must first ascertain the cost of the property proposed to be acquired and the facilities proposed to be constructed. In the case of the construction of a new railroad, evidence must be exacted from the applicant showing the location of the line, cost or estimated cost of rights of way, of the grading, rails, ties, tracks, laying, ballasting, bridges, culverts, fences, and all other details which go to make up the completed roadway. In the case of an electric surface railroad, further inquiry must be made into the cost of the power plant, of all machinery and fixtures connected therewith, the transmission lines, the signal system, stations, platforms, necessary rolling stock and other constructions indispensable to the operation of the road, and in this inquiry it is necessary to take into consideration unit prices and quantities of all the articles which enter into the construction. Besides the cost of construction, the Commission must ascertain: (1) the expense of organization, (2) the incorporation tax, (3) the expense of obtaining a certificate of public convenience and a necessity, (4) the preliminary engineering expenses, (5) the expense of procuring the authorization of issue of stock and bonds, (6) the expense of marketing the securities, (7) discount upon the bonds if they cannot be sold at par, (8) interest on the bond issue prior to the beginning of operations and during the period of construction, (9) the compensation of officers of the road during the construction period, (10) incidental expenses during the construction period, (11) expense of obtaining local franchises and consents. In addition there should be provided upon the commencement of operation a fair working capital and a reasonable amount should be allowed for services in promoting the enterprise.- Application of Rochester, Corning, Elmira Traction Co. Decided by the N. Y. Public Service Commission for the Second District, March 30, 1908.

In determining under N. Y. Pub. Serv. L., § 55, how the capitalization of a street railway company shall be divided between stocks and bonds, the Commission will find the proper amount of the bond issue by estimating the probable gross earnings to accrue from the operation of the road, the probable operating expenses, the taxes and the depreciation charge, and any excess of earning above the aggregate expense will represent the sum which is applicable to the payment of fixed charges. Application of Rochester, Corning, Elmira Traction Co. Decided by the N. Y. Public Service Commission for the Second District, March 30, 1908.

An order of the N. Y. Public Service Commission establishing the capitalization of a new enterprise should be sufficiently flexible to allow of additional capitalization if properly required for the completion of the construction. Application of Rochester, Corning, Elmira Traction Co. Decided by the N. Y. Public Service Commission for the Second District, March 30, 1908.

§ 56. Forfeiture; penalties; *[officers and agents of carriers guilty of misdemeanors].-1. Every common carrier, railroad corporation and street railroad corporation and all officers, and agents of any common carrier, railroad corporation or street railroad corporation shall obey, observe and comply with every order made by the commission, under authority of this act, so long as the same shall be and remain in force. Any common carrier, railroad corporation or street railroad corporation which shall violate any provision of this act, or which fails, omits or neglects to obey, observe or comply with any order or any direction or requirement of the commission, shall forfeit to the people of the state of New York not to exceed the sum of five thousand dollars for each and every offense; every violation of any such order or direction or requirement, or of this act, shall be a separate and distinct offense, and, in case of a continuing violation, every day's continuance thereof shall be and be deemed to be a separate and distinct offense.

2. Every officer and agent of any such common carrier or corporation who shall violate, or who procures, aids or abets any violation by any such common carrier or corporation of, any provision of this act, or who shall fail to obey, observe and comply with any order of the commission or any provision of an order of the commission, or who procures, aids or abets any such common carrier or corporation in its failure to obey, observe and comply with any such order or provision, shall be guilty of a misdemeanor.

Provisions of Interstate Commerce Act relative to forfeitures by shippers,- see Elkin's Act, § 1, post, Appendix B.

Criminal liability of shippers and carriers under Interstate Commerce Act,- see Interst. Com. Act, § 10, Elkin's Act, § 1, post, Appendix B.

Actions by persons aggrieved for loss or damage caused by violation of provisions of this act,- see post, § 40.

Forfeitures and penalties for carrier's failure to file its annual report within the specified time,- see ante, § 46.

Penalties against other than common carriers,- see post, § 58.
Actions to enforce penalties and forfeitures,- see post, § 59.

Forfeitures for non-compliance with orders of Commission as to gas and electrical corporations, see post, § 73.

General rules of statutory construction,- see ante, § 1, notes [23]-[40]. What statutes construed as penal,- see ante, § 1, note [35].

Construction of statutes containing penal provisions,- see ante, § 1, notes [36], [37].

*Words in brackets not a part of section heading as enacted.-Ed.

Who are common carriers,― see ante, § 2, notes [2]-[7]. Whether statutes imposing penalties for excessive charges are a regulation of interstate commerce,- see ante, § 25, note [14]. Criminal liability for discriminations in rates,- see ante, § 31, notes [89]-[94].

Criminal liability for violations of § 32,- see ante, § 32, note [35]. Indictments for failure to charge published rate,- see ante, § 33, note [10].

Prosecution for giving of free transportation,—see ante, § 33, note [17].

Liability for false billing or false weighing,—see ante, § 34, notes [8]-[10].

Criminal liability for violations of long and short haul section,— see ante, 36, notes [42]-[45].

Indictment for discrimination by failure to furnish cars,- see post, § 37, note [24].

Civil liability of railroad for unlawful acts of its servants,-see ante, § 40, note [1].

A state regulative act which fixes a maximum charge to be made by railroads and imposes enormous penalties and the possibility of imprisonment for any violation thereof, held to be unconstitutional as preventing the railroads or its servants from testing in the courts the validity of such act.- Ex parte Young, 209 U. S. 123, 28 Sup. Ct. R. (U. S.) 441.

