Before the application herein before mentioned need be granted by any railway company or corporation the association making the same shall pay or secure to such railway company or corporation compensation for the right, privilege or franchise demanded in such application or petition as may be agreed upon between the parties as a just and reasonable yearly rental therefor, or a fixed and certain amount to be paid in one sum in lieu of a rental to be paid annually for the use and occupation of the site occupied by such warehouse or elevator, and the uses and privileges connected therewith.

If the parties fail to agree upon such yearly rental, or upon a gross sum to be paid in lieu thereof, the same may be determined and assessed upon petition to the district court for the district in which the station at which the warehouse or elevator is located may be situated pursuant to the provisions of chapter thirty-four (34), so far as the same are applicable to condemnation proceedings.

All notices to be served upon the railway company or corporation in the initiation of such condemnation proceedings, or during the progress thereof, may be served in the manner provided by the laws of this state for the service upon such corporations of summons in an action in the district court.

Provided, that either party shall have the right of appeal from the decision of the commissioners to the district court, for the district aforesaid, within twenty (20) days from the filing of the same, and service of notice of the filing of such decision; and such appeal shall be taken, heard and determined in like manner as appeals from the report of commisioners for condemning lands for the use of railway corporations as far as the same may be applicable.

Provided, further, that in case of condemnation proceedings the commissioners shall find,determine and return both the rental to be paid annually or a gross sum of damages sustained by the owner of said land by such appropriation of the same in lieu thereof. If the association making the application shall prefer to pay the annual rental, so found by the commissioners or by the jury on appeal, in lieu of the gross sum found by them as aforesaid, and the corporation or party whose land is taken assents to taking such rental, the sum shall be paid annually in advance, and in default thereof the warehouse or elevator shall not be erected, or if erected shall be removed within sixty (60) days after notice from the railway company or corporation, and in case of failure to so remove the same it shall be forfeited to said company or corporation. In all other cases the gross sum found due for damages shall be paid or secured to the owner of said land before taking possession of the same.

SEC. 2. This act shall take effect and be in force from and after its passage.

This bill passed the Senate, but in the last days of the session failed in the House for a lack of votes, there being in favor of the measure two votes less than the number required by the constitution for the passage of a law.

The commission adheres to its views on this subject, expressed in the report for 1889, pages 13 to 19, both inclusive.

Having been advised by the attorney general that, in cases where a site for a grain house or elevator on the right of way was refused by a railroad company, and the structure was located outside of and adjoining the right of way, there being an existing demand for traffic facilities, the company could be compelled to build a side-track, provided such side-track was not located outside of the right of way, the commission have

ordered a suit to be brought, as a test case, to determine what the law really is. The title of this suit is

"The Farmers Warehouse Association of Farwell, Minnesota,

vs.

The Minneapolis, St. Paul & Sault Ste. Marie Ry. R. Co." To assist in the prosecution of this suit, the commission have retained ex-governor and ex-railroad commissioner Horace Austin, who, with the attorney-general, will represent the association before the courts.

The complaint in this case was made to the commission by Ole Irgens Dec. 6, 1889, he being at that time the secretary of the association.

The complaint avers that this association having resolved to erect and maintain a grain warehouse at Farwell station, on the line of the defendants' road, in the county of Pope, for the purpose of storing and handling wheat and other grain in pursuance of the business for which it had been incorporated, made application to the defendant company for leave to erect the same upon the company's right of way at said station. That such application had been unconditionally refused, and that as ground for such refusal said company alleged that the association could ship the grain handled by it through the warehouses then doing business at said station and located upon the right of way.

It further appeared from the complaint that the association, after this refusal had erected its warehouse on land of its own adjacent to the right of way and near the side track of the defendant at the station; that thereafter it had demanded of the company that it should extend its sidetrack in the direction of such warehouse to the limit of its right of way, and that such demand had been refused by the company. Whereupon the association asked the commission to institute a proceeding to secure to it its legal rights in the premises.

Whether the complaining association is entitled to the relief prayed for depends upon the construction of Sec. 3 (subdivision c.) of Chap. 10 of the General Laws of 1887.

It being evident to the commission from the correspondence between the parties (which together with the complaint was laid before us) that the relief desired by the association would not be afforded it, unless compelled by a judicial decree, the entire matter in controversy was referred to the Attorney General Dec. 10, 1889, with a recommendation that the neces

a

sary legal proceedings should be had to obtain a construction of the statute referred to, by the Supreme Court of the State, to the end that the complaining association, and all other parties similarly situated should receive such relief as they may be entitled to under the laws of this state.

Various causes, which are always incident to litigation, have contributed to delay the progress of this suit, but the commission is informed that it will be pressed with vigor until a final determination is reached.

DISTRIBUTION OF CARS.

Notwithstanding the enormous crops produced in this state in 1891, and the consequent increased demand for shipping facilities, there has been less complaint of lack of cars, than in any previous year since the commission was established.

The companies have fairly met the demands made upon them in this respect. The practical rule laid down by the statute for distribution of cars, when the demand exceeds the supply, has been observed and the result has been in the main satisfactory to shippers.

It has been stated that efforts have been made by some railroad managers during the season now closing to regulate the price of wheat on their respective roads, by compelling buyers to keep at "list price" under the penalty of being refused cars for shipment of wheat if such a regulation was not observed.

