
    The Vermont and Massachusetts Railroad Company vs The Fitchburg Railroad Company.
    Tlie St. 1845, c. 191, -which provides for the appointment of commissioners to fix the compensation which shall be paid by one railroad corporation for the draw ing of its passengers, merchandise and cars over the railroad of another company. does not infringe upon any rights which the latter company may have under its charter to regulate tolls on its own road ; neither is it a valid objection to tlie appointment of such commissioners, in any instance, that the parties agree as to the compensation to be paid for the carriage of passengers, and the petition asks for a commission merely to fix the rate for freight.
    This was a petition to this court, under St. 1845, c. 191, for the appointment of commissioners to fix the compensation to be paid by the petitioners to the respondents, for drawing the merchandise and merchandise cars of the former over the road of the latter. A hearing was had before Fletcher, J., whose report is as follows : —
    This is a petition by the Vermont and Massachusetts railroad company, under a statute passed March 25, 1845, for the appointment of commissioners to fix a reasonable compensation to be paid by the petitioners to the respondents, for drawing the merchandise and merchandise cars of the petitioners over the railroad of the respondents; and the petitioners allege that the two companies are unable to agree upon the compensation to be paid to the Fitchburg railroad company, for drawing the merchandise and merchandise cars of the petitioners over the Fitchburg railroad.
    In reply to this application, the respondents filed an answer, setting forth that the petitioners were, by their charter, authorized to make, and had made, a railroad from the western terminus of the Fitchburg railroad to the line of Vermont, through a section of country from which the respondents had previously drawn a large part of their business ; and the petitioners were authorized, by such charter, to enter and use the Fitchburg railroad, and had used the same, the respondents drawing their cars, passengers and merchandise over the same, at reasonable times and for a reasonable compensation-And they further allege that, previous to the construction of the petitioners’ railroad, they had, from their local traffic and business naturally flowing in from the route subsequently adopted by the petitioners, derived, for a series of years, an income of ten per cent per annum ; that, after the commencement of the railroad of the petitioners, and to accommodate the business thereof, they had enlarged their capital, extended their depot grounds, made new and spacious depots, ana laid a second track, and agreed with the petitioners upon a very low charge for the transit of cars, passengers and merchandise, passing to or from the petitioners’ railroad over that of the respondents; that this tariff is still in force, and thereby much of the business of the respondents, heretofore local, is carried at these reduced rates, and claimed by such petitioners to be their business, and, under the effect of such reduction and outlay, the income of the respondents upon their capital has been reduced from ten to seven per cent per annum.
    The respondents further allege that, by the fifth section of their charter, it was provided that the legislature might, after five years, reduce the rate of tolls and profits, which the respondents were authorized by their charter to fix at their discretion, but such tolls should not, without their consent, be so reduced as to produce less than ten per cent per annum.
    And the respondents claim that this petition be dismissed, because it is not suggested therein that the tolls of the respondents produce more than ten per cent on the cost of their railroad, or that the respondents have demanded of the petitioners any rate of toll that would, if paid, cause their income to exceed ten per cent, or that the parties cannot agree on a compensation, after conceding to the respondents a right to their income of ten per cent, and inasmuch as the petition prays that such compensation be fixed without reference to such right.
    The respondents further allege, that the parties have agreed upon a tariff of tolls to be charged on the passenger cars and merchandise of the petitioners, which has been acquiesced in by both parties, and deny that they are unable to agree thereon; but admit that their committee has been requested, by a committee of the petitioners, to make a partial reduction on merchandise and merchandise cars, to which they did not accede, and urge that their agreed charge on passengers is extremely low, and deny that they have been asked to modify their whole tariff, but allege that they are willing to make any reasonable modification thereof. And they submit to the court that such tariff should be treated as a whole, and that it would be unreasonable and unjust to reduce their agreed charges on cars and merchandise, without elevating those on passengers; and that the acts authorizing commissioners to prescribe tolls over a railroad which another line is to enter, did not contemplate or authorize a partial application like that of the petitioners, or a partial hearing and adjudication thereon; and as the case provided for by law has not arisen, the respondents ask to have the petition dismissed.
    The petitioners filed a replication, in which, among other things, they set forth that, by the fourth section of the respondents’ charter, the legislature reserved the right to prescribe the rate of compensation to be paid the respondents by other companies authorized to enter and use their railroad. The petitioners further insisted that, inasmuch as the parties did not disagree as to the compensation to be paid for drawing the passengers of the petitioners, and, there being no suggestion in the petition or answer that the parties were unable to agree upon the compensation to be paid for drawing the passengers of the petitioners, that the case presented by the petitioners was within the provision of the statute referred to in the answer.
    
      H. C. Hutchins, for the petitioners.
    
      E. H. Derby, for the respondents.
   Dewey, J.

This is a petition under the St. 1845, c. 191 for the appointment of commissioners to fix the compensation to be paid by the petitioners to the respondents, for drawing the merchandise and merchandise cars of the former over the road of the latter.

The leading objection taken to the granting this petition is. that founded upon the supposed infringement of the charter of the respondents, if effect is given to the statute of 1845, c. 191. It is urged that the act creating the Fitchburg railroad company, (St. 1842, c. 84,) has secured to that corporation the full power of regulating their own tolls, subject only to the condition expressed in the charter, that the legislature may reduce and regulate them, in case their net income amounts to ten per cent on the capital stock.

But, in the opinion of the court, the section of the charter above refeined to, and the statute under which this petition is sought to be maintained, relate to distinct subjects, and do not contain conflicting provisions. The charter itself (§ 4) enacts, that the legislature may authorize any company to enter with another railroad at any point upon the Fitchburg road, and use this railroad, paying therefor such a rate of toll or compensation as the legislature may, from time to time, prescribe.

The mode of using other railroads has been regulated by St. 1845, c. 191, and the mode of fixing the compensation to be paid therefor is also prescribed by this statute. We are of opinion that this statute provision was well authorized, and its exercise, so far as relates to the appointment of commissioners, does not depend upon the amount of percentage that the income of the road pays to its stockholders.

This matter of the income and expenditure of the respondents will, of course, form an important item in the consideration, by the commissioners, of the sum proper to be paid to the respondents for the use of their road and engines; but it does not affect the jurisdiction of this court, in the appointment of commissioners to fix the compensation to be paid by the petitioners, for the transportation of their cars.

It is then further objected to the present petition, that it only asks a partial or limited commission, one confined to finding the compensation to be paid for freight cars, and not embracing passenger cars.

The appointment of such commissioners is to be made by this court, when the respective parties' are unable to agree. So far as they do agree, no further action is required; and if, as is said, the parties are both satisfied with their present arrangement, as to the sum to be paid for passengers and passenger cars, there is no occasion for further action on that point. But the inquiry ordered, 'will, of course, bring before the commissioners the entire relations of these parties, and the compensation to be paid for all the various services rendered by the respondents. The order to the commissioners should be a general order, as to all these matters; and this will leave the commissioners full supervision and authority in the premises, giving effect to the arrangements of the parties so far as they do in fact agree, and deciding between them as to all matters in dispute, as to compensation for transportation over their road for the petitioners.  