The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-07-15
Is-ue cf Transportation in Ex-
change for Avertising
Is Held to Be Illegal by Judge
c. e. KOhlsaat.
CASE OF THE MONON
And Its Contract With Munsey
Is Decided.
Agreement is in Violation of the
Hepburn Act.

Chicago, July 15.-"If it be lawful
to make the exchange of railway
transportation for advertising then it
would be lawful to do the same in
every transaction, and the railroad
business might lawfully become one
of barter and sale limited only by the
demand"
In a decision handed down today by
Judge c. c. Kohlsaat in the United
States circuit court from which the
above is quoted the jurist enjoined the
issuance Of transportation by the Chi
cago, indianapolis & Louisville Rail-
way company to the publishers of
Munsey's magazine in exchange for
advertising. The decision was render
ed in test case in which the federal
authorities brought suit to prevent the
carrying out of q contract entered into
in January. 1907. between the railway
company and Frank A. MunSey & Co.,
providing for the issuance of trip
tickets or mileage to the value of $500,
in consideration of certain advertising
space in the publication of the maga-
zine company.
The contract was alleged to be a
violation of the Hepburn law. The pc
tition charges that the action of the
railroad company in issuing such
transportation constitutes a violation
of the prohibition against the accepts
ance of any compensation for trans
portation greater or less or different
from that named in the published
rates. The railroad company insisted
that it received a full money value,
based on scheduled rates for the mile
age or tickets issued and denied that
it was committing violation of the
law.
In passing upon the question of
compensation the decision says:
Opinion of the Court.
1.-THE question as to the value of the
advertising is contested one. Mani
testify there can be no fixed price
placed upon it. The number of copies
issued, the character of it's subcribers,
and very many other questions enter
the estimate of it's worth. 1t is. there
fore, impossible to say what it's cash
market value is except by comparison
with other advertising rates. It can
not be said that the evidence is con-
elusive or convincing on this point. If
1t is taken at its cash value why should
the transportation be limited as speci-
fed in the contract? If the magazine
is paying $500 to the defendant why
does it accept transportation both of
less and different value than it would
accept if it bought its tickets with
money. 1t seems fair TO conclude that
either the advertising is of less than
cash value or the advertisers are
grossly imposed upon by the railroad"
After citing several decisions render
ed in somewhat similar cases Judge
Kohlsaat says:
"It will be noted that the contract
does not require that the advertising
must have been furnished before the
transportation Is given. There is no
restriction upon the advertiser to call
for his railway tickets only so far as
earned. In the mere matter of inter-
est the rate would be less and different
from that which is published.
Law Is Plain.
There is no mistaking the trend of
the law making and constituting powers.
Every new step is tending toward a
most rigid enforcement of the rule that
requires exact equality in the matter Of
rates. When, by the Hepburn act, the
word different was added to the words
greater or less it is not unfair to as
sumo that congress intended to make
the law more explicit and more difficult
to evade. The plain intention is to close
every avenue of discrimination. Bear
ing this in mind the courts have not
been and will not be disposed to hesi-
| in the language of the statutes as they
| occur from time to time. 1t is essen
| tial to the spirit of the statute that
the value of transportation be fixed
and certain. In no other way can> lit be
| held to be exactly the same to all. II
! one person may purchase it with adver-
tising another with labor, and another
with produce, the value of which is a
matter of agreement between the par
ties. how can 1t be said the schedule
| rate is always maintained? Would not
the rate rest in the whim of the car
| rier? Such is not the intent of the
| law. To say to one man you must
nav cash. and to his competitor you
| NAV pay in services of merchandise at
| prices we may agree upon, be it less or
| more than the market prices would
seem clearly to constitute such diff
ference in transportation as is con-
| demned by the act. Some claim is made
| that the governments contention would
exclude the use of checks and drafts
| and bills of exchange. This is without
weight. In practical business usage
! these instruments pass for cash. The
| action of the defendant is in disson-
| ance with the letter and spirit Of the
| interstate commerce act"
| Notice Of an appeal to the United
| states supreme court was at once
| given by attorneys Of the railroad
| companies.
According to the statement of G. F.
Grattan attorney for the Kansas
Railway commission, the decision
handed down by Judge Kohlsaat. re-
! lates only to interstate transportation
%. the suit was brought under the
| Henburn Act, which has Jurisdiction
over only interstate business. Kansas
newspapers can make contracts with
roads for transportation within the
state.
Zeppelin Can't Fly Today.
II r-,.dr;obebo fen JuIy 15-A f1r-