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quate for the accommodation of shippers and consignees of freight; it is, therefore, ORDERED, that this proceeding be dismissed.

FRANKLIN MCNEILL, January 11, 1912.

Chairman.

ACME MANUFACTURING CO. AND J. J. EDWARDS AND M. McL.

MEKEITHEN V. SEABOARD AIR LINE RAILWAY—REFUSAL TO ACCEPT “AND FORWARD SHIPMENTS.

Tervis, Commissioner:-In this matter it appears that the above named conipany shipped from Acme, North Carolina, near Wilmington, to Cameron and Lemon Springs, via Sanford, three car-loads of fertilizers on the 9th, 12th, and 25th days of March, respectively, in cars numbered P. R. R. 16963, N. Y. C. & H. 61601, and N. & W. 21947.

The consignor directed that these cars be forwarded via the Atlantic Coast Line Railroad to Sanford and thence via the Seaboard Air Line Railway to destinations, the destinations being on the Seaboard Air Line Railway, Cameron being twelve miles from Sanford and Lemon Springs seven miles from Sanford, prepaying the freight upon said shipments to their destinations according to the rates fixed by this Commission less the twenty-five per cent, joint haul reduction provided by statute.

The Seaboard Air Line Railway refuses to accept or forward either of said cars unless there shall be prepayment of freight on said cars at the full local rate from Sanford to the destinations, contending that it can not be made to accept the same at the said joint haul reduction.

The Commission is of opinion that the rate paid on said shipments is the proper and legal rate and that it is the duty of the Seaboard Air Line Railway to accept and forward said cars at said rates; it is, therefore,

ORDERED, that said Seaboard Air Line Railway do forthwith accept and forward the said cars of fertilizers so shipped and tendered it at Sanford, North Carolina, and that hereafter it accept and forward all like shipments tendered it under the same conditions, the freight being tendered or paid to it for its part of the haul at the local rates less the saic twenty-five per cent joint haul deduction.

April 3, 1912.

re

WINSTON-SALEM SOUTHBOUND RAILWAY CO. v. N. V. PETERSON

PETITION TO CONDEMN LAND FOR TERMINAL FACILITIES. TRAVIS, Commissioner:This matter coming on to be heard before the Corporation Commission, the said Commission, after due inquiry, as quired by chapter 458, Public Laws 1907, and with consent of counsel for petitioner and the defendant, finds that the petitioner can not make the con. templated improvements without condemning a right of way across the land of defendant as set out and described in the petition herein; it is, therefore,

ORDERED, That the said petitioner be, and it is hereby authorized to institute and conduct, according to law, proceedings before the Superior Court of Forsyth County for the condemnation of the right of way prayed for in the petition.

June 12, 1912.

ABERDEEN AND ROCKFISH RAILROAD COMPANY v. JAMES E. ROBE.

SON AND FANNIE ROBESON-PETITION TO CONDEMN LAND FOR

TERMINAL FACILITIES. McNEILL, Chairman: This matter coming on to be heard before the Corporation Commission, and the defendants, James E. Robeson and Fannie Robeson, failing to answer the petition, after due notice, and it appearing to the Commission that the petitioner can not make the contemplated improvements without condemning a right of way across the land of defendant as set out and described in the petition herein; it is, therefore,

ORDERED, That the said petitioner be, and it is hereby authorized to institute and conduct, according to law, proceedings before the Superior Court of Cumberland County for the condemnation of the right of way prayed for in the petition.

June 21, 1912.

CHOWAN COUNTY COMMISSIONERS V. NORFOLK SOUTHERN RAIL

ROAD COMPANY REGULATION OF PUBLIC CROSSING.

TRAVIS, Commissioner: This matter coming on to be heard, an investigation of same having been had, and the location viewed, it is

ORDERED, that from and after the first day of August, 1912, the Norfolk Southern Railroad Company shall observe and keep the following regulations in respect to the crossing at the east end of Church street in Edenton, North Carolina, to wit:

When any of its cars or engines are approaching said crossing, if going forward, it shall stop its engine at all times on arriving at a point fifty feet from the edge of said street, and when going backward it shall stop its cars as soon as the first one reaches a point fifty feet from the edge of said street, and the said cars and engine shall remain standing until a . man is sent forward to said street ahead of same to see that no one is approaching. Such man at night to carry a lantern as a signal. No cars or engine shall be moved across said street until signaled so to do by the man sent ahead as above required.

