$4506. Free or reduced rates for particular passengers-In general. There has been some conflict of opinion as to governmental power to make a reduced rate for a certain class of passengers on steam or street railroads, and to require certain persons to be carried free of charge. These regulations will now be noticed.

§ 4507.

Six tickets for a quarter. There is no discrimination in fixing street car rates at five cents or six tickets for twentyfive cents.2 22 And power to regulate rates includes power to enact such a regulation.23

§ 4508. Commutation rates. Different rates may be fixed by the government for commutation tickets than for one-way service without such discrimination being necessarily unjust.24 And statutes or orders fixing commutation' rates at less than the maximum rates have been upheld as not violating the due process of law or equal protection of the law provisions of the Federal Constitution.25 In a late case decided by the Supreme Court of the United States it was held that where commutation rates have been voluntarily established by the carrier the state may fix maximum rates for commutation tickets which are less than the intrastate rate lawfully established for one-way intrastate travel in general, upon the theory that the cost of printing and selling such tickets differs from the sale of one-way tickets and that the service rendered a commuter is of a special character and differs from that given the single-way passenger, as well as the fact that carriers do sell commutation tickets and that on the faith thereof many people have acquired homes in suburbs and nearby towns.26

§ 4509.

Requiring issuance of mileage books. Statutes fixing a less rate for one thousand mile tickets were held invalid in 1898 by the Supreme Court of the United States, the question involved being

22 Duluth St. R. Co. v. Railroad Commission, 161 Wis. 245, 152 N. W. 887, distinguishing Lake Shore & M. S. R. Co. v. Smith, 173 U. S. 684, 43 L. Ed. 858.

23 Sternberg v. State, 36 Neb. 307, 19 L. R. A. 570, 54 N. W. 553.

24 Pennsylvania R. Co. v. Towers, 126 Md. 59, Ann. Cas. 1917 B 1144, 94 Atl. 330.

25 People v. Public Service Commission for Second District, 159 N. Y.

App. Div. 531, 145 N. Y. Supp. 503.

26 Pennsylvania R. Co. v. Towers, 245 U. S. 6, 62 L. Ed. 117, aff'g 126 Md. 59, Ann. Cas. 1917 B 1144, 94 Atl. 330, and overruling anything to the contrary in Lake Shore & M. S. R. Co. v. Smith, 173 U. S. 684, 699, 43 L. Ed. 858, which, however, is distinguished as involving "mileage tickets which, we must repeat, differ very essentially in character from commutation tickets."

whether a state has the right, "after having fixed a maximum rate for the transportation of passengers, to still further regulate their affairs and to discriminate and make an exception in favor of certain persons, and give to them a right of transportation for a less sum than the general rate provided by law." 27 The statute was held unconstitutional because violating both the provision as to due process of law and equal protection of the laws, and because a discrimination in favor of those who buy such tickets.28 This decision has been followed in New York,29 Virginia,30 North Dakota,31 and Louisiana; 32 and a statute in Massachusetts was held invalid where it compelled railroad companies to redeem such tickets on presenta tion by any other company and to accept for fare over its lines all such tickets issued by any railroad company within the state.33 In New York, however, such a statute is held valid as applied to a railroad company incorporated after the enactment of the statute.34 Discrimination produced by an unreasonable overcharge for trip tickets cannot render unconstitutional a statute requiring the sale of mileage books at a reasonable rate.35

§ 4510. Excursion rates. In a case decided by a federal district court in 1913, it appeared that the legislature of Iowa, which had already fixed maximum railroad rates, fixed a round trip rate to the state fair at Des Moines at considerably less than the regular rate, and did not confine such reduced rate to those attending the fair. Conceding that the fair was an educational institution, the court held that such fact did not authorize a discriminatory rate to Des Moines, since there are many other educational institutions in the state and "the law thus operates not only as a flagrant discrimination between those who are securing education at some point other than Des Moines, but it is a clear discrimination against those

27 Lake Shore & M. S. R. Co. v. Smith, 173 U. S. 684, 690, 43 L. Ed. 858, rev'g 114 Mich. 460, 72 N. W. 328.

28 Lake Shore & M. S. R. Co. v. Smith, supra.

29 Beardsley v. New York, L. E. & W. R. Co., 162 N. Y. 230, 56 N. E. 488, rev'g 15 N. Y. App. Div. 251, 44 N. Y. Supp. 175.

30 Com. v. Atlantic Coast Line R. Co., 106 Va. 61, 7 L. R. A. (N. S.) 1086, 117 Am. St. Rep. 983, 9 Ann. Cas. 1124, 55 S. E. 572.

