The issue by a railway company engaged in interstate commerce of
a " party-rate ticket" for the transportation of ten or more
persons from a place situated in one state or territory to a place
situated in another state or territory, at a rate less than that
charged to a single individual for a like transportation on the
same trip, does not thereby make "an unjust and unreasonable
charge" against such individual within the meaning of § 1 of the
Act of February 4, 1887, to regulate commerce, 24 Stat. 379, c.
104, nor make an "unjust discrimination" against him within the
meaning of § 2 of that act; nor give "an undue or unreasonable
preference or advantage" to the purchasers of the party-rate ticket
within the meaning of § 3.
Section 22 of that act, as amended by the Act of March 2, 1589,
25 Stat. 555, 862, c. 352, § 9, provides that discriminations in
favor of certain persons
Page 145 U. S. 264
therein named shall not be deemed unjust, but it does not forbid
discriminations in favor of others under conditions and
circumstances so substantially alike as to justify the same
treatment.
So far as Congress, in the Act to Regulate Commerce, adopted the
language of the English Traffic Act, it is to be presumed that it
had in mind the construction given by the English courts to the
adopted language, and intended to incorporate it into the
statute.
The Court stated the case as follows:
This proceeding was originally instituted by the filing of a
petition before the Interstate Commerce Commission by the
Pittsburgh, Cincinnati & St. Louis Railway Company against the
Baltimore & Ohio Railroad Company to compel the latter to
withdraw from its lines of road, upon which business competitive
with that of the petitioner was transacted, the so-called "party
rates," and to decline to give such rates in future upon such lines
of road; also for an order requiring said company to discontinue
the practice of selling excursion tickets at less than the regular
rate unless such rates were posted in its offices as required by
law. The petition set forth that the two roads were competitors
from Pittsburgh westward; that the Baltimore & Ohio road had in
operation upon its competing lines of road so-called "party rates,"
whereby
"parties of ten or more persons traveling together on one ticket
will be transported over said lines of road between stations
located thereon at two cents per mile per capita, which is less
than the rate for a single person; said rate for a single person
being about three cents per mile."
There was another charge that the defendant was in the habit of
selling excursion tickets without posting its rates for the same in
its offices, but this charge was subsequently abandoned.
The answer of the Baltimore & Ohio Railroad Company admitted
that it had at one time in effect the so-called "party rates," but
prior to the filing of the complaint had withdrawn said rates, not
that it believed that they were illegal, but because it was claimed
by other companies that said rates were put into effect in
violation of an agreement between companies belonging to a certain
association of which defendant
Page 145 U. S. 265
was a member. It further averred that said rates were in no way
a violation of the Act to Regulate Commerce, and were an
accommodation to the public, necessary to the business of
theatrical and other amusement companies, and that, when the
legality of such rates was properly raised for decision, it was
prepared to defend the legality of the same. The answer further
denied the right of the complainant to institute the proceeding,
and prayed that the complaint might be dismissed.
The cause was heard before the Commission, which found
"that so-called 'party rate' tickets, sold at reduced rates, and
entitling a number of persons to travel together on a single ticket
or otherwise, are not commutation tickets, within the meaning of
section 22 of the Act to Regulate Commerce, and that when the rate
at which such tickets for parties are sold are lower for each
member of the party than rates contemporaneously charged for the
transportation of single passengers between the same points, they
constitute unjust discrimination, and are therefore illegal."
It was ordered and adjudged
"that the defendant, the Baltimore and Ohio Railroad Company, do
forthwith wholly and immediately cease and desist from charging
rates for the transportation over its lines of a number of persons
traveling together in one party which are less for each person than
rates contemporaneously charged by said defendant under schedules
lawfully in effect for the transportation of single passengers
between the same points."
