A ruling of the Interstate Commerce Commission which was never
enforced, the custom of the carriers being uniformly the other way,
cannot have the weight ordinarily accorded to the contemporaneous
construction of a statute by the officers upon whom is imposed the
duty of administering it.
While the Act to Regulate Commerce controls the relations of
carriers subject to the act with each other, such carriers may have
relations with other carriers who are not subject to the act, and
permission to exchange passes with other carriers subject to the
act can reasonably extend to other carriers who are not subject
thereto, the same business reasons existing in both cases.
A comparison of possibilities under different constructions of a
statute, which is but a comparison of excesses that are possible
but not likely to be practiced, is not a fair argument.
The practice of carriers exchanging passes with other carriers
has its justification in a strictly business policy, and, instead
of being a burden upon their resources, is an aid.
The permission in the proviso of § 1 of the Act to Regulate
Commerce, as amended by the Act of June 29, 1906, for the
interchange of passes by common carriers, includes the interchange
of passes with carriers not subject to the provisions of the act as
well as those who are subject thereto.
The facts, which involve the provisions of the Act to Regulate
Commerce regulating the giving and exchange of passes by carriers,
are stated in the opinion.
Page 236 U. S. 267
MR. JUSTICE McKENNA delivered the opinion of the Court.
These are direct appeals from decrees dismissing two bills filed
by the United States to enjoin the railroad company from issuing
passes to employees of common carriers not subject to the act to
regulate commerce.
The action of the railroad company is alleged to be in violation
of §§ 2 and 3 of that act, Feb. 4, 1887, 24 Stat. 379, c. 104, and
of §§ 1 and 6 as amended June 29, 1906, 34 Stat. 584, 586, c. 3591,
prohibiting rebates and preferences.
Page 236 U. S. 268
The bills were filed in pursuance of § 3 of the Act to Further
Regulate Commerce, Feb. 19, 1902, 32 Stat. 847, 848, c. 708, which
authorizes proceedings in equity to prevent common carriers from
departing from their published rates or from committing any
discrimination forbidden by law, and the basic contention of the
United States is that the giving of passes for free transportation
constituted a departure from the carrier's published rates and a
discrimination against other passengers. To this the railroad
replies that the passes issued by it, and which constitute the
ground of suit, were authorized by the so-called anti-pass
provision of § 1 of the Act to Regulate Commerce. The question
therefore is very direct and is, what does the act authorize or
prohibit?
The charge in No. 493 is that the railroad company, which is a
common carrier subject to the act, in pursuance of a standing
practice, issues passes to certain of the officers, agents, and
employees of various trans-Atlantic steamship lines, such lines not
being carriers subject to the act, while other passengers who are
transported between the same points are required to pay the
published fares, and that the railroad company will continue the
practice.
The railroad company admits the charges and avers that it
solicits transportation over its lines of freight brought to this
country by the steamship lines; that the latter in turn solicit
from shippers on the line of the railroad company the
transportation of their freight abroad; that large amounts of
traffic moving by the steamship lines are transported by the
railroad company after arrival in or before departing from the
United States, as the case may be, some of it under through bills
of lading; that the interchange of passes between the officers and
employees of the railroad and such steamship lines to the limited
extent alleged is one which, as a matter of common knowledge, has
existed and been openly followed by the railroad
Page 236 U. S. 269
company and other carriers generally for years; that its
existence was commonly known long before the passage of the
Interstate Commerce Act, by the terms of which its continuance is
permitted; that it rests upon the same consideration, including
considerations of business policy, which have always been
recognized as justifying the interchange of passes, and is
recognized and permitted by the proviso in § 1 of the act as
amended and approved June 29, 1906. The provision is as
follows:
"No common carrier subject to the provisions of this act shall
after January 1, 1907, directly or indirectly issue or give any
interstate free ticket, free pass or free transportation for
passengers, . . . 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."
The material facts in No. 494 are the same as in No. 493, with
the exception that the passes there in controversy were issued by
the railroad company to an employee of the Great Eastern Railway of
England, and a defense of the passes is made not only under the
proviso of § 1, above quoted, but under § 22 of the act as
originally enacted, which reads as follows:
"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."
