latter road abandoned a portion of the line. The Board held the abandonment to be unlawful, and the courts have thus far sustained the finding.

The distinction between that case and this one, and between a street and a steam railroad, is marked and clear. In that case the railroad was purchased and reorganized under chapter 430 of the Laws of 1874. This act would seem to have superseded sections 1 and 5 of the General Act as to steam railroad reorganization, and by its terms has no application to street railroads. In reorganizing under chapter 430 of the Laws of 1874, steam railroads cannot, in their articles of association, fix any route, or change or shorten the old route at all. This right, given under section I of the General Act, is omitted from chapter 430 of the Laws of 1874, and hence the inference is strong that it was not intended to permit any reorganization of steam railroads, except for the maintenance and operation of the entire old line.

This difference in the statutes between the treatment of street and steam railroads, is founded in reason and in a due regard for the public interests. To permit a street railroad in the process of reorganization to shorten its route, cannot in the nature of things be productive of such serious results as would occur were the same right given to steam railroads connecting distant parts of the country. A street railroad shortened may leave some of the people of a city or village without as easy and comfortable means of public conveyance, but such a right given to steam railroads might cut off an entire city, or section. of country, from all communication with trade centers. While the same reasons, to some extent, exist for making no distinction between street and steam railroads in this respect, yet in the case of steam railroads there is much greater danger of the privilege of abandoning some part of the line being abused, and of being so used as to cause extensive public inconvenience and injury; and hence I think it is that the Legislature has seen fit to be less liberal towards steam railroads than towards street railroads in this respect.

Attest: WILLIAM C. HUDSON, Secretary.

This matter was subsequently reopened, upon the application of the complainants, and was pending at the close of the fiscal year.

XLIV.

A. STEBER V. THE NEW YORK, ONTARIO AND WESTERN RAILWAY COMPANY.

September 7, 1886.

The complainant petitions the Board to aid him in removing a gate tender's shanty, recently erected on the corner of Fay and Columbia streets in Utica, in front of the complainant's property. The road has made no answer in the matter, and therefore must be assumed to admit the allegation that it is a trespasser.

The road, of course, has no right to erect or to maintain such a structure upon a public street in front of a man's house and upon land owned by him subject to the public easement.

It seems to be an attempt to procure the land needed for railroad purposes without paying any thing therefor.

This shanty seriously damages complainant's property, and no man owning the property would want it to be put or to remain there, at least without being compensated for his injury.

The Board recommends that it be removed by the railroad.
By the Board.

WILLIAM C. HUDSON, Secretary.

The road has complied with the recommendation.

XLV.

MCEWEN BROTHERS v. THE ROME, WATERTOWN AND OGDENSBurgh, AND THE UTICA AND BLACK RIVER RAILROADS.

September 21, 1886.

On September 4, 1885, complainant shipped at Wellsville, N. Y., a steam engine and attachments, weight 10,000 lbs., upon a platform. car, consigned to Thomas E. Proctor, Carthage, N. Y.

The rates charged by the various railroads over which it passed, were as follows: Wellsville to Rochester, one hundred and sixty-one miles, via. N. Y., L. E. & W., fifteen cents per 100 pounds, $15. Rochester to Syracuse, ninety miles, via. West Shore, five cents per 100 pounds, $5. Syracuse to Watertown, via. R., W. & O., seventy-two miles, thirty-twocents per 100 pounds, $32. Watertown to Carthage, via. Utica and Black River, eighteen miles, twenty-one cents per 100, $21.

Through the Erie road freight agent the complainants appealed to the latter roads to make a reduction in their charges. He forwarded the request to the West Shore, accompanied by a letter, in which he says: The charge from Rochester, $54 ($58) for five tons, looks rather steep, and they ask me to have reduction made." The West Shore declined to make reduction as they had received but $5 for ninety miles. of haul. The Utica & Black River replied as follows: "As we only received our local tariff, I cannot consistently make any reduction." The Rome, Watertown & Ogdensburgh replied: "We were asked for rate on this shipment and gave thirty-two cents per 100 pounds, Syracuse to Watertown, which is our agreed rate with the U. & B. R. R. R., and which we are in honor bound to maintain. Do not see how we can reduce our rate and charges under the circumstances." The complainants then appealed to this Board for relief.

The interchange of business among railroads has established rates upon such shipments which may be regarded as being sufficiently high for the services rendered, and may be fairly used for purposes of comparison. The difference between the charges of the Erie and those of the Utica & Black River, and the Rome, Watertown & Ogdensburgh, already appearing, make the latter charges look like extortion. Comparison with the West Shore, as operated at that time, is not a fair one, and, therefore, is not made. In order to test the matter further, the Board has prepared the following table:

RATES AND CLASSIFICATIONS ON DIFFERENT RAILROADS,

For a steam engine, stationary or portable, weight 10.000 lbs. (Released.)

It will be seen that the rates charged upon the Utica & Black River, and the Rome, Watertown & Ogdensburgh, are generally from fifty to one hundred per cent higher than upon the other roads in the table. While some of them are financially stronger and have a more extensive traffic, others again are in every respect inferior to the roads here complained of, and are operated under greater disadvantages. Surely, the public, when questioning the fairness of rates, do no injustice to a railroad when they point to the vastly lower rates for similar service charged by so many other roads.

The rates charged in this case were altogether too high; at least about fifty per cent of the charge made ought to be refunded by each road. We do not see how roads can be in honor bound to each other to maintain such unjust and inequitable charges against shippers.

CONCLUSION.

