court organization and by making its decisions final on questions of fact, much strength was added.

The new legislation provided for a Commission of five members, composed of two lay and three ex-officio members. The ex-officio members are superior court judges, one for England, one for Scotland, one for Ireland. The active Commission at any one time has a membership of three, the two lay commissioners presided over by the designated superior court judge of the country in which the Commission is sitting. While the judges who serve on the Commission are appointed for terms of five years, the lay commissioners hold office on a good-conduct tenure. The old provision whereby one of the lay commissioners was to be "of experience in railway business" was continued; and Mr. Price, the railway member of the former Commission, was reappointed. The qualification of the other lay commissioner was not specified. To this position Sir Frederick Peel, whose training was legal and who had been a member of the Railway Commission in 1873, was appointed. The lay commissioners were admonished of their judicial functions, for in their letters of appointment they were informed, "Doubtless you will feel that the judicial nature of your office is also incompatible with any active engagement in political controversies."

In every possible way the fact was emphasized that the Commission was a court, and therefore not concerned with rate making. The control of matters pertaining to rates was divided. Powers in regard to conciliation of rate difficulties were given to the Board of Trade. When the provision placing the revision of maxima and of classification in the hands of the Board of Trade was under consideration, an amendment to place such revision in the hands of the Commission was negatived.

The Act of 1888, while it repealed portions of the railway regulative acts already in existence, did not codify the portions remaining. Consequently there are still in effect sections of the

1 The draft legislation of 1887 had provided a cumbrous arrangement whereby the judicial commissioner was to preside when a question of law was involved, while in other matters his attendance was to be invited by the lay commissioners, "if it was expedient for the better performance of the Commission's duties."

Railway Clauses Consolidation Act, 1845, the Railway and Canal Traffic Act, 1854, the Regulation of Railways Act, 1868, and the Regulation of Railways Act, 1873. Since 1888 jurisdiction in regard to actual rates has been given by an Act of 1894; while, under a law of 1904, the powers of the Commission in regard to private sidings have been made more definite by an interpretation of the "reasonable facilities " clause of the Act of 1854.1

While the jurisdiction given by the Act of 1888 embraces a variety of functions, the most important of which are undue preference, facilities for traffic, traffic on steamboats, through rates, rate books, terminals, legality of rates, provisions relating to private branch sidings, and references under the Board of Trade Arbitrations Act, 1874, the most important matters from the standpoint of the traders are (a) terminals, (b) reasonable facilities, (c) through rates, (d) undue preference, (e) control over actual rates.

TERMINALS, REASONABLE FACILITIES AND THROUGH

RATES

The history of the terminal question is a long and involved one. When the earlier railways were chartered, the "canal toll" idea prevailed. For a time carriers, already in existence, quoted through rates over the railway lines, making such arrangements as they deemed proper in regard to payments for special services and for station terminals. It was not long, however, before the railways controlled the forwarding business, and complaint soon arose. The railways claimed the right, in addition to the powers given them under their maximum rates, to make charges for additional services and for terminals.2 The traders contended that the maximum rates covered all that the railways were

1 For detail concerning the unrepealed sections, see Woodfall, The New Law and Practice of Railway and Canal Traffic, etc., Appendix A.

2 The question of terminals has come up in the United States. The charter of the Pittsburg & Connellsville Railway gave it the right to charge tolls. It was decided it had the right to charge terminals as well. National Tube Works v. Baltimore & Ohio R. R. (Penn.), 28 Am. and Eng. R'd Cases, 13.

and experience to determine whether constitutional rights have been infringed.1

A most serious difficulty is presented by our dual form of government. It is beyond the scope of the present discussion to treat the numerous cases dealing with the commerce clause, and the question what is interstate and what is intrastate commerce. The net return to a railroad company, and it is to railway traffic that the questions most frequently relate, - depends on the relation between its income from whatever source derived and its outgoes whether for the conduct of interstate or intrastate business. The two are inextricably intermingled, and the problem of preserving the rights and powers of both the state and the federal governments is one of the problems of the future. FRANCIS J. SWAYZE

