TOPIC E-EXCEPTIONS.

[The justifiable character of certain reductions is discussed in Chapters XXI, XXIII.]

§ 959. Statutory exceptions not exclusive.

The exceptions named in this section of the act are not exclusive; they are given rather by way of example. As Mr. Justice Brown said in Interstate Commerce Commission v. Baltimore & Ohio R. R., 145 U. S. 163, 36 L. Ed. 699, 12 Sup. Ct. 844, Int. Com. Rep. 92 (1892): "The unlawfulness defined by sections 2 and 3 consists either in an unjust discrimination' or 'undue or unreasonable preference or advantage,' and the object of section 22 was to settle beyond all doubt that the discrimination in favor of certain persons therein named should not be deemed unjust. It does not follow, however, that there may not be other classes of persons in whose favor a discrimination may be made without such discrimination being unjust. In other words, this section is rather illustrative than exclusive. Indeed, many, if not all, the excepted classes named in section 22 are those which, in the absence of this section, would not necessarily be held the subjects of an unjust discrimination, if more favorable terms were extended to them than to ordinary passengers. Such, for instance, are property of the United States, State or municipal governments; destitute and homeless persons transported free of charge by charitable societies; indigent persons transported at the expense of municipal governments; inmates of soldiers' homes, etc., and ministers of religion, in favor of whom a reduction of rates had been made for many years before the passage of the act. It may even admit of serious doubt whether, if the mileage, excursion, or commutation tickets had not been mentioned at all in this section, they would have fallen within the prohibition of sections 2 and 3. In other words, whether the allowance of a reduced rate to persons agreeing to travel one thousand miles or to go and return by the same road is a like and contemporaneous service under substantially similar conditions and circumstances' as is rendered to a person who travels upon an ordinary single trip ticket. If it be so, then, under State laws forbidding unjust discriminations, every such ticket issued between points within the same State must be illegal. In view of the fact, however, that every railway company issues such tickets; that there is no reported case, State or Federal, wherein their illegality has been questioned; that there is no such case in England; and that the practice is universally acquiesced in by the public, it would seem that the issuing of such tickets should not be held an unjust discrimination or an unreasonable preference to the persons traveling upon them." It was accordingly held in that case that special party-rate tickets sold at a lower rate of fare were legal, though not enumerated in section 22.

Under the amendments of 1906, while this interpretation must remain

unchanged so far as the carriage of goods or the issuance of special forms of ticket is concerned, the enumeration of persons to whom free passes may be issued is so exhaustive and so carefully made that it will probably be held exclusive.

960. Carriage for the government.

The transportation of fish and eggs, distributed by the United States Commission of Fish and Fisheries, is within the exception of section 22 of the act. Re United States Commission of Fish and Fisheries, 1 Int. Com. Rep. 609, 1 I. C. C. 21 (1887). Under this exception a carrier may make special rates with individuals to enable the latter to make proposals to the Interior Department for transportation of Indian supplies, such transportation being for the United States. Re Indian Supplies, 1 Int. Com. Rep. 22 1 I. C. C. 15 (1887).

961. Ministers of religion.

Rates may be reduced for religious teachers as an act of charity. Re Religious Teachers, 1 Int. Com. Rep. 21 (1887). And missionaries are included in the exception. Ibid. Application must be made for a pass to the proper authority, or the minister will not be entitled to the reduction. Emerson v. Chicago, R. I. & P. Ry. 6 I. C. C. Rep. 289 (1894).

§ 962. Officers and employees.

The exception allowed in section 22 in favor of officers and employees of road does not include the families of such persons. Ex parte Koehler, 31 Fed. 315, 1 Int. Com. Rep. 317 (1887). As Judge Deady said: "The language of the exception is explicit. There is no room for interpretation or construction. The words cannot be made to include the family of an employee, without violence to the apparent purpose of the Legislature. Doubtless it would be expedient to include the immediate family-the wife and minor children-of the employee in this exception. By this means the corporation might, without material cost to itself or prejudice or injustice to anyone, augment in a graceful way the compensation and convenience of faithful servants. But the remedy, if any, is with Congress and not the courts."

§ 963. Mileage, excursion and commutation tickets.

The provision of the Act allowing the issuance of mileage, excursion and commutation tickets, authorizes special rates to commuters, which are less per mile than the charges to other passengers for long distances. The discrimination thus created is not unjust, nor are places outside the commutation territory thereby subjected to undue prejudice. Sprigg v. Baltimore & O. R. R., 8 Int. Com. Rep. 443 (1900).

A party-rate ticket is not a mileage" or "excursion" ticket, within the provisions of this section; nor does it seem to be included in the phrase commutation ticket." The words "commutation ticket," in the language of the railway, are principally, if not wholly, used to designate tickets for transportation during a limited time between neighboring towns, or cities and suburban towns. Interstate Commerce Commission v. Baltimore & O. R. R., 145 U. S. 263, 36 L. Ed. 699, 12 Sup. Ct. 844, 4 Int. Com. Rep. 92 (1892).

Mileage tickets, issued under this clause, must be sold for a reasonable rate and without discrimination. Larrison v. Chicago & G. T. Ry., 1 Int. Com. Rep. 369, 1 I. C. C. 147 (1887); Troy Board of Trade v. Alabama M. Ry., 6 I. C. C. Rep. 1 (1894); Freight Bureau v. Cincinnati, N. O. & T. P. Ry., 6 I. C. C. Rep. 195 (1895).

CHAPTER XXX.

DISCRIMINATION BETWEEN LOCALITIES.

§ 971. Provisions of the statute.

972. Amendments of 1906.

TOPIC A-UNDUE PREJUDICE.

§ 973. What constitutes undue prejudice.

974. Distance as a factor in the rate.

975. Group rates.

976. Difference between through and local rates.

977. Equalizing advantages.

978. Discrimination against staple industry of a locality.

979. Milling or compressing in transit.

980. Discrimination in facilities.

981. Instances of local discrimination.

TOPIC B-SUBSTANTIALLY SIMILAR CIRCUMSTANCES AND

CONDITIONS.

§ 982. Substantial difference of conditions.

983. Competition.

TOPIC CLONG AND SHORT HAUL.

§ 984. General principles governing the section.

985. Competition.

986. Relief from operation of the section.

§ 971. Provisions of the statute.

Discrimination between localities.-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 descrip

tion of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever. Interstate Commerce Act, section 3.]

Long and short haul clause.-Sec. 4. That it shall be unlawful for any common carrier subject to the provisions of this Act to charge or receive any greater compensation in the aggregate for the transportation of passengers or of like kind of property, under substantially similar circumstances and conditions, for a shorter than for a longer distance over the same line, in the same direction, the shorter being included within the longer distance; but this shall not be construed as authorizing any common carrier within the terms of this act to charge and receive as great compensation for a shorter as for a longer distance.

Provided, however, that upon application to the Commission appointed under the provisions of this Act, such common carrier may, in special cases, after investigation by the Commission, be authorized to charge less for longer than for shorter distances for the transportation of passengers or property; and the Commission may from time to time prescribe the extent to which such designated common carrier may be relieved from the operation of this section of this Act. [Interstate Commerce Act, section 4.]

§ 972. Amendments of 1906.

That part of the Act which forbids discrimination between localities was untouched by the amendments of 1906, in spite of the fact that the administration of the long and short haul clause by the courts had given much dissatisfaction.

TOPIC A-UNDUE PREJUDICE.

[These matters are discussed fully in Chapter XXV.]

973. What constitutes undue prejudice.

It is not enough under the act that freight charges to a certain place should be reasonable. Rates must be relatively reasonable as compared