of Railroads for 1885 (page xv.) gives a list of

Railroads of the United States sold under foreclosure. The following

is a brief summary:--

Mileage. Capital Stock. Funded Debt. Floating Debt. m. $ $ $

1882 668 20,751,457 23,999,065 10,073,769 1883 1,190 24,587,704

38,197,926 2,481,608 1884 714 12,894,000 13,061,000 422,533

To legislation in Continental countries as to the fixing of rates,

we only briefly refer; in Appendix III. are full details as to

the law on this subject of Prussia and the German Empire. It may,

however, be here observed that the Prussian General Railway Law of

1838 provided for a reduction of rates when the net profits exceeded

10 per cent.; that the concessions to private companies stipulate

for the control of the Government over rates; but that, in recent

concessions, greater freedom is accorded to the companies, which

may, within certain maximum limits, modify rates at pleasure. Such

legislation is well worthy of attention; only it may be suggested

that it is not reasonable to pick out for commendation this or that

provision without regard to its concomitants--to propose to adopt

provisions to the disadvantage of railways, and to ignore those

which recompense them.

In Germany exist District Consultative Councils or Conciliation

Courts, which deal with all questions relating to conveyance of

goods on railways, and with the application of existing tariffs and

the introduction of new local tariffs. It has been stated that those

Councils or Courts are of great practical utility. Whether this be

so or not the circumstances under which Conciliation Boards are

appointed in Germany are very dissimilar to those of the railways

in this country. Their constitution is peculiar; similar elements

do not exist here. These Boards are composed of representatives of

the Government as workers of the railways and representatives of

the traders as users of them. Both, however--the nominees of the

Government and the traders--may be said to represent the owners

(in reality--the public) of 85 per cent. of the lines, who are

liable for any loss in working them. In this country neither the

Government nor the traders are the owners.[96] Moreover, in Germany

the representative of the Government which controls the working of

the railways, has, in fact, the power of fixing any rate by his

final decision, whatever may be the views of the traders or the

Conciliation Boards. In the last resort the owner of the lines

controls the rates.

[96] The railways in this country are governed by directors who

have shares in the respective undertakings, and represent the

shareholders (assumed to be about 500,000), but generally their

interest in the railways is relatively small compared with that

which they possess in land, manufactories, collieries, ironworks,

and commerce &c., besides which from their local connections,

and as public men, they are keenly alive to the requirements of

agriculture, trade and commerce, and in reality represent those

interests to a much greater extent than is sometimes assumed to be

the case.

Were such Councils established here their duties would not be so

light as those which fall to them in Germany. There the questions

to be considered must be few, the time occupied in deciding them

short, owing to there being practically no competition, and to the

great bulk of the rates being based on a mileage scale. Much more

complex questions would arise here, much longer time must be taken

up in deciding them in England, where rates are adapted to all the

requirements of trade and competition in its many forms.

In Holland, Belgium, and France, railways have been constructed

with, in some cases, considerable financial assistance from the

Governments, and under concessions for certain periods. Not

unnaturally or unreasonably the Governments have reserved the right

to control the rates and charges to be made while a concession is

in existence, or when it ends. It will be found, however, that when

there is power to reduce the rates before the expiration of the

concession, the State guarantees the dividend in the event of loss

arising from the compulsory reduction. Such is the case in Holland.

The Dutch Law (Article 29) provides that reductions in the tariff

can at all times be ordered by the State. But if, in consequence

of such reductions, the net gain of the company be diminished,

compensation is to be paid out of the State Treasury, and any

dispute as to the amount of compensation is decided by a Court of

Justice. In no case, however, must the amount of compensation raise

the net profits of the year or years for which it is demanded above

8 per cent. of the Company’s capital. Thus the right to control

rates is part and parcel of a system wholly unlike our own. It

exists in a country where the State has helped to construct, and to

a very large extent actually constructed, railways. It is alien to

this country, where capital for the whole of the railways has been

provided by private individuals, on the faith of the powers to levy

the tolls and rates fixed in their private Acts.

In the Railway and Canal Traffic Bill (1886) was also embodied a

proposal to the effect that any person who was of opinion that a

company was charging an unfair or unreasonable rate might make a

complaint to the Board of Trade, who were to be entitled to call

on the company for an explanation and to appoint one of their

officers, or a competent person, to communicate with the company

and the complainant, and to endeavour to settle the difference

amicably between the parties. The Board of Trade were from time to

time to submit to Parliament reports of the complaints so made, the

results of their proceedings, and such observations as they should

think fit. The effect of this provision would have been startling.

Even where a rate was within a company’s powers--although undue

preference was not alleged--at the instance of a trader desirous

of obtaining a reduced rate which had been refused by a company

and believing that either his own circumstances or those of other

traders entitled him to communicate with the Board of Trade, the

railway company would be called upon to prove to the Board of Trade

that the claim of the trader ought not to be granted. It would be,

in effect, litigation made easy and cheap, whether the complaint

was good or bad. The President, Vice-President, Secretary, or

Assistant-Secretary of the Board of Trade could not spare the time

necessary to master the numerous difficult questions and details as

to the rates.[97] Notwithstanding the great ability with which that

department is conducted, these officials could not deal with such

questions in the same way or within the same time as the traders

and the representatives of the companies are able. The companies

would probably be burthened with correspondence and discussions on

matters already fully gone into in negotiation. The discussion would

be necessarily carried on through subordinates or nominees of the

Board of Trade, who, it is not presumptuous to say, would be neither

interested in, nor specially trained to deal with, such questions.

