the services of these carriers commerce would be materially crippled. The cost of transportation is always a factor in determining the possibility of placing the productions of enterprises in the markets of the world, and therefore uniformity of conditions and rates, and freedom from discriminatory features, either as to cost of transportation or conveniences and facilities, are of paramount importance to all who are concerned in transportation. Every shipper as well as every passenger, in computing the cost of transportation, is entitled to be assured on the part of the State that the public services of railways, which he purchases and uses in the conduct of his business, must cost his competitor the same price. This is a necessity, or fairness and equity cannot exist. It is the duty of the State to guarantee and enforce such equitable conditions, and it is in harmony with the spirit and letter of the Constitution that there shall be uniformity of rates and equality of facilities, with freedom from discriminations in all that pertains to the transportation of persons and commodities.

Excessive rates are of secondary importance and cannot be as harmful to commerce and public interests as lack of uniformity of rates, discriminations, drawbacks and other illegal considerations. Briefly, these are the views entertained by the Secretary of Internal Affairs with reference to the public duties of railway corporations and the laws which restrict their operations.

At the hearing in this case the complainants were represented by Mr. T. K. VanDyke, Harrisburg, and W. A. Griffith, Pittsburg, and the Railroad Company by Hon. Lyman D. Gilbert, Harrisburg, and Mr. George Stuart Patterson, Philadelphia.

From the evidence presented and the admissions made, it ap pears that a mileage book containing transportation to the extent of a thousand miles is sold to the public by the Pennsylvania Railroad Company, the Baltimore and Ohio Railroad Company, the Chesapeake & Ohio & Ohio Railroad Company the the Delaware, Lackawanna and Western Railroad Company, the Erie Railroad Company and the Lehigh Valley Railroad Company; that upon the sale of this book there is collected $30, and that the terms upon which the collection is made and the book sold appear in print on the cover of the mileage book so sold, the particularly objectionable feature being quoted in the complaint under consideration.

Many years ago the Pennsylvania Railroad Company sold to the public a thousand mile mileage book for $20. The price was fixed by the common carrier without any interference on the part of the public or of the State. The Act of 1846 gave to the Pennsylvania Railroad management the power to fix reasonable rates of transpor tation, the only limitations being that they should be reasonable, G-9-1906

but should not under any circumstances be in excess of the maximum rate fixed in the Act authorizing the incorporation of the Company. Exercising the power thus conferred, the management of the Company fixed the rate of a mileage book containing one thousand miles of transportation at $20, or two cents per mile. That the rate or price fixed by the Railroad Company in pursuance of this authority was a reasonable one from the railroad standpoint must be conceded, for it was the act of the carrier alone, and it must be admitted that no authority is so well equipped to determine and fix reasonable rates of transportation as are railway officials. Therefore the reasonableness of the remunerative features of the mileage book at $20, or at two cents per mile, can scarcely be questioned by the carrier.

A rule in the first book placed upon the market required that the purchaser should sign his name on the back of the mileage detached from the book by the conductor. Afterwards this was somewhat modified so that the purchaser was only required to sign the detached mileage in case he was required to do so by the conductor. In the mileage book now in use, being the subject of controversy in this case, the signing of the purchaser's name is required on a separate slip of paper, usually called the identification slip, and a passenger is required to sign as many identification slips as there are different conductors who detach mileage from the book.

From the first introduction of the Pennsylvania mileage book, its use by anyone save the sole and actual purchaser thereof has been strictly prohibited by the conditions under which it was sold, which conditions are said to form the contract of the sale and use thereof.

The amount of money now demanded for this Pennsylvania mileage book, sold by the Pennsylvania Railroad Company and by the other companies named in the Trunk Line Association, is $30, being $10, or 50 per cent. more than was formerly collected for this same species of transportation. In this book is a stipulation that there shall be a "refund" of $10, made on the performance of certain conditions, among which is one that no other person than the purchaser shall use the same for transportation. Is this advance of $10, collected by the Pennsylvania Railroad Company, to be considered an increase of the price of the mileage book, or is it a demand for a compulsory deposit, which deposit is to be considered a pledge for the faithful compliance with the contract, to be returned to the purchaser if its requirements have been fulfilled, and to be forfeited to the carrier in case the conditions named are disregarded by the purchaser?

If the $10 is to be considered as an advance in the charge for the mileage book, then admittedly there has been an advance of 50 per cent. in the rate per passenger per mile under this species of

passenger transportation. Assuming that the original rate for a mileage book at two cents per mile was a reasonable one, the increase of this rate 50 per cent. might raise the question that such advance was unreasonable, and if unreasonable it might be in conflict with law, for notwithstanding maximum rates are fixed yet under both state and federal laws rates must be reasonable.

Then, again, if the price of a mileage book is to be considered as $30, nothing more and nothing less, and there is afterwards a "refund" made of $10 to the purchaser, the legal status of the transaction under the full light of the Constitution which prohibits discriminations and drawbacks, would be seriously imperiled.

Section 3 and Section 7 of Article 17, of the Constitution, read as follows:

"Sec. 3. All individuals, associations and corporations shall have equal right to have persons and property transported over railroads and canals, and no undue or unreasonable discrimination shall be made in charges for, or in facilities for, transportation of freight or passengers within the state or coming from or going to any other state. Persons and property transported over any railroad shall be delivered at any station at charges not exceeding the charges for transportation of persons and property of the same class in the same direction to any more distant station; but excursion and commutation tickets may be issued at special rates."

