The Southern Indiana Railway may lawfully refuse to deliver its equipment to its connections and may properly claim the right to transfer freight at the junction point.

A further objection to the method of business sought to be adopted arises front section 6, supra, which in effect permits 80 per cent. of the capital of the company to be withdrawn by tile stockholders, who thus take out, \vith one halod, what they ha.ve paid into the treasury of the association with the other. The only difference in the status of the borrowing member and the non- borrowing member who has not paid up his stock in full, is that in the former case the company has his pass. book as collateral. Such a subterfuge might work grave injustice to creditors who are assured that all or substantially all the capital stock is paid up in full: when, as a matter of fact, the paying stockholders are bor- rowers to the extent of 80 per cent. of their holdings. T]'his ar- rangement is highly objectionable. As stated in 2 Thompson on Corporations, section 1585: .The capital stock of a corporation being a trust fund for the security of creditors, this trust can not be defeated by a sinodafed pa/meai of the stock subscription, nor by anything short of an actual payment in good faith. The assets of a company can not be applied to return to the shareholders what they have or ought to have paid upon their shares. An arrangement by which the stock is nom- inally paid and the money immediately taken back as a loan to the stockholders is a, device to change the debt from a debt impressed with the character of a trust to an ordi- nary loan, and is not a valid payment as against creditors of the corporation, though it may be good as between the company and the stockholder." For the reasons above set forth, my opinion is that the South Pend Real Estate, Loan and Investment Company should not be pernitted to incorporate tinder section 22, supra, so long as the questionable features, above indicated, constitute a part of their plait of business. RAILROADS TRANSFER O EQlUIPM\IENT. December 10, 1906. lion. Charles B. Riley. Secretary Railroad Commission of Indiana: Dear Sir-In vour communication of the 5th inst., you submit Ilie, following inquiry: "What authority exists in the court to compel the Southern Indiana Railway Company to load its equipment and deliver it to a connecting line? Or, in other words, does or does not the initiating, line have the right to refuse to deliver the equipment to its connection and claim the righjt to transfer the cargo at the junet'on point " My conclusion, upon an examination of the above questions. is, that the courts of this state have no power to comllpd the South- ern Indiana Railway Company to deliver its equipment to a con- necting carrier. 2\ly reasons for this view are as follows: 1. The rule at common law, as repeatedly announced is, that a common carrier is not required to transport freig'ht beyond its own line; but that its diuty ends when it duly carries the same to the point of juncture with some other carrier and there makes de- livery. As stated in Chicago R. Co. v. Woodward, 164 Ind. :360, 363 "In the absence of a special contract, where it is thus necessary for. a, carrier to deliver the shipment to another before the point of destination is reached, the liability of the first carrier ceases when it has safely and without un- reasonable delay carried and deirered to the second." It U. S. Express Co. v. R1ush, 24 Ind. 403, 407, the court, in quoting with approval the decision of the Massachusetts Supreme Court, says: "In our judgment, that obligation (of a. common car- rier) is nothing more than to transport the goods safely to the end of their road and there deliher them to the proper carriers, to be forwarded toward their ultimate destina.- tion. In I. E. & W. R. R. Co. v. Condon, 10 Ind. App. 536. 538, it is declared: "It was early held in this state that in the absence of a special contract as to goods received by a common carrier, marked for a point beyond its line, the obligation of the carrier is nothing more than to transport safely to the end of its line and then deliver to the coinecting- carrier to be forwarded to the point of destination." In Pittshurg, etc. Ry. Co. v. Bryant, 75 N. E. 8.29. 830 (Ind. App.). it is held: "The supreme court of the United States and a ma- jority of the state courts have declared the rule that the carrier is only bound, in the absence of a special contract. to carry over its own route, and safely delirer to the next connecting carrier." (Citing many eases.) It will be observed that in none of the above pronouncements of the law do the courts attempt to say hoir thr delivery shall be made : whether without breaking bulk, or by delivering the freig'ht it- self, discharged front the original car. Their silence upon this point affords ground for an inference that they regarded the safe and prompt delivery to a connecting carrier as the principal ind( essential thing: the precise melod of deliverv being' left for de- termination by contract between the connetin-g lines. or by the discretion of the first carrier. If it were held that the first railroad must deliver its first cars to the second, then it follows that the second could demand them : and if the furnishing of such cars could thus be compelled. so might the supplying of engines and crews : whieh would, in prac- tical effect, result in the original railroad becoming a. carrier be- yond its own terminus - contrary to the rule announced supra. 