Published: Wed, 07 Mar 2018
Edinburgh & Dalkeith Railway Co v Wauchope 8 E.R. 279 (1842) 8 Cl & Fin 710
Public law – Private Acts of Parliament
The case revolves around a railway that was built by 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 provision for the levy did not contain a fixed sum for carriages containing passengers, however there was provision for the levy concerning tonnage of goods. For several years Wauchope was paid levy sums concerned with the tonnage of goods passing on the railway, but nothing for those carrying passengers.
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of the railway was covered by first the original private provision of Parliament, and then a second Act which repealed and consolidated many of the existing provisions.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 (exclude that of passenger carriages) for years from the respondents, but in 1935 he claimed a way-leave for tonnage in respect of carriages with passengers.
At first hearing, the court held that Wauchope had no power to raise a levy on carriages carrying passengers under the first Act.
On appeal, the Lords found for Wauchope. It was held that the contrary provisions in the second Act could not apply as they had not been communicated to him – specific to this being a Private act of Parliament. However it was also noted that wherever an Act has been properly enacted by Parliament, it’s the duty of the courts to interpret it as representing the will of Parliament.
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.
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 *285 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  A.C. 765;  2 W.L.R. 208;  1 All E.R. 609; (1974) 118 S.J. 134
R. (on the application of Buckinghamshire CC) v Secretary of State for Transport  UKSC 3;  1 W.L.R. 324;  2 All E.R. 109;
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