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must be construed with the very comprehensive regulation of the same subject in section 1, see supra.

§ 414 (305). The section illustrative and not exclusive.-This section was construed in the Party Rate Case, § 201 (supra), where the court said, that the provision that the discriminations in favor of certain persons therein named shall not be deemed unjust, did not forbid discriminations in favor of others under circumstances and conditions so substantially alike as to justify the same treatment. The object of section 22 was to settle beyond all doubt that discriminations in favor of certain persons therein named should not be deemed unjust, and the section was rather illustrative than exclusive. The court said that many, if not all, of the excepted classes named in section 22, are those which in the absence of the section would not necessarily be held the subjects of an unjust discrimination, if more favorable terms were extended to them than to ordinary passengers.

In Ex parte Koehler, 31 Fed. 315 (1887), it was ruled by the circuit court under this section, that the exception allowed for the issuance of passes in favor of officers and employees, did not include the families of such persons, such preferences being forbidden by section 2 of the act.

In U. S. v. Chicago & N. W. Ry., 127 Fed. 785 (1904), it was ruled by the circuit court of appeals of the seventh circuit, that the government of the United States in buying transportation of a railroad for its soldiers in lots of ten or more, was not entitled to the benefit of the reduced ten party rate given by the company's schedule to theatrical, operatic or concert companies, hunting and fishing parties, glee clubs, brass or string bands and other parties of like character. The court said that the refusal to give the same rates did not constitute an unjust discrimination. These rates were for tickets closely limited in time and paid for in cash in advance, while those furnished the government were furnished on requisitions and paid after a delayed auditing; that the tickets of other classes increased the company's business, while the carrying of soldiers for the government did not. So that the conditions were essentially different under section 2.

In American Express Company v. United States, supra, § 138, the supreme court affirmed the judgment of the circuit court,

northern district of Illinois, in enjoining the express companies from giving free transportation of personal packages to the officers, employes and members of their families, and to officers of other companies and to members of their families, in exchange for passes issued by the latter to the officers of the express companies, affirming 161 Fed. Rep. 606. That although express companies were termed common carriers, they were not included in the proviso of section 1 as amended in 1906.

§ 415 (306). The section permissive only.-This section is permissive only and imposes no restriction upon the carrier as to the issuance of such tickets. Congress intended by this provision to leave the issuance of such tickets free from restriction. There is no discrimination therefore in issuing them on one occasion and not issuing them on another. 6 I. C. C. R. 113. When they are issued however whatever the occasion, they must be offered impartially to all who accept the conditions on which they are issued, and the rates at which they are sold must be published. The general requirements of the act to regulate commerce are as applicable to these classes of tickets as to any others. 2 I. C. C. R. 649, 2 Int. Com. Rep. 340. In the latter case the commission recommended the amendment of the act so as to define what should be considered excursion and commutation tickets and restrict their issue in interstate commerce so as to prevent the abuses pointed out in the opinion.

SO.

§ 416 (307). Withdrawal of commutation tickets.-Under this section carriers are allowed to issue mileage and commutation as well as excursion tickets, but they cannot be compelled to do As it is their discretion when they shall issue such tickets, it is equally within their discretion when to withdraw them. It was suggested in 8 I. C. C. R. 443, whether the allowance of commutation rates at stations on one line of a railroad system and the denial of such rates on another line of the same system, such stations being respectively of the same character, would be an undue preference or not, but the question was not involved in the case for decision. The commission in this case cited the opinion of the supreme court in Lake Shore & M. S. R. Co. v. Smith, 173 U. S. 684, 43 L. Ed. 858 (1899), where the supreme court held that the power of the legislature to enact general laws regarding the company and its affairs did not include the

power to compel it to make an exception in favor of some particular class or community and to carry the members of that class at a less sum than it has the right to charge those who were not fortunate enough to be members thereof. The commission said in this case that commutation tickets are extensively used and have become a recognized feature of suburban transportation, and that they were far from saying that a carrier who has established commutation rates for suburban service, especially when residences have been fixed and business interests adjusted in reliance upon their continuance, could suddenly or otherwise withdraw those rates and exact from its patrons the full rates charged to the occasional traveler. It was ruled in the case however that the action of the railroads in withdrawing the 180-trip quarterly tickets between Baltimore and Washington was within the limits of their discretion and did not constitute a violation of the act. As to thousand mile tickets, see 1 I. C. C. R. 156, 1 Int. Com. Rep. 393. As to mileage tickets, see 1 I. C. C. R. 147, 1 Int. Com. Rep. 369.

