stitutional question is one raised by counsel in the case as to the construction of the State Railroad Commission act. It is apparent that the State Railroad Commission has only such powers as the act creating it confers. It cannot prescribe rules or assume powers not conferred by the act. We may, therefore, properly inquire what power is conferred or assumed to be conferred by the state act in relation to car service rules and charges as affecting interstate shipments.

"In the construction of the act it may be assumed that the State Legislature sought to avoid any constitutional infirmity in the provisions of the act and intended to keep safely within the limits of state jurisdiction.

"The act itself carries that legislative construction in Section 2a, "That the provisions of this act shall apply to the transportation of passengers and property between points within the state, and to the receiving, switching, delivery, storing and handling of such property, and to ail charges connected therewith, including icing charges and mileage charges.'

"It is contended by the attorney general that the limitation of the application of the act to state commerce refers only to the transportation and not to local or terminal facilities. But it will be observed that the limitation of the scope of the act to property involved in state commerce applies not only to transportation of property, but to the terminal service of such property as well. The character of the property to be moved is made the test in both classes of service. If the property moves in state commerce, the act applies both as to actual transportation and as to receiving, switching, delivering, storing, handling and all charges connected therewith. But the act does not assume to apply to either transportation or terminal facilities if the property which is the subject of shipment moves in interstate commerce.

"It is also contended by the attorney general that Section 3 of the act relating to discrimination and rates is general in terms and applies to all railroads, regardless of the nature and character of the property transported. We are of the opinion, however, that the legislative construction in Section 2a underlies the whole act and is the limitation of its scope. The subject matter of Section 3 is the charge for transportation of passengers and property as well as the terminal facilities. Now, the terms employed in Section 3 have been construed and applied in Section 2a to intrastate shipments and it necessarily follows that the use of these terms in Section 3 or any other section in the act, unless a contrary intention appears, must follow the definition and application of the preceding section. This is confirmed by the language employed in Section 24, prescribing the penalties.

"It is not necessary to express an opinion as to whether the requirements of Sections 4, 10a and 12 of the act fall wholly within the legislative construction prescribed in Section 2a relating to transportation and termina! facilities.

"The act under consideration in Section 21 gives the State Commission power to investigate freight rates on interstate traffic and, if found to be unjust or discriminatory, to request the railroads affected to revise the traffic, and in case of failure to petition the Interstate Commerce Commission for relief. This is the only section in the act which refers expressly to interstate commerce; and in view of the legislative construction in Section 2a of the act and the doubt and conflict that exists as to the limit of state jurisdiction, we may fairly assume that the power conferred in Section 21 is the only authority intended to be conferred upon the State Railroad Commission as to interstate commerce or the facilities and instrumentalities em

ployed therein; and that all other grants of power contained in the act are to be confined to state commerce.

"The attorney general argues that cars may often be ordered or furnished without definite knowledge or intention as to consignee or place of destination, and that an important field for regulation might thus be left open and free from control by either state or federal commission. This question, however, is not before us in the present record. The injunction allowed by the court below restrains the Commission only as to car service so far as it affects interstate shipments. Until interstate commerce is in some way impressed upon the instrumentality sought to be controlled or regulated, the injunction does not apply. The only question here is as to whether the State Railroad Commission can enforce its rules as to cars which have been inpressed as instrumentalities of interstate commerce.

"It, therefore, follows that in the opinion of this court the State Railroad Commission had no power under the act creating it to enforce car service or demurrage rules as to cars employed in interstate commerce.

"In this view it is not necessary to discuss or express an opinion as to the constitutionality of an act conferring such power upon a state railroad

commission.

"The injunction in the court below was, therefore, properly awarded, restraining the Commission from the enforcement of its rules as to car service and demurrage so far as affecting interstate commerce, and the judgment is, therefore, affirmed."

The questions in this case being considered of great importance as touching the powers of the Commission, it was carried to the supreme court and is there now pending.

Homer C. Gill versus The Hocking Valley Railway Company.— In the case of Homer C. Gill versus The Hocking Valley Railway Company, decided April 24, 1908 (Formal No. 40), defendant appealed from the finding and order of the Commission to the common pleas court of Franklin County, which court, after full hearing, sustained the finding and order of the Commission. Defendent thereupon appealed to the circuit court, which sustained the finding and order of the Commission and the decision of the court of common pleas.

The Carbon Coal Mining Company versus The Marietta, Columbus and Cleveland Railway Company. The history of the litigation in this case will be found under Formal No. 47.

J. M. Callahan & Son versus The Cleveland, Cincinnati, Chicago and St. Louis Railway Company. The litigation upon the finding and order of the Commission in this case is to be found in Formal

No. 54.

33. The Ohio Shippers' Association, complainant, versus The Addyston & Ohio River Railroad Company and all of the other railroad and railway companies of the state of Ohio, defendants.

The complaint is that the official classification should be modified, amended and supplemented by establishing and enforcing an additional class to the same, to be know as "Class Seven," or by some other proper name, for carloads of certain named low-priced commodities when not bearing a special commodity rate lower than the rate under said additional class, with minimum rate for such carloads as is now designated for Class Six of said named official classification. Complainant further petitions for the establishment and enforcement. of a distance tariff for said low-priced commodities when not bearing a special commodity rate less than the rate under said additional class. Upon motion of defendants, and with consent of complainant, this case has been dismissed, without prejudice, for want of prosecution.

