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United Kingdom House of Lords Decisions

You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Edinburgh & Dalkeith Railway Company v Wauchope [1842] UKHL J12 (22 March 1842)
Cite as: (1842) 8 Cl & F 710, 8 ER 279, [1842] UKHL J12

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    Neutral Citation Number: [1842] UKHL J12

    (1842) 1 Bell 278; 8 Cl & Fin 710; 8 ER 279

    22 March 1842
    Lord Cottenham
    Lord Brougham
    Lord Campbell
    JOHN WAUCHOPE, of Edmonstone


    The first Act under which the Appellants were formed into a company was passed in the year 1826 (7 Geo. 4, c. xcviii), for "making a Railway from Edinburgh to the South Side of the River Northesk, near Dalkeith and Newbattle." While this Act was in progress through Parlimant, the Respondent, who was a proprietor of lands on the line of the proposed railway, opposed the bill, but finally abandoned his opposition, on being satisfied with certain clauses which were introduced into the bill. The 20th section of the Act provided that the company of proprietors "shall pay to the said J. W. (and other persons therein mentioned), so long as the said railway shall continue to be used through the said lands or grounds of the said J. W., the sum of one halfpenny per ton upon all goods and articles upon which a tonnage duty is chargeable or charged in virtue of this Act, which shall pass along any part of the said railway standing within the said lands and grounds of the said J. W., except the coals and other minerals, corn and other articles, the produce of the said lands and estate." The 85th section contained the following provisions; "It shall be lawful for the company of proprietors form time to time and at all times to ask, demand, take, recover, and receive to and for the use and benefit of the said company, for the tonnage and conveyance of all minerals, goods, wares, merchandises, and other things which shall be carried or conveyed on the said railway, the rates and duties following: For every carriage conveying passengers, or goods or parcels not exceeding five cwt., such sum or sums of money respectively as the said company of proprietors shall from time to time direct and appoint, not exceeding 6d. per ton per mile."

    Another Act of Parliament (the 4 and 5 W. 4, c. lxxi) was afterwards applied for and obtained, which repealed some of the provisions of the former Act, extended others, and continued the rest. The 16th section of this new Act recited that whereas certain sums of money in respect of way-leaves had been granted to the Respondent and others, it enacted that the company of proprietors might collect the sums for the way-leaves separately from the rates and duties levied on the main line of the railway, provided that such rates and way-leaves should not exceed the duties authorised by the former and by that Act of Parliament. Before the passing of this Act, the Leith Branch Railway had been united to the Edinburgh and Dalkeith Railway, and the provisions of its Act were consolidated with those of the new Act, the 29th section of which declared that "the rates and duties granted by the recited Acts, for and in respect of carriages conveying passengers, shall be, and the same are hereby repealed." The 30th section enacted, "that it shall be lawful for the company, of proprietors to demand, receive, and recover to and for the use of the company and of the proprietors of the Leith Branch Railway respectively, for and in respect of passengers, beasts, cattle, and animals conveyed in carriages upon the said railway and branches, the following tolls: For every person conveyed in and upon such carriage, any sum not exceeding 3d. per mile." The 33d section empowered the company of proprietors to provide and establish and make charges for conveyance, in addition to the tolls. The 37th section authorised the officers of the company to weigh all carriages and wagons passing on the railways, as often as to them should appear necessary for determining the weight of goods carried in such wagons or carriages.

    It appeared that, in the first instance, the proprietors had proposed to make the railway, and to reimburse themselves by the tolls payable in respect of carriages that other persons might run upon it; but after some time it was found that this scheme was extremely unprofitable, and then the proprietors built carriages on their own account, and ran them along the line. The Respondent had received sums of money at different intervals for years from the Appellants, in respect of goods and articles conveyed in carriages on that part of the line that ran through his lands, but in 1835 he claimed a way-leave on the tonnage of the carriages when loaded with passengers. This demand was resisted by the Appellants, and the Respondent instituted a suit, founding his claim on the 20th and 85th sections of the 7 Geo. 4. The Appellants contested his right, insisting that it must be confined to an allowance on goods and articles conveyed along the line. They relied first on the terms of the Act 7 Geo. 4, which they contended did not grant to the Respondent any allowance in respect of passengers conveyed by the carriages; and then argued that if such allowance was granted by that Act, still as that Act was repealed by the 4 and 5 W. 4, c. lxxi., such grant was at an end. And they further contended that the Respondent, by accepting for such a time payment in respect of goods and parcels only, had himself put on the earlier Act a construction fatal to his present claim. The Respondent insisted that he was entitled to an allowance on all the tonnage charged or chargeable by the company in respect of carriages conveying either passengers or goods, and passing though his lands; that the right conferrred by the 7 Geo. 4 was not affected by the 4 and 5 W. 4; or that if it was, then that that latter Act could not be made applicable to him, for that it was a private Act affecting a vested right, and had been introduced without due notice of its introduction being served on him.

