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are faithfully executed, and to exercise a general supervision over the railroads of the State. Each of said commissioners is authorized to administer oath, and two of them shall constitute a quorum.'

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Section 1 of the Act of March 10, 1900, provides that "when complaint shall be made to the Railroad Commission, accusing any railroad company or corporation of charging, collecting or receiving extortionate freight or passenger rates, over its line or lines of railroad in this Commonwealth, or when said Commission shall receive information, or have reason to believe that such rate or rates are being charged, collected or received, it shall be the duty of said Commission to hear and determine the matter as speedily as possible, and should the Commission determine that the company or corporation is, er has been, guilty of extortion, said Commission shall make and fix a just and reasonable rate, toll or compensation, which said railroad company or corporation may charge, collect or receive for like services thereafter rendered."

This complaint charges the Car Service Association and the said railroads composing that association with the offense of extortion, as defined by section 816 of the Kentucky Statutes, and the question now before the Commission is whether the Charge of one dollar per day, in addition to the regular freight charges under the rules fixed by this association and these railroads, is extortionate.

The Louisville Car Service Association is nothing more or less than a joint agency, established by the railroads named, for the purpose of enforcing and carrying out certain agreements, rules and regulations which these railroads have entered into with each other and have adopted for the purpose of governing car service. By the terms of this mutual agreement, seven representatives of the railroads have been selected to act as an executive committee, and by further agreement a manager has been chosen, who is authorized, at the joint expense of the railroads, to enforce these rules and regulations. The manager is empowered to employ sufficient clerical force and to construe the agreements entered into by the several railroads, and also the various rules adopted by them for the regulation of car service. The manager is further empowered to determine all complaints and contentions that may arise out of the enforcement of these rules, whether the controversy

arises between the railroads or between the shippers and the railroads. The decision of the manager is to be final and binding upon all parties until overruled by a majority of the executive committee.

Until a comparatively recent date, it was contended, and in fact the contention was upheld by the Supreme Courts of Illinois and Nebraska, that a charge for the retention of cars, in addition to the regular freight rates, was not a legal right, and only existed as a right to carriers by sea-going vessels; but it is now universally accepted that reasonable rules and regulations may be adopted, and an additional charge may be made for the retention of cars beyond a reasonable time. Car Service Associations have been organized throughout the country where railroads have been built, and it is universally admitted to be a regulation not only in the interests of the carrier but of the shipping public as well. It is contended by many shippers that they have the right to hold the cars of the railroad company until it may suit their convenience to either load or unload; and while it is generally agreed that a just and reasonable charge may be made for the retention of these cars where they have been held beyond a reasonable time, some shippers yet contend that there should be no restriction, and that the car service rules should be abrogated entirely. In the argument of this case a decision of the Supreme Court of Georgia has been cited by counsel, wherein it is said:

"Where the carrier's duty ends with the transportation of the car and its delivery to the customer, and no further service is embraced in the contract, the carrier, after a reasonable time has been allowed for unloading, is as much entitled to compensation for the further use of its cars as it would be for the use of its warehouse. We know of no good reason why it should be restricted to the latter method of storage. There is no law which prohibits the use of cars for this purpose, or which requires the unloading or removal of the goods to some other structure before any charge for storage can attach. This method of storage may in many cases be as effectual as any other.” We deny the proposition that either the railroad company or the shipper has a right to use the cars of the company for stor.

age or warehouse purposes. These cars were not constructed for any such purpose. They are merely a part of the equipment necessary in the operation of the railroad. They were constructed for the purpose of enabling the railroad to transport traffic from one point to another, and not for storage or warehouse purposes. It is the duty of the railroad company to furnish the shipping public with sufficient cars to move the traffic, and the public is entitled to have the use of these cars without hindrance from either shippers or railroads in using them for storage or warehouses. We think the law upon this subject is well settled.

As to when the liability as carrier ceases and that of warehouse begins, there are many different rules in the various States, but we believe it is well settled in this State. The general rule seems to be that the carrier remains liable until the goods have reached their destination and the consignee has had reasonable opportunity (involving notice of arrival, where such notice is essential to charge him with the duty of taking the goods) to receive the goods from the carrier, and that after the expiration of such reasonable time the liability of the carrier, if the goods remain in its possession, is that of warehouseman only. The carrier is liable only as a warehouseman after the consignee has refused to receive the goods, or while the goods are held by the carrier at the request and for the convenience of the consignee.

