ever, both companies are desirous of furnishing the service for a charge of ten cents, and the only question to be determined is the proper division of the charge between them. The statute involved is as follows: "Tolls-Division. All long distance telephone rates in this state shall be based on air line mileage between points. Of any toll charge fifteen per cent shall go to the company where call originated and ten per cent to the company where message terminated, and the balance of such charge shall be divided between the different companies over whose lines and through whose stations it passed, pro rata, according to the number of units involved in delivering the message, after taking out a sufficient amount for clearing such message through the office of the state railway commission, in case the commission is called upon to make such clearing. Each circuit mile of trunk or toll line shall be taken and considered as a unit, and each switching station where a message is switched through to another company shall be considered as having five units in making the division of toll charges for any message passing through its station. Telephone companies may by mutual consent clear their toll business or have the same done by a clearing house agreed upon; but in case of a failure to agree, the company where the messages originate and the company where the messages destinate shall report to the railway commission each message, stating the origination, destination and exact number of miles of line of each company over which such message was transmitted; and then it shall be the duty of the commission to divide the amount of the charges for the different messages according to the provisions herein made and collect and deliver to each company its just share, after taking out a sufficient amount for the actual expense of making such a clearing as herein stated." (Sec. 7416, Rev. Stat. of 1913.) It is apparent from the situation at Gandy that, strictly speaking, the respondent does not originate or terminate any of the toll messages in question because the respondent has no lines or individual telephone instruments. The messages originate or terminate upon lines owned by its switching subscribers, and if the statute were to be strictly applied, the ten and fifteen per cent divisions described in the statute would go to the owners of these lines. For example, the ten-cent charge for a message from a switching subscriber of the Gandy exchange to a switching subscriber of the Stapleton exchange would be divided as follows: 15 per cent to the Gandy subscriber, 10 per cent to the Stapleton subscriber, 27.75 per cent to the respondent, and 47.25 per cent to the complainant. Hair-splitting computations of this character are manifestly not within the intent of the statute. The makers of the law undoubtedly had in mind the practice of the telephone companies in designating long distance messages as those which take place between the originating and destinating switchboards, and considered that the local rate, whether for switching or for other service, took care of the compensation due on account of the use made of local lines. The division of the toll charges will, therefore, be made on the basis of the switchboards involved and the connecting toll line. The statute cannot be held to govern as to the division of toll charges in cases where it results in a confiscation of the property of a protesting company. The constitutional guarantee against taking property without due process of law supersedes the statute in such cases, and it then devolves upon the Commission under its general regulatory powers to determine the division. Respondent alleges that the complainant "could well afford to offer a division of fees which would be remunerative with defendant, or at least the twenty-five per cent which he allows to the Arnold telephone exchange." It is to be inferred, therefore, that respondent would be satisfied with twenty-five per cent of the revenues. An equitable division, however, would be to allocate to the complainant so much of the charge as is necessary to maintain the toll line and pay a fair return upon its cost, and divide the remainder between the parties in equal proportions. The loss, if any, occurs in operating the service, and the parties contribute equally to this work. The record shows that the average cost of maintaining the toll line is $10 per annum, and that a return of seven per cent per annum on the cost allocated to the Stapleton-Gandy toll line of $70 would be approximately $5.00 per annum. To this should be added about $10 per year for deferred depreciation, making a total for maintenance, return and depreciation of $25 per annum. Deducting this $25 from the total annual revenues of $226 leaves approximately $200 for division between the the parties, or for all purposes, fifty-five per cent of the revenues to the complainant and forty-five per cent to the respondent, which division the Commission finds to be reasonable and proper in the premises. The toll charge, however, should be fifteen cents if it is not paid during the month in which it is incurred. The present charge does not cover the cost of furnishing the service, and the loss should not be augmented by carelessness in paying. ORDER IT IS THEREFORE ORDERED by the Nebraska State Railway Commission that the division of revenues derived by either or both the TriCounty Telephone Company and the Gandy Switchboard Company, parties herein, from toll telephone messages transmitted over the toll line connecting the exchanges of said parties located in Stapleton and Gandy, Nebraska, be made upon a basis of fifty-five per cent of each and every of such charges to the Tri-County Telephone Campany, and forty-five per cent of each and every of said charges' to the Gandy Switchboard Company. IT IS FURTHER ORDERED that the charge for toll service between the switchboards of the above named parties located in Stapleton and Gandy, Nebraska, be fifteen cents per message, subject to a discount of five cents per message if paid during the calendar month in which the charge is incurred. Made and entered at Lincoln, Nebraska, this 24th day of July, 1918. Attest: D. M. Taylor, Acting Secretary. (SEAL) FORMAL COMPLAINT NO. 371 The Tri-County Telephone Co., Complainant, V. Gandy Switchboard Co., Respondent. ORDER TO RESTORE AND MAINTAIN PHYSICAL CONNECTION WILSON, Commissioner: This matter came on for hearing the 24th day of September, 1918, at 10 o'clock a. m. of said day, at the offices of the Commission in Lincoln, Nebraska, upon the order entered herein on September 18, 1918, to require the complainant to show cause why an order should not be made requiring it to forthwith connect its long distance telehone line or lines with the exchange or switchboard of the respondent, and the said TriCounty Telephone Company not appearing and not showing any cause why the proposed order should not be made against it, default is entered against it, the said Tri-County Telephone Company. Complainant advises the Commission by letter that it has connected its long distance telephone line with respondent's switchboard in Gandy, Nebraska, but that it intends to sever the same on October 23, 1918, at the village limits of Gandy, Nebraska, and