cases, that refrigeration in transit can properly be relied upon to keep the shipment cool during the journey, providing it was cool at the start of the journey, and should not be relied upon to reduce high temperature in the article as offered for transportation, and that the shipper should therefore prepare commodities offered for refrigeration by pre-cooling in order that the icing provided by the carriers may be effective.

It seems also that where there is no preparation of the fruit by pre-cooling, the commission will not reduce the carload weight, if by so doing, without reducing the carload rate, the carrier's net earnings would be unduly reduced. The condition of the article offered for refrigeration should be such that proper refrigeration is a possibility, and the carrier cannot be held responsible for deterioration due to inherent vices, hidden defects, or a natural development of the article, such as normal ripening and subsequent rotting, providing the carrier itself is without negligence in prompt transportation.

§ 155. Private cars.-The amendment of 1906 included "cars and other vehicles and all instrumentalities and facilities of shipment or carriage, irrespective of ownership, or any contract, expressed or implied, for the use thereof."

It would seem that the owners of equipment would have been included as parties subject to the act under the Elkins Act of 1903. Prior to this enactment, the commission had considered the general subject of private freight cars in its annual report for 1904, where it said that a practical monoply had been created in the use of private cars for the movement of certain commodities, which has enormously increased the cost of transportation to the public.

Prior to the amendment of 1906, it had been held in Interstate Commerce Commission v. Reichman, 145 Fed. 235, C. C. of Ill. 1906, that a private car company which has delivered cars to railroad companies for the use of shippers, receiving pay from the railroad companies on a mileage basis, was under the jurisdiction of the commission and that under the act as amended in 1903, it could inquire into the operation and tariffs of the company and compel the necessary testimony concerning the conduct of the business.

For ruling of the commission and the commerce court sustaining the exaction by railroads of demurrage on private cars, see: infra, § 254.

§ 156. The prohibition of passes.-The anti-pass provision of this act was first inserted by the amendment of 1906 and should be read with section 22 of the act, see infra, section 22. Under the original act there was no express prohibition of passes, but their issuance as a personal favor had been held both by the commission and the supreme court to be within the prohibition of section 2. Infra, § 219. Section 22 was originally adopted as an amendment to the act of 1889, with a provisio added in 1895. The supreme court said in the Party Rate Case, 145 U. S. 263, 36 L. Ed. 703 (1892), that its purpose settled beyond doubt that discrimination in favor of the persons therein named was not unjust. The provision of this section differs from section 22 in that it relates only to passengers, that is, there is no authorization thereunder for the free carriage of property belonging to persons of the excepted classes.

This anti-pass amendment in section 1 substitutes an express statutory prohibition of interstate passes with specific exceptions. It is in effect a statutory declaration that the non-excepted passes are acts of unjust discrimination, as the recipient of a pass is subjected to a penalty as well as the carrier who gives one. See American Express Co. v. U. S., supra.

In L. & N. R. R. Co. v. Mottley, 219 U. S. 467, 55 L. Ed. (1911), reversing 133 Ky. 615, it was held by the supreme court that this section prohibited railroads from issuing passes for interstate transportation even on contracts made before the passage of the Hepburn rate law.* In this case the parties were injured on the railroad in 1871, and to settle their claims for damages. the railroad agreed to carry them free as long as they lived. The court said that the purpose of the statute was to cut up by the roots every form of discrimination, favoritism, and inequality, except in certain excepted classes, and that congress had not placed therein persons who had contracts for the issuance of

* This decision also in effect reversed the ruling of the circuit court of Kentucky in 150 Fed. 406, which was reversed and case dismis for want of jurisdiction in 211 U. S. 149, 53 L. Ed. 126.

passes and that the court could not add an exception based on equitable grounds when congress had forbore to make such an exception. The words of the act, therefore, mean that the carrier cannot charge, collect, or receive for transportation on its road anything but money.

This ruling was followed in C. I. & L. R. Co. v. United States, 219 U. S. 486, 55 L. Ed. 305 (1911), affirming 163 Fed. 114, where the acceptance of advertising in payment of interstate transportation under contract, though authorized by the state statute incorporating the company, was adjudged illegal.

Where a pass is issued to an employe and the employe delivers it to a person not authorized to use it, and such party does use it on an interstate journey, he is guilty of violation of the act, and the employe is also guilty of aiding and abetting in such violation. United States v. Williams, 159 Fed. 310, D. C. of Ala. 1908. Also in the district court of Iowa, United States v. Martin, 176 Fed. 110, the court held that one who had in his possession such pass and sold it to another knowing he was not the person named therein, with the intent that he should use it, which he does by riding an interstate journey, was guilty of violating the statute.

