rants a modification of its terms or application. The land agents to whom free transportation has been given are in no sense agents or employees of the carriers. They are not engaged in the business of the carriers and their compensation comes from the persons whose private lands they may be able to sell. It is true that their operations may be indirectly of important benefit to the carriers, but this circumstance affords no defensible reason for transporting them without charge. If a resulting advantage of some sort furnishes a reason for the free carriage of persons engaged in private enterprise, the right to give passes would extend to a vast number of persons and be subject to no practical limitation. The ruling heretofore made is undeniably correct and its application so plain and definite as to obviate the necessity for explanation. Nor can the carriers make employees of the class of persons in question by appointing or calling them agents, when they are in fact engaged in efforts to sell lands belonging to outside parties and receive no compensation or only nominal compensation from the carriers except free transportation over their lines. The relation thus existing is not that of bona fide and actual employees and furnishes no ground for exemption from charges imposed upon ordinary passengers. We do not assent to the proposition that because the amended law prohibits passes after January 1 next, except to certain specified persons, that persons not within the exceptions named in the old law can lawfully be given free transportation for the balance of this year. On the contrary, we hold that it was always illegal under the original act to give free transportation, save only to the extent permitted by that law. The course taken by the Illinois Central and other roads acting in like manner is to be commended and the complaint of that company is fully sustained. Such carriers as have continued to give free transportation to these so-called land agents, particularly since the ruling of the Commission above quoted, must be adjudged to be acting unlawfully in that regard. Unless they immediately cease from the practises hereby condemned as illegal it will be the duty of the Commission to take measures to prevent further disobedience. 12 I. C. C. Rep. IN THE MATTER OF RAILROAD-TELEGRAPH CONTRACTS. PETITION OF THE WESTERN UNION AND POSTAL TELEGRAPH COMPANIES. Submitted November 9, 1906. Decided December 21, 1906. As a telegraph service along its right of way is essential to the safe operation of its trains, a railroad company or a group of separately incorporated roads generally recognized as a "railway system," may lawfully contract to furnish free or reduced-rate transportation to a telegraph company for such of its officers, men, materials, and supplies as are required in connection with the construction, maintenance, and operation of such a telegraph line and service upon its own right of way; and the legality of such free or reduced-rate transportation is not affected by the fact that the telegraph company may also use such telegraph line in connection with its telegraph service to the public. But such a railroad company or system of roads can not lawfully contract, in consideration of free telegraph service or service at reduced rates over wires beyond its own right of way, to furnish free or reduced-rate transportation for the officials, employees, laborers, materials, or supplies of a telegraph company in connection with the construction, maintenance, or operation of a telegraph line and service off the line of such railroad company or system of railroads and upon the line or lines of another carrier or system. 29 Previous rulings of the Commission in relation to "Payment for transportation and "Issuance and use of free passes," so far as they may affect or control railroad-telegraph contracts, explained and reaffirmed. H. D. Estabrook for Western Union Telegraph Co. J. M. Dickinson for Illinois Central Railroad Co. M. A. Spoonts for Fort Worth & Denver City Railway Co. REPORT OF THE COMMISSION. HARLAN, Commissioner: On September 15, 1906, the Commission formally announced in a general tariff circular the following administrative ruling: Payment for transportation.—Nothing but money can be lawfully received or accepted in payment for transportation subject to the act, whether of passengers or property, or for any service in connection therewith, it being the opinion of the Commission that the prohibition against charging or collecting a greater or less or different compensation than the established rates in effect at the time precludes the acceptance of services, property, or other payment in lieu of the amount of money specified in the published schedules. On October 12, 1906, the Commission announced an administrative ruling as follows: Issuance and use of free passes.—The provisions of the act relative to the issuance of free tickets, free passes, free transportation, or free carriage to employees of carriers apply only to persons who are actually in the service of the carriers and who devote substantially all of their time to the work or business of such carriers. Land and immigration agents, unless they are bona fide and actual employees, representatives of correspondence schools, agents of accident or life insurance companies, agents of oil or lubricating companies, etc., are not within the classes to which free or reduced-rate transportation can be lawfully furnished. But the Commission does not construe the law as preventing a carrier from giving necessary free transportation to a person traveling over its line solely for the purpose of attending to the business of, or performing a duty imposed upon, the carrier, nor from giving free carriage over its line to the household and personal effects of an employee who is required to remove from one place to another at the instance of, or in the interest of, the carrier by which he is employed. Nor does the Commission construe the law as preventing a carrier from giving free or reduced-rate carriage over its line to contractors for material, supplies, and men for use in construction, improvement, or renewal work on the line of that carrier, provided such arrangements for free or reduced-rate carriage are made a part of the specifications upon which the contract is based and of the contract itself. In