Australia.

to the proper Circuit Court, alleging such violation or disobedience ; and the Court must hear and determine the matter speedily, as a Court of Equity, but without formal pleadings or proceedings, and in such manner as to do justice, and may restrain the carrier by injunction or other process, mandatory or otherwise, and may enforce such process by attachment or fine, and may order the payment of costs. When the subject in dispute is of the value of 2,000 dollars or more, either party may appeal to the Supreme Court [Sec. 16]."*

[Vide, on the whole subject: Hadley, " Railroad Transportation." Prentice and Egan, The Commerce Clause."]

The fact that in the Australian Federal Constitution the American system of railway regulation has been copied to a large extent, makes it convenient to discuss here the provisions of that Constitution on this point. It should be remembered that, whereas in Great Britain and to a large extent in the United States the railways are the property of private companies, in Australia they are almost wholly owned by the several States.

The difficulties attending the regulation of Railways in Australia are discussed in Part I., Chapter II., of this book. The problem -as it finds expression in the Federal Constitution-falls under two heads —

(i.) Extent of Federal Control over State Railways:

This is expressed in several sections. Thus Sec. 51 gives the Federal Parliament power, subject to the Constitution, to make laws for the peace, order and good government of the Commonwealth with respect to . . . . .

Sub-Sec. xxxii.: "The control of railways with respect to transport for the naval and military purposes of the Commonwealth."

Sub-Sec. xxxiii.: "The acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State."

Sub-Sec. xxxiv.: "Railway construction and extension in any State with the consent of that State."

And under Sec. 98 :--

"The power of the Parliament to make laws with respect to trade and commerce extends to . . . . . railways the property of any State," thus crystallising into a definite constitutional provision that power of the Central Government which in the United States has been established by judicial interpretation of the Constitution.

Whilst under Sec. 99 it is provided that :

"The Commonwealth shall not, by any law or regulation of trade, commerce or revenue, give preference to one State or any part thereof over another State or any part thereof,"

thus adopting, almost verbatim, Article I., Sec. 9, Sub-Sec. 6, of the United States Constitution, which says that :—

"No preference shall be given, by any regulation of commerce or revenue, to the ports of one State over those of another."

* Annot. Const. Australian Comm., p. 897.

(ii.) The Exercise of Federal Control:

It is at once clear that the power of the Federal Parliament to control State railways in Australia-as defined above-inevitably involves both the question as to how that power is to be exercised and that as to the extent to which it can be put into force. The word "preference," for instance, in Sec. 99, is one which demands close definition with special reference to the problems of State railway management in Australia-problems which are briefly noticed in the second chapter of Part I. of this book. The solution of the first question is to be found in Secs. IOI and 103 of the Australian Constitution; that of the second question in Secs. 102 and 104. Secs. 101 and 103 are as follows:—

Sec. 101. "There shall be an Inter-State Commission, with such powers of adjudication and administration as the Parliament deems necessary for the execution and maintenance, within the Commonwealth, of the provisions of this Constitution relating to trade and commerce and of all laws made thereunder."

Sec. 103.

"The members of the Inter-State Commission :

(i.) "Shall be appointed by the Governor-General in Council; (ii.) "Shall hold office for seven years, but may be removed within that time by the Governor-General in Council, on an address from both Houses of the Parliament in the same session praying for such removal on the ground of proved misbehaviour or incapacity; (iii.) "Shall receive such remuneration as the Parliament may fix; but such remuneration shall not be diminished during their continuance in office."

And Secs. 102 and 104 define the limits of the points to be decided by the Commission. Thus :

Sec. 102. "The Parliament may by any law with respect to trade or commerce forbid, as to railways, any preference or discrimination by any State, or by any authority constituted under a State, if such preference or discrimination is undue and unreasonable, or unjust to any State; due regard being had to the financial responsibilities incurred by any State in connection with the construction and maintenance of its railways. But no preference or discrimination shall, within the meaning of this section, be taken to be undue and unreasonable, or unjust to any State, unless so adjudged by the Inter-State Commission."

