utes at Large, 60), by an act approved February 25, 1909 (35 Statutes at Large, 648), by an act approved June 18, 1910 (36 Statutes at Large, 539), by an act approved August 24, 1912 (37 Statutes at Large, 566), and by an act approved March 1, 1913 (37 Statutes at Large, 701).”

§ 51. Development of legislative control.

At the time of the beginning of the railroads every inducement was held out by the authorities of the State to those who would devote their capital to construction of these highways. In the early charters the legislatures not only often permitted profits which to-day would seem incredible, but gave exclusive franchises to protect the proprietors in getting the returns expected. After some experience with this policy, however, the legislatures began to grow cautious about granting exclusive rights for railroad construction; for it was felt in accordance with the theory of political economy then in vogue that competition would protect the public in all contingencies. This policy of laissez faire had hardly been developed when it was discovered that not only did unrestricted railroad building produce wastes costly to all concerned, but that the inevitable end of all such competition was a combination of some sort, which would almost inevitably result in higher rates. There followed a period of legislative control by direct action, rates being drastically reduced by popular clamor; but it turned out that much of this legislation was so ill advised as to practically bring the business of transportation to a standstill. Not until what may be called our own time has it been discovered that although control was necessary it could be better exercised by commissions given jurisdiction to deal with particular problems upon general principles enounced by the legislature. Only recently, therefore, has it generally been appreciated that an administrative body with its elasticity of procedure can do more to protect the public than any judicial tribunal with its inherent limitation to private litigation.

Topic A. Course of Legislation in England

§ 52. Carriers' liability before 1830.

8

The practice of the carriers of escaping full liability for goods carried became established at a very early date. The hint for this was given by Lord Coke in his report of Southcote's case. In a note to that case he pointed out the desirability of bailees' making a special acceptance of goods to hold as their own in order to escape the absolute liability which, as he believed, all bailees underwent. His view as to the absolute liability of all bailees was soon modified by the courts, but carriers continued under this liability, and indeed the stringent nature of their obligation was increased by the decision of the Court of the King's Bench in the case of Forward v. Pittard. In order to escape this excessive obligation, carriers came more and more to limit their liability by special acceptance. This was usually effected by the giving of notice to shippers that the carrier would not be responsible under certain circumstances, or to the full extent of the value of the goods carried. These notices were usually posted in the shipping office, and were often contained in advertisements in newspapers. The courts allowed the practice and permitted the carriers thus to limit their liability. Eventually the carriers attempted so great a limitation of their liability that shippers were really left without protection, and it became necessary to correct the evil by legislation. This was the occasion of the first English statute-The Carriers' Act of 1830.

§ 53. The Carriers' Act of 1830.

The Carriers' Act of 1830 applied to all carriers by land. Its most important provision forbade the limitation of liability by public notice, permitting, however, the carrier to make special contracts for the conveyance of goods."

74 Coke, 83b. 81 T. R. 27.

911 Geo. 4 & 1 Wm. 4, c. 68.

The statute further exempted the carrier from liability beyond the value of £10 unless special notice of value was given. Under this Act the giving of special notices ceased for several years, but finally the carriers again attempted to limit their liability by the giving of special notice, and the courts finally found a way of permitting the limitation of liability in this way notwithstanding the provisions of the statute. In the case of Walker v. York and No. Midland Railway, 10 the plaintiff sued the carrier for the loss of fish he had shipped, which had been injured by the negligent delay of the carrier. The defendant had distributed to the plaintiff and others printed notices saying it would not be liable for any damage caused by delay and that no servant had any authority to alter this condition. The plaintiff claimed that he was not bound by such a notice, and that it would not protect the carrier, and, so claiming, he shipped the fish. The court advised the jury if they found that the plaintiff had received the notice to find for the defendant, unless the plaintiff had unambiguously refused to deliver the goods on the terms of the notice and the defendant had acquiesced in the refusal. Under this instruction the jury found for the defendant, and the Court of the Queen's Bench held the verdict correct.

§ 54. The Railway and Canal Traffic Act of 1854.

Partly as a result of this practice of the carriers thus legalized by the courts, Parliament passed the Railway and Canal Traffic Act of 1854.11 This Act applied only to carriers by railway and canal. It forbade the limitation of liability by notice and provided that no contract limiting liability should be valid unless it was in writing and signed by the shipper. In addition to this provision it contained several other important regulations of carriage by railway. In the second section it provided that every railway and canal company should afford all reasonable

10 2 E. & B. 750.

11 17 & 18 Vict. c. 31.

facilities for the receiving and forwarding and delivering of traffic upon and from the several railways and canals and for the return of carriages, trucks, boats, and other vehicles; that no such company should give any undue or unreasonable preference or advantage to or in favor of any particular person or company, or any particular description of traffic, or subject any person, company, or description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever; and that every such carrier having a railway or canal which formed a part of a continuous line of communication or which had a station near the station of another carrier should afford all due and reasonable facilities for receiving and forwarding all the traffic arriving by one or the other such railway without any unreasonable delay or preference or advantage, so that no obstruction might be offered to the public desirous of using such railways or canals as a continuous line of communication, and so that all reasonable accommodation might at all times be afforded to the public. In the third section it was provided that any company or person might complain of a violation of the act in any of the courts, and that the attorney-general might complain on behalf of the public; that injunctions might be issued and a penalty exacted for disobedience of such injunction.

§ 55. The Railway and Canal Commission.

In 1888 12 a Commission was established in Great Britain, called the Railway and Canal Commission, with both administrative and judicial duties. The Commission is composed of two appointed members (one of them experienced in railroad business) and a judge of the Superior Court, appointed in each county of the United Kingdom for the business of that county. All three commissioners sit in each case brought before the Commission; but the two appointed members may do administrative business.

12 51 & 52 Vict. c. 25.

To this Commission the returns are to be made; and they are to hear complaints for violation of the provisions of the Railway and Canal Traffic Act or other regulative acts, and any dispute with regard to tolls, rates and charges. They may order such reasonable facilities for traffic as the interests of the public may require. They may award damages for violations of law or for overcharge; but no damages can be awarded for overcharge where the rate charged had been properly published. The Commission may order two or more companies to make joint arrangements for traffic, and apportion the expense. Complaint may be made by municipal bodies or by trade associations. On questions of fact no appeal is allowed from an order or decision of the Commission. On any question of law the judicial member of the Commission shall decide, in case of difference of opinion; and from the decision of the Commission an appeal lies regularly to the Court of Appeal and thence to the House of Lords. On appeal the court may draw such inferences as are not inconsistent with the facts expressly found, when it is necessary to determine the question of law.

§ 56. Scope of its powers.

A classification and rate sheet must be submitted by every railway to the Board of Trade, which after hearing passes upon it; the schedule after approval is then introduced into Parliament and passed as a statute, fixing thereby the maximum rates of the railway. If the schedule of the railway is not approved, the Board of Trade may make and introduce into Parliament its own schedule. It was also provided that if a joint rate is necessary as a reasonable facility for traffic, the railways may be required to make a joint rate. Differences in charges for similar services to traders of different districts presumably constitute an undue preference, and the burden of proving them reasonable is on the railway. The Commission may so far as it thinks reasonable consider whether such