Suppose that the representatives of the Board of Trade and the

railway companies disagreed as to the necessity or reasonableness of

a reduction in rates, the former would have no authority to compel

the companies to comply with their views. Would not the result

probably be a cry that Parliamentary powers should be conferred on

the Board of Trade to enforce their conclusions? Such a policy would

in the end place the railway companies of the country, whose capital

has entirely been raised by private enterprise, in a worse position

than the railway companies in Holland where the State has done so

much for them, or in France, where it has guaranteed the dividends.

[97] In a case of the kind referred to, which was brought before the

Board of Trade when the Bill was before Parliament, as a skilled

officer of the company was occupied 150 hours, in preparing the

information alone to reply to the Board of Trade, irrespective of

the time occupied by others in analysing the information, and in

corresponding with the Board of Trade on the subject, all of which

had no practical result.

When we are invited to place in the hands of a tribunal the control

of the rates, it is expedient to note the difficulties which the

Railway Commissioners seem to have felt in dealing with the various

questions raised before them, and the manner in which they have

dealt with them.

In determining under the Traffic Act questions of alleged undue

preference, they have been obliged to express their opinion on the

reasonableness of particular rates. As to the legal correctness

of their decisions, nothing need here be said; for the present

purpose it may be assumed that they are open to no legal exception,

and we fully recognise the ability and care which they manifest.

Only their economical effects are here considered. There would be

no difficulty in showing that they have acted upon principles, so

far as they have acted upon any, which have not merely not been

sanctioned, but have been condemned, by every Royal Commission or

Select Committee which has inquired into the subject, and by almost

every economist of eminence. On the part of the Commissioners there

have been--not unnaturally--some waverings in opinion. But on the

whole, they appear to have attempted to frame rates according to

cost of service; and they appear not to admit that the existence

of competition is a reason for varying them. Now, in the first

place they apply--it may be added, necessarily apply--the cost of

service principle in an imperfect fashion. They deal only with

undue preference in regard to the same or very similar articles.

They do not say, what consistent adherence to the theory would

compel them to say, that a ton of coals and a ton of tin ingots

must be carried at much the same rate; they are bound by the

existing classification, which forbids this. Occasionally their

decisions are indeed curiously inconsistent in many respects, as

was probably inevitable, where they were called upon to face the

commercial results which would have followed a too rigid adherence

to some of the principles by which they felt themselves bound.[98]

In the case of the _Nitshill and Lesmahagow Coal Company_ v.

_Caledonian Railway Company_,[99] the defendant company claimed to

charge more for carrying cannel coal, which, it was alleged, cost

38s. a ton, than they charged for carrying splint, which cost 15s.

6d. On the principle on which the classifications in most special

Acts were framed, this would be reasonable; the more valuable

article could bear more, and ought to pay more. But the Railway

Commissioners decided differently. “As the quality of coal does not

affect the cost of carriage to the railway company,” they said,

“we are of opinion that the two kinds of coal ought to receive the

same treatment.” If this principle had been carried out since the

beginning of railways, if rates had been settled without regard

to the value of merchandise, the prosperity of many districts and

industries would never have been developed. In the second place,

the cost of carriage is, inevitably, sometimes guessed at rather

than calculated. We have already stated the nice calculations

which must be entered into in order to determine the exact cost of

carriage; calculations in which it is practically impossible to

attain accuracy. Many elements in cost, the Commissioners cannot

accurately measure; the data do not exist. In the third place, the

effect of their later decisions is to exclude, practically, if not

theoretically, competition from the considerations to be taken

into account. This is, not only for the reasons already stated,

contrary to sound commercial principles; it is contrary to the

language of the early decisions of the Court of Common Pleas, which

distinctly recognised competition as rightly taken into account

in fixing rates. In _Garton_ v. _Bristol & Exeter Railway Co._

(1 N. & M. 1859, p. 218), for example, the Court of Common Pleas

decided, among other reasons against the validity of a certain

charge, because, in the words of Byles, J., “it is not shown that

it is rendered necessary for the purpose of meeting and overcoming

competition”.[100] The early judgments of the Railway Commissioners

themselves recognised the right to take into account the existence

of competition. In _Foreman_ v. _Great Eastern Railway Co._, decided

in 1875 (2 N. & M. 202), the point in dispute was the validity of

a scale of charges for the carriage of coal from Peterborough to

Norwich and Great Yarmouth and intermediate stations. The Great

Eastern Company were alleged to give an undue preference to coal

consigned to such stations, as compared with the carriage of

sea-borne coal from Great Yarmouth to Norwich and the stations

between it and Peterborough. The Commissioners observed: “Nor does

the Traffic Act prevent a railway company from having special

rates of charges to a terminus to which traffic can be carried by

other routes, or other modes of carriage with which theirs is in

competition,” a dictum inconsistent with the view “that cost of

service is the necessary measure of rates.” In a case decided the

same year, _Thompson_ v. _London and North Western Railway Co._, 2

N. & M. (1875) 115, the Commissioners speak dubiously. They observe

with respect to the argument that “the Traffic Act prohibits only

undue advantages, and that an advantage given by a railway company

to obtain traffic for which it competes with another railway company

is not undue” (p. 120). “Such a proposition cannot, in our opinion,

be laid down unreservedly. It may be true in certain circumstances;