31 State v. Great Northern R. Co., 17 N. D. 370, 116 N. W. 89.

32 State v. Bonneval, 128 La. 902, Ann. Cas. 1912 C 837, 55 So. 569.

33 Attorney General v. Boston & A. R. Co., 160 Mass. 62, 22 L. R. A. 112, 35 N. E. 252.

34 Parish v. Ulster & D. R. Co., 192 N. Y. 353, 359, 85 N. E. 153; Minor v. Erie R. Co., 171 N. Y. 566, 64 N. E. 454; Purdy v. Erie R. Co., 162 N. Y. 42, 48 L. R. A. 669, 56 N. E. 508.

35 State v. Maine Cent. R. R., 77 N. H. 425, 92 Atl. 837.

who are seeking to buy at wholesale or retail at some other city in Iowa than Des Moines." Continuing, the court said: "The question is whether the Legislature, having fixed the presumptively reasonable rates, may prescribe excursion and other extraordinary rates at greatly reduced fares. If it may do this in one specific instance, it may multiply such occasions without let or hindrance. The conduct of the railroad's business will be transferred almost entirely to other hands, and its revenues greatly impaired, and that in the face of the fact that probably reasonable maximum rates have already been established which were claimed by their authors to be dictated by the consideration that within the limits of such rates the roads might be free to increase their revenues by any legitimate and not extortionate system of management." 36

§ 4511.

Reduced rates for school children or those under certain age. Fixing a rate of two cents a mile for passengers twelve years of age or over, and one cent a mile for those under such age, has been upheld.37 So statutes prescribing special rates less than the maximum for school children on street cars have been held valid.38

84512.

Requiring reduced or free transportation for soldiers, police officers, detectives, etc. A statute requiring street railways. to grant free transportation to police officers, detectives or firemen, is a valid exercise of the police power, it is generally held,39 at least as applied to police officers in uniform or on duty,40 although there is some authority to the contrary.41

36 Chicago, R. I. & P. Ry. Co. v. Ketchum, 212 Fed. 986, 990, 998.

37 Simpson v. Shepard, 230 U. S. 352, 57 L. Ed. 1511, 48 L. R. A. (N. S.) 1151, Ann. Cas. 1916 A 18.

38 Interstate Consol. St. Ry. Co. v. Massachusetts, 207 U. S. 79, 52 L. Ed. 111, 12 Ann. Cas. 555, aff'g 187 Mass. 436, 11 L. R. A. (N. S.) 973, 2 Ann. Cas. 419, 73 N. E. 530. See also San Antonio Traction Co. v. Altgelt, 200 U. S. 304, 50 L. Ed. 491; Oklahoma R. Co. v. St. Joseph's Parochial School, 33 Okla. 755, 127 Pac. 1087; Northrop v. Richmond, 105 Va. 335, 53 S. E. 962; State v. Seattle Elec. Co., 71 Wash. 213, 43 L. R. A. (N. S.) 172, 128 Pac. 220.

"It is not enough to show that no

profit may come from the particular service, it must appear that in conjunction with all the service of the corporation the rate is unreasonable and is equivalent to spoliation." Com. v. Boston & N. St. R. Co., 212 Mass. 82, 98 N. E. 1075.

39 State v. Sutton, 87 N. J. L. 192, L. R. A. 1917 E 1176, Ann. Cas. 1917 C 91, 94 Atl. 788, 83 N. J. L. 46, 84 Atl. 1057.

40 Sutton v. New Jersey, 244 U. S. 258, 61 L. Ed. 1117, aff'g 87 N. J. L. 192, 332, L. R. A. 1917 E 1176, Ann. Cas. 1917 C 91, 94 Atl. 788.

41 Wilson v. United Traction Co., 72 N. Y. App. Div. 233, 76 N. Y. Supp. 203.

Legislation requiring railroads to carry state militia, when traveling under orders at a reduced rate, has been upheld in Minnesota,42 but has been held invalid in Kansas 43 and also in Missouri under a particular constitutional provision prohibiting unjust discriminations. In the Missouri case the court considered at some length the question whether the discrimination-fixing the rate at one cent a mile instead of the regular two-cent rate—was unjust, and in holding it unjust said that "if members of the organized militia averaged in weight but one-half that which other members of the traveling public' weigh, or if they traveled at fixed hours or times when other business is slack; or if they carried far less, rather than far more baggage, equipment and impedimenta, than the ordinary traveling person carries; or if they traveled at known and definitely fixed times, in large bodies, or by the trainload; or if travel with them were a matter of personal volition to be exercised or not as a low rate might induce, rather than as a matter of stern duty transacted under order; or if the service of transportation required were of an inferior class by a slow, unscheduled train, rather than that furnished to regular passengers who are compelled to pay two cents per mile, there might be some valid reason for saying as a matter of law that the plain discrimination presented is not an unjust discrimination.'' 45