45. Fred H. Wolf, et al., citizens of Wauseon, complainants, versus The Detroit, Toledo & Ironton Railway Company, and Benj. S. Warren and Geo. K. Lowell, co-receivers of The D., T. & I. Ry. Co., defendants.

On December 15, 1907, the complainants in this case set out the following statement of facts in support of their prayer for an order of the Commission to be issued against the defendants requiring more adequate passenger train facilities at Wauseon, Ohio:

That for many years preceding the defendant railway company had been operating, both ways, passenger trains between the city of Detroit, Michigan, and points in southern Ohio, which said trains passed through the village of Wauseon and afforded reasonable service to the people living along the line of said railway; that on December 1, 1907, the defendants put in operation a new schedule of train service over said railway and wholly discontinued the passenger serv ice from Dundee, Michigan, to Napoleon, Ohio, announced to the public that "Passengers traveling between Napoleon and Tecumseh will be carried on trains 41 and 42;" that trains Nos. 41 and 42 are what are known as mixed trains; that train No. 42 is scheduled to leave Napoleon, Ohio, at 6:00 A. M. and arrive at Tecumseh, Michigan, a distance of 49 miles, at 11:40 A. M.; that train No. 41 1s scheduled to leave Tecumseh, Michigan, at 12:25 P. M. and arrive at Napoleon at 6:00 P. M.; that said trains are very slow and uncertain in their time of arrival and departure, and the passenger service there

by afforded is wholly inadequate to the needs of the traveling public centering in Wauseon.

The defendants answered that by reason of the expiration of a certain lease for a part of the line of railway between Napoleon and Detroit, via Tecumseh and Dundee, it was impossible for them to continue, after the first of December, 1907, to run any trains whatever over said route.

A hearing in this case was held in Toledo, Ohio, March 17, 1908, where it developed that prior to December 1, 1907, the D., T. & I. Ry. Co. had been operating over the rails of the L. S. & M. S. Ry. Co. from Dundee to Tecumseh, Mich., but that following the expiration of the agreement between the two companies on that date, and by reason of their inability to make satisfactory renewal thereof, the defendants had arranged to operate their Detroit service via the Wabash Railroad from Napoleon to Toledo, Ohio, and had instituted a service consisting of a mixed train leaving Napoleon as noted in the complaint, proceeding along their own line to Tecumseh, Mich., doing such switching and freight work as was necessary on each trip, and carrying a combination coach for the passenger traffic. This hearing was closed by the operating officials of the defendants agreeing to endeavor to adjust the matters complained of to the satisfaction of plaintiffs. These negotiations had been under way for some little time when the defendants resumed the method of operating trains via Wauseon, Ohio, and Tecumseh, Michigan, to Detroit, which had been followed prior to December 1, 1907, when the case was, with the consent of both parties, dismissed.

47. The Carbon Coal Mining Company, complainant, versus the Marietta, Columbus and Cleveland Railroad Company, defendant. Complaint against carrier. Modified and amended order. Decided February 16, 1909. O. E. Harrison for the Commission; Wilson & West, for defendant.

Discrimination in Furnishing Cars.

The above named plaintiff, The Carbon Coal Mining Company, having heretofore, towit, on the 28th day of March, 1908, filed complaint against The Marietta, Columbus and Cleveland Railroad Company, and the Commission having on the 19th day of October, 1908, after due hearing and upon the evidence then adduced, found that certain regulations, practices and services of defendant complained against were unreasonable and unjustly discriminatory, made an order substituting regulations, practices and services deemed by the

2-R. C.

Commission to be reasonable instead of the regulations, practices and services of defendant so found to be unreasonable. Said defendant railroad company and The Black Diamond Coal and Coke Company, a party in interest, and designated in the original order as the Black Diamond Mine, being dissatisfied with said order of the Commission, commenced an action in the common pleas court of Franklin County, Ohio, against the Railroad Commission of Ohio, as defendant, to vacate and set aside said order, as provided by law. Said action coming on for hearing in said common pleas court, and the plaintiffs in said action having introduced evidence which the court found to be different from that offered before the Commission and additional thereto, ordered that a copy of such different and additional evidence, together with all the evidence in the case, be certified and transmitted to the defendant, the Railroad Commission of Ohio, for further consideration and action thereon, a copy of which new and additional evidence was, on the 8th day of February, 1909, received by the Commission and taken under consideration. After due consideration thereof, in connection with the testimony originally offered, the Commission is of the opinion that its said order heretofore made and complained against should be modified and amended, and the same is modified and amended as hereinafter set out.

The Commission is of opinion that defendant has not in good faith made due effort to ascertain the capacity of complainant's mine, and has not apportioned and distributed its available coal cars according to the respective capacities and requirements of the several mines on its line; that said defendant has not manifested the same degree of diligence in serving complainant that it has in serving other operators on its line, especially in removing cars from complainant's tipple when loaded and ready for shipment.

The Commission is further of opinion that defendant's practice of not taking into account railway fuel cars, carded from foreign lines to mines on its line, in apportioning its available equipment among the operators, unjustly and unreasonably discriminated against the complainant herein.

The Commission, therefore, finds that the defendant has unjustly and unreasonably discriminated against the complainant herein.

The Commission further finds that the defendant, during the months of October and November, 1907, unjustly and unreasonably discriminated against the complainant herein, and in favor of other operators on its line, especially the Black Diamond Mine, in its manner and method of distributing available coal cars among the several operators, in its failure to give complainant's mine a fair rating, and in its failure to extend to complainant equal and the same facilities and services that it extends to other operatives on its line,