of payment for printing and advertising will not in any way alter the rule or limit the inhibition.97

vent 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, etc.'

"But we are to consider the language which Congress has used in passing a given law, and when the language is plain and explicit our only province is to give effect to the Act as plainly expressed in its terms. We are clearly of the opinion that, without doing violence to the language used in section 1-including the proviso-its terms cannot be held to include the transportation of goods. It is very likely that there is no substantial reason why Congress should not extend to express companies, their officers, agents and employees, corresponding privileges for free carriage of goods with those which are given to the officers, agents and employees of railroad companies in respect to transportation of persons, but -if the law is defective in this respect-the remedy must be applied by Congress and not by the courts."

97 Chicago, Indianapolis and Louisville Railway Company v. United States, 219 U. S. 486, 55 L. Ed. 305, 31 Sup. Ct. 272. The case arose out of a contract between the railroad in question and the publishers of Munsey's magazine whereby in return for certain advertising carried in the pages of that periodical the railroad agreed to issue free transportation aggregating an agreed amount to the publisher of the magazine and the members of his family and to his employees and the members of their families. The railroad company cited a statute of Indiana-it being an Indiana corporation—which prohibited railway companies from giving free tickets, free passes or free transportation, but which in express words authorized the company to issue transportation in payment for printing and advertising. The court said: "The decisive question in this case is whether the contract between the railway company and the Munsey company is repugnant to the Acts of Congress regulating commerce. In other words, could the company, in return for the transportation which it agreed to furnish and did furnish to the Munsey publisher over its interstate lines, and to his employees and to the immediate members of his and their families, accept as compensation for such service anything else than money, the amount to be determined by its published schedule of rates and charges? Upon the authority of Louisville and Nashville R. R. Co. v. Mottley, 219 U. S. 467, 55 L. Ed. 297, 31 Sup. Ct. 265, and according to the principles announced in the opinion in that case, the answer to the above question must be in the negative. The acceptance by the railway company of advertising, not of money in payment of the interstate transportation furnished to the publisher of the Munsey magazine, his employees and the immediate members of his and their families, was for the reasons given in the Mottley case, in violation of the Commerce Act. The facts in the present case show how easily, under any other rule, the Act can be evaded and the object of Congress entirely defeated. The legislative department

However the fact that one does accept free transportation in violation of the terms of the Act to regulate commerce and rides on a pass does not make him an outlaw nor deprive him of the benefit and protection of the laws of the states requiring railroad companies to use proper care and precautions in the transportation of passengers and traffic. Such a passenger does not forfeit his right to safety or such protection by accepting gratuitous carriage in violation of the law.98

intended that all who obtained transportation on interstate lines should be treated alike in the matter of rates, and that all who availed themselves of the services of the railway company (with certain specified exceptions) should be on a plane of equality. Those ends cannot be met otherwise than by requiring transportation to be paid for in money which has a certain value known to all and not in commodities or services or otherwise than in money.

"We need say but little about the Indiana statute upon which the defense is in part based. The transactions, in respect of which the government seeks relief, being interstate in their character, the Acts of Congress as to such transactions are paramount."

98 Southern Pacific Company v. Schuyler, 227 U. S. 601, 57 L. Ed. 662, 33 Sup. Ct. 277. Schuyler was employed in the railway mail service of the United States and in line therewith was entitled to ride free, at least while on official business. Called to another city by the illness of a member of his family who later died he set out to return by a mail train using as evidence of his right to transportation the commission of his appointment. The train on which he was thus riding was derailed and Schuyler was killed. An action was brought for damages on account of his death and the railroad company set up the defense that Schuyler was riding upon his pass in violation of the Act to Regulate Commerce, not being on official business and that thus being a trespasser the railroad was under no legal duty to care for his safety. The Supreme Court did not pass upon the question of whether his riding on the pass while not on official business was a violation of the Act in question but declared that in any event this fact, if granted, did not make an outlaw of him or deprive him of the protection of the law and the right to proper protection and safety. The court declared:-"Neither the letter nor the spirit of the Act makes an outlaw of him who violates its prohibition by either giving or accepting gratuitous interstate carriage. The deceased no more forfeited his life, limb or safety, and no more forfeited his right to the protection accorded by the local law to a passenger in his situation, than the carrier forfeited its right of property in the mail car upon which the deceased rode. His right to safe carriage was not derived, according to the law of Utah, from the contract made between him and the carrier, and therefore was not deduced from the supposed violation of the Hepburn Act. It arose from the fact that he was a human being of whose safety the plaintiff in error had undertaken the charge. With its consent he had

But where a pass is issued under the terms of the statute to one of the family of a railroad employee it is a gratuity and where such pass stipulates that the railroad issuing it will not be liable for injuries sustained by any one riding thereon, such a provision is valid and there can be no recovery.99

99

In constructing, improving or repairing its road or in building extensions or branches a railroad company in providing for the

placed his life in its keeping, and the local law thereupon imposed a duty upon the carrier, irrespective of the contract of carriage. The Hepburn Act does not deprive one who accepts gratuitous carriage, under such circumstances, of the benefit and protection of the law of the state in this regard. It results that the judgment under review must be affirmed, irrespective of the question whether the Hepburn Act forbids the giving of free interstate transportation to the employees of the railway mail service when not on duty."

