P. 401, 402.



CREDIT ACCOUNT.

. EXTENSION OF CREDIT FOR
CHARGES.

1. Right to extend credit.
2. Right to discriminate.
3. Criminal liability.

CROSS REFERENCES.
See Evidence, 19.

. EXTENSION OF CREDIT FOR
CHARGES.

1. Right to Extend Credit.

(a) If there is any risk in carrying
a shipment without payment of charges
the carrier must in fulfillment of its own
duty under the law resolve that risk
against the consignor and collect in ad-
vance. Boise Commercial Club v. Adams
Express Co., 17 I. C. C. 115, 121.

(b) It is a carrier's right to demand
prepayment on all shipments, and it may
not distinguish between persons who
pay in advance and those who do not.
Boise Commercial Club v. Adams Ex-
press Co., 17 I. C. C. 115, 121.

(c) To accept shipment without pre-
payment is no more than to extend credit
to the consignor, and this within reason-
able and nondiscriminatory limits the
carrier may do. Boise Commercial Club
v. Adams Express Co., 17 I. C. C. 115,
121.

(d) Carriers may not lawfully make
a difference in rates based upon the
time of payment of charges. Boise Com-
mercial Club v. Adams Express Co., 17
I. C. C. 115, 121.

2. Right to Discriminate.

(a) The requirement of the prepay-
ment of charges from one shipper by a
carrier for the transportation of freight,
while no requirement is made of other
shippers similarly situated, at a time
when there existed a custom or usage
for the carrier to advance the charges of
connecting carriers, to deliver the
freight to the consignees, to hold bills
for freight until claims arising out of
errors in transporting were adjusted, and
then to collect them, does not subject the
shipper denied such credit to undue prej-
udice or discrimination within the mean-
ing of section 3 of the Act. (Hook, J,,
dissenting.) Gamble-Robinson Commis-
sion Co. v. C. & N. W. Ry. Co., 168 Fed.
161, 171.



180



CREDIT ACCOUNT, 2 (b) CRIMES



(b) Where a new tariff requiring
prepayment of charges has become ef-
fective prior to a shipment, the carrier
is not bound to reconsign without pre-
payment of charges a car belonging to
a shipper to whom it has been accus-
tomed to extend credit. Sage & Co. v.
I. C. R. R. Co., 18 I. C. C. 195, 196.

(c) A shipment of lumber consigned
to East St Louis, 111., arrived at Bixby,
111., 1:45 P. M., Aug. 31, 1907. On the
night of Aug. 31 complainant mailed a
written order from Kansas City direct-
ing delivery to Granite City, 111. This
order was not received until Monday,
Sept. 2. Under the published tariff the
free time allowed for reconsignment was
24 hours from the first 7 A. M. interven-
ing after arrival of the shipment, Sun-
days and legal holidays excluded. Sept.
2 was Labor Day. Delivery was not
effected at Granite City until 8:30 A. M.,
Sept. 5, and delay in reconsigning the
car after receipt of order was due to
the fact that the consignee was not on
the credit list of the defendant carrier,
and it was necessary to take up with
consignee the question of payment of
freight charges. Defendant company
assessed a car service charge of $1 per
day for Sept. 4 and 5. HELD, such car
service charge was improperly collected
and should be refunded. Beekman Lum-
ber Co. v. St. L. S. W. Ry. Co., 14 I, C.
C. 532, 534, 535.

3. Criminal Liability.
See Crimes, 3.

(a) Defendant railroad in a certain coal
district was accustomed to collect at the
end of the month for shipments of coal
made during the month. In pursuance
of a previous arrangement it accepted
promissory notes from one shipper in
part payment of the freight charges for
the month on shipments sent as pre-
paid, while at the same time exacting
cash payments from other competing
shippers in the same district. The notes
given by the favored coal company were
later merged into bonds of that com-
pany. HELD, defendant was criminally
liable under the Elkins Act as amended
June 29, 190G, for a "discrimination in
respect to transportation." U. S. v.
Sunday Creek Co., 194 Fed. 252, 254.

