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state commerce, so far as regulation by this State was concerned. Also that this Board, as a creature of the State, could not consequently attempt to regulate the rates charged for such transportation through its recommendations. The Board, however, then insisted that it had a perfect right to fully investigate the matter complained of, and to state the results of such investigation. That course it has adopted in this case. While for the reasons stated the Board cannot herein make recommendations it apparently has a duty in another direction. Section 5 of chapter 352 of the Laws of 1882 reads as follows:
“Whenever in the judgment of the Board of Railroad Commissioners it shall appear that any such corporation has violated any constitutional provision or law, or neglects in any respect or particular to comply with the terms of the act by which it was created, or unjustly discriminates in its charges for services, or usurps any authority not by its act of incorporation granted, or refuses to comply with the provisions of any of the laws of the State, or with any recommendation of said Board of Commissioners, they shall give notice thereof in writing to such corporation ; and if the violation or neglect is continued after such notice the Board may forth with present the fact to the Attorney-General, who shall take such proceedings thereon as may be necessary for the protection of public interests.”
In this case it would seem that these railroads are rendering themselves liable for violation of the law and of the terms of their charters and for unjust discrimination in their charges for services against the complainant in various ways:
1. By maintaining a pool under an agreement to fix the rates and classification and to divide the amount received from transportation among them in certain proportions.
2. By classifying condensed milk, as shipped by complainants, as 2d class, instead of 3d class in small lots and 4th class in car loads.
3. By charging sixteen cents per hundred pounds in small lots and fifteen cents in car loads, instead of charging 3d class rates for small lots and 4th class rates of ten cents per 100 pounds for car loads.
The report to the Attorney-General, should such a course ever become necessary, would not be based upon violation of recommendations of the Board, but would be in the nature of information to him in accordance with section 5 quoted, to the effect that these corporations are, in the judgment of the Board, violating the law in their agreement, and in unjustly discriminating in their rates and classifications. His action will necessarily be limited to enforcing the common law against these wrongs.
By the Board.
The companies have not, as yet, complied with the recommendations of the Board.
CITIZENS OF SUSPENSION BRIDGE v. NEW YORK CENTRAL AND HUD
son RIVER, NEW YORK, LAKE ERIE AND WESTERN, AND ROME, WATERTOWN AND OGDENSBURGH RAILROAD COMPANIES.
July 10, 1886. This case was presented in the report for the year ending September 30, 1885. Compliance with the terms of the recommendation was not made, however, until July, 1886. The complaint was of insufficient station accommodations at Suspension Bridge. The Board has been informed by both the New York, Lake Erie, and Western and the New York Central and Hudson River road, that work has been begun, the plans being prepared and ready.
M. J. ROBERTSox v. THE ELMIRA, CORTLAND AND NORTHERN RAIL
September 1, 1886. The allegation was that the fence separating his property at Etna from the line of the Elmira, Cortland and Northern railroad, was much out of repair, so much so that his cattle frequently wandered on to the track, requiring constant watchfulness to prevent their being killed, or accident occurring to a passing train.
The complainant alleged that he had called the attention of the company to the condition of the fences, but had received no answer. The reply of the company to the transmission of the complaint was that at the time of writing, the fence was being repaired. The complainant subsequently informed the Board that the fences were in a satisfactory condition.
J. D. AND T. T. GRAHAMI v. THE DELAWARE AND HUDSON CANAL
September 11, 1886. The complainants alleged that when the New York and Montreal railroad was laid out, four cuts were made into the rock on their land, near Putnam station. Four rocky points jutted into Lake Champlain at that point and then run over the points cutting across the small bays. The rock cut out was used to fill in the small bays. The cuts were at some points fifty feet high. These cuts were not fenced, and one of their horses wandering upon the land of the company, fell into a cut and was killed. This complaint being transmitted to the company the reply was made, that immediately upon receiving notice of the complaint the fences desired were built, a statement subsequently confirmed by the coinplainants.
