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ments of cattle to market, an oral agreement to expedite a shipment transported
under regular rates was void as discriminatory in violation of the act.''

§ 4085. Free Transportation. — Free Cartage from Station. — An al-
lowance made to a shipper by a railroad company for cartage from its depot,,
and the refusal to make a similar allowance to another shipper, the railroad serv-
ice proper and the rate being the same to each, is an unjust discrimination in
violation of the Interstate Commerce Act notwithstanding such allowance was
made to induce the favored shipper to transfer his transportation from a compet-
ing line with which he had a siding connection."^

Free Pass. — An agreement by an interstate carrier to issue annual passes
for life in consideration of a release of a claim for damages, though entered
into prior to the act was made unenforceable by the prohibition of the act against
demanding, collecting, or receiving "a greater or less or different compensation"
for the transportation of persons or property, or for any service in connection
therewith, than that specified in the carrier's published schedule of rates.'"

Pass Granted Prior to Act June 29, 1906. — The performance of a contract
by which a railroad company, in consideration of the conveyance of land to it,.
agrees to give annual passes to the grantors during their lifetime, made prior to
Commerce Act June 29, 1906, is forbidden by § 6 of that act, providing that no
carrier shall charge or receive a greater or less or different compensation for the
transportation of passengers than the rates specified in the tariff' filed as required
by the act.'-^

5. Special rates. — Kizer v. Texarkana,
etc., R. Co., 66 Ark. 348, 50 S. W. 871.

6. Clegg V. St. Louis, etc., R. Co., 203
Fed. 971.

7. Free transportation. — Wight v.
United States, 167 U. S. 512, 42 L. Ed.
258, 17 S. Ct. 822.

8. Free pass. — Louisville, etc., R. Co.
V. Mottley, 219 U. S. 467, 55 L. Ed. 297,
31 S. Ct. 265, 34 L. R. A., N. S., 671,
reversing decree, 118 S. W. 982, 133 Ky.

Literstate Commerce Act, as amended
by the Hepburn Act, invalidated an agree-
ment by a railroad company to issue an
annual pass in consideration of a right
of way grant, so that he could not com-
pel specific performance thereof. Louis-
ville, etc., R. Co. V. Crowe, 160 S. W.
759, 156 Ky. 27, 49 L. R. A., N. S., 848.

9. Pass granted prior to act. — Cowley
V. Northern Pac. R. Co., 68 Wash. 558,
123 Pac. 998, 41 L. R. A., N. S., 559.
But see Louisville, etc., R. Co. v. Mot-
tley, 133 Ky. 652, 118 S. W. 982.

"The act of congress to which refer-
ence has been made forbade the further
performance of the contract by the de-
fendant. Louisville, etc., R. Co. v. Mot-
tley, 219 U. S. 467, 55 L. Ed. 297, 31
S. Ct. 265. 34 L. R. A., N. S., 671." Cow-
ley V. Northern Pac. R. Co., 68 Wash.
558, 123 Pac. 998, 41 L. R. A., N. S., 559.

"In Louisville, etc., R. Co. v. Mottley,
219 U. S. 467, 31 S. Ct. 265, 55 L. Ed.
297, 34 L. R. A., N. S., 671, it said: 'After
the commerce act came into effect no
contract that was inconsistent with the

regulations established by the act of con-
gress could be enforced in any court.'
And again, Louisville, etc., R. Co. v. Mot-
tley, 219 U. S. 467, 31 S. Ct. 265, 55 L-
Ed. 297, 34 L. R. A., N. S., 671, it said:
'We forbear any further citation of au-
thorities. They are numerous and are
all one way. They support the view
that, as tlie contract in question would
have been illegal if made after the pas-
sage of tlie commerce act, it can not now
be enforced against the railroad com-
pany, even though valid when made.' "
Cowley V. Northern Pac. R. Co., 68
Wash. 558, 123 Pac. 998, 41 L. R. A., N.
S., 559.

The fact that a pass is issued under
an established contract, valid when made,
does not exempt the parties from the op-
eration of Interstate Commerce Act Feb.
4, 1887, as amended June 29, 1906. Gill
V. Erie R. Co., 135 N. Y. S. 355, 151 App.
Div. 131, reargument and appeal to court
of appeals denied in 136 N. Y. S. 1135.

Decision contra. — Act Cong. June 29,
1906, c. 3591, § 1, 34 Stat. 584 (U. S. Comp.
St. Supp. 1907, p. 892), prohibits any
common carrier from giving any passen-
ger interstate free transportation. Sec-
tion 2 prohibits carriers from charging
any different compensation for carrying
passengers between points named in its
tariff, as filed, than the fare specified
therein, or from refunding any part of the
fares. Held, that the statute is not re-
trospective, and does not apply to a con-
tract made in 1871, by which a carrier
agreed to issue an annual pass to one in-


ixterstate; commerce act.

