States, and also to the transportation in like manner of property shipped from any place in the United States to a foreign country and carried from such place to a port of transshipment, or shipped from a foreign country to any place in the United States and carried to such place from a port of entry either in the United States or an adjacent foreign country: Provided, however, That the provisions of this Act shall not apply to the transportation of passengers or property, or to the receiving, delivering, storage, or handling of property wholly within one State and not shipped to or from a foreign country from or to any State or Territory as aforesaid. The term common carrier' as used in this Act shall include express companies and sleeping car companies. The term 'railroad,' as used in this Act, shall include all bridges and ferries used or operated in connection with any railroad, and also all the road in use by any corporation operating a railroad, whether owned or operated under a contract, agreement, or lease, and shall also include all switches, spurs, tracks, and terminal facilities of every kind used or necessary in the transportation of the persons or property designated herein, and also all freight depots, yards, and grounds used or necessary in the transportation or delivery of any of said property; and the term 'transportation' shall include cars and other vehicles and all instrumentalities and facilities of shipment or carriage, irrespective of ownership or of any contract, express or implied, for the use thereof and all services in connection with the receipt, delivery, elevation, and transfer in transit, ventilation, refrigeration or icing, storage, and handling of property transported; and it shall be the duty of every carrier subject to the provisions of this Act to provide and furnish such transportation upon reasonable request therefor and to establish through routes and just and reasonable rates applicable thereto. All charges made for any service rendered or to be rendered in the transportation of passengers or property as aforesaid, or in connection therewith, shall be just and reasonable; and every unjust and unreasonable charge for such service or any part thereof is prohibited and declared to be unlawful. [34 Stat. L. 584.] "No common carrier subject to the provisions of this Act shall, after January first, nineteen hundred and seven, 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 care takers 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 visitation: Provided further, That the term 'employees' as used in this paragraph shall include furloughed, pensioned, and superannuated employees, persons who have become disabled or infirm in the service of any such common carrier, and the remains of a person killed in the employment of a carrier and ex-employees traveling for the purpose of entering the service of any such common carrier; and the term 'families' as used in this paragraph shall include the families of those persons named in this proviso, also the families of persons killed while in the service of any such common carrier. Any common carrier violating this provision shall be deemed guilty of a misdemeanor and for each offense, on conviction, shall 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. [35 Stat. L. 60.] The above paragraph was amended to read as here given by the Act of April 13, 1908, ch. 143, 35 Stat. L. 60. Originally this paragraph was as follows: "No common carrier subject to the provisions of this Act, shall, after January first, nineteen hundred and seven, 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 care takers 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 visitation. Any common carrier violating this provision shall be deemed guilty of a misdemeanor and for each offense, on conviction, shall 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." [34 Stat. L. 584.] "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. Any common carrier subject to the provisions of this Act, upon application of any lateral, branch line of railroad, or of any shipper tendering interstate traffic for transportation, shall construct, maintain, and operate upon reasonable terms a switch connection with any such lateral, branch F. S. A. Supp. - 17 257 line of railroad, or private side track which may be constructed to connect with its railroad, where such connection is reasonably practicable and can be put in with safety and will furnish sufficient business to justify the construction and maintenance of the same; and shall furnish cars for the movement of such traffic to the best of its ability without discrimination in favor of or against any such shipper. If any common carrier shall fail to install and operate any such switch or connection as aforesaid, on application therefor in writing by any shipper, such shipper may make complaint to the Commission, as provided in section thirteen of this Act, and the Commission shall hear and investigate the same and shall determine as to the safety and practicability thereof and justification and reasonable compensation therefor and the Commission may make an order, as provided in section fifteen of this Act, directing the common carrier to comply with the provisions of this section in accordance with such order, and such order shall be enforced as hereinafter provided for the enforcement of all other orders by the Commission, other than orders for the payment of money.["] [34 Stat. L. 585.] Section 1 of the Interstate Commerce Act is given in 3 Fed. Stat. Annot. 809. The Act of Feb. 19, 1903, above referred to, is given in 10 Fed. Stat. Annot. 170. Express companies, prior to this Act, were not specifically subject to the terms of the Interstate Commerce Act of 1887, and the several amendments thereto, as common carriers. By virtue of its provisions they stand as though they had been named in the Act of 1887; and they are in no respect in an attitude different from that of a railroad, save in so far as the language of the Act necessarily excludes them. Hence, conceding that prior to the passage of this law it was lawful for an express company to transport property from one state to another without demanding full rate of payment therefor as published, such transactions since this enactment are unlawful as contravening the following provisions: the second and third provisions of the Act of 1887, against unjust and unreasonable discrimination in the transportation of persons and property; the sixth section of the Act of 1887, as amended by the present Act, prohibiting the taking of any greater or less sum for the transportation of passengers or prop; erty than that named in the tariffs filed; and the first section of the Act of Feb. 19, 1903, known as the "Elkins Act," as amended by the present