parties to whom they have been issued. And an injunction may be granted to restrain their sale by ticket scalpers and others seeking to traffic in them.2

2 Bitterman v. Louisville and Nashville Railroad Co., 207 U. S. 205, 52 L. Ed. 171, 28 Sup. Ct. 91. Here a bill was filed to enjoin ticket brokers from dealing in nontransferable round trip tickets issued at reduced rates on account of the Mardi Gras celebration held at New Orleans. The court said: "The power of carriers engaged in interstate commerce to issue nontransferable reduced rate excursion tickets was expressly recognized by that Act (Act to Regulate Commerce), and the operation and binding effect of the nontransferable clause in such tickets upon all third persons acquiring the same and attempting to use them, and the duty of the carrier in such case to use due diligence to enforce a forfeiture results from the context of the Act. Thus by section 22 it was provided 'that nothing in this Act shall prevent * * * the issuance of mileage, excursion, or commutation tickets.' And it is to be observed that despite the frequent changes in the Act including the comprehensive amendments embodied in the Act of June 29, 1906, the provision in question remains in force, although the Interstate Commerce Commission, charged with the administrative enforcement of the Act, has directed the attention of Congress to the importance of defining the scope of such tickets in view of the abuses which might arise from the exercise of the right to issue them. (2 Int. Com. Comsn. Rep. 529, 539.) And when the restrictions embodied in the Act concerning equality of rates and the prohibitions against preferences are borne in mind the conclusion cannot be escaped that the right to issue tickets of the class referred to carried with it the duty on the carrier of exercising due diligence to prevent the use of such tickets by other than the original purchasers, and therefore caused the nontransferable clause to be operative and effective against any one who wrongfully might attempt to use such tickets. Any other view would cause the Act to destroy itself, since it would necessarily imply that the recognition of the power to issue reduced rate excursion tickets conveyed with it the right to disregard the prohibitions against preferences which it was one of the great purposes of the Act to render efficacious. This must follow, since, if the return portion of the round-trip ticket be used by one not entitled to the ticket, and who otherwise would have had to pay the full one way fare, the person so successfully traveling on the ticket would not only defraud the carrier but effectually enjoy a preference over similar one way travelers who had paid their full fare and who were unwilling to be participants in a fraud upon the railroad company. ***

"Nor is there merit in the contention that the decision in New Haven Railroad v. Interstate Commerce Commission, (200 U. S. 361, 404, 50 L. Ed. 515, 26 Sup. Ct. 272) supports the view here relied upon as to the limited authority of a court of equity to enjoin the continued commission of the same character of acts as those adjudged to be wrongful. On the contrary, the ruling in that case directly refutes the claim based on it. There certain acts of the carrier were held to have violated the Act to

Free Passes and Franks.-The right to issue and exchange passes and free transportation is not limited to the carriers subject to the Act to Regulate Commerce but extends to carriers not so subject. And so railroads subject to the Act may grant passes to the officers and employees of ocean steamship lines and also the railroads of foreign countries. The provision of section

Regulate Commerce. The contention of the government was that because wrongful acts of a particular character had been committed, therefore an injunction should be awarded against any and all violations in the future of the Act to Regulate Commerce. Whilst this broad request was denied, it was carefully pointed out that the power existed to enjoin the future commission of like acts to those found to be illegal, and the injunction was so awarded. The whole argument here made results from a failure to distinguish between an injunction generally restraining the commission of illegal acts in the future and one which simply restrains for the future the commission of acts identical in character with those which have been the subject of controversy and which have been adjudged to be illegal."

3 United States v. Erie Railroad Co., decided February 23, 1915. The Erie railroad had given passes to certain officers, agents and employees of various trans-Atlantic steamship lines and of the Great Eastern Railway of England. This was defended by the railroad under the proviso of section I and also under section 22, and was based upon considerations of business policy. The Supreme Court affirmed the dismissal by the lower court of bills filed by the United States to enjoin the railroad company from issuing passes to employees of common carriers not subject to the Act to Regulate Commerce. The court said: "The Act was passed to regulate the conduct and affairs of the carriers of the country and necessarily they are brought under its provisions and subject to them. It controls their relations, but the carriers subject to the Act may have relations with other carriers, and special provisions would naturally be made to govern that relation. And certainly the reasoning is not impressive which justifies an interchange of passes between carriers subject to the Act and denies it to those not so subject, the same business reasons existing in both cases.

"Counsel for the United States sounds an alarm at such extension and lets imagination loose in portrayal of its consequences and sees included 'tap lines and other industrial railroads, street car lines, local traction companies, omnibus transfer companies and herdic lines, hackmen, boatmen, ferrymen, truckmen, lumber flumes, bucket lines for ore, parcel deliveries, district messenger services, carriers of all descriptions, both in this country and abroad'—a formidable enumeration, it must be admitted And there must be included, too, all their officers, all their employees and their families. There is, however, an opposing picture. It is conceded that carriers subject to the Act may interchange passes, the officers and employees of each carrier receiving free transportation, and giving it to every other carrier subject to the Act, making an army of the privileged with the same discrimination and the same burden on the passenger

22 does not authorize express companies to issue franks to the officers and members of their families of their own and other companies for the free carriage of packages although passes may be interchanged among the officers of railroad companies. The