99 Charleston and Western Carolina Railway Co. v. Thompson, 234 U. S. 576, 58 L. Ed. 1476, 34 Sup. Ct. 964. The plaintiff, a woman, sued the railroad company to recover for personal injuries inflicted upon her while a passenger upon one of the trains of such road. The court said:"The railroad pleaded that she was traveling on a free pass that exempted the company from liability, the same having been issued to her gratuitously under the Hepburn Act of June 29, 1906, c. 3591, section 1, as wife of an employee. *** The main question is whether when the statute permits the issue of a 'free pass' to its employees and their families it means what it says. The railroad was under no obligation to issue the pass. It may be doubted whether it could have entered into one, for then the services would be the consideration for the duty and the pass and by section 6 it was forbidden to charge ‘a greater or less or different compensation' for transportation of passengers from that in its published rates. The antithesis in the statute is between the reasonable charges to be shown in its schedules and the free passes which it may issue only to those specified in the Act. To most of those enumerated the free pass obviously would be gratuitous in the strictest sense, and when all that may receive them are grouped in a single exception we think it plain that the statute contemplates the pass as gratuitous in the same sense to all. It follows, or rather is saying the same thing in other words, that even on the improbable speculation that the possibility of getting an occasional free pass entered into the motives of the employee in working for the road, the law did not contemplate his work as a conventional inducement for the pass but on the contrary contemplated the pass as being what it called itself, free. As the pass was free under the statute, there is no question of the validity of its stipulations. This was conceded by the Court of Appeal, as we have stated, and is established by the decisions of this court. Northern Pacific Railway Co. v. Adams, 192 U. S. 440, 48 L. Ed. 513, 24 Sup. Ct. 408; Boering v. Chesapeake Beach Railway Co., 193 U. S. 442, 48 L. Ed. 742, 24 Sup. Ct. 515."

transportation of men and supplies for the work in question is not acting as a common carrier and in transporting such employees or supplies necessary for the work without charge or at reduced rates the railroad does not violate this clause of the Act. 100 This applies whether the work in question is done directly by the railroad company or indirectly through a contract with a third party. The arrangement or contract, however, must be entered into in good faith and not be a mere subterfuge or cloak for concealing a violation of the provisions of the law.

100 Santa Fe, Prescott and Phoenix Railway Company v. Grant Brothers Construction Company, 228 U. S. 177, 57 L. Ed. 787, 33 Sup. Ct. 474. Here the railroad in question was engaged in building westerly from its main line a branch railroad and for this purpose entered into a contract with the construction company for the necessary grading. As a part of the contract the railroad company agreed to carry the supplies and employees of the construction company at reduced rates. The construction company agreed to assume all risk of accident and loss to person and baggage. The action grew out of a loss of certain materials by fire said to have been caused from sparks of a locomotive of the railroad. The court said: "In constructing, improving or repairing its road, and in building its extensions and branches, the railroad company is providing facilities for its service as a common carrier, but of course is not acting as such. It may do the work itself, if it chooses, or it may make it the subject of contract with another. In the latter case it simply employs an appropriate agency. The haulage by the railroad company of the men, appliances and supplies, required by the contractor for the purpose of the construction or improvement, to or from the point on its line where the work is to be done, is merely incidental to the work itself. The cost of such haulage is obviously an item of expense which must be taken into acount in fixing the terms of the construction contract, and in providing for it over its own line the railroad company may adjust the matter with the contractor as it sees fit. If the railroad company did the work directly it would have to take its employees and the necessary outfit to the place of work, and it may undertake to do the like for the contractor, either free of charge or at reduced rates, as they may agree. *** It is clear that in dealing with transportation of this character over its own road, in connection with construction or improvement, a railroad company is not acting in the performance of its duty as a common carrier, and the arrangement for free or reduced-rate carriage for the necessary materials and men used in the work, when it is a part of the contract, entered into in good faith and not as a subterfuge, is not obnoxious to the provisions of law prohibiting departures from the published tariffs, for the reason that such an agreement lies outside the policy of these provisions. See Matter of Railroad-Telegraph Contracts, 12 I. C. C. Rep. 10, 11. The parties then were free to make their own bargain as to this transportation and the liability which should attach to it."

Commodit i es

clause.

The Commodities Clause.-From and after May first, nineteen hundred and eight, it shall be unlawful for any railroad company to transport from any state, territory, or the District of Columbia, to any other state, territory, or the District of Columbia, or to any foreign country, any article or commodity, other than timber and the manufactured products thereof, manufactured, mined, or produced by it, or under its authority, or which it may own in whole or in part, or in which it may have any interest, direct or indirect, except such articles or commodities as may be necessary and intended for its use in the conduct of its business as a common carrier.

The Commodities Clause was inserted in the Act to regulate commerce by the Hepburn law, approved June 29, 1906. Effective May 1, 1908, its general purpose was to prohibit railroad companies engaged in interstate commerce from being at the same time manufacturers, producers, and owners of commodities which they carry-in short to confine interstate railroads to the business of transportation for the general public. Several railroad companies, by purchase, lease or otherwise, had become possessed of various mining and manufacturing and producing properties—particularly coal mines-whose products they transported on their own account from the place of production to other states where they were marketed. The abuses which grew out of this dual relation of producer and monopolizer of transportation facilities inspired the enactment of this clause by Congress. The case of New York, New Haven and Hartford Railroad Company v. Interstate Commerce Commission, decided February 19, 1906, brought the situation to a focus. 101 The Chesapeake and Ohio Railroad had contracted to sell to the New York, New Haven and Hartford Railroad Company coal to be carried from the Kanwaha district, West Virginia mines, to Newport News by rail and thence by water to Connecticut for delivery to the buyer at $2.75 per ton; it was averred that the price of the coal at the mines and the cost of transportation from Newport News to Connecticut would aggregate $2.47 per ton, thus leaving the Chesapeake and Ohio road only about $.28 per ton for

ΙΟΙ

200 U. S. 361, 50 L. Ed. 515, 26 Sup. Ct. 272,