posed to compel the carrier to receive property at a point on its own line, consigned to another point beyond the terminus of such line, under circumstances which deprive it of the absolute control upon which its absolute liability is founded--circumstances which make the safe transfer of the property dependent upon certain conditions which are not under the command of the carrier. The proper iceing of the car at different points along the route, is shown by the evidence, to be essential to the safe transportation of the property. It is now proposed to compel this company to receive such cars with their contents, the safe transportation of which is dependent upon such conditions and attention to be given at places beyond its own line.. The right to transport in its own cars, and release itself from liability at the terminus of its own line is to be denied. In what way can it protect itself from liability as an insurer to destination? Are we told that we must, by special contract, restrict the liability to the results of causes which we can control? The suggestion is an excellent one, if practicable. But is it. practicable? The statute expressly provides that "No contract, receipt, rule "or regulation shall exempt any corporation engaged in transporting any "persons or property by railway, from liability of a common carrier or car"rier of passengers, which would exist had no contract, receipt, rule or reg"ulation been made or entered into." (Code, 1873, section 1308.) When a contract for carriage is to be partly performed in Iowa, it is governed as to its validity and construction by the laws of that State, so that the special contract being void in Iowa, it is void everywhere (McDaniel vs. The Chicago & Northwestern Railway Company, 24 Iowa, 412), and is no defense to a breach of the common law obligation of the carrier. though the breach occur in a State in which such a contract might be legally made.

Should this company be forced into a copartnership with another, thereby becoming liable to the shipper not only for its own acts, but for those of its partner-especially when the partner objected to is a foreign corporation in the hands of a receiver? It may be said, in reply, that traffic arrangements. in which the first company is liable for each company composing a part of the through line, are quite common and essential to the commercial interests of the country. Quite true. But so are copartnerships composed of natural persons quite as common and just as essential. Does it follow that every man who sees proper to engage in commercial enterprises should be required to become liable as the partner of any other man who may desire such an arrangement, and that, too, without regard to the solvency of the applicant? If such enforced copartnerships would be unjust to natural persons, by what process of reasoning can they be made just as to corporations?

The adjustment of concealed losses on long routes for through transportation is the source of almost infinite trouble and vexation. Railway companies can now enforce some reasonable observance of equitable rules in such adjustments by refusing traffic relations with those who will not be just. It is now proposed to deprive all companies of this power to defend themselves against the unscrupulous and insolvent.

The consequences of the policy which you are asked to inaugurate is my apology for the length of this argument.

THOS. F. WITHROW, General Solicitor. To the Board of Railroad Commissioners, Des Moines, Iowa.

DECISION OF THE COMMISSIONERS.

The complainant alleges that he is a shipper of butter and eggs from Ottumwa, Iowa, to points in the East; that in the summer season refrigerator cars are necessary to the safe conduct of his business; that Ottumwa is on the line of the Keokuk Division of the Chicago, Rock Island & Pacific Rail-road, formerly the Keokuk & Des Moines Railroad, now operated by the Rock Island Company; that the Rock Island Company refused to haul the refrigerator cars of the Merchants' Dispatch Transportation Company on complainant's request, when tendered them by the agent of said transportation company; that the complainant is, therefore, forced to ship by another

and more expensive route, and that this condition of things is the result of an agreement between the Rock Island and the Chicago, Burlington & Quincy railroads. It appeared in the testimony that the Keokuk & Des Moines Company had transported these empty refrigerator cars from Keokuk to Ottumwa for complainant's use for years previous to the date of this refusal, and by the Rock Island Company since it came into the control of the K. & D. M. to June last.

Answering the complaint, the Rock Island Company set up that the cars they refused to haul were not the cars of a connecting road, but were the cars of the Merchants' Dispatch Transportation Company; that the Merchants' Dispatch Transportation Company is not a railroad company, and hence does not connect with the Rock Island Road at Keokuk. In further answer the General Solicitor alleges that "the statute imposes no duty upon "any railroad company to transport cars, either loaded or empty, for any 'private person, copartnership or corporation not engaged in the operation "of a 'connecting railroad. The purpose of the law is to compel running arrangements between railroads. The duty is reciprocal between "lines and does not exist when there can be no reciprocity." It is further answered that the Rock Island Company cannot justly be required to re"ceive at the boundary line of the State cars of foreign corporations."

66

66

* * *

66

Under section 10, chapter 77, of the acts of the Seventeenth General Assembly, railroad companies in this State are required—

1. To furnish suitable cars to any and all persons who may apply therefor, for the transportation of any and all kinds of freight.

2. To receive and transport such freight with all reasonable dispatch, and to provide and keep suitable facilities for receiving and handling the same at any depot on the line of its road.

3. To receive and transport in like manner the empty or loaded cars furnished by any connecting road, to be delivered to any station on the line of its road, to be loaded or discharged, or reloaded and returned to the road so connecting.

4. To demand and receive for compensation for such service no greater sum than is accepted by it from any other connecting railroad for a similar service.