A state statute provided that claims for loss or damage to property while in the possession of common carriers be adjusted and paid within forty days if the shipment be intrastate or within ninety days if interstate, and providing a penalty of $50 for failure to so adjust.- Held, that the penalty was not unreasonable in a case where the amount sought to be recovered was $1.75.- Seaboard Air L. Co. v. Seegers, 207 U. S. 73, 28 Sup. Ct. R. (U. S.) 28, affg. s. c. 73 S. C. 71, 52 S. F. 797. A federal statute, imposing a liability to a penalty upon any company, owner or custodian" of animals who should keep horses in cars more than 28 hours without unloading, does not refer to the receiver of a railroad, who is merely the court's officer and appointed to execute its orders.-U. S. v. Harris, 177 U. S. 305, 20 Sup. Ct. R. (U. S.) 609, affg. s. c. $5 Fed. 533, 78 Fed. 290.

Section 14 of the act creating the Texas Railroad Commission provided penalties of not more than $5,000 nor less than $100 for each disobedience to the orders of the Commission as to rates. The constitutionality of the provision discussed but not passed upon.- Reagan v. Farmers' Loan & T. Co., 154 U. S. 362, 14 Sup. Ct. R. (U. S.) 1047.

The power of the state to impose fines and penalties for a violation of its statutory requirements is coeval with government; and the mode in which they shall be enforced, whether at the suit of a private party, or at the suit of the public, and what disposition shall be made of the amounts collected, are merely matters of legislative discretion.- Missouri Pac. R. Co. v. Humes, 115 U. S. 512, 6 Sup. Ct. R. (U. S.) 110, affg. s. c. 82 Mo. 221.

Where an agent of a railroad is prosecuted under the Interstate Commerce Act, for an unlawful act, it is not necessary to allege or prove that the particular unlawful act complained of was done under authority conferred by his principal, or by its direction, but it is sufficient to show that the accused was in fact an agent of a railroad subject to the provisions of the act, and that the wrong was committed under color of his office or agency.-U. S. v. Tozer, 37 Fed. 635, 2 L. R. A. 444n.

Where an ordinance required a street railway to run its cars every 20 minutes between 12 M. and 6 A. M., the act of a company which owned lines on parallel avenues in running cars on only one of them in compliance with the statute, is not a sufficient compliance as to both lines.Mayor v. Dry Dock, E. B. & B. R. Co., 133 N. Y. 104, 30 N. E. 563.

A corporation may be held responsible for actual corporate conduct, even though it does not amount to formal corporate action.-- People v. North River Sugar Ref. Co., 121 N. Y. 582, 24 N. E. 584, 9 L. R. A. 33n.

The general railroad act of 1850, § 39, provided that locomotives should ring their bells or blow their whistles before crossing a highway and provided a penalty for every neglect of the provisions of the section.Held, that the penalty was incurred every time a public highway was crossed by a locomotive without ringing the bell or blowing the whistle.People v. N. Y. C. R. Co., 13 N. Y. 78, affg. s. c. 25 Barb. 199.

A statute of Illinois which provides that if any railroad corporation shall charge more than a fair and reasonable rate it shall be deemed guilty of extortion, is not void for uncertainty, where by a further section there is provision for the making by a board of commissioners of a schedule of reasonable maximum rates for each of the railroads in the state, thus furnishing a uniform rule for the guidance of the railroads.Chicago, B. & Q. R. Co. v. Jones, 149 Ill. 361, 37 N. E. 247, 24 L. R. A. 141.

Penalties for violation of the charges and rates fixed by the Board of Railroad Commissioners of Iowa held not excessive.- Burlington, C. R. & N. Co. v. Dey, 82 Iowa, 312, 48 N. W. 98, 12 L. R. A. 436n.

A statute of Kentucky which provides that if a railroad shall charge more than a "just and reasonable toll or compensation" for transportation, it shall be guilty of extortion, and fixes a penalty therefor, is void for uncertainty, as it fixes no standard by which rates may be considered

reasonable or unreasonable, and leaves the criminality of the carrier's act in each case to be determined from the jury's view of the reasonableness of the rate charged.- Louisville & N. R. Co. v. Commonwealth, 99 Ky. 132, 18 Ky. L. R. 42, 35 S. W. 129, 33 L. R. A. 209n.

The legislature may compel common carriers to discharge the duties and obligation they owe to the public, etc., by reasonable statutory regulations, and compel due observance of those by fines and penalties.McGowan v. Wilmington & W. R. Co., 95 N. C. 417.

§ 57. Summary proceedings *[to enforce orders of commissions]. Whenever either commission shall be of opinion that a common carrier, railroad corporation or street railroad corporation subject to its supervision is failing or omitting or about to fail or omit to do anything required of it by law or by order of the commission, or is doing anything or about to do anything or permitting anything or about to permit anything to be done, contrary to or in violation of law or of any order of the commission, it shall direct counsel to the commission to commence an action or proceeding in the supreme court of the state of New York in the name of the commission for the purpose of having such violations or threatened violations stopped and prevented either by mandamus or injunction. Counsel to the commission shall thereupon begin such action or proceeding by a petition to the supreme court alleging the violation complained of and praying for appropriate relief by way of mandamus or injunction. It shall thereupon be the duty of the court to specify the time, not exceeding twenty days after service of a copy of the petition, within which the common carrier, railroad corporation or street railroad corporation complained of must answer the petition. In case of default in answer or after answer, the court shall immediately inquire into the facts and circumstances in such manner as the court shall direct without other or formal pleadings, and without respect to any technical requirement. Such other persons or corporations as the court shall deem necessary or proper to join as parties in order to make its order, judgment or writs effective, may be joined as parties upon application of counsel to the commission. The final judgment in any such action or proceeding shall either dismiss the action or proceeding or direct that a writ of mandamus or an injunction or both issue as prayed for in the petition or in such modified or other form as the court may determine will afford the appropriate relief.

*Words in brackets not a part of section heading as enacted.-Ed.