Railway Legislation 5

Irish Railway Record Society

HISTORY OF RAILWAY LEGISLATION 5

IRISH TRAMWAY AND LIGHT RAILWAY LAW

Part 1

Tim Moriarty

"Irish Railways are unique, in their gauge, character and diversity. They are inextricably linked with Irish history, from the Great Famine to the political upheavals leading to the founding of the Republic" (Nigel Welbourne) [1]

In the years during which the Railway and Canal Traffic Acts already discussed were passed, amended, examined and argued about Tramway and Light Railway legislation was conferred on Ireland in an attempt to extend the rail network to the poorer and more remote parts of the island. So well before the two great Victorian protagonists of Light Railways Cole & Mackay [2] attempted definition and penned their magna opera much light railway construction had already taken place in Ireland. Many others (see Appendix 1) have also been at pains to define a light railway but no entirely satisfactory definition was ever forthcoming. While MacKay favoured the narrow gauge and Cole the standard, the actual gauge of the track was never a deciding factor. In this context it is interesting to observe that the Gaelic for a Light railway is Iarnród Caol i.e. a slender or narrow line [3].

It is as we shall see equally if not more difficult than definition to arrive at a satisfactory understanding of the enabling Irish legislation itself due to the contradictory nature of the laws and the general railway acts incorporated with them. So not surprisingly the legal authorities themselves appear to contradict each other in their understanding and interpretations.

TRAMWAY LEGISLATION

"Light Railways in Ireland" Tatlow told the Vice-Regal Commission [4] "may be classed under two heads. viz. - (1) those constructed under the Tramways (Ireland) Acts 1860-1883 and (2) those constructed under the Light Railways Act 1889 and subsequent Acts. The railways constructed under the Acts from 1860 to 1883 did not serve the poorer areas ... and it was quite clear that further legislation was required...the Act of 1889 (known as Mr. Balfour's Act) is the first introduction of the principle of State aid...This act also was the first attempt to induce existing railway companies to maintain and work a light railway".

Railway events in Ireland in 1860 the year of the first Irish Tramway Act are already well documented by the late GR Mahon in JOURNALS 30 & 31. By that time Ireland had recovered from the famine, the railway mania was over, thirty companies were operating, fewer small companies were being promoted and many had been absorbed by larger ones. Two Acts of general importance were passed in 1860:- The ad hoc business of the Irish Railway Clearing House was legalised and the Railways (Ireland) Act of 1851 on land acquisition was amended.

On the political front by the 1860s the Fenian Movement [5] was causing unrest and private investors were reluctant to support railway schemes for fear of poor returns. Of the Fenians themselves the bishop of Kerry, Dr David Moriarty (1812-1877), considered that "hell was not hot enough nor eternity long enough" to punish them. This was, of course, not because they were frightening away railway investors but because they were perceived as leading people astray, detrimental to Catholic Emancipation and the continued Union with Britain [6].

The Devonshire Commission of 1865 confirmed that there was indeed difficulty getting capital for Irish Railways. Without advocating Government control it saw the solution in promoting and building more railways to be government financial assistance. This is in fact what eventually happened but meanwhile investors were for some time wary of the new untried and tested light railway legislation itself partly because initially there were no financial incentives.

CONSTRUCTION ORDERS

In construction of Light Railways and Tramways it became expedient to save the right of existing companies and no tramway could be authorised between places already connected by rail or where statutory powers so to connect had been already obtained. In total some sixteen statutes applied over the next forty years either wholly or in part and Orders in Council for the construction of light railways and tramways many with the Baronial Guarantee [7] were made under the Tramways and Light Railways Acts 1860-1900. Light Railways were ultimately (by 1906) to form some 18% of the total mileage of Irish railways - 581 out of 3363 miles.

