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expense of municipal governments; inmates of soldier's homes, etc. A misapprehension under which a party has paid for one journey in two sections, whereby the cost of the transportation has been made more than it would have been had a through ticket been purchased, may lawfully be corrected by return of the excess, though the carriers were without fault and only charged for each portion of the journey the regular rates." Interstate Commerce Commission v. Baltimore & 0. R. Co. 145 U. S. 263,

36 L. ed. 699, 4 Inters. Com. Rep. 92. ? Sanger v. Southern Puc. R. Co. 2 Inters. Com. Rep. 548.

CHAPTER XXIV.

TICKETS. § 140. Free Tickets. § 141. Party Rates. § 142. Commutation Rates and Tickets. $ 143. Mileage Tickets. $ 144. Excursion Tickets.

$ 140. Free Tickets. Unreasonable and unlawful preference may be given by a com. mon carrier by granting free transportation over its lines from one state into another to one passenger while denying it to others. Such carrier is guilty of misdemeanor under the Interstate Commerce Act, and for such an offense an indictment will lie against any officer, director, agent or employé who aids and abets in such violation of the law, as well as against the carrier, such officers and employés having knowledge that they were engaged in an illegal act. This does not apply to transportation of officers and employés of the carrier.'

Section 2 of the Act prohibits giving of passes to particular persons; and the exception allowed in section 22 in favor of officers and employés of road does not include the families of such persons. Where passes issued to a company's ex-employé, good for twenty days, were not used, and no one was ever transported upon them, a charge of unjust discrimination cannot be sustained.'

Free transportation by an interstate carrier, issued in the form of an annual pass to a person not in the regular and stated service of the carrier nor receiving any wages or salary under a contract of employment, but requested by him as compensation for throwing in its way what business he conveniently could,—is illegal. The action of a railroad company in granting to members of

United States v. Cleveland, C. & 8. R. CO. 3 Inters. Com. Rep. 290.
' Ex parte Koehler, 1 Inters. Com. Rep. 317, 31 Fed. Rep. 315.
3Griffee v. Burlington & M. R. R. Co. 2 Inters. Com. Rep. 194.
"Slater v. Northern Pac. R. O.. 2 Inters. Com. Rep. 243.

the city council of New Orleans and the clerk of that body, 0.1 account of their official positions, free transportation as passengers over all or some portion of its interstate lines, violates the Act to Regulate Cominerce, and is unlawful.' A carrier is bound to charge equally to all persons regardless of their relative individual standing in the community. The words “under substantially similar circumstances and conditions" relate to the nature and character of the service rendered by the carrier, and not to the official, social or business position of the passenger. Section 22 of the Act is exceptive in character and only applies to the persons and subjects expressly specified therein. A carrier issued passes entitling the holders to free transportation over the lines of its system, extending into the states of Maine, New Hampshire, Vermont and Massachusetts; there were several classes of the persons who received the passes, among them, gentlemen long eminent in the public service, higher officers of the states, prominent officials of the United States, members of the legislative railroad committees of the above named states, and persons whose good will was claimed to be important to the defendant; but it was adjudged that the giving of free transportation to such persons was a violation of the Act to Regulate Commerce.'

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$ 141. Party Rates.