statute, making it unlawful to offer or accept any rebate from the published rate, or other discrimination in respect of the transportation of any property whereby any advantage is given. U. S. v. Wells-Fargo Express Co., 161 Fed. 606, affirmed 212 U. S. 522, 29 Sup. Ct. Rep. 315. Free pass Acts constituting violation of Act. Where a common carrier issues an interstate free pass to one of its employees, and the employee delivers the pass to a person not authorized by the statute to receive or use it, and such person does use the same on an interstate journey, he violates this Act; and the employee delivering the pass to such person is guilty of aiding and abetting in the violation. U. S. v. Williams, 159 Fed. 310. Effect upon contractual rights. It has been held that sections 1 and 2 of this Act do not invalidate a prior contract by which an interstate carrier has agreed, in consideration of a release from an accrued liability for damages for personal injuries, to furnish free annual passes over all of its lines to the person injured, during the natural life of such person. Such a contract is based upon a valuable consideration, amounting to payment for the passes, although they are denominated "free," and it is not the intention of the statute to operate retrospectively so as to impair vested rights. The statute is to be construed as if, in its general language, such contracts had been expressly excepted from its operation. Mottley v. Louisville, etc., R. Co., (1907) 150 Fed. 406. This case was reversed in 211 U. S. 149, on the sole ground, however, of want of jurisdiction in the federal Circuit Court, the merits of the case not being considered by the Supreme Court. Persons punishable. The prohibition of free transportation in the above section prescribes no punishment for the officer, agent, or servant of a railroad company who issues prohibited free interstate transportation, or for a person who receives free passes and instead of using them himself disposes of them to others who ride on them. The railroad company and the persons actually riding on the free transportation are alone punishable under the above section. But an officer issuing free passes, and persons receiving them and disposing of them to others who use them, may be indicted and punished, under the statute (R. S. § 5440, 2 Fed. Stat. Annot. 247), for conspiracy to cause a violation of the above section. U. S. v. Clark, (1908) 164 Fed. 75. In the Commodities Clause Cases, 213 U. S. 366, 29 Sup. Ct. Rep. 527, the Supreme Court held that under this clause of the statute it is not illegal for a railroad company to transport in interstate commerce coal which has been mined by it, but which was sold before being transported, nor to transport coal owned by a mining corporation in which the railroad is a stockholder. In these cases the construction of the clause above referred to and the constitutionality of the Act as construed were passed upon. Construction. -- The government, in this case, insisted that this provision prohibits railroad companies from transporting in interstate commerce articles or commodities other than the excepted class, which have been manufactured, mined, or produced by them or under their authority, or which they own or may have owned, in whole or in part, or in which they have or may have had any interest, direct or indirect. These prohibitions, it further was insisted, apply to the transportation by a railroad company in interstate commerce of a commodity which has been manufactured, mined, or produced by a corporation in which the transporting company is a stockholder, irrespective of the extent of such stock ownership. The text of the above clause, the court said, apparently applies four generic prohibitions; that is, it forbids a railroad carrier from transporting in interstate commerce articles or commodities (1) which it has manufactured, mined, or produced; (2) which have been so mined, manufactured, or produced under its authority; (3) which it owns in whole or in part; and (4) in which it has an interest, direct or indirect. And the court concluded that a literal construction of this clause would bring about an irreconcilable conflict between its provisions. This was arrived at upon the following reasoning: "It is clear that the two prohibitions which relate to manufacturing, mining, etc., and the ownership resulting therefrom, are, if literally construed, not confined to the time when a carrier transports the commodities with which the prohibitions are concerned, and hence the prohibitions attach and operate upon the right to transport the commodity because of the antecedent acts of manufacture, mining, or production. Certain also is it that the two prohibitions concerning ownership in whole or in part, and interest direct or indirect, speak in the present, and not in the past; that is, they refer to the time of the transportation of the commodities. These last prohibitions, therefore, differing from the first two, do not control the commodities if, at the time of the transportation, they are not owned in whole or in part by the transporting carrier, or if it then has no interest, direct or indirect, in them. From this it follows that the construction which the government places upon the clause as a whole is in direct conflict with the literal meaning of the prohibitions as to ownership and interest, direct or indirect. If the first two classes of prohibitions as to manufacturing, mining, or production be given their literal meaning, and therefore be held to prohibit, irrespective of the relation of the carrier to the commodity at the time of transportation, and a literal interpretation be applied to the remaining prohibitions as to ownership and interest, thus causing them only to apply if such ownership and interest exist at the time of transportation, the result would be to give to the statute a self-annihilative meaning. This is the case, since, in practical execution, it would come to pass that where a carrier had manufactured, mined, and produced commodities, and had sold them in good faith, it could not transport them; but, on the other hand, if the carrier had owned commodities and sold them it could carry them without violating the law. The consequence, therefore, would be that the statute, because of an immaterial distinction between the sources from which ownership arose, would prohibit transportation in one case and would permit it in another like case." In view of this conflict the court considered it necessary to harmonize the provisions of the clause by construing all the prohibitions as contemplating dissociation of railroad companies from the products which they transport, prior to transportation, whether the association resulted from manufacture, mining, production, or ownership, or