The commission has ruled (12 I. C. C. R. 15) that newspaper employes on special newspaper trains are not included in the excepted list entitled to free transportation. Also that railroad companies have no right to extend free transportation to the local transfer and baggage express company (12 I. C. C. R. 39); that the local company not being subject to the regulating statute could give free transportation to whomever it wished, but that a carrier subject to the jurisdiction of the act could not lawfully grant free transportation to the officers of the local company. This was subject to the specific exceptions noted in the act as to baggage agents entering trains near a large terminal to arrange for baggage transfer. Land and immigration agents, unless they are bona fide and actual employes of carriers subject to the act, are not within the excepted classes. 12 I. C. C. R. 7.

$157. The commodities clause.-The 4th paragraph of the 1st section of the act was inserted in the amendment of 1906.

and is known as the "Commodities Clause," because it declares that after May 1, 1908, "it shall be unlawful for any railroad company to transport "in interstate commerce" any article or commodity other than timber and the manufactured products thereof" wherein it has an interest direct or indirect. The commodities clause was held valid by the supreme court in United State v. Del. & Hud. Co., 213 U. S. 366, 53 L. Ed. 836, in 1909; reversing the U. S. court of appeals of the third circuit, 164 Fed. 215. The court decided that the provision was a lawful exercise of the power of congress and that the exception in favor of timber and the products thereof did not invalidate the provision. As the court construed the clause, however, the bona fide ownership by a carrier of stock in a producing company does not constitute a direct or indirect legal interest in the carrier in the commodity manufactured, mined or produced within the meaning of the act (Harlan, J., dissenting). The penalty clause of the act was not involved in the decision, but the court ruled that in any event it was separable. In this case it was also decided that a company organized as a canal company and only operating a railroad as an incident to mining, was subject to the act as to its interstate business.

This ruling as to the effect of stock ownership was very materially qualified in the case of U. S. v. Lehigh Valley R. R. Co., 220 U. S. p. 257, 55 L. Ed. (April, 1911), which was in substance but a sequel to the commodity cases of 1909. These cases having been reversed and remanded for further proceedings, application was made by the United States in one of them, the Lehigh Valley case, to file an amended bill, charging that the railroad company was not only the owner of all the stock issued by the coal company, but that the railroad company so used the power of its stock ownership, as to deprive the coal company of all real independent existence, and to make it virtually but an agency of the railroad company,—and that the coal company was not a bona fide mining company, but was merely an adjunct or instrumentality of the defendant. The circuit court. declined to permit this amendment to be filed, and entered a decree dismissing the bill. The supreme court held that this was an abuse of discretion, that the proposed amendment was germane to the original cause of action, and was not foreclosed by the previous decision. While the right of a railroad company

as a stockholder to use its stock ownership for the purpose of a bona fide separate administration of the affairs of a corporation in which it has a stock interest may not be denied, yet the use of such stock ownership in substance for the purpose of destroying the entity of a producing corporation, and of commingling its affairs in administration with the affairs of the railroad company so as to make the two corporations virtually one, brings the railroad company so voluntarily acting as to such producing corporation within the prohibition of the commodities clause. The decree of the circuit court was, therefore, reversed and the cause remanded for further proceedings. It is, perhaps, a fair inference from these cases that while a railroad company may own stock in a mining company, it cannot use such ownership for the control of such subsidiary company without falling within the prohibition of the act.

For rulings of the commission and the courts as to the rights and duties of a carrier in transporting its own products pr'or to the enactment of this statute, that is, as to a discrimination of a carrier in favor of itself as a shipper, see infra, § 214. And see also N. Y., N. H. & H. R. R. Co. v. Commission, 200 U. S. 361, 50 L. Ed. 515, decided February 19, 1906, where it was held that a railroad could not give a rebate on its own coal car. ried by it, and a contract for such delivery was void, and it wa immaterial that the contract might not have been open to this objection when made, and that the inadequacy of the price was caused by strikes and other reasons beyond the control of the carrier. The carrier, therefore, could not lawfully stipulate to sell and transport coal at a rate of prices insufficient to yield the published freight rates, after deducting the cost of purchase and delivery.

§ 158. Switch connections.-The last paragraph of section 1 was added in 1906, the original act having no provision with respect to switch connections. This paragraph has been strictly construed by the commission, not only because of its terms but by reason of the inadvisability of cutting the carriers' rails without grave necessity. It is to be noted that all the act requires is a "switch connection with any such lateral, branch line of railroad, or private side track." The act does not require the carrier in any case to build or furnish laterals, or branch lines