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the remedy provided by § 23 was not to be treated as exclusive, and especially
inasmuch as it is expressly provided that the remedy granted therein shall be
cumulative, and shall not be held to exclude or to interfere with other remedies
granted by the act. Any other construction of this proviso would be in direct
conflict with the plain provisions of the law, and, in view of this provision, we
are of opinion that the court below was without power to restrain the appellant
from proceeding before the interstate commerce commission under the provisions
of § 13, and that the court did not have jurisdictions of the subject matter sought
to be litigated in this proceeding.^^

§§ 4220-4237. Criminal Liability of Carrier— § 4220. In General.—

Effect must be given, in construing a repealing act, to the general saving clause

ance to the interstate commerce commis- R. Co., 200 Fed. 185.

sion, the complaint constituted an elec- 93^ Cumulative remedies. — Tift v,

tion to sue in a federal court, which had Southern R Co 123 Fed 789.

jurisdiction to determine whether it r^^^ j^j remedies provided by the

stated facts sufhcient to constitute a interstate Commerce Act are cumulative,

cause of action under Interstate Com- ^^^ exclusive, of the general remedies

merce Act, §§16. 8, 9, and lo. National j^^^^ ^,^^ Judiciary Act conferring ju-

Pole Co. V. Chicago, etc., R. Co., 211 ,;^,y,^^,^,-, „f all suits and controversies

red. 65. ^ r .1 T . ^ ^ n arising under an act of congress, regard-

91. Section 9 of the Interstate Com- ,^^^ ^^ diversity of citizenship be-
merce Act; Texas etc., R Co t;. In er- ^^^^^ ^,^^ i^^ kittle Rock, etc., R,
state Commerce Comm., 162 US. 197, ^^ ^_ p,^^^ Tennessee, etc., R. Co., 47
40 L. Rd. 940, 16 vS. Ct. 666; i exas, etc., -p j «-,,

R. Co. V. Al)ilene Cotton Oil Co., 204 U. ^^^- ''' j. ^

S. 426, 51 L. Ed. 553, 27 S. Ct. 350, 9 , 94. Proceeding by mandamus.-Mer-

Am. & Eng. Ann. Cas. 1075; Interstate chants Coal Co. v. Fairmont Coal Co.,

Commerce Comm. v. Brimson, 154 U. S. ^''^ ^^^^- '^''"•

447, 38 L. Ed. 1047, 14 S. Ct. 1125. 95. Merchants' Coal Co. v. Fairmont

92. National Pole Co. v. Chicago, etc., Coal Co., 160 Fed. 769.



§§ 4220-4221 CARRIERS. 3842

in the Revised Statutes of the United States •'*' prescribing the effect of repealing
acts on existing penalties, forfeitures, and liabilities, unless, either by express
declaration or necessary implication arising from the terms of the repealing law
as a whole, it results that the legislative mind will be set at naught by giving ef-
fect to such saving clause. The exception from the operation of the provision
repealing conflicting laws, which is made by the Act of June 29, 1906, in favor
of causes pending in the federal courts, which shall be prosecuted to conclusion
in the manner heretofore provided by law, was addressed solely to the procedure
to be followed in pending cases, and such section, therefore, does not supersede
the general provision of the Revised Statutes saving existing forfeitures, pen-
alties, or liabilities from repeal, so as to prevent future criminal prosecutions for
offenses against the Act of Feb. 19, 1903, committed prior to the adoption of the
later statute. ^'^

