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which is necessarily restricted to railroad companies, as is the second paragraph of section 33, permitting the issuance of mileage tickets, for, although it is entirely feasible for navigation companies to issue these tickets, such is not the practice.

The language of the remaining sections of this subdivision, providing (section 34) that

shall

suffer

"No common carrier son *

any per• to obtain transportation at less than the rates then established * by means of false billing, false classification, false weight or weighing or false report of weight or by any other device or means."

and section 36, that

"No common carrier subject to the provisions of this act shall charge or receive any greater compensation in the aggregate for the transportation of passengers or of a like kind of property under substantially similar circumstances and conditions for a shorter and for a longer distance over the same line in the same direction, the shorter being included within the longer distance; but this shall not be construed as authorizing any such common carrier to charge and receive as great a compensation for a shorter as for a longer distance or haul."

would perhaps be applicable to ferry companies, although the entire language, and especially the word "haul" in the last line of section 36 has a truer application to railroads.

(4) Discrimination.

In this subdivision begins to appear a stricter limitation of detail to railroads. Section 35 provides:

"Every common carrier is required to afford reasonable, proper and equal facilities for the interchange of passenger, freight and property traffic between the lines owned by it and the lines of every other common carrier." The word "lines" as usually understood might apply to lines of steamboats or ferries, but further on in this section it is provided that

*

"It shall not be construed to require a common carrier to permit or allow any other common carrier to use its tracks or terminal facilities. Every common carrier as such is required to receive from every other common carrier, at a connecting point, freight cars of proper standard, and haul the same through to destination

A navigation company could clearly not comply with this detail, for the act uses the word tracks and requires the carrier to haul the freight cars through to destination and although there might be ferries that could be used as railroad connections, the language is not natural to such a case, and in addition, ferries of that character would be owned by a railroad company and embraced in the definition of a railroad referred to above. This limitation is even more pronounced in section 37, requiring that

* *

"Every railroad corporation or other common carrier engaged in the transportation of freight shall furnish to all persons sufficient and suitable cars for the transportation of such freight in carload lots." which is manifestly inapplicable to carriers other than railroads. Section 39 providing that

"No common carrier shall enter into

any combination to prevent the carriage of freight and property from being continuous

although drawn expressly to cover railroad companies might apply as well to navigation or freight companies, but not the further provision that

46

No breakage of bulk, stoppage or interruption of carriage, made by any common carrier, shall prevent the carriage of freight and property from being treated as one continuous carriage."

(5) Liability.

Section 38 requires

*

"Every common carrier and every railroad corporation and street railroad corporation to issue either a receipt or bill of lading and provides for liability thereunder. There is nothing in this section which could not be operative as against ferry companies nor is there in section 40, which provides for a recovery of damages arising from a violation of any provisions of the act, if, indeed, ferry companies are subject to such provisions.

(a)

(b)

ARTICLE III.

General Powers of Commissions.
Reports of Common Carriers.

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Section 45. The first paragraph deals with the powers of the Commissioners to administer oaths and summon witnesses and does not affect the question.

Paragraph 2 provides that

"Each Commission shall have the general supervision of all common carriers, railroads, street railroads, railroad corporations and street railroad corporations within its jurisdiction, as hereinbefore defined, and shall have power to examine the same and keep informed as to their general condition, their capitalization, their franchises and the manner in which their lines owned, leased, controlled and operated are managed, conducted and operated, not only with respect to the adequacy, security and accommodation afforded by their service, but also with respect to their compliance with all provisions of law, orders by the Commission and charter requirements."

44

The words lines owned, leased, controlled or operated" are inartificial as applied to ferries which have routes but not lines which could be owned, leased, controlled or operated in the usual sense of those terms.

Paragraphs 2 and 3, authorizing the Commission to examine all books and papers, and providing for hearings by the Commission relating to proposed changes in the law relating to any common carrier, railroad corporation or street railroad corporation, are comprehensive enough to cover all classes of carriers, as is also section 46, providing for the making of reports by common carriers, railroad and street railroad corporations.

(c) Investigations.

Section 47 provides that

"Each commission shall investigate the cause of all accidents on any railroad or street railroad within its district. * * Every common carrier, railroad corporation and street railroad corporation is hereby required to give immediate notice to the Commission of every accident happening upon any line of railroad or street railroad owned, operated, controlled or leased by it."

