be more clearly defined. If the underground and overhead crossings were to be introduced on a large scale, the matter of expense would become a serious one; and the question must be settled as to how the expense should be shared, if at all, by the parties interested. The Warnock case has not yet been settled. The doctrine of farm-crossings, as laid down in the case of Gray vs. Burlington and Missouri Railroad,1 has been generally followed by the Commissioners:

"The law must be construed so as to protect the citizen, and guard him against needless burdens and encroachment. He has a right to as 'free and unobstructed egress as the circumstances of the case reasonably admit; and whilst the railroad company has the right to intervene between him and the highway, it has not the right unnecessarily to subject him to the inconveniences and burdens which can be guarded against by the exercise of reasonable care and at a reasonable outlay. When the only means a citizen has of reaching a highway is across the railway, he may insist that an open crossing be provided for him, by means of which he may reach the highway without stopping to open gates or remove bars."

The Commission took into account the question of expense and danger in determining whether crossings should be at grade or over or under grade.

The jurisdiction of the Board over railroad crossings was settled by the Supreme Court in a decision rendered Oct. 8, 1892.2 Sect. 1292 of the Code declares that a railroad company whose road intersects or crosses any other line of railroad of the same gauge shall connect its road with such other railroad so intersected. Chapter 24,

1 37 Iowa, 119.

2 Citizens of Algona vs. C., M., & St. P.; Report, 1889, p. 1058; Report, 1890, p. 843; and Report, 1892, p. 37.

Sect. 1, of the Act of the Twentieth General Assembly (1884), provides that corporations having intersecting roads shall, "whenever ordered by the Railroad Commissioners, unite and connect their tracks." The citizens of Algona petitioned for a connection of the Chicago, Milwaukee, and St. Paul, and the Chicago and Northwestern; and the Commissioners, while not considering the connection commercially necessary, regarded the law first quoted as mandatory, and ordered the connection. Suit was brought to enforce the order, and obtain the construction of the statute; and the courts held that the provision of the Act of 1884, giving Commissioners power over the matter of connection, was intended to supersede the portion of the statute making the connection compulsory.

CHAPTER VI.

METHODS OF PROCEDURE.

CONSIDERABLE doubt arose in the minds of the Commissioners, soon after the passage of the law of 1888, as to the method in which their duties were to be performed; this doubt arising from a provision in the law of 1888 which says that "nothing in this Act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this Act are in addition to such remedies." The repealing clause reads, "All laws now in force in direct conflict with any of the provisions of this Act are hereby repealed."

The original Act of 1878, under which the Board had been created, had granted general supervisory powers. The only case in which any formal complaint was necessary in order to require action by the Board was that prescribed in Sect. 15, which related to the examination of rates of passenger or freight traffic within the limits of a city, town, or township. In such cases, the application was made by the officers of the civil division or by legal voters, and the Commissioners were required to give notice of hearing. Aside from this section, the law provided for no formal method of procedure; and the Commissioners regarded this as one of its strong points. They encouraged complaints of the most informal char

1 See Appendix I.

acter, and endeavored to make the Board as different as possible from an ordinary court. This was entirely in harmony with the statute creating the Commission, which had conferred powers of a supervisory and advisory character, and had intended that the findings of the Board should depend for their acceptance upon their soundness and justice. This method was pursued until April 3, 1884, when an Act, passed by the Twentieth General Assembly, was approved, by which cases affecting public right were to be instituted by the attorneygeneral, in the name of the State, in the Circuit and District Courts of the State. In case the order of the Commissioners was reasonable and just, the Court was to issue mandatory and perpetual injunction, refusal to obey the decree rendering the officers of the company guilty of contempt.

Before the question of the Board's prerogative as to procedure had had a good opportunity to be tested, the Act of 1888 was passed. By this Act the duties imposed upon the carrier were specifically stated, together with the method of procedure in all cases of violation by the carrier of the specific provisions of the Act. The law required that all charges made for any service rendered in the transportation of passengers or property in the State of Iowa should be reasonable and just, and any unjust charge was declared unlawful. Unjust discrimination was prohibited. Preferences were not to be given to particular persons or particular kinds of tonnage, with certain necessary exceptions. Proper arrangements were to be made by carriers for the interchange of traffic, pooling was prohibited, and the "long and short haul clause" introduced. Commissioners

were ordered to make a schedule of reasonable maximum charges, and the procedure in matter of violation of law by the carriers was laid down.

This Act defined clearly the methods of procedure in cases arising under the Act, but the question to be settled was whether the Board had jurisdiction beyond the provisions of this Act. If this Act, as it is specifically stated, did not "in any way abridge or alter the remedy now existing at common law or by statute," but was "in addition to such remedies," and if the repealing clause did away with such laws only as were in direct conflict with the provisions of the Act, there were clearly powers remaining of a general supervisory character, broad and almost unlimited, which were conferred upon the Board by the law of 1878; and if the case under investigation involved a question of public right, recourse could be had to the courts under the amendment of 1884. As the schedule of freight rates became gradually more satisfactory, and as the discriminations, the punishment of which formed the burden of the Act of 1888, ceased to exist, the necessity for the method of procedure under this Act disappeared, and the question as to whether the Board had powers under prior Acts came to be of very great importance. The Board held steadily that the method of procedure provided in the Act of 1888 was limited to and intended only for those cases arising under that particular Act, and the Supreme Court sustained impliedly this theory of the case.

In the case of the State against the Des Moines and Fort Dodge Railway Company, involving an order for

1 See ante, p. 128.