Indian Supplies.-When under the statute the Government contracts for the delivery of the supplies needed for the Indian service, at New York and other points designated, and then advertises for bids for the transportation of the supplies from the points of delivery to the points where they are to be made use of, this transportation at the cost of the government is "for the United States" within the meaning of section 22 of the act to regulate commerce, and is not required to be made at the regular published rates. See I. C. C. R. 15, 1 Int. Com. Rep. 22.

§ 417. The commission on excursion rates.-In 17 I. C. C. R. 212, the commission discussed the subject of excursion rates in a case wherein the citizens of Ogden complained that the semiannual excursion rates of the Oregon Short Line Railroad Company discriminated in favor of Salt Lake City and against Ogden. The railroad contended that excursion rates were entirely exempted from the operation of the act regulating commerce or. at least, as to the provisions relating to discrimination. The commission says that the inference from the decisions was that the carrier could determine for itself whether it would sell commutation, mileage, or excursion tickets, but that if it elected to sell them it must do so subject to the provisions of the act. It was not prepared to admit that under no circumstances could the

commission inquire whether undue discrimination had arisen from the issuance of such statements; but as the statute authorized discrimination in the issuance of the tickets the commission would only be justified in interfering where the privilege was plainly abused. The commission suggested that the railroad company should make a uniform passenger rate at one and onehalf cents per mile each way to all state and county fairs, and not limit them to the Mormon conference gathering; but it said that that was a matter upon which it had no authority to make any requirement.

§ 418. The jurisdiction of the commission as to commutation rates. In a recent hearing before the commission known as the Commutation Rate case, 21 I. C. C. R. 428, decided June 21, 1911, it was claimed that the commission had no jurisdiction over commutation fares. It seems that this section as originally enacted contained the provision, "That nothing in this act shall apply to

*the issuance of mileage, excursion or commutation passenger tickets." This was amended in March, 1889 so as to read, "That nothing in the act shall prevent, etc., *** the issuance of mileage, excursion or commutation tickets." The commission came to the conclusion that reading section 22 in the light of the special nature and character of commutation traffic and service, the utmost that reasonably may be said of it, as applied to commutation tickets is that it constitutes a statutory recognition of the fact that commutation is a different kind of traffic, and, therefore, is not to be compared with any other kind of passenger traffic. The commission calls attention to the fact that commuters in many cases make their homes separate from their places of business in reliance upon the commutation services. The carriage of a commuter, therefore, differs in many respects from other passenger traffic and is an independent and a special service and a special kind of traffic. The commission, therefore came to the conclusion that they had the right to examine into the reasonableness of commutation services under section 1. See supra, $181.

SECTION 23.

§ 419. Jurisdiction of United States courts to issue writs of mandamus.

420. Application of section to car shortage.

421. Commission to consist of seven members; terms; salaries.

[Jurisdiction of United States courts to issue writs of
peremptory mandamus commanding the movement of
interstate traffic or the furnishing of cars or other
transportation facilities.]

§ 419 (308). Jurisdiction of United States courts to issue writs of mandamus.-SEC. 23. (Added March 2, 1889.) That the circuit and district courts of the United States shall have jurisdiction upon the relation of any person or persons, firm, or corporation, alleging such violation by a common carrier, of any of the provisions of the Act to which this is a supplement and all Acts amendatory thereof, as prevents the relator from having interstate traffic moved by said common carrier at the same rates as are charged, or upon terms or conditions as favorable as those given by said common carrier for like traffic under similar conditions to any other shipper, to issue a writ or writs of mandamus against said common carrier, commanding such common carrier to move and transport the traffic, or to furnish cars or other facilities for transportation for the party applying for the writ: [Peremptory mandamus may issue, notwithstanding proper compensation of carrier may be undetermined.]

Provided, That if any question of fact as to the proper compensation to the common carrier for the service to be enforced by the writ is raised by the pleadings, the writ of peremptory mandamus may issue notwithstanding such question of fact is undetermined, upon such terms as to security, payment of money into the court, or otherwise, as the court may think proper, pending

[Remedy cumulative, and shall not interfere with other
remedies provided by the act.]

the determination of the question of fact: Provided, That the remedy hereby given by writ of mandamus shall be cumulative, and shall not be held to exclude or interfere with other remedies provided by this Act or the Act to which it is a supplement.

§ 420 (309). Application of section to car shortage. This section was not a part of the original act, but was first enacted in the amendatory act of March 2, 1889. It deals wholly with the remedial process of mandamus. The remedy was unsuccessfully invoked in a number of cases in the courts in which an effort was made to enforce through routing; see "Interchange of Facilities," supra, § 278. The difficulty in these cases was not

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