As stated in the prior report, in seeking to justify the proposed schedules respondents urged that enrollees of the Corps, who are generally recruited from needy families, are "indigent" and while in the Corps camps are "inmates" of a "charitable" institution to whom free transportation may be given, within the meaning of part I, section 1 (7), of the Interstate Commerce Act and conference ruling 208 (d) adopted October 12, 1906, which provided that "Reduced rate of fare transportation may be granted to such persons as are specified in the law as those to whom free transportation may be given." Respondents took and still take the position that the proposed fares may be accorded with or without tariff authority.

Division 3 pointed out that the above conference ruling was rescinded December 28, 1928, that the only persons designated in the act to whom reduced fares may be accorded are those specified in section 22 (1), and that there is no provision in that section for reduced fares to be paid by indigent persons or inmates of charitable institutions. In arriving at its conclusion division 3 further stated that—

Even if conference ruling 208, which is relied upon by respondents, had not been revoked and were lawful authority for reduced fares, or section 22 (1) of the act authorized the carriers to charge indigent persons or inmates of charitable institutions reduced fares, and enrollees of the Corps came within one or both of these definitions, the proposed schedules would still be unlawful in violation of part I, section 2 of the act, which forbids unjust discrimination, as the proposed fares are restricted to enrollees of the Corps and, as stated in respondents' brief, "it is virtually impossible for anyone other than an enrollee of the Corps to secure the reduced rates."

In their petition for reopening respondents urge that although conference ruling 208 (d) was rescinded it stated a correct legal principle which has not been overruled by the Commission in a formal decision or by the courts and that division 3 therefore erred in stating that the only individuals to whom reduced fares, not open to the public generally, may be accorded are those specified in section 22. Respondents also point out that, while in section 1 (7) of the act one of the classes of persons to whom free transportation may be accorded is "necessary caretakers of livestock, poultry, milk and fruit" and such caretakers are not specified in section 22 as persons to whom reduced fares may be accorded, the Commission in rule 60 of Tariff Circular 20, at present in effect, provides that "this transportation [of necessary caretakers of livestock, poultry, milk, and fruit] may be in the form of free pass or reduced-fare transportation". The latter rule further provides that authority for this transportation must be published and "must be the same for all under like circumstances". The proposed reduced fares are not the "same for all under like circumstances" but are restricted to enrollees of the Corps.

As stated in the prior report, before procuring a ticket the enrollee, in accordance with the terms of the tariff, must present an identification certificate from the officer in charge of the Corps camp at which the enrollee is stationed, in which is specified the ticket desired. While the proposed fares are published for "indigent" enrollees, in the identification certificate, form of which is printed in the tariff naming the reduced fares, it is not certified that the enrollee to whom the reduced fare is to be accorded is "indigent" but merely that he is "a member of the Civilian Conservation Corps."

In Free Transportation for Supervisors of Caretakers, 174 I. C. C. 433, division 3 in discussing the provisions of section 1 (7) said:

The statute is a penal one embodying a remedial policy, and exceptions to the general prohibition against granting of free transportation must be strictly construed. Spokane & I. E. R. Co. v. United States, 241 U. S. 344, 350.

Respondents also contend that division 3 erred in stating that even if there were lawful authority to accord reduced fares to indigent persons the proposed fares would be unjustly discriminatory in violation of section 2 for the reason that they are restricted to enrollees of the Corps. In support of this they point out that sections 1 and 22 of the act designate individuals or classes, to the exclusion of others, to whom free or reduced transportation may be accorded. Enrollees of the Corps are not designated in either section 1 or 22. As stated by the Commission in Transportation of Newspaper Employees, 12 I. C. C.

15:

Where the Congress has expressly enumerated special classes of persons or things that may be or must be exempted and excepted from the operation of general provisions in a law, this Commission can not enlarge the excepted classes by mere construction and include in them persons or things not thus expressly named in the act itself.

To accord reduced transportation to indigent enrollees of the Corps while denying such transportation to indigents who are not enrollees would be a clear violation of section 2 which provides that fares must be the same for all persons "under substantially similar circumstances." Counsel for respondents apparently had this in mind when he stated at the hearing, in referring to the suspended schedules, that he had "some doubt if a tariff of this kind can be filed without violating section 2 of the act."

Following the principle announced in conference ruling 208 (d), as applied in rule 60 of Tariff Circular 20, we find that it would not be unlawful to accord reduced fares to indigent enrollees of the Corps, provided that these fares are not restricted to such enrollees but are the same for all under like circumstances and are published and filed. The finding in the prior report is affirmed without prejudice to the filing of schedules in accordance with the above conclusions.

LEE, Commissioner, concurring in part:

I agree that under the law rail carriers may accord free transportation or reduced fares to indigent enrollees of the Civilian Conservation Corps, or other indigents. In my opinion, however, it does not necessarily follow that unjust discrimination results from the circumstance that free transportation or reduced fares are not accorded other indigents. Interstate Commerce Commission v. B. & O. R. Co., 145 U. S. 263; Nashville Ry. v. Tennessee, 262 U. S. 318. Whether any person is an indigent in the sense that the carrier may accord him reduced fares is a matter for the carrier to decide. And to give indigents such reduced fares it would not seem necessary to publish tariffs therefor.