§ 4221. Discrimination and Undue Preference. — Statutory Provi-
sions. — In so far as the Act of Feb. 19, 1903, provided for punishment of cor-
])orate carriers in granting, and corporate shippers in knowingly accepting, rebates
or discrimination from legal rates and tariffs, it was not abrogated or repealed
by the Act of June 29, 1906, but was preserved, and so far as it provided for
the punishment of such acts when not knowingly done, it was repealed. '^^ There-
fore, intentionally accepting transportation of goods in interstate or foreign
commerce at less than the carrier's published rates, which is forbidden by the
Act of Feb. 19, 1903, is sufficient to sustain a conviction under that act, although
such action may have been taken in good faith, under a claim of legal right.'^'^'
The "undue preferences" clause of the Interstate Commerce Act is indefinite
and uncertain, a conviction for its violation can not be sustained where the crim-
inality of the act is made to depend on whether the jury think a preference
reasonable or unreasonable.^ The Act of Feb. 19, 1903, is not restricted in its
provisions to departures from an establishment tariff rate, but is violated if any
other advantage is given to a shipper whereby a discrimination is practiced. -

Where Rate Not Published by Carrier. — A carrier which gives rebates
from a joint rate on file with the interstate commerce commission may, although
it did not itself publish and file the rate, be convicted of violating the act which,
inter alia, provides that the published rate shall be conclusively deemed, in any
prosecution under the act, to be the legal rate as against the carrier who files the
same or "particijiates in any rates so filed or published," and that any departure
from such rate shall be deemed to be an oft'ense under the act.^ An interstate
carrier may be prosecuted under the Elkins Act for the offense of rebating
where it is a party to the joint rate although it has not filed and published the
same itself. While it is usual for the initial carrier to file such joint tariffs, the
fact that it was filed by another carrier participating therein is immaterial, since
§ 1 of the Elkins Law brings all the carriers who have participated in any rate
filed or published within the terms of the act, as much so as if the tariff' had
been actually published and filed by such participating carrier, for the statute
specifically provides that the published rate shall be conclusively deemed in any

96. Criminal liability of carrier.— U. S. States, 209 U. S. 56, 52 L. Ed. 681, 28
Rev. Stat., § 13, U. S. Com. Stat. 1901, S. Ct. 428. affirming judgment, 153 Fed.
p. 6. 1, 82 C. C. A. 135, 14 L. R. A., N. S.,

97. Great Northern R. Co. v. United 400; Chicago, etc., R. Co. v. United States,
States, 84 C. C. A. 93, 155 Fed. 945, judg- 209 U. S. 90, 52 L. Ed. 698, 28 S. Ct. 439,
ment affirmed in 208 U. S. 452, 52 L. Ed. affirming judgment, 157 Fed. 830.

567, 28 S. Ct. 313. 1. Tozer v. United States, 52 Fed. 917.

98. Discrimination and undue prefer- 2. United States v. Vacuum Oil Co.,
ence.— Great Northern R. Co. v. United 153 Fed. 598.

States, 155 Fed. 945, 84 C. C. A. 93, judg- 3. Where rate not published by Gar-
ment affirmed in 208 U. S. 452, 52 L. Ed. rier. — United States v. New York, etc., R.
567. 28 S. Ct. 313. Co., 212 U. S. 509, 53 L. Ed. 629, 29 S.

99. Armour Packing Co. v. United Ct. 313, reversing 157 Fed. 293.



3843 interstate: commerce; act. §§ 4221-4222

prosecution under the act to be the legal rate as against the carrier who files the
same, or "participates in any rates so filed and published." ■*

As to Connecting Carriers. — The provisions of Interstate Commerce Act
making it unlawful for any common carrier engaged in interstate commerce to
give any undue or unreasonable preference or advantage to any particular ship-
per, or to subject any particular shipper to any undue or unreasonable prejudice
or disadvantage in any respect whatever, if construed to apply to the affording of
facihties for shipments, do not subject a railroad company to indictment under
the act for its failure or refusal to furnish switch connections to a shipper tender-
ing interstate traffic for transportation, although such connections are furnished
to other shippers, where the indictment does not charge that those demanded are
reasonably practicable and could be put in with safety and would furnish suffi-
cient business to justify the expense of their construction and maintenance, nor
that the person or company asking for the same offered to pay such portion of
their cost as is usual and reasonable.^