There

service of the railroads as in the illustration of the Government. is no argument, therefore, in a comparison of the possibilities under one construction rather than the other. At best it is but a comparison of the excesses which may be but are not likely to be practiced. Counsel seem to think that the railroads have an eager desire to distribute passes and burden their transportation service with a crowd of free passengers. Congress certainly had no such view and gave power to exchange passes, considering that the best safeguard against its abuse was the interest of the carriers. The cases at bar are a typical instance of its exercise. It has its justification in a strictly business policy, and instead of being a burden upon the resources of the companies it is an aid to them. With these examples before us, and in view of the other reasons which we have adduced, we see no reason to disregard the literal terms of the statute. And this view is strengthened, not weakened by the proviso inserted on June 18th, 1910 (in section 1 of the Act to Regulate Commerce). * * In such case the statute makes a special limitation, as will be observed; in other words, restricts the privilege of exchanging telegraph and telephone franks for employees, etc., of such lines and of other common carriers subject to the Act—that is, there are words of explicit limitation." 4 American Express Company v. United States, 212 U. S. 522, 53 L. Ed. 635, 29 Sup. Ct. 315. Here the court said:-"While it is true the language here used (section 1) has reference to common carriers and by the terms of the Hepburn Act express companies are within that description, yet the proviso is as clearly limited to the carriage of passengers and the interchange of passes for officers, agents and employees of common carriers and their families, as is the body of the section itself. It is contended that this section if limited to the carriage of passengers was unnecessary in view of the concluding part of section 22 of the Act of February 4, 1887, as amended by the Acts of March 2, 1889, and February 8, 1905, which provides: 'Nothing in this Act shall be construed to prevent railroads from giving free carriage to their own officers and 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;' etc. But we are to consider the language which Congress has used in passing a given law, and when the language is plain and explicit our only province is to give effect to the Act as plainly expressed in its terms. We are clearly of the opinion that, without doing violence to the language used in section 1-including the proviso-its terms cannot be held to include the transportation of goods. It is likely that there is no substantial reason why Congress should not extend to express companies, their officers, agents and employees, corresponding privileges for free carriage of goods with those which are given to the officers, agents and employees of railroad companies in respect

question of free transportation and the interchange and use of passes is treated at length under the proper paragraphs of section I of the Act.

Cumulative Remedies and Common Law Rights.-This clause of section 22 does not continue in shippers common law rights whose existence is contrary to or inconsistent with the provisions of the Act, otherwise the Act would be self-destructive. The purpose of this provision is to declare specifically that any special remedy given by the Act shall be regarded as cumulative when other appropriate common law or statutory remedies existed for the redress of the particular grievance or wrong dealt with in the Act. The clause is concerned only with rights recognized in or duties imposed by the Act itself. For example a shipper cannot maintain an action in a state court for excessive or unreasonable freight rates on interstate shipments where the rates charged are those fixed by the carrier according to the terms of the Act and which had not been found unreasonable by the Interstate Commerce Commission."

to transportation of persons, but-if the law is defective in this respectthe remedy must be applied by Congress and not by the courts."

5 Texas and Pacific Railway Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 51 L. Ed. 553, 27 Sup. Ct. 350, where the Supreme Court said in reference to section 22:-"This clause, however, cannot in reason be construed as continuing in shippers a common law right, the continued existence of which would be absolutely inconsistent with the provisions of the Act. In other words, the Act can not be held to destroy itself. The clause is concerned alone with rights recognized in or duties imposed by the Act, and the manifest purpose of the provision in question was to make plain the intention that any specific remedy given by the Act should be regarded as cumulative, when other appropriate common law or statutory remedies existed for the redress of the particular grievance or wrong dealt with in the Act."

See also Mitchell Coal Co. v. Pennsylvania Railroad Co., 230 U. S. 247, 57 L. Ed. 1472, 33 Sup. Ct. 916.

SECTION 23. JURISDICTION OF FEDERAL COURTS

TO ISSUE WRITS OF MANDAMUS.

SEC. 23. (Added March 2, 1889.) That the Circuit and District Courts of the United States shall have jurisdiction upon the relation of any person or persons, firm, or corporation, alleging such violation by a common carrier, of any of the provisions of the Act to which this is a supplement and all Acts amendatory thereof, as prevents the relator from having interstate traffic moved by said common carrier at the same rates as are charged, or upon terms or conditions as favorable as those given by said common carrier for like traffic under similar conditions to any other shipper, to issue a writ or writs of mandamus against said common carrier, commanding such common carrier to move and transport the traffic, or to furnish cars or other facilities for transportation for the party applying for the writ: Provided, That if any question of fact as to the proper compensation to the common carrier for the service to be enforced by the writ is raised by the pleadings, the writ of peremptory mandamus may issue, notwithstanding such question of fact is undetermined, upon such terms as to security, payment of money into the court, or otherwise, as the court may think proper, pending the determination of the question of fact: Provided, That the remedy hereby given by writ of mandamus shall be cumulative, and shall not be held to exclude or interfere with other remedies provided by this Act or the Act to which it is a supplement.

Mandamus.-This section was incorporated in the Act to Regulate Commerce March 2, 1889, and has not been amended. This section was added for the purpose of making the remedial processes of the Act more speedy and efficacious. But it must be construed in connection with the amendments adopted in 1906 to section 15 and section 16, giving operative effect to the orders of the Com