show the circumstances and conditions under which the railroad had charged plaintiff a specified rate for transportation, and alleges in the language of the Act that for like services, under substantially similar circumstances and conditions, the defendant had charged another a less rate, without alleging facts which show the services to be alike, or rendered under substantially similar circumstances and conditions, or that plaintiff was charged more than the schedule rate.- Kinnavey v. Terminal R. Assn., 81 Fed. 802.

In an action by a shipper against a carrier under Interst. Com. Act, § 2, the petition to recover was held insufficient where it failed to allege either that the carrier had no published schedule of rates, or that it charged plaintiff in excess of rates fixed thereby, for the schedule established, filed and published by the carrier pursuant to law is prima facie the criterion of the reasonableness of a rate complained of.- Kinnavey v. Terminal R. Assn., 81 Fed. 802.

A declaration under a penal statute creating an offense known to the common law, and giving an action, should in some way show a violation of the statute, but it is not necessary to allege an offense in the terms of the statute.- People v. Bartow, 6 Cow. (N. Y.) 290.

To enable a shipper to recover against a railroad company under a statute, where the railroad would not otherwise be liable, the liability must in the complaint be averred to be under the statute.- Hempstead v. N. Y. C. R. Co., 28 Barb. (N. Y.) 485.

[8] Trial.

Where plaintiff has jumbled together a cause of action at common law and one under the transportation act, he cannot, under the South Carolina Code of Civil Procedure, be compelled to elect upon which he will go to trial.-Rountree v. Atlantic C. L. R. Co., 73 S. C. 268, 53 S. E. 424.

ARTICLE III.

Provisions Relating to the Powers of the Commissions in Respect to Common Carriers, Railroads and Street Railroads.

SECTION 45. General powers and duties of commissions in respect to common carriers, railroads and street railroads.

46. Reports of common carriers, railroad corporations and street railroad corporations.

47. Investigation of accidents.

48. Investigations by commission.

SECTION 49. Rates and service to be fixed by the commissions.

50. Power of commissions to order repairs or changes.

51. Power of commissions to order changes in time schedules; running of additional cars and trains.

52. Uniform system of accounts; access to accounts, et cetera *;

forfeitures.

53. Franchises and privileges.

54. Transfer of franchises or stocks.

55. Approval of issues of stock, bonds and other forms of indebted

ness.

56. Forfeiture; penalties.

57. Summary proceedings.

58. Penalties for other than common carriers.

59. Action to recover penalties or forfeitures.

60. Duties of commissions as to interstate traffic.

§ 45. General powers and duties of commissions in respect to common carriers, railroads and street railroads; [power to administer oaths; power to recommend new legislation].-1. Each commission and each commissioner shall have power and authority to administer oaths, in all parts of the state, to witnesses summoned to testify in any inquiry, investigation, hearing or proceeding; and also to administer oaths in all parts of the state whenever the exercise of such power is incidentally necessary or proper to enable the commission or a commissioner to perform a duty or to exercise a power. 2. Each commission shall have the general supervision of all common carriers, railroads, street railroads, railroad corporations and street railroad corporations within its jurisdiction as hereinbefore defined, and shall have power to and shall examine the same and keep informed as to their general condition, their capitalization, their franchises and the manner in which their lines, owned, leased, controlled or operated, are managed, conducted and operated, not only with respect to the adequacy, security and accommodation afforded by their service, but also with respect to their compliance with all provisions of law, orders of the commission and charter requirements.

3. Each commission and each commissioner shall have power to examine all books, contracts, records, documents and papers of any person or corporation subject to its supervision, and by subpoena duces tecum to compel production thereof. In lieu of requiring production of originals by subpoena duces tecum, the

Headnote of section as enacted (post, § 52) has the abbreviation "etc." instead of words et cetera.'

tWords in brackets not a part of section heading as enacted.-ED.

commission or any commissioner may require sworn copies of any such books, records, contracts, documents and papers or parts thereof to be filed with it.

4. Either commission shall conduct a hearing and take testimony as to the advisability of any proposed change of law relating to any common carrier, railroad corporation or street railroad corporation, if requested to do so by the legislature, by the senate or assembly committee on railroads, or by the governor, and may conduct such a hearing, when requested to do so, by any person or corporation, and shall report its conclusions to the officer, body, person or corporation at whose request the hearing was held. The commission may also recommend the enactment of such legislation, with respect to any matter within its jurisdiction, as it deems wise or necessary in the public interest, and may draft or cause to be drafted such bills or acts as it may deem necessary or proper to enact into law the legislation recommended by it.

General powers of former Board of Railroad Commissioners,— see N. Y. R. R. L., § 157.

Each Commission shall possess all powers necessary or proper to enable it to carry out the purposes of this Act,- see ante, § 4. Power of Commission to conduct investigations,- see also ante, § 11. Proceedings of Commission deemed public records, see ante, § 16. Power of Commission to subpoena witnesses, take testimony and administer oaths,- see also ante, §§ 19, 20, post, § 66, subd. 1. Power of Commission to examine or compel production of books, papers, etc.,- see also ante, §§ 19, 20, post, §§ 55, 66, subd. 9, § 69. Investigations by the Commission, generally,- see ante, § 20, post, §§ 47, 48, 66, 71, 72.

