§ 941. Provisions of the statute.

Equal charges for like and contemporaneous service.-Sec. 2. That if any common carrier subject to the provisions of this act shall, directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect, or receive from any person or persons a greater or less compensation for any service rendered, or to be rendered, in the transportation of passengers or property, subject to the provisions of this Act, than it charges, demands, collects, or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions, such common carrier shall be deemed guilty of unjust discrimination, which is hereby prohibited and declared to be unlawful. [Interstate Commerce Act, section 2.]

Discrimination.-Sec. 3. That it shall be unlawful for any common carrier, subject to the provisions of this act, to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, or locality, or any particular description of traffic, in any respect whatsoever, or to subject any particular person, company, firm, corporation or locality, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.

Interchange of traffic.-Every common carrier subject to the provisions of this act shall, according to their respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines, and for the receiving, forwarding, and delivering of passengers and property to and from their several lines and those connecting there with, and shall not discriminate in their rates and charges between such connecting lines; but this shall not be construed as requiring any such common carrier to give the use of its tracks or terminal facilities to another carrier engaged in like business. [Interstate Commerce Act, section 3.]

Preference to United States in war time.-That in time of war or threatened war, preference and precedence shall, upon. the demand of the President of the United States, be given, over all other traffic, to the transportation of troops and material of war, and carriers shall adopt every means within their control to facilitate and expedite the military traffic.

June 29, 1906, section 2.]

[Act of

Exceptions. 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 or expositions for exhibition thereat, Or the free carriage of destitute and homeless persons transported by charitable societies,

And the necessary agents employed in such transportation, Or the issuance of mileage, excursion, 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 inmates of the National Homes or State Homes for Disabled Volunteer Soldiers and of Soldiers' and Sailors' 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 railroads 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 way be affected by this act. [Interstate Commerce Act, section 22, as amended by section 9, Act of March 2, 1889.]

Free passes: exceptions.-No carriers subject to the provisions of this Act shall after Jan. 1, 1907, directly or indirectly, issue or give any interstate free ticket, free pass or free transportation for passengers, except to its employees and their families, its officers, agents, surgeons, physicians, and attorneys at law; to ministers of religion, traveling secretaries of railroad Young Men's Christian Associations, inmates of hospitals and charitable and eleemosynary institutions, and persons exclusively engaged in charitable and eleemosynary work; to indigent, destitute, and homeless persons, and to such persons when transported by charitable societies or hospitals, and the necessary agents employed in such transportation; to inmates of the National Homes or State Homes for Disabled Volunteer Soldiers, and of Soldiers' and Sailors' Homes, including those about to enter and those returning home after discharge, and boards of managers of such Homes; to necessary caretakers of live stock, poultry and fruit; to employees on sleeping cars, express-cars, and to linemen of telegraph and telephone companies; to railway mail service employees, post-office inspectors, customs inspectors, and immigration inspectors, to newsboys on trains, baggage agents, witnesses attending any legal investigation in which the common carrier is interested, persons injured in wrecks and physicians and nurses attending such persons. Provided, that this provision shall not be construed to prohibit the interchange of passes for the officers, agents, and employees of common carriers, and their families, nor to prohibit any common carrier from carrying passengers free with the object of providing relief in cases of general epidemic, pestilence, or other calamitous visitations.

Penalty. Any common carrier violating this provision shall be deemed guilty of a misdemeanor and shall for each offense, on conviction, pay to the United States a penalty of not less.

than one hundred dollars nor more than two thousand dollars, and any person, other than the persons excepted in this provision, who uses any such interstate free ticket, free pass, or free transportation shall be subject to a like penalty. Jurisdiction of offenses under this provision shall be the same as that provided for offenses in an Act entitled "An Act to further regulate commerce with foreign nations and among the States,' approved February nineteenth, nineteen hundred and three, and any amendment thereof. [Interstate Commerce Act, as amended by Act of June 29, 1906, section 1.]