1 Willcox v. Consolidated Gas Co., 212 U. S. 19; Northern Pacific R'y v. North Dakota, 216 U. S. 579.

XXVII

THE ENGLISH RAILWAY AND CANAL

WHILE

COMMISSION OF 18881

HILE the law providing for the Commission of 1873 passed both Houses of Parliament with comparative ease and received but little opposition from the railway interest, the law of 1888 developed by small degrees, and met much opposition. The report of the Committee of 1881 had stated that a permanent railway tribunal was necessary.2 Railway Commis-. sion legislation was introduced regularly between 1882 and 1886. In 1885 the nine principal railways submitted bills to Parliament embodying a general classification and a rearrangement of their maximum rates. But the protests of the traders led to the withdrawal of these measures. The defeat of the government in 1886 on the Irish Question prevented any further action at that time. In 1887 a regulative measure, which in some respects resembled the legislation of the following year, passed the House of Lords.

So far as the form of the Commission is concerned, the most important changes introduced by the legislation of 1888 were the court organization of the Commission and the limitation of the right of appeal. Under the old organization the Commission was considered to be in the same position as any inferior court, and might be prohibited from proceeding in matters over which it had no jurisdiction.3 Now, by giving the Commission a definite

1 From the Quarterly Journal of Economics, Vol. XX, 1905, pp. 1–55. The author was the expert employed by the Canadian Government in 1902 to draw up its Report upon Railway Rate Grievances and Regulative Legislation. British Railway Statutes and Regulations are reprinted in full in Hearings before the Senate (Elkins) Committee on Interstate Commerce, 1905, Vol. V, Appendix, pp. 133-264. 2 Report of Select Committee on Railways, 1881, Part I, p. iii. 3 Toomer v. L. C. D. Ry. Co. and S. E. Ry. Co., 3 Ry. and Canal Traffic Cases, 98.

legally empowered to collect. It was concerning the station terminals, however, that the keenest contention existed. The Select Committee of 1882 had recommended that terminal charges should be recognized, but that they should be subject to publication by the companies, and that in case of challenge they should be sanctioned by the Railway Commission.1 A clause to this effect was contained in the regulative measure introduced by Mr. Chamberlain in 1884. In a decision of the Court of Queen's Bench in 1885 the right of the railways to collect terminals was definitely recognized.2 But the traders did not recognize this decision as final; for, because of a technical condition, it was impossible to carry the case before the higher courts. While the legislation of 1888 was in committee, various attempts were made to place the control of terminals under the Railway Commission, as well as to provide that in every case the maximum rates should include terminals. But the government took the position that terminals were legally established, and so they were given explicit recognition.

The Act of 1888 had recognized terminals. The Provisional Orders Acts gave them definite form. The matter was finally passed on by the Commission in 1891 in a decision which upheld that of 1885.3 Justice Wills, who gave the decision in the former terminal case, was at this time the judicial member of the Commission. On appeal the decision of the Commission was upheld. While the question of the legality of terminals has thus been settled, there still remains the question of the right of the trader to be exempt from the payment of terminals under special conditions. This question is of especial interest

1 Select Committee on Railways, 1882, pp. v and xvii.

2 Hall v. London, Brighton, & South Coast Railway, 15 Q. B. D. 505. This overruled a decision of the Railway Commission. A discussion of the question from the traders' standpoint will be found in Hunter, The Railway and Canal Traffic Act, 1888, pp. 38-50. See also British Railways and Canals, by "Hercules," chap. ii (a pro-trader brochure, published in London in 1885). A summary of the railway point of view will be found in the address of Mr. Pope, Q.C., representing the London & Northwestern Railway before the Board of Trade, October 29, 1889, reported in Railway News, November 2, 1889, pp. 778-780. See also Grierson, Railway Rates, English and Foreign, pp. 93–106.

3 Sowerby & Co. v. Great Northern Ry. Co., 7 Ry. and Canal Traffic Cases, 156.