N.Y. Transportation Law § 119: Rates and service to be fixed by the commissioner

§ 119. Rates and service to be fixed by the commissioner. 1. Whenever

the commissioner shall find, after a hearing had upon his own motion or

upon a complaint, that the rates, fares or charges demanded, exacted,

charged or collected by any common carrier subject to his jurisdiction

for the transportation of persons or property within the state, or that

the regulations or practices of such common carrier affecting such rates

are unjust, unreasonable, unjustly discriminatory or unduly

preferential, or in violation of law, or that the maximum rates, fares

or charges, chargeable by any such common carrier are insufficient to

yield reasonable compensation for the service rendered, and are unjust

and unreasonable, the commissioner shall with due regard among other

things to the estimated prospective earning capacity of such property at

the rate of fare at the time fixed and existent and to a reasonable

average return upon the value of the property actually used in the

public service, and to the necessity of making reservation out of income

for surplus and contingencies, determine the just and reasonable rates,

fares and charges to be thereafter observed and in force as the maximum

to be charged for the service to be performed, notwithstanding that a

higher rate, fare or charge has been heretofore authorized by general or

special statute, and shall fix the same by order to be served upon all

common carriers by whom such rates, fares and charges are thereafter to

be observed.

At any hearing involving a rate, the burden of proof to show that the

change in rate if proposed by the common carrier, or that the existing

rate, if on motion of the commissioner or in a complaint filed with the

commissioner it is proposed to reduce the rate, is just and reasonable

shall be upon the common carrier; and the commissioner may give to the

hearing and decision of such questions preference over all other

questions pending before him and decide the same as speedily as

possible.

Whenever the commissioner shall find, after a hearing had upon his own

motion, or upon a complaint, that the rates, fares or charges demanded,

exacted, charged or collected by any common carrier subject to his

jurisdiction for excursion, school or family commutation, commutation

passenger tickets, half fare tickets for the transportation of children

under six years of age, or any other form of reduced rate tickets for

the transportation of persons within the state, or joint interchangeable

mileage tickets, with special privileges as to the amount of free

baggage that may be carried under mileage tickets of one thousand miles

or more within the state, or that the regulations or practices of such

common carriers affecting such rates are unjust, unreasonable, unjustly

discriminatory or unduly preferential, or in violation of law, or that

the maximum rates, fares or charges collected or charged for any of such

forms of reduced fare passenger transportation tickets by any such

common carrier are insufficient to yield reasonable compensation for the

service rendered, and are unjust and unreasonable, and whenever the

commissioner shall find, after a hearing had upon his own motion or upon

a complaint, and upon investigation, that the sale of any form or forms

of reduced passenger ticket heretofore sold or used upon any railroad or

street railroad within the state, the use or sale of which ticket or

tickets has been discontinued within five years prior to June thirtieth,

nineteen hundred and eleven, will be just and reasonable and not in

violation of any provision of this chapter or other provision of law,

the commissioner shall, with due regard, among other things, to a

reasonable average return upon the value of the property actually used

in the public service and to the necessity of making reservation out of

income for surplus and contingencies, determine the just and reasonable

rates, fares and charges to be thereafter observed and enforced as the

maximum to be charged for such mileage, excursion, school or family

commutation, commutation, half fare or any other form of reduced rate

tickets for the transportation of persons, or joint interchangeable

mileage tickets with special privileges as aforesaid, and shall order

the sale and use thereof to be restored, or any of the kinds of tickets

herein specified or any other form of reduced rate ticket for the

transportation of persons within the state, upon any railroad or street

railroad within this state, upon which railroad or street railroad any

such form of ticket or tickets for the transportation of persons within

the state, have, within five years prior to June thirtieth, nineteen

hundred and eleven, been sold or used, and shall determine and prescribe

the reasonable and just rates, fares and charges to be thereafter

observed and enforced as the maximum to be charged for any of such form

of ticket or tickets for the transportation of persons within the state,

all of which acts fixing such rates, fares and charges or requiring the

restoration of, sale and use of any of such forms of ticket or tickets,

shall be by order to be served upon all common carriers, railroad

companies and street railroad companies by whom such rates, fares and

charges or restoration of, sale or use of such ticket or tickets are

thereafter to be observed.

2. Whenever the commissioner shall find, after a hearing, had upon his

own motion or upon complaint, that the regulations, practices,

equipment, appliances, or service of any such common carrier in respect

to transportation of persons or property within the state are unjust,

unreasonable, unsafe, improper or inadequate, the commissioner shall

determine the just, reasonable, safe, adequate and proper regulations,

practices, equipment, appliances and service thereafter to be in force,

to be observed and to be used in such transportation of persons and

property and so fix and prescribe the same by order to be served upon

every common carrier to be bound thereby; and thereafter every common

carrier shall observe and obey each and every requirement of every such

order so served upon it, and do everything necessary or proper in order

to secure absolute compliance with and observance of every such order by

all of its officers, agents and employees.