§ 4085

Pass Issued for Consideration. — The Interstate Commerce Act does not
prohibit the issuance of railway passes upon a valuable consideration, but only
prohibits free transportation.^*^ Annual passes, issued pursuant to a contract
by which a carrier agreed to issue an annual pass for life to one injured by it in
settlement of his claim for damages, are not "free passes'' within the meaning
of § 1 of the Act of June 29, 1906, prohibiting any common carrier from directly
or indirectly giving any interstate free pass or ticket for passengers except to
employees, nor did the contract violate § 2 prohibiting carriers from charging
any different compensation between points named in its tariff than the fare speci-
fied therein, or from extending to any person any privileges except as specified
in its tariff' ; it not appearing that the contract discriminated in favor of the per-
son injured. ^1

Interchange of Passes. — The provision in the Act of June 29, 1906, follow-
ing language appertaining solely to the carriage of passengers, that its pro-
visions shall not be construed to prohibit the interchange of passes for the offi-
cers, agents, and employees of common carriers and their families, or to prohibit
any carrier from carrying passengers free in certain cases, does not embrace
free transportation by express companies, although, by the terms of that
act, express companies are deemed common carriers.^- In view of the interpre-
tation thus given to the act it can not be doubted that the gratuitous transpor-
tation of property, upon franks issued by express companies, is within the terms
of the act, and that express companies are prohibited from giving free trans-
portation of personal packages to their officers and employees and members
of their families, and to the officers of other transportation companies, and
members of their families, in exchange for passes issued by the latter to the
officers of the express companies, by the provision which forbids all transporta-
tion of property at less than the published rates. ^^

Exceptions. — Congress may in prohibiting interstate carriers from issuing
free transportation except such persons from the operation of the general pro-
hibition as it may see fit. i"* Section 22 of the Interstate Commerce Act as

jured, in settlement of his claim for dam-
ages, though annual passes were issued
under the contract after the statute was
enacted. Louisville, etc., R. Co. v. Mot-
tley, 133 Ky. 052, 118 S. W. 982.

10. Pass issued for consideration. —
Curry v. Kansas, etc., R. Co., 58 Kan. 6,
48 Pac. 579.

11. Louisville, etc., R. Co. v. Mottley,
133 Ky. 652, 118 S. W. 982.

Act Cong. June 29, 1906, §§ 2, 6, 34
Stat. 584, c. 3591, prohibiting interstate
carriers from issuing free transportation
or receiving different compensation for
transportation of passengers or property
between points named in published tariffs
than the rates, fares, and charges spec-
ified in the tariffs, etc., did not invalidate
t; contract made October 2, 1871, by
which an interstate carrier, in consider-
ation of a release of damages for inju-
ries to complainants, contracted to issue
free passes over its lines to complainants
during their natural lives, nor did such
act authorize the carrier to refuse longer
to issue passes good lieyond the bounda-
ries of the state. Mottley v. Louisville,
etc., R. Co., 150 Fed. 406.

12. Interchange of passes. — KIkins Act
of Feb. 19, 190:5, c. 708, :i2 Stat. 847 (U.
S. Comp. St. Supi). 1907, p. 880), as

amended by the Hepburn Act (Act June
29, 1906, c. 3591, 34 Stat. 584, 587 [U. S.
Comp. St. Supp. 1907, pp. 892. 898]);
.American Exp. Co. v. United States, 212
U. S. 522, 53 L. Ed. 635, 29 S. Ct. 315.

13. American Exp. Co. v. United States,
312 U. S. 522, 53 L. Ed. 635, 29 S. Ct.
315, affirming United States v. Wells,
Fargo Exp. Co., 161 Fed. 606.

Without considering §§ 2, 3 of the In-
terstate Commerce Act of February 4,
1889, c. 104, 24 Stat. 379, prohibiting ex-
press companies from giving free trans-
portation of personal packages to officers
and employees and members of their
families and to officers of other trans-
portation companies and members of
their families in exchange for passes is-
sued by the latter to the officers of the
express companies, it is held that such
practice is forbidden liy § 1 of Elkins law
as amended by the Hepl>urn Act of June
29, 1900, c. 3591, 34 Stat. 584-587, and
tliat an injunction to restrain the giving
of such free transportation is authorized
under § 3 of the h'lkins law. American
Exp. Co. V. United States. 212 U. S. 522,
53 L. Ed. 035, 29 S. Ct. 315.

