in advance. Do these things, and if the cars are not then promptly furnished you-if you do not get your proportionate share of all cars furnished at your station-we will at once prosecute the railroad company to the extent of the law. By the Board,

J. L. ROBINSON, Secretary.

On receipt of the peremptory order the said railway company replied as follows:

ST. PAUL, MINN., October 29, 1889.

J. L. Robinson, Esq, Secretary Dakota Railroad Commission, Watertown: DEAR SIR: -I beg to acknowledge receipt of the order of your commission dated 24th inst., addressed to this company upon the subject of furnishing cars for track loading.

The circular of which the order speaks, is similar to one which we are compelled to issue annually about October 1st, and to keep in force during that month and the two or three months succeeding.

The Manitoba company has the largest box car equipment, relatively to the amount of its traffic, of any railway company in this country, not excepting the New York Central or Pennsylvania companies. Nevertheless, when the grain shipping season comes on each fall, this company is unable to fill onethird the orders for cars which are daily filed with it. As it is, the company is able to move to eastern terminals each day, nearly double the quantity of grain that can be received, unloaded and paid for when it gets there. The result is, that the side tracks at Minneapolis and Duluth during the season of heavy grain shipments, are constantly kept clogged with hundreds and thousands of cars of grain that the facilities at those points are unable to handle. This condition of things annually produces a shortage of cars for returning to the country. An increase of the equipment would only make matters worse, instead of better, as the congestion at the terminals would only thereby be increased, and a complete blockade ensue, which would practically stop shipments altogether. The most the company can do, is to ensure as prompt a movement of its cars at both ends as is possible. For nine months in the year we have more cars by far than we need; consequently, cars can be furnished for loading on the track without serious detriment to any interest. During the three months, however, of most active grain shipments, if no check were put upon the ordering of cars for track loading, our equipment would be tied up in that way and the greatest conceivable damage done to the farming community as a class, because experience has shown and shows daily that upon an average, from three to four times as much detention occurs at loading points where cars are loaded from teams as where they are loaded from elevators. Our motto is simply, "The greatest good to the greatest number." This is what the law requires and public opinion demands. We do not discriminate against or in favor of anybody. Neither this company nor any officer connected with it has the slightest interest in any grain warehouse or elevator. We do, however, recognize the fact that the grain elevator is an implement without the aid of which the farmers of the northwest would be compelled to abandon the business of raising grain, because the grain could not be handled without it. No reasonably well-informed man thinks differently upon this point. Hence, when a deposit is required for cars ordered for track loading, the rule is not put in force to help the elevator, but

simply to ensure as quick a return of the car as possible, so that it may make its trips and be sent back again to haul some other man's grain. Experience teaches us that with elevators no penalty is necessary to ensure prompt loading and return of cars.

With regard to the territorial law cited by you, permit me to say, that I can see nothing whatever, with which this circular is in conflict. The laws of the land allow every common carrier to demand pre-payment of its entire charges as a condition to obliging him to perform the service. Hence, when a car is demanded for loading on a side track, the carrier not only has a right to exact a small deposit as his security, but also to go beyond that and require a deposit of a sufficient amount to cover the entire freight upon the shipment.

The Dakota law contains nothing whatever, depriving the railroad companies of the territory of this universal right existing in all places, and in all countries. This right of pre-payment the carrier can waive, in whole or in part as he chooses to do so. His waiver of it in favor of one man and instance of it as against another man is no more a subject of complaint than is the giving of credit by a merchant to one customer and the requirement of cash payment from another. Not only has the legislature of Dakota left this right of demanding pre-payment in full force, but it is extremely doubtful whether it would be within the power of the legislature to take away or curtail that right, even if it should see fit to do so.

For the foregoing reasons, we must respectfully decline to revoke the circuiar to which your order refers.

Permit me to add that 999 out of every 1,000 cars shipped at Dakota stations are destined for points outside of that Territory. All such shipments are interstate traffic and consequently beyond territorial jurisdiction. The territory could not regulate such shipments, should it seek to do so, and I do not think it will ever try.

It is needless to say that this company desires to comply with every lawful and reasonable order emenating from the honorable Railroad Commission of your Territory, but in the instance now under consideration, its view of its own rights, and of the real interests of the public, requires it to continue the practice which your honorable Commission has directed to be discontinued. Yours respectfully,

W. P. CLOUGH, 2d Vice President.

The suggestion in the conclusion of the above letter that the provisions of Sections 5 and 7 of our Railway Commission law did not apply in cases where the grain sought to be shipped is to be consigned without the territory induced this Board to seek the opinion of Hon. Johnson Nickeus, Attorney General, on the subject, which he promptly gave.

JAMESTOWN, N. D., Nov. 2, 1889. Judson La Moure, H. J. Rice, and John H. King, Railway and Warehouse Commissioners:

GENTLEMEN: In yours of Oct. 30th, 1889, you ask has the Territory power to enforce sections 5 and 7 of the railway commission law in cases where the

grain sought to be shipped is to be consigned to points without the Territory, in other words do those sections attempt to regulate or interfere with "interstate commerce." I am of the opinion that the sections referred to are constitutional. They do not attempt to regulate or interfere with "interstate commerce." Those sections were passed for the purpose of preventing the railroad companies from discriminating in favor of certain elevator companies and against other buyers and shippers of grain. They deal simply with the manner of obtaining cars and the manner of loading grain in such cars. Transporting the grain and the charges therefor are in no way interferred with. In other words, the legislature has said there shall be no discrimination between persons in getting their grain aboard the cars nor in securing the cars. These sections do not come within the rule laid down in State of Minnesota ex rel. Railroad and Warehouse Commissioners of the state of Minnesota against Chicago, St. Paul, Minneapolis & Omaha R'y Co., and the cases cited (opinion rendered March 18, 1889) but rather under the rule laid down in the People vs. The Boston and Albany Railroad Co., 70 N. Y., 569; Rorer on Railroads, p. 1223; Chi. & N. W. R'y Co. vs. The People ex. rel., Hempstead, 56 Ill., 365; Wheeler vs. San Francisco & A. R. R. Co., 31 Cal. 46; Burnette vs. Dutton, 10 N. H. 481. Certainly if the legislature attempted to regulate the transportation of grain or the charges therefor beyond the limits of the Territory such act would be void. This I contend has not been done.