Power of Commission to require special reports and information to be furnished by carrier,- see post, § 46.

Access of Commission to accounts, records, etc., kept by corporations subject to this Act.- see also post, §§ 52, 66, subd. 9.

Power of Commission to hold investigations to determine whether to approve issuance of stocks, bonds, and other forms of indebtedness, see post, § 55.

Parallel provisions as to power of Commissions over gas and electrical corporations, see post, § 66, subd. 5.

General power of the state to regulate property devoted to public use,

-see ante, § 1, notes [1]-[22].

General rules of statutory construction,- see ante, § 1, notes [23][40].

Who are common carriers,- see ante, § 2, notes [2]-[7].

What constitutes a railroad or street railroad,- see ante, § 2, ncte [8]. Effect of receivership on power to regulate,— see ante, § 2, note [15]. Effect of vacancies on power of commission,- see ante, § 4, note [5]. Validity of commission plan of regulation,- see ante, § 4, note [14]. Where hearings will be held,-see ante, § 19, note [1].

Compelling production of books and papers,- see ante, § 19, notes [3]-[6].

Punishment of witnesses for contempt,- see ante, § 19, notes [7]-[12]. Commission not bound by technical rules of procedure,- see ante, § 20, note [1].

Powers of former Board of Rapid Transit Railroad Commissioners.see post, § 83, note [2].

In the course of an investigation by the Interstate Commerce Commission, subjects beyond the range of congressional regulation may be inquired into if such inquiry is necessary to a full comprehension of subjects concerning which Congress has power to legislate.-Interstate Commerce Commission v. Harriman, 157 Fed. 432.

Where one railroad company purchases large blocks of the stock of other railroad corporations, such acquisition is a matter which the Interstate Commerce Commission may investigate to determine whether the acts in question tend to defeat the purposes of the Interstate Commerce Act.-Interstate Commerce Commission v. Harriman, 157 Fed. 432.

The Interstate Commerce Commission will, in its discretion, make an investigation into abuses which it concededly has no power to correct, to the end that the need for remedial legislation may be demonstrated and emphasized.— Matter of Alleged Unlawful Discrimination, 11 Inters. Com. R. 587.

The Interstate Commerce Commission will recommend an adjustment of rates which seems the most fair to it, after investigation, even though it has not power to order such adjustment.- Charlotte Assn. v. So. R. Co., 11 Inters. Com. R. 108.

The Interstate Commerce Commission will, when it seems of public advantage, investigate and make a public statement as to a situation, even though it has no power to remedy the abuses or do more than advise and suggest modes of adjustment.- The Canadian Pac. Pass. Differentials, 8 Inters. Com. R. 71.

Even though the carriers have it in their power to evade a corrective order of the Interstate Commerce Commission, it is the duty of the latter to condemn the rates, etc., found unreasonable and to indicate the basis

on which they should be readjusted.- Chamber of Commerce v. Ch. M. & P. R. Co., 7 Inters. Com. R. 481.

The function performed by a commission in undertaking an investigation, where directed to make investigations and make an annual report for transmission to the legislature, is strictly analogous to that of a legislative committee of inquiry or investigation.- People ex rel. Bender v. Milliken, 185 N. Y. 35, 77 N. E. 872.

A writ of prohibition will not lie to restrain an investigation by an administrative commission.- People ex rel. Bender v. Milliken, 185 N. Y. 35, 77 N. E. 872.

A witness on an examination before a legislative committee has no right to be attended by counsel.- People ex rel. McDonald v. Keeler, 99 N. Y. 463, 2 N. E. 615.

"It is understood that under the present Public Service Commission Law the Commission has the right to issue certain orders, which orders may or may not be obeyed by the parties to whom they are issued. In the event of disobedience it then becomes the duty of the Commission to take the necessary steps judicially to compel obedience to such orders. Provision has been made by the law for the conduct of all investigations which may result in an order, in such manner as to afford the parties in interest all of the advantages of a hearing; that is, all of his rights, as I understand it, which they would have before any judicial tribunal in respect either of cross-examining witnesses or of calling witnesses in their own behalf, of justifying themselves in refusing to obey or in asking for modifications of the order. This particular investigation, [of the Interborough-Metropolitan Co. and the Brooklyn Rapid Transit Co.] however, is, as I understand it, not of that class, but is made under the general terms of the statute for the purpose of enabling the Commission to inform itself, and in all respects familiarize itself with the actual status quo, that is to say, with the problem with which it has to deal, and to that end not only to call witnesses with regard to the physical condition and operation of the railroad properties, but to call witnesses with regard to the financial condition of the several corporations, either lessor or lessee, and also to send an accountant or accountants, counsel or counsels in to the offices of the several companies for the purpose of making a thorough investigation and examination of the books of the companies." - Extract from opening address of William M. Ivins, special counsel to the N. Y. Public Service Commission for the First District to conduct the investigation of the Interborough-Metropolitan Co. and the Brooklyn. Rapid Transit Co.