Chapter 18 of the the laws of the Fifteenth General Assembly imposes duties upon railroad companies as follows:

Any railway corporation, operating a railway in this State, intersecting or crossing any other line of railway, of the same gauge, operated by any other company, shall, by means of a Y, or other suitable and proper means, be made to connect with such other railway so intersected or crossed; and railway companies when railroads shall be so connected, shall draw over their respective roads the cars of such connecting railway, and also those of any other railway or railways connected with said roads made to connect as aforesaid, and also the cars of all transportation companies or persons, at reasonable terms, and for a compensation not exceeding their ordinary rates.

Chapter 1 of the acts of the extra session of the Fifth General Assembly fixes certain conditions on which the railroad companies named shall receive the public lands granted by Congress in the act of May 15, 1856. Section 9, of this chapter, recites that when any land grant railroad is

Intersected by the roads of any other railroad company, now constructed, or hereafter to be constructed, it shall be the duty of such road or roads, receiving the benefit of this act to furnish all proper and reasonable facilities and to join such other company in making all necessary crossings, turnouts, sidings and switches, and other conveniences necessary for the transportation of all freight and passengers over either or any road or roads hereby mutually accommodated, whether said passengers or freight are brought by the roads benefited by this act, or any other road or roads now constructed, or which may hereafter be constructed, etc.

The It is

Such are the laws bearing more or less directly upon this case, and their application upon the facts in issue is the subject of present inquiry. Keokuk & Des Moines Railroad has its southern terminus at Keokuk. operated by the Chicago, Rock Island & Pacific Railroad Company. At Keokuk it has a connection with the Toledo, Peoria & Warsaw Railroad, its cars passing on and off the C., R. I. & P. Railroad track. Indeed, the evidence shows that for months, if not for years, before about the first of June last, the K. & D. M. Railroad received and hauled refrigerator cars from

Keokuk to Ottumwa for the use of this complainant, a fact that no ingenuity of argument or fertility of invention can obscure. It is testified in the affidavit of Superintendent Givin, of the K. & D. M., and admitted in the argument of the General Solicitor of the C., R. I. & P., that the T., P. & W. Company "has some interest in three spur tracks in the Union Yards at "Keokuk," which it reaches by "passing over the lines of the Keokuk & "Hamilton Bridge Company, and the Chicago, Rock Island & Pacific Rail"way Company." For years the K. & D. M. Road has kept up business connection with the East by way of the spurs and the bridge referred to, and the T., P. & W. Railroad, and this connection remained unbroken by the C., R. I. & P. for many months and until about June first last, and even since then and up to this day the connection is severed only as to refrigerator cars, so far as this Board is informed. If there be such a connection at the terminus of the K. & D. M. Road in Keokuk as admits of the free transfer of cars to the track in Iowa, of any other road, no matter by whom owned, leased or operated, a refusal to transfer, by receipt or delivery, is a hinderance to commercial intercourse in clear contravention of the spirit and intention of the legislation of Iowa on this point for the past twenty years. The act of 1856, conveying the land grant to the several roads named, enjoined upon them all proper and reasonable facilities necessary for the transportation of all kinds of freight over either of said roads, whether said freight is brought by the roads benefited or any other roads now, or hereafter to be, constructed. The aim and intention obviously were to give legal force to whatever facilities railroad companies might voluntarily extend in aid of the transportation interests of the people.

The Commissioners believe they are carrying out the plain intent of the Legislature when giving the common interpretation to the words, "any con"necting road," as used in section 10 of chapter 77 of the laws of the last General Assembly. The words are of the most sweeping significance. The framers of the law knew that there were connections with other roads, operating in other States, at numerous points in Iowa, on the northern, eastern, southern and western boundaries. We do not feel that we have any authority to narrow the meaning of the terms used, and thus limit the rights and privileges of our commerce. Sound policy points in the opposite direction; to that interpretation of the laws which shall afford to the shipper every facility for transportation that may contribute to the enlargement of our commerce, provided it does not prejudice the rights of the carrier. The word "connection" we cannot construe in any technical or limited sense; the fact of connection is determined, in this case at least, by the mutual receipt and delivery of cars, in the usual way. To the allegation that the T., P. & W. is a foreign corporation, and is, therefore, beyond the jurisdiction of the Iowa laws, it is sufficient to say that the Rock Island Company, through its solicitor, admits the existence of spurs in Keokuk, which have connection with the K. & D. M. Road, and that the T., P. & W. Company has an interest therein. How, or on what track, it hauls its cars from Keokuk to the Eastern markets, is not a matter for inquiry here, and however it might be it would in no event relieve the K. & D. M. Road from the duty of receiving and hauling the refrigerator cars tendered. It seems to us, furthermore, that the laws referred to were not enacted for the benefit and protection of railways in Iowa as against foreign corporations. They were not intended to prohibit any citizen of the State from availing himself of all the competition offered by railroads that reach our State, whether operated by the corporations owning them, or by other corporations, or otherwise," to quote the words of section 16 of the "Commissioner Law."

