in this country that a railroad corporation can not escape the performance of any duty or obligation imposed by its charter or the general laws of the State by a voluntary surrender of its road into the hands of a lessee. The operation of its road by the lessee does not change the relations of the original company to the public."

COMMISSION'S DUTY.

In the investigation and determination of controversies between the traveling and shipping public and the railroad corporations of the State, it is the duty, as it is certainly the pleasure, of this commission to look to, and in so far as it may be empowered to guard and protect the interests of each. The railroads have rights-so have the public. In determining the question as to whether adequate transportation facilities or whether any transportation facilities at all shall be furnished by a railroad upon certain portions of its line the sole question is not whether "it will pay the company;" for, as said by the Supreme Court of the United States, in Smythe v. Ames, 169 United States, page 545: "A railroad is a public highway, and none the less so because constructed and maintained through the agency of a corporation deriving its existence and powers from the State. Such corporation was created for public purposes. It performs a function of the State. Its authority to exercise the right of eminent domain, and to charge tolls, was given primarily for the benefit of the public. It is under governmental control, though such control must be exercised with due regard to the guarantees for the protection of its property," and again "a corporation maintaining a public highway, although it owns the property it employs for accomplishing public objects, must be held to have accepted its rights, privileges and franchises subject to the condition that the government creating it or the government within whose limits it conducts its business may by legislation protect the people against unreasonable charges for the services rendered by it. It can not be assumed that any railroad corporation accepting franchises, rights and privileges at the hands of the public ever supposed that it acquired or that it was intended to grant to it the power to construct and maintain a public highway simply for its benefit without

LAW IN THE CASE.

This is not new doctrine, but the reiteration of a principle laid down by all law writers and upheld by all the courts. In the case of Alcott v. Supervisors of Fond du Lac Co., that same court in 16th Wallace, page 698, says: "Whether the use of a railroad is a public or private one depends in no measure on the question who constructed it, or who owns it. It has never been considered a matter of any importance that the road was built by the agency of a private corporation. No matter who is the agent the function performed is that of the State. Though the ownership is private the use is public. So turnpikes, bridges, ferries and canals, although made by individuals under public grants, or by companies, are regarded as publici juris. The right to exact tolls or charge freights is granted for a service to the public. The owners may be private companies, but they are compellable to permit the public to use their works in the manner in which said works can be used. That all persons may not put their own cars upon the road and use their own motive power has no bearing upon the question whether the road is a public highway. It bears only upon the mode of use, of which the Legislature is the exclusive judge." (Cooley Const. Lim.)

Here we have an improved modern public highway, a continuous line of railroad, running from Anchorage to Christiansburg, 27.60 miles in length, running through one of the most prosperous, fertile and thickly settled portions of the State, and only 19.10 miles of which is operated for local public traffic, the remaining eight and one-half miles being entirely without such accommodations.

In the opinion of the commission, the relative rights and duties of these parties are plain. The public has the right to the use of local passenger and freight train service over this line from Shelbyville to Christiansburg, and it is the duty of the Louisville & Nashville Railroad Company to either furnish this accommodation by the operation of its own trains or to so reform its contract with the Chesapeake & Ohio Railroad Company, that the latter company may perform this service.

Obeying the mandate of the statute (section 820): "If the commission, after investigation, fails to exonerate the railroad or carrier from the operation of the provisions of this section, an order in writing to that effect shall be made by the commission,

and a copy thereof delivered to the complainants and the railroad or common carrier, and the same shall be published as a part of the report of the commission; and after such order it shall be the duty of the commission to furnish a statement of the facts, together with a copy of its order to the grand jury of any county the circuit court of which has jurisdiction in order that the railroad company or carrier may be indicted for the offense; and the commission shall use proper efforts to see that such company or carrier is indicted and prosecuted."

REFUSES TO EXONERATE COMPANY.

The commission does now hereby refuse to exonerate said company from the performance of its said duties and from the requirements of sections 772 A, and 792 and 820 of the Kentucky Statutes.

DEPOT QUESTION.

