purpose of promoting the sale of its land and the settlement of the country along the line of its road; and further states that after the decision of the case of W. U. Smith against the same defendant by this Commission in November, 1887, the defendant changed its rules and regulations in that respect.

At the hearing, testimony was given on the part of the defendant, in substance, as follows: That the complainant, James F. Slater, in July, 1887, represented to the defendant that he had found respectable parties in Illinois whom he could interest in a plan for irrigation in the Yakima Valley, in Washington Territory, which was important for the sale of lands owned by the defendant in that section; that the gentlemen would first wish to make an examination of the country which it was proposed to irrigate and the sources of supply; that a conference was had in Chicago by the offcials of defendant's land department with Mr. Slater and his friends, at which the irrigation project was discussed, and something also was sail about the estal sine of a wholesale grocery house at Tacoma; that free round-trip tickets to Tacoma were provided, which were used by Mr. Fischer and two other gentlemen, who, however, failed to stop in the Yakima Valley, but went directly through Tacoma to Seattle, where a whole sale grocery house was established by one or more of them.

That afterwards, in the fall of 1887, the complainant Slater wrote various letters to officials of the transportation department of the defendant, which were produced in evidence; and in compliance with requests therein made he was furnished by defendant with an annual pass, in which he was described as an "employee," being considered in the nature of an emigrant agent; that some time after this the land department of defendant's road learned that complainant Slater was traveling with an employee's annual, and protested against his being so employed by the company; that the pass was thereupon immediately cancelled; that Slater then wrote the defendant that he had a record of several violations of the Act to regulate commerce on its part, which he proposed to look after and which were good cases for investigation by

the Interstate Commerce Commission. This letter bears date March 28, 1888, and his correspondence with the Commission in respect to the complaint which was presently filed, commenced April 9, 1888.

Complainant did not appear at the hearing; he was afterwards furnished with a copy of the testimony on the part of the defendant and was allowed until September 25, 1888, in which to file testimony in reply if desired.

The free transportation furnished to Fischer, through the land department of the defendant company, was under rules and regulations then in force, but which were afterwards changed pursuant to the decision of the Commission in the case of Smith v. Northern Pacific R'y Co. (1 I. C. C. R., 208). The company claims that the decision and order in that case have ever since been complied with, and no proof to the contrary has been brought in any manner to the attention of the Commission.

It seems to have been the impression of the complainant. that to secure the imposition of a heavy fine upon defendant it was only necessary for him to furnish information to this Commission of some violation of the Act to regulate commerce. In one of his letters he says that he proposes to "see that justice is done, though it may take $95,000—i. e., $5,000 for each one of these passes," referring to the free tickets above described, and others.

The Commission has no power to impose penalties for violations of the law, the penal provisions of which are only enforceable through the ordinary machinery of the courts of the United States. In case of willful violation it might be the duty of the Commission to lay the facts before the United States Attorney of the proper district for action. But this case is not one which seems to require that course; on the contrary, the transportation in question was issued and used under a construction of the law which defendant's counsel had approved, but which afterwards, on a formal hearing, the Commission decided to be incorrect; whereupon the method pursued by the Company was immediately changed, and the course suggested by the Commission was promptly

and cheerfully followed. It woul be altogether wrong for the Commission to set on foot a prosecution under such cir

cumstances.

Especially in a case where the motive of complainant is confessedly that of retaliation for a fancied wrong, it would be the height of injustice for the Conamission to take action in furtherance of such a purpose, unless the offence was so flagrant as to efface from view the reumstances under which the matter is brought to light. I the present case the correspondence clearly shows that ti. complaint was made for the purpose of punishing defend at for the withdrawal of complainant's "annual." The Commission does not desire to lend itself to the assistance of uch a scheme, and under such circumstances it would be sow to act unless the conduct of defendant was such as to verse disobedience of some provi ant so far as appears, is now ead conduct its operations in confor preted by the Commission, whil plainant was himself the moving of which he now complains. His complaint therefore does not appear to call for any further notice from the Commission.

The so-called employee's annus requires a few words of comment ant Slater on October 12 1887,

ge

libit a willful and peron of law. This defendvoring in good faith to y to the statute as interit appears that the compirit in the transactions

issued to Slater himself, It appears that complainIressed a letter to T. F.

Oakes, the vice-president and god murager of de fendant, in wich he used the folowin 1.

Age:

te of Mashall Field's of the same, because I enefit to the Spokane and N. P. R. R., as I propose

to W. T. within the next

"I will in all probably Fa 40,000 aere tract, and the colori can doubtless prove of service and Palouse Land Co., as well as to t to emigrate several hundred peo 12 months. All I ask of the NP. in return for throwing what business I conveniently can tion in the shape of an annual.' means of taking into W. T. and (

their way, is transportaI have already been the 6o parties who have in

vested over $530,000 (and who would not have went there had I not persuaded them to do so), and have more in view provided the desired arrangement is made. I have induced two parties to go out on the Sound and start manufacturing shingles for this, Chicago, and other eastern markets, so as to give freighting of same to your R. R. As showing whether I have any strength with my friends I refer to the fact of my having persuaded 28 of them to go to W. T. and buy roundtrip tickets over the N. P., thus assisting the Pass. Department to over $2,500 they would not have received had it not been for me. I have some parties who were talking of going to Oregon to start in the business of shipping wheat direct to Liverpool from there, but I have, I think, got them so far persuaded that they can be induced to locate on the Sound instead, and thus prove of great benefit to the N. P. by purchasing grain in Walla-Walla and the Snake River country and sending it to the Sound instead of to Portland."

This was followed up by persistent application of like effect, and resulted in his obtaining a pass, which was issued to him as an alleged "employee," and which he used until it was revoked as above stated.

Whatever else Slater may have been he clearly was not an employee of the defendant; he did not undertake to perform any particular service, nor was he entitled to receive any wages or salary under a contract of employment; all the compensation he asked was "transportation in the shape of an annual," and this was to be "in return for throwing what business I conveniently can in their way." That is, he was to assist the Company as much as he conveniently could, consistently with his own occupations, provided he might be allowed to ride free upon its trains.

Carriers can reward persons not in their stated and regular employment for occasional services, or for benefits indirectly received, in other and better ways than by furnishing them with free transportation. Some of the evils which resulted from former methods were referred to in the First Annual Report of this Commission, and others might be named. It may be said that a pass costs the carrier little or nothing,

and that when the good will and occasional good words of a person who is able to influence the direction of traffic can be obtained so cheaply it is a hardship to prevent the carrier from making use of the opportunity; but the evils in the unrestricted employment of free passes by common carriers had grown so great and had become so apparent, both to the public and to the carriers themselves, that it was deemed by Congress to be absolutely necessary to eradicate the whole system from interstate commerce in order to put an end to the abuses which had grown beyond the limits of any other regulation or control. The law was framed accordingly, prohibiting the giving of free transportation to passengers carried under substantially similar circumstances and conditions, as an unjust discrimination, under the general terms employed; with only the exceptions made in section twenty-two that "nothing in this act shall be construed to prevent railroads from giving free carriage to their own officers or employees, or to prevent the principal officers of any railroad company or companies from exchanging passes or tickets with other railroad companies for their officers and employees."

If any person who is in position to render to a common carrier a service or a favor, by kind words or by useful paragraphs, can be properly considered to be an "employee," the exception may easily become broader than the rule; that word is evidently here employed in its ordinary signification. The revocation of Slater's pass was demirded upon broader grounds than that suggested in the protest of the land department of the defendant; he should never have received it.

The complaint is held to be not sustained.