[212 U.S. 522, 523] Messrs. Lawrence Maxwell, Jr., Lewis Cass Ledyard, Frank H. Platt, Carl A. deGersdorf, W. W. Green, and Charles W. Stockton for appellants.
[212 U.S. 522, 525] Attorney General Bonaparte and Solicitor General Hoyt for appellee.
Mr. Justice Day delivered the opinion of the court:
These cases are appeals from the circuit court of the United States for the northern district of Illinois, and were submitted upon oral argument and printed record and briefs in No. 405. They involve the same question and hence will be disposed of together. The petition was filed in the circuit court under the 3d section of the Elkins act (32 Stat. at L. 847, chap. 708, U. S. Comp. Stat. Supp. 1907, p. 880), providing for the institution of such suit whenever the Interstate Commerce Commission shall have reasonable grounds for believing that any common carrier is engaged in the carriage of passengers or freight traffic between given points at less than the published rates on file, or is granting any discrimination forbidden by law.
An injunction was issued restraining the express companies from 'issuing any frank or other document for the free transportation of property to the following persons, to wit: the officers, agents, attorneys, and employees of said defendant and their respective families; the officers ad employees of other express companies and their respective families; the officers and employees of any railroad or any other common carrier subject to the act to regulate commerce and its amendments, and their respective families; or to any of said persons; and from trans- [212 U.S. 522, 529] porting and forwarding for said persons above named or any of them, without demanding and receiving the lawful rate of payment therefor, any shipments of property subject to the provisions of said interstate commerce act and its amendments.'
The facts are not seriously in dispute and were stipulated at the trial, and show that it has been the custom of express companies for many years to issue franks such as are embraced in the injunction. These franks were not issued except to officers and employees of the companies and their families, and to the officers and employees of other express companies and transportation companies and members of their families, in exchange for passes issued by the latter companies to the officers and employees of the express companies. The franks provided that they should not be used for business packages or for transportation of extra heavy weight, money, bonds, jewelry, live stock, or business consignments, and only for the personal packages of the holder of such frank, he being required to assume all risk of loss or damage, from whatever cause, to property carried under the frank.
The question is, Does the interstate commerce law prohibit express companies from giving free transportation of personal packages to their officers and employees and members of their families, and to the officers of other transportation companies and members of their families, in exchange for passes issued by the latter to the officers of the express companies? The circuit court held the affirmative of this proposition.
It is the contention of the government that such transportation is forbidden by 2 of the act of 1887 (24 Stat. at L. 379, chap. 104, U. S. Comp. Stat. 1901, p. 3155), forbidding the transportation of property or passengers subject to the provisions of the act for any person for a greater or less compensation for any service rendered or to be rendered, in the transportation of passengers or property, than it charges, demands, collects, or receives from any other person for doing for him the like service, and by 3 of the same act (24 Stat. at L. 380, chap. 104, U. S. Comp. Stat. 1901, p. 3155), which makes it unlawful to give any undue preference or advantage to any particular persons of [212 U.S. 522, 530] locality, and by the provisions of the Elkins act hereafter quoted.
Without considering whether the case at bar is covered by the section of the interstate commerce act referred to, an injunction is authorized under 3 of the Elkins act, where a common carrier is engaged in the carriage of passengers or freight at less than the published rate on file, and we shall limit our attention to certain provisions of the Elkins law in this connection. Section 1 of the Elkins act provides (as amended by the Hepburn act, June 29, 1906, 34 Stat. at L. 584, 587, chap. 3591, U. S. Comp. Stat. Supp. 1907, pp. 892, 898):
... * *
... * *
Section 6 of the interstate commerce act, as amended by the same law, provides:
The amendment to the interstate commerce act by the act of June 29, 1906 (34 Stat. at L. 584), chap. 3591, U. S. Comp. Stat. Supp. 1907, p. 892), brought express companies within the terms of the act. The express companies were therefore obliged to file and publish their rates for the transportation of property under 6 of the interstate commerce act as amended, and it is admitted in the record that they have done so.
The provisions of the Elkins act to which we have referred have been the subject of consideration in recent cases before this court. New York, N. H. & H. R. Co. v. Interstate Commerce Commission, 200 U.S. 361 , 50 L. ed. 515, 26 Sup. Ct. Rep. 272; Armour Packing Co. v. United States, 209 U.S. 56 -71, 52 L. ed. 681-691, 28 Sup. Ct. Rep. 428. It is unnecessary to repeat the discussion had in those cases as to the prior legislation and the reasons of public policy which led up to the enactment of the sections of the Elkins act above quoted. It is enough to say that it was the purpose of this law to require the publication and posting of tariff rates, open to public inspection, and at the service of all shippers alike; to prohibit and punish secret departures from the published rates, and to prevent and punish rebating, preferences, and all acts of undue discrimina- [212 U.S. 522, 532] tion. As was said by Mr. Justice White, speaking for the court in New York, N. H. & H. R. Co. v. Interstate Commerce Commission, supra:
In view of the interpretation thus given to the act, we think it cannot be doubted that the transportation of property, such as shown in this case, upon franks issued by the express companies, is within the terms of the act. It permits those who hold these franks to obtain the transportation of such property as is covered thereby without compensation; or, if the transportation has been paid, it is refunded to the shipper upon the presentation of the frank. Within the terms used in the Elkins act, such transportation enables one class of persons to obtain transportation at a different and less rate than that named in the published rates.