The English decisions are numerous. As our Act to Regulate Commerce has adopted substantially sections 2 and 90 of the English Railway Traffic acts of 1845 and 1854, the settled construction which the English courts had given to their terms and provisions must be received and incorporated into our statutes.' The English cases referred to, and also others that might be cited, establish the rule that in passing upon the question of undue preference or disadvantage it is not only legitimate but proper to take into consideration, besides the mere difference in charges, various elements, such as the convenience of the public, the fair interests of the carrier, the relative quantities or volume of the traffic involved, the relative cost of the services and profit to the company, and the situation and circumstances of the respective customers with reference to each other as competitive or otherwise. And the case of Denaby Main Colliery Co. v. Manchester, S. & L. R. Co., L. R. 11 App. Cas. 97, established that the burden of proving the undue preference or the undue prejudice rests upon the complaining party. In this case the Earl of Selborne, after referring to the objection that it was not shown by the carrier that the reduced rates corresponded with the reduced cost to the company, said: "I do not find in the Act that when there is a real difference of circumstances, and nothing to show any want of good faith, the burden of justifying the exact difference of charge (or what is the same thing, the deduction or allowance) by showing a numerical or necessary relation between it and the actual saving in cost, rests upon the company.” Section 27 of the Act of August 10th, 1888,' for the better regulation of railway and canal traffic, changed this rule by providing that where inequalities in rates exist, “the burden of proving that such lower charge or difference in treatment does not amount to an undue preference shall lie on the railway company.” As no such provision is found in our Act, the burden of showing that the differ ence in a railroad's party and single passenger rates constitutes undue preference in favor of the former, or undue prejudice or disadvantage against the latter, devolves upon the complainant, and must be established as the reasonable and legitimate result of the various elements or considerations above mentioned. Where there is no positive proof or suggestion that there is any want of good faith in defendant's action, or that the difference in rates complained of was inade or is continued with a view to any actual disadvantage of the single passengers or to subject the public to any inconvenience or injury, it is not to be inferred. The inquiry will be whether subjecting a railroad's rates for single passengers and for parties of ten or more traveling together on the single ticket to the test of the various considerations, indicated above by the English decisions as elements in the question, does it clearly appear that such rates are so adjusted as to give an undue or unreasonable prejudice or disadvantage upon the other class? Where it is not claimed or not shown that the single passenger rates are unjust or unreasonable; that the party rates are just and reasonable; that there is no competition or competitive relation between the two classes; that the party rates, open to all who choose to avail themselves of the same, are a convenience and benefit to a considerable portion of the traveling public; that the interests of the carrier are reasonably promoted by their use; that the cost of service is relatively or proportionally less for the party of ten or more than for the single passenger, and that the difference in charges does not appear to be improperly adjusted with reference to or unjustified by the actual saving or profit to the company,—it cannot properly be said that the traffic is of like kind and that the service is identical or under "substantially the same circumstances and conditions." The decisions of the state courts on the subject of unjust discriminations, and the considerations that may properly be referred to in passing upon the question, are in harmony with these views.'

Harvey v. Louisville & N. R. Co. 3 Inters. Com. Rep. 793. Re Boston & Maine R. R. Co. 3 Inters. Com. Rep. 717. 3Blackburn, J., in Great Western R. Co. v. Sutton, L. R. 4 H. L. 238; Hozier

v. Caledonian R. Co. 1 Nev. & M. R. Cas. 30; Jones v. Eastern Co. R. Co. 1 Nev, & M. R. Cas. 45, 8 C. B. N. S. 718; Painter v. London B. & S. O. R. Co. 2 C. B. N. S. 702; Palmer v. London & S.W. R. Co. L. R, 1 C. P. 588; Ransome v. Eastern Counties R Co. 1 C. B. N. S. 437; Orlade v. North Eastern R. Co. 1 C. B. N. S. 454; Nicholson v. Great Western R. Co. 5 C. B. N. S. 366; Billxdyke Coal Co. v. Nurth British R. CO. 2 Nev. & M.

R. Cas. 105-110; Baxendule v. Great Western R. Co. 5 C. B. N. S. 336. *McDonald v. Hovey, 110 U. S. 619, 28 L. ed. 269.

161 & 52 Vict. chap. 25.

§ 142. Commutation Rates and Tickets. Where a railroad company has established commutation rates for a particular locality, and sold commutation tickets thereat to the public, the refusal of such a ticket to a particular individual, under the same circumstances and upon the same conditions as such tickets are sold to the rest of the public, is an unjust discrimination against him, and a violation of the principles of equality which the company is bound to observe in the conduct of its business. 'Interstate Commerce Commission v. Baltimore & 0. R. Co. 145 U. S. 263, 36

L. ed. 699, 4 Iuters. Com. Rep. 92. 'See Ragan v. Aiken, 9 Lea, 609; Scofield v. Lake Shore & M. S. R. 00. 43

Ohio St. 571; Johnson v. Pensacola & P. R. Oo. 16 Fla. 623; McDuffee v.
Portland & R. CO. 52 N. H. 430; Killmer v. New York Cent. & H. R.
R. Co. 100 N. Y. 395; Shipper v. Pennsylvania R. Co. 47 Pa. 338; Chris-
tie v. Missouri Pac. R. Co. 94 Mo. 453; Bayles v. Kansas Pac R. Co. 5
L. R. A. 480, 2 Inters. Com. Rep. 643, 13 Colo. 181; Root v. Long Island

R. Co. 4 L. R. A. 331, 114 N. Y. 300.
3 State v. Delaware, L. & W. R. Co. 2 Cent. Rep. 726, 48 N. J. L. 55.

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