A comparison of railroad rates with each other is never very satisfactory. Rates upon each road depend upon such a number and variety of circumstances as to make it often unjust to apply them to the business of another road. The jurisdiction of this Board does not enable it to satisfactorily investigate those details upon which the value of the comparison depends, as the most of the roads mentioned are not in this State. Assuming, however, that the conditions and expense of the service are substantially the same upon the various roads, we see at once that the proposed rates of the Long Island, to-wit, seventy to ninety cents per ton, according to distance, are not excessive, but are lower than charged upon many roads, and the lowest upon long distances. Noting that the Pennsylvania, Philadelphia and Reading and Old Colony are somewhat lower for short distances, we must bear in mind several facts.

1. The Old Colony for 1884 earned $8,950.91 per mile.

The Philadelphia and Reading earned $21,116.12 per mile.

The Long Island earned $7,915.04 per mile.

Pennsylvania railroad earned $20,528.97 per mile.

The larger the volume of business done on a road the lower rates it can afford.

2. While lower for short distances, the rates for long distances upon these roads are higher, and thus an average as low as any is maintained upon the Long Island.

For these reasons the Board does not at present recommend a change. in the rates established on Dec. 10, 1885.

The Board suggests to the Long Island road that it consider the advantages that would accrue to it and to manure shippers and consumers, were it to arrange that the towing of its floats be done as cheaply at least as it is done by the Pennsylvania railroad tugs. (See Chap. 193, Laws 1884.)

The voluntary action of the road in making a substantial reduction in rates indicates a desire to meet the wishes of the complainants, which ought to be satisfactory until the new rates are fairly tried.

By the Board.

WILLIAM C. HUDSON,

Secretary.

VII.

NELSON BURDICK AND OTHERS v. THE UTICA AND BLACK RIVER RAILROAD COMPANY.

February 3, 1886.

The complainant, Nelson Burdick, is the owner of real estate in Watertown, adjoining the tracks of the Carthage, Watertown and Sacketts Harbor Railroad Company, leased to and operated by the defendant. Desiring to enter into the coal business, he about February 1, 1885, requested the company, through its superintendent, to put in a switch and side track for him, offering to pay the expense

thereof, provided the company would carry coal for him as cheap as for Richard Marcy, who was engaged in that business at Watertown. Neither the superintendent nor the company apparently paid any attention to this request. On May 29, 1885, complainant wrote to John Thorn, Esq., president, renewing his request. To this, the superintendent, E. A. Van Horne, Esq., answered on June 1, 1885, that "there had been nothing decided about the coal business, or should have advised you thereof." On June 10th, complainant renewed his request by letter, presumably because he had not as yet received an answer to his inquiries of February 1, 1885. To this the general freight agent answered on June 11th, that "he would take the matter up with the general superintendent, and see what he has said in relation to the same. From your letter, I do not understand that you have any property ready to ship over the road at present, and when it is ready, if you will advise me where it is coming from, and how it reaches our line, I will endeavor to give you rates for the same."

Being still without any decisive answer to his request for a switch, side track and rates, complainant, on July 10th, again wrote to the general freight agent, asking the rate on coal from Utica to Watertown, and from Sacketts Harbor to Watertown; also asking whether the side track and switch would be allowed.

No answer to the rate inquiry was made, but on July 13th, the general superintendent replied that "we cannot for many reasons put a switch in our main track at the point you desire one."

The Board at the outset deems it proper to say that in its judgment the treatment of the complainant's request in February, 1885, and of his repeated requests thereafter until July, for the rates on coal, etc., was unjustifiable and wrong. As a common carrier it was the duty of the road to give him prompt and full answers. Those having charge of the matter shifted it about, delayed their answers, and when replying, so replied as to show them to be purposely evading the complainant's inquiries. A man perfectly responsible for his engagements as complainant undisputedly is, who proposes to engage in coal or any other business requiring extensive transportation service, has a right to be informed what rates are, promptly and without purchasing or getting the property ready for shipment. The answer of the general freight agent to the effect, that "when the property should be ready for shipment, he would endeavor to give rates" was an abuse of his position toward the public. Business would come to a stand-still, if rates on property by the car-load could not be ascertained until mercantile shippers purchased the property and got it ready for shipment. The answer probably served the purpose for which it was intended - towit-that of evading and putting off a proper inquiry.

