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referred to as an amendment to the Interstate Commerce Act. The material portion of the act relied upon reads as follows:

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"Section 1. That the provisions of this act shall apply to any corporation or any person or persons engaged in the transportation of oil or other commodity, except water and except natural or artificial gas, by means of pipe lines or partly by pipe lines and partly by railroad or partly by pipe lines and partly by water, and to telegraph, telephone, and cable companies (whether wire or wireless) engaged in sending messages from one state, territory, or District of the United States, to any other state, territory, or District of the United States, or to any foreign country, who shall be considered and held to be common carriers within the meaning and purpose of this act, and to any common carrier or carriers engaged in the transportation of passengers or property wholly by railroad. All charges made for any service rendered or to be rendered in the transportation of passengers or property and for the transmission of messages by telegraph, telephone, or cable, 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: Provided, that messages by telegraph, telephone, or cable, subject to the provisions of this act, may be classified into day, night, repeated, unrepeated, letter, commercial, press, Government, and such other classes as are just and reasonable, and different rates may be charged for the different classes of messages: and provided further, that nothing in this act shall be construed to prevent telephone, telegraph, and cable companies from entering into contracts with common carriers, for the exchange of services." Comp. St. 1913, § 8563.

In support of its contention that the "exchange of service" referred to in this amendment supports the contract in question, reference is made to the court's opinion in the case of Baltimore & Ohio Railroad Company v. Western Union Telegraph Company, 241 Fed. 162, which decision has since been affirmed by the United States Circuit Court. of Appeals for the Second Circuit. In view of this authority, I announce my conclusions, which differ from those of the learned courts whose opinions have been referred to, with some hesitancy.

The history of the times, so far as it pertains to the regulation of commerce, is out of harmony with plaintiff's contention. From 1887, when the Interstate Commerce Act was passed, down to the present time, it has been the evident intent and purpose of Congress to require the railroads to render service at reasonable and uniform rates. While less appreciated generally, the value of uniformity in the rates charged by a common carrier is as great as the advantage that comes from reasonable rates.

Not only was it the purpose of Congress to secure uniformity of rates in the act to regulate commerce enacted in 1887, but that intent and purpose has been since frequently re-expressed in the various amendments to that act that have been passed by this same body. The Hepburn amendment, enacted in 1906, not only expressed such an intent, but endeavored to avoid evasions of the law. After this amendment became effective, section 6 of the act to regulate commerce, generally known as the Interstate Commerce Act, read as follows:

"No carrier, unless otherwise provided by this act, shall engage or participate in the transportation of passengers or property, as defined in this act, unless the rates, fares, and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of this act; nor shall any carrier charge or demand or collect or receive a greater or less or different compensation for such transportation of passengers

or property, or for any service in connection therewith, between the points named in such tariffs than the rates, fares, and charges which are specified in the tariff filed and in effect at the time; nor shall any carrier refund or remit in any manner or by any device any portion of the rates, fares, and charges so specified, nor extend to any shipper or person any privileges or facilities in the transportation of passengers or property, except such as are specified in such tariffs. *" Comp. St. 1916, § 8569.

Two decisions by the United States Supreme Court followed shortly thereafter and are particularly enlightening. In the case of Chicago, I. & L. Ry. Co. v. United States, 219 U. S. 486, 31 Sup. Ct. 272, 55 L. Ed. 305, the court said:

"The decisive question in this case is whether the contract between the railway company and the Munsey Company is repugnant to the acts of Congress regulating commerce. In other words, could the company, in return for the transportation which it agreed to furnish and did furnish to the Munsey publisher over its interstate lines, and to his employés and to the immediate members of his and their families, accept as compensation for such service anything else than money, the amount to be determined by its published schedule of rates and charges? Upon the authority of Louisville & Nashville R. R. Co. v.. Mottley, 219 U. S. 467 [31 Sup. Ct. 265, 55 L. Ed. 297, 34 L. R. A. (N. S.) 671]. just decided, and according to the principles announced in the opinion in that case, the answer to the above question must be in the negative. The acceptance by the railway company of advertising, not of money in the payment of the interstate transportation furnished to the publisher of the Munsey Magazine, his employés and the immediate members of his and their families, was for the reasons given in the Mottley Case, in violation of the Commerce Act. The facts in the present case show how easily, under any other rule, the act can be evaded, and the object of Congress entirely defeated. The legislative department intended that all who obtained transportation on interstate lines should be treated alike in the matter of rates, and that all who availed themselves of the services of the railway company (with certain specified exceptions) should be on a plane of equality. Those ends cannot be met otherwise than by requiring transportation to be paid for in money which has a certain value known to all and not in commodities or services or otherwise than in money."

