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before a court of record or a referee appointed by such court. The board shall also take testimony upon, and have a hearing for and against any proposed change of the law relating to any railroad, or of the general railroad law, if requested to do so by the legislature, or by the committee on railroads of the senate or the assembly, or by the governor, and may take such testimony and have such a hearing when requested to do so by any railroad corporation, or incorporated organization representing agricultural or commercial interests in the state, and shall report their conclusions in writing to the legislature, committee, governor, corporation or organization making such request ; and shall recommend and draft such bills as will in its judgment protect the people's interest in and upon the railroads of this state.

"$ 158. Reports of Railroad Corporations.—The board shall prescribe the form of the report required by the railroad law to be inade by railroad corporations, and may from time to time make such changes and additions in such forin, giving to the corporations six months' notice before the expiration of any fiscal year, of any changes or additions which would require any alteration in the method or form of keeping their accounts, and on or before September fifteenth in each year, shall furnish a blank form for such report. When the report of any corporation is defective, or believed to be erroneous, the board shall notify the corporation to amend the same within thirty days. The originals of the reports, subscribed and sworn to as prescribed by law, shall be preserved in the office of the board.

“8 159. Investigation of Accidents.—The board shall investigate the cause of any accident on any railroad resulting in loss of life or injury to persons, which in their judgment shall require investigation, and include the result thereof in their annual report to the legislature. Before making any such examination or investigation, or any investigation or examination under this article, reasonable notice shall be given to the corporation, person or persons conducting and managing such railroad of the time and place of commencing the same. The general superintendent or manager of every railroad shall inform the board of any such accident immediately after its occurrence. If the examination of the books and affairs of the corporation, or of witnesses in its employ, shall be necessary in the course of any examination or investigation into its affairs, the board, or a commissioner thereof, shall sit for such purpose in the city or town of this state where the principal business Office of the corporation is situated if requested so to do by the corporation ; but the board may require copies of books and papers, or abstracts thereof, to be sent to them to any part of this state.

“Ş 160. Recommendations of Board, where Law has been Violated. --If, in the judgment of the board, it shall appear that any railroad corporation has violated any constitutional provision or law, or neglects in any respect to comply with the terms of the law by which it was created, or unjustly discriminates in its charges for services, or usurps any authority not granted by law, or refuses to comply with the provisions of any law, or with any recommendation of the board, it shall give notice thereof in writing to the corporation, and if the violation, neglect or refusal is continued after such notice, the board may forth with present the matter to the attorney-general, who shall take such proceedings thereon as inay be necessary for the protection of the public interests.

"§ 161. Recommendations of Board, when Repairs or other Changes are Necessary. If in the judginent of the board, after a careful personal examination of the same, it shall appear that repairs are necessary upon any railroad in the state, or that any addition to the rolling stock, or any addition to or change of the station or station-houses, or that additional terminal facilities shall be afforded, or that any change of the rates of fare for transporting freight or passengers or in the mode of operating the road or conducting its business, is reasonable and expedient in order to promote the security, convenience and accommodation of the public, the board shall give notice and information in writing to the corporation of the improvements and changes which they deem to be proper, and shall give such corporation an opportunity for a full hearing thereof, and if the corporation refuses or neglects to make such repairs, improvements and changes, within a reasonable time after such information and hearing, and fails to satisfy the board that no action is required to be taken by it, the board shall fix the time within which the same shall be made, which time it may extend. It shall be the duty of the corporation, person or persons owning or operating the railroad to coniply with such decisions and recommendations of the board as are just and reasonable. If it fails to do so the board shall present the facts in the case to the attorney-general for his consideration and action, and shall also report them in its annual or in a special report to the legislature.

“$ 162. Legal Effect of Recommendations and Action of the Board. -No examination, request or advice of the board, nor any investigation or report made by it, shall have the effect to impair in any manner or degree the legal rights, duties or obligations of any railroad corporation, or its legal liabilities for the consequence of its acts, or of the neglect or misinanagement of any of its agents or employees. The supreme court at special term shall have power in its discretion, in all cases of decisions and recommendations by the board which are just and reasonable to compel compliance therewith by mandamus, subject to appeal to the general term and the court of appeals, and upon such appeal, the general term and the court of appeals may review and reverse upon the facts as well as the law.

(Thus amend ed by L. 1892, chap. 676.)

§ 163. Corporations must Furnish Necessary Information.Every railroad corporation shall, on request, furnish the board any necessary information required by them concerning the rates of fare for transporting freight and passengers upon its road and other roads with which its business is connected, and the condition, management, and operation of its road, and shall, on request, furnish to the board eopies of all contracts and agreements, leases or other engagements entered into by it with any person or corporation. The commissioners shall not give publicity to such information, contracts, agreements, leases or other engagements, if, in their judgment, the public interests do not require it, or the welfare and prosperity of railroad corporations of the state might be thereby injuriously affected.”

Similar statutes in New York are classified under what is termed “ The Transportation Corporations Law," being Chapter 566 of the Laws of 1890, as amended by Chapter 617 of the Laws of 1892. This “ Transportation Corporations Law” has separate articles, which apply to ferry corporations, navigation corporations, stage-coach corporations, tramway corporations, pipe-line corporations, gas and electric light corporations, water-works corporations, telegraph and telephone corporations, turnpike, plankroad, and bridge corporations. The title of this general act seems to me extremely happy. Telephone corporations, at first glance, might not seem to concern transportation. But in their essential purpose they are common carriers, as are all the other corporations named.



So it was virtually with the warehousemen in the Munn case. They are all engaged in “public employments. It is clear that public control of all such employments is a necessity.

That necessity has in modern times been continually on the increase. There is every reason to believe that it will so continue.

Public control of those employments has increased in the past, and will probably increase in the future. Starting from almost nothing, it has become large and intri. cate.

The tendencies of the law as to these public employments, it is evident, have been directly the reverse of its tendencies in the case of private employments.




Such being, and long having been, the condition of the law, there came in the year 1893 the decision of our New York Court of Appeals in People v. Sheldon.(a) It was followed by the recent decision of the United States Supreme Court in United States v. The Trans-Missouri Freight Association. (6)

These two cases hold that a mere contract, which provides that the rates or prices, for traffic or merchandise, shall be fixed by one common authority for all the contracting parties, and which thereby prevents competition between the contracting parties, there being no interference with any lawful right of any other party, unless this mere agreement be such, constitutes a crime. The New York case was decided under the provision of the New York Revised Statutes previously quoted. The United States Supreme Court case arose under a similar provision in a statute of the United States.

With all possible deference to these august tribunals, it is most respectfully submitted, that these decisions are irreconcilably in conflict with an overwhelming line of authorities, and with the fundamental principles of the English and American law.

Let us begin with a consideration of the New York


Before entering on that consideration, however, let us recall the positions already established. They are :

(a) People v. Sheldon, 139 N. Y. 251. (6) United States v. The Trans-Missouri Freight Association, 166 U. S. 290.

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