The Board recommends that the Utica & Black River Railroad Company refund $9, being nine cents per 100 pounds; and that the Rome, Watertown & Ogdensburgh Railroad Company refund $12, being twelve cents per 100 pounds of the freight charges paid.

By the Board.

WILLIAM C. HUDSON,

Secretary.

The companies have not complied with the recommendation of the Board, and the matter is pending under an application for a reconsideration.

* Classification does not state whether engines are released or not.

XLVI.

THE ANGLO-SWISS CONDENSED MILK COMPANY V. THE New York, LAKE ERIE AND WESTERN, THE NEW YORK, ONTARIO AND WESTERN AND THE NEW YORK. SUSQUEHANNA AND WESTERN RAILROADS.

September 14, 1886.

The complainant has a factory at Middletown, New York, and is engaged in the manufacture and sale of condensed milk in cans, fortyeight of which are packed in a box 12 x 19 x 7, making a total weight of sixty pounds. These boxes are shipped in car-load lots to New York, and there delivered to consignees. The shipments average about three car-loads per week. The value of a car-load of twenty tons is from $2,500 to $3,000. In 1882, this freight was classed as first class and the tariff rate from Middletown to New York, a distance of about seventy-seven miles, was twenty cents per 100 pounds, although the complainant was not charged over twelve and one-half cents. A competition arose among the roads at Middletown for the business, and in 1885, the New York, Ontario and Western had secured the business at the low rate of five cents per 100. On January 22, 1885, this rate was withdrawn as not paying, and a six cent rate was offered by the same road and accepted. This was immediately withdrawn, however, and no rate has since been offered, or obtainable from either road, except a rate of fifteen cents per 100 in car-load lots.

We find the full explanation of this conduct in the answer of the Erie road as follows: "The present pool arrangement, of which the Condensed Milk Company complains, was entered into March 2, 1885. Before said pool arrangement was made the rates on condensed milk, between Middletown and New York, were very much demoralized, and this company endeavored to ascertain from the Anglo-Swiss Milk Company what arrangements as to freight it could make for one year and give all its business between Middletown and New York to this company. The Anglo-Swiss Milk Company replied that it could not make any arrangements for a year with this company. * * * It is proper to say that this company was forced by the action of the Anglo-Swiss Milk Company to enter into the pool arrangement now complained of in order to protect its revenue, as the Anglo-Swiss Milk Company was putting up every shipment for competition among the three lines, and giving the business to that company which would name the lowest rate.

In other words, shippers who chose to accept the lowest rates offered by competing lines, force the lines to form a pool which shall destroy all competition, and fix a rate deemed by the roads interested to be reasonable; the returns from which rate shall be divided up among those who do the work and those who do nothing. It was alleged and not denied, that the fifteen cent rate is divided as follows. To the road doing the work. six cents, and to each of the others in the pool, three cents.

In a report made to the Legislature on April 11, 1884, to be found in the second annual report at page 77, the Board reached the concla.

sion that it is very questionable whether an agreement of this character among railroads is not contrary to law and void. The reasons and authorities sustaining this conclusion will be found in the report referred to.

It is alleged by the roads that the rate and classification fixed by them under the pooling arrangement are fair and reasonable. We do not, however, regard this claim as well founded in any aspect.

Before this pool revised matters this condensed milk was classified in local freights as first class, but complainant was not charged over third class rates; at the same time it was classed in through freights as fourth class.

When complainant began this agitation, the road succeeded in having it put second class in both. The complainant has quadrupled the quantity of its shipments since 1882, and in return has had its classification raised from fourth class to second, and its rate raised from twelve and one-half to fifteen cents per 100 by the Erie road. Canned fruits and goods of about the same value are classed as third in small lots, and as fourth in car-loads. This ought to be the classification of condensed milk. There is really no good reason for a difference between them.

The complainant manufactures and ships milk from three points in England to this country. His rates to New York via railroad to Liverpool and via steamer to New York are fourteen and three-tenths cents per case including all cartages. At the present rate the complainant pays twelve cents per case from Middletown to New York, including cartages. The rate on condensed milk in small quantities is sixteen cents. One per cent per 100 is the only concession made to complainant, who ships three car-loads a week. A car-load of condensed milk of twenty tons pays, at fifteen cents per 100, the sum of $60 for seventy-seven miles of transportation. The rate on fresh milk of thirty-five cents per can pays on a full load of 200 cans $70 for the double trip of taking the full cans to Jersey City and returning the empties. Considering the work done the rate upon condensed milk is higher than it ought to be relatively. There is added force in this point when it is remembered that, according to the decision of this Board in the Harlem milk case, thirty cents is the maximum rate that ought to be charged on fresh milk in cans.

The Board is, therefore, of opinion that this condensed milk ought to be classed as third class in small lots, and as fourth class in carloads, and charged respectively the rates of thirteen cents and ten cents. As a manufacturer furnishing to the railroads frequent and regular car-load shipments, complainant ought certainly to be thus treated by railroads, under the rule frequently appealed to by them to justify low rates given to such shippers.

In its answer the Erie road insists that this matter involves a question of interstate commerce, inasmuch as the transportation of the condensed milk, while starting in Middletown, N. Y., passes through the State of New Jersey to Jersey City. Hence it is claimed that the matter is entirely beyond the jurisdiction of this Board.

In R. F. Stevens, et al., v. N. Y., L. E. & W. R. R. (second annual report, page 180) the majority of this Board held that a shipment from a point in New York State to a point in another State was inter