An order of a commission requiring railroads to carry free of charge members of a water supply commission was held in New Jersey a taking of property without due process of law.46

§ 4513. Forbidding issuance of free passes. A state may forbid railroads to give free passes except to officers, employees and the like, "for the general welfare" and to stop "an evil of great magnitude." 48

42 State v. Chicago, M. & St. P. R. Co., 118 Minn. 380, 41 L. R. A. (N. S.) 524, Ann. Cas. 1913 E 494, 137 N. W. 2.

43 In re Gardner, 84 Kan. 264, 33 L. R. A. (N. S.) 956, 113 Pac. 1054, holding statute denies the equal protection of the laws.

44 State v. Missouri, K. & T. R. Co., 262 Mo. 507, L. R. A. 1915 C 778, Ann. Cas. 1916 E 949, 172 S. W. 35.

45 State v. Missouri, K. & T. R. Co., 262 Mo. 507, 528, L. R. A. 1915 C 778, Ann. Cas. 1916 E 949, 172 S. W. 35.

46 Delaware, L. & W. R. Co. v. Board of Public Utilities Com'rs, 85

N. J. L. 28, 88 Atl. 849.

47 Louisville & N. R. Co. v. Mottley, 219 U. S. 467, 55 L. Ed. 297, 34 L. R. A. (N. S.) 671, rev'g 133 Ky. 652, 118 S. W. 982; Schultz v. Parker, 158 Iowa 42, Ann. Cas. 1915 D 553, 139 N. W. 173; State v. Martyn, 82 Neb. 225, 23 L. R. A. (N. S.) 217, 17 Ann. Cas. 659, 117 N. W. 719, holding statute "simply a police regulation.'

Construction of such statutes, see notes in Ann. Cas. 1915 D 553 and in 17 Ann. Cas. 659.

48 Schultz v. Parker, 158 Iowa 42, Ann. Cas. 1915 D 553, 139 N. W. 173.

Congress passed an act in 1906 forbidding common carriers to give any "free pass or free transportation for passengers, except to certain specified persons, and also prohibited any carrier from collecting "a greater or less or different compensation" for the transportation of persons or property, or for any service in connection therewith, than that specified in its published schedule of rates.49 This statute came up for review before the Supreme Court of the United States in 1911 in a case where a life pass had been issued, before the enactment of the statute, in consideration of a release of damages for injury by operation of the road; and it construed the statute as requiring payment in money for transportation and to annul the contract for a life pass, although valid when made, and held that the statute was not unconstitutional as infringing the constitutional liberty of the citizen to make contracts or otherwise, but was within the power to regulate commerce which included power to declare void and prohibit the performance of any contract between individuals or corporations where the natural effect of such a contract would be to regulate commerce.50 So in New Jersey it is held that a contract to carry free of charge for life in consideration of a grant of a right of way for a railroad is invalid as a violation of a statutory provision that no public utility shall "make or give, directly or indirectly, any undue or unreasonable preference or advantage to any person or corporation or to any locality." 51

§ 4514. Prohibiting corporation from collecting less than rates fixed. Rates may not only be fixed in a proper case, but the corporation may be prohibited from collecting lesser rates than those fixed.52

In

§ 4515. Statutes forbidding discrimination as retroactive. Maine, it has been held that a statute making it unlawful to receive

49 Act of Congress, June 29, 1906, which added the words or different."

50 Louisville & N. R. Co. v. Mottley, 219 U. S. 467, 55 L. Ed. 297, 34 L. R. A. (N. S.) 671, rev'g 133 Ky. 652, 118 S. W. 982.

That person to whom pass executed for a consideration may sue company where right to pass denied by such legislation, see Louisville & N. R. Co. v. Crowe, 156 Ky. 27, 49 L. R. A. (N. S.) 848 with note, 160 S. W. 759,

Express companies as within scope of statute, see American Exp. Co. v. United States, 212 U. S. 522, 53 L. Ed. 635.

51 Perkins v. Public Service R. Co., 87 N. J. Eq. 134, 99 Atl. 387.

52 Economic Gas Co. v. Los Angeles, 168 Cal. 448, Ann. Cas. 1916 A 931, 143 Pac. 717; Pinney & Boyle Co. v. Los Angeles Gas & Electric Corporation, 168 Cal. 12, L. R. A. 1915 C 282, Ann. Cas. 1915 D 471, 141 Pac. 620.