The defendant road having refused to obey this mandate, the
Commission, on May 1, 1890, pursuant to section 16 of the
Interstate Commerce Act, filed this bill in the Circuit Court of
the United States for the Southern District of Ohio for a writ of
injunction to restrain the defendant from continuing in its
violation of the order of the Commission. The bill set up the
proceedings which had theretofore been taken before the Commission,
and set forth as its gravamen that the defendant had wholly
disregarded and set at naught the authority and order of the
Commission in that regard, and had willfully and knowingly
disobeyed said order, and had not ceased and desisted from allowing
party rates as it had been ordered to
Page 145 U. S. 266
do, and had upon divers occasions since the service of said
order charged rates for the transportation over its lines of a
number of persons traveling together in one party which were less
for each person than rates contemporaneously charged under
schedules lawfully in effect between the same points for the
transportation of persons, citing a number of instances of such
disobedience.
The answer admitted the proceedings set forth in the bill, but
denied that it had been made to appear to the Commission that
defendant had violated the provisions of the Act to Regulate
Commerce, or that the Commission had duly and legally determined
the matters and things in controversy and at issue between the
parties, and averred that several of the conclusions of fact stated
in the report of the Commission were not true or justified by the
evidence produced at the hearing, and that the conclusions of law
contained in the report, and the interpretation therein given to
the act were not correct. It admitted that it had not wholly ceased
charging rates for transportation over its lines for a number of
passengers traveling together in one party upon one ticket which
are less for each person than rates contemporaneously charged by it
for the transportation of single passengers between the same
points, and admitted a violation of the order of the
Commission.
The seventh and eighth paragraphs of the answer are the material
ones, and are here given in full:
"7. That for many years prior to the passage of the said 'Act to
Regulate Commerce,' all the railroad carriers in the United States
had habitually made a rate of charge for passengers making frequent
trips, trips for long distances, and trips in parties of ten or
more lower than the regular single fare charged between the same
points, and such lower rates were universally made at the date of
the passage of said act. To carry on this universal practice, many
forms of tickets were employed to enable different classes of
passengers to enjoy these lower rates, and so stimulate travel. To
meet the needs of the commercial traveler, the thousand-mile ticket
was used; to meet the needs of the suburban resident or frequent
traveler,
Page 145 U. S. 267
several forms of tickets were used --
e.g., monthly or
quarterly tickets, good for any number of trips within the
specified time, and ten, twenty-five, or fifty trip tickets, good
for the specified number of trips by one person, or for one trip by
the specified number of persons; to accommodate parties of ten or
more, a single ticket, one-way or round-trip, for the whole party,
was made up by the agent on a skeleton form furnished for the
purpose; to accommodate excursionists traveling in numbers too
large to use a single ticket, special individual tickets were
issued to each person. Tickets good for a specified number of trips
were issued also between cities where travel was frequent. In
short, it was an established principle of the business that
whenever the amount of travel more than made up to the carrier for
reduction of the charge
per capita, then such reduction
was reasonable and just in the interests both of the carrier and of
the public. Long experience has proved the soundness of the
principle. Under its application grew up the business of commercial
travelers, the enormous suburban business, the constant travel
between large cities, and the excursion business. Under its
application has grown up also the business of traveling companies
or parties, which has reached an aggregate of many hundreds of
thousands of dollars, and which depends for its existence upon a
continuance of the transportation rates under which it has grown
up."