14. Exceptions. — Schuyler v. Southern
Pac. Co.. 37 Utah 581, 109 Pac. 458, re-
hearing denied in 37 Utah 612, 109 Pac.

§ 4085 CARRIERS. 3696

amended by the Act of March 2, 1889, provides: "That nothing in this act shall
prevent the carriage, storage or handling of property free or at reduced rates for
the United States, state or municipal governments, or for charitable purposes, or
to or from fairs and expositions for exhibition thereat, or the free carriage of
destitute and homeless persons transported by charitable societies, and the neces-
sary agents employed in such transportation, or the issuance of mileage, excur-
sion or commutation passenger tickets ; nothing in this act shall be construed to
prohibit any common carrier from giving reduced rates to ministers of religion,.
or to municipal governments for the transportation of indigent persons, or to in-
mates of the National Homes or State Homes for Disabled Volunteer Soldiers,
and of Soldier's and Sailor's Orphan Homes, including those about to enter and
those returning home after discharge, under arrangements with the boards of
managers of said homes ; nothing in this act shall be construed to prevent rail-
roads from giving free carriage to their own officers and employees, or to prevent
the principal officers of any railroad company or companies from exchanging
passes or tickets with other railroad companies for their officers and employees ;
and nothing in this act contained shall in any way abridge or alter the remedies
now existing at common law or by statute, but the provisions of this act are in
addition to such remedies : Provided, that no pending litigation shall in any wa}^
be affected by this act."^^' In order for a free transportation to be lawful it
must come within one of the exceptions in the act.^^ [Manifestly, from the face
of the commerce act itself, congress, before taking final action, considered the
question as to what exceptions, if any, should be made in respect of the prohi-
bition of free tickets, free passes, and free transportation. It solved the question
when, without making any exceptions of existing contracts, it forbade by broad,
explicit words any carrier to charge, demand, collect, or receive a greater or less
or different compensation for any services in connection with the transportation
of passengers or property than was specified in its published schedules of rates ;
and the courts can not add exceptions based on equitable grounds when congress
forbore to make such exceptions. ^'^ The exception allowed in favor of officers
and employees of the road does not include the families of such persons. ^^

Railway Mail Service Employees. — The Act of June 29, 1905, providing
that no carrier subject to the provisions of the act shall issue in interstate com-
merce free transportation, except to railway mail service employees, can not be
construed to prohibit the issuance of a free pass to an employee of the railway
mail service for transportation of such employee while not in the actual discharge
of his official duties. i'^

The issuing" of franks by an express company to officers, agents, attorneys,
or employees of itself or other express companies or railroad companies, or to
the families of such persons, upon which property is transported from one state
to another free of charge, relates to interstate commerce, which it is within, the
constitutional power of congress to regulate, and is within the prohibitions of the
interstate commerce act and its amendments against discrimination, undue pref-
erence, and departure from the published schedule of rates, and is unlawful.
Such gratuitous carriage is not within the exceptions made in Interstate Com-
merce Act, which by its terms are restricted to certain classes of passengers car-

15. 25 Stat, at L. 862; 24 Stat, at L. L. Ed. 635, 29 S. Ct. 315.

387. Interstate Commerce Comm. v. Bal- 17. Louisville, etc., R. Co. v. Mottley,

timore, etc., R. Co., 145 U. S. 263, 36 L. 219 U. S. 467, 55 L. Ed. 297, 31 S. Ct.

Ed. 699. 12 S. Ct. 844. 265, 34 L. R. A., N. S., 671, citing Ytur-

16. "If it is lawful, in view of the pro- bide v. United States (U. S.), 22 How.
visions of the Interstate Commerce Act, 290, 16 L. Ed. 342.

to issue franks of the character under 18. Ex parte Koehler, 31 Fed. 315, 12

consideration ifi this case, then this right Sawy. 446.

must be founded upon some exception in- 19. Railway mail service employees.

corporated in the act." American Exp. — Schuyler 7'. Southern Pac. Co., 37 Utah

Co. V. United States, 212 U. S. 522, 53 581, 109 Pac. 458.