(b) A carrier, under the Act as
amended in 1906, practices a discrimina-
tion in respect to transportation in favor
of one shipper and against others of the
same class, shipping the same commodi-



ty, from the same points and under sub-
stantially the same conditions, by the
device of extending credit to such fa-
vored shipper for the freight charges on
such shipments by it while exacting and
collecting cash compensation for sub-
stantially similar shipments from the
other shippers in question. U. S. v.
Hocking Valley Ry. Co., 194 Fed. 234, 246.

(c) Where an indictment for violation
of section 6 of the Act as amended in
1906 charges that defendant carrier col-
lected a portion of the freight charges
from a favored shipper and extended
credit for the balance, it is not insuffi-
cient by reason of the failure specifically
to rebutt the possibility that the portion
collected represented the full amount
due the carrier under its published rates
for its part of the haul. U. S. v. Hocking
Valley Ry. Co., 194 Fed. 234, 246.

(d) Defendant railroad in a given coal
district was accustomed to collect at the
end of the month for shipments of coal
made during the month. In pursuance
of a previous arrangement it accepted
promissory notes from one shipper in
part payment of the freight charges for
the month on shipments sent as prepaid
while at the same time exacting cash
payments from other competing shippers
in the same district. The notes given by
the favored coal company were later
merged into bonds of that cpmpany.
HELD, defendant was criminally liable
under section 6 of the Act, as amended
in 1906, for a wilful failure to observe
its tariffs on the ground of both accept-
ing a "less or different compensation"
and of extending "privileges or facili-
ties" not specified in its tariffs. U. S.
v. Hocking Valley Ry. Co., 194 Fed. 234,
241.

CROSS REFERENCES IN
TARIFF.

See Reconsignment, 4 (e).

CUSTOM.

See Blanket Rates, 5.

CRIMES.

I. THE ELKINS ACT.

1. Constitutionality.

2. Construction.
II. DISCRIMINATION.

3. Credit account.
III. FREE TRANSPORTATION.

4. In general.



CRIMES, 1 (a) (d)



181



IV. MISBILLING.

5. In general.

V. OVERCHARGES.

6. In general.
VI. REBATING.

A. Elements of offense.
7. In general.

8. Intent and knowledge.

9. Payment.
10. Posting of tariff.
11. Route and "common ar-
rangement."
12. Transportation.

B. Number of offenses.
13. Payment.

14. Shipments.

C. Liability.

15. Act of agent.
16. Connecting carrier.
VII. INDICTMENT.

A. Charging elements of offense.
17. In general.

18. Concession or rebate.
19. Description of device.
20. Language of statute.
21. Payment.
22. Posting of tariff.
23. Route.

B. Joinder of defendants.
24. Principal and agents.

C. Proof and variance.
25. In general.

D. Venue.

26. In general.
mi. DEFENSES.

27. Former jeopardy.

28. Statute of limitations.
IX. PROCEDURE.

29. Province of court.

30. Province of jury.

31. Extent of verdict.
X. PENALTIES.

32. Excessive fine.
XI. STATE REGULATION.

33. In general.

CROSS REFERENCES.

See Advertising, II; Allowances, IV,
VII, VIM, 8 (7); Credit Account,
3; Demurrage, 11 (a), (b); Divi-
sions, IV; Overcharges, III; Spe-
cial Contract, 3; Through Routes
and Joint Rates, 2 (b); Transpor-
tation, 3 (b); Undercharges, 2
(d).

, THE ELKINS ACT.

1. Constitutionality.

See Constitutional Law.
(a) The clause in the Elkins Act to
tie effect that in construing and enforc-
ig the criminal provisions against re-



bating, the act, the omission, or failure
of any officer, agent, or other person
acting for or employed by any common
carrier, acting within the scope of his
employment, shall in every case be also
deemed to be the act, omission, or fail-
ure of such carrier, as well as of that
person, is not unconstitutional as imput-
ing to an individual engaged as a carrier
criminal acts of his agent or as imputing
to a corporation the commission of crim-
inal offenses, or as punishing its inno-
cent stockholders without due process
of law. N. Y. C. & H. R. R. R. v. U. S.,
212 U. S. 481, 495, 496, 29 Sup. Ct. 304,
53 L. ed. 613; N. Y. C. & H. R. R. R.
v. U. S., 212 U. S. 500, 29 Sup. Ct. 309,
53 L. ed. 624.