No complaint has been made to this commission to this effect, but the statements have been made in the public press and have to some extent been circulated as a common rumor.

With reference to this the commission has to say that our statutes as well as the provisions of the common law forbid any such interference in the affairs of our people. Any attempt in this direction by railroad companies would provoke a resistance which would make itself felt at once.

The common carrier must furnish shipping facilities to all alike without let or hindrance and without discrimination as to persons or places.

The obligation to furnish shipping facilities and the right to demand them does not depend upon the price paid for the commodity offered for shipment.

The adoption of such a rule with regard to furnishing cars to shippers is clearly in violation of all laws governing common carriers, and the commission feels confident that no railroad company can be found to support the claim that it had the

right to deny shipping facilities or in any way discriminate against a shipper upon the ground that he had paid above or below the market price for the product offered for shipment. In July, 1891, the commission issued a circular to railroad managers upon this subject, the text of which is as follows: ST. PAUL, MINN., July, 1891.

DEAR SIR: The present promise of an unusually heavy crop of farm produce this season in Minnesota, induces the Railroad and Warehouse Commission to address this circular to the railway managers of Minnesota with reference to a uniform and thorough system for the distribution of cars among the several stations and shippers upon their respective lines of road.

You are aware of the difficulties which have heretofore been encountered, growing out of a shortage of transportation facilities at certain seasons of the year. More complaints are made to this commission because of this difficulty than from all other causes combined.

That delays may happen in the busy season in furnishing cars to all who apply for them, in such numbers as are demanded, has been repeatedly demonstrated in our past experience. That such delays are not always the fault of the railway companies, and to that extent are excusable, is evident from the fact that the statutes of this state (subdivision (b), section 7, chapter 10, general laws of 1887) have provided a rule for the distribution of cars among applicants when from any reasonable cause the common carrier is unable to furnish cars in accordance with the demand made upon it by all persons desiring transportation. This rule is as follows:

"(b) Whenever any railway company doing business in the state shall be unable, from any reasonable cause, to furnish cars at any railway station or side track, in accordance with the demands made by all persons demanding cars at such stations or side tracks for the shipment of grain or other freight, such cars as are furnished shall be divided as equally as may be among the applicants until each shipper shall have received at least one car, when the balance shall be divided ratably in proportion to the amount of daily receipts of grain, or other freight, to each shipper, or to the amount of grain offered at such station on side tracks."

The obligation of the common carrier to the public requires the use of their facilities fairly and without discrimination as to persons or places, in such manner as is best calculated, in the prosecution of their business, to afford the largest public benefit. An honest and fair endeavor to accomplish this, with such facilities as are at their disposal, is what may be reasonably expected and required of common carriers.

It is the opinion of the commission that the complaints made to it upon this subject are founded upon the belief, whether just or otherwise, that in this distribution of cars in seasons when there is a shortage in facilities, there is habitually practiced a discrimination in favor of individuals or of certain shipping points.

It is the duty of all common carriers to so conduct its business as to be able to show conclusively, that such discrimination is neither allowed nor practiced in any case.

If this can be made to appear we think the public generally will bear with greater patience the lack of accommodations which so many desire to secure at the same time.

As a means to this end the commission suggests that you issue instructions to your agents in this state which shall contain:

1st. The text of the rule made by the statutes of this state as hereinabove quoted.

2nd. That agents be instructed to require of shippers, as far as practicable, at the commencement of each month, an estimate of the number of cars they will be likely to use during such month, such estimate to be signed by the shipper or his agent, but not to be regarded as a requisition for cars for any given day or date.

3rd. A record to be kept of requisitions for cars for shipment, such record to show the date of each requisition and the order in which received.

4th. Cars to be furnished in the order in which requisitions are filed. 5th. When requisitions exceed the number of cars available, the cars farnished must be divided among applicants as provided by statute, until each shipper shall have received one car, when the balance shall be divided, as to shippers, ratably in proportion to daily receipts of grain, to each shipper-this proportion it is the duty of the shipper to show-or as to stations, in proportion to the amount of grain offered at such station for shipment.

6th. A demurage charge should be rigidly collected when cars are held an unreasonable time for loading or unloading.

The record, for use of agents as herein suggested, might be something in the form following;

This record should be kept at each station and should be open to the public every day during business hours.

The commission relies upon your cordial co-operation in the matter herein referred to, and will thank you for any suggestion you may make in relation to the same.

By order of the Commission.

A. K. TEISBERG,

Secretary.

WORK OF THE COMMISSION.

An examination of the complaints made to the commission and of the disposition thereof, as shown in the accompanying list, gives a fair idea of the work of the commission for the past year.

There is, however, a large amount of business done by the commission on behalf of citizens of the state, with railroad companies, that do not reach that stage where a complaint is required to be filed. In such cases the commission has found itself able to arrange a large number of misunderstandings between the road and the public, satisfactorily to both sides, by personal conference with the parties interested. The value of this service cannot be overestimated, and while the results do not appear in the report, and do not reach the public ear, they are well known and correctly appreciated by those who bring such matters to the attention of the commission.

It is necessary often to repeat the fact that the commission is solely the creation of the statute; that it has no jurisdiction or powers except such as it is clothed with by law, and that it cannot act in any other manner than the law prescribes. It