to remove that portion of the line within said limits, offering, however, to make and maintain the connection of said line wth the respondent's swtchboard if the respondent will build a telephone line from its exchange to the village limits so as to connect with the complainant's line. No good reason is assigned or shown by the complainant for this contemplated action on its part. The Commission, therefore, finds that it is just and reasonable to require the Tri-County Telephone Company to make and maintain a physical connection of its long distance telephone line or lines with the switchboard of the Gandy Switchboard Company, and to keep the same in good working order without interruption, unavoidable accident or damage excepted. In case of accident or damage the Commission finds that twenty-four hours is a reasonable time ordinarily within which to repair the same. ORDER IT IS THEREFORE ORDERED by the Nebraska State Railway Commission that the Tri-County Telephone Company of Stapleton, Nebraska, be and the sale is required to make and maintain physical connection by means of lephone ne or lines between its switchboard located in Stapleton, Nel aska, a 1 the switchboard of the Gandy Switchboard Company located in Gan y, Nebraska, forthwith within twenty-four hours of the receipt of this no ce by mail, and to furnish long distance or toll telephone service over id line or lines continuously in the future without interruption for more than twenty-four hours at any one time, and then only when occasioned by accident or damage to the property involved. In case of such destruction of the facilities involved as cannot be repaired within the time given such time will be extended upon duc showing to the Commission tat the repairs cannot be made within the allotted time, the intention hereof being to maintain long distance tele phone service between said exchanges without interruption, save for the time necessary to make repairs. Made and entered at Lincoln, Nebraska, this 5th day of October, 1918. NEBRASKA STATE RAILWAY COMMISSION, Attest: T. A. Browne, Secretary. (SEAL) T. L. HALL, Chairman. ORDERS OF INFORMAL COMPLAINTS INFORMAL COMPLAINT NO. 4671 Miss L. T. Holland, Complainant, V. Missouri Pacific Railway Company, Defend ant. FINDING AND ORDER HALL, Commissioner: The complainant herein acquired two hundred sixty-five acres of farm and pasture land in Sections 17 and 18, Township 8, Range 14, in Otoe county, Nebraska, from her family estate in 1903. The farm house, barns and feed lots are located at about the center of the east side of the west half of the southwest quarter of Section 17. A ditch skirted with timber runs north along the west side the full length of said eighty. Another ditch or swale extends from a point near the farm house in a northwesterly direction and joins the rain ditch above referred to a little north of the center of said eighty. In about 1856 there was a private farm road established from the house and barn down and along the swale and led to the pasture and timber land along the main ditch and extended across said ditch to the main part of the farm land, which lies in the southeast corner of Section 18. This road became the established driveway for all farm traffic between the house and barns and the western portion of the farm, and fences and fields were arranged accordingly. In about 1883 the Missouri Pacific Railway Company constructed its line of railroad through the particular eighty referred to. Said road, entering about the center of the south line of said eighty, runs through the entire length and goes out at its northeast corner, thereby dividing the farm so that about one-third, upon which the house and farm buildings are located, lies on the east side of said railroad and about twothirds, which includes the rough pasture land, on the west side. The railroad crosses over the swale and private road just east of where the swale enters the main ditch. There being a heavy fill at this point, the railroad company constructed a pile bridge over the roadway, thereby providing a sub-crossing. From time to time as the piling had to be replaced new piles were driven on the inside of the subway, thereby narrowing the driveway until at the present time the subway is 9 feet 3 inches wide and 9 feet 7 inches high. The defendant proposed to remove said pile bridge and is preparing to place in lieu thereof a cement tube through the grade of the railroad 4 feet by 6 feet. The complainant alleges that this will not only close the crossing for all team and automobile traffic but will reduce it to a size that will be impracticable as a stock runway. The defendant has already, preparatory to the removal of the pile bridge, constructed a grade crossing a short distance south of the bridge and placed in the line of the right-of-way fences two large sliding gates 20 feet long and made of very heavy lumber, which according to the undisputed testimony will require a lift of about 200 pounds to open them. The complainant lives upon said farm and is conducting general diversified farming and stock growing. Corn, wheat, oats and hay are grown upon the farm land and herds of cattle, horses, hogs and sheep are pastured on a rough portion of the farm which is not fit for general farming and lies on the west side of the railroad along and adjacent to the ditch above referred to. The complainant is a breeder of thoroughbred Shorthorn cattle and runs a large herd upon the farm. She owns twelve or fifteen head of horses and a proportional number of hogs and sheep. The pasture land lying on the west side of the railroad and the barns on the east make it necessary to have a daily passage from the pasture lands to the barn and barn lots. The complainant now owns and uses four hay racks especially constructed so that they may be driven through said subway. The subway is not only used for the passage of stock of all kinds, but hay, corn, wheat and oats and wood are hauled through the sub-crossing. In fact, it is the one crossing on said farm which is in constant use. Yale C. Holland, attorney for defendant, made the following objection to the jurisdiction of the Commission over the matter: "The defendant company objects to the assumption of jurisdiction in the premises by the Railway Commission for the reason that the matters involved are matters of private right, governed solely by statute and common law of the State of Nebraska and not within the jurisdiction of the Commission." The Commission is of the opinion that it has full and complete jurisdiction over the matter complained of, through the broad powers conferred upon it by the constitution under which it is organized. The constitution provides that "The powers and duties of such Commission shall include the regulation of rates, service and general control of common carriers, Service is the thing that the carrier has to sell. The rates to be paid by the public is the price paid for the service. It is impossible to consider the adequacy of the service rendered to the public without considering all facilities necessary to render said service. In considering facilities the Commission must keep in mind the comfort, safety and convenience of the traveling public. It must also keep in mind that ade |