It probably is a rule of law that an action for damages will not lie against a carrier for refusal to give rates (assuming that this implies a refusal to transport), unless the property be presented with the request. But mercantile necessity, as well as the convenience of railroads, has long since universally established the practical rule, that rates shall be made known to inquirers in advance of the actual presentation of the property for shipment.

As a preliminary answer the road insisted that, owing to the situation of the land of the complainant, and the narrowness of the company's

right of way in that vicinity, it would be impossible to have a switch and side track for the accommodation of complainant, without great additional cost and expense to the road. After a careful examination of the locality the Board requested an answer upon the merits, reserving the preliminary question.

The road then made answer to the complaint to the effect, that the complainant had no right, in law or equity, to a switch and side track, nor to demand rates, no coal ever having been presented by him for transportation.

A hearing was had at Watertown by Commissioners Kernan and Rogers, at which the road was represented by the officers of the road and A. M. Beardsley, Esq., and the complainant by James A. Ward, Esq.

The facts developed upon the hearing, and by affidavits subsequently received, were, as hereinbefore stated, and as follows:

1. As to the complainant's application for a side track and switch. It has been the practice of the defendant upon its main line, and upon its Carthage, Watertown and Sacketts Harbor branch, to put in at its own expense side tracks and switches for the use of said Marcy in his coal business, or for the use of manufacturers, hay shippers, etc. Under these circumstances there is no doubt as to the clear right of complainant to either receive coal at the yards of the company, now used exclusively by Marcy, or to have the railroad company provide a trestle, switch and side track for the delivery of coal at some other point upon its tracks, within the city of Watertown, which would be convenient for the business, or to have a switch to his own premises near the corner of Court street. The Board does not deem it proper to insist upon the latter course unless the railroad declines to deliver coal to the complainant at some other convenient point selected by itself, as in the case of Marcy.

While the Board has no doubt of the good faith of Mr. Burdick and there is undisputed evidence of his entire financial responsibility for the business proposed, and while he offers to pay the entire expense of the proposed switch, side track and trestle, yet it would be a most dangerous precedent to establish that any one owning a piece of unimproved property alongside of a railroad can insist upon a switch and side track being constructed thereto, upon the pretense of the owner desiring to go into some business, and without any consultation or agreement with the railroad company as to the mutual convenience to be subserved.

The yard in Watertown now used exclusively by Marcy was selected by the railroad as a convenient and suitable place.

The ground selected by Burdick, the railroad insists, is not suitable or convenient.

After a personal inspection of the premises by Commissioners Kernan and Rogers, and from maps prepared by the Inspector of the Board and the engineer of the railroad company, the conclusion of the Board is that there is no insuperable physical objection to the premises of Mr. Burdick as a coal yard.

That there would be considerable inconvenience to the railroad to be obliged to deliver coal cars to entirely different parts of the city there can be no doubt.

For this reason the Board would not be willing to insist upon this particular spot as a coal yard, except in the event of the railroad refusing some other suitable place.

In the case of the Corning Glass Works against the Fall Brook Coal Company, the Board used the following language:

"The law does not require a railroad to furnish private switches to any one. Whether it furnishes any or not is for the railroad to determine. If, however, in the exercise of its discretion in the matter a railroad determines upon adopting the policy of furnishing private switches, and of affording facilities for their use, it is quite obvious that the rules of law governing carriers apply thereto. These facilities, if granted at all, cannot be allowed to favored shippers only, and refused to others having substantially the same claim thereto, nor can they be used as weapons of punishment or coercion. Whatever a railroad does, whether under legal compulsion, or as a matter of choice and accommodation, must be done for all alike under like circumstances for reasonable compensation, and without unjust discrimination. This rule cannot be questioned. It leads to no such absurd conclusion as that every one would be entitled to a private switch, and that thus utter confusion in their business and serious loss to railroads would result. It is for the railroad to determine to what extent private switches shall be allowed subject, as in every thing else relating to its operation, to the restriction that its charge for service connected therewith shall be reasonable, and that it shall not unjustly discriminate in determining who shall and who shall not have switches."