it would not be so in others, and what degree of favour can be

lawfully shown to some person to the prejudice of others under

the pressure of competition can only be decided in any case that

arises by reference to its special circumstances.”[101] In still

later judgments there is a faint recognition of the fact that the

existence of competition ought to be taken into account; _e.g._, in

_Richardson_ v. _Midland Railway Company_, decided in 1881 (4 N. and

M. 1) the Commissioners say: “The difference (between the Burton and

Newark rates) or part of it, may possibly be required by the route

from the same district, not being the same all the way to the two

places, and by the separate portions of line passed over being more

costly to work or construct in the one case than in the other; or,

again, may be required by a competition for the conveyance of the

particular traffic between the two termini, existing in one case but

not in the other. They proceed to speak of “due allowance for such

causes of difference,” which implies that allowance must be made

for both of such causes. But in the _Broughton Coal Company’s_ case

(4 N. and M. p. 191, 1883) the Commissioners use somewhat different

language. They observe that “if goods of the same kind are carried

to the same destination over the same railway for distances that are

not the same, and the gross charge from the intermediate distance

is as great as from the more distant one, there is a preference of

one traffic over the other within the meaning of the Traffic Act of

1854; and that it is not sufficient to rebut this presumption to show

that the charge for the longer distance has been reduced to meet a

competition from another route.” Lately the Commissioners have, to say

the least, lost sight of the element of competition in determining

rates; and in all the applications to them, there is no clear instance

in which they have found the circumstances in which it ought, in their

opinion, to operate.

[98] In Lees _v._ Lancashire & Yorkshire, 1 N. & M. 352, the

Commissioners relied to some extent upon a principle which they do

not appear to have since put in force. The question was whether

the company gave an undue and unreasonable preference to the

Corporation. The Commissioners said that undoubtedly a preference

had been given, but they declined to say it was unreasonable (1)

because the Corporation did not compete with the complainants; (2)

because _the preference was for the public benefit and convenience_

(p. 367); (3) because of the nature and magnitude of the coal

traffic of the Corporation.

[99] 2 N. & M. 39.

[100] See the head note on the case, and the language of Williams,

J.; also the observations of Cockburn, C. J. in Harris _v._

Cockermouth and Workington Railway Company, I. N. and M., p. 703.

The latter judge, referring to “fair and sufficient reasons” for

differences in rates, says, “As, for instance, in respect of

terminal traffic, there might be competition with another railway.”

[101] The reporters append the following note to the case.

“It appears that competition between two railways, or by sea or

canal, is sufficient justification for a railway company reducing

its fares to the public, who are affected by such competitions, and

can take advantage; but that a railway company cannot, merely for

the sake of increasing their traffic, reduce their rates in favour

of individuals unless there is a sufficient consideration for such

reduction, which shall lessen the cost to the company of conveyance

or other services rendered to them by such individuals,” vol. 2,

p. 121. Probably this represented the general opinion of the legal

profession in 1875.

In the report for 1883 the Commissioners refer to “the fair

pecuniary interests generally of the company carrying” (p. 1.) as if

they might be taken into account.

Among the multifarious complaints against railway companies is

one to the effect that companies, instead of competing with and

underbidding each other, combine to charge equal rates. This is an

illustration of the curious inconsistencies of some of those who

criticise the working of railways. Such a practice would be, as will

be seen in the next chapter, opposed to the ideas of others who urge

that rates should be based on scientific and uniform principles.

Such competition, too, would inevitably lead to valid grounds

for complaints, in the opinion of others, of undue preference in

contravention of the Railway and Canal Traffic Act of 1854. The fact

is, the practice has been tried and abandoned. In the days of road

carriers, competition in quoting low rates generally ended in the

submission or ruin of one of the parties. Here, and in the United

States, experience shews that all such competition on the part of

railways must end in combination. However severe the contest may

be, and however great the losses in carrying it on, each of the

railways continues to exist; they do not disappear like private

traders engaged in a disastrous war of competition; and in the

end they come to terms. In thus acting, they only do what is done

in other industries. In the principal trades of the country are

associations which arrange the prices of their products. Colliery

proprietors, for example, agree as to the price of coal. Although

the hardware merchants seldom vary their price lists, they agree

from time to time as to the rate of discount to be allowed. The

steel rail manufacturers of Germany, Belgium, England, and Scotland,

had recently an arrangement regulating, if not the proportion to be

produced by each country and district, the price at which rails were

to be sold.

Railway Rates: English and Foreign · 第 15 / 17 章