    On the 16th of June 1837, the Lord Ordinary pronounced an interlocutor in favour of the claim o the Respondent; and in his subjoined note expressed himself on the question of the effect of want of notice upon the operation of the second Act, in these terms: "The Lord Ordinary is by no means satisfied that due parliamentary notice was given to the pursuer (the Respondent) previous to the introduction of this last Act: undoubtedly no notice was given to him personally, nor did the public notice announce any intention to take away his existing rights. If, as the Lord Ordinary is disposed to think, these defects imply a failure to intimate the real design in view, he should be strongly inclined to hold, in conformity with the principles of the case of Donald (27th November 1832), that rights previously established could not be taken away by a private Act, of which due notice was not given to the party meant to be injured." The Lord Ordinary did not, however, put his judgment on this ground; but having thus intimated his opinion, added that he did not think the two Acts were inconsistent with each other, and consequently did not think himself bound to decide this particular point. The Appellants appealed against this interlocutor, which was affirmed by a decree of the Court of Session, on the 14th of December 1837. The Appellants were by these decrees ordered to put in accounts of the sums received by them, and on which they were bound to make allowance to the Respondent. These accounts having been put in, the case was further proceeded with, and on the 2d of March 1839 the Lord Ordinary pronounced another interlocutor, declaring that "having heard counsel for the parties and considered the accounts lodged by the defenders (the Appellants), and the objections thereto, finds that, in ascertaining what is due to the pursuer for his way-leave on the carriages conveying passengers, the tonnage duty is to be take as laid on the carriages, and not on the passengers also: finds the pursuer liable on this par of the discussion." The Respondent appealed against this interlocutor, on the ground that it excluded the tonnage on the passengers. Upon the 4th of July 1839, the Inner House pronounced a decree to this effect: "The Lords having resumed consideration of this note, and heard counsel thereon, alter the interlocutor complained against, sustain the pursuer's objection to the accounts and remit to the Lord Ordinary to proceed accordingly. Find the defenders liable in the expenses." Fresh accounts, calculated in the manner required by the Respondent, were then put in; and the Lord Ordinary, on the 18th of March 1840, pronounced an interlocutor approving of these accounts framed under the directions of the decree of the 4th of July 1839, and finding the defenders liable in expenses since that date. The Appellants appealed against this interlocutor, but the Inner House adhered to it, in a decree pronounced on the 21st of May 1840.

    The present appeal was brought against the several interlocutors and decrees of 16th June and 14th December 1837, of the 4th of July 1839, and of the 21st May 1840.

    The Attorney-general, shortly after the opening of the case, abandoned, on the part of the Respondent, any argument as to the want of notice operating to defeat the provisions of the 4 and 5 Will. 4.