(b) The provision of the Elkins Act
making it a crime for a shipper to re-
ceive a rebate whereby property is trans-
ported at less than the published rates,
which provision applies to a shipment
under a through bill of lading from an
interior port of the United States via
rail and an ocean carrier to a European
port, is not in violation of Article I, Sec.
tion 9, Paragraph 5, of the Constitution
of the United States forbidding the lay-
ing of a tax or duty on exports, or as the
giving of preference by a regulation of
commerce or revenue to the ports of
one state over those of another. Armour
Packing Co. v. U. S., 209 U. S. 56, 79,
80, 28 S. Ct. 428, 52 L. ed. 681; C. B. &
Q. Ry. Co. v. U. S., 209 U. S. 90, 28
S. Ct. 439, 52 L. ed. 698.

(c) The provision of the Elkins Act
authorizing the prosecution against a
shipper for receiving a rebate or con-
cession in any district through which the
transportation may have been continuous
is not in violation of the sixth amendment
of the Constitution of the United States,
requiring crimes to be prosecuted and
punished in the. state or district where
the same are committed, since this con-
stitutional provision does not require
the prosecution of the defendant in the
district where he resides at the time of
the commission of the offense, or where
he may happen to be at that time, but
only requires that he be prosecuted
where the offense is committed. Armour
Packing Co. v. U. S., 209 U. S. 56, 76, 28
S. Ct. 428, 52 L. ed. 681; C. B. & Q. Ry.
Co. v. U. S., 209 U. S. 90, 28 S. Ct. 439,
52 L. ed. 698.

(d) The Elkins Act, which provides
that a shipper guilty of receiving a con-



182



CRIMES, 1 (e) 3 (b)



cession from a rate published and filed,
as required by the Act, is guilty of a mis-
demeanor, is not unconstitutional, upon
the ground that it does not permit the
shipper, when prosecuted, to prove the
unreasonableness of the established rate,
and the reasonableness of the rate paid.
U. S. v. Vacuum Oil Co., 158 Fed. 536, 539.

(e) The Elkins Act is not unconsti-
tutional as an ex post facto law on the
ground that it makes criminal the pay-
ment of rebates at a date after the date
of its passage, in pursuance of an agree-
ment to pay such rebates entered into
prior to the date of its passage. U. S.
v. G. N. R. Co., 157 Fed. 288, 290.

(f) The Act as amended by the El-
kins Act is not unconstitutional on the
ground that inasmuch as the common
law right to enforce a reasonable rate of
carriage, by a legal proceeding, is taken
away, so that not only the regulation
of carriers but of shippers is vested in
the Interstate Commerce Commission,
the statutes constitute a deprivation of
property rights without due process of
law. U. S. v. G. N. R. R. Co., 157 Fed.
288, 291.

2. Construction.

(a) The Elkins Act proceeded upon
broad lines and was evidently intended
to effectuate the purpose of Congress to
require that all shippers should be treat-
ed alike, and that the only rate charged
to any shipper for the same service
under the same conditions should be
the one established, published and posted
as required by law. It is not so much
the particular form 'by which, or the
motive for which, this purpose was ac-
complished, but the intention was to
prohibit any and all means that might
be resorted to to obtain or receive con-
cessions and rebates. Armour Packing
Co. v. U. S., 209 U. S. 56, 72, 28 Sup.
Ct. 428, 52 L. ed. 681; C. B. & Q. Ry.
Co. v. U. S., 209 U. S. 90, 28 Sup. Ct.
439, 52 L. ed. 698.

