The practice which allows the rebate has, therefore, been adopted in a spirit of fairness to Boston and as a convenient method for equalizing the rates from western points to the foreign market, whether the route chosen by the shipper for his traffic be by way of Boston or of New York.

The petition of the Fitchburg Railroad Company states that "the New England railroads have been advised by the unanimous opinion of the counsel consulted by them that this practice was not illegal under the Interstate Commerce Bill inasmuch as the terms are available for all engaged in the like and contemporaneous transportation of such traffic under similar circumstances and conditions, and being equal to those by New York are neither unjust or unreasonable. This commercial usage has in fact been looked upon as a vested right of this port (Boston), and upon the faith of its continuance vast sums have been expended to accommodate and permanently continue the export business. Unfortunately, however, adverse legal opinions have apparently been rendered by the advisers of the trunk lines, whose action, guided thereby, has practically stopped the practice, and has seriously embarrassed the Boston export business, and threatens to put a stop to it, to the great detriment of the road and and the business interest of Boston."

The prayer of the petition is that the Commission "authorize the trunk lines to bill export freight to Boston at New York rates, or take such other action as may seem best in order that this business may be continued upon as fair and favorable a basis as it has been done hitherto."

The other petitions are not essentially different. A hearing was had upon all together, and evidence was taken in support of their allegations of fact. A party interested in the local grain and provision trade of Boston was also heard in favor of the contention that any concessions made in favor of the export trade of Boston ought in fairness to be extended to all other persons to whom grain and provisions may be consigned at that city from interior markets.

It was shown on the hearing that the Boston export trade was for the time being under considerable embarrassment arising from a doubt whether the railroad companies might

lawfully continue the rebate which has been heretofore allowed. It was not so evident, however, that the Commission had the power to give relief. Indeed the petitioners when called upon to point out the provision of the Interstate Commerce Law under which the Commission had authority to grant the relief prayed, frankly confessed there was difficulty in doing so. It was stated, however, that there were times when the rebate exceeded the ocean rates, and that then a suspension of the operation of the fourth section of the Act would be necessary, since otherwise the railroad companies would be liable to penalties for charging and receiving a greater sum for the transportation of grain and provisions from western points to Boston than from the same western points through Boston to the foreign market. But a case of this sort, it was conceded, would be quite exceptional, so that a suspension of the long and short haul clause of section four would not alone give the relief required.

What the companies desire is authority to continue payment of the rebate as well when it falls short of the ocean rates as when it exceeds it.

If what is paid under the name of a rebate were a rebate in fact, as understood in the second section of the Interstate Commerce Law, and if the effect of allowing it were to impose upon some classes of persons a greater charge for service rendered than was imposed upon others for a like and contemporaneous service, under the same circumstances, and conditions, and so effect what is described in the law as an unjust discrimination, it would neither be legal in itself nor could it be made legal by any order, assent, or permission made or given by the Commission. But as explained by the petitions and the evidence adduced in their support, the rebate has for its purpose to correct an inequality that would otherwise exist, and which, by making the cost of foreign shipments by way of Boston greater than by way of New York, would practically exclude shippers from the choice of the Boston route, though the distance from interior points to the foreign market would be practically no greater by that route than by the other. This alleged necessity for the equalization of rates on export traffic is

relied upon as the justification for the higher rate which is imposed on the traffic whose final destination is Boston, which higher rate, however, is averred to be in itself just and reasonable. If such is the real nature of the socalled rebate—if its purpose is only to do indirectly what might directly be done by bill of lading issued at the interior point of shipment for the delivery of the goods at the foreign destination, and if no discrimination is made between persons engaged in the foreign traffic, but the rebate is paid impartially, and only as a means of protecting the Boston route for the export trade against an excess in charge that would be ruinous to it, then it is obvious there is no occasion for calling upon the Commission to give sanction to a practice which would be legal without it. Indeed any legal ground for affirmative action on the part of the Commission is precluded when those who bring the practice to its attention do so with explanations of its propriety and insisting upon its lawfulness.

