previous
next

§ 219. “Transport for the Naval and Military Purposes.”

The railways at present belong to the States and are worked by the States. This sub-section confers on the Federal Parliament the power to exercise a modified control over the railways, so far as may be necessary to regulate the transport of forces and material for naval and military purposes. This control will cover the time and manner of using the railways for defence purposes, as well as the indemnity which will, as a


  ― 643 ―
matter of justice, have to be paid to the State authorities for such compulsory user. No doubt the Federal Government will be able to make arrangements with the State Governments, determining the manner and conditions under which the railways may be so used. It is not likely that the Federal Government would dictate its own terms, so long as a reasonable spirit was displayed by the State Governments.

Such a power is necessarily a concomitant and auxiliary of “the naval and military defence of the Commonwealth,” which by sub.-sec. vi. is vested in the Federal Parliament. Probably, even without sub-sec. xxxii., the Parliament would, in an actual state of war, or in making necessary arrangements for the defence of the country antecedent to war, be able to authorize the use of the State railways It would be a defensive power, necessarily embraced in sub-sec. vi. It has not, however, been allowed to rest on that sub-section, but has been placed beyond the region of controversy.

By the Constitution of the German Empire (Art. 41) it is provided that railways considered necessary for the defence of Germany, or in the interest of general commerce, may by Imperial law be constructed at the cost of the Empire, even in opposition to the will of those members of the Union through whose territory the railroads run, without prejudice, however, to the sovereign rights of that country; or private persons may be charged with their construction, and receive rights of expropriation. Every existing railway company is bound to permit new railroad lines to be connected with such national lines, at the expense of the latter. All laws granting existing railway companies the right of injunction against the building of parallel or competitive lines are abolished throughout the Empire, without detriment to rights already acquired. Such rights of injunction cannot be granted in future concessions. Managers of all railways are required to obey requisitions made by the Imperial authorities for the use of their roads for the defence of Germany. In particular, troops and all material of war must be forwarded at uniform reduced rates. (Art. 47.) These articles do not apply to Bavaria, but by Art. 46, ss. 2–3, the Imperial Government has power, with regard to Bavaria, to prescribe by means of legislation uniform rules for the construction and equipment of such railways as may be of importance for the defence of the country.

51 (xxxiii.) The acquisition, with the consent of a State, of any railways220 of the State on terms arranged between the Commonwealth and the State:

HISTORICAL NOTE.—At the Adelaide session Mr. McMillan moved a new sub-clause: “The taking over by the Commonwealth, with the consent of the State, of the whole or any part of the railways of any State or States upon such terms as may be arranged between the Commonwealth and the State.” This was agreed to. (Con. Deb., Adel., p. 1199.)

At the Melbourne session Mr. Glynn moved the omission of the words “with the consent of the State,” in order to enable the Commonwealth to take over the railways. After debate, this was negatived by 31 votes to 14. (Conv. Deb., Melb., pp. 154–63.) The sub-clause was verbally amended before the first report, and after the fourth report.

previous
next