In support of its contention, the United States adduces certain
rulings of the Interstate Commerce Commission, and argues that
Congress, having reenacted the statute, adopted the Commission's
construction as the proper
Page 236 U. S. 270
one. Counsel invoke a line of cases which decide, it is
contended, that a contemporaneous construction of a statute by the
officers upon whom is imposed the duty of administering it is
entitled to weight, and, unless clearly wrong, to determining
weight. The cases are familiar, the doctrine they announce a useful
one, and we are brought to the inquiry, does it apply in the case
at bar?
The first of the rulings referred to was made upon petition of
Frank Parmelee & Company. That company, which is a transfer
company transferring passengers and packages from the railroads to
the hotels in Chicago and the reverse, asked for a ruling as to
whether, under the exception contained in the proviso of § 1, it
had a right to interchange passes with the railroads. The
Commission decided that the Parmelee Company was not a carrier
subject to the act, and that therefore an interchange of passes
between it and the railroads was not permissible. In subsequent
Conference Rulings, the Commission decided that the right to issue
passes coexisted with the obligation to file tariffs, and when the
latter did not exist, the former could not be exercised. These
rulings received emphasis from the fact that "ocean carriers to
nonadjacent foreign countries" were said to be among the carriers
not subject to the act, and, under the principle announced, not
entitled to receive passes.
But these rulings were never enforced, and the custom of
carriers was uniformly the other way. Against a mere verbal
construction, therefore, permitted to languish in inactivity, we
have the unopposed practice of the companies. The Commission's
action therefore cannot have the absolute effect that the Attorney
General ascribes to it; but, keeping it in mind, let us proceed to
a consideration of the statute.
It is not denied that the words "carriers," "common carriers,"
"railroads," and "railroad companies" are used in the act with and
without the qualification, "subject to the
Page 236 U. S. 271
provisions of the act," and the number of times they are so used
is compared. It will do no good to set forth the instances. The act
was passed to regulate the conduct and affairs of the carriers of
the country, and necessarily they are brought under its provisions
and subject to them. It controls their relations, but the carriers
subject to the act may have relation with other carriers, and
special provisions would naturally be made to govern that relation.
And certainly the reasoning is not impressive which justifies an
interchange of passes between carriers subject to the act and
denies it to those not so subject, the same business reasons
existing in both cases.
Counsel for the United States sounds an alarm at such extension,
and lets imagination loose in portrayal of its consequences, and
sees included
"tap lines and other industrial railroads, street car lines,
local traction companies, omnibus transfer companies and herdic
lines, hackmen, boatmen, ferrymen, truckmen, lumber flumes, bucket
lines for ore, parcel deliveries, district messenger services,
carriers of all descriptions, both in this country and abroad"
a formidable enumeration, it must be admitted. And there must be
included, too, all their officers, all their employees and their
families. There is, however, an opposing picture. It is conceded
that carriers subject to the act may interchange passes, the
officers and employees of each carrier receiving free
transportation, and giving it to every other carrier subject to the
act, making an army of the privileged with the same discrimination
and the same burden on the passenger service of the railroads as in
the illustration of the government. There is no argument,
therefore, in a comparison of the possibilities under one
construction, rather than the other. At best, it is but a
comparison of the excesses which may be but are not likely to be
practiced. Counsel seem to think that the railroads have an eager
desire to distribute passes and burden their transportation service
with a crowd of
Page 236 U. S. 272
free passengers. Congress certainly had no such view, and gave
power to exchange passes considering that the best safeguard
against its abuse was the interest of the carriers. The cases at
bar are a typical instance of its exercise. It has its
justification in a strictly business policy, an,d instead of being
a burden upon the resources of the companies, it is an aid to them.
With these examples before us, and in view of the other reasons
which we have adduced, we see no reason to disregard the literal
terms of the statute. And this view is strengthened, not weakened,
by the proviso inserted on June 18, 1910, which is as follows:
"And provided further that this provision shall not be construed
to prohibit the privilege of passes or franks, or the exchange
thereof with each other, for . . . employees . . . of such
telegraph, telephone, and cable lines, and the . . . employees . .
. of other common carriers subject to the provisions of this
act."
36 Stat. 546, c. 309.
In such case, the statute makes a special limitation, as will be
observed; in other words, restricts the privilege of exchanging
telegraph and telephone franks for employees, etc., of such lines
and of other common carriers subject to the act -- that is, there
are words of explicit limitation.
Decree affirmed.
MR. JUSTICE McREYNOLDS took no part in the consideration and
decision of the case.