(b) The Elkins Act is not only to be
read in the light of previous legislation,
but the purpose which Congress evi-
dently had in mind in the passage of
the law is also to be considered. Ar-
mour Packing Co. v. U. S., 209 U. S. 56,
72, 28 Sup. Ct. 428, 52 L. ed. 681; C. B.
& Q. Ry. Co. v. U. S., 209 U. S. 90, 28
Sup. Ct. 439, 52 L. ed. 698



(c) A criminal charge under the El-
kins Act against a shipper for receiving
a rebate whereby property is transported
from Kansas City to New York City at
less than the published rates involves a
single continuous offense, not a series
of offenses, although it is continuously
committed in each district through which
the transportation is received at the pro-
hibited rate. Armour Packing Co. v,
U. S., 209 U. S. 56, 77, 28 Sup. Ct. 428,
52 L. ed. 681; C. B. & Q, Ry. Co. v.
U. S., 209 U. S. 90, 28 Sup. Ct. 439, 52
L. ed. 698.

(d) The provision of the Elkins Act
making it criminal for a shipper to re-
ceive any rebate whereby property is
transported at less than the published
rate applies to a shipment on a through
bill of lading from Kansas City, Kan., via
New York City, and thence by ocean
carrier to a European port. Armour
Packing Co. v. U. S., 209 U. S. 56, 78, 28
Sup. Ct. 428, 52 L. ed, 681; C. B. & Q.
Ry. Co. v. U. S., 209 U. S. 90, 28 Sup.
Ct. 439, 52 L. ed. 698.

(e) Under the Elkins Act of Feb. 19,
1903, three distinct offenses are created;
first, the soliciting of a rebate, conces-
sion or discrimination in respect of the
transportation of property in interstate
or foreign commerce; second, the ac-
ceptance of any such rebate, concession
or discrimination; third, the receipt of
any such rebate, concession or discrim-
ination. U. S. v. Bunch, 165 Fed. 736, 739.

II. DISCRIMINATION.
3. Credit Account.

(a) A carrier, under the Act as
amended in 1906, practices a discrimina-
tion in respect to transportation in favor
of one shipper and against others of the
same class, shipping the same commod-
ity from the same points and under sub-
stantially the same conditions, by the de-
vice of extending credit to such favored
shipper for the freight charges on such
shipments by it, while exacting and col-
lecting cash compensation for substan-
tially similar shipments from the other
shippers in question. U. S. v. Hocking
Valley Ry. Co., 194 Fed, 234, 246.

(b) Defendant railroad in a certain
coal district was accustomed to collect
at the end of the month for shipments
of coal made during the month. In pur-
suance of a previous arrangement it ac-
cepted promissory notes from one ship-



CRIMES, 3 (c) 5 (a)



183



er in part payment of the freight
barges for the month on shipments
ent as prepaid, while at the same time
xacting cash payments from other com-
>eting shippers in the same district,
'he notes given by the favored coal
ompany were later merged into bonds
f that company. HELD, defendant was
riminally liable under section 6 of the
Let, as amended in 1906, for a wilful
ailure to observe its tariffs on the
;round of both accepting a "less or dif-
erent compensation" and of extending
privileges or facilities" not specified in
ts tariffs. U. S. v. Hocking Valley Ry.
to., 194 Fed. 234, 241.

(c) The word "discrimination" as
ised in the Elkins Act is employed in
ts common sense, as well as with what-
ever enlarged or more definite meaning
he context of the amendment of 1906
tfves to it. Thus a shipper who is per-
nitted to settle his charges by paying a
'less or different compensation" to the
Carrier is accepting or receiving a "dis-
Timination." U. S. v. Sunday Creek Co.,
94 Fed. 252, 254.

(d) Defendant railroad in a given coal
iistrict was accustomed to collect at the
2nd of the month for shipments of coal
nade during the month. In pursuance
3f a previous arrangement it accepted
promissory notes from one shipper in
part payment of the freight charges for
the month on shipments sent as pre-
paid, while at the same time exacting
sash payments from other competing
shippers in the same district. The notes
given by the favored coal company were
later merged into bonds of that com-
pany. HELD, defendant was criminally
liable under the Elkins Act as amended
June 29, 1906, for a "discrimination in
respect to transportation." U. S. v. Sun-
day Creek Co., 194 Fed. 252, 254.

