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Dan. Atwood to Van Brunt & Davis.
GREEN BAY, April 23, 1875.
DEAR SIRS: Two cars of lumber consigned to you, are at Burnett Junction awaiting pre-payment of freight, before they can be forwarded from there. The lumber is from Shiocton, and the amount of freight from Schiocton to Horicon, claimed on each car, is $38.
If you remit the amount, $76, immediately to J. B. Cole, agent Northwestern road, at Burnett Junction, the cars will be forwarded to you; otherwise I fear the lumber will be returned or unloaded where it is. Will you please attend to the matter, and notify me at once what you have done.
MILWAUKEE, April 24.
Your two cars of lumber from Shiocton, now at Burnett Junction, are in the possession of the Chicago & Northwestern Railway, subject to advance charges of $30 each car. We decline paying these charges, because the legal rate from Shiocton to Horicon is but $21. We certainly cannot be expected to pay the other roads an over-charge of nine dollars, on each car, and haul the cars from Burnett to Horicon free. If you will settle these charges with the other roads, so as to deliver the lumber to us free, we will haul it from Burnett to Horicon at legal rates.
TO VAN BRUNT & Davis.
O. E. BRITT.
B. C. Cook to the Commissioners.
OFFICE OF CHICAGO & NORTHWESTERN RAILROAD COMPANY, CHICAGO, April 30, 1875. GENTLEMEN:-I wish to submit to you certain questions which have arisen in the practical working of the lines of this company, in the State of Wisconsin, under chapter 273, of the laws of 1874, as amended by chapters 113 and 334, of the laws of 1875. On the 19th instant, this company received two car-loads of lumber from the Green Bay and Minnesota Railroad Company. The lumber was shipped at Shiocton, on the last named road, and assigned to Horicon, on the Chicago, Milwaukee & St. Paul Railway.
Under the law, the Chicago and Northwestern Railway, and the Chicago, Milwaukee & St. Paul Railway are in Class A; the Green Bay & Minnesota Railway is in Class B. The rates upon lumber fixed by the law are the same for Classes A and B, as I understand it. These two car-loads of lumber if transported from Shiocton to Horicon would pass over a distance of 126 miles on three roads, and the amount of freight allowed by the law for the whole distance would be $21 per car; and if the freight were pro-rated between the roads, the statement would be as follows:
25 per cent., $5.25 71 per cent., 14.91 4 per cent., 84 $21.00
The G. B. & M. R'y brought the two cars of lumber to us at Ft. Howard and demanded $12 on each car as their charges.
The C. M. & St. Paul R'y Co. have given this company formal notice that it will not advance charges on lumber delivered to its road by this company.
The questions I wish to submit to you are as follows:
1. Is this company bound to advance to the G. B. & M. Co. its charges upon car-loads of lumber consigned over any portion of the road of this company, or may this company require the G. B. & M. R'y Co. to wait for its charges until they are collected from the consignee?
2. If this company is bound to advance to the G. B. & M. Co. its charges, is it required to advance any more than the pro-rata proportion of the freight for the whole distance, or have we a right to refuse to receive the freight until the proportion coming to the G. B. & M. Railway shall have been settled by arbitration?
3. Have we a right to require the C. M. & St. P. Railway, when we deliver car-loads of lumber to it, consigned to points on its road, to pay us the charges we have advanced on other roads, and our charges, or are we required to surrender the control and custody of the freight and allow it to pass entirely from our possession without being entitled to the same lien upon it for freight and advance charges, which we have for freight consigned to points upon our own road?
4. In case different railway companies cannot agree upon the di
vision of freight earnings, and the question is submitted to referees chosen in pursuance of the provisions of the law, will the ordinary rule prevail, that all the referees must unite in the finding, there being no provision in the law that a majority may make an award; or will the award of two be decisive in the absence of any provision in the law to that effect?
These questions are submitted in good faith, for the purpose of ascertaining the views of the commissioners in relation thereto. The decision of the questions is absolutely necessary to prevent trouble and confusion in the practical working of the road, and the case stated is only one of a large number of cases constantly occurring, in which the same principles are involved, and I have selected it only for the purpose of presenting clearly the questions upon which the company desire the opinion of your board, to which the State has submitted the supervision of the roads under the law.
