RAILWAY LEGISLATION

Lyttelton Times, Volume XXII, Issue 1264, 16 July 1864, Page 3

RAILWAY LEGISLATION

(From the Tinws.) It has been ingeniously suggested that the " muddle " at which our Statute-Book has confessedly arrived has been occasioned not by reason of legislators not knowing their own meaning, but by reason of the lawyers not being able to explain their meaning with any proper force and clearness. It is insisted that at least two good qualities ought to go to a draughtsman, —that he ought to have the apprehensive power to catch the legislator's intention, and the power of expression to give it language. It is wickedly asserted that downwards, from the distant days when our great lawyers were great scholars, men have been drawing Bills who had 110 notion of writing English ; and it is lamented that a task which would seem to require the most intimate acquaintance with the structure of the English language has devolved upon a class who would have thought it rather a {>rofessional disqualification to employ their eisure upon anything more homely than a moderate stock of law Latin and a modicum of Norman French. But if any such reproach does rest upon the memory of draughtsmen long gathered to congenial dust, the present generation has arisen to a better appreciation of its duties. Sometimes we now see a Parliamentary Bill like a piece of cunning mosaic work, wherein, although the pieces may not be precious nor the colour striking, there is a pleasure to be derived from the careful accuracy with which every fragment fits. If any one would mark

o — j . this new style in its perfection, Ave would refer him to one of two Bills for reforming the present style of Railway Legislation which have been introduced into the House of Commons by the Vice-President of the Board of Trade. The draughtsman here has; seized with promptitude and fidelity the! the whole spirit of modern legislation in the railway subject, has condensed it into six lines, and proposes to give it the authority of Parliament. The title is a little startling, for it is called " A Bill to Facilitate in certain Cases the obtaining of Powers for the Construction of Railways; " and on reading this the idea is apt to occur that these : facilities have been already too great. But; it is to the preamble we beg the reader's attention.

Thisr preamble runs as follows:—"Whereas it is expedient that where all landowners and other parties beneficially interested are consenting to the making of a railway, the persons desirous of making the same should be enabled to obtain power to do so on complying with the conditions of a general Act of Parliament, without being obliged to procure a special Act." No great principle was ever mote'simply enunciated, or, as We shall presently see, more faithfully carried out. Whenever the parties " beneficially" interested are consenting to a railway the promoters ought to obtain power to make it. This is the proposition ; and the candid draughtsman has at length put in words what the Legislature has so often declared in Acts. The parties " beneficially interested" are the engineers and the lawyers, and chairman and directors, and those landholders who are bought off at their own price. The people not "beneficially interested" are the people whose property is not actually taken, but only shaken, darkened, impeded, or made uninhabitable and unmarketable. Other parties not "beneficially interested" are, in many cases, the general public. All these people have, according to the principle so clearly laid down in this preamble, no right to any voice in the matter. If the parties "beneficially interested" are consenting, the promoters ought to have all the powers which the Bill could give them, witfroutthe trouble and expense, and possibly the disagreeable discussions that might attend the passage of a Bill. This is the principle of the measure which the "Vice-Presi-dent of the Board of Trade introduces as the panacea for the evils of railway legislation, and by which he proposes to withdraw from the cognizance of Parliament all railway projects when the actual land required to be taken can be obtained without using the compulsory powers of the Lands Clauses Act. As this is one of the most extraordinary Bills we ever read emanating from a public department, it may be worth while to point out how the principle thus enunciated is worked in detail.

The plan is this -.—When any persons have constituted themselves " promoters of a railway "—how this is to be evidenced is not said—"all parties seised or possessed of, or entitled to land" along the intended line may enter into contracts with these promoters for the sale of the land which they are " seised or possessed of, or entitled to." Any one in possession may contract, but only those entitled can convey. These contracts are to be good against every one, and if the occupants do not turn out at the proper time the promoters may, under a section from the Land Clauses Act, craftily incorporated, issue a warrant to the Sheriff to give them possession and to make a supplementary distress for the costs. When the promoters have obtained this bundle of contracts from all those who may be in possession, they are to fulfil such preliminaries as to notices and deposit of plans as the Board of Trade may require, and they may then go to the Board of Trade for " a certificate." When the Board of Trade has received the application they shall require from the solicitor to the promoters a declaration that he has " contracted for the purchase or taking of the lands," and this declaration " shall be admitted by the Board of Trade as evidence of the matters therein declared to." If, however, it should turn out afterwards that any lands have been forgotten to be contracted for, they may be afterwards taken under the Lands Clauses Act, if the Board of Trade shall permit. Having obtained this declaration by the solicitor, it would appear that every preliminary to the formation of the railway company has been accomplished. There is no suggestion of any inquiry as to any other matter than " whether the promoters have contracted lor the purchase of all the lands required for the railway, and have complied with the requirements respecting deposit and notice. A simple declaration, as we have seen, settles all this, and then " the Board of Trade may make and issue a certificate, certifying to the effect that the company, body, or persons therein specified are authorised to make the railway therein described." There is no publjc inquiry, no objectors, no necessary publicity whatever- This certificate immediately takes thp effect of a special Act ot Parliament; it incorporates the company, gives it all the powers of the Railway Glauses Act, and puts it altogether upon the same etatw with a railway company sanctioned by an Act of the Legislature. The only exception is as to the application of a few ot the compulsory provisions of the Lands Clauses Act But, on the other hand, as the com.

pensation provisions of the Land Clauses Act are also excepted from the provisions applicable to railways under this Bill, there would be no remedv whatever for the owners of lands not actually taken, but only " injuriously affected" by the works of these Board of Trade railways. We think it will be found by any lawyer looking closely into the probable working of this Bill that such must be its effect if passed as it now stands.

No oue can find fault with this measure that it is not oxtensive enough in its alteration of the present system of railway legislation. There is quite power enough in it to reach any mark ; but it may be considered to point altogether wide of the mark which the public generally desire to hit. The Board of Trade is a department which may possibly command the entire confidence of thocountry, We are not quite sure that this is so, but wo are ready to assume the proposition hypotheStill, however, we question whether the public or Parliament are prepared to see this department assume the whole province of the Legislature in all railway matters, without leaving it a voice. We have often recently discussed the possibility of withdrawing mere matters of evidence from the Parliamentary Committee-rooms, but it never occurred to us that the Board of Trade might coolly usurp all the great questions which have been hitherto thought to appertain peculiarly to Parliament, and leave to the House of Commons nothing but an occasional application of the screw to impracticable landowners. The necessity of a proposed line,* the expediency of applying the remedy of competition in any individual instance, I the amount of inconvenience to the general ! public at the expense of which an advantage may be bought, the hardship which the works may inflict upon individuals, and the general ■ bona fides of the project have always been considered general questions which should never be allowed to escape from the immediate eye of Parliament. Yet these are the very points which are proposed to be withdrawn altogether from Parliament, and taken entirely within the jurisdiction of the Board of Trade. It is very well to say that, the cases here to be dealt with are only those in which voluntary contracts can be obtained for the land. This does not in any way lessen the importance of the evil as respects the public and the neighbouring proprietors. Moreover, when we find that anybody in possession can contract so as to procure sanction to the railway, although he cannot ultimately convey the land, this distinction seems to fail us, and this Bill practically proposes to give the Board of Trade jurisdiction over the formation of all future railways. The whole scheme seems so unreasonable that we distrust our own estimate of the scope ,of the Bill, and invite professional criticism upon it.j- There may be a different reading from that which occurs to us, but as we read it, it is the most impudent proposition we can recollect to have been submitted to Parliament.