In this connection it may be useful to note the rule fixing the initial liability of a carrier, as such, upon the delivery of goods by consignor for transportation. We believe that this rule should also prevail in determining the relative liability and duty of the carrier and consignee when the transportation has ended. In either case it is simply a question of delivery.

"In order that the carrier may be charged with reference to the custody, care and transportation of the goods, it is evidently essential that, as bailee, he shall have come into possession of the goods, which, of course, involves a delivery by the shipper and acceptance by the carrier, and until there has been such delivery and acceptance, by which the possession of the goods has been transferred from the shipper to the carrier, no liability of the carrier with reference to such goods arises.

To constitute actual delivery, it is not enough that the goods be placed in a position from which they might readily be taken by the agent of the carrier, but there must be notice to him of the delivery, with intention to place them in the care and custody of such carrier." (Cyc. of Law and Procedure, v. 6, p. 412.)

Until the carrier has performed every duty with reference to the transportation of goods, his duty and liability as carrier still attach, and any charge in addition to the regular freight rate for any services, or for the use of any car, before the duties attending the transportation of the goods have been fully performed, is nothing more or less than an additional freight rate.

The objection to the jurisdiction of this Commission is raised upon the ground that section 820, above referred to, only allows the Commission to hear and determine matters where the railroad is accused of collecting and receiving extortionate freight or passenger rates. The argument is made to the Commission that because this is a car service overcharge (if there is an overcharge), and not a freight or passenger rate, the Commission has no right to inquire into its character, nature or reasonableness. It seems to the Commission that the definition of "extortion" clearly includes such charges as the car service rules demand. Extortion may be either for the transportation of passengers or freight, or for the use of a railroad car upon its track. It certainly can not be contended that this car service charge is not for the use of the car, because the car service rules expressly provide for the charge or penalty of one dollar each day for the use of a car after a certain time, and it has been proven that frequently persons prefer to pay the dollar in order to have the use of the car for a day; and under this proof it is certain that the additional charge is an extension of the freight rate, because the railroads themselves insist that they have a lien upon the contents of the car to secure this car service charge. If, therefore, under these car service rules, it is undertaken to demand more than a just and reasonable rate or toll or compensation for the use of any railroad car upon its track, it is extortion; and, as the railroads themselves insist upon the right

to hold freight and refuse to deliver it until the charge is paid, it is, if unreasonable, an attempt upon the part of the company to collect, and when collected, is receiving extortionate freight rates, and therefore it comes under the provision of the Statutes, section 820, where it provides that, after hearing, the Commission has a right to determine whether or not the corporation has been guilty of extortion, and the Commission has also the right, and it is its duty, to make and fix a just and reasonable rate of toll or compensation, where they have determined that the railroad has been guilty of extortion. This question was very ably argued by the attorneys for complainants and the representatives of the railroads involved, and the Commission is of the opinion that it has jurisdiction of the questions affecting the reasonableness or unreasonableness of the charges made by the Louisville Car Service Association against shippers.

The proof in this case shows that shippers in Kentucky operate under three different sets of rules; that the territory fifteen miles from Cincinnati on the Kentucky side operates under the rules of the Cincinnati Car Service Association, while the territory in and around Jellico operates under the Tennessee Car Service Rule. These car service rules are put in force under a joint arrangement with all railroads in Kentucky. They are prepared without the shipper having any voice in their requirements. The proof shows that no shipper was ever consulted as to the rules now in force by the Louisville Car Service Association.

They give to the railroads peculiar and unusual power, and without a hearing or notice or even an opportunity to defend the justice or injustice of the charge, the shipper is compelled to pay to the Car Service Association whatever may be demanded under these rules, and upon refusal to do so, the severest penalties are enforced. Cars may be removed from his yards, and cars for future transportation refused, and he is compelled to relinquish his legal rights without the opportunity of being heard in advance before the money is taken from him by the Car Service Association.

Under the rules now in vogue in Louisville, forty-eight hours, or sixteen working hours, are allowed for the unloading of In case the cars shall have been placed prior to seven

cars.

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