This is probably as clear an illustration as appears in the act of the limitation of details to railroads. It might, of course, be argued that the general provisions cover all carriers and that this detail is only intended to make more clear its application to one class of carriers, and if the word ferries had occurred in the definition this would probably be so; but here we are endeavoring to ascertain intent and it would seem only reasonable to suppose that if the Legislature had ferries in mind, it would have drawn a section like this one to cover them, for accidents to ferry and steamboats are usually more serious and fraught with even a larger loss of life than in the case of railroads. Paragraph 1 of the concluding section (48) of this subdivision, providing that

investigate

"Each commission may any act or thing done or omitted to be done by any common carrier, railroad corporation or street railroad corporation subject to its supervision and that "The commission must make such inquiry in regard to any act or thing done or omitted to be done by any such common carrier, railroad corporation or street railroad corporation in violation of any provision of law and in violation of any order of the commission,"

is broad enough to cover any common carrier, as is also paragraphs 2 and 3 providing for the procedure to be followed on the filing of a complaint and authorizing the Commission, after investigation, to make the necessary orders.

(d) Power to fix rates, order changes, etc.

Section 49 provides:

* *

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*

* **

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"Whenever either commission shall be of the opinion after a hearing upon a complaint made, as provided in this act, that the rates, fares or charges collected by any common carrier, railroad corporation or street railroad corporation subject to its jurisdiction are unjust or in any wise in violation of any provision of law, the Commission shall determine the just and reasonable rates and shall fix the same by order to be served upon all common carriers, railroad corporations or street railroad corporations by whom such rates, fares and charges are thereafter to be observed."

This is broad enough and so is the further provision authorizing the Commission to require any common carrier, railroad corporation or street railroad corporation to accord adequate facilities, but the section then goes on to provide that

"The Commission shall have power by order to require every two or more common carriers or railroad corporations whose lines owned, operated, controlled or eased, form a continuous line of transportation or could be made to do so by the construction and maintenance of switch connection to establish a through route and joint rate."

Although this language of this last part of the section might cover the case of traffic connection between a railroad and a ferry or steamboat, the presumption is against it and also against such a construction of section 50, which authorizes the Commission to require

"repairs or improvements to or changes in any tracks, switches, terminals or terminal facilities, motive power or any other property or device used by any common carrier, railroad corporation or street railroad corporation."

Section 51 provides that

"If in the judgment of the Commission having jurisdiction any railroad corporation or street railroad corporation does not run trains enough or cars enough or possess or operate motive power enough reasonably to accommodate the traffic, passenger and freight transported by or offered for transportation to it, or does not run its trains or cars with sufficient frequency the Commission shall have power to make an order directing any such railroad corporation or street railroad corporation to increase the number of its trains or of its cars, etc."

This section is most significant, for here the Legislature is itself dealing with transportation appliances used by the carriers subject to the act, and it is hardly open to doubt that if the Legislature had the regulation of ferries in mind it would have applied such an important provision to them by some reference to boats, etc., and not left it exclusively applicable to railroads.

(e) Uniform system of accounts.

The portion of section 52 which authorizes the Commission to "establish a uniform system of accounts to be used by railroads and street railroad corporations and other common carriers and prescribe the form of accounts, records and memoranda of the movement of traffic, as well as receipts and expenditures of money.'

*

would apply to all common carriers, but not the latter part of the section, which provides that

"The Commission shall at all times have access to all accounts, records and memoranda kept by railroad and street railroad corporations and may prescribe the accounts in which particular outlays and receipts shall be

entered

*

So that it would seem that the Commission may establish a uniform system of accounts for all carriers, but can only examine the books of railroads.

(f) Franchise, stock and bond issues.

Section 35 providing that

"Without first having obtained the permission and approval of the proper commission no railroad corporation, street railroad corporation or common carrier shall begin the construction of a railroad or street railroad or any extension thereof

*"" *

is restricted exclusively to railroad corporations, and the same is true of the first paragraph of section 54, which provides that

"No franchise * * to own or operate a railroad or street railroad shall be assigned, transferred or leased unless * * approved by the proper commission *

*

*

"No franchise * * to own or operate a railroad or street railroad shall The second paragraph provides that

and that

hereafter purchase any part of the capital stock of any railroad corporation or street railroad corporation or other common carrier unless authorized to do so by the Commission * no stock corporation * * shall purchase * ** more than ten per centum of the total capital stock issued by any railroad corporation or street railroad corporation or any other common carrier *

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This prohibition against acquiring any of the stock of a common carrier seemingly applies only to railroad companies, except in the case of stock corporations acquiring more than ten per cent. of the stock of a common carrier.