"8. That since the passage of the said 'Act to Regulate
Commerce,' this respondent has continued as theretofore the
practice above stated of making a lower charge on passenger travel
in consideration of the amount and frequency of the travel, and
with that purpose, and to accommodate the various classes of
passengers, it has continued in use all the forms of ticket
described in the next preceding section. That the charge fixed by
it for the transportation of parties of ten or more on a single
ticket has been two cents per mile per capita, which is the same
rate charged on thousand-mile tickets, and is a higher rate than it
charges on long distance passenger travel and excursion travel, and
higher than its general rate for suburban travel on time or other
suburban tickets. That the said charge for the transportation of
parties on a
Page 145 U. S. 268
single ticket is just and reasonable, affording a fair
compensation to the carrier, and for the best interests both of the
carrier and of the public, because any higher rate would destroy
the business. That the business reasons, circumstances, and
conditions which induced this respondent to make such lower charge
for the transportation of parties as aforesaid, and that make it
the interest of this respondent as a carrier to make such lower
charge, are precisely the same reasons, circumstances, and
conditions that induce it and make it its interest to fix a lower
charge for the transportation of passengers buying mileage tickets,
time or trip tickets, and excursionists. That while so-called
'party rate' tickets are used principally by traveling amusement
companies, because no other form of ticket meets the requirement of
such companies, yet this respondent has avoided confining such
tickets to any class of business by offering them on the same terms
to the public at large. That this respondent has obviated the
danger that such lower charge for parties might be taken advantage
of by speculators or ticket brokers by issuing only one ticket for
the whole party. And respondent avers that as such tickets are now
issued by it, they are not and cannot be used for speculative
purposes, and afford no opportunity for evading the law in the
hands of ticket brokers. This respondent further avers that it may
rightly and legally make a charge per capita for persons traveling
on said party rate tickets lower than its charge for a single
passenger making one trip between the same points, the character,
circumstances, and conditions of the service being substantially
different, and that the making of such lower charge per capita to
the member of the party makes or gives no undue or unreasonable
preference or advantage to him, and subjects no person, company,
firm, corporation, or locality, or particular description of
traffic, to any undue or unreasonable prejudice or disadvantage in
any respect whatsoever."
The answer further averred the illegality of the order of the
Commission, and averred
"that by the true construction of the act, the second section
thereof requires the same charge for transportation service only in
cases where the commercial circumstances and conditions are
substantially similar, and the
Page 145 U. S. 269
third section requires the same charge to be made only when a
difference in charge would work a prejudice or disadvantage to
someone without reason therefor; that the twenty-second section, so
far from making exceptions to an otherwise absolute rule, was
inserted merely as additional precaution to insure the giving to
the second and third sections of the act the construction which
Congress intended; that the twenty-second section is a legislative
declaration; that under the provisions of the second section of the
act, circumstances and conditions of a commercial nature are to be
considered, and among such circumstances and conditions, in the
case of passenger traffic, the amount of service purchased or
contracted for, and the interest of the carrier in stimulating
travel, are to be considered."
Upon the hearing before the circuit court upon pleadings and
proofs, the bill was dismissed, separate opinions being delivered
by Judges Jackson and Sage. 43 F. 37. From this decree the
Interstate Commerce Commission appealed to this Court. The
provisions of the Interstate Commerce Act, so far as the same are
material to this case, are set forth in the margin.
*
Page 145 U. S. 275
MR. JUSTICE BROWN delivered the opinion of the Court.
Prior to the enactment of the Act of February 4, 1887, 24 Stat.
379, c. 104, to regulate commerce, commonly known as the
"Interstate Commerce Act," railway traffic in this country was
regulated by the principles of the common law applicable to common
carriers, which demanded little more than that they should carry
for all persons who applied in the order in which the goods were
delivered at the particular station, and that their charges for
transportation should be reasonable. It was even doubted whether
they were bound to make the same charge to all persons for the same
service,
Fitchburg Railroad Co. v. Gage, 12 Gray 393;
Baxendale v. Eastern Counties Railway Co., 4 C. B. (N.S.)
63;
Great Western Railway Co. v. Sutton, L.R. 4 H.L. 226,
237;
Ex Parte Benson, 18 S.C. 385;
Johnson v.
Pensacola Railway Co., 16 Fla. 623,
Page 145 U. S. 276
though the weight of authority in this country was in favor of
an equality of charge to all persons for similar services. In
several of the states, acts had been passed with the design of
securing the public against unreasonable and unjust
discriminations. but the inefficacy of these laws beyond the lines
of the state, the impossibility of securing concerted action
between the legislatures toward the regulation of traffic between
the several states, and the evils which grew up under a policy of
unrestricted competition suggested the necessity of legislation by
Congress under its constitutional power to regulate commerce among
the several states. These evils ordinarily took the shape of
inequality of charges made, or of facilities furnished, and were
usually dictated by or tolerated for the promotion of the interests
of the officers of the corporation or of the corporation itself, or
for the benefit of some favored persons at the expense of others,
or of some particular locality or community, or of some local trade
or commercial connection, or for the destruction or crippling of
some rival or hostile line.