2. Carriers have been held by the courts to possess a large degree of discretion in directing the movement of through freight, where the contract of shipment has not deprived theni of this right. Thus it is said in the leading' case of A. T. & S. R. R. v. D. & N. 0. R. R., 110 U. S. 667, 680. 681: "At common law, a carrier is not bound to carry ex- cept on his own line, and we think it quite clear that if lii contracts to go beyond he may, in the absence of statutory regulations to the contrary, determine for himself what agencies he will employ. his contract is equivalent to an extension of his line for the purposes of the contract, and if he holds himself out as a carrier beyood the line, so that lie may be required to carry in that way for all alike, he may nevertheless confine himself in carrying to the par- ticular route he chooses to use. le puts himself in no worse position, by extending his route with the help of others. thari lie would occupy if the means of transporta- tion employed were all his own. Hle certainly may select his own agelAies and his own associates for doing his own wo rk.' If an initial railroad places itself in no worse position by con- necting with other lines than it would occupy if the entire line were its own, it follows that it possessed the right to say wvhether its equipmen~t shall travel over the route of the connection; for it certainly would have the right to adopt a rule that, beyond a certain point upon its road, it would use the equipment of for- eign roads then upon its lines, instead of its own cars; provided only, that the public was promptly and adequately served. 3. The extent to which it is expedient for the initial carrier to entrust his ears to a connecting railroad depends upon a variety of circumstances, such as the length of time the cars will probably be away from home ; the usage to which they will be put upon the return trip; the safe or dangerous character of the roadbed of the connection; the carefulness with which the latter operates its road; the probability of accident to such cars, etc. Hence, the matter of interchange of equipment is preeminently a ques- tion which should be left to mutual contract between the connect- ing lines; and a court of equity would be reluctant to make a contract for them. As said in Little Rock R. Co. v. St. Louis R. Co., 41 Fed. 562, holding that courts will not make contracts for railroads in respect to through routing or rating: "It is apparent from the affidavits, and is common knowledge, that to effect through routing and through rates over independent lines of railroads, contract rela- tions must be established between 'the companies operating the roads. The share which each road is to receive of the through rate, the mileage rate to be paid or allowed on cars passing over each other's lines, the method of adjust- ing losses, the arrangement of time tables, the rates for passengers and freight, and other matters, are necessarily matters of contract. The solvency of the respective lines, their ability to handle in a satisfactory manner the joint traffic, and their ability to contribute to that traffic, and various other considerations, enter into and influence the terms of such contracts. The common law imposes no ob- ligation on railroad companies to enter into such contracts imaking contracts for parties 'is not within the scope of judicial power.' " Again, in Central Stock Yards Co. v. Louisville R. Co. 11S Fed 11.3, it is held: "Have the courts the right, in the absence of statute, to dictate to carriers the contracts they shall make in the interchange of traffic, and to require such to be carried out as the courts deem reasonable? The billing and transfer of freight from outside points over the two railroads is a matter of arrangement between them. The proportion of the joint tariff each shall receive, the handling of cars, the liability of one to the other, and other matters, are to be determined by the contract between the parties. Each controls its own railroad, and may determine for itself upon what terms it will unite in a joint tariff. No arrange- ment exists with the Southern Railroad for the transporta- tion and delivery of ears of live stock to the Central Stock Yards, if that can be assumed to be a station on the line of the Southern Railroad; nor do we think a court of equity has the power to make one, and supervise its exe- cution; nor has this right been.conferred upon the courts by the interstate commerce act." Much that is said in the two cases last cited applies, with equal force, to the interchange of cars between connecting lines. 4. It has been stated that "The common law obligations of a railroad company or other carrier to a connecting carrier with respect to the reception, transportation, and delivery of freight are the same as those owing from the company to an individual shipper." 6 Amer. & Eng. Ency. Law (2 ed., p. 605). If this be true, then a carrier could not insist that a shipper must furnish vehicles in which his goods should be transported. The carrier must himself furnish cars for the shipper's use, over its own line. Such being the rule between a private individual and a railroad, the same operates where the party tendering the freight is a con- necting carrier. 