The concluding section of this subdivision is broad enough to cover all carriers and provides that

*

*

Section 55. "A common carrier, railroad corporation or street railroad corporation may issue evidence of indebtedness payable at periods of more than twelve months when necessary for the acquisition of property provided, and not otherwise, that there shall have been secured from the proper commission an order authorizing such issue ⭑ *

*

*

Such common carrier, railroad corporation or street railroad corporation may issue notes * * payable at periods of not more than twelve months

without such consent

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(g) Penalties and Proceedings.

These provisions are broad enough to cover all carriers, if they come within the other provisions of the act, and do not require extended quotation or discussion,

(h) Interstate Traffic.

This is applicable to railroads alone, since the Commission is only authorized to "investigate freight rates on interstate traffic on railroads within the State,"

SUMMARY AND CONCLUSION.

The analysis of the act in the foregoing pages shows that the plan upon which the act was drawn contemplated very broad sections in providing for the general powers of the Commissions, and then other sections, also broadly drawn, providing for details of transportation. Broad as these provisions are, it will be noted that nowhere in the act is there any language having a special application to ferry companies. Taking up the most important subjects with which the act deals, we find that under adequacy of service, so far as details are concerned, the duty placed upon a carrier is in certain cases to provide switches, and the Commissions are empowered to require connections between carriers by switches; to require repairs or improvements in tracks, switches, terminal facilities and motive power, and to require railroad corporations to run more trains or cars. In the almost equally important matter of rates, although more general in its scope, the language is more applicable to railroads, especially the details such as those in regard to mileage tickets and joint rates. In regard to discrimination connecting carriers are required to receive "freight cars" and "haul" the same; carriers are required to provide sufficient cars for ".. freight in car-load lots" and the provision for "continuous carriage" and "breakage in bulk" relate to evils common to railroads. In the matter of investigations, the authority of the Commissions is generally unrestricted, but in the provision for the investigation of accidents the only accidents provided for are those happening on railroads. In the provision for uniform system of accounts, although the Commission is empowered to establish a uniform system of accounts for common carriers, its right of access to accounts seemingly restricted to those of railroads, and finally in the matter of approval of franchises and stock and bond issues the only franchise needing approval is one to build a railroad or an extension thereof. The approval of the Commission is necessary only to the transfer of a railroad franchise and the prohibition against a corporation acquiring any stock in a common carrier corporation without the Commission's approval extends only to railroad corporations.

The inquiry is pertinent if the necessity for the regulation of water transportation existed, why did the Legislature in all the important respects referred to confine its attention to railroads when a slight change of phraseology would have embraced these other classes of carriers?

An important and significant fact to consider as evidencing legislative intention is the treatment of the question of placing pipe line companies within the jurisdiction of the Commission. In the act as originally introduced, these companies were included in the definition of common carrier, but before the act reached final passage they were stricken therefrom. What other view can be tenable but that the Legislature considered that this act was limited in its effect to the carriers enumerated? To take any other view would be to place pipe line companies again within the purview of the act or to omit them for some illogical reason, while at the same time retaining such carriers as ferry and navigation companies.

Sections 1 and 25, to which I have already referred, at some length, do furnish a basis for the argument that the general provisions, such as section 25, empower the Commissions to regulate all common carriers, and that the provisions for detail are not intended to limit the broad jurisdiction, but are intended merely to make more clear its application to certain carriers; but the primary rule of construction is to ascertain the legislative intent, and I do not think that the act, taken as a whole, authorizes such a broad and sweeping construction, but on the contrary it seems to me that the Legislature, by its application of this legislation to the details referred to, clearly showed that the general language was to be restricted to the carriers specifically named in such definition. It is by this construction alone that we can reconcile the action of the Legislature in striking from the definition the words "pipe line companies."

Although the fact that the problem of railroad regulation was the most pressing and, therefore, most prominent in the minds of the framers of the act, and that this prominence necessarily colored the language used throughout, whether intended to apply to railroads alone or to other common carriers, such as express companies as well, and although probably no one of the limitations of detail to railroads would of itself warrant the conclusion, yet it is my opinion that their totality, together with the form of the definition and the action of the Legislature in regard to pipe line companies and all other considerations to which I have referred, evidences the intention on the part of the Legislature to confine its action to the classes of carriers specifically named in the definition.

