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words, "During the three months ending on date cancelled in the margin" and by punching that date on the margin, so that, although it was denominated a quarterly ticket, it would expire on the last day of the third month after it was purchased, notwithstanding its purchase was subsequent to the first day of the month, thereby shortening the term of the ticket to less than three months if purchased subsequently to the first day of the month, but not lessening the number of trips specified. To illustrate: If the ticket was purchased on the 10th of a month it would expire in ten days less than three months, but the number of trips named on the ticket might be taken within its life.

Prior to May 25th, 1889, the respondent company had been in the habit, as a favor to such ticket passengers, but not by obligation, of waiving the 5th and 6th conditions of the contract above stated in cases where a passenger by inadvertence did not have his commutation ticket with him on boarding a train, and of refunding to him the amount of fare which he had paid to the conductor, on presentation to the company's office of the conductor's receipt for the same and of the ticket for cancellation of the trip. But prior to said 25th of May, 1889, for the reason largely that this privilege to this class of passengers had become the subject of abuse and trouble to the respondent company, it decided to discontinue said habit. It accordingly issued a new passenger tariff of first-class passenger rates for single trip, round trip, school and commutation tickets, to take effect May 25th, 1889, between Washington and stations named thereon, and giving the number of miles to each station and the price and the rates for each kind of ticket. Then after giving instructions as to each kind of ticket specified there followed this notice: "Tickets sold at the above rates are good on any train making regular stop at destination, to be presented to the conductor each trip for proper cancellation, and admit of no stop-over privilege. No refund or rebate will be made. for failure to observe the conditions under which they are issued. Conductors will collect fare on trains from passengers without tickets by adding 25 cents to single trip rates." This tariff notice was plainly printed and filed with the

Interstate Commerce Commission and posted in the stations of the Washington & Ohio Division of the respondent company, seasonably before the said 25th of May, pursuant to the requirements of the Act to regulate commerce. From that date said company adhered to the above notice and the condition of the contract on the commutation tickets, and discontinued the former practice of refunding to commuters who failed to have and present their tickets to conductors for cancellation of the trip. On the 13th day of June, 1889, the complainant purchased one of said quarterly commutation tickets between Washington, D. C., and Herndon, Virginia, specifying that he was entitled to 180 trips between said stations, during the three months ending August 31, 1889, subject to the contract thereon, which was signed by the complainant. On the 10th day of July following he boarded a train at Herndon for Washington, and, having forgotten to. take his said ticket with him, was compelled by the conductor to pay the single-trip rate and twenty-five cents in addition, and took the conductor's receipt for the same. This was repeated on his return the same day from Washington. He did not know, when he purchased said commutation ticket, of the said change of custom in respect to refunding to commuters who failed to have their ticket on the train, but supposed the former custom was still in vogue. Neither had he observed said new tariff sheet and notices thereon in the stations, and did not know of the same. He did not, however, leave his ticket behind at Herndon in reliance on the continuance of the former practice of refunding, but because he forgot to take it.

The next day after these payments he applied to the proper office of the respondent at Washington for repayment of the money, presenting the conductor's receipts and his ticket for cancellation of the trips, but his application was refused. Thereupon he brought this petition.

The facts developed on the hearing make it probable that the complainant has brought his proceeding under a misapprehension as to the rule of the railroad company in force when he bought the ticket and at the time of his journey. This case rests on the theory that a practice once followed is

of continuing obligation, and that because the respondent at a former period refunded to holders of commutation tickets the fares paid under circumstances similar to those in his case, it was unlawful discrimination to refuse re-payment to him.

There might be force in such claim if the custom had not been discontinued before he bought his ticket. The question before this tribunal is whether the complainant has been the victim of unlawful discrimination. The evidence establishes that he has been treated precisely like all other commuters in respect to refunding since the last passenger tariff was issued and posted. Public notice was then given, as fully as is required in case of a change of rates, that there would thereafter be no refunding on failure to observe the conditions under which all tickets are issued. This was, in effect, notice of discontinuance of the former practice, and it was in fact discontinued, there having been no refunding since. Under the proof, which was undisputed on this point, the complainant clearly has no foundation for his claim of discrimination.