interest, direct or indirect. In regard to the nature and character of the interest embraced by the words "in which it may have any interest, direct or indirect," the court held that this "includes only commodities in which a carrier has a legal interest, and therefore does not exclude the right to carry commodities which have been manufactured, mined, produced, or owned by a separate and distinct corporation, simply because the transporting carrier may be interested in the producing, etc., corporation as an owner of stock therein." The court concluded that the statute is to be construed "as prohibiting a railroad company engaged in interstate commerce from transporting in such commerce articles or commodities under the following circumstances and conditions: (a) when the article or commodity has been manufactured, mined, or produced by a carrier or under its authority, and at the time of transportation the carrier has not, in good faith, before the aet of transportation, dissociated itself from such article or commodity; (b) when the carrier owns the article or commodity to be transported, in whole or in part; (c) when the carrier, at the time of transportation, has an interest, direct or indirect, in a legal or equita. ble sense, in the article or commodity, not including, therefore, articles or commodities manufactured, mined, produced, or owned, etc., by a bona fide corporation in which the railroad company is a stockholder." Mr. Justice Harlan dissented from the majority of the court, saying: "In my judgment the Act, reasonably and properly construed, according to its language, includes within its prohibitions a railroad company transporting coal, if, at the time, it is the owner, legally or equitably, of stock certainly, if it owns a majority or all the stock-in the company which mined, manufactured, or produced, and then owns, the coal which is being transported by such railroad company. Any other view of the Act will enable the transporting railroad company, by one device or another, to defeat altogether the purpose which Congress had in view, which was to divorce, in a real, substantial sense, production and transportation, and thereby to prevent the transporting company from doing injustice to other owners of coal." instrument, and does not confer on Congress plenary power to control, restrict, and prohibit interstate commerce arbitrarily, without regard to any rights of personal liberty and property; and that the clause above, forbidding railroad companies to transport articles manufactured, mined, or produced by them, etc., is void so far as it attempts to prohibit railroad companies from transporting coal from mines owned and operated by them, under legislative authority, long prior to the passage of the Act, because such prohibition is a deprivation of liberty and property without due process of law, in contravention of the Fifth Amendment to the Federal Constitution. Contentions that the clause transcends the limits of regulation of commerce, that it is void because of the exception as to timber and the manufactured products thereof, and that it is void because of the nature and character - of the penalties which it imposes, the court held to be without merit. Switch connections. This clause relating to this subject is intended to provide that shippers located upon branch or lateral lines shall be accorded the same kind of treatment that is furnished to those whose mines are located on the main line of the carrier. U. S. v. Baltimore, etc., R. Co., (C. C. A.) 165 Fed. 131. Cars not owned by carrier. The duty under this provision and the Act (Act Feb. 4, 1887, ch. 104, sec. 3) amended by it of furnishing a fair and equal distribution of facilities to shippers cannot be evaded by the carrier by claiming that it is not the owner of a portion of the cars carried over its lines. U. S. v. Baltimore, etc., R. Co., (C. C. A.) 165 Fed. 113. In addition to the annotations of this section, see also infra, notes to sec. 2. con. SEC. 2. [Schedules - rates and joint rates to be filed and posted necting roads details required rates through foreign countries — customs duty charged if rates not posted-changes-notice required acceptance of joint tariff by carriers - copies of traffic contracts, etc., to be filed - forms of schedules-transportation forbidden unless rates filed, etc. - charges to be as specified rebates prohibited meaning of "carrier"- military traffic in time of war.] That section six of said Act, as amended March second, eighteen hundred and eighty-nine, be amended so as to read as follows: "SEC. 6. That every common carrier subject to the provisions of this Act shall file with the Commission created by this Act and print and keep open to public inspection schedules showing all the rates, fares, and charges for transportation between different points on its own route and between points on its own route and points on the route of any other carrier by railroad, by pipe line, or by water when a through route and joint rate have been established. If no joint rate over the through route has been established, the several carriers in such through route shall file, print and keep open to public inspection as aforesaid, the separately established rates, fares and charges applied to the through transportation. The schedules printed as aforesaid by any such common carrier shall plainly state the places between which property and passengers will be carried, and shall contain the classification of freight in force, and shall also state separately all terminal charges, storage charges, icing charges, and all other charges which the Commission may require, all privileges or facilities granted or allowed and any rules or regulations which in any wise change, affect, or determine any part or the aggregate of such aforesaid rates, fares, and charges, or the value of the service rendered to the passenger, shipper, or consignee. Such schedules shall be plainly printed in large type, and copies for the use of the public shall be kept posted in two public and conspicuous places in every depot, station, or office of such carrier where passengers or freight, respectively, are received for transportation, in such form that they shall be accessible to the public and can be conveniently inspected. The provisions of this section shall apply to all traffic, transportation, and facilities defined in this Act. Any com mon carrier subject to the provisions of this Act receiving freight in the United States to be carried through a foreign country to any place in the United States shall also in like manner print and keep open to public inspection, at every depot or office where such freight is received for shipment, schedules showing the through rates established and charged by such common carrier to all points |