8942. Amendments of 1906,

The language of sections 2 and 3 of the original act was unchanged by the Act of 1906. The effect of the latter act on section 22 of the original act, as amended in 1889, is more doubtful. The Act of 1906 does not purport to amend section 22; the free-pass provision is in form an amendment to section 1. It can affect section 22, therefore, only as a result of the repealing clause (section 10 of the Act of 1906), which repeals all laws or parts of laws "in conflict with the provisions of this act." The first part of section 22, which refers to transportation of property is certainly not affected by the new provisions. The clause permitting the issuance of mileage, excursion, or commutation tickets is almost as clearly unrepealed, since the new provision applies only to free carriage. The provisions of section 22 as to the free carriage of persons appear all to have been included in the new act. On the whole, therefore, none of the provisions of the new act appear to be in necessary conflict with any part of section 22, and we may therefore conclude that no part of that section has been repealed. All three of these sections of the old act are therefore printed as in force.

The new provisions are two:

1. The preference to the United States in time of war.

2. The new anti-free-pass provision, with its penalties.

TOPIC A-UNDUE OR UNREASONABLE PREFERENCE OR ADVANTAGE.

[This topic is fully discussed, ante. Chapters XXI-XXIII.]

§ 943. What discrimination is forbidden.

The discrimination forbidden by the act is not confined to any one form of unfair dealing. It need not be accomplished by any particular device;

and on the other hand no device will prevent an unreasonable preference from being unlawful under the act. Scofield v. Lake Shore & M. S. R. R., 2 Int. Com. Rep. 67, 2 I. C. C. 90 (1888). It includes preference in rates: United States v. Tozer, 37 Fed. 635, 2 Int. Com. Rep. 597, on appeal 39 Fed. 904 (1889); in classification: Bates v. Pennsylvania R. R., 2 Int. Com. Rep. 715, 3 I. C. C. 435 (1889); National Hay Assoc. v. Lake Shore & M. S. R. R., 9 I. C. C. Rep. 264 (1902); and in the furnishing of facilities: Re Morris, 2 Int. Com. Rep. 617 (1889). The discrimination must be actual, not merely contemplated, as by offering a discriminative rate which is not accepted: Griffee v. Burlington & M. R. Ry., 2 Int. Com. Rep. 194 (1889); Richmond Elevator Co. v. Pere Marquette R. R., 10 I. C. C. Rep. 629 (1905); Lehigh Valley R. R. v. Ramey, 112 Fed. 487 (1902); or by giving a concession to a shipper which is not shown to have been refused to any other shipper. United States v. Hanley, 71 Fed. 672 (1896). The act applies only to the future; it does not embrace cases which occurred before the act was passed. Ottinger v. Southern Pac. R. R., 1 Int. Com. Rep. 607, 1 I. C. C. 144 (1887).

§ 944. What preference is undue and unreasonable.

In a passage often quoted Judge Jackson in Interstate Commerce Commission v. Baltimore & O. R. R., 43 Fed. 37 (1890), said: "These words necessarily involve the idea or element of comparison of one service or traffic with another similarly situated and circumstanced, and require that, to be undue and unreasonable, the preference or prejudice must relate and have reference to competing parties, producing between them unfairness and an unjust inequality in the rates charged them, respectively, for contemporaneous service under substantially the same circumstances and conditions. In determining the question whether rates give an undue preference or impose an undue prejudice or disadvantage, consideration must be had to the relation which the persons or traffic affected bear to each other and to the carrier. When and so long as their relations are similar or substantially' so, the carrier is prohibited from dealing differently with them in the matter of charges for a like and contemporaneous service. . . . The English cases referred to above, and others that might be cited, establish the rule that, in passing upon the question of undue or unreasonable preference or advantage, it is not only legitimate, but proper, to take into consideration besides the mere difference in charges, various elements, such as the convenience of the public, the fair interest of the carrier, the relative quantities or volume of the traffic involved, the relative cost of the services and profit to the company, and the situation and circumstances of the respective customers with reference to each other, as competitive or otherwise." This language was approved by the Supreme Court on appeal: Interstate Commerce Commission v. Baltimore & O. R. R., 145 U. S. 263, 36 L. Ed. 699, 12 Sup. Ct. 844, 4 Int. Com.