making the above ruling of October 12 the Commission intended to be understood as holding that the provisions of law permitting carriers to accord free or reduced-rate transportation under certain conditions and for certain purposes apply, inter alia, to materials, supplies, and men required under contracts between railroad and telegraph companies for the construction, maintenance, and operation of telegraph lines upon and along the rights of way of such railroad companies and for use in connection with the operation of their own lines; and as implying also that, inasmuch as a telegraph service along their own right of way is a necessary part of their equipment and is essential to the safe operation of trains by railroad companies, the legality of such free or reduced-rate transportation so accorded by carriers to such telegraph companies is not affected by the fact that telegraph companies are frequently permitted by the carriers to use the telegraph lines so erected along their own right of way in the performance by such companies of a telegraph service for the public. On November 9 the Commission heard the arguments of counsel for the Western Union and Postal Telegraph Companies in support of their petition, filed with the Commission, for a modification of the above rulings so far as they might control or govern certain contracts theretofore entered into between the petitioning telegraph companies and certain railroad companies, under which, in consideration of the free telegraph service accorded by the petitioners over wires off the lines of the respective contracting railroad companies, the latter agree to furnish free or reduced-rate transportation to such telegraph companies for the men, materials, and supplies necessary in connection with the construction, operation, and maintenance of such telegraph lines off the lines of the respective contracting carriers and upon the rights of way of other carriers. Counsel for several railroad companies were also heard in support of the petition of the telegraph companies. After a careful consideration of the oral arguments of counsel and of the briefs submitted to us in support of these petitions, the Commission is of the opinion that the rulings above set forth are in exact conformity with the terms and spirit of the law. Contracts between telegraph companies and carriers for the maintenance of telegraph lines on the rights of way of railroads are sui generis and unlike any other contracts with carriers that have come to our attention. So far as we can now 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 provision of law now in force that vests it with any authority, or any clause in the law that affords it a reasonable ground, to differentiate "off the line " service by carriers for telegraph companies from the transportation of merchandise or any other form of property for private shippers. The mere fact that carriers, as a means of securing traffic, making agreements with shippers, tracing their freight cars on the rails of other carriers, communicating with their agents in distant localities, etc., etc., frequently find it convenient to telegraph to points beyond their own right of way and are allowed by the telegraph companies to do so free or at reduced telegraph rates, does not make it lawful for a railroad company to grant to a telegraph company free or reduced-rate carriage for its officers, men, materials, or supplies destined for use in a telegraph service on the right of way of other carriers. 66 The Commission is of the opinion that such contracts with telegraph companies may lawfully be entered into by a railroad or by a group of separately incorporated roads generally recognized as a railway system;" and that, in consideration of the construction, maintenance, and operation of a telegraph line upon the right of way of such road or system of roads, which telegraph line such road or system would otherwise be compelled as an operating necessity to construct and maintain for itself, a carrier may accord to such telegraph company free or reduced-rate transportation for such officers, men, materials, and supplies of such telegraph company as are re quired and necessary in connection with the construction, maintenance, and operation of such telegraph lines upon such carrier's own. right of way or the right of way of such system of roads. But the Commission is of the opinion that so much of any such contract between a telegraph company and a carrier as stipulates or contemplates that such carrier will furnish free or reduced-rate carriage and transportation to the officials, employes, laborers, materials, or supplies of such telegraph company, in connection with the construction, maintenance, and operation of a telegraph line and service off the lines of such carrier and on the lines or system of lines of any other carrier, and for the use and service of such other carrier or for such telegraph company, is unlawful under the terms of the act to regulate commerce. In our opinion no railroad or system of railroads can lawfully stipulate or contract with a telegraph company for the carriage of its officials, employees, or property for any greater or less or different consideration than that specified in the regularly published tariffs in effect at the time, except in connection with the construction, operation, and maintenance of a telegraph service on its own lines or system of lines. Except as the rulings of the Commission are herein explained and applied, the petition of the telegraph companies is denied. No. 893. FREDERICK BRICK WORKS V. NORTHERN CENTRAL RAILWAY COMPANY, PENNSYLVANIA RAILROAD COMPANY, AND CENTRAL RAILROAD COMPANY OF NEW JERSEY. Submitted December 20, 1906. Decided December 24, 1906. Defendants' class rate of $3.80 per ton on brick, carloads, from Frederick, Md., to Elberon, N. J., 236 miles, applied on shipments made by complainant in January, 1906, was unreasonable and unjust. Complainant awarded reparation based on the difference between such rate and the rate of $2.75 per ton put in effect by defendants pending the controversy. Henry Trail for complainant. G. Stuart Patterson for defendants. REPORT OF THE COMMISSION. CLEMENTS, Commissioner: Complainant is a corporation engaged at Frederick, Md., a point on the Northern Central Railway, which is a part of the Pennsylvania |