The principal objects of the Interstate Commerce Act were to
secure just and reasonable charges for transportation, to prohibit
unjust discriminations in the rendition of like services under
similar circumstances and conditions, to prevent undue or
unreasonable preferences to persons, corporations, or localities,
to inhibit greater compensation for a shorter than for a longer
distance over the same line, and to abolish combinations for the
pooling of freights. It was not designed, however, to prevent
competition between different roads or to interfere with the
customary arrangements made by railway companies for reduced fares
in consideration of increased mileage where such reduction did not
operate as an unjust discrimination against other persons traveling
over the road. In other words, it was not intended to ignore the
principle that one can sell at wholesale cheaper than at retail. It
is not all discriminations or preferences that fall within the
inhibition of the statute -- only such as are unjust or
unreasonable. For instance, it would be obviously unjust to charge
A a greater sum than B for a single trip from Washington to
Pittsburgh,
Page 145 U. S. 277
but, if A. agrees not only to go but to return by the same
route, it is no injustice to B to permit him to do so for a reduced
fare, since the services are not alike nor the circumstances and
conditions substantially similar, as required by section 2 to make
an unjust discrimination. Indeed, the possibility of just
discriminations and reasonable preferences is recognized by these
sections in declaring what shall be deemed unjust. We agree,
however, with the plaintiff in its contention that a charge may be
perfectly reasonable under section 1 and yet may create an unjust
discrimination or an unreasonable preference under sections 2 and
3. As was said by Mr. Justice Blackburn in
Great Western
Railway Co. v. Sutton, L.R. 4 H.L. 226, 239:
"When it is sought to show that the charge is extortionate, as
being contrary to the statutable obligation to charge equally, it
is immaterial whether the charge is reasonable or not; it is enough
to show that the company carried for some other person or class of
persons at a lower charge during the period throughout which the
party complaining was charged more under the like
circumstances."
The question involved in this case is whether the principle
above stated, as applicable to two individuals, applies to the
purchase of a single ticket covering the transportation of ten or
more persons from one place to another. These are technically known
as "party rate tickets," and are issued principally to theatrical
and operatic companies for the transportation of their troupes.
Such ticket is clearly neither a "mileage" nor an "excursion"
ticket within the exception of section 22, and upon the testimony
in this case, it may be doubtful whether it falls within the
definition of "commutation tickets," as those words are commonly
understood among railway officials. The words "commutation ticket"
seem to have no definite meaning. They are defined by Webster
(edition of 1891) as "a ticket, as for transportation, which is the
evidence of a contract for service at a reduced rate." If this
definition be applicable here, then it is clear that it would
include a party-rate ticket. In the language of the railway,
however, they are principally, if not wholly, used to designate
tickets for transportation during a limited time between
neighboring
Page 145 U. S. 278
towns, or cities and suburban towns. The party rate ticket upon
the defendant's road is a single ticket, issued to a party of ten
or more at a fixed rate of two cents per mile, or a discount of
one-third from the regular passenger rate. The reduction is not
made by way of a secret rebate or drawback, but the rates are
scheduled, posted, and open to the public at large.
But assuming the weight of evidence in this case to be that the
party rate ticket is not a "commutation ticket" as that word was
commonly understood at the time of the passage of the act, but is a
distinct class by itself, it does not necessarily follow that such
tickets are unlawful. The unlawfulness defined by sections 2 and 3
consists either in an "unjust discrimination" or an "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's 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
Page 145 U. S. 279
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 legality 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.
But whether these party rate tickets are commutation tickets
proper, as known to railway officials, or not, they are obviously
within the commuting principle. As stated in the opinion of Judge
Sage in the court below:
"The difference between commutation and party rate tickets is
that commutation tickets are issued to induce people to travel more
frequently, and party rate tickets are issued to induce more people
to travel. There is, however, no difference in principle between
them, the object in both cases being to increase travel without
unjust discrimination and to secure patronage that would not
otherwise be secured."