The complainant further contended that, having purchased his ticket on June 13, it should have continued in force three months and until September 13, and having been deprived of the twelve days in September, he is entitled to be repaid $3.24, the proportionate rate for that period, the price of the ticket having been $24.80.

This was not claimed in the petition, but it could be amended in that regard.

The answer to this claim is that the complainant knew just what he was buying at the time he purchased the ticket. It was plainly expressed on the ticket and was then noticed by him, and made the subject of inquiry and explanation. So that he bought the ticket understandingly and without fraud on the part of any one.

The complainant makes the further contention that the exaction of twenty-five cents on each of said two trips in addition to single-trip rates was in violation of the Act to regulate commerce, inasmuch as this rule of the company is

a discrimination between passengers who purchase tickets before boarding trains and those who do not; especially in view of the fact that it is a regulation of the company that ticket offices on the line of the road shall be closed two minutes before the arrival of trains.

When the matter is not regulated by statute it seems to be generally held that it is a reasonable requirement that passengers who neglect to purchase tickets at stations before embarking on cars, shall be charged additional fare, if proper conveniences and facilities are furnished them for procuring tickets.

Railroad Co. v. Parks, 18 Ill. 460;

Stephen v. Smith, 29 Vt. 160;

State v. Gould, 53 Maine 279;

Railroad Co. v. Skillman, 39 Ohio St. 444;
Crocker v. Railroad Co., 24 Conn. 249;

2 Wood Railway Law, 1402;

2 Beach, § 877.

No question was made that the amount was too much if anything extra was allowable.

case.

It would seem to follow from this generally recognized doctrine that it is not unjust discrimination to exact some additonal train fare under the circumstances existing in this In some of the above cases and in others not cited it is held that it is immaterial whether the rule was previously known to the passenger or not. There is no evidence to show that there were not proper conveniences and facilities for the sale of tickets, both at Herndon and Washington, on the said 10th day of July before the starting of the trains on which the complainant paid the extra train rates. But, however that may have been, it did not affect the complainant, as he did not intend or want to buy a ticket, as he relied on using his commutation ticket.

No unlawful discrimination being established the petition is dismissed.

D. S. ALFORD v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY.

Complaint filed August 9, 1889. Answer filed August 28, 1889. Heard at Kansas City, Mo., September 24, 1889. Brief for complainant filed December 12, 1889. Decided April 9, 1890.

In the absence of statutory provision the rights of a railroad company under a lawful agreement for a specified use of the tracks of another railroad company are measured in respect to the track use by the terms of the contract, and the provisions of the Act to regulate commerce apply to the situation created by the contract and add no authority for a different use of the tracks.

The duty of a railroad company operating its own road or a road that it controls to serve the local stations on its line does not apply to a company that has only a running privilege for through trains to reach points on its own line over a part of the road of another company which it does not control. In such a case the company is not required to disregard the conditions of its agreement, and does not violate the provisions of the Act to regulate commerce by not receiving and discharging traffic on the tracks of the proprietary company, the sufficiency of the local service rendered by the latter not being questioned.

The Union Pacific Railway Company entered into a contract with the Rock Island Railway Company by which for a valuable consideration the latter company acquired the right to run its through trains from and to points on its own road over the road of the Union Pacific Company between Kansas City and Topeka upon the condition that no intermediate business should be done by the Rock Island Company on any part of the line used under the agreement, the Union Pacific Company retaining control of the road and of its operation, and supplying transportation accommodations for the intermediate points between Kansas City and Topeka. Upon complaint made against the Rock Island Company by a resident of Lawrence, one of the intermediate towns, for refusing to perform the ordinary duties of a common carrier in receiving and discharging traffic at his town; Held, that the duties of the Rock Island Company were limited by its rights and powers under its contract and that it was not bound to do the local business prohibited by the agreement on the line used by its through trains.

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