Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1906-11-23
CASE FOR SUPREME COURT
MOnOn Railroad Challenges Ruling Of
Commission on Newspaper Mileage.
HOLDS EXCHANGE CONTRACTS ARE LEGAL
Ruling that Law Requires Payment
for All Railroad Services TO he
in Money Alleged 60 he
FaIIaciOus.

CHICAGO, Nov. 22.-The supreme court
Of the United States IS to be asked to pass
upon the question wheher a railroad com
pany can issue transportation in exchange
for advertising Ia newspapers. A test case
is to be made i'm Illinois, or rather an op-
portunity be given to the Interstate Com
merce commission to have the courts pass
upon their ruling that nothing but money
can be lawfully received or accepted IN
payment for transportation.
Shortly after the new rate law went into
effect the question came before the COM
mission and that body decided that only
money could be accepted. The justice OF
this ruling was not seen by the legal de-
partment of the Monon railroad and Mr..
George Kretzinger, the general counsel,
and Mr.. Il. c, Field, the general solicitor,
wrote to the Interstate Commerce commits
sion and gave their construction Of the law
backed by decisions Of the courts.
They said they had carefully considered
the law before the PRONUNCIATION of the
rule and under their construction Of the
law had entered into contracts in good
faith with publishers for the publication
of time cards, etc., and for the payment
OF such services in transportation at the
rate fixed by the Monou's duly published
tariff, which in every instance was the ex-
act equivalent of the agreed price for pub
lication.
Ruling of Courts Cited.
The law, they said nowhere provides
that payment for transportation shall be in
money, and II must therefore follow that
the freedom of contract as between a rail-
| road and an individual Is precisely the
| same as between other citizens. If this be
true, they went on TO say, II is difficult tC
understand when one does a service for a
railway corporation under contract made
in good faith and for an agreed considera.
tion, admittedly fair that the parties may
not mutually stipulate for the payment II
anything but money To hold otherwise
4 they urged, is to deny the freedom OF con
/ tract to a particular class. The rule az
universally stated and upheld by th'
courts is:
What the parties agree shall constitut,
| the payment, the law will adjudge to b,
payment. II Is competent Tor parties Il
designate by their contracts. how and II
what payment may be made. IL Is by NJ
in money on the contrary. it may be mad
in property, or in services.
The inhibition. they added, against charg
ing a greater or less or different com
pensation" relates alone To a difference il
| the Established rate and not to the man
ner Of making payment.
Intention. OF the Law.
The evil which the act is intended t
remedy. il was urged Is that n rate pub
iished should not mean one thing to on
man and another thing to another. an
the law - Intended sto make It plpan tina
the published rate. in fact as well as 4
form, shall mean the same to ali II wool
be immaterial.. therefore, in the accomplish
ment of this end whether the rate shoul
be paid in money or in actual services per
formed, il the services were the equivalen
of the money. The rule as propounded b
the commission. they say. would mean a
anomaly in the law, in that corpora tion
could do indirectly what they are prohit
tied from doing directly. AS an illustration
they say;
We contract for given advertisement
for six months at $lOO, which is forthwith
paid. The publisher concurrently there
with buys four 1OOO-mile books, the prtc
being 500, and the price just received fo
the advertisement, he turps back to tn
company for his mileage books. Whethel
/ therefore, tho transaction is consummate
in one woy or the other, the result is pre-
cisely the same.
It is not believed. the attorneys sale
that the commission intended either to re
strict the right TO contract or prescrih
the particular manner OF performing cor
tracts, but on the contrary. that the sol
purpose of the commission is to scrutiniz
contracts and to see that they are nc
merely devices or subterfuges to evade til
law.