ALLDREDGE, Commissioner, dissenting:

The original decision of division 3, 232 I. C. C. 631, that the suspended fares were unlawful rested upon two grounds: (1) Although railroads subject to the act are authorized by section 1 (7) to accord free transportation to specified classes of persons-among others, “indigent, destitute and homeless persons"-transportation at reduced fares could not be accorded to the same persons; and (2), assuming that reduced-fare transportation might lawfully be granted to Civilian Conservation Corps enrollees as "indigent persons," the suspended fares nevertheless were unlawful, particularly in respect of the inhibitions of section 2 of the act, because they were not made available to all indigent persons. Insofar as the second ground relied upon by division 3 is concerned, it was held to be unnecessary to determine whether or not Civilian Conservation Corps enrollees might be considered as indigent persons.

In this report on reconsideration, the first ground of illegality above noted is abandoned, and the finding that the suspended fares are unlawful rests solely on the second ground. It is now held, in effect, that the suspended fares would be lawful if made available not merely to indigent enrollees of the Corps, but to all indigent persons.

The report does not definitely determine whether membership in the Corps is in itself sufficient evidence of indigence and thus, after the proceeding has been twice considered, respondents will still be left in a quandary as to what to do.

The Civilian Conservation Corps was created "for the purpose of providing employment, as well as vocational training, for youthful citizens of the United States who are unemployed and in need of employment, and to a limited extent for war veterans and

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Indians (16 U. S. C. A., sec. 584). The qualifications of enrollees in the Corps (other than war veterans, enrollees in the Territories and insular possessions, and Indians) are that they must be

unmarried male citizens of the United States between the ages of 17 and 23 years and shall, "at the time of enrollment, be unemployed and in need of employment (16 U. S. C. A., sec. 584g). The maximum pay of enrollees is $30 per month, except that the maximum for not more than 10 percent of the enrollees, designated as assistant leaders, is $36 per month, and the maximum for not to exceed an additional 6 percent of the enrollees, designated as leaders, is $45 per month. Enrollees with dependent families are required under regulations of the Director of the Corps to make allotments of pay to such dependents (16 U. S. C. A., sec. 584h). As shown in my previous dissent enrollees with dependents are required to make allotments of $22 per month, and after other necessary expenses those receiving pay of $30 per month, comprising the main body of the enrollees, have left only about $4 per month. The allotments are credited to relief allowances to dependents of enrollees. In addition, the law provides for subsistence, disability, and death benefits (16 U. S. C. A., sec. 5841). That the enrollees may be properly deemed to be "indigent persons" is fully established by the authorities cited in my previous dissenting expression.

As indicated, to comply with the findings of the majority, respondents will be obligated to make the reduced fares applicable not only to indigent enrollees of the Civilian Conservation Corps, but to all other indigent persons without regard to the degrees of indigency or to any other classification which the facts and circumstances might justify. Obviously, this lays upon respondents an impossible task, and renders the statute, for all practical purposes, inoperative, ineffectual, and useless. In order to make the statute workable and to protect themselves against severe penalties for granting free or reduced-fare transportation to unauthorized persons, it is clear that respondents must name in their tariffs defined classes of indigents. It would be far-fetched to say that the tariffs should apply to indigent persons generally, leaving to respondents the imponderable task of determining the bona fide indigents among all and sundry who might present themselves. It would, of course, also be impracticable for respondents to undertake to devise an all-inclusive definition of indigents for incorporation in their tariffs. Nevertheless, these are unavoidable implications in the findings of the majority report. That construction of the law is directly at variance with our standing administrative ruling No. 53 of Tariff Circular 18-A relating to roundtrip tickets on the certificate plan. This ruling provides, in part, as follows:

Round-trip tickets on the certificate plan may be issued at reduced fares and their use be confined to the delegates to a particular convention or to the members of a particular association or society, upon the condition that a certain

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number of such tickets shall be presented for validation for return trip before the reduced fare for return trip will be granted to any.

An example of a tariff issued pursuant to the foregoing ruling is Agent Rhodes' I. C. C. No. H-4062, effective December 8 to December 12, 1939, providing for reduced round-trip excursion tickets to and from Cincinnati, Ohio, which may be sold only to members of the Ohio Valley Shippers' Advisory Board of the Car Service Division, Association of American Railroads, and members of standing commodity committees appointed to attend meeting of the Ohio Valley Shippers' Advisory Board.

In this instance, respondents are able-incidentally, but nevertheless effectually to rely upon a statute of the United States, administered under constant official supervision, as an aid in assuring the observance of the classification of indigents which they seek to enforce in the operation of the proposed fares. I see no cause, therefore, for any apprehension concerning the proper safeguarding of the conditions incident to the application of the reduced fares here in issue.

A well-established rule of statutory construction is stated in United States v. Ryan, 284 U. S. 167, 175, as follows:

All laws are to be given a sensible construction. A literal application of a statute which would lead to absurd consequences is to be avoided whenever a reasonable application can be given which is consistent with the legislative purpose.

I cannot avoid the belief that the majority decision fails to meet the requirements of the ruling next-above set forth; and that it is wholly wrong and will inevitably lead to confusion and to unjust and unreasonable results.

I am authorized to state that CHAIRMAN EASTMAN and COMMISSIONER CASKIE concur in this dissent.

235 I. C. C.