The testimony indicates that for many years before the passage
of the act, it was customary for railroads to issue tickets at
reduced rates to passengers making frequent trips, trips for long
distances, and trips in parties of ten or more, lower than the
regular single fare charged between the same points, and such lower
rates were universally made at the date of the passage of the act.
As stated in the answer, to meet the needs of the commercial
traveler, the thousand-mile ticket was issued; to meet the needs of
the suburban resident or frequent traveler, several forms of
tickets were issued. For example, monthly or quarterly tickets,
good for any number of trips within the specified time, and ten-,
twenty-five-, and fifty-trip tickets, good for a specified number
of trips by one person, or for one trip by a specified number of
persons; to accommodate parties of ten or more, a single ticket,
one way or round trip,
Page 145 U. S. 280
for the whole party, was made up by the agent on a skeleton form
furnished for that purpose; to accommodate excursionists traveling
in parties too large to use a single ticket, special individual
tickets were issued to each person. Tickets good for a specified
number of trips were also issued between cities where travel was
frequent. In short, it was an established principle of the business
that whenever the amount of travel more than made up to the carrier
for the reduction of the charge
per capita, then such
reduction was reasonable and just in the interests both of the
carrier and of the public. Although the fact that railroads had
long been in the habit of issuing these tickets would be by no
means conclusive evidence that they were legal, since the main
purpose of the act was to put an end to certain abuses which had
crept into the management of railroads, yet Congress may be
presumed to have had those practices in view, and not to have
designed to interfere with them except so far as they were
unreasonable in themselves, or unjust to others. These tickets,
then, being within the commutation principle of allowing reduced
rates in consideration of increased mileage, the real question is
whether this operates as an undue or unreasonable preference or
advantage to this particular description of traffic, or an unjust
discrimination against others. If, for example, a railway makes to
the public generally a certain rate of freight, and to a particular
individual residing in the same town a reduced rate for the same
class of goods, this may operate as an undue preference, since it
enables the favored party to sell his goods at a lower price than
his competitors, and may even enable him to obtain a complete
monopoly of that business. Even if the same reduced rate be allowed
to everyone doing the same amount of business, such discrimination
may, if carried too far, operate unjustly upon the smaller dealers
engaged in the same business, and enable the larger ones to drive
them out of the market.
The same result, however, does not follow from the sale of a
ticket for a number of passengers at a less rate than for a single
passenger; it does not operate to the prejudice of the single
passenger, who cannot be said to be injured by the fact
Page 145 U. S. 281
that another is able in a particular instance to travel at a
less rate than he. If it operates injuriously toward anyone, it is
the rival road which has not adopted corresponding rates; but, as
before observed, it was not the design of the act to stifle
competition, nor is there any legal injustice in one person's
procuring a particular service cheaper than another. If it be
lawful to issue these tickets, then the Pittsburgh, Chicago &
St. Louis Railway Company has the same right to issue them that the
defendant has, and may compete with it for the same traffic; but it
is unsound to argue that it is unlawful to issue them because it
has not seen fit to do so. Certainly its construction of the law is
not binding upon this Court. The evidence shows that the amount of
business done by means of these party rate tickets is very large,
that theatrical and operatic companies base their calculation of
profits to a certain extent upon the reduced rates allowed by
railroads, and that the attendance at conventions, political and
religious, social and scientific is in a great measure determined
by the ability of the delegates to go and come at a reduced charge.
If these tickets were withdrawn, the defendant road would lose a
large amount of travel and the single trip passenger would gain
absolutely nothing. If a case were presented where a railroad
refused an application for a party rate ticket upon the ground that
it was not intended for the use of the general public, but solely
for theatrical troupes, there would be much greater reason for
holding that the latter were favored with an undue preference or
advantage.
In order to constitute an unjust discrimination under section 2,
the carrier must charge or receive directly from one person a
greater or less compensation than from another, or must accomplish
the same thing indirectly by means of a special rate, rebate, or
other device; but in either case, it must be for a "like and
contemporaneous service in the transportation of a like kind of
traffic, under substantially similar circumstances and conditions."
