THE QUEEN v. RAILWAY COMPANY. M. T. 1850. before James Carroll applied to them to be conveyed, had not by Queen's Bench notice in writing or otherwise required that the mails or post letter bags should be conveyed and forwarded by their Railway either by IRISH S. E. the ordinary trains of carriages or by special trains, according to the statute in that case provided, and that no remuneration had been fixed and agreed on between the Postmaster-General and the Company, or determined by arbitration as in said statute provided, to wit as provided by the Act 1 & 2 Vic., intituled "An Act to Provide for the Conveyance of Mails by Railway," and that before or at the time James Carroll applied to the Company to be conveyed no mail train whatever was running on, or had ever been by the Postmaster-General required to be run upon the Railway, and that for these reasons the Company were not by law bound to convey James Carroll with bags as by him required. They further certified that the Postmaster-General had not at any time by any notice in writing or otherwise required that the post letter bags should be conveyed and carried by Railway, either by ordinary trains of carriages or by special trains, according to the provisions of the said Act; and that no mail train whatever had been running, nor had any mail train at any time been required to be run by the Postmaster-General upon the Railway, and that for these reasons the Company were not by law bound to convey James Carroll on their Railway. Demurrer by the Attorney-General to this return, and joinder by the Company. The demurrer being, on motion of John Perrin, set down in the Crown list for argument, was now heard. Perrin and the Attorney-General, for the demurrer. The Act relating to the Great Leinster and Munster Railway is 9 & 10 Vic. c. 168 (local and personal); but the statute on which this argument depends is the 7 & 8 Vic. c. 80, s. 11, enacting "That "it shall be lawful for the Postmaster-General to require, in the "manner and subject to the conditions as to payment for service per"formed prescribed by the said Act, 1 & 2 Vic. c. 98, that the mails be "forwarded upon any such Railway as is herein before last mentioned, "at any rate of speed which the Inspector-General of Railways for "the time being shall certify to be safe, not exceeding twenty-seven "miles in the hour, including stoppages; and it shall be also lawful "for the Postmaster-General to send any mail guard with bags not "exceeding the weight of luggage allowed to any other passenger "(or subject to the general rules of that Company for any excess of "that weight) by any trains other than a mail train, upon the same "conditions as any other passenger, provided that in such last"mentioned case nothing herein or in the last recited Act contained "shall be construed to authorise the Postmaster-General to require "the conversion of a regular mail train into an ordinary train, or to "exercise any control over the Company in respect of any ordinary "train, nor shall the Company be responsible for the safe custody or "delivery of any mail bags so sent." With this statute must be considered the one therein referred to and incorporated with it, the 1 & 2 Vic. c. 98, which provides for the conveyance of the mails by Railways. The effect of the return is, that inasmuch as the Postmaster-General had not under 1 & 2 Vic. c. 98 entered into a contract with this Company, the Company were not bound to carry a mail guard with bags. [PERRIN, J. The return does not say there was no contract.]-However, the words of that 11th section are perfectly general; there is nothing to restrict them :"Any mail guard with bags not exceeding the weight, &c., by any trains other than a mail train." We contend that a mail guard is entitled to ask for a second class ticket to travel along the line with bags not exceeding a certain weight. Fitzgibbon, Martley and Sir C. O'Loghlen, contra. If the argument of the other side be correct, this Company must work their line at an enormous loss. The mail trains are obliged to run at a certain speed and cost for each train four pence per mile; and the Postmaster-General says, "Because I have contracted with "the Southern and Western Company to carry the mail, I can force "you the South Eastern, having a branch line into the other, to "run a mail train too;" and this, having entered into no contract with the latter Company, but simply because the South Eastern have M. T. 1850. v. IRISH S. E. RAILWAY COMPANY. THE QUEEN RAILWAY COMPANY. M. T. 1850. started a train to meet the mail train on the Southern and Western. Queen's Bench -[PERRIN, J. Are you bound to take any passenger that offers? You are only bound to do with the Post-office people what you do IRISH S. E. with others.]-But a mail guard should not have a privilege denied to other persons, that of carrying his bags in the carriage when the luggage of another passenger would be objected to. The guard cannot be separated from the bags; and what the Company say is that the Post-office authorities must bring themselves into privity with them before they can force them to take the mail guard. “Any such Railway" in that 11th section means the Railway previously specified; that is, Railways with whom the authorities have contracted. Its provisions can only apply when there is a privity created by the prior establishment of a mail train; Railway Companies are strictly not common carriers; they are only bound to carry personal luggage; not necessarily bound to carry goods or parcels. The Attorney-General (Monahan) replied. Railway Companies cannot be established without obtaining large powers from Parliament. It is not necessary to contend that they are common carriers; for if the Postmaster require a special train he must pay for its cost, minus the profit derivable from the public. The 7 & 8 Vic. c. 85 is applicable to all Companies, and that 11th section applies to a Company having a mail train as well as a Company having none. If they have a mail train, and in addition have an ordinary train at another hour, if it suit the Postmaster he is entitled to send guard and bags by that other train. Nothing in the section cuts down the general words. [MOORE, J. Except reading them with the previous special words.]