cable company at the coast. So that, instead of the existing charges being discriminatory, and in favour of the cable companies as against the Marconi system, the facts are otherwise. It is not necessary at the present moment to deal with the larger question that was discussed by counsel as to the system now in operation being alleged to be discriminatory in favour of the American press as against the press of Great Britain or the transaltantic press. The counsel who appeared in the case suggested that this latter matter should stand over until the larger questions of telegraph communication generally and the rates as applicable thereto were considered by the Board, and in view of there being no sufficient information before us to deal intelligently with this application now, we think that is perhaps the better disposition to make of that matter in the meantime. The attempt here is really to extend the existing system which was voluntarily established by the telegraph companies as to press rates. They have an extremely low rate apparently throughout Canada, and with their connecting lines throughout the United States for press purposes. These rates are applicable, or intended to be applicable in so far as Canada is concerned, to that class of business that is addressed to newspapers, for publication in the various towns and cities and villages in the Dominion. There is a press rate to Glace Bay. It is said there is a newspaper there, and so I presume that from other parts of Canada the press rates would apply to the publisher of that newspaper at Glace Bay. The attempt here is to have the Board extend, against the will of the telegraph companies, this system of reduced rates for press purposes, in this particu lar instance, to the London Times published in London, England. Now, we have no information whatever as to the reasons that moved the telegraph companies to establish these low press rates. We have no information whatever as to the profit of the telegraph companies, as to whether these rates are fairly remunerative or not, and we have no information as to the vol ume of business of that class. All this information would be necessary to enable the Board to say whether or not it was a fair thing to require the telegraph companies to give to newspapers published on the other side of the Atlantic, rates upon a like basis. It was said that press rates could not apply reasonably to cable messages by reason of their being so condensed and so on, and that there was, in some instances, greater expense imposed upon the telegraph companies by reason of their being required to have operators in the cable offices. All these matters would have to be inquired into carefully before we could deal intelligently with the case, and say whether or not transatlantic press rates should be upon the same basis as domestic press rates. This may be a matter that will be developed when the telegraph rates are looked into as they probably will have to be before very long. All that I have said, is of course, quite apart from the question of jurisdiction that counsel raised, as to which in the meantime it will not be necessary for us to say anything. That feature of it may be deferred for consideration when the balance of the complaint is more fully developed, so that we can dispose of it in a manner that we are unable to at present. CANADA.] JURISDICTION-EXPRESS COMPANIES. [BOARD OF RAILWAY COMMISSIONERS. CANADIAN AND DOMINION EXPRESS COs. v. COMMERCIAL ACETY Dangerous commodities—Refusal to carry-Discretion-Railway Act, secs. 317, 348-354. Application to the Board for an order directing the express companies operating in Canada to receive and carry a certain commodity. The express companies contended that the Board had no jurisdiction to order them to carry any class of commodity and refused to carry the said commodity because it was dangerous and liable to explode. Held, under the relevant provisions of the Railway Act, secs. 317, 348-354, express companies are at liberty to exercise their own discretion in refusing to carry by express any particular commodity. THIS application was heard at Ottawa on the 18th day of May, 1909. Frank Arnoldi, K.C., for the applicant. F. H. Chrysler, K.C., for the Dominion Express Co. W. H. Biggar, K.C., for the Canadian Express Co. The facts are fully set out in the judgment of the Chief Commissioner. May 20, 1909. THE CHIEF COMMISSIONER:-The applicants ask for an order compelling the express companies operating in Canada to accept and carry a commodity manufactured by them, consisting of gas absorbed in asbestos encased in copper or metal tanks. The companies have refused to carry these tanks upon the ground that they are dangerous, or liable to explode, but in the view we take of the matter it is not necessary to deal with the validity of these objections, or with the nature of the contracts between the express companies and the railway companies. The fundamental question is whether the Board