(e) The Lehigh Valley R. R. Co. car-
ries among its assets $10,537,000 non-in-
terest bearing certificates of indebted-
ness of the Lehigh Valley Coal Co. At

5 per cent per annum the interest on these
certificates would be $526,850. HELD, the
latter sum is in all substantial respects a
rebate to the Lehigh Valley Coal Co., giv
ing it to that extent an unlawful advan
tage over independent dealers. Me.eker

6 Co. v. Lehigh Valley R. R. Co., 21 J
C. C. 129, 161.



II. FREE TRANSPORTATION.

See Express Companies, 5; Special
Contract, 1 (a), 2 (a), (zz),
(aaa), (bbb); Tap Lines, 8.

4. In General.

(a) Where a defendant obtains a free
ticket from the person to whom it is
rightfully issued by the carrier, transfers

t to one who he knows has no lawful
right to use it, for the purpose of violat-
ng the law, and such person actually
uses the same, defendant is guilty of
violating section 1 of the Act as amend-
d June 26, 1909, and April 13, 1908, mak-
ing any person not within the list of ex-
ceptions liable to a penalty who "uses
any such free ticket." U. S. v. Martin,
176 Fed. 110, 113.

(b) Defendant, an employe of a -rail-
road company, and entitled to receive
a pass, delivered his pass to one Pounds,
who was not an employe and not en-
titled to use or receive the same, but
did use it in an interstate journey. De-
fendant was prosecuted under section 1
of the Act of June 29, 1906, prohibiting
the use of free transportation by any-
one except certain persons enumerated
in the Act. HELD, under this section,
the statute intended that all persons
making use of any interstate free pass
should be liable to the penalty prescribed
by the statute, unless they are excepted
by the terms thereof, and that Pounds
not being so excepted, defendant was
liable for aiding and abetting an act in
violation of the statute. U. S. v. Wil-
liams, 159 Fed., 310, 313.

IV. MISBILLING.

See Classification, 8.

5. In General.

(a) Defendant railroad extended from
Montpelier, Vt., to Wells River, Vt., 39
miles. The carriers connecting Echo,
Pa., with Montpelier established a joint
tariff on coal to that point of $3.55, and
to Wells River, and intermediate stations
on defendant's line, of $3.80. The tariff
provided that to any point of destination
named, the rate would be the same as to
the next more distant point that was
named. Defendant's division of the
through rate of $3.80 was 75c. Defend-
ant had its coal billed to Wells River.
It was transported only to Montpelier
and was unloaded at defendant's coal
pocket, which were some 6-10 of a mile
from the point in Montpelier at which
defendant received the coal from the



184



CRIMES, 5 (b) VI



delivering carrier and were within the
limits of Montpelier. East Montpelier
was the "next more distant" point named
in the tariff. Defendant by this process
subtracted its share of 75c from the $3.80
charge to Wells River and thus secured
a rate to Montpelier of $3.50. HELD,
defendant was not criminally liable un-
der the Elkins Act for obtaining trans-
portation at less than the legal rate by
means of false billing. Montpelier & W.
R. R. R. v. U. S., 187 Fed. 271, 272.

(b) The fact that the testimony in a
reparation case showed complainant had
knowingly misbilled a shipment of junk
as scrap iron will form the subject of
further inquiry under the criminal pro-
visions of the Act Radinsky v. O. S. L.
R. R. Co., 21 I. C. C. 243, 245.

(c) The local haul to a junction joint
is a different service from that performed
to the same point as part of a through
haul to a destination beyond, and the
fact that fictitious billing may be resort-
ed to to secure the unlawful application
of the division of a joint rate for that
service is no reason for condemning the
lawful practice of billing bona fide
through shipments to ultimate destina-
tion at the through rate. False or ficti-
tious billing of company material with
intent tq defeat the application of the
lawful rate for the service actually per-
formed, like other fraudulent practices
with like intent, would subject the guilty
party to the penalties of the law for of-
fenses of this sort in general. Beekman
Lumber Co. v. L. Ry. & N. Co., 21 I. C.
C. 280, 282.

(d) Incorrect dating of bills of lading
by a carrier is unlawful. Ford Co. v.
M. R. R. Co., 19 I. C. C. 507, 510.