-But there is nothing to negative their liability to carry passengers if the passengers comply with the regulations of the Company. The Company refuse in order to force the Postmaster into a contract with them.[CRAMPTON, J. What is the meaning of the proviso, "That nothing "therein or in the last recited Act contained shall be construed to "authorise the Postmaster-General to require the conversion of a "regular mail train into an ordinary train, or to exercise any con Queen's Bench THE QUEEN v. RAILWAY COMPANY. ❝trol over the Company in respect of any ordinary train ?"]-That M. T. 1850. is, because a mail train can only be got rid of by notice to the Company. "Any train other than a mail train means a train not under the provisions of the previous Act of Parliament (1 & 2 Vic.) IRISH S. E. The proviso need not be co-extensive with the enacting part; and all that is meant by it is, that where there is a mail train it cannot be converted into an ordinary train.—[BLACKBURNE, C. J. The words are, upon any such Railway as is herein before last mentioned."That means a case in which a guard is sent with mail bags in a train other than a mail train, which is provided for by the 1 & 2 Vic. Why should the Company have the power of refusing to carry a small mail bag a short distance, unless the Postmaster enter into a special contract with them? Why should the Postmaster have a privilege with one Company and not with another? The Company are paid for one duty, and yet they want to force the Postmaster to pay for another. Sir C. O'Loghlen was again heard for the Company. Cur. ad. vult. BLACKBURNE, C. J. The question in this case depends on the construction of the 11th section of the 7 & 8 Vic. c. 85 ; but it is necessary to advert to the Act of the 1 & 2 Vic. c. 98, which makes provision of an elaborate and compulsory character whereby all Railway Companies are bound to provide for the safe and speedy transmission of the mail, whereby every Company without exception is secured reasonable remuneration for the services which it binds them when required to render. These may be said to be the principles on which all these enactments are based. The 11th section of the above statute, after referring to the 1 & 2 Vic. c. 98, reciting, that it is expedient that the provisions made by it for the transmission of the mails should be extended, its enactments do accordingly extend them; and the first extension is by enabling the Postmaster-General to require in the manner, and THE QUEEN V. IRISH S. E. M. T. 1850. subject to the conditions or to payment for services performed, preQueen's Bench scribed by the former Act, that the mails shall be forwarded at any rate or speed, certified to be safe, not exceeding twenty-seven miles an hour. The power thus given to the Postmaster-General is a mere addition to those provided by the former Act, and can only relate to cases in which its provisions were in actual operation by the establishment of mail trains pursuant to contract. This is admitted; but it is contended by the Attorney-General that the clause which follows, which is the second extension, refers to all Railway Companies, as well those in which there has been no contract with the Postmaster-General as those in which there has. On the other hand it is contended that this provision, like the first, is confined to the case of Companies under contract to carry the mail, and bound to have trains for that purpose. The consequence of the former construction is to create a liability extending to every Railway Company, and to give the Postmaster-General a right to have the mails (not exceeding a certain weight) carried for passengers without any special remuneration. It is in my opinion quite impossible to reconcile such an unlimited power with the various provisions of the former Act, so studiously framed to secure the safe and rapid transmission of the mails, and adequate remuneration to the Railway Companies. Considering the vast extent and possible effect of a power which has no other limit than the weight of the mail to be carried, and considering its plain violation of one of the principles of the previous Act, one would have expected a clear and unambiguous expression of such an object and intention, and that the enactment to effect it would not have been coupled with one relating exclusively to those Companies who were or should be bound to carry the mail. To make such Companies liable to the provisions in question, would be neither unfair or unreasonable, because it would only oblige them to convey by a common train a portion of the mail, the whole of which they were already bound to carry by a mail train. If we thus limit the construction of the last clause, its operation will be to bind them to carry for their employers letter bags which may arrive at the station too early or too late to be despatched by a mail |