c. 48), applies (this Act, unlike the two previous Regulation of Railways Acts, does not apply to tramways however authorised), and includes a light railway under Light Railways Act, 1896, and "railway" and "railway company" have the same meaning as in the said Acts of 1873 and 1896. railroad 'Engineering work" (sect. 7 (2)) means any work of construction or alteration or repair of a and includes any other work for the construction, alteration or repair of which machinery driven by steam, water or other mechanical power is used. Thus a light railway is specifically included in the Act, whatever its type, provided that it was made under Light Railways Act, 1896. (Holmes v. City But a tramway, as such, is not within the Act. of Birmingham Tramway Co. (1902), 113 L. T. Newspaper, 197 (C. A.); compare Fletcher v. London United Tramways, Ltd., infra.) The promoters or lessees would, however, be liable under the Act to compensate their workmen if they employed them as undertakers in any of the employments specified in sect. 7 (1). And in particular it has now been decided that the word "railroad" in sect. 7 (2), unlike "railway," includes tramway (Fletcher v. London United Tramways, Ltd., [1902] 2 K. B. 269; 71 L. J. K. B. 653 (C. A.)), and therefore employment on the construction, alteration or repair of a tramway is an employment to which the Act applies, whether mechanical power be used in the work or not. Note, that in Regulation of the Forces Act, 1871 (34 & 35 Vict. c. 86), s. 16, though this was not brought to the attention of the Court in the last-cited case, "railroad" is expressed to include any tramway, whether worked by animal or mechanical power. Thus, as far as mere employment in, on or about a tramway or light railway is concerned, we may arrive at the same absurd result as under Employers' Liability Act, 1880, where a system is continuous and consists in part of tramway and in part of light railway. An accident might well begin on the tramway portion and end on the light railway portion, if the workman was dragged along by a car, and an interesting question of law would then arise. Compare Bathgate v. Caledonian Railway Co. (1902), 4 F. 313, where an accident began in, on or about a railway and ended in a shop-window some distance off. The only other reported cases of proceedings under this Act against a tramway company are Brennan v. Dublin United Tramways Co., [1901] 2 I. R. 241 (C. A.), where such a company was held not to be liable to compensate the workman of contractors, who was injured while erecting coal-hauling machinery at one of their power stations on the ground that such erection was merely ancillary to their business within the meaning of sect. 4 of the Act; and Mooney v. Edinburgh and District Tramways Co., Ltd. (1901), 4 F. Sect. 55. Sect. 55. 390, where a car-driver was injured while employed in oiling his car in a car-shed belonging to a cable tramway company. This shed was used for the housing of cars, and the only mechanical power used in it was used for the propulsion of the car-traversers or travelling platforms for the conveyance of cars. The shed, however, adjoined a machine-room, where mechanical power was used for the repair of parts of the cars which required repair. These parts were removed from the cars in the car-shed and afterwards re-affixed to them there. It was held that the accident occurred in, on or about a factory, and that the man was entitled to compensation. Recovery of tolls, penalties, &c. 56. All tolls (), penalties (k), and charges (i) under this Act, or under any byelaw made in pursuance of this Act (1), may be recovered and enforced as follows; in England before two justices of the peace in manner directed by the Act of the session of the eleventh and twelfth years of the reign of Her present Majesty, chapter forty-three, intituled "An Act to facilitate the performance of the duties of justices of the peace out of sessions within England and Wales with respect to summary convictions and orders,” and any Act amend ing the same (m), and in Scotland before the sheriff or two justices as penalties under the Railways Clauses Consolidation (Scotland) Act, 1845 (n). (i) See sects. 10, 19, 35 to 39, 45. (k) See sects. 27, 30 (promoters), 38 (licensees), 49 to 51, 54 (members of the public), 63 (4) (witnesses at an inquiry). (7) See sects. 46, 47. (m) Summary Jurisdiction Act, 1848 (by Short Titles Act, 1896 (59 & 60 Vict. c. 14)), formerly known as "Jervis' Act." The amending Acts are Summary Jurisdiction Act, 1879 (42 & 43 Vict. c. 49), and Summary Jurisdiction Act, 1884 (47 & 48 Vict. c. 43). Any one of the magistrates of the Metropolitan Police Courts, and any stipendiary magistrate for any county, borough or place (Summary Jurisdiction Act, 1848, s. 33), or the Lord Mayor or any alderman of the City of London sitting at the Mansion House or Guildhall (sect. 34), may do alone whatever is authorised by the Act to be done by one or more justices. So, too, Summary Jurisdiction Act, 1879, s. 20 (10). Where, as here, there is no provision for the payment of penalties to any person, the clerk of the justices is to pay them to the treasurer of the county, riding, division, liberty, city, borough or place (ie., a place having a Court of Quarter Sessions (Reigate Corporation v. Hart (1868), L. R. 3 Q. B. 244; 37 L. J. M. C. 70) for which the justice or justices shall have acted (Summary Jurisdiction Act, 1848, s. 31)). In the Metropolis such penalties are taken by the Receiver for the Metropolitan Police District under Metropolitan Police Courts Act, 1839 (2 & 3 Vict. c. 71), s. 47, as amended by Metropolitan Police Courts Act, 1897 (60 & 61 Vict. e. 26), s. 9, but this only applies to penalties recovered before metropolitan police magistrates, and not to penalties recovered before other magistrates within the Metropolitan Police District. (Receiver for the Metropolitan Police District v. Bell (1872), L. R. 7 Q. B. 433; 41 L. J. M. C. 153.) In R. v. Struvé (1895), 59 J. P. 584, the Neath Tramway Company were summoned under a section of