Sec. 104. "Nothing in this Constitution shall render unlawful any rate for the carriage of goods upon a railway, the property of a State, if the rate is deemed by the Inter-State Commission to be necessary for the development of the territory of a State, and if the rate applies equally to goods within the State and to goods passing into the State from other States."

Finally, Sub-Sec. 3 of Sec. 73 gives a right of appeal to the High Court from an order or decree of the Inter-State Commission, "as to questions of law only."

It is not within the province of this work [as explained in the Introduction] to discuss the working of the Inter-State Commission thus established by the Australian Federal Constitution. But the following quotation from Professor Moore's "Commonwealth of Australia" expresses briefly and clearly the essential difference between its duties and those of similar bodies in Great Britain and the United States :

"The questions that have arisen in the past as to railways in Australia, and therefore presumably the class of case with which the Commission will be mainly concerned, are singularly different from the typical preference and discrimination cases in England and America. Speaking generally, it may be said that the problem in England and America has been how to protect the trader and the passenger against various kinds of oppression by the Railway Companies, and to discourage combination and to encourage competition. In Australia, the question has been rather how to reconcile the interests of the railway proprietors-the Governments -each of which has deemed itself entitled to a monopoly of certain traffic. It is only fair to add that cases of favour or oppression of individuals, which account for much of English and American legislation, have been conspicuously absent in Australia. Favour of localities, however, is not unknown. The anxiety of New South Wales and Victoria has been to bring the trade to their respective capitals as much as to secure traffic for their railways.'

Canada.

In Canada the difficulties that have arisen since Union as to the Dominion control of railways have been of a different nature to those of the United States and Australia. Though the British North America Act follows the Constitution of the United States in giving the Dominion Parliament power to legislate-to the exclusion of the Provincial Legislatures-on "the regulation of trade and commerce" [Sec. 91 (2)], the Courts which have had to interpret that Act have not been compelled, as the American Court has been, to read into this clause a power of central control over railways. For the Act itself expressly provides for the apportionment of railway control between the Dominion and the Provincial Legislatures. Thus Sec. 92, Sub-Sec. 10, gives the Provincial Legislatures exclusive power to legislate as to

'Local works and undertakings other than such as are of the following classes:

(a) “Lines of steam or other ships, railways, canals, telegraphs, and other works and undertakings connecting the Province with any other or others of the Provinces, or extending beyond the limits of the Province..

(c) “Such works as, although wholly situated within the Province, are before or after their execution, declared by the Parliament of Canada to be for the general advantage of Canada or for the advantage of two or more of the Provinces."

Considerable difficulty has arisen in the interpretation of this section. There have been many cases in which Provincial Legislatures have passed Acts granting concessions, etc., to Railway Companies, only to find themselves involved in disputes with the Dominion Government on the ground that they have invaded the provisions of one of the two exceptions to their power of legislation in railway matters which are quoted above; and to have their Acts declared unconstitutional by the Privy Council. Such has

been the result of the attempt of those who framed the British North America Act to avoid the pitfalls of the American Constitution as far as the regulation of railway matters was concerned.*

In Switzerland, Article 26 of the Constitution says that :"Legislation pertaining to the construction and management of railways is an affair of the Union."

Previous to the adoption of this Constitution in 1874, the question of railway development had been for a considerable period the outstanding issue of Swiss politics-one party contending for State, and the other for private, ownership. The latter prevailed; and, with the building of the line over the St. Gothard Pass about 1863, the railway question passed out of the domain of politics. [Vide: Lowell, "Governments and Parties in Continental Europe,' vol. II., p. 303.]

Adams["The Swiss Confederation," p. 33] gives an interesting sketch of the manner in which the development of the railway system in Switzerland is carried out under the Constitution of 1874. When the Federal Executive is asked for a railway concession of any kind, it consults the Cantons concerned, "and negotiations take place later between Cantonal representatives and the person or persons demanding the concession, under the presidency of a delegation of the Federal Council [i.e., the Executive], including the head of the particular department." When the conditions have been fixed, the Federal Executive sends a report to the Federal Assembly, with its recommendation. The Federal Assembly has the right of final decision and can grant a concession even if a Canton opposes it.