§ 4222. Rebates. — Statutory Provision. — The giving or receiving of a
rebate or concession whereby property in interstate or foreign commerce is
transported at less than the established rate is the essence of the offense de-
nounced by the Act of Feb. 19, 1903.<' Section 10 of the Act of June 29, 1906,
relating to rates of interstate carriers, which provides that "all laws and parts of
laws in conflict with the provisions of this act are hereby repealed, but the amend-
ments herein provided for shall not affect causes now pending in courts of the
United States, but such causes shall be prosecuted to a conclusion in the manner
heretofore provided by law," when construed in accordance with the rule pre-
scribed by Rev. St., § 13, does not relieve offenders under § 1 of the Act of
Feb. 19, 1903, from subsecjuent indictment and prosecution for such offenses,
but merely relates to the mode of procedure to be followed in pending causes."^
Under the clause of the interstate commerce act making it unlawful for a carrier,
by means of false billing, classification, weighing, or by any other device or
means, knowingly to assist or suffer any person to obtain transportation at less
that the regular rate, an indictment will not lie for paying or receiving re-
bates.^

Separate and Continuing Offenses. — Where pursuant to a previous agree-
ment, preceding transportation, a number of separate shipments are. made arid
the full legal rate paid thereon, and afterwards claims of the shipper for the re-
bates stipulated in such agreement are presented at short intervals and paid by
checks to the shipper, the offense is not a single and continuing one, but there
is a complete and separate offense upon the making of each payment by the
railroad company of the stipulated rebate.^ Where defendant shipped oil at
concession rates on prepaid shipping orders, making settlements with the carrier
periodically, there were as many offenses committed on a settlement being made
as there were separate transactions or transportations covered by such settle-
ment.^*^

4. United States v. New York, etc., R. 1907, p. 880), must be willful. United
Co., 212 U. S. 509, 53 L. Ed. 629, 29 S. States v. Atchison, etc., R. Co., 163 Fed.
Ct. 313. 111.

5. As to connecting carriers.— United 7. United States v. Chicago, etc., R.
States V. Baltimore, etc., R. Co., 153 Fed. ^q., 151 Fed. 84.

„■ Tj 1, t A T) 1 • /^ 8. United States v. Hanley, 71 Fed.

6. Rebates. — Armour Packmg Co. v. ^^^ •"

United States, 153 Fed. 1, 82 C. C. A. ^"^- „ , . . ^

135, 14 L. R. A. N. S. 400. ^' Separate and continuing oflFenses. —

A departure from an established and New York, etc., R. Co r. United States,

published interstate freight rate by a -^^ U. b. 481, 53 L. Ed. 613, 29 S. Ct.

carrier in order to constitute a crime de- '^^^•

nounced by Elkins Act Feb. 19, 1903, c. 10. United States v. Standard Oil Co.,

708, 32 Stat. 847 (U. S. Comp. St. Supp. 192 Fed. 438.

4 Car— 47



§ 4222 CARRIERS. . 3844

Intent. — In a prosecution of an interstate carrier for giving a rebate on an in-
terstate shipment of lime, constituting a departure from the established and pub-
lished rate, the intent of the carrier is of the essence of the offense. ^^ But the
use of the word "willful" in the Act of Feb. 19, 1903, to characterize offenses
thereunder, conceding it to apply to the granting of rebates from the published
schedule rates, does not require that there should have been an evil intent to
constitute the offense, but it is sufficient if the act was done knowingly and
purposely. 12 , , i,; I ' '

Knowingly and Wilfully. — Where, in a prosecution of an interstate carrier
for rebating, the defendant claimed that as soon as it discovered the error it
collected from all but one of the shippers the full tariff rates, an instruction
that the jury should regard the offense as consummated or not according as the
defendant acted with or without knowledge of the facts held sufficiently favor-
able to it.i^