    The Solicitor-general and Mr. Willmore, for the Appellants: There is nothing in the firs of these Acts that gives the Respondent a right to have an allowance on the tonnage of the carriages when filled with passenger. The Appellants have no power to levy a tonnage in respect of the passengers, but only on the carriages which convey the passengers. The right of tonnage is confined to the carriages themselves. At the time the first Act was passed the Appellants only possessed the power of levying a tonnage on such carriages as other persons should use on the railway: they had no right to levy a tonnage on passengers. There is no provision in the Act granting such a tonnage, nor declaring how it shall be ascertained; it was, in fact, never thought of: the inconvenience of levying such a tonnage is a sufficient reason why it was never provided for, and fully explains the silence of the Legislature on the subject. The tonnage was confined to the carriages and to the goods carried; to things that could be weighed and have their tonnage ascertained in the usual way. But the duties thus given, whatever they were, have been taken away by the 4 and 5 Will. 4; and this latter Act, in declaring what the company shall be entitled to receive, never once makes the weight of the passenger carried the subject of a tonnage rate. The duty leviable on carriages conveying passengers, goods, or parcels, is given by the 85th section of the earlier Act; the duty on small parcels themselves is distinctly provided for in the 91st section. If the 85th section is to be taken to include the duty on small parcels, then the duty leviable for small parcels would be twofold and would be leviable under two distinct sections of the Act. That cannot be so with respect to small parcels, nor can it be so with respect to passengers. The two cases are exactly alike. On the other hand, if the rate fixed in the 85th section on the carriages conveying parcels is to be taken as exclusive of the parcels conveyed in them, it must be equally exclusive of the passengers. Then it follows that there is no rate of tonnage on the passengers; for unless provided for in that section , it is not imposed in any other part of the Act.

    Then as to the conduct of the parties: the Respondent here had the means of knowing all the facts; for some years he has received and given discharges for the duties on the tonnage of goods and parcels; he now claims, for the firs time, a tonnage duty on passengers. His own previous conduct prevents him from maintaining this claim; Bramston v. Robins (4 Bing. 11; and see Andrews v Hancock, 3 Moor, 278; 1 Brod. And Bing. 37) is decisive on this point. There a landlord's receiver allowed the tenant to make a deduction in respect of the payment for land-tax, every year for seventeen years, greater than the landlord was liable to pay, the landlord knowing or having the means of knowing all the facts; and the Court held that he could not afterwards distrain for the amount thus erroneously allowed. The present is stronger than that case against the claim; for here the Respondent had from the first, the Act of Parliament before him, and acted in his own affairs. His own construction of the Act as to what were his rights under it, is decisive against him.

    The Attorney-general and Mr. Kelly, for the Respondent: The 20th and 85th sections of the 7th Geo. 4 must be construed together. The 20th section gives the Respondent a right to an allowance in respect to everything on which the Appellants could make a charge of tonnage. The 85th section confers on the Appellants the right to a tonnage on every carriage conveying passengers. Whatever, therefore, the Appellants were entitled to take for tonnage under the 85th section, was so taken subject to the right of the Respondent to have an allowance made thereon. It is clear that the Appellants have a right to tonnage on carriages with passengers in them; the right is not confined by the words of the section to carriages that are capable of conveying passengers, but to carriages conveying passengers. The Appellants might weigh such carriages if they chose; and the circumstances that such a proceeding might be inconvenient, would not prevent their right from becoming applicable. The words are in the present for, "carriages, conveying passengers," and most clearly point to those carriages having passengers in them at the time when the tonnage duty was leviable. The 91st section has nothing to do with the present question. The right, therefore, of the Respondent, under the 7 Geo. 4, is clear: that right was not taken away by the 4 and 6 Will. 4, which merely repeals so much of the preceding Act as had become inapplicable in consequence of the altered situation of the company.

    Nor is the Respondent's right affected by what he has done up to the time of making this claim. He cannot put an end to a right conferred by Act of Parliament, merely by the non-exercise of it for some years. The case of Bramston v Robins is not in point with the present. There is great distinction between the case of a man recovering back money settle in account, and that of a man enforcing a claim which he has through inattention or ignorance suffered to lie dormant.