The foregoing order is entered with the consent of defendant railroad company.

July 27, 1912.

TOWN OF MAXTON V. SEABOARD AIR LINE RAILWAY, ATLANTIC

COAST LINE RAILROAD COMPANY-UNION PASSENGER STATION.

This is a petition to require defendants to erect a union passenger station at Maxton.

After notice to parties interested, the matter was heard at Maxton on February 21, 1912. Complainant and defendants were present. Several letters from defendants followed this hearing.

In substance it was agreed that defendants would erect a union passenger station at Maxton on the site of the Seaboard Air Line Railway's freight depot, the Seaboard Air Line Railway agreeing to remove its freight depot from the north to the south side of its main track.

At request of the Commission, the Seaboard Air Line Railway filed a blue print showing yard and tracks as would appear when changed as indicated above. Notwithstanding this agreement no work has been done by defendants to carry it out.

The Corporation Commission is of opinion that there has been too great delay in this matter, and it appearing that defendants have had a union passenger station at Maxton for a number of years, and that the same is now totally inadequate and that a union station is practicable, and that the interests of the case, in the opinion of the Corporation Commission, require it.

It Is ORDERED, that defendants unite in the joint undertaking and expense of erecting, constructing and maintaining a union passenger station at Maxton, commensurate with the business and revenue of the defendants, on the site occupied by the Seaboard Air Line Railway's freight depot, and to that end that defendant file with this Commission plans and specifications for such station within thirty days from the date hereof.

FRANKLIN MCNEILL, August 13, 1912.

Chairman.

TOWN OF MAXTON v. SEABOARD AIR LINE RAILWAY AND ATLANTIC

COAST LINE RAILROAD-UNION PASSENGER STATION. Defendant, Seaboard Air Line Railway, filed exceptions on August 22, 1912, to order made in this cause on August 13, 1912, and after notice to the parties interested, the exceptions were heard on September 3, 1912:

Petitioner was represented by G. B. Patterson, Esq., and S. B. McLean, Esq., and defendant Seaboard Air Line Railway was represented by J. H. Pou, Esq., and Murray Allen, Esq.

Evidence was offered by both parties and typewritten copy thereof made and filed in this cause.

After the hearing the Commission was asked to allow counsel for defendant to confer with their client, and on this the 9th day of September, 1912, defendant Seaboard Air Line Railway, through its counsel above named, appeared before the Commission and announced that it would not insist upon its exceptions; it is, therefore,

ORDERED AND ADJUDGED, that the order heretofore made be, and it is hereby renewed and affirmed, subject to the modification that defendants be allowed until September 23, 1912, to file with the Commission plans and specifications for the union passenger station.

There was evidence at the hearing of exceptions tending to show that it was agreed among the defendants themselves that the Seaboard Air Line Railway would erect the union passenger station and that the Atlantic Coast Line Railroad would use the same under lease, but that defendants had not been able to agree upon the terms of such lease. There was no representative of the Atlantic Coast Line Railroad present and the Commission will leave it to defendants to adjust among themselves their differences. If the defendants fail to agree, the Commission will hear the parties and make such order as may be necessary in the premises.

FRANKLIN MCNEILL,

Chairman. September 9, 1912.

TOWN OF MAXTON V. ATLANTIC COAST LINE RAILROAD COMPANY,

SEABOARD AIR LINE RAILWAY-UNION PASSENGER STATION. This cause coming on for further direction, it is

ORDERED, that defendants erect the union passenger station at Maxton, specifications and plans for which were filed and approved in this case, on or before January 1, 1913.

FRANKLIN MCNEILL, November 2, 1912.

Chairman.

CITIZENS OF PIN HOOK V. HILTON RAILROAD AND LOGGING COM

PANY-DEPOT FACILITIES. This is a petition to require defendant to establish and erect a station at Pin Hook, a point on defendant's line about five miles from the beginning of defendant's road near thirty-seven mile-post on the Atlantic Coast Line Railroad near Wallace, alleging that such a station is a public necessity.

An amended petition was filed May 5, 1911, praying that defendant be required to become a common carrier. Another amended petition was filed later, by some of the petitioners, alleging that defendant had constructed a spur track from the end of its road for a distance of two miles and that this spur track crossed two public highways, one leading to Rose Hill and the other to Magnolia, and praying that defendant be required to establish sidings at each of these crossings and deliver cars loaded with freight thereat.