It is proper to say in explanation that the railroad company had removed the frog of a switch and side track to the Corning Glass Works which had been in use for seventeen years.

The conditions and circumstances there considered were entirely different from these.

The land had been selected and the improvements constructed with the concurrence of the railroad and with the very end in view of connecting therewith a switch.

The opening of a coal yard is quite a different thing from the erection of a mill or factory.

In the latter cases the expenditures for the improvement are a guarantec of good faith in the prosecution of the business.

A great many considerations enter into the selection of the site which do not in that for a coal yard.

The convenience of the railroad, while an important factor, would necessarily be more subordinated to the conditions necessary for a factory than for a coal yard.

Within a given area there would probably be fifty places suitable for a coal yard to one suitable for a factory.

There is not, as the road asserts, room for a side track for storage of cars at the point in question. This, however, is not necessary. As shown by the affidavit of Jay W. Butterfield, the road now has branches and side tracks above High street sufficient to accommodate all the coal used in Watertown, which is at present sold by Marcy alone. As he requires it, cars are taken therefrom to the yards of the company used by him. Were the complainant to engage in the business no more coal would be needed for Watertown and it could be handled for him as it is for Marcy.

2. Many citizens of Watertown ask the Board to investigate the coal business, alleging that Watertown is unjustly discriminated against. The facts developed on the hearing are these: About 1872, while a conductor upon the Utica and Black River road, said Marcy began the

coal business at Watertown. Upon his sign and bill-heads he advertised as "agent" while handling the coal of the Delaware, Lackawanna and Western and the Delaware and Hudson Canal Company. This was an oversight, as he testifies. He was not, in fact, an agent for any one; but this fact, perhaps, aided in bringing about the retirement of the four competitors who were in business when he started. For some years he has had the sole sale at Watertown of all the coal of these companies coming over the lines of the Utica and Black River railroad and the Rome, Watertown and Ogdensburgh. As he desires it, coal is shifted from one road to the other, and after transfer is taken to his yards.

The coal companies pay the freight of $1.40 per ton from either Rome, Utica, or Syracuse, which rate is agreed upon and maintained between the two roads. The coal companies have refused to sell coal to the complainant, as shown by the following letters:

COMPLAINANT'S EXHIBIT "G."

SCRANTON, PA., December 5, 1885.

Hon. NELSON BURDICK, Watertown, N. Y. : DEAR SIR- Your letter duly received. Our arrangements for the sale of our coal as, perhaps, you are aware - for your town, etc., is in the hands of Mr. Marcy, supplied by our Utica agency and has so far been satisfactory-may I trust, to the public.

I am truly, etc.,
JOS. J. ALBRIGHT,

COMPLAINANT'S EXHIBIT "H.”

Mr. NELSON BURDICK, Watertown, N. Y.:

G. S., Agt.

NEW YORK, December 3, 1885.

DEAR SIR-In reply to your favor of 30th November, I would say that we do not sell coal at Sacketts Harbor, except as the same may be delivered by vessel from Oswego, in which case we make price at Oswego. As to whether you can buy coal of this company at Utica or Syracuse, depends upon conditions which a categorical answer would not express. We are not always able to supply all the coal required. Under such circumstances old customers have preference. This is the case at present. As to price, that depends upon quantity and time of delivery to some extent.

Yours truly,
E. R. HOLDEN.

The evidence further shows it to be their policy to sell to Marcy alone, for Watertown consumption.

The retail price of coal at Watertown is raised and lowered by Marcy to correspond with the changes made by the coal companies in their prices. Thus, by the combined action of the coal companies in refusing to sell, and of the railroads in refusing rates or facilities to any one except Marcy, a complete monopoly of the coal trade has been established at Watertown; the railroads have secured a rate of freight subject to no dispute or question, and Marcy enjoys a business almost entirely free from disturbing competitive influences.

These facts serve to fully explain the unwillingness of the Utica and Black River road to give to the complainant, Burdick, the same rates and facilities as are offered to Marcy, or to give him any satisfactory answers to his inquiries. The situation at Watertown is one which neither the coal companies, the railroads nor Marcy desire to be dis