their private Act, which imposed a penalty for breach of sect. 28 of this Act for not keeping their rails in proper condition and repair. An order was made that they should pay the statutory penalty, and also 17. per day so long as the offence should continue. Some eighteen months later another summons was taken out against them for payment of the whole penalty incurred by them under the last order, and an order was made for payment of the amount. This second order was held to be had (i) as being based on the first order, which imposed penalties for offences not yet committed; and (ii) as itself imposing penalties for offences committed more than six months before the date of the summons. Penalties duly imposed on a tramway company may be levied by distress. (Pegge v. Neath District Tramways Co., [1895] 2 Ch. 508; 64 L. J. Ch. 737; [1896] 1 Ch. 684; 65 L. J. Ch. 536 (C. A.).) Where a petition has been presented for the winding-up of a company under the Companies Acts, the Court has jurisdiction under Companies Act, 1862 (25 & 26 Vict. c. 89), s. 85, to restrain an action for penalties against it. (In re Briton Medical and General Life Assurance Association (1886), 32 Ch. D. 503.) The general principles laid down in the cases which have been discussed in note (i) to sect. 49 are adaptable, mutatis mutandis, to the bare question of procedure, apart from any question of the measure of damages. In Wolverhampton New Waterworks Co. v. Hawkesford (1859), 6 C. B. (N. S.) 336, 356; 28 L. J. C. P. 242, 246, Willes, J., laid down the following rules: "There are three classes of cases in which a liability may be established founded upon a statute. One is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy; there the party can only proceed by S. S Sect. 56. Sect. 56. action at common law. But there is a third class, viz.: where a This rule was first clearly laid down by Lord Tenterden, C. J., in (n) 8 & 9 Vict. c. 33, as amended by S. L. R. Act, 1892 (55 & 56 Vict. c. 19), the appropriate sections (which have not been repealed by the amending Act) being sects. 137, 138 (both amended), 139, 142, 144, 146, 147, 149 (amended), 150 (amended). These correspond with necessary variations with the English Act (8 & 9 Vict. c. 20), ss. 145 to 161, as repealed and amended by the above-mentioned S. L. R. Act, S. L. R. Act, 1875 (38 & 39 Vict. c. 66), and Summary Jurisdiction Act, 1884 (47 & 48 Vict. c. 43), s. 4. As to the effect of these provisions in justifying a sentence of instant imprisonment, where it is inexpedient to issue a warrant of poinding and sale, for an alleged offence under sect. 50 of the present Act, see Hall v. Linton (1879), 7 R. (J. C.) 2; 4 Coup. Just. Ca. 282. It was held in Simpson v. Glasgow Corporation (1902), 4 F. 611, that a person residing near an electric tramway could prosecute the promoters, with the concurrence of the procuratorfiscal, for breach of a Board of Trade regulation, the promoters' private Act incorporating the present section. He was held to have a sufficient interest to do so, inasmuch as Railway Clauses Consolidation (Scotland) Act, 1845, s. 142, gives power to the sheriff or justices to award half the penalty to the informer, quite apart from any interest he might have arising from his residing near the tramway. user only. 57. Notwithstanding anything in this Act contained Sect. 57. the promoters (o) of any tramway shall not acquire or Right of be deemed to acquire any right other than that of user of any road along or across which they lay any tramway (p), nor shall anything contained in this Act exempt the promoters of any tramway laid along any turnpike road, or any other person using such tramway, from the payment of such tolls as may be levied in respect of the use of such road by the trustees thereof (q). (0) See sects. 4 and 24. (p) This section is intended to limit comprehensively the rights of promoters to the necessary easement or right of user, which is requisite for the carrying out of their statutory purposes. Special aspects of this limitation are dealt with in sects. 59 to 62, while sects. 34 and 54 confer on the promoters their statutory monopoly. As to the general nature of the rights conferred on promoters, see note (k) to sect. 34, the cases there cited, and the cases on the rating of tramways discussed ante, pp. 50 sqq. They have, at most, a peculiar kind of limited occupation governed by the provisions of this Act and of their own Acts or Orders, and it cannot be suggested that they have any ownership in the soil of the road. In Sydney Municipal Council v. Young, [1898] A. C. 457; 67 L. J. P. C. 40, it was held that the road authority was not entitled to any compensation in respect of the taking by the Secretary for Public Works of part of a street, which was under their control, for the purpose of a tramway, on the ground that such taking was not a taking of property under the law of New South Wales, and also that the road authority themselves, on the well-known principle, had no other property in the street than was necessary for its proper repair and management. The extent and nature of the franchise granted to promoters under particular grants has been discussed in Toronto Street Railway Co. v. Toronto Corporation, [1893] A. C. 511; 63 L. J. P. C. 10, and Winnipeg Street Railway Co. v. Winnipeg Electric Street Railway Co., [1894] A. C. 615; 64 L. J. P. C. 10. In the latter case the grant was to "use and occupy any and such parts of the streets and highways aforesaid as may be required for the purposes of their railway track, the laying of the rails, and the running of their cars and carriages," and further, "such railway shall have the exclusive right of (sic) such portion of any street or streets as shall be occupied by the said railway." This grant, it was pointed out, conferred no right to use and occupy any part of the streets and highways beyond what was strictly necessary for the temporary purpose of constructing the railways, and for the permanent purpose of maintaining them in repair and conducting traffic upon them. |