It is contended that such transportation is not within the terms of the act, as it was not the purpose of Congress to regulate in these provisions gratuitous transportation, but the purpose was to prevent discriminations, rebating, and so forth, where property has been carried by a common carrier for hire; that it is a departure from the rates charged for that class of transportation which is the evil to be remedied, and the only one covered by the terms of the act. But the power of Congress over interstate transportation embraces all manner of carriage of that character,-whether gratuitous or otherwise,-and, in the absence of express exceptions, we think it was the intention of Congress to prevent a departure from the published rates and schedules in any manner whatsoever. If this be not so, a wide door is opened to favoritism in the carriage of property, in the instances mentioned, free of charge. [212 U.S. 522, 533] If it is lawful, in view of the provisions of the interstate commerce act, to issue franks of the character under consideration in this case, then this right must be founded upon some exception incorporated in the act; and it is the contention of the learned counsel for the appellant that such exception is found in the proviso in 1 of the Hepburn act. This section is given in part in the margin. 1
1 The term 'common carriers' as used in this act shall include express companies and sleeping car companies.
No common carrier subject to the provisions of this act shall, after January first, nineteen hundred and seven, directly or indirectly, issue or give any interstate free ticket, free pass, or free transportation for passengers, except to its employees and their families, its officers, agents, surgeons, physicians, and attorneys at law; to ministers of religion, traveling secretaries of railroad Young Men's Christian Associations, inmates of hospitals and charitable and eleemosynary institutions, and persons exclusively engaged in charitable and eleemosynary work; to indigent, destitute, and homeless persons, and to such persons when transported by charitable societies or hospitals, and the necessary agents employed in such transportation; to inmates of the National Homes or State Homes for Disabled Volunteer Soldiers, and of Soldiers' and Sailors' Homes, including those about to enter and those returning home after discharge, and boards of managers of such homes; to necessary caretakers of live stock, poultry, and fruit; to employees on sleeping cars, express cars, and to linemen of telegraph and telephone companies; to railway mail service employees, postoffice inspectors, customs inspectors, and immigration inspectors; to newsboys on trains, baggage agents, witnesses attending any legal investigation in which the common carrier is interested, persons injured in wrecks, and physicians and nurses attending such persons: Provided. That this provision shall not be construed to prohibit the interchange of passes for the officers, agents, and employees of common carriers, and their families; nor to prohibit any common carrier from carrying passengers free with the object of providing relief in cases of general epidemic, pestilence, or other calamitous visitation. Any common carrier violating this provision shall be deemed guilty of a misdemeanor, and for each offense, on conviction, shall pay to the United States a penalty of not less than one hundred dollars nor more than two thousand dollars, and any person, other than the persons excepted in this provision, who uses any such interstate free ticket, free pass, or free transportation, shall be subject to a like penalty. [212 U.S. 522, 534] As originally reported, this act did not apply to express companies. The section was originally framed with the intention of making a provision for railroad carriers. It is contended that the proviso brings common carriers within the exception of the act, and therefore necessarily includes the express companies. There is no doubt that a proviso has not infrequently been the means of introducing into a law independent legislation, notwithstanding it is the true office of a proviso to restrict the sense or make clear that which has gone before and which might be doubtful because of the generality of the language used. United States v. Dickson, 15 Pet. 141, 163, 10 L. ed. 689, 698. This court has had occasion to hold more than once that language used in provisos shows the legislative intention to bring in new matter rather than to limit or explain that which has gone before. Georgia R. & Bkg. Co. v. Smith, 128 U.S. 174 , 32 L. ed. 377, 9 Sup. Ct. Rep. 47; Interstate Commerce Commission v. Baird, 194 U.S. 25, 36 , 37 S., 48 L. ed. 860, 865, 866, 24 Sup. Ct. Rep. 563.
While, therefore, a proviso may sometimes be construed as extending rather than limiting legislation, each statute must depend upon its own terms, and a proviso will be given such construction as is consistent with the legislation under construction.
Turning to 1 of the Hepburn act, it is apparent that all that immediately precedes the proviso appertains to the carriage of passengers, for common carriers are forbidden to issue or give any free ticket, free pass, or free transportation for passengers, except to its employees, etc. Until we come to the proviso, the act is clearly thus limited. It is then enacted that this provision, that is, the previous part of the enactment, which refers only to the transportation of passengers, shall not be construed to prohibit the interchange of passes for the officers, agents, and employees of common carriers and their families, or to prohibit any common carrier from carrying passengers free in certain cases.
While it is true the language here used has reference to com- [212 U.S. 522, 535] mon 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 passengrers 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 22 of the act of Feb. 4, 1887, 24 Stat. at L. 387, chap. 104 as amended by acts of March 2, 1889 [25 Stat. at L. 862, chap. 382] and February 8, 1895 [28 Stat. at L. 643, chap. 61, U. S. Comp. Stat. 1901, p. 3171], 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 1,-including the proviso-its terms cannot be held to include the transportation of goods.
It is very 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 to transportation of persons; but, if the law is defective in this respect, the remedy must be applied by Congress, and not by the courts.
We find no error in the decrees of the Circuit Court, and the same are affirmed.