Whether all freights from interior points to Boston ought to be carried at rates as low as those prevailing from the same points to New York, is a question not legitimately before the Commission now.

The railroad companies, who are the only parties asking action at our hands, justify the differences now made on the ground of longer haul, while submitting to the rebate on the export trade, under a species of compulsion. If the exactions from the Boston traffic proper are excessive, the fact can only be adjudicated when somebody questions them in a proceeding instituted for the purpose of a regular investigation.

It follows from what has been said that no order should be made on the petititions, and the petitioners have leave to withdraw them.

MORRISON, Commissioner, concurs in the determination to make no order in the premises, and that leave be given to withdraw the petitions.

IN THE MATTER OF DISABLED SOLDIERS AND SAILORS.

May 19, 1887.

Whether since the passage of the Act to Regulate Commerce it is competent for the carriers subject to it to grant free transportation of persons to those who are proper subjects of charity, the Commission will not undertake to say when no controversy is pending before it, which raises the question.

SCHOONMAKER, Commissioner.

Commissioner John C. Black, of the Pension Bureau, presented a petition with accompanying papers on behalf of the members of the National Home for Disabled Volunteer Soldiers and Sailors, which set forth that prior to the taking effect of the "Act to Regulate Commerce" the various railroads of the country carried the members to and from their various Homes at half rates of fare; that the great trunk lines have signified their willingness to continue to do so, but that the other roads decline. The papers do not show the reason for their declination.

The petition asks for "a ruling by this Commission, or an order or opinion which will authorize" the objecting railroads to pursue the same course as the trunk lines" and permit the Homes and their members to receive, and the railroads of the United States to extend the half-fare rate to the Homes and their members."

If any communication had been presented from any objecting road or roads, stating the grounds of their objection, the Commission might have been better able to judge of the sufficiency of those grounds. In the absence of any such statement of reasons it may be assumed that the objection is based upon the second section of the Commerce Act, which provides that if any carrier subject to the provisions of the act shall by any special rate, etc., charge, etc., less compensation for the transportation of persons or property than it charges others for a like and contemporaneous service, under substantially similar circumstances and conditions, such car

rier shall be deemed guilty of unjust discrimination, which is prohibited and declared to be unlawful.

The meritorious character of this application and the patriotic and humane reasons urged in support of it are fully appreciated and admitted. But the Commission is not referred to any provision of the Act that authorizes it to make an order or express an opinion upon an ex parte application of this nature. In the absence of such authority an order or an opinion would have no validity or weight whatever. The fourth section of the Act, relating to long and short hauls, is the only one that confers discretionary power upon the Commission to make orders for relief in special cases, and then, only upon the application of carriers.

The twenty-second section of the Act defines the cases in the transportation of property and persons to which the act shall not apply, and ministers of religion and officers and employes of railroads are the only persons specified. The statute as enacted must be deemed to express the deliberate will of the law making body and the Commission is powerless to enlarge or restrict its scope. Nor can a construction be given to it not warranted by the language employed.

If the fair meaning of the second section is that the giving of half rates to the members of National Homes for Disabled Volunteer Soldiers and Sailors is the allowance of a special rate, etc., for a like and contemporaneous service, for certain persons not common to all, under substantially similar circumstances and conditions, then such allowance would be unjust discrimination; otherwise not.

The trunk lines, according to the petition, have taken the responsibility of assuming that the allowance of the half rates desired does not constitute unjust discrimination. Every carrier has the same right to assume its own construction of this provision. The Commission can not prematurely impose any construction upon a carrier however much some particular construction may be desired. Construction is a judicial act involving the decision of some controverted question. The orderly methods of judicial procedure must be observed. The jurisdiction of the Commission in such cases is limited to the decision of complaints for alleged vio