Switzerland.

The provisions of the Federal Constitution of Germany as to the Germany. power of the Central Government over the construction and management of railways are very remarkable, and express the conviction of those who framed the Constitution as to the strategic importance of railways from a military point of view. Article 8 of the Constitution gives the Federal Council-on which Prussia has seventeen representatives-power to appoint from its own members a Permanent Committee on railroads, posts and telegraphs; whilst under Sub-Sec. 8 of Article 4, railway matters are expressly placed "under the supervision and legislative control of the Empire." The special provisions of the Constitution as to railways are contained in Articles 41 to 47, which are as follows:

"

* Vide, for a discussion of the whole matter, Wheeler, "Confed. Law of Canada,' Pp. 225-234; and especially Dow vs. Black [L.R. 6, P.C. 272]; European and North American Ry. Co. vs. Thomas [14, S.C.N.B., 42]; Bourgoins. La Compagnie de Chemin de fer de Montreal, etc. [5, P.C. App. Cas., 381].

Article 41. Railways, which are considered necessary for the defence of Germany, or in the interest of general commerce, may by Imperial law be constructed at the cost of the Empire, even in opposition to the will of those members of the Union through whose territory the railroads run, without prejudice, however, to the sovereign rights of that country; or private persons may be charged with their construction, and receive rights of expropriation.

Every existing railway company is bound to permit new railroad lines to be connected with it, at the expense of the latter.

All laws granting existing railway companies the right of injunction against the building of parallel or competitive lines are hereby abolished throughout the Empire, without detriment to rights already acquired. Such rights of injunction cannot be granted in concessions to be given hereafter.

Article 42. The Governments of the Federal States bind themselves in the interest of general commerce, to have the German railways managed as one system, and for this purpose to have all new lines constructed and equipped according to a uniform plan.

Article 43. Accordingly, as soon as possible, uniform arrangements as to management shall be made, and especially shall uniform regulations be adopted for the police of the railroads. The Empire shall take care that the various railway administrations keep the roads always in such condition as is required for public security, and that they be equipped with such rolling stock as the wants of trade demand.

Article 44. Railway companies are bound to run as many passenger trains of suitable velocity as may be required for through traffic, and for the establishment of harmony between time-tables; also to make provision for such freight trains as may be necessary for the wants of trade, and to organise a system of through booking both in passenger and freight traffic, permitting the trains to go from one road to the other for the usual remuneration. Article 45. The Empire shall have control over the tariff of charges. It shall endeavour to cause

1. Uniform regulations to be speedily introduced on all German railway lines.

2. The tariff to be reduced and made uniform as far as possible, and particularly to secure low long-distance rates for the transport of coal, coke, wood, minerals, stone, salt, crude iron, manure, and similar articles, as demanded by the interests of agriculture and industry. It shall endeavour in the first instance to introduce a one pfennig tariff as soon as practicable.

Article 46. In case of public distress, especially in case of an extraordinary rise in the price of provisions, it shall be the duty of the railway companies to adopt temporarily a low special tariff suited to the circumstances, which shall be fixed by the Emperor, on motion of the competent committee of the Federal Council, for the forwarding of grain, flour, vegetables and potatoes. This tariff shall, however, not be less than the lowest rate for raw produce existing on the said line.

The foregoing provisions, and those of Articles 42 to 45, shall not apply to Bavaria.

The Imperial Government, however, has the power, with regard to Bavaria also, to prescribe by means of legislation uniform rules for the construction and equipment of such railways as may be of importance for the defence of the country.

Article 47. The managers of all railways shall be required to obey, without hesitation, requisitions made by the authorities of the Empire for the use of their roads for the defence of Germany. In particular shall troops, and all material of war, be forwarded at uniform reduced rates.