Knowledge of Agent. — Where an interstate railroad company applied lower
transit rates to shipments of lumber which were only entitled to local rates, the
shipper's agents would be presumed to have knowledge of the rate applicable,
which knowledge was imputable to the shipper.^^ But the fact that the agents
who executed such outbound transactions did not know that the lumber was not
entitled to the transit rate did not show that the defendant carrier did not know-
ingly make the rebates. ^^

Printing and Publishing Rates as Prerequisite. — The Act of Feb. 19,.
1903, makes it unlawful for a carrier to grant a rebate from a joint tariff rate
which it has filed with the interstate commerce commission or published, or in
which it participates when filed or published by another carrier, but it does not
make it a criminal offense to receive a rebate from a joint rate unless such rate
has been both filed and published. ^^ The act sets forth two entirely separate
offenses, the first being the failure of a carrier, subject to the provisions of the
interstate commerce act, to file and publish the tariffs required by said act or
strictly to observe the same, and the second the soliciting, accepting, or receiving
by such a carrier of any rebate whereby any property shall be transported at a
less rate than that named in the tariffs published and filed by such carrier. In
order to constitute an offense under the second provision, the tariff charged to
have been violated must be one published or filed by the defendant charged, and
it is not sufficient that in the case involved such defendant participated in a
through rate published and filed by another carrier, where it had not itself pub-
lished or filed it.^'''

Posting Schedule of Rates as Prerequisite. — But compliance with the pro-
vision of the act as to posting copies of schedules and tariffs is not essential to
bring a tariff" within the provision of the act making it a misdemeanor for a
shipper to accept rebates. ^'^

Justification of Rebate. — It is no defense to a prosecution for receiving a
rebate that competing roads granted a like concession, and that the defendant

11. Intent. — Judgment, United States v. able with the agents' knowledge, and was
Atchison, etc., R. Co., 163 Fed. Ill, re- guilty of knowingly accepting at rebate,
versed in 170 Fed. 250, 95 C. C. A. 446. Nichols, etc., Lumber Co. v. United

12. Judgment, United States v. Chi- States, 212 Fed. 588.

cago, etc., R. Co., 151 Fed. 84, affirmed in 15. Grand Rapids, etc., R. Co. v. United

162 Fed. 835. States, 212 Fed. 577.

13. Knowingly and wilfully. — Grand 16. Printing and publishing rates as
Rapids, etc., R. Co. v. United States, 212 prerequisite. — United States v. Wood, 145
Fed. 577. Fed. 405.

14. Knowledge of agent. — Where a 17. United States v. New York, etc., R.
railroad company unlawfully applied tran- Co., 157 Fed. 293.

sit rates to certain shipments of lumber, 18. Posting schedule of rates as prereq-

and certain of the defendant's agents uisite. — United States v. Miller, 223 U.

knew that the lumber was not entitled S. 599, 56 L. Ed. 568, 32 S. Ct. 323, re-

to such rates, the defendant was charge- versing judgment, 187 Fed. 375.



3845



INTERSTATE COMMKRCH; ACT.



§§ 4222-4224



was compelled to do the same in order to secure its fair share of the business,
or that it treated all shi])])ers alike, or that tlie concession was made by its offi-
cers in good faith and in the honest belief that it was lawful. i*^' A contract be-
tween a carrier and the shipper to transport the latter's goods in interstate
or foreign commerce, at the then established rates, for a definite time, con-
stitutes no defense to the charge of giving or receiving a rebate from the filed and
published rates.-**

Refunded to Person Other than Shipper. — The mere fact that a rebate is
not paid to the shipper, but is paid to somebody else, is (|uite immaterial. If it is
in fact a rebate, concession, or discrimination whereby the property is trans-
ported at a less rate than that named in the tarifi^, the unlawful act is com-
mitted.-^

Refunded to Agent of Carrier. — The carrier has a right to employ persons
to solicit business, just as it has a right to employ clerks and employees of all
kinds to do the business, and any payments for such a purpose can not consti-
tute a rebate, concession, or discrimination within the meaning of the act. -

§ 4223. Failure to File and Publish Rates. — By the Interstate Commerce
Act transportation of interstate commerce by a carrier which has not filed its
rates for such service is a misdemeanor.-^

§ 4224. Departure from Publishing Rates. — Section 6 of the Act of
Feb. 4, 1887, as amended by the Act of June 29, 1906, makes it a misdemeanor
for a carrier to charge a ditiferent rate from that fixed by its schedule.-'* The



19. Justification of rebate. — Chicago,
etc., R. Co. V. United States, 1(52 Fed.
835.

20. Armour Packing Co. v. United
States, 153 Fed. 1, 82 C. C. A. 135, 1-1 L.
R. A., N. S., 400.

21. Refunded to person other than ship-
per. — United States v. Delaware, etc., R.
Co., 152 Fed. 2G9.

An indictment against a carrier, alleg-
ing that P. was the duly authorized agent
of the S. Company and vested by it with
the sole and exclusive power and author-
ity to determine over which line any ship-
ment by it should be made; that defend-
ant entered into an unlawful agreement
with P. whereby it was agreed that P.,
as such agent should cause S. to make
large shipments over defendant's road,
and S. should pay defendant the lawful
rate for such shipments, and thereafter P.
should present claims to defendant for a
rebate on such shipments, under the
guise of claims for services; and that such
scheme was carried out,, and defendant
made payments to P. by way of rebate-
charges a payment of rebates in violation
of the Elkins law (Act Feb. 19, 1903, c.
708, 32 Stat. 847 [U. S. Comp. St. Supp.
1905, p. 599]); the fact that the rebate is
paid to another than the shipper being
immaterial, though a payment which is
but a commission for obtaining business
for the carrier is not within the statute.
United States v. Oelaware, etc., R. Co.,



153 Fed. 269.
22. Refunded

United States v.
152 Fed. 269.



to agent of carrier. —
Delaware, etc., R. Co.,



23. Failure to file and publish rates. —

United States v. Illinois Terminal R. Co.,
168 Fed. 546.

24. Departure from publishing rates.
— A count under section G of the act,
charging that on a day named defendant,
as agent, etc., charged and collected of
another railroad company a less rate of
compensation for carrying goods between
Hannibal and Helper than 46 cents per
100 pounds, which rate had been "estab-
lished and published" between those
points prior to the day named, and that
said rate was "in force on that day,"
negatives a reduction by defendant's com-
pany prior to or on the day in question.
United States v. Tozer, 37 Fed. 635, 2
L. R. A. 444.

Where a railroad company which has
fixed a rate of 20 cents per hundred
for freight from Chicago to New York,
and 22 cents per hundred for freight from
points west of Chicago to New York, of
which latter rate said company receives
18 cents, making an arrangement with a
Chicago firm to ship its freight from Chi-
cago to New York at 22 cents under bills
of lading purporting to come from West-
ern points, and to return to them 4 cents
under pretense of paying it to the road
bringing the freight into Chicago, it is
guilty of violation of the provision of
the interstate commerce act of February
4, 1887, which makes it a misdemeanor
for a common carrier to charge different
rates from those fixed in its schedule.
United States v. Michigan Cent. R. Co.,
43 Fed. 26.

An indictment against a railroad com-



§§ 4224-4226 carriers. 3846

acceptance by a railroad company in settlements with a coal company for inter-
state shipments of coal of notes of the shipper for a part of its freight charges,
in accordance with an agreement and understanding between them, constitutes
a willful failure to strictly 'observe its tariffs. - ^ An arrangement between a rail-
way company and a construction company for reduced-rate transportation of
men and materials required by the company in grading an extension, when en-
tered into in good faith, is not obnoxious to the provisions of laws prohibiting
departure from published tariffs.-'^

Necessity for Actual Acceptance of Rate. — Under the provisions of the
Interstate Commerce Act that no carrier shall charge, demand, collect, or receive
a greater or less compensation for service than the rates, fares, and charges
specified in the tariff filed and in effect at the time, a willful demand of more
than the tariff rates by a carrier is of equal criminality with an actual collection
thereof.-"