"Sec. 7. No discrimination in charges or facilities for transportation shall be made between transportation companies and individuals, or in favor of either, by abatement, drawback or otherwise, and no railroad or canal company, or any lessee, manager or employe thereof, shall make any preferences in furnishing cars or motive power."

If the representatives of the carrier sell the usual trip ticket from Chicago to New York for, say $30, and then for some reason satisfactory to the carrier, return to the passengers one-third of the money, would not such an act be in violation of the above sections of the Constitution?

Again, if passenger transportation can be sold with the "refund" attachment, why cannot freight transportation be sold in the same manner with a condition that at the end of a certain period, or on the performance of certain specified acts prescribed by the carrier and complied with by the shipper, a "refund" of 33 1-3 per cent. shall be made?

If $10 can be so returned on a $30 purchase of either passenger or freight transportation, it would seem to be equally legal to return $10,000 on a $30,000 transportation purchase.

Carrying the mileage book feature into the sale of transportation for commodities, a field would be opened for discrimination that would in all probability result in great favoritism and advantages on the one side, with corresponding loss and crippled con

ditions on the other, while business interests would be of necessity greatly demoralized. Certainly such conditions in the transportation of persons and commodities, would be in violation of the letter and the spirit of the Constitution of Pennsylvania and the laws passed in pursuance thereof.

Obviously then, these assumed transactions cannot under any light be construed as harmonious with our fundamental law, but on the contrary would seem to be in direct violation thereof. Repulsive as these transactions would appear to be, they are in direct and parallel lines with what is actually done, only on a smaller scale, in the sale, use and disposition of the present mileage book, if it is to be considered that the actual price of the book is the fixed sum of $30.

In Section 7, Article 17 of the Constitution, it is found that "abatements" are specifically prohibited as are also "drawbacks" and other forms of repayments. The use of the word "refund" in the mileage book transaction may be the result of strenuous efforts to mistify, mislead and evade constitutional phraseology, but lexicographers will be slow to regard “refund” in any other light than as a synonym of "drawback," especially in the uses of these words as they appear respectively in the mileage book stipulation and in the Constitution, so that, when a purchaser of a mileage book se cures a "refund" of $10, it is nothing less, and cannot in any reasonable or thoughtful way be considered anything less, than a "drawback" of $10.

It is difficult and indeed impossible to see any way of escape from this conclusion. So clear and concise is the English of the Constitution on these subjects of discriminations and drawbacks that there is no room for misapprehension as to what was intended by the framers of the Constitution.

In the able argument presented at the hearing and in the brief of the learned counsel for the respondent since filed, it is contended that the $30 collection is the price of the mileage book; that the carrier has a vested right to collect three cents per passenger per mile, as authorized by the maximum rates prescribed by the Act of 1846-through which the respondent was given existence and that, having the right to collect the three cents per mile, the disposition of the whole or any part of the money so collected is entirely a matter of choice of the carrier.

This is true, providing such disposition is legal and does not constitute a "drawback" or a species of discrimination that is prohibited by the Constitution.

The passenger receipts last year for the Pennsylvania Railroad were upwards of twenty-five millions of dollars, and the average re

ceipts per passenger per mile were exactly two cents-just the old price of the mileage book,

Carrying the argument of the learned counsel for the respondent to its logical conclusion, the carrier could so adjust its rates as to secure three cents per passenger per mile, thereby increasing its passenger receipts to thirty-seven and a half millions of dollars, twelve and a half millions of dollars of which it could retain on deposit to be refunded to its passengers on such conditions as it might prescribe.

Again, the Pennsylvania had freighht receipts last year amounting to over ninety millions of dollars at an average receipt per ton per mile of a fraction over six mills. According to the contention of respondent's counsel, based on the Act of 1846, the carrier would be enabled to so adjust its freight rates as to secure at least three cents per ton per mile, which would have made its total freight revenue more than four hundred and fifty millions of dollars, four-fifths of which could have been used in a "refund" to those shippers who might comply with such restrictions in the shipping of commodities as the carrier saw fit to prescribe.

If it were possible for a corporation to exercise such extraordinary powers, it would be an encroachment upon the domain of public policy, even if the Constitution and Statute Laws were silent.

Unreasonable and unjust as such action would be if exercised by a carrier in the way of making repayments by "drawbacks," yet it is claimed that certain "drawbacks" are authorized by the Act of 1883 -a makeshift Act purporting to enforce Article 17 of the Constitution. Certain it is that Section 7, Article 17, prohibits "drawbacks," and if the Act of 1883 sanctions certain "drawbacks," such sanction does not constitute an amendment to the Constitution, and therefore the restrictive features of Section 7, Article 17, still remain notwithstanding the Act of 1883.

These observations are made upon the assumption that when the $10 was added to the price of the mileage book, it was regarded as an increase of price, and that the same was not to be considered as a deposit.

Assuming that this advance of $10 is to be regarded as a deposit and in no way connected with the price of transportation, still serious questions are involved. The important one and the one that stands at the very threshhold of the consideration is this, has a common carrier the authority, the power, to make such a demand upon the public as is involved in the collection of $10, from each purchaser of a mileage book? If, under the Constitution and laws no express powers are given that authorize carriers to make a demand for such deposits, then the act of collecting as deposits this great