3697 INTERSTATE COMMERCE ACT. §§ 4085-4086

ried by railroads and property carried for certain classes of shippers and for
stated purposes.-'^

Pass Issued to Wife of Employee. — A pass issued by a railroad for inter-
state transportation to the wife of an employee under the Act of June 29, 1906,
must be deemed gratuitous, in view of prohibition against charging a greater or
different compensation for transportation of passengers from that scheduled in
the published rates. ^^

The word "family," in Interstate Commerce Act, prohibiting the issuance of
any pass except to employees and their families, means a collective body of per-
sons living in one house under one head, and does not include the father of an
adult employee not living with him nor dependent on him.^^

Liability of Officers and Agents. — An officer of a railroad company en-
gaged in interstate commerce, who, as a personal favor, issues to a person not
within any of the exceptions contained in Interstate Commerce Act, a free pass
for transportation from one state to another, is guilty of unjust discrimination,,
in violation of the provision of the act, making the charging of a less rate to one
person than to another, for the same services, unjust discrimination. ^^

Liability of Passenger. — Under the provision which makes it a misde-
meanor for any common carrier subject to its provisions to issue any free ticket,
free pass, or free transportation for passengers, except to persons therein ex-
cepted, and further provides that any person other than the persons excepted in
this provision who uses any such interstate free ticket, free pass or free trans-
portation shall be subject to a like penalty, one who, having in his possession an
interstate free pass, sells it to another, knowing that he is not the person named
therein, and is not entitled to ride thereon, with intent that he shall so use it,,
which he does by riding on an interstate journey, is guilty of using the ticket in
violation of the statute.^"*

§ 4086. Reduced Rates. — For Purposes Not Prohibited. — Unjust dis-
crimination and undue or unreasonable preference or advantage are made unlaw-
ful bv the act and the declaration in another section that the act shall not prevent
the giving of reduced rates for the purposes and to the classes of persons therein
named does not exclude the idea that reduced rates for other purposes or to other
classes may not be reasonable and just, and therefore lawful.-^

Who May Complain. — A railroad company is not guilty of an unlawful dis-
crimination or preference by receiving cotton from a shipper, shipping it to a
compress, having it compressed there at the company's expense, and reshipped to
other points for a rate equal to its published through rate, where such an ar-
rangement is in compliance with a recognized custom, of which all other ship-
pers, including the petitioner, could or did avail themselves, and where it does
not appear that the petitioner desired to ship any cotton to such points, or that he
was compelled to pay a higher rate under similar circumstances.-*'

Reduced from Schedule Rate. — Deliveries of coal by an interstate carrier

20. Act Feb. 4. 1887, c. 104, § 23. 24 said employee delivered the pass to a
Stat. 387 (U. S. Comp. St. 1901, p. 3170). person not authorized by statute to re-
United States V. Wells, Fargo Exp. Co., ceive or use it, and the said party used
IGl Fed. 606. the same on an interstate journey, he

21. Pass issued to wife of employee.— violated Act June 29. 1906, c. 3591, 34
Charleston, etc., R. Co. v. Thompson, 234 Stat. 584 [U. S. Comp. St. Supp. 1907,
U S 576 34 S Ct 964. P- *^92], and the employee delivermg to

n« ,,r' ^ "' ^, . " i. r> / - «« said person such pass is guilty of aiding

f^f\ ^.fo^l w S^;^'/^°' '^''•' ^- ^ and abetting in said violation. United

(Mo.), 168 S. W. 1166. ^^,^^^^ ^, ^vi,ii^„,,^ ^r.c) Fed. 310.

23. Liabihty of officers and agents.— Tn 25. Reduced rates.— Interstate Corn-
re Cliarge to Crand Jury, 66 Fed. 146. nicrcc Comm. v. Baltimore, etc., R. Co.,

24. Liability of passenger.— United 145 U. S. 263, 36 L. Ed. 699, 12 S. Ct.
States V. Martin, 176 Fed. 110. 844, affirming 43 Fed. 37.

Where a common carrier issued an in- 26. Who may complain. — Cowan v..

terstate free pass to an employee, and Bond, 39 Fed. 54.

§ 4086 CARRIERS. 3698

not empowered to mine and market coal by its charter or by any legislation exist-
ing at the time of the adoption of the act to regulate commerce, under a contract
to sell and transport such coal at a stipulated price, come within the requirement
of that act respecting the maintenance of published rates, and its prohibitions
against undue preferences and discrimination, whenever, from any cause, the
gross sum realized is insufificient to yield the carrier its published freight rates
after deducting the purchase price of the coal and the cost of delivery, although
the contract may not have been open to that objection when made.-"

Necessity for Injury to Shipper,- — The court is not warranted in iinding that
a mere disparity between the through and local rates, which is considerable, is,
of itself, sufficient to constitute an undue discrimination, where there is no per-
son, firm or corporation complaining that he or they are aggrieved by the dis-

In Shipments to Same Person. — Where several shipments are made to the
same person it can not be said that any preference or discrimination within the
meaning of the act is granted.-^