    Lord Brougham: Undoubtedly, my Lords, we often feel considerable reason to hesitate in coming to a conclusion as to the construction of a private Act of Parliament, arising from the somewhat careless way in which Act of this sort, as well as some other Acts, are framed. But I must, on the whole, say that I think the construction put on this Act in the court below is the sound one; namely, that one halfpenny per ton is to be taken on all goods and articles upon which a tonnage is charged or chargeable under the Act. In the 85th section, we find that every carriage conveying passengers is to be charged by, or to, or for the company, at a rate not exceeding sixpence per ton per mile. This is, therefore, a tonnage. Then the question is, whether this tonnage is to be taken on carriages only, or on carriages conveying passengers. In my opinion, the more natural and sound construction is, that the tonnage is to be take upon carriages conveying passengers, and that it will not be accurate to hold that the words "conveying passengers" are merely descriptive of things which are to be subject of weighing, and to be subjected in that respect to a tonnage not exceeding sixpence per ton per mile. I therefore think that a sound construction has been put upon the Act: but for this the company would escape altogether paying anything in respect of passengers, though from them it might derive the greatest part of its revenue. With respect to the objection on the 91st section, it did seem at first to raise a great difficulty; but upon being examined, it does not appear to throw any great obstruction in the way of the interpretation which has been fixed by the Court upon the 85th section. But when we come to look at it, that section appears to have been passed alio intuitu. The rule provided in it appears to apply entirely to the conveyance of goods by carriers using the railway, and is intended to protect the customers of those carriers from a larger charge than twenty pence per ton. It does not apply to the carrying by the company itself of passengers, which indeed the company does not appear to have had the power to carry until after the passing of the Act 4 and 5 Will. 4. It is a great mistake to suppose that a company can do all that it is not prevented from doing; it can only do that which is granted to it.

    I will only add one word on a point which has been abandoned at this bar, but an idea of the value of which seems to have prevailed in the Court below; namely, that the want of notice in one of the preliminary stages of an Act of Parliament, operates to prevent that Act from affecting the rights of the parties to whom such notice ought to have been given. Such a doctrine is wholly without justification.

    Lord Cottenham (who presided): My Lords, upon the point which has been last adverted to, it is only necessary to say a few words, in order that we may not again have a similar question presented to the consideration of the House. It has been most properly abandoned at the bar here; but upon the papers put before us, it does appear that in the course of the argument in the Court below, an impression did exist that an Act of Parliament might or might not be binding on parties, according as there might or might not be proof that the individual to be affected by it had had notice of the Act while in progress through the two Houses. [Lord Brougham: That the standing orders for the protection of private rights not having been complied with, the authority of the Act of Parliament itself would be effected.] There is no foundation for such an idea; but such an impression appears to have existed in Scotland, and I express my clear opinion upon it, that no such erroneous idea may exist in future.

    With regard to the merits of the case upon the first point made by the Appellant, it seems to me that there is no doubt, whatever may be the rule by which the weight of a carriage is to be known, it falls under the 20th section. If the words are attended to, I am surprised that any doubt should have existed on the subject; because the 85th section (which imposes the duty upon the carriages) describes the things to be charged as "other things which shall be carried or conveyed upon the railway", upon which certain rates are fixed. In the enumeration of the things on which a rate is fixed is a carriage, and the 20th section gives Mr. Wauchope the sum of one halfpenny per ton upon all goods and articles on which a tonnage duty is charged or chargeable in virtue of this Act, and which shall pass along any part of the railway within the limits of his land. The sole argument, therefore, in favour of exemption must rest upon proving that that which is in one section called an article, does not come within that description in another. The doubt arises from the mode in which the weight is to be ascertained; and if the 91st section had imposed a toll upon the small parcels as articles described in the 85th section, that would have furnished a very strong argument indeed in behalf of the Appellant; but that section has, I think, no such effect. The words used are, "sums to be paid for carriages conveying passengers." In all other cases they are described as tolls, dues, etc. on carriages. That, I think, has no reference to the provision in the Act which imposes tolls or duties to be paid as a remuneration to the company for the use of the railway. There is no distinction provision that passengers are to be subject to rate; and if their weight is not to be included in the weight of the carriage, they, or the company in respect of them, would escape altogether without payment, since the 91st section does not apply to this matter. That is a strong reason for supposing that it would not have been intended that passengers should be altogether omitted. The argument on the one side amounts in fact to this, that they are to be included by being weighed with the carriages; and, on the other, it is that they are actually excluded by the 85th section, and that there is no other provision by which they are included. But, however imperfect the expression of the section is, it is much more consistent with the terms used to consider the weight of the carriage is to be estimated by that which at the time is conveyed in it, than by its being estimated without reference to its contents. It is the weight of the carriage conveying passengers. While the carriage is employed in conveying passengers, there must be an additional weight to that which the carriage would have had if not conveying them; and, according to the terms of the section, the rate is to be taken for "every carriage conveying passengers." There is no doubt that if, in ordinary conversation, you were describing the weight of a carriage conveying passengers, you would consider that the carriage must be weighed with the passengers in it, for otherwise it would be the weight of the carriage not conveying passengers.