OBEDIAH EDMUNDS v. THE LAKE SHORE AND MICHIGAN SOUTHERN
September 15, 1886. Mr. Edmunds complained that as he attempted to cross the tracks of the Lake Shore and Michigan Southern railroad, at the first crossing near the depot at Ripley, Chautauqua county, in a carriage with his daughter, he was nearly run over by a fast train, the engine of which had neglected to give the required signals or warnings. The reply of the company to the complaint was that the division superintendent had carefully investigated the matter and was satisfied that the engineer had both blown the whistle and rung the bell; that Mr. Edmunds was doubtless prevented from hearing these signals, by reason of the passing of a freight train at the same tiine; and that he had carelessly driven on the track after the freight train had passed without observing whether there was or not a train on the other track. This communication was transmitted to Mr. Edmunds, and as he has made no reply, the Board presumes he is satisfied with the statement.
EMPLOYEES OF TROY AND Boston RAILROAD COMPANY v. SAID COM
September 30, 1886. The complainant alleged that the company observed no regular day in the payment of their employees' wages, and were often weeks and even months behind in the payments, and implored the Board to take such measures as would lead to the observance of a regular pay day. The reply of the Company was that the 20th of each month was their regular pay day; and while admitting that they were sometimes behind a few weeks, they intended to get back to the regular pay day and regularly observe it. The Board advised the complainants that it deemed it wiser to rely upon the promise of the company than to investigate a state of facts the company admitted to have existed, but if the irregularity continued the Board could then investigate and take action. The complaint of irregularity has not been renewed.
APPLICATION OF THE PENN YAN AND NEW YORK RAILROAD CouPANY TO INCREASE ITS CAPITAL STOCK FROM $60,000 TO $125,000.
September 15, 1885. This application having been made in accordance with the provisions of law, and all of the proceedings taken in accordance thereto, the Board directed an investigation into its financial condition. The report thereof being before it, the following preamble and resolution was adopted :
WHEREAS, The report of the accountant shows that the cost of construction of the Penn Yan and New York railroad is $127,000, while the application is for an increase of capital stock from $60,000 to $125,000,,
Resolved, That the said application for an increase of capital stock from $60,000 to $125,000 be granted.
II. APPLICATION OF THE BROADWAY RAILROAD COMPANY OF BROOKLYN,
N. Y., FOR THE APPROVAL OF THE BOARD OF AN INCREASE OF ITS CAPITAL STOCK FROM $350,000 to $525,000.
November 17, 1885. The preliminary steps required by section 9 of the General Act have been regularly taken. At the stockholders' meeting, 4787 of the stock voted for the proposed increase, to which there was no opposition. Upon receiving from its accountant a report as to the financial standing and condition of the road, the Board addressed to the road the following communication :
Cctober 28, 1885. Edwin BEERS, Esq.,
President Broadway Railroad Company of Brooklyn: SIR — The report of the accountant before the Board, a copy of which you have, shows : Cost of road, etc...
$810,868 54 Ralph avenue extension
$876,868 54 $350,000 350,000
Earnings in construction
$176,868 54 This would entitle your road to the increase asked for, were it not that in the $810,868.54 are included two items as follows : Paid I. Ivins for stage line, etc..
$80,000 00 Contract for construction of original road..
The Board finds some difficulty in approving of the first item, unless it be established by affidavit or otherwise that the real estate and property purchased from stage company, aside from good will, etc., was worth, or cost, $80,000.
In other words, is stock issued to pay for good will, etc., properly a part of the cost of road and equipment ?
The second item is open to objection unless it be established that the actual cash cost of the road paid out by the contractor was $95,000, or at least thereabouts.
l'pon these questions the Board will give you a hearing at Albany on November
By the Board.
On November 11, 1884, the road appeared by its president, Edwin Beers, Esq., and by counsel.
Affidavits were presented showing that the stage line transferred to the road real estate and personal property of the value of $55,000. This would leave $25,000 as the sum allowed for the good will, etc. The Board does not deem this a proper charge to covstruction.
As to the second item, the road satisfactorily establishes that the $95,000 paid for the construction of the original road of nine and a half miles was a fair and just cash price, and hence the amount should be allowed as charged.
The matter would, therefore, stand as follows : Earnings diverted to construction, etc
$176,000 Deduct vaid for good will, etc
This latter sum therefore represents the amount of earnings diverted from dividends to construction, for which stock should be issued. The cost of constructing and equipping the Ralph avenue extension, however, will clearly exceed the estimate of $66,000, about $67,616.93 having been already expended upon construction. The now required equipment has not been purchased, and hence an increase of $175,000 instead of $151,000 is justified.
The increase of the capital stock of the Broadway Railroad Company from $350,000 to $525,000 is approved.
By the Board.