In the case before us by the operation of the laws quoted the shipper of butter and eggs at Ottumwa has the choice of two routes to market. By the construction contended for he would be shut out from one, for it appears that the nature of the things shipped in this case is such that a shipment in the cars of the C., R. I. & P. Railroad to Keokuk, and a transfer there, would work serious damage to them. If the rule of law laid down is a hard or unreasonable one, the remedy alone seems to be with the legislative power. It is contended that this is a reciprocal duty, and that because the C., R. I. &

P. R. R. Co. cannot from the nature of things require a reciprocal haul from the T., P. & W. R. R. Co., it is not a duty imposed. We fail to see the application of the principle of reciprocity. The law does not read, "by any con"necting road from which a similar service can be required.' required." The duty is to receive the cars furnished "by any connecting road.”

It is, perhaps, our duty to notice the claim that even if this service is required with reference to cars furnished by the T., P. & W. R. R. Co., it cannot be required with reference to the cars of the Merchants' Dispatch Transportation Company. We do not think this position is tenable. The Merchants' Company, if it runs its cars over the line of the T., P. & W. R. R., must do so by the permission and consent of that railway. The cars are on the line to discharge that railway company's transportation duties, and must in that view be regarded as the cars of the T., P. & W. Railroad Company. But if this construction is questioned all doubt will be removed by the language of the first section of chapter 18, of the laws of the Fifteenth General Assembly, which recites that "cars of all transportation companies "or persons" shall be received and hauled by any railway corporation operating a railway in this State, where connection exists. This law seems somehow to have escaped the attention of the respondent.

We therefore say to the proper officers of the Chicago, Rock Island & Pacific Railroad Company, under the terms of section 3, of chapter 77, of the acts of the Seventeenth General Assembly, that in our judgment it is their duty under section 10 of said act, and of section 1 of chapter 18 of the laws of the Fifteenth General Assembly, to receive the refrigerator cars of the Toledo, Peoria & Warsaw Railway Company, or of any transportation company or person owning or operating cars on the line of that railway at Keokuk, and to transport them to Ottumwa, there to be loaded and returned to the T., P. & W. Railway Company at Keokuk.

CHICAGO, ROCK ISLAND & PACIFIC R. R.,

CHICAGO, July 31, 1880.}

GENTLEMEN-I have the honor to acknowledge the receipt of a certified copy of your decision in the Lilburn case.

The correspondence, which I suppose will be reported with your opinion, discloses the fact that we were required to show why the case stated was not within the terms of section 10, chapter 77, and that, so far at least as this company was advised, there was no intimation of any charge that the company had violated chapter 18 of the laws of 1874. Had I been notified, even informally, that we were accused of violating that act, I should have endeavored to convince you that the case was not within its terms, and that the complaint under it must be made as provided in section 1293 of the Code.

I do not write, however, to complain of the decision, but to acknowledge its receipt, and say that both the President and General Manager are absent and will not return until the latter part of next week. They will then determine the action which will be taken in the future in regard to the subject-matter of this controversy.

THOS. F. WITHROW, General Solicitor. To the Railroad Commissioners of Iowa, Des Moines, Iowa.

DES MOINES, August 25, 1880.

HON. THOS. F. WITHROW, General Solicitor C., R. I. & P. R. R., Chicago, Ill:

DEAR SIR-Referring to your favor of the 31st ultimo, in which you say "that the President and General Manager of the Company "will be at home in a week, and then determine the action they will “take in the future in regard to the Lilburn controversy," will you please inform the Commissioners of their action and oblige?

E. G. MORGAN, Secretary.

CHICAGO, ROCK ISLAND & PACIFIC RAILROAD,

CHICAGO, September 1, 1880. (

DEAR SIR-Upon returning this morning from an absence of over three weeks, I find yours of August 25th upon my table.

I am advised by the President that he has directed the agent of this company, at Keokuk, to transport refrigerator cars, offered by Mr. Lilburn, from Keokuk to Ottumwa and return, until further orders, and that cars have been transported in compliance with this order. This must not be taken, however, as an admission, upon the part of this company, of the soundness of the decision made by the Commissioners, or as a waiver of the right to test the power of the Legislature and the Railway Commissioners of the State of Iowa, to exercise any jurisdiction whatever over inter-state commerce.

THOS. F. WITHROW, General Solicitor.

E. G. MORGAN, Secretary, Des Moines, Iowa:

Although the record in the foregoing case covers many pages, yet in view of the importance of the principles involved, both to the railroad companies and to shippers in the State, it has seemed to the Commissioners to be a case well worth study and consideration alike for the principles involved, and for the lengthy discussion found in Solicitor Withrow's argument, and the Commissioners' responses thereto, as to the powers of the Board and the proper mode of procedure. It has been, and still is, the opinion of the Board that in its creation the Legislature did not intend to organize and set in operation another court in the State. The Commissioners have supposed, and still suppose, that it was the purpose and design of the Legislature to create a commission which, in an informal manner, and by modes of procedure which to one trained to the methodic processes of courts would seem irregular, should endeavor, in the speediest possible way, to arrive at the very rights of the question to be considered. It is believed