Edinburgh and Dalkeith Railway Company v Wauchope: HL 22 Mar 1842

The company had, under authority of a private statute, built a railway which passed across land belonging to the defendant. They were to pay a sum for the goods carried. At first they sought to collect a toll, but his proved unprofitable. The defendant sought payment for the carrying of passengers. The appellant said if he had any right to claim such, he had lost it after many years of allowing passengers to cross his land without charge.
Held: The respondent succeeded: ‘He cannot put an end to a right conferred by Act of Parliament, merely by the non-exercise of it for some years. ‘ and
‘There is little doubt that the provisions of the Act are ambiguous and inaccurate; but . . Mr. Wauchope is entitled to the sum of one halfpenny per ton upon the weigh 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 the 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.’
Irregularity in the conduct of parliamentary business is a matter for Parliament, not the courts. It was suggested that a private Act which affected a vested right could not be made applicable to a person who had had no notice served upon him of the introduction of the Bill. Lord Campbell said: ‘There is no foundation whatever for it. All that a Court of Justice can do is look to the Parliament 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 ‘.
Lord Brougham and Lord Cottenham said that want of notice was no ground for holding that the Act did not apply. Lord Campbell based his opinion on more
general grounds. He said: ‘My Lords, I think it right to say a word or two before I sit down, upon the point that has been raised with regard to an act of Parliament being held inoperative by a court of justice because the forms, in respect of an act of Parliament, have not been complied with. There seems great reason to believe that notion has prevailed to a considerable extent in Scotland, for we have it here brought forward as a substantive ground upon which the act of the 4th and 5th William the Fourth could not apply: the language being, that the statute of the 4th and 5th William the Fourth being a private act, and no notice given to the pursuer of the intention to apply for an act of Parliament, and so on. It would appear that that defence was entered into, and the fact was examined into, and an inquiry, whether notice was given to him personally, or by advertisement in the newspapers, and the Lord Ordinary, in the note which he appends to his interlocutor, gives great weight to this. The Lord Ordinary says ‘ he is by no means satisfied that due parliamentary notice was given to the pursuer previous to the introduction of this last act.’ Undoubtedly no notice was given to him personally, nor did the public notices announce any intention to take away his existing rights. If, as the Lord Ordinary is disposed to think, these defects imply a failure to intimate the real design in view, he would be strongly inclined to hold in conformity with the principles of Donald, 27th 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.’ Therefore, my Lord Ordinary seems to have been most distinctly of opinion, that if this act did receive that construction, it would clearly take away the right to this tonnage from Mr. Wauchope, and would have had that effect if notice had been given to him before the bill was introduced into the House of Commons ; but that notice not having been given, it could have no such effect, and therefore the act is wholly inoperative.
I must express some surprise that such a notion should have prevailed. It seems to me there is no foundation for it whatever; all that a court of justice can look to is the parliamentary roll; they see that an act has passed both Houses of Parliament, and that it has received the royal assent, and no court of justice can inquire into the manner in which it was introduced, or what passed in parliament during the various stages of its progress through both Houses of Parliament. I therefore trust that no such inquiry will hereafter be entered into in Scotland, and that due effect will be given to every act of Parliament, both private as well as public, upon the just construction which appears to arise upon it.’
Lord Cottenham, Lord Brougham, Lord Campbell
[1842] UKHL 710, 8 ER 279, [1842] EngR 405, (1842) 8 Cl and Fin 710, (1842) 8 ER 279, [1842] UKHL J12
Bailii, Commonlii, Bailii
Cited by:
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Lists of cited by and citing cases may be incomplete.
Updated: 25 September 2021; Ref: scu.238718