As well as the actual Orders authorising construction and approving of the guarantee there were General Orders giving directions, instruction and specimen administrative forms, all couched in the quaint language of the day. Promoters became Memorialists when praying that the Lord Lieutenant would grant the order. If you wished to object you became a Petitioner. You were required to be aggrieved in numbered paragraphs against an adverse decision of a grand jury. And it had to appear to the Lord Lieutenant himself that the making of the order was expedient.

PERMITTED SPEEDS

The Act of 1860 was very restrictive allowing construction mainly on public roads and only the use of animal power. This remained the law for over ten years until the act of 1871 allowed mechanical power with locomotive speed limits on roadside tramways of 6 mph and 3 mph through towns and villages. These limits were increased by subsequent legislation in 1881 to 10 and 6 mph. respectively and in 1883 to 12 mph in the country. The Regulation of Railways Act of 1844 was incorporated with the Act of 1860 and the Board of Works could now alter the speeds contained therein which were 12 mph and 27 mph. The expression "light railway" was first used in the Regulation of Railways Act of 1868 (s 27) which specified axle loadings up to eight tons for light railways and speed limits of 25 m.p.h. Speed restrictions were apparently abolished by the Act of 1883 where the line was more than thirty feet from the centre of the roadway and passengers were not allowed on the roof of any carriage [8]. So, much confusion about speeds and it appears that in certain circumstances on tramways and light railways in Ireland trains might go as fast as they were able! Fares could be dearer on Light Railways. The maximum for third class was set by the Act of 1860 (schedule B) at one and a half pence per mile, 50% dearer than the normal one penny per mile because "the Light Railway Acts recognised the principle that where traffic is sparse the fares are required to be higher..." (MS annotation in Tatlow's book of evidence - see note 4)

At s25 of the 1860 Act we find that the lines were to be constructed "with Iron Rails or Trams" (original meaning of the word) and on the gauge of five foot three inches. Compulsory purchase of land was not absolute nor was any obligation placed on the company to maintain the road surface. The act of 1871 stipulated that rails laid in roadways were to be laid level with and not to project above the surface. But this costly requirement later became unnecessary if a distance of eighteen feet remained between the line and the opposite footpath or road boundary. Locomotives were to be provided with whistles and lights but the whistle was not to be sounded for any purpose whatsoever! Cylinder taps were not to be opened within sight of a person in charge of a horse nor was the locomotive allowed to blow off steam upon the tramway. Penalty for any infraction was £10.

BOARD OF WORKS

Study of the 1860 Act reveals that the Commissioners of Public Works were charged with reporting on the merits of the proposed lines as part of the procedure leading to an Order in Council. This was intended on avoiding (in theory at any rate) the costly business for the promoters themselves in obtaining an Act of Parliament from Westminster. These wide reaching powers of the Board of Works given by the act of 1860 but limited the following year to an appraisal of the engineering merits only were for the most part restored by the Tramways Act of 1883 and by the Light Railways Act of 1889 (Balfour's Act) when the Board became the administrators of Treasury loans and grants for light railways. Over £4 million was to be advanced to Irish railways but the Acts of 1860 and 1861 had made no provision to enable either the local authorities or the Treasury to financially aid construction.

CITY STREET TRAMS

The Acts of 1860 and 1861 were not intended specifically for the construction of street trams but rather "to facilitate internal communication in Ireland". However in anticipation of the passing of the Bill introduced by Sir Howard Ferguson MP for Londonderry in 1859 which was to become the Tramways Act of 1860 a prospectus was launched by the "City of Dublin and Suburbs Tramway Company". No copy of this prospectus has so far been located but according to the Railway Times (RT) it included a flamboyant account of the success of the tramways of New York in an attempt to attract subscribers:-

"As there is little doubt that the bill of Howard Ferguson relating to tramways in Ireland will become law in the course of the ensuing session of Parliament, a prospectus has been issued of the City of Dublin and Suburbs Tramway Company under the Limited Liability Act. A very flourishing account is embodied in the preliminary notice of the success of the tramways in New York. It is proposed that the capital of the Dublin Company should be £100,000 in £10 shares to be paid as wanted; to run five lines of four miles each through the suburbs centring in the business part of the city and connecting the railways and quays" [9].