In the case of Louisville & Nashville Railroad Co. v. Mottley, 219 U. S. 467, 31 Sup. Ct. 265, 55 L. Ed. 297, 34 L. R. A. (N. S.) 671, the court said:

"In our opinion, after the passage of the Commerce Act, the railroad company could not lawfully accept from Mottley and wife any compensation 'different' in kind from that mentioned in its published schedule of rates. And it cannot be doubted that the rates or charges specified in such schedule were payable only in money. They could not be paid in any other way, without producing the utmost confusion and defeating the policy established by the acts regulating commerce. The evident purpose of Congress was to establish uniform rates for transportation, to give all the same opportunity to know what the rates were as well as to have the equal benefit of them. To that end the carrier was required to print, post, and file its schedules and to keep them open to public inspection. No change could be made in the rates embraced by the schedules, except upon notice to the Commission and to the public. But an examination of the schedules would be of no avail, and would not ordinarily be of any practical value, if the published rates could be disregarded in special or particular cases by the acceptance of property of various kinds, and of such value as the parties immediately concerned chose to put upon it, in place of money for the services performed by the carrier. The passenger has no right to buy tickets with services, advertising, releases, or property, nor can the railroad company buy services, advertising, releases, or property with transportation. The statute manifestly means that the purchase

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of a transportation ticket by a passenger and its sale by the company shall be consummated only by the former paying cash and by the latter receiving cash of the amount specified in the published tariffs. In the first of the cases last above cited [the Goodridge Case, 149 U. S. 690, 691, 13 Sup. Ct. 970, 37 L. Ed. 986] the court, referring to the practice of allowing rebates, said: 'So opposed is the policy of the act to secret rebates of this description that it requires a printed copy of the classification and schedule of rates to be posted conspicuously in each passenger station for the use of the patrons of the road, that every one may be apprised, not only of what the company will exact of him for a particular service, but what it exacts of every one else for the same service, so that in fixing his own prices he may know precisely with what he has to compete.'

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The foregoing is but a brief account of the history of railroad rate regulation pertinent to the question under consideration, and a brief statement of the law as it stood in 1910, when the amendment to the act to regulate commerce, relied on by the plaintiff, was enacted. The railroads were then without authority to make a contract with a telegraph company, or any one else, whereby as carriers they rendered services at rates different from those charged the general public. This state of the law was the result of successive acts of Congress, each succeeding one going further than its predecessor in eliminating discriminating and preferential rates.

It is claimed by the plaintiff, however, that this act of June 18, 1910, amending the act of February 4, 1887 (Comp. St. 1916, § 8563, subd. 3), gave to the carrier the authority which was denied it by the previous acts of Congress as interpreted by the Interstate Commerce Commission and the Supreme Court of the United States.

Examining the history of this amendment, we find that the purpose and object of the legislation was to include telegraph, telephone, and cable companies, etc., within the provisions of the act to regulate commerce. The amendment of 1910 was not intended to in any way affect the regulation of railroads. It neither added to nor detracted from the power of carriers in respect to rates. The amendment had for its object the bringing within government regulation of quasi public corporations, somewhat similar in their nature and business to common carriers, and was in harmony with public sentiment throughout the nation, voiced by legislation, both state and national. If the carrier did not have the authority to make the contract prior to 1910, it is difficult to see how an act bringing telegraph and telephone companies within the provisions of the law furnished the authority.

But the learned counsel for the plaintiff contends that the amendment was passed by Congress with a full appreciation on its part of the close relation and interdependence of telegraph companies and carriers, and with a full appreciation of the difficulty encountered in charging regular rates for the varied services rendered. Appreciating this situation, it is claimed that the amendment of 1910 expressly ratified the form of contract in existence between most of the telegraph companies and the carriers of the country, which contracts were in all material respects similar to the one here under consideration.

Defendant does not seriously dispute that the effect of this amendment was to ratify the contract so far as "on-line" service was con

cerned, but denies that it gave validity to these contracts so far as "offline" service was concerned.

In view of the defendant's contention, it is interesting to examine the reports of the Commission and the decisions of the courts to determine whether there was in fact a distinction between "on-line" service and "off-line" service of a carrier.

This court's attention is called to the Twenty-First Annual Report of the Interstate Commerce Commission, page 25, where the Commission, speaking of the telegraph railroad contracts, said:

"So far as the Commission could see, the full performance of such contracts by the carriers with whom they are made would not affect any public or private interest adversely. Nevertheless the Commission knows of no provisions of law now in force that vests it with authority, or any clause in the law that affords it a reasonable ground, to differentiate "off-line" service of carriers by telegraph companies by transportation of merchandise or any other form of private property for shippers."

