Edinburgh & Dalkeith Railway Co v Wauchope [1842] UKHL J12; (1842) 8 Cl & Fin 710; 8 ER 279
Public law – Private Acts of Parliament
Facts
The case revolves around a railway that was built through a private land owner’s property (Wauchope). The railway was built under the power of a private act of Parliament – it gave the builders right of way through private property, and also provided for a ‘compensatory’ scheme of levies on the freight using the railway. The Act allowed the company to set a charge for carriages conveying passengers, subject to a maximum rate per ton per mile. The dispute was whether Wauchope’s allowance covered those carriages and the weight of their passengers. For several years Wauchope was paid levy sums concerned with the tonnage of goods passing on the railway, but nothing for those carrying passengers.
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The building and controlling of the railway was covered by first the original private provision of Parliament, and then a second Act which repealed and consolidated many of the existing provisions. Whilst Wauchope was aware of the provisions of the original act before implementation, this was not true of the later Act.
Wauchope had been receiving payment for tonnage (excluding that of passenger carriages) for years from the railway company, but in 1835 he claimed a way-leave for tonnage in respect of carriages with passengers.
Issues
The issue was whether Wauchope’s statutory way-leave allowance extended to passenger carriages and, if so, whether their weight included the passengers. The Lord Ordinary initially upheld his entitlement, but later excluded the passengers’ weight when settling the accounts. The Inner House reversed that exclusion. The railway company appealed to the House of Lords.
Decision/Outcome
The Lords dismissed the railway company’s appeal with costs. Construing the legislation, they held that Wauchope was entitled to one halfpenny per ton on the weight of each passenger carriage together with its passengers. His earlier acceptance of accounts excluding these payments did not bar recovery of the arrears.
The argument that lack of notice made the later private Act inapplicable to Wauchope was abandoned before the Lords and expressly rejected in their speeches. An Act that had passed both Houses and received Royal assent could not be treated as ineffective because parliamentary procedures or notice requirements had not been followed. The courts’ task was to give effect to its properly construed provisions.
Lord Cottenham (presiding):
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 in thus construing the Act, and that Mr. Wauchope is entitled to the sum of one halfpenny per ton upon the weight 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 that 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, quoting the Lord Ordinary’s suggested approach before rejecting it:
“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 both Houses. I trust, therefore, that no such inquiry will again be entered upon in 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.
This case has been cited in the following cases:
British Railways Board v Pickin [1974] A.C. 765; [1974] 2 W.L.R. 208; [1974] 1 All E.R. 609; (1974) 118 S.J. 134
R. (on the application of Buckinghamshire CC) v Secretary of State for Transport [2014] UKSC 3; [2014] 1 W.L.R. 324; [2014] 2 All E.R. 109;