The street tram idea came from America. In Ireland a tramline from Kingstown to Glasthule was proposed to the Town Commissioners by a Mr Kernaghan to be built and worked by George Francis Train. Train was involved in city trams in the U.K. and later with the Cork City Trams. In any event nothing happened and Dublin had to wait another twelve years before it first horse tram ran from College Green to Rathgar in 1872.

Street Tramways in Dublin, Belfast and Cork were built under a combination of Local & Personal Acts and Orders in Council under the Tramways Acts. The gauge of the Dublin Trams was not exactly 5'3" as stipulated but five foot two and three sixteenth inches to facilitate the running of ordinary railway rolling stock. Orders for electrification were subsequently made by the Board of Trade and published as Statutory Rules and Orders. The tramways act of 1876 varied the provisions of the application of the Acts of 1860 & 61 to the "county and county of the city of Dublin".

TRAMWAYS AND PUBLIC COMPANIES ACT

In 1880 the Relief of Distress (Ireland) Act enabled the baronies to obtain money from the Treasury at favourable rates to be used for schemes including Railways which would give large scale employment. Forty three proposed light railway schemes are listed in the schedule to this act and around 603 miles of light railway and tramway were built between 1883 and 1896. (297 after act of 1883 & 238 after act of 1889)

In 1883 the Vatican Archives opened, Karl Marks died, the Fenian Thomas Clarke was banished from Ireland and transported. The Tramways and Public Companies Act of 1883 was seen as a most important legislative attempt since 1860 to develop means of communication in Ireland by promoting the Baronial Guarantee. It formed a systematic attempt to promote railway extension by providing local money and control backed by Government finance to diminish the burden on the locality. It advanced Irish light railway and tramway legislation by cutting out the expense and red tape of obtaining a special Act on top of the Order in Council as stipulated in 1860. It extended existing tramway legislation to include light railways. "The act of the last Session is well calculated to promote the extension of tramways and railways in Ireland. By it the legislation in respect of tramways is extended to railways" wrote McDevitt [10]. But it failed to provide for the direct involvement of the existing railways and was to be severely criticised by the second report of the Commission of Inquiry into Irish Public Works five years later (see post).

THE GRAND JURY

The first step in obtaining sanction for the construction of a Light Railway or Tramway was for the promoters having formed themselves into a company and having published the prescribed notices and deposited the prescribed plans to bring the matter before the Grand Jury [11] or Juries of the districts involved. The Grand Juries were the forerunners of the County Councils. Where the Grand Jury favoured the construction application was next made to the Privy Council for an Order in Council authorising the undertaking. Where the Grand Jury disapproved of the scheme it was regarded as having failed. But where more than one Grand Jury was involved and one disapproved and the other approved the promoters could appeal to the Privy Council whose decision was final. Should the appeal be upheld the Order granted could have no effect until confirmed by Act of Parliament and the obligation (and presumably also the cost) in obtaining this confirmation act rested with the Privy Council and not with the promoters.

While all costs, charges and expenses incurred for an order in Council were payable by the promoters and other charges were at the discretion of the Lord Lieutenant, the question of who paid for the special act in these circumstances is not entirely clear. At s14 of the Act of 1860 we were told that "The Lord Lieutenant shall ... procure all necessary steps for the confirmation of such order by Act of Parliament ... the Bill for any such act shall be treated ... as a Public Bill". This would seem to indicate that the state paid. On record is the case of the Cork Coachford and Blarney Railway which was a Public Bill.

But confirmation of all Orders (whether objected to or not) was a requirement of the 1860 Act although it was subsequently repealed in cases where the Order in Council was granted without objection.

