236 U. S. Argument for Interstate Commerce Commission.

poses of Congress expressed in the act and best serve the remedial features of the legislation, and unless there is some controlling reason to the contrary, the courts will not discredit or disparage the conclusions of the Commission.

This contemporaneous construction by those having in charge the enforcement of the act should have great weight. New Haven Case, 200 U. S. 361, 401; United States v. Hermanos, 209 U. S. 337, 339; United States v. Philbrick, 120 U. S. 52, 59; Tifft v. Southern Ry., 158 Fed. Rep. 1021; I. C. C. v. Cincinnati, N. O. & T. P. Ry., 64 Fed. Rep. 931; Ill. Cent. R. R. v. I. C. C., 206 U. S. 441; United States v. Moore, 95 U. S. 760.

The free-pass provision should be construed in harmony with the purpose of its enactment. N. Y., N. H. & H. Ry. v. Int. Com. Comm., 200 U. S. 361; Lau Ow v. United States, 114 U. S. 47; Hopkins v. United States, 171 U. S. 578; United States v. Traffic Ass'n, 171 U. S. 550.

Section 1 of the act specifically provides to what common carriers the act shall apply. The carriers in controversy that is, the ocean steamship line and the English railroad--do not come within the terms of the act.

This is emphasized by the amendment inserted in the anti-pass proviso in 1910.

The provisions in § 22 allowing passes to be given to the employés of other railroads are modified by § 1, as amended in 1906. The original provision in § 22 was enacted in 1887.

Even if the provisions in § 22 were not repealed, the expression contained therein that passes may be issued to employés of other railroads includes only employés of the railroad companies subject to the act.

The Erie Railroad is a carrier subject to the act and bound by it, and the court may issue an injunction broad enough to cover any future issuance of interstate passes to the agents or employés of carriers not subject to the jurisdiction of the Commission, under the act.

The contention of the defendant would practically nullify the anti-pass section through enlarging by many millions the number of those entitled to receive these bounties at the expense of the public.

In the absence of legislative authority railways should have no more right to carry anyone free than a tax collector to remit taxes. Such privileges should be strictly construed and not enlarged by construction. The railroad pass has been one of the most corrupting influences in American public life. An awakening of public conscience brought about the amendment of 1906 to correct it.

If the defendant's contention is sustained it would practically nullify the salutary provisions of § 1 and fan into flame a wrong that has been smothered to a degree compared to what it was before the amendment of 1906.

Any change should be in the direction of further restriction rather than enlargement of this privilege.

Abuses would surely follow the overruling of the Commission's interpretation of § 1.

"Mutual back scratching" with railroad passes, unless authorized by law, is no more lawful than "mutual back scratching" with any other character of public taxes.

See also Bitterman v. L. & N. R. R., 207 U. S. 205; Cook County National Bank v. United States, 107 U. S. 445, 451; Cosmopolitan Shipping Co. v. Hamburg-American Packet Co., 13 I. C. C. 266; Edwards v. Darby, 12 Wheat. 210; In the Matter of Jurisdiction over Water Carriers, 15 I. C. C. 205; Robertson v. Downing, 127 U. S. 607; Ryan v. Carter, 93 U. S. 78; Slater v. Gunn, 170 Massachusetts, 509; Tracey v. Tuffly, 134 U. S. 206; United States v. Healey, 160 U. S. 136; United States v. MacDaniel, 7 Pet. 1; United States v. State Bank, 6 Pet. 29; United States v. Tynen, 11 Wall. 88, 92, 95.

Mr. George F. Brownell, with whom Mr. M. B. Pierce was on the brief, for appellee:

236 U.S.

Argument for Appellee.

The language of the proviso in the anti-pass provision of § 1 of the Act to Regulate Commerce as amended in 1906 is unambiguous, and clearly authorizes the continuance of the long-established and well-known practice and custom, which has existed ever since long before the passage of the act, of interchanging passes between common carriers subject to the act and other common carriers for their respective officers and employés. Alexander v. Worthington, 5 Maryland, 485; American Express Co. v. United States, 212 U. S. 522; Baggaley v. Pittsburgh & Lake Superior Iron Co., 9 Fed. Rep. 638; C. & P. Telephone Co. v. Manning, 186 U. S. 238; Gardner v. Collins, 2 Pet. 93; Georgia Banking Co. v. Smith, 128 U. S. 174; Holy Trinity Church v. United States, 143 U. S. 457; Int. Com. Comm. v. Baird, 194 U. S. 25; In the Matter of Exchange of Free Transportation, 12 I. C. C. 40; Kohlsaat v. Murphy, 96 U. S. 160; Maillard v. Lawrence, 16 How. 256; Thornley v. United States, 113 U. S. 310; United States v. Fisher, 109 U. S. 143; United States v. Goldberg, 168 U. S. 95; Yerke v. United States, 173 U. S. 439.