To bring the present case within the words of this section, we must
assume that the transportation of ten persons on a single ticket is
substantially identical with the transportation of one, and, in
view of the universally accepted
Page 145 U. S. 282
fact that a man may buy, contract, or manufacture on a large
scale cheaper proportionately than upon a small scale, this is
impossible.
In this connection, we quote with approval from the opinion of
Judge Jackson in the court below:
"To come within the inhibition of said sections, the differences
must be made under like conditions -- that is, there must be
contemporaneous service in the transportation of like kinds of
traffic under substantially the same circumstances and conditions.
In respect to passenger traffic, the positions of the respective
persons or classes between whom differences in charges are made
must be compared with each other, and there must be found to exist
substantial identity of situation and of service, accompanied by
irregularity and partiality resulting in undue advantage to one, or
undue disadvantage to the other, in order to constitute unjust
discrimination."
The English Traffic Act of 1854 contains a clause similar to
section 3 of the Interstate Commerce Act, that
"no such company shall make or give any undue or unreasonable
preference or advantage to or in favor of any particular person or
company, or any particular description of traffic, in any respect
whatsoever, nor shall any such company subject any particular
person or company, or any particular description of traffic, to any
undue or unreasonable prejudice or disadvantage in any respect
whatsoever."
In
Hozier v. Caldenonian Railway, 17 Sess.Cas. (2d
Series) 302, 1 Nev. & McN. Railway Cases 27, complaint was made
by one who had frequent occasion to travel that passengers from an
intermediate station between Glasgow and Edinburgh were charged
much greater rates to those places than were charged to other
through passengers between these termini, but the Scotch Court of
Session held that the petitioner had not shown any title or
interest to maintain the proceeding, his only complaint being that
he did not choose that parties traveling from Edinburgh to Glasgow
should enjoy the benefit of a cheaper rate of travel than he
himself could enjoy. "It provides," said the court,
"for giving undue preference to parties
pari passu in
the matter, but you must bring them into
Page 145 U. S. 283
competition in order to give them an interest to complain."
This is in substance holding that the allowance of a reduced
through rate worked no injustice to passengers living on the line
of the road who were obliged to pay at a greater rate. So, in
Jones v. Eastern Counties Railway, 3 C.B. (N.S.) 718, the
court refused an injunction to compel a railway company to issue
season tickets between Colchester and London upon the same terms at
they issued them between Harwich and London upon the mere
suggestion that the granting of the later, the distance being
considerably greater at a much lower rate than the former, was an
undue and unreasonable preference of the inhabitants of Harwich
over those of Colchester. Upon the other hand, in
Ransome v.
Eastern Counties Railway, 1 C.B. (N.S.) 437, where it was
manifest that a railway company charged Ipswich merchants, who sent
from thence coal which had come thither by sea, a higher rate for
the carriage of their coal than it charged Peterboro merchants, who
had made arrangements with it to carry large quantities over its
lines, and that the sums charged the Peterboro merchants were fixed
so as to enable them to compete with the Ipswich merchants, the
court granted an injunction upon the ground of an undue preference
to the Peterboro merchants, the object of the discrimination being
to benefit the one dealer at the expense of the other by depriving
the latter of the natural advantages of his position. In
Oxlade
v. Northeastern Railway, 1 C. B. (N.S.) 454, a railway company
was held justified in carrying goods for one person for a less rate
than that at which it carried the same description of goods for
another if there be circumstances which render the cost of carrying
the goods for the former less than the cost of carrying them for
the latter, but that a desire to introduce northern coke into a
certain district was not a legitimate ground for making special
agreements with different merchants for the carriage of coal and
coke at a rate lower than the ordinary charge, there being nothing
to show that the pecuniary interests of the company were affected
and that this was an undue preference.