As to the erection and maintenance of a depot at some intermediate point between Shelbyville and Christiansburg, it will be seen from a reading of section 772, Kentucky Statutes, which is the only authority given the commission in such matters, that the power of the commission to order a depot where none has heretofore been established is, to say the least, somewhat doubtful. Said section is as follows:

"Any company that has established and maintained throughout the year, for five consecutive years, a passenger station at a point on its road shall not abandon such station without the written consent of the railroad commission; and if any such station used by a company is burned or otherwise destroyed or becomes unfit for the accommodation of the public the railroad commission shall notify, in writing, the manager or chief officer in this State of the company owning or using such station to rebuild or repair the same, as the case may be, and such company shall, within ninety days after such notice, comply with the requirements thereof."

It is sufficient, however, to say just at this time there is no necessity for such depot until local trains have been placed upon the road, as until that is done no passengers or freight can or will be handled at such point. The commission therefore declines at this time to pass upon the question of its power to order or

the necessity for the erection of such depot, but expressly reserves such matter for future determination. It is further ordered that the chairman file a copy of this finding and recommendation, together with a copy of the complaint, and the evidence adduced upon the hearing, in the Shelby Circuit Court, at its next regular term, for such action as that court, its Commonwealth's attorney and grand jury may deem proper to take in the premises.

READY TO DO MORE.

In view of the recent ruling of the Court of Appeals of Kentucky in construing said section 820, Kentucky Statutes, and the duties of this commission thereunder, the commission hesitates to undertake to recommend to the court, its Commonwealth's attorney and its grand jury what action should be taken; that portion of its decision in point was rendered June 5, 1901, in the case of Illinois Central R. R. v. Commonwealth of Kentucky, and is as follows, viz.: "It is contended by appellant that the demurrer ought to have been sustained to the indictment, because it failed to show that the same was recommended by the railroad commission or that the question of the legality of the charge had been investigated by the railroad commission. This contention is evidently not tenable. There is nothing in section 218 of the Constitution, nor is there anything in section 820 of the Kentucky Statutes which sustains the contention of appellant. In fact, the provisions of section 819, by inference at least, tends to contradict appellant's contention, for it will be seen that for various violations of the Constitution it is provided that indictments may be found, but it is provided that indictments under this section (819) shall be made only upon the recommendation and request of the railroad commission filed in the court having jurisdiction of the offense. No such provision is found in section 820." The latter part of section 820 does however, provide that "the commission shall use proper efforts to see that such offending company or carrier is indicted and prosecuted." But, in this instance, knowing as the commission does the jealous care ever exercised by the honorable judge of the Shelby Circuit Court and its able and vigilant Commonwealth's attorney to see that the rights of all citizens, whether individual or corporate, are guarded, protected and enforced we deem it unnecessary to go farther than to respectfully suggest to the court

that this board is ready and willing to "use all proper efforts” and will make and enter such further recommendations or orders as may be desired to accomplish the relief sought in this case.

It is further ordered that this finding be entered upon the records of the commission in its office at Frankfort, Ky., and published as part of its annual report, and that a copy thereof be furnished by the secretary of the commission to the Louisville & Nashville. and the Chesapeake & Ohio Railroad Companies and to the attorney for complainants.

This 27th day of June, 1901.

C. C. MCCHORD, Chairman.
JOHN C. WOOD.

Railroad Commission of Kentucky.

On account of the illness of Commissioner J. F. Dempsey, he was unable to be present at this investigation.

INCOME AND EXPENDITURES OF RAILWAYS FOR THE YEAR ENDING

JUNE 30, 1901.

The Preliminary Report on the Income Account of Railways in the United States for the year ending June 30, 1901, prepared by the statistician to the Interstate Commerce Commission, includes returns of railway companies operating 192,193 miles of line, or nearly all that will be included in the final report for the year.

The passenger earnings of these railways were $426,909,210, and the freight earnings $1,114,740,770. The total gross earnings were $1,578,164,205, or $8,211 per mile of line. The gross earnings as shown in the final report for 1900 were $1,487,044,814. As the operating expenses amounted to $1,023,156,281, or $5,323 per mile of line, the net earnings of the roads contained in this advance statement were $555,007,924, or $35,577,218 in excess of their earnings during the fiscal year 1900. The total income of these roads, including $65,271,244 received from investments and other sources, was $620,279,168. Deductions from incomes, not including dividends, were $421,625,796. Included in this amount are interest on bonds, rents for leased lines, betterments charged to income, taxes ($47,041,214), and miscellaneous charges. The amount of dividends declared during the year was $121,108,637. The amount of dividends shown for the same roads in 1900 was $108,210,652, or nearly $13,