3. The commissioner shall have power by order to require any two or

more common carriers whose lines, owned, operated, controlled or leased,

form a continuous or connecting line of transportation or could be made

to do so by the construction and maintenance of switch connection or

interchange track at connecting point, or by transfer of property or

passengers at connecting points, to establish through routes and joint

rates, fares and charges for the transportation of passengers and

property within the state as the commissioner may, by his order,

designate; and in case such through routes and joint rates be not

established by the common carriers named in any such order within the

time therein specified, the commissioner shall establish just and

reasonable rates, fares and charges to be charged, for such through

transportation, and declare the portion thereof to which each common

carrier, affected thereby shall be entitled and the manner in which the

same shall be paid and secured; and the commissioner shall also have

power in the same proceeding, or in a separate proceeding involving any

rates, fares or charges to prescribe joint rates and fares and charges

as the maximum to be exacted for the transportation by them of

passengers and property within the state, and to require such common

carriers affected thereby to make within a specified time an agreement

between them as to the portion of such joint rates, fares or charges to

which each of them shall be entitled; and in case such agreement be not

so made within the time so specified the commissioner may declare by

supplemental order the portion thereof to which each common carrier

affected thereby shall be entitled and the manner in which the same

shall be paid and secured; such supplemental order shall take effect as

part of the original order from the time such supplemental order shall

become effective.

All powers of the commissioner to establish through routes and order

joint rates, fares and charges as above conferred in relation to common

carriers by railroad, shall extend and apply to the establishment of

through routes and ordering of joint rates, fares and charges for use

and observance by common carriers by railroad and common carriers by

water.

When property may be or is transported from point to point in the

state of New York by rail and water, the transportation being by a

common carrier or carriers, and entirely within such state, the

commissioner shall have jurisdiction of such transportation and of the

carriers, both by rail and by water, which may or do engage in the same,

in the following particulars, in addition to the jurisdiction given by

other provisions of this chapter:

(a) To establish physical connection between the lines of the rail

carrier and the dock of the water carrier by directing the rail carrier

to make suitable connection between its line and a track or tracks which

have been constructed from the dock to the limits of its right of way,

or by directing either or both the rail and water carrier, individually

or in connection with one another, to construct and connect with the

lines of the rail carrier a spur track or tracks to the dock. This

provision shall only apply where the connection is reasonably

practicable, can be made with safety to the public, and where the amount

of business existing or prospective is sufficient to justify the outlay.

The commissioner shall have full authority to determine the terms and

conditions upon which these connecting tracks, when constructed, shall

be operated, and he may either in the construction or the operation of

such tracks, determine what sum shall be paid to or by either carrier.

The provisions of this paragraph shall extend to cases where the dock is

owned by other parties than the carrier involved. The commissioner

shall have authority to compel common carriers by rail to make physical

connection between their tracks and public terminals established and

operated by the state under the provisions of chapter seven hundred and

forty-six of the laws of nineteen hundred and eleven, at the expense of

such carrier and of the state in such proportions as may be reasonable,

where such connection is practicable. The commissioner shall also have

authority to compel common carriers by rail to operate upon the railroad

tracks within such public terminals by such common carriers' own motive

power and servants all rolling stock going to or coming from such public

terminals. Common carriers by rail required to make such connections

shall file tariffs for all service into and out of such terminals and

over the connecting lines of such carriers by rail, if complaint is made

by any person that the rates so made are unreasonable, the burden shall

be upon the common carrier by rail to establish the reasonableness of

such rates. If the rates are found by the commissioner to be

unreasonable, the commissioner shall establish reasonable rates. The use

and operation of such connections and the spotting, placing and removing

of rolling stock shall be in accordance with the regulations prescribed

by the commissioner.

(b) To establish through routes and from time to time order maximum

joint rates between and over such rail and water lines, and to determine

all the terms and conditions under which such a line shall be operated

in the handling of the traffic embraced.

(c) To establish maximum proportional rates by rail to and from places

to which the traffic is brought, or from which it is taken by the water

carrier, and to determine to what traffic and upon what terms and

conditions such rates shall apply. By proportional rates are meant those

which differ from corresponding local rates to and from the place of

receipt and delivery and which apply only to traffic which is brought to

the place of receipt and delivery or is carried from that place by a

common carrier by water.

(d) If any rail carrier subject to this chapter enters into

arrangements with any water carrier operating in the state for the

handling of business between interior points in said state, the

commissioner may require such carrier to enter into similar arrangements

with any or all other common carriers by water operating therein.

(e) No common carrier by rail shall own, lease, operate, control or

have any interest whatsoever, by stock ownership or otherwise, either

directly or indirectly, through any holding company, or by stockholders

or directors in common, or in any other manner, in any common carrier by

water, with which said common carrier does or may compete for traffic,

or in vessels, boats or barges carrying freight upon any water route

with which such common carrier does or may compete for traffic.

Jurisdiction is hereby conferred on the commissioner to determine

questions of fact as to the competition or possibility of competition,

after full hearing, on the application of any railroad company or other

carrier. Such application may be filed for the purpose of determining

whether any existing service is in violation of this section and pray

for an order permitting the continuance of any vessel or vessels already

in operation, or for the purpose of asking an order to install new

service not in conflict with the provisions of this paragraph. The

commissioner may on his own motion or the application of any shipper

institute proceedings to inquire into the operation of any vessel in use

by any railroad or other carrier which has not applied to the

commissioner and had the question of competition or the possibility of

competition determined as herein provided.