Very respectfully,

JOHNSON NICKEUS, Attorney General.

At this time the jurisdiction of this commission in all of the St. P. M. & M. cases was cut off by the proclamation of statehood, and the cases were certified to the North Dakota Commission. Appended we give the several cases in detail.

CASE No. 1.

CITIZENS OF TWIN BROOKS vs. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY.

The complaint in the above case, dated March 7, 1889, setting forth that Twin Brooks was a station on said road of much importance, furnishing annually upwards of 100,000 bushels of wheat for shipment, and paying more than $10,000 per year for freight received, besides passenger traffic, but that said company did not maintain a freight and passenger office and station agent there, was found in the office when the present commission assumed charge, May 1st, last.

By instruction of the board, the secretary wrote the railroad company on May 3d, requesting that a depot and agent be supplied at Twin Brooks immediately. No response being received, the secretary visited Twin Brooks, to investigate the necessity for the relief requested, on May 30, and June 1st again wrote the company urging that the relief be granted.

June 23d Commissioners Rice and King and Secretary Robinson, visited Twin Brooks, to ascertain further facts in the case, and Commissioner King thereafter visited the office of the Milwaukee company in Milwaukee, to further urge action in the matter. On July 20th, the request was granted, and passenger and freight offices with agent was established in Twin Brooks, and the people there have ever since been receiving the privileges of a comfortable station, with agent and telegraph operator, and are highly pleased.

CASE No. 2.

ROSS A. PARKS, et al., OF LILY CLARK COUNTY, vs. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY CO.

The stations of Butler and Bradley on the said railroad are fourteen miles apart; petitioners reside midway between the above stations and ask for a siding. The railroad company refused to construct such siding on request of the petitioners, and also upon the request of this commission.

This case was considered at the meeting of the commission held May 23 and 24, and some doubt existing as to the power of the commission to peremptorily order a siding constructed, the question was submitted to the attorney general, who gave it as his opinion that section 6 of the grain and warehouse law, which provides that the owner of any mill or warehouse at any station on the line, or at the termination of any railroad, may construct a side track from such mill or warehouse to said line of railroad, and make the connection thereto, does not authorize the commission to peremptorily order a siding at a point on the line of a railroad not at a station already established, or at the termination of said railroad.

There being no village, only a post-office, and the company urging the business insufficient at this time, no further action was deemed advisable this season, and the applicants were so notified.

CASE NO 3.

E. M. COATES, OF YANKTON, vs. CHICAGO, MILWAUKEE AND SAINT PAUL RAILWAY COMPANY.

At Yankton, a Y or transfer track between the C., M. & St. Paul Ry. Company and the Chicago & Northwestern Ry. Company has existed for some time. Petitioner claims that the C., M. & St. Paul Co. refused to switch cars of freight consigned to him over the

C. & N. W. Ry. and by the latter company placed upon said transfer track. The petition, dated May 9th, was addressed to Chairman Lamoure, and on May 21st, he, with the secretary, met Supt. Bell, of the Milwaukee road, at Yankton, and the matter was satisfactorily adjusted same date, since which time there has been no complaint.

CASE NO 4.

IRA A. BARNES, et al, YORKTON, DAK., vs. MILWAUKEE, SAINT PAUL & SAULT STE. MARIE RAILWAY COMPANY.

The facts in this case are in every way similar to Parks vs. C., M. & St. P. Ry. Co., supra, and the same disposition was made of it.

CASE NO 5.

CITIZENS OF WATERTOWN vs. CHICAGO & NORTHWESTERN, BURLINGTON, CEDAR RAPIDS & NORTHERN, MINNEAPOLIS & SAINT LOUIS, SAINT PAUL, MINNEAPOLIS & MANITOBA COMPANIES.

June 11th, 1889, the citizens of Watertewn petitioned the commission to secure transfer or "Ys"" connecting the various railroads centering there. The petition was considered at the meeting held June 20th, and a request was sent to each of the companies that such transfer tracks be constructed. Immediately thereafter the C. & N. W. and the B., C. R. & N. railway companies complied with the request by constructing a transfer track connecting the yards of the Dakota Central and W. & St. P. Division of the C. & N. W., and the B., C. R. & N., M. & St. L. and W. & L. K. Ry's. The St. P., M. & M. Ry. did not comply at once, but later in the season an arrangement was made by which cars could be transferred from the 'Manitoba' to the other railways over the tracks of Standard Oil Company, thus completing the connection of all the yards of the several roads.

CASE NO 6.

O. RUDD, vs. NORTHERN PACIFIC RAILWAY COMPANY. The N. P. Ry. runs through complainant's farm at Sheldon, separating his barn-yards from his pastures. Petitioner asks that the railway company be compelled to construct cattle guards across or under railway for the accommodation of his stock.