The Birmingham age-herald., 1911-11-11

testimony.
 Examiner Smith ruled, however, that he would not make such a recommenda- tion to the commission.
 Counsel Brandeis of the Louisville and Nashville. following the ruling of Mir. Smith, then walked to the front, and re- marked:
 But we have not the rule of the Medes and Persians here. have we?'
 No" replied MT. Smith, but l, .oo,
 made 1t known that 1 have had recent
 bereavement in my family, and urged the counsel to solidify matter in order that I could get home as early as possible
 I have received absolutely no considera-
 ton from the counsel, and from certain
 rantakerous counsel, 1 have been perpet- ually worried"
 Several lawyers then informed the ex- aHiner that they had not been made aware of the fact of a bereavement in his family. Recess followed shortly aft | erwards, and Brandeis and Smith con | suited in voices which ranged far above | a whisper.
 T have held examinations all over the country" stated MT. Smith, and have esta blished a reputation for consideration and even deference for counsel, but I do | not intend to be buldozed. Any re- | mark that I may have uttered was Justi- fled following your reference to the Jaw i Of the Medes and Persians."
 l Mir. Brandeis then asked if MT. Smith
 desired him to withdraw his reference,
 and MT. Smith replied firmly in the nega- | tive.
 ]. Shortly afterwards the session was re- | siimed.
 Percy Takes the Stand
 MT. Percy then took the stand and told
 the legal status of the Birmingham South ern. His remarks in part follow: "The Birmingham Southern was .ncor- l porated by the legislature of Alabama, | February IT, 1899. The purpose of the
 Incorporation was the taking over, ex- tending and converting the tracks of the | Tennessee company, as far as practical,
 in common carrier, connecting with | the Mississippi at Memphis, and with the gulf at another point.
 One of the definite purposes of incor- poration was securing recognition for | services performed which the owners had not been able to receive from other rail- | roads. We intended to extend to Ens- l ley, Bessemer and thence to Blocton. | We were to be capitalized in the sum | Of $1,200,000, and proposed to issue bonds
 in that sum for the building and equip ping of lines. The plan of underwriting | the bonds was signed In New York. The
 plan was abandoned following the sale | of the Birmingham Southern to the Soutn- ern and Louisville and Nashville, but the underwriting syndicate was paid It's com- mission.
 Owned by the Southern and Louisville and Nashville, the Birmingham Southern sued the Tennessee company for the right l of condemning T. c. l. property for | the purpose of securing right of way
 to plant not connected with the T. C. l.,
 the suit being based on the claim that | the Birmingham Southern was a com
 non carrier. The Birmingham Southern won the case before the supreme court "The Alabama legislature in 1907 pass | cd an act prescribing rates to be charged by the railroads of Alabama and classify | ing the common carriers into groups ] The fourth class included the Birming-
 ham Southern and the Atlanta, Birming-
 ham and Atlantic.
 | I was present when the deal was | closed whereby the Tennessee Coal, | Iron and Railroad company repur-
 chased the Birmingham Southern and
 there was no stipulated agreement con-
 nected with the purchase.
 Thereafter the Birmingham South ern filed with the railroad commission of Alabama tariff and switching charges. That the switching charges of the Birmingham Southern was sS in-
 stead of s2 was the result of an ex-
 haustive examination in which 1t was shown that the expense of switching
 was higher than $2, the position of the
 Birmingham Southern being that as it 1 was not on reciprocal basis with the
 trunk lines 1t could not in justice to it. l self switch cars at financial loss. | Independent patrons of the Birming ham Southern filed bitter complaints with the railroad commission in refer.
 ence to the switching charges, and the, testified that they had been induced Yo1, nf thA
 ham Southern by the Louisville ana Nashville and Southern to locate on the line of the Birmingham Southern on the ground that no switching charges would be asked"
 MT. Percy, continuing, stated that the
 property of the Birmingham Southern 1 was assessed by state tribunal, where
 as. the bona-fide plant facility railroad
 such as that possessed by the Wood ward company, was assessed by county | authorities. He repeated his previous | remark that since the repurchase by 1 the Tennessee Coal, Iron and Railroad
 company of the Birmingham Southern
 that road had regularly filed tariffs with the railroad commission and com i piled with the regulations of that body | He was asked on cross examination if 1 in the list classifying the common car riers of Alabama the South and North was included. He stated that he did not know but that the fact could be as certained. He was asked If he remem- bered his testimony before the railroa d commission when the people had raised the howl concerning the switching | charges. He stated that he could not recall what he had said but that the | record could be obtained He stated when l ask ed that he did not have the data with him concerning the investiga tion which resulted in the verdict that switching at $2 was followed by finan. cial loss. He answered a question by stating that the railroad commission did order the switching charges reduc- ed from $3 to s2.
 Has Long Been Controversy MT. Percy, resuming his direct testi- mony, said: There has long been q controversy between the Tennessee Coal, Iron and Railroad company and the trunk lines on the matter of de- murrage. the Birmingham Southern's position being that it was entitled to deal with the trunk lines on per diem basis.
 "The Tennessee Coal, Iron and Railroad company declined to pay the demurrage ana the demurrage accumulated. The company declined to pay because 1t felt that it should settle with the Birming- ham Southern and the Birmingham South ern settle with the trunk lines on a per diem basis. Suits were brought against the company, and that of the Louisville and Nashville came to trial. The judge held that the plaintiff could not recover the demurrage, that the Birmingham Southern was a common carrier, and that the delivery to the Birmingham Southern was not a delivery to the Ten nessee Coal, Iron and Railroad company. An appeal was taken. but nothing has