appliance, or of suitable equipment and facilities, is a question primarily for the legislature, which, within constitutional limits, has a right to define the obligations of the corporation. But the questions which thus arise are of extraordinary number and variety; they call for investigation and the consideration of a multitude of details. To-day the legislatures of our states are flooded with special bills aimed at this or that grievance in management. But the legislatures sit only a portion of the year and cannot deal with these matters satisfactorily. . . . . Another question is: What is the relation of the courts to such a commission? .... It is not the proper function of the courts to fix rates or to make orders as to the facilities which should be supplied, or the safety appliances which should be used. This is the function of the legislature or of the administrative board which it may create. It would be most unfortunate if, with the necessary extension of state supervision of public service, our courts should have cast upon them such burdens of administration.

As early as 1882 the United Railroad Stockyards Company at Cincinnati had contracted with the Cincinnati & Baltimore Railroad Company, whereby its stockyards became the sole depot and place of receipt and delivery of live stock carried by the road to Cincinnati. McCoy, a citizen of Kentucky, owned a stockyard on the line of this railroad in Hamilton County, Ohio. The railroad refused to receive stock from McCoy except through the United Railroad Stockyards. McCoy sued the railroad in the United States Circuit Court for the Southern District of Ohio at Cincinnati, praying injunction to restrain the railroad from discriminating against him and to compel it to receive and make deliveries of stock to him in the same manner and on as favorable terms as to his competitor, The United Railroad Stockyards Company.

The case came on for hearing on motion for preliminary injunction before Circuit Judge John Baxter. The defendant challenged the right of the court to grant such relief. Judge Baxter took jurisdiction as a court of equity and granted the injunction, saying the acceptance by the railroad of its charter created a quasi-public trust giving the public an interest in its use as a railroad which was subject to control by the public. Judge Baxter says:

But how and by whom can this quasi-public trust be administered? He answered the question by saying that the duty of enforcing the execution of this quasi-public trust, in the absence of some statute providing another and different remedy, devolved upon the courts of equity; that by such a contract and arrangement between one stockyard and the railroad,

Judge Baxter continues:

They can suppress competition and establish and maintain a monopoly in that particular department of trade, and subject the public to the payment of undue and unreasonable exactions for the services rendered. .... The power to prevent such an abuse is, as we have already affirmed, vested in the Courts of Equity until the legislature shall provide another and different remedy."

Only five years elapsed before Congress did provide another and different remedy by creating the Interstate Commerce Commission.

In 1880 the Supreme Court of Ohio exercised commission jurisdiction in compelling The Columbus Telephone Company to receive dispatches from and for all telegraph lines, without favor or discrimination; it was no defense for that company to say that it was bound by stipulations of its contract with the Bell Telephone Company to employ the Western Union Telegraph Company and no other. . . .

Again in 1885 the same court held in Scofield vs. Railway Co. that all railroad companies organized under the constitution of Ohio were, as common carriers, subject to judicial control to prevent abuse of their powers; and there could be no discrimination or favoritism shown any larger shipper, as in that case, The Standard Oil Company.

The first commission designed to regulate railroads and other common carriers in Ohio, was created April 2, 1906. It consisted of three commissioners appointed by the Governor. It provided that there should never be more than two commissioners members of the same political party; that one should have a general knowledge of railroad law; and each of the others should have a general understanding of matters relating to railroad transportation. Salary $5000 to each commissioner.

The term "railroad" included express companies, but did not include the sleeping car business. This commission known as "The Railroad Commission of Ohio" had broad powers but the act expressly provided as follows:

This act shall not apply to street and electric railroads engaged solely in the transportation of passengers within the limits of cities, nor other private railroads not doing business as common carriers.

The gist of the act and the main duty of the commission was to secure from every railroad reasonably adequate service and facili

'13 Fed. R. 3.