(f) The provisions of sections ninety-eight, ninety-nine and one

hundred, relating to filing, publication and changes of rates, fares and

charges of common carriers shall apply to all rates, fares and charges,

and regulations and practices affecting rates, fares and charges for

transportation partly by water and partly by railroad, when both the

water line and the railroad line are used for a continuous carriage or

shipment; but the said section shall not apply to rates, fares or

charges, or regulations or practices affecting rates, fares or charges,

established by any such common carrier by water for local carriage or

shipment of passengers or property between points in this state which

are served by such common carrier wholly by water and independently of

any railroad service.

The provisions of this chapter, and the powers of the commissioner,

relating to the transportation of passengers and property by railroad

apply to the transportation of passengers and property partly by

railroad and partly by water when both the railroad line and such water

line are used for a continuous carriage or shipment between points in

this state; and the provisions of this chapter and the powers of the

commissioner respecting common carriers by water are hereby limited

thereto, except as may be in this section otherwise specifically

provided.

4. If the commissioner shall be of the opinion that through cars for

the transportation of property should be operated over the tracks of

said common carriers and that switch connection or interchange track at

a connecting point, if not already existing, should be constructed and

maintained by such common carriers, to the end that property may be

carried without change of cars, the commissioner shall have power after

a hearing to require by order said common carriers to receive from each

other and transport for each other such cars over each other's tracks by

way of such switch connection or interchange track, and if no such

switch connection or interchange track exist to construct and maintain

said switch connection or interchange track, and to make within a

specified time not less than thirty days an agreement between them as to

the terms of such receipt and transportation of cars, and if so required

as to the division of the expense of such construction and maintenance

of switch connection or interchange track; and in case such agreement be

not so made within the time so specified, the commissioner shall after a

hearing declare by supplemental order the terms and conditions upon

which such cars shall be received and transported, and if so required

the portion of such expense to which each common carrier affected

thereby shall be entitled and the manner in which any sums of money to

which any such common carrier is entitled shall be paid and secured, and

such supplemental order shall take effect as part of the original order

from the time such supplemental order shall become effective. Nothing in

this subdivision shall require a through route between railroad

companies and street railroad companies between points reached by such

railroad companies. In case upon the termination of a lease or otherwise

the owner or lessor of a rapid transit railroad resumes operation

thereof and thereupon such owner or lessor or the lessee discontinues or

threatens to discontinue or refuses or threatens to refuse to permit

operation over any extension or extensions of such rapid transit

railroad or railroads or any of them, or discontinues or threatens to

discontinue or refuses or threatens to refuse to permit operation over

other railroads on which such lessee had operated under trackage rights,

then and in either of those events the commissioner may order that

through cars for the transportation of passengers shall be operated over

such extension or extensions and over the tracks of such other railroad

over which such lessee may have had trackage rights, and the

commissioner shall have power, after a hearing to require by order such

operating, including the right to order such switch or other connections

or interchange tracks as may be necessary, and if so required to

determine as to the division of the expense of the maintenance and

operation thereof. The commissioner may, after a hearing, prescribe the

terms and conditions upon which such operations shall be conducted and

the manner in which receipts and expenses shall be apportioned. Pending

the hearing or hearings provided for herein, and the determinations and

orders of the commissioner thereon, the commissioner shall have power,

if in his judgment the public interest requires it, to issue a temporary

order requiring said rapid transit railroad companies to receive from

each other, and transport for each other, such cars over each other's

tracks by way of switch connection or interchange track, and if no such

switch connection or interchange track exists, to construct and maintain

said switch connection or interchange track; and upon the completion of

said hearing or hearings, and the determinations and orders of the

commissioner thereafter made, the terms of the receipt and

transportation of cars, and the readjustment of compensation and expense

involved, shall take effect as of the original date of such temporary

order of the commissioner. If upon the expiration or earlier termination

of a lease, the free transfer or interchange of passengers, theretofore

in effect and permitted by the lessee of a rapid transit railroad at any

point or points between the lines of the rapid transit railroads owned

or leased and operated by it, is discontinued or is threatened to be

discontinued, the commissioner shall have power by order to require the

companies, by which the said lines of rapid transit railroads may be

operated after the termination of the lease, to continue or re-establish

such through routes formerly existing, and to establish joint rates,

fares and charges for the transportation of passengers thereon in the

manner provided by subdivision three. Pending the hearing or hearings

provided for herein, and the determinations and orders of the

commissioner thereon, the commissioner shall have power to issue a

temporary order requiring the companies then operating said lines of

rapid transit railroad to restore the said free transfer or interchange

of passengers at the point or points on said rapid transit railroad

lines where the said free transfer or interchange was formerly in effect

and permitted; and upon the completion of said hearing or hearings, and

the determinations and orders of the commissioner thereafter made, the

terms and conditions under which the portion of said joint rates, fares

and charges to which each company shall be entitled and the manner in

which the same shall be paid and secured, shall take effect as of the

original date of such temporary order of the commissioner.