To give the construction contended for by the Government the court would have to interpolate the words "subject to the provisions of this Act" in the provisos of §§ 1 and 22 under consideration. This would be legislation and not construction, and is not permissible. American Express Co. v. United States, 212 U. S. 522; Andrews v. United States, 2 Story, 202; Ashby v. State, 139 S. W. Rep. 872; Beley v. Naphtaly, 169 U. S. 353; Day v. Ogdensburg & Lake Champlain R. R., 107 N. Y. 129; Denn v. Reid, 10 Pet. 524; Employers' Liability Cases, 207 U. S. 463; Ex parte Brown, 114 N. W. Rep. 303; Hillburn v. St. Paul &c., R. R., 23 Montana, 229; Johnson v. Burnham, 99 Virginia, 305; Hohlsaat v. Murphy, 96 U. S. 160; Pipe Line Cases, 204 Fed. Rep. 798; S. C., 234 U. S. 458; Sturges v. Crowninshield, 4 Wheat. 202; United States v. Chase, 135 U. S. 255; United States v. Fisher, 2 Cranch, 358; United States v.

Argument for Appellee.

236 U. S.

Goldberg, 168 U. S. 95; United States v. Harris, 177 U. S. 305.

The language of the proviso in § 22 of the Act to Regulate Commerce is unambiguous, and clearly authorizes the continuance of the well-known custom and practice which has existed ever since long before the passage of the act, of interchanging passes between railroad companies subject to the Act to Regulate Commerce and foreign and other railroad companies not subject to that act. Baltimore & Ohio S. W. Ry. v. Voight, 176 U. S. 498; Charleston & Western Carolina Ry. v. Thompson, 234 U. S. 516; Int. Com. Comm. v. B. & O. R. R., 43 Fed. Rep. 37; Louis. & Nash. R. R. v. Mottley, 219 U. S. 467; N. Y., N. H. & H. R. R. v. Int. Com. Comm., 200 U. S. 361; Northern Pacific Ry. v. Adams, 192 U. S. 440.

The provisions of § 22 as construed by the Supreme Court are illustrative rather than exclusive, and under its provisions railroad companies subject to the Act to Regulate Commerce lawfully could and did interchange passes with other common carriers not subject to the act including trans-Atlantic steamship companies. Int. Com. Comm. v. B. & O. R. R., 145 U. S. 263.

The legislative history of the anti-pass provision of the act shows no purpose to prohibit the issuing by common carriers subject to the act of passes to common carriers not subject to the act, but on the contrary, indicates an intent to permit the continuance of the practice of interchanging passes between common carriers subject to the act and other common carriers. American Express Co. v. United States, 212 U. S. 522; American Net & T. Co. v. Worthington, 141 U. S. 473; Atlantic Coast Line v. Riverside Mills, 219 U. S. 200; County of Schuyler v. Thomas, 98 U. S. 172; Holy Trinity Church v. United States, 143 U. S. 457; Jones v. Guaranty &c. Co., 101 U. S. 626; Tap Line Cases, 234 U. S. 27; United States v. Burr, 159 U. S. 85.

The history of the long-continued and well-recognized custom and practice of railroad companies to issue passes, in interchange with common carriers by rail and by water other than common carriers subject to the act as shown by the established facts in these cases, sustains the construction of the statute contended for by appellee and adopted by the court below. Chamberlain v. Chamberlain, 43 N. Y. 424; C., N. O. & T. P. R. R. v. Int. Com. Comm., 162 U. S. 184; Int. Com. Comm. v. B. Z. & C. R. R., 77 Fed. Rep. 942; Matter of Frontier & Western R. R., 156 App. Div. N. Y. 62; Steamboat New World v. King, 16 How. 469; United States v. Geddes, 131 Fed. Rep. 452; United States v. Railroad Co., 81 Fed. Rep. 783.

The Government's contention that the construction given by the Commission to provisions of the act in ex parte administrative rulings, must be taken as impliedly ratified by Congress and as binding upon the courts is not supported by either reason or authority. Int. Com. Comm. v. D., L. & W. R. R., 216 U. S. 530; N. Y., N. H. & H. R. R. v. Int. Com. Comm., 200 U. S. 361; Omaha & Council Bluffs St. Ry. v. Int. Com. Comm., 230 U. S. 324; United States v. B. & O. S. W. R. R., 226 U. S. 14.

MR. JUSTICE MCKENNA delivered the opinion of the

court.

These are direct appeals from decrees dismissing two bills filed by the United States to enjoin the railroad company from issuing passes to employés of common carriers not subject to the Act to Regulate Commerce.

The action of the railroad company is alleged to be in violation of §§ 2 and 3 of that act, Feb. 4, 1887, c. 104, 24 Stat. 379, and of §§ 1 and 6 as amended June 29, 1906, c. 3591, 34 Stat. 584, 586, prohibiting rebates and prefer

ences.