    There is little doubt, my Lords, that the provisions of the Act are ambiguous and inaccurate; but, upon the whole, I am of opinion that the Court of Session has come to a right conclusion I thus construing the Act, and that Mr. Wauchope is entitled to the sum of one halfpenny per ton upon the weigh of the carriage with the addition of the passengers. And if what has been stated at the bar is correct in fact, namely, that the directors of the company have actually paid him at the rate upon small parcels under five hundred weight, I must say that they have themselves put this very construction upon one part of the Act, and cannot be surprised that we have applied it to another.

    Lord Campbell: My Lords I am entirely of the same opinion. The question turns exclusively on the construction of the 7 Geo. 4. Under the provisions of the 85th section, I think that the company is entitled to receive tonnage upon the carriage and its contents, including the passengers; that upon every carriage conveying passengers, goods, or parcels not exceeding five hundred weight, the company is entitled to demand such sum and sums of money, not exceeding sixpence per mile, as the proprietors shall from time to time direct to be paid; and that the Respondent is entitled to an allowance on this tonnage. I think that the weight of the carriage must be taken together with its passengers and parcels, in order to ascertain this tonnage and the allowance.

    The next question is, whether under the 20th section of the Act this clause relating to carriages and parcels does not apply, and whether a carriage with parcels and passengers is not an article upon which a tonnage duty is charged or chargeable under the Act. I am clearly of opinion that it is such an article; and that, therefore, one halfpenny per ton upon the sum received upon these carriages by the company is payable to Mr. Wauchope.

    I think, too, that the arrears are payable. There has been no acquiescence of Mr. Wauchope in their non-payment; he took the accounts as they were rendered to him, and there are no facts in this case to bring it within the principle laid down in Bramston v Robins (4 Bing. 11).

    My Lords, I think it right to say a word or two upon the point that has been raised with regard to an Act of Parliament being held inoperative by a Court of Justice because the forms prescribed by the two Houses to be observed in the passing of a bill have not been exactly followed. There seems great reason to believe that an idea to that effect has prevailed to some extent in Scotland, for it is brought forward in these papers as a substantive ground of objection to the applicability of the later Act of Parliament; the objection being, that this Act being a private Act, it is inoperative as to the pursuer because he had not proper notice of the intention to apply to Parliament to pass such an Act. This defence was entered into in the Court below, and the fact of want of notice was made the subject of inquiry, and the Lord Ordinary, in the note appended to his interlocutor, gave great weight to this objection. He said, "he is by no means satisfied that due Parliamentary notice was given to the pursuer previous to the introduction of this last Act: undoubtedly no notice was given to him personally, nor did the public notices announce any intention to take away his existing rights. If, as the Lord Ordinary is disposed to think, these defects imply a failure to intimate the real design in view, he should be strongly inclined to hold, in conformity with the principles of Donald (27th of November 1832), that rights previously established could not be taken away by a private Act, of which due notice was not given to the party meant to be injured." His Lordship seems, therefore, to have been of opinion, that if this Act did receive the construction that it would clearly take away from Mr. Wauchope the right to this tonnage, it would have had that effect only if due notice had been given to him of the introduction of the bill into the House of Commons; but that that notice not having been given to him, it could not have such effect, but became wholly inoperative. I cannot but express my surprise that such a notion should ever have prevailed. There is no foundation whatever for it. All that a Court of Justice can do is to look to the Parliamentary roll: if from that it should appear that a bill has passed both Houses and received the Royal assent, no Court of Justice can inquire into the mode in which it was introduced into Parliament, nor into what was done previous to its introduction, or what passed in Parliament during its progress in its various stages through any Court in Scotland, but that due effect will be given to every Act of Parliament, private as well as public, upon what appears to be the proper construction of its existing provisions.

    Lord Brougham: I wish to observe that the Lord Ordinary is not quite correct in the view that takes of the case of Donald; the topic was there used, and, as I think, improperly used, but still only as a topic in the course of the argument.

    Appeal dismissed, and interlocutors affirmed, with costs.

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