In Payment for Construction Work. — A lumber company which was a
shipper of railroad ties, made a contract with a railroad company by which it
agreed to build a tie hoist for loading ties at a station, and the railroad company
agreed to haul its ties to a designated point for a reduced rate per car, and to re-
turn to the lumber company ten per centum of the freights so received to apply
on the cost of the hoist until entirely paid for, when it was to become the prop-
erty of the railroad company. In the meantime, however, it could be used only by
the lumber company. The rate given was materially less than the published rate,
which was charged other shippers. Such contract was one designed to give the
lumber company an undue preference or advantage over other shippers, in viola-
tion of Interstate Commerce Act, and was illegal and not enforceable in any
part. 2"

In Payment for Use of Cars. — To an application for a mandamus to compel
a carrier to transport relators' stock in the cars of a certain live stock transporta-
tion company, the respondent set forth that it had entered into a contract with
another transportation company, by which that company was to furnish respond-
ent a certain number of cars per year ; that such cars were available to all ship-
pers of stock; that they were much more useful to defendant than other live

27. Reduced from schedule rate. — De- signee. Of this rate 34 cents per hun-
cree, 128 Fed. 59, modified in New York, dred only were retained for the Mo. Pac.
etc., R. Co. V. Interstate Commerce Ry. Co. The Mo. Pac. Ry. and the C,
Comm., 26 S. Ct. 272, 200 U. S. 361, 50 B. & Q. Co. had a standing arrangement
L. Ed. 515. hy which rates were fixed from Chicago

28. Necessity for injury to shipper. — to points on the road of the Mo. Pac,
Texas, etc., R. Co. v. Interstate Com- by adding an arbitrary sum — five cents —
merce Comm., 162 U. S. 197, 40 L. Ed. to the rate from Hannibal to such points.
940, 16 S. Ct. 666. On the same day, the grocery company

29. In shipments to same person. — A sold to the same customer one barrel of
grocery company of Hannibal, Mo., or- sugar, and shipped it over the road of
dered a broker in Chicago to ship two the Mo. Pac. from Hannibal to Hepler,
barrels of sugar to a customer in Hepler, and paid the freight charges in advance,
Kan. This order was executed by ship- which were at the rate of 46 cents per
ping the sugar over the C, B. & Q. R. hundred. Held, that the two services
Co. A through bill of lading was taken were not rendered for one and the same
in the name of the broker, with the cus- party in such sense that there could be
tomer indicated as consignee, which re- no undue discrimination, within the mean-
served to the C, B. & Q. Co. the right ing of the interstate commerce act.
to forward the property from Hannibal, United States v. Tozer, 39 Fed. 369; S.
Mo., over the line of any connecting car- C, 39 Fed. 904.

rier. At the latter place the sugar was 30. In payment for construction work.^

unloaded, placed in the warehouse of the Chesapeake, etc., R. Co. v. Standard

Mo. Pac. Ry. Co., and thence loaded on Lumber Co., 174 Fed. 107, 98 C. C. A.

its cars, and carried to Hepler, where the SI, decided under Act of Feb. 4, 1887,

total freight charges, at the rate of 51 c. 104, § 3, 24 Stat. 380 (U. S. Comp. St.

cents per hundred, were paid by the con- 1901, p. 3155).



§ 4086

stock cars, in that they could be converted into coal cars when not used for live
stock; and that defendant paid mileage for the use of the cars. The refusal to
transport relators' stock in the cars oiTered at the same rates charged for stock
in the other cars was not an "unjust discrimination" in favor of the transporta-
tion company, whose cars respondent was using, within the meaning of the in-
terstate commerce act, as the circumstances and conditions were not substantially
similar. 2^

Sale of Tickets Through Broker. — A contract with a ticket broker, whereby
he is enabled to sell railroad tickets to points in another state, over the company's
line, for less than the regular fare, violates the provision of the act, prohibiting
discriminations bv common carriers.^ -

Party-Rate Tickets.— See post, "Party-Rate Tickets," § 4113.

Shipment on Through Bills of Lading. — The giving of a much lower rate
on goods shipped on through bills of lading than on goods shipped on local bills
may constitute an unjust discrimination.^^

Because of Competition. — A genuine competition which results in a reduc-
tion of freight rates negatives any unlawful intent on the part of the carrier,
and leaves open only the question as to whether the rates, as established, work
an undue preference or discrimination.^^ But a carrier can not because of compe-
tition reduce its charges on through bills of lading to about half the amount
■charged on local bills for shipments through the same points. ^^

Because of Reduced Valuation of Goods. — Where a consignee of goods
shipped from another state sues the common carrier for the value of goods lost
in transit, his right to recover their value can not be limited by the contract of

Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 112 of 214)