In the case of Santa Fé, Prescott & Phoenix Ry. Co. v. Grant Bros. Construction Co., 228 U. S. 177, 33 Sup. Ct. 474, 57 L. E. 787, the following language, used by Mr. Justice Hughes, speaking for the entire court, is instructive:

"It is clear that in dealing with transportation of this character over its own road, in connection with construction or improvement, a railroad company is not acting in the performance of its duty as a common carrier, and the arrangement for free or reduced rate carriage for the necessary materials and men used in the work, when it is a part of the contract, entered into in good faith and not as a subterfuge, is not obnoxious to the provisions of law prohibiting departures from the published tariffs, for the reason that such an agreement lies outside the policy of these provisions. See Matter of RailroadTelegraph Contracts, 12 Interst. Com. Com'n R. 10, 11."

Still another decision by the Supreme Court, supporting the Interstate Commerce Commission ruling and reversing a decision of the Commerce Court, is that of Interstate Commerce Commission v. Baltimore & Ohio R. R. Co., 225 U. S. 326, 32 Sup. Ct. 742, 56 L. Ed. 1107, Ann. Cas. 1914A, 504. The question in that case was whether the railroad company could charge a different rate for transportation of coal to a given point to a railroad than to other shippers; the coal being intended for use by the railroad as fuel. The court held that the rate charged must be the same as the rate charged other persons for the same service. In that case the court said:

"The circumstances and conditions which may so far be considered as distinguishing traffic so as to take from different transportation charges the vice of preference, have been described by this court. In Wight v. United States, 167 U. S. 512, 518 [17 Sup. Ct. 822, 42 L. Ed. 258], it is said: 'It was the purpose of the section (2) to enforce equality between shippers, and it prohibits any rebate or any device by which two shippers shipping over the same line, the same distance, under the same circumstances of carriage, are compelled to pay different prices therefor.'"

Again the court said:

"It is admitted that the fact that the railroad is the shipper or consumer is not a circumstance or condition that affects the carriage, nor can the different uses to which the coal may be put, and it would seem necessarily that any other extraneous condition or circumstance could have no greater potency. Once depart from the clear directness of what relates to the carriage only.

and we may let in considerations which may become a cover for preferences. * It must be kept in mind that it is not the relation of one railroad to another with which we may have any concern, but the relation of the railroad to its patrons, who are entitled to equality of charges."

The amendment of 1910 made the telegraph and telephone companies common carriers within the meaning and purpose of the act to regulate commerce. The amendment did not in any way modify_section 6 of the act to regulate commerce, as amended by the act of June 29, 1906, which expressly provided:

"Nor shall any carrier charge or demand or collect or receive a greater or less or different compensation for such transportation of passengers or property, or for any service in connection therewith, between the points named in such tariffs than the rates, fares, and charges which are specified in the tariff filed and in effect at the time."

The difficulty experienced in determining the value of its service, and the inability of the carrier to classify such service as it renders the telegraph company, referred to by the plaintiff's attorney, applies to "on-line" service only. No difficulty should be experienced by the carrier in charging the telegraph company its regular rates for transporting material over its line to be delivered to a connecting carrier for further conveyance. In this respect it acts as a common carrier, and in reason and justice should comply with that cardinal rule of railroad rate regulation, namely, that all rates shall be uniform and the same to all patrons.

The plaintiff's counsel, with much zeal and commendable industry, has collected a large number of definitions of the word "exchange"; while defendant's counsel has also furnished the court with a number of definitions of that word. While not unmindful of the value of lexicons in a case like the present, the court is satisfied that the correct construction to be placed upon the term "exchange of service" cannot be gathered from dictionaries alone.

If this court were to adopt the construction given by the plaintiff's attorney, it would impute to Congress a reversal of its settled policy, and give validity to a contract which at common law was contrary to public policy. Čongress, in passing this amendment, acted in the light of judicial construction of similar legislation, and was aided by the conference rulings of the body delegated by it to enforce the law it was about to enact. In the face of the history of railroad legislation, this court is not justified in construing a phrase so as to permit a common carrier, acting as such to render service to one patron at rates different from those charged other patrons, when a different construction is reasonably open.

Under all the circumstances, the court concludes that the "exchange of service" referred to in the amendment of 1910 validated the contract so far as it pertained to "on-line" service, but such act did not validate the contract so far as it provided for compensation other than regular rates when either company rendered the other "off-line" service.

[2] The fact that the contract may have been valid when executed will not overcome the effect of the amendment of 1906, which clearly prohibited such contracts as are here sought to be enforced. New

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