ties and charges that should be reasonable and just; and prohibiting every unjust and unreasonable charge for such service; it provided for publication of schedules of rates; made it unlawful for a railroad to charge more than the scheduled rates; provided for method of investigation of fares and rates and their regulation, and that if found unreasonable or unjustly discriminatory, or the service inadequate, the commission had power to fix and substitute just and reasonable rates. The commission could investigate such matters either upon complaint or of its own motion and the railroad could likewise complain and be heard. It had power to summon witnesses and administer oaths; was required to keep full record of its proceedings. All regulations prescribed by the commission were made prima facie reasonable unless suspended or found otherwise in an action that might be brought by any railroad, or other party in interest in the Common Pleas Court within 60 days after the order, to set the same aside on the ground that the regulation or the rates and fares, etc., were unlawful or unreasonable; if on the trial the evidence was different from that offered before the commission, it should be reported to the commission who might then modify or rescind its order; but if it did not, either party had a right to appeal within 60 days to the higher court; the burden of proof was upon the party alleging that the order of the commission was unlawful or unreasonable. Witnesses were not to be excused on the ground that their evidence might tend to incriminate. The commission had the right to inquire into the general management of the business of railroads and compel reports. The commission had the right to inspect books and to examine officers under oath; and to require the production of books, papers and copies of contracts, and lists of passes and mileage books issued free; railroads were required to make full report every year of their affairs. Any sort of discrimination in rates was made unlawful, whether by preference, rebate or otherwise, and guilt punished by heavy penalties. Investigation of cases of railroad accidents attended with loss of life was enjoined upon the commission. Substantial compliance with the requirements of the act was declared to be sufficient to give effect to rules and orders without being technical. The act abolished the officer of commissioner

of railroads and telegraphs, whose duties had been largely to gather and report statistics.

In May 1911, an act' was passed changing the name of the Railroad Commission of Ohio to the " Public Service Commission of Ohio"; in addition to the powers and jurisdiction conferred upon the Railroad Commission, further powers were added. It defined telegraph companies, telephone companies, electric light companies, artificial gas companies, natural gas companies, pipe line companies, water works companies, heating & cooling companies, messenger companies, signalling companies, street railroad companies and suburban railroad companies; and declared them all to be public utilities within the jurisdiction of the public service commission. It provided for valuation of the properties of all public utilities and fixing of reasonable rates for service. The act conferred upon municipalities the power to require all public utilities to make additions or extensions to its plant within municipalities, reasonable and necessary in the interest of the public, but that such ordinances of council should be subject to review by the Public Service Commission. It also committed to the commission, among other broad powers, authority to control the issue of stocks, bonds, etc., payable more than twelve months after date, by a public utility or railroad. The commission might authorize the issue of such securities; proceedings were provided for obtaining such authority; for hearing in such matters; and securities issued without such authority should be void. Annual reports to the governor of its proceedings were required. The act contained the following:

This act shall not apply to any rate, fare or regulation now or hereafter prescribed by any municipal corporation granting a right, permission or authority to use its streets, alleys, avenues or public places for street railway or street railroad purposes.*

In April 1913, there was created "The Public Utilities Commission of Ohio," consisting of three members appointed by the governor to take the place of, and with all the powers of, The Public Service Commission; salary $6000 each for a term of six years. Action by majority of the board when in session shall be deemed the act of the commission. For the purpose of ascer

taining reasonableness and justice of rates and charges for service this new commission was required to investigate and value the property of every public utility or railroad in the state according to detailed rules and methods. . . . . Notice was required to be given to the utility before hearings, which are open to the public. Uniform system of accounts was established for use by public utilities and railroads. The commission was required to make findings on all matters bearing on the value of utility properties; and such findings should be the subject of review by the Supreme Court of Ohio in the same manner as other orders of the commission. It was provided that final orders of the commission should be reversed by the Supreme Court on petition in error, providing the court is of opinion, on considering the record, that the order of the commission was unlawful and unreasonable. No other court than the Supreme Court was given any power to review or suspend any order of the commission.

Though not under direct tutelage of the commission as to details of utility deportment, nevertheless the conduct of Urban Street Railways is reasonably restrained by municipal regulation and direct action of the General assembly; as for example in matter of the kind of rails that should be used; obligation to provide fenders on all cars, and other safety appliances; that watchmen should be maintained at certain crossings; that illuminated signs should be displayed at night showing the route of each car; that minors should not be permitted to jump on and off cars in motion; and, formerly, that open cars should be run in summer; that cars should be run at certain intervals of time after midnight until morning; that cars should have vestibules enclosed for protection of motormen; numbering of street car routes and the display of such numbers on all cars; that no cars should be stopped over a cross walk; that conductors should not allow ladies or children to enter or leave a car while in motion; that conductors and motormen should keep vigilant watch for all teams, carriages, persons on foot either on the track or moving towards it; that conductors shall distinctly announce to passengers the names of streets, avenues, railroads or depots as they are approached by the cars; that cars should be provided with headlights after sunset; that cars of no line shall stand on the street more than three minutes except by permission of the Director of