In construing this act it must be also borne in mind that legislation of this character marks a wide departure from American ideals of government upon which the theory of the Jeffersonian school, of as little government as possible, has had a wide and lasting effect, and that where this departure is made to meet the complexities of modern transportation and industrial conditions, the courts_are bound to carefully examine the basis for the wide powers exercised by the Commissions, and where any enlargement of such powers is claimed, it must rest on a clear and stable basis.

The fact that carriers engaged in transportation on navigable waters come within the admiralty jurisdiction of the Federal Courts, and that provision for them might give rise to embarrassing complications, may or may not have influenced the Legislature in this regard.

In conclusion, this view is further borne out by a consideration of this question in its broader or political aspect. The problem of railroad regulation has since and even prior to the enactment of the first Interstate Commerce Act in the late eighties, been a matter of vital importance to the country at large and especially during the last six or eight years has occupied probably the most prominent place in American politics; but at no time during the campaign to secure this legis.

lation, in which the entire subject of transportation was thoroughly discussed in all its bearings, has there been, to my knowledge, any agitation for the regulation of water transportation; nor is it covered by the Interstate Commerce Act, upon which the Public Service Commissions Law is so largely modeled, save where those agencies are operated in conjunction with railroads. In this State, during the gubernatorial campaign preceding the enactment of this legislation, in which the discussion of these questions was widespread, there were no abuses in the manage ment of ferry or navigation companies brought to light and there was no public demand for legislation affecting them, nor was there any reference to them in the Governor's message, pursuant to the recommendation of which this law was passed. Regulation for railroads and all carriers connected with them in any way, and of gas and electric corporations, was demanded and was granted, but there was no such demand in the case of ferry companies, and in the public mind the necessity for their regulation did not exist.

I, therefore, beg to report that in my opinion the Commission is without jurisdiction over ferries, and has, therefore, no power to act upon the complaint referred to.

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Jurisdiction

Commission for the First District - Ferries Included in Railroad - Public Service Commissions Law, Section 2.

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LE ROY T. HARKNESS.
Assistant Counsel.

OPINION OF COUNSEL.

October 11, 1907.

TRAVIS H. WHITNEY, Esq., Secretary, Public Service Commission for the First

District:

DEAR SIR.I have your letter of the 10th inst., transmitting a copy of a letter from Richard L. Leo, dated the 8th inst., complaining of the ferry service maintained by the Long Island Railroad between Thirty-fourth street, in this borough, and Long Island City.

Without reference to the general question of jurisdiction of ferries disassociated with railroad companies, I desire to advise you that in my opinion the Commission has jurisdiction over the case presented by virtue of section 2 of the Public Service Commissions Law, which provides in part that "the term railroad' includes every railroad with all ferries * used, operated, controlled or owned by or in connection with any such railroad."

* * *

Yours very truly, (Signed)

ABEL E. BLACKMAR,

Counsel to the Commission.

Jurisdiction Over Common Carriers "Doing Business Exclu-
Public Service Commissions

sively "Filing Schedules
Filing Schedules

Law, Sections 2, 5.

OPINION OF COUNSEL.

October 25, 1907.

TRAVIS H. WHITNEY, Esq., Secretary, Public Service Commission for the First

District:

DEAR SIR.I have your letter of the 19th inst., transmitting a communication from the New York and New Jersey Steamship Company of the 18th inst., inquiring whether they are required to file freight schedules under the Public Service Commissions Act.

The company, as a freight company, is, as respects its business transactions within this State, within the definition of the term common carrier" in section 2 of the act; but the company in this case raises the question whether, since all its business is not transacted within the First District, it comes within the jurisdiction of the Commission for that district.

Section 5 provides that the jurisdiction of the Commission for the first district shall extend (paragraph IV) "to any common carrier operating or doing business exclusively within that district."

The language of this paragraph is ambiguous and immediately gives rise to the question whether, in order to come within the jurisdiction of this Commission, all the carrier's business must be transacted in this district or whether the jurisdiction of the Commission attaches to that portion of the business of the company which is transacted exclusively within the district.

I favor the latter view, although there is considerable force in the argument that according to strict rules of grammatical construction the jurisdiction of this Commission only attaches to a company which does all its business here.

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