5. It might impose a very grave hardship upon the initiating line, if it were compelled to part with its equipment whenever it accepted freight for transportation over its own and a connect- ing line. It might have good reason to believe that such equip- ment would be diverted by the second road or used in traffic which would render the cars of the first line less fit for shipment of certain classes of freight; the second road might be insolvent and unable to respond in damages for injuries negligently done to the equipment of the other carrier'; its method of doing busi- ness might be notoriously careless; its train forces insufficient; its grades and road bed dangerous and defective; the points to which shipments are made might be extremely remote and the return of the equipment 'might be long delayed; the speed at which the connection runs its trains mig-ht be greater than the cars of the initial road could stand. Coupled with these facts is the constant need which the first carrier might have for all its own equipment for the accommodation of local traffic between points upon its own line. It would be a hard rule which would require an initiating road to tender its cars to an insolvent con- nection, though they might be diverted, delayed, misused or en- tirely destroyed by such company: for which wrongs the first road would be wholly without remedy. The injustice of such a result is indicated in'Coles v. Central R. R. Co., 86 Ga. 251. A statute of Georgia required that all railroad companies in the state should, at their terminus or any intermediate point, switch off and deliver to the connecting road having the same gauge, all ears passing over their lines or any portion of the same, containing goods or freights consigned to any point over or beyond such connecting road. In construing the statute, the court say, page 254: "Nor do we think that the words above quoted com- pellecd the defendant to deliver its own cars to the con- necting line to be forwarded over that line to Brunswick, when it had steadily refused to contract to do so. We are inclined to think that these words mean that if the rail- road company receives cars from another line consigned to a point beyond its terminus, it is required to deliver them to the connecting road which runs to the point to which the cars are consigned: but it certainly was not the intention of the legislature to corlpel one railroad to furnish its own cars to another railroad without any coin- pensation for their use by the other. If the contention of counsel for the plaintiffs in error is correct, a shipper at East Point on the Central Railroad, which is six miles from Atlanta, the latter being the connecting point of the Central and the Georgia Pacific Railroads, could load a car at East Point and consign it to Columbus. Mississippi. to be carried over the Georg-ia Pacific: and although the Cen- tral would have the car only six miles, it would be comn- pelled to deliver its own ear to the Georgia Pacific to he hauled by the latter four or five hundred miles, and would at the same time be held liable on its thrv ugh bill of lad- ing for all damages which might arise in the transportation and during the possession of the car by the Georgia Pa- cific. It would receive no compensation for the use of the car by the Georcia Pacifie. except the carriage of six miles, and would run the risk of the loss of the car or any damage it might-sustain while in the possession of the Georgia Pa- cific, for the latter might be insolvent. The legislature certainly never intended that the act should have this effect.' ily opinion, therefore, is that the Southern [ndiana Railway may lawfully refuse to deliver its equipment to its connections and may properly claim the right to transfer freight at the junc- tion point. ART [CLES OF INCORPORATION-FEE FOR. FILING ARTI- CLES OF ASSOCIATION OF ORIENTA] TEMPLE AS- SOCIATION. SECRETARY OF STATE-FEE FOR FILING, ETC. December 11, 1906. lon. Fred A. Sims, Secretary of State. Dear Sir-Replying to your inquiry of the 30th ult., in which you submit the proposed articles of incorporation of the Oriental Temple Association, said articles being drawn under the act of March 11, 1867. and you state that the incorporators seek to file the same upon payment of a fee of five dollars; you ask if such fee shall be received by you in full payment of the fees due the state for filing same, or whether you shall charge the regular per centuni of the capital stock. as charged other corporations. Section 2 of said articles is as follows: "The object of the formation of said association is for the purpose of purchasing, acquiring and holding real estate and erecting and maintaining a building thereon for the exclusive use. accommodatiod and convenience of Ori- ental Lodge, No. 500, F. and A. M.. of Indianapolis, In- diana, free from rent, such building to be located in the city of Indianapolis, Marion County, Indiana. Said asso- ciation is not organized for profit of any kind whatever." Section 3 provides that the capital stock shall be $50,000. which shall consist of 2,000 shares of $25 each, "the same to be owNed and held exclusively by members., in good standing, of Oriental Lodge, No. 500, F. and A. M., of Indianapolis, Indiana." Stock shall be beld, assigned or disposed of in such manner as may be prescribed in the by-laws.