(e) Dealers in grain and packing
house products at Richmond, Va., to-
gether with defendant railroad company,
and its agents, are found to have par-
ticipated in an unlawful practice of is-
suing transfer slips which falsely con-
veyed to connecting lines the statement
that shipments had originated at points
beyond Richmond and were entitled to
move from Richmond to destination in
the Carolinas at a division of a through
rate, and these matters being criminal
in their nature are referred to the
United States District Attorney at Rich-
mond with the request that prosecution
be instituted against the parties involved.
In Re Rates, Practices, Accounts and
Revenues of Carriers, 13 I. C. C. 212.



(f) The law places the same obliga-
tion upon the shipper as upon the car-
rier to observe lawful tariff provisions.
Any wilfully false representation of the
contents of a package on the part of the
shipper is prohibited by the law, denomi-
nated as a fraud, and declared to be a
misdemeanor by the Act, and the ship-
per convicted thereof is subject to fine
or imprisonment, or both, in the discre-
tion of the court. Bannon v. Southern
Express Co., 13 I. C. C. 516, 519.

V. OVERCHARGES.
6. In General.

(a) The Act provides: "nor shall any
carrier charge, or demand, or collect, or
receive a greater or less or different
compensation for such transportation of
passengers or property, or for any ser-
vice in connection therewith, between
the points named in such tariffs than the
rates, fares, and charges which are speci-
fied in the tariff filed and in effect at
the time." HELD, a -railroad is crimi-
nally liable for merely demanding stor-
age charges in excess of those lawfully
applicable. U. S. v. T. & P. R. R. Co.,
185 Fed. 820, 822, 824.

(b) Within the meaning of the pro-
vision in the Act to Regulate Commerce
making a carrier criminally liable for
exacting greater or less compensation
than the legally published rates, the car-
rier is only entitled to collect storage
charges when its duty as a carrier ceases
and it becomes a warehouseman, and that
means (where it is its duty to unload
the shipment) when it unloads the
freight into a freight warehouse and it
remains there after the owner has given
the consignee reasonable time to remove
the goods. United States v. Texas &
P. R. R. Co., 185 Fed. 820, 823.

(c) Where a carrier willfully and
knowingly demands and receives storage
charges against a shipper for cars de-
tained at a point other than the cus-
tomary and usual place of delivery or
point of destination, it is criminally liable
under the Act to Regulate Commerce,
although notice of the arrival of the car
at point of detention was given by the
carrier to the shipper. United States v.
Texas & P. R. R. Co., 185 Fed. 820, 824.

VI. REBATING.

- See Advertising, II; Allowances, VII;
Crimes, 18; Courts, 4 (a); Dis-
crimination, 2 (e), 15 (a); Divi-
sions, 1 (b), 4 (b), (c), (d); Evl-



CRIMES, 7 (a) (e)



185



dence, 25 (b), (d), 48; Export
Rates and Facilities, V (d); Facili-
ties and Privileges, 19 (h); Over-
charges, 10 (a); Reparation, 4
(a); Special Contract, 2 (f ) ; Tap
Lines, 3 (2) (b), 9 (j) ; Through
Routes and Joint Rates, 2 (b); 14
(c); Water Carriers, II.

A. Elements of Offense.
7. In General.

(a) A carrier cannot depart to any
extent from its published schedules of
rates for interstate transportation on
file without incurring the penalties of
the statutes. L. & N. R. R. .v. Mottley,
219 U. S. 467, 477, 31 Sup. Ct. Rep. 265,
55 L. ed. 297.

(b) The fact that a state statute
under which a railroad is organized per-
mits it to issue transportation to pub-
lishers in exchange for advertising does
not prevent such an arrangement be-
tween the carrier and publishers from
being in violation of the provisions of
the Act forbidding the carrier to accept
rates "less than and different" from the
rates exacted from the general public.
Chi. Ind. & L. Ry. Co. v. U. S. 219 U. S.
486, 497, 31 Sup. Ct. 272, 55 L. ed. 305.

(bb) A contract by which a carrier