The company desires and intends to obey the law fully, as far as it is able to understand its provisions, although the compensation provided in the law is unremunerative and the business done is unprofitable; and I suppose that either your board or the AttorneyGeneral, at your request, will give a construction to the law that this company will be safe in following.
To the RAILROAD COMMISSIONERS,
Of the State of Wisconsin.
B. C. COOK,
Commissioner Hoyt to Van Brunt & Davis, in reply.
OFFICE OF RAILROAD COMMISSIONERS,
MADISON, May 1, 1875. GENTLEMEN:-Answer to yours of the 27th has been delayed a day, owing to the absence of the Attorney-General. Meantime letters have come to hand from Messrs. Blood & Mason, of Appleton, and the Solicitor of the C. M. & St. P. R. R. Co., both relating to this
The attorney of the C., M. & St. P. R. R. Co. assigns as the reason why his Co. refuse to receive and transport the lumber to Horicon,
that this can only be done on condition of paying $30 charges to B. Junction, which he says is $9 more than the legal rates from Shiocton to that point. He adds that, if the G. B. & Minn. and the C. & N. W. R'y Co's. will confine their demands to legal charges his Co. will receive the lumber and carry it to Horicon at legal rates. The Attorney-General tells me that he is quite confidently expecting the Supreme Court to consider the points involved in this * and two or three other cases of a similar character, in connection with the injunction suit now pending, and that such decision will probably be made within two or three weeks; after which it is believed that the railroad companies will yield obedience without further proceedings.
Messrs. VAN BRUNT & DAVIS, Horicon.
JOHN W. HOYT,
The Commissioners' reply to B. C. Cook.
OFFICE OF THE RAILROAD COMMISSIONERS.
MADISON, WIS., May 3, 1875.
DEAR SIR:-Referring to your esteemed favor of the 30th of April, we have the honor to make the following answers to the four several inquiries therein propounded.
1 and 2. The charges on lumber are not payable in advance; and hence the Chicago and Northwestern Railroad Company cannot hold the lumber and demand pre-payment of accumulated charges, as a condition of its delivery to the Chicago, Milwaukee & St. Paul Company. It is not bound to advance to the Green Bay & Minnesota Railroad Company anything at all.
Nor should it refuse to receive such freight "until the proportion coming to the G. B. & M. R'y. Co. shall have been settled by arbitration." You are simply bound to receive and carry.
3. The C. & N. W. R'y. Co., for the same reasons, cannot demand of the C., M. & St. P. R'y. Co. a settlement in advance of the delivery of the lumber at Horicon. There is no need of a "lien;" the law will protect the rights of the C. & N. W. R'y. Co.
4. In case the question of a fair division of earnings is submitted to arbitration, the award of a majority of the arbitrators will be
binding upon all the parties. (See revised statutes of Wisconsin, chapter 5, section 1, subdivision 3, which reads as follows: "All words purporting to give a joint authority to three or more public officers, or other persons, shall be understood as giving such authority to a majority of such officers, or other persons; unless it shall be otherwise expressly declared in the law giving the authority.")
We need not assure you that the official declaration made by you in the closing paragraph of the letter before us, namely, that your company desires and intends to obey the law fully, so far as it is able to understand its provisions," is extremely gratifying and in all respects satisfactory.
[Commissioner Paul being absent.]
JOHN W. HOYT,
JOSEPH H. OSBORN,
P. S.-We deem it proper to add that your letter of the 30th ultimo, as well as the foregoing, in response thereto, have both just been examined by the Attorney-General, and that he endorses the several answers of the Commissioners in every particular.
J. L. Bush to Commissioners-Advance charges.
DOYLESTOWN, May 17, 1875. GENTLEMEN: I have been shipping lumber from Warren's Mills, on the West Wisconsin Railroad, to Doylestown, on the Milwaukee and St. Paul Railroad, and have been obliged to pre-pay freight to get my lumber passed over the road, which I have done under protest; and I have two or three hundred thousand more which I want to get through to the same place. I have also paid on 12 cars $84.00 in excess of the lawful rates, as I understand the law. I call your attention to this matter, hoping that I can get my lumber over the roads without pre-paying freight, as it is inconvenient for me, besides rather more expensive.
J. L. BUSH.