such judicial sale or by grant from the purchasers at such sale . and such persons as associate with them, not less than five in number, shall become a corporation pacity to maintain and operate such railroads," etc.

with ca

These sections makes it plain that an individual may purchase a railroad at a judicial sale, either for the purpose of taking in others with him, not less than five in all, and organizing themselves as a common carrier to operate it, or he may sell it, or any portion of it, to a corporation already so organized, or he may junk it, or any part thereof; but he has no right to operate it himself or to sell it to a mining, manufacturing or quarrying company to be operated as an industrial road.

The operation, such as it is, of the portion of this road by the defendant, is wholly in violation of law, whether it is done under the guise of an industrial road, or as a common carrier. It is running a destructive instrument across public highways, interurban lines, and railroad tracks, at grade, without schedule, which is dangerous to the life and limb of the traveling public.

It does not follow that if proper steps were taken to authorize the operation of this portion as a common carrier it must necessarily carry both freight and passengers. Unless the traffic will warrant, that portion of the service might be abandoned. Neither does it follow that it would be necessary to operate the entire line; but if proper steps are taken to incorporate a company, such as is authorized to operate a common carrier, whatever portion of the road is operated must be operated as such and serve the entire public of the territory through which it passes.

The finding of the Commission, therefore, is that unless such steps are taken as will authorize the operation of this line as a common carrier, it must cease to be operated at all. No final erder will be entered at this time, but the matter will be referred to the attorney general for such legal steps as he may desire to take, and the complaint continued for further order.

Note. In Townsend v. Walters, No. 1103, a proceeding with reference to the operation of the other portion of the road, growing out of a similar state of facts, similar findings were made.

P.U.R.1917E.

The permission of the Oregon Commission is not required for the mere alteration or improvement of a highway crossing over a railroad track.

[April 18, 1917.]

APPLICATION by the County Court of Marion County to alter and improve a highway over the tracks of the Southern Pacific Company; dismissed.

By the Commission: Application by the county court of Marion county under the provisions of chapter 275 of the General Laws of Oregon for the year 1913, for authority to construct a highway over and across the tracks of the Southern Pacific Company at grade at a point approximately 1 mile north of McKee Station on the Woodburn-Springfield branch of that

company.

Following the statutory procedure, notice of the time and place of investigation and hearing was given to the county court and the railroad company, and pursuant thereto a hearing was. held in Woodburn, Oregon, on April 12, 1917. The Commission has personally inspected the crossing.

Appearances: W. H. Goulet, County Commissioner for the County Court of Marion County; Paul P. Farrens, Attorney for Southern Pacific Company.

The highway involved has been open and generally used by the public for a period in excess of thirty-five years, and the crossing here under consideration has also been used generally by the public for many years. The matter was brought before the Commission by the county court under the belief that, in order to widen and improve the crossing, it was necessary, to obtain the permission of this Commission.

The statute under which this proceeding is conducted contemplates that permission shall be obtained before a road is constructed over and across a railroad at grade, or conversely, a

railroad over and across a highway. This statute has been construed by the Commission to have reference to public highways as distinguished from a private way, and while it may be true this road may never have been dedicated to the public use and formally accepted by the county court, nevertheless it has been a free and open highway, used generally by the public for many, many years, and, since the crossing is constructed, a mere alteration or improvement of it requires no permission from the Commission.

It follows that the application must be dismissed.

Note.-Crossings: jurisdiction of Commission.

The Wisconsin Railroad Commission has power to order the construction of a viaduct across the tracks of a railroad company. Henry v. La Crosse, - Wis., 162 N. W. 174 (1917).

In Re New Haven (Conn.) Docket No. 2058, Oct. 20, 1916, the Commission said that it is without authority under the statutes to approve the construction by a steam railroad company of a commercial or industrial sidetrack necessitating the crossing at grade of street railway tracks.

WASHINGTON SUPREME COURT.

STATE EX REL. NORTHERN PACIFIC RAILWAY COMPANY et al.

1. An order requiring the establishment of through rates is not rendered so vague and uncertain as to be incapable of enforcement by failure to state what the rates are to be or whether they are to apply to carload lots or less or both; especially where, by lack of time, it will be presumed that the order has been complied with.

Appeal and review — Findings — Evidence to support.

