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careful consultation with the Attorney-General led Distan to a Memorandum from tam or „asqyrudƆ Inisim 19 T

extract:

“After much consideration, it seems to me that the only solution of the question is to recognize that competition shall be a circumstance which the Railway Commission may take into their considera- tion in determining whether an alleged preference is undue or unreasonable. The only other alternative would be to deal with the matter as a pure question of law, and hold it illegal for railway Companies to charge a lower rate unless they could prove dif- ference of circumstances in the matter of carriage. The suggestion of the President of the Board of Trade, that a difference of charge for the same kind of goods between the same termini shall be primá facie evidence of an undue preference would be the practical way in which the question would be raised, because it would then be incumbent on the railway Companies to show difference of circum- stances justifying the difference of charge."

The circumstances which may justify it would appear to be, either (1) where the cost to the Com- pany in carrying the goods to which a preference is given is for some reason or another actually greater (which is so obvious that the Commission could not fail to take it into account), or (2) where the railway Company would lose the traffic altogether if it were not for the lower rate. This latter point ought, I think, in some way to be met, and there- fore the clause which I now propose provides that, when a Company charges unequal rates for the same service, or performs unequal services for the same charges, the burden of proof shall lie on the Company to show that this is not an undue pre- ference; but that the Commissioners shall be allowed to take into consideration the question whether the traffic would be necessarily diverted if the preference was withdrawn.

January 14, 1886.

F. S.

PRINTED AT THE FOREIGN OFFICE ST T. HARRISON.—18, 1;86.

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