Defendant admitted that it obtained a charter, as alleged, to build a railroad, either broad or narrow guage, declaring that in 1906 it began the construction of road near thirty-seven mile-post on the Atlantic Coast Line Railroad, near Wallace, and that said road is now constructed as a narrow guage road for nine and three-fourths miles. Defendant admitted that the Hilton Lumber Company, the largest stockholder in defendant company and also the construction company for defendant company, hauled Hilton Lumber Company's timber and logs over the said nine and three-fourths miles of road with said lumber company's own engine and log trucks. Defendant denied that it was a common carrier, and denied that the track leading from the end of its road and crossing the public highways from Rose Hill and Magnolia was its property; on the contrary, it alleged that the said road was the property of the Hilton Lumber Company, and alleged that it was not prepared to open the road for traffic for the reason that in its opinion the business which the road would receive from the nine,and three-fourths miles now constructed would not be sufficient to justify it and for the further reason that its roadway was not in proper condition, and for the further reason that defendant did not have equipment for it and that defendant did not have financial ability to purchase such equipment and complete its road. Defendant alleged that it was delayed in the construction of its road by several causes beyond its control.

The case was set for hearing and evidence was offered by both sides and a typewritten copy was made and is on file in this office.

The evidence of petitioners tended to show that there would be a variety of freight shipped out of and into points on defendant's road to and from points in and out of this State, if it were opened to traffic; for example, cotton, tobacco, corn, lumber, strawberries, bulbs, etc., etc.

The evidence of defendant tended to show that it is not a common carrier and that the road built from the end of its road and crossing the highways leading to Rose Hill and Magnolia did not belong to defendant but was the property of the Hilton Lumber Company, and explained in detail the causes which prevented defendant from completing the sixteen miles of road which it undertook to construct.

We find that defendant is not a common carrier and that the road referred to in amended petition and the evidence as a spur track leading off from defendant's road and crossing the highways leading to Rose Hill and Magnolia is not the property of defendant but is owned and used by the Hilton Lumber Company for hauling its timber. In the view which we take of the case, it is not necessary that we find other facts. In the case of Evans Railroad v. Barnes, 137 Ind., 306, it was held by the Supreme Court of Indiana:

*

“The board of directors and the established rules of the company alone could make appellant a common carrier for hire.

The power was not delegated to Allen, and it was beyond the scope of his authority to convert a construction train into a passenger train. He could not open an imperfect and incomplete road into one for passenger traffic. without the consent of his superior officers."

In

We have not been referred to any precedent in which any commission with powers similar to ours has ordered a railroad company to open an imperfect and incomplete road for freight or passenger traffic; nor has our attention been called to any in which any court has ever made such an order. Beale and Wyman (an authority on railroad regulation) section 101, it is said:

“The plainest justification for the imposition of the extraordinary law which requires those who are in public callings to serve all that apply at reasonable rates, is that in the initiation the service is voluntary. People are not forced into public service against their wills; it is only when they have held themselves out in some way as ready to accommodate all that apply that they are bound to serve indiscriminately."

But it is not necessary for us to pass on this question in our view of it. We are of the opinion that under the law establishing the Corporation Commission the jurisdiction of the Corporation Commission over railroad com. panies does not attach until they become common carriers. The Corporation Commission has no power to grant charter, locate line of road, regulate issue of its capital stock or bonds, grant or deny it power to condemn land, or regulate its construction of roadway. The Corporation Commission has no jurisdiction to order location or erection of depots or establish side-tracks by railroad companies which have not become common carriers. The Cor. poration Commission has no jurisdiction of proceedings to compel a railroad which has not become a common carrier to perform the duties of a common carrier. The remedy for nonuser or misuser of a franchise by a corporation which was chartered to become a common carrier, but which has never become such, is not before the Corporation Commission but before the courts of the State where provision is made for the trial of issues involved in such

A corporation chartered to build a railroad and also to condemn the land necessary for its right of way, in order to become a common carrier of freight and passengers, which has condemned land for part of its right of way and constructed part of its road, to wit, nine and three-fourths miles of a proposed sixteen miles, and which authorized its construction company

cases.

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