2. Error cannot be predicated on failure of a Commission to find that a through rate would divert the grain moving from one railroad to another, where the general freight agent of the complaining railroad testifies that the tariff can be so framed as to prevent such a result.

Appeal and review — Findings — Sufficiency of evidence — Support. 3. Findings of a Commission as to public necessity cannot be said to be without support of evidence merely because members of a single firm testify in favor thereof.

Rates — Jurisdiction of Commission – Milling in transit.

4. It is within the power of the Washington Commission to order the establishment of a through rate on grain, subject to a milling in transit privilege that is reasonable and nondiscriminatory.

Constitutional law — Due process — Joint rates – Milling in transit. 5. An order of a Public Service Commission fixing a through rate with milling in transit privilege, in order to remove discrimination, does not take the property of a railroad company without due process of law. Constitutional law

crimination.

·Due process – Milling in transit privilege

-Dis

6. It is not an abuse of police power to order a milling in transit privilege in connection with a through rate, where a similar privilege has been granted by the railroads at another point, resulting in public discrimination.

[March 24, 1917.]

DEPARTMENT 2. Appeal from a decree of the Superior Court of Thurston County, D. F. Wright, Judge, affirming an order of the Public Service Commission requiring relators to establish a joint through freight rate with milling in transit privilege; affirmed.

Appearances: A. C. Spencer, of Portland, Oregon, L. B. da Ponte, of Tacoma, Frank C. Owings, of Olympia, and John F. Reilly, of Portland, Oregon, for appellants; W. V. Tanner, Attorney General, Scott Z. Henderson, Assistant Attorney General, B. O. Graham, of Spokane, and C. E. Arney, Jr., of Olympia, for respondents.

Holcomb, J., delivered the opinion of the court:

Upon a complaint by Taylor & Kemp, millers at Prosser in this state, to the Public Service Commission, proceedings were had resulting in an order by the Commission requiring these relators to establish a joint through rate from Eastern Washington parts on their line with milling in transit privilege at Prosser. The relators then instituted their action in the superior court for Thurston county to review the proceedings of the Commission.

The court found in substance that the Northern Pacific Railway Company has a line of railroad from Wallula to Puget Sound via North Yalima, and that the Oregon-Washington Railroad &

Navigation Company has a line from Attalia to North Yakima, which approximately parallels the Northern Pacific road. About 50 miles west of Wallula on the Northern Pacific is the town of Prosser, and about the same distance west of Attalia on the Oregon-Washington is the station of North Prosser. At this point the two railroads are about a mile and one half apart. Between the two railroad lines at this point lies the flour mill of Taylor & Kemp, which is distant from the Northern Pacific tracks about one quarter of a mile and from the Oregon-Washington Company's depot 1 mile and a quarter. This mill has been in operation about twenty years, and obtains its wheat for milling purposes in sections of Eastern Washington which are contiguous to both the Northern Pacific and Oregon-Washington railroads. Prior to August, 1912, the grain contiguous to both the Northern Pacific and Oregon-Washington railroads was shipped over these lines to Wallula, where it was turned over to the Northern Pacific for delivery at points on Puget Sound, under a through route and joint rate with milling in transit privileges, to mills along the line, including Taylor & Kemp's mill at Prosser. After the construction of the Oregon-Washington railroad to North Yakima the through route and joint rate hereinbefore referred to was withdrawn. Another through route and joint rate with milling in transit privileges was made, but the point of connection between the two roads was at North Yakima instead of Wallula, so that, in order to obtain the advantages of this rate, all grain which originated east of Wallula on the Oregon-Washington railroad was hauled over that road to North Yakima, and thence over the Northern Pacific road. Grain moving over this route, if milled in transit at the Prosser mill, was unloaded at North Prosser. To handle the grain from the Northern Pacific to Taylor & Kemp's mill costs 20 cent per ton. To haul grain to the same mill from the Oregon-Washington road costs 50 cents per ton.

It is obvious that Taylor & Kemp are at a greater expense in milling grain received from the Oregon-Washington road than when the grain is received from the Northern Pacific.

The claim of Taylor & Kemp is that they are now in a worse plight than they were before the Oregon-Washington road was constructed when shipping grain from points east of Wallula contiguous to the Oregon-Washington lines, since they must now