It should be mentioned that great responsibility rested with the promoters themselves because if the application for Grand Jury or Privy Council approval was defective in any way technical or otherwise, it was doomed to rejection and the whole process had to be begun all over again. "One thing ought to be borne in mind" wrote MacDevitt in 1883 "... it will be particularly necessary for the promoters of companies for the construction of Tramways and Light Railways under the Act (of 1883) to be careful in every step they take that their proceedings are in order" [12].

Promoters had always to content with the possibility of an objection called a "traverse" (formal denial of facts) against the Grand Jury approval already given by any person who had objected before the jury. Such person was called a "traverser" - although the word as more generally used and understood in railway parlance denotes an appliance for transferring vehicles from one line to another in a workshop! In addition promoters had to be prepared for the consequences of an appeal to the Privy Council against the granting of an Order where the scheme already had Grand Jury approval or indeed refusal by the Council itself. The Tuam to Claremorris line is an example of what could happen. It got a guaranteed from the Grand Jury but the Privy Council refused the order due to a technicality. An Act of Parliament was required but this was opposed and the line did not open until 1894.

THE BARONIAL GUARANTEE

Where a Baronial Guarantee was sought the submission by the Grand Jury to the Privy Council called a "presentment" would set forth the baronies (later County Districts) proposed to be charges with the payment of dividends at such a rate (not exceeding 5%) as determined by the jury. The presentment also pledged the baronies' liability for payment of the money required in the event of default of the promoters in completing the work, working or maintaining the line. This requirement was removed by the Tramways Act of 1900 when the liability no longer applied to lines built without moneys provided by Parliament and was intended to alleviate the burden cast by the guarantee system on the rate payers. Henceforth the guaranteeing areas were not responsible for the default of the promoters in completing, working and maintaining the railway or tramway. The guarantee provided for any surplus in each half year (after deduction for management, operating expenses and dividends) to be paid over to the county as per s5 of the Act of 1883.

The baronial guarantee could be perpetual or for a fixed period of years (average 35 years) and the presentment often provided for baronial representation on the management of the company by election of a director or auditor or by appointment of delegates to vote at company meetings. Most guarantees were perpetual. According to calculations about forty-one railways - a mix of narrow gauge, standard gauge, branch lines and extensions were fortified by Baronial Guarantee with or without state aid (subvention) of which about one third was terminable and two thirds in perpetuity.

The use of the guarantee was more prevalent in the South of the country than in the North. When the secretary of the BCDR was examined at the inquiry in Ardglass into the Downpatrick, Killough and Ardglass Light Railway in January 1890 he stated: "Our experience of barony guarantees in the north is not satisfactory. We tried to get it in the case of another railway - the Ards line - and we had great difficulty. The directors thought to promote the line themselves and get from the Government what they considered fair for the construction of it, but they did not hamper the thing by going to the baronies" (Report of Evidence, 1890).

The treasury was given power in 1895 to redeem or buy out Baronial guarantees. Redemption was by what was called the "Commutation Act" of 1895 involved the payment of a lump sum in lieu of continued annual payments. But this was done in only four cases:- West Donegal, Tralee and Dingle (T & D), Mitchelstown and Fermoy and the Carrickfergus Harbour railway. The T & D was redeemed for £80,000. All baronial Guarantees were abolished by the Irish Railways Act of 1924 when the Government agreed to pay almost £480,000 to the Amalgamated company (GSR) in twenty instalments over the ten years 1925-1934 [13].

In 1888 the Royal Commission on Irish Public works known as the Allport Commission considered the procedures under the Act of 1883 as "excessively cumbersome and consequently expensive" [14]. By way of example the Clogher Valley Railway (CVR) was examined. It was 37 miles in length and passed through two counties and four baronies. The law provided for the appointment of eight baronial directors and 11 auditors. In addition to the input from Government Departments, two county surveyors had to decide and agree on the technical details of the scheme and two Grand Juries convinced as to the general advantages of it. There was no machinery for resolving differences between the various parties. Various attempts had been made to promote this line since 1845 and the Tramway Order was finally obtained in 1884.

The remainder of this article appears in IRRS Journal number 164, published October 2007.