has power to require express companies to carry any class of commodity they object to, or refuse to accept. The group of clauses from section 348 to 354 of the Railway Act are, with section 317, sub-section 6 and section 2, sub-section 9, the provisions relating to express companies, and shew the control that Parliament has conferred upon the Board over them. Is there anything in these sections that empowers the Board to require these companies to grant the applicants' request? The main group of clauses is headed "Express Tolls" and generally speaking they refer chiefly to tariffs, and conditions and contracts limiting liability for carriage, and as to these matters all the provisions of the Act relating to freight tolls and tariffs, so far as applicable, are to apply to express companies. Section 352 provides that the Board may by regulation, or in any particular case, prescribe what is carriage or transportation of goods by express. Section 353, sub-section 3(b) provides that the Board may in any case or by regulation "prescribe the terms and conditions under which goods may be collected, received, cared for or handled for the purpose of sending, carrying, or transporting them by express, or under which goods may be sent, carried, transported or delivered by express by any such company, person or corporation," and it was upon this section that the principal argument was based in support of the Board's jurisdiction. It does not seem to us that this can fairly be read to mean more than that when an express company decided to carry any particular class of goods, the Board may prescribe the terms and conditions under which the collection, receipt, care for and handling of the same shall take place, and this view is strengthened when this clause is found among a group of sections that do not seem to be dealing with anything except tariffs, tolls and contracts or conditions limiting liability. The "terms and conditions" governing the collection, receipt and handling of goods that the Board might deem proper to impose under this sub-section, relate to the extent to which liability may be impaired, restricted or limited under sub-section 3(a). The Act does not confer upon the Board as wide jurisdiction over express companies as it does over railway companies, and of course jurisdiction is limited to such matters that the Act plainly and clearly covers. There should be no straining after jurisdiction, and as we read this clause it is limited as above indicated. It was also argued that section 333 (1) gave jurisdiction, but we think this relates only to contracts "limiting liability" after a company has decided to accept or collect for carriage any particular commodity. Whether it was the intention of Parliament to limit the control of express companies to tariffs, tolls, conditions and contracts or not, it seems to us the above is the only fair reading of the Act, and we are of opinion that express companies are at liberty to exercise their own discretion in refusing to carry by express any particular commodity. The Assistant Chief Commissioner and Mr. Commissioner McLean concurred. CANADA.] INTERSWITCHING CHARGES. [BOARD OF RAILWAY COMMISSIONERS. ANCHOR ELEVATOR & WAREHOUSING AND NORTHERN ELEVATOR Cos. V. CANADIAN NORTHERN AND CANADIAN PACIFIC RY. COS. (Case No. 9816.) Interswitching charges-Excessive-Through rate and balance thereof— Stop-over privilege-Absorption of interswitching tolls-Intermediate and terminal points—Tolls, reasonable or otherwise—Tariffs to be filed— Delivery in transit-Refund. Upon a complaint to the Board that excessive interswitching charges were made by the Canadian Pacific Ry. Co. for the transfer of cars from the line of the Canadian Northern Ry. Co. to the elevators of the complainants. The complaints arose with reference to traffic originating upon the lines of the Canadian Northern to be carried by them at a through rate to Fort William or Port Arthur when delivered in transit to the elevators of the complainants upon the stop-over privilege of 1 cent per 100 pounds. Held, 1. That the interswitching order of July 8th, 1908, did not apply, that the charge of $5.00 per car made by the Canadian Pacific for interswitching was reasonable, and tariffs should be filed accordingly. 2. That the Canadian Northern could not be called upon to absorb any of this charge, the provisions of the interswitching order of July 8th, 1908, only applying to terminal and not to intermediate points. 3. That refunds in excess of the charge of $5.00 already paid could not be directed, the railway companies charging the tolls called for in their tariff. Canadian Manufacturers' Association v. Canadian Freight Association (Joint Switching Rates Case), 7 Can. Ry. Cas. 302, distinguished. THE application was heard at Winnipeg on February 6th, 1909. W. Bawlfe, for the applicants' manager. O. H. Clarke, K.C., for the Canadian Northern Ry. Co. The facts are fully set out in the judgment of the Chief Commissioner. |