§ 4225. False Billing- of Goods. — The fixing of the value of property in a
bill of lading at less than its actual value for the purpose of limiting the amount
of the carrier's liability in case of loss is not a false billing in violation of the
Interstate Commerce Act.-^

§ 4226. Liability for Act of Agent. — It is true that there are some crimes,
which in their nature can not be committed by corporations. But there is a
large class of offenses, of which rebating under the federal statutes is one, wherein
the crime consists in purposely doing the things prohibited by statute. In that
class of crimes corporations may be held responsible for and charged with the
knowledge and purposes of their agents, acting within the authority conferred
upon them.^!'

Constitutionality of Provision. — There can be no question as to the power
of congress to control those who are conducting interstate commerce by holding
them responsible for the intent and purposes of the agents to whom they have
delegated the power to act in the premises, and such provision of the statute
is not unconstitutional upon the theory that it attributes the act of the agent to
his principal, thereby making one person responsible for the crime of another,
and thus depriving him of due process of law and of the presumption of inno-
cence which the law raises in his favor.^" Even if this section of the act were

pany for violation of the interstate com- carrying goods at a less or different rate

merce act (Act Cong. Feb. 4, 1887, c. 104, than the tariff rate is not in terms de-

24 Stat. 379 [U. S. Comp. St. 1901, p. clared an offense or penalized, it is pun-

3154]), as supplemented by the Elkins ishable as a failure strictly to observe

act (Act Cong. Feb. 19, 1903, c. 708, 32 such tariff. Hocking Valley R. Co. v.

Stat. 847 [U. S. Comp. St. Supp. 1905, p. United States, 210 Fed. 735; Sunday Creek

599]), alleged that defendant published a Co. v. United States, 210 Fed. 747.

sugar schedule for the transportation of 25. United States v. Hocking Valley R.

sugar from New York to Cleveland at Co., 194 Fed. 234.

the rate of 21 cents per 100 pounds; that 26. Santa Fe, etc., R. Co. v. Grant Bros,

on a specified day the American Sugar Constr. Co., 33 S. Ct. 474, 228 U. S._ 177,

Refining Company induced defendant to 4(5 L. R. A., N. S., 148, reversing judg-

make an unlawful agreement to allow a ment, 108 Pac. 467, 13 Ariz. 186.

rebate of 6 cents on sugar shipped by it 27. Necessity for actual acceptance of

to Cleveland for reconsignment, and 4 rate. — United States v. Texas, etc., R.

cents on sugar shipped to Cleveland as its Co., 185 Fed. 820.

ultimate destination; that the sugar com- 28. False billing of goods. — Pierce Co.

pany thereafter shipped various consign- v. Wells Fargo & Co., 189 Fed. 561, 110

ments, paid the schedule rate, and after- C. C. A. 645.

wards made claims on the railroad com- 29. Liability for act of agent. — New

pany, and was paid a rebate. Held, that York, etc., R. Co. v. United States, 212

such facts sufficiently showed a violation U. S. 481, 53 L. Ed. 613, 29 S. Ct. 304.

of the provisions of the act prohibiting 30. Constitutionality of provision. — ^New

deviations from the published rates. York, etc., R. Co. v. United States, 212

United States v. New York, etc., R. Co., U. S. 481, 53 L. Ed. 613, 29 S. Ct. 304.

146 Fed. 298. Due process of law is not denied by

Not in terms declared offense. — While the provisions of the Elkins Act of Feb-



3847 INTJJRSTATE COMMERCE; ACT. §§ 4226-4230

unconstitutional as applied to individuals engaged in the business of interstate
carriage, it must still be sustained as to corporate carriers, since every act is to
be construed so as to maintain its constitutionality if possible, and the valid pro-
visions thereof upheld unless they are so interblended with the invalid ones



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 139 of 214)