In short, the substance of all these decisions is that railway
companies are only bound to give the same terms to all persons
Page 145 U. S. 284
alike under the same conditions and circumstances, and that any
fact which produces an inequality of condition and a change of
circumstances justifies an inequality of charge. These traffic acts
do not appear to be as comprehensive as our own, and may justify
contracts which with us would be obnoxious to the long- and
short-haul clause of the act, or would be open to the charge of
unjust discrimination. But so far as relates to the question of
"undue preference," it may be presumed that Congress, in adopting
the language of the English act, had in mind the construction given
to these words by the English courts, and intended to incorporate
them into the statute.
McDonald v. Hovey, 110 U.
S. 619.
There is nothing in the objection that party rate tickets afford
facilities for speculation, and that they would be used by ticket
brokers or "scalpers" for the purpose of evading the law. The party
rate ticket, as it appears in this case, is a single ticket
covering the transportation of ten or more persons, and would be
much less available in the hands of a ticket broker than an
ordinary single ticket, since it could only be disposed of to a
person who would be willing to pay two-thirds of the regular fare
for that number of people. It is possible to conceive that party
rate tickets may, by a reduction of the number for whom they may be
issued, be made the pretext for evading the law and for the purpose
of cutting rates, but should such be the case, the courts would
have no difficulty in discovering the purpose for which they were
issued and applying the proper remedy.
Upon the whole, we are of the opinion that party rate tickets,
as used by the defendant, are not open to the objections found by
the Interstate Commerce Commission, and are not in violation of the
Act to Regulate Commerce, and the decree of the court below is
therefore
Affirmed.
*
"
AN ACT TO REGULATE COMMERCE"
"SEC. 1. That the provisions of this act shall apply to any
common carrier or carriers engaged in the transportation of
passengers or property wholly by railroad, or partly by railroad
and partly by water, when both are used, under a common control,
management, or arrangement, for a continuous carriage of shipment.
. . ."
"All charges made for any service rendered or to be rendered in
the transportation of passengers or property as aforesaid, or in
connection therewith, or for the receiving, delivering, storage, or
handling of such property, shall be reasonable and just, and every
unjust and unreasonable charge for such service is prohibited and
declared to be unlawful."
"SEC. 2. That if any common carrier subject to the provisions of
this act shall, directly or indirectly, by any special rate,
rebate, drawback, or other device, charge, demand, collect, or
receive from any person or persons a greater or less compensation
for any service rendered or to be rendered in the transportation of
passengers or property, subject to the provisions of this act, than
it charges, demands, collects, or receives from any other person or
persons for doing for him or them a like and contemporaneous
service in the transportation of a like kind of traffic under
substantially similar circumstances and conditions, such common
carrier shall be deemed guilty of unjust discrimination, which is
hereby prohibited and declared to be unlawful."
"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 description of traffic, to any undue or unreasonable
prejudice or disadvantage in any respect whatsoever."
"SEC. 22, as amended by the Act of March 2, 1889, c. 382, 25
Stat. 855, § 9. That nothing in this act shall prevent the
carriage, storage, or handling of property free or at reduced rates
for the United States, state, or municipal governments, or for
charitable purposes, or to or from fairs and expositions for
exhibition thereat, or the free carriage of destitute and homeless
persons transported by charitable societies, and the necessary
agents employed in such transportation, or the issuance of mileage,
excursion, or commutation passenger tickets; nothing in this act
shall be construed to prohibit any common carrier from giving
reduced rates to ministers of religion, or to municipal governments
for the transportation of indigent persons, or to inmates of the
national homes or state homes for disabled volunteer soldiers, and
of soldiers' and sailors' orphan homes, including those about to
enter and those returning home after discharge, under arrangements
with the boards of managers of said homes; nothing in this act
shall be construed to prevent railroads from giving free carriage
to their own officers and employees, or prevent the principal
officers of any railroad company or companies from exchanging
passes or tickets with other railroad companies for their officers
and employees, and nothing in this act contained shall in any way
abridge or alter the remedies now existing at common law or by
